The Originalism Blog

Ilan Wurman (University of Minnesota Law School) had posted The Original Presidency: A Conception of Administrative Control (Journal of Legal Analysis, forthcoming) (38 pages) on SSRN.  Here is the abstract:

The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President's, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate officers. That poses a possible textual problem: it seems to make the Opinions Clause superfluous. The other conception maintains that the President is, at best, a "persuader-in-chief," with no constitutional right to control administrative discretion or to remove officers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there is no historical evidence for it. The proponents of these two schools of thought have thus been locked in a decades-long stalemate, with competing and irreconcilable paradigms of total control or no control. This Article recovers another, lost way of thinking about presidential power. According to this conception, Congress can insulate inferior officers from removal because they must follow orders. As for principal officers, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal officers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfluous, then assures the President the power to acquire information to exercise intelligently the power to remove. In addition to this account's textual and structural virtues, it appears to have been a relatively widely shared understanding of presidential power at the Founding, enough so to be within the range of plausible original meanings. This understanding of executive power may seem overly formalistic, but it is functionally more desirable than the two competing accounts that allow for total control or total balkanization.

Last week's debate led many people, both Democrats and Republicans, to question President Joe Biden's cognitive abilities -- to wonder whether he has a serious case of dementia that renders him unqualified to serve as President.  I take no position on that question but the mere possibility that it is true raises serious constitutional questions.  So let's assume either that President Biden has a serious case of dementia or hypothetically that a President who has served for nearly his entire term has such a case.    

Assuming the assessment is true in fact or hypothetically, there are at least two interesting constitutional questions.  First, is it an impeachable offense for the Cabinet Officials and the Vice President to have stayed silent about his infirmity?  There is a strong argument that the answer is, yes.  If the President was not up to being President, that is clearly something the country should have known.  It also suggests that some other persons – probably White House staff, many of whom are not even officers of the United States under current law – have been secretly exercising presidential power.  And knowing about such secret exercises without disclosing it is obviously problematic. 

Such silence or secret exercises may not be crimes or even civil violations but it is generally thought that high crimes and misdemeanors do not require civil or criminal violations.  The silence and secret exercises are clearly wrongful behavior.

It is true that section 4 of the 25^th Amendment does not explicitly impose any obligation to disclose this information.  It provides:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

This text does not explicitly obligate cabinet officials to inform the public about the matter or even to initiate actions if they believe the President is infirm.  Still, one might argue that the text assumes that the cabinet officials would (or possibly should) initiate such actions.  But even assuming that the 25^th Amendment imposes no obligation, the Amendment certainly does not modify the high crimes and misdemeanors standard that would require that they not stay silent about infirmity or secret exercises of presidential power. 

If this is true, then cabinet officials, especially the most important ones who see the President most often such as the AG, the Treasury Secretary, and the Secretary of State, would have committed impeachable offenses.

The second constitutional question is what actions -- either by statute or constitutional amendment – can be taken to address this possible problem.  One constitutional amendment I have already proposed would bar anyone from serving as President or Vice President if they were 70 years of age or over at the time of their election.

One possible statutory reform would obligate cabinet officers to inform Congress or the public if they believed the President was cognitively infirm.  Another would require that the President take a cognitive test before an election or even annually.  But these reforms are open to various abuses or counterarguments, so it might not make sense to pursue them, even if they could be applied constitutionally.  

At the Harvard Law Review Blog, Elias Neibart: Trading Jabs Over Tradition.  From the introduction:

Tradition. It’s the talk of the town — especially in originalist circles. But what role should it play in constitutional argument? Even fellow originalists can’t agree. Take Vidal v. Elster. There, Justice Barrett agreed with the Court’s holding announced by Justice Thomas: “[T]he particular restriction before us, the names clause in [the Lanham Act], does not violate the First Amendment.” But she and Justice Thomas disagreed on at least one methodological front: When should an originalist Court turn to postratification tradition?

Before we get there, here are the facts. “Steve Elster sought to register the trademark ‘Trump too small.’” The Patent and Trademark Office (PTO) refused to do so. The PTO invoked the so-called “names clause” of the Lanham Act, the federal statute governing trademark law. The names clause “prohibits registration of a trademark that ‘[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent.’” Elster argued that this provision violated the First Amendment.

The Court unanimously disagreed, upholding the constitutionality of the names clause. But the Court was methodologically fractured in Elster. Although four separate opinions were filed, this post will focus specifically on the methodological back-and-forth between Justice Thomas and Justice Barrett. Let’s jump in.

See, in Elster, Justice Thomas discussed common law trademark cases that had been adjudicated after the ratification of the First Amendment. From those cases, he concluded that at common law, “a person generally had a [trademark] claim only to his own name” ­— and not the name of another living person. Accordingly, he viewed the names clause to be consistent with “common-law tradition” and, thus, it passed muster under the First Amendment.

Concurring in part, Justice Barrett took issue with some parts of Justice Thomas’s opinion. For starters, she thought that Justice Thomas’s historical evidence was scanty. She was “less sure” that the common law contained “a rule akin to the names clause.” Indeed, “if such a common-law rule existed,” she thought the “majority opinion” failed to “identify it.”  At bottom, she found it “difficult to say that the names clause is constitutional solely because of its historical,” common-law “pedigree.”

But her disagreement was also a methodological one. Because “[e]ven if the Court’s evidence were rock solid, [she] still would not [have] adopt[ed]” the Court’s approach.

Justice Barrett pointed out that postratification tradition is a useful tool. But it “is not an end in itself.” In these pages, I recently made a similar point. Tradition should be aiming at something. Yet, Justice Barrett observed that the “[t]he Court does not (and could not) argue that the late-19th and early-20th century names-restriction tradition serves as evidence of the original meaning of the Free Speech Clause.” Instead, she viewed the Court as “present[ing] tradition itself as the constitutional argument.” And, for Justice Barrett, a “rule rendering tradition dispositive is,” simply, “a judge-made test.”

To be sure, Justice Barrett isn’t against judge-made tests. Indeed, she noted that “[i]n the course of applying broadly worded text like the Free Speech Clause, courts must inevitably articulate principles to resolve individual cases.” Instead, she just wanted the Court to be intellectually honest. Her “generally applicable principle” approach is judge-made, but she viewed the “common-law tradition” test as equally judicially created. And she saw no “good a reason to resolve this case using [Justice Thomas’s] approach rather than by adopting a generally applicable principle.”

I agree that this is a central debate among the originalist Justices, with the overarching question being what to do when the standard originalist materials don't provide a determinate answer.  Justice Kavanaugh's concurrence in Rahimi is thus in a sense a response the Justice Barrett in Elster.  I'm sympathetic to Barrett's critique of untethered tradition, but I don't see that she has a fully articulated alternative.

Timothy Sandefur (Goldwater Institute) has posted Eminent Domain in the Washington and Arizona Constitutions (NYU Journal of Law & Liberty (forthcoming)) (85 pages) on SSRN.  Here is the abstract:

The Constitutions of Arizona and Washington bear a special relationship. When Arizonans convened to draft a constitution in 1910 (adopted in 1912) they borrowed many provisions from Washington’s 1889 Constitution. These include not only provisions relating to freedom of speech and the right of privacy, but also those relating to private property. The remarkable fact is that the Washington and Arizona framers chose to adopt what were then the most innovative and creative new methods for protecting such rights. One of the most dramatic examples concerns the power of eminent domain. This article traces the origin and meaning of this unique constitutional provision. In particular, it examines four distinct limits on eminent domain that were incorporated into the Washington and Arizona takings clauses: the explicit ban on takings for “private use,” the compensation requirement for the “damaging” of property, the requirement that payment precede a taking, and the ban on “offsetting”—that is, reducing the compensation award by the amount of purported “benefit” resulting from a condemnation. This rich history teaches lessons about constitutional protections for property rights that are important not just to Washington and Arizona, but to the many other states whose founders sought to erect meaningful but flexible protections for property owners.

RELATED: Also recently posted on SSRN by the same author, The "Mandatory" Clauses of State Constitutions (Gonzaga Law Review (forthcoming)) (65 pages).  Here is the abstract:

Six state constitutions—those of California, North Dakota, South Carolina, Utah, Washington, and Arizona—include clauses declaring that everything in the state constitution is “mandatory” unless otherwise provided. This seems a strange thing to include; one might assume everything in a state’s fundamental law is mandatory. But these provisions, which I call Mandatory Clauses, originated during the wave of reform that swept the United States in the late nineteenth century, and they represent an effort to limit or even prohibit what is today known as “judicial deference.” That is, they were written by framers who wanted courts to be more diligent than they had been in enforcing constitutional commands or prohibitions, and less willing to accede to the acts or omissions of the legislative or executive branches. This article examines the history behind Mandatory Clauses and the problems their creators sought to fix. It concludes with some observations about how courts today should implement these clauses.

I agree with almost all of Mike Ramsey's discussion of how the First Amendment restricts the judiciary and executive.  

But at the end of his post, Mike seems to admit that self enforcing treaties -- treaties that do not require Congress to pass implementing legislation -- would not be restricted by the First Amendment.  Perhaps he is correct, but I am not so sure. 

Here is another possibility.  A treaty requires ratification by the Senate.  And the Senate is part of Congress.  Therefore, the Senate cannot ratify a treaty that violates the First Amendment. 

A similar result would apply to actions by a single house that abridge the freedom of speech.  For example, if the House were to use its inherent contempt power in a way that violated the freedom of speech, one might argue that the First Amendment would preclude this, because the House is part of the Congress. 

I do not claim this is the only way to read the Treaty Clause and the First Amendment.  It is possible that the First Amendment could be read only to restrict the Congress acting as a whole.  But it is also quite possible that the First Amendment applies to the separate actions of the House.  

Nicholas R. Parrillo (Yale Law School) has posted Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics (Drake Law Review, Volume 71, pages 367-434 (2024)) (94 pages) on SSRN.  Here is the abstract:

Proponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings. 

This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century.

At Volokh Conspiracy, Steven Calabresi celebrates the Supreme Court decision yesterday in SEC v. Jarkesy: SEC v. Jarkesy: A Win for the Separation of Powers and the Right to Civil Jury Trial.  From the introduction:

Chief Justice Robert wrote an excellent, thorough, and overwhelmingly persuasive majority opinion in S.E.C. v. Jarkesy, 603 U.S. __ (2024), holding that the Securities and Exchange Commission could not try civil fraud suits before its own Administrative Law Judges. It must instead try them in federal District Court where the Seventh Amendment right to a civil jury trial must be available in all cases which were "[suits] at common law," as opposed to suits in equity and in admiralty.

The Supreme Court did today for the Seventh Amendment roughly what it did for the Second Amendment in District of Columbia v. Heller, 554 U.S. 570 (2008). It held, in a narrow opinion, that Congress and the President cannot completely ignore the Seventh Amendment, just as they used to completely ignore the Second Amendment before Heller was decided. This is the case at least in civil fraud cases brought by the S.E.C.

The Chief Justice's opinion was joined by five other justices: Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Chief Justice Roberts' opinion examined originalist, textualist, and doctrinal sources of law. In much of the opinion, Chief Justice Roberts makes an overwhelmingly powerful argument that S.E.C. fraud cases are in the words of the Seventh Amendment "[s]uits at common law" which can only be tried by a jury and not suits in equity or admiralty where the right to jury trial has not historically been available.

I agree that this is predominately a textualist/originalist result.  The majority and dissent scrap over which way precedent points, but I think that's largely beside the point because the textualist/originalist case is strong and the precedent is, in any event, not well entrenched or the source of substantial reliance.

But I also agree with the analysis from a while back by Will Baude that the Seventh Amendment isn't really the source of the SEC's constitutional problem in this case.  The Seventh Amendment guarantees a jury rather than a judge. The SEC process in Jarkesy did not even provide an Article III judge -- just an executive officer with a judicial-sounding title.  As a result, the SEC's process violated separation of powers by having an executive officer exercise the judicial power (and, I would think, also violated the due process clause).  Justice Gorsuch in concurrence notes the interrelatedness of Article III, the due process clause and the Seventh Amendment as applied to Jarkesy.  He does not go so far as to say that the case should come out the same way even without the Seventh Amendment, but I would (and I think Professor Baude would as well.)

In a recent post, Eric Segall criticized the Supreme Court for ignoring the Constitution’s text, and gave as a leading example the First Amendment.  He argued:

The first amendment says the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let's begin with the first word, "Congress." That term is neither ambiguous nor imprecise. It refers to a specific institution: the United States Congress. Yet, the first amendment's speech and religion protections have been applied to all government institutions, state and federal, including the executive and judicial branches. 

It is one thing for the Court to hold that the 14th Amendment applies the first amendment to the states, a reasonable (if not persuasive) interpretation of the text and history of the 14th Amendment. But it is quite another to read the text of the first amendment and apply it to the President, a governor, or a state judge. The word "Congress" simply can't bear that meaning. 

I’m happy to criticize the Court for ignoring the text, but I think the concern here is overstated. Mostly (but not entirely) the reference to Congress is consistent with modern law, though explaining why is an interesting exercise.

(1)  To begin, the concern about application to state and local entities is entirely misplaced. The First Amendment doesn’t apply directly to the states and no one thinks it does. On an originalist/textualist analysis, "the freedom of speech" (for example) applies to the states, if at all, through the privileges or immunities clause of the Fourteenth Amendment.  (Modern law applies it through the due process clause but essentially no originalists agree; some originalists reject incorporation altogether, though most I think agree with the privileges or immunities approach.)  The Fourteenth Amendment says that “No state shall make or enforce any law which shall abridge the privileges or immunities …”, so assuming that the freedom of speech is a privilege or immunity, the Amendment seems obviously to apply to all branches of the states’ governments, including the executive, the courts, and any local subdivisions exercising the delegated authority of the state.

(2) As applied to the federal government, there is a textual puzzle. One might say that “Congress” is actually a shorthand for all of the federal government, but that seems wrong.  No other Bill of Rights amendment is written that way – most are written in the passive voice, so that they apply equally to all branches.  For example, the Second Amendment: "the right of the people to keep and bear arms, shall not be infringed" – thus meaning, shall not be infringed by any part of the federal government.  So I agree with Professor Segall that the First Amendment’s text inescapably applies only to Congress and not to the other branches of the federal government.  But I think this has only limited implications that are mostly consistent with modern law.

(a)  As to the courts, this indeed means that federal judges are not limited by the First Amendment when they act under independent power (that is, other than pursuant to a law passed by Congress). But judges only exercise the judicial power, and the judicial power does not contain much independent power to suppress speech.  I think it likely that courts can impose restrictions (e.g., “gag orders”) to protect the judicial process in their courts as a historical aspect of the judicial power, but not much beyond this. And that would likely be true even if the First Amendment did apply to them – the historical practice would indicate an exception to the apparently categorical rule.  So I don’t think this makes a great deal of difference.

(2)  As to the federal executive branch, the same analysis would apply, but it is potentially more significant. Mostly, when the First Amendment is applied to the President, the President is acting under the authority of law. That law cannot authorize the President to abridge the freedom of speech, so if a President purporting to act under authority of law abridges speech that action is ultra vires and unconstitutional – not because the First Amendment applies to the President, but because the First Amendment applies to the authorizing law, which amounts to the same thing.

However, if the President is acting under independent authority, again I agree that textually the Amendment doesn’t apply.  Critically, though, the President’s authority to act independently in a lawmaking capacity is sharply constrained by the Constitution’s separation of powers.  By the direction of the vesting clauses, "all" legislative power of the federal government is vested in Congress; thus the President cannot exercise lawmaking power.  (See my thoughts here on applying this principle to foreign affairs.) I think this is why the First Amendment is drafted the way it is.  The framers understood that (with narrow exceptions) abridgements of the First Amendment rights would come from Congress, because only Congress has lawmaking authority.

There may be a few exceptions.  The President’s commander in chief power likely includes power to set rules for the military (at least until Congress acts), so the President can restrict speech in the military.  The President’s executive power likely includes power to set rules for executive branch personnel (at least until Congress acts), so the President would be less restricted there.  (This is one place that the textual analysis might depart somewhat from modern law, which partly restricts the President’s authority over speech of executive personnel.)

More generally, in First Amendment challenges to executive action, it should be asked whether the President is claiming authority under statutory law or directly from the Constitution.  The textual analysis would say the First Amendment only applies in the former case.  But it would also say that, in the latter case, the executive action is often doubtful on separation of powers/vesting clause grounds.

It’s true that this point is not made in the Court’s doctrine, and perhaps that would sometimes matter.  For example, Murthy v. Missouri, decided yesterday, involved a First Amendment challenge to executive action.  The Court rejected the challenge on standing grounds, but if it had reached the merits, the text of the First Amendment indicates that it should have asked (1) whether the President was acting pursuant to delegated power (in which case the First Amendment would apply) or if the President claimed to be acting under independent power (in which case there would be a question about the source of that power).  I’m not sure to what extent this might change the outcome on the merits.

(c)  Finally, some commentary on this point invokes the treaty power; on this analysis, can treaties restrict speech (by, for example, prohibiting criticism of foreign governments)? One might say no, because treaties require Senate consent, and the Senate, as part of Congress, cannot make laws restricting the freedom of speech.  But making treaties, in itself, does not require the action of “Congress” – only the Senate, which is not Congress.  So perhaps the First Amendment does not limit treaties.

That might be a sharp and worrisome departure from modern law.  But there is perhaps less to it than might appear.  The framers likely assumed that treaties proscribing particular individual conduct would be addressed to Congress for implementation.  That is, treaties would say – as modern treaties in fact typically do – something to the effect of: “The treaty parties agree to prohibit” a specified conduct.  Treaties phrased this way would call for Congress to enact a specific prohibition (they would be, in modern terms, “non-self-executing” – see my discussion here.) And of course, the First Amendment would restrict Congress in enacting such a prohibition.

In sum, the First Amendment’s specific application only to “Congress” raises interesting textual questions, but in the end I think they mostly resolve in favor of current outcomes.  Of the Court’s many departures from the text, this one is much less important than it at first appears.

At Slate, Saul Cornell (Fordham - History): The John Roberts Balancing Act Is Back, at Least for Guns.  From the core of the argument:

Two interpretations of Bruen’s mode of analysis had emerged among federal courts. Some judges followed the maximalist version, a framework Thomas has now advanced in his Rahimi dissent. This approach relied almost exclusively on statutes, ignoring or misinterpreting the widespread use of common-law methods of protecting the peace and public safety. For these judges, answering the question of whether a law was constitutional involved compiling something akin to a spreadsheet of old laws and looking for something close to a historical twin for the modern law being litigated, an approach Bruen expressly disowned. The few laws that survived this artificial and ahistorical winnowing process were then read in a parsimonious fashion rendering nearly every type of modern gun regulation suspect. An alternative approach, more consistent with the method advocated by Roberts and Kavanaugh, also gained traction in the lower courts. This interpretation of Bruen was still highly solicitous of gun rights and hostile to modern legal tools that acknowledge that consequences matter. This reading of Bruen had the virtue of treating both sides of the rights-and-regulation equation in a consistent manner.

Now, with Rahimi, it’s clear that the Kavanaugh-Roberts school is markedly different from Thomas’ approach. Their method, not the dissent’s cramped vision, currently controls Second Amendment law. This correction is significant. Recent legal research has shown a shocking partisan pattern in the way lower courts have applied Bruen. Republican judges and virtually all Trump-appointed judges approach gun rights at a high level of generality but do not treat regulation in a similar fashion. Studies of the application of Heller in the lower courts, by contrast, found that the use of modern tools of constitutional analysis that take account of consequences was less prone to partisan bias, a fact that challenges the claims of the court’s originalists that their method is more objective. Turning Second Amendment law into a version of historical Where’s Waldo, rummaging around in old laws with no coherent historical method, is far more prone to manipulation of sources and unconscious forms of confirmation bias.

At Volokh Conspiracy, Josh Blackman: The Three Trump Appointees In Rahimi - Justices Gorsuch, Kavanaugh, and Barrett are fracturing over originalism. From the introduction:

I have spent some time thinking about how the three Trump appointees differ. In Rahimi, Justices Gorsuch, Kavanaugh, and Barrett each wrote concurring opinions. And they are not on the same page. I'm not even sure they're reading from the same book. Rahimi  provides another opportunity to consider how the troika approaches originalism.

From his assessment of Justice Gorsuch's opinion:

Justice Gorsuch tries to mediate some synergy between the three concurrences:

If changes are to be made to the Constitution's directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. See post, at 6–16 (KAVANAUGH, J., concurring) (offering examples). And when doing so, litigants and courts "must exercise care." See post, at 3, n. (BARRETT, J., concurring)

But I think that Justices Gorsuch, Kavanaugh, and Barrett are quite far apart.

Gorsuch concludes:

Among all the opinions issued in this case, its central messages should not be lost. The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen.

Far from it. The Court rewrites Bruen, which apparently had a two-year expiration date.

From the introduction to his assessment of Justice Kavanaugh's opinion:

Justice Kavanaugh wrote a 24-page concurrence that was about 24 pages too long. I give Kavanaugh credit for trying to lay out an intellectual foundation to support his approach to originalism, but the only person who will be persuaded is Justice Kavanaugh himself.

Ouch! (It doesn't get any more favorable as it goes along either.)

And on Justice Barrett:

The developing challenge with Justice Barrett is not whether she understands originalist methodology. She does, and articulates it well. Rather, the debate is over how much evidence of original meaning she demands before following original meaning. From Fulton to Brackeen  to Rahimi, she wants a perfectly-compelling case to persuade her. Otherwise, Justice Barrett's mind is made up. I'm not sure why she has adopted this high burden. But the upshot is that in any given case, so long as Barrett convinces herself that lawyers did not meet the burden, she will revert to some non-originalist form of judging. Justice Barrett would prefer to openly avoid originalism, rather than pretending to follow what she sees as shoddy originalism. She will let the perfect be the enemy of the good.

I'm substantially more positive on each of opinions, which I think are thoughtful, interesting and constructive.  I think it's a positive step for the Justices to be working out their methodologies in public, in a sense joining the conversation that's been going on among originalist scholars  And it's a positive step for originalism to have Justices taking it seriously as a methodology.  I agree with much that's in each of the opinions, though I have at least one substantial disagreement with each of them.  I'll see if I have time for some thoughts before this blog goes on a summer hiatus (which is going to be announced fairly soon).

Available for pre-order and forthcoming very shortly, by Randy Barnett: A Life for Liberty: The Making of an American Originalist (Encounter Books, July 2, 2024).  Here is the book description from Amazon:

From prosecuting murderers in Chicago, to arguing before the Supreme Court, to authoring more than a dozen books, Georgetown University law professor Randy Barnett has played an integral role in the rise of originalism—the movement to identify, restore, and defend the original meaning of the Constitution. Thanks in part to his efforts, by 2018 a majority of sitting Supreme Court justices self-identified as “originalists.” 

After writing seminal books on libertarianism and contract law, Barnett pivoted to constitutional law. His mission to restore "the lost Constitution" took him from the schoolhouse to the courthouse, where he argued the medical marijuana case of Gonzeles v. Raich in the Supreme Court—a case now taught to every law student. Later, he devised and spearheaded the constitutional challenge to Obamacare. All this earned him major profiles in such publications as the  Washington Post, Wall Street Journal, and New York Times. Now he recounts his compelling journey from a working-class kid in Calumet City, Illinois to “Washington Power Breaker,” as the Congressional Quarterly Weekly called him.

The engaging story of his rise from obscurity to one of the most influential thinkers in America is an inspiring how-to guide for anyone seeking real-world advancement of justice and liberty for all.

Only $29.99 on pre-order.  For 656 pages!

(Via Instapundit.)

There is a lot to talk about in the various Rahimi opinions.  The Court is clearly engaged in a serious discussion about how to do originalism.

Here I want to react to a couple of things that Justice Kavanaugh said in his concurring opinion – statements that relate to the legitimacy of considering post ratification history that is not close in time to the Framing and therefore not really informative about the original meaning. 

Kavanaugh made two basic claims about such post ratification history that I think are just wrong. 

First, Kavanaugh states that “when the text is vague and the pre-ratification history is elusive or inconclusive, post-ratification history becomes especially important” because “absent precedent, there can be little else to guide a judge deciding a constitutional case in that situation, unless the judge simply defaults to his or her own policy preferences.” 

Wrong, wrong, wrong.  In such situations, the question is a close one.  But that does not mean a judge has no where to go except his policy preferences.  One might argue that the judge’s obligation in those cases is to make his best judgment as to what the original meaning is, even though the issue is not clear.  The question might be one where the evidence for A is 51 and the evidence for B is 49.  As John McGinnis and I argue, the judge should select A, even if he prefers B on policy grounds. 

In fact, Kavanaugh makes the same mistake here that many have made in defending Chevron.  If the text is ambiguous, they argue the judge can only consider his policy views.  I would have thought Kavanaugh rejected that view.   

Second, Kavanaugh cites Justice Scalia for the proposition that “post-ratification history” from “far beyond the time of enactment” are “indicative of original meaning.”  (Kavanaugh here cites Mike Ramsey.)  While Scalia may have said this, it is simply not true.  Even Scalia nods.  It is not clear what the cut off date should be for evidence of original meaning, but for example history from after the Civil War concerning a provision enacted in 1789 does not shed light on its original meaning.  Perhaps one should follow that history based on considerations similar to stare decisis.  Perhaps not.  But one should not follow it because it reflects the original meaning.   

TaxProf Blog has important thoughts from tax professors on the Moore v. United States Sixteenth Amendment case:

Lawrence Zelenak (Duke): Moore Thoughts.  An excerpt:

In the historical background portion of his opinion, Justice Kavanaugh goes out of his way to disapprove of the Court's 1895 holding in Pollock v. Farmers' Loan & Trust Co., that taxes on the income from property (both real and personal) are direct taxes, and thus invalid under the original Constitution if not apportioned. Kavanaugh writes, "Because income taxes are indirect taxes, they are permitted under Article I, § 8 without apportionment." In his telling, the Sixteenth Amendment simply "confirmed what had been the understanding of the Constitution before Pollock: Taxes on income—including income from property—are indirect taxes that need not be apportioned." Because nothing in the Court's discussion of Pollock ends up mattering for purposes of the Court's analysis of the MRT, the Moore opinion's reaching out to reject of Pollock is puzzling.

Conor Clarke (Washington University):  Four More Takeaways from Moore.  An excerpt:

The larger issue of “realization” lives to fight another day.  As suggested above, Kavanaugh took great pains to note that the Court was only answering a “precise and narrow question.”  The wider and more sprawling question was whether—as the famous, controversial, and rather elliptical 1920 case of Eisner v. Macomber is often read to suggest—realization is required for there to be a tax on “incomes” under the Sixteenth Amendment.  Many tax-law scholars (including the introductory casebook from which I teach) have long regarded Macomber—and the view that realization is constitutionally required—as an emphatically dead letter.  Justice Kavanaugh’s opinion suggests a breath of new life: “We do not decide that question today.”

In addition, no fewer than four Justices have now expressed the view that realization is a constitutional requirement.  In a concurring opinion, Justice Barrett (who some thought shared Kavanaugh’s views after argument, and who was joined by Justice Alito), noted her view that a realization requirement flows from the text of the Sixteenth Amendment: That amendment’s “reference to income ‘derived’ from any source,” she wrote, “encompasses a requirement that income, to be taxed without apportionment, must be realized.”  In his dissent (joined by Justice Gorsuch), Justice Thomas took the same view—that “[t]he text of the Sixteenth Amendment points to the concept of realization.”  The Wall Street Journal editorial page may be disappointed, but the express enthusiasm of these four justices for a constitutional realization requirement—combined with a five-justice majority that expressly declined to reach the issue—is a remarkable sea change for tax law and tax scholarship, which long viewed the issue as settled.

What will it mean?  For tax law, it means that constitutional litigation over tax issues is likely continue...

UPDATE:  Further at TaxProf Blog, John R. Brooks (Fordham) & David Gamage (Missouri-Columbia): Moore v. United States—Initial Reactions. An excerpt:

The decision was formally 7-2, with Justices Barrett and Alito concurring in the opinion. But in reality it’s a 5-4 decision, since Barrett and Alito along with Thomas and Gorsuch, in dissent, would have held that the Sixteenth Amendment does require realization. Their arguments are rather weak, however, perhaps as result of the strong historical arguments by the government and amici (including us). All nine Justices agree, for example, that the Sixteenth Amendment did not purport to enshrine a new or different idea of “income,” and that the Amendment was narrowly targeted at overruling one of the holdings of Pollock v. Farmers’ Loan & Trust Co. and restoring the pre-1895 income tax power. We have shown that fact unambiguously in our work, but it was not obvious going into the case that this Court would agree. Ironically, given their judicial philosophies, these four Justices instead seem to be making a non-originalist prudential argument that we need some rule to distinguish income from property, and an atextual argument that we should read the word “derived” in the Sixteenth Amendment as a “near-synonym” for “realized” in order to establish realization as such a rule. But they don’t seriously consider alternative tests for income—for example, the simple idea of economic gain between two points in time, as advocated by the government. Nor do they engage with the ample historical evidence that tax law and accounting prior to and contemporaneous with the Sixteenth Amendment frequently treated unrealized gain as “income,” including the corporate income tax in operation at the time of the Amendment’s ratification.

The authors are apparently unaware of the tradition that the title of any posts on Moore v. United States must contain a pun on Moore/more.  See also here and here.

At Dorf on Law, Eric Segall: The Supreme Court, First Amendment Foolishness, and the Irrelevance of Text to Constitutional Litigation.  From the introduction:

Although this blog post is devoted exclusively to the first amendment, the discussion of how far the Court has strayed from the plain meaning of the text applies across constitutional law, as I showed here in a much longer piece. For example, I won't discuss in this post the invisible federal equal protection clause, the invisible anti-commandeering clause, and the Court's decisions turning around the clear text of the 11th Amendment to mean the opposite of what it actually says, and so much more. Today, is first amendment day here at Dorf on Law.

The first amendment says the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let's begin with the first word, "Congress." That term is neither ambiguous nor imprecise. It refers to a specific institution: the United States Congress. Yet, the first amendment's speech and religion protections have been applied to all government institutions, state and federal, including the executive and judicial branches. 

It is one thing for the Court to hold that the 14th Amendment applies the first amendment to the states, a reasonable (if not persuasive) interpretation of the text and history of the 14th Amendment. But it is quite another to read the text of the first amendment and apply it to the President, a governor, or a state judge. The word "Congress" simply can't bear that meaning. 

So, what does the Court do? Ignore the issue altogether and apply the protections of the first amendment to all government institutions, federal, state and even local, though the text can't bear that weight.

The actual text does not matter. ...

And from later on:

The text refers to "no law." But, of course, no can't mean no so we ignore it. If the word "no" meant "no" then perjury laws, state and federal, would be unconstitutional (I will get to religion below), as would many laws prohibiting bribery and treason that prohibit speech if done for a certain purpose. But doesn't no mean no?

As is often the case with Professor Segall's posts, I sort of agree and sort of don't.  I agree that sometimes the Court gets far afield from the text (as in the application of the equal protection clause to the federal government), and for that it should be criticized.  But also, often the most plausible reading of a text derives from context as well as just from the supposedly plain language on its face.  (See here on Justice Scalia's methodology, and here more generally).  Textualist originalism asks what the text meant to informed readers at the time of enactment.  Does Professor Segall really suppose that informed readers of the First Amendment in 1791 thought it prohibited punishment of perjury?  Literalism, ignoring context, leads at times to odd results -- which is why few people endorse it.

At the same time, the claim that "the actual text doesn't matter" -- read to mean it never matters -- seems a difficult claim to defend, particularly with the current Court.  Does Professor Segall suppose that if there were no Second Amendment, the Court would still insist on the right to bear arms applied in Heller?  Does he suppose that if the Constitution's text directly stated the right to abortion, the Court would find a way to deny it?  Those would be extraordinary claims, for which I see no evidence.  Text matters (but it is not necessarily the end of the matter).

As to "Congress shall make no law...", I have some specific thoughts which I hope to post in due course.  Again, I sort of agree with Professor Segall and sort of don't.

UPDATE:  Eric Segall responds:

Yes, without the Second Amendment I absolutely believe the Court would have found an unenumerated right to own guns and the Court’s 11th Amendment cases show the Court will flatly ignore and discard unambiguous (and not absurd) text. If text only matters when the justices say it does, which is where we are, does it matter at all?

In Friday's decision in Rahimi v. United States, the Court (8-1, per Chief Justice Roberts) upheld under the Second Amendment the federal statute prohibiting gun possession by a person found by a court to be a threat to another person.  (SCOTUSblog coverage here; Eugene Volokh comments on the Second Amendment implications here.)  Five Justices wrote concurring opinions -- Sotomayor, Gorsuch. Kavanaugh, Barrett and Jackson. Justice Thomas dissented. Each of Gorsuch, Kavanaugh, and Barrett principally addressed originalism theory and methodology more broadly, in opinions that need careful study. The short of it, though, is that each opinion reaffirms a commitment to originalism.

From the beginning of Justice Gorsuch's opinion:

Mr. Rahimi pursues the “most difficult challenge to mount successfully”: a facial challenge. United States v. Salerno, 481 U. S. 739, 745 (1987). He contends that 18 U. S. C. §922(g)(8) violates the Second Amendment “in all its applications.” Bucklew v. Precythe, 587 U. S. 119, 138 (2019). To prevail, he must show “no set of circumstances” exists in which that law can be applied without violating the Second Amendment. Salerno, 481 U. S., at 745. I agree with the Court that he has failed to make that showing. Ante, at 8.

That is not because the Constitution has little to say about the matter. The Second Amendment protects the “right of the people to keep and bear Arms.” “‘[T]ext and history’” dictate the contours of that right. Ante, at 6 (quoting New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 22 (2022)). As this Court has recognized, too, the Amendment’s text “‘guarantee[s] the individual right to possess and carry weapons in case of confrontation.’” Id., at 32 (quoting District of Columbia v. Heller, 554 U. S. 570, 592 (2008)). And where that “text covers an individual’s conduct,” a law regulating that conduct may be upheld only if it is “consistent with this Nation’s historical tradition of firearms regulation.” 597 U. S., at 17; see ante, at 6.

In this case, no one questions that the law Mr. Rahimi challenges addresses individual conduct covered by the text of the Second Amendment. So, in this facial challenge, the question becomes whether that law, in at least some of its applications, is consistent with historic firearm regulations. To prevail, the government need not show that the current law is a “‘dead ringer’” for some historical analogue. Ante, at 8 (quoting Bruen, 597 U. S., at 30). But the government must establish that, in at least some of its applications, the challenged law “impose[s] a comparable burden on the right of armed self-defense” to that imposed by a historically recognized regulation. Id., at 29; see ante, at 7. And it must show that the burden imposed by the current law “is comparably justified.” Bruen, 597 U. S., at 29; see ante, at 7.

Why do we require those showings? Through them, we seek to honor the fact that the Second Amendment “codified a pre-existing right” belonging to the American people, one that carries the same “scope” today that it was “understood to have when the people adopted” it. Heller, 554 U. S., at 592, 634–635. When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty. See, e.g., 1 Blackstone’s Commentaries, Editor’s App. 300 (St. George Tucker ed. 1803) (observing that the Second Amendment may represent the “palladium of liberty,” for “[t]he right of self defence is the first law of nature,” and “in most governments[,] it has been the study of rulers to confine this right within the narrowest limits”); 3 J. Story, Commentaries on the Constitution of the United States §1890, p. 746 (1833) (“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic”).

We have no authority to question that judgment. As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber,” see ante, at 7—our only lawful role is to apply them in the cases that come before us. Developments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide. Bruen, 597 U. S., at 27–28; see, e.g., United States v. Jones, 565 U. S. 400, 404–405 (2012); Caetano v. Massachusetts, 577 U. S. 411, 411–412 (2016) (per curiam). If changes are to be made to the Constitution’s directions, they must be made by the American people.

Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. See post, at 6–16 (KAVANAUGH, J., concurring) (offering examples). And when doing so, litigants and courts “must exercise care.” See post, at 3, n. (BARRETT, J., concurring). 

From the beginning of Justice Kavanaugh's opinion:

The Framers of the Constitution and Bill of Rights wisely sought the best of both worlds: democratic self-government and the protection of individual rights against excesses of that form of government. In justiciable cases, this Court determines whether a democratically enacted law or other government action infringes on individual rights guaranteed by the Constitution. When performing that Article III duty, the Court does not implement its own policy judgments about, for example, free speech or gun regulation. Rather, the Court interprets and applies the Constitution by examining text, pre-ratification and postratification history, and precedent. The Court’s opinion today does just that, and I join it in full.

The concurring opinions, and the briefs of the parties and amici in this case, raise important questions about judicial reliance on text, history, and precedent, particularly in Second Amendment cases. I add this concurring opinion to review the proper roles of text, history, and precedent in constitutional interpretation.

The American people established an enduring American Constitution. The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood. The text of the Constitution is the “Law of the Land.” Art. VI. As a general matter, the text of the Constitution says what it means and means what it says. And unless and until it is amended, that text controls. ...

A recurring and difficult issue for judges ... is how to interpret vague constitutional text. That issue often arises (as here) in the context of determining exceptions to textually guaranteed individual rights. To what extent does the Constitution allow the government to regulate speech or guns, for example? In many cases, judicial precedent informs or controls the answer (more on that later). But absent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.

Generally speaking, the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text and the principles embodied in that text. The policy approach rests on the philosophical or policy dispositions of the individual judge. History, not policy, is the proper guide.

For more than 200 years, this Court has relied on history when construing vague constitutional text in all manner of constitutional disputes. For good reason. History can supply evidence of the original meaning of vague text. History is far less subjective than policy. And reliance on history is more consistent with the properly neutral judicial  role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people. Judges are like umpires, as THE CHIEF JUSTICE has aptly explained. And in a constitutional system that counts on an independent Judiciary, judges must act like umpires. To be an umpire, the judge “must stick close to the text and the history, and their fair implications,” because there “is no principled way” for a neutral judge “to prefer any claimed human value to any other.” R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 8 (1971). History establishes a “criterion that is conceptually quite separate from the preferences of the judge himself.” A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989). When properly applied, history helps ensure that judges do not simply create constitutional meaning “out of whole cloth.” A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989).

From the beginning of Justice Barrett's opinion:

Despite its unqualified text, the Second Amendment is not absolute. It codified a pre-existing right, and preexisting limits on that right are part and parcel  of it. District of Columbia v. Heller, 554 U. S. 570, 595, 627 (2008). Those limits define the scope of “the right to bear arms” as it was originally understood; to identify them, courts must examine our “historical tradition of firearm regulation.” New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1, 17, 19 (2022). That evidence marks where the right stops and the State’s authority to regulate begins. A regulation is constitutional only if the government affirmatively proves that it is “consistent with the Second Amendment’s text and historical understanding.” Id., at 26.

Because the Court has taken an originalist approach to the Second Amendment, it is worth pausing to identify the basic premises of originalism. The theory is built on two core principles: that the meaning of constitutional text is fixed at the time of its ratification and that the “discoverable historical meaning . . . has legal significance and is authoritative in most circumstances.” K. Whittington, Originalism: A Critical Introduction, 82 Ford. L. Rev. 375, 378 (2013) (Whittington). Ratification is a democratic act that renders constitutional text part of our fundamental law, see Arts. V, VII, and that text “remains law until lawfully altered,” S. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777, 782 (2022). So for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function. To be sure, postenactment history can be an important tool. For example, it can “reinforce our understanding of the Constitution’s original meaning”; “liquidate ambiguous constitutional provisions”; provide persuasive evidence of the original meaning; and, if stare decisis applies, control the outcome. See Vidal v. Elster, 602 U. S. ___, ___–___ (2024). But generally speaking, the use of postenactment history requires some justification other than originalism simpliciter.

In Bruen, the Court took history beyond the founding era, considering gun regulations that spanned the 19th century. 597 U. S., at 50–70. I expressed reservations about the scope of that inquiry but concluded that the timing question did not matter to Bruen’s holding. Id., at 81–83 (concurring opinion). It bears emphasis, however, that my questions were about the time period relevant to discerning the Second Amendment’s original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood? Id., at 82 (“How long after ratification may subsequent practice illuminate original public meaning?”). My doubts were not about whether “tradition,” standing alone, is dispositive. Id., at 83 (“[T]oday’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights”). As I have explained elsewhere, evidence of “tradition” unmoored from original meaning is not binding law. Vidal, 602 U. S., at ___–___ (BARRETT, J., concurring in part) (slip op., at 13–15). And scattered cases or regulations pulled from history may have little bearing on the meaning of the text. Samia v. United States, 599 U. S. 635, 656–657 (2023) (BARRETT, J., concurring in part and concurring in judgment).

“Original history”—i.e., the generally dispositive kind—plays two roles in the Second Amendment context. It elucidates how contemporaries understood the text—for example, the meaning of the phrase “bear Arms.” See Heller, 554 U. S., at 582–592. It also plays the more complicated role of determining the scope of the pre-existing right that the people enshrined in our fundamental law.  In Rahimi’s case, the Court uses history in this latter way. Call this “original contours” history: It looks at historical gun regulations to identify the contours of the right.

At Bench Memos, Ed Whelan: On [Thursday's] Tax Ruling in Moore v. United States. From the introduction: 

The big-picture takeaway for the general reader is that the five-justice majority—opinion by Kavanaugh, joined by the Chief, Sotomayor, Kagan, and Jackson—avoided deciding whether the Sixteenth Amendment requires that income be realized in order to be taxable. The four other justices—Thomas, Alito, Gorsuch, and Barrett—found it clear that the Sixteenth Amendment does impose a realization requirement.

While the majority opinion thus leaves open the theoretical possibility that the Sixteenth Amendment would allow a tax on wealth, it certainly does not greenlight such a tax. On the contrary, Justice Kavanaugh cites the government’s double acknowledgments at oral argument that a tax on wealth “might be considered a tax on property, not income” (and thus be subject to the Constitution’s onerous requirement that “direct” taxes be apportioned among the states according to population) and that the Sixteenth Amendment might require that income be realized.

And from later on:

Justice Barrett, joined by Justice Alito, concurred in the judgment, and Justice Thomas, joined by Justice Gorsuch dissented. Despite her agreement with the majority’s bottom line, Barrett’s opinion has much more in common with Thomas’s.

Addressing the question on which the Court granted certiorari (but that the majority does not decide), Barrett concludes that it is “straightforward” that the Sixteenth Amendment does not authorize Congress to tax unrealized sums. She disagrees with the majority’s reasons for saying that the income realized by a foreign corporation can be attributed to its taxpayers, but she finds that the plaintiff taxpayers in this case, having “barely addressed” the attribution question, “have not met their burden” of showing that the income at issue here cannot be attributed to them.

Justice Thomas, in his dissent, opines that realization is a constitutional requirement for income taxes, and he calls the majority’s “clear rule” on attribution an “invention” and a “mirage.” He concludes that the MRT does not operate as a tax on income.

This all sounds right to me, confirming that the opinion is generally consistent with an originalist perspective even though Justices Thomas and Gorsuch dissented.  The majority opinion is appropriately narrow, unlike the Ninth Circuit opinion below, which (as Judge Bumatay argued in dissent) went far beyond an originalist interpretation of the Sixteenth Amendment. 

RELATED: For a more pessimistic view, from the editors of the Wall Street Journal: A Supreme Court Mistake on Wealth Taxes - Five Justices open the door to taxing unrealized gains in assets. Democrats will walk through it.

[Ed.: For this guest post we welcome back occasional contributor Will Foster, 2024 graduate of Columbia University.]

Last Thursday, originalists were treated to a fascinating debate between Justices Thomas and Barrett in Vidal v. Elster, a case about the constitutionality of a provision of federal trademark law. Although the Court unanimously held that the provision at issue—the “names clause” of the Lanham Act—did not violate the First Amendment, the justices were somewhat fractured in their reasoning. A majority of the Court, in an opinion by Justice Thomas, held that “history and tradition establish” the constitutionality of banning registration of trademarks containing names. But Justice Barrett wrote separately to express concern about the Court’s methodology—specifically, “its choice to treat tradition as dispositive of the First Amendment issue.” Instead, she would adopt a test under which trademark restrictions are constitutional if “they are reasonable in light of the trademark system’s purpose of facilitating source identification.”

Each of the opinions has its virtues. Justice Thomas’ opinion (and even more so Justice Kavanaugh’s concurrence) takes a minimalist approach. Whatever standard might govern other cases, the majority says, this case is a simple one: Regardless of whether “an equivalent history and tradition” is necessary to uphold a trademark restriction, such a “historical pedigree” is at least sufficient. (Minimalist judicial opinions often embody what Cass Sunstein calls “incompletely theorized agreements,” and this seems like a classic example.) Justice Barrett, meanwhile, seeks to articulate “a generally applicable principle” that would not only resolve the instant case but also “bring clarity to the law” in this area. The thoughtful exchange between the justices on these points is a worthwhile read.

Yet there are some puzzles, too. All the justices seem to agree that trademark law has historically been content-based, and that—in the majority’s words—“the inherently content-based nature of trademark law has never been a cause for constitutional concern.” This history, in turn, helps show why content-based trademark registration laws need not be subject to heightened scrutiny as a matter of course. Yet I wonder whether similar arguments could have been made in Matal v. Tam or Iancu v. Brunetti, two prior cases in which the Court struck down viewpoint-based provisions of the Lanham Act. For instance, in Iancu, the Court invalidated the Act’s bar on “immoral or scandalous” trademarks. But as Michael Ramsey noted earlier on this blog, it seems unlikely that there is a “history or tradition of registering marks consisting of thinly disguised profanity.” Moreover, some version of the provision held unconstitutional had been on the books since 1905, and the government’s brief in Iancu pointed to an 1883 international treaty (ratified by the U.S. in 1887) containing similar language. In a 1914 trademark case, the Supreme Court recited the elements of the 1905 statute (including the “immoral or scandalous” provision) with apparent approval. Indeed, the court below in that case had observed in passing that “[u]ndoubtedly public policy would prevent the registration as trade-marks of marks consisting of immoral or scandalous matter.” 

True, that history is far removed from the Founding, and even from the ratification of the Fourteenth Amendment. But much of the history discussed in Vidal was not much older; as Justice Barrett observed, the Court focused primarily on “late-19th and early-20th century evidence.” Now, like Professor Ramsey, I must acknowledge that I have not done any extensive research on the history of trademark law. It is possible that the historical examples I cite above were aberrations, and that a more detailed examination would reveal that viewpoint discrimination, unlike mere content discrimination, was rare in trademark law. But I have not seen that argument made by any of the justices. Instead, the prevailing view appears to be that there is no need to look at history and tradition in cases like Iancu, presumably because viewpoint discrimination is categorically (or almost categorically) barred by the First Amendment.

But that brings me to my second, and broader, point. As I see it, the whole historical debate in Vidal—as fascinating as it is—has a sort of Hamlet-without-the-prince quality to it. While the justices tangle over exceptions to the rules of content and viewpoint neutrality, they leave curiously unexplored the basis for those rules. To be clear, as a policy matter, I fully agree that neutrality is a valuable goal for the government to pursue in regulating expression. But that is a separate question from what the Constitution requires, and major aspects of First Amendment doctrine have been subject to withering historical critiques in recent years. Maybe those critiques are wrong, or can be overridden by other considerations. History did not end in 1791, and it is quite possible that developments since the Founding have liquidated the meaning of the First Amendment such that some (even most) modern free speech doctrines are permissible interpretations of the text. Most originalists accept the need for “implementing doctrines” that flesh out underdeterminate language, and perhaps viewpoint-neutrality and content-neutrality fit the bill. But if so, it would be good to see that argument made explicitly.

As I wrote last year, originalists face genuinely difficult problems in reconciling their first-order views of the law with established precedent. Indeed, I suspect that part of what fractured the Bruen majority in Vidal is the simple fact that the slate here was so much less clean than in Bruen. In other words, the disagreement in Vidal illustrates the challenge of applying Bruen’s methodology to constitutional clauses with a much larger accretion of precedent already on the books. So Justice Barrett’s separate opinion may not reflect “second thoughts” about Bruen, as Josh Blackman argues, but rather an appreciation of the distinct circumstances the Court faced here. The same might be said for the tentative, carefully limited language in the majority opinion.

No justice can or should attempt to rewrite First Amendment law from the ground up. Even aside from stare decisis, established rules of party presentation rightly place limits on how much the justices can question widely-accepted principles of law. At the same time, I worry that a situation in which precedent governs in one area and history governs in a directly adjacent one is unlikely to work well. And in focusing narrowly on content-based trademark restrictions, I worry that the Court—majority and concurrences alike—may have missed the bigger picture. If history is relevant in some areas but not others, we need to know why that is. And to figure that out, we might need to look beyond trademark law—to try to determine (in Justice Barrett’s apt words) the “generally applicable principle” embodied in the “broadly worded text” of the Free Speech Clause.

Over at Law and Liberty, I have an essay on the CFPB v. Community Financial Services Assoc. case involving the meaning of the Appropriations Clause.  The essay, entitled Good Originalism, Bad Policy, begins:

On the surface, the Supreme Court’s recent decision in Consumer Financial Protection Bureau v. Community Financial Services Association represents a triumph of originalism. Justice Thomas’s majority decision for seven members of the Court expertly employs originalist methodology. The dissent, by Justice Alito, is also written from an originalist perspective, adopting a different view of the original meaning. But below the surface, the case raises a host of important issues concerning originalism: the conflict between following the original meaning and pursuing good policy; a dispute about how to determine the original meaning; and the question of whether the Court should follow the original meaning alone or supplement it with a form of living constitutionalism or history and tradition. Despite these concerns, Community Financial Services ultimately represents a significant victory for originalism.

On the policy underlying the appropriations for the CFPB:

While the argument that the funding mechanism complies with the original meaning of the Appropriations Clause seems strong, that of course does not mean that this mechanism is good policy. The Dodd-Frank Act that established the CFPB embraced a view of government structure that sought to strongly insulate an agency from political controls to allow it free reign to pursue its preferred regulatory policies. The funding mechanism was only part of this design. The provision that rendered the Director of the CFPB independent of the President—which was held unconstitutional in Seila Law v. CFPB in 2020—was another. In my view, such insulation is abominable policy. Allowing basic regulatory policy to be made by agencies who are not politically accountable is not only anti-democratic but is often an engine for expansive regulation since it eliminates checks on agency preferences for additional regulation.

But not every bad policy is unconstitutional. A constitution is a set of rules and procedures that regulate how governments operate. Even a good constitution—one that imposes good rules and policies—will not be able to prevent all bad laws and policies.

And on the role of history and tradition in the concurring opinion joined by Barrett and Kavanaugh:

Another possible justification for considering practice is the traditional interpretive canons that placed weight on contemporary exposition (early interpretation) and customary interpretation (consistent interpretation over time). Contemporary exposition is obviously consistent with originalism as it considers views of the meaning at the time of enactment. But customary interpretation less obviously comports with originalism. Still, since it was a traditional interpretive rule, one might regard it as an original method that would have been deemed to determine the meaning (or a type of precedent originalist courts can consider).

But customary interpretation without contemporary exposition—that is, a consistent interpretation that only begins many years after enactment—is considerably weaker than when both canons apply. Thus, it seems unlikely that such customary interpretations would even be relevant except where the matter is a close one. It would not have, as Kagan claims, “great weight.” Since Thomas shows the original meaning is clear, it is arguably not even appropriate to consider later practice. Just as someone, who believes legislative history is only relevant to resolve an ambiguity, would not consult it to interpret an unambiguous provision, so an originalist should not consider a customary interpretation to interpret an unambiguous provision.

As they say, read the whole thing. 

David M. Schizer (Columbia University - Law School) & Steven G. Calabresi (Northwestern University - Pritzker School of Law) have posted Wealth Taxes Under the Constitution: An Originalist Analysis (Florida Law Review, forthcoming 2025) (85 pages) on SSRN.  Here is the abstract:

A federal wealth tax is high on the wish list of progressive icons like Elizabeth Warren and Bernie Sanders, but is it constitutional? This Article shows that it is a "direct tax," which must be apportioned among the states. This means that the percentage of revenue collected in each state must match its percentage of the population. For instance, if two states each have three percent of the population, each must provide three percent of the revenue from a wealth tax. This leads to an unappealing outcome: if one state is less wealthy, it needs a higher tax rate to supply its share. To rescue wealth taxes from apportionment, distinguished commentators have offered a range of theories. For example, some treat apportionment as a mistake, while others dismiss it as a protection for the shameful institution of slavery.

But these commentators do not give the Framers enough credit. The taxing power was too important for them to be sloppy or to focus only on the institution of slavery. In our view, the taxing power reflects the same influences as the rest of the Constitution. Like the new government’s other features, the taxing power was supposed to be effective but limited. The Framers wanted to solve the fundamental problem under the Articles of Confederation (insufficient revenue), without recreating the fundamental problem under imperial rule (taxation without representation). Specifically, they sought to discourage what we call “fiscal raids,” in which states join forces to enact national taxes that mostly burden other states. As Professors Ackerman and Amar have shown, this risk could arise with an unapportioned tax on enslaved persons, since it would have been collected mainly in the South. But we show that the same was true of other region-specific practices, such as tobacco plantations and undeveloped land in the South, as well as ships, timber, farms, and manufacturing in the North. Apportionment was supposed to protect all these region-specific assets from fiscal raids. In pursuing these various goals, what did the Framers mean by a “direct tax”? They considered a tax “direct” if it applied to taxpayers themselves, instead of to their transactions. A direct tax could be triggered merely by residing in the jurisdiction or owning property. In contrast, taxes on transactions—including on imports (“imposts”) and on domestic production and consumption (“excises”)—did not have to be apportioned. Admittedly, some courts and commentators have offered the narrower interpretation that “direct” is limited to head taxes and real estate taxes. But at ratifying conventions, John Marshall, Oliver Ellsworth, and other Framers offered a broader definition, which included livestock, business assets, and other personal property. Dicta in an early case, Hylton v. United States, offered the narrower interpretation (head and land taxes), but the holding can be reconciled plausibly (although not perfectly) with our interpretation, while most other Supreme Court cases on the Direct Tax Clause align with our reading.

At Volokh Conspiracy, Josh Blackman:

Justice Thomas Reverses President Trump's Executive Overreach in Cargill v. Garland

Justice Barrett's Concurrence In Vidal v. Elster Is a Repudiation of Bruen's "Tradition" Test

From the latter post:

Of the three Trump appointees, Justice Barrett was the biggest wildcard. With Justices Gorsuch and Kavanaugh, what you saw is what we got. Very little that they've done so far has surprised me. Justice Gorsuch's approaches to LGBT rights and Indian law were evident in his lower-court record. And Justice Kavanaugh's restraint and compassionate conservatism—truly the hallmarks of the George W. Bush presidency—were on display in the Obamacare litigation and other cases. Again no surprises. But Justice Barrett had limited experience on the bench, wrote little as an academic, and never took any position on controversial matters of concern. She wasn't quite a blank slate, but she was as close to it as fathomable for a Republican Supreme Court appointment.

I get the genuine sense that Justice Barrett is figuring things out as she goes along. Each of her opinions seems like a new day. Brilliant as Barrett is—and I think she is extremely intelligent—she is learning on the job. With that development, I think she has come to regret some of her decisions in short order. For example, I think she backed off her vote in Roman Catholic Diocese after incessant "shadow docket" criticism, as evident in Does v. Mills. I also think she felt compelled to reimagine the major questions doctrine as some sort of semantic/textualist cannon following criticism of the Gorsuchian substantive cannon. I wouldn't be surprised if she develops doubts about the presidential removal power, though parting company with Justice Scalia's Morrison dissent may be too much to bear.

More pressingly, I think Justice Barrett is already having second thoughts about the text, history, and tradition framework in Bruen. She couldn't even join Justice Thomas's landmark opinion without reservations. We know she wrote a concurrence in Bruen that questioned whether the relevant timeframe was 1791 or 1868. Fair enough. But I thought her concurrence went further. She seemed to be casting some doubt on Justice Thomas's majority opinion, and the entire enterprise of looking at historical analogues. It is no surprise that Justice Breyer's  Bruen dissent favorably cited Barrett's concurrence. More recently, in the CFPB case, Justice Barrett put more distance between herself and Justice Thomas by joining Justice Kagan's concurrence, which fixated on liquidation and post-enactment practice.

Justice Barrett doubled-down on her disagreement with Justice Thomas in Vidal v. Elster. This case tells us far more about the Court's originalist jurisprudence than it does about trademark law. I can't remember ever seeing a unanimous decision with such a fractured lineup. To paraphrase the T-Shirt, Thomas's majority was too small.

Justice Alito, concurring in Garland v. Cargill (decided Friday, with the majority opinion by Justice Thomas):

I join the opinion of the Court because there is simply no other way to read the statutory language. There can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b). But an event that highlights the need to amend a law does not itself change the law’s meaning.

There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act.

Agreed.  When the text is clear, interpreters should not speculate about what the enactors would have wanted, had the enactors thought about the situation the court now confronts.  For this point in a completely different context, see the last part of this article (on a question of constitutional interpretation).

The dissent in Cargill relies on the presumption against ineffectiveness -- which is a legitimate linguistic canon (discussed in Scalia & Garner's Reading Law, pp. 63-65).  But as the Scalia & Garner discussion makes clear, it only applies in cases of true ambiguity, which the majority found not to exist in Cargill.

At Volokh Conspiracy, Eugene Volokh highlights the dueling originalist opinions by Justices Thomas (majority) and Barrett (concurring) in Vidal v. Elster, decided yesterday: Justices Agree on Constitutionality of Trademark Restriction, Disagree on How to Approach Such Questions. From the introduction:

[Thursday's] decision in Vidal v. Elster unanimously upheld a federal trademark law provision that bars federal registration of any trademark that "[c]onsists of or comprises a name … identifying a particular living individual except by his written consent." The law doesn't bar people from using others' names as part of a trademark, but bars federal registration of such marks, which would provide trademark owners special protect against infringement. (The case involved plaintiff's attempt to register the mark "Trump Too Small," but the legal issue went far beyond this mark.)

The Court unanimously agreed that this was a content-based, though viewpoint-neutral, classification. But while content-based speech restrictions are presumptively unconstitutional, the Justices agreed that this law is fine.

But the Justices sharply disagreed on the rationale for this conclusion.

1. Justice Thomas, joined by Justices Alito and Gorsuch, concluded that the law is constitutional chiefly because of what they saw as a longstanding historical tradition of allowing such exclusions from trademark registration.

2. Justice Barrett, joined by Justice Kagan and in considerable part by Justices Sotomayor and Jackson, concluded that the law is constitutional chiefly by analogy to the First Amendment doctrine having to do with government-provided benefits for private speakers, under which reasonable, viewpoint-neutral restrictions on the benefits are constitutional; they were quite skeptical of Justice Thomas's historical focus. (Justice Sotomayor also wrote a similar opinion, joined by Justices Kagan and Jackson.)

3. And Justice Kavanaugh, joined by Chief Justice Roberts, tried as much as possible to abstain from this debate.

Here is a key excerpt from Justice Barrett's concurrence:

While I agree with the Court that the names clause does not violate the First Amendment, I disagree with some of its reasoning. The Court claims that "history and tradition" settle the constitutionality of the names clause, rendering it unnecessary to adopt a standard for gauging whether a content-based trademark registration restriction abridges the right to free speech. That is wrong twice over. First, the Court's evidence, consisting of loosely related cases from the late-19th and early-20th centuries, does not establish a historical analogue for the names clause. Second, the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.

I would adopt a standard, grounded in both trademark law and First Amendment precedent, that reflects the relationship between content-based trademark registration restrictions and free speech. In my view, such restrictions, whether new or old, are permissible so long as they are reasonable in light of the trademark system's purpose of facilitating source identification.

...

I cannot agree with the Court that the existence of a "common-law tradition" and a "historical analogue" is sufficient to resolve this case. Even if the Court's evidence were rock solid, I still would not adopt this approach. To be sure, tradition has a legitimate role to play in constitutional adjudication. For instance, the longstanding practice of the political branches can reinforce our understanding of the Constitution's original meaning. The views of preceding generations can persuade, and, in the realm of stare decisis, even bind. But tradition is not an end in itself—and I fear that the Court uses it that way here.

The Court does not (and could not) argue that the late-19th and early-20th century names-restriction tradition serves as evidence of the original meaning of the Free Speech Clause. Nor does it treat the history it recites as a persuasive data point. Instead, it presents tradition itself as the constitutional argument; the late-19th and early-20th century evidence is dispositive of the First Amendment issue. Yet what is the theoretical justification for using tradition that way?

I'm no expert in free speech and trademark law (though I know someone who is), but on quick reflection this seems pretty persuasive.  I don't understand how late-nineteenth century/early-twentieth century practice is relevant to original meaning.  And yet, I also don't see how Justice Barrett's "reasonableness" test arises from original meaning either.

Further (again noting that I'm not a trademark scholar), I don't see how any of this is consistent with Iancu v. Brunetti, in which the Court held that the First Amendment prevented the federal government from rejecting a trademark registration for "FUCT" under a statutory direction that prohibits registration of trademarks that “[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter.” Without having looked into the matter, I'm quite confident that there is no history or tradition of registering marks consisting of thinly disguised profanity.

And finally, I don't see how any of this is consistent with CFPB v. Community Financial Services Association of America. [Yes, I promised I wouldn't post any more on that case but this is different because I say so.]  In that case Justice Thomas (for the majority) said that the original meaning was conclusive irrespective of subsequent practice, and Justice Barrett joined a concurrence saying that remote post-ratification practice (including apparently late-nineteenth century/early-twentieth century practice) should be considered.

UPDATE:  Josh Blackman adds that it also seems inconsistent with Counterman v. Colorado, the 2023 true threats case that he discussed here: Goldilocks and the Four Non-Originalists.

Gregory Klass (Georgetown University Law Center) has posted A Short History of the Interpretation-Construction Distinction (7 pages) on SSRN.  Here is the abstract:

This document collects for ease of access and citation three of my posts on the New Private Law Blog, which chart the conceptual history of the interpretation-construction distinction. The posts begin with Francis Lieber’s 1939 introduction of the concepts, then describes Samual Williston’s 1920 account of the distinction in the first edition of Williston on Contracts, and concludes with Arthur Linton Corbin’s 1951 reconceptualization in the first edition of Corbin on Contracts. The posts identify two different conceptions of the distinction. Under the first (Lieber and Williston), construction supplements interpretation. Under the second (Corbin), the two activities complement one another. The complementary conception is the better one.

Via Larry Solum at Legal Theory Blog, who says:

If you are going to discuss or even mention the interpretation-construction distinction in your own work, this paper is both essential reading and a mandatory citation. And it's short!  Highly recommended.  Download it while it's hot!

At Just Security, Seth Barrett Tillman: The Right to a Unanimous Verdict and the Jury Instructions in People v. Trump.  From the introduction:

In The People of the State of New York v. Donald J. Trump, Justice Juan Merchan issued a set of jury instructions—55 pages in length. Merchan permitted the jury to convict based on a violation of N.Y. Election Law Section 17-152. Conviction under Section 17-152 requires a predicate legal violation: a violation of some other law as part of a conspiracy to promote the election of a candidate for public office. That is, Section 17-152 is satisfied only if the defendant has violated Section 17-152 “by unlawful means.” However, according to Merchan’s instructions, the jurors did not need to reach a unanimous agreement as to what were the “unlawful means.”

Merchan’s jury instructions state:

Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.

In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following unlawful means: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

In short, in order to convict, the jury must unanimously agree that a predicate legal violation occurred: (1) or (2) or (3), as listed above. But the jury, according to Merchan’s instructions, need not unanimously agree on any one such predicate violation. The 12-member jury could divide 4-to-4-to-4, where each juror agreed that Trump committed one of the three predicate legal violations, but there is no unanimity required in regard to any one or more of them.

There is some good reason to believe Merchan’s jury instructions are flawed, that is, the jury instructions violate Trump’s constitutional right to a unanimous verdict. . . .

A detailed analysis follows.

Recognizing that this is way outside my expertise, this sounds right.  Generally I would think the prosecution does not get to argue in the alternative.  The argument can't be: find the defendant guilty of robbery, because either he robbed Smith, or he robbed Jones, or he robbed Johnson (and you don't have to agree on which one he robbed).  At least I assume that is the historical practice.  Yet it seems like that is what the jury instructions permit.

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School) has posted Separation of Powers Is A They, Not An It (forthcoming, Harvard Journal of Law & Public Policy) (13 pages) on SSRN.  Here is the abstract:

Judges and lawyers refer to "the" separation of powers, but the term is an umbrella concept, referring to six different propositions, or six separations of powers. (1) The legislature may not exercise the executive power. (2) The legislature may not exercise the judicial power. (3) The executive may not exercise the legislative power. (4) The executive may not exercise the judicial power. (5) The courts may not exercise the legislative power. (6) The courts may not exercise the executive power. None of these propositions is without ambiguity and all of them must be qualified, but each can be understood to have a core of both meaning and truth. If the goal is to protect liberty or self-government, every one of the six propositions can be strongly defended, but they raise different considerations, and they must be analyzed separately. None of them is a logical truth; all of them rest on empirical judgments, involving the likely capacities and performance of various institutions, that are more than plausible but that may or may not be correct.

I agree with the core proposition that "separation of powers" refers to six different propositions -- which I think in U.S. constitutional law is reflected in the Constitution's textual description of the powers of each branch.  But that leads me to a different type of analysis.  For some thoughts about how this approach applies to foreign affairs, see here.

Stephen E. Sachs (Harvard Law School) has posted Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles (Harvard Journal of Law and Public Policy, Forthcoming) (23 pages) on SSRN.  Here is the abstract:

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

Recently published, by Megan Walsh (Minnesota) & Saul Cornell (Fordham): Age Restrictions and the Right to Keep and Bear Arms, 1791–1868 (108 Minn. L. Rev. 3049 (2024)).  Here is the abstract:

The disproportional misuse of firearms by eighteen-to-twenty-year-olds has long been a problem in America. The concerns are not novel. Nor are legislative responses to this problem a recent development in American law. These limitations are deeply rooted in American legal history.

While minimum age gun laws routinely survived constitutional challenges before the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, the majority of courts applying Bruen have struck down firearms restrictions based on age. Bruen fundamentally altered the way courts evaluate the constitutionality of firearms regulations, requiring them to judge modern gun laws based on history, text, and tradition. As Bruen requires, courts have turned to history to adjudicate these challenges. Unfortunately, many courts have discounted the relevant history and tradition.

At the time of the Founding, individuals under the age of twenty-one were viewed as lacking sufficient judgment to make responsible decisions. These individuals, categorized as “infants” at the time, were unquestionably not full members of the political community. Their ability to contract was limited, which prevented them from obtaining arms without the assistance of parents or guardians. Although those under the age of twenty-one  served in the militia, statutes mandating militia service do not demonstrate a right to keep and bear arms outside of militia service. Instead, these statutes demonstrate the government’s power over eighteen-to-twenty-year-olds, and represent the obligation of minors to serve, not an independent right to possess firearms.

The nation’s tradition of regulating firearms based on age expanded after the Founding. By the time of the adoption of the Fourteenth Amendment, such regulations were commonplace and widely viewed as a core exercise of state and local police power. Bruen’s directive that modern-day firearms regulation must be guided by history supports limits on minors’ access to deadly weapons.

Anglo-American law has always countenanced restrictions based on age, and recent developments in neuroscience have vindicated historical wisdom on this matter. Brain development of eighteen-to-twenty-year-olds is incomplete, a fact that limits their ability to evaluate risk and heightens their inclination to make reckless decisions. Indeed, while our understanding of the place of women and minorities in society and the political community has rightfully transformed since the time of the Founding, the view of teenagers’ limited capacity to make responsible decisions has not changed, but, instead, has been bolstered by scientific development. Applying Bruen’s analytical framework to these facts leads to the conclusion that modern-day firearm regulations based on age are justified by history, text, and tradition.

(This is part of a law review symposium on the Second Amendment after Bruen.  Among other essays, Brannon P. Denning & Glenn H. Reynolds Trouble’s Bruen: The Lower Courts Respond.)

Michael Showalter (Independent) has posted Palmer v. Amazon: A Case Study in Textualism and the Fixed-Meaning Canon (Wake Forest Law Review online, forthcoming) (16 pages) on SSRN.  Here is the abstract:

As in many states, the New York Workers’ Compensation statute provides that an employer’s obligation to pay workers’ compensation “shall be exclusive” and “in place of any other liability whatsoever” to an employee. All agree that the provision bars workplace-injury claims for monetary relief, but whether the provision additionally bans claims for injunctive relief—whether the word "liability" encompasses injunctions—is contested. The Second Circuit recently held in Palmer v. Amazon that the provision does not preclude employees for suing their employers for injunctive relief because (in the court’s view) being enjoined does not make an employer "liable."

While that conclusion may hold intuitive appeal to modern readers engulfed in modern language usage, it is indefensible as a matter of original meaning. The evidence of original meaning is overwhelming—when the statute was enacted in 1914, "liability" unambiguously encompassed injunctive relief. The Second Circuit reached the contrary conclusion by ignoring the evidence.

Because the relevant statutory language involves an extraordinarily consequential difference between original meaning and modern meaning, Palmer highlights the importance of the fixed-meaning canon. By fixing statutory meaning at the time of enactment, the canon anchors case outcomes to the law actually passed. When later generations apply legal provisions by reference to modern language usage, by contrast, they are applying a different law—one that the legislature never adopted. That’s what the Second Circuit did here: by substituting its own modern understanding of the word "liability" for that word’s original meaning, the court effectively amended the statute to impose a set of rights and obligations different than what the enacted statute imposes.

I take no position on the policy result, but the legislature wrote the statute it wrote. Any policy suboptimality should be resolved through the legislative process, not by judicial fiat. The New York Court of Appeals should correct the Second Circuit’s error when the opportunity arises, and other courts should take care to avoid replicating the error whether in the workers-compensation context or elsewhere.

Andrew Kent (Fordham University School of Law) has posted Executive Power, the Royal Prerogative, and the Founders' Presidency (92 Journal of American Constitutional History 403 (2024)) (170 pages) on SSRN.  Here is the abstract:

The original meaning of the opening clause of Article II of the Constitution--which vests "[t]he executive power ... in a President of the United States"--has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered "executive" in nature in the eighteenth century, defined by reference to the royal prerogative powers of the British monarchy. Other scholarship views the Clause as granting only the power to execute the law. A third approach interprets the Clause even more minimally, as a mere designation provision, not granting power at all but making clear that there would be a singular chief magistrate called the president, with power flowing from enumerations such as the Commander in Chief, Appointments, Pardons, and Treaty Clauses. This Article comprehensively reviews the British and American legal, political, and ideological backgrounds relevant to understanding the Executive Power Clause; carefully reads the text in light of interpretive conventions used in the founding era and extrinsic evidence from the Philadelphia Convention and state ratification debates; and critically evaluates the current scholarship. The wide divergence among modern scholars about the meaning of the Executive Power Clause is found to reflect real ambiguity in the text of the Constitution and the historical records. Unlike many previous scholars, who have settled on their preferred reading as the clearly correct choice, I find that there are several plausible original public meanings of the Executive Power Clause. When the new government under the Constitution became operational in 1789, the ambiguous Clause was sitting there ready to become a site of contestation. That said, the text and history I review here support at least one firm conclusion: by far the least plausible original meaning of the Executive Power Clause is the one which sees it as granting an undefined amount of British royal prerogative power to the president.

To be clear (because sometimes people are mistaken on this), I do not think that the original meaning of the Executive Power Clause "grant[s] an undefined amount of British royal prerogative power to the president."  (I'm not sure anyone does.)  I have argued, however, that the original meaning of the Executive Power Clause grants some fairly limited foreign affairs powers, which is a different matter.

Recently published, by Alison LaCroix (Chicago): The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, May 2024).  Here is the book description:

A synthesis of legal, political, and social history to show how the post-founding generations were forced to rethink and substantially revise the U.S. constitutional vision
 
Between 1815 and 1861, American constitutional law and politics underwent a profound transformation. These decades of the Interbellum Constitution were a foundational period of both constitutional crisis and creativity.
 
The Interbellum Constitution was a set of widely shared legal and political principles, combined with a thoroughgoing commitment to investing those principles with meaning through debate. Each of these shared principles—commerce, concurrent power, and jurisdictional multiplicity—concerned what we now call “federalism,” meaning that they pertain to the relationships among multiple levels of government with varying degrees of autonomy. Alison L. LaCroix argues, however, that there existed many more federalisms in the early nineteenth century than today’s constitutional debates admit.
 
As LaCroix shows, this was a period of intense rethinking of the very basis of the U.S. national model—a problem debated everywhere, from newspapers and statehouses to local pubs and pulpits, ultimately leading both to civil war and to a new, more unified constitutional vision. This book is the first that synthesizes the legal, political, and social history of the early nineteenth century to show how deeply these constitutional questions dominated the discourse of the time.

Erik M. Jensen (Case Western Reserve University School of Law) has posted The Commerce Clause Doesn't Override Rules Governing the Taxing Power (182 Tax Notes Federal 1603 (2024); 113 Tax Notes International 1169 (2024)) (7 pages) on SSRN.  Here is the abstract:

This article challenges the view that the commerce clause, including the foreign commerce part of that clause, provides authority for enacting taxes that don’t meet the explicit requirements for taxes set out in the Constitution—the uniformity rule for indirect taxes (duties, imposts, and excises), the apportionment rule for direct taxes that aren’t taxes on incomes, and the export clause that prohibits taxation of articles exported from any state. That reading of the commerce clause would gut constitutional provisions that were clearly intended to be limitations on the congressional taxing power. Even if a tax might be construed as a regulation of commerce, as would be the case with many, if not most, taxes—such as the mandatory repatriation tax, the constitutionality of which is at issue in Moore v. United States—the article argues that the tax must satisfy the rules applicable to the taxing power.

Sounds right to me.

(Via Paul Caron at TaxProf Blog)

With apologies for the amount of space devoted on this blog to  CFPB v. Community Financial Services Association of America, here is a further thought that I think hasn't been sufficiently emphasized.

Originalism skeptics (including my friend Eric Segall) argue that originalism doesn't actually determine any Justice's vote; it is (they say) only used to justify positions Justices reach for other reasons.  I think that is not so, and I have various examples -- and now we have another one.  Justice Thomas wrote the majority opinion in the appropriations case, upholding the funding structure of the CFPB.  But there's no reason to suppose that Thomas preferred that outcome on policy grounds.  As a matter of separation of powers, the funding structure gives up some of Congress' power of the purse by establishing perpetual funding (presumably as a partisan move by Democrats to make it harder for later Republican majorities to defund the agency).  Thomas, who is broadly sympathetic to separation of powers and suspicious of Congress surrendering its powers (as in, for example, delegation of legislative power), likely thinks the perpetual funding ploy is bad policy.  And one may speculate that he does not think much of the substance of the CFPB's mission (created, as it was, by liberal Democrats). So why did he vote as he did?  I think it's clear he concluded that the Constitution's original meaning did not bar the funding structure and for that reason he voted to uphold it, even though he did not like that outcome as a policy matter.  If Thomas were instead secretly a living constitutionalist, using originalism to justify preferred policy outcomes, he could easily have joined Justice Alito's dissent (which is a plausible account, although I think it is unpersuasive for the reasons Thomas gives in his majority).  Assuming Thomas doesn't like the CFPB structure (which I think is a very good assumption), originalism is the only explanation for his vote.  That's the way originalism is supposed to work, and why it promotes the rule of law over the rule of judicial policy intuitions.

(To be clear, I'm not saying that Justices Alito and Gorsuch in dissent voted policy preferences over originalism.  Rather, I think they found their originalist case more persuasive -- originalists often disagree on the original meaning.  But since we may speculate with some confidence that their reading of the original meaning happened to align with their policy preferences in this case, it's harder to prove their motivation.) 

Dissenting from the Supreme Court's denial of a petition for writ of certiorari in Cunningham v. Florida, Justice Gorsuch:

“For almost all of this Nation’s history and centuries before that, the right to trial by jury for serious criminal offenses meant the right to a trial before 12 members of the community.” Khorrami v. Arizona, 598 U. S. ___, ___ (2022) (GORSUCH, J., dissenting from denial of certiorari) (slip op., at 9). Acutely concerned with individuals and their liberty, the framers of our Constitution sought to preserve this right for future generations. See id., at ___–___ (slip op., at 2–3); Art. III, §2, cl. 3; Amdt. 6. Yet today, a small number of States refuse to honor its promise. Consider this case: A Florida court sent Natoya Cunningham to prison for eight years on the say of just six people.

Florida does what the Constitution forbids because of us. In Williams v. Florida, this Court in 1970 issued a revolutionary decision approving for the first time the use of 6member panels in criminal cases. 399 U. S. 78, 103. In doing so, the Court turned its back on the original meaning of the Constitution, centuries of historical practice, and a “battery of this Court’s precedents.” Khorrami, 598 U. S., at ___ (slip op., at 6). Before Williams, this Court had said it was “not open to question” that a jury “should consist of twelve.” Patton v. United States, 281 U. S. 276, 288 (1930). We had understood “the jury referred to in the original Constitution and in the Sixth Amendment is a jury constituted, as it was at common law, of twelve persons.” Thompson v. Utah, 170 U. S. 343, 349 (1898). Really, given the history of the jury trial right before Williams, it was nearly “unthinkable to suggest that the Sixth Amendment’s right to a trial by jury is satisfied” by any lesser number. Williams, 399 U. S., at 122 (Harlan, J., concurring in result).

Yet Williams made the unthinkable a reality. In doing so, it substituted bad social science for careful attention to the Constitution’s original meaning. ...

(Via Eugene Volokh at Volokh Conspiracy.)

Clark B. Lombardi (University of Washington School of Law; University of Washington - Henry M. Jackson School of International Studies) has posted Reynolds Revisited: The Original Meaning of Reynolds v. United States and Free Exercise after Fulton (75 Ala. L. Rev. 1009 (2024)) (62 pages) on SSRN.  Here is the abstract:

This Article calls for a profound reevaluation of the stories that are being told today about the Supreme Court’s free exercise jurisprudence starting with the Court’s seminal 1879 decision in Reynolds v. United States and proceeding up to the present day. Scholars and judges today agree that the Supreme Court in Reynolds interpreted the Free Exercise Clause of the First Amendment to protect only religious belief and not religiously motivated action. All casebooks today embrace this interpretation of the case, and the Supreme Court has regularly endorsed it over the past twenty years, most recently in 2022. However, this Article shows that this reading of Reynolds appeared recently and is wrong. It shows, as well, that restoring the proper understanding of Reynolds could have profound consequences, both for our understanding of the history of American free exercise jurisprudence up until the Court’s notorious 1990 decision in Employment Division v. Smith and for our imagination as we think about directions in which free exercise jurisprudence could move in the future when, as is increasingly likely, Smith is overruled.

The Justices who signed the Reynolds opinion understood themselves to be adopting a position very different from the one today ascribed to them. To them, the Clause protects not only belief, but also the natural right to act in accordance with the dictates of one’s religion, and it thus required judges to subject religiously neutral, generally applicable laws to a form of independent review to ensure that the government was not interfering with religious practice in a manner that those judges found to be objectively unreasonable. Adopted before the classic tiers of scrutiny analysis had emerged, it functioned in practice like what would be today a mild form of heightened scrutiny more demanding than rational basis but less demanding than strict scrutiny. For roughly a century thereafter, the Supreme Court appears consistently to have recognized that Reynolds had protected religiously motivated actions as well as beliefs, although they were unclear and occasionally inconsistent about the level of protection each should receive as the Court moved towards its contemporary tiers of scrutiny framework.

Unfortunately, during the 1960s and 70s, academics began to misread Reynolds as a case holding that the Free Exercise Clause leaves religious action entirely unprotected. Inexplicably, this reading became orthodox, and in 1990, in Employment Division v. Smith, the Supreme Court imported this misreading into the Court’s jurisprudence, citing Reynolds as a reason to stop applying any form of heightened review to neutral, generally applicable laws which interfere with religious obligations. Restoring the original meaning of Reynolds and its progeny will help us reframe our understanding of the history of U.S. free exercise jurisprudence up until Smith, and it will provide a roadmap for the current Court as its Justices consider ways that they can overcome the deep divisions laid bare recently in Fulton v. City of Philadelphia—disagreements about whether to overrule Smith and, if so, about what standard of scrutiny to apply to laws interfering with a person’s religious obligations. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced. There would be a number of issues to work through if Smith were overruled...What forms of scrutiny should apply?