The Volokh Conspiracy

At the Legal Theory Blog, Georgetown law professor Larry Solum – a leading originalist scholar – has the following comments on my new paper, “Originalism and Political Ignorance”:

If Somin is correct, his argument provides support for one of the core arguments of “Semantic Originalism,” that the success conditions of constitutional communication can be met if we assume that the communicative content of the constitutional text consists of the conventional semantic meanings of the words and phrases as combined by shared understandings of syntax and grammar. Any additional communicative content must be delivered by the publicly shared context of constitutional utterance. If Somin is right, then that context is relatively information poor.

Somin does not argue that the public was generally ignorant of conventional semantic meaning–and this seems unlikely, since shared semantic understandings of some sort are required for linguistic communication to succeed.

Solum’s point has a lot of merit. The public need not know as much if all that originalist theory requires of it is an understanding of “conventional semantic meanings of the words and phrases” in the Constitution. I made a related point in my article when I noted that political ignorance is less of a problem for the original meaning of parts of the Constitution that are clear and unambiguous (pp. 24-26). I also suggested that the challenge posed by public ignorance may counsel in favor of literal rather than figurative interpretations of constitutional text, since low-knowledge voters are more likely to be aware of the former (pp. 44-45).

However, semantic meaning is not a panacea for the problem of ignorance. In many important cases, the semantic meaning of parts of the Constitution is ambiguous enough to allow more than one plausible meaning (e.g. – with terms such as “liberty,” “property,” and “equal protection of the laws”). Many of our most important constitutional disputes involve broad phrases like these, to which different people can attach widely divergent meanings, all of them linguistically plausible. In such cases, widespread public ignorance makes it difficult or impossible to pin down an original meaning. Many low-knowledge voters may have been unaware of the dispute and/or had no clear view on how to resolve it.

My paper on “Originalism and Political Ignorance,” currently under submission to law journals is now available on SSRN. Here’s the abstract:

Original meaning originalism may now be the most popular version of constitutional theory in the legal academy. The methodology has been endorsed by at least two Supreme Court justices and well-known scholars from across the political spectrum.

Original meaning is usually interpreted as focusing on the public understanding of the meaning of a constitutional provision at the time of ratification. This makes it essential to try to determine what the public actually knew and understood about the meaning of specific parts of the Constitution at the time they were enacted. If most of the public knew little or nothing about the constitutional provision in question, it may be difficult or impossible to determine its original meaning.

The evidence of extensive public ignorance on even very basic political issues suggests that such situations might well be quite common. Yet none of the rapidly growing literature on original meaning has so far grappled with the reality of widespread public ignorance.

This article begins the task of filling the gap in the literature. Part I describes the ways in which various theories of original meaning implicitly depend on assumptions about public knowledge. The problem is most severe with respect to determining the original meaning of provisions that are relatively vague and open-ended and least so when it comes to those that are more clear and precise. However, many of the most important disputes in constitutional law involve the former. The available empirical evidence on political ignorance suggests that the public may well have been poorly informed about many constitutional issues at the time of ratification. Indeed, political ignorance is actually rational for most voters.

In Part II, I consider several possible solutions to the challenge posed by political ignorance. These include relying on the perceptions of political elites, looking to contemporary coverage of constitutional issues in the popular media, and assuming that the public divined an original meaning after all, by relying on “information shortcuts.” Each of these approaches has some merit, but all also have important shortcomings. Part III briefly considers two ways in which originalists could respond to the challenge of political ignorance by modifying their theories: adopting a presumption in favor of literal over figurative interpretations of constitutional text, and leaving more issues to be resolved by construction rather than interpretation.

Political ignorance is not a terminal problem for originalism, and certainly does not discredit the theory completely. But it is an important issue that both originalists and their critics need to pay more attention to.

(1) Discussion of SDP continues over at Cato Unbound.   Too many interesting posts there to pick out one, so just start from Tim Sandefur’s lead essay and keep reading.

(2) Professor Michael McConnell and Nathan Chapman have posted an article on SSRN, Due Process as Separation of Powers.  The article cautions against “resorts to originalism to support modern due process doctrines,” finding that modern due process doctrines bear little similarity to the scope of the requirement of “due process of law” when the Fourteenth Amendment was enacted. On other hand, and contrary to standard originalist critiques emanating of SDP and its antecedents going back to Edward S. Corwin in the 1910s, the authors acknowledge that “due process of law” was understood to protect a (in their view very limited) category of substantive rights, in particular vested property rights.

I don’t agree with everything in this paper–in particular, I think the authors give short shrift to the influence of abolitionist constitutional thought.  The authors correctly note that before the Civil War, the (expansive, rights-oriented) abolitionist understanding of due process of law was not “adopted by more than a fringe,” but they fail to seriously grapple with the extent to which the Radical Republicans who drafted the Fourteenth Amendment after the Civil War were influenced by abolitionist thought. (I’m not sure how great the influence was, but it can’t be dismissed by reference to the state of constitutional law in 1860; the abolitionists were, after all, among the primary ideological victors of the war).

In any event, it’s a very valuable contribution to the debate over the meaning of the Due Process Clause, both in 1868 and today.

Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition 8 is an example of sex discrimination, and must be evaluated under the higher standards of scrutiny applied to gender discrimination by the Supreme Court.

Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And it is perfectly possible to discriminate on the basis of sex even if the motivation for doing so is something other than sexism.

Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because he is a man. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.

By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey’s marriage was not illegal, even if his actions were morally dubious.

All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court’s approach to sex discrimination, any “statutory classifications that distinguish between males and females” are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously “distinguish[es] between males and females.”

Although a ban on same-sex marriage qualifies as sex discrimination, it is not automatically unconstitutional. Since the 1970s, the Supreme Court has taken the view that laws that discriminate on the basis of sex do not violate the Constitution if they can pass “intermediate scrutiny,” which requires them to be “substantially related” to an “important state interest.” If opponents of same-sex marriage are right to claim that Western civilization will fall into deep decline if the practice is allowed, that would be enough to pass the test. Ditto if they can show that same-sex marriage somehow inflicts severe harm on children. But any such arguments would be subject to detailed judicial scrutiny. They would have to be backed by real evidence, and could not pass muster just by being minimally plausible, as under the “rational basis” test.

Some originalists might reject my argument on the grounds that sex discrimination itself is not really banned by the original meaning of the Fourteenth Amendment. I criticized such arguments in this post. For a much more comprehensive rebuttal, see this important recent article by Steven Calabresi and Julia Rickert.

A more moderate originalist critique of my position might hinge on the idea that the framers of the Amendment would not have thought of a same-sex marriage ban as sex discrimination. But it is not hard to figure out that a law under which a legal right is dependent on gender discriminates on the basis of sex. The Framers surely thought that this was justifiable sex discrimination. But that does not mean that it isn’t sex discrimination at all. If asked whether marriage laws circa 1868 limited the right to marry on the basis of gender, most people at the time would surely have said yes. And, as in the case of occupational discrimination against women, the Framers’ view that this form of sex discrimination is constitutionally permissible hinged on dubious factual assumptions that we are not bound by today.

In sum, a ban on same-sex marriage easily qualifies as sex discrimination and is therefore subject to heightened judicial scrutiny. Whether it could withstand such scrutiny is a question I leave to others, though I am skeptical about its chances.

UPDATE: Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a”statutory classification… that distinguish between males and females.” Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.

It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow “balanced” by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.

Earlier this month, I posted on Steven Calabresi and Julia Rickert’s new paper, “Originalism and Sex Discrimination.”  Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional.

This is an important article, which has already received notice from Lawrence Solum and Jack Balkin, among others.  It was also subject to a lengthy critique by Ed Whelan on NRO’s Bench Memos in five parts: 1, 2, 3, 4, and 5.  Calabresi and Rickert have written a response to Whelan which I am posting here.  It begins below and the continues after the jump.

[UPDATE: Ed Whelan has a brief rejoinder here.]

Steve Calabresi & Julia Rickert Response to Ed Whelan

We recently posted an article on SSRN entitled “Originalism and Sex Discrimination,” which  has now been published in the Texas Law Review. We argue in our article that the Fourteenth Amendment outlaws all systems of caste from the Black Codes to European feudalism to the Indian Caste system.  We also argue that after the ratification of the Nineteenth Amendment in 1920 giving women the right to vote, it was constitutionally correct to read the Fourteenth Amendment’s ban on caste as outlawing sex discrimination with respect to civil rights.  Our position is that originalists reading the text of the Fourteenth Amendment today need to synthesize it with the text of the Nineteenth Amendment.  We believe that the political right to vote which the Fifteenth Amendment extends to men of any race, and which the Nineteenth Amendment extends to women of all races, is at the apex of the Constitution’s hierarchy of rights while civil rights, which the Fourteenth Amendment protects form the base of the pyramid.  Children, aliens, and former felons have civil rights under the Fourteenth Amendment, but they do not have the political right to vote.  No group, however, in our opinion can be granted political rights without also acquiring civil rights under the Fourteenth Amendment.

In five posts on National Review, Ed Whelan, who is one of the most acclaimed conservative legal thinkers and activists of his generation, disagrees with our view.  Whelan agrees to assume along with us that the Fourteenth Amendment outlaws systems of caste, as a matter of original meaning, but he disagrees with us that traditional laws that banned married women from owning property, entering into contracts, or working as lawyers or bartenders set up a system of caste even if the Fourteenth Amendment bans systems of caste.  Whelan also argues that the Nineteenth Amendment ought not to be read synthetically with the Fourteenth because doing so renders the Fourteenth Amendment superfluous.  Whelan makes many additional arguments which we will try to address below, but this is the gist of his argument.

Continue reading ‘Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination’ »

Last week, I noted the important new article by Stephen Calabresi and Julia Rickert making an originalist case for the unconstitutionality of sex discrimination.  In short, they argue that the 14th Amendment is best understood as prohibiting caste legislation, not just racial discrimination, and that it must be read in light of subsequent amendments, the 19th Amendment in particular.

Ed Whelan has responded to the Calabresi-Rickert article at length at NRO’s Bench Memos.  To put if briefly, he is not convinced.  His response consists of five parts: 1, 2, 3, 4, and 5.

It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment.   Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination by state entities.  Nor did the original public meaning of Section One embody a rule that would prevent state governments from engaging in sex discrimination.

In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court’s sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment.  Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular.  Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court’s decision in the VMI case.

This article is Lawrence Solum’s “Download of the Week,” and with good reason, as it is sure to prompt significant discussion and debate.  As Solum would say, “Download it while it’s hot!”

The American Revolution took place because of various abuses of the rights of Americans by the British government. So when we seek to understand the rights of citizens in the nation that was created by that Revolution, one useful guide is looking at the negative example of what the Americans were revolting against. For example, Justices have looked at the revolution-provoking use general warrants (Henry v. United States, 1959),  unrepresentative government as exemplified by (but not limited to) taxation without representation (Texas v. Johnson, 1989, Rehnquist dissenting),  and violation of the right to trial by jury, via use of vice-admiralty courts (Parklane Hosiery v. Shore, 1979, Rehnquist dissenting).

More broadly, as the 2d Justice Harlan wrote in his oft-quoted dissent in Poe v. Ullman, when the Court is “supplying of content” to constitutional ”liberty,” the Court should have “regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke.”

Can commentators supply some additional examples, either regarding specific issues, or general Poe-like rules? Citations to Supreme Court cases are welcome, but also welcome are citations to other sources who are regarded as guides for constitutional understanding–such as Abraham Lincoln, or influential commentators.

Over the summer, I wrote a piece about the Supreme Court’s decision in the “violent videogames” case (Brown vs Entertainment Merchants Assn) for the forthcoming Cato 2011 Supreme Court Review. The Center for Constitutional Studies at Cato is having a kickoff event for the publication this coming Thursday (starting at 1030 AM), and I’ll be speaking there on the first panel about the Court’s evolving First Amendment jurisprudence.

VC’ers might be particularly interested in (though doubtlessly some will be angered or annoyed by) what I had to say about Justice Thomas’ thoroughly remarkable — though not in a good way — dissenting opinion in the case, one that, in my opinion at least, exposes the underlying flaws of the strict “originalist” position in constitutional law better than any other text:

Justice Thomas’ dissenting opinion expresses the hard-headed and uncompromising originalism for which he is well known:

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” McDonald v. Chicago, 561 U. S. ___, ___ (2010) (slip op., at 25) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, “its meaning does not alter.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). “That which it meant when adopted, it means now.” Ibid. (internal quotation marks omitted). . . .

As originally understood, the First Amendment’s protection against laws “abridging the freedom of speech” did not extend to all speech. . . . In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. . . . The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

In support of this latter proposition—which, more or less, ends the constitutional inquiry for Justice Thomas—he relies, inter alia, on Wadsworth’s “The Well-Ordered Family” of 1712, Cotton Mather’s “A Family Well-Ordered” (1699), “The History of Genesis” (1708), Locke’s “Some Thoughts Concerning Education” (1692), Burgh’s “Thoughts on Education” (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed “absolute authority” over their children, and that “total parental control over children’s lives” was the governing societal norm—what then? The question in this case is not “do parents have absolute authority over their children?” The question in the case is, rather, “how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for ‘the freedom of speech’?” That’s a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state’s power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? Nothing in Justice Thomas’s historical research tells me, or can possibly tell me, how people in the eighteenth century would have answered those questions. Let me put it this way: I know enough about discourse in the late eighteenth century to know that if you had walked into a bar in, say, Richmond, or Boston, or Philadelphia, in 1791 and made any of the following statements, you would have gotten a nice little argument going:

• “The government has just decreed that children can’t attend religious services. Can it do that?”
• “The government has just decreed that all schoolbooks must include endorsements of John Adams’s candidacy for the Presidency, and a defense of the Alien and Sedition Act. Can it do that?”
• “The government has just decreed that adults may not sing to children who are not their own. Can it do that?”

Justice Thomas believes that all of those questions can be answered in the affirmative—and,more importantly, that “eighteenth century society” would have answered all of those questions in the affirmative. (Indeed, he believes the former precisely because he believes the latter). His belief is misplaced, in my opinion. No amount of historical research can tell us what “the answer” to any of those questions would have been—in 1791, 1891, or 1991—because there is no “answer” that “society” can give to those questions. They’re contested and contestable propositions, depending on (among other things) how you characterize what the government was doing: helping parents or usurping their role, for example. . . .

In any event, if you feel like dropping in on the Cato event (perhaps to defend Thomas’ position!), you’re of course invited to do so.

[UPDATE: Chris Lund points out that Thomas' originalism is not always so crude as he expresses it here. In Citizens United, he joined Scalia's concurrence, which contained this paragraph:

A good deal more sensible than the position Thomas takes in Brown]

The Seventh Circuit’s decision in Ezell v. Chicago is a tremendously important case for Second Amendment doctrine. The key rules from Ezell: use originalism from both 1791 and 1868 to determine if an activity is within the scope of the Second Amendment right. If it is, apply First Amendment doctrine, and make the standard of review more stringent when the activity is closer to the core of the right, and when the government is prohibiting rather than regulating. Generally speaking, when looking for guidance, look to Eugene Volokh.

As the above rules apply to the case at bar: The right to practice with firearms is an important ancillary to the core of the Second Amendment right, so Chicago’s ban on firing ranges is subject to not-quite-strict scrutiny.

Here’s how the Ezell court set forth the above standards.

The Second Amendment is like the First Amendment, in that a temporary deprivation of the right may constitute irreparable harm:

[F]or some kinds of constitutional violations, irreparable harm is presumed. See 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). This is particularly true in First Amendment claims. See, e.g., Christian Legal Soc’y, 453 F.3d at 867 (“[V]iolations of First Amendment rights are presumed to constitute irreparable injuries . . . .” (citing Elrod v. Burns, 427 U.S. 347, 373 (1976))). The loss of a First Amendment right is frequently presumed to cause irreparable harm based on “the intangible nature of the benefits flowing from the exercise of those rights; and the fear that, if those rights are not jealously safeguarded, persons will be deterred, even if imperceptibly, from exercising those rights in the future.” Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 548 (6th Cir. 2010) (internal alteration and quotation marks omitted); see also KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir. 2006). The Second Amendment protects similarly intangible and unquantifiable interests. Heller held that the Amendment’s central component is the right to possess firearms for protection. 554 U.S. at 592-95. Infringements of this right cannot be compensated by damages.

When a law is “alleged to infringe Second Amendment rights,” there is a two-step inquiry, beginning with the question “Is the restricted activity protected by the Second Amendment in the first place? See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1449.”

To answer the first question, look to original meaning from both 1791 and 1868:

The answer requires a textual and historical inquiry into original meaning. Heller, 554 U.S. at 63435 (“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”); McDonald, 130 S. Ct. at 3047 (“[T]he scope of the Second Amendment right” is determined by textual and historical inquiry, not interest-balancing.). McDonald confirms that when state- or local-government action is challenged, the focus of the original-meaning inquiry is carried forward in time; the Second Amendment’s scope as a limitation on the States depends on how the right was understood when the Fourteenth Amendment was ratified. See McDonald, 130 S. Ct. at 3038-42.

Courts should follow the Supreme Court’s lead and treat “original public meaning as both a starting point and an important constraint on the analysis. See Heller, 554 U.S. at 610-19; McDonald, 130 S. Ct. at 3038-42. ” [fn. 11].

Footnote 11 offers some examples of what the court apparently sees as the generally correct approach to the original public meaning inquiry:

11 On this aspect of originalist interpretive method as applied to the Second Amendment, see generally AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 215-30, 257-67 (1998); Brannon P. Denning & Glenn H. Reynolds, Five Takes on McDonald v. Chicago, 26 J.L & POL. 273, 285-87 (2011); Josh Blackmun [sic, Blackman] & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 51-57 (2010); Clayton E. Cramer, Nicholas J. Johnson & George A. Mocsary, “This Right Is Not Allowed by Governments That Are Afraid of the People“: The Public Meaning of the Second Amendment When the Fourteenth Amendment Was Ratified, 17 GEO. MASON L. REV. 823, 824-25 (2010); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 11-17, 50-54 (2008); Randy E. Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83 TEX. L. REV. 237, 266-70 (2004); David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 BYU L. REV. 1359; Stephen P. Halbrook, Personal Security, Personal Liberty, and “The Constitutional Right to Bear Arms”: Visions of the Framers of the Fourteenth Amendment, 5 SETON HALL CONST. L.J. 341 (1995).

If the plaintiffs lose on the “scope” question, then the case is over and the government wins. If the alleged law does apply to something within the scope of the Second Amendment right, the court must apply judicial review. “[T]he rigor of this judicial review will depend on how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right. See generally, Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1454-72 (explaining the scope, burden, and danger-reduction justifications for firearm regulations post: Heller); Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1372-75 (2009); Adam Winkler, Heller’s Catch-22, 56 UCLA L. REV. 1551, 1571-73 (2009); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 979-80 (2009); Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 NW. U. L. REV. 2035, 2042-44 (2008).”

The right to arms includes the right to practice with arms: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective. The Ezell court pointed to the Supreme Court having “quoted at length from the ‘massively popular 1868 Treatise on Constitutional Limitations’ by judge and professor Thomas Cooley: ‘[T]o bear arms implies something more than the mere keeping; it implies the learning to handle and use them . . . ; it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order’.” In addition, “‘No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right.’ (quoting BENJAMIN VAUGHAN ABBOTT, JUDGE AND JURY: A POPULAR EXPLANATION OF THE LEADING TOPICS IN THE LAW OF THE LAND 333 (1880)).”

So what exactly is the standard of review?

“The City urges us to import the ‘undue burden’ test from the Court’s abortion cases…but we decline the invitation. Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context, see Skoien, 614 F.3d at 641; id. at 649 (Sykes, J., dissenting); Chester, 628 F.3d at 682; Marzzarella, 614 F.3d at 89 n.4; see also Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. REV. at 1449, 1452, 1454-55; Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. at 1376; Winkler, Heller’s Catch-22, 56 UCLA L. REV. at 1572.

So “we can distill this First Amendment doctrine and extrapolate a few general principles to the Second Amendment context. First, a severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end.” This amounts to what the court calls “not quite ‘strict scrutiny.’” Or it could be called strict scrutiny light. A “an extremely strongly” state interest, rather than a “compelling one”; and “a close fit” rather than “narrowly tailored.”

For “laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified. How much more easily depends on the relative severity of the burden and its proximity to the core of the right.” The Ezell court does not elaborate the doctrine for deciding lesser cases, because the instant case involves a prohibition very close to the core.

The “plaintiffs are the ‘law-abiding, responsible citizens’ whose Second Amendment rights are entitled to full solicitude under Heller . . .The City’s firing-range ban is not merely regulatory; it prohibits the ‘law-abiding, responsible citizens’ of Chicago from engaging in target practice in the controlled environment of a firing range. This is a serious encroachment on the right to maintain proficiency in firearm use, an important corollary to the meaningful exercise of the core right to possess firearms for self-defense.”

In short, the Second Amendment is part of normal constitutional law. The standard of review is not the absolutist “What part of ‘shall not be infringed’ don’t you understand?’” Nor is the standard “reasonableness” as a euphemism for “rational basis so long as all guns are not banned”; nor the weak “undue burden” standard that was invented for one particular unenumerated right which is an extreme outlier in the weakness of its basis in history, tradition, and other sources for unenumerated rights. Intermediate scrutiny does apply sometimes, as with the First Amendment, and, also as with the First Amendment, stricter scrutiny applies at other times. As with much of the rest of 21st century constitutional law, the interpretive methodology includes both originalism and a practical analysis which some persons would call “living constitutionalism.”

Time magazine managing editor Richard Stengel has penned a cover essay about the Constitution, One Document, Under Siege. My Independence Institute colleague Rob Natelson wrote a response addressing some of the many illogical or inaccurate claims therein.

For example:

Stengel: “The framers . . . gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy.”

Answer: The three-fifths compromise was a way of resolving a particularly thorny political difficulty; it was not an anthropological statement. In fact, the framers did recognize—repeatedly—the personhood of African-Americans. Nor did they “give us the idea” that women couldn’t vote; this was left up to the states, and in 1787 women DID vote, formally or informally, in some states. That may be one reason the Founders deliberately left the Constitution gender-neutral. (See p. 63 in my book, The Original Constitution.)

Whether equality of states in the Senate is a good idea is a matter of opinion, but enough very sane people think so to disqualify the idea from being “kind of crazy.”

For Natelson’s point about personhood, see Federalist 54, explaining that the Constitution recognizes that slaves are “moral persons,” not mere property. That’s why Madison was careful to refer to them as “persons.” In New Jersey,  women had the formal right to vote until the legislature changed the law in 1807.

Stengel: “Your doctor’s stethoscope was made in one state and was shipped to and sold in another.”

Answer: Yes, and Congress may regulate the stethoscope sale.  But the Constitution, properly understood, generally does not permit Congress to regulate what the physician does with the stethoscope, and certainly not how he is paid for his services.

My favorite:

Stengel: “There is an old Latin phrase, inter arma enim silent leges, which roughly translates as “in time of war, the Constitution is silent.”

Answer: I included this because ignorance of Latin and of the Founders’ latinate English has led to many constitutional misinterpretations, and because the mangled, ungrammatical version Stengel uses suggests that he got it from Star Trek (Deep Space Nine) rather than from Cicero.

The phrase is actually “Silent enim leges inter arma.” One reason the Founders were better qualified to address constitutional issues than Mr. Stengel is that they HAD read Cicero, and in Latin.

Incidentally, the correct translation is “For laws are silent amid arms.”

A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011).

Gary Lawson (Boston Univ.) and I partially agree:

Professor Koppelman evidently believes that the constitutionality of the individual mandate begins and ends with McCulloch v. Maryland. He is absolutely right about that. He simply has the wrong beginning and ending.

Professor Koppelman gets the beginning wrong because he starts his analysis in the middle of the McCulloch opinion instead of where John Marshall began. Chief Justice Marshall‘s famous discussion in McCulloch of the causal connection required by the word “necessary” was preceded by a seven-page analysis of the constitutionality of a federal corporation under the Necessary and Proper Clause. Those seven pages dealt with an issue that Marshall recognized had to be addressed before he decided whether a corporation was a causally “necessary” (or otherwise “proper”) means for implementing federal powers. The threshold question was whether the power to incorporate was incidental or principal.

Our article, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, elucidates the original meaning of the Necessary and Proper clause, which Chief Justice Marshall considered so important, but which professor Koppelman overlooked:

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.

From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.

Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase “necessary and proper for carrying into Execution . . . .”

The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as “worthy” or of the same “dignity” – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.

Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents’ power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.

“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” — Oliver Wendell Holmes

Many commenters on the Thirteenth Amendment, the draft, jury service, and compulsory road work post argued that the plain language of the Thirteenth Amendment makes the draft unconstitutional. (I think my coblogger Ilya argued something similar in a series of posts in 2007.) I think this question helps illustrate an important difference between two approaches to ambiguous text: an approach that tries to limit its focus to the text itself, and an approach that looks at the text as it was originally understood (which I will label “originalism” for purposes of this post). As between the two, I think originalism is generally preferable, whether or not one thinks that either should also be supplemented by other approaches, such as a focus on precedent. Let me briefly explain why.

1. Let’s begin with the Seventh Amendment, my favorite illustration of this question. The Seventh Amendment says that “In suits at common law … the right of trial by jury shall be preserved.” Now “common law” can mean several things. It can mean judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes. It can mean a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature. It can mean Anglo-American law as opposed to European civil law, which is derived from Roman law. Or it can mean law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity.

Today, in my experience, “common law” tends to bear the first meaning (judge-made law). That’s how I’ve seen it most often used. But it’s clear that at the time of the Framing the phrase “Suits at common law” referred to the last meaning, which is to say law historically enforced in common-law courts (which usually called for payment of damages) as opposed to the now largely long-defunct separate courts of equity (which is where injunctions and similar remedies came from). So which meaning should we use?

Here’s my thinking: If we’re appealing to the text of the Seventh Amendment, it must be because we think the enactment of that text should have legal significance. We’re not just appealing to abstract principles of right and wrong, or to the broad structure of the Constitution. (Rightly or wrongly, much of the discussion of the freedom of speech, equal protection, and the like does make such appeals; but I assume here that we’re confronting an argument based on the constitutional text, not on general constitutional theory.) Rather, we think the Seventh Amendment should be followed because it’s law.

Why is it law? Because it was enacted through the proper legal channels by people who had the legal authority to enact it, and because we choose to continue to accept those people’s actions as authoritative. (Again, we could dismiss those actions as no longer binding on us; but if we’re arguing about the text as it was adopted, as opposed to constitutional or moral theory more broadly, we must think the actions of the adopters were indeed in some measure important to us.)

And if we’re going to apply the Seventh Amendment because in 1791 enough states ratified it to make it part of the Constitution, it makes no sense to apply it in a way that’s completely different than how it was understood at the time — for instance, by applying it only to judge-made tort doctrines and not statutory ones — simply because this definition has become more common since 1791, and because the original definition is largely unknown to all but lawyers. That would be more a constitutional pun, I think, than a sensible form of constitutional interpretation.

I should acknowledge that there is a significant alternative to an originalist view of the text, and it is a view that focuses on the text as understood in light of the actual practices of the legal system today. The theory here is that the Constitution derives its force from the continuing consent of the governed, and that if our legal system — crafted as it is by elected officials and those appointed by elected officials — over time accepts some new meaning of a term, then that meaning becomes part of the constitutional framework.

But whether that might be true for some provisions, it isn’t true for the Seventh Amendment. The legal system continues to treat “Suits at common law” as referring to suits of the sort that would have been brought in common-law courts during the Framing era, largely because of the influence of originalism on the courts that have interpreted this particular provision. And certainly there’s no broad public understanding to the contrary.

2. I’d say the same about the Thirteenth Amendment. Bans on slavery and “involuntary servitude” existed in America from 1787 on, beginning with the Northwest Ordinance and then getting enacted in various state constitutions. As best I can tell, those bans were never generally understood as casting constitutional doubt on mandatory military service — which was the norm even in peacetime, in service in the state militia — or on jury duty. By the time the Thirteenth Amendment was enacted, “involuntary servitude” had an established legal meaning, and that was a meaning limited to conditions that were more akin to traditional slavery and less to the duties of citizenship such as military service or jury service. Maybe this approach was morally unsound, or even illogical, as some have argued. But when the ban on involuntary servitude was made part of the Constitution, it was not understood as being a ban on all involuntary work.

Continue reading ‘The Seventh and Thirteenth Amendments, and Ambiguous Constitutional Text’ »

At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.”

Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are:

FIRST, to nominate to the U.S. federal bench judges who are committed to restraint and applying the original meaning of the Constitution, not legislating from the bench;

SECOND, to select only pro-life appointees for relevant Cabinet and Executive Branch positions, in particular the head of National Institutes of Health, the Department of Justice, and the Department of Health & Human Services;

THIRD, to advance pro-life legislation to permanently end all taxpayer funding of abortion in all domestic and international spending programs, and defund Planned Parenthood and all other contractors and recipients of federal funds with affiliates that perform or fund abortions;

FOURTH, advance and sign into law a Pain-Capable Unborn Child Protection Act to protect unborn children who are capable of feeling pain from abortion.

Of the candidates who have refused to sign, Mitt Romney objects because the wording of the demand to cut on federal abortion funding could be construed to stop federal aid to many hospitals; further, he refuses to make pro-life a litmus test for his executive branch appointments, as long as the appointees are willing to abide by (President) Romney’s own pro-life views. Herman Cain says he would “sign” the pain bill, but will not take the pledge to “advance” the bill, because “Congress must advance the legislation,” and he must have ”respect for the balance of power and the role of the presidency.”

Thus, of the announced candidates, we have only Gov. Gary Johnson who might have constitutional scruples about the federal pain bill.

The Pain-Capable Unborn Child Protection Act, which has been enacted in several states, requires that physicians provide a woman who is at least 20 weeks pregnant, and who is seeking an abortion, with information to obtain informed consent about the pain that the fetus will feel during the abortion.

The PCUCPA is probably constitutional under Planned Parenthood v. Casey, since it does not ban pre-viability abortions, and the lower courts have not generally found other informed consent laws for abortion to be an “undue burden,” as Casey defines that term.

However, a federal PCUCPA is plainly unconstitutional under the “original meaning” of the Constitution, which judges appointed by SBA Pledge signers would presumably uphold. The federal version of PCUCPA is S. 314, introduced by Sen. Mike Johanns (R-Neb.). After the definitions section of the proposed statute, the bill states: “Any abortion provider in or affecting interstate or foreign commerce, who knowingly performs any abortion of a pain-capable unborn child, shall comply with the requirements of this title.”

Federal abortion control under the purported authority of congressional power “To regulate Commerce…among the several States” is plainly unconstitutional under the original meaning of the interstate commerce.

Even under the lax (but non-infinite) version of the interstate commerce power which the Court articulated in Lopez,  a federal ban on partial-birth abortion is dubious, as Glenn Reynolds and I argued in a Connecticut Law Review article. Indeed, in the 5-4 Supreme Court decision upholding the federal ban, Gonzales v. Carhart, Justices Thomas and Scalia, who voted in the majority to uphold the ban as not violating the Casey abortion right, concurred to point out “that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”

In other words, if the attorneys who challenged the federal ban on partial-birth abortions had been willing to raise all plausibile constitutional claims, instead of losing the case 4-5 they probably could have won 6-3, by assembling a coalition of 4 strongly pro-abortion-rights Justices, plus Scalia and Thomas on the commerce issue.

When we get beyond Lopez, and truly look at original meaning, then the unconstitutionality of the federal PCUCPA is obvious. In Gibbons v. Ogden, Chief Justice Marshall explained that “health laws of every description” are outside the scope of the federal commerce power. The statement has been cited with approval by other Supreme Court justices at least 20 times. As Wickard v. Filburn observed, the Marshall opinion in Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Wickard v. Filburn, 317 U.S. 111, 120 (1942). (For more on Marshall’s views about federal health control, see this article by Rob Natelson and me.)

Marshall’s opinion in Gibbon may be considered the outer boundary of any originalist interpretation of the interstate commerce power. What doctors tell patients before providing abortions is obviously not interstate commerce, all the more so since the vast majority of patients do not cross state lines to obtain abortions.

Yale’s Jack Balkin makes the argument that in the original meaning, “commerce” means “intercourse,” and thus the original meaning allows a vast amount of federal regulation of intra-state, non-economic activity. Rob Natelson and I explained the errors in this theory in an on-line article for the Michigan Law Review.

Presumably the Republican signers of the SBA pledge would not assert that the appointment of judges who accept Balkin’s “commerce = intercourse” theory of original meaning would comport with President’s pledge to appoint judges who would follow original meaning. All of the Republican presidential candidates have said that the Obamacare individual mandate to purchase expensive congressionally-designed health insurance from the congressionally-favored insurance oligopoly is unconstitutional. Balkin’s intercourse theory, however, would support the constitutionality of the mandate.

The signing of the SBA pledge by Rep. Ron Paul (R-Tex.) is particularly disappointing, since Paul has usually made a point of being scrupulous about federal powers. Indeed, Paul was the sole “pro-gun” Representative who voted against the Protection of Lawful Commerce in Arms Act, a federal statute which outlawed lawsuits, in federal and state courts, against the manufacturers, wholesalers, and lawful retailers of firearms for guns which were lawfully sold and properly functioning. Paul’s argument was that the law exceeded the federal power to regulate interstate commerce; I disagree, since the undisputed original purpose of the interstate commerce power was to empoower Congress to act against state barriers to interstate commerce. The anti-gun lawsuits were plainly an effort to use fanciful tort theories to damage the entire national market in firearms, by imposing on that market many restrictions which had been considered and rejected by Congress and the state legislatures.

Thus, in regard to the anti-gun lawsuits, Paul’s scruples were mistaken, in my view, but he deserves credit for being sincerely scrupulous. I wish that he, and the rest of the Reublican presidential field, kept their constitutional scruples intact regarding federal anti-abortion legislation.

While the federal PCUCPA does not invoke section 5 of the 14th Amendment as a basis for the legislation, it is possible to construct an argument that some federal anti-abortion laws could be based on that power. However, it’s hard to base such an argument on the original meaning of the 14th Amendment, since there is not a shred of evidence in the 1865-68 history of the creation and ratification of the 14th Amendment (nor in the immediate post-ratification period, nor for nearly a century after ratification) that anyone imagined that the 14th Amendment empowered Congress to enact abortion-control laws, or guaranteed abortion rights.

So if a Republican who signs the SBA pledge is elected President, and he or she adheres to item 1 in the SBA pledge, appointing judges who adhere to the Constitution’s original meaning, then those judges will uphold state versions of the PCUCPA while declaring unconstitutional a federal PCUCPA.

Attorney Ryan Williams recently published an article in the Yale Law Journal called “The One and Only Substantive Due Process Clause.” It’s pathbreaking.

Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, however, when the Fourteenth Amendment’s Due Process Clause was enacted it was widely accepted that “due process of law” also had a substantive meaning, and prohibited certain types of legislation.

That, in itself, is not entirely new. Indeed, based on my own reading of the previously existing sources, it’s more or less what I say in Chapter 1 of Rehabilitating Lochner. What’s new is the depth of the research Williams has undertaken. Previously, attention had focused mainly on a few major state court cases, along with Dred Scott v. Sandford. Williams goes well beyond the usual suspects, which allows him to conclude that by 1868, “a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law.” (Few state courts, meanwhile, had rejected “substantive due process”, as opposed to simply not ruling on the issue one way or another).

Williams’s article poses a challenge to the minority of scholars who argue that the original meaning of the Fifth Amendment’s Due Process Clause was “substantive,” and even more so to the much larger group of scholars who claim that the substantive interpretation of the Fourteenth Amendment’s Due Process Clause was simply invented by activist judges in the Gilded age and “Lochner era.” Indeed, Williams’s research suggests that a sincere originalist may be required to accept a substantive interpretation of component to “due process of law.”

Aside: Kudos to the Yale Law Journal, which I’ve noticed has published some very interesting scholarship this year which has not emanating from the standard sources, i.e., well-known law professors at top 15 or so schools.

Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland.

Gibbons is certainly a good foundation for advocates of strong federal powers. As the Supreme Court later wrote in Wickard v. Filburn, Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Indeed, Wickard itself did not purport to go any further than Gibbons had gone. Yet too many people know Gibbons only from expurgated versions in casebooks; thus they rely on some general phrases in Gibbons, and they infer that the commerce power encompasses everything that has interstate effects. Yet reading the full text of Gibbons ends the need to build speculation upon speculation. According to Chief Justice Marshall, the commerce power does not encompass:

that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description….

(Emphasis added.) Of course one may argue that Chief Justice Marshall was wrong, and that it would be better if “health laws of every description” could be enacted by the national government. But that would not be an originalist argument, and it would certainly not an argument for which one could cite Gibbons v. Ogden.

Some advocates of the current health control law also point to McCulloch v. Maryland to bolster their favored interpretation of the Necessary & Proper clause. These interpretations are not consistent with Chief Justice Marshall’s own understanding of what McCulloch said, and what he believed that “necessary and proper” includes. When McCulloch was decided, it came under fierce criticism, and so Chief Justice Marshall penned a series of pseudonmyous newspaper essays defending the decision. (That the essays, like The Federalist, were written pseudonymously makes them no less valuable.) The essays are collected in the book John Marshall’s Defense of McCulloch v. Maryland, published by Stanford University Press in 1969, and edited by Gerald Gunther. Having studied the essays, Professor Gunther wrote in his introduction, “Clearly these essays give cause to be more guarded in invoking McCulloch to support views of congressional power now thought necessary.”

Marshall explicitly agreed with a critic of McCulloch “that the insertion of the words necessary and proper in the last part of the 8th section of the 1st article, did not enlarge powers previously given, but were inserted only through abundant caution.” (Emphasis in original.) In Marshall’s understanding, any power necessarily includes its incidents. At the time of the Founding and the Early Republic, the legal definition of ”incidents” was that they are inferior powers, and cannot be equal to or greater than the enumerated power to which they pertain. Regarding incidental powers, wrote Marshall, “Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of the given power.”

In a forthcoming article in Engage (the journal of The Federalist Society’s practice groups), Rob Natelson and I penned a hypothetical opinion on a federal health control law, written entirely in Chief Justice Marshall’s voice. The opinion consists mainly of direct quotes from Marshall. (Rob, who knows the law and legal culture of the Founding Era as well as anyone in the world, is the lead author.)

It would be difficult to make a serious argument that the original meaning of the commerce clause and the necessary & proper clause is broader than Chief Justice Marshall thought them to be. Marshall’s vigorous readings of those clauses were hardly uncontested by other Founders. For example, James Madison criticized the reasoning, although not the result, in McCulloch. (As President, Madison had signed the bill creating the Second Bank of the United States, which he thought to be inconsistent with original meaning, but validated by subsequent practice.)

The current U.S. Supreme Court and the Circuit Courts of Appeal do not always follow original meaning, but to the extent that they do care about it, the PPACA in general and the mandate to purchase congressionally-designed health insurance in particular cannot be considered constitutionally valid under the commerce clause or the necessary & proper clause.

Are bloggers the 21st century equivalent of political pamphleteers?  Would James Madison have had one? I don’t know.  But I do know that several faculty members at the University of San Diego School of Law’s Center for the Study of Constitutional Originalism have launched “The Originalism Blog.” This blog won’t endeavor to answer the question in this post’s title, but it is a good source for information and commentary including the latest scholarship, for and against.  If you have any interest in originalism — whether you love it or hate it — this is a blog worth bookmarking.

A recent issue of the Michigan Law Review features Jack Balkin’s article Commerce. (109 Mich. L. Rev. 1 [2010].) The article argues that in the original meaning of the Constitution, “commerce” was understood to include a broad variety of social relationships, including relationships that had nothing to do with economic activity. Accordingly, writes Balkin, the original meaning of the interstate commerce power justifies not only the entire New Deal, but almost every expansion of congressional power since then.

In a reply article for the Michigan Law Review‘s on-line supplement, First Impressions, Rob Natelson and I challenge Balkin’s analysis. We argue that “commerce”–as it was actually used in the Constitution–includes mercantile exchange, and a few closely-related activities, such as navigation.

For example, for dictionary definitions of ”commerce,” Balkin relies entirely on the 1785 edition of Samuel Johnson, whose first word in the definition of “commerce” is “intercourse.” We look at the 1786 edition of Johnson, as well as six other influential dictionaries of the period. All of these dictionaries have less expansive definitions.

In addition:

Balkin entirely fails to address a decisive historical fact: during the ratification debates, the Constitution’s advocates repeatedly and clearly represented to the general public many areas over which the new government would have no power at all, at least within state boundaries. Their lists included education, social services, real estate transactions, inheritance, religion, manufacturing, agriculture and other land use, business licensing, most road building, civil justice within states, local government, and control of personal property outside mercantile commerce. All of these are within Balkin’s broad definition of “commerce,” but control over all, the Federalists informed the public, were outside federal authority.

As for whether the expansions of federal power during the presidencies of FDR, LBJ, GHWB, BHO, et al., are constitutionally justifiable, we leave that issue to whatever theory of living constitutionalism (or, per Woodrow Wilson, discarding the Constitution as outmoded) that one wishes to adopt (or to reject). We disagree with the first sentence of Balkin’s article, that ”A good test for the plausibility of any theory of constitutional interpretation is how well it handles the doctrinal transformations of the New Deal period.” For otherwise, he writes, “we could not have a federal government that provides all of the social services and statutory rights guarantees that Americans have come to expect. The government could neither act to protect the environment nor rescue the national economy in times of crisis.”

We disagree. The original meaning is what it is, not what people in the 21st century might wish it to be. “The original meaning of the Constitution does not depend on whether it comports with Jack Balkin’s policy preferences on the welfare state any more than whether it comports with John Yoo’s policy preferences on habeas corpus or John McCain’s policy preferences on campaign speech.” Of course the judicial and political branches, the legal academy, and the American public do not necessarily have to consider themselves restrained by original meaning.

Incidentally, for any law student who aspires to be a better legal writer, I highly recommend reading the Balkin article, or any other Balkin article. Balkin is superb at presenting sophisticated topics in a straightforward style that is engaging to read. Particularly outstanding is Balkin’s Framework Originalism and the Living Constitution. Whether or not you are entirely persuaded that Balkin’s particular synthesis of originalism and living constitutionalism should  be the framework for constitutional interpretation, Balkin’s description of when, why, and how courts actually decide to enforce or not enforce various parts of the Constitution is very perceptive.

“The Influence of the State and Federal Governments Compared,” from the New York Packet, by James Madison. My essay thereon is here, at Constituting America’s series on The Federalist.

Bottom line: even taking into account the many changes over the last two and quarter centuries, Madison was generally right.

In today’s Supreme Court decision incorporating the Second Amendment against the states, the four justice plurality opinion used the Due Process Clause of the Fourteenth Amendment to justify its ruling rather than the Privileges or Immunities Clause.

As various commentators, including co-blogger Randy Barnett, have pointed out, it is strange that four conservative justices supposedly committed to originalism should take this approach in the face of overwhelming evidence that the Bill of Rights was originally intended to be incorporated under the P or I Clause. It is also strange given their own, especially Justice Scalia’s, longstanding aversion to “substantive due process.”

Why did the plurality make this choice? They cite two reasons – the failure of the petitioners to explain the exact scope of the rights protected by the Privileges or Immunities Clause, and longstanding precedent:

In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, …, but petitioners are unable to identify the Clause’s full scope….. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed… We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

Tellingly, these supposedly originalist justices offer no originalist justification for their conclusion. The precedent argument is at least understandable, though the Court has often been willing to reverse longstanding precedent when it believed that important constitutional rights were at stake. But the vagueness argument is extremely dubious.

It’s true that the petitioners in McDonald failed to provide a precise statement of the rights protected by the Privileges or Immunities Clause. That might be a defensible reason for preferring the Due Process Clause – if the Court’s approach to that Clause were at all clear itself. In reality, of course, the Court’s standard for recognizing rights under the Due Process Clause is notoriously unclear, and open to manipulation. That standard (endorsed once again by today’s plurality) is whether the right in question is “fundamental” to “our scheme of ordered liberty.” You don’t have to be a constitutional law scholar to recognize that judges with different political ideologies and judicial philosophies will have enormous disagreements over the question of which rights are truly “fundamental.” And in fact there are ongoing controversies over whether such rights as abortion, the right to die, various property rights and economic liberties, and a host of other rights are “fundamental” enough to warrant judicial intervention. More than a century of Supreme Court precedent hasn’t even come close to providing us with a clear rule that could settle these issues. To put it mildly, there is very little consensus over the correctness, meaning, and future application of such landmark Due Process Clause decisions as Griswold, Roe v. Wade, Glucksberg, and Lawrence v. Texas. Justice Scalia and other conservatives have repeatedly complained about this vagueness and subjectivity, using it as one of their main arguments against “substantive due process.” It’s possible that a Court applying the Privileges or Immunities Clause wouldn’t fare any better in the search for a clear rule. But it could hardly do worse.

Moreover, at least from the originalist point of view espoused by the conservative justices, using the P or I Clause does in fact promise at least somewhat greater precision than we now have under the “substantive due process” approach. As Justice Thomas points out in his concurring opinion today, there is a great deal of evidence on the original meaning of “privileges or immunities” and scholars from across the political spectrum have reached at least some degree of agreement on these points, as one can see in this amicus brief by Randy Barnett, Jack Balkin and several other prominent constitutional law scholars of differing ideological backgrounds.

Obviously, the precise scope of the rights protected by the P or I Clause could not have been decided in a single Supreme Court opinion. But the same is true of any other important clause of the Constitution, especially one that has been largely neglected for decades. Brown v. Board famously invalidated school segregation under the Equal Protection Clause without even trying to determine the full extent to which that Clause banned racial discrimination by state governments. That issue was understandably left for later litigation. It was therefore unrealistic and possibly disingenuous for the plurality justices to demand that the petitioners provide a comprehensive theory of the rights protected by the P or I Clause.

Co-blogger David Bernstein has long pointed out that many of the conservative justices’ commitment to originalism is questionable outside the realm of various 1960s and 70s “social issues” precedents that they particularly despise. The McDonald plurality’s extremely dismissive approach to originalism and the Privileges or Immunities Clause seems to support David’s point.

Today’s decision is an important victory for the Second Amendment and the right to bear arms. But it is a setback for originalism.

UPDATE: Josh Blackman responds to this post here, arguing that the plurality opinion does not preclude reconsideration of the Privileges or Immunities issue at a future time. I disagree with the view that their rejection of P or I is strictly limited to this case. The plurality opinion’s reasons for not applying the P or I Clause in McDonald — precedent and vagueness — apply just as strongly to any reasonably conceivable future case as to this one.

Josh correctly notes that “vagueness and precedent have not stopped the Supreme Court before. In fact, the Court routinely deals with vagaries in, and routinely overrules long-standing precedents, when they want to.” He suggests that these issues will not be “a major obstacle” to the revival of P or I “if five votes want it.” I agree with this. But the plurality opinion’s reliance on the precedent and vagueness arguments is a strong indication that we are nowhere near having five votes that “want it.” In the meantime, the plurality’s holding will be an important obstacle to P or I claims in the lower courts.

In remarks at this weekend’s annual convention, American Constitution Society executive director Caroline Fredrickson reportedly characterized originalism as a “choking weed,” part of a “noxious brew” of ideology promoted by the Federalist Society.  Was this remark a categorical rejection of originalism, or simply a rejection of those modes of originalism employed by conservatives?  Her reported remarks sound like the former, and yet this interpretation would imply a rejection of many important progressive legal scholars who have taken up the originalist mantle.

Without doubt, originalism is more often associated with conservatives than liberals.  Yet originalism has been championed by libertarians, such as our own Randy Barnett, and progressives, such as Yale’s Jack Balkin and Akhil Amar.  Balkin, who spoke at this year’s ACS conference and co-edited the ACS-sponsored book The Constitution in 2020, has argued on his blog that originalism is for progressives (drawing upon the work of Douglas Kendall of the progressive Constitutional Accountability Center and the University of Virginia’s James Ryan), and much his recent work  (see, e.g., here and here) has sought to make originalism a progressive force in constitutional law.  So the question is whether originalism itself is a “choking weed,” or just when practiced by conservatives.

Note: For a somewhat related post on some of the differences between the Federalist Society and ACS see here.

In his Stop the Beach opinion, Justice Scalia writes, “The first problem with using Substantive Due Process to do the work of the Takings Clause is that we have held it cannot be done.”

But hold on! The Takings Clause does not apply to the states. The Fourteenth Amendment’s Due Process Clause applies to the states. The Supreme Court has held that the rights protected by the Clause include the rights delineated by the Fifth Amendment via “incorporation.”

You can see where this is going. Enforcing the Fifth Amendment’s Takings Clause against the states via the Due Process Clause is literally an exercise in protecting a substantive right through that clause, and therefore is “substantive due process.”

I understand, of course, that in modern constitutional discourse we distinguish between “substantive due process” and the “incorporation doctrine.” But I think this distinction is incoherent, an illogical historical artifact.

Basically, the post-New Deal Justices who wanted to protect some or all of the rights contained in the Bill of Rights against the states needed to blunt criticism that they were emulating their discredited pre-New Deal predecessors. The pre-New Deal Justices had also protected some of those rights–freedom of speech speech, Takings, etc.–via the Due Process Clause, often with no reference to the Bill of Rights. So the post-New Deal Justices and their defenders asserted that the liberty of contract cases and other unenumerated rights cases involved illegitimate “substantive due process,” while cases “incorporating” the rights found in the Bill of Rights against the states did not.

Grounding the Due Process Clause’s substantive protections in the Bill of Rights and avoiding unenumerated rights may constrain judicial activism, but it’s still a quite literal exercise in “substantive due process.” And given precedent going back to the 1870s implicitly acknowledging that the rights protected by the Due Process are not constrained by the Bill of Rights but apply to all arbitrary deprivations of important rights, and precedents from the 1880s holding that the criminal procedure protections of the Bill or Rights are unprotected by the Fourteenth Amendment, it’s not clear why one kind of substantive due process is inherently more legitimate than the other, or why conservatives should privilege nonsense made up by the liberal Vinson and Warren Courts.

Read David Bernstein’s excellent blog post. Unfortunately, because the title of David’s post referred to Bruce Bartlett and not Rand Paul, some seeking a “libertarian” take on this issue may overlook his analysis. To David’s libertarian analysis I would add the following considerations pertaining to the original meaning of the Constitution:

(1) The problem of Jim Crow in the South was a direct product of slavery–indeed it was a deliberate and concerted effort by Southerners to reimpose slavery in everything but name. Slavery was a private as well as a public institution, which is why the Thirteenth Amendment was not limited to state action. As such, even private conduct that amounted to “badges and incidents” of slavery should have been reachable by Section 2 of the Thirteenth Amendment, which empowered Congress to make laws to put that provision into effect. It was under Section 2 that Republicans in Congress passed the first Civil Rights Act of 1866, and the Freedman’s Bureau Act. Whether or not these acts were truly within the original meaning of the Thirteenth Amendment is, of course, a matter of dispute. I think the better analysis of the Thirteenth Amendment was explained by Justice Harlan in his dissenting opinions in the Civil Rights Cases and Plessy v. Ferguson. The opposing view that limited the reach of the Thirteenth Amendment was articulated by President Andrew Johnson — a “War Democrat” — when he vetoed the Civil Rights Act in his highly racist veto message. Because Johnson’s reading of the Thirteenth Amendment has largely prevailed among legal scholars of all stripes, Section 2 of the Thirteenth Amendment is generally overlooked in debates concerning the scope of Congressional power over “private” conduct.

(2) As David mentioned, the South systematically denied free blacks, and whites who wished to deal with them on an equal footing, the (equal) protection of the law. During Reconstruction, Republicans in Congress tried to respond to this with a series of civil rights measures–including measures reaching public accommodations–that were struck down by the Supreme Court. Thereafter, “private” discrimination that existed in public accommodations was enforced by private terrorism from which no one was safe–most particularly no one who owned a business with a fixed location. In the end, (to paraphrase Justice Holmes’s infamous aphorism) 100 years of legal apartheid was enough! — as was 100 years of private violence aimed at blacks and anyone who associated with them publicly. The back of this egregious system of subordination and terrorism needed to be broken — thanks to the leadership of Democratic President Lyndon Johnson and Northern liberal Democrats, with the crucial support of congressional Republicans like Senator Everett Dirkson, and over the vociferous objection of Southern Democrats. Whether or not courts could rectify this system, I believe that Congress was well within its Section 5 powers under the Fourteenth Amendment to compensate for the deeply entrenched lack of equal protection by desegregating all public accommodations. The pity is that, out of respect for its Reconstruction-era precedent, the Supreme Court chose to uphold it as an exercise of its Commerce Clause power rather than either Section 5 or Section 2 of the Thirteenth, although we forget that some of the Warren Court justices protested that Section 5 was the better the basis for the decision.

(3) For these reasons (and others), in addition to those given by David, the prohibition on racial discrimination in public accommodations was amply justified by the original meaning of the Thirteenth and Fourteenth Amendments. But if that is not the case, in light of the fact that slavery was held to be sanctioned by the original Constitution for 80 years (over the objection of abolitionist constitutionalists), and the subordination of blacks continued for another 100 years after the formal abolition of slavery, if any deviation from original meaning is ever justified, it would be justified in interpreting Section 2 of the Thirteenth Amendment, and Section 5 of the Fourteenth Amendment, to reach the racial discrimination banned by the Civil Rights Act of 1964.

There is much more to be said about this than can be said in 2 blog posts. On the one hand, the evidence of original meaning of the Thirteenth and Fourteenth Amendment is complicated. On the other hand, at least some of the academic resistance to these originalist claims stem from a desire to discredit originalism (and libertarianism) on this issue, so it will be delegitimated on other issues having nothing to do with discrimination. Because I am now immersed in grading exams to which I need to return I cannot say any more now. But I am grateful to David for getting the ball rolling, and I wanted to make sure that readers interested in the Rand Paul controversy found David’s post, and might also consider these additional points concerning the original meaning of the Thirteenth and Fourteenth Amendments.

Mike Rappaport updates his original post on the interpretation and construction distinction with this:

What is clear is that the four constructionists emphasize different things, appear to be motivated by different concerns, and describe their positions differently. That is what I meant by saying that the different scholars “had different conceptions of construction.”

Larry [Solum] claims that his conception of construction allows for their conceptions, and it might be true. But Larry’s conception, if I understand it now, is very general. Depending on how one gives content to it, I might even agree with him. He says interpretation is determining meaning and construction is given legal effect to a provision. He even says that when one gives effect to an unambigous provision, one is engaged in (a kind of) construction. Under this view, my approach may be consistent with Larry’s as well. I believe virtually all cases can be decided based on interpretation. And giving effect to these interpretations can be deemed construction. If that is construction, then I have little reason to reject it. Of course, most people think of construction differently.

I do think there are important implications of this discussion. Most importantly, some scholars may see a large number of prominent commentators accepting construction and therefore mistakenly conclude that they are all accepting a common practice or conception. My point here is that the scholars differ in focus and there is no single notion of construction that everyone should feel compelled to accept.

I think Mike misunderstood the discussion we were having in San Diego and, as a result, is now unintentionally confusing matters. As I explained at our debate in New Orleans, all those who think the distinction between interpretation and construction accurately describes two different activities, agree that (1) “interpretation” describes the activity of discovering the semantic meaning of the language of the Constitution in context; and (2) “construction” describes the application of this meaning to particular issues, especially when there the text is too vague to provide a determinate resolution. As Larry Solum wrote in his paper for the San Diego conference: “constitutional vagueness requires construction.” Larry then expanded the term “construction” so it also included the development of legal doctrine to apply perfectly clear textual passages where construction may appear to disappear. So readers can judge for themselves, I include a lengthy and somewhat abstract passage:

Constitutional construction becomes transparent in cases in which the linguistic meaning of the constitutional text is vague. Once we have determined that the semantic content of the constitution is vague and that the case to be decided lies in the penumbra of the rule, constitutional interpretation cannot resolve the case. In such cases, we might say that interpretation makes its exit and construction enters the scene. Characteristically, constitutional construction becomes noticeable in cases in which the constitutional text is vague.

Constitutional construction might also become noticeable in a variety of other contexts. For example, it is at least theoretically possible that constitution contains gaps or contradictions. If two provisions of the constitution had semantic content such that the corresponding legal rules would contradict each other, then construction might resolve the contradiction—perhaps on the basis of an argument from the overall constitutional structure or the purposes that could be attributed to the relevant provisions. Likewise, if there were a constitutional issue on which the constitutional text were silent, then a constitutional construction might fill the gap. Similarly, it is theoretically possible that there are some constitutional ambiguities that cannot be resolved by interpretation: for example, it could be the case that the available evidence about linguistic usage and context is simply not sufficient to reveal the public meaning of the provision. If there are such “residual constitutional ambiguities,” then their resolution would require constitutional construction.

So far, I have been discussing the situations in which constitutional construction is “transparent” or “noticeable.” But constitutional construction also occurs in situations where it is “opaque” or “invisible,” because constitutional interpretation has already done the work. Theoretically, this occurs when constitutional doctrine mirrors the semantic content of the constitutional text. For example, the Constitution provides, “The Senate of the United States shall be composed of two Senators from each state.” Our constitutional practice on this question is settled: the rule of constitutional law corresponds exactly to the linguistic meaning of the written Constitution. In other words, this is a case where the legal content of constitutional doctrine is equivalent to the semantic content of the text. In other cases, the semantic content of the text constrains but does not fully specify the legal content of constitutional doctrine. Once again, Hart’s picture of core and penumbra is helpful: the semantic content determines the core of constitutional doctrine, but other factors determine the shape of doctrines in the penumbra. In both cases, construction is at work, but construction in the core is more or less “automatic” or “mechanical” and hence “opaque” or “invisible.” Construction in the penumbra requires resort to legal principles or considerations of political morality that are outside the constitutional text: hence, construction in the penumbra involves “judgment” or “choice” and hence is “transparent” or “noticeable.”

None of what he said is inconsistent with the distinction as it has previously been accepted about the limits of interpretation, and the need for construction. It merely broadens a bit the conception of construction to better capture all the activities that are necessary to apply the meaning of the text to particular issues. Although there was questioning at the conference about exactly what he was saying about construction during in his oral presentation, it is a little unfair to seize upon these questions at a discussion of works-in-progress to claim that scholars who are now employing the distinction are employing different “notions” of construction. Rather, Larry’s is an effort to refine our understanding of what is happening on the construction side of the line.

Second, Mike still seems to running together two issues: (a) the distinction between interpretation and construction and (b) how exactly construction is to be done. He is absolutely right that scholars who acknowledge the difference between interpretation and construction may differ on their favored methods of interpretation, construction or both. Public meaning originalists may all agree on the method of interpretation (though Rappaport and McGinnis are advocating a new modification of this method, which they call “original methods originalism”). At the same time originalists will predictably differ over how construction should be done to apply original meaning to particular issues [precisely because originalism, the theory of interpretation they hold in common, does not address this issue].

This is not a bug, it is a feature of the distinction, because it highlights what is being agreed upon–how to interpret the text–and what is being disputed–how to apply this meaning to particular issues. Just as we debate methods of constitutional interpretation, we also can debate methods of constitutional construction. So, yes indeed, some originalists have different “notions” of construction, if by this is meant they do not all agree on how construction is to be done. This is far from a secret; I insisted on this possibility in Chapter 5 of my book, Restoring the Lost Constitution: The Presumption of Liberty

But Rappaport (& McGinnis) appear in their writings to be challenging the need to distinguish these two activities, and collapsing construction into interpretation as though they are the same. In actuality, I think they are advancing their own methods of construction to be employed when the linguistic meaning of the text is vague: use the methods of construction in existence at the time the text was adopted–for example, “defer to the legislature.” But I suspect that they want to resist this reformulation of their position because they want to wrap their approach to construction in the mantle of originalist interpretation–to claim that their methods of construction are somehow IN the text itself. So, if the text is authoritative (as originalists claim), so too are their constructive methods.

This is implied by Mike labeling others “constructionists” while excluding himself–as though he and McGinnis are not advocating their own approach to construction that requires normative justification. This would be fine if the text really did incorporate their constructive methods, as it adopted rules of construction in the 9th, 10th, & 11th amendments. I believe the claim that a rule of construction such as, “defer to the legislature,” is implicit in what the Constitution says to be empirically false. No reasonable reader of the Constitution at the time it or its amendments were enacted would find it there. Of course, I cannot rule out the possibility of evidence showing that some such rule was indeed implicit in the meaning of the text itself so that it might be yielded by interpretation. But, in the absence of such evidence, any such rule of construction needs to be normatively defended, wholly apart from whatever normative reasons we have for adhering to the original meaning of the Constitution.

In essence, nonoriginalists who do not want to be bound by the original meaning of the text–or even by the text itself–are really claiming that “everything is construction.” Conversely, Rappaport and McGinnis who do not want to normatively defend their approach to construction want to claim that “everything is interpretation.”

In the end, the distinction between interpretation and construction is only “valid” if it is usefully captures something real about the limits of interpretation and the need for supplementing the meaning conveyed by the text. Mike’s latest round of blog postings shows just how useful and necessary the distinction truly is.

Rob Natelson (U. Montana; Independence Institute) addresses Akhil Amar’s claims that Obamacare is consistent with the original meaning of the Constitution.