From the abstract for Josh Blackman, Originalism and Stare Decisis in the Lower Courts (July 24, 2019):
The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. A Supreme Court Justice may recognize that a given precedent is non-originalist, but follow it anyway because of the doctrine of stare decisis. Or, a Supreme Court Justice may decide to deviate from stare decisis because that precedent is non-originalist. The Supreme Court’s unique status, which is perched atop our judiciary, affords its members leeway to make either decision.
Lower court judges, however, do not have that sort of discretion. Consider a judge on a federal circuit court of appeals. First, she is bound by Supreme Court precedents interpreting the Constitution, regardless of whether those precedent are originalist or not. No matter how wrong a given Supreme Court case is, that precedent must be followed. Second, she is bound by circuit precedent interpreting the Constitution, regardless of whether that precedent is originalist or not. Only an en banc majority can reverse circuit precedent, and those proceedings are quite rare.
An originalist circuit judge would only have free jurisprudential rein in the rare case of first impression, where neither the Supreme Court nor the circuit court had considered a particular constitutional question. Those cases are even rarer. Even then, the circuit judge would still be at a disadvantage. Circuit courts seldom receive the wealth of originalist party and amicus briefs that are directed to the Supreme Court. Here, the circuit judge will often have to do all of her own originalist research—the proverbial law office history report—without the benefit of the adversarial process.
In short, it’s tough for a lower-court judge to be a constitutional originalist. But it can be done. Part I of this essay explains when a lower-court judge can be an originalist. Part II explains how a lower-court judge can be an originalist.
From the abstract for Mayo Moran, The Problem of the Past: How Historic Wrongs became Legal Problems (2018):
Compensation for historic wrongs was once legally unthinkable. Now such claims are increasingly commonplace and count among law’s most difficult cases. This paper tells the story of how historic wrongs became legal problems and seeks to provide the foundations for a more robust understanding of redress. To date, literature on historic injustice has tended to focus on threshold questions or on the relatively novel terrain of truth commissions, acknowledgement and commemoration. The survivor’s quest for individual redress has, by contrast, garnered relatively little sustained attention even though such claims are among the most disruptive and challenging aspect of this ‘new’ problem of historic wrongs. This project aims to respond to this gap. It begins by seeking to better understand the problem, using three illustrative cases to help trace how historic wrongs came to be among law’s most vexing problems of responsibility. The UK decisions on the Mau Mau uprising highlight how claims that seek redress for historic wrongs often exhibit surprising force, capable of eroding the once-powerful procedural rules that used to protect the past from legal responsibility. Canada’s five billion dollar settlement of claims relating to the legacy of Indian residential school reminds us both of this force and of the challenges law faces when confronted by its own complicity in historic injustice. Finally the US reparations for slavery movement illuminates how, despite defeat in the courtroom, ‘reparative justice’ claims often possess a tenacious quality that makes them capable of moving powerful institutions. Tracing the role law has played in spurring the problem of the past helps to illuminate some of the key features of redress that have to date been all but ignored and provides the basis for developing more effective responses to historic wrongs.
From the blurb for Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (Oxford UP, 2019):
The fundamental fact about our Constitution is that it is old — the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time.
In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution of the translation process over time. In every new era, judges understand their translations as instances of “interpretive fidelity,” framed within each new temporal context.
Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls “fidelity to role.” In each of the cycles of translation that he describes, the role of the judge — the ultimate translator — has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge’s perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice.
The first work of both constitutional and foundational theory by one of America’s leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates.
From the abstract for Sophia Z. Lee, Our Administered Constitution: Administrative Constitutionalism from the Founding to the Present (University of Pennsylvania Law Review, Forthcoming):
This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this “administrative constitutionalism” has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that administrative constitutionalism may still be the most frequent form of constitutional governance, but it has grown, paradoxically, more suspect even as it has also become far more dependent on and deferential to judicial interpretations.
This article also contends that the history of administrative constitutionalism poses a problem for critics of the modern administrative state who seek to restore administrative law to its 19th-century foundations. These critics hold out constitutional law as uniquely important; it is what powers their arguments that the United States should turn back the clock. And they prefer 19th-century agencies because they depict them as exercising little consequential legal power. But this history suggests that those agencies had the first and often final word on the Constitution’s meaning. These critics also assume that reinstating the 19th-century constitutional order would empower courts to more closely scrutinize agency action. The history presented here instead suggests that returning to 19th-century administrative law would all but eliminate judicial review of the constitutionality of agency actions. Indeed, the burgeoning history of administrative constitutionalism suggests that anyone who wants to ensure that courts review the constitutionality of agency action has to appeal to theories that are rooted in constitutional change not origins, and in 20th- not 19th-century administrative law and judicial practice.
From the abstract for Aziz Z. Huq, A Right to a Human Decision, Virginia Law Review, Vol. 105:
Recent advances in computational technologies have spurred anxiety about a shift of power from human to machine decision-makers. From prison sentences to loan approvals to college applications, corporate and state actors increasingly lean on machine learning tools (a subset of artificial intelligence) to allocate goods and to assign coercion. Machine-learning tools are perceived to be eclipsing, even extinguishing, human agency in ways that sacrifice important individual interests. An emerging legal response to such worries is a right to a human decision. European law has already embraced the idea in the General Data Protection Regulation. American law, especially in the criminal justice domain, is already moving in the same direction. But no jurisdiction has defined with precision what that right entails, or furnished a clear justification for its creation.
This Article investigates the legal possibilities of a right to a human decision. I first define the conditions of technological plausibility for that right as applied against state action. To understand its technological predicates, I specify the margins along which machine decisions are distinct from human ones. Such technological contextualization enables a nuanced exploration of why, or indeed whether, the gaps that do separate human and machine decisions might have normative import. Based on this technological accounting, I then analyze the normative stakes of a right to a human decision. I consider three potential normative justifications: (a) an appeal to individual interests to participation and reason-giving; (b) worries about the insufficiently reasoned or individuated quality of state action; and (c) arguments based on negative externalities. A careful analysis of these three grounds suggests that there is no general justification for adopting a right to a human decision by the state. Normative concerns about insufficiently reasoned or accurate decisions, which have a particularly powerful hold on the legal imagination, are best addressed in other ways. Similarly, concerns about the ways that algorithmic tools create asymmetries of social power are not parried by a right to a human decision. Indeed, rather than firmly supporting a right to a human decision, available evidence tentatively points toward a countervailing ‘right to a well-calibrated machine decision’ as ultimately more normatively well- grounded.
From the abstract for Bill Treanor, Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution (2019):
At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee on Style and Arrangement to bring together the textual provisions that the convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris was assigned to draft the document for the committee, and, with few revisions and little debate, the convention subsequently adopted the Committee’s proposed constitution. For more than two hundred years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have concluded that Morris was an honest scrivener. No prior article, however, has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This article reveals how many changes Morris made to the text delegates had previously agreed to and how important those changes were (and are). It shows that many of the central elements of the Constitution (including the Preamble; the basic Article I, Article II, and Article III structure; and the contract clause) were wholly or largely the product of the Committee’s work. In total, Morris made twelve significant changes to the Constitution, and these textual changes advanced his constitutional goals, including strengthening the national government, the executive, and the judiciary; protecting private property; and fighting the spread of slavery. Finally, it shows that, in central debates in the early republic, Federalists, and, notably, fellow committee member Alexander Hamilton repeatedly drew on language crafted by the Committee as they fought for their expansive vision of the Constitution. In revising the constitutional text, Morris created the basis for what was to become the Hamiltonian reading of the Constitution.
This history has significant implications for modern constitutional law. While the Supreme Court has never been presented with a case that reveals the extent of the Committee’s changes, in four cases it has confronted situations in which the Committee’s text arguably had a different meaning than the provision previously adopted by the convention, and the Court has consistently treated the Committee’s work as substantively meaningless and concluded that the prior resolutions were controlling. That approach should be rejected because it is at odds with the majoritarian premise of constitutional ratification by “the people.” The text that was ratified is controlling. At the same time, in most circumstances, Morris’s language was ambiguous. A modern public meaning originalist approach leads to the conclusion that Morris’s revisions made possible alternate readings of the Constitution: it supported what was to become the Federalist approach, but did not prevent Republican textualist readings. On important contemporary issues, focus on Morris’s text makes us aware of originalist understandings of the text that have been frequently dismissed or wholly forgotten; although it does not eliminate the originalist basis for narrower readings, that focus provides new originalist support for broad understandings of congressional, judicial, and presidential power and for protection of private property.
From the abstract for Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma 124 Harv. L. Rev. ___ forthcoming 2019:
The past few years have not been good for the Supreme Court. In the wake of divisive confirmation battles, there are cries that the Court is no longer a “legitimate” institution and growing calls for court-curbing measures like jurisdiction stripping, impeachment, and—most commonly—“packing” the Court with additional members. This Essay, which reviews Richard Fallon’s Law and Legitimacy in the Supreme Court, takes stock of these attacks on the Court. Building on Fallon’s work, as well as political science research and history, the Essay argues that in politically charged moments like today, the Justices may face a dilemma. In order to preserve the Court’s public reputation (its sociological legitimacy)—and thereby stave off court-curbing measures—one or more Justices may feel pressure to modify their constitutional jurisprudence. That is, some Justices may sacrifice the legal legitimacy of their decisions in order to save the Court as a whole. This recurring tension—between sociological and legal legitimacy—is the heart of the Supreme Court’s legitimacy dilemma.
From the abstract for Lawrence Solum, Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate Northwestern University Law Review, Vol. 113, No. 6, 2019:
This Essay explores the conceptual structure of the great debate about “originalism” and “living constitutionalism.” The core of the great debate is substantive and addresses the normative question, “What is the best theory of constitutional interpretation and construction?” That question leads to others, including questions about the various forms and variations of originalism and living constitutionalism. Originalists argue that the meaning of the constitutional text is fixed and that it should bind constitutional actors. Living constitutionalists contend that constitutional law can and should evolve in response to changing circumstances and values. This Essay advances a metalinguistic proposal for classifying theories as originalist or living constitutionalist and suggests that some constitutional theories are hybrids, combining elements of both theories.
From the abstract for Benjamin Pomerance, Inside a House Divided: Recent Alliances on the United States Supreme Court, Albany Law Review, Vol. 81, No. 2, 2018:
When the United States Supreme Court re-convened at the beginning of October 2016, observers focused on the absence of Justice Antonin Scalia, the recently deceased spokesperson for the Court’s conservative wing. Attention also centered on the political standoff that resulted from President Barack Obama’s attempt to replace Scalia with Judge Merrick Garland, a battle that ended with the Senate refusing to vote on the nominee. By contrast, commentators paid little attention to the docket of cases that this shorthanded Court would consider.
This article fills this gap, examining the jurisprudential and political impacts of what turned out to be an extremely eventful and revealing term for the Court. It studies the work of the eight-member Court, a group that reached consensus at a record rate and handed down more unanimous decisions than had been seen from any term in recent memory. It examines the shifts that occurred after Justice Neil Gorsuch joined the Court’s bench during this term, sparking a return to the political partisanship in divided cases that has more typically characterized the Court’s recent behavior. It studies the alliances formed among the justices of the Court during this term, revealing some surprising partnerships in both criminal and civil decisions. Perhaps most revealingly of all, it demonstrates the possible arrival of a new “swing vote” on the Court: Chief Justice John Roberts, a jurist whose voting record crossed party lines throughout this term, perhaps setting himself up to someday replace Justice Anthony Kennedy as the least-predictable voter on the federal judiciary’s highest bench.
From the abstract for Ilan Wurman, The Origins of Substantive Due Process, University of Chicago Law Review, Forthcoming:
In the antebellum nineteenth century, courts often voided legislative acts for substantive unreasonableness or for exceeding the scope of legitimate police powers. Contrary to the assertions of a number of modern scholars, however, this tradition does not support the concept of economic substantive due process. Courts voided municipal acts exceeding the scope of legitimate police powers on two grounds — the law of delegation and the law of municipal corporations — that did not apply to acts of state legislatures. The states themselves were limited to reasonable exercises of the police power only when their asserted authority came into potential collision with federal constitutional requirements, namely the commerce and contracts clauses.
It was only late in the century, after the adoption of the Fourteenth Amendment, that a police-power version of substantive due process emerged as a limitation on state legislatures as courts began conflating, under the guise of “due process of law,” earlier doctrines that had used a similar vocabulary but for distinct purposes. Police-power limitations on state legislatures regulating purely internal matters therefore probably cannot be justified by any antebellum legal conception of due process of law. It is possible, however, that such limitations could find support in the privileges or immunities clause by analogy to antebellum commerce clause and contracts clause jurisprudence.
From the abstract for Cass R. Sunstein, Ismism, Or Has Liberalism Ruined Everything? (2019):
There has been considerable recent discussion of the social effects of “liberalism,” which are said to include (among other things) a growth in out-of-wedlock childbirth, repudiation of traditions (religious and otherwise), a rise in populism, increased reliance on technocracy, inequality, environmental degradation, sexual promiscuity, deterioration of civic associations, a diminution of civic virtue, political correctness on university campuses, and a general sense of alienation. There is good reason for skepticism about these claims. Liberalism is not a person, and it is not an agent in history. Claims about the supposedly adverse social effects of liberalism are best taken not as causal claims at all, but as normative objections that should be defended on their merits. These propositions are elaborated with reference to three subordinate propositions: (1) liberalism, as such, does not lack the resources to defend traditions; (2) liberalism, as such, hardly rejects the idea of “constraint,” though the domains in which liberals accept constraints differ from those of antiliberals, and vary over time; (3) liberalism, as such, does not dishonor the idea of “honor.” There is a general point here about the difficulty of demonstrating, and the potential recklessness of claiming, that one or another “ism” is causally associated with concrete social developments.
From the abstract for Lee J. Strang, The Declaration of Independence: No Special Role In Constitutional Interpretation (Harvard Journal of Law and Public Policy, Vol. 42, No. 1, 2018):
The Declaration of Independence is a beautifully written document; it is a potent symbol of our nation’s birth and founding principles; but it does not and should not play a unique role in constitutional interpretation. Instead, the Declaration is one source, among many, of the Constitution’s original meaning. I make three arguments to support this thesis.
First and theoretically, I argue that mainline originalist theory has no analytical space within it for the Declaration to play a special role in constitutional interpretation. To illustrate this, I describe the most prominent conception of originalism—public meaning originalism. Then, I show that public meaning originalism’s process to ascertain the Constitution’s original meaning treats the Declaration as one source of original meaning, and that its importance as a source therefore depends on the empirical-historical question of whether the original meaning in fact did privilege it.
This leads me to my second main argument, based on history. I make three moves to show that the Declaration did not play a unique interpretive role. First, I describe how the Framers and Ratifiers did not use the Declaration as the unique interpretive key to constitutional interpretation. Second, I show that, because the Declaration was inconsistent with the Constitution’s text, it cannot be the interpretive key to the Constitution. Third, I explain that it was only after the Founding, during times of moral crisis, that Americans in various social movements turned to the Declaration to support their out-of-the-mainstream constitutional interpretations. This phenomenon shows that appeals to the Declaration are motived by a desire for political and social change extrinsic to the Constitution.
Third and jurisprudentially, I show that our current constitutional practice does not recognize the Declaration as playing a unique role in constitutional interpretation. I focus on the Constitution’s text, current legal practice, and Supreme Court practice.
From the abstract for David Pozen, Eric L. Talley & Julian Nyarko, A Computational Analysis of Constitutional Polarization (Cornell Law Review, Forthcoming):
This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate:
(1) that constitutional discourse has grown increasingly polarized over the past four decades;
(2) that polarization has grown faster in constitutional discourse than in non-constitutional discourse;
(3) that conservative-leaning speakers have driven this trend;
(4) that members of Congress whose political party does not control the presidency or their own chamber are significantly more likely to invoke the Constitution in some, but not all, contexts; and
(5) that contemporary conservative legislators have developed an especially coherent constitutional vocabulary, with which they have come to “own” not only terms associated with the document’s original meaning but also terms associated with textual provisions such as the First Amendment. Above and beyond these concrete contributions, this Article demonstrates the potential for computational methods to advance the study of constitutional history, politics, and culture.
From the abstract for Marc O. DeGirolami, The Traditions of American Constitutional Law (Notre Dame Law Review, Forthcoming):
This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.
The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.”
The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.
From the abstract for Lina Khan & David Pozen, A Skeptical View of Information Fiduciaries (Harvard Law Review, Vol. 133, 2019, Forthcoming):
The concept of “information fiduciaries” has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support and essentially zero critical pushback.
This Essay seeks to disrupt the emerging consensus by identifying a number of lurking tensions and ambiguities in the theory of information fiduciaries, as well as a number of reasons to doubt the theory’s capacity to resolve them satisfactorily. Although we agree with Balkin that the harms stemming from dominant online platforms call for legal intervention, we question whether the concept of information fiduciaries is an adequate or apt response to the problems of information insecurity that he stresses, much less to more fundamental problems associated with outsized market share and business models built on pervasive surveillance. We also call attention to the potential costs of adopting an information-fiduciary framework—a framework that, we fear, invites an enervating complacency toward online platforms’ structural power and a premature abandonment of more robust visions of public regulation.
From the abstract for Linda L. Berger and Eric Nystrom, A Rhetorical-Computational Analysis of Justice Antonin Scalia’s ‘Remarkable Influence’: The Unexpected Importance of Deceptively Unanimous and Contested Majority Opinions (Journal of Appellate Practice and Process, Vol. 20, No. 2, 2020, Forthcoming):
What constitutes judicial influence and how should it be measured? Justice Antonin Scalia was known for his memorable phrasing (“this wolf comes as a wolf,” “like a ghoul in a late-night horror movie”) and for being cited at a rate twice that of his colleagues. Justice Elena Kagan gave him credit for transforming “all of us” into statutory textualists and constitutional originalists. After his death, critics gave mixed reviews of the extent of his influence on the Supreme Court, other judges, law students, and the general public.
Curious about the broader role that rhetoric plays in judicial influence over time, we undertook a rhetorical-computational analysis of the 282 majority opinions written by Justice Scalia during his 30 years on the U.S. Supreme Court. Our analysis is the first to examine the full majority opinion output of a Supreme Court justice using a unique “medium data” approach that combines rhetorical coding with quantitative analysis relying on Shepard’s Citations and LexisNexis headnotes.
The results suggest that the frequency of citations by later courts to Justice Scalia’s majority opinions—one of the most-often-used proxies for influence—was not solely the result of his efforts to be persuasive and to wield influence. Instead, we found that Justice Scalia’s deceptively unanimous and contested majority opinions were over-represented in later citation counts compared with his truly unanimous and strong majority opinions. This over-representation indicates that later courts citing those opinions continued to disagree about the meaning or the application of the rules established in the majority opinion and were continuing to cite both the majority and the concurrence or dissent.
Our analysis further suggested that later courts appeared to select from among Justice Scalia’s statements in earlier opinions not only based on the rhetorical framing of the statement but also depending on the rhetorical context in which those later courts found themselves. Thus, federal appellate courts tended to discuss both rules and arguments more extensively while the lower federal courts and the state courts were somewhat more likely to simply follow the rules. Finally, our analysis indicated that higher citation counts over time coincided with rule statements that either created or contributed to lingering disputes about interpretation or application. That kind of sustained citation frequency likely is not the long-lasting influence Justice Scalia sought.
Miranda Perry Fleischer & Daniel Jacob Hemel have posted The Architecture of a Basic Income (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
The notion of a universal basic income (“UBI”) has captivated academics, entrepreneurs, policymakers, and ordinary citizens in recent months. Pilot studies of a UBI are underway or in the works on three continents. And prominent voices from across the ideological spectrum have expressed support for a UBI or one of its variants, including libertarian Charles Murray, Facebook co-founder Chris Hughes, labor leader Andy Stern, and—most recently—former President Barack Obama. Although even the most optimistic advocates for a UBI will acknowledge that nationwide implementation lies years away, the design of a basic income will require sustained scholarly attention. This article seeks to advance the conversation among academics and policymakers about UBI implementation.
From the abstract for Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, Columbia Law Review, Forthcoming:
Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful: among constitutional originalists, this so-called Vesting Clause Thesis is now conventional wisdom. But it is also demonstrably wrong.
Based on an exhaustive review of the eighteenth-century bookshelf, this article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.
There was indeed a term of art for the Crown’s non-statutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “prerogative.” The other elements of prerogative—including those relating to national security and foreign affairs— were possessed in addition to “the executive power” rather than as part of it.
From the abstract for Clark D. Cunningham & Jesse Egbert, Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and the Emoluments Clauses, Fourth Annual Conference of Law & Corpus Linguistics (2019):
In interpreting the Constitution’s text, courts “are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from their technical meaning’.” District of Columbia v. Heller, 554 U.S. 570, 576 (2008). According to James Madison: “[W]hatever respect may be thought due to the intention of the Convention, which prepared and proposed the Constitution, as a presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed through the Conventions which ratified the Constitution.”
In looking for “presumptive evidence of the general understanding at the time of the language used” courts have generally relied on dictionary definitions and selected quotations from texts dating from the period of ratification. This paper presents a completely different, scientifically-grounded approach: applying the tools of linguistic analysis to “big data” about how written language was used at the time of ratification. This data became publicly available in Fall 2018 when the website of the Corpus of Founding Era American English (COFEA) was launched. COFEA contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words.
The authors illustrate this scientific approach by analyzing the usage of the word emolument by writers in America during the period covered by COFEA, 1760-1799. The authors selected this project both because the interpretation of two clauses in the Constitution using emolument are of considerable current interest and because the meaning of emolument is a mystery to modern Americans.
The District of Columbia and State of Maryland are currently suing President Donald Trump alleging that his continued ownership of the Trump Hotel in Washington puts him in violation of Constitutional prohibitions on receiving or accepting “emoluments” from either foreign or state governments. The President’s primary line of defense is a narrow reading of emolument as “profit arising from an office or employ.”
The authors accessed every text in COFEA in which emolument appeared – over 2500 examples of actual usage – and analyzed all of these examples using three different computerized search methods. The authors found no evidence that emolument had a distinct narrow meaning of “profit arising from an office or employ.” All three analyses indicated just the opposite: emolument was consistently used and understood as a general and inclusive term.
From the abstract for If the Text is Clear–Lexical Ordering in Statutory Interpretation, 94 Notre Dame Law Review ___ (2018) by Adam M. Samaha:
Most courts now endorse lexical ordering for statutory cases. That is, a limited set of top-tier sources, if adequately clear, are supposed to establish statutory meaning. Lower-tier sources are held in reserve for close calls. Examples include legislative history and deference to agency positions, which often are demoted into tiebreaking roles. In fact, some such hierarchy of sources is approved by working majorities at the U.S. Supreme Court and more than forty state supreme courts. Although popular today, lexically ordered interpretation has risen and fallen before. Indeed we should pause to reconsider whether these instructions are justified and whether judges can follow them.
This Article explores the core trade-offs and implementation challenges. On trade-offs, the Article spotlights decision quality, decision costs, and, less intuitively, decisiveness. Compared to aggregating all source inferences, lexical ordering threatens decision quality by sometimes throwing out useful information, but it can reduce decision costs and probably will increase the chance of a decisive judgment. Compared to flatly excluding lower-tier sources, lexical ordering probably yields higher quality decisions and decisiveness, but also higher decision costs. Whether the overall compromise seems tolerable depends on a series of debatable judgment calls. Moreover, the actual trade-offs depend on whether judges lexically order sources in their decision making, not only in their opinion writing. To date, we lack evidence either way.
The Article goes on to report results from a new vignette experiment conducted with approximately one-hundred appellate judges. These judges showed curiously mixed success at lexical ordering. In a trade name case, we find little evidence that judges were improperly influenced by legislative history. In an election law case, by contrast, we find evidence that judges were improperly influenced by an agency’s position. There is much more to learn about the patterns of judicial behavior in this field. For now, we should expect mixed judicial success at achieving the mixed advantages and disadvantages of lexical ordering. The hard trade-offs cannot be casually assumed or ignored. With that unsettling lesson, more courts might abandon lexical ordering’s complex and sometimes fragile architecture—or at least maintain respect for judges who are committed to less orthodox, more extreme, and simpler methods for deciding statutory cases.