Gay Marriage and Foreign Law

The New York Times runs an interesting story about dueling amicus briefs submitted in the gay marriage case before the Supreme Court about the extent of gay marriage in other countries, especially constitutional and liberal democracies.  The briefs disagree about the extent of gay marriage, in part because they use different measures for how to count the countries.

The question whether the Supreme Court ought to consider the laws of other countries in deciding whether to interpret the Constitution is one that has been actively debated in the law review literature.  I have largely neglected this literature, since it seems so obvious what the correct originalist answers are.  (But see this post by co-blogger John McGinnis, who does write in the area.)  First, considering the present law of other countries is obviously not directly relevant to the original meaning of a Constitution written in late 18th century America. Second, it is theoretically possible that the meaning of the clauses might make what other countries do relevant (for example, a clause that asks whether a rule is practicable), but I have not really seen a persuasive argument that attributes any such meaning to one of our constitutional clauses.

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Korematsu, National Power, and Individual Rights

One of the key cases in modern Constitutional Law is Korematsu v. United States, where the Supreme Court held that the exclusion of Japanese citizens from large parts of the West Coast was constitutional. (While the case technically did not cover the internment of the Japanese, the exclusion of Japanese from such a large area without any individualized suspicion renders both internment and exclusion to be largely subject to the same analysis that I make here.) This case is normally thought to represent an egregious failure on the part of the Supreme Court to enforce constitutional law.

But things are more complicated than they at first seem. To begin with, the normal argument is that the Supreme Court should have struck down the exclusion and internment as a violation of the Equal Protection Clause. But the Equal Protection Clause does not apply to the federal government. For that reason, the major nonoriginalist critics of Korematsu argue strenuously that the Equal Protection principles are somehow reverse incorporated or otherwise applied to the federal government. That ignores the text and is a mistake. For more of my views on the matter, see here.

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Article III’s Case-or-Controversy Requirement: The Original Meaning

Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III’s Case-or-Controversy by James Pfander of Northwestern University Law School.  Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties.  (While Pfander’s paper is not yet available online, a longer related paper is.)

One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship.  The government was not a party to the proceeding.  According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness.  It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government.  He is simply applying for it in court.  It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship.  The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.

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The German and Dutch Founding-Era Translations of the Constitution

This past weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its Sixth Annual Works-in-Progress Conference.  I had thought I might blog about a couple of the papers.

One of the papers – Founding-Era Translations of the Federal Constitution by Christina Mulligan, Michael Douma, Hans Lind and Brian Patrick Quinn – involved the discovery of some new information about the original meaning of the Constitution.  At the time of the Constitution, significant portions of Pennsylvania and New York were respectively inhabited by German and Dutch speaking citizens.  As a result, the Constitution was translated into German and Dutch during the ratification contests in these states and these translations were relied upon by the German and Dutch speaking citizens.

For originalists, these translations represent an important new piece of evidence about the original meaning.  They are in some ways similar to commentary at the time that indicates the meaning of the Constitution.  But the translations differ in that they translate the entire Constitution.  And unlike contemporary dictionaries, the translations are in context – that is, rather than the modern originalist having to consult a dictionary with a number of word meanings, he needs only to review the word that the translator inserted into the specific clause. 

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We the People of the United States: The Madisonian View

In my last post, I argued that “We the People of the United States” is best understood as referring to a single people consisting of separate states.  It is not a single people in a single undifferentiated nation like France, but instead is a country that consists of individual states that are united together.

This interpretation of the preamble views it as adopting an intermediate view between the nationalist view of a single people in an undifferentiated nation and the states rights view of multiple peoples in multiple states.

If the preamble adopts an intermediate view, does it fit with the remainder of the Constitution and what specifically is that view?  The intermediate view of the preamble accords with the analysis of the Constitution adopted by James Madison in Federalist 39.  In that number, Madison was responding to critics who argued that the Constitution was a national document and should have been a federal one.  Madison wrote:

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The Book of Judges

US-POLITICS-STATE OF THE UNION-OBAMA

The restrained vision of the federal judiciary that has for some time dominated the jurisprudence of right-leaning American legal theorists and lawyers in this country is now under fire. In writings both academic and popular, many libertarian and classical liberal scholars clamor for the supposed symmetry of substantive due process or the bold recovery of an expansive listing of natural rights that is, we are told, embodied in the 9th Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment. Even George Will has reversed his own prior position on judicial restraint to now favor “judicial engagement” to protect so-called non-fundamental liberties and unenumerated rights from the rule of majorities, or what some might call the carefully qualified majorities of our republican constitution.

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Ramsey and Tillman on the Receive Ambassadors Clause

Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional.  See also the posts by David Bernstein and Peter Spiro.

Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”

Seth argues for a strict reading of ambassador and public minister.  He argues that Netanyahu is neither an ambassador nor a public minister.  An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’”  He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers.  See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power).  See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power).  As a reading of the language, Seth’s argument here is quite plausible.

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The Declaration of Independence and the U.S. Constitution

What is the relationship between these documents, especially for interpreting the Constitution?  There are several different possibilities.

1. Largely Unrelated. This is the conventional view in constitutional law.  Under this view, one generally can ignore the Declaration when interpreting the Constitution.  One justification is that the Declaration had a limited purpose – announcing to the world that the US was independent – and that was concluded by the end of the Revolutionary War.

2. Significant as a Document. Under this view, the principles announced in the Declaration are important guides to the meaning of the Constitution.  The force of the Declaration comes from the fact that it is one of the foundational documents in US history.  While not the standard view in either  originalist or conventional constitutional law, it does have some adherents.

3. Significant as Evidence of Political Principles. Under this view, the Constitution should be interpreted in accordance with certain important political principles, such as natural law or traditional common law principles.  The Declaration is evidence that natural law principles were widely accepted by the people in the latter part of the 18th  The reason for employing these principles, however, is not that they are in the Declaration, but that they were widely accepted.

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The Bill of Rights

December 15 was Bill of Rights Day.  People have different reactions to the Bill.  For some, it is the most important feature of the Constitution, indicating and protecting the rights that people enjoy.  The rest of the Constitution may be a good one, but it is these rights that are essential.  For others, the Bill of Rights is a regrettable feature that gave the Court the opportunity to govern the country in many areas in whatever it desires.

My view is somewhere in between.  I believe that the structural features of the Constitution – the separation of powers and federalism – are key features for preserving liberty and good government.  But I also believe that the individual rights are an important part of the constitutional mix, protecting substantial interests against government intrusion.  Significantly, the Bill of Rights is primarily enforced through a feature of the separation of powers – judicial review.

It is often forgotten that the Bill was initially applied only to the federal government, not to the states.  In many ways, it was a federalism provision, preventing the distant federal government from infringing on the rights of people.  It was not that people believed that the states should be able to violate those rights.  Instead, they believed that many of those rights were already protected by state bills of rights and that the state governments could be better trusted to protect those rights.

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Is Original Methods Originalism Based on a Normative Argument? A Response to Jack Balkin

Over at Balkinization, Jack Balkin has a response to the Liberty Forum on Steve Smith’s essay on the Original Decision.  In my essay, I had some critical things to say about Jack’s view and Jack pushes back against them.  Unfortunately, I believe Jack appears to misunderstand the originalist theory that John McGinnis and I present in our book, Originalism and the Good Constitution.

I had criticized Jack’s version on the ground that it used normative arguments to adopt a thin theory of the Constitution’s original meaning.  As Jack wrote:

Inevitably, then, we face a choice in the present about what aspects of cultural meaning should constitute “original meaning” for purposes of constitutional interpretation.  There is no natural and value-free way to make this selection.  It cannot be settled by the meaning of “meaning,” much less the meaning of “original.”  It is a choice that is informed by the purposes of a constitution and the promotion of the kind of legitimacy (democratic, social, procedural, or moral) we want our government to have.

Jack claims that McGinnis and I also adopt our original methods approach based on normative considerations.  Jack writes:

That is, their account of original methods originalism is not driven by the fact that this is simply what an accurate interpretation of a text is. Rather this choice is driven by their deeper theory of why originalism is justified in the first place. They argue that combing adherence to constitutional rules created by a supermajority with original interpretive methods achieves the best consequences for a polity, and that this — not democracy or the rule of law — is the basis on which originalism can be justified.  But both of these are value choices:  I want to make sure that the Constitution maintains democratic legitimacy over time, they want to ensure that the Constitution produces good consequences.

Unfortunately, this is not correct.  We make two arguments in favor of original methods originalism.  The first is interpretive (or positive in contrast to normative).  We argue that determining the original meaning of the text requires that one make reference to the original methods.  See page 117-126 of our book.

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