Every February, the Center for the Study of Constitutional Originalism at the University of San Diego holds the annual Hugh and Hazel Darling Works-in-Progress Conference. The conference brings together many of the leading originalist scholars, both advocates and critics of originalism. This year’s conference – the Sixth – is being held on February 20-21 at the University of San Diego. Here is the line up of paper presenters and commentators: Ian Bartrum(UNLV), Two Dogmas of Originalism Commentator:Larry Solum (Georgetown) William Baude(Chicago), Is Originalism the Law? Commentator:Matt Adler (Duke) Richard Ekins(Oxford), Constitutional Interpretation as Statutory Interpretation Commentator:Fred Schauer (Virginia) James Ely(Vanderbilt), The Contract Clause: Origins and Early Development Commentator:Michael McConnell (Stanford) David Moore(BYU), The Broader Founding and International Law Commentator:David Golove (NYU) Christina…
One important methodological issue involves the question of how to interpret common law rights that are made part of the Constitution. Common law rights had different features than constitutional rights. In particular, to what extent does a common law right, which in at least certain ways was subject to change or adjustment, become frozen when it was made part of the Constitution? The issue is an important one because so many of constitutional rights, especially those in the Bill of Rights, were initially common law rights.
There are at least three possible positions one might have about this issue:
1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.
2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.
3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.
While I have not fully made up my mind, these days I lean towards the intermediate position. Let me try to explain why. There is a lot to say about this, but I will try focus on some of the essentials.
1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the power to immunize federal institutions and so an argument for a constitutional immunity is extremely weak. That said, there is a reasonably strong argument that the federal statute establishing the bank preempted the state tax.
2. I do not believe that the Constitution’s original meaning supports the Dormant Commerce Clause. It is possible that some of the work may be done by the Privileges and Immunities Clause of Article IV, but only some of it. While there are articles attempting to ground a Dormant Commerce Clause in the original meaning, I have not found them persuasive.
3. I believe the Dormant Commerce Clause doctrine is beneficial and therefore I would be disappointed from a policy perspective if it were overturned. By contrast, I do not think desirable policy would be harmed if the immunity portion of McCulloch were overturned, because Congress would step in.
4. While Congress would surely, in the absence of the McCulloch immunity, preempt state laws that interfered with federal institutions, it is less clear that it would act to prohibit states from taking actions that interfered with interstate commerce. But I believe it is much more likely than Mike Greve does. It may be, as Mike says, that “No tax coordination rule has ever come from Congress (let alone the states themselves).” But that does not mean, as Mike says, that “The argument against the dormant Commerce Clause is an argument for unchecked state aggression.”
In my last post, I noted the problem of nonlegislative rules – rules, such as guidance documents, announced by administrative agencies that are not required to go through the procedural check of notice and comment and are usually not subject to judicial review. These nonlegislative rules are greatly favored by administrative agencies because these rules allow the agencies to circumvent the ordinary checks on them. Good governance requires that this loophole be closed.
The key feature about nonlegislative rules is that they are supposed to be non-binding. In contrast to a legislative rule, no one is required to follow a nonlegislative rule. In essence, they are simply supposed to provide information to the public about how the agency plans to interpret the law or exercise its policy discretion. This is what is said to justify not following notice and comment and not being subject to judicial review.
The problem is that nonlegislative rules often have a real effect as a matter of practice. For example, the guidance by the Department of Education announcing that the preponderance of the evidence standard should be used for sexual assault cases came in a nonbinding guidance, but of course many colleges have been pressured into adopting it for fear that the Department might otherwise take action against it, risking the federal funds it receives and the reputational hit it would take for being seen as violating Title IX.
But entirely forbidding nonlegislative rules is not a desirable solution, because these rules can often provide useful information to the public. So what should be done?
One of the big problems involving administrative agencies is that they are often insufficiently checked. With the relaxation of separation of powers during the New Deal, modern administrative law limits agencies through two principal mechanisms: required procedures and judicial review. Unfortunately, administrative law allows certain loopholes to these mechanisms that agencies can exploit.
One of the biggest problems these days occurs when agencies regulate through the use “guidance documents.” Mike Greve recently had a post discussing the Department of Education’s use of one such guidance. When agencies issue legislative regulations – rules that bind the public – they are normally required to do so after a notice and comment procedure. Moreover, such rules are often subject to judicial review when they are issued. Thus, there is a procedural and judicial review check on such legislative rules.
By contrast, guidance documents – which often read like legislative rules in that they appear to tell regulated parties how to act – are not subject to the notice and comment procedure. While guidance documents do not formally bind private parties, they often operate in the real world to exert a practical influence on the public. Moreover, while the matter is subject to dispute, there is often not judicial review of such rules. As a result, agencies love to regulate with such guidance documents since they can avoid scrutiny.
While the courts could possibly address these problems, the best way would be through legislation. Administrative agencies have enormous influence over the country and the Congress needs to pay attention to them. Republicans, who have recently been greatly concerned about the abuses of administrative agencies, should attempt to address this problem through legislation.
As I have mentioned before, I am a big fan of listening to college courses from The Great Courses (previously known as the Teaching Company) and from other sources. I have listened to hundreds of courses, which has greatly expanded my learning.
While I enjoy listening to courses in a great variety of areas, I especially like it when it is an area of my scholarly interests, such as political theory. Happily, there are two courses – one recent, one out several years – that I strongly recommend in the political theory area.
The first course is “The Modern Political Tradition: Hobbes to Habermas,” given by Professor Lawrence Cahoone of Holy Cross. There is a lot to like about this course, especially for those on the right. It is clear, enjoyable, and fair minded: for a significant portion of the course, I was not even sure what Cahoone’s politics were. Perhaps the best feature is the coverage. He covers both the historically important thinkers as well as modern ones. Concerning the modern thinkers, he spends significant time on the right, discussing Oakeshott, Hayek, Rand and Nozick. But he also discusses important continental thinkers about whom I knew less, such as Habermas and Foucalt. And he does not slight other important thinkers, like Michael Walzer. Overall, a great course.
My old friend Mario Rizzo has a great post up on classical liberalism and libertarianism. The post discusses how to distinguish the two different political theories. Interestingly, Mario does not follow the more common distinction – for example adopted by Richard Epstein – that classical liberalism is more moderate than libertarianism, because the former accepts the need for government to promote public goods. Mario notes that the “philosophy of liberty has always admitted of gradations or degrees” and that classical liberals such as Lysander Spooner, Auberon Herbert, and Benjamin Tucker were radicals. Instead, Mario argues that “Classical liberalism is the philosophy of…
One more issue that the so called Yes Means Yes California statute on sexual assault in colleges raises is how sex between people who are intoxicated is regulated. (For my earlier discussion of the statute, see here.)
The statute requires colleges to adopt:
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
These provisions address two aspects of intoxication. One involves a situation where the intoxication of the accused led him or her to conclude that the complainant had affirmatively consented. The other involves a situation where the the complainant appeared to affirmatively consent, but was unable to do so because of intoxication.
Clearly, the statute treats the intoxication of the complainant and the accused quite differently. If the accused’s belief in the complainant’s consent was due to his or her intoxication, that’s tough. By contrast, the apparent affirmative consent of the complainant does not count if the accused reasonably should have known the complainant was intoxicated and unable to consent.
The new California statute regarding sexual assault on college campuses, which is known as the Yes Means Yes law, has received considerable attention. I thought that I would take a look at the statute and evaluate the statutory language to determine what the law actually says. I should note that I don’t teach criminal law or torts, and therefore do not have any expertise about these matters. This is a post simply by a law professor analyzing the statute.
The most important provision of the statute imposes an affirmative consent standard. Section 1(a)(1) provides that
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
The most obvious question here is what affirmative consent means. Conscious and voluntary seem relatively straightforward (although there are issues), but what does affirmative mean? Does it mean verbal consent? Does it mean express consent?
The statute does not define the term and dictionary definitions are not entirely clear. In my view, one can read the language either way. Some definitions of affirmative seem to imply expressing or asserting it. Other definitions might be understood as merely requiring an action on the part of the person. (See, e.g. an affirmative duty to stop crimes in their buildings.) While I would probably read it in the latter way, the statute is not clear.
In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism. Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism. But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument. I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning…