Lemon on the Chopping Block: The Establishment Clause Implications of Shurtleff v. City of Boston – Daniel D. Benson

Posted by on Jun 8, 2022 in Per Curiam

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Lemon on the Chopping Block: The Establishment Clause Implications of Shurtleff v. City of Boston

Daniel D. Benson[1]

The Supreme Court’s recent decision in Shurtleff v. City of Boston is formally about the First Amendment’s “government speech” doctrine. The root of the dispute, however, is not primarily Boston’s disdain for free speech but a misunderstanding of the Establishment Clause and continued reliance on the Lemon test.

Over the last four decades, the Supreme Court has repeatedly protected religious speech and emphasized the importance of history in Establishment Clause analysis. Despite these developments, lower courts and government officials at many levels seem to have a shag-carpet understanding of the Establishment Clause: one that is stuck in the 1970s and has not been updated since. Under this view, allowing religious speech on public property or in government-funded programs is constitutionally dangerous, and the safest course for local officials is to exclude it.

That mistaken view of precedent has consequences. Officials have used it to censor religious expression from public transit, exclude religious participants from generally available funding programs, and even deny relief funds to houses of worship devastated by hurricanes.

Boston made a similar error here, and the Court unanimously corrected it. But until the Court expressly overrules Lemon, government officials will continue to follow it, to the detriment of both free speech and free exercise.

I.

The City of Boston allows private groups to hold events on city property—including flag-raising events at one of the three flagpoles in front of City Hall.[2] The application for these events noted that Boston seeks “to accommodate all applicants seeking to take advantage of the City of Boston’s public forums.”[3]

In twelve years prior to the Shurtleff dispute, Boston received 284 requests from private groups wanting to raise a flag of their choice for an hour or two on the flagpole.[4] The city approved every single one—flags of foreign nations to celebrate Boston’s ethnic diversity, pride flags flown by Boston Pride, and even a flag advertising a local credit union.[5] But something changed with the 285th request when a group called Camp Constitution applied to hoist their “Christian Flag”—white with a red cross on a blue field.[6] Boston denied Camp Constitution’s application because the flag was “religious.”[7]

Camp Constitution and its director, Harold Shurtleff, sued the city, alleging that Boston’s rejection of their Christian flag violated the Free Speech Clause of the First Amendment. Camp Constitution lost in the district court and First Circuit, but the Supreme Court unanimously reversed. Across three opinions, every justice agreed that “the city’s refusal to let Shurtleff and Camp Constitution fly their flag based on its religious viewpoint violated the Free Speech Clause of the First Amendment.”[8]

The majority opinion focuses on whether Boston’s decision to allow private groups to hoist flags of their choice on the city’s flagpole represented Boston’s own “government speech,” or instead created a forum for the expression of private speech protected by the Free Speech Clause. Given “the city’s lack of meaningful involvement in the selection of flags or the crafting of their messages,” the Court had no difficulty concluding that the flag raisings were “private, not government, speech.”[9]

Perhaps because this was an easy speech case, the majority broke little doctrinal ground on that point. Shurtleff simply adds another data point to a spectrum for lower courts to apply in future cases: If the speech at issue is more like Boston’s flag-raising program in Shurtleff or the trademark registration in Matal,[10] then it’s private. If it’s more like the city park monument in Summum[11] or the license-plate designs in Walker,[12] then it’s government speech.

II.

Given how easily a unanimous Court concluded that Boston’s flag-raising program was subject to the Free Speech Clause, how did Boston get it so wrong? The answer lies elsewhere in the First Amendment—the Establishment Clause.

After receiving Camp Constitution’s flag-raising application and consulting with city lawyers, a city official explained to Camp Constitution that the exclusion of all “non-secular flags” was “consistent with well-established First Amendment jurisprudence prohibiting a local government from ‘respecting an establishment of religion.’”[13] Doubling down, Boston later admitted that excluding religious flags serves “no goal or purpose . . . except ‘concern for the so-called separation of church and state or the [C]onstitution’s [E]stablishment [C]lause.’”[14] The First Circuit compounded the error when, citing Lemon, it concluded that “the City’s establishment concerns are legitimate.”[15]

This led six justices to join opinions expressly recognizing that Boston’s core error stemmed from misinterpreting the Establishment Clause. Justice Kavanaugh put it most bluntly: “This dispute arose only because of a government official’s mistaken understanding of the Establishment Clause.”[16] Justice Alito, joined by Justices Gorsuch and Thomas, agreed.[17] At oral argument, Justices Kagan and Sotomayor likewise stated that Boston made an Establishment Clause “mistake.”[18]

Justice Gorsuch, joined by Justice Thomas, wrote separately to identify the source of Boston’s Establishment Clause mistake—the infamous Lemon test.  Lemon “bypassed any inquiry into the Clause’s original meaning” and “ignored longstanding precedents.”[19] The tripartite test prohibits any government action that (1) lacks a secular purpose, (2) has the primary effect of advancing or inhibiting religion, or (3) excessively entangles the government in religion.[20] A gloss on the second prong later asked whether a “reasonable observer” (whomever that is) would view the government’s action as an “endorsement” (whatever that means) of religion.[21]

The failings of the Lemon/endorsement test are as familiar as they are extensive. In short, “[t]he test has been harshly criticized by Members of [the Supreme] Court, lamented by lower court judges, and questioned by a diverse roster of scholars.”[22] Not surprisingly, then, the Court’s more recent cases like Town of Greece and American Legion have returned to history as the key to understanding what constitutes an establishment of religion.[23] And the Court hasn’t applied Lemon in nearly 20 years.[24]

Shurtleff follows the Court’s same trend of abandoning Lemon. As Justice Gorsuch points out, “[n]ot a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.”[25]

Justice Breyer’s six-justice majority doesn’t give the Establishment Clause the time of day once it concludes the flags are private speech.[26] It’s a straightforward case of viewpoint discrimination to deny the Christian flag, with no mention of Boston’s fear of being “accused of having endorsed a religion.”[27] There’s no discussion of the endorsement test’s “reasonable observer” incorrectly attributing a religious message to the government, despite the fact that the majority’s earlier government speech analysis recognizes that a passerby seeing a cross-bearing flag flying in front of city hall might think that the city put it there.[28]

Contrast that with Good News Club, where three dissenting justices raised varying degrees of Establishment Clause concern with permitting religious speech in the limited public form at a public school.[29] Even starker is Rosenberger, where the four dissenting justices (including Justice Breyer, Shurtleff’s author) explicitly argued that the use of a public university’s student activity funds to support religious speech on equal terms with secular speech was, in fact, an establishment of religion.[30] By the time Shurtleff comes around, though, Justice Breyer cites Good News Club and Rosenberger as the crux of the Court’s analysis.

The three concurring opinions take an even stronger stand against Boston’s Establishment Clause error. As noted, Justices Gorsuch and Thomas place the blame on Lemon directly and caution government officials and lower courts to “let [Lemon] die.”[31] Justice Kavanaugh explains that the Court “has repeatedly made clear” that “a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities, and the like.”[32] And Justice Alito reminds that “‘[m]ore than once,’ this Court has ‘rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religious speakers who participate in broad-reaching government programs neutral in design.’”[33]

III.

Shurtleff corrects Boston’s error and sends a strong message that “a government may not treat religious persons, religious organizations, or religious speech as second-class.”[34] But the Court still needs to do more. Boston is not alone in its misunderstanding of the Establishment Clause. Without a formal overruling of both Lemon and its related endorsement test in their entirety, many government officials still apply this outdated reading of the Establishment Clause. As a result, these officials exclude religious individuals and groups from equal access to public forums and public funding.

A few examples illustrate the breadth of the problem:

  1. Public transit advertising. Public transit systems often sell advertising space on trains and buses. Unfortunately, some transit systems impose discriminatory bans on religious messages in the name of separating church and state.[35] Justices Gorsuch and Thomas recently noted that the Court’s “intervention” to fix the law in this area is “warranted” because “[t]he First Amendment requires governments to protect religious viewpoints, not single them out for silencing.”[36] They flagged this issue again in Shurtleff.[37]
  2. Public facilities. New York City allows private groups to hold events in public schools after school hours. But citing Establishment Clause concerns as its “sole reason,” the city barred religious groups from using the space for worship.[38] Even in the face of Good News Club, the Second Circuit concluded that the “exclusion was constitutionally permissible in light of the Board’s reasonable and good faith belief that permitting religious worship services in its schools might give rise to an appearance of endorsement in violation of the Establishment Clause, thus exposing the Board to a substantial risk of liability.”[39]
  3. Disaster relief grants. From at least 1998 until 2018, the Federal Emergency Management Agency barred houses of worship from receiving disaster recovery grants available to other nonprofit community organizations. FEMA has long recognized that faith groups play a critical role in disaster recovery.[40] But FEMA still denied disaster recovery funds to a synagogue in Florida damaged by Tropical Storm Faye because its community programs were “based on or teach Torah values and Jewish tradition, customs and laws.”[41] After Hurricane Katrina, a historic Black church in New Orleans that provided “literacy programs, clothing distribution, food and nutrition programs,” “health and wellness programs,” and a “homeless shelter” fared no better.[42]

FEMA finally abandoned its discriminatory policy in 2018 after several houses of worship sued—but not until the churches petitioned the Supreme Court for emergency relief and Justice Alito called for FEMA to respond.[43] Congress then passed a law to keep FEMA from returning to its discriminatory policy.[44]

  1. Historic preservation grants. In an effort to preserve local history, some states and local governments provide grants to pay for the restoration and preservation of historically significant buildings. In return, the building owners typically must give the government an easement committing to maintain the buildings’ historic appearance. But, citing antiestablishment interests, the high courts in New Jersey and Massachusetts barred houses of worship from receiving grants, regardless of their historic significance.[45]

Members of the Supreme Court and state courts alike have recognized the confusion in the law and the need for the High Court’s clarification. As Justices Kavanaugh, Alito, and Gorsuch stated, the Supreme Court “need[s] to decide whether governments that distribute historic preservation funds may deny funds to religious organizations simply because the organizations are religious.”[46]

Although these particular errors stem from state Blaine Amendments rather than the federal Establishment Clause, confusion at the federal level compounds confusion at the state level. For example, the New Jersey Supreme Court cited Lemon alongside other cases to conclude that “the grant program poses questions under any articulation of the current standard.”[47] Such cases raise similar concerns over the exclusion of religious exercise and speech.

  1. School funding. In Hunt v. McNair—again from the 1970s—the Supreme Court interpreted Lemon’s “effect” prong to bar state funds from flowing “to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.”[48] For decades, so-called “pervasively sectarian” institutions were excluded from “direct state aid of any kind.”[49] Despite the Court’s later rejection of this discriminatory rule in favor of religious neutrality,[50] the “pervasively sectarian” exclusion remains, well, pervasive.

Thus, for example, when Colorado chose to fund scholarships for students at private colleges in the state, it barred them from being used at any school deemed “pervasively sectarian” in “an attempt to conform to First Amendment doctrine.”[51] This restriction remained in effect until the Tenth Circuit struck it down in 2008.[52]

Those cases were years ago, so it might seem that the problem has been resolved. To the contrary, this standard persists in government programs. For example, in Carson v. Makin,[53] the Supreme Court is currently confronting Maine’s law that restricts private-school tuition vouchers to “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”[54]

Nor is the problem limited to state and local governments. For example, Congress created a loan program to assist historically Black colleges and universities with capital improvement projects. Congress recognized that HBCUs “have played a prominent role in American history and have an unparalleled record of fostering the development of African American youth.”[55] But, borrowing text straight from Hunt, Congress excluded any “institution in which a substantial portion of its functions is subsumed in a religious mission.”[56] The Office of Legal Counsel recently concluded that this restriction “unconstitutionally discriminates on the basis of an institution’s religious character.”[57]

Despite the OLC opinion, Congress continues to draft legislation using the Hunt standard. The “Build Back Better Act” debated last year would have provided grants for child-care providers to renovate or improve their facilities “to improve child care safety.”[58] Ignoring decades of developments in Religion Clauses jurisprudence, the bill clung to the bad old days and barred any child-safety grants from going to child-care facilities whose “functions . . . are subsumed in a religious mission.”[59]

Another reason that municipal officials often rely on Lemon and its progeny are the threat letters they receive when they attempt to accommodate religious expression. These letters provide a skewed view of the Establishment Clause; they often do not even mention the Supreme Court’s decisions in Town of Greece and American Legion, acting as if nothing has changed. Two examples from last year illustrate the trend.

First, Freedom From Religion Foundation wrote to the Pewamo-Westphalia School District in Michigan asking the District to take down a display including a cross.[60] The letter does not mention Town of Greece, American Legion, or more recent Sixth Circuit cases, but does rely on Lemon and pre-Town of Greece Sixth Circuit precedent. The school took down the displays in response.

Similarly, a public transit authority has ended a longstanding tradition of allowing a private group to display a Christmas creche at a train station in Queens, after Americans United for Separation of Church and State sent a threat letter to the Long Island Railroad for permitting the private display. That letter, written in 2021, makes no mention of American Legion or Town of Greece, nor any of the Supreme Court’s cases since 2001.[61]

The point of these examples is not to treat them as proper explanations of the Supreme Court’s Establishment Clause jurisprudence—they decidedly are not—but instead to explain the popular version of Lemon/endorsement jurisprudence, which differs substantially from the Supreme Court’s rulings over the past decade. As Justices Gorsuch and Thomas point out, the Supreme Court has “abandoned Lemon” in practice.[62] At least three courts of appeals have taken the cue and held that a historical analysis, not Lemon, now applies to public display cases.[63] But until the Court formally overrules Lemon, the threat letters citing Lemon and its progeny will continue to be sent, and local officials who don’t know any better will continue to prohibit and tear down displays that have every right to remain.

IV.

So once Lemon is gone for good, what should replace it? In the wake of Town of Greece and American Legion, the answer is clear—a standard rooted in the text, history, and traditions of the Establishment Clause.

This is not a new idea. The Court has “always purported to base its Establishment Clause decisions on the original meaning of that provision.”[64] Lemon was the aberration—ignoring text, history, and longstanding precedent, the Court “gleaned” its test from just two cases decided in the previous three years.[65]

The Gorsuch/Thomas concurrence in Shurtleff gives a good idea of what a return to a historical analysis would look like. “Beyond a formal declaration that a religious denomination was in fact the established church, it seems that founding-era religious establishments often bore certain other telling traits.”[66] The government (1) “exerted control over the doctrine and personnel of the established church”; (2) “mandated attendance in the established church”; (3) “punished dissenting churches and individuals for their religious exercise”; (4) “restricted political participation by dissenters”; (5) “provided financial support for the established church, often in a way that preferred the established denomination over other churches”; and (6) “used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function.”[67] Focusing on these historic hallmarks of a religious establishment helps “explain many of [the] Court’s Establishment Clause cases” and “provide[s] helpful guidance” for lower courts and government officials alike.[68]

Applying that approach also makes Shurtleff an easy case. “[N]o one at the time of the founding is recorded as arguing that the use of religious symbols in public contexts was a form of religious establishment.”[69] Boston’s “sole reason” for discriminating against religious speech disappears, and the dispute probably never arises in the first place. The Establishment Clause doesn’t ask the government to “scrub[] away any reference to the divine”—it calls for “respect and tolerance.”[70]

***

Shurtleff itself won’t be the case to hammer the final nail in Lemon’s coffin. But a unanimous Supreme Court holding that Boston violated the First Amendment by discriminating against religious speech at least takes another swing at it.

[1]     Daniel Benson is counsel at the Becket Fund for Religious Liberty. Becket filed an amicus brief in the case discussed in this article. But the views expressed here do not necessarily reflect the views of Becket or its clients. The author thanks his colleagues Lori Windham, Eric Rassbach, and James Kim for their contributions. Any errors remain his own.

[2]  Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

[3]  Id. at 1588.

[4]  Id.

[5]  Id.

[6]  Id.

[7]  Id.

[8]  Id. at 1593; accord id. at 1595 (Kavanaugh, J., concurring) (“Under the Constitution, a government may not treat religious persons, religious organizations, or religious speech as second-class.”); id. at 1601 (Alito, J., joined by Thomas and Gorsuch, JJ., concurring in the judgment) (“As the Court rightly holds, denying Shurtleff’s application to use that forum constituted impermissible viewpoint discrimination.”).

[9]     Id. at 1593; accord id. at 1601 (Alito, J., concurring in the judgement) (“[T]he flag displays were plainly private speech within a forum created by the City, not government speech.”).

[10]   Matal v. Tam, 137 S. Ct. 1744 (2017).

[11]   Pleasant Grove City v. Summum, 555 U.S. 460 (2009).

[12]   Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015).

[13]  Brief for the Petitioners at 14, Shurtleff, 142 S. Ct. 1583 (No. 20-1800), 2021 WL 5404792.

[14]  Id. at 16.

[15]  Shurtleff v. City of Boston, 986 F.3d 78, 96 (1st Cir. 2021) (citing Lemon v. Kurtzman, 403 U.S. 602, 615 (1971)).

[16]  Shurtleff, 142 S. Ct. at 1594 (Kavanaugh, J., concurring).

[17]  Id. at 1602 (Alito, J., concurring in the judgement) (“The City’s decision was grounded in a belief that ‘[e]stablished First Amendment jurisprudence’ prohibits a government from allowing a private party to ‘fly a [r]eligious flag on public property.’”).

[18]   Transcript of Oral Argument at 70-71, Shurtleff, 142 S. Ct. 1583 (No. 20-1800) (Kagan, J.) (“[T]his really does go back to Justice Kavanaugh’s point . . . that this all came about because of a mistake by Mr. Rooney . . . . You know, we have a line in one our opinions that says a City Hall . . . can’t have a cross . . .  on the roof. And so . . . Mr. Rooney looks at this and says isn’t this the same thing and prohibits it . . . . And so this was a mistake.”); id. at 81-82 (Sotomayor, J.) (“His only problem was, as Justice Gorsuch pointed out, was this mistaken belief that the Constitution required that the city not raise a flag that had a cross by a religious group.”).

[19]  Shurtleff, 142 S. Ct. at 1604 (Gorsuch, J., joined by Thomas, J.,

concurring in the judgment).

[20]  Lemon, 403 U.S. at 612.

[21]  County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 631 (1989) (O’Connor, J., joined by Brennan and Stevens, JJ., concurring in part and concurring in the judgment).

[22]  Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2081 (2019) (plurality) (footnotes omitted).

[23]   Town of Greece v. Galloway, 572 U.S. 565, 576 (2014) (“[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.” (cleaned up)); Am. Legion, 139 S. Ct. at 2089 (Practices comply with the Establishment Clause if they “follow in that tradition” of “respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.”); accord id. at 2102 (Gorsuch, J., concurring in the judgement) (agreeing with plurality’s focus on “the nation’s traditions”).

[24]  Shurtleff, 142 S. Ct. at 1607 (Gorsuch, J., concurring in the judgement).

[25]  Id. at 1603 (Gorsuch, J., concurring in the judgement).

[26]  Id. at 1593.

[27]  Transcript of Oral Argument at 64, Shurtleff, 142 S. Ct. 1583 (No. 20-1800).

[28]  Shurtleff, 142 S. Ct. at 1593.

[29]   Good News Club v. Milford Cent. Sch., 533 U.S. 98, 131-32 (2001) (Stevens, J., dissenting) (“School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the . . . risk” of “introduc[ing] divisiveness and tend[ing] to separate young children into cliques that undermine the school’s educational mission.”); id. at 144-45 (Souter, J., joined by Ginsburg, J., dissenting) (“[T]here is a good case that Good News’s exercises blur the line between public classroom instruction and private religious indoctrination. . . .”).

[30]   Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 863 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).

[31]  Shurtleff, 142 S. Ct. at 1610 (Gorsuch, J., concurring in the judgement).

[32]  Id. at 1594 (Kavanaugh, J., concurring) (citing Zelman v. Simmons-Harris, 536 U.S. 639 (2002)).

[33]  Id. at 1602 (Alito, J., concurring in the judgement) (quoting Rosenberger, 515 U.S. at 839).

[34]  Id. at 1595 (Kavanaugh, J., concurring).

[35]   See Archdiocese of Wash. v. WMATA, 140 S. Ct. 1198 (2020), denying cert. to Archdiocese of Wash. v. WMATA, 897 F.3d 314 (D.C. Cir. 2018); Northeastern Pa. Freethought Soc’y v. Lackawanna Transit Sys., 938 F.3d 424, 442 (3d Cir. 2019) (striking down “ban on speech related to religion” in public transit advertising); Defendant’s Amended Motion for Summary Judgment at 20, Young Isr. of Tampa, Inc. v. Hillsborough Area Reg’l Transit Auth., 2022 WL 227563 (M.D. Fla. Oct. 8, 2021) (No. 8:21-cv-294), ECF 63 (public transit authority defending ban on religious advertisements to “maintain[] neutrality” on “religious issues”).

[36]   Archdiocese of Wash., 140 S. Ct. at 1199-1200 (Gorsuch, J., joined by Thomas, J., respecting the denial of certiorari).

[37]   Shurtleff, 142 S. Ct. at 1605 n.4 (Gorsuch, J., concurring in the judgement).

[38]  Bronx Household of Faith v. Board of Educ., 750 F.3d 184, 192 (2d Cir. 2014).

[39]   Id. at 189.

[40]   See, e.g., Fed. Emergency Mgmt. Agency, Baptists Aim to Rebuild 1,000 homes for North Carolina Survivors of Hurricane Matthew, Release No. DR-4285-NR-126 (Apr. 26, 2017) [https://perma.cc/4SK9-QBW8].

[41]   Fed. Emergency Mgmt. Agency, Appeal Letter on Second Appeal—Chabad of the Space Coast, Inc., PA ID 009-UWWJ8-00, Request for Public Assistance, FEMA-1785-DR-FL (July 27, 2012) [https://perma.cc/2XNV-ZGGM].

[42]   Fed. Emergency Mgmt. Agency, Appeal Letter on Second Appeal—Mount Nebo Bible Baptist Church, PA ID 071-UD1T3-00, Facility Eligibility, FEMA-1603-DR-LA, Project Worksheet 20447 (Mar. 13, 2014) [https://perma.cc/G4HM-Q9KR].

[43]   Compare Harvest Family Church v. FEMA, No. 17A649 (U.S. Dec. 21, 2017) (Alito, J.) (calling for FEMA’s response by Jan. 10, 2018), with Revisions to the Public Assistance Program and Policy Guide, 83 Fed. Reg. 472, 473 (Jan. 4, 2018) (changing FEMA policy so “houses of worship will not be singled out for disfavored treatment”).

[44]  Bipartisan Budget Act of 2018, Pub. L. 115-123, § 20604 (Feb. 9, 2018) (amending 42 U.S.C. § 5122(11)(B)).

[45]   See Freedom From Religion Found., Inc. v. Morris Cnty. Bd. of Chosen Freeholders, 181 A.3d 992 (N.J. 2018), cert. denied, 139 S. Ct. 909 (2019); Caplan v. Town of Acton, 92 N.E.3d 691 (Mass. 2018).

[46]   Morris Cnty., 139 S. Ct. at 911 (Kavanaugh, J., joined by Alito and Gorsuch, JJ., respecting the denial of certiorari); see also Caplan, 92 N.E.3d at 712 (Kafker, J., concurring) (“Today’s decision takes us into one of the most confusing and contested areas of State and Federal constitutional law.”).

[47]   Morris Cnty., 181 A.3d at 1012.

[48]   413 U.S. 734, 743 (1973).

[49]   Roemer v. Bd. of Pub. Works, 426 U.S. 736, 758 (1976).

[50]   See, e.g., Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000); Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017); Espinoza v. Montana Dep’t of Rev., 140 S. Ct. 2246 (2020).

[51]   Ams. United for Separation of Church & State v. Colorado, 648 P.2d 1072, 1075 (Colo. 1982).

[52]   See Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008).

[53]  141 S. Ct. 2883, granting cert. to Carson v. Makin, 979 F.3d 21 (1st Cir. 2020).

[54]   Me. Rev. Stat. Ann. tit. 20-A, § 2951(2).1.

[55]   20 U.S.C. § 1066(2).

[56]   20 U.S.C. § 1066c(c). The same restriction also appears in a separate grant program for institutions of higher learning. See 20 U.S.C. § 10004(c)(3).

[57]   Religious Restrictions on Capital Financing for Historically Black Colleges & Universities, 43 Op. O.L.C. —, slip op. at 16 (Aug. 15, 2019).

[58]   H.R. 5376 § 132002, at 1389 ln. 21-22 (capitalization removed).

[59]   Id. at 1399 ln. 22 to 1400 ln. 3.

[60]   See Letter from Christopher Line, Staff Attorney, Freedom From Religion Foundation, to Jeff Wright, Superintendent, Pewamo-Westphalia Community Schools (Sept. 9, 2021) [https://perma.cc/HXA2-8BYT].

[61]   Letter from Richard B. Katskee and Ian Smith, Americans United for Separation of Church and State, to Phillip Eng, President, The Long Island Railroad (Mar. 9, 2021) [https://perma.cc/H2UU-3J3J].

[62]   Shurtleff, 142 S. Ct. at 1604 (Gorsuch, J., concurring in the judgement).

[63]   See Freedom From Religion Found., Inc. v. County of Lehigh, 933 F.3d 275, 279 (3d Cir. 2019); Woodring v. Jackson County, 986 F.3d 979, 997 (7th Cir. 2021); Kondrat’yev v. City of Pensacola, 949 F.3d 1319, 1321 (11th Cir. 2020).

[64]  Town of Greece, 572 U.S. at 602 (Alito, J., concurring).

[65]  403 U.S. at 612 (citing Bd. of Educ. v. Allen, 392 U.S. 236, 243 (1968); Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970)).

[66]  Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring in the judgement).

[67]   Id. (citing Michael McConnell, Establishment & Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110-12, 2131 (2003)).

[68]  Shurtleff, 142 S. Ct. at 1609-10 (Gorsuch, J., concurring in the judgement).

[69]   Id. at 1610 (Gorsuch, J., concurring in the judgement) (quoting Michael McConnell, No More (Old) Symbol Cases, 2019 Cato Sup. Ct. Rev. 91, 107 (2010)).

[70]  Id. (quoting Am. Legion, 139 S. Ct. at 2084-85, 2089).

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Jarkesy v. SEC Rapid Reaction: Do SEC Commissioners Really Have For-Cause Removal Protection? – Zachary Grouev

Posted by on Jun 7, 2022 in Per Curiam

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Jarkesy v. SEC Rapid Reaction: Do SEC Commissioners Really Have For-Cause Removal Protection?

By Zachary Grouev[1]

Last month, the Fifth Circuit continued its habit of making administrative law waves when a panel comprised of Judges Davis, Elrod, and Oldham issued a decision in Jarkesy v. SEC, ___ F.4th ___, No. 20-61007, 2022 WL 1563613 (5th Cir., May 18, 2022) (Jarkesy II). In Jarkesy II, the Securities and Exchange Commission alleged that George R. Jarkesy, who had established a pair of hedge funds, and Patriot28, L.L.C., a firm that Jarkesy had selected as investment advisor for the funds, each committed securities fraud.[2] Following a multi-year investigation, the Commission brought an administrative enforcement action against Jarkesy and Patriot28 (“the petitioners”) alleging that both had committed fraud under the Securities Act, Securities Exchange Act, and Advisers Act.[3] Importantly, the Commission chose to press its charges in an internal agency proceeding before one of its own administrative law judges rather than sue in federal district court.[4]

After the Commission launched its enforcement action, the petitioners began a long and somewhat circuitous journey to the Fifth Circuit. First, they attempted to challenge their agency adjudication by seeking an injunction in the United States District Court for the District of Columbia.[5] But the district court determined that it lacked subject matter jurisdiction over the petitioners’ claims, and the D.C. Circuit affirmed in a published opinion.[6] Without an injunction, the adjudication proceeded apace. After an evidentiary hearing, an SEC administrative law judge concluded that Jarkesy and Patriot28 had in fact committed securities fraud.[7] The petitioners then asked the Commission to review their adjudication, which it affirmed.[8] As punishment for their alleged misconduct, the Commission ordered that the petitioners cease and desist from further violations and pay a $300,000 civil penalty.[9] It also ordered Patriot28 to disgorge just under $700,000 and permanently barred Jarkesy from participating in various securities-related activities.[10] Having now properly exhausted their administrative remedies, the petitioners again turned to federal court, this time asking the Fifth Circuit to reverse the Commission’s decision under the Securities Act’s appellate review provision.[11] This second bite at the petitioners’ underlying constitutional challenges would prove to be more fruitful.

On Jarkesy and Patriot28’s petition for review, the Fifth Circuit held that the Commission’s administrative adjudication of securities fraud claims violated several provisions of the Constitution.[12] Thus, the panel vacated the Commission’s order affirming its administrative law judge and remanded for further proceedings.[13] Unless the panel’s decision is vacated, or stayed pending further appeal, those proceedings will need to be in the form of a civil suit in federal district court.

The majority opinion, written by Judge Elrod, ruled for the petitioners on three separate constitutional grounds: (1) that adjudicating securities fraud claims for monetary penalties before an administrative law judge violated the petitioners’ Seventh Amendment right to a civil jury; (2) that 15 U.S.C. § 78u-2(a), which gives the Commission discretion to choose whether to bring securities fraud claims as either civil actions in federal courts or agency adjudications before an administrative law judge, is an unconstitutional delegation of legislative power; and (3) that the Commission’s administrative law judges are unconstitutionally insulated from presidential control by a multi-layer system of for-cause removal protection.[14] Each holding is important in its own right, and any one of them would have likely been enough to give the petitioners the relief they requested: vacatur of the Commission’s order.[15] Given the prospect of overlapping unconstitutionality, Judge Elrod ensured that at least the first two conclusions would be enshrined as circuit precedent by expressly identifying them as alternative holdings.[16] The Fifth Circuit, like many circuit courts of appeals, treats such holdings as binding law rather than mere persuasive dicta.[17] And although the panel declined to decide the proper remedy for the Commission’s removal protection problem, Judge Elrod’s determination that the problem exists as a matter of law will likely still bind future Fifth Circuit panels to consider the issue.[18]

This piece focuses on the panel’s third and final holding: that the Commission’s administrative law judges are unconstitutionally insulated from presidential control. In short, the Fifth Circuit’s conclusion likely follows logically, if perhaps debatably, from existing precedent. In doing so, however, the decision assumes a particular answer to the yet undecided question of whether SEC Commissioners may be removed by the President only for cause. To illustrate the potential problem with this assumption, we need to trace Judge Elrod’s reasoning and establish the facts of the statutes at issue.

First, the reasoning. The panel’s principle authorities on the removal question are two recent Supreme Court decisions, Free Enterprise Fund v. Public Company Accounting Oversight Board[19] and Lucia v. SEC.[20] In Free Enterprise Fund, the Court held that a statute that “restricted [the President’s] ability to remove a principal officer, who [was] in turn restricted in his ability to remove an inferior officer, even though that inferior officer determine[d] the policy and enforce[d] the laws of the United States[,]” was unconstitutional.[21] Such a “multilevel protection” scheme, the Court explained, was “contrary to Article II’s vesting of the executive power in the President.”[22] One of the layers of protection in Free Enterprise Fund applied to Commissioners of the Securities and Exchange Commission, whom the Court assumed, but did not decide, could be removed only for “inefficiency, neglect of duty, or malfeasance in office.”[23] In Lucia, the Court held that SEC administrative law judges were “Officers of the United States,” placing them within the ambit of Free Enterprise Fund.[24]

Second, the facts of the provisions challenged in Jarkesy II. SEC administrative law judges are appointed by the Commission under 5 U.S.C. § 3105, and are removable by the Commission “for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.”[25] Members of the Board are themselves removable only under the Humphrey’s Executor standard of “inefficiency, neglect of duty, or malfeasance in office.”[26]

Applying the law to the facts, the panel’s decision makes intuitive sense. SEC administrative law judges are officers of the United States according to Lucia, so they likely fit within Free Enterprise Fund’s framework holding multi-level removal protection schemes unconstitutional.[27] Section 7521 expressly provides that administrative law judges are removable only for “good cause,”[28] so the only question left is whether the principal officers in charge of that removal are themselves insulated. This is where things get tricky. Section 7521 provides that administrative law judges are removable by the Commission, but only if “good cause” is “established and determined by the Merit Systems Protection Board.”[29] So there are two sets of removing officers involved. The Board’s members have express removal protection, but they were not the subject of Free Enterprise Fund, and unlike the Commission in that case, cannot initiate removal proceedings concerning the inferior officers in question. The Commission can launch removal proceedings and make removal decisions, but it must comply with the Board’s procedural requirements and obtain a “good cause” determination to follow through. And it remains an open question whether Commissioners have removal protection at all. The Supreme Court assumed that they enjoyed such protection in Free Enterprise Fund on the stipulation of the parties,[30] but it has never squarely addressed the issue. For its part, the panel took the same approach, asserting removal protection only by citing Free Enterprise Fund, declining to conduct an independent analysis of the Commission’s organic statute, and assuming that both the Board and the Commission were insulated from presidential control.[31] But as explained above, Free Enterprise Fund never held anything about whether Commissioners enjoy removal protection. It simply employed an “understanding” of the parties to decide the issue before it.[32] Such understandings are not binding precedent. If not compelled by precedent, a closer look at the organic statute, 15 U.S.C. § 78d, reveals that the panel’s assumption is anything but obvious. This is important because, if in fact the Commissioners are removable at will, the case starts to look less like Free Enterprise Fund and more like an alternative hypothetical where the President retains the authority to at least reliably order the removal of the allegedly over-insulated inferior officers.[33]

To explain why the panel’s assertion of removal protection for SEC Commissioners is at minimum contestable, we’ll need to understand how the courts interpret agency organic statutes, both generally and in the specific context of determining whether an agency official may be removed only for cause, rather than at the will of the President.

We begin with two general principles of statutory interpretation. First, courts look to the text of agency organic statutes, just as they do with any other act of Congress, when determining their meaning.[34] Second, courts do not generally rewrite statutes to add provisions that Congress never included; the legislature legislates and the judiciary judges.[35] Add to these a general principle of removal jurisprudence: that at-will removal is the default rule.[36] Together, these principles form the consistently reiterated doctrinal statement that an organic statute must expressly endow a given agency official with removal protection if such protection is to exist at all.[37] Congress understands this rule of construction and has drafted large numbers of organic statutes that expressly provide for removal protection, often tracking the language approved by the Court in Humphrey’s Executor.[38] But, harmless though this rule of construction may appear, the devil is in the details. There is only one exception to the rule statement above, but it is, to speak colloquially, a whopper. Originating in the Supreme Court’s 1958 decision in Wiener v. United States, this exception allows a court to read for-cause removal protection into an agency organic statute based on the “nature of the function” that Congress “vest[s]” in an agency.[39] The function at issue in Wiener was the adjudication of certain claims by Americans against Japan arising out of the Second World War, which Congress vested in a War Claims Commission whose decisions were unreviewable “by any other official of the United States or by any court.”[40] The Supreme Court explained that this function “require[d] absolute freedom from Executive interference” so as to merit an implied grant of removal protection.[41] The Court’s most recent mention of the doctrine—contained in a brief footnote in Collins v. Yellen, decided sixty years after Wiener—serves only to remind us that whatever Wiener stands for, it applies only when agencies are charged with adjudication.[42]

With that background in hand, let’s return to the organic statute at issue in Jarkesy II: 15 U.S.C. § 78d. A quick scan of the statute reveals that it contains no express removal provision. Indeed, the word “removal” is absent from the statutory text, as are the magic words “inefficiency, neglect of duty, or malfeasance in office” from Humphrey’s Executor.[43] Because the Commission’s organic statute lacks an express grant of removal protection, the case law tells us that the only potential source of such protection is Wiener’s doctrine of implied for-cause removal for adjudicatory agencies. And because the Commission’s function is at least partially adjudicatory, as Jarkesy II’s extensive discussion of agency adjudication bears out, we might think that the Fifth Circuit was correct on the law, even if it could have conducted a more searching analysis. But Wiener expressly relied on the “philosophy of Humphrey’s Executor,”[44] and is deeply inconsistent with the Court’s more recent removal decisions and general principles of statutory interpretation. That inconsistency, which was already apparent when the Court sidestepped the issue in Free Enterprise Fund,[45] has only grown more pronounced since the Court decided Seila Law LLC v. Consumer Finance Protection Bureau[46] and Collins v. Yellen.[47] Those decisions confirm that a majority of the Court has rejected both the philosophy of quasi-adjudicative and quasi-legislative power that undergirded the argument for removal protections in Humphrey’s Executor and the functionalist analysis of organic statutes that supported implied removal protections in Wiener.[48] Without those modes of analysis, a doctrine that requires courts to read removal protection provisions into agency organic statutes has little to stand on beyond stare decisis.[49] And as Justice Thomas has recently opined, a doctrine for which the only defense is stare decisis is a doctrine that is “out of arguments,” and thus on perilous footing indeed.[50]

But although the case is stronger now than it was in 2010, who is to say that the Commission will make the argument, or that the Court will bite if it does? One reason is that, after over sixty years of relative obscurity, the doctrine of implied removal protection is gaining salience in the federal courts, and rapidly. Jarkesy II directly implicates the doctrine and would offer the Court an opportunity to set the record straight on removal protections for SEC Commissioners. But it is far from the only case or controversy poised to present the issue. In the D.C. Circuit, two potentially high-profile appeals stand to directly turn on the doctrine. In the first suit, plaintiffs Sean Spicer and Russel Vought have challenged their removal from positions on the Board of Visitors of the United States Naval Academy, arguing that they were subject to removal only for cause.[51] Because the Board of Visitors’ organic statute contains no express for-cause provision, plaintiffs’ claims on the merits and any eventual appeal will both necessarily turn on the applicability of Wiener.[52] In the second action, plaintiff Roger Severino is challenging his removal from the Administrative Conference of the United States on a similar theory.[53] A district court dismissed Severino’s complaint and he has appealed, setting the table for a D.C. Circuit opinion discussing implied for-cause removal.[54]And even more potential controversy looms on the horizon. Mehmet Oz and Herschel Walker were recently removed from the President’s Council on Sports, Fitness & Nutrition, an advisory body created by executive order under the Federal Advisory Committee Act.[55] Although created via executive order rather than by statute, the operative provisions of the relevant executive orders at the time of Oz and Walker’s removal are quite similar to those in the existing plaintiffs’ respective organic statutes.[56] Thus, to the degree that Severino, Spicer, and Vought see any successes, additional suits raising the issue may well follow.

At bottom, the Fifth Circuit’s removal holding is likely a logical extension of Free Enterprise Fund and Lucia. But it is an extension that relies in large part on a conclusory assertion about the removability of SEC Commissioners, albeit one the Supreme Court has operated under in the past. That assertion hinges on a legal doctrine that is on unsteady ground at best, especially after Seila Law and Collins emphatically rejected the philosophies of Humphrey’s Executor and Wiener. Given the increasing salience of the doctrine in the federal courts, the Supreme Court is likely to have a case land on its docket forcing the issue of implied for-cause removal sooner rather than later.

[1] Harvard Law School, J.D. class of 2021; B.A., Vanderbilt University, 2018. Special thanks to Professor Julian Davis Mortenson for his thoughtful comments on an early draft; Professors Mark Wu and Adrian Vermeule for inspiring my interest in for-cause removal through office hours and class discussion; and the JLPP staff for their excellent editing work.

[2] Jarkesy II, 2022 WL 1563613, at *1.

[3] Id.

[4] Id.

[5] Id.; see generally Jarkesy v. SEC, 48 F. Supp. 3d 32, 35–36 (D.D.C. 2014) (“Jarkesy I”), aff’d, 803 F.3d 9, 30 (D.C. Cir. 2015).

[6] Jarkesy I, 48 F. Supp. 3d at 40, aff’d, 803 F.3d at 15 (holding that Congress had “implicitly precluded” district court jurisdiction over the petitioners’ claims “by channeling [their] challenges through the securities laws’ scheme of administrative adjudication and judicial review in a court of appeals”).

[7] Jarkesy II, 2022 WL 1563613, at *1.

[8] Id. at *1–2.

[9] Id. at *2.

[10] Id.; Record Excerpts at 50–51, Jarkesy II, 2022 WL 1563613 (No. 20-61007) (ordering that Jarkesy be (1) barred from “associating with any broker, dealer, investment adviser, municipal securities dealer, municipal advisor, transfer agent, or nationally recognized statistical rating organization”; (2) barred from “acting as a promoter, finder, consultant, or agent, or otherwise engaging in activities with a broker, dealer, or issuer for purposes of the issuance or trading in any penny stocky, or inducing or attempting to induce the purchase or sale of any penny stock”; and (3) permanently prohibited from “serving or acting as an employee, officer, director, member of an advisory board, investment adviser or depositor of, or principal underwriter for, a registered investment company or affiliated person. . . .”).

[11] Id.; see 15 U.S.C. § 77i(a) (“Any person aggrieved by an order of the Commission may obtain a review of such order in the court of appeals of the United States, within any circuit wherein such person resides or has his principal place of business . . . by filing in such Court, within sixty days after the entry of such order, a written petition praying that the order of the Commission be modified or be set aside in whole or in part.”).

[12] Jarkesy II, 2022 WL 1563613, at *2.

[13] Id. at *2, 13.

[14] Id. at *2.

[15] But see id. at *11 n.17 (declining to decide whether vacatur is the appropriate remedy when a decision rendered by an executive branch official is successfully challenged based on that official’s unconstitutional insulation from presidential control).

[16] Id. at *8 n.9 (identifying the panel’s nondelegation holding as an alternative holding);

[17] See id. at *8 n.9; Texas v. United States, 809 F.3d 134, 178 n.158 (5th Cir. 2015).  

[18] Cf. Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991) (citing U.S. v. Adamson, 665 F.2d 649, 656 n.19 (5th Cir. Unit B, 1982) (“It is common practice for an appellate court to consider and decide issues which are fully presented and litigated and which will likely arise on retrial, even though such decision may not be necessary to support the narrow decision to reverse.”)), abrogated on other grounds by Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181 (5th Cir. 1995); Jarkesy II, 2022 WL 1563613, at *11 n.17 (impliedly identifying the panel’s removal holding as an alternative holding except for the remedies question).

[19] 561 U.S. 477 (2010).

[20] 585 U.S. ___, 138 S. Ct. 2044 (2018).

[21] 561 U.S. at 484.

[22] Id. at 484, 496.

[23] Id. at 487 (quoting Humphrey’s Ex’r v. United States, 295 U.S. 602, 620 (1935)).

[24] 138 S. Ct. at 2051, 2053.

[25] 5 U.S.C. § 7521.

[26] 5 U.S.C. § 1202.

[27] The Supreme Court has twice declined to decide whether SEC administrative law judges have a Free Enterprise Fund problem. First in Free Enterprise Fund itself, 561 U.S. at 507 n.10, where the issue was not before the Court, and again in Lucia, 138 S. Ct. at 2050 n.1, where the Court declined to take up the question for lack of percolation. Although footnote ten in Free Enterprise Fund offers a possible ground for distinguishing administrative law judges from the Public Company Accounting Oversight Board based on the former’s adjudicative function, that footnote only purports to explain what the Court’s holding “does not address.” 561 U.S. at 507 n.10; see Jarkesy II, 2022 WL 1563613, at *12 (responding to Judge Davis’s dissent on this point by suggesting that footnote ten is dicta and inconsistent with more recent removal decisions besides).

[28] 5 U.S.C. § 7521.

[29] Id.

[30] 561 U.S. at 487.

[31] Jarkesy II, 2022 WL 1563613, at *12.

[32] 561 U.S. at 487.

[33] See Free Enter. Fund, 561 U.S. at 502–08 (suggesting in dicta that the form of multi-layer removal protection was particularly egregious and declining to resolve issues not before the court like the constitutionality of the Merit Systems Protection Board).

[34] See, e.g., BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (plurality opinion) (explaining that a court’s inquiry in statutory interpretation “begins with the statutory text, and ends there as well if the text is unambiguous”).   

[35] See Bostock v. Clayton Cnty., Ga., 590 U.S. ___, 140 S. Ct. 1731, 1738–39 (2020) (when interpreting a statute, the Court “must determine the ordinary public meaning” by “orient[ing] [itself] to the time of the statute’s adoption, . . . examining the key statutory terms, . . . and then confirming [its] work against [its] precedents”); cf. Wyeth v. Levine, 555 U.S. 555, 586 (2009) (Thomas, J., concurring in the judgment) (“The Supremacy Clause . . . requires that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures.”); Zuni Pub. School Dist. No. 89 v. Dep’t of Ed., 550 U.S. 81, 119 (2007) (Scalia, J., dissenting) (“To be governed by legislated text rather than legislators’ intentions is what it means to be ‘a Government of laws, not of men.’”).

[36] Shurtleff v. United States, 189 U.S. 311, 316 (1903) (explaining that “[t]he right of removal . . . inheres in the right to appoint, unless . . . . plain [constitutional or statutory] language . . . take[s] it away”).

[37] Collins v. Yellen, 594 U.S. ___, 141 S. Ct. 1761, 1783 (2021); Carlucci v. Doe, 488 U.S. 93, 95 (1988) (“[A]bsent a ‘specific provision to the contrary, the power of removal from office is incident to the power of appointment.’” (quoting Keim v. United States, 177 U.S. 290, 293 (1900))); Keim, 177 U.S. at 293–94 (“In the absence of all constitutional provision or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment.” (quoting Ex parte Hennen, 38 U.S. 230, 259 (1839))).

[38] See, e.g., Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (And Executive Agencies), 98 Cornell L. Rev. 769, 786 (2013) (collecting agencies with statutory removal protection).

[39] Wiener v. United States, 357 U.S. 349, 353 (1958).

[40] Id. at 354-55; 50 U.S.C. § 4109.

[41] Wiener, 357 U.S. at 353.

[42] Collins, 141 S. Ct. at 1783 n.18 (explaining that Wiener was inapplicable because unlike the War Claims Commission, the Federal Housing Finance Agency “is not an adjudicatory body”).

[43] 295 U.S. 602, 619 (1935).

[44] Wiener, 357 U.S. at 356.

[45] 561 U.S. at 545–548 (Breyer, J., dissenting) (explaining that the SEC’s organic statute contains no for cause removal provision and arguing that the lack of such a provision cuts strongly towards an assumption that the Commissioners are removable by the President at will); see also Gary Lawson, Stipulating the Law, 109 Mich. L. Rev. 1191, 1193–95 (2011) (highlighting Justice Breyer’s contention that SEC Commissioners are removable at will); Peter L. Strauss, On the Difficulties of Generalization–PCAOB In the Footsteps of Myers, Humphrey’s Executor, Morrison, and Freytag, 32 Cardozo L. Rev. 2255, 2276–77 (2011) (same).  

[46] 591 U.S. ___, 140 S. Ct. 2183 (2020).

[47] 141 S. Ct. 1761.

[48] Seila Law LLC, 140 S. Ct. at 2199 (explaining that the Court has “[b]ack[ed] away from the reliance in Humphrey’s Executor on the concepts of ‘quasi-legislative’ and ‘quasi-judicial’ power”); Collins, 141 S. Ct. at 1784 (“[T]he nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head.”), 1785 (“Courts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies, and we do not think that the constitutionality of removal restrictions hinges on such an inquiry.”).

[49] Any historical claim that Congress intended the Commissioners to be removable only for cause is likely tenuous, as the Securities and Exchange Act became law before Humphrey’s Executor was decided. See Free Enter. Fund, 561 U.S. at 546–47 (Breyer, J., dissenting). Under the prevailing regime of Myers v. United States, 272 U.S. 52 (1926), any such protection would have been at best highly suspect. Nor do potential alternative rationales for the holding in Wiener suffice to save the Commissioners. For example, if the real problem with the War Claims Commission was that its decisions were completely unreviewable, that rationale is inapplicable to the SEC, whose decisions are reviewable by the federal courts of appeals under 15 U.S.C. § 77i(a). Likewise, if the Court was exercising sub silentio constitutional avoidance in 1958 to head off a due process problem were a president to attempt to improperly influence adjudications, Free Enterprise Fund, Seila Law, and Collins make clear that there is at least an equally strong countervailing constitutional avoidance interest in not reading statutes to contain stricter removal restrictions than their text supports only to declare those restrictions unconstitutional. See, e.g., Free Enter. Fund, 561 U.S. at 546 (Breyer, J., dissenting).

[50] CSPAN, Justice Clarence Thomas on Racial Equality and the Supreme Court (May 13, 2022) (discussion begins at timestamp 44:35), https://www.c-span.org/video/?517582-1/justice-thomas-leak-supreme-court-opinion-damages-rule-law [https://perma.cc/X9MZ-H24Y].

[51] Spicer v. Biden, No. 21-2493, 2021 U.S. Dist. WL 5769458 (D.D.C. Dec. 4, 2021) (denying a request for a preliminary injunction largely based on a conclusion that the plaintiffs had not shown a likelihood of success on the merits as to their claim that appointees to the Board of Visitors are removable only for cause).

[52] See id. at *13–15.

[53] Severino v. Biden, No. 21-0314, 2022 U.S. Dist. WL 168321 (D.D.C., Jan. 19, 2022) (Notice of Appeal filed Feb. 22, 2022, No. 22-5047).   

[54] See id.

[55] Dr. Mehmet Oz (@DrOz), Twitter (Mar. 26, 2022), https://twitter.com/DrOz/status/1507726091062059008?s=20&t=RFOmNi8b25yAtbwZ6laMgA [https://perma.cc/SW3Q-3WLX]; Herschel Walker (@HerschelWalker), Twitter (Mar. 24, 2022), https://twitter.com/HerschelWalker/status/1507016038851899404?s=20&t=w0EXLBdv_130qjSVlvkcEA [https://perma.cc/KES6-7BHG].

[56] Compare Continuance or Reestablishment of Certain Federal Advisory Committees and Amendments to Other Executive Orders, 86 Fed. Reg. 55465 (2021) and President’s Council on Sports, Fitness, and Nutrition 83 Fed. Reg. 8923 with 10 U.S.C. § 8468(b) and 5 U.S.C. § 595(b).

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Why the Equal-Protection Case for Abortion Rights Rises or Falls with Roe’s Rationale – Sherif Girgis

Posted by on Jun 3, 2022 in Per Curiam

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Why the Equal-Protection Case for Abortion Rights Rises or Falls with Roe’s Rationale

Sherif Girgis[1]

For nearly 50 years, legal scholars who favor Roe v. Wade’s[2] outcome but scorn its rationale have tried to find firmer footing for a constitutional abortion right. Roe and its follow-on case, Planned Parenthood v. Casey,[3] claimed to derive such a right from the Due Process Clause. That proved deeply controversial, for reasons laid out in the leaked draft opinion for the Court in Dobbs.[4] Most prochoice critics of Roe would have relied instead on the Equal Protection Clause.  Scores of essays on abortion rights have endorsed, developed, and refined the equality arguments over decades.[5] A book of proposals about what Roe should have said is filled with them.[6] A few separate judicial opinions are sprinkled with them.[7] The Dobbs dissent(s) might be. But in the end, I think, the equality rationale is only as strong as Roe’s. They rise or fall together.

The equality arguments for abortion rights come in two varieties. A leading proponent of one variety, from whom I’ve learned (and to whom I owe) a great deal, is Professor Reva Siegel, who co-filed an amicus brief in Dobbs.[8] She argues that we cannot explain prolife states’ policies in terms of their professed concern for fetal life alone. Those policies also reflect invidious motivations, like stereotypes about women’s “proper” role as mothers before all else.[9] Other equal-protection arguments, including Professor Jack Balkin’s, focus less on motivation than on impact.[10] They suggest that prolife states impose burdens on women they would never tolerate on men. Either way, the idea is that abortion bans—viewed together with prolife states’ other policies—reflect or impose sexist double standards.

Aside from Erika Bachiochi’s feminist critique of the equality arguments for abortion rights,[11] there has been a dearth of sustained responses. And the draft Dobbs opinion, for its part, simply finds the equality arguments foreclosed by two cases holding that laws regulating sex-specific procedures don’t trigger scrutiny absent some animus[12] and that we needn’t posit animus to explain abortion laws.[13] Critics respond that this answer gives the equality arguments short shrift and refuses to revisit two precedents (including Geduldig,[14] which for some has been overruled in the court of history[15]) in an opinion rejecting much bigger ones.[16]

To be fair to the Dobbs majority, the equal protection arguments depart not only from two cases but from the Court’s global framework for equal protection law—with its focus on disparate treatment rather than impact and on classifications as triggers for scrutiny. Balkin concedes as much.[17] But he says that departing from these doctrines would take us closer to the Constitution’s original meaning.[18] Here I will assume that he is right.

Specifically, as needed for both the unfair-motivations and unfair-impact versions of the argument, I will assume a doctrinal framework in which courts may reach equal-protection judgments by studying the whole body of a state’s statutory (and common?) law to draw (1) inferences about the state’s systematic motivations toward particular groups and (2) counterfactual judgments about how the state’s laws might change if the burdens they imposed fell on different groups than they currently do. Granting all of this, I think the equality arguments are vulnerable to an objection not based on precedent.

To preview: Despite their professed goal, the equality arguments ultimately have to assume that it is not even permissible for states to believe that fetal life is innocent human life. They must assume that the Constitution itself somewhere mandates a position on fetal moral worth—one that discounts early fetuses. But this was the weakest and most widely criticized premise of Roe and Casey. The equality arguments would thus be no stronger than Roe and Casey’s rationale. And so, for the Dobbs majority’s purposes, they would fail for the same reasons. In fact, the premise they share with Roe and Casey would do most of the work in the equality arguments for abortion.  There would be little left to be done by the appeal to equality itself.

For background, start with Roe and Casey’s rationale (since equal-protection arguments are supposed to improve on it). In their own telling, Roe and Casey rested at bottom on a balancing of two interests: the interest in aborting and the interest in protecting fetal life. They held that the moral balance tips toward the fetus (enough to justify protection) only at viability.[19]  And they ascribed this moral discounting of pre-viable fetal worth to the Constitution. But for this they gave no historical or precedential support. Effectively, then, Roe and Casey hang on the surprising premise that the Due Process Clause takes a position found nowhere in our history on when the human fetus counts enough to be protected—that the Clause itself rejects higher estimations of pre-viable fetal worth.

Few appreciate that it was Roe’s defense of this particular premise that John Hart Ely and Laurence Tribe so famously scorned. Ely said Roe’s argument for discounting pre-viable moral worth was transparently circular, “mistak[ing] a definition [of viability] for a syllogism,”[20] and Tribe wrote that one has to “read[] the Court’s explanation” for this premise “several times before becoming convinced that nothing has inadvertently been omitted.”[21] And Dobbs’s historical analysis argues that the Constitution does not enshrine Roe and Casey’s moral premise that pre-viable fetuses lack sufficient worth. (Note that states could be constitutionally permitted to regard fetal life as human life even if they aren’t required to do so by the Fourteenth Amendment—i.e., even if fetuses are not constitutional “persons.” That is clear from the example set by Roe and Casey themselves,[22] not to mention the fact that some 40 states permissibly treat non-abortion feticide as a crime, most often as homicide.[23]) So if the equality arguments are to move the ball—in particular, if they are to escape any rebuttals on the merits that Dobbs makes against Roe and Casey—they must avoid resting on this constitutional discounting of early fetal worth.

Some aspire to do that.  The equality arguments summarized by Professor Reva Siegel and Professor Neil Siegel[24] (and separately by Reva Siegel[25]) recognize a “bona fide interest in protecting potential life.”[26] Granting that abortion bans are partly “about” protecting “the unborn,”[27] these arguments do not say that this motivation is off-limits or insufficient under the Due Process Clause. (So they see no inherent constitutional problem with regarding fetal life as innocent human life weighty enough to justify abortion restrictions.) Instead, equality arguments submit that prolife states’ policies also reflect other motivations—or have effects—that are forbidden, but by a different clause: equal protection. Specifically, as Siegel and Siegel sort them, these arguments rest on one of two broad claims: that (1) prolife states unjustly burden women in ways they would never burden men, and that (2) prolife states must be motivated by biased ideas about women. I’ll take them in turn.

  1. “Gendered impact of abortion restrictions”:[28] The first argument is that by banning abortion without offsetting the burden to women in certain ways (e.g., without “providing material resources to support” mothers[29]), states would impose X burden on women that they would never impose on men.

But I don’t see how this argument could really grant the premise that it is constitutionally permissible for states to see fetal life as innocent human life (as needed if it’s to improve on Roe and Casey). To grant this and still establish a sexist double standard, the argument would have to identify situations where prolife states would lift burdens like X from men (but not from women) at the cost of legally permitting the intentional taking of innocent life or something morally comparable. And it’s hard to see how one could do that. What policy protects men’s interests at the cost of legally permitting the intentional killing of innocents or anything morally close to it?

The costs of pregnancy cannot be trivialized. And given the limits of our technology, some of those costs cannot be transferred to another person or a machine. But if the equal-protection arguments are to add anything to Roe and Casey, they must allow that the costs of permitting abortion might also be grave—possibly as grave as permitting the intentional killing of innocent human life. And assuming those are the costs, we would have to find something similarly morally egregious that prolife states would tolerate to benefit men, if we’re to establish a double standard.[30]

Compare conscription. Its costs—separation from friends, family, and work, and possibly death—fall on able-bodied adults. That doesn’t mean that it reflects animus against the able-bodied relative to the disabled. That’s because we couldn’t transfer those costs even if we wanted to; we have very weighty reasons to tolerate them; and there’s no evidence that we would refuse to accept similar tradeoffs when the disabled are the ones bearing the costs. (Just the opposite, unfortunately.) So too here, assuming—as any promising equality argument should—that the reasons to tolerate the burdens of abortion bans may well be as weighty as prolife states think.

  1. “Constitutionally suspect judgments about women”:[31] A similar issue plagues the second family of equality arguments, each of which reasons as follows: By banning abortion but failing to protect human life in XYZ other ways (e.g., reducing abortion rates by providing “appropriate and effective sex education,” or enhancing health outcomes by “provid[ing] assistance to needy families”[32]), states manifest not only concern for fetal life but also impermissible attitudes toward women (e.g., “stereotypes about women’s roles as child bearers before all else”[33]).

In other words, prolife states are too callous toward human life in other contexts for their abortion bans to reflect a pure (admittedly legitimate) concern for fetal life, rather than also reflecting suspect judgments about women.

To establish that, this argument would have to identify situations where prolife states not only fail to effectively promote life in XYZ ways, but do something as callous toward life as withdrawing the protection of homicide laws from a class of innocents. Is failing to subsidize certain forms of health care—or failing to subsidize childcare, or for that matter failing to subsidize childcare when this will make someone marginally likelier to get an abortion—the moral equivalent of denying the protection of homicide laws to a class of innocents? It seems not to be.

But if we cannot point to such moral equivalents, we have not shown that prolife states’ policies must have a hidden, invidious motivation.

To be clear, I think no matter what abortion policies we have, we can and should do more—much more—to support pregnant women, parents, and children. The narrow analytic point is just that withdrawing the protection of homicide laws from (what are conceded arguendo to be) innocent human lives is generally worse than failing to provide resources. With born persons, for instance, we must protect everyone against homicide, but we don’t automatically give everyone every vital resource in every context—due to scarcity and costs, the unintended effects of some redistributive policies, competing policy needs, and other tradeoffs. So if states can see abortion as the intentional killing of innocents (as equality arguments mean to grant), they can see a world of difference between withdrawing the protection of homicide laws from the unborn, and giving the born and unborn this or that form of public support. We needn’t posit that this difference is driven by suspect judgments about women.

We may have more direct evidence that some particular prolife people have harbored bias against women, but we also have empirical and historical evidence that many do not. First, there are the tiny gender differences in public opinion on abortion and high proportion of prolife women. From the 1970s onward, the gender gap on abortion has consistently been smaller than on almost any other political issue.[34] If suspect judgements about women drive prolife views, then women hold constitutionally infirm views about women at nearly the same rate as men. And in absolute terms, just under half of all American women are guilty of misogyny and plagued by false consciousness. The fact that prolife or antiabortion views are barely more common among men than women, and are quite common among women, is a serious point against suspect-judgment arguments. Second, so is the historical fact that the pro-life movement has deep roots in the civil-rights movement—in New Deal-era civil-rights crusaders who “viewed their campaign as an effort to extend state protections to the rights of a defenseless minority (in this case, the unborn).”

More broadly, there is no context where states must license something they permissibly see as comparable to the intentional killing of one group, in order to secure equality for another group.  Nor is there any context where we would even ask whether equality required such a thing.

So the equality arguments must, after all, presuppose that it is not permissible for states to see fetuses as innocent human lives on a par with the born—that states must discount the intentional killing of fetal lives.  But then equality arguments will need a defense of this further, purely moral judgment about fetal worth. That defense will need to improve on Roe and Casey’s plainly circular one.  It will need to trace this view of fetal moral worth to some part of the Constitution, in order to justify its imposition by courts. And if an argument did all of that, I don’t see what further work would remain to be done by appeals to equality. A constitutional abortion right would already have been established.

Those convinced by Peter Westen’s argument that appeals to equality never do the work in an argument about rights will be unsurprised if it holds true here.[36]

*   *   *

Even granting the equality arguments’ reading of the Equal Protection Clause, their proposed doctrines for implementing it, and their rejection of Geduldig and other precedents, I think the arguments fail to establish an abortion right unless they assume with Roe and Casey that the Constitution itself takes a position discounting fetal moral worth. If Dobbs’s historical analysis proves that the Constitution does no such thing, it refutes the equality arguments, too.

[1] Associate Prof. of Law, Univ. of Notre Dame. Ph.D., Princeton Univ., exp. 2023; J.D., Yale Law School, 2016; B.Phil., Univ. of Oxford, 2010; A.B., Princeton Univ., 2008.

[2] 410 U.S. 113 (1973).

[3] 505 U.S. 833 (1992).

[4] Draft Opinion of Justice Alito in Dobbs v. Jackson Women’s Health Organization, No. 19-1392 at 15–31 (February 2022), https://www.documentcloud.org/documents/21835435-scotus-initial-draft.

[5] See generally Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 Emory L.J. 815 (2007).

[6] See Jack M. Balkin, Introduction, in What Roe v. Wade Should Have Said (Jack M. Balkin, ed., 2007).

[7] See generally Neil S. Siegel & Reva B. Siegel, Equality Arguments for Abortion Rights, 60 U.C.L.A. Rev. Disc. 160 (2013).

[8] Brief of Equal Protection Constitutional Scholars Serena Mayeri, Melissa Murray, and Reva Siegel as Amici Curiae in Support of Respondents, Dobbs v. Jackson Women’s Health Organization, No. 19-1392, https://www.supremecourt.gov/DocketPDF/19/19-1392/193048/20210920164113157_19-1392%20bsac%20Equal%20Protection%20Constitutional%20Law%20Scholars%20Final.pdf (hereinafter “Amicus Brief”).

[9] See generally Siegel, supra note 5.

[10] See, e.g., Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comm. 291 (2007).

[11] See Erika Bachiochi, Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights, 34 Harv. J.L. & Pub. Pol’y 889, 893 (2011) (arguing that “abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood”).

[12] Geduldig v. Aiello, 417 U.S. 484 (1974).

[13] Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).

[14] Supra note 12.

[15] Cf. Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (declaring that Korematsu v. United States (1944) has been “overruled in the court of history”).

[16] Comments of Mary Ziegler, The Dobbs v. Jackson Case – Part 3, We the People Podcast, https://www.stitcher.com/show/we-the-people/episode/the-dobbs-v-jackson-case-part-3-203140026.

[17] See Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comm. 291, 325 (2007). Professor Reva Siegel argues that even under current doctrine, a law classifies by sex—triggering heightened scrutiny—if it is a “pregnancy-based regulation[.]” Amicus Brief, supra note 8, at 9. But I do not see how a general feticide law—with no special penalty but also no exception for feticide resulting from an abortion requested by the pregnant woman—classifies by sex at all. See Andrew Koppelman, Beyond Levels of Scrutiny: Windsor and “Bare Desire to Harm”, 64 Case W. Res. L. Rev. 1045, 1049 (2014) (Supreme Court applies heightened scrutiny only when a policy requires “officials, in allocating rights and burdens, to determine” certain traits’ presence or absence “in specific cases.”); cf. Benjamin Eidelson, Dimensional Disparate Treatment, at 42–44 (forthcoming Southern California Law Review), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3915787 (arguing that discrimination based on pregnancy is not, as a matter of ordinary meaning, discrimination based on sex). 

Siegel elaborates that abortion laws classify by sex because they “single out women for regulation.” Siegel, et al., Equal Protection in Dobbs and Beyond, 32 Colum. J. of Gender & The Law at 13 (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4115569. Of course, abortion regulations do not single out women in the sense of prohibiting only women from performing abortions. To the contrary, the only differential treatment that contemporary abortion regulations show to any women is to exempt from liability the women who seek abortions (as opposed to the people who perform them). Obviously, a general feticide law will have a disparate impact on pregnant women if its main effect, in practice, is to prevent abortions requested by women; preventing those procedures burdens women far more than men. And perhaps this disparate impact should, in an ideal world, suffice to trigger scrutiny. The point is just that disparate impact does not make for a suspect classification under current doctrine—not for sex and not for any other protected trait.

Finally, Siegel suggests that “[e]ven if legislators drafted an abortion ban that expressly applied to all who become pregnant, that ban would be sex-based and unconstitutional if it were based on the sex-role stereotype that the state can coerce persons who are pregnant to continue pregnancy without recompense or support.” Id. But to ascribe abortion laws to such stereotypes is to assume just what Siegel’s equality arguments mean to prove (and what, I suggest below, they have not proven). In other words, the idea that abortion laws rest on unlawful stereotypes is the intended conclusion of Siegel’s analysis, not a premise—not a basis for triggering heightened scrutiny of such laws.

[18] Balkin, supra note 17, at 318–19, 325.

[19] See Sherif Girgis, Misreading and Transforming Casey for Dobbs, 20 Geo. J. L. & Pub. Pol’y 331, 340–41 & n.46 (2022).

[20] John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973).

[21] Laurene H. Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1 (1973).

[22] Roe and Casey taught that saving X’s life can be an interest of the highest order—a compelling interest—even if X isn’t a person; they said just that of viable fetuses.  Under Roe and Casey, post-viability abortion bans were permitted (though they burden a right) because they serve a compelling interest—but not required, because the late-term fetus isn’t a constitutional person.  See Girgis, Misreading, supra note 19, at 340–41 & n.46.

[23] See National Council of State Legislatures, State Laws on Fetal Homicide and Penalty-Enhancement for Crimes Against Pregnant Women (May 1, 2018), https://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx

[24] See generally Siegel & Siegel, supra note 7.

[25] See generally Siegel, supra note 5.

[26] Siegel & Siegel, supra note 7, at 163.

[27] Id.

[28] Id.

[29] Siegel, supra note 5, at 822.

[30] Or we would have to find other combinations of cost and benefit that reveal that prolife states in particular apply less generous tradeoff rates to women.

[31] Siegel & Siegel, supra note 7, at 163.

[32] Amicus Brief, supra note 8, at 20.

[33] Id.

[34] See Frank Newport, Men, Women Generally Hold Similar Abortion Attitudes, Gallup (June 14, 2018), https://news.gallup.com/poll/235646/men-women-generally-hold-similar-abortion-attitudes.aspx; see also Matthew Yglesias, Men and Women Have Similar Views on Abortion, Vox (May 20, 2019), https://www.vox.com/2019/5/20/18629644/abortion-gender-gap-public-opinion.

[35] Daniel K. Williams, Defenders of the Unborn: The Pro-Life Movement Before Roe v. Wade 4 (2019).

[36] Peter Westen, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982).

 

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Originalist Cherry-Picking – Timon Cline

Posted by on May 31, 2022 in Per Curiam

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Originalist Cherry-Picking

Timon Cline[1]

For a legal theory self-professedly predicated on history and historical meaning, originalism is consistently bad at history. Originalists excel, however, at cherry-picking the record—ironic for a political strategy hatched to combat the Warren-era’s so-called judicial activism. Justice John Paul Stevens aptly and memorably identified this conspicuous selectivity of the originalist majority in his Van Orden v. Perry dissent.[2]

In his assault on “living common goodism,” as he pejoratively refers to the classical legal tradition lately recovered by Adrian Vermeule and Conor Casey, Circuit Judge William Pryor is nothing if not a faithful practitioner of originalist historiography.[3] His recent Federalist Society speech, subsequently published in the Federalist Society Review, is a representative instantiation of this impulse. Reason and National Review were predictably ecstatic,[4] as they were about his Heritage Foundation lectures last fall.[5]

In their response to Pryor, Vermeule and Casey intentionally sidestep some of the historical questions raised by Pryor.[6] Indeed, Vermeule (rightly) makes clear in his book that while the American founders should be generally conceived as classical lawyers, his project is not predicated on any kind of filial piety as such.[7] As Vermeule well knows, this is a low hanging, irresistible fruit for originalists.

After critiquing Vermeule for his appeal to cases too recent, Pryor references a grand total of two decisions extant from the early republic or antebellum period. He opts to dedicate more time to haggling over an article by Jefferson Powell and relies on Powell’s sources to stand in for his own.[8] A curious strategy.[9] A more worthy endeavor might have been to consider Harry Jaffa’s work on the question.[10] And stranger still, Pryor claims that Powell’s work evidences “the practice of originalism at the Founding era,”[11] but Powell himself concludes that the relationship between what he calls “modern intentionalism” and “early interpretive theory is purely rhetorical.”[12] It is “historically mistaken” to think that the “interpretive intention” of the framers was “that the Constitution would be construed in accordance with what future interpreters could gather of the framers’ own purposes, expectations, and intentions.”[13] (Whether Powell is right or wrong is, ultimately, neither here nor there.) Pryor’s anachronistic conviction, following from his reading of Powell, is that “Early Justices too practiced originalism.”[14]

Here, we will briefly take aim at Pryor’s sweeping claim that judges in the early republic “practiced originalism.”[15] For this proposition, Pryor chiefly relies on Calder v. Bull,[16] or rather, on James Iredell’s opinion in Calder. Accordingly, Calder will be our primary expositional focus.

Mentioned by Pryor also is Ogden v. Saunders,[17] but he simply and summarily states that in Ogden John Marshall “clearly embraced originalism,” without further comment.[18] In short order, the inquiry for Pryor shifts rapidly from proving originalism in the period to refuting “living common goodism.” Ogden will, therefore, be ignored by us as well.[19] In the end, Pryor pins his historical hopes on one justice and one opinion whilst ignoring all counter evidence, even within the same case.

Calder v. Bull

Let’s now look to the Calder seriatim opinions invoked by Judge Pryor. Recounting the underlying facts of Calder is unnecessary for our purpose since Judge Pryor’s citation of Calder is purely for Iredell’s purportedly originalist method. Calder is well known to all law students as the ex post facto case wherein the court jointly held that the relevant clause of the constitution applied to criminal laws (per Blackstone), that the Supreme Court could not nullify state laws that violated state constitutions—state courts are the “proper tribunals”—and that the specific act in question was valid.[20]

Moving on. Mentioned already is that Pryor selectively invokes only Justice Iredell’s opinion.[21] There was no dissent in Calder. The central holding was unanimous though the reasoning differed between justices, viz., Iredell and Samuel Chase. Noteworthy is that Pryor totally ignores the opinions of Justices Chase, William Cushing, and William Paterson. (Oliver Ellsworth and James Wilson apparently joined Chase.) Cushing was one of the greatest legal minds of the period, though he is underappreciated now, and his comments in Calder are humorously terse and disinterested, and so, easily forgotten.[22]

But that the rationale adopted by the functional majority of Chase, Ellsworth, Wilson, and Paterson is missing from Pryor’s assessment is problematic. Chase’s opinion, in particular, offers a stark contrast to Iredell’s and, therefore, a counternarrative to the one Pryor tells. Iredell denied that legislative enactments could be overturned by courts on the basis of “natural justice” because he did not believe that any “fixed standard” governed its apprehension or application.[23] Chase was of the opposite persuasion.[24] The question is, which justice was representative of the bench at the time and, more importantly, American jurisprudence generally?

[***]

 

I would remind the reader also, before we proceed, that Connecticut’s “constitution” at the time was none other than its common law practice coupled with a meager statutory landscape and its 1662 charter; not until 1818 was it replaced by something originalists would be comfortable interpreting.

Hence, Justice Paterson says that the state’s constitution was “made up of usages”[25] which, for more than a hundred years by then were not to be “contrary to the Lawes and Stuatutes of this our Realme of England.”[26] A more thoroughly common law jurisdiction none could find in 1798. And Patterson is explicit: usage and constitution were “synonymous terms” in Connecticut, and the General Court performed both judicial and legislative functions, as all colonial New England governments had, such that Paterson stipulates at the outset that he will artificially distinguish between the two functions as if two different bodies performed them.[27] (Already we find ourselves adrift, further from the shore than originalists would like.)

Though Patterson provides necessary historic background, his opinion is characteristically underwhelming. He notes that in the common law, per Blackstone, prohibition on ex post facto laws only refers to criminal statutes, and that myriad state constitutions agreed with that distinction.[28] (Chase also provides a terse state survey.[29]) End of opinion. Why Patterson wrote separately at all is unclear, and he says nothing directly pertinent to the debate Chase and Iredell are having.

[***]

 

More to the point, maybe Iredell does represent a case of epistemological skepticism and moral relativism insofar as judges can apply it to challenge legislative enactments. But the question is whether Iredell mirrored his compatriots in so doing—stipulating arguendo that he did, in fact, do so himself—or, alternatively, whether he was an outlier amongst the same cohort. It is entirely likely that Iredell was just as described. Yet, the milieu of his period was one in which the stream of moral and legal thought remained basically classical and, therefore, drinkable. Albeit the dam restraining enlightenment epistemologies had broken by that point and foul waters had already begun to contaminate the intellectual streams. What dripped from Justice Chase’s pen, however, appears to conflict with Pryor’s one-dimensional reading of Calder (i.e., Iredell as the court).

We enter early at the point when Chase declines to “subscribe to the omnipotence of a State Legislature, or that it is absolute and without control[.]”[30] The next clause reads “although its authority should not be expressly restrained by the constitution or fundamental law of the State.”[31] Do not misunderstand Chase: the comment “although its authority should not be expressly restrained” is not proscriptive but descriptive, or rather, means that “even where, or in the event that, its authority is not expressly restrained,” etc. etc.

Even in this case, Chase is saying, the “purposes for which men enter into society will determine the nature and terms of the social compact[]” and thereby direct and limit the organs of power within the constitutional order.[32] The “nature, and ends of legislative power [itself] will limit the exercise of it.”[33] As it happens, the “people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty[,] and to protect their persons and property from violence.”[34]

Note the mention of constitutions and forms of government in the plural: a reference to the several states though Chase invokes the language of the federal preamble—also of note is the subtle reference by Chase to the fact of historic contingency as to the form and style governments take.

Chase argues that because of the nature of a republican government, and legislatures therein, and given their precipitating circumstances, there quite simply are “acts which the Federal or State Legislature cannot do, without exceeding their authority,”[35] that is, implicit authority according to the nature of the thing—a metaphysical argument of sorts. Stated more clearly:

An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.[36]

Chase further explains:

A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words for an act, which, when done was in violation of no existing law; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause, or a law that takes property from A. and gives it to B: It is against all reason and justice for a people to entrust a Legislature with such powers, and, therefore it cannot be presumed that it has done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The Legislature may enjoin, permit, forbid, and punish; It may declare new crimes and establish rules of conduct for all its citizens in future cases; it may command what is right and prohibit what is wrong, but it cannot change innocence into guilt or punish innocence as a crime or violate the right of an antecedent lawful private contract or the right of private property. To maintain that our Federal or State legislature possesses such powers if it had not been expressly restrained would, in my opinion, be a political heresy altogether inadmissible in our free republican governments.[37]

Hadley Arkes—one of the “better originalists”[38]—recognized in Beyond the Constitution what Chase (as well as most of his cohort on the bench and his contemporaries off it) was doing.[39] Inherent in the form and mode of government are imbedded (or implied) fundamental, necessary preconditions for its existence. Put more simply, principles of justice lie behind and before any regime by which said regime can be judged good or bad. And these principles of natural justice (i.e., natural law) precede all formation of any government. John Marshall, to whom Pryor also appeals, believed that the judgments of the court should be drawn from the “general principles of our political institutions,” not merely the “words of the Constitution,” as he wrote in Fletcher v. Peck.[40] The “reasoning spirit of the Constitution,” not just the “words or letter,” was a sound guide for the court.

Vermeule highlights this type of reasoning—sitting squarely within the classical tradition—in Common Good Constitutionalism.[41] Since the general principles of the constitution “will inevitably be saturated with principles of political morality,” it is a mistake to assume that said principles, such as the common good, must spring from specific texts.[42] Rather, “they can be grounded in the general structure of the constitutional order and in the nature and purposes of government.” These “determine the just authority of the state.”[43] On this Vermeule cites United States v. Curtiss-Wright Export Corp.:

[T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.[44]

He just as easily could have cited Chase’s Calder opinion. The reasoning is the same; a testament to the endurance of the classical tradition in America even as it was embattled by nascent realist-positivist movements by the time of Curtiss-Wright.

The same reasoning also crops up in early American legal commentaries like Zephaniah Swift’s System of Laws of the State of Connecticut. Explaining the logic of the common law vis-à-vis precedent, Swift instructs that courts are not

absolutely bound by the authority of precedents. If a determination has been founded upon mistaken principles, or the rule adopted by it be inconvenient, or repugnant to the general tenor of the law, a subsequent court assumes the power to vary from or contradict it. In such cases they do not determine the prior decisions to be bad law; but that they are not law. Thus in the very nature of the institution, is a principle established which corrects all errors and rectifies all mistakes.[45]

Swift then briefly characterizes the common law of England as “a highly improved system of reason, founded on the nature and fitness of things [which] furnishes the best standard of civil conduct.”[46] English common law was embraced and adopted by American courts “so far as it was consistent with the difference of situation,” such that American common law became essentially English.[47] Swift notes, in turn, that English law itself owes much to the Roman law and that, indeed, the notion of precedent as binding and analogically applicable to sufficiently similar cases was a principle “common to all nations,” not just England.[48] Precedent, therefore, comprises the “greatest part” of the common law, and these are to be studied primarily for the sake of acquaintance with the internal reason and movement of the common law, not for rote memorization and wooden application as such.[49] Courts must generally adhere to precedent in like cases except when “repugnant to reason,” as noted already.[50]

Accordingly, Swift insists that “our courts exercised the same discretionary power and jurisdiction, as have been exercised by all the English judges, from the earliest periods of their government, to the present time,” such that “There are a vast many improvements which were introduced by the courts without any legislative act.”[51] And again, “Our courts have always acted upon the same general principles, as the British courts.”[52] He goes on to explain that the common law must fill in statutory gaps and errors and further adopted prudently to local circumstances.[53]

It is only natural, then, that Swift expects judges to not mindlessly give force to statutes, but to insure not only their equitable and reasonable application but their coherence within the preexistent common law system. Courts, as guardians of the common law, maintained (like the English courts) the right to alter or even abolish unjust and noxious laws, whether found in precedent or statute, according to the “general principles of reason, and law.”[54]

Our courts still possess, and exercise the same privilege, and whenever they find the common law unreasonable, impolitic, or unjust, or repugnant to the general tenor of our jurisprudence, they have rejected it, and adopted, such rules in their decisions, as they conceived to be right, and consonant to the general principles of our law.[55]

“[I]n all cases of a defect of common law, not supplied by statute, the courts must supply it by an adjudication, grounded upon the basis of all laws, reason and justice.”[56]

Lest Swift be cast as an outlier—and we have already supplied more historical analysis than Pryor—we can (briefly) invoke also Chancellor Kent’s Commentaries on American Law.[57] Kent recounts:

In 1792, the Supreme Court of South Carolina, in the case of Bowman v. Middleton [1 Bay, 252 (S.C. Com. Pl. Gen. Sess. 1792)], went further, and set aside an act of the colony legislature, as being against common right and the principles of Magna Carta, for it took away the freehold of one man and vested it in another, without any compensation, or any previous attempt to determine the right. They declared the act to be ipso facto void, and that no length of time could give it validity. This was not strictly a question arising upon any special provision of the state constitution, but the court proceeded upon those great fundamental principles which support all government and property, and which have been supposed by many judges in England to be sufficient to check and control the regulations of an act of parliament.[58]

[***]

 

Returning to Calder, what background principles and purposes might Chase have had in mind? Mentioned already is that Connecticut had no written constitution in 1798. (Rhode Island also initially retained its royal charter.[59]) For a historically proximate textual referent to satisfy our textualist brethren—and determine the original public meaning, of course—we might look to the only other state more thoroughly conditioned by Puritanism than Connecticut, viz., Massachusetts.[60] The constitution of 1780 declares that its government is “instituted for the common good; for the protection, safety, prosperity and happiness of the people.” The constitution of 1776 in Chase’s home state of Maryland, government is said to be “instituted solely for the good of the whole.”[61] Those who exercise executive and legislative power are “trustees of the public.”[62]

Indeed, in Jacobson v. Massachusetts,[63] the first Justice Harlan, citing Commonwealth v. Alger,[64] rooted the internal (or state) police power in the overarching principles of governance featured in the Massachusetts constitution. There was no strict, textual basis for it, though a prior text had cited it—a common mistake of the originalist historiographer is to miss this distinction:

In the constitution of Massachusetts adopted in 1780, it was laid down as a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for “the common good,” and that government is instituted “for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of anyone man, family or class of men.” The good and welfare of the Commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts.[65]

In route to formulating proto-rational basis review, Harlan later cites himself in Mugler v. Kansas for the conclusion that,

[I]f a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.[66]

What is the “fundamental law” anyway? It is surely not merely the text of the Constitution, though it may attest to it. For by adhering to the fundamental law over and against statutes to the contrary, Harlan says that judges “give effect” to the Constitution itself, implying that something sits behind both texts—a decidedly non-positivist assertion. Rather, Harlan’s standard of review looks beyond chapter and verse and into the underlying (and overarching) rationale of the structure of the republic itself in conjunction with the customary “usage” within the common law to which Paterson attested.

As John Eusden has shown, nailing down what “fundamental law” meant within the common law tradition, even by the seventeenth century, is not easy.[67] Some combination of natural law, custom, and tried and true statute comprised its multi-dimensional, interactive core—that is, ius, lex, and iustitia.

Sounding much like Kent, William Drayton, in the American Claim of Rights (1774), followed Blackstone in describing “fundamental law” as more or less historic, common law rights of Englishmen.[68] It is key to notice that Drayton refers to several texts, viz., Magna Carta, the Petition of Right (1628), the Bill of Rights (1689), etc., but says that these documents only “specified” the fundamental laws of England and rights of Englishmen which were formed by their “common ancestors.” In other words, the texts themselves were nowise the origin of the law and rights referenced nor a necessary referent for the rights in view to be ascertained. Bushrod Washington’s circuit court opinion, Corfield v. Coryell, went to greater lengths to catalog these “fundamental principles” albeit under “general heads,” and calling the exercise “tedious.”[69] To him, they comprised the privileges and immunities of all republican citizens qua republican citizens.

“Fundamental law” did not refer to text simpliciter and necessarily avoided exact codification. Otherwise, it could never function as a failsafe, so to speak. What can be said more easily is that Anglo-American classical lawyers, from Edward Coke to Matthew Hale[70] to William Blackstone to John Marshall Harlan, did not conceive of themselves as glorified parsers of texts. Originalists they were not. They were by and large classical jurists. And, to return to our earlier emphasis, the fundamental law was intertwined with accompanying or reflective institutional logic. To cite Blackstone once more and come full circle:

The absolute rights of every Englishman (which, taken in a political and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government … and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.[71]

The codification is not the basis. These codifications corrected unjust codifications and did so by appealing to, and instantiating, the natural law. They are only textually asserted when threatened but no classical lawyer like Blackstone thought for a moment that such textual record was either definitive or authoritative in itself. And though, admittedly, Iredell could not conceive of a way around bad legislation in terms of institutional allocation, it is not at all obvious that on this front Iredell disagreed with Blackstone.[72]

Conclusion

Iredell is admittedly a tough case. His epistemological doubt—a virtue of that age of reason— (and unwillingness to rule)[73] caused him to drift from classical assumptions, though not wholesale.[74] But Pryor, without revealing his criteria of selection, positions Iredell as a definitive rebuttal to Vermeule’s allegedly lackluster historical survey is the real source of contention. Within Calder itself Iredell is refuted, as already shown. And most jurists and caselaw outside of Calder contradicts Iredell. Wilson,[75] Nathaniel Chipman,[76] and Joseph Story,[77] in addition to those jurists already mentioned, all carried the torch for the natural law tradition and classical metaphysics as the basis for all law.

True enough, Chase is largely an exponent of the classical tradition in Calder and Iredell is not. How does one choose which justice should be afforded more weight? Pryor’s selection is arbitrary and self-serving, perpetuating both untrustworthy originalist historiography and the “unhappy side effect” of Calder, as Richard Helmholz calls it[78]—i.e., introducing an unnatural tension between positive law and natural law within American jurisprudence.[79] More substantively, critics have thus far refused to recognize the relative indifference of the classic theory to the structure of a polity, within limits, and, by extension, the distribution of labor and power therein. The issues are, perhaps, related but properly separate.

Vermeule himself has, citing Harlan, written in favor of a kind of legislative deference (and textualism[80]) as an instantiation of the classical principle of determinatio.[81] Critics who assume an exaggerated judicial supremacy in classical law as delivered and explicated by Vermeule are simply not paying attention.

As Vermeule has insisted more than once against this persistent, presumptuous jab, interpretive method and institutional allocation are distinct inquiries. Pryor, like most originalists, melds them into one. But what common good constitutionalist are arguing is that as a heuristic, a governing political rationality and justification of authority, the common good should influence all law making, whether legislative or judicial.[82] In fact, following Harlan (and Aquinas), Vermeule believes that “judges do and should broadly defer to political authorities, within reasonable boundaries.”[83]

The rub, however, is when it comes to tough cases. At that point, the originalist dutifully refers to the textual restraints imposed upon him—ius is subjected to lex, to the detriment of iustitia—whereas the classical lawyer recognizes the priority of the higher law whether manifested in statute, constitution, custom, or principles of natural justice preserved in the synderesis of all reasonable creatures.[84]

Even if Pryor may claim Iredell for his camp, Vermeule may easily claim Chase and many others beside. If Judge Pryor really wants to put “living common-goodism” down, he will have to extend beyond the tired originalist cherry-picking historiography that requires little more of its proponents than citation of a “favorite founder.”[85]

 

[1] Deputy Attorney General, Office of the New Jersey Attorney General, Division of Law; Research Fellow, Craig Center, Westminster Theological Seminary.

[2] 545 U.S. 677 (2005) (Stevens, J., dissenting).

[3] William Pryor, Against Living Common-Goodism, 23 Fed. Soc. Rev. 25 (2022). All of this, of course, stems from Professor Vermeule’s 2020 piece, Adrian Vermeule, Beyond Originalism, The Atlantic (Mar. 31, 2020), https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/?msclkid=d622c4ecd0c511eca661e1b81d7df4c6. For the best summary of what followed, see Conor Casey, ‘Common-Good Constitutionalism’ and the new Battle over Constitutional Interpretation in the United States, 4 Public Law 765–787 (2021).

[4] Ed Whelan, Judge William Pryor’s ‘Against Living Common Goodism’, National Rev. (Apr. 6, 2022), https://www.nationalreview.com/bench-memos/judge-william-pryors-against-living-common-goodism/; Jonathan H. Adler, Judge Bill Pryor Challenges Common-Good Constitutionalism, Reason (Apr. 5, 2022), https://reason.com/volokh/2022/04/05/judge-bill-pryor-challenges-common-good-constitutionalism/.

[5] Ed Whelan, Judge William Pryor against ‘Living Common Goodism’, National Rev. (Oct. 20, 2021), https://www.nationalreview.com/bench-memos/judge-william-pryor-against-living-common-goodism/.

[6] Conor Casey & Adrian Vermeule, Argument By Slogan, 10 Harv. J. L. & Pub. Policy: Per Curiam (Spring 2022) (see esp. note 4). See also Conor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J. L. & Pub. Policy 103 (2022).

[7] This claim makes immediate, intuitive sense to those familiar with the colonial background which conditioned the constitutional milieu of the late eighteenth century. See e.g., Richard M. Gummere, The American Colonial Mind and the Classical Tradition (1963).

[8] H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (Mar. 1985).

[9] Pryor says that Vermeule “repeatedly relies” on Powell. Pryor, supra note 3, at 36. In fact, Vermeule clearly gives more weight to Jonathan Gienapp, Written Constitutionalism, Past and Present, 39 Law and History Review 321 (2021), which he quotes at length in the same footnote in which Powell is found. Adrian Vermeule, Common Good Constitutionalism (2022), 186–187 n 4.

[10] Harry V. Jaffa, Original Intent and the Framers of the Constitution (1994). See also Harry V. Jaffa, What Were the “Original Intentions” of the Framers of the Constitution of the United States? 10 Univ. Puget Sound L. Rev. 351 (1987). In a qualified sense, what separates Vermeule and Pryor is what separated Jaffa and his interlocutor, Ralph Rossum, which is what separated Justices Iredell and Chase. See Harry V. Jaffa, Original Intent and the American Soul, 6 Claremont Rev. of Books 1 (Winter 2005/2006).

[11] Pryor, supra note 3, at 37.

[12] Powell, supra note 8, at 948.

[13] Id.

[14] Pryor, supra note 3, at 37.

[15] Id.

[16] 3 U.S. 386 (1798).

[17] 25 U.S. 213 (1827).

[18] Pryor, supra note 3, at 37.

[19] Though it should be noted that Marshall’s purportedly originalist opinion primarily considers a case of allocation. See below. Note well also that Pryor performs more originalist cherry-picking in shunning the more interesting opinion of Justice Thompson which features numerous references to natural law, natural justice, and natural right. Indeed, at one point he declares a statutory survey unnecessary:

 

There can be no natural right growing out of the relation of debtor and creditor that will give the latter an unlimited claim upon the property of the former. It is a matter entirely for the regulation of civil society; nor is there any fundamental principle of justice, growing out of such relation, that calls upon government to enforce the payment of debts to the uttermost farthing which the debtor may possess, and that the modification and extent of such liability is a subject within the authority of state legislation, seems to be admitted by the uninterrupted exercise of it. I have not deemed it necessary to look into the statute books of all the states on this subject, but think it may be safely affirmed that in most if not all the states some limitation of the right of the creditor over the property of the debtor has been established.

 

Ogden v. Saunders, 25 U.S. 213, 309 (1827) (Thompson, J., dissenting). Similarly, Justice Trimble, who considers aspects of “natural obligation,” and “universal law” at length, and points out that, in this instance, municipal law had not fully codified all aspects of the same. Id. at 318–19 (Trimble, J., dissenting).

[20] Calder, 3 U.S. at 392–95.

[21] Pryor, supra note 3, at 37-38.

[22] See generally Henry Flanders, The Lives and Times of the Chief Justices of the United States 11–54 (1859).

[23] Calder, 3 U.S. at 399.

[24] Pryor says that Vermeule “asserts that this interpretation of Iredell’s opinion is a ‘wild overreading.’” Pryor, supra note 3, at 38 (citing Vermeule, supra note 9, at 59). In fact, Vermeule simply says the suggestion of John Hart Ely that “the Constitution itself abandoned” the natural law tradition is a “wild overreading” of Calder “as a rejection of natural law.” Vermeule, supra note 9, at 59. In other words, Vermeule is confronting the one-dimensional, single opinion, reading of Calder offered by Pryor. He does not fixate on, or mention, Iredell’s opinion at all.

[25] Calder, 3 U.S. at 395 (Paterson, J., concurring).

[26] Charter of Connecticut (1662), https://avalon.law.yale.edu/17th_century/ct03.asp.

[27] Calder, 3 U.S. at 395–96 (Paterson, J., concurring).

[28] Id. at 396–97.

[29] Id. at 389.

[30] Id. at 387–88.

[31] Id. at 388.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Hadley Arkes, Josh Hammer, Matthew Peterson & Garrett Snedeker, A Better Originalism, Amer. Mind (Mar. 18, 2021), https://americanmind.org/features/a-new-conservatism-must-emerge/a-better-originalism/.

[39] Hadley Arkes, Beyond the Constitution 10, 21-39 (1990). It should be remembered that intra-originalist debates are not new. It is not at all clear that participants like Jaffa properly belonged therein. Steven F. Hayward, Two Kinds of Originalism, 51 Nat’l Affs. (Spring 2022).

[40] Fletcher v. Peck, 6 Cranch 87, 140 (1810). In the same case, Justice Johnson wanted it to be “distinctly understood” that his opinion was “not founded on the provision in the constitution … relative to laws impairing the obligations of contracts.” Rather, it was predicated on “a general principle, on the reason and nature of things.” Id. at 143­–44.

[41] Vermeule, supra note 9, at 41.

[42] Id.

[43] Id.

[44] Id. at 87 (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936)).

[45] Zephaniah Swift, 1 A System of the Laws of the State of Connecticut: In Six Books 41 (1795).

[46] Id.

[47] Id., at 40. See also Id., at 20 (“They were naturally led to copy as nearly as difference of situation and manners would admit, the institutions of the country from whence they originated.”).

[48] Id., at 40. See generally, Gerald J. McGinley, Roman Law and Its Influence in America, 3 Notre Dame L. Rev. 70 (1927); Edward D. Re, The Roman Contribution to the Common Law, 29 Fordham L. Rev. 447 (1961).

[49] Id., at 42.

[50] Id., at 45.

[51] Id. at 44.

[52] Id.

[53] Id.

[54] Id. at 47.

[55] Id. at 46–47.

[56] Id.

[57] Adopted from his lectures at Columbia in 1794. See generally John H. Langbein, Chancellor Kent and the History of Legal Literature, 93 Colum. L. Rev. 547 (1993) (situating Kent’s Commentaries within the “institutionalist” tradition of systemization stretching back through Blackstone to Justinian).

[58] James Kent, 1 Commentaries on American Law 423 (1826) (emphasis added).

[59] Rhode Island Royal Charter (1663), https://avalon.law.yale.edu/17th_century/ri04.asp.

[60] See generally John Eusden, Puritans, Lawyers, and Politics in Early Seventeenth Century England (1958), 126-141; Ralph Clover, The Rule of Law in Colonial Massachusetts, 108 U. Penn. L. Rev. 1001 (1960); George Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and Design (1960), 43–65; 113–162.

[61] Maryland Const. of 1776, Dec. of Rights, art. I.

[62] Id., art. IV.

[63] 197 U.S. 11 (1905). See generally Timon Cline, Common Good Constitutionalism and Vaccine Mandates: A Review of Jacobson v. Massachusetts in Light of COVID-19, 21 Appalachian Journal of Law 1 (2022).

[64] 61 Mass. 53 (1851).

[65] Jacobson, 197 U.S. at 27.

[66] 123 U.S. 623, 661 (1887).

[67] Eusden, supra note 60, at 44–49.

[68] R.W. Gibbes, 1 Documentary History of the American Revolution, 1764-1776, 15-39 (1855).

[69] 6 F. Cas. 546, 551 (No. 3230) (CCED Pa. 1825).

[70] See generally Matthew Hale: On the Law of Nature, Reason, and Common Law (ed. Gerald J. Postema 2018).

[71] 1 William Blackstone, Commentaries *120, *127.

[72] Iredell may also be both under and over-reading Blackstone when he cited him for his central contention against Chase. In the pericope referenced by Iredell, Blackstone simply says that, within the English system, if parliament promulgates an unreasonable law, he knows not what power “in the ordinary forms of the constitution” could control it. On the other hand, where “some [unreasonable] collateral arises” from the legislation, “judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it.” Blackstone, supra note 71, at *91 (emphasis added).

[73] Ricardo Calleja, Imperare aude! Dare to command! (Part I), Ius & Iustitium (Oct. 20, 2020), https://iusetiustitium.com/imperare-aude-dare-to-command/.

[74] For instance, Iredell quotes Blackstone at length in Chisholm v. Georgia, 2 U.S. 419 (1793), and signals no distaste for the references to “natural law” and “natural equity” imbedded therein. As Iredell obviously knew, Blackstone’s position included that, “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.” Blackstone, supra note 71, at *42. Also in the same section Blackstone affirms that statutes should be “construed” by judges to not “extend to” absurd or “unreasonable” results—not merely practically but morally or what Arkes calls “underlying canons of jural reasoning.” Arkes, supra note 39, at 23. See also Blackstone, supra note 71, at *41 (citing the “three general precepts” of Justinian: “to live honestly, to injure no one, and to give every man his due.” Institutes, 1.1.3). On the structure of Blackstone’s Commentaries conforming to classical categories, see Vermeule, supra note 9, at 55.

[75] See generally Justin Buckley Dryer, The Christian Natural Law Tradition and James Wilson’s Lectures on Law, Berkely Natural Law Workshop (2019), https://www.law.berkeley.edu/wp-content/uploads/2019/10/Dyer-Berkeley-paper.pdf.

[76] See generally Chipman, Principles of Government: A Treatise on Free Institutions, Including the Constitution of the United States (1833).

[77] See generally Gerald T. Dunne, American Blackstone, 1963 Wash. U. L. Q. 321 (1963).

[78] Richard Helmholz, Natural Law in Court: A History of Legal Theory in Practice 176 (2015).

[79] Vermeule, supra note 9, at 58–60.

[80] Adrian Vermeule, Two Versions of Textualism, Ius & Iustitium (Aug. 3, 2020), https://iusetiustitium.com/two-versions-of-textualism/.

[81] Adrian Vermeule, Who Decides?, Postliberal Order (Jan. 11, 2022), https://postliberalorder.substack.com/p/who-decides?s=r; Adrian Vermeule, Deference and Determination, Ius & Iustitium (Dec. 2, 2020), https://iusetiustitium.com/deference-and-determination/.

[82] Vermeule, supra note 9, at 43.

[83] Id.; See also Id., at 48.

[T]he classical tradition identifies good reasons to respect, within a broad range of determination, the law produced by legislatures, because that law takes into account a broader range of central cases, resting on a broader base of information and a more impartial basis, than does the judgment of any fallible individual in particular cases. For similar reasons, the common good will often require that judges defer to the reasonable public-oriented judgments of legislatures, within their constitutional competence.

[84] See generally Brian McCall, The Architecture of Law: Rebuilding Law in the Classical Tradition 86–101 (2018).

[85] William Pryor, Politics and the Rule of Law, Heritage Foundation Lecture No. 1325, at 8 (Oct. 20, 2021), https://www.heritage.org/sites/default/files/2021-10/HL1325.pdf.

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