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?

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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.

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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]

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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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Justice Alito’s Question – Stephanie Nicole Miller and Mary Kay Bacallao

Posted by on May 18, 2022 in Per Curiam

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Justice Alito’s Question

“Can it be said that the right to abortion is deeply rooted

in the history and traditions of the American people?”

Corpus linguistic evidence suggests the answer is “No.”

 

Stephanie Nicole Miller, J.D. (December 2022)

Mary Kay Bacallao, Ed. D, J.D.[1]

 

  1. THE QUESTION

During oral argument in Dobbs v. Jackson Women’s Health[2] on December 1, 2021, Justice Samuel Alito asked this question of Julie Rikelman, counsel for Jackson Women’s Health: “[C]an it be said that the right to abortion is deeply rooted in the history and traditions of the American people?”[3] He received this answer: “Yes, it can, Your Honor. [A]t the founding, women were able to end their pregnancy under the common law . . . . [A]t the time of the founding and well into the 1800s, women had the ability to end a pregnancy.”[4] A similar historical claim was made in response to a question from Chief Justice Roberts by the U.S. Solicitor General, Elizabeth Prelogar: “at the time of the founding and for most of early American history, women had an ability to access abortion in the early stages of pregnancy.”[5]

In her answer to Justice Alito, Rikelman specifically referenced an amicus brief filed by the American Historical Association (AHA) and the Organization of American Historians (“AHA Brief”).[6] The AHA Brief claims: “As we understand now better than ever before, American history and tradition regarding abortion under the common law undergirds Roe v. Wade’s holding that women have a constitutional right to decide for themselves whether to choose to terminate a pregnancy”[7] because “under the common law, a woman could terminate a pregnancy at her discretion prior to physically feeling the fetus move.”[8] The AHA Brief infers this right of a woman from the principle stated in a number of treatises and court cases from the 18th and 19th centuries that “at common law no indictment will lie for attempts to procure abortion with the consent of the mother until she is quick with child,” quoting a mid-19th century case, Commonwealth v. Parker.[9] However, the AHA Brief goes beyond evidence from legal treatises and court cases to say, “ample historical evidence demonstrates that Americans knew of and followed the common law, which allowed extensive decision-making by a pregnant woman.”[10] The AHA Brief further states: “As contemporaneous sources demonstrate, ordinary citizens continued to believe that not all abortions were criminal and that women held the power to determine whether to terminate a pregnancy.”[11]

  1. THE CORPUS LINGUISTIC RESEARCH

Did Americans in the Founding Era express in writing the view that American women “had a right to abortion”? Our empirical research using the methods of corpus linguistics[12] not only failed to find any such writing but further produced persuasive evidence that Founding Era Americans would not have written of “a right to abortion” because at that time “abortion” had not developed today’s meaning of a woman’s voluntary choice to end pregnancy but instead was generally used in the same way we use “miscarriage” today, to refer to an involuntary termination of pregnancy.

For our research we used the Corpus of Founding Era American English (COFEA)—a digitized, online database that covers the time period starting with the reign of King George III, and ending with the death of George Washington (1760–1799). COFEA contains documents written and read by ordinary people of the day, including letters, diaries, newspapers, non-fiction books, fiction, sermons, public papers of seven major figures of the Founding Era,[13] and legal materials. COFEA primarily obtains these texts from seven sources: the National Archive Founders Online; the HeinOnline legal database; Evans Early American Imprints; Farrand’s Records of the Constitutional Convention; Elliot’s Debates (state convention debates on ratification); Harvard’s Caselaw Access Project;[14] and the U.S. Statutes-at-Large from the first five Congresses.[15] The entire COFEA database currently houses 126,393 texts from the Founding Era totaling 136,915,894 words.[16]

COFEA allows users to search for all versions of a given word by placing an asterisk after the root term. Entering “abortion*” in the “query box” produces an initial search result of 131 uses of “abortion” and 28 uses of “abortions” for a total of 159 “hits.”[17] (Henceforth we will italicize abortion to indicate both the singular and plural forms.)


The majority of these initial search results, 123, came from a component of the COFEA database downloaded from Evans Early American Imprints Online, which contains over 3,000 books, pamphlets, and other written materials published in America between 1760 and 1799.
[18] Twenty hits came from Founders Online. Thirteen were found in Hein Online, which represents primarily legal texts. Three hits came from the Caselaw Access Project.[19] We exported these results to an Excel spreadsheet, including 100 words to the left and right of each use of abortion.[20]


We then manually reviewed each set of 201 words to analyze the context of usage. This review revealed that some search results represented the same text found in different sources; for example, a letter from John Adams to Thomas Jefferson might appear in both the Adams papers and the Jefferson papers. After removing these duplicates, we were left with 134 uses of abortion,[21]  to which we added one more example excluded from the initial search because “abortion” appeared in the text as “abor-tion.”[22]

III. THE FINDINGS

Our review of these 135 occurrences of abortion revealed that 98 clearly referred to the termination of a woman’s pregnancy; the other 37 usages appeared to use the word metaphorically, generally to refer to a misshapen or monstrous living thing or to an unfortunate occurrence. [23] Of the 98 usages referring to pregnancy, 85 of the uses were in the context of involuntary termination of pregnancy,[24] using abortion as the word “miscarriage” would be used today, as illustrated by the following examples:

“[T]he situation of my wife was very alarming. She gave every symptom of a painful and dangerous abortion being at hand. It is now a fortnight since she was first confined to her room, and every appearance grows more and more critical. It is almost certain, that the fœtus, now about six months old, is dead. Altho’ I know your readiness to sympathize with me, I should not have troubled you with this detail, were it not for a wish, that the outlines of it should be conveyed to the ears of the president.”[25]

“Abortion (to prevent). Use daily a Decoction of Lignunm Gualacum.”[26]

“On my return to Sheffield . . . I found a number of the inhabitants . . . afflicted with a fever . . . The number affected with the fever, in all other parts of town, did not, I believe exceed thirty. Of these, three died: one an aged woman: the other two, pregnant women; of whom one died in the fever, the other suffered an abortion, and died some months after, dropsical.”[27]

We noticed that some sources appeared repeatedly in our research results. Sorting the spreadsheet by the “Text ID” provided by COFEA enabled us to determine that 19 different sources appeared at least twice.[28] Ten of these sources were medical texts. In a number of the medical texts, variations of the word “miscarriage” (hereinafter miscarriage will refer to all such variations) appeared in the same contexts as abortion. Generally, the context indicated that miscarriage and abortion were being used interchangeably to refer to the same event. For example:

“Some sanguine robust Women are very liable to miscarry at a certain Time, or Stage, of their Pregnancy. This may be obviated, by their bleeding some Days before that time approaches. . . . But this Method would avail very little for delicate Citizens, who miscarry from a very different Cause; and whose Abortions are to be prevented by a very different treatment.”[29]

“Where the abortion is owing to habit . . . Opium is always useful, and I have seen instances, where by the use of it women retained children, of which they would otherwise have miscarried.”[30]

By far the most recurrent source was Hamilton’s Outlines of the Theory and Practice of Midwifery, producing 19 different occurrences of abortion.[31] Hamilton provided a very precise definition of abortion: “The premature delivery of the foetus; which comprehends every period before the evolution of its system be sufficiently complete to enable the child to exist after the connection with the parent is dissolved.”[32]

Although Hamilton himself used abortion to refer generally to termination of pregnancy, he noted: “Some authors still make the following distinction. When the ovum is expelled in the early months, they call it an abortion; and, if the foetus be delivered at any period between the fifth month and the full time, a miscarriage.”[33] We did not find this distinction between abortion and miscarriage anywhere else in our results. For example, when Edmund Randolph—at the time U.S. Attorney General—wrote to James Madison that his wife was giving “every symptom of a painful and dangerous abortion” he mentioned that “it is almost certain that the foetus [is] now about six months old.”[34]

In Dr. John Elliot’s “Medical Pocketbook,”[35] arranged “into alphabetical order,” the first entry is:

ABORTION:

SYMPTOMS. Pain in the back, loins, and lower part of the belly … Most commonly happens between the second and fourth months of pregnancy, though it may occur later. It may be occasioned by frights, falls, strong emetics or cathartics, or by any violent commotion of body or mind.

TREATMENT. . . . the patient should be kept very still and quiet in bed. If, nevertheless, abortion follow . . . give . . . medicines . . . as after child-birth.

When the reader gets to “M” in the Medical Pocketbook, the following simple entry appears:

MISCARRIAGE. See Abortion.

We did find “hits” in COFEA written by ten different authors (totaling twelve examples) in which the use of abortion showed awareness by the writer that a woman might voluntarily choose to terminate pregnancy.[36] (The two writers who each provided two such uses of abortion were Thomas Jefferson and John Adams.) We did not, however, interpret these examples as indicating that the word abortion, standing by itself, had two different meanings in the Founding Era: (1) involuntary termination of pregnancy or (2) voluntary termination of pregnancy. Rather, we observed in these twelve examples that the concept of voluntary termination of pregnancy—modern day “abortion”—was communicated by combining abortion with a verb indicating human agency. For example, nine of the eleven authors used the phrase “procure abortion” to indicate that pregnancy was not terminated by medical misfortune but caused by human choice.[37]

To explore whether there was a larger pattern in 18th century English, beyond what we discovered in COFEA, of using the phrase procure abortion to refer to voluntary termination of pregnancy, we used a second data base that overlaps the period covered by COFEA: The BYU-Corpus of Early Modern English (hereinafter “COEME”). COEME allowed us to search back to 1700 (COFEA begins with 1760) and to search texts from Great Britain as well as America.[38]  We searched for uses of “procure abortion” by searching for “abort*” within six words of “procure*”:

After eliminating duplicate hits and examples that also appeared in our COFEA search, we found a total of 27 hits in COEME using the phrase procure abortion.[39] All of these hits indeed referred to voluntary termination of pregnancy.

COFEA has a feature that allows a search for words which appear within a defined proximity of a target term by using the “Collocates” function. Using this feature to search for the words “right” or “privilege” within six words to the right or left of abortion produced no occurrences. (The same result was returned searching for collocates of miscarriage.) Upon a cross-check for the top 100 collocates of abortion using the “Collocates” view in COFEA,[40] neither right nor privilege appeared—nor did variations of those words.  Having found evidence that, unlike the word abortion by itself, the phrase procure abortion was used with some frequency in the 18th century to indicate that pregnancy had been voluntarily terminated, we did the same collocation testing of that phrase. The following screen shot shows that “right*” is not a collocate of procure abortion:

We also found no examples in which procure abortion was a collocate of “privilege.”

Then we selected the “Collocates” view in COFEA to find the words that appear with statistically significant frequency with procure abortion:[41]

None of the collocates were “right” or “privilege” or variations of those words.[42]

Looking in depth at each of the twelve examples referring to voluntary termination of pregnancy from COFEA we concluded that none would support a claim that “a right of abortion” was understood in the Founding Era as “deeply rooted in the history and traditions of the American people.” Nine of these twelve usages referred to social practices of other cultures:

  • Thomas Jefferson provides two examples in a passage describing Native American women.  “[T]hey have learned the practice of procuring abortion by the use of some vegetable; and that it even extends to prevent conception for a considerable time after.”[43] A few sentences later in the same paragraph Jefferson refers to this practice as “voluntary abortion:” “To the obstacles then of want and hazard . . .  those of labour and of voluntary abortion are added with the Indian. No wonder then if they multiply less than we do.”[44]
  • The Rev. John Wesley, the founder of Methodism, wrote the following based on his missionary work in what was then the colony of Georgia: “Of the Georgian Indians in general it may be observed . . . [t]hey are implacable, unmerciful: murderers of fathers, murderers of mothers, murderers of their own children: it being a common thing for a son to shoot his father or mother, because they are old and past labour; and for a woman either to procure abor-tion, or to throw her child into the next river, because she will go with her husband to the war.”[45]
  • A third author also used the phrase procure abortion to describe social practices of Native American women.[46]
  • Another two uses come from a passage by John Adams recounting a story from ancient Greek history.[47]
  • An “Essay on the character, manners, and genius of women in different ages” said of ancient Rome: “Debauchery reduced fertility. They learned to cheat nature. The art of producing abortions completed the detestable practice.”[48]
  • Another author described the Romans with similar language: “Debauchery reduced fertility; but as fertility was not their wish, they learned to procure abortions, that their pleasures might suffer the less interruption.”[49]
  • A sermon about “vile and immoral” heathens said they violated the commandment “not to kill” “by procuring the abortion of children [and] by exposing new-born infants.”[50]

The tenth use appears in a novel by Mary Wollstonecraft, an English writer considered a pioneer of feminism,[51] in which the narrator, a servant raped by her master, finds herself pregnant and describes “procuring abortion” in terms of suicide: “rage giving place to despair, [I] sought for the potion that was to procure abortion, and swallowed it with a wish that it might destroy me, at the same time that it stopped the sensations of new-born life.”[52]

Dr. William Cullen, a Professor of Medicine at the University of Edinburgh in Scotland, in the eleventh example, referred to “unprescribed” use by women of “fossile oils” and mentioned that he has known of cases when women have taken them “to procure abortion,” but that even in very large doses doing so is not effective and only “disturb[s] the system.”[53]

The twelfth use appears in a manual for the use of justices of the peace, which says that if a woman takes “any potion to make an abortion” that would “be a great crime.”[54]

  1. CONCLUSION

Our empirical research indicates that abortion was overwhelmingly used in the Founding Era to describe a medical misfortune to be prevented if possible.  We found only 12 examples in which abortion was used in reference to voluntary termination of pregnancy—most frequently as the phrase procure abortion.  We searched for evidence that procure abortion was used in contexts indicating that this practice was a right or privilege, and we found no such evidence. Finally, close examination of each of the twelve examples referring to voluntary termination of pregnancy led us to the conclusion that none of those texts would support a claim that “a right of abortion” was understood in the Founding Era as “deeply rooted in the history and traditions of the American people.”

 

[1] Both authors completed a course on linguistic analysis of legal texts at the Georgia State University College of Law taught by Professor Clark D. Cunningham. As part of that course, Mary Kay Bacallao wrote a paper on whether the original meaning of “person” in the 14th amendment could have included an unborn human being and Stephanie Nicole Miller wrote about how the meaning of “right of privacy” developed and changed in 19th and 20th century American discourse. (These papers can be obtained by contacting the authors:  MaryKayBacallao@hotmail.com and Stephanie@babykinzbooks.com.) Subsequently prompted by Justice Alito’s question at the Dobbs oral argument, they undertook independent research under Professor Cunningham’s supervision on the original public meaning of abortion in the Founding Era on which this essay is based.

[2] Transcript of Oral Argument, Dobbs v. Jackson Women’s Health Organization

141 S. Ct. 2619 (2021) (No. 19-1392), available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4425.pdf.

[3] Id. at 75 (cleaned up).

[4] Id. at 75–76.

[5] Id. at 102–03.

[6] Id. at 76 (“There’s also a brief on behalf of several key American historian associations that goes through that history in detail”) (referencing Brief for American Historical Association and Organization of American Historians as Amicus Curiae Supporting of Respondents, Dobbs v. Jackson Women’s Health Organization 141 S. Ct. 2619 (2021) (No. 19-1392), 2021 WL 4341742 at 4 [hereinafter “AHA Brief”].

[7]  AHA Brief at 4.

[8] Id. at 7.

[9] Id. (quoting 50 Mass. 263, 265–66 (1845)). “Nineteenth century sources used ‘quick’ and ‘quickening’ consistently to mean the woman’s perception of fetal movement.” Id. at 6 n.2.

[10] Id. at 14.

[11] Id. at 20.

[12] See Clark D. Cunningham & Jesse Egbert, Using Empirical Data to Investigate the Original Meaning of ‘Emolument’ in the Constitution, 36 GA. St. U.  L.  Rev, 465, 473–75 (2020) (describing how corpus linguistic research meets scientific standards of generalizability, reliability, and validity), available at https://readingroom.law.gsu.edu/gsulr/vol36/iss5/6 and also published on the Social Science Research Network at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3460735.https://ssrn.com/abstract=3460735. See also William N. Eskridge Jr., Brian G. Slocum, & Stefan Th. Gries, The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning, 119 Mich. L. Rev. 1503, 1509 (2021) (corpus linguistics has potential to help judges make better, empirically based judgments about how words are used, both today and historically).

[13] These “founders” are George Washington, Benjamin Franklin, John Adams, Thomas Jefferson, Alexander Hamilton, John Jay, and James Madison. “About Founders Online,” https://founders.archives.gov/about.

[14] The Caselaw Access Project includes all official, book-published state and federal United States case law; the earliest case is from 1658. https://case.law/about/

[15]  Corpus of Founding Era American English: About the Corpus (BYU Law), https://lawcorpus.byu.edu/cofea;showCorpusInfo=true/concordances.

[16] Id. Corpus linguistic methods should meet the scientific standard of reliability: a different researcher applying the same methods should duplicate the same outcome, note 12, supra. After free registration using a Google-based identification (e.g. Gmail address), anyone can access the COFEA data base online at: https://lawcorpus.byu.edu/cofea/concordances. In this essay we provide exact details of how we used COFEA’s online tools and provide our resulting data analyses in an online Appendix so readers can evaluate our results against the readers’ own use of COFEA.

[17] Our COFEA search found no texts using “abortionist.”

[18] Cunningham & Egbert, supra note 12, at 474.

[19] The search did not find any uses of abortion in Farrand’s Records, Elliot’s Debates, or the early Statutes at Large.

[20] This spreadsheet appears as “Abortion-COFEA-OriginalResults” in the online Appendix, http://www.clarkcunningham.org/L2/Miller-Bacallao.html

[21] The Appendix contains a spreadsheet titled “Abortion-17May2022-ByNumber” assigning a specific number to each unduplicated use that is retained in future analyses for reference

[22] See text accompanying note 49, infra.

[23] This comment in a letter by George Washington combined both metaphoric uses of abortion: “The resolutions which were published for consideration, vesting Congress with powers to regulate the Commerce of the Union, have I hope been acceded to. If the States individually were to attempt this, an abortion, or a many headed monster would be the issue.” “From George Washington to David Stuart, 30 November 1785,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/04-03-02-0359 (emphasis added). [Original source: The Papers of George Washington, Confederation Series, vol. 3, 19 May 1785 – 31 March 1786, ed. W. W. Abbot. Charlottesville: University Press of Virginia, 1994, pp. 423–424.]

[24] For one example, example 54 (line 99) in “Abortion-17May2022-ByNumber,” we were uncertain whether the termination was voluntary or involuntary.

[25] To James Madison from Edmund Randolph, 15 March 1790, Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-13-02-0076 . [Original source: The Papers of James Madison, vol. 13, 20 January 1790 – 31 March 1791, ed. Charles F. Hobson and Robert A. Rutland. Charlottesville: University Press of Virginia, 1981, pp. 107–108.]

[26] The Rev. John Wesley, Primitive Physick: Or, An Easy And Natural Method Of Curing Most Diseases: Abortion (Philadelphia 1764), available at Evans Early American Imprints, http://name.umdl.umich.edu/N07727.0001.001.

[27] Letter of William Buel, Physician at Sheffield, to E.H. Smith, Physician of New York (1795), in Noah Webster, A Collection of Papers on the Subject of Bilious Fevers, Prevalent in the United States for a Few Years Past 56 (New York 1796) available at Evans Early American Imprints,  http://name.umdl.umich.edu/N23882.0001.001.

[28] A spreadsheet listing the unduplicated results by Text ID (bringing together results from the same source) appears in the Appendix as “Abortion-COFEA-17May2022-ByTextID”.

[29] James Kilpatrick, Advice to the people in general, with regard to their health: but particularly calculated for those, who are the most unlikely to be provided in time with the best assistance, in acute diseases, or upon any sudden inward or outward accident 186 (Philadelphia 1771), available at Evans Early American Imprints, http://name.umdl.umich.edu/N09616.0001.001.

[30] William Cullen, Lectures on the Materia Medica: On the Virtues of Medicines 348 (Philadelphia 1775), available at Evans Early American Imprints, http://name.umdl.umich.edu/N11048.0001.001

[31] Alexander Hamilton, Outlines of the Theory and Practice of Midwifery (Philadelphia 1790), available at Evans Early American Imprints,  http://name.umdl.umich.edu/N17435.0001.001. Hamilton was Professor of Midwifery in the University of Edinburgh (Scotland) and a member of the Royal College of Surgeons. A section from the book, entitled “Abortion,” appears in the Appendix.

[32] Id. at 143.

[33] Id.

[34] Randolph, supra note 23.

[35] John Elliot, The medical pocket-book; for those who are, and for all who wish, to be, physicians. : Containing a short but plain account of the symptoms, causes, and methods of cure, of the diseases incident to the human body: including such as require surgical treatment: Together with the virtues, and doses, of medicinal compositions, and simples. Extracted from the best authors, and digested into alphabetical order (Philadelphia 1784). The full section in the Medical Pocket Book on “Abortion” is reproduced in the Appendix.

[36] The Appendix contains a spreadsheet titled “Abortion-COFEA-17May2022-ByCategory” that sorts the 135 unduplicated research results into three categories: Involuntary [termination of pregnancy], Voluntary [termination of pregnancy], and Other. Also, downloaded lines where some version of “miscarriage” also appears are highlighted in yellow.

[37] The phrases used by the other two authors were “the art of producing abortions” and “take a potion to make an abortion.”  We interpreted these phrases as also indicating human agency. See text accompanying notes 52 and 58, infra.

[38] COEME covers the period 1475–1800 based on 40,299 texts drawn from Eighteenth Century Collections Online, Early English Books Online, and Evans Early American Imprints, totaling more than 1.2 million words. BYU-COEME, About the Corpus, https://lawcorpus.byu.edu/byucoeme;showCorpusInfo=true/concordances.

[39] The research results from the COEME search supported in an interesting way the idea that procure abortion was used in the 18th century to refer to modern day “abortion.” A number of examples included sentences that read out of context might actually seem to support the assertion in the AHA brief that a “right to abortion” was an accepted social practice at the time of founding.  For example, one author wrote that “Aristotle teaches it to be lawful to procure abortion before that which is conceived hath Life and Sense.”  John Milner, An account of Mr. Lock’s religion 137 (London 1700), available at Early English Books, http://name.umdl.umich.edu/A50867.0001.001.  (But the preceding sentence in that text makes clear the writer’s disapproval of Aristotle’s teaching: “the Opinions of the Philosophers among the Heathens concerning Vertue and Vice . . . were not the same with the Opinions of those who judged of them by the Rule of the Law of God.” Id.)  For other examples from COEME in which “procure abortion” is used to describe a social practice of voluntary termination of pregnancy which is then rejected or reviled by the author, see COEME Examples in the Appendix.

[40] See note 45 for an explanation of the “Collocates” view in COFEA.

[41] We searched for collocates that appear within six words to the right or left of procure abortion.  We set the “Max Hits” at 100 and the “Minimum Mutual Information” score to 3. (“Mutual information score is a statistical association measure that helps to inform the strength of relationship between two collocates. When using mutual information score to help filter through meaningful results, it is common practice to set a minimum mutual information score of 3.” COFEA Help Docs.)

[42] We also reviewed dictionaries and thesauruses available in the Founding Era or published soon thereafter to look for other words and phrases used in that period to refer to voluntary termination of pregnancy. We found the phrases “destroy foetus” and “destroy the embryo in the womb” but the uses of these phrases when read in context did not  support a claim that a “right to abortion” was understood in the Founding Era as “deeply rooted in the history and traditions of the American people.”  See 18th Century Dictionaries in the Appendix.

[43] Thomas Jefferson, Notes on the State of Virginia 92 (1787) (emphasis added). Full original context in Appendix.

[44] Id.

[45] John Wesley, An extract of the Rev. Mr. John Wesley’s journals, Volume I 88–89 (Philadelphia 1795), available at Evan Early American Imprints, http://name.umdl.umich.edu/N22587.0001.001.

[46] William Robertson, The history of America, Book IV 329 (New York 1798) (“The distresses and hardships of the savage life . . .  must be fatal to those of more tender age. Afraid of undertaking a task so laborious, and of such long duration, as that of rearing their offspring, the women, in some parts of America, procure frequent abortions by the use of certain herbs”), available at Evans Early American Imprints, http://name.umdl.umich.edu/N25924.0001.001. Yet another author, Williams Smith, provided a similar description of social practices among Native Americans, using the phrase “destroy the foetus in the womb.” For more detail, see 18th Century Dictionaries in the Appendix.

[47] John Adams, A Defence of the Constitutions of Government of the United States of America 250 (1787): “Lycurgus [of Sparta] . . . succeeded his brother Polidectes but [was] told his brother’s widow was with child. . . . The ambitious princess . . . offered to marry [Lycurgus], and remove out of his way the only competitor by procuring an abortion.” (emphasis added). Full original text in Appendix.

[48] William Russell, Essay on the character, manners, and genius of women in different ages. Enlarged from the French of M. Thomas 40 (Philadelphia 1774), available at Evans Early American Imprints, http://name.umdl.umich.edu/N10774.0001.001.

[49] William Alexander, The History of Women, From the Earliest Antiquity, to the Present Time; Giving An Account of Almost Every Interesting Particular Concerning That Sex, Among All Nations, Ancient And Modern 258 (Philadelphia 1796), available at Evans Early American Imprints, http://name.umdl.umich.edu/N22674.0001.001.

[50] Benjamin Bennet, The Truth, Inspiration and Usefulness of the Scripture Asserted and Proved 31 (New Brunswick, N.J. 1795), available at Evans Early American Imprints,  http://name.umdl.umich.edu/N21501.0001.001

[51] Mary Wollstonecraft, English author, Britannica (2022) (author of A Vindication of the Rights of Woman (1792), considered a classic of feminism; mother of Mary Wollstonecraft Shelley, author of Frankenstein), https://www.britannica.com/biography/Mary-Wollstonecraft.

[52] Maria: or the Wrongs of woman. A Posthumous fragment 74 (Philadelphia 1799), available at Evans Early American Imprints, http://name.umdl.umich.edu/N26724.0001.001.

[53] Cullen, supra note 28, at 364.

[54] James Parker, The Conductor generalis: or, The office, duty and authority of justices of the peace, high-sheriffs, under-sheriffs, coroners, constables, gaolers, jury-men, and overseers of the poor 67 (New York 1794). The full context is: “If a woman be with child, and any gives her a potion to destroy the child within her, and she takes it, and it works so strongly that it kills her, this is murder, for it was not given to cure her of a disease, but unlawfully to destroy the child within her; and therefore he that gives her a potion to this end, must take the hazard, and if he kills the mother, it is murder. If a woman be quick or great with child, if she take, or another give her any potion to make an abortion, or if a man strike her, whereby the child within her is killed, tho’ it be a great crime, yet it is not murder nor manslaughter by the laws of England, because it is not yet in rerum natura, nor can it legally be known, where it were killed or now.” According to Black’s Law Dictionary, not “in rerum natura” can mean not “in the realm of actuality, in existence,” https://thelawdictionary.org/in-rerum-natura/. The original page from Parker appears in the Appendix.

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Argument By Slogan – Conor Casey and Adrian Vermeule

Posted by on Apr 23, 2022 in Per Curiam

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Argument By Slogan

Conor Casey and Adrian Vermeule[1]

 

When law professors try to write judicial opinions, even as a pedagogical exercise, the results are decidedly mixed, especially when the effort is derivative of a great original.[2] When sitting judges try to write legal theory, the same is true. The occupational hazards for the judge-turned-occasional-theorist are that the necessary concepts and background knowledge, mapped out by intellectual pioneers, are half-remembered and hazily defined; that the judge unwittingly assumes by force of habit that the task is to arbitrate a dispute rather than to lay out a cogent train of thought; and that, consequently, the judge believes the right approach is to say no more than necessary to rule against a losing party, rather than to capture an enduring positive idea. Some, like Justice Scalia, have been able to make theoretical contributions while in office, elaborating their positions with clarity of mind (although Scalia was a scholar before he was a judge). Others are less successful.

Which brings us to Chief Judge William Pryor of the 11th Circuit. Judge Pryor has ventured a response to common good constitutionalism, which, in an effort to imitate Scalia’s wit, he calls “living common-goodism.”[3] Here the risks of part-time theorizing have all materialized, and in their most grievous forms. Judge Pryor knows that he is against “living constitutionalism,” because living constitutionalism is bad, but he has no very clear idea why he is against it or what exactly it means. Nor does he have any very distinct idea what he is for, except that he is for “originalism,” because originalism is good. But friend-enemy categories, argument conducted by means of the slogans of sociological affiliation, do not make for conceptual precision and do not add up to a theory.

In this short essay we make two main points. [4]  The first is that while Judge Pryor offers unobjectionable arguments, entirely consistent with the classical tradition, for respecting the fixity of posited law promulgated by legitimate political authority, he has not established how and why these arguments compel him, or ought to compel anyone else, to be an originalist in any substantive sense, still less any specific flavor of originalism from the many on offer. In particular, the bare commitment to the fixity of meaning — the only commitment that Judge Pryor’s arguments entitle him to hold — cannot by itself exclude interpretation that, while taking meaning as fixed, reads that meaning at a high level of abstraction to embody general constitutional principles, and then allows the application of those principles to evolve over time as circumstances change, and as judged by the interpreter. If this is what Judge Pryor means by “living constitutionalism,” his argument is entirely consistent with allowing it. If this is Brennanism, Judge Pryor has inadvertently licensed Brennanism.

Second, we suggest that Judge Pryor’s advocacy of public meaning originalism is infected by a horror of judgment — a deep-seated fear that absent originalism, constitutional interpretation will collapse into a moral free-for-all where judges arbitrarily inject personal preferences into law. But this is a false binary. It is an impoverished and tendentious legal ontology, argument by slogan, to assume that there are only rules defined by original meaning, on the one hand, and ungrounded arbitrary “preferences” on the other. Rather the law also contains enduring commitments and background principles of political morality, which judges rightly and inevitably draw upon whenever positive texts are general, vague, ambiguous, or conflicting — which is to say, in many or most of the hard cases that reach appellate courts.

It is also question-begging, argument by slogan, to assume that common good constitutionalism seeks to amend, change or displace posited law. Rather, common good constitutionalism is the classical approach to interpreting posited law, not an argument for displacing it. In the end, Judge Pryor’s core commitment is no more than animus against Justice Brennan, which does not by itself yield anything close to a coherent view. Enmity is not a theory.

I. Thin and Thick Originalism

By “thin” originalism, which we have also called “Pickwickian originalism,”[5] we will mean the bare commitment to the claim that the meaning of a fixed text remains constant over time. This is particularly clear in the case of semantic meaning.[6] If, to use one of Ronald Dworkin’s favorite examples, Hamlet uses the word “hawk” in juxtaposition to the word “handsaw,” then “hawk” does not refer to a bird of prey, but a renaissance-era tool.[7] Crucially, thin originalism allows that the meaning of a constitutional text may just be an abstract principle, such as “liberty,” which is then cashed out over time by means of evolving application as circumstances change, and as the interpreter judges those circumstances. As we will see, thin originalism therefore cannot exclude a mode of interpretation that is equivalent to or indistinguishable from Brennanism – the very thing Judge Pryor must exclude if his effort is to succeed.

By “thick” originalism, on the other hand, or “originalism in a substantive sense,” we mean originalism in any sense sufficiently robust to exclude this sort of evolving interpretation over time. An example is so-called expected-applications originalism, which ties meaning to the particular applications that the framers of a posited constitutional text expected their words would pick out. What Judge Pryor needs is an argument that entails thick originalism, but no such argument is anywhere to be found. And as discussed below, any such argument would have to have a normative character; it cannot simply be read off the surface of the concept of interpretation, or assumed to be inherent in the taking of a constitutional oath.

To understand Judge Pryor’s commitments, one must begin with the animus that galvanizes his argument. His enemy is Justice William Brennan, taken as a paradigm of the lawless judge. For Pryor, Brennan exemplifies “results-oriented jurisprudence”[8] that swaps legislative authority, even popular sovereignty, for rule by the whim of whatever personal judicial morality happens to predominate at the time.[9]

The consequence of this core enmity is simple: Judge Pryor’s argument fails if, and to the extent that, it fails to advance a methodological argument that would exclude constitutional interpretation of which Brennan could heartily approve. If Pryor has failed even to exclude Brennanism, he has achieved nothing. And as we will see, his argument in fact does nothing at all to exclude Brennanism, and necessarily lacks the theoretical resources to do so. This is because Pryor’s arguments suffice only to establish thin originalism, not thick originalism; and thin originalism is entirely compatible with Brennanism.

Judge Pryor marshals several arguments to defend originalism. One is that common good constitutionalism is incompatible with the nature of the US Constitution as a codified document which refers to itself as a written text situated at a fixed time in history.[10] Second, that the oath officials swear upon taking office under the Constitution means they have a moral duty to obey the commands of enacted texts.[11] As Judge Pryor framed it in another recent lecture critical of common good constitutionalism, one “obeys those texts only if one applies their meanings; applying what they do not mean would be to fail to obey them.”[12]  The judicial oath, says Judge Pryor, “obliges judges, as a moral duty, to support the written text that is our Constitution.”[13] Third, Judge Pryor[14] makes the argument that the natural law’s respect for legitimate authority means that the meaning of posited text must be faithfully adhered to and not displaced by judicial fiat. Judges committed to “that [natural law] tradition,” says Pryor, have already determined for themselves that the “Constitution accords with natural law and has been promulgated by a legitimate authority, or else they would not have taken an oath to support it”[15] and therefore act unjustly if they displace the law posited by that authority. So, while Judge Pryor is ambiguous on his own approach to “that tradition,” he relies heavily on thin arguments for “some form” of originalism, which he takes to support original public meaning.[16]  On this view, arguments from the nature of the Constitution as a written text posited at a certain point in time, the importance of the oath, and the legitimacy of political authority, all taken together, support the proposition that where judges “displace” the meaning fixed by posited law, they go beyond the power committed to them and thus act unjustly.

So far as this goes, Judge Pryor’s argument is entirely consistent with what he dubs the “so-called classical tradition”;[17] that is, the approach to the nature and purpose of law articulated and defended by the likes of Aquinas, Isidore, Suárez, Blackstone and the mainstream of the Western legal tradition for millennia.[18] The classical legal tradition, as we show later, by no means licenses interpreters to “displace,” amend or ignore the meaning of posited law. What Judge Pryor fails to do, however, is to justify his crucial next step: showing that these arguments entail originalism in any thicker, substantive sense that would exclude Brennanism.

Put differently, the problem for Judge Pryor is that the “fighting question is…how interpretation should work, given the mandate (which no one sensible denies) to respect the legitimate authority’s choice in positing what it did posit.”[19] Or, as Dworkin put it in his famous review of Bork’s Tempting of America, the real debate is “not about whether the Constitution should be obeyed but about the proper way to decide what its various provisions actually require.”[20] No amount of oath-taking to “this Constitution” resolves that question, despite circular and rather tortuous arguments to the contrary. The very question at hand is what exactly this Constitution should be taken to mean and how to go about interpreting it.[21] Thicker choices about method are necessary and must be justified by additional arguments from political morality, as we have argued severally[22] and jointly.[23]

The easiest way to see that Judge Pryor makes an unwarranted leap is to look both abroad and at home. We begin with comparative law. Judge Pryor seems to believe that (1) fixed law, (2) a commitment to judges interpreting rather than amending law, (3) constitutional oaths, and (4) thick originalism all go together as a package deal. But in legal systems around the world, judges subscribe to the first three without subscribing to the last. From India to Ireland, judges respect the fixed enactments of legitimate political authority and the fixed meaning of those enactments, yet without believing that originalism, in the substantive sense that Pryor needs to exclude Brennanism, is entailed by those uncontroversial premises. On Judge Pryor’s view, almost every other judge who currently sits around the world is conceptually confused about the implications of their commitments.

Consider that codified constitutional texts explicitly referring to themselves as this Constitution – as a written text situated at a fixed time – are hardly unique to America, as the most cursory familiarity with other legal systems would have suggested. The preamble of the 1937 Irish Constitution states that the People of Ireland “Do hereby adopt, enact, and give to ourselves this Constitution.”[24] Article 15.4.1 of the Irish Constitution, which constitutes the Irish Parliament, states that it “shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof”[25] while Article 15.4.2 provides that every law enacted “which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.”[26] Similarly, the Preamble to the Indian Constitution of 1950 states that the People “Do hereby adopt, enact, and give to ourselves this Constitution.”[27] The Constitution of India also stipulates that judges must take oaths to

“Swear in the name of God/Solemnly Affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”[28]>

 

The Preamble of the 1949 German Basic Law states that:

“Conscious of their responsibility before God and man, Inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law.”[29]

 

Article 146 speaks explicitly to the enduring quality of the fundamental law, providing that: “This Basic Law, which since the achievement of the unity and freedom of Germany applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.”[30]

It goes without saying that none of the legal systems we have mentioned employ originalism in any sense Judge Pryor would favor.[31] These and countless other constitutional systems around the world designate “the people” as the highest legitimate political authority; officials and judges in these systems approach the binding posited commands of that authority specified in constitutional text with great respect and a desire to faithfully give effect to the meaning of those commands, not to displace them. In many of these systems, officials are sworn to uphold “the” or “this” Constitution. But virtually none have thought to designate their doing so as a species of “originalism” or think that originalism in any substantive sense is logically compelled by their other commitments.[32]

Also consider the work of important supranational Courts like the European Court of Human Rights. This Court operates on the premise that the Treaty constituting it, the European Convention on Human Rights 1950, is law and is subject to amendment only by the terms agreed to by the relevant member state parties. Furthermore, the meaning of this text is fixed; a word whose semantic meaning had changed entirely over time would obviously be read in the sense given at the time the treaty was concluded.[33] However, no one thinks that the fixity of the treaty text or of its meaning entails originalism in any substantive sense. Rather, the Court adopts the view that the abstract principles embedded in the posited text remain fixed but require development and unfolding, clarification and specification, in response to changing circumstances. The Court also gives an extensive “margin of appreciation” or zone of deference for national courts in developing and unfolding the principles fixed in the Convention considering their own national circumstances.[34] Legal actors in this context do not see themselves as amending the treaties or altering the meaning of the principles fixed by the text, but as giving faithful effect to them in light of changing concrete socio-political circumstance.[35] But this is just thin originalism.

Perhaps virtually all these systems misunderstand that the only interpretive methodology capable of respecting official oaths and the reasoned determinations of legitimate political authority is originalism in the thick sense. A more plausible conclusion, however, is that equating respect for the fixity of posited law with originalism in anything but a thin sense is an unjustified parochialism, one that is fatal for Judge Pryor’s argument. What Judge Pryor would need, and conspicuously lacks, is any argument for a thicker originalism that would exclude the sort of evolutive jurisprudence that is common in other Western legal systems.

The same point holds on the home front, where it has become vividly clear that thin originalism is compatible with forms of Brennanism that would doubtless appall Judge Pryor. Among American scholars who are self-described originalists, the most-cited is Professor Jack Balkin, and one of the most cited is Professor Steven Calabresi,[36] a founder of the Federalist Society itself. Both subscribe to thin originalism; both hold that the meaning of constitutional texts is fixed at the time of enactment. And both go on to cash out this thin commitment in evolutive ways that are either equivalent to Brennanism, or effectively indistinguishable from Brennanism. Both argue, for example, that the equal protection clause embodies an exceedingly abstract anti-subordination or an anti-caste principle, which they take, in light of contemporary circumstances, to protect rights of abortion[37] and same-sex marriage, respectively.[38] Balkin calls this “living originalism” and it is a form of interpretation that Brennan could sincerely applaud.[39] Unfortunately, this version is also the only form of originalism that Judge Pryor’s argument suffices to establish. So too, one strongly suspects that Justice Ketanji Brown Jackson — who professed commitment to originalism at her confirmation hearings — will go on to explain that originalism is consistent with judgments about the changing application of constitutional principles of which Brennan could only dream.[40]

If Balkin, Calabresi, Justices Jackson and Kagan, and the European Court of Human Rights are all employing a jurisprudence that is entirely compatible with Judge Pryor’s premises, then so was Justice Brennan. Something has gone badly wrong with Judge Pryor’s argument. The essential problem is that the argument has fallen into an equivocation. It hovers between originalism in the thin contentless sense that cuts very little methodological ice — Pickwickian originalism — and a further, ungrounded and unjustified commitment to a substantive originalism that would exclude judicial application of abstract principles, over time, to embrace the very moral novelties that Judge Pryor abhors. Interpreters from other legal systems, and on the home front, do not claim that words may simply change their semantic meanings over time; no one thinks that Hamlet’s “hawk” refers to a bird. But what this leaves open is entirely consistent with the further position that the posited meaning that judges are bound to respect is the fixation of abstract principles whose application changes over time to incorporate, say, the “evolving standards of decency that mark the progress of a maturing society.”[41]

Here a debater’s trick becomes possible.[42] We have said that the bare commitment to the fixity of meaning is common ground in almost all legal systems. For “originalists” who are sociologically committed to the victory of their label, it then becomes possible to claim that in this sense everyone is an originalist, that as Justice Kagan once put it: “we are all originalists” now.[43] But in this sense, and by the same token, almost everyone everywhere has been an originalist all along. Alternatively and equivalently, no one is an originalist, for the term gives no specific differentiation. If originalism means everything, it means nothing.

The debater’s trick here is of course a kind of pun. It rests on the same equivocation that Judge Pryor has stumbled into, between the thin and thick senses of originalism, between Pickwickian originalism and originalism in a substantive sense. Given that thin originalism cannot exclude originalists in good standing like Balkin, Calabresi and Justices Jackson and Kagan, it is entirely mysterious what substantive point is being served — other than methodological tribalism — by insisting on a label whose content is compatible with everything that Judge Pryor so vehemently despises. If the tribalism of labels is all that remains of originalism, then the game is up.

II. A False Binary

A few final words are necessary about what positive view common good constitutionalism takes of these issues — about what we are for, as opposed to what Judge Pryor is against. Judge Pryor argues that common good constitutionalism is a “results-oriented jurisprudence that is indistinguishable in everything but name from Justice Brennan’s living constitutionalism.”[44] Yet we have seen that Judge Pryor’s originalism is entirely compatible with Brennanism. By contrast, common good constitutionalism actually does differ from Brennanism. We are faced, in other words, with a memorable case of projection.

Because Judge Pryor is strikingly unfamiliar with the existence of the classical legal tradition, he believes that common good constitutionalism disrespects legitimate political authority and proper institutional role morality – both important aspects of the common good – by allowing judges to set aside the meaning of posited law fixed at a historical point in time in favour of their personal morality.[45] Judge Pryor thus seems to think that the only real choice is between, on the one hand, the objectivity, stability, and predictability of originalism, which reduces interpretation to the detached discernment of socio-historical facts, and on the other hand an anarchic living constitutionalism where meaning previously fixed by a legitimate authority can be swapped for the interpreter’s arbitrary personal preferences. And Judge Pryor seems to put into the category of arbitrary preference not only Justice Brennan’s social liberalism, but also the classical lawyer’s commitment to the natural law, as one type of law. Because common good constitutionalism is not a form of originalism it is therefore, Judge Pryor asserts, no different from the unstructured living constitutionalism of Justice Brennan, save with a different moral content.[46]

This is an entirely false binary.[47] For a start, originalism simply does not yield any such stability of meaning. Where specified determinations in the form of posited constitutional text are vague, general or intrinsically ambiguous, or in which the core cases they are intended to address encounter an exceptional situation or unforeseen circumstances (an extrinsic ambiguity or “absurd result”), the semantic meaning and the legal meaning may diverge. There is then no escape from normative argument, internal to law, to determine what the law provides. In these hard cases, an originalist must decide on answers to a range of unavoidable questions. Should the interpreter opt for specific expected applications, or instead respect abstract principles? If the latter, at what level of generality should those principles be read? How do the answers to these questions interact with contrary precedent?

In order to reach a decision in hard cases the relevant determinations must be interpreted—and in our traditions,[48] historically speaking, have in fact been interpreted—in light of background principles of political morality. Those principles are themselves part of the law and legal practice; when deployed in hard cases, they show that semantic meaning does not exhaust or fully conclude legal meaning. The current Supreme Court bench, for instance, draws on considerations of political morality all the time to aid interpretation of under-determinate text. The conservative faction, which is dominated by originalists, regularly draws on distinctly modernist libertarian concerns when trying to faithfully interpret the meaning of posited law concerning the separation of powers and scope of federal authority.[49] Similarly, when the liberal faction was more dominant, it drew on ostensible moral commitments stemming from an autonomy-centered understanding of individual liberty and dignity to undergird its interpretation of open-ended constitutional text in cases like Casey and Obergefell.[50] Originalism cannot escape these questions and, as such, cannot claim any kind of unique status as a stability-generating interpretive method.[51]

Moreover, it is question-begging, argument by slogan, to assume that common good constitutionalism seeks to amend, change or displace posited law. Rather, common good constitutionalism is an approach to interpreting posited law, one that draws upon the classical approach that the framers themselves assumed. Long before the emergence of jurisprudential positivism, the classical tradition has always shown immense respect for posited law, which in typical cases promotes the common good by providing co-ordination and authoritative direction for persons and by making more concrete the open-ended and vague requirements of background principles of natural law.[52]

While emphatically recognizing the existence and value of positive law, the classical tradition rejects any analytic stipulation that the entirety of our law can ultimately be captured by that which is posited. General principles of political morality are also part and parcel of our law, and are binding in their own right, quite apart from their embodiment in positive law. But these principles are by no means used to set aside or displace posited law; instead, classical lawyers look to such principles in hard cases precisely in order to understand the full legal meaning of posited laws, as an ordinance of reason embodying choices of the legitimate authority that promulgated them.

Instead of approaching legal interpretation by stipulating circular definitions of law that confine it to posited text alone, classical lawyers point out that we must justify the rules, standards, presumptions, and interpretive canons that cabin and guide the work of judges and officials before the bar of the common good.[53] While classical lawyers understand that the great run of ordinary cases can be decided without direct recourse to law’s morality, they also emphatically accept that these principles can never be entirely excluded from interpretation of legal materials by recourse to technical lawyerly tools. In hard cases — which are particularly rife in constitutional law, and which, due to the limits of lawmaker’s foresight and the inevitable ambiguities and open texture of language, can never be entirely excluded — the classical lawyer acknowledges that legal materials must, inescapably, be interpreted in light of background principles of political morality, and rejects the illusion that this is avoidable.[54]

Therefore — and this point is entirely invisible to Judge Pryor — the classical tradition directs us toward a constrained form of developing constitutionalism, differing from both originalism and Brennanism. Both halves, the constraint and the development, are essential, and both stem from the master commitment of classical law to the common good. The constraint arises because common good constitutionalism recognizes that role morality and the allocation of authority across institutions like legislatures and courts themselves conduce to the common good. To that end, it recognizes a variety of presumptions, principles of deference, and jurisdictional limits that we have detailed elsewhere and at length.

By the same token, common good constitutionalism is developing constitutionalism in that it aims to preserve, tend and unfold the intrinsic integrity of constitutional principles over time. This is a legal analogue to John Henry Newman’s “development of doctrine,”[55] which posits “notes” or signs that distinguish genuine developments from corruptions that distort and twist the nature of enduring constitutional principles.[56] Common good constitutionalism thus recognizes change in the  application of constitutional principles where, but only where, “necessary in order for those principles to unfold in accordance with their true natures and to retain those natures in new environments.”[57]

Common good constitutionalism does not alter the semantic meaning of concepts and principles (the “hawk” does not become a bird), nor does it take the semantic meaning to be entirely open to any and all changing applications and moral novelties that current generations may dream up (as does the sort of Brennanism that Judge Pryor is unable to exclude). Rather, it ensures that fixed principles remain recognizable over a community’s lifetime as reasoned legal ordinances contributing to the common good, and that they do not misfire or devolve into caricatures of law that fail to serve its purpose in promoting human flourishing. On the classical view, it is defined into the nature of law that law is neither merely whatever ordinance the incumbent authority happens to create (positivism), nor unstructured moral reasoning by interpreters (Judge Pryor’s caricature), but is rather an ordinance of reason, promulgated by legitimate authority to promote the common good. And it is defined into the nature of the posited law of a particular community that it derives from higher law that it determines and specifies and which also, in certain circumstances, informs its application. This is why common good constitutionalism presumes that posited law can and will be harmonized with background general principles of political morality where at all possible.[58]  It is constitutional law’s capacity to orient and guide public power toward the common good and human flourishing that provides it with any claim to guide and settle our present deliberations.[59]

Conclusion

In the end, Judge Pryor’s core commitment is no more than an ill-defined animus against a specific style of jurisprudence, Justice Brennan’s style. But brooding animus does not make for clarity of thought. Indeed, as often happens, the passion overwhelms the argument and turns it into the very thing it aims to destroy. Hence Judge Pryor not only misconceives the commitments of common good constitutionalism and overlooks the constraints built into the classical law, but advances a hopelessly thin originalist view that licenses the very Brennanism he despises. Enmity is not a theory. Slogans are not arguments.

 

 

[1] Assistant Professor, University of Liverpool School of Law & Social Justice; Ralph S. Tyler Jr. Professor of Constitutional Law, Harvard Law School. We would like to thank Michael Foran and Cass Sunstein for helpful comments, and the editors of the journal for excellent work editing the piece.

[2] Compare Lon Fuller’s brilliant The Case of the Speluncean Explorers 62 Harv. L Rev. 616 (1949) with Naomi R. Cahn, John O. Calmore, Mary I. Coombs, Dwight L. Greene, Geoffrey C. Miller, Jeremy Paul & Laura W. Stein, The Case of the Speluncean Explorers: Contemporary Proceedings, 61 Geo. Wash. L. Rev. 1754 (1993).

[3] William Pryor, Against Living Common-Goodism, 23 Fed. Soc. Rev. 25 (2022).

[4] We lack the space here to take up the separate issue of Judge Pryor’s effort at legal history. Despite his putative methodological commitments, Judge Pryor neither discusses nor even cites a single one of the eminent legal historians who have recently detailed, as a group, the pervasive role of nonpositivist and nonoriginalist conceptions of law in American courts throughout the founding era and the 19th century. See, e.g., Jonathan Gienapp, Written Constitutionalism, Past and Present, 39 Law and History Review 321, 324 (2021); Stuart Banner, The Decline of Natural Law: How American Lawyers Once Used Natural Law And Why They Stopped (2021); Jud Campbell, Natural Rights and the First Amendment, 127 Yale L. J. 246 (2017); Richard Helmholz, Natural Law in Court: A History of Legal Theory in Practice (2015). (All of these sources were cited and discussed in our works to which Judge Pryor responds). Judge Pryor’s reading of a select handful of cases and commentaries thus seems unlikely to disturb the reigning view that originalism, in any self-consciously methodological sense, is a creation of the post-World War II era.  See Calvin Terbeek, “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism, 115 American Political Science Review 821 (2021).

[5] Conor Casey & Adrian Vermeule, Pickwickian Originalism, Ius et Iustitium (March 22, 2022), https://iusetiustitium.com/pickwickian-originalism/ [https://perma.cc/P3MJ-S562].

[6] In this section, we put aside hard cases in which, due to the intrinsic or extrinsic ambiguity of semantic meaning, the semantic meaning and the legal meaning come apart. (In the typical formulation of classical lawyers, these are cases in which “the letter of the statute” and “the statute [itself]” are not coterminous). In such cases, interpreters at the point of application may have to recur to general background principles of political morality, themselves part of the law, to resolve the ambiguity and thereby determine legal meaning. We take up those cases in Section II.

[7] Ronald Dworkin, Justice in Robes 120 (2006).

[8]  Pryor supra note 3, at 26.

[9]  Id. at 27.

[10] Id. at 28.

[11] Id. at 29.

[12] William Pryor, Politics and the Rule of Law, Heritage Foundation 14th Annual Joseph Story Distinguished Lecture (Oct. 20, 2021) (author’s emphasis).

[13]  Pyror supra note 3, at 29.

[14] Drawing upon Joel Alicea, The Moral Authority of Original Meaning, Notre Dame L. Rev. (forthcoming 2022).

[15] Pyror supra note 3, at 27.

[16] Alicea supra note 14, at 42.

[17] Pyror supra note 3, at 30.

[18] See generally Heinrich A. Rommen, The Natural Law: A Study In Legal And Social History And Philosophy (Russel Hittinger, ed., Liberty Fund ed. 1998).

[19] Casey & Vermeule, supra note 5.

[20] Ronald Dworkin, Bork‘s Jurisprudence, 57 U. Chi. L. Rev. 657, 659 (1990).

[21] Cass Sunstein, There is Nothing That Interpretation Just Is, 30 Const. Comment. 193 (2015).

[22] Adrian Vermeule, Common Good Constitutionalism 95-108 (2022).

[23] Conor Casey & Adrian Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J. L. & Pub. Pol. 103, 125-128 (2022).

[24] Bunreacht na hÉireann [Constitution of Ireland] 1937, pmbl.

[25]Id. at art. 15.4.1.

[26] Id. at art. 15.4.2 (emphasis added).

[27] Bhāratīya Saṃvidhāna [Constitution of India] 1950, pmbl (emphasis added)..

[28] Id. at, THIRD SCHEDULE: Forms of Oaths or Affirmations (Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219), IV. Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India. Emphasis added.

[29] Grundgesetz für die Bundesrepublik Deutschland [German Basic Law] 1949, pmbl.

[30] Id. at Art. 146.

[31] See, e.g., Conor Casey, The Supreme Court, the Constitution, and ’Derived Rights’: Cause for Concern or Optimism?, 72 Doctrine & Life 1, 2-18 (2022); Donald P. Kommers, German Constitutionalism: A Prolegomenon, 40 Emory L. J. 837 (1991); Menaka Guruswamy, Crafting Constitutional Values: An Examination of the Supreme Court of India, in  An Inquiry Into the Existence of Global Values: Through the Lens of Comparative Constitutional Law 215 (Dennis Davis, Alan Richter, Cheryl Saunders eds., 2015).

[32] Casey & Vermeule, supra note 5.

[33] Again, we assume here that there are no special circumstances such that semantic meaning and legal meaning diverge — the issue we take up in Section II. For purposes of evaluating Judge Pryor’s argument in this Section, we can grant arguendo that the two are coterminous; the argument fails on its own terms in any event.

[34] Clare Ryan, Europe’s Moral Margin: Parental Aspirations and the European Court of Human Rights, 56 Colum. J. Transnat’l  467, 482 (2018).

[35] Whether the Strasbourg Court has been consistently faithful in developing these principles, as opposed to functionally amending or displacing them, is another question on which reasonable minds will differ.

[36] Michael Ramsay, Top 20 [sic] Most-Cited Originalism Scholars, 2016-2020 [Corrected], The Originalism Blog (Sept. 22, 2021),   https://originalismblog.typepad.com/the-originalism-blog/2021/09/top-15-most-cited-originalism-scholarsmichael-ramsey.html [https://perma.cc/HWZ4-DYFP]

[37] See Jack Balkin, Abortion and Original Meaning, 24 Const. Comment. 291 (2007).

[38] Steven G. Calabresi & Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Mia. l. rev. 648 (2016).

[39] Indeed, in the very same speech of Justice Brennan’s that Judge Pryor lambasts, Brennan did not at any point argue for displacing the meaning of the principles fixed by the Constitution’s text, but argued that the “genius” of the document lay in the “adaptability of its great principles to cope with current problems and current needs.” William J. Brennan Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 438 (1986).

[40] Conor Casey & Adrian Vermeule, If Every Judge is an Originalist, Originalism is Meaningless, Wash. Post, March 25, 2022.

[41] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[42] See, e.g., Kevin Walsh, Agreement on the moral authority of original meaning, Mirror of Justice (March 25, 2022), https://mirrorofjustice.blogs.com/mirrorofjustice/2022/03/agreement-on-the-moral-authority-of-original-meaning.html [https://perma.cc/L5BZ-JUJE]

[43] The context to Justice Kagan’s now famous quip, during her confirmation hearing, actually illustrates allegiance to a distinctly thin originalism, amounting to precious little of methodological substance. What Justice Kagan said was that, in approaching constitutional interpretation, judges should appreciate that “sometimes they [the Founders] laid down very specific rules. Sometimes they laid down broad principles” and that either way “we apply what they say, what they meant to do. So in that sense, we are all originalists.” The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 62 (2010) (Emphasis added) https://www.govinfo.gov/content/pkg/CHRG-111shrg67622/pdf/CHRG-111shrg67622.pdf. This is of course very far from endorsement of a substantive public meaning form of originalism.

[44] Pryor, supra note 3, at 26.

[45] Id. at 27.

[46] Id. One might justly assert that the difference in substantive moral content is the whole point, but that is a separate line of argument from the one we will pursue.

[47] Vermeule, supra note 22, at 118-119.

[48] That is, in both Irish and United States legal practice.

[49] See Cass R. Sunstein and Adrian Vermeule, The Unitary Executive: Past, Present and Future, 83 Sup. Ct. Rev. (2021); Kurt Eggert, Originalism Isn’t What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary, 24 Chap. L. Rev. 707, 773-774 (2021).

[50] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992); Obergefell v. Hodges, 135 S. Ct. 2584 (2015); Laurence H. Tribe, Equal Dignity: Speaking Its Name, 129 Harv. L. Rev. 16, 22, 26 (2015).

[51] For elaboration of this and other problems with stability justifications for originalism, see Vermeule, supra note 22, at 181.

[52] See IV John Finnis, Legal Philosophy: Roots and Recent Times, in Collected Essays: Philosophy Of Law 155-157 (2011).

[53] Vermeule, supra note 22, at 72-77.

[54] Id. at 95-108.

[55] John Henry Newman, An Essay On The Development Of Christian Doctrine 40 (14th ed. 1909).

[56] For extended discussion of these notes of genuine development, with illustrative applications, see Vermeule, supra note 22, at 201.

[57] Id. at 118, 123-124.

[58] That this may not be possible on some occasions was entirely clear to the classical jurists, who understood that posited law could misfire and be deployed for evil ends. This possibility is what explains the famous dictum that “an unjust law is not a law” attributed to the natural law tradition. More precisely, Aquinas in his Treatise on Laws said that a “tyrannical law, through not being in accordance of reason, is not a law absolutely speaking, but rather a perversion of law.” Thomas Aquinas, Summa Theologica, pt. I-ii, q. 92 Art. 1. What this statement means is that an ordinance (say one promoting a moral evil condemned by the natural law, like slavery) may clearly and utterly clash with background principles, be enforced by judges and officials, and be referred to as law by those officials, but this will nonetheless be a diluted and caricatured version of law which misfires in its telos of ordering a community to the common good.; see Casey & Vermeule supra note 23 at 123.

[59] Casey & Vermeule supra note 23 at 123.

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The Unconstitutionality of Unfinished Receiver Bans – Jamie G. McWilliam

Posted by on Mar 26, 2022 in Per Curiam

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The Unconstitutionality of Unfinished Receiver Bans

Jamie G. McWilliam[1]

 

Introduction

There is a long and storied tradition in the United States of privately manufacturing firearms. In fact, at the time of the founding, there were no large-scale firearm manufacturers. Rather, prospective firearm purchasers would either have to make the weapon themselves or find a blacksmith to create a one-off firearm for them.[2] Private firearms were very precise—much more so than what governments could typically afford to provide for their own troops. They were so precise, in fact, that ammunition would have to be made at home to custom match the individual firearm.[3]

In the past, making a firearm at home was an arduous process. A barrel would have to be hammered out of an iron sheet and then welded.[4] The stock would be hand carved from wood.[5] The firing mechanism would have to be fashioned from iron.[6] And the gunpowder for ammunition would be made using foraged sulfur and the charcoal from campfires. This was a time-consuming process that more closely resembled the craftsmanship of an expensive mechanical watch than the computer-controlled machining of the firearm factory today.

Some still engage in this historical process of firearm building.[7] Today, though, the prospective firearm manufacturer has less laborious options for doing so. They can purchase components to build a firearm from pre-built parts.[8] They can also print firearms using one of many commercially available 3D printers.[9] The relative ease with which firearms can be made using modern technology has led to the concern that convicted felons may circumvent their inability to purchase a firearm by making one at home.[10] In response, a number of states have introduced laws to limit the ability of citizens to construct their own firearms.[11]

Given the intriguing technology involved, the legal implications of 3D printed firearms and laws related to them have captured the attention of commentators and scholars.[12] However, a more common, yet less flashy, method has gone largely under the radar: The uses of an unfinished receiver (colloquially known as an 80% lower). This paper examines the constitutionality of legal restrictions on the use of unfinished receivers. Many arguments against such restrictions are based on equal protection or due process,[13] but this paper will focus on their Second Amendment implications.Part I of this paper examines unfinished receivers and laws regulating them. Part II lays out the proper way to review Second Amendment restrictions. Part III uses this review framework to argue that bans on unfinished receivers are unconstitutional.

I. Unfinished Receivers and Their Legal Context

To function, a firearm generally must have a receiver (sometimes split into a lower and upper receiver), a firing assembly, a chamber, and a barrel.[14] During operation, the receiver accepts ammunition, the firing assembly uses a firing pin to strike the primer of the ammunition in the chamber, and upon firing, the bullet travels down the barrel towards the target.[15] When a firearm is broken down into its constituent parts, under current federal law, only the lower receiver is legally classified as “the firearm.”[16] This means that purchasing a lower receiver bears all of the legal restrictions of buying a completed firearm, while purchasing any other component bears none.

Unfinished lower receivers, officially labelled “receiver blanks” by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), require machining at home to transform them into a usable firearm receiver.[17] When the unfinished receiver is purchased, it is little more than a chunk of metal or polymer in the vague shape of a lower receiver.[18] Only after milling out the cavity for the firing assembly, and drilling holes for the safety lever, hammer pin, and trigger pin, can the lower receiver be installed with the requisite components to complete the firearm.[19] Many suppliers of unfinished receivers also sell jigs and other tools to make the job easier for the home manufacturer.[20] Still, each of these steps require some level of sophisticated machinery, such as a mill, router, and drill press.

Because the unfinished receiver is purchased in an unusable state, the ATF does not consider it to be a firearm.[21] This means that purchasing one does not require a background check,[22] that a Federal Firearms License (“FFL”) is not required to sell one,[23] and that serialization is not federally required.[24] Further, there are no federal restrictions on finishing the machining of the lower receiver and assembling it into a complete firearm. The Gun Control Act of 1968[25] requires a license to manufacture only with the intent to sell, so manufacturing a firearm for personal use without an FFL is legal under current federal law.[26] Because of this, unfinished receivers allow a knowledgeable individual with machining tools to build a fully functioning, unserialized firearm at home.

Since firearms built this way are unserialized, they are more difficult to trace than factory-built ones, or even to prove the existence of.[27] Some have argued that this quality makes them more likely to be used in a crime and have pushed for laws banning the home-construction of firearms.[28] Advocates of these laws have labelled unserialized, home-built firearms “ghost guns” because they are supposedly untraceable or invisible to the law.[29]

In response to these lobbying efforts, a handful of states have enacted laws to restrict access to home-built firearms.[30] Some states have taken a modest approach, simply requiring home builders to serialize their firearms.[31] Others have acted more aggressively, criminalizing the mere possession or sale of an unfinished receiver.[32]

California, for example, requires any home firearm builder to apply to the California Department of Justice for a unique serial number for their weapon.[33] They ban the sale or transfer of any home built firearm that has not received a serial number.[34] California also requires any sale of a “firearm precursor part” (including unfinished receivers) to be conducted through licensed vendors, pursuant to a background check.[35] Thus, while not outright banning them, California treats incomplete lower receivers more like operational firearms.

On the other end of the spectrum, in 2021, Nevada enacted one of the strictest legislations on home-built firearms to date.[36] The new law makes it a crime to import or sell an unfinished and unserialized frame or receiver.[37] It also criminalizes selling, or simply assembling, an unserialized firearm.[38] Violations of the new law are classified as a gross misdemeanor for first time offences, and felonies for subsequent offenses.[39] Unlike California’s laws, which seek to expand typical firearm regulations to firearm components, Nevada’s law is intended to operate as a total ban on home-built firearms.

Most other states that have enacted legislation relating to unfinished receivers impose restrictions falling somewhere between California’s and Nevada’s. For example, the New York legislature passed the Scott J. Beigel Unfinished Receivers Act, which criminalizes possession of an unfinished receiver except for licensed gunsmiths.[40] Connecticut allows sales of unfinished receivers only between FFLs and prohibits those barred from owning firearms from possessing unfinished receivers.[41] The District of Columbia bars possession or transfers of unfinished receivers.[42]

The laws outlined above all restrict firearm ownership in some way. They limit the ability to acquire a firearm by manufacturing or assembling it,[43] and in some cases even bar the purchase of privately manufactured firearms.[44] How then, do these laws interact with the Second Amendment’s guarantee that “the right of the people to keep and bear Arms, shall not be infringed”?[45]

II. Reviewing Second Amendment Restrictions

The Supreme Court has yet to provide a definitive test that can be applied to all Second Amendment restrictions. In fact, for over two-hundred years, the Court said little on the subject.[46] Then, in 2008, the Court decided District of Columbia v. Heller, in which it confirmed that the Second Amendment included an individual right to self-defense.[47] Just two years later, in McDonald v. City of Chicago, the Court found that the Second Amendment is incorporated against the states.[48] However, in each of these cases, the Supreme Court failed to articulate a general standard of review for Second Amendment regulations. Rather, the Court simply noted that while rational basis would be inappropriate, some limitations to the right to keep and bear arms could be presumptively constitutional.[49]

This has led to a deep divide among scholars, practitioners, and even judges, as to the appropriate methodology for evaluating Second Amendment claims.[50] Out of this divide, however, and in the Supreme Court’s silence, the circuit courts have advanced a general framework that is remarkably consistent in theory, even if the circuits vary in its application.[51] Circuit courts generally apply a two-part test, in which courts first ask “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee” and if it does, then ask whether the restriction passes a certain level of scrutiny.[52]

It is within these steps that the divide becomes clearer. Step one sometimes involves a historical analysis that looks to the intended scope of the Second Amendment at the time of the founding.[53] Yet other scholars have suggested that “originalism has had a limited role in post-Heller Second Amendment litigation.”[54] Step two breaks down even further. Because Heller declined to apply a specific standard of scrutiny—beyond barring rational basis review[55]—circuit courts have been free to apply any heightened level they choose. In the view of some judges, post-Heller cases have been nearly unanimous in finding that intermediate scrutiny is always appropriate when considering Second Amendment regulations.[56] Others disagree, and have asked how close a law comes to the “core” of the Second Amendment right to determine whether to apply intermediate or strict scrutiny.[57] As this disagreement shows, there is no settled test for determining either the scope of the Second Amendment or the appropriate level of scrutiny to apply to regulations of its right “to keep and bear arms.”[58]

Nevertheless, Supreme Court precedent can be instructive in determining how to properly utilize the circuit courts’ two-part tests. In determining whether an individual right to bear arms for self-defense was included within the scope of the Second Amendment, the Court in Heller conducted a historical analysis.[59] It first looked to the post-ratification commentary, and subsequently to caselaw both preceding and following the Civil War.[60] The Court placed great weight on the contemporary interpretations that “[t]he right to self defence [sic] is the first law of nature,”[61] as well as later interpretations that the Second Amendment right appeared to be a personal one.[62] Because the Supreme Court in Heller and its progeny analyzed the scope of the Second Amendment in its historical context, step one of the circuit courts’ two part tests should be interpreted as many rightly have: as a question of history.[63]

Step two ostensibly complies with Heller’s use of tiered scrutiny over any sort of “judge empowering interest balancing inquiry.”[64] Nonetheless, there is some scholarly consensus that, in practice, circuit courts “have effectively embraced the sort of interest-balancing approach that Justice Scalia condemned, . . . applying it in a way that . . . leads to all but the most drastic restrictions on guns being upheld.”[65] This standard, which more closely resembles the rational basis test that the Court expressly disavowed in Heller, is clearly in tension with Supreme Court precedent.[66] A better application of step two, in which a court asks how close to the “core” of the Second Amendment a law encroaches,[67] can also be determined from Heller. There, the Court explained that “the sorts of weapons protected were those in common use at the time.”[68] Later cases have elaborated that the relevant time is that of the judicial review.[69] This standard, which the Court has reiterated in subsequent cases,[70] has been accepted by many lawyers as determinative.[71] Therefore, the appropriate standard for how close a law is to the core of the Second Amendment—and subsequently the required scrutiny—is how common the regulated weapon or conduct is. This standard allows those arms protected by the Second Amendment to evolve as technology progresses, placing the amendment on equal footing with others in the Bill of Rights.[72]

This version of the two-part test brings the circuit courts’ case law into harmony with the Supreme Court’s precedent in Heller and McDonald. Thus, a proper formulation of the two-part test can be stated as follows: in step one, a court asks whether under the historical understanding of the Second Amendment, an activity is within the scope of the amendment; in step two, a court asks whether the regulated activity is a common one today,[73] and if so, applies strict scrutiny to the challenged law.

III. Bans on Unfinished Receivers Are Unconstitutional

To evaluate the constitutionality of these state regulations of unfinished receivers, the first question is whether the laws fall within the guarantee of the Second Amendment.[74] A historical analysis is necessary to determine whether the regulated conduct has historically fallen outside the scope of the amendment.[75]

At the founding, there was no centralized firearm manufacturing industry. Rather, individual blacksmiths crafted firearms for sale, and every gun was handmade and unique.[76] Even Remington Arms, one of the largest firearm manufacturers today, began life when its founder, Eliphalet Remington, began hand-building rifles in 1816.[77] It was not until the mid-nineteenth century that names such as Colt, Winchester, and Smith & Wesson brought large-scale production to the world of firearms.[78]

Those that crafted earlier firearms were not necessarily gunsmiths by trade. In fact, many were primarily employed as blacksmiths, craftsmen, or even professionals.[79] Anthony Jankofsky, a locksmith from South Carolina, advertised that he created guns on the side in 1777.[80] Meanwhile, Ignatius Leitner, an attorney from Pennsylvania, advertised in 1800 that besides drawings “deeds, mortgages . . . and administrators accounts,” he also made “rifles, still cocks . . . [and] gun mountings.”[81] These advertisements illustrate the strong tradition of gun-making in early America as “primarily a civilian activity.”[82]

The framers of the Second Amendment understood this tradition to be within its ambit. One contemporary delegate to the Continental Congress noted his opinion that “Americans ought to be more industrious in making [firearms] at home.”[83] This general view by the framers was informed by their experience in the Revolutionary War, in which “gun-making at home was essential to the Continental Army.”[84]

Further, this tradition did not just include those smiths who hammered components from raw iron. Rather, just as it is today with unfinished receivers, it was often more practical and efficient for home gun-makers to assemble pre-made components than to start with raw materials.[85] The colonial-era home firearm-builders purchased firing mechanisms from continental Europe, barrels from England, and stocks from local carpenters.[86] Over two-centuries have passed since then, and technology has advanced. Today, firearm-builders purchase unfinished receivers, mill them out, and assemble them with a trigger assembly, stock, upper receiver, and barrel, to build an AR-15. The technological advancements, however, do not remove these components from the tradition of home gun-making that is protected by the Second Amendment.[87]

The tradition of home firearm manufacturing was an integral part of what it meant at the founding “to keep and bear arms.”[88] Further, the history of purchasing components to assemble firearms at home draws a clear analogy to the methods employed by those who construct guns using unfinished receivers today. For these reasons, the ability to manufacture guns at home using firearm components or “precursor parts” such as unfinished receivers is within the scope of the Second Amendment.

Once a regulation has been determined to burden activity protected by the Second Amendment, the two-part test next looks to the applicable level of scrutiny to be applied.[89] As discussed above, strict scrutiny is to be applied whenever the regulation burdens the “core” of the Second Amendment.[90] Under Heller, the activities found at the core of the amendment should be viewed as those commonly performed by “law-abiding citizens for lawful purposes today.”[91] If it is, a court should apply strict scrutiny. Otherwise, a court might use intermediate scrutiny.

While it is impossible to quantifiably estimate just how prolific the practice is—because most home gun-makers do not report their privately manufactured and held firearms—the data that exists suggests that it is widespread even to this day.[92] The ATF has released that during 2019, law enforcement recovered approximately 10,000 privately manufactured firearms.[93] The agency further estimates that it recovered a total of approximately 350,000 firearms in the same year, meaning that roughly three-percent were privately manufactured.[94] While this statistic is by no means overwhelming, it provides an insight into the prevalence of privately manufactured firearms. If the statistic for the American firearm population generally is similar to that of those the ATF recovered, then of the estimated 393 million privately owned firearms in the United States, around twelve million are home-built. Even if this number is quite inaccurate—as it likely is—the fact that an entire industry has been built on supplying components to home gun-makers reinforces its scale.[95] While Heller neglected to describe how common was “common,” advocates for regulation of privately manufactured firearms appear to concede that they are widespread.[96] In fact, it is the prevalence of these firearms that concerns them, so it would be difficult for them to argue that home-built firearms are not, to some extent, “in common use.”

Supreme Court caselaw suggests that it is common use today that is determinative.[97] Still, the historical proliferation of privately manufactured firearms illustrates how their use is firmly cemented in the American tradition, surviving the industrial revolution and remaining common to this day. It can be seen from history that home gun-making using components or precursor parts was considered a common activity at the time of the founding.[98] In the American colonies alone, an estimated 3,000 individual gunsmiths were manufacturing firearms.[99] It is unknown how many additional private individuals crafted weapons solely for themselves. What the history teaches us definitively, however, is that during the Revolutionary War, individual craftsmen (both traditional gunsmiths and those of other trades and professions) built most of the weapons used.[100] The Heller court gave great weight to the Second Amendment’s protection of “arms in common use at the time.”[101] At the founding, there was no firearm in more common use than that built at home.[102] Even though mass-produced firearms have increased in popularity since then, privately manufactured firearms have maintained their commonness throughout the centuries.[103]

Because building firearms at home is a common activity, and subsequently, privately manufactured firearms are commonly used, their regulation would properly be subject to strict scrutiny. Under this standard, the Government must prove that its law “furthers a compelling interest and is narrowly tailored to achieve that interest.”[104] While it is possible that states have a compelling interest in regulating unfinished receivers, many of their laws are not narrowly tailored such that they would survive strict scrutiny.

States assert a variety of interests in their regulation of unfinished receivers. Some are procedural, such as enforcing background check laws by not letting felons obtain a firearm by building it.[105] Others are general appeals to safety from spiking gun violence.[106] States have an inherent interest in enforcing their own laws,[107] and state and federal courts have long viewed public safety as a compelling state interest.[108] So, the state interest requirement may be satisfied.

However, many of the state laws are not narrowly tailored to this interest. Nevada’s law, for example, criminalizes the sale of unfinished receivers as well as their use in assembling a completed firearm.[109] This is drastically overinclusive if the goal is to prevent felons from obtaining firearms or preventing the use of privately made firearms in crime. A less restrictive, yet policy satisfying alternative, is to bar the sale of unfinished receivers to felons, and apply to their sale the same background check requirements as completed firearms.[110] Further, the language of the act, which applies to “unfinished frame[s] or receiver[s],” is so broad that it could conceivably be applied to a broad range of fabrications, if one could conceivably intend to turn it into a frame or receiver.[111] This could plausibly apply to any piece of material that could be further machined into a firearm receiver.[112] Because there are less restrictive alternatives to this broad ban that would be at least as effective in achieving the state’s interest, Nevada’s law would fail strict scrutiny analysis.[113]

Other states with similarly restrictive statutes would face the same result. Like Nevada, New York’s law is strikingly broad.[114] At its extreme, it makes it illegal to sell an unfinished receiver to anyone other than a licensed gunsmith,[115] making unfinished receivers—typically little more than a solid block of aluminum[116]—more heavily restricted than complete firearms.[117] The District of Columbia similarly prohibits possession of unfinished receivers.[118] These regulations represent a class of state laws that are almost certainly unconstitutional.

Some other states have enacted less exacting legislation that may straddle the line of constitutionality. California, for example, primarily requires that privately manufactured firearms be registered with the state and receive a serial number.[119] This might be narrowly tailored to the state’s interest, since it meets the policy objective without removing a citizen’s ability to assemble the firearm in the first place. However, the California law also bans sales of privately manufactured firearms,[120] which seems to place it on grounds closer to Nevada’s. Connecticut, along with requiring the affixing of a serial number, makes the standards for possessing an unfinished receiver the same as that for owning a firearm.[121] This standard seems to be tailored quite closely to the state interest in enforcing its own firearm possession laws.

Thus, while some state laws may survive constitutional review, those that extend to total bans on the possession of unfinished receivers could not. The ability to build a firearm at home is firmly within the scope of the Second Amendment, and its prolific tradition puts it at the core of the amendment’s protection. To remove the ability to possess key firearm components or to assemble a firearm at home would be in direct contradiction with the fundamental right within the Second Amendment.[122]

Conclusion

When it comes to state regulations on unfinished receivers, the breadth of the restrictions varies. However, when the state law amounts to a ban on the possession of firearm components, it is almost certainly unconstitutional under the original meaning of the Second Amendment. Because the practice of assembling firearms at home stretches back to the founding, when almost all firearms were privately manufactured, the drafters of the amendment would have understood that the right of the people to bear arms would require a right for them to first construct them.

On the other hand, states do have a compelling interest in enforcing their own laws and protecting the public safety. Thus, for states seeking to regulate unfinished receivers in the future, great care must be made to tailor their laws to these interests. Otherwise, they risk unduly and unconstitutionally burdening their citizens’ fundamental Second Amendment rights.

 

[1] Harvard Law School, J.D. class of 2022; B.S., Montana State University, 2018. Special thanks to Professor Jack Goldsmith for his comments on an early draft of this paper, and to the staff of JLPP Per Curiam for all their helpful edits.

[2] Brief for the Madison Soc’y Found., Inc. as Amicus Curiae Supporting Plaintiffs-Appellants at 6, Def. Distributed v. U.S. Dep’t of State, 2016 WL 5383110 (5th Cir. 2016) (No. 15-507559).

[3] Id. at 11.

[4] Id. at 6. (citing Gary Brumfield, Rifle Barrel Making: The 18th Century Process, Flintriflesmith (Mar. 25, 2021), https://www.flintriflesmith.com/ToolsandTechniques/barrelmaking.htm).

[5] Id. at 7.

[6] Id.

[7] Id. (“Wallace Gusler, retired Master Gunsmith at Colonial Williamsburg, began as a sawmill worker and later turned to creating custom flintlock firearms.”).

[8] See, e.g., 80 Percent Lower Rifle Kits, https://www.80-lower.com/ar-15-rifle-kits/ [https://perma.cc/B373-48TN].

[9] John Biggs, What You Need To Know About The Liberator 3D-Printed Pistol, TechCrunch (May 6, 2013),

http://techcrunch.com/2013/05/06/what-you-need-to-know-about-the-liberator-3d-printed-pistol [https://perma.cc/3KLD-9FSV].

[10] Scott J. Beigel Unfinished Receiver Act, 2021 Sess. Law News of N.Y. Ch. 519 (West).

[11] Id.

[12] See, e.g., James B. Jacobs & Alex Haberman, 3D-Printed Firearms, Do-It-Yourself Guns, & the Second Amendment, 80 Law & Contemp. Probs. 129 (2017).

[13] Zachary Bright, State judge temporarily blocks portion of new law banning ‘ghost guns’, The Nevada Independent (July 28th, 2021, 2:00 AM), https://thenevadaindependent.com/article/state-judge-temporarily-blocks-portion-of-new-law-banning-ghost-guns [https://perma.cc/V4LU-DU44].

 

[14] Howard Hall, Internal Ballistics Part 1—Cycle of Operation and Firearm Function, AEGIS (June 9, 2014), https://aegisacademy.com/blogs/test-blog-post/internal-ballistics-part-1-cycle-of-operation-and-firearm-function [https://perma.cc/A8HN-TFE9].

[15] Id.

[16] 27 C.F.R. § 478.11 (2021).

[17] Bureau of Alcohol, Tobacco, Firearms, and Explosives, Are “80%” or “unfinished” receivers illegal?, https://www.atf.gov/firearms/qa/are-%E2%80%9C80%E2%80%9D-or-%E2%80%9Cunfinished%E2%80%9D-receivers-illegal [https://perma.cc/4JB8-XNUM].

[18] 80 Percent Lower, https://www.80-lower.com/80-percent-lower [https://perma.cc/N2FE-JKRW].

[19] Id.

[20] See, e.g., 80 Percent Lower Unfinished Receiver Jig, https://www.80-lower.com/80-lower-jig [https://perma.cc/R3F9-X5LM].

[21] Bureau of Alcohol, Tobacco, Firearms, and Explosives, Are “80%” or “unfinished” receivers illegal?, https://www.atf.gov/firearms/qa/are-%E2%80%9C80%E2%80%9D-or-%E2%80%9Cunfinished%E2%80%9D-receivers-illegal [https://perma.cc/4JB8-XNUM].

[22] 18 U.S.C. §921(s) (2018).

[23] 18 U.S.C. §923(a).

[24] 18 U.S.C. §923(i).

[25] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968).

[26] 18 U.S.C. §923.

[27] Annie Karni, Ghost Guns: What They Are, and Why They Are an Issue Now, N.Y. Times (Apr. 9, 2021), https://www.nytimes.com/2021/04/09/us/politics/ghost-guns-explainer.html [https://perma.cc/VVX9-BYBX].

[28] Giffords Law Center to Prevent Gun Violence, Ghost guns—dangerous, homemade untraceable firearms—are increasingly being used to circumvent both federal and state gun laws and kill innocent people, https://giffords.org/lawcenter/gun-laws/policy-areas/hardware-ammunition/ghost-guns [https://perma.cc/TPR5-E32E].

[29] Karni, supra note 26.

[30] Giffords Law Center to Prevent Gun Violence, supra note 27 (listing California, Connecticut, Hawaii, Nevada, New Jersey, New York, Rhode Island, Virginia, and Washington, and well as the District of Columbia).

[31] See, e.g., Cal. Penal Code §29180(b)(1).

[32] See Nev. Assemb. 286, 2021 Leg., 81st Sess. (Nev. 2021) (banning unfinished receivers in Nevada); Scott J. Beigel Unfinished Receiver Act, 2021 Sess. Law News of N.Y. Ch. 519 (West) (banning unfinished receivers in New York); D.C. Code Ann. §§7-2501.01, 7-2502.02, 22-4515(a) (West 2001) (banning unfinished receivers in the District of Columbia).

[33] Cal. Penal Code §29180(b)(1).

[34] Cal. Penal Code §29180(d)(1).

[35] Cal. S. 118, 2019 Leg., Reg. Sess. §§21-37 (Cal. 2020).

[36] See Nev. Assemb. 286, 2021 Leg., 81st Sess. (Nev. 2021).

[37] Id. §§3-3.5.

[38] Id. §§4-5.

[39] Id. §3.5(2).

[40] Scott J. Beigel Unfinished Receiver Act, 2021 Sess. Law News of N.Y. Ch. 519 (West).

[41] Conn. Pub. Act No. 19-6 (2019).

[42] D.C. Code Ann. §§7-2501.01, 7-2502.02, 22-4515(a) (West 2001).

[43] See Nev. Assemb. 286, 2021 Leg., 81st Sess. §§4-5 (Nev. 2021).

[44] See Cal. Penal Code §29180(d)(1).

[45] U.S. Const. amend. II.

[46] See District of Columbia v. Heller (Heller I), 554 U.S. 570, 626 (2008) (“For most of our history the [issue] did not present itself.”). Prior to Heller I, only three Supreme Court cases raised Second Amendment issues. See United States v. Miller, 307 U.S. 174, 178 (1939) (upholding the constitutionality of a federal ban on shotguns less than eighteen inches long); Presser v. Illinois, 116 U.S. 252, 253, 265 (1886) (upholding the constitutionality of a state law restricting gun ownership for those not in militia service); United States v. Cruikshank, 92 U.S. 542, 553 (1876) (finding that the Second Amendment only constrained the federal government).

[47] Heller I, 554 U.S. at 595.

[48] 561 U.S. 742, 778 (2010).

[49] Heller I, 554 U.S. at 628. One of Heller’s most controversial aspects is Scalia’s inclusion, in dicta, of presumptively constitutional limitations on the Second Amendment right. Id. at 688 (Breyer, J., dissenting) (listing “prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales”).

[50] See Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433, 1451-52 (2018)

[51] Post-Heller Litigation Summary, Giffords Law Center (Feb. 9, 2022), https://giffords.org/lawcenter/gun-laws/litigation/post-heller-litigation-summary/.

[52] United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); see also Worman v. Healey, 922 F.3d 26, 33 (1st Cir. 2019); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322 (11th Cir. 2015); N.Y. State Rifle & pistol Ass’n v. Cuomo, 804 F.3d 242, 253 (2d Cir. 2015); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011); United Sates v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010). In each of these, the relevant circuit court adopted a variation of the two-part test. Only the Eighth Circuit has yet to adopt a form of the test. See Lauren Devendorf, Second-Class Citizens Under the Second Amendment: the Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions, 106 Cornell L. Rev. 501, 508 (2021). The Federal Circuit does not hear Second Amendment cases due to its specialized nature. See, e.g., 28 U.S.C. §1295 (describing the Federal Circuit’s specialized jurisdiction).

[53] See Jackson v. City & Cty of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014), cert. denied, 135 S. Ct. 2799 (2015) (noting that step one asks whether “the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment”).

[54] Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control, 92 Wash. U. L. Rev. 1187, 1200 (2015) (“The emerging consensus in the lower courts uses original meaning only as a threshold test, which screens out some claims, but contemplates that laws—even those limiting the extent to which individuals can exercise the textually recognized right to keep and bear arms—may be sustained upon sufficient justification.”).

[55] Heller I, 554 U.S. at 628.

[56] See Silvester v. Harris, 843 F.3d 816, 823 (9th Cir. 2016).

[57] See Tyler v. Hillsdale Cty.Sheriff’s Dep’t. (Tyler II), 837 F.3d 679, 690-91 (6th Cir. 2016) (en banc).

[58] U.S. Const. amend. II.

[59] See Heller I, 554 U.S. at 605-19.

[60] Id.

[61] Id. at 606 (citing 2 Tucker’s Blackstone 143).

[62] See Aldrige v. Commonwealth, 4 Va. 447, 449 (Va. Gen. Ct.) (claiming that restrictions could be placed on “free blacks’” right to bear arms, without claiming that they were prevented from doing so in militia service); United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (“The constitution of the United States also grants to the citizen the right to keep and bear arms.” (emphasis added)).

[63] See, e.g., United States v. Torres, 911 F.3d 1253, 1258 (9th Cir. 2019) (interpreting the first step to ask whether the challenged law “regulates conduct that historically has fallen outside the scope of the Second Amendment”); Jackson, 746 F.3d at 960 (asking in step one whether the “prohibitions . . . fall outside the historical scope of the Second Amendment”).

[64] Heller I, 554 U.S. at 634 (internal quotation marks omitted).

[65] Allen Rostron, Justice Breyer’s Triumph in the Third Battle Over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 706-07 (2012); see Brief for Firearms Policy Coalition, Inc. et al. as Amici Curiae Supporting Petitioners at 10, Jackson, 135 S. Ct. at 2799 (No. 14-704) (“De Facto Interest-Balancing Is Now The Prevailing Rule In The Lower Courts.”).

[66] Heller I, 554 U.S. at 628.

[67] Tyler II, 830 F.3d at 690-91.

[68] Heller I, 554 U.S. at 627 (internal quotation marks omitted); see Nicholas Griepsma, Concealed Carry Through Common Use: Extending Heller’s Constitutional Construction, 85 Geo. Wash. L. Rev. 284, 310 (2017) (describing the benefits of the “common use test”).

[69] Caetano v. Massachusetts, 577 U.S. 411, 420 (2016) (Alito, J., concurring). To suggest otherwise would undermine Heller’s protection of handgun ownership based on their popularity at the time of the case. Heller I, 554 U.S. at 629.

[70] See, e.g., id. at 411-12 (per curiam) (discussing the lower court’s error in applying the common use test). Some justices have expressed explicit support for the standard. Justice Alito, joined by Justice Thomas, said that after Heller, “the pertinent Second Amendment inquiry is whether [the arms] are possessed by law-abiding citizens for lawful purposes today.” Id. at 420 (Alito, J., concurring).

[71] See Brief for the Firearms Policy Coalition, et al., as Amicus Curiae in Support of Plaintiffs-Appellants, Rupp, et al. v. Becerra, No. 19-56004, 6-7 (9th Cir. 2020) (noting that the relevant Second Amendment inquiry is whether the arms are in common use); Jake Charles, Heller and the Vagaries of History, Second Thoughts (Sept. 16, 2019), https://sites.law.duke.edu/secondthoughts/2019/09/16/heller-and-the-vagaries-of-history [https://perma.cc/2G7Z-42CK] (distinguishing the “common use test” from the “quintessential self-defense weapon test”); Griepsma, supra note 67, at 310 (arguing that the “common use test” offers the most consistent standard of review, and should be applied to protect concealed carry); Cody J. Jacobs, End the Popularity Contest: A Proposal for Second Amendment “Type of Weapon” Analysis, 83 Tenn. L. Rev. 231, 245-47 (2015) (describing the issues presented by Heller’s “common use” test); Jordan E. Pratt, Uncommon Firearms as Obscenity, 81 Tenn. L. Rev. 1, 4 (2014) (recounting the ambiguities of “Heller’s common use test”); Nicholas J. Johnson, The Second Amendment in the States and the Limits of the Common Use Standard, Harv. L. & Pol’y Rev. Online, https://harvardlpr.com/online-articles/the-second-amendment-in-the-states-and-the-limits-of-the-common-use-standard (describing the limits of the “common use standard”).

[72] Heller I, 554 U.S. at 582 (“Just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” (internal citations omitted)).

[73] Caetano, 577 U.S. at 420 (Alito, J., concurring).

[74] See Marzzarella, 614 F.3d at 89.

[75] Torres, 911 F.3d at 1258.

[76] Brief for the Madison Soc’y Found., Inc. as Amicus Curiae Supporting Plaintiffs-Appellants at 6, Def. Distributed v. U.S. Dep’t of State, 2016 WL 5383110 (5th Cir. 2016) (No. 15-507559).

[77] Remington, This is Remington Firearms, https://www.remarms.com/about-us [https://perma.cc/SV64-YCNG].

[78] See Colt, The Colt Story, https://www.colt.com/timeline [https://perma.cc/35LS-TM69]; Winchester Repeating Arms, The Complete History of Winchester Repeating Arms, https://www.winchesterguns.com/news/historical-timeline.html [https://perma.cc/5Y9X-4C53]; Smith & Wesson, Our Story, https://www.smith-wesson.com/ourstory [https://perma.cc/H3Z4-V94Q].

[79] Henry J. Kauffman, Early American Gunsmiths 1650-1850, at 4-5 (1952).

[80] Id. at 10.

[81] Id. at 61.

[82] Stop Gun Violence: Ghost Guns: Testimony of Ashley Hlebinsky Before the Subcomm. on the Constitution, 117th Cong. (2021).

[83] Letter from Joseph Hewes to Samuel Johnston (Feb. 13, 1776), in 10 Colonial Records of N.C. 447 (William L. Saunders, ed., 1890).

[84] Testimony of Ashley Hlebinsky, supra note 81 at 6.

[85] Id.

[86] Id. at 5.

[87] See id. at 6.

[88] U.S. Const. amend. II.

[89] See Marzzarella, 614 F.3d at 89.

[90] Tyler II, 837 F.3d at 690.

[91] Caetano, 577 U.S. at 420 (Alito, J., concurring) (emphasis removed); see Heller I, 554 U.S. at 629 (holding that handgun ownership is protected because they “are the most popular weapon chosen by Americans for self-defense”).

[92] See Testimony of Ashley Hlebinsky, supra note 81 at 6 (“Despite the emergence of armories, mass production, and the innovation of prominent manufacturers, the role of the individual never went away and still exists today.”).

[93] Zusha Elinson, Ghost-Gun Company Raided by Federal Agents, Wall St. J. (Dec. 11, 2020 at 7:40 am ET). It is worth noting that not all of these are recovered because of their use in a crime, but could be uncovered because of red flag laws or through searches on other grounds.

[94] Firearms Trace Data – 2019, Bureau of Alcohol, Tobacco, Firearms, and Explosives, https://www.atf.gov/resource-center/firearms-trace-data-2019.

[95] See 80% Lowers, www.80-lower.com; 80% Arms, www.80percentarms.com; Grid Defense, www.ghostrifles.com; 5D Tactical, www.5dtactical.com; Palmetto State Defense, www.psdmfg.com.

[96] Anna M. Kaplan, New York State Legislature Passes Nation’s Toughest Restrictions on Dangerous, Untraceable Firearms Designed to Evade Background Checks, The New York State Senate (June 8, 2021), https://www.nysenate.gov/newsroom/press-releases/anna-m-kaplan/new-york-state-legislature-passes-nations-toughest [https://perma.cc/5M2J-GSLR].

(quoting NY state Senator Brad Hoylman, who referenced the large amount of ghost guns recovered by law enforcement as a reason to support NY’s legislation).

[97] Caetano, 577 U.S. at 420 (Alito, J., concurring).

[98] Testimony of Ashley Hlebinsky, supra note 81 at 6.

[99] George D. Moller, 1 American Military Shoulder Arms 107 (2011).

[100] See Brief for the Madison Soc’y Found., Inc. as Amicus Curiae Supporting Plaintiffs-Appellants at 6, Def. Distributed v. U.S. Dep’t of State, 2016 WL 5383110 (5th Cir. 2016) (No. 15-507559) (citing 1775 Va. Acts Dec. Interreg. Ch. 3, 9 Hening’s Laws of Virginia 94); see also Henry J. Kauffman, Early American Gunsmiths 1650–1850 at 4–5, 10, 14, 55 (1952) (describing advertisements by locksmiths, jewelers, and lawyers for hand-made firearms).

[101] Heller I, 554 U.S. at 624 (internal quotation marks omitted).

[102] See generally Brief for the Madison Soc’y Found., Inc. as Amicus Curiae Supporting Plaintiffs-Appellants, Def. Distributed v. U.S. Dep’t of State, 2016 WL 5383110 (5th Cir. 2016) (No. 15-507559)

[103] Testimony of Ashley Hlebinsky, supra note 81 at 1.

[104] Cf. Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (internal quotation marks omitted).

[105] Kaplan, supra note 95.

[106] Id.

[107] Potrero Hills Landfill, Inc. v. Cnty. Of Solano, 657 F.3d 876, 883 (9th Cir. 2011) (noting the state’s vital interest in carrying out its executive functions).

[108] See United States v. Salerno, 481 U.S. 739, 745, 749 (1987) (finding public safety and crime prevention compelling state interests for the purpose of strict scrutiny review); State v. Roundtree, 952 N.W.2d 765, 782 (Wis. 2021) (“Historically, laws that dispossessed the violent served the compelling state interest in public safety.”)

[109] Nev. Assemb. 286, 2021 Leg., 81st Sess. §§3-5 (Nev. 2021).

[110] See Conn. Pub. Act No. 19-6 (2019).

[111] Nev. Assemb. 286, 2021 Leg., 81st Sess. §6(9) (Nev. 2021).

[112] The most intricate and time-consuming machining of unfinished receivers occurs at home during the final steps. Previously, the unfinished receiver is barely more than an aluminum paperweight, and any other suitable block of metal could conceivably take its place. Because the state laws do not dictate how close to finished the unfinished receiver must be, the laws are incoherently overbroad.

[113] See In re Nat’l Sec. Letter v. Sessions, 863 F.3d 1110, 1125 (9th Cir. 2017). Nevada’s law found its way into courts during the summer of 2021. A federal judge rejected the argument that the law violated Nevadan’s Second Amendment rights, but then a state judge found that the law violated the Nevada Constitution’s due process clause. https://thenevadaindependent.com/article/state-judge-temporarily-blocks-portion-of-new-law-banning-ghost-guns

[114] Scott J. Beigel Unfinished Receiver Act, 2021 Sess. Law News of N.Y. Ch. 519 (West).

[115] Id. §3(10).

[116] 80% Lower, What is an unfinished receiver Receiver, https://www.80-lower.com/80-percent-lower [https://perma.cc/EJU6-793D].

[117] In New York, citizens who are not gunsmiths may possess completed firearms if they obtain a license. N.Y. Penal Law §§265.01-b, 400.00.

[118] D.C. Code Ann. §§7-2501.01, 7-2502.02, 22-4515(a) (West 2001).

[119] Cal. Penal Code §29180(b)(1).

[120] Cal. Penal Code §29180(d)(1).

[121] Conn. Pub. Act No. 19-6 (2019).

[122] The Heller court noted that that at the time of the founding, the right to have arms was fundamental. Heller I, 554 U.S. at 593-94. As discussed above, the arms bore at the founding were overwhelmingly privately manufactured, meaning that the right to bear arms, as understood at the founding, necessarily requires the right to privately manufacture.

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Regulatory Certainty: A Flight of Fancy for the Migratory Bird Treaty Act – Garrett Kral

Posted by on Mar 22, 2022 in Per Curiam

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Regulatory Certainty: A Flight of Fancy for the Migratory Bird Treaty Act

Garrett Kral*

 

The MBTA’s statutory provisions “have been the subject of repeated litigation and diametrically opposed opinions of the Solicitors of the Department of the Interior.”[1]

 

Introduction

 The United States Department of the Interior’s interpretation of the Migratory Bird Treaty Act (MBTA, or the Act)[2] has varied during the Obama, Trump, and now Biden administrations.[3] Central to this variance is a dispute over statutory interpretation; specifically, the definition of “incidental take,” i.e., unintentional migratory bird mortality, which can be a strict liability crime.[4] This article provides a brief history of the MBTA and the important role it has played in migratory bird conservation.[5] However, the focus of this article is on recent MBTA policy and judicial decisions and what these decisions could mean for the regulated community.[6]

But before we begin, it is important to consider the United States’ successful conservation of migratory bird species.[7] Industry, from oil pits to wind-based turbines, is not the leading cause of domestic migratory bird mortality.[8] In fact, data from recent years show the top three causes of domestic migratory bird mortality are: (1) cats; (2) buildings; and (3) automobiles.[9] Thus as we consider the topic of migratory bird conservation, it is important to contextualize the leading causes of migratory bird mortality.

A Brief History of the MBTA

This article does not attempt to summarize the full depth and breadth of bird law,[10] detailed treatment of which can be found elsewhere.[11] What this section does provide is a quick overview of the Act’s history. In 1913, the United States Senate adopted a resolution requesting that the President “propose to the Governments of other countries the negotiation of a convention for the protection and preservation of birds.”[12] Acting on this Senate resolution, the United States and Great Britain (signing on behalf of Canada) entered into the first treaty for the protection of migratory birds in 1916.[13]

To fulfill the United States’ treaty obligations, in 1918, Congress enacted the MBTA.[14] This treaty was the first of four entered into by the United States between 1916 and 1976 for the protection of migratory birds.[15] Since 1976, the MBTA has taken a rather circuitous flight path through each branch of the federal government in this administrative law dispute.

The Current State of the Law

 The MBTA Under the Last Two Presidential Administrations

Because much of the disagreement over the MBTA’s proper scope and purpose centers around the statutory interpretation of “incidental take,” it is important to define that term upfront. In plain English, incidental take is the harming or killing of migratory birds that results from—but is not the purpose of—otherwise lawful activity. Congress defines incidental take as “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird, [or] any part, nest, or egg of any such bird.”[16] Examples of lawful activity that can result in incidental take, and thus open oneself up to enforcement and prosecution include: (1) personal activity (e.g., an unsuspecting landowner fells a tree with a migratory bird’s nest in its branches); (2) industrial activity (e.g., operation of an oil field waste pit that a migratory bird descends into); and (3) renewable energy activity (e.g., a land-based wind turbine that a migratory bird flys into).[17]

While the MBTA’s incidental take provision has been around since the 1970’s, this article focuses on the Act’s recent history.[18] On January 10, 2017, the Department of the Interior (DOI) under the Obama administration issued a Solicitor’s opinion stating the MBTA prohibits “incidental take.”[19] A Solicitor’s opinion is a policy memorandum from DOI’s Solicitor, the Senate confirmed principle legal adviser to the Secretary of the Interior—the Cabinet Secretary leading DOI’s 70,000 employees across 2,400 locations. This Solicitor’s opinion from the Obama administration concluded “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.”[20]

Stated differently, under Section 707 of the MBTA the killing of a migratory bird can be a strict liability crime—at least under Section 707(a)’s misdemeanor provision where no mens rea is required to be convicted of violating the Act.[21] Individuals or companies who commit a Section 707(a) violation are “deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.”[22]

On the other hand the MBTA’s felony provision, Section 707(b)(1)-(2), states that those who “knowingly” violate the Act “shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both.”[23] Fortunately, Section 707(b)’s felony provision has a knowledge requirement, meaning that a violation of this part of the Act is not a strict liability crime.[24] Even so, there are due process concerns with Sections 707(a)-(b) of the MBTA because they allow for criminal penalties. [25]Nevertheless, DOI has recently stated that through prosecutorial discretion it may mitigate such concerns.[26]

Under the Trump administration, DOI did not agree with the prior Solicitor’s interpretation of the MBTA. As such, less than a year after taking office, the Trump administration issued its own Solicitor’s opinion that found the MBTA only criminalizes “direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human

control.”[27] The most notable example of such conduct is illegally hunting or poaching protected migratory bird species.[28] This opinion remained the legal position of the United States for the duration of the prior administration and was supported by a final rule published by the United States Fish and Wildlife Service (FWS, or the Service) on January 7, 2021.[29]

The Solicitor’s opinion for the Trump administration began with the text of the Act, citing to the ancient maxim a verbis legis non est recedendum (do not depart from the words of the law).[30] Here, the Solicitor turned to Section 703(a) of the MBTA which defines “incidental take” and  relied upon the cannon noscitur a sociis (a word is known by its associates) to find that “pursue,” “hunt,” and “capture,” unambiguously require an affirmative and purposeful action.[31] While the two remaining verbs, “kill,” and “take,” may refer to either active or passive conduct. These tools of statutory interpretation, along with other legal analysis, led that Solicitor’s opinion to conclude Section 703(a)’s definition of incidental take is limited to affirmative actions that have as their stated purpose the taking or killing of migratory birds.[32] This brings us to the current administration’s approach to interpreting the MBTA, which is “diametrically opposed” to that of the Trump administration, and which builds upon that of the Obama administration.[33]

The Current Administration’s MBTA Approach

 Policy Preferences

On October 4, 2021, the Biden administration concurrently published three important documents: (1) the MBTA final rule; (2) the Advanced Notice of Proposed Rulemaking (ANPR); and (3) Director’s Order 225.[34] The publication of the MBTA final rule withdrew the Trump administration’s MBTA final rule, while a recent district court ruling vacated the Solicitor’s opinion from the prior administration.[35] DOI, under the current administration, has not yet issued a Solicitor’s opinion discussing “incidental take,” most likely because the position of DOI’s Solicitor remained vacant for a majority of the first year of the current administration.[36] However, based on a review of the prior two administration’s actions—and with the recent confirmation of DOI’s newest Solicitor—the current administration  has almost certainly begun drafting and is looking to publish a new Solicitor’s opinion that returns to the position that incidental take is prohibited by the MBTA.[37]

The current administration’s final rule does not propose replacement language for the prior administration’s final rule.[38] Instead, it removes the prior administration’s regulatory text altogether, stating DOI will: “return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion.” The current administration’s final rule went into effect on December 3, 2021.[39]

Also, the current administration’s publication of the ANPR in the Federal Register opened a 60-day notice and comment period that expired on the final rule’s effective date: December 3, 2021.[40] Briefly, the ANPR discusses the option of a MBTA incidental take permitting program.[41] This approach is similar to that initiated by the Obama administration in 2015,[42] but disregarded by the Trump administration in 2017, when that Solicitor concluded the MBTA does not prohibit incidental take.[43] As such, under the Trump administration’s reading of the MBTA, because lawful actions resulting in the taking of migratory bird species are not subject to enforcement or prosecution, a permitting program would be superfluous.[44] However, under the current administration’s reading of the MBTA, a permitting program is perhaps necessary “to provide both meaningful bird conservation and regulatory clarity.”[45]

Also on October 4, 2021, the Service published Director’s Order 225.[46] This policy document comes from the Director of the FWS, a politically appointed position that remains vacant in the current administration; and thus, this order was almost certainly written by lower-level DOI staff.[47] To protect against the inherent overbreadth of incidental take, Director’s Order 225 allows for enforcement discretion.[48] This approach was disfavored in the prior administration which cautioned that such discretion would likely result in the application of “arbitrary and discriminatory” power.[49] Nevertheless, Director’s Order 225 states that “the Service will focus our enforcement efforts on specific types of activities that both foreseeably cause incidental take and where the proponent fails to implement known beneficial practices to avoid or minimize incidental take.”[50]

Director’s Order 225 describes “beneficial practices” broadly, to include any action implemented in an effort to avoid and minimize the incidental taking of protected migratory birds.[51] The FWS maintains a website that provides applicable best practices and conservation measures; for example, best practices for land-based wind energy facilities include following the Service’s Land-Based Wind Energy Guidelines, which industry operators may find reduces exposure to MBTA enforcement and prosecution.[52] In practice, however, it is likely too soon to tell how Director’s Order 225 will be enforced. Thus, like the sword of Damocles, Interior’s MBTA policy preferences loom over a host of otherwise lawful and productive activities.[53]

Judicial Decisions

The MBTA has been litigated over in a bevy of federal district[54] and appellate courts.[55] Indeed, there is a circuit split on the issue of incidental take.[56] Generally, the Second and Tenth Circuits have extended the MBTA to include incidental take; while the Fifth, Eighth, and Ninth Circuits have limited the MBTA to exclude incidental take.[57] As such, there is no shortage of interesting MBTA case law to discuss. However, for brevity and clarity, this article focuses on the case law considered by DOI in its final rule.[58]

It may be said, however, that just as much scrutiny should be provided to the current administration’s final rule because of the judicial decisions it fails to discuss.[59] Namely, United States v. FMC Corporation (not discussed); but also, United States v. Apollo Energies (mentioned only once).[60]

In FMC Corp., the Second Circuit extended the MBTA to include incidental take, upholding the conviction of a corporation whose operations were found to have resulted in the incidental take of migratory birds after those birds were exposed to pesticide tainted water.[61] While in Apollo Energies the Tenth Circuit also extended the MBTA to include incidental take, finding that “[a]s a matter of statutory construction, the ‘take’ provision of the Act does not contain a scienter requirement.”[62] Thus it would seem that from DOI’s perspective FMC Corp. and Apollo Energies merit detailed discussion because they provide some legal justification for the position that the MBTA prohibits incidental take.

DOI’s absence of discussion on FMC Corp. is particularly interesting.[63] Instead of discussing this case, DOI focuses its revocation of the prior administration’s final rule on Natural Resources Defense Council v. United States Department of the Interior (NRDC).[64] NRDC is a published opinion from the Southern District of New York (SDNY), but this opinion cannot be said to supersede a published opinion from the Second Circuit—which is binding on the SDNY.

Thus, it is curious indeed that the United States filed a notice of appeal in the Second Circuit on the NRDC decision before the change in administration.[65] However, after the change in administration, the United States filed a stipulation to dismiss its appeal of NRDC.[66] Perhaps because the current administration does not want to disturb the decision reached by the Second Circuit in FMC Corp., or the decision reached by the SDNY in NRDC, the latter of which vacated the Solicitor’s opinion from the prior administration, and both of which took the position that the MBTA prohibits incidental take. But if that is the current administration’s reasoning, then why not cite to FMC Corp. as the legal justification for its final rule? If the goal is regulatory certainty, why rely so heavily on a single published opinion from the SDNY while ignoring a published opinion from the Second Circuit (and mentioning a favorable decision from the Tenth Circuit only once)?

But this is what the final rule does. In the final rule, DOI states “after further review of the January 7 [Trump administration] rule and the CITGO and NRDC decisions, along with the language of the statue” DOI has determined that the Trump administration’s final rule and its Solicitor’s opinion are not in “accord[] with the text, purposes, and history of the MBTA.”[67] However, the current administration’s final rule also states:

Reference to case law in general or legislative history can be interpreted to bolster either interpretation [of the MBTA] as demonstrated by the relevant analysis in the January 7 rule versus that of the initial Solicitor’s Opinion, M‒37041 . . . . In any case, the Service certainly has discretion to revoke the January 7 rule given the legal infirmities raised by the NRDC court and the [January 7] rule’s reliance on the CITGO decision.[68]

As such, the core of the current administration’s final rule compares, contrasts, and ultimately distinguishes NRDC from the Fifth Circuit’s decision in CITGO and the prior administration’s final rule.[69] It is interesting that DOI puts so much weight into distinguishing CITGO from NRDC because these decisions rest in different circuits and at different levels of the federal judiciary. This tactic could make more sense if DOI provided deeper treatment to the current circuit split. However, to focus DOI’s legal analysis on these two judicial decisions and a couple of non-binding policy documents is a puzzling tactic for administrative policymakers in 2022.

In its final rule, the current administration states CITGO relies on “two questionable premises.”[70] First, DOI states that the Fifth Circuit read the term “kill” out of the MBTA, “render[ing] ‘kill’ superfluous to the other terms mentioned, thus violating the rule against surplusage.”[71] Second, DOI states the Fifth Circuit erred when applying noscitur a sociis because “upon closer inspection . . . the only terms that clearly and unambiguously refer to deliberate acts are ‘hunt’ and ‘pursue.’”[72] Thus, DOI states “[t]he fact that most of the prohibited terms can be read to encompass actions that are not deliberate in nature is a strong indication that Congress did not intend those terms to narrowly apply only to direct actions.”[73] Ultimately, DOI concludes “[a]fter closely examining the court’s holding [in NRDC], we are persuaded that it advances the better reading of the statute,” one prohibiting incidental take.[74]

Lastly, it is curious and perhaps not coincidental that DOI fails to provide any meaningful treatment to the other circuit court decisions which cut against its current interpretation of the MBTA. Namely, Newton (Eighth Circuit) and Seattle Audubon Society (Ninth Circuit).[75] In Newton, the Eighth Circuit stated, “we agree with the Ninth Circuit [in Seattle Audubon Society] that the ambiguous terms ‘take’ and ‘kill’ in 16 U.S.C. § 703 mean ‘physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute’s enactment in 1918.’”[76] While in Seattle Audubon Society, the Ninth Circuit found that “the[] cases do not suggest that habitat destruction, leading indirectly to bird deaths, amounts to the ‘taking’ of migratory birds within the meaning of the Migratory Bird Treaty Act. We are not free to give words a different meaning than that which Congress and the Agencies charged with implementing congressional directives have historically given them under the Migratory Bird Treaty Act.”[77] Thus, both Newton and Seattle Audubon Society (along with CITGO) find that the MBTA does not prohibit incidental take while the current administration believes that it does, and in making this argument the current administration relies nearly in whole but at least in heavy part on a single district court decision: NRDC.[78]

If the Supreme Court were to hear a case on the current circuit split over the MBTA’s “incidental take” provision, the Court would almost certainly address not only Newton and Seattle Audubon Society, but each of the decisions discussed above.[79] And while the MBTA has been to the Court once before, that flight was taken over 100 years ago.[80] Thus, the current circuit split appears ripe for the Court’s review.

Conclusion

Regulatory uncertainty is disfavored. Indeed, the law (and the regulated community) demand certainty. Nevertheless, regulatory uncertainty surrounding the MBTA’s implementation is likely—and perhaps expected—in the short term. Thus, with varying presidential administrations having “diametrically opposed”[81] interpretations of the MBTA, one is left wondering what the next administration will do.

 

* Garrett Kral is a former U.S. EPA official and political appointee for the Trump administration.

[1] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642 (Oct. 4, 2021) (to be codified at 50 C.F.R. 10).

[2] 16 U.S.C. §§ 703–712.

[3] See discussion infra Section 3.

[4] 16 U.S.C. § 707(a). There are due process concerns with Section 707 of the MBTA because misdemeanor and felony penalties exist. DOI states it can mitigate these concerns with prosecutorial discretion. See infra, Section 3(a); Martha Williams, U.S. Fish & Wildlife Serv., Dir.’s Ord. No. 225, Incidental Take of Migratory Birds (2021) [hereinafter Director’s Order 225].

[5] See discussion infra Section 2.

[6] See discussion infra Section 3(b)(i)–(ii).

[7] 50 C.F.R. § 10.13 (Listing the total number of species protected by the MBTA as 1,093. This list was last updated on April 16, 2020, when 75 migratory birds were added and 8 were removed.) (U.S. Fish & Wildlife Service, Managed Species, Migratory Bird Treaty Act Protected Species, https://www.fws.gov/birds/management/managed-species/migratory-bird-treaty-act-protected-species.php).

[8] See U.S. Fish & Wildlife Service, Threats to Migratory Birds, Migratory Bird Mortality Questions and Answers, https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php, (Note the data set used by FWS is from 2017, but this webpage was last updated in December of 2021, after DOI published its final rule, advanced notice of proposed rulemaking, and Director’s Order 225).

[9] See id. (Note there are a range of numbers experts use, and the federal government adopts, when setting MBTA policy. The data suggest average annual bird mortality is 3.3 billion, and the most common causes of bird mortality are: (1) cats (2.4 billion per annum); (2) buildings (599 million per annum); and (3) vehicles (214 million per annum). All industrial activity accounts for 709 million migratory bird deaths per annum.). Id.

[10] The MBTA has historical roots, but also enjoys its place in popular culture. See, e.g., It’s Always Sunny in Philadelphia, The Gang Exploits the Mortgage Crisis (FX Network television broadcast Sept. 17, 2009) (Dennis: “I can absolutely keep a hummingbird as a pet . . . it’s no different than having a parrot or a parakeet.” Charlie: “You really can’t, and I’m not saying I agree with it. It’s just that bird law in this country is not governed by reason.” Dennis: “There’s no such thing as ‘bird law.”’ Charlie: “Yes, there is.”).

[11] See, e.g., Robert Percival & Garrett Kral, Global Trends in Protection of Migratory Birds, 33 A.B.A. Nat. Res. & Env’t Mag. 16 (2018) (exploring global trends in the protection of migratory birds); Brittany E. Barbee, To Kill a Migratory Bird: How Incidental Takes by Commercial Industry Activity Should be Regulated by a New Civil Penalty Regime, Not the Current MBTA, 25 Buff. Env’t. L. J. 91 (2018) (proposing the replacement of MBTA’s criminal liability); Jessica Scott & Andrea Folds, From Friend to Foe: The Complex and Evolving Relationship of the Federal Government and the Migratory Birds it is Bound to Protect, 49 Env’t. L. 187 (2019) (advocating for the prosecution of incidental take).

[12] Senate Journal, 63rd Cong. 1st Sess. 108 (Apr. 7, 1913).

[13] Convention Between the United States and Great Britain for the Protection of Migratory Birds, U.K.-U.S., Aug. 16, 1916, 39 Stat. 1702 (ratified Dec. 7, 1916).

[14] U.S. Fish & Wildlife Service, Laws & Legislation, Migratory Bird Treaty Act, https://www.fws.gov/birds/policies-and-regulations/laws-legislations/migratory-bird-treaty-act.php.

[15] See generally, Convention Between the United States and Great Britain for the Protection of Migratory Birds, U.K.-U.S., Aug. 16, 1916, 39 Stat. 1702 (ratified Dec. 7, 1916); Convention Between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, Mex.-U.S., Feb. 7, 1936, 50 Stat. 1311 (ratified Mar. 15, 1937); Convention Between the Governments of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Japan-U.S., Mar. 4, 1972, 25 U.S.T. 3329 (ratified Sep. 19, 1974); and Convention Between the United States of America and the Union of the Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 U.S.T. 4647 (ratified Oct. 13, 1978). (Note that there have been amendments to at least some of these treaties; for example, the United States and Mexico treaty was amended in 1976, and the United States and Canada treaty was amended in 1995.). U.S. Fish & Wildlife Service, Laws & Legislation, Migratory Bird Treaty Act, https://www.fws.gov/birds/policies-and-regulations/laws-legislations/migratory-bird-treaty-act.php.

[16] 16 U.S.C. § 703(a).

[17] See U.S. Fish & Wildlife Service, Threats to Migratory Birds, Migratory Bird Mortality Questions and Answers, https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php; see also United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 18 (Dec. 22, 2017).

[18] Compare Nat. Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469, 473 (S.D.N.Y. 2020) (stating “[f]rom the early 1970s until 2017, Interior interpreted the MBTA to prohibit incidental takes and kills.”); with, Press Release, U.S. Fish and Wildlife Service, U.S. Fish and Wildlife Service Solicits Public Input on Proposed Rule and Environmental Impact Statement for Migratory Bird Treaty Act (Jan. 30, 2021) (concluding “[w]ith five federal circuit courts of appeals divided on this question, it is important to bring regulatory certainty to the public by clarifying that the criminal scope of the MBTA only reaches to conduct intentionally injuring birds”) (on file with author).

[19] United States Dep’t Of The Interior, Solicitor’s Opinion M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 10, 2017).

[20] Id.

[21] 16 U.S.C. § 707(a) (“[A]ny person, association, partnership, or corporation who shall violate any provisions of said conventions or of this subchapter, or who shall violate or fail to comply with any regulation made pursuant to this subchapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.”).

[22] 16 U.S.C. §707(a).

[23] 16 U.S.C. §§ 707(b)(1)-(2).

[24] 16 U.S.C. § 707(b)(2) (“Whoever, in violation of this subchapter, shall knowingly . . . sell, offer for sale, barter or offer to barter any migratory bird shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both.”).

[25] See Director’s Order 225, supra note 4, at 2.

[26] See Id.

[27] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 41 (Dec. 22, 2017).

[28] Id.

[29] See 50 C.F.R. § 10.14 (2021).

[30] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 18–19 (Dec. 22, 2017).

[31] Id. at 19.

[32] Id.

[33] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642, 54,642 (Dec. 3, 2021) (to be codified at 50 C.F.R. pt. 10).

[34] Id.; see also Director’s Order 225, supra note 4, at 1.

[35] Regulations Governing Take of Migratory Birds, 86 Fed. Reg. at 54,642; see also Nat. Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469, 469 (S.D.N.Y. 2020).

[36] U.S. Department of the Interior, Office of the Solicitor, Organization Structure,  https://www.doi.gov/solicitor/organization-structure.

[37] The current administration issued a brief memorandum in which the then-Principal Deputy Solicitor, who has since been confirmed as DOI’s current Solicitor, revoked and withdrew the Trump administration’s Solicitor opinion, which was also vacated by a recent decision in the Southern District of New York. U.S. Dep’t. of the Interior, Memorandum 37065, https://www.doi.gov/sites/doi.gov/files/permanent-withdrawl-of-sol-m-37050-mbta-3.8.2021.pdf (March 8, 2021).

[38] Regulations Governing Take of Migratory Birds, 86 Fed. Reg. at 54,642.

[39] Id.

[40] Migratory Bird Permits: Authorizing the Incidental Take of Migratory Birds, 86 Fed. Reg.  54,667 (October 4, 2021) (to be codified at 50 C.F.R. pt. 21).

[41] Migratory Bird Permits, 86 Fed. Reg. at 54,669.

[42] Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 Fed. Reg. 30,032, 30,034 (May 26, 2015) (to be codified at 50 C.F.R. pt. 21).

[43] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 18 (Dec. 22, 2017).

[44] Id. at 37 (While the MBTA contemplates the issuance of permits authorizing wildlife take, it requires any such permit to be issued by “regulation.”) (citing 16 U.S.C. § 703(a) (“Unless and except as permitted by regulations made as hereinafter provided . . . .” (emphasis added))).

[45] Migratory Bird Permits, 86 Fed. Reg. at 54,669.

[46] Id. (“Concurrent with this final rule, we have also published an advance notice of proposed rulemaking requesting public input on potential alternatives for authorizing incidental take of migratory birds and a Director’s Order clarifying our current enforcement position.”).

[47] See U.S. Fish & Wildlife Serv., National Org. Chart, Office of External Affairs, https://fws.gov/offices/org-chart.html; see also Press Release, Center for Biological Diversity, Biden Urged to Nominate U.S. Fish and Wildlife Service Director, (Sept. 8, 2021) (on file with author); PN1295, Nomination of Martha Williams for Department of the Interior, 117th Congress (2021-2022), PN1295, 117th Cong. (2022), https://www.congress.gov/nomination/117th-congress/1295 (Martha Williams, the current Principle Deputy Director of FWS has been nominated by the Biden administration to lead FWS as its Director; and while Ms. Williams was voted out of the Senate Committee on Environment and Public Works, she has yet to receive a floor vote and thus her confirmation is pending.

[48] Director’s Order 225, supra note 4, at 2 (The Service “recognizes that a wide range of activities may result in incidental take of migratory birds” and “[p]ursuing enforcement for all these activities would not be an effective or judicious use of our law enforcement resources.”).

[49] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 41 (Dec. 22, 2017).

[50] Director’s Order 225, supra note 4, at 2 (emphasis in original).

[51] Id. at 1 (“Beneficial practice means an action implemented in an effort to avoid and minimize the incidental take of migratory birds. We also refer to beneficial practices as best management practices, conservation measures, best practices, mitigation measures, etc.”).

[52] U.S. Fish and Wildlife Serv., Management, Project Assessment Tools & Guidance, https://www.fws.gov/birds/management/project-assessment-tools-and-guidance.php.

[53] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 1 (Dec. 22, 2017) (citing Arnett v. Kennedy, 416 U.S 134, 231 (1974) (Marshall, J., dissenting) (“The value of a sword of Damocles is that it hangs—not that it drops.”).

[54]  See, e.g., United States v. Corbin Farm Serv., 444 F. Supp. 510, 529 (E.D. Cal. 1978), aff’d, 578 F.2d 259 (9th Cir. 1978); Ctr. For Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002) vacated on other grounds sub nom.; Ctr. For Biological Diversity v. England, 2003 U.S. App. Lexis 1110 (D.C. Cir. Jan. 23, 2003); Nat’l Audubon Soc’y v. U.S. Fish & Wildlife Serv., 1:21-cv-00448 (S.D.N.Y. filed Jan. 19, 2021).

[55] See, e.g., United States v. FMC Corp., 572 F.2d 902, 903 (2nd Cir. 1978); United States v. Apollo Energies, Inc., 611 F.3d 679, 680 (10th Cir. 2010); United States v. CITGO Petro. Corp., 801 F.3d 477, 478 (5th Cir. 2015); Newton County Wildlife Ass’n. v. U.S. Forest Serv., 113 F.3d 110, 111 (8th Cir. 1997); Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 298 (9th Cir. 1991).

[56] See supra note 19, Press Release, U.S. Fish and Wildlife Service, U.S. Fish and Wildlife Service Solicits Public Input on Proposed Rule and Environmental Impact Statement for Migratory Bird Treaty Act (Jan. 30, 2021) (on file with author); Corinne Snow & Patrick Traylor, et. al., Biden Administration Looks To Recriminalize Accidental Bird Deaths In Traditional And Renewable Energy Sectors, JD Supra (March 18, 2021) (finding that “[t]here is no one-size-fits-all answer on MBTA risk exposure, at least until the Supreme Court resolves the circuit split over the proper reach of the MBTA.”), https://www.jdsupra.com/legalnews/biden-administration-looks-to-2642339/.

[57] Compare FMC Corp. 572 F.2d at 903, and Apollo Energies, Inc., 611 F.3d at 680, with CITGO Petro. Corp., 801 F.3d at 478, Newton County Wildlife Ass’n, 113 F.3d at 111, and Seattle Audubon Soc’y, 952 F.2d at 298 .

[58] 86 Fed. Reg. 50,644 (comparing Nat. Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020), with CITGO, 801 F.3d at 478 and 50 C.F.R. § 10.14 (2021)).

[59] See, e.g., FMC Corp., 572 F.2d at 903; Newton, 113 F.3d at 111; Seattle Audubon Soc’y, 952 F.2d at 298.

[60] See generally Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642 (Dec. 3, 2021) (to be codified at 50 C.F.R. pt. 10).

[61] FMC Corp., 572 F.2d at 903.

[62] Apollo Energies, 611 F.3d at 686.

[63] Maxine Joselow, Biden Officials Finalize a Rule Making it Harder to Kill Migratory Birds, Wash. Post, Sept. 20, 2021, available at https://www.washingtonpost.com/climate-environment/2021/09/29/migratory-bird-treaty-act-biden/ (quoting Kathleen Sgamma, the President of the Western Energy Alliance which represents oil and gas drillers in Western states, arguing that “[b]y ignoring all but one circuit court ruling in this rule and hanging its hat on a district court ruling that hasn’t gone through appeal, the Biden administration is not clearing up the legal issues addressed by various circuit courts and will be legally vulnerable.”).

[64] 478 F. Supp. 3d 469 (S.D.N.Y. 2020).

[65] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642, 54,643 (Oct. 4, 2021) (to be codified at 50 C.F.R. pt. 10).

[66] Id.

[67] Id. at 54,644.

[68] Id. (emphasis added).

[69] See NRDC, 478 F. Supp. 3d at 469; United States v. CITGO Petro. Corp., 801 F.3d 477 (5th Cir. 2015). (Note that FWS also points to the Stump Act, which among other things carved out an incidental take exemption for military activities that result in the death of protected migratory birds. FWS argues the inclusion of this exemption in the Stump Act demonstrates that Congress intended the MBTA to prohibit incidental take. FWS also cites to concerns raised by the Canadian government that the prior administration’s final rule did not comply with the spirit of the treaty that the United States entered into with Canada in 1916.).

[70] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642, 54,643 (Oct. 4, 2021) (to be codified at 50 C.F.R. pt. 10).

[71] Id. (citing Corley v. United States, 556 U.S. 303, 314 (2009)).

[72] Id.

[73] Id.

[74] Id.

[75] Newton County Wildlife Assn., 113 F.3d at 110; Seattle Audubon Soc’y, 952 F.2d at 297.

[76] Newton, 113 F.3d at 111 (citing Seattle Audubon Soc’y, 952 F.2d at 302).

[77] Seattle Audubon Soc’y, 952 F.2d at 303.

[78] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642, 54,643 (Oct. 4, 2021) (to be codified at 50 C.F.R. pt. 10).

[79] See supra note 55.

[80] See Missouri v. Holland, 252 U.S. 416 (1920) (finding that the MBTA was constitutional under the treaty power.).

[81] 86 Fed. Reg. 54,642.

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Corporate Bankruptcy Gets A Shakedown From Mass Tort Trial Lawyers – Lawrence A. Friedman

Posted by on Mar 7, 2022 in Per Curiam

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Corporate Bankruptcy Gets A Shakedown From Mass Tort Trial Lawyers

Lawrence A. Friedman[1]

 

The U.S. corporate reorganization process is, at its core, about restructuring in a manner that maximizes corporate value and then redistributes that value efficiently to creditors of all types (employees, bondholders, etc.), thus staving off liquidation.  The corporate bankruptcy system does this reasonably well.  Insurance companies, the debtor, creditors and sometimes principals of the debtor come together to chart a course forward and keep the company as a going concern.  But a new threat has emerged—mass tort trial lawyers swing into the middle of this exercise and, with some tricks, walk away with cash that might otherwise go to employees, vendors, and other creditors.  The scheme relies on a flurry of marketing to create a massive pile of potential tort liability—none of which is able to be fully verified, challenged, or adjudicated within the confines of bankruptcy proceedings—and is designed to threaten every other stakeholder and net the lawyers a big payday.  This sketchy shakedown playbook imposes huge costs and takes massive value away from other creditors who get crushed in the trial lawyer gold rush.  The best response, short of a major legislative change, would be (1) action through the Judicial Conference to require added up-front disclosure and heightened certification requirements for the lawyers (and others, as the case may be) who help file claims on behalf of tort claimants, and (2) increased judicial oversight through more frequent appointment of claims examiners to review the process by which claims were solicited, evaluated, and submitted, and in doing so help tamp down on abuses.

Bankruptcy in America

The framers recognized that bankruptcy is a natural part of commerce and thus a federal government with the power to regulate commerce would naturally have the power to establish uniform bankruptcy laws.  The power for Congress to establish uniform bankruptcy laws is found in Article 1, Section 8, Clause 4 of the Constitution.  And James Madison, in Federalist 42, explained that “The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question.”

The overall goals of the system haven’t changed much since the Founding, although the design has evolved from the early 1800’s to the modern framework that is embodied in the Bankruptcy Code of 1978.  While early bankruptcy laws, reflecting society at the time, were creditor-centric, the laws in more recent times have more delicately balanced the rights of creditors with those of debtors.  In the consumer context, creditors’ rights are balanced against the debtor’s right to a fresh start through Chapter 7 or 13.  In the corporate context, the creditors’ rights are balanced against the corporation’s ability to restructure and thus avoid liquidation via Chapter 11 and newly minted Chapter 5, which streamlines the reorganization process for small businesses.

Consumer Bankruptcy Fraud and Systemic Reforms

While the bankruptcy system is known for functioning well, there have been historic episodes where the system ran into trouble or abuse and fraud were too prevalent.  For example, twenty-some years ago, there used to be a serious fraud and abuse problem with consumer bankruptcies. Between 1989 and 2001, credit card debt almost tripled, from $238 billion to $692 billion, and the savings rate steadily declined.[2]  The bankruptcy rate jumped 125%.  And this happened during an unprecedented time of prosperity in the United States.  During this period, it was not uncommon for a debtor to have $50,000, $75,000, or even $100,000 of credit-card debt while claiming household goods and furnishings of less than $1,500.  As a Chapter 7 trustee administering these cases, trying to figure out where all this borrowed money had gone, I began randomly exercising my statutory authority under 11 U.S.C. § 704 to take inventory of debtors’ assets and compare them to their bankruptcy schedules.  It turned out all too often that the assets I was inventorying in this process were grossly understated.  Further investigation revealed that it was often attorneys for the debtors who understated the debtors’ assets, playing on the fact that there was really no one auditing or policing the system at that time.

I documented a large portion of this work, and eventually testified several times before the United States Senate regarding my findings, giving evidence of the actual fraud that I had found.  I then became the Director of the Executive Office for United States Trustees in 2002.  We restructured the Office, creating both civil and criminal enforcement divisions to address the fraud that was documented in the consumer segment of the bankruptcy process.  We also created a Significant Accomplishments Reporting System and published annual reports regarding the office’s activities during each fiscal year.  This structural change to the Office had a profound effect on the fraud problem.  During Fiscal Year 2003, the program’s enforcement efforts prevented the discharge of approximately $600 million in unsecured debt.  The program also obtained hundreds of injunctions against bankruptcy petition preparers who had violated the bankruptcy code.  And we refocused the efforts of Chapter 7 Trustees, who ended up closing more than 40,000 cases and distributing more than $1.5 billion in funds to creditors.

Congress then passed the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005.  The Act, which is still in effect, contained provisions that created a means test to ensure that debtors were placed in the proper Chapter of the Code.  Pursuant to the Act, attorneys are now required to certify that they have made a reasonable inquiry into the information they place in the schedules of debtors. And there are limitations on who can prepare petitions for debtors, with limits on fees for non-attorney petition preparers.

The structural reforms we made leveled the playing field for both debtors and creditors while ensuring that everyone played by the rules.  I left my role as the head of the United States Trustee Program in 2005 knowing that the consumer segment of the bankruptcy system was more transparent and thus more trustworthy.

Mass Tort Claims as a Threat to Corporate Bankruptcy Reorganization

The newest fraud problem, and impending peril, comes on the corporate side of the bankruptcy system and involves mass tort trial lawyers bringing their playbook into the bankruptcy courts.  The scheme is simple: mass tort trial lawyers set out to generate a crushing number of previously unknown and unaccounted-for claims against the company that is in bankruptcy.

The mass tort trial lawyers engage a full-scale sales operation to further their goal, employing sophisticated “lead generation” teams that find new potential claimants and “lead conversion” specialists that turn the leads into claims with maximum value.  The “lead generation” companies invest in all advertising channels, from social media advertising, to online search and mobile maps, to television and radio.  These are the types of firms that market “mass tort cases ready to litigate” and offer “zero risk” client acquisition arrangements to help law firms “convert more leads,” retain more clients, enhance those clients’ claims for maximum potential value, and otherwise provide a conveyer belt of clients and claims.

The plan is to bring a deal-crushing stack of potential claims to the bargaining table.  If a case has $8 billion in assets and $10 billion in traditional liabilities, the lawyers might look to bring billions more in unexpected tort claims, none of which are able to be fully verified, challenged, or adjudicated within the confines of bankruptcy proceedings that are designed for other purposes.  This throws a wrench into the traditional restructuring.  It shifts the balance of power in the final deal negotiations by creating a new, burgeoning class of unsecured creditors with claims in the bankruptcy that the debtor and every other creditor have to deal with but which are hard to value with precision within the usual course of bankruptcy proceedings.  The scale of the operation and the new class of unsecured creditors forces insurance companies, the debtor, creditors, and sometimes principals of the debtor back to the drawing board, with the mass tort trial lawyers holding a substantial amount of power.

But fear not, the trial lawyers typically offer an easy solution: create a separate fund of cash to be held in trust as the sole source for resolution of the mass tort claims (including mountains of fees for the lawyers).  The details can get complicated depending on insurance arrangements and the like.  But a typical arrangement entails the debtor offering up a substantial sum certain that is nonetheless a material discount to the total nominal value of the new, burgeoning, hard-to-value class of unsecured mass tort claims.  In exchange for getting guaranteed access to this money, the mass tort trial lawyers agree, as a provision in the bankruptcy plan, to look only to this sum certain amount for satisfaction of their clients’ claims (and the concomitant fee commitments to the lawyers) and to provide the debtor, again as part of the bankruptcy plan, with a bar on additional claims and release for all pertinent future tort claims known and unknown.  The creation of this fund (and payday) for the lawyers dislodges the wrench thrown by the trial lawyers, essentially clears the mass tort trial lawyers and the class of unsecured creditors from the playing field, and allows the restructuring to proceed in the traditional fashion with the existing players.

In a lot of ways, the trial lawyer sketchy shakedown playbook in these cases feels a bit like a case of greenmail, the Wall Street tactic that was popular in the 1980s, where a corporate raider buys up shares in a company, threatens a hostile takeover, and then agrees to walk away, sell the shares, and drop the takeover threat when management agrees to purchase the raider’s shares at a special, premium price.  Like with greenmail, the mass tort trial lawyers initiate aggressive maneuvers that threaten existing participants and then accept a targeted payday in exchange for ceasing the aggressive maneuvers and letting the existing participants continue as before.  More specifically, the mass tort trial lawyers use their marketing operations to introduce a threat to every other stakeholder in the process who had predictable expectations of how the bankruptcy would proceed—the “nice bankruptcy process you have here, would be terrible for something to happen to it” moment—and the lawyers then accept a guaranteed pay day from existing creditors who have strong incentive to go along with an offer that can buy peace at a discount to the new stack of unsecured claims with the value-add of the mass tort lawyers giving what amounts to a sweeping injunction against future claims and any future effort to try the same maneuver.[3]  Put simply, the mass tort trial lawyers obtain a pay day in exchange for (1) undoing a threat to existing stakeholders that the lawyers themselves helped generate and (2) providing an effective bar on any similar threat coming forward in the future.

Tragic Vignette: The Boy Scouts of America Bankruptcy

While resolution of mass tort claims within the bankruptcy process has its roots in asbestos litigation, silicone breast implants, and (more recently) the Purdue Pharma opioids bankruptcy, the current Boy Scouts of America Bankruptcy in Delaware is a searing vignette of how these issues play out in a dramatic case with compelling victims and vast sums of money at stake.[4]

At the center of the Boy Scouts bankruptcy are sexual abuse claims.  Abuse allegations had dogged the Boy Scouts of America for years, with allegations and litigation growing after a landmark case in 2010 that resulted in $19.9 million in damages and a court-ordered release in 2012 of internal files on reports of abuse by Boy Scouts of America volunteers.[5]  The bankruptcy in 2020 was explicitly designed to reach a resolution of the ongoing abuse claims and compensate victims.[6]

At the time of the initial bankruptcy filings, the number of actual lawsuits filed by abuse claimants was less than 300, with the number expected to grow to about 2,000.[7]  The mass tort trial lawyers then walked in and flipped the proceedings upside down with upwards of 80,000 new sexual abuse claims.[8]   More than 55,000 came from a group of 10 law firms that branded itself as the Coalition of Abused Scouts for Justice, entering the case in a concerted push that has generated tension with the official Torts Claimant Committee that the Court originally assigned to speak on behalf of victims.[9]

The scale of the number of new claims has produced a to-be-expected series of allegations from all corners of the case regarding questionable behavior and the tactics involved.  There have been repeated clashes between the Tort Claimant Committee and the Coalition of Abused Scouts for Justice.  There have been skirmishes over the content of the advertising the mass tort lawyers are deploying, with the Boy Scouts alleging that mass tort lawyers are disseminating false and misleading information about the eventual payout and the claim-filing process in order to sign up victims who might otherwise file a claim without a lawyer or prefer to remain anonymous and out of the case.[10]  And there have been allegations from certain insurance carriers that mass tort lawyers in the case cut corners in filing thousands of unvetted, potentially fraudulent claims.[11]  The judge in the case, Chief Judge Laurie Selber Silverstein, has stepped in more than once to police the tactics and maneuvering, including on the question of the misleading advertisements, where she made clear that, at least as to some of the allegations, “the statements are false and misleading and shall be removed.”[12]

With these contours, it is no surprise that the mass tort trial lawyers are now in position— consistent with their sketchy shakedown playbook—to hold up the proceedings in exchange for a massive payday, that the costs of the proceedings themselves are skyrocketing, and that there is now a real risk that all of this will dilute the money available for the original victims whose claims were the impetus for the bankruptcy filing in the first place.[13]  For example, recent reports are that the bill for the Boy Scouts’s professionals and those hired by the official creditors’ committees will be more than $205 million, which is approaching the size of the trust for survivors that has been part of ongoing settlement discussions.  Experts have noted with alarm that the bills for lawyers and others in connection with the fraught proceedings are on a path to being more than 40% of the Boy Scouts of America’s self-reported assets, whereas in past mega-bankruptcies the fees are more like 2-3%, and certainly less than 10%.[14]

Stopping the Abuses and Helping Victims

Make no mistake, there is a real problem here.  Corporate bankruptcy reorganization is about dividing the limited assets of a distressed company.  The mass tort trial lawyer gambit here nets the lawyers and their marketing teams a big payday, but it imposes huge costs and takes massive value away from other creditors, including employees, vendors, and—as in the case of the Boy Scouts bankruptcy—real victims who are getting crushed in the trial lawyer gold rush.

One systematic way to respond to the problem here is legislation from Congress.  Congress could pass legislation to try and force disclosure of how claims are generated and otherwise more aggressively regulate the full-scale sales operations that the mass tort trial lawyers use to run their gambit in these bankruptcy cases, for example.  But, even setting aside other concerns such legislation might raise, relying on Congressional action doesn’t often produce high hopes for solving real world problems in a timely fashion.  As recent events in Congress have demonstrated, the path forward for any substantive, non-mandatory legislation, particularly judicial reform legislation, is questionable.  Passing the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005 took nearly 10 years during a different time in terms of Congressional cooperation and ability to forge bipartisan consensus around reforms to courts.

Another potential avenue for structural reform in this area, short of legislative action, would be action through the Judicial Conference’s Committee on Rules of Practice and Procedure to require more up-front disclosure and heightened certification requirements for the lawyers (and others, as the case may be) who help file claims in the bankruptcy process on behalf of tort claimants.  The Rules Enabling Act, 28 U.S.C. §§ 2071-2077, authorizes the Supreme Court of the United States to prescribe general rules of practice and procedure for the federal courts, including the bankruptcy courts.  Related to this authority is the power that Bankruptcy Rule 9009 gives to the Judicial Conference to prescribe the official forms that, pursuant to the Rule, shall be used in federal bankruptcy proceedings without alteration (except as otherwise provided in the bankruptcy rules, in a particular Official Form, or in the national instructions for a particular Official Form).[15]

Changing the pertinent Bankruptcy Rules themselves to heighten oversight of the claim-generation process—for example, by requiring that third-party providers employed by mass tort trial lawyers be retained subject to an order of the bankruptcy court (like any other professional employed in furtherance of the bankruptcy), with the estate as the locus for payment and therefore greater transparency—would be a two- to three-year process (likely as a complement to updates to the Official Forms, as discussed below).[16]  The Advisory Committee on Bankruptcy would evaluate the proposal in the first instance, seek permission from the full Judicial Conference’s Committee on Rules of Practice and Procedure, better known as the Federal Rules Committee, to publish a draft of any contemplated amendment that the Advisory Committee thought worth pursuing, and then choose ultimately to transmit the amendment as contemplated to the full Federal Rules Committee (or not) based on comments from the bench, bar, and general public.  The Federal Rules Committee would then independently review the findings of the Advisory Committee and, if satisfied, recommend changes to the Judicial Conference itself, which in turn would recommend the changes to the Supreme Court of the United States (or not), at which point the Supreme Court would consider the proposal and ultimately be the entity to promulgate any change to the pertinent rules.

There is also a complementary path that the Federal Rules Committee could follow while full-scale rule changes were in process: changing the Official Forms for the federal bankruptcy proceedings.  This is how the Federal Rules Committee tackled some meaningful reform efforts when I was an ex officio member during my tenure as Director of the Executive Office for United States Trustees.  In the aftermath of the high-profile National Mortgage Settlement, the Federal Rules Committee revamped the official proof of claim form for mortgage debts, changing how the official form addressed deficiencies and how claims that might change based on contractual language are treated in the filing process—for example, mortgage claim holders must now give notice in the bankruptcy case in advance of any change in the amount of the monthly claim amount.[17]  Similarly, after the Supreme Court held that the Fair Debt Collection Practices Act did not apply to the filing of a proof of claim form in bankruptcy in Midland Funding, LLC v. Johnson,[18] the Federal Rules Committee revamped the official proof of claim form to require a prominently placed clear statement disclosing that the debt may be subject to legal defenses.  In both these instances, the changes to the Official Forms added additional requirements, disclosures, and detail in the initial claim-filing process to serve an information-forcing function and add transparency and trust to the system where it might have been lacking before.  This same approach could be deployed in a matter of months in response to the current mass tort problems, with real systematic benefits.

Yet another expedient and meaningful option for addressing the real concerns here would be for bankruptcy judges to increase transparency through proactive appointment of claims examiners.  Bankruptcy judges are in a position to do this right away.  They have the power to appoint claims examiners pursuant to 11 U.S.C. § 1104.  And this would not be a wholly novel approach.  The use of examiners has grown dramatically since the United States Trustee Program sought the use of them in Enron, WorldCom, and Adelphia, and the appointment of examiners for particular matters within an ongoing bankruptcy proceeding (such as examiners to shed light on fees sought by all professionals in a case) is not uncommon.  Examiners can serve many purposes, but the common theme is that they do not work to fully adjudicate questions in their topic area, but instead perform an investigative function and file detailed reports regarding the matters they were tasked with investigating.  These reports serve many beneficial purposes.  For example, they help consolidate key information, aiding with eventual discovery and other related reviews, including any involvement by other departments within agencies like the Department of Justice and the Securities and Exchange Commission.  And, perhaps most importantly, the examiner reports, which can often be multi-volume affairs, pull back the curtain to shine light on what is actually happening in the bankruptcy proceedings or what precipitated the debtor’s insolvency.

The appointment of claims examiners in cases where large numbers of tort claims are brought into the bankruptcy proceedings would shed light on who is submitting the unsecured mass tort claims, how the claims were solicited, sourced, and evaluated prior to submission (if at all), what representations have been made to claimants, and whether victims are being subjected to abuse or mistreatment in connection with the sourcing and submission process.  This would help reveal questionable behavior and help courts take corrective action in response.  A claims examiner is the best way to decipher how a few hundred actual and expected claims suddenly balloons to become over 80,000 claims, what fees are reasonable in such scenarios, and whether judicial intervention is needed to protect victims from their own lawyers.  In addition to serving a responsive function in these cases, the increased transparency that systematic use of claims examiners would drive is exactly what is needed to help tamp down and dissuade future abuses.

*                 *                 *

The problems creeping into corporate bankruptcy because of mass tort trial lawyers are serious.  The damage to victims and other creditors is real.  As the Boy Scouts of America bankruptcy is illustrating in stark fashion, real victims are getting crushed in a mass tort trial lawyer gold rush that imposes huge costs and takes massive value out of a system that is meant to divide the limited assets of a distressed company.  We can and should respond.  Courts, judges, and other public officials should take action now to increase transparency, expose the forces behind the problems, and respond in an appropriate fashion in order to protect the system and victims.

 

 

[1] Lawrence A. Friedman is the Managing Member of Friedman Partners LLC.  He was the Director of the Executive Office for U.S. Trustees from 2002-2005 and prior to that served as a Chapter 7 bankruptcy trustee administering more than 10,000 bankruptcy cases.

[2] Tamara Draut & Javier Silva, Borrowing to Make Ends Meet, Demos (Sept. 2003), https://www.demos.org/sites/default/files/publications/borrowing_to_make_ends_meet.pdf [https://perma.cc/HPC2-XBL5].

[3] The bar on future claims combined with the releases for all future claims known and unknown that are the norm in this type of arrangement are not without controversy.  There are also constitutional questions, as demonstrated by the current litigation in the United States Court of Appeals for the Second Circuit related to Purdue Pharma and the Sackler Family getting releases from claimants who do not yet even know they have a claim.  See In Re: PURDUE PHARMA, L.P., No. 22-85 (2d Cir. 2022).

[4] In re: Boy Scouts of America and Delaware BSA LLC, No. 20-bk-10343 (U.S. Bankruptcy Court for the District Court of Delaware).

[5] See, e.g., Becky Yerak & Soma Biswas, Boy Scouts Draw Plan to Settle With Sex-Abuse Victims, Exit Bankruptcy. Here’s What We Know, The Wall Street Journal (Sept. 15, 2021), https://www.wsj.com/articles/the-boy-scouts-bankruptcy-case-what-to-know-11630062000 [https://perma.cc/6N79-MDJ9]; Cara Kelly, Nathan Bomey, & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy In The Face Of Thousands Of Child Abuse Allegations, USA Today (Feb. 18, 2020), https://www.usatoday.com/in-depth/news/investigations/2020/02/18/boy-scouts-bsa-chapter-11-bankruptcy-sexual-abuse-cases/1301187001/ [https://perma.cc/8Z4B-LSTS].

[6] See, e.g., Randall Chase, EXPLAINER: What’s At Stake In Boys Scouts Bankruptcy Case, Associated Press (Aug. 11, 2021).

[7] Cara Kelly, Nathan Bomey, & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy In The Face Of Thousands Of Child Abuse Allegations, USA Today (Feb. 18, 2020), https://www.usatoday.com/in-depth/news/investigations/2020/02/18/boy-scouts-bsa-chapter-11-bankruptcy-sexual-abuse-cases/1301187001/ [https://perma.cc/8Z4B-LSTS].

[8] Cara Kelly, Boy Scouts of America Bankruptcy Update: Key Agreement Reached Ahead Of Confirmation Hearing, USA Today (Dec. 15, 2021), https://www.usatoday.com/story/news/investigations/2021/12/15/boy-scouts-bankruptcy-update-what-know-settlements-more/6439683001/ [https://perma.cc/858J-CF3D].

[9] Rachel Axon, Nearly 90,000 File Sexual Abuse Claims Against The Boy Scouts in Unprecedented Case, USA Today (Nov. 16, 2020), https://www.usatoday.com/story/news/investigations/2020/11/16/boy-scouts-face-nearly-90-000-sex-abuse-claims-bankruptcy-case/6284153002/ [https://perma.cc/3PZX-Z9Z6]; Rachel Axon & Cara Kelly, Boy Scouts Abuse Claims May Become Largest Case Against A Single National Organization, USA Today (Oct. 23, 2020), https://www.usatoday.com/story/news/investigations/2020/10/23/boy-scouts-sex-abuse-claims-may-grow-tens-thousands/3718751001/ [https://perma.cc/NAF5-WFRC].

[10] See, e.g., Elise Hansen, Boy Scouts Seek To Curtail ‘Misleading’ Abuse Claim Notices, Law360 (Aug. 25, 2020), https://www.law360.com/articles/1304420/boy-scouts-seek-to-curtail-misleading-abuse-claim-notices [https://perma.cc/AGF4-GKZT]; Eric T. Chaffin, Amid Increasing Lawsuits, Boy Scouts Complain About Legal Ads, New York Legal Examiner(Oct. 1, 2020), https://newyork.legalexaminer.com/legal/amid-increasing-lawsuits-boy-scouts-complain-about-legal-ads/ [https://perma.cc/HF5G-RTJ7]; Andrew Karpan, Firms Told To Stop Running ‘Misleading’ Ads In Scouts’ Ch. 11, Law360 (Sept. 17, 2020), https://www.law360.com/articles/1311173/firms-told-to-stop-running-misleading-ads-in-scouts-ch-11 [https://perma.cc/4H2A-6LVU].

[11] Max Mitchell, Plaintiffs Firms Flooded Boy Scouts Bankruptcy With Unvetted, Potentially Fraudulent Civil Claims, Insurers Allege, Law.com (Feb. 4, 2021), https://www.law.com/thelegalintelligencer/2021/02/04/plaintiffs-firms-flooded-boy-scout-bankruptcy-with-unvetted-potentially-fraudulent-civil-claims-insurers-allege/ [https://perma.cc/6ABZ-AQEL].

[12] Andrew Karpan, Firms Told To Stop Running ‘Misleading’ Ads In Scouts’ Ch. 11, Law360 (Sept. 17, 2020), https://www.law360.com/articles/1311173/firms-told-to-stop-running-misleading-ads-in-scouts-ch-11 [https://perma.cc/2QRH-KJHU].

[13] Cara Kelly, Big winners in the Boy Scouts bankruptcy? Attorneys, who could walk away with $1 billion, USA Today (Dec. 10, 2021), https://www.usatoday.com/story/news/investigations/2021/12/10/boy-scout-bankruptcy-sexual-abuse-settlement-attorney-fees/8887578002/ [https://perma.cc/P5BK-UDCJ].

[14] Id.

[15] Permitted Changes to Official Bankruptcy Forms, United States Courts, https://www.uscourts.gov/rules-policies/about-rulemaking-process/permitted-changes-official-bankruptcy-forms [https://perma.cc/A5PS-UBUC].

[16] About the Rulemaking Process, United States Courts, https://www.uscourts.gov/rules-policies/about-rulemaking-process [https://perma.cc/N42G-94EJ].

[17] See, e.g., Bankruptcy Rule 3002.1, Notice Relating to Claims Secured by Security Interest in the Debtor’s Principal Residence, and 2011 Committee Notes on Rules.

[18] 137 S.Ct 1407 (2017).

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