More Cool Maps as Evidence of What the "United States" Meant in 1868
Andrew Hyman

In a recent post, Michael Ramsey discussed a recent Tenth Circuit opinion in Fitisemanu v. United States interpreting the Citizenship Clause of the Fourteenth Amendment.  In particular, Mike praised the dissent by Judge Bacharach.  In a note to Mike’s post, I mentioned my preference for the majority opinion by Judge Lucero.  

As to the dissent, Mike mentioned that it had “some super cool maps that I wish I'd found….”  Indeed, Judge Bacharach’s dissent included images of two maps, from 1857 and 1868, at pages 10 and 11 of that dissent.  Those maps from 1857 and 1868 used the term “United States” in a way that apparently included not just the states but also the territories.  The majority opinion countered by arguing that the term “United States” was also used sometimes during that century in a way that only included the states and not the territories:

A map published in the 1830s, for example, is titled “A map of the United States and part of Louisiana,” despite Louisiana having been a territory under one name or another since 1805. Mary Van Schaack, A Map of the United States and Part of Louisiana (c. 1830), www.loc.gov/resource/g3700.ct000876/ (on file with the Library of Congress).

Seeing as how Mike and I agree that map evidence is pretty cool, I want to mention a few more maps, which all show the term “United States” being used in contradistinction to the words “territory” or “territories.”  So, here are five maps that I came across during a quick internet search, in chronological order:

1) New map of that portion of North America, exhibiting the United States and territories…. Baltimore, Md. : Jacob Monk, 1854 (Engraved & printed by A. Hoen & Co.).

2) General map of the United States & their territory between the Mississippi & the Pacific Ocean by John Fiala (1859).

3) Military Map of the United States & Territories showing the location of the military posts, arsenals, Navy Yards, & ports of entry. Compiled from pub-doc--1861.

4) Map of the United States, and Territories. Together with Canada from Mitchell's New General Atlas. Philadelphia: S.A. Mitchell, Jr., 1861.

5) Map of the United States and territories, showing the extent of public surveys and other details, U.S. General Land Office (1867).

Just to be clear, I am not suggesting that most of the maps of these areas, during the years leading up to the Fourteenth Amendment, distinguished between the United States and the Territories, like these five maps did.  All I’m saying is that some did.  Maybe that was not the primary definition of "United States" back then, but we must use a secondary definition if that’s what the text and context suggest.  It's well known, by the way, that the term "United States" is used differently now compared to nineteenth century usage, in that it used to be plural more often than singular, although not every plural use signified exclusion of the territories. 


New Book: "Cases Without Controversies" by James Pfander
Michael Ramsey

Recently published: Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press 2021) by James E. Pfander (Northwestern).  Here is the book description from the publisher:

This book offers a new account of the power of federal courts in the United States to hear and determine uncontested applications to assert or register a claim of right. Familiar to lawyers in civil law countries as forms of voluntary or non-contentious jurisdiction, these uncontested applications fit uneasily with the commitment to adversary legalism in the United States. Indeed, modern accounts of federal judicial power often urge that the language of the Article III of the U.S. Constitution limits federal courts to the adjudication of concrete disputes between adverse parties, thereby ruling out all forms of non-contentious jurisdiction. Said to rest on the so-called “case-or-controversy” requirement of Article III, this requirement of party contestation threatens the power of federal courts to conduct a range of familiar proceedings, such as the oversight of bankruptcy proceedings, the issuance of warrants, and the adjudication of applications for mandamus and habeas corpus relief. By recounting the tradition of naturalization and other uncontested litigation in antebellum America and coupling that tradition with an account of the important difference between cases and controversies, this book challenges the prevailing understanding of Article III. In addition to defending the power of federal courts to hear uncontested matters of federal law, the book examines the way the Constitution's meaning has changed over time and suggests a constructive interpretive methodology that would allow the Supreme Court to take account of the old and the new in defining the contours of federal judicial power.

And here is the table of contents:


Part One: Thesis: Uncontested Adjudication in the Federal Courts

1. Chapter One: The Origins of Uncontested Adjudication
2. Chapter Two: Uncontested Proceedings on Federal Dockets in the Early Republic
3. Chapter Three: Probate and Domestic Relations Proceedings
4. Chapter Four: The Nineteenth-Century Perspective on Federal Judicial Power

Part Two: Antithesis: The Progressive Restatement of an Emerging Case-or-Controversy Requirement

5. Chapter Five: The Judicial Response to the Administrative State
6. Chapter Six: The Progressive Response to Lochner: Limiting Justiciability
7. Chapter Seven: The New Adverse-Party Rule Confronts Judicial Practice

Part Three: Synthesis: Cases, Controversies, and Litigable Interests

8. Chapter Eight: Uncontested Adjudication and the Modern Case-or-Controversy Rule
9. Chapter Nine: Evaluating Defenses of a Requirement of Adverse Interests
10. Chapter Ten: Uncontested Adjudication and Standing to Sue
11. Chapter Eleven: A Practical Guide to Uncontested Adjudication
12. Chapter Twelve: Toward a Constructive Constitutional History

Part Four: ConclusionForeword

Part One: Thesis: Uncontested Adjudication in the Federal Courts

1. Chapter One: The Origins of Uncontested Adjudication
2. Chapter Two: Uncontested Proceedings on Federal Dockets in the Early Republic
3. Chapter Three: Probate and Domestic Relations Proceedings
4. Chapter Four: The Nineteenth-Century Perspective on Federal Judicial Power

Part Two: Antithesis: The Progressive Restatement of an Emerging Case-or-Controversy Requirement

5. Chapter Five: The Judicial Response to the Administrative State
6. Chapter Six: The Progressive Response to Lochner: Limiting Justiciability
7. Chapter Seven: The New Adverse-Party Rule Confronts Judicial Practice

Part Three: Synthesis: Cases, Controversies, and Litigable Interests

8. Chapter Eight: Uncontested Adjudication and the Modern Case-or-Controversy Rule
9. Chapter Nine: Evaluating Defenses of a Requirement of Adverse Interests
10. Chapter Ten: Uncontested Adjudication and Standing to Sue
11. Chapter Eleven: A Practical Guide to Uncontested Adjudication
12. Chapter Twelve: Toward a Constructive Constitutional History

Part Four: Conclusion

(Via Dan Ernst at Legal History Blog.)


John McGinnis on Fulton, Smith and Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: The Fulton Opinion and the Originalist Future of Religious Freedom.  Here is the introduction:

last week in Fulton v. Philadelphia, the Supreme Court held that Philadelphia violated the Free Exercise Clause when it declined to employ a Catholic provider of foster care services because of the charity’s refusal to certify same-sex couples as appropriate foster parents. The Court reasoned that, because Philadelphia was willing to consider exceptions to its contractual nondiscrimination requirement, its prohibition on discrimination was not a generally applicable rule. The law thus was not insulated from constitutional challenge by Employment Division v. Smith. That important case permits government rules to burden religious exercise, so long as they are generally applicable and not targeted at religion. While the majority’s opinion did not overrule Smith, two concurrences joined by five justices suggest that Smith is on life support.      

And from later on:

Despite the significance of the majority opinion in limiting Smith, much of the media commentary on Fulton has buried the lede. The concurring opinions show there are very likely five votes to overrule Smith. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, is explicit in his 77-page concurrence, discussed below. But Justice Amy Coney Barrett’s concurrence, joined by Justice Brett Kavanaugh, shows that at least two other justices are considering overruling the case as well. 


Alito’s opinion is avowedly originalist, emphasizing that he is relying on the original meaning of the Clause, which Antonin Scalia, the author of Smith and the most famous originalist in recent times, neglected. That Alito has so clearly nailed his colors to the mast of originalism is itself significant. He has not heretofore been the most avowedly originalist justice on the Court. But in a speech to the Federalist Society in November, Alito said that he believes originalism is now the parole of the law on the Court and he vowed to focus on getting the form of originalism right.

In Fulton, Alito relies on the original meaning of the text as the key to constitutional interpretation. He argues that Smith is not right because it imports a requirement of discrimination that is nowhere in the text. That text provides that “Congress shall make no law prohibiting the free exercise of [religion].” Alito considers the usage, including dictionary definitions at the time. He then argues that if we put these definitions together, the ordinary meaning of “prohibiting the free exercise of religion” was (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith. It certainly does not suggest a distinction between laws that are generally applicable and laws that are targeted.” Moreover, Alito correctly points out that it is anomalous to read a discrimination or equality requirement into the Free Exercise Clause, because none of the other provisions of the Bill of Rights has been understood to have such a component.

... [A]fter considering the dictionary definition of words, Alito invokes the legal context to support his reading of the Free Exercise Clause. For instance, he relies on clauses that protect religious exercise in state constitutions at the time of the federal constitution. He notes that these clauses frequently had the proviso that religious exercise would not be protected if it disturbed “the civil peace” or a similar formulation. Alito’s point here is that there would be little reason to include such provisos if the clause protected only against laws that discriminate against religion. 

In my view, such provisos and other similar limitations inferable from the legal context help with another problem in interpreting the Clause. It is not possible to interpret the Free Exercise Clause as a get-out-of-law-free card, whatever the law and whatever the religious practice. Satanic torture cults surely are not protected by the Constitution. And the legal context of Free Exercise shows that the meaning of the Clause—its meaning in the legal context—would not have required Courts to protect such kinds of observance from legal prohibitions....

A very important post, especially the last part, because as Professor McGinnis says, the key to getting the votes to overturn Smith is persuading Justices Kavanaugh and Barrett that there is a plausible originalist-grounded limiting principle allowing governments to regulate especially harmful religious practices.


Three Perplexing Cases from the Supreme Court
Michael Ramsey

This week's decisions by the Supreme Court featured some originalism (mostly in concurrences), but it's unclear who (if anyone) had the right answers.

In Mahanoy Area School District v. B.L., the Court held (8-1) that the First Amendment protects profane commentary on school activities by grade-school students posted on social media.  Justice Breyer's opinion for the majority is a characteristically unhelpful bit of pragmatism.  Justice Thomas in dissent argued that historical analysis favors the school:

While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what ‘ordinary citizens’ at the time of [the Fourteenth Amendment’s]  ratification would have understood” the right to encompass. McDonald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judgment). Cases and treatises from that era reveal that public schools retained substantial authority to discipline students. As I have previously explained, that authority was near plenary while students were at school. See Morse v. Frederick, 551 U. S. 393, 419 (2007) (concurring opinion). Authority also extended to when students were traveling to or from school. See, e.g., Lander v. Seaver, 32 Vt. 114, 120 (1859). And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment. 

Justice Alito, joined by Justice Gorsuch, offered a sort-of-originalist response in concurrence.  I'm not sure who has the better of the argument, but Thomas explored the history much more deeply.

In Arthrex Inc. v. Smith & Nephew Inc., the Court held (5-4) in a generally originalist-oriented opinion by Chief Justice Roberts that Administrative Patent Judges  (APJs) cannot exercise unreviewable executive authority because they are appointed by the Secretary of Commerce without Senate advice and consent.  Justice Gorsuch in concurrence took a textualist/originalist view:

By definition, an “‘inferior officer’ . . . has a superior.” Edmond v. United States, 520 U. S. 651, 662 (1997). To be an “inferior” officer, then, one must be both “subordinate to a[n] officer in the Executive Branch” and “under the direct control of the President” through a “chain of command.” Morrison, 487 U. S., at 720–721 (Scalia, J., dissenting). In this way, the “text and structure of the Appointments Clause” require a “reference to hierarchy.” Calabresi & Lawson, The Unitary Executive,  Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 Colum. L. Rev. 1002, 1018–1020 (2007). Only such an understanding preserves, as Madison described it, the “chain of dependence,” where “the lowest officers, the  middle grade, and the highest”—each and every one—“will depend, as they ought, on the President.” 1 Annals of Cong. 499 (Madison). And where the President, in turn, depends “on the community,” so that “[t]he chain of dependence” finally “terminates in the supreme body, namely, in the people.” Ibid.

I agree with the Court, too, that the statutory regime before us breaks this chain of dependence. In the America Invents Act of 2011 (AIA), Congress authorized the inter partes review (IPR) process, which permits anyone to file a petition asking the Patent and Trademark Office to “cancel” someone else’s patent. 35 U. S. C. §311. Congress assigned the power to decide an IPR proceeding to a specific group of officials—the Patent Trial and Appeal Board (PTAB). Under the AIA’s terms, three members from the PTAB—often, as here, administrative patent judges (APJs)—sit on a panel to decide whether to cancel a patent. §6(c). After the three-member panel issues its decision, a party may seek rehearing from another three-member panel. Ibid. But only a PTAB panel—and no other official within the Executive Branch—may grant rehearing. Ibid. If that fails, a losing party’s only recourse is to seek judicial review in the Court of Appeals for the Federal Circuit, which reviews the PTAB’s factual findings under the deferential substantial evidence standard of review. See §319; Oil States, 584 U. S., at ___ (slip op., at 4).

Under this statutory arrangement, APJs are executive officers accountable to no one else in the Executive Branch. A panel of bureaucrats wields unreviewable power to take vested property rights. This design may hold its advantages for some. Often enough, the Director of the Patent and Trademark Office and the President may be happy to wash their hands of these decisions. But by breaking the chain of dependence, the statutory scheme denies individuals the right to be subjected only to lawful exercises of executive power that can ultimately be controlled by a President accountable to “the supreme body,  namely, . . . the people.”

Gorsuch disagreed with the majority principally on the remedy; he thought the entire APJ structure was void, whereas the majority found that the provision making the APJ decisions nonreviewable could be severed and thus the defect could be cured by giving the Director of the Patent and Trademark Office power of review over them.

Justice Thomas in dissent responded that the the APJs are inferior officers under the functional test of Edmonds, but in his final section questioned Edmonds on originalist grounds.  I'm not sure what to think about this one either: on one hand Thomas seems right that the APJs are fairly minor officials well down the Commerce Department hierarchy, so it's odd to think of them as superior officers; but on the other hand Gorsuch seems right that they exercise a good bit of unreviewable authority, making them seem not inferior.

And in Yellen v. Collins the Court held that the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional because its director is removable only for good cause.  That ruling was expected given the Court's holding last year in Seila Law as to the similarly-structured Consumer Financial Protection Bureau.  The difficult issue in Collins was the remedy: were the actions of the FHFA void due to its unconstitutional structure?  Justice Gorsuch thought so (consistent with his view in Arthrex, which raised a somewhat similar issue):

As the Court observes, the only question before us concerns retrospective relief. Ante, at 32. By the time we turn to that question, the plaintiffs have proven that the Director was without constitutional authority when he took the challenged actions implementing the Third Amendment. In response to such a showing, a court would normally set aside the Director’s ultra vires actions as “contrary to constitutional right,” 5 U. S. C. §706(2)(B), subject perhaps to consideration of traditional remedial principles such as laches. See ante, at 36, n. 26; Abbott Laboratories v. Gardner, 387 U. S. 136, 155 (1967). Because the Court of Appeals did not follow this course, this Court would normally vacate the judgment in this suit with instructions requiring the Court of Appeals to conform its judgment to traditional practice. Today, the Court acknowledges it has taken exactly this course in cases involving unconstitutionally appointed executive officials. Ante, at 33–34. Still, the Court submits, we should treat this suit differently because the Director was unconstitutionally insulated from removal rather than unconstitutionally appointed. Ante, at 33–34; see also ante, at 7 (THOMAS, J., concurring).

It is unclear to me why this distinction should make a difference. Either way, governmental action is taken by someone erroneously claiming the mantle of executive power—and thus taken with no authority at all....

But Alito for the majority disagreed, instead concluding that because the Director was constitutionally appointed, the claimants had to show particular harm from the defective removal provision, and remanded for the court of appeals to consider that question.  (Aside: if the claimants haven't made that showing I'm not sure why they have standing, but in an earlier part of the opinion Justice Alito said they do.)

In sum, I'm doubtful that originalism handles any of these cases well (or, at least, that the originalist-oriented Justices have found any conclusive guideposts).


Richard Samuelson on the Constitutionality of a Global Minimum Tax
Michael Ramsey

At Law & Liberty, Richard Samuelson (California State University, San Bernardino - history): Is a Global Tax Constitutional?  From the introduction:

The Biden Administration has declared its support for a “global minimum” corporate tax rate of 15%.  So long as this is merely a declared goal, it’s a legal nothing, worth no more than the paper it’s written on.  It is worth asking if it could ever be anything more than that? Absent an amendment to the U.S. Constitution, probably not.  ...

According to Article I, section 7, of the U.S. Constitution, “All Bills for raising Revenue shall originate in the House of Representatives.”  That language was part of the Connecticut Compromise between the larger and smaller states. The House of Representatives would be proportionate to population and the Senate would be based upon the equality of states.  The Compromise was a way of ensuring that the larger states did not gang up on the smaller, less powerful ones.  As taxes ought to be made in proportion to population (or wealth, but they had no good way to do that, so they used population) the House of Representatives, being the representative of population, was accorded the right to originate all tax bills.

What does that mean for this case of a global tax rate backed by a treaty?...

Professor Samuelson then describes the 1790s debate over whether a treaty could require the House to spend money (a somewhat parallel issue). He notes that Madison argued it could not:

What if a treaty requires revenue to be spent?  Does the treaty power supersede the provision in Article I, section 7?  James Madison, then a leader in the House of Representatives, argued that a treaty could not spend money without the consent of the House of Representatives. It would only require a bare majority of the House to approve, however. ...

[Madison reasoned that [t]he U.S. has “a Constitution of limitations and checks” that divides power “into three great departments” and “around each of these portions of power were seen, also, exceptions and qualifications.”  In Madison’s view it would be rendering those checks and qualifications moot by reading the treaty power as an unlimited one.  Hence, any treaty that requires money to be spent must also gain the assent of a majority of the House before that spending provision becomes law.  President Washington disagreed with Madison here.   ...  In 1796, however, Washington lost the argument, and since Madison’s day his reasoning has carried the field. 

Thus, applied to the global tax issue: 

Can the U.S. bind itself to a global minimum tax?  With a constitutional amendment, of course, but not otherwise.  Note that Madison’s reasoning in 1796 was only about spending money, and not about tax, although the Jay Treaty did give Great Britain what we now call “Most Favored Nation” status. That status, although it does have to do with tariff rates, is also about the particular rate for a particular country, and not about tariff rates in general.  But if the treaty power is, presumptively, limited even in the case of spending, so much more ought we to conclude that the U.S. government has no right completely to delegate the right to set tax rates via a treaty.  It is hard, probably impossible, to reconcile a permanent abdication of American sovereignty via the treaty power with the very idea of constitutional government itself.

I agree with Madison to the extent of the argument summarized above, but I think Professor Samuelson overreads both Madison and the Constitution.  It's correct that the revenue clause requires the House to originate revenue bills and thus a treaty cannot in itself impose higher tax rates in the United States.  (Aside: the tax treaties that the U.S. commonly enters into are probably constitutional because they generally don't raise revenue; see here.) But that doesn't mean a treaty providing for a global minimum tax would be unconstitutional -- it just means that such a treaty would have to be non-self executing.  That is, it would be an international obligation of the United States to impose the tax, but it would still require implementation by Congress, with origination in the House, to be part of U.S. law. (I discuss this aspect of non-self executing treaties here: A Textual Approach to Treaty Non-Self-Execution, pp. 1643-45).

Professor Samuelson goes on to say:

But an administration might try to follow the precedent the Obama Administration set when it called the Iran treaty an “agreement,” not requiring the assent of two-thirds of the Senate.  ... But if, per settled precedent going back to 1796, a treaty cannot legally take away from the Congress the Constitutional authority to spend money authorized in a treaty, not to mention set tax rates, then, surely, something less than a treaty cannot do so.

I agree, but that doesn't mean the Biden administration can't enter into a non-binding agreement on a global minimum tax.  it just means that such an agreement (like the Obama administration's "agreement" with Iran) isn't binding on the U.S. under international law and isn't part of U.S. domestic law until enacted by Congress.  (See here).


Josh Hammer: Overrule Stare Decisis
Michael Ramsey

Josh Hammer (Edmund Burke Foundation; Newsweek) has posted Overrule Stare Decisis (National Affairs, Fall 2020) (14 pages) on SSRN.  Here is the abstract:

Few doctrines in originalist constitutional scholarship are as contested as stare decisis—that is, the weight to which precedent ought to be, or constitutionally even can be, considered by judges and other constitutional actors when such precedent conflicts with the original understanding of a specific constitutional provision in question.

This essay, written in the aftermath of Justice Clarence Thomas's clarifying concurring opinion in the 2019 case of Gamble v. United States, argues that the Constitution itself affirmatively forbids reliance upon demonstrably erroneous precedent that conflicts with the original understanding of the Constitution. It argues that originalists who argue for a greater role for precedent in constitutional adjudication, such as the late Justice Antonin Scalia, err in doing so.

An excellent summary of the arguments, whatever one thinks of the conclusion.  Among other interesting points (p. 8):

Thomas’s concurrence in [United States v.] Gamble also relied heavily on [Professor Caleb] Nelson’s scholarship on the founding-era process of liquidation. As the term “liquidation” was understood by founding-era political and legal luminaries, the iterative actions of constitutional actors—of both judicial and nonjudicial varieties—could help, in the early stages following the enactment of a genuinely obscure or ambiguous constitutional provision, assist in discovering and ultimately ascertaining the meaning of that provision. Citing Nelson’s 2001 essay that brought the concept of
liquidation to the forefront of originalist scholarship, Thomas opined that a precedent “may remain relevant when it is not demonstrably erroneous.”

The key word for Thomas is “relevant.” Whereas Nelson persuasively cites Madison’s late-stage “flip-flop” on the issue of the constitutionality of the Bank of the United States to support the contention that a “sufficiently deliberate course of legislative or judicial decisions” can “settle” the meaning of a genuinely obscure legal provision and therefore actually bind future actors, Thomas refrains from going quite that far. Thomas does not view the iterative liquidation process as binding, per se; he merely suggests that if an ambiguous legal provision has been liquidated in a way that is not  demonstrably erroneous from the perspective of original-public meaning originalism, then it is permissible for a later court to adhere to that liquidated provision even if it would have ruled differently as an issue of first impression.

This passage invites two questions about Justice Thomas' view.  First, what does it mean to be "demonstrably erroneous"?  The passage suggests (correctly, I think) that his "demonstrably erroneous" means something more than "more likely erroneous than not."  But how high a standard is it:  beyond a reasonable doubt/clearly erroneous? Or something in between?

Second, if it's right that a precedent that is likely wrong but not "demonstrably erroneous" is only "relevant" but not decisive to future cases, what else goes into the evaluation of whether it should be followed?  At this stage does the judge consider matters like reliance interests?


Balkinization Symposium on Kurt Lash's "The Reconstruction Amendments: Essential Documents"
Michael Ramsey

At Balkinization, a symposium on Kurt Lash's The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021)(2 vols.).  From Jack Balkin's introduction:

We have assembled a terrific group of commentators, including Christopher Green (Mississippi), Sandy Levinson (Texas), Gerard Magliocca (Indiana), Jennifer Mascot (George Mason), Darrell Miller (Duke), Richard Primus (Michigan), Bradley Rebeiro (BYU), Lee Strang (Toledo), Lea Vandervelde (Iowa), and myself.

At the conclusion, Kurt will respond to the commentators.

Here are some of the initial posts;

What is Reconstruction? by Gerard N. Magliocca

Kurt Lash and the Canons of Constitutional Law by Jack Balkin

Kurt Lash on Reconstruction (1): Defining the topic, setting the canon by Sandy Levinson

Kurt Lash on Reconstruction (2): Is the Fifteenth Amendment an Embarrassment? by Sandy Levinson

Not Too Much, Not Too Little: Frederick Douglass in Kurt Lash’s Reconstruction Volumes by Bradley Rebeiro 

What Reconstruction Demonstrates about Constitutional Change by Richard Primus 


James Pfander & Andrew Borrasso: Public Rights and Article III
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Andrew Borrasso (J.D. Northwestern '20) have posted Public Rights and Article III: Judicial Oversight of Agency Action (Ohio State Law Journal, forthcoming) (59 pages) on SSRN.  Here is the abstract:

As it works to define the relationship between the federal courts and the boards, commissions, and agencies that make up the administrative state, the Supreme Court has long distinguished between public and private rights. Dating from the decision in Murray’s Lessee, the public rights doctrine allows Congress to assign some matters either to the Article III judiciary or to non-Article III courts. Despite the doctrine’s pedigree, however, courts and commentators disagree about what triggers it. Only two years ago, in Oil States v. Greene’s Energy, the Court upheld the patent board’s power to review patent validity as a matter of public right. But a spirited dissent argued that patent validity contests require an Article III court. Similar disagreements have peppered the Court’s analysis of other public rights questions.

This Article offers a new account of Murray’s Lessee and a new synthesis of the public rights doctrine. Murray’s Lessee did not turn on Congress’s power to manage the government’s immunity from suit or on the government’s appearance as a party to the litigation (as many have mistakenly assumed). Instead, the Court drew on a distinction between the creation or constitution of new rights and the adjudication of disputes over existing rights. Nineteenth century jurists insisted on judicial control of adjudicatory matters, but deferred when Congress conferred discretionary authority on a board or commission or court to fashion new rights through the issuance of a constitutive decree or order. The distinction between the adjudicative resolution of disputes over existing rights and the issuance of constitutive orders to create new rights does much to explain Murray’s Lessee and other controversial applications of the public rights doctrine. Applying this new understanding to Oil States, the Article concludes that although patents issue through a constitutive process, disputes over their validity present adjudicative issues that fall outside the public rights doctrine.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!"


Mark David Hall on the Original Meaning of the Establishment Clause
Michael Ramsey

At Law & Liberty, Mark David Hall (George Fox University - Politics): Getting Back to Original Meaning (commenting on this essay by Francis Beckwith).  From the introduction: 

Francis Beckwith has provided an excellent account of the development of the Lemon Test. I agree that it is an ahistorical and analytical test that was applied in an “ad-hoc, counter-intuitive” manner. He is also correct that if justices had attempted to remedy the ad-hoc problem by applying it rigorously, the test would have institutionalized “both a government preference for secularism as well as a hostility toward religion.”

Beckwith observes that the Lemon Test “is rooted in post-1947 Court opinions and not on how the “establishment of religion” was generally understood when the First Amendment was ratified.” I largely agree, but think it important to remember that a surprising range of justices have argued that the Establishment Clause must be interpreted in light of its “generating history.” I focus only on a few justices and cases in this brief essay, but I provide a far more detailed overview elsewhere, which demonstrates that both liberal and conservative justices regularly made such claims. Remarkably, in select cases, even separationists like Black and Brennan offer not-unreasonable accounts of what the Establishment Clause was originally understood to prohibit. If these and other jurists had stuck with their inclination to rely on the original public meaning (a phrase they did not use) of the First Amendment rather than cobble together an ahistorical analytical test, much of the Court’s muddled Establishment Clause jurisprudence, especially of the 1970s and 1980s, would have been avoided.

And in conclusion:

Justices as diverse as Black, Rutledge, Brennan, and Rehnquist have argued that the Establishment Clause should be interpreted in light of its original public meaning. Opponents of originalism often claim that it is difficult, if not impossible, to discern the original public meaning of constitutional provisions. This may be true in some cases, but with respect to the Establishment Clause, it seems clear that it was originally understood to prohibit the evils associated with established churches. And jurists as different as William Brennan, in Abington, and Michael McConnell, in an influential 2003 law review article, agree that it was understood to prevent a remarkably similar list of practices. In McConnell’s account, the Establishment Clause was originally understood to prohibit six categories of government action:

1. government control over the doctrine and personnel of the established church

2, mandatory attendance in the established church;

3, government financial support of the established church;

4, restrictions on worship in dissenting churches;

5. restrictions on political participation by dissenters;

6. use of the established church to carry out civil functions. 

Such findings have been confirmed by recent scholarship, including my own Did America Have a Christian Founding? and these fine works.

If justices had faithfully interpreted the Establishment Clause in light of its original public meaning, the absurd results that Rehnquist listed in his Wallace dissent would have been avoided. And contemporary arguments that religious exemptions and religious monuments on public land somehow violate the Establishment Clause would get little traction, at least among the current Supreme Court justices. 

The Lemon ghoul had a long life, but it may well now be dead. Justices should ensure that it remains in a deep grave where it may rest in peace.


Three Not Very Interesting Cases from the Supreme Court
Michael Ramsey

Yesterday the Supreme Court decided three closely watched cases, Fulton v. City of Philadelphia (religious liberty), Nestlé USA, Inc. v. Doe I (Alien Tort Statute), and California v. Texas (Obamacare again). Sadly, or perhaps fortunately, none produced consequential results.  Ed Whelan at NRO Bench Memos has a good overview of the first two here and here.  At Volokh Conspiracy, Jonathan Adler, Josh Blackman, Ilya Somin, and Eugene Volokh have more.

In California v. Texas, the Court (7-2) found no standing.  I don't really have an originalist perspective on that conclusion, though it seems to me that states suing to vindicate what are effectively individual rights is an odd invocation of the judicial power.

In Fulton, the important question was whether the Court would uphold or overrule Oregon v. Smith, Justice Scalia's key 1990 case restricting the scope of free exercise claims, which has been sharply criticized on originalist grounds.  The Court gave no answer; the majority found the claimants won even under the Smith test, while the concurring opinions debated Smith's future. As Ed Whelan summarizes:

In a three-paragraph concurring opinion, Justice Barrett offers her view that the “textual and structural arguments against Smith are more compelling” than the historical arguments against it. But, asking “what should replace Smith?” if it were to be overruled, she says that she is “skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime.” Justice Kavanaugh joined Barrett’s opinion in full. Justice Breyer joined two of its paragraphs, but not the one expressing doubts about the correctness of Smith.

In a 77-page opinion concurring in the judgment ... Justice Alito, joined by Justices Thomas and Gorsuch, calls for Smith to be overruled and laments that the Court has instead “emitted a wisp of a decision that leaves religious liberty in a confused and vulnerable state.” ...

As to what should replace Smith, Alito responds:

The answer that comes most readily to mind is the standard that Smith replaced: A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest.

In his own concurrence in the judgment, Gorsuch, joined by Thomas and Alito, criticizes the majority for a “dizzying series of maneuvers” that enable it to avoid addressing Smith.

Overall, there would appear to be at least five justices ready (Thomas, Alito, and Gorsuch) or disposed (Barrett and Kavanaugh) to overturn Smith. But Barrett and Kavanaugh are not yet confident what rules should replace Smith.

In Nestlé (a case in which I joined an amicus brief supporting petitioners) the key question was whether the Court would return the Alien Tort Statute (ATS) to something like its original meaning.  The answer was that the Court would continue to equivocate.  Here's Ed Whelan's summary of the main opinions:

1. In Part II of Justice Thomas’s lead opinion joined by seven other justices (all but Justice Alito), the Court holds that the plaintiffs are improperly seeking extraterritorial application of the ATS. “Nearly all the conduct that [plaintiffs] say aided and abetted forced labor … occurred in Ivory Coast.” While they pleaded that every major operational decision was made in or approved in the United States, “allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.”

2. Justice Thomas, joined by Justices Gorsuch and Kavanaugh, argues in Part III of his opinion that the federal courts should not create private rights of action under the ATS for violations of international law beyond the three historical torts that the Court identified in its 2004 ruling in Sosa v. Alvarez-Machain—namely, violation of safe conducts, infringement of the rights of ambassadors, and piracy. The creation of any other causes of action should be left to Congress. (Gorsuch, joined by Kavanaugh, elaborates on this point in a separate concurrence.) ... [There was also a concurrence by Justice Sotomayor and a dissent by Justice Alito.]

I think Justice Thomas is sort of right (as an original matter) in Part III. Federal courts should not create federal causes of action under the ATS.  The ATS is just a jurisdictional statute, as its plain language makes clear. ("The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.")  So the plaintiffs/respondents, who sought a federal cause of action, rightly lost. 

But the fact that plaintiffs lack a federal cause of action shouldn't mean there isn't federal jurisdiction.  There obviously is federal jurisdiction -- if not under the ATS, then under diversity jurisdiction (plaintiffs are aliens and the defendants are U.S. corporations).  The decisive question ought to be whether the plaintiffs have a cause of action from some non-federal source,  such as state law or foreign law.    (I discussed this approach more in a post at Just Security last December.)

It's disappointing that no one on the Court wants to focus on this point, because it would make ATS cases conceptually much easier (and restore something like the original meaning).  Instead, the Court continued to pursue the idea of an extraterritoriality limit on the ATS, which still seems wrong to me.  No one thinks the diversity jurisdiction statute has an extraterritoriality limit, so why should we think the ATS has one?  Plus the Court's focus on extraterritoriality implies that courts might be able to create federal causes of action under the ATS for territorial torts, though in fact I doubt there are five Justices who actually think that.

So in short, three cases that don't resolve anything important.