Archive | Originalism

Interpretation/Construction Again

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 [...]

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Whence Comes Section One? (Second Notice)

Last week, when I posted a link to my new article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I received several messages telling me that SSRN was inaccessible. Presumably, it is working now, so if you were unable to download it, you should try again. Here is the link, and here is the abstract:

The contribution of abolitionist constitutionalism to the original public meaning of Section One of the Fourteenth Amendment was long obscured by a revisionist history that marginalized abolitionism, the “radical” Republicans, and their effort to establish democracy over Southern terrorism during Reconstruction. As a result, more Americans know about “carpetbaggers” than they do the framers of the Fourteenth Amendment. Although this cloud began to lift with the work of Jacobus tenBroek, Eric Foner, and William Wiecek, knowledge of abolitionist constitutionalism among constitutional scholars was all but snuffed out by the dismissive writings of William Nelson and Robert Cover.

This study provides important evidence of the original public meaning of Section One. All the components of Section One were employed by a wide variety abolitionist lawyers and activists throughout the North. To advance their case against slavery, they needed to appeal to the then-extant public meaning of the terms already in the Constitution. Moreover, their widely-circulated invocations of national citizenship, privileges and immunities, the due process of law, and equal protection made their own contribution to the public meaning in 1866 of the language that became Section One.

The more one reads these forgotten abolitionist writings, the better their arguments look when compared with the opinions of the antebellum Supreme Court. But even if the Taney Court was right and the abolitionists wrong about the original meaning of the Constitution, the Thirteenth and Fourteenth Amendments were enacted to reverse the Court’s rulings.

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Constitutionality of the “Nebraska Compromise”

The original “Nebraska Compromise” (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill is no compromise at all: the requirement that taxpayers in the other 49 states pay the full cost of the extra Medicaid spending that will be necessary in Nebraska because of the Senate bill. “Cornhusker kickback” is the more accurate term for this provision.

Is the Cornhusker kickback constitutional? A recent blog post by University of Montana law professor (and Independence Institute Senior Fellow) Rob Natelson explains the issue for laymen: It’s not an Equal Protection violation, because Equal Protection does not protect states from discrimination. It is a gross violation of the “(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ‘proper’ requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness.” However, at Natelson notes, the Supreme Court has historically been timid about enforcing those provisions of the Constitution, and after 1937 gave up entirely.

But as I have argued elsewhere, the Constitution is more than merely what the Courts say it is. Even when Courts act as if a constitutional provision had never been written, the People can still act to protect constitutional provisions, through the political process, and through public debate. If the people do so in regards to the “Cornhusker kickback,” they will be acting faithfully to the original meaning of the Constitution. For the original meaning, [...]

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New Institute for Justice Economic Liberties Case

The Institute for Justice has recently filed a new case challenging an especially egregious infringement on economic liberties under the Constitution:

A civil liberties law firm has filed suit against the state of Texas on behalf of eight eyebrow-threading entrepreneurs, several of whom are based in San Antonio.

The Institute for Justice, Texas Chapter, is alleging the state government has violated the entrepreneurs’ constitutional rights by requiring them to go through a licensing process that mandates 1,500 hours of instruction at an estimated cost of $20,000…..

Wesley Hottot, lead attorney for the Institute for Justice Texas Chapter, says Texas’ proud heritage as a beacon for entrepreneurship is in danger “when the state tries to regulate every new industry rather than trusting entrepreneurs and consumers.”

Hottot says eyebrow threading is an ancient technique for removing unwanted eyebrow hairs using tightly wound cotton thread. “Threading is a booming industry in Texas because it is cheaper, faster and less painful than waxing,” he says.

But now the TDLR has threatened this small business-based industry by requiring practitioners to obtain what Hottot says are “expensive and irrelevant licenses in Western-style cosmetology.”

“Threading is not mentioned anywhere in state law, yet TDLR expects threaders, some with over 20 years of experience, to immediately stop working and spend $20,000 obtaining up to 1,500 hours of instruction in government-approved beauty schools that do not even teach threading,” Hottot says. “Further, threaders must pass government-approved cosmetology exams that do not test threading.”

Here is a link to an IJ video on the case. Despite the longstanding claim that judicial protection for economic liberties is just “judicial activism,” such protection actually has strong support in the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, and other clauses. The original meaning evidence is discussed at great [...]

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Originalism and the Sixth Amendment Right “to have the Assistance of Counsel”

The briefs filed in McDonald v. City of Chicago have raised a lot of questions here about the role of originalism versus stare decisis in constitutional interpretation. Some have argued that stare decisis must give way to correctness on these issues as a matter of constitutional purity: We should always follow the original public meaning of the constitution, the argument goes, whether we think that interpretation is good policy or bad policy or whetever the reliance interests interrupted by doing so.

Here’s my question for readers who take this view: How do you interpret the Sixth Amendment right “to have the Assistance of Counsel” in criminal prosecutions? The right to Assistance of Counsel was a response to the traditional English common law practice of forbidding defense lawyers in criminal trials. Defense attorneys were banned for fear they would focus the jury on technicalities, not guilt or innocence. The core concept of a criminal trial at common law was that the defendant would be forced to testify without preparation or counsel, and that the jury would be able to distinguish a lying defendant from a truthful one directly without a lawyer getting in the way.

By the time of the framing, the English practice had been changed and criminal defendants were allowed to bring an attorney if they had hired one. The Sixth Amendment then recognized that right as the right to have the Assistance of Counsel. However, my sense is that this was originally understood to mean the same as the English right: It was a right to have a lawyer if you had one, not a constitutional right to have a lawyer provided to you free of charge (and one who had to do a constitutionally effective job). That’s my sense, at least; I am the first to [...]

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Predicting McDonald

Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0-1 votes for her Commerce Clause challenge to the Controlled Substances Act. Instead, in addition to Justice Thomas’s vote, she also received the support of Chief Justice Rehnquist and Justice O’Connor–in a “marijuana case” no less. True, her challenge did fail, as widely predicted, but she definitely beat the spread.

But note that, by Orin’s count, only one Justice is willing to follow the text of the Constitution. According to him, the others will decide the case based on stare decisis–i.e. their own ancient decisions (Scalia), the potentially revolutionary implications of reviving the actual text of the Constitution (Roberts & Alito, the latter of whom gave a speech just last week on the importance of Justices following the actual text as it appears to the naked eye), his personal “style” (Kennedy), and undesirable results (Breyer, Ginsburg, Stevens & Sotomayor). How sad it is that one can implicitly criticize a brief to the Supreme Court of the United States for relying on the text of the Constitution. Although Alan Gura’s brief does stress both original public meaning and original intent, under the relevant precedent Orin thinks the Court will or should (?) follow, the alternative is not that the Privileges or Immunities has a modern meaning but has no meaning whatsoever!

I wonder how Orin would have predicted the grant of cert, which stated the question presented as follows:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities

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How Many Votes To Overrule The Slaughterhouse Cases?

As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause.  The obvious question is, how many Justices will agree?   My guess: only one.  In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote.  Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia  probably won’t agree with the Gura brief in light of stare decisis.  In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years.  If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect.  That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges  (more on that below).  I just don’t think Scalia is going to want to do that.

3) Chief Justice Roberts and Justice Alito.  Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter.  But I don’t [...]

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NRA brief in McDonald v. Chicago

Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court to over-rule Slaughterhouse, Cruikhank, and Presser.

In my view, it’s a superb brief. It’s worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious.

In the brief’s short discussion of Due Process, attorney Alan Gura aptly writes: “A ‘law’ depriving one of life, liberty or property ‘must not have exceeded the limits of legislative power marked by natural and customary rights.'” (quoting Frederick Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L.J. 585, 644-45 (2009).) This is an important point; “substantive due process” may be ill-named, but it is founded on legitimate, originalist doctrine.

Many folks have been wondering why the Gura brief concentrates so heavily on the bolder theory (Privileges or Immunities) rather than the one that courts have used over the last century (Due Process). Here’s the answer: After Heller, the Second Amendment Foundation (SAF) and the National Rifle Association each filed separate lawsuits against the Chicago handgun ban. The cases were consolidated in the Seventh Circuit; after the panel ruled, SAF and NRA each filed separate petitions for certiorari. The Supreme Court granted cert. in the SAF case, McDonald v. Chicago. A few weeks later, the Court added NRA to the case as a party. So NRA is now a “Respondent in Support of Petitioners.” The suburb of [...]

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Georgetown Panel on McDonald & the Privileges or Immunities Clause:

As many readers probably know, McDonald v. Chicago involves a constitutional challenge to the Chicago handgun ban, which raises the issue of whether the individual right to keep and bear arms, which was recognized by the Supreme Court in DC v. Heller also applies to the states. Somewhat amazingly, the Court announced that this was the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

This indicates that the meaning of the long-ignored Privileges or Immunities Clause is now in play, and that the Court wants to squarely address this constitutional question, as Justice Thomas has long been urging it to do. Rarely do constitutional law cases involve the isolated issue of the original meaning of the text. Heller is one such case; McDonald could be another. Is it really possible that the court will restore not one, but two clauses of the Lost Constitution?

Next Friday, November 13th, from 12:30-2:30pm, the Georgetown Law Journal will be hosting a program entitled, “A Vain and Idle Enactment: Could McDonald v. Chicago Un-Slaughter the Privileges or Immunities Clause?” The discussants are Georgetown Law graduate Alan Gura, who argued and won the Heller case and is Lead Counsel who will argue McDonald, Kurt Lash, James P. Bradley Chair of Constitutional Law, Loyola Law School (and who has recently accepted an appointment to the University of Illinois faculty), David Gans of the Constitutional Accountability Center, and me. I am coauthoring an amicus brief on the Privileges or Immunities Clause for the CAC.

The program is free and open to the public. Details are here.

UPDATE: Webcast will be available here: [...]

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The State of Constitutional Theory on the Left and the Right

Participating in the Constitution in 2020 conference at Yale this weekend gave me a chance to consider the state of constitutional theory on the left. The contributors to the Constitution in 2020 book and many of the participants in the conference are well-known liberal constitutional scholars. My dominant impression is that there is a great deal of consensus among left of center con law scholars about which way most important cases should come out, but much less agreement about why. If you look at the big constitutional issues facing the Supreme Court – federalism, property rights, criminal defendants’ rights, the death penalty, executive power in wartime, abortion, campaign finance – there is very little disagreement among liberal scholars about the question of what the Court should do; though there is some divergence about how fast the courts should go in getting from here to there.

On the other hand, there is a great deal of debate about the theoretical reasons justifying these preferred results. Big-name liberal constitutional law scholars range from originalists like Akhil Amar, to Bruce Ackerman’s “constitutional moment” approach, to “living Constitution” theories of various types (e.g. – Laurence Tribe), to representation-reinforcement theories (e.g. – the late John Hart Ely and those who have build on his ideas), to “judicial minimalism” (Cass Sunstein), and several other theories I won’t go through here. The Constitution in 2020 book and conference largely sidestepped these theoretical debates by focusing on preferred outcomes in particular issue areas. As Paul Kahn (a participant in the conference, but not a contributor to the book) put it, the Constitution in 2020 project seems to call for “less talk and more action.”

The state of affairs on the right is almost exactly the reverse of that on the left. With rare exceptions, most conservative and libertarian [...]

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