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More Notes on the Historians' Brief

In my previous post I highlighted three weaknesses in the new historians' brief about national injunctions. Here I want to interact with some of the more specific claims and evidence. If the previous post was more in the nature of a forest, be warned that this one is all trees.

1. The historians' brief rightly focuses on the bill of peace as the single best historical analogy for the national injunction. That is a point I conceded in Multiple Chancellors, while also arguing that the analogy was not close. In particular, the historians' brief (a) downplays the evidence in work by Steve Yeazell and Bob Bone that the parties and non-parties who could jointly benefit from a bill of peace were a preexisting cohesive social unit like a group of parishioners (neither Yeazell nor Bone is cited); (b) ignores the conceptual development of the bill of peace for municipal taxpayers out of that theory of a preexisting cohesive social unit; (c) relies on late nineteenth-century extensions of the theory to state taxpayers in some states, extensions that were long after the Founding and were controversial; and (d) fails to recognize the import of their quotation from Smith v. Swormstedt on p. 10 that emphasizes that a suit for a bill of peace might be symmetrical its effect, with the whole group winning or the whole group losing—just as with a class action, but unlike a suit for a national injunction. They give no evidence that the bill of peace at the time of the Founding bore any marked resemblance to the national injunction.

In this same section on the bill of peace, the older English precedents adduced in the historians' brief are easily distinguishable. For example, the Guernsey suit seems close to the representative suit on behalf of the entire Cherokee Nation, it was in Privy Council not Chancery, and an Order in Council was not an in personam decree (p. 317 here). The remedy in the City of London suit seems squarely focused on the parties themselves and no one else: "it was ORDERED and ADJUDGED . . . that the respondents should severally account with and pay to the appellants the said duty of eight-pence per ton for all such cheese as has been imported by the respondents respectively into the port of London" (p. 1527).

In short, as I said in Multiple Chancellors, "A bill of peace with multiple plaintiffs who represented the whole set of possible plaintiffs — some tenants representing all of the tenants, or some parishioners representing all of the parishioners — is probably the closest analogy in traditional equity to the national injunction. The analogy is not close."

2. The historians' brief points to injunctions to abate nuisances. I will concede that I have not researched the subject. But the evidence offered is not compelling. In Corning, Justice Kent emphasized the "special grievance to the plaintiffs," and that "[t]he obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs" (6 Johns. Ch. 439, 439). The U.S. Supreme Court expressly followed this principle in Alexandria Canal Co., requiring a plaintiff who sought the intervention of equity to "aver[] and prove[] some special injury" (37 U.S. at 99). This is a far cry from a national injunction in which the claimed injury is like everyone else's injury.

Moreover, I have never argued that a proper injunction cannot have an effect on non-parties. If an individual plaintiff sues a municipal water utility for failure to provide safe drinking water, and the court issues a mandatory injunction requiring the utility to make the water flowing through the pipe into the plaintiff's home safe for drinking, the utility is almost certain to have to give safe drinking water to many other homeowners. If a plaintiff were to prevail in a suit alleging that state electoral districts were a partisan gerrymander in violation of her rights as a member of a certain political party, an injunction might require the state to remedy the partisan gerrymander to protect her rights—with the side benefit of removing the gerrymander for all of her co-partisans. (This claim was rejected in Gill, however.) Similarly, in public nuisance cases, a plaintiff-protective injunction will in effect extend to others. But that is a by-product of an injunction that protects the plaintiff. And that is a crucial difference.

3. The historians' brief tries to make an a fortiori argument that if equity would enjoin non-parties, it can also protect non-parties. But this a non sequitur. Equity will enjoin non-parties to avoid circumvention of its injunction against parties—the familiar "in concert" branch of injunctions. But when equity went beyond this, as with the anti-labor injunctions the historians' brief adduces in support, its excesses have been rightly repudiated by Congress, by the courts, and by legal scholars. (The lengthy discussion of the excesses of anti-labor injunctions brings to mind Jonathan Swift's satirization of precedent.)

4. The historians' brief offers a case that it describes as a New Deal example of "the functional equivalent of nationwide injunctions in officer suits" (22), namely Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935). I was skeptical, given two things. One is the intense interest in New Deal injunctions in the Attorney General's report in the late 1930s and in Justice Jackson's book (as discussed in Multiple Chancellors)—it would be surprising for there to be unremarked-upon national injunctions. But the other point is that nothing quoted by the historians' brief actually indicates a national injunction. When plaintiffs ask for an injunction against an act's enforcement (22), that could mean enforcement against them or against anyone. (This ambiguity is discussed in Multiple Chancellors at 433-434 and n.87.) And though I have not consulted the record yet for this case, a record citation in the petitioners' brief in the Supreme Court strongly suggests the injunction was plaintiff-protective: "The final decree entered in the court below declared the Railroad Retirement Act unconstitutional and permanently enjoined petitioners from making any order or taking any other action designed to compel respondents to comply with the Act (R. 279)." Brief for Petitioners, R.R. Retirement Bd. v. The Alton R. Co., 1934 WL 32082 (U.S.).

5. The historians argue that there were other reasons, not equitable principles, that "no modern-style nationwide injunctions issued" in the early Republic (6). I discussed several of those reasons in my prior post. Another reason they give is that "very few federal laws were held unconstitutional in the 18th and 19th centuries" (6-7). That is true for the antebellum United States. There were two before the Civil War. But there were another quite a few more federal laws held unconstitutional by the U.S. Supreme Court before the end of the nineteenth century. So we're not dealing with a null set.

6. After the historians conclude their historical argument, they turn to normative conclusions that depend on one's view of equity and its continuing scope in federal law. At this point I have some sympathy with the historians' brief, and its rejection of a completely frozen, static equity. In a forthcoming piece, Equity: Notes on the American Reception, I discuss the importance of preserving equity's nimbleness and capacity for "nice adjustment." Nevertheless, the historians' brief recognizes very little if anything that is constraining about the traditional principles of equity. The position of the historians' brief, which emphasizes equity's supplying what is lacking with respect to justice in the law, and doing so in a way that can "adapt to the needs of a changing society" (23), does sound an important theme about equity. But it is incomplete without a strong sense of equity's limiting principles. The limiting principles of equity are what give legitimacy to its empowering principles. (This is discussed, for example, in my recent amicus brief about the unclean hands defense in Merck v. Gilead Sciences.) Moreover—and this point is decisive as a doctrinal matter—the position of the historians' brief about the meaning of equity under Article III is essentially identical to the position of Justice Ginsburg in Grupo Mexicano, a position that a majority of the Court emphatically rejected.

7. The brief also makes a wholly unpersuasive argument that Congress has acquiesced in the establishment of national injunctions: "Congress's decision not to limit courts' ability to issue nationwide injunctions is persuasive evidence that Congress approves of their use" (26). This genre of argument is troubled, but setting aside abstract difficulties of reading congressional silence, only in the last four years has the national injunction become nationally significant, last year the House Judiciary Committee held hearings on this very question, earlier this year concern about this point was raised in a hearing of the Senate Judiciary Committee, and just weeks ago the House Judiciary Committee reported out a bill that would eliminate national injunctions—the Injunctive Clarification Act of 2018. What an unusual way to acquiesce!

8. The brief argues that a conclusion against national injunctions on the basis of Article III would be "awesome," in the sense of so marvelous as to inspire awe, because it "would forever constrain Congress' power" (26). But that is exactly the basis the Court invoked in Frothingham and Grupo Mexicano. One might agree with those decisions, or one might oppose them. But if one agrees with them, there is nothing spectacular about following the argument to its logical conclusion: if a particular equitable remedy lies outside the judicial power, then it cannot be constitutionally given by the federal courts. This is as true of the national injunction (Frothingham) as of the Mareva injunction (Grupo Mexicano).

9. Contra the historians' brief, there is no "longstanding practice" (26) and "practice . . . long established" (28) of national injunctions. They are a relative newcomer on the federal scene. Whenever exactly the first one was given, as discussed in Multiple Chancellors, national injunctions seem to have been an accidental development. They remained controversial (this can be seen in the Fourth and Ninth Circuit cases in the 1980s through the 2000s). And only when partisan passions have run high, and Republican and Democratic state attorneys general have started deploying this weapon, have they become a widely sought and granted remedy. That development has occurred within the last four years. As recently as the first term of President Obama, when the states sued to challenge the individual mandate under the Affordable Care Act, there was no request for a national injunction. Now, by contrast, it would be shocking if a set of state attorneys general suing to invalidate a federal law did not ask for a national injunction. The entire debate about non-acquiescence in the 1980s would never have happened if there had been a longstanding practice of national injunctions.

There are reasonable arguments for national injunctions, especially an argument about compensating adjustments for executive power. That argument deserves a hearing. I think it is wrong. An excess of executive power should not be matched by an excess of judicial power. Other tools, like the major questions doctrine, would be better adjustments than the national injunction. But whatever one thinks about arguments like that one, it is not a remotely plausible argument for the national injunction that it is a "longstanding practice" that courts should hesitate to disrupt.

10. The historians' brief recognizes that "all good accounts of history are interpretive" (27). I agree. It says "[t]he problem is especially acute for the history of American equity which is understudied and underwritten" (27). Again I agree. Equity is a vast and important subject, a missing piece for analysis of many fields in public and private law, and there are enormous possibilities for scholars who work in this field.

National Injunctions: Historians Enter the Lists

A major new brief in the Seventh Circuit sanctuary city case

A major new brief on national injunctions was filed two days ago in the Seventh Circuit sanctuary city case. (My analysis of the district court's first opinion in the case is here, of its second opinion here, and of the appellate panel's opinion here.) The authors are an all-star cast of legal historians and historians of the early Republic from Stanford, Princeton, and Columbia: Amalia Kessler, Bob Gordon, Bernie Meyler, Gregory Ablavsky, Stanley Katz, Hendrik Hartog, and Kellen Funk. These historians have written some of the leading scholarship on American equity (e.g., Kessler on inquisitorial procedure, Katz on colonial equity, Funk on fusion in the Field Code).

Their brief argues in favor of national injunctions. In this post I will highlight three key weaknesses in the historians' argument. In a follow-up post I'll comment on other specific claims and evidence in the brief.

First, the case that the historians identify as their best case does not support a national injunction. The historians' brief presents Cherokee Nation v. Georgia, 30 U.S. 1 (1831) as the single best case from the early Republic for establishing this proposition: "Courts of equity could also issue injunctions against government officials, and by doing so, functionally restrain the actions of governments at the municipal, state, and federal levels" (6). They note that the Court "dismissed the case for lack of jurisdiction," but they describe Story's position in the dissent he joined as aligning with national injunctions: he "would have entered an injunction enjoining the State of Georgia and all of its officers and agents from enforcing any Georgia laws in Cherokee territory against anyone" (6; see also 15).

The claim is bold, but there are two problems with it. First, the Court dismissed the case for lack of jurisdiction—not just lack of original jurisdiction, but also lack of equitable jurisdiction. The Court admitted it might decide "the mere question of right," i.e., title, "in a proper case with proper parties." But instead "[t]he bill requires us to control the legislature of Georgia, and to restrain its exertion of physical force" (30 U.S. at 20). In other words, Chief Justice Marshall was saying "maybe at law, but not in equity." Second, the plaintiff in the case was not an individual Cherokee who was seeking an injunction against the state and all its officers that would keep them from, in the words of the historians' brief, "enforcing any Georgia laws in Cherokee territory against anyone." The plaintiff was the Cherokee Nation. And it was suing as a foreign state defending its territory. The Court did not accept the theory of the Cherokee Nation on this point, but if it had, as the dissent by Justice Thompson did, then the requested injunction would have been plaintiff-protective. It would not have been analogous to a national injunction.

Second, the historians' brief does not address the strong evidence that equitable principles precluded a national injunction. They argue that federal courts failed to grant national injunctions for reasons grounded in "sovereign immunity, jurisdiction, and venue—not the nature of the federal courts' equity powers" (7). It is true there were such limits. Yet they were not insurmountable. (In Multiple Chancellors, page 428, note 40, I list a set of cases in which sovereign immunity could have been avoided.)

But here it is important to look to the evidence that the U.S. Supreme Court thought equitable principles allowed only plaintiff-protective injunctions against states. In Multiple Chancellors I discuss Georgia v. Atkins and Scott v. Donald, state cases in which the various limits mentioned in the historians' brief would not apply. The Court insisted on plaintiff-protective injunctions as a matter of the principles of "a court of equity" (quoting Scott, which is the case that shows this point most clearly). So I agree with the historians' brief that the other limitations were there. But they lack affirmative evidence that there was no background equitable principle of plaintiff-protective injunctions, and the evidence adduced in Multiple Chancellors shows that there was. The historians' brief does not cite or discuss Atkins and Scott.

Furthermore, the historians' brief entirely fails to cite or discuss Frothingham. The brief suggests that "[t]he difficulty and expense of maintaining a lawsuit in Washington, D.C., deterred plaintiffs from seeking nationwide injunctions when injunctions against local federal officials would achieve adequate results" (22). And yet Frothingham is a striking counter-example. And it was decided by the Court specifically on the intertwined grounds of Article III and equitable principles. It is the central federal case showing that equitable principles leave no room for national injunctions. This is a glaring omission.

Third, it is rather astonishing that the historians' brief defends the national injunction by likening it to the fin de siècle anti-labor injunctions (6, 16-18) and to structural injunctions (24). The former are widely discredited and were expressly rejected by Congress; the latter have been a subject of controversy for fifty years. Whatever view one takes as to the anti-labor and structural injunctions, their weak point is their lack of basis in traditional equity. This is not their strength. I do not think it is much reassurance to say that national injunctions are traditional in equity just like the anti-labor and structural injunctions.

In short, the evidence adduced by the historians' brief does not support the national injunction (e.g., Cherokee Nation), the brief fails to confront the evidence that national injunctions were inconsistent with equitable principles (e.g., Atkins, Scott, Frothingham), and it tries to salvage the national injunction by analogizing it to anti-labor and structural injunctions. Nevertheless, the brief does focus attention on the right questions—especially the question of whether the national injunction can find a basis in traditional equity. It is a welcome addition to this important debate.

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American Civil Liberties Union, RIP

The ACLU no longer even pretends to believe in civil liberties.

In the late 1960s, the ACLU was a small but powerful liberal organization devoted to a civil libertarian agenda composed primarily of devotion to freedom of speech, free exercise of religion, and the rights of accused criminals. In the early 1970s, the ACLU's membership rose from around 70,000 to almost 300,000. Many new members were attracted by the organization's opposition to the Vietnam War and its high-profile battles with President Nixon, but such members were not committed to the ACLU's broader civil libertarian agenda. However, the organization's defense of the KKK's right to march in Skokie, Illinois, in the late 1970s weeded out some of these fair-weather supporters and attracted some new free speech devotees. But George H. W. Bush's criticisms of the ACLU during the 1988 presidential campaign again attracted many liberal members not especially devoted to civil liberties.

To maintain its large membership base, the ACLU recruited new members by directing mass mailings to mailing lists rented from a broad range of liberal groups. The result of the shift of the ACLU to a mass membership organization was that it gradually transformed itself from a civil libertarian organization into a liberal organization with an interest in civil liberties. This problem was exacerbated by the growth within the ACLU of autonomous, liberal, special interest cliques known as "projects." These projects have included an AIDS Project, a Capital Punishment Project, a Children's Rights Project, an Immigrants' Rights Project, a Lesbian and Gay Project, a National Prison Project, a Women's Rights Project, a Civil Liberties in the Workplace Project, a Privacy and Technology Project, and an Arts Censorship Project. This loss of focus led Harvard Law School Professor Alan Dershowitz to waggishly suggest that "perhaps the Civil Liberties Union needs a civil liberties project."

Since the George W. Bush administration, the ACLU's dedication to its traditional civil libertarian mission has waned ever further. With the election of Donald Trump, its membership rolls have grown to almost two million, almost all of them liberal politically, few of whom are devoted to civil liberties as such. Meanwhile, the left in general has become less interested in, and in some cases opposed to, freedom of speech, freedom of religion, and the rights of the accused.

Future historians will have to reconstruct exactly how and why the tipping point has been reached, but the ACLU's actions over the last couple of months show that the ACLU is no longer a civil libertarian organization in any meaningful sense, but just another left-wing pressure group, albeit one with a civil libertarian history.

First, the ACLU ran an anti-Brett Kavanaugh video ad that relied entirely on something that no committed civil libertarian would countenance, guilt by association. And not just guilt by association, but guilt by association with individuals that Kavanaugh wasn't actually associated with in any way, except that they were all men who like Kavanaugh had been accused of serious sexual misconduct. The literal point of the ad is that Bill Clinton, Harvey Weinstein, and Bill Cosby were accused of sexual misconduct, they denied it but were actually guilty; therefore, Brett Kavanaugh, also having been accused of sexual misconduct, and also having denied it, is likely guilty too.

Can you imagine back in the 1950s the ACLU running an ad with the theme, "Earl Warren has been accused of being a Communist. He denies it. But Alger Hiss and and Julius Rosenberg were also accused of being Communists, they denied it, but they were lying. So Earl Warren is likely lying, too?"

Meanwhile, yesterday, the Department of Education released a proposed new Title IX regulation that provides for due process rights for accused students that had been prohibited by Obama-era guidance. Shockingly, even to those of us who have followed the ACLU's long, slow decline, the ACLU tweeted in reponse that the proposed regulation "promotes an unfair process, inappropriately favoring the accused." Even longtime ACLU critics are choking on the ACLU, of all organizations, claiming that due proess protections "inappropriately favor the accuse."

The ACLU had a clear choice between the identitarian politics of the feminist hard left, and retaining some semblance of its traditional commitment to fair process. It chose the former. And that along with the Kavanaugh ad signals the final end of the ACLU as we knew it. RIP.

What Constitutional Lawyers can Learn from Spiderman

Constitutional law could be improved by taking account of the principle that "with great power, comes great responsibility."

Spiderman.Spiderman.

Stan Lee, the co-creator of Spiderman, passed away earlier this week. Spiderman is famous for his efforts to live up to his Uncle Ben's principle that "with great power comes great responsibility." The more power you have, the more important it is to take care that it be wielded justly and responsibly. Call it the Spiderman Rule: far from granting a special immunity from constraint, great power comes with heightened obligations.

This idea may seem like just basic common sense. Unfortunately, it is not sufficiently appreciated in the realm of constitutional law. All too often, courts adopt legal doctrines that enact the exact opposite of the Spiderman Rule: great power confers special immunity from judicial scrutiny normally used to protect individual rights and enforce structural limitations on authority. And all too many lawyers and constitutional theorists applaud such decisions. We would do better to take to heart the wisdom Spiderman got from Uncle Ben.

The fields of constitutional law that could most obviously benefit from greater fealty to the Spiderman Rule are immigration and national security law. Too often, judges accept claims that the president's or Congress' seemingly broad powers in these fields justify minimizing judicial review of policies that violate constitutional rights. For example, in the recent travel ban case, the Supreme Court cited deference to broad presidential power over immigration as a justification for upholding a policy that, in any other context, would be struck down due to extensive evidence of unconstitutional discriminatory motives (President Trump's promise to adopt a "Muslim ban," which he repeatedly linked to the travel ban order).The Court chose to minimize the significance of this evidence because presidential power over immigration deserves special deference, which leaves room for no more than minimal "rational basis" scrutiny of the government's actions.

This was just the latest in a long line of cases where courts have cited deference to broad government power as a justification for minimizing scrutiny of violations of constitutional rights in the immigration and national security spheres. Such deference has led the courts to uphold numerous cruel and massively harmful violations of constitutional rights. These tragic experiences might have been avoided had courts instead recognized that the breadth of government power in these areas actually makes it more necessary to ensure that the government respects constitutional rights when wielding its authority. The whole point of the Bill of Rights (and other constitutional rights), is to impose constraints on the use of government power - especially in situations where that power is otherwise very broad, and therefore particularly dangerous.

Sometimes, judicial deference to the government is defended by appeals to expertise. It is often claimed that the executive and legislative branches have special expertise on immigration and national security policy that judges cannot match. Thus, the latter should defer to the former and not subject their policies to more than minimal scrutiny.

The Spiderman Rule is relevant here, as well. To the extent that the executive or the legislature really does have specialized expertise, it is all the more important to ensure that their knowledge is being used for constitutionally legitimate purposes, rather than as a pretext to justify violations of constitutional rights. Knowledge, at least when used design coercive policies, is itself a kind of power.

In the travel ban case, the Supreme Court majority justified its deferential posture partly on the basis of the administration's claims that the ban was based on an extensive worldwide study of potential security risks. Administration lawyers claimed that the study developed objective criteria that the president then adopted. In reality, the supposedly "extensive" study was nothing of the kind, and the Administration did not consistently apply the study's "information-sharing" criteria for determining which nations should be subject to the ban. The appeal to expertise was in fact a smokescreen for the president's true purposes.

The more specialized knowledge and expertise the government has, the easier it should be for them to provide evidence showing their policies have constitutionally legitimate purposes, even without any special judicial deference. That, of course, is true in cases where the government really is using expertise to pursue a legitimate objective. If the expertise is being used to whitewash what would otherwise be easily recognized as an unconstitutional policy, then that expertise becomes pernicious rather than beneficial, much like any other special ability misused for bad ends. It is as if Spiderman started to use his specialized knowledge and power to harm innocent people rather than protect them.

At the very least, before accepting the government's assertion that a seemingly unconstitutional policy is the result of specialized expertise, courts should demand proof that the policy really is based on application of expertise used to advance the public interest, as opposed to using that expertise as window-dressing for other purposes. For example, specialized expertise on national security policy is irrelevant in a case where national security is not the true motive for the policy in question.

Special judicial deference on immigration and national security policy are primarily championed by the political right. But there are areas of constitutional law where it is the left that most often neglects the Spiderman Rule. For example, modern Supreme Court precedent holds that Congress' power to regulate interstate commerce is so broad that it extends to virtually any "economic activity" so long as it "substantially affects" interstate commerce. On top of that, courts defer to the government's assertions that such a substantial effect actually exists so long as there is a minimal "rational basis" for the claim. This leads to rulings like Gonzales v. Raich (2005), where the Supreme Court held that potential effects on interstate commerce were enough to uphold a federal ban on the possession of medical marijuana that had never crossed state lines or been sold in any market.

In Kelo v. City of New London, the Supreme Court ruled that the Fifth Amendment's requirement that government can only take private property for a "public use" is satisfied by virtually any potential "public benefit." It then also ruled that the courts should defer to the government's claim that such benefits exist, and not require proof that they will actually materialize.

Both Raich and Kelo were championed primarily by liberal Supreme Court justices (though the latter was opposed by many liberals outside the Court). These rulings - and others like them - relied on the notion that the government has specialized knowledge of the effect of regulation on interstate commerce and the effect of takings on local economies. But, as with the travel ban case, it is far from clear that objective application of expertise on such matters really was the true impetus behind the policies in question. In Kelo, it is likely that they relevant decision-makers never had much in the way of specialized knowledge in the first place (or, at least, were not very good at using such knowledge as they did have). The development project for which numerous homes were seized was badly designed from the start, and nothing was ever actually built on the condemned property. Today, thirteen years after the Supreme Court approved the takings in a decision citing the City's "carefully considered" development plan, the property is occupiedly only by feral cats. A Court cognizant of the Spiderman Rule might have prevented this tragedy.

The Spiderman Rule does not justify strict judicial scrutiny of every challenged government policy. Many policies simply do not plausibly threaten constitutional rights or breach structural limitations on government power. In such cases, it may not matter whether the government has a good justification for the policy or not, or whether it has used its expertise properly. Alternatively, judicial deference can be justified on the theory that the victims of the policy in question have no relevant constitutional rights (even if other people do), or at least none that have great significance. For example, the travel ban ruling can be defended on the theory that the Bill of Rights does not protect potential immigrants located outside the United States (I criticized such reasoning here). Kelo may be justified if you believe (as some legal theorists still do) that property rights and other "economic" rights have little importance and do not deserve more than minimal judicial protection.

But the Spiderman Rule does have bite in situations where the government tries to evade normal scrutiny of possible violations of the Constitution by claiming it has broad power over the relevant issue or that it deserves deference because of its specialized expertise. The more power and expertise the government has, the greater the risk of abuse, and the more need to ensure it stays within constitutional bounds. As Thomas Jefferson put it, "[i]n questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." Jefferson wasn't quite as pithy as Spiderman's Uncle Ben. But the two hit upon the same important idea!

Short Circuit: A Roundup of Recent Federal Court Decisions

Civil disgorgement, mild chastisement, and a Third Amendment.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the podcast: guns, peons, gag orders, and fossils. Click here for iTunes.

  • Are we finally going to get some unlawful quartering law? Nope, the "Third Amendment" in this case refers to the agreement forcing Fannie Mae and Freddie Mac to give all of their profits to the feds in exchange for keeping them solvent during the 2008 financial crisis. Fannie and Freddie investors: Really seems like we shouldn't still be surrendering all of our dividends. Well, it's legal, says the Third Circuit.
  • Winchester, Va. police believe man is sexually abusing minors; they get a warrant and arrest him. Then they get another warrant to search his cell phone; the search turns up damning evidence. But wait! The application to search the phone didn't link the phone to the abuse, so maybe there wasn't probable cause to search the phone? Fourth Circuit: The detective knew more than he put in the warrant application, so he reasonably believed there was probable cause (even if there wasn't and the warrant itself was unconstitutional). No need to suppress the evidence that led to a 30-year sentence for producing child porn.
  • Woman sells a little over a gram of heroin to a confidential informant, pleads guilty to distribution. She's deemed a career offender and sentenced to 14 years in the slammer. Too much? Nah, that's fine, says the Sixth Circuit. Judge Stranch, concurring: If she hadn't been deemed a career offender, she would have been sentenced to less than two years. And she's a nonviolent offender with a wealth of mitigation material. This is pretty troubling, but I reluctantly agree our precedent requires the result.
  • Two fraudsters are ordered, via civil suit (brought by the gov't), to disgorge their ill-gotten gains. They are also, via criminal prosecution (brought by the gov't), sentenced to additional time for stealing lots of money. Double jeopardy? The Sixth Circuit is the sixth circuit to say no.
  • Illinois court clerk's office releases filings only after they've been processed, not immediately upon receipt. Courthouse News Service challenges policy as a First Amendment violation. Seventh Circuit: Um … that's the way we do it, too. In any event, federal courts don't need to be telling state courts how to manage their paperwork, so we abstain (and create a circuit split with the Ninth Circuit).
  • Allegation: Prisoner at Galesburg, Ill. correctional facility with a history of filing grievances is warned that if he keeps it up, guards will retaliate against him. Prisoner files a grievance about the threat of retaliation … leading to the promised retaliation (in the form of a beating and an extended stay in restricted confinement). Seventh Circuit: There's enough in these allegations for this to go to a jury; the trial court was wrong to dismiss the case.
  • When a court provides the name of one of the parties' lawyers in the first paragraph of its opinion, you know that poor soul is in for a benchslap. So it is with this Seventh Circuit opinion, affirming sanctions against an attorney who argued that his client—an alleged copyright infringer—was entitled to attorney's fees as a prevailing party despite having paid $7,000 to settle the lawsuit against it. (Counsel for the copyright owner also gets mildly chastised in footnote 2 but fortunately is allowed to remain anonymous.)
  • Drunk driver is taken to jail after car accident. He can't follow simple instructions, answer basic questions, or even stand without assistance. One officer has never seen anyone in such bad shape. But rather than get medical help, Hot Spring County, Ark. booking officer just locks him up. Driver dies that night of heart failure. Eighth Circuit: No qualified immunity for that. A jury could find that the booking officer was deliberately indifferent. (But her supervisor is off the hook. No jurisdiction to decide about the county.)
  • After man's wife dies, Kingman, Kan. authorities "secure" his home for hours as a crime scene despite having no reason to suspect a crime has been committed, even forcing the man to urinate outside. May authorities then lawfully search the home after the man allows an officer to go in to retrieve his medication? Tenth Circuit: No (and, come on, let the guy use the bathroom).
  • The Northern District of Texas holds that a Dallas officer who shot the plaintiff isn't automatically liable for excessive force just because the officer pleaded guilty to the state-law crime of recklessly discharging a firearm in connection with the same incident. (Click here for local news coverage and dashcam footage.) (Via Police4aqi blog.)
  • Officers who "essentially laid siege" to a Fort Myers, Fla. apartment in the guise of a "knock-and-talk" interaction come in for some criticism (and suppression of evidence) in the Middle District of Florida. (Via Brad Heath.)
  • And in en banc news, the Ninth Circuit (over a dissent) will not revisit its 2016 decision rejecting a class action of indigent minor immigrants seeking gov't-appointed counsel (they must first traverse the administrative process). The Ninth Circuit will, however, reexamine its decision granting qualified immunity to an officer who shot a fleeing suspect in the back. Meanwhile, the Fifth Circuit will reconsider its ruling that the structure of the Federal Housing Finance Authority is unconstitutional (but that the agency is still entitled to all of Fannie Mae's and Freddie Mac's profits). (We discussed the FHFA's structure on the podcast.)

Occupational licensing laws don't just burden aspiring workers. They also impose real costs on the wider economy—nearly 2 million jobs and billions of dollars lost at the national level each year. This according to a spanking new Institute for Justice report titled At What Cost? State and National Estimates of the Economic Costs of Occupational Licensing. The product of a partnership between IJ, Dr. Morris Kleiner, the nation's foremost expert on licensing, and economist Dr. Evgeny Vorotnikov, the report takes advantage of a uniquely large dataset to offer the first state-level estimates of licensing's economic costs for a majority of states, as well as new national estimates. It also confirms earlier research demonstrating licensing's considerable growth since the 1950s. Read the report and watch a video about licensing's costs here.

Federalist Society Panel on Compelled Speech

I'll be on what I hope will be a very interesting panel this afternoon starting 3 pm Eastern time, at the Federalist Society Lawyer's Division conference, together with Prof. Amanda Shanor (Wharton), Prof. Mark Rienzi (Catholic University), and our moderator Judge Sandra Segal Ikuta (9th Cir.). Here is the brief summary, though of course we'll get into much more detail; hope you check it out, either live or afterwards:

When can the government require you to speak, or to host speech on your property, or to pay for speech you dislike? Three of the Court's 2018 cases—the Masterpiece Cakeshop wedding cake/same-sex wedding case, the Janus union dues case, and the National Institute of Family and Life Advocates pregnancy crisis center case—all involved this question. So do many other matters that are in the news: For instance, the controversy over whether people can be required to use particular pronouns to refer to others is in large measure a controversy about compelled speech. But the law in this area is surprisingly complicated, ambiguous, and unsettled. This panel will consider what the law is, and what the law ought to be.I

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Reforming Environmental Policy: Zycher's Proposal and My Response

A discussion on how to reform federal environmental policy.

Environmental protection is important, but there's a strong argument that the nation's environmental laws and regulations are in need of reform. Over at the Law & Liberty Forum, the American Enterprise Institute's Benjamin Zycher makes the case for reforming environmental policy. Zycher's essay begins:

Environmental protection can be an important government function, in particular because private incentives, as reflected in market prices, often do not capture the full social value of environmental quality, or perhaps more precisely, changes in that quality. In the standard analytic framework, private actors cannot capture the value of environmental improvements, or do not bear the full costs of environmental degradation, unless "transaction" (negotiating) costs are zero, so that resulting environmental quality is lower than the optimal level.

At the same time, the political incentives shaping environmental policies and their implementation are hardly immune from various kinds of distortions, the upshot of which is promulgation of environmental policies that might be too stringent, insufficient, or counterproductive. Given that such policies have the effect of transferring wealth among interest groups, economic sectors, and geographic regions, it is not difficult to predict that the complex congressional bargaining process yielding actual policies might fail systematically to result in "optimal" outcomes, particularly given the shifting nature of majority coalitions.

After diagnosing the failures of contemporary environmental policy, Zycher suggests two possible reforms: modifying the National Environmental Policy Act and abandoning Chevron deference.

In my reply, I endorse much of Zycher's critique of contemporary policy, but I express skepticism about his proposed solutions. In particular, I am skeptical that NEPA reform and the elimination of Chevron deference would do much to improve federal environmental protection efforts.

There are many reasons why so many regulatory interventions do not achieve their environmental goals, and Zycher is also correct that policymakers lack sufficient incentive to make things better, particularly at the federal level. The economic stakes of environmental policy decisions can be quite substantial, creating ample incentive for rent-seeking. Powerful economic interests have much to gain from ensuring that environmental measures suppress competition and increase profits.

Improving these efforts requires dramatic reform. It should begin with the wholesale rejection of the dominant "market failure" paradigm upon which most regulatory interventions are founded.

Resource scarcity and pollution problems tend to arise where the underlying institutional framework upon which markets rely is lacking. Where ecological resources are fully incorporated into the system of private property and voluntary exchange, protected by the rule of law, waste is minimized and resources are used efficiently. Where, however, this underlying institutional framework is lacking—or where transaction costs are high—environmental problems are more likely to accumulate.

Much of the environmental progress of the past several decades can be credited to market-driven technological innovation and the embrace of property-based resource management. As the experience with marine fisheries amply demonstrates, the shift from centralized regulation to property-based resource management generates substantial economic and ecological gains. The catch is that not all environmental problems are so readily amenable to such property-based solutions and, as Zycher notes, the underlying political incentives do not always encourage the adoption of such policies.

Given the broad and deep failings of contemporary environmental law, Zycher has made a curious choice of reform targets: the National Environmental Policy Act and Chevron deference. Reforms in these areas might produce some economic savings, but neither will do much to reorient environmental protection efforts. . . .

While I share Zycher's concerns about contemporary policy, I am not at all sure that he has trained his fire on the proper targets. Reforming NEPA may reduce the time and expense involved in government projects and ease some permitting delays, but it will not address the substantive burdens of environmental regulation. Abandoning Chevron may limit the regulatory ambition of progressive administrations, but it will also hamper deregulatory initiatives and risk a return to the days when federal judges felt more free to dictate regulatory priorities to recalcitrant agencies—a risk that is only magnified by the current and immediately foreseeable composition of the D.C. Circuit.

The primary burdens imposed by NEPA fall upon government directed and funded projects. Thus, reforming NEPA will not do much to free private economic activity from unnecessary or inefficient regulatory burdens. Insofar as NEPA is a problem, it might be more fruitful to find ways of freeing productive activity from NEPA's reach, perhaps by limiting federal involvement.

Chevron deference may have problems, but Chevron is not an inherently pro-regulatory doctrine. Indeed, Chevron was born out of the Reagan Administration's efforts to adopt market-oriented regulatory reforms, and (barring an unusual burst of legislative initiatives) Chevron deference will be essential to any deregulatory moves the Trump Administration tries to make. Whatever arguments tehre are against Chevron deference, the claim that it stands as an obstacle to market-oriented reforms or an obstacle to deregulation is not among them.

Zycher offers a final rejoinder here, where he also responds to reply essays by Patrick Allitt, and William Dennis.

More Reviews of Genesis 1-11

"A serendipitous experience"

Readers of the Volokh Conspiracy will know Genesis 1-11: A New Old Translation for Readers, Scholars, and Translators (with John F. Hobbins) from an earlier series of posts. Several months ago I also mentioned a couple of reviews. Three new reviews have just been published.

First, in the Book List for the Journal for the Study of the Old Testament, Robert P. Gordon writes:

The introductory sections make important points about the practice of translation, without being at all technical. The bulk of the volume is titled 'After the Translation', and the longest section within it consists of notes justifying the choices made by the translators. A great deal of attention is given to the history of interpretation, both Jewish and Christian, with a particular focus on ancient and early modern translations. While not every textual or translational issue within Genesis 1–11 is addressed, reading the notes becomes quite a serendipitous experience: one never quite knows what kind of nugget is about to appear.

Gordon concludes: "Even amid the continuing deluge of studies of Genesis 1–11, this will prove a refreshing read, with most to offer on how precisely one should render the text in the light of the many points—linguistic, cultural, historical, macro-contextual, aesthetic and other—that the translators raise for discussion."

Second, in the Association of Jewish Libraries' Reviews, David Tesler notes our attempt to show deliberate repetition, our "nod toward tradition," and our attention to "the reception of Genesis as scripture." He commends the book: "This translation of Genesis 1-11 is an excellent resource for the interested layman and scholar alike."

Third, in The Christian Century, James C. Howell wrote "Two new (very different) Old Testament translations", a review article on our book and John Goldingay's The First Testament. Howell discusses a number of specific translation choices, and he writes:

Over the years, I have reviewed several translations in these pages. These two new ones could not be more different from one another in style, results, packaging, purpose, and intended use. Samuel Bray, a professor of law, and John Hobbins, a pastor and scholar, provide a lovely rendering of Genesis 1–11. They also provide much more, as the actual translation of the text fills only 19 of the book's 326 pages. Their introduction is a wise and eloquent reflection on the art of translation and what is at stake in approaching it. Their extensive notes not only explain why they translated the way they did but also function as a fairly profound commentary on the text itself.

Judges Need Not Recuse Themselves Just Because They Are Facebook "Friends" with a Lawyer

So holds the Florida Supreme Court (by a 4-3 vote).

"The establishment of a Facebook 'friendship' does not objectively signal the existence of the affection and esteem involved in a traditional 'friendship.'" Indeed, as the court points out in today's Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, even traditional "friendship" doesn't always require recusal (though perhaps very close friendship might): Though the court doesn't give these as examples, state and federal Supreme Court Justices are often on close terms with their former clerks, who routinely practice in front of them, and in many small towns all the judges and lawyers may know each other well, especially since judges are usually former local lawyers.

Note, though, that these rules vary from state to state; as the majority points out, its position is the dominant view among those states that have considered it, but other states do require recusal in such situations (as the 3-Justice dissent in the Florida Supreme Court would have). Thanks to Howard Bashman (How Appealing) for the pointer.

N.Y. Appellate Court Reverses Injunction Against Online Tabloid's Publishing "Images Depicting ... Lynching in Association with Plaintiff"

The latest in the Brummer v. Wey (TheBlot) litigation, brought by Prof. Christopher Brummer, a former Obama nominee for the Commodity Futures Trading Commission.

So holds today's decision in Brummer v. Wey, from New York's intermediate appellate court. First, a brief summary of the facts, though you can see more in my earlier posts on the case, here and here:

Plaintiff, a law professor, sat on the appellate panel of the Financial Industry Regulatory Authority, Inc. (FINRA) that affirmed the lifetime ban imposed on two stockbrokers, nonparties Talman Harris and William Scholander. Defendants allegedly control a website known as TheBlot, a tabloid-style platform that has published a substantial quantity of material attacking FINRA's ban of Harris and Scholander and the FINRA personnel, including plaintiff, who were involved in adjudicating that case.

The attacks on plaintiff have included—in addition to name-calling, ridicule and various scurrilous accusations—juxtapositions of plaintiff's likeness to graphic images of the lynching of African Americans, and statements that the banning of Harris, who is African American, constituted a "lynching." In this action, plaintiff, who is also African American, seeks, as here relevant, an injunction against the posting on TheBlot of material attacking or libeling him. In this regard, he argues that the lynching images posted alongside photographs of him on TheBlot should be understood as a threat of violence against himself.

Now, more on the order below, and an earlier order from the same intermediate appellate court, though one that this panel ended up disagreeing with:

In the first order under review, entered June 6, 2017, Supreme Court granted plaintiff's motion for a preliminary injunction, enjoining defendants "from posting any articles about the Plaintiff to TheBlot for the duration of this action" and directing them to "remove from TheBlot all the articles they have posted about or concerning Plaintiff[.]"

Defendants filed this appeal and then moved this Court for a stay of the preliminary injunction. After an interim stay of the preliminary injunction was granted by order dated June 15, 2017, this Court entered an order, dated August 1, 2017, lifting the stay [i.e., reinstating the injunction] "to the extent of directing defendants to remove all photographs or other images and statements from websites under defendants' control which depict or encourage lynching; which encourage incitement of violence; or that feature statements regarding plaintiff that, in conjunction with the threatening language and imagery with which these statements are associated, continue to incite violence against plaintiff."

This Court's order of August 1 further provided that the interim stay of the preliminary injunction was lifted "so as to prohibit defendants from posting on any traditional or online media site any photographs or other images depicting or encouraging lynching in association with plaintiff." [Footnote: We note that this Court's partial lifting of the interim stay of the preliminary injunction does not constitute law of the case [i.e., is not binding on us] for purposes of our consideration of the merits of this appeal from the order granting the preliminary injunction (see Thompson v Armstrong, 134 A3d 305, 310 [DC 2016] ["law of the case is not established by denial of a stay"]).]

Now, the legal reasoning, which strikes me as quite right:

Prior restraints on speech are "the most serious and the least tolerable infringement on First Amendment rights," and "any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity." "[A] party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition," and, to do so, must show that the speech sought to be restrained is "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest."

While these principles would permit the restraint of speech that "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," the speech at issue in this case—although highly offensive, repulsive and inflammatory—does not meet this exacting constitutional standard.... [T]he speech at issue, as offensive as it is, cannot reasonably be construed as truly threatening ... against plaintiff. Rather, the lynching imagery at issue was plainly intended to draw a grotesque analogy between lynching and FINRA's banning of Harris, who is an African American (and is identified as such in the posts). [For example, one post includes, alongside a silhouette image of a lynching, and under a photograph of Harris, the following statement: "Talman Harris: 'These MOFOs lynched me ....'" Another post states: "AFRICAN AMERICAN BROKER TALMAN HARRIS LYNCHED BY FINRA, BECAUSE HE IS BLACK."] While this analogy is incendiary and highly inappropriate, plaintiff has not established that any reasonable viewer would have understood the posts as threatening or calling for violence against him.

Initially, we reiterate that, although it may ultimately be determined that defendants have libeled plaintiff, "[p]rior restraints are not permissible ... merely to enjoin the publication of libel" (Rosenberg, 290 AD2d at 239; see also Giffuni v Feingold, 299 AD2d 265, 266 [1st Dept 2002]; cf. Dennis v Napoli, 148 AD3d 446 [1st Dept 2017] [affirming preliminary injunction against sending unsolicited defamatory communications about the plaintiff, who was not a public figure, directly to her colleagues, friends and family]).

Moreover, even if the posts could reasonably be construed as advocating unlawful conduct, plaintiff has not established that any "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v Ohio, 395 US 444, 447 [1969])....

The court does also rule, though, that, even though the injunction was unconstitutional, defendant could be held in contempt for violating it while it was in effect (the so-called "collateral bar" rule followed by New York courts, federal courts, and the courts of many other states, though not followed by some other states).

I'm pleased to say that Profs. Martin Redish (Northwestern), Steve Shiffrin (Cornell), and I filed an amicus brief supporting this result; many thanks to Daniel Schmutter, who was our invaluable pro bono local counsel (and who has helped me in many cases in the past, in New Jersey and New York).

The Meaning of Constitutional Meaning

The People of New Hampshire have spoken! But what have they said?

Eugene has thrown out the challenge to readers (and co-bloggers): What does this recently-adopted provision of the New Hampshire Constitution mean?

"An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent"

And there's the meta-question: what theory of constitutional interpretation does one use when trying to figure out what it means?

As to the "meaning" of the sentence, that, as always, depends on the context in which it is being used. If I had come across that precise sentence - "An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent" - in, say, a colleague's email in a discussion thread on constitutional interpretation, or in a student's essay on the 14th Amendment, my response surely would have been something like:

Me: "I don't understand what you mean when you say that. In particular, I don't know what you mean by 'natural, essential, and inherent,' and I don't know what you mean by 'governmental intrusion.' Those can mean very different things to different people. Until I know what you - the speaker - mean by them, I don't know what the sentence means."

But it is not being used in a colleague's email or a student's essay; it's now a part of the New Hampshire constitution. The "speaker" is now the collective: the People of New Hampshire, who have declared that "an individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent." So we might ask: What do they - or what does it, the collective comprising the people of New Hampshire - mean by that?

The constitutional context also matters in that constitutions are documents that have a particular purpose: they constitute governmental institutions, and they authorize those institutions to do certain things and prohibit them from doing other things. They're not just communicative code (colleague's email, student essay), they're executable code. The "meaning" of a constitutional provision lies in what it does, or does not, authorize or prohibit. Constitutional provisions have no meaning in the abstract. Sentences that may have perfectly plausible and reasonable meanings in other contexts - "Bach's B Minor Mass is a sublime achievement," or "The average annual rainfall in Seattle is greater than in Phoenix" - are entirely meaning-less should they (for some reason) appear in a constitution, because they have no plausible readings authorizing or prohibiting anything.

The People of New Hampshire apparently believe, in the abstract, that "an individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent." Does that mean that the government may not seek to obtain your financial records in a fraud case via a subpoena, on the grounds that it would violate the "natural, essential, and inherent" right to "live free from governmental intrusion in private or personal information"? Or does it mean that the government may obtain that information, but only if it first obtains a judicial warrant?

There are a million such questions that could arise in connection with a right to live free from governmental intrusion in private or personal information. Are public records - birth and death records, or real estate records - covered by this right? Does publication of personal information constitute an "intrusion"? Can law enforcement officials request cell phone locational data without a warrant? Etc.

These are the kinds of questions that give this (or any) constitutional provision its "meaning," and it is entirely futile, in my opinion, to try to answer them by asking how the speaker - the People of New Hampshire - would answer them.

A guy walks into a bar in, say, Center Ossipee, New Hampshire. He turns to the folks gathered there, and asks for their opinions: "Given that an individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent, should the government be allowed to subpoena my financial records in a fraud case against me?" My guess is that there would be disagreement among the patrons about that. Who, therefore, is in a position to say what "the People of New Hampshire" believe about this question?

It is, to my mind, the fatal flaw in any theory of constitutional interpretation that relies on a "contract" model for determining meaning, wherein one must look inside the minds of the parties to the contract - the ratifiers of the constitutional provision, the people of New Hampshire in this case - to determine the meaning of constitutional provisions. Originalism, of course, is such a theory - one which adds temporal dislocation to the already-impossible task of trying to determine what is inside the heads of the People of New Hampshire; as if determining how the People of New Hampshire in 2018 would actually apply this abstract principle to events in the world of 2018 were not difficult enough, the notion of trying to determine how the People of New Hampshire in 2018 would apply this abstract principle to some set of currently-unimaginable events taking place in the world of 2118 strikes me as entirely preposterous.*

*See my criticism of Justice Thomas' strict originalism in his dissenting opinion in Brown v. Entertainment Merchant's Ass'n. The question in the case was whether a California statute that prohibited the sale or rental of ''violent video games'' to minors violated the First Amendment. Justice Thomas concluded that it did not, because "the founding generation believed parents had absolute authority over their minor children [and] would not have considered it an abridgment of 'the freedom of speech' to restrict speech [to minors] that bypasses minors' parents."

So if the constitutional meaning of this provision cannot be determined with reference to how the People of New Hampshire would apply it in any concrete case - because that it not a knowable standard to use - what does it mean? Like many constitutional provisions, its meaning lies in its burden-intensifying properties; henceforth, in New Hampshire, a claimant who has been affected by a "governmental intrusion in private or personal information" can demand a higher level of justification from the government than in the ordinary case. This is, in essence, all that rights-declaration provisions, whether it's the freedom of speech, the right to be free from unreasonable searches and seizures, or the right to due process of law, ever mean. The government, henceforth, will need not just a good reason, but a damned good reason, should it "intrude" on "private or personal information."

What constitutes an "intrusion on private or personal information" requiring such a heightened justification? To be determined. Not with reference to the world of 2018, but the world in which the supposed intrusion has occurred. If this makes me a "Living Constitutionalist," then so be it.

Is Originalism a Theory? Is Living Constitutionalism?

Legal scholar Eric Segall argues originalism doesn't qualify as a constitutional theory because originalists disagree on too many things. His case is overstated. But if it's correct, the same criticism applies to living constitutionalism.

Originalists and living constitutionalists have been hammering away at each other for decades. But, up until recently, most living constitutionalists at least agreed that originalism qualifies as a theory of constitutional interpretation, even if a bad one. In an interesting recent blog post, however, legal scholar Eric Segall - author of a notable new book criticizing originalism - claims that originalism should not be considered a theory. Why not? Because originalists disagree on too many issues among themselves:

As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in common with each other. When judges and law professors self-identify as "Originalists," there is no longer any serious metric or common definition to understand how they would approach hard constitutional cases.


Professor Michael Paulsen, a noted national scholar and Originalist, believes that originalism must be exercised with strong deference to the decisions of non-judicial political actors....

Originalists like Randy Barnett, Ilya Somin, Ilya Shapiro, Jack Balkin, and Evan Bernick all reject substantial deference when it comes to originalist approaches to constitutional interpretation....

Some Originalists, such as Professors Will Baude and Steve Sachs, think Originalism is already our law. Most other originalists, however, such as [Randy] Barnett and Paulsen, argue that their own originalism theories are mostly normative, not descriptive....

It seems clear that, not only do originalists disagree with each other about whether originalism is normative, descriptive, or something in between, but some originalist scholars aren't sure themselves whether the theory is meant to describe what judges already do or what they ought to do.

Segall is right that originalists disagree amongst themselves on many issues. His list of these is not exhaustive. For example, originalists also disagree about whether the justification for originalism is intrinsic or instrumental, and whether the original meaning of the text should be understood in accordance with ordinary or expert contemporary understandings of the words.

At the same time, however, Segall is wrong to deny there are important areas of agreement among different types of originalists. As he himself notes, his originalist critics "say most Originalists agree with [Larry] Solum that the original public meaning of the Constitution's text is fixed at the time of enactment and that meaning ought to constrain judges." Segall complains that this doesn't provide sufficient indication of how originalists would resolve "hard cases." But even if a methodology does not by itself settle all disputes about hard cases, it is still significant, because it provides a road map for how to go about resolving these issues. In truth, no constitutional theory can resolve cases by itself. Such resolution also requires understanding of relevant factual evidence, institutional constraints, and perhaps other factors, as well. For example, in my view, originalist methodology justifies striking down sex-discriminatory laws that most would have considered constitutional in 1868, because we now have better factual evidence on the capabilities of women. Much (though not all) of the disagreement among originalists turns on these kinds of issues.

As originalist legal thought has developed, internal disagreements among originalists have clearly grown. But that does not mean there is no longer any significant common ground among them. To use an admittedly imperfect analogy: over time, many internal disagreements have arisen between different types of Christians. They disagree amongst themselves on numerous theological questions, and also on practical moral and political issues, such as abortion and the death penalty. But there are still significant commonalities among Christians that separate them from adherents of other religions (and from atheists and agnostics). For example, Christians overwhelmingly agree on the crucial importance of Jesus Christ (even while differing on its exact nature), and on the idea that the Old and New Testaments contain some sort of divinely inspired moral guidance. Similarly, originalists agree on the importance of an unchanging original meaning of the Constitution, even as they differ greatly on exactly what that meaning is, and how courts (and others) should apply it.

Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.

In sum, despite extensive internal disagreement, most originalists do agree on some important propositions. And originalism would still qualify as a theory even if there was no broad consensus on case outcomes among its advocates.

If disagreement on various theoretical issues and case outcomes does disqualify originalism from being a theory, the same applies to living constitutionalism. Like originalists, living constitutionalists also disagree among themselves on basic theoretical issues, on the extent to which courts should defer to the other branches of government, and on case outcomes. For example, living-constitutionalist opinion on judicial deference ranges from those who would do away with binding judicial review almost entirely (e.g. - Mark Tushnet and Larry Kramer) to those who advocate more robust judicial scrutiny of many types of legislation than exists today (e.g. - the late Ronald Dworkin). On basic theoretical premises, living constitutionalists disagree even more than originalists do. For example, there are huge differences between John Hart Ely's "representation-reinforcement" theory, David Strauss' "common law constitutionalism," Ronald Dworkin's moral approach to constitutional interpretation, and Bruce Ackerman's theory of "constitutional moments."

Segall suggests that living constitutionalism has more of a common core than originalism because "so-called living constitutionalists, such as Professors Philip Bobbit, Mike Dorf, Dick Fallon, and Larry Tribe, who argue for a pluralistic method of constitutional interpretation, are quite clearly advocating an approach they believe is both normative and descriptive. They argue that judges use well-recognized factors such as text, history, political practices, non-ratification era history, and evaluations of consequences to decide cases. In other words, they have a theory, it is well-thought out, and many non-originalists embrace it." In Segall's view, "[t]he same simply can't be said about originalism today."

These four scholars, of course, do not exhaust the range of living-constitution theories. Far from it. Moreover, while their theories are "both normative and descriptive" in the sense that they all believe that a "pluralistic" approach to interpretation is justified and that many real-world judges use a variety of methods, the scholars in question disagree among themselves about both specific constitutional issues, and how to weigh different modes of interpretation against each other when they conflict. They also, of course, all argue that the Supreme Court has gotten many important issues wrong and that the justices often use improper interpretive methodology, despite the fact that they in some sense make use of "pluralistic" interpretation. In that sense, their theories are not fully descriptive.

Despite these criticisms, there are two important kernels of truth in Segall's analysis. First, in many situations, it may make more sense to focus on specific originalist and living constitutionalist theories than on originalism or living constitutionalism generally. The specific theories provide more determinate guidance than the more general one and are often what is really at the heart of disputes over particular legal doctrines.

Second the enormous diversity of both originalist and living-constitutionalist legal thought is a sign that constitutional theory remains a relatively immature field of study. We have far less agreement among experts than in more developed academic disciplines - not just "hard" sciences like physics, but even social sciences such as economics or political science. The same point applies to comparisons between constitutional law and at least some other fields in the legal academy, such as property, torts, or contracts, where there is greater consensus on what qualifies as a good argument and how competing views should be assessed.

This suggests we are still far from achieving the One True Constitutional Theory (assuming such a thing is even possible), and we should not be too wedded to our existing ideas. We should be on the lookout for ways to improve theory (including potentially radical revisions), and for doctrinal conclusions that can be justified from the standpoint of multiple theoretical perspectives, not just one. The degree of uncertainty in constitutional theory counsels against putting too many eggs in a single basket.

I tried to find some overlapping agreement on an important constitutional issue in my book on the Kelo case and constitutional property rights, where I explained how tighter limitations on takings are justifed on the basis of leading versions of both originalism and living constitutionalism. And I recognize that my instrumentalist approach to defending originalism implies that the latter theory might well eventually be superseded by something better, and that it may not be the right approach to all types of constitutions even now. Obviously, there is plenty of room for improvement over my efforts on both of these fronts.

UPDATE: I have edited the quotation from Eric Segall's post to conform to a change Eric himself made in his post.

Checks and Balances

Conservative and libertarian lawyers are joining together to speak out in defense of constitutional governance, traditional legal norms, and the rule of law.

Today's New York Times reports:

The annual convention of the Federalist Society, the conservative legal group, has long been a glittering and bustling affair. In the Trump era, though, the group has become more powerful than ever, supplying intellectual energy and judicial candidates to an assertive administration eager to reshape the legal landscape.

But as the group prepares to gather on Thursday for the start of this year's convention, more than a dozen prominent conservative lawyers have joined together to sound a note of caution. They are urging their fellow conservatives to speak up about what they say are the Trump administration's betrayals of bedrock legal norms. . . .

The group, called Checks and Balances, was organized by George T. Conway III, a conservative lawyer and the husband of President Trump's counselor, Kellyanne Conway. In recent opinion articles, Mr. Conway has criticized Mr. Trump's statements on birthright citizenship and argued that his appointment of Matthew G. Whitaker to serve as acting attorney general violated the Constitution. . . .

Among those joining this new group are John B. Bellinger, III, Phillip D. Brady, Carrie F. Cordero, Stuart M. Gerson, Peter D. Keisler, Marisa C. Maleck, Lori S. Meyer, Paul J. McNulty, Alan Charles Raul, Paul Rosenzweig, and Tom Ridge, as well as two Volokh contributors: me and Orin Kerr.

Our mission statement reads:

We are a group of attorneys who would traditionally be considered conservative or libertarian. We believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse. We believe these principles apply regardless of the party or persons in power. We believe in "a government of laws, not of men."

We believe in the Constitution. We believe in free speech, a free press, separation of powers, and limited government. We have faith in the resiliency of the American experiment. We seek to provide a voice and a network for like-minded attorneys to discuss these ideas, and we hope that they will join with us to stand up for these principles.

Among our aims is to create room so more conservatives, libertarians, and fellow-travelers feel comfortable speaking out agaist legal abuses, attacks on our legal institutions and norms, and other threats to the rule of law.

Speaking for myself, this is not a reflexive anti-Trump initiative. I will continue to praise Administration actions that are praiseworthy, such as the announced nomination of Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit and reports that the Administration will support meaningful sentencing reform. But I also think it is imperative that those of us on the Right make clear that assaults on our laws and norms will not be tolerated, whatever the source. As Orin put it in the NYT story above: "The rule of law has to come first. Politics comes second."

More information wil be forthcoming on Checks and Balances website and Twitter feed.

A Fun Line About the Internet of Things: "The S in IoT stands for 'security'"

I just saw it quoted as an established saying; don't know who came up with it, but if any of you do, please let me know so I can give proper credit.

Neomi Rao Is Indeed a First-Rate Pick for the D.C. Circuit

Jonathan beat me to posting about this, but I agree entirely with his post.

Our Internet service at home failed last night, so we were living without Internet -- like animals! Jonathan therefore beat me to posting about Neomi Rao's nomination to the D.C. Circuit, but I very much agree with his post praising her. I too have known Rao for many years (nearly 20) and have always been very much impressed with both her intellect and her temperament; and of course her credentials are just superb. She will make a first-rate D.C. Circuit judge; I'd have said more, except Jonathan has already said it all.

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