02/10/2023

Originalism Works-in-Progress Conference in San Diego Today and Tomorrow
Michael Ramsey

The Fourteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference, presented by the University of San Diego Law School Center for the Study of Constitutional Originalism, will take place today and tomorrow in San Diego.  Here is the schedule:

 Friday, Feb. 10

2:30 – 2:45  Opening Remarks

Michael Rappaport (USD)

2:45 – 4:00  First Paper: William Baude (Chicago), Jud Campbell (Richmond) & Stephen Sachs (Harvard), General Law and the Fourteenth Amendment

Commentator: Jack Balkin (Yale)

Moderator: Eric Segall (Georgia State)

4:00 – 4:15  Break

4:15 – 5:30  Second Paper: Andrew Coan (Arizona) & David Schwartz (Wisconsin), The Original Meaning of Enumerated Powers

Commentator: Randy Barnett (Georgetown)

Moderator: Shaakirrah Sanders (Penn State)

Saturday, Feb. 11

9:30 – 10:45    Third Paper: Andrea Pin (Padua) & Graziella Romeo (Bocconi), Antonin Scalia and Hans Kelsen: An Odd Couple? Originalism and Neopositivism in Europe

Commentator: Fred Schauer (Virginia)

Moderator: Larry Alexander (USD)

10:45 – 11:00  Break

11:00 – 12:15  Fourth Paper: John Harrison (Virginia), Natural Rights, Incorporation, and the Original Meaning of the Fourteenth Amendment

Commentator: Michael McConnell (Stanford)

Moderator: David Upham (Dallas)    

12:15 – 1:30  Break/Lunch

1:30 – 2:45      Fifth Paper: John McGinnis (Northwestern) & Michael Rappaport (USD),  An Originalist Approach to Prospective Overruling

Commentator: Richard Kay (Connecticut)

Moderator: Tom Colby (GW)

2:45 – 3:00      Break

3:00 – 4:15      Sixth Paper: Julian Mortenson (Michigan), “They Stood Forth in a Manly Way At Their Own Risk”: The Violate-and-Ratify Paradigm for Emergency Action in the Founding Era

Commentator: Amanda Tyler (Berkeley)

Moderator: Steve Smith (USD)

4:15 – 4:30      Break 

4:30 – 5:45      Seventh Paper: Jed Shugerman (Fordham), Why “Executive Power” Did Not Include Removal:  Vénalité, Offices as Property, and the Building/Buying of the Modern State

Commentator: Ilan Wurman (Arizona State)

Moderator: Maimon Schwarzschild (USD)

02/09/2023

Neal Goldfarb on Corpus Linguistics in the Utah Abortion Case
Michael Ramsey

Neal Goldfarb (LAWnLinguistics blog) has filed this amicus brief in State of Utah v. Planned Parenthood Association of Utah (the Utah Supreme Court case considering the status of abortion under Utah state law).  It principally responds to the corpus linguistics-oriented brief filed by Pro-Life Utah (noted here).  From the summary of argument (footnotes omitted):

1. In this brief, Amicus undertakes a critical examination of the corpus analysis set out in the amicus brief filed by Pro-Life Utah (“PL Utah”). As he will show, that analysis is seriously flawed in multiple respects, and it should therefore play no part in the Court’s consideration and decision of this case.

a. PL Utah’s brief involves the use of corpus-linguistic methodology in a way that differs strikingly from how corpus linguistics has generally been used in the context of legal interpretation. Rather than using corpus data as evidence as to the meaning of a word or phrase in a legal provision, PL Utah treats it as evidence of public attitudes toward abortion, primarily during the 1890s. That is to say, it tries to use corpus data as a proxy for a public opinion survey targeting Utahns of the 1890s—a demographic group that no longer exists as such and that, Amicus assumes, has no surviving members.

In order for PL Utah’s data to be considered reliable evidence supporting the conclusion PL Utah wishes the Court to reach, it would have to be shown that the attitudes expressed in the texts in the corpus, whatever they might be, are representative of the relevant attitudes of the overall population of 1890s Utah. And that would require that the authors of those texts be shown to have comprised a representative sample of that population.

PL Utah has made no such showing; indeed, it has not tried to do so. And beyond that, it is undeniable that the authors of the newspaper do not constitute a representative sample of Utah’s population. To begin with, some of the articles originated out of state, and therefore were not the work of Utahns at all. Moreover, census data from 1890 and 1900 shows that Utah’s small population of journalists was predominantly male. So to the extent the articles were written by Utahns, women are likely to have been underrepresented in that group of authors.

The unrepresentative nature of the newspaper evidence becomes especially clear when considering the fact that during the 1890s, Utah newspapers published more than 2,000 advertisements for what were euphemistically called “female pills”: concoctions that were reputed to be effective in inducing miscarriages and that were used for that purpose.This is evidence that, contrary to what PL Utah contends, Utahns in the 1890s were not united in opposition to abortion.

b. Serious flaws are also found in PL Utah’s collocation data. First, the data as presented by the COHA collocation display (and as reported by PL Utah) data consists of what seem to be 33 uses of abortion(s) or abortionist(s). But 22 of those apparent uses reflect multiple counting, in that they come from only five sources, and are therefore attributable to only five authors. When these two flaws are taken into account, the apparent number of relevant uses turns out to have been exaggerated by more than 300%: Rather than 33, there are only 10.

2. With the Court’s indulgence, this brief concludes with a short discussion of several issues that relate generally to the use of corpus linguistics in legal interpretation, and that Amicus thinks it is important for this Court to be aware of.

UPDATE:  Link fixed now.

02/08/2023

Evan Bernick & Jill Wieber Lens: Abortion, Original Public Meaning, and the Ambiguities of Pregnancy
Michael Ramsey

Evan D. Bernick (Northern Illinois University - College of Law) & Jill Wieber Lens (University of Arkansas - School of Law) have posted Abortion, Original Public Meaning, and the Ambiguities of Pregnancy (68 pages) on SSRN.  Here is the abstract:

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Org. that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes them on their own terms. It looks at 1868, but it doesn’t stop at statutes, treatises, or dictionaries. Instead, it looks at the reality of pregnancy in 1868, as experienced by the public—in particular, by women and their doctors. This was a reality full of ambiguities. Pregnancy was not medically diagnosable until quickening; ideas of prenatal development were fluid and women let doctors take their miscarried fetal tissue and stillborn babies away for scientific study; and pregnancy loss was common and expected and impossible to distinguish from abortion.

Women and their doctors lived these ambiguities. Nothing in the statute books changed them. These ambiguities similarly negate any possibility that the original public meaning of “person” in the Fourteenth Amendment included prenatal existence.

02/07/2023

Randy Barnett & Nelson Lund on the Second Amendment after Bruen
Michael Ramsey

At Law & Liberty, Randy Barnett & Nelson Lund: Implementing BruenFrom the introduction:

In its 6-3 Bruen decision this past June, the Court invalidated a New York law that forbade Americans to carry a firearm in public unless they could persuade a government official that they had been subjected to some extraordinary threat to their personal safety. This was an easy case on originalist grounds. At the time, as now, “to bear” meant “to carry.” The New York law infringed the right by making its exercise entirely dependent on whether a bureaucrat thought the citizen had a good enough reason to be armed. A constitutional right subject to a bureaucrat’s veto is no right at all.

Had the Court stopped there, this vindication of the right to bear arms would have been significant. But the justices went further. They expressly repudiated more than a decade of decisions by the lower courts that the Court regarded as excessively deferential to legislatures’ judgments. Bruen announced a new legal test:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

The Court specified that a restriction of gun rights may be upheld only if the government affirmatively proves it is part of a historical tradition consistent with the Second Amendment’s original meaning. Requiring courts to rely solely on history in this way is meant to prevent judges who dislike the right to keep and bear arms from overriding the original meaning of the Constitution.

We sympathize with the majority. In Bruen, the Court was responding to a very real problem in the lower courts. But Bruen’s new legal test is ill-suited to the task. Except for disarmament laws aimed at politically suspect minorities such as Indians, blacks, Catholics, and suspected British loyalists who refused to sign loyalty oaths, there were almost no legal restrictions during the founding era on keeping or bearing weapons, as distinct from misusing them. And such regulations were uncommon before the mid-nineteenth century. To evaluate modern gun control laws, lower court judges have now been given the unenviable task of looking for analogous regulations in a historical record that consists largely of empty pages.

And from later on:

What’s the alternative? Rather than relying on specious historical traditions, courts could evaluate gun laws against the purpose of protecting the right to keep and bear arms: facilitating the exercise of the fundamental right of personal and collective self-defense. In particular, judges could require the government to prove that a challenged restriction of the right to keep or bear arms does not vitiate the ability of Americans to use firearms to defend themselves against violent threats that the government cannot or will not prevent. In this way, judges can distinguish regulations that reasonably regulate this fundamental right from those that unreasonably obstruct it.

Thus, for example, Justice Samuel Alito suggested at the oral argument in Bruen that banning guns in sensitive buildings protected by magnetometers and armed guards might be justified because the burden on the right of self-defense is more than offset by the protective measures that have been put in place. The same goes for the strict regulations that apply to modern air travel, given the special vulnerability of passengers and crew to the demonstrated threat of armed hijacking or worse. In both cases, the government has created conditions that greatly lessen, if not eliminate, the need for personal self-defense. But such assurances are rarely within the power of government to provide absent the sort of Herculean effort associated with the tightly controlled environments such as airports, prisons, and courthouses.

Defining “sensitive places” to include extensive public areas, as New York did after Bruen was decided, would not be justifiable. Even if the government believes public safety would be enhanced by effectively nullifying the right to bear arms, the power to appropriately regulate the exercise of a constitutional right is not the power to destroy it.

Requiring the government to establish that the fundamental right of self-defense is not vitiated by a proposed regulation would not mechanically answer every legal issue. But by looking to the purpose of the Second Amendment, it asks the right question. Such a test appropriately puts a heavy burden on the government to justify regulations of the constitutional right to arms—a burden that must be met by evidence, not speculation. We doubt that a majority of justices would overturn a lower court decision that held a gun restriction unconstitutional on this basis rather than by a failure to find a historical analogue.

02/06/2023

Michael McConnell et al. on Biden v. Nebraska
Michael Ramsey

Biden v. Nebraska, the case challenging the constitutionality of President Biden's student loan forgiveness policy. will be argued to the Supreme Court on February 28.  This amicus curiae brief was recently filed in support of the challengers on behalf of Michael McConnell (Stanford) and a number of academics and political figures, taking an originalist-oriented view of the case.  Here is the summary of argument (footnotes omitted):

The power of the purse is the central and most important constitutional power reserved exclusively to the legislative branch, enabling it to oversee and control virtually every activity of the federal government. So important is congressional control over spending that the Framers made the point in two different provisions of the Constitution—the only “double protected” power in the document. Article I, Section 8, Clause 1 gives Congress (not the President) the power to use tax revenues for “the common Defence and general Welfare of the United States,” and Article I, Section 9, Clause 7 provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” But these safeguards are for naught if the executive branch can spend money contrary to the manifest intentions of Congress based on improvised, out-of-context interpretations of spending statutes.

In recent decades, Presidents of both parties have increasingly resorted to loose constructions of congressional appropriations laws to justify spending without congressional action—even when Congress has explicitly rejected the very spending in question. This has gotten to the point that the fundamental principle of the congressional power of the purse is in peril. This case involves a unilateral decision by the President to forgive over $400 billion in student loan debt owed by 43 million borrowers who financed a college education with the benefit of taxpayer-funded loans. This represents one of the largest expenditures in the nation’s history, carried out in the face of clear congressional opposition and supported by no acceptedprinciples of statutory interpretation—let alone the “specific[] statement” that is necessary before the executive branch can spend Treasury funds. 31 U.S.C. § 1301(d).

That the expenditure here is in the form of waiving payments owed to the Treasury, instead of affirmatively expending funds, is of no legal significance. Congress has made clear that “modify[ing] outstanding direct loans (or direct loan obligations) or loan guarantees (or loan guarantee commitments) shall constitute new budget authority.” 2 U.S.C. § 661c(d)(1). For that reason, the CBO scored the “cost of debt cancellation [as] the present value of the borrowers’ projected repayments of student debt before accounting for the cancellation minus the present value of repayments after doing so.” CBO, Costs of Suspending Student Loan Payments and Cancelling Debt 2 (Sept. 26, 2022). The CBO further notes that “the costs of payment suspension and of debt cancellation will be recorded by the Office of Management and Budget in the federal budget as an increase in the deficit during the fiscal year in which the terms of the loans are modified.” CBO, supra, at 2. Forgiving a loan and making a gift or grant are functionally, legally, and economically indistinguishable—and both come under Congress’s exclusive spending power.

This case gives the Court an opportunity to uphold the structural disciplines on executive power. If the Court reaches the merits, it should make clear that spending statutes must be interpreted in accordance with Congress’s instructions. If this Court turns a blind eye, the executive will have virtually unlimited power to spend. That might befit the Stuart King Charles I, but not a President of the United States.

(Via Powerline.)

RELATED:  There is also this amicus brief by Jed Shugerman (Fordham) supporting the challengers.

02/05/2023

Eric Segall on Solum & Barnett on the Supreme Court's Recent Cases
Michael Ramsey

At Dorf on Law, Eric Segall: Text, History, and Tradition in the 2021-2022 Term: A Response to Professors Barnett and Solum.  from the introduction:

The 2021-2022 Supreme Court term was one of the most important in American history. In Dobbs v. Jackson Women's Health, the justices returned the issue of abortion completely to the states (and potentially Congress). In New Yok State Pistol & Rifle Ass's., v. Bruen, the Court substantially limited the ability of states to pass meaningful gun control laws. And in Carson v. Makin and Kennedy v. Bremerton School Dist., the justices further weaponized the free exercise clause as a restriction on the states while further limiting the reach of the establishment clause. 

Constitutional law scholars across the ideological spectrum have been trying over the last seven months to make sense of these decisions and how they relate to originalism and the use of text, history, and tradition in constitutional law. One such effort is a recent article by two of the country's most prominent academic originalists--Professors Randy Barnett and Lawrence Solum. Their article, "Originalism after DobbsBruen, and Kennedy: The Role of History and Tradition," is a complex and provocative assessment of three of the cases discussed above (they leave out Carson), as well as the authors' suggestions for how best to incorporate history and tradition into originalist judicial decision-making. There is little doubt this article will be widely-read and will constitute a major contribution to our academic debates over originalism. The authors posted the paper on SSRN just a few days ago and it already has over 1000 downloads.

The article says that it asks three major questions about the 2021-2022 term:

Do DobbsBruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in DobbsBruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

These are all important questions that judges and scholars will be wrestling with for a long time. Although the article might be a tad clearer on the authors' answers to the second and third of these questions, as to the first one, they state that "none of the cases from the October 2021 Supreme Court term represent a radical departure from prior uses of history and tradition by both public-meaning originalists and constitutional pluralists. The Court has not embraced a novel history-and-tradition alternative to either originalism or living constitutionalism." 

I am going to focus on their first question in this blog post but also want to make clear the authors' reflections on the second two questions are interesting, important, and will certainly trigger much needed debate among originalists, living constitutionalists, and Court commentators of all stripes.

Contrary to Professors Barnett and Solum, I think last year's term both represents a radical departure from prior constitutional decision-making in some important respects but also represents business as usual in other important ways they don't discuss. I will start (and then end) with the latter observation. ...

02/04/2023

Jud Campbell: General Citizenship Rights
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted General Citizenship Rights (132 Yale Law Journal 611 (2023)) (91 pages) on SSRN.  Here is the abstract:

Current scholarship and case law assume that citizenship rights come in only two sets: state and national. This binary approach reflects broader contemporary attitudes about the positivist grounding of constitutional rights and the dualistic character of American sovereignty. From the Founding up until Reconstruction, however, many Americans took a different view. For those steeped in older ways of thinking, citizenship rights included not only local and national rights but also general citizenship rights. Premised on social-contractarian assumptions and a common jurisprudential heritage, general citizenship rights were fundamental rights that were putatively held by all American citizens. Moreover, these rights were secured across state lines through the conferral of general citizenship in Article IV, reflecting the interstate dimensions of federalism. Coming in three sets, not two, citizenship rights were thus based not only on the positively enacted law of particular sovereigns but also on general law, coupled with the notion that Americans belonged to a federative political family. Recovering these ideas of general citizenship rights and general citizenship enables new ways of seeing our constitutional past and can help to clarify or resolve long-running controversies about the Privileges and Immunities Clause in Article IV and the Privileges or Immunities Clause in the Fourteenth Amendment. This history also points toward a different way of framing those disputes, focused less on linguistic analysis of constitutional text and more on underlying conceptions of fundamental rights, federalism, and sovereignty.

The author presented an earlier version of this paper at the University of San Diego Originalism Works-in-Progress Conference in February 2022 (with commentary by Ryan Williams (Boston College).

02/03/2023

Lawrence Solum: Outcome Reasons and Process Reasons in Normative Constitutional Theory
Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) has posted Outcome Reasons and Process Reasons in Normative Constitutional Theory (52 pages) on SSRN.  Here is the abstract:

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of its counterfactual implications for a handful of prior decisions of the Supreme Court. Among the many problems with “outcome reductionism” (exclusive reliance on outcome reasons) is the reality that none of the fundamental and feasible options for normative constitutional theory can guarantee outcomes that that most citizens would find acceptable, much less optimal. Living constitutionalism produces constitutional outcomes that reflect the moral values and political ideology of Supreme Court Justices, but over the long run there is no guarantee that the Justices will do what any individual believes is required by justice. Decades ago, the Justices established a constitutional right to abortion, but recently they reversed course. This is inevitable given that the Justices are selected by the President and Congress, institutions that will change their political makeup in unpredictable ways over time.

Outcome reductionism is not a sensible method for normative constitutional theory, but there is a better approach. Outcome reasons can be supplemented by process reasons such as legitimacy, the rule of law, and institutional capacities. The way forward for constitutional theory involves a holistic assessment of both outcome reasons and process reasons via the method of reflective equilibrium. The way forward requires a frank acknowledgement of the consequences of deep and persistent disagreement about fundamental questions concerning justice and the common good. And therefore, the way forward will require an acknowledgement that a legitimate constitutional order will require compromise.

02/02/2023

Judge Patrick Bumatay on the Original Meaning of Income
Michael Ramsey

Judge Patrick Bumatay has a dissent from denial of rehearing en banc in Moore v. United States (9th Cir. 2022) (holding that the Sixteenth Amendment allows a tax on undistributed earnings of a foreign corporation owned in part by a U.S. taxpayer).  From the introduction to Judge Bumatay's dissent: 

... In 1913, the people created a limited exception to the [original Constitution's] apportionment requirement. By ratifying the Sixteenth Amendment, the people gave Congress the authority to “lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States.” U.S. Const. amend. XVI. So, today, Congress may enact a direct tax on “incomes”—and only on “incomes”—without apportioning the tax. The Sixteenth Amendment thus struck a delicate balance for federal taxing power—freeing Congress from the unwieldy requirement of apportionment, but only for taxes on “incomes.” Nothing in the Sixteenth Amendment relieved Congress of its duty to apportion other forms of direct taxation,  such as a tax on property interests.

Now, more than a century after its ratification, our court upsets the balance reached by the people. We become the first court in the country to state that an “income tax” doesn’t require that a “taxpayer has realized income” under the Sixteenth Amendment. Moore v. United States, 36 F.4th 930, 935 (9th Cir. 2022). Instead, we conclude that the Sixteenth Amendment authorizes an unapportioned tax on unrealized gains because the “realization of income is not a constitutional requirement.” Id. at 936. We thus endorse the constitutionality of a federal tax on the share of undistributed earnings of a foreign corporation owned by a U.S. taxpayer—despite (in this case) the U.S. taxpayer being a minority shareholder of the foreign corporation. In other words, we allow a direct tax on the ownership interest of a taxpayer—even when the taxpayer has yet to receive any economic gain from the interest and has no ability to direct distribution of gain from the interest.

Neither the text and history of the Sixteenth Amendment nor precedent support levying a direct tax on unrealized gains. Ratification-era sources confirm that the prevailing understanding of “income” entailed some form of realization. And a hundred years of precedent establishes that only realized gains are taxable as “income” under the Sixteenth Amendment. While the Supreme Court has allowed flexibility in identifying “incomes,” it has never abandoned the core requirement that income must be realized to be taxable without apportionment under the Sixteenth Amendment. Simply put, as a matter of ordinary meaning, history, and precedent, an income tax must be a tax on realized income. And our court is wrong to violate such a common-sense tautology.

And from later on:

Ratification-era dictionaries suggest that the ordinary meaning of “income” was confined to realized gains. One dictionary defined “income” as “that gain which proceeds from labor, business, property, or capital of any kind.” Webster’s Revised Unabridged Dictionary (1913) (emphasis added). According to another turn-of-the-century dictionary, “income” meant “[t]hat which comes in to a person as payment for labor or services rendered in some office, or as gain from lands, business, the investment of capital, etc.” The Century Dictionary and Cyclopedia (1901).

Ratification-era legal authorities made explicit what these dictionary definitions conveyed: only realized gains qualify as taxable income. The 1910 edition of Black’s Law Dictionary defined “income” to include “that which comes in or is received from any business or investment of capital.” Income, Black’s Law Dictionary (2d ed. 1910) (emphasis added). And Henry Campbell Black—of Black’s Law Dictionary fame—addressed the issue in a book-length commentary published within months of ratification. Black noted that an income tax “is not a tax upon accumulated wealth, but upon its periodical accretions.” Henry Campbell Black, A Treatise on the Law of Income Taxation 1 (1913). In his view, these accretions occurred only when gains were realized, not when an asset had merely increased in value:

When a bond which was purchased at a discount reaches par value in the market, the owner cannot be properly said to have made a profit; he is in a position where he can realize a profit if he sells the bond, but not otherwise. If he sells, then the sum gained may constitute a part of his income, but it cannot be so described while he continues to hold the security.

Id. at 76–77.

Black rejected the idea of taxing shareholders for undistributed corporate profits as being “contrary to all the
weight of authority,” explaining:

In several of the cases on the subject, it is said that the word “income” is not broad enough to include things not separated in some way from the principal. It is not synonymous with “increase.” The value of corporate stock may be increased by good management, prospects of business, and the like, but such increase is not income. It may also be increased by the accumulation of a surplus fund. But so long as that surplus is retained by the corporation, either as a surplus or as increased stock, it can in no proper sense be called income. It may become income producing, but it is not income.

Id. at 120.

Black concluded that the Sixteenth Amendment “does not . . . enlarge the power of taxation previously possessed by Congress, but merely repeals certain parts of the existing Constitution which imposed a limitation upon the levying of . . . an income tax.” Id. at 11. Other early commentators shared Black’s assessment. In 1919, a well-known authority on income tax and accounting explained that the Sixteenth Amendment only covered taxes on realized gains:

In the circumstances, no apology is needed for a close inquiry into the right of Congress or the Treasury Department to extend the taxation of income—which is permitted under the sixteenth amendment—to the taxation of capital—which is not permitted. And the inquiry naturally extends itself into the right to tax any transaction unless there is an actual realization of income, as distinguished from the apparent income which may be and often is due to the temporary fluctuations in values.”

Robert H. Montgomery, Income Tax Procedure 198 (1919).

Taken collectively, these sources reinforce the commonsense notion that “income” refers to the receipt of some economic benefit. And because this “commonly understood meaning” was “in the minds of the people when they adopted the Sixteenth Amendment,” Smietanka, 255 U.S. at 519, neither Congress nor our court may redefine income to include unrealized gains. See Burk-Waggoner Oil Ass’n v. Hopkins, 269 U.S. 110, 114 (1925) (“Congress cannot make a thing income which is not so in fact.”).

Sounds right to me.

(Via How Appealing, which also points to this Wall Street Journal op-ed by Christopher Cox and Hank Adler: The Ninth Circuit Upholds a Wealth Tax - The Supreme Court should review the ruling, which ignores constitutional limits on the taxing power.)

02/01/2023

Ethan Leib: Three Modalities of (Originalist) Fiduciary Constitutionalism
Michael Ramsey

Ethan J. Leib (Fordham University School of Law) has posted Three Modalities of (Originalist) Fiduciary Constitutionalism (63 American Journal of Legal History (2023 forthcoming)) (17 pages) on SSRN.  Here is the abstract:

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that link American constitutionalism with the law and theory that constrains those with especial discretion and control over the legal and practical resources of beneficiaries known as fiduciary governance. Probing primary and secondary research in fiduciary constitutionalism can help show its value and limitations for legal historians and constitutional theorists alike.

(Via Prawfsblawg.)