08/10/2021

David O. Brink: Two Conceptions of Rights
Michael Ramsey

David O. Brink (University of California, San Diego; University of San Diego School of Law) has posted Two Conceptions of Rights (14 pages) on SSRN.  Here is the abstract:

Rights play an important role in moral, political, and legal debate, as illustrated by conceptions of them as constraints and trumps. But we can and do think of rights in two quite different ways, without always fully recognizing and attending to the difference. On one conception, rights are important inputs to debate that often, but not always, determine the outcome of that debate. These are defeasible conceptions of rights that represent them presumptively decisive pro tanto reasons for the resolution of a practical question. These are contributory rights. Another conception represents rights as the outcome of debate about the entitlements of parties to the debate. On this conception, rights are verdictive and indefeasible. These are resultant rights. Both conceptions of rights have their uses. The important point is not to confuse them. Some adjudicative contexts employ the resultant conception of rights. However, many other contexts employ the contributory conception. First, moderate deontology presupposes a contributory conception of rights. Second, the existence of conflicts of rights presupposes the contributory conception, and this implies that shortlists of basic (e.g. human) rights involve contributory and defeasible rights. Third, the conception of individual rights ingredient in Equal Protection and Substantive Due Process analysis requires the contributory and defeasible conception of rights. Moreover, when existing contributory rights are inadequate to resolve normative conflicts, we may be led to recognize new contributory rights, as illustrated in the constitutional recognition of rights to association and privacy. Finally, the appeal to rights as a justification of adjudicative outcomes presupposes the contributory conception of rights, inasmuch as the resultant conception would render such appeals circular. In fact, we should view resultant rights as the proper weighing and outcome of potentially conflicting contributory rights.

Via Larry Solum at Legal Theory Blog, who says: "Elegant, important, essential.  If you think about rights, you should read this paper.  Highly recommended.  Download it while it's hot!"

08/09/2021

Michael Dorf on the Relevance of Founding-Era Common Law
Michael Ramsey

At Dorf on Law, Michael Dorf: Founding-Era Common Law's Relevance to Original Meaning,  From the introduction:

... [i]n several of the Court's cases last Term, either a majority or separate opinion placed a great deal of weight on the state of the common law at the Founding in order to ascertain the current operation of some constitutional provision or doctrine.

For example, in Uzuegbunam v. Preczewski, Justice Thomas, writing for a nearly unanimous Court, looked to Founding-era common law to conclude that the availability of nominal damages suffices to establish standing under Article III. Conversely, in Transunion v. Ramirez, the Court, per Justice Kavanaugh, found that the plaintiffs lacked standing because they had failed to identify "a close historical or common-law analogue for their asserted injury." Justice Thomas (joined by the three Democratic appointees) dissented in Transunion, objecting less to the majority's reliance on Founding-era understandings of the scope of judicial power than to its characterization of them.

...

Suppose you are an originalist of the currently fashionable variety: you equate the Constitution's contemporary meaning with its original public meaning. [Ed.: Wrong.  Actually, you think the Constitution's original public meaning is binding, irrespective of its contemporary meaning.]  Would you therefore further equate the Constitution's meaning with Founding-era common law? You might, but you would need some special reason to do so. After all ... at a bare minimum you would need to know that the relevant provision was understood by the public to codify rather than depart from the common law.

With respect to standing--at issue in Uauegbunam and Transunion--the argument would have to be that when the ratifying public circa 1789 read Article III's references to "judicial power," "cases," and "controversies," they would have necessarily thought of the kinds of cases that courts of their era heard, which in turn would have invoked the common law. That's plausible, but it's hardly a slam-dunk. After all, while lawyers would have been familiar with the details of the common law, the broader public likely would not have been. To the average member of the ratifying public, the terms "judicial power," "cases," and "controversies" would have likely meant something like "court stuff" rather than invoking all of the complex doctrines that courts had developed.

A good point, and I think it depends a lot on whether one accepts the idea, as explained by John McGinnis and Michael Rappaport, that the Constitution is written (and was understood as written) in "the language of the law."  If so, then the carryover of the common law into the words and phrases of the Constitution seems to follow, unless (as Professor Dorf suggests) there is evidence that the Framers' language was designed to depart from the common law.

However, the post later makes a stronger claim that I think is mistaken.  First, this observation: 

Here, then, is the originalist reasoning of the Court in takings cases, in free speech cases, and in other contexts I haven't bothered to elaborate: The scope and limits of constitutional rights and other constitutional provisions are informed by the understandings of the public at the time of ratification, which will in turn reflect the common law at the time.

I agree this is the view of originalist-oriented Justices and of mainstream contemporary originalist scholars.  But then the post continues:

Note, however, that this reasoning appears more sound if one is an old-style expectations-and-intentions originalist than if one is a currently fashionable public-meaning originalist. Sure, we can expect that the ratifying public will have expected that property rights and free speech could be limited pursuant to traditional common law exceptions, but without knowing a whole lot more, we cannot say that that expectation was a product of the meaning of the particular words of the Fifth and First Amendments, as opposed to expectations formed through other mechanisms. Put simply, without substantial inquiry into distinctively linguistic understandings of the particular words of the Constitution, there isn't good reason to equate the scope and limits of Founding-era common law with the scope and limits of the relevant constitutional provisions.

Here I disagree.  Public meaning originalism, from its roots in Justice Scalia's framing of it, has always understood meaning to arise from context as well as from semantics.  The context of the Constitution's words and phrases, in many cases, was the existing legal backdrop, most importantly the common law from which they were derived.  The public meaning of the words flows from that context.  Thus Scalia, the inspiration of modern public meaning originalism, relied heavily on the founding-era common law to inform the original meaning of the Constitution.  (See my discussion here, part I.B.; as I concluded: "in many of his opinions the English law background did most of the work in defining the constitutional rule.")  Professor Dorf, in my view, has an unduly narrow understanding of public meaning originalism, at least in its traditional Scalian form.

08/08/2021

Jonathan Siegel: Habeas, History, and Hermeneutics
Michael Ramsey

Jonathan R. Siegel (George Washington University Law School) has posted Habeas, History, and Hermeneutics (35 pages ) on SSRN.  Here is the abstract:

Supreme Court Justices Clarence Thomas and Neil Gorsuch recently proposed a radical shrinking of federal habeas corpus relief for state prisoners who are in custody pursuant to a final judgment of criminal conviction. They called for a return to the supposedly traditional principle that federal courts cannot grant habeas relief to such prisoners unless the state court that sentenced them lacked jurisdiction. This Article explains that (1) this supposedly traditional principle was not, in fact, a traditional principle of habeas, and (2) even if it were, Congress has displaced it by statute. Exploring the errors in the Justices’ arguments provides valuable lessons in the proper uses of historical materials and in the hermeneutics of statutory interpretation.

08/07/2021

Elizabeth Pollman: Corporate Personhood and Limited Sovereignty
Michael Ramsey

Elizabeth Pollman (University of Pennsylvania Law School) has posted Corporate Personhood and Limited Sovereignty (Vanderbilt Law Review, forthcoming) (31 pages) on SSRN.  Here is the abstract:

This Essay, written for a symposium celebrating the work of Professor Margaret Blair, examines how corporate rights jurisprudence helped to shape the corporate form in the United States during the nineteenth century. It argues that as the corporate form became popular because of the way it facilitated capital lock-in, perpetual succession, and provided other favorable characteristics related to legal personality that separated the corporation from its participants, the Supreme Court provided crucial reinforcement of these entity features by recognizing corporations as right-bearing legal persons separate from the government. Although the legal personality of corporations is a distinct concept from their constitutional treatment, the Court’s nineteenth-century rulings bolstered key features created by corporate law and simultaneously situated the corporation as subordinate to the state in a system of federalism. And, finally, the Essay suggests that the balance of power struck in the first century of Supreme Court jurisprudence on corporate rights has been eroded in the modern era. The Supreme Court’s failure to develop a consistent approach to corporate rights questions and its tendency to reason based on views of corporations as associations of persons have exposed a significant flaw in the Court’s evolving corporate personhood jurisprudence: it lacks a limiting principle.

08/06/2021

GianCarlo Canaparo & Paul Larkin on the Twenty-Seventh Amendment
Michael Ramsey

GianCarlo Canaparo (Heritage Foundation) and Paul J. Larkin, Jr. (Heritage Foundation) have posted The Twenty-Seventh Amendment: Meaning and Application (Harvard Journal of Law and Public Policy, forthcoming) (23 pages) on SSRN.  Here is the abstract:

The Twenty-Seventh Amendment sparks more debates than its simple text suggests it should, and few courts or scholars have spent much time parsing its text to help resolve those debates. This Essay aims to do that by interpreting the Amendment according to its text and history.

The first step is to place the Amendment within the context of the Ascertainment Clause, which it amends. From there, we look to the Framers’ understanding of the Amendment’s text and we conclude the following: “law” has its technical Article I definition (a bill passed by both houses of Congress and signed by the president), “varying compensation” means any increase or decrease to the terms of pre-existing laws enacted pursuant to the Ascertainment Clause, “shall take effect” refers to the moment when members are entitled to receive a quantifiable change to their compensation, and “an election . . . shall have intervened” means that a new Congress has been seated. The best reading of the Amendment is as a narrow provision that sets a timing condition on the operation of laws varying members’ compensation; it does not apply to other government conduct, such as House rules that deduct fines from members’ salaries for misconduct.

Our interpretation of the text leads to several conclusions about the Amendment’s application. For example, the Amendment does not prohibit the passage of compensation laws, rather it simply delays laws varying compensation from taking effect until an intervening House election has occurred. In other words, it is best read as providing a default timing term to laws varying compensation that either lack such a term or include a term that does not comply with the Amendment. Accordingly, the Amendment cannot be used to strike down laws that do not comply with its timing requirement except in rare circumstances. Moreover, the Amendment informs our understanding of the Ascertainment Clause as prohibiting Congress from delegating its power to set compensation to any other body. One or more of our conclusions resolves the existing debates about the Twenty-Seventh Amendment and, hopefully, will do the same for any debates that arise in the future.

The 27th Amendment raises the interesting theoretical question for originalists of how to approach the original public meaning of a text whose drafting and ratifying are widely separated in time.

08/05/2021

President Biden's Departmentalism [Updated]
Michael Ramsey

On Tuesday the Centers for Disease Control (CDC) (an executive agency) issued a new eviction moratorium, substantially similar to the one that expired last week.  Previously, in Alabama Association of Realtors v. DHHS, four Justices of the Supreme Court would have enjoined the prior moratorium as exceeding statutory authorization, but five Justices refused.  Justice Kavanaugh wrote separately observing that he agreed with his four colleagues that the CDC "exceeded its existing statutory authority by issuing a nationwide eviction moratorium" and that "clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31"; but he declined to vote for an injunction in light of the moratorium's impending expiration.  After initially doubting it had authority to issue a new moratorium without congressional approval (for obvious reasons), the Biden administration reversed course and issued the new one.  (Josh Blackman comments here).

At Bloomberg, Noah Feldman -- though sympathetic to the moratorium on policy grounds -- doubts this is a good strategy.  That may be so.  But he adds:

[T]he Kavanaugh statement indicates that there are five votes to hold the new ban unconstitutional — and that it was therefore unlawful for Biden to [issue it].

From an originalist perspective, I disagree. There nothing "unlawful" about the President's action.  The President is entitled to act on his view of the law, until the Supreme Court (or a lower court) directly rules otherwise.  A Supreme Court order (or lower court order) is binding on the President, but the speculations of individual Justices are not (even if they add up to five), nor are our predictions about what five Justices may do in any particular case in the future (even if we are pretty sure of the answer).  The Supreme Court isn't an oracle announcing the law; it determines the law as necessary to resolve cases before it. That's all that Marbury's understanding of judicial review requires. (It's true that Cooper v. Aaron complicates this analysis, but Cooper was not an originalist opinion).

Here, there was no Court order enjoining the prior moratorium.  The new moratorium is slightly different, but even if it were not, the President isn't bound by Justice Kavanaugh's observations about how Justice Kavanaugh might rule in the future.

UPDATE: Howard Wasserman has some similar thoughts at Prawfsblawg: Embrace the judicial departmentalism, criticizing this editorial in the Washington Post (which describes the new moratorium as coming "at the expense of the rule of law").  And the Wall Street Journal editors agree with the Post: President Biden’s Lawless Eviction Ban.

It may be that the moratorium is lawless and counter to the rule of law.  But that's not (as the Post and the Journal editors apparently believe) because five Justices said so in nonbinding observations.

08/04/2021

Eric Segall on John McGinnis on Executive Removal Power
Michael Ramsey

At Dorf on Law, Eric Segall: Partisan Politics, Legal Realism, and the Myth of the Unitary Executive (commenting on this post by John McGinnis: Will the Court Tame the Administrative State?).  From the introduction:

At the Law & Liberty Blog last week, Professor John McGinnis penned an homage to the Roberts Court decisions over the last few years invalidating how Congress has structured various administrative agencies. In a series of complicated cases, the Justices held that the President must be able to fire agency heads and other officials unconditionally and laws to the contrary, passed by the people's representatives, must give way. These opinions flow directly from the unitary executive theory developed by administrative officials in the Ronald Reagan Justice Department during the 1980's. 

What makes these decisions so fascinating (and wrong) is that the Constitution's text does not  support such a view, there is no persuasive historical evidence underlying the theory, and as a matter of policy it is a terrible idea to give one person so much power, as the Framers surely understood. What most explains these decisions, as even McGinnis implicitly concedes, is politics pure and simple. ...

...

The Constitution says nothing about who has authority to fire federal officers and under what conditions and is equally silent about how the administrative state is to be structured. Some proponents of the unitary executive theory have suggested that it is consistent with the parts of Article II that say the "Executive Power shall be vested" in a President and that he "shall take care that the laws be faithfully executed." Neither of these vaguely worded clauses, however, provides support for judicial second guessing and vetoing of Congress's decisions regarding how federal officers are to be fired. Professor Nourse has demonstrated that point beyond argument.

I disagree, and the disagreement illustrates my main disagreement with Professor Segall's critiques of originalism more broadly.  I agree with him that (a) originalist analysis doesn't provide an answer to every important constitutional question, and (b) when originalist analysis doesn't provide an answer, a plausible approach (perhaps the most plausible approach) is for a judge to leave the matter to the political branches.  Our core disagreement is on how often originalist analysis fails to provide an answer.

On the matter of executive removal power, I think the Constitution's text is sufficiently clear: "The executive Power shall be vested in a President of the United States."  Calling this a "vaguely worded clause" doesn't make it so.  To the contrary, it's straightforward.  If the executive power shall be vested in the President, it follows that the executive power shall not be vested in anyone other than the President.  As Justice Scalia famously argued in dissent in Morrison v. Olson, this doesn't mean that some of the executive power shall be vested in the President; it means that all of the executive power shall be vested in the President.   Thus Congress cannot create an office of Attorney General, charged with directing federal prosecutions, entirely separate from and uncontrolled by the President, because then a large part of the "executive Power" would be vested in the Attorney General, not the President. 

The narrower question in the recent cases Professor Segall discusses is whether Congress can limit the President's power to remove executive officers to situations where the President has good cause for removal.  This is admittedly a harder question.  But I still think the constitutional text points the way.  Obviously, and as the Framers understood, the President cannot singlehandedly enforce the law.  So there is a need for subordinate officers, and the Constitution clearly allows it, notwithstanding the executive vesting clause.  That's because when executive power is wielded by a subordinate officer, that power is nonetheless still vested in the President if the President controls the executive officer.  But to the extent the President does not control the  subordinate officer, some of the executive power shifts from the President to the subordinate officer.  Removal is essential to control; the President does not control a person he cannot remove.  Thus the vesting of executive power entails removal power over subordinate executive officers.

As to history, Michael McConnell has an excellent account of the Framers' development of the unitary executive in The President Who Would Not Be King (ch. 10).  He concludes that the Constitution's original meaning gives the President full power over law execution (though he relies more on the take care clause than I would.)

I agree that there are counterarguments (including Professor Nourse's interesting but ultimately unpersuasive [to me] article that Professor Segall cites).  But I don't think a clause is made vague or ambiguous by the existence of possible alternative readings.  The question is which is the most plausible reading.  If two are equally plausible, or close to it, then originalist analysis may have difficulty providing an answer.  I don't think that's the case here.

Finally, a few quick asides:

(1) I don't see this as a partisan issue the way Professor Segall does.  Executive removal power benefits the President, whomever the President may be.  In the modern era, both Democrat and Republican Presidents have argued for it.  The most recent President to remove an executive officer in the face of a statutory restriction was President Biden (as discussed here).

(2) I also don't see why it's a "terrible idea," as Professor Segall says.  The alternative  is (among other things) that an incoming President has to operate to some extent through executive officers appointed by a predecessor, who may be of a different party and political philosophy.  President Biden understandably prefers not to operate through officers appointed by President Trump.

But (3), I also doubt Professor McGinnis' conclusion that reclaiming executive removal power is central to taming the administrative state.  I would say that the administrative state arises mostly from Congress' delegation of lawmaking authority to the agencies (whether fully controlled by the President or not).  Whether that's constitutional is a different question, and a much harder one.

08/03/2021

Corpus Linguistics and Heller (Part IV)
David Weisberg

This comment will discuss Prof. Anya Bernstein’s post, entitled “More than Words,” which is part of Duke Law’s blog series “Corpus Linguistics and the Second Amendment.”  (My prior posts can be tracked down here.) 

Prof. Bernstein does not focus extensively on Heller; she offers a wider perspective.  The gist of her post is summed up in this paragraph:

If we want to treat constitutional language the way a linguist would, … we will assume that linguistic meaning changes over time as everything around it changes—from its readers and expositors and implementers, to the social norms and social structure in which it takes effect, to the legal regime that it functions in. Corpus linguistics, then, works on a rather non-originalist assumption. Linguistics does not recognize a fixation thesis, but rather assumes that language—as a social medium—continually develops along with the society around it.

This raises at least two important questions: 

(1) Should one assume “that linguistic meaning changes over time”?  (For brevity’s sake, I’ll call that assumption the “change thesis.”) 

(2) Does CL work on a non-originalist assumption that entails the non-recognition of a “fixation thesis”?  (The latter term is of course most closely associated with Prof. Lawrence Solum, who has written: “The meaning of the constitutional text is fixed when each provision is framed and ratified: this claim can be called the Fixation Thesis.”) 

I am going to consider those two questions in reverse order.

Although Prof. Bernstein believes that CL does not recognize a fixation thesis, some CL practitioners surely would disagree.  For example, Mr. Neil Goldfarb’s post (which I’ve discussed here) amply demonstrates his belief that CL can fix the meaning of the phrase “the right of the people to keep and bear Arms” in 1791; he holds that belief just as strongly as Justice Scalia believed that his own originalist analysis could accomplish that same task.  Each endorsed a different fixed meaning—Mr. Goldfarb thinks the phrase is best understood as referring exclusively to military uses of arms; Justice Scalia believed it encompassed both military and non-military uses—but both believed the phrase had a fixed meaning in 1791 that is recoverable in this century.  So at least some practitioners of CL do recognize a fixation thesis.  

Regarding question (1), I’d guess that virtually no one would answer in the negative.  Indeed, Justice Scalia (in a book entitled Reading Law, co-authored with Bryan Garner) wrote: “Words change meanings over time, and often in unpredictable ways.” (P. 78, fn. omitted.)  But Prof. Bernstein’s assertions as to how a fixation thesis relates to both the change thesis and linguistics get things backwards.  If, as she says, linguists assume the change thesis, that assumption itself implies that, at various times, linguistic meaning is fixed, just as the fixation thesis posits.  The very concept of “change” requires that there are times when things are fixed, that is, unchanging. 

An object changes physical position only if, at a certain time, it is at point A and, at a later time, it is at point B.  A change in position necessarily implies that a starting point, point A, is fixed.  If we don’t know whether something at point B was initially at some place other than point B, we can’t know whether the thing has changed its position or, instead, has always been at point B. 

Similarly, if the change thesis is correct in positing that “linguistic meaning changes over time,” then it follows that some bit of language had at a certain time a certain fixed meaning and then, at a later time, the same bit had a different meaning.  (Just to be clear: to say that a bit of language had or has a fixed meaning is not to say that, at any time, it was free of ambiguity or vagueness.  Ambiguity or vagueness will always be an integral feature of some linguistic expressions.  “Due process of law,” “the equal protection of the laws,” “unreasonable searches and seizures”—these phrases and many others have always been, and always will be, vague to a very substantial degree.  “Sister-in-law” is always ambiguous.)

One implication of the foregoing is that not all linguistic meanings can be changing all the time.  There has to be some stability of meaning, or else we will again lack the fixed starting points that are necessary if change is to occur.  To empirically verify any kind of change, whether of billiard balls or linguistic expressions, the change must occur at a measurable pace.  An observer must be able to confirm that, at a particular time, the phrase meant X, and at a later time it had a somewhat different meaning.  So, with all due respect, if linguists assume the change thesis, then those same linguists do indeed recognize, explicitly or implicitly, a fixation thesis.  Assertions to the contrary are incorrect.

A second important implication of the change thesis is that previous meanings—meanings that bits of language had at one time but that changed subsequently—must be recoverable.  That is, even if a language bit has a meaning today that it did not have at an earlier time, we must be able to determine today, at least to some degree, the meaning it did have at that earlier time.  If previous meanings aren’t recoverable at all, we would have no empirical ground for asserting that any meaning has ever changed, and thus no ground for accepting the change thesis.

Thus, the change thesis and the fixation thesis are both consistent with the notion that, at a particular point in time—say, e.g., 1789, when the Constitution was ratified, or 1791, when the Second Amendment was ratified—the language in the Constitution or the Second Amendment had a fixed meaning, and at a later time the meaning changed to some degree.  Moreover, notwithstanding any subsequent changes in meaning, it might well be possible today to recover meanings for the Constitution and the amendment that would have been the meanings understood at the end of the eighteenth century.  All of that is perfectly consistent with both the change thesis and the fixation thesis.  

In sum, an originalist (or, as I would prefer, a careful and thoughtful constitutional textualist) and a linguist both employ a methodology that, at a fundamental/logical (but not operational) level, is consistent with the other’s methodology.  Moreover, the linguist’s fundamental methodology—specifically, the change thesis—itself implies that the originalist’s fixation thesis also must be accepted, because there can be no change without a fixed starting point.  The converse, I think, is not true; we can conceive of a language that generates linguistic expressions with meanings that never change over time.  But, of course, no one believes that is how living languages work in the real world.   

08/02/2021

More from Josh Hammer on Public Good Originalism (with some Comments)
Michael Ramsey

At Public Discourse, Josh Hammer: In Defense of Common Good Originalism (responding to this essay in Public Discourse by John Grove).  From the introduction: 

John Grove of Law & Liberty has written the most thoughtful critique of common good originalism—the jurisprudential framework I have developed over the past year-plus, including here at Public Discourse and most recently in a long-form Harvard Journal of Law & Public Policy (HJLPP) essay—to date. Grove has proven himself to be a relentless critic of a more substantively and morally informed jurisprudence. In his Public Discourse essay, he takes direct and specific aim at common good originalism. His serious essay deserves a serious response.

It is first worth noting that Grove and I agree on more than he seems to realize. In the essay, Grove repeatedly emphasizes that ours is a “compromise constitution” that “emerged from a negotiated consensus,” such that we ultimately “have few guides” in interpretation other than “the text [all relevant bodies] ratified.” I concur in this general reading of the relevant history. However, in my view, that history cuts in precisely the opposite direction of the one Grove seems to think it does.

It is no great secret that the Founders vehemently disagreed among themselves on virtually everythingup to and including the very nature of the American Revolution itself—that is, whether it was a true liberal “revolution” in the Enlightenment rationalist sense of the term (the position of Thomas Jefferson, Thomas Paine, and their allies) or whether it was more accurately understood as a conservative “restoration” of the common law rights of Englishmen that Parliament and the Crown had begun to deny to the American colonists in the aftermath of the Seven Years’ War (the position of Alexander Hamilton, John Adams, and their allies). Many of the relevant debates, including the drafting debates at the 1787 Constitutional Convention and the great constitutional interpretive debates during the first few Congresses, such as the 1793-1794 Pacificus-Helvidius Debates between Hamilton and James Madison, must be understood as intellectually downstream of this overarching, higher-order philosophical disagreement.

The upshot is that many key constitutional clauses were indeed drafted as compromise provisions intended to win over the greatest number of prospective ratifiers among intensely warring intellectual and political tribes. When combined with the insight that many of these clauses, such as Article I, Section 8’s General Welfare Clause and Necessary and Proper Clause, are written in unmistakably broad, sweeping language, this ought to cut strongly in favor of a dispositional humility about an interpreter’s ability to definitively discern the most accurate original meanings of at least some of these clauses.

I largely agree with this assessment, and I think most originalists would as well.  The idea that originalism provides definitive answers to all constitutional questions is mostly a position ascribed to originalists by nonoriginalists.

I do have two preliminary questions about common good originalism based on this beginning.  The first is how indeterminate it perceives the Constitution to be.  While I acknowledge difficulties in finding the original meaning, I don't go to the extremes of originalist critics such as Eric Segall and Jonathan Gienapp, who find most important questions unresolvable by originalist analysis.  Josh Hammer, both here and in his longer piece, seems to elide this question.

A second question is -- assuming common good originalism thinks that a material number of constitutional questions can be resolved by originalist analysis -- whether its proponents think that the original meaning is binding, or whether the "common good" can justify departures from text with a tolerably clear original meaning.

Nonetheless, I think it's right that originalism can't definitively resolve all constitutional issues -- so I agree originalists must decide what to do when it can't. The essay continues: 

The key question is what an interpreter ought to do when he is faced with a text that admits of multiple plausible originalist interpretations. Positivist/historicist originalists tend to answer this question in at least one of two non-mutually exclusive ways. Some resist my Burkean appeal to interpretive humility, arguing on the contrary that we now possess the linguistic research tools that enable us to ascertain a clause’s “one, true, authentic historical meaning.” Others—such as Grove, it seems, and perhaps also Ed Whelan—forthrightly acknowledge the difficulties presented by the abstract phrasing and sweeping language of certain constitutional provisions, but maintain nonetheless that the only legitimate approach is to eschew all non-historicist considerations and simply do one’s exegetical “best” to determine the historically “right” answer.

My fairly modest claim is that, in these situations of reasonable interpretive ambiguity, judicial and political statesmen instead ought to err on the side of what I call the telos of the American regime. This telos is most clearly expressed in the Constitution’s common good-oriented Preamble, though the Declaration of Independence is of course also relevant.

... I believe the constitutional text is necessarily oriented toward certain substantive ideals of natural justice, human flourishing, and the common good, and that the Preamble serves as a particularly clear and compelling citation to ground that claim.

I wonder to what extent this approach is distinct from resolving ambiguities based on the "spirit of the Constitution," a position associated with originalist scholar Randy Barnett (and perhaps Chief Justice Marshall).

In addition, I think the dichotomy advanced above misses a mainstream originalist view that when a judge finds the original meaning too ambiguous to resolve satisfactorily a particular dispute, the appropriate resolution is to defer to the political branches. (For example, see here from Richard Kay; I think it is also Ed Whelan's position). That approach seems to me to accord more with "interpretive humility" than does the idea of trying to identify and impose a telos of the American regime found in the Preamble.

(Thanks to Mark Pulliam for the pointer.)

08/01/2021

Larry Alexander: Formalist Textualism and the Cernauskas Problem
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Formalist Textualism and the Cernauskas Problem (Journal of Contemporary Legal Issues, Vol. 23, No. 1, 2021) (6 pages) on SSRN.  Here is the abstract:

In this short piece I respond to a recent article in the Harvard Law Review advocating an approach to interpretation that amounts to semantic literalism. I point out the pitfalls of thereby ignoring what the lawmakers are asserting.

From the introduction (footnotes omitted):

In a recent article [Ed.: Which Textualism, 134 Harv. L. Rev. 265 (2020)], Tara Grove distinguishes between what she calls “formalist textualism” and “flexible textualism.” Formalist textualism is really another term for literalism, in which statutory and constitutional language is given its semantic meaning—presumably its meaning at the time of enactment—in its “semantic context.” Grove illustrates the latter by pointing out that the phrase “domestic violence” appears in a statute that also mentions “insurrection,” thus suggesting that domestic violence there refers to acts similar to insurrection rather than to spousal abuse.

Flexible textualism, on the other hand, looks beyond the semantic meaning of the text and its semantic context to the text’s purpose and the assumptions and understandings of the enactors and the public at the time of enactment. To put it in terms I prefer, flexible textualists want to know what the text—or more precisely, the legislature whose text it is—is asserting. And what the text is asserting may be different from its semantic meaning.

And here is the Cernauskas problem:

But let me introduce the little case of Cernauskas v. Fletcher.  Jacob Cernauskas brought suit against Bishop Albert Fletcher to enjoin him from closing an alley abutting Fletcher’s property. Fletcher relied on a law that Cernauskas claimed had been repealed by a recent statue, the repealing clause of which stated, “All laws and parts of laws . . . are hereby repealed.” The court stated, undoubtedly correctly, that the legislature had merely wanted to repeal those laws that conflicted with the statute it was enacting, and that the necessary part of the repealing clause, “in conflict herewith,” had been omitted inadvertently. In other words, the Arkansas court was employing Grove’s flexible textualism.

But consider what result a formalist textualism would produce in Cernauskas. When the statute in question was enacted, it would thereby become the only law in the state of Arkansas, all other laws having been repealed. That’s what the semantics of the repealing clause dictate; and there is nothing in their “semantic context” that suggests that “all laws . . . are hereby repealed” doesn’t mean what it says. So until the legislature passes new laws, Arkansas would not have laws against murder, rape, robbery, and so on. And anyone who committed those and numerous other crimes in the period after the repealing clause went into effect would have an ex post facto law claim against their prosecution.