10/20/2020

Torres v. Madrid: Possibly a Harder Cases than it Looks?
Michael Ramsey

Torres v. Madrid, argued to the Supreme Court last week, asks whether an attempted but unsuccessful detention by police is a "seizure" under the Fourth Amendment.  In a prior post, I said this seems (from an originalist perspective) sort of obviously true, as that was the eighteenth century common law rule.  But oral argument suggests otherwise, as SCOTUSblog recounts

Originalism

For the conservative justices attracted to the officers’ narrow “seizure” definition, the existence of contrary precedent is only part of the problem. There is the added fact that Hodari D. is an originalist precedent written by Justice Antonin Scalia. In his opinion for the court, Scalia wrote that, under the common law at the time of the Framing, “the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient” to constitute a seizure. This prompted Justice Brett Kavanaugh to press Standridge [attorney for the respondent] to acknowledge that, “you’re arguing, as I understand it, that Justice Scalia and really all nine justices in that case were wrong about the original meaning of the Fourth Amendment.” Kavanaugh similarly pushed Taibleson [attorney for the United States supporting petitioner] on this question, with Taibleson ultimately affirming that the United States’ official position was that Scalia got the history right. Sotomayor fanned the flames, wryly noting that Scalia “very much was an advocate of the common law and … quite well informed about it generally.”

With this array of originalist forces against him, Standridge contended that the court should “reject historic relics that are not suited to the modern era” in favor of rules that “have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and contemporary conditions.” Curiously, it was the court’s conservatives who seemed most receptive to this argument. Gorsuch questioned the applicability of the Framing-era cases that, he said, primarily concerned “Dickensian debt collection practices.” Thomas suggested that the cases might be distinguishable because they arose outside the criminal context and involved direct applications of force. Justice Samuel Alito pointed out that none of the cases involved shootings. There seemed to be an irony here in light of the proceedings unfolding at that same moment across the (virtual) street. At the same time that Judge Amy Coney Barrett was extolling the clarity of originalism in her confirmation hearings in the Senate, the court’s most prominent originalists seemed to be suggesting that Framing-era precedents offered little insight into the proper application of the Constitution in a modern context.

Textualism

The justices returned to more familiar territory as they sparred over the plain meaning of the term “seizure.” The officers’ strongest textual argument is that the term’s ordinary meaning does not apply to unsuccessful attempts to restrain someone. To illustrate the point, Gorsuch deployed the day’s most extreme hypothetical, conjuring up a driver who “blast[s] through” roadblocks “at 100 miles an hour” with police “bazookas” (!) firing all around, and yet suffers only a scrape. Alito picked up the thread, asking about “a baseball pitcher [who] intentionally beans the batter.” Thomas added a question about someone hit by “a snowball.” None of these instances, the justices suggested, fit the term “seizure.” The examples prompted Kavanaugh to challenge Corkran [attorney for the petitioner] to explain “why shouldn’t we just follow the ordinary usage of the term ‘seizure.’” In an apparent appeal to the justices aligning against her, Corkran responded that “it’s the ordinary meaning at the time of the founding that controls.” ...

It's not going to be a good look for the originalist Justices if they favor the side that relies on an argument "that the court should 'reject historic relics that are not suited to the modern era' in favor of rules that 'have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and contemporary conditions.'”

RELATED:  At Volokh Conspiracy, Josh Blackman has an amusing side note on the oral argument: Justice Kavanaugh asks his former clerk, Assistant SG Rebecca Taibleson, if Justice Scalia, her other former boss, was correct about originalism.

10/19/2020

What Has Athens to Do With Philadelphia?
Chris Green

I have posted What Has Athens to Do With Philadelphia?, part of a Faulkner Law Review symposium on Lee Strang's Originalism's Promise: A Natural Law Account of the Amertican Constitution, to SSRN. Here is the abstract:

Lee Strang’s Originalism’s Promise: A Natural Law Account of the American Constitution gives a smooth, integrated account of all of the major issues of constitutional theory. He promises an account of the Constitution that simultaneously fits (a) the law of the early republic, (b) the precedentially-governed law of today, and (c) the moral principles of the natural law. While I agree with Strang that the meaning expressed by the text according to its original legal conventions morally binds officeholders today, there are problems if we too-tightly integrate the three realms of moral reality, the Constitution itself, and precedent. We can sharply distinguish them based on necessity and time. Moral reality and the nature of human flourishing—i.e., the sorts of things investigated by the philosophers of Athens and their intellectual descendants—are necessary, the same in every possible world that humans might inhabit. Our Constitution, by contrast, while it is fixed and unchanging, has the nature it has only because of the historically contingent events in Philadelphia in 1787, and it remains our Constitution today only because of the contingent practices of those who claim fidelity to it. Finally, the precedentially-embodied law of today is not just contingent, but properly changes; officeholders at different times and with different roles will properly apply different evidentiary standards to different evidence.

Making this three-fold distinction would promote both moral candor and constitutional fidelity. The Constitution of the Founding obviously did a very poor job of coordinating enslaved Americans’ interests in human flourishing with others’ needs. But officeholders today still swear to defend that same Constitution. Instead of an explanation of why the Constitution has always promoted human flourishing, we need the moral norm against oath-breaking. Instead of filtering precedent morally, we need a moral requirement that officeholders stay silent about the Constitution unless they know whereof they speak, i.e., with enough evidence given their particular roles and stakes.

As always, comments are welcome!

There is No Independent Spending Power: A Response to Mike Ramsey
Mike Rappaport
 

Mike Ramsey recently criticized my view that the Constitution does not confer any independent spending power.  While Mike and I have been disagreeing about this for some time, I thought I would explain my view.

The Constitution provides “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” 

Mike reads this as conferring the power on Congress to spend for the general welfare – what I shall call “the spending interpretation.”  I read it as conferring the power to tax on Congress – what I shall call “the tax interpretation.”  I agree that both interpretations have weaknesses, but I believe the weaknesses in the spending interpretation are much, much greater. 

1. The spending interpretation finds in this clause not merely the power to tax, but also the power to spend for the general welfare. This spending power is an enormous power, arguably one of Congress’s most important powers. Yet, it is not stated in a straightforward way.  Instead, it is found by implication.  This counts strongly against the spending interpretation.  Lawgivers do not hide elephants in mouseholes.

If the enactors had intended to confer an independent spending power, it would have been much more straightforward to say, “Congress shall have the power to spend for the general welfare” (or if you will, to provide for the general welfare).  But the Constitution does not say that.  It says you can tax in order to provide for the general welfare, the common defense and to pay the debts of the U.S.  If you were intending to confer an independent spending power, it is unlikely you would write it this way.

By contrast, the tax interpretation makes sense of the way that the clause is written.  The Framers were attempting to confirm that the taxing power could not be used to regulate, but only to raise funds.  Otherwise, the taxing power could have been used to regulate intrastate commerce (by imposing very high taxes intended to discourage intrastate activities) and to assert other nonenumerated powers under the guise of the taxing power.  When the Constitution used the language “to pay the Debts and provide for the common Defence and general Welfare of the United States,” it was saying that the funds need to be employed in the exercise of Congress’s other enumerated powers. 

Mike argues that “to pay the Debts and provide for the common Defence and general Welfare of the United States” does not say “the enumerated powers.”  True enough.  And the language would have been clearer if it had said “the enumerated powers.”  But this weakness of the tax interpretation is much less significant than the weaknesses of the spending interpretation.  

When one reflects upon it, the language “to pay the Debts and provide for the common Defence and general Welfare of the United States” is not a bad way to paraphrase Congress’s overall enumerated powers.  After all, Congress’s enumerated powers generally concern the general welfare and the common defense.   

Moreover, in using this language, the Framers were not acting on a blank slate.  The Articles of Confederation provided that “All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury.”  I interpret this language in the Articles, as did David Curie, as allowing spending only for Congress’s enumerated powers.  It would seem that Mike has to interpret this language to confer on the Congress under the Articles the full power to spend for the general welfare.  Given the weakness of the national government under the Articles, it would be quite surprising for Congress to have had that power. 

2. Another problem with the spending interpretation is that it assumes the Framers would have conferred a significant power – the spending power – with only the very general and vague limitation of being for “the general welfare.” This vague language has been read, not unreasonably, as permitting the courts only very limited authority to strike down spending as not being in the general welfare.

But that is not how the Constitution’s enumerated powers normally read.  They do not as a rule use vague language like “the general welfare.”  Instead, they use more determinate language such as “to regulate commerce among the several states” or “to raise and support armies.”  This provides additional reasons not to read language stating the purpose of taxes as conferring an independent power to spend money for the general welfare. 

3. Yet another problem with the spending interpretation is that it involves significant and peculiar redundancies. The spending interpretation reads “to pay the Debts and provide for the common Defence and general Welfare of the United States” as providing independent spending authority. This is oddly redundant.  The clause immediately adjacent to the taxing/spending clause allows Congress “to borrow Money on the credit of the United States.”  Clearly, this power includes the authority to pay the debts from that borrowing.  So it is not clear why the taxing/spending clause needed to provide that authority  Several other clauses grant authority to Congress to conduct the common defense.  So again it is not clear that the tax/spending clause adds anything. 

The only language where there might not be complete (or virtually complete) redundancy is “the general welfare.”  Why would the clause be written to contain two redundancies and only one new source of authority?  Instead, given the two redundancies, it makes sense to read “the general welfare” as also redundant and as a reference to the other enumerated powers in the Constitution.   

February 2021 Originalism Works-in-Progress Conference in San Diego
Michael Ramsey

An announcement from the Center for the Study of Constitutional Originalism at the University of San Diego School of Law:

We are pleased to present the complete list of papers and commentators for the Twelfth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 19-20, 2021 at the University of San Diego Law School.

Evan Bernick (Georgetown), Antisubjugation and the Equal Protection of the Laws

            Commentator: Michael McConnell (Stanford)

Richard Epstein (NYU), Patent Originalism

            Commentator: Christina Mulligan (Brooklyn)

Richard Fallon (Harvard), The Chimerical Concept of Original Public Meaning

            Commentator: Gary Lawson (Boston University)

Jason Mazzone (Illinois) & Cem Tecimer (Harvard), Originalism and Inter-Constitutional Interpretation

            Commentator: Jack Balkin (Yale)     

Nicholas Parrillo (Yale), A Critical Assessment of the Originalist Case Against Administrative Regulatory Power

            Commentator: Jennifer Mascott (Scalia)

Maximilian Crema & Larry Solum (Virginia), The Original Public Meaning of the Fifth Amendment Due Process of Law Clause

            Commentator: Tara Grove (Alabama)

Ernest Young (Duke), Dying Constitutionalism And The Lost Years Of The Fourteenth Amendment

            Commentator: Jamal Greene (Columbia)

The selection of the papers was difficult, as there were many worthy submissions.  In the end, the selections were made based on both individual merit as well as the need to have a balanced group of papers on originalism.

In addition to the authors and commentators, the members of the Originalism Center should also be in attendance.  The members include: Larry Alexander, Laurence Claus, Donald Dripps, Michael Ramsey, Michael Rappaport, and Steven Smith.

We are excited to have such a distinguished lineup of authors and commentators, and again we invite all scholars who are interested in originalism to attend and participate in the conference by reading the papers and joining the discussion. The Center would be happy to pay for the principal meals for those attending the whole conference but not giving a paper or serving as a commentator.

This year we are not sure how the conference will be held.  It will either be held as a zoom conference or as a hybrid in person/zoom conference.  We will let people know as soon as a decision is made.   

10/18/2020

Judicial Power to Deliberately Prolong a Misinterpretation of the Constitution Does Not Exist
Andrew Hyman

During his 2018 confirmation hearing, Justice Brett Kavanaugh correctly explained where the duty to follow judicial precedent comes from:  

Precedent is not just a judicial policy. Precedent comes right from Article III of the Constitution. Article III refers to the "judicial power." What does that mean? Precedent is rooted right into the Constitution itself….As I see it, the system of precedent comes from Article III itself. When Article III refers to the judicial power shall be vested in one Supreme Court and such inferior courts as Congress shall, from time to time, establish, to my mind, the phrase judicial power […] what does that entail? […] You look at the meaning—the meaning at the time of judicial power—and you look…one source of that is Federalist 78. It's well explained that judges make decisions based on precedent, and precedent, therefore, has constitutional origins and constitutional basis in the text of the Constitution.

So let’s consider Federalist 78.  Here’s what Hamilton wrote there:  

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.  of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.

That last sentence shows Hamilton was speaking about following previous interpretations of “the laws,” without referring to or singling out the Constitution.  It is very possible that Hamilton was focused in Federalist 78 exclusively on statutes, because elsewhere (e.g. in Federalist 80) Hamilton contrasted the laws with the Constitution, when he asked “What equitable causes can grow out of the Constitution and laws of the United States?“  See also Federalist 81: “wherever there is an evident opposition, the laws ought to give place to the Constitution.”    

Even putting aside Hamilton’s position on the necessity of following statutory or constitutional precedents, the founders were unanimously clear about constitutional stare decisis in the text of the Constitution itself.  An ancient rule for reading legal texts is the Harmonious-Reading Canon, which says that the clauses in a legal text should be interpreted in a way that renders them compatible, not contradictory.  Justice Kavanaugh was correct that the duty to follow precedents comes from the Judicial Vesting Clause in Article III, Section I.  But that clause should not be interpreted in a way that conflicts with any other clause.  For example, if a non-originalist Supreme Court erroneously interprets the word “press” in the First Amendment to ensure a right to go to the gym and bench "press" during a pandemic, but subsequently the Court realizes its mistaken interpretation of the word “press,” then the Court is obligated to adhere to the true meaning of the First Amendment.  Otherwise, they would be inflating the judicial power in a way that conflicts with the First Amendment.  This is why I believe the Court was entirely correct in Smith v. Allwright, 321 U.S. 649 (1944):  

[W]e are not unmindful of the desirability of continuity of decision in constitutional questions.  However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice, and this practice has continued to this day.

Too bad the Court has seen fit to backtrack from this core principle.  The Court has cited various policy reasons for doing so, but they cannot defeat the constitutional command that relies upon the Harmonious-Reading Canon.  Moreover, those policy reasons are flawed, because the greatest policy danger is that the Court (or some of its members) will be tempted toward casual misinterpretations of the Constitution in the belief that they will be protected in perpetuity by stare decisis.  In the field of constitutional law, where the doctrine of precedent is weak, the necessity of binding down judges can only be accomplished via originalism, and so the argument for applying originalism in constitutional interpretation is even greater than the already-strong case for doing so in statutory interpretation.

NOTE: A technical error previously attributed this post to Michael Ramsey rather than Andrew Hyman.

FURTHER CORRECTION: That's Andrew Hyman, not Andew Hyman.

10/17/2020

Philip Hamburger: Delegating or Divesting?
Michael Ramsey

Recently published, in the Northwestern University Law Review Online, Philip Hamburger (Columbia): Delegating or Divesting? (115 Nw. U. L. Rev. Online 88 (2020)) (responding to Delegation at the Founding by Julian Davis Mortenson and Nicholas Bagley).  Here is the abstract: 

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth century authors, the article makes errors of omission and commission—leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.

This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.

First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.

Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.

A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.

(Via Jonathan Adler at Volokh Conspiracy, who has a helpful list of recent nondelegation scholarship).

10/16/2020

John McGinnis and Mike Rappaport on Trump's Judges Will Bring America Together
Mike Rappaport

Recently, John McGinnis and I published an op-ed piece in the Wall Street Journal entitled "Trump’s Judges Will Bring America Together."  (The title was, of course, supplied by the Journal.)  The piece was published after Ruth Bader Ginsburg's death, but before Amy Coney Barrett was nominated.  Unfortunately, I forgot to post about it, but the points still stand.  Here is an excerpt: 

The most important result for the judiciary of confirming a third Trump Supreme Court nominee and re-electing Mr. Trump would not be any specific set of decisions but the maintenance and strengthening of a culture of originalism. That would not only improve America’s legal system but help bridge the country’s broader political divisions.

Mr. Trump’s judges are self-conscious originalists and textualists, and they will gradually change the jurisprudential weather.

Lawyers want to win cases. An originalist culture means more briefs will canvass the Constitution’s original meaning and dig into the legal and historical background of constitutional provisions. This kind of briefing will happen not only at the Supreme Court, but also in appropriate cases in the lower courts.

Federal courts entrenched in originalism over time would move even left-liberal scholars to investigate original meaning in the hope of finding something to persuade judges. That would be a welcome change. Originalism is greatly enriched when professors with different ideological perspectives practice it. Legal practice as a whole benefits from people of diverse ideologies contributing knowledge of original meanings.

We then conclude with a discussion of how originalism would revive the constitutional amendment process, which would help address the polarization that afflicts us: 

Originalist culture can also revive the possibility of constitutional amendments. When the legal culture permits justices to update the Constitution to create new rights or principles, like the right to abortion, social movements naturally focus on getting their preferred candidates appointed to the high court. But if originalist decision-making is sustained for a generation, activists would eventually turn to amending the Constitution as a way of advancing their causes. That process has previously enacted great improvements to America’s fundamental charter, including the elimination of slavery, the establishment of equal rights without regard to race, the prohibition of racial discrimination in voting, and the extension of the franchise to women.

Because constitutional amendments require broad consensus, advancing one prompts activists and legislators to engage in a long period of debate and persuasion. The pursuit of such broad agreement reduces politicians’ incentive to treat each other as enemies. Constitutional politics is a politics of respect and principle, which could replace today’s bare-knuckled combat, in which warring interest groups are mobilized to construct narrow majorities.

10/15/2020

Balkin on Court Packing and Court Regularizing
Mike Rappaport

Jack Balkin has an interesting post advocating a change in the structure of the Supreme Court that he believes could be accomplished by statute.  Under the proposal, justices serve in full capacity for 18 year terms, to be replaced every two years.  After the 18 years, they serve in an extremely limited capacity.  The proposal would apply to existing justices.

Here is his description:

The President appoints a new Justice in every odd-numbered year. Congress creates two en banc courts: The first is an en banc court for deciding cases under the Court's original jurisdiction, consisting of all the active Justices. The second is an en banc court for deciding cases under the Court's appellate jurisdiction, consisting of the nine Justices most junior in service.

The more senior Justices retain life tenure and their salaries, and the Chief Justice remains the administrative head of the Judicial Branch of government. The more senior Justices remain on the Court to hear cases . . . involving the Court's original jurisdiction, to pinch-hit when a junior Justice is recused from the appellate en banc panel, to consider the mountain of petitions for certiorari the Court receives every year, and to hear cases on the federal courts of appeals. The precedent for requiring Justices to "ride circuit"-- to hear cases in the lower federal courts-- goes back to the country's founding. The number of Justices deciding Supreme Court appeals always remains nine, but the composition of the appellate en banc panel changes every two years like clockwork.

What does this mean in practice?

Suppose we begin the new system in 2023. The most senior Justice, Clarence Thomas, would no longer regularly be on the appellate en banc panel as soon as the Senate confirmed the first new appointment. Two years later, in 2025, it would be Justice Stephen Breyer's turn, followed by Chief Justice John Roberts (who would remain administrative head of the federal judiciary), Justice Samuel Alito, Justice Sonia Sototmayor, Justice Elena Kagan, and so on.

In other words, except for very limited exceptions, the most senior justice would be required to stop deciding Supreme Court cases every two years.  In effect, the justices would now be serving 18 year terms.

According to Balkin:

because the proposal simply creates two different en banc panels for original and appellate jurisdiction, and allocates duties of circuit riding, it is completely consistent with the commissions of existing Supreme Court Justices.

My initial reaction to this proposal was that it is obviously unconstitutional.  After all, the Constitution provides that the justices serve during good behavior and that has been traditionally understood to preclude a position based on a term of years.  But Balkin would respond that the justices continue to serve on the Supreme Court in their position of justice.  Thus, Clarence Thomas would continue to be a justice, even though he would no longer be on the appellate en banc panel in 2023.

Balkin’s argument is extremely interesting, even though I disagree with it.  There are so many aspects to it that require discussion and examination.  I wish Balkin had addressed some of them, but his post is pretty short.  Here, I will just discuss one aspect of the argument.

I question whether Justice Thomas would still be a full Supreme Court justice after he is no longer allowed to decide appellate cases.  Instead, he would be a second class justice and would have effectively been forced to retire in contravention of the good behavior provision.

Balkin might respond, as he states in his post, that the Constitution allows the Congress authority as to the appellate jurisdiction of the Supreme Court to make “exceptions” and “regulations.”  And therefore Congress can adopt the regulation that would prevent Thomas from deciding appellate cases except in rare circumstances.  But while Congress can regulate the Supreme Court’s appellate jurisdiction, it cannot use that power to deprive Supreme Court justices of their offices – in whole or in part. 

It is true that the Constitution does not forbid Congress from changing the appellate jurisdiction of the Supreme Court.  Thus, Congress can take cases away from the Court and or add to the Court’s appellate jurisdiction – without impinging on the justices’ offices.  But just because some such changes are constitutional does not mean that all changes are constitutional. 

While this area would benefit from significant research, my tentative view is that the Congress cannot draw distinctions between the different associate justices on the Supreme Court.  In other words, Congress cannot forbid Justice Thomas from sitting on appellate cases but permit Justice Kagan to do so.  The position of associate justice must be the same for both.  Balkin’s proposal does exactly that and therefore would be unconstitutional under this criterion.

This interpretation is consistent with the text – the Constitution speaks of judges of the Supreme Court, suggesting that they all must have same the powers.  It does refer separately to the position of Chief Justice, which suggests that the Chief may have additional administrative responsibilities. 

This interpretation also accords with structure, purpose, and history.  Under Balkin’s view, Congress could exercise tremendous power over the justices.  First, Congress could require that the existing justices stop deciding appellate cases, not merely after 18 years, but after, say 5 years (or fewer), once their replacement is confirmed.  And it could allow replacements to be confirmed every six months.  That would allow a new President and Congress to replace 8 of the 9 justices in the President’s first term.

Second, Congress could also draw distinctions between the justices.  Congress could set up a rule that requires certain justices – say justices who are more than a certain age or whose last names begin with certain letters or whatever – to stop deciding appellate cases.  The independence of the Supreme Court would be at significant risk.

Finally, this interpretation accords with the history in that the associate justices appear to have enjoyed the same powers throughout the Court’s history.

In the end, it would be useful to do more research before evaluating this proposal.  For example, it would be helpful to know whether the equality norm that I have mentioned uniformly applied to judges on courts in the Anglo-American legal system.  (Alas, Balkin has not addressed these issues and I believe that the burden should be on the person proposing this new, quite unusual law.)  But based on my first impression, I seriously doubt the constitutionality of this proposal.  

Mike Rappaport's Views Discussed at Judge Barrett's Senate Confirmation Hearing (and I Disagree)
Michael Ramsey

From CBS News: USD law professor’s view of originalism debated at Supreme Court confirmation hearing.

The writings of a University of San Diego law professor played a role in Wednesday’s Supreme Court confirmation hearing.

USD Professor Mike Rappaport once wrote an article arguing Social Security and Medicare were unconstitutional. Senator Dianne Feinstein wanted to know if the Supreme Court nominee, Amy Coney Barrett, felt the same way.

“Some have argued that the Medicare program is unconstitutional,” Senator Feinstein began.

Professor Rappaport, like Barrett, considers himself a constitutional originalist. He wrote the 2015 article in "Law & Liberty" entitled, "The Unconstitutionality of Social Security and Medicare."

“Professor Mike Rappaport of the University of San Diego Law, wrote this, "...it is worth remembering that these programs would never have taken their pernicious form if the Constitution's original meaning had been followed in the first place,” said Feinstein.

...

“Do you agree with originalists who say that the Medicare program is unconstitutional?” asked Feinstein.

“I can't answer that question in the abstract because, as we've talked about, the 'no hints, no forecast, no previews' rule. I also don't know what the arguments would be,” responded Barrett. ...

Congratulations to my colleague and co-blogger!  As we say at USD law, that's "high impact scholarship." 

Also, I think he's wrong. He argues:

These programs [Social Security and Medicare] are enacted under Congress’s so-called spending power.  Under this power, Congress is said to have the power to spend for the general welfare.

But I don’t believe there is a spending power.  The constitutional provision states that “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”  In my view, this Clause merely confers on Congress the power to tax.  The money is then to be used to further the other enumerated powers, which are briefly characterized as “for the common defense and general welfare.”  If this reading, which was held by James Madison is correct, Social Security and Medicare would be unconstitutional.  (I should note that some originalists disagree with this reading of the Constitution, but I think they are mistaken. For my defense of this reading, see here and here.)

I'm one of those originalists (or maybe "textualists") who disagrees.  Here's the text again:

Congress shall have power to lay and collect taxes ... to  ... provide for the ... general welfare of the United States.

This sounds to me like an authorization to spend tax revenue on the general welfare, which in turn sounds like a very broad and open-ended category of objectives.  Professor Rappaport says that the money can only be used to "further the other enumerated powers, which are briefly characterized as 'for the common defense and general welfare.""  But if the Framers wanted to limit federal spending to the other enumerated powers, this is an odd and uncertain way to do it.  It would have been much better (and safer) to say: "Congress shall have power to lay and collect taxes ... to  ... bring into execution the powers granted to it in this Constitution."

"General welfare" is not at all an obvious synonym for "enumerated powers."  Rather, it seems to mean, less specifically, things in the national public interest, which surely include the enumerated powers but could be much broader.  For example, suppose one thinks that creating a national university (something debated at the founding) is not within Congress' enumerated powers.  (I think it probably isn't).  One could still easily conclude that a national university promotes the general welfare, in the ordinary sense of that phrase (which seems to mean something like bringing greater prosperity to the people as a whole).

I know that Madison and other framers are against me here.  But, after its adoption, they had an interest in reading the spending clause narrowly.  And when the text seems clear I'll take it over Madison.

FURTHER THOUGHTS:  Also I think Judge Barrett fumbled the response.  This isn't an obscure issue.  The Supreme Court discussed the competing founding-era views of the spending clause in United States v. Butler, 297 U.S. 1 (1936) and opted for the broader Hamiltonian view over the narrower Madison/Rappaport view.  The Court then upheld the 1935 Social Security Act the next year in Steward Machine Co. v. Davis, 301 U.S 548 (1937) and Helvering v. Davis, 301 U.S. 619 (1937).  The constitutionality of Medicare seems to follow easily from the constitutionality of Social Security. I'm not aware of any serious judicial challenges to these conclusions since the New Deal, and the reliance and institutional interests seem paramount and more than adequate to sustain the outcomes under pretty much any theory of stare decisis (as Professor Rappaport himself says in the linked post).

10/14/2020

Nikolas Bowie: The Constitutional Right of Self-Government
Michael Ramsey

Nikolas Bowie (Harvard Law School) has posted The Constitutional Right of Self-Government (130 Yale L.J., forthcoming) (88 pages) on SSRN.  Here is the abstract:

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble”—a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression.

This paper offers a surprising answer. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government.

In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures—or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all people have an inherent right to participate in assembled governments, which in turn have the power to consult their constituents and seek a redress of their grievances—whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance.

The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also a right to meaningfully participate in effective government, the state and federal assembly clauses look like an important, “forgotten” limit on disenfranchisement and local disempowerment.

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