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2019 National Lawyers Convention

Originalism

November 14 — 16, 2019

The 2019 National Lawyers Convention will take place on Thursday, November 14 through Saturday, November 16 at the Mayflower Hotel in Washington, D.C. For over three days, the convention will feature four Showcase Sessions discussing the Convention Theme of Originalism, sixteen breakout sessions sponsored by the Practice Groups, the Twelfth Annual Rosenkranz Debate, the Nineteenth Annual Barbara K. Olson Memorial Lecture, and the 2019 Antonin Scalia Memorial Dinner. Register now!

LodgingFeesCLE


2019 Antonin Scalia Memorial Dinner

With:

Collection of the Supreme Court of the United States
Collection of the Supreme Court of the United States

Hon. Brett M. Kavanaugh
Associate Justice,
Supreme Court of the United States

Union Station
50 Massachusetts Avenue NE
Washington, DC 20002
Thursday, November 14, 2019
Reception - 6:00 p.m.
Dinner - 7:00 p.m.
(ticketed event) BLACK TIE OPTIONAL
SOLD OUT


Nineteenth Annual Barbara K. Olson Memorial Lecture

Featuring:


Hon. William P. Barr

The Mayflower Hotel
1127 Connecticut Avenue NW
Friday, November 15, 2019
5:00 p.m.
(ticketed event)
SOLD OUT


Twelfth Annual Rosenkranz Debate

RESOLVED: The free exercise clause guarantees a constitutional right of religious exemption from general laws when such an exemption would not endanger public peace and good order.

Featuring:


Prof. Philip A. Hamburger
Maurice and Hilda Friedman
Professor of Law,
Columbia Law School
 

          and

 

 

 

 

 


Prof. Michael W. McConnell
Richard and Frances Mallery
Professor of Law and Director,
Constitutional Law Center,
Stanford Law School

The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 16, 2019
12:30 p.m.


Address by

Collection of the Supreme Court of the United States
Collection of the Supreme Court of the United States

Hon. Neil M. Gorsuch
Associate Justice,
Supreme Court of the United States

The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 16, 2019
4:30 p.m.


Showcase Sessions Discussing the Convention Theme:
"Originalism"

  • What Is Originalism? 
  • Why or Why Not, Be an Originalist? 
  • Does Originalism Protect Unenumerated Rights? 
  • Originalism and Precedent

Practice Group Breakout Sessions

  • Gundy v. U.S. and the Future of the Nondelegation Doctrine
  • Stare Decisis in Civil Rights Cases 
  • The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals
  • The Wisdom and Legality of Sanctuary Cities 
  • Originalism and Constitutional Property Rights Jurisprudence 
  • Horizontal Federalism: May States Project their Sovereignty Beyond Their Borders? 
  • Money and the Constitution 
  • Freedom of Speech and Private Power
  • Economic Law & Policy as a Tool of National Security
  • Originalism and Changes in Technology
  • 51 Imperfect Solutions for the Ethical Practice of Law
  • Arbitration and #Metoo
  • Is It Time to End Life Tenure for Federal Judges?
  • The Future of the Establishment Clause in the Roberts Court
  • Telecommunications Law and Policy
  • Originalism, Populism, and the Second Amendment Right to Keep and Bear Arms

Up to 20 hours of Continuing Legal Education (CLE) credits available. Direct all CLE inquiries to the Federalist Society's national office - (202) 822-8138 or email [email protected].


Lodging

The Mayflower has sold out of all available rooms in the reserved room block at our contracted rate of $279. There may still be rooms available at the hotel's prevailing rate, but otherwise we suggest registrants look into other area hotels.

Reserve early! Washington, DC hotels are becoming booked very quickly for the fall convention season. To reserve overnight accommodations for the Convention, please contact The Mayflower directly:

The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

Reservations Toll Free: 877-212-5752
Reservations Local Phone: 202-347-3000

Reservation Link: https://book.passkey.com/event/49941504/owner/1261/home

Cut off Date: October 21, unless rooms sell out sooner.

Inquire about the special rate of $279 per night offered to Federalist Society Convention registrants. Specify "Federalist Society" when contacting the Mayflower. All rooms at this rate are now sold out.


Convention Fees

Sessions Package* 
Private Sector
Non-Member
$575
Private Sector
Active Member
$450
Student/Non-Profit/Government
Non-Member
$350
Student/Non-Profit/Government
Active Member                                                
$250


*The Sessions Package includes all three days of sessions, CLE, and lunches as well as the Annual Rosenkranz Debate & Luncheon.

Individual Day** 
Non-Member$250 per day
Active Member$200 per day
Student Non-Member$60 per day
Student Active Member                                                $50 per day


**Individual day purchase includes that day’s sessions, CLE and lunch.  It does not include social events.

Social Events*** 
Antonin Scalia Memorial Dinner
Non-Member
SOLD OUT
$250
Antonin Scalia Memorial Dinner
Active Member
    SOLD OUT
$200
Barbara K. Olson Memorial Lecture & Reception
Non-Member
    SOLD OUT
$150
Barbara K. Olson Memorial Lecture & Reception         
Active Member
    SOLD OUT
$100

***The social events are now sold out. You may add yourself to the waitlists for the Antonin Scalia Memorial Dinner and the Olson Lecture & Reception. If a spot opens up, you will be contacted and confirmed before any payment is processed.

CANCELLATION FEE OF $100 AFTER MONDAY, NOVEMBER 4.
NO REFUNDS WILL BE GIVEN AFTER MONDAY, NOVEMBER 11.


Media inquiries should go to Peter Robbio at [email protected].

 

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9:00 a.m. - 9:45 a.m.
Opening Remarks with Governor Ron DeSantis

2019 National Lawyers Convention

Topics: Federalism • Federalist Society • Separation of Powers • State Courts • State Governments • Supreme Court • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

Event Video

Listen & Download

Description

On November 14, 2019, The Federalist Society opened its 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC with a speech by Governor Ron DeSantis (FL). Governor DeSantis focused his remarks on the Florida Supreme Court and the balance of powers in the federal government.

*******

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Featuring:

  • Hon. Ron DeSantis, Governor, Florida
  • Introduction: Mr. Leonard A. Leo, Co-Chairman and Executive Vice President, The Federalist Society

Speakers

Event Transcript

Leonard Leo:   Once again, good morning. It's my privilege to welcome all of you to this year's National Convention of The Federalist Society. As in years past, the next several days will be a great opportunity to visit with old friends and to make some new ones and, in the Society's long-standing tradition of more than 35 years, to witness all sorts of thoughtful discussion and spirited debates about the current state of our legal culture.

 

      Now this year, we decided to do something a little different: build the theme of the Convention around originalism.

 

[Laughter]

 

Now, before you head for the backdoors for another cup of coffee, let me offer two reasons why this evergreen subject is worth exploring here and now and again. First, hard as it may seem to believe, it's been almost four years since the most prominent champion of originalism, Antonin Scalia, passed away unexpectedly.

 

Since then, there has been ample opportunity for many to feign the mantle of originalism. It's very fashionable these days to talk a high game in terms of embracing originalism, but anyone who followed Justice Scalia's lifelong refinement and defense of this doctrine knows that this is tough and tricky work. Simply saying you're an originalist doesn't make it so. And this Convention's sessions will hopefully define the area more precisely.

 

The second point I would make is that the broader public needs to understand why some stand up for originalism. Justice Scalia always believed it's because originalism's preservation of the structural constitution is the best means to protecting the individual worth and dignity of every human person, which are at greatest risk when structural limitations on government powers are not respected and enforced. And I suspect there will be some discussion of this as well over the next couple of days.

 

But before we embark on the panel discussion that addresses the specifics of originalism, we're going to open the conversation with remarks by someone who has long been an adherent of the originalist enterprise, going all the way back to his days as an active member of the Harvard Law School Federalist Society.

 

Today, he's putting originalism in action as Florida's 46th Governor, just recently appointing two justices to the Florida Supreme Court through a process that placed great emphasis on perspective candidates' fidelity to originalism and textualism and other aspects of the proper judicial role. He'll soon be at it again because President Trump quickly stole his two appointments to the Florida Supreme Court, soon creating another search for committed Floridian originalists.

 

Please join me in welcoming an individual with an extraordinary record of dedicated public as well as military service, Governor Ron DeSantis of Florida.

 

Hon. Ron DeSantis:   Thank you. Thanks, Leonard. Thank you, guys. Thanks so much. Great to be with you. I get to come back in Washington. I'm a recovering Congressman, and so people will ask me, "Are you happy to be out of D.C.?" And I say, "Is the Pope Catholic?" Of course, I'm happy to be out of D.C. And my swamp is warmer right now than your swamp is; it's about 75 degrees in Palm Beach, so—but it's good to be here.

 

      One of the reasons I ran for governor is because we had three pending vacancies because of age restrictions on our state supreme court. There had been a lot of, I think, positive things that had happened in Florida with respect to limited government, school choice, all these things, but one of the thorns in the side had been you still had an activist majority on the state supreme court who would rewrite laws, rewrite the Constitution, and basically showed very little respect for the political branches.

 

And that was something that I think was not only was -- I think that was bad for the constitutional system in Florida, but I think it was also bad for some of the things we were trying to do in terms of economic growth because you really didn't have a lot of certainty. The legislature could pass reforms, and they'd be uprooted pretty quickly.

 

      So we had a seven member court, four justice majority, but three of those four were effectively termed out. And so I came in and was able to do, actually, three appointments within my first few weeks of office. Now, in Florida, the way this works is not like it is with federal judicial confirmations. We use what's called a judicial-nominating commission. And so this is actually, I think, still during the governor gubernatorial election where they opened applications because they knew there were these three vacancies would be there so people could apply. The Commission goes through it. I think they interview everybody that applies and then they whittle it down to a certified list.

 

      So they had a certified list that was done sometime in December during the gubernatorial transition given to me. And all you do in Florida at that point is just pick the names, and they're on the court. Sign their documents and they're on. There's no Senate confirmation, no anything beyond that. And so this was something that I took very seriously.

 

So we had all eleven people came down to Florida. I had a group of people that I trusted, Leonard was one of them. And I wasn't involved at this point. And they just interviewed everyone, gave me an assessment, and then I personally interviewed all 11 one-on-one. And then determined -- so this is some time, probably, in like mid-December, and then at that point, I figured okay, I think I have my three people.

 

But I didn't tell anyone who I picked, because I knew it would leak and it was a situation where if I were to announce it before I took office, we were just coming off the Kavanaugh thing. I didn't want them to be pinatas and just get attacked or whatever. Once I was in, I could sign it, they’re on the court, and that's just kind of the way it was.

 

So I didn't tell anyone because I just didn't want it to leak. And my wife even told me, "Just don't tell me." She's like, “I don't want to know what it is.” I'm like, "Okay." So we had it. You know, you're going on. You're doing whatever you need to do to put people at the head of agencies, all these other things, have an agenda, come out of the gate very quickly. So there's a whole bunch of other stuff happening. So we end up going in. I'm inaugurated January 8. You know, you go, you take an oath. You give the speech, whatever. And then you have an inaugural ball.

 

Well, we did all this stuff. Actually, my son at the time, we baptized him in the governor's mansion right after the swearing in, which was special. So my wife's getting ready for the inaugural ball. I am just sitting in the mansion wondering how did I get here type of deal. But then it dawned on me that the next morning, I was supposed to announce my first Supreme Court pick, but I still had not told anybody who I was going to pick, including the nominee herself.

 

[Laughter]

 

And I think she's here, but Justice Lagoa, who as Leonard mentioned, was one of the justices from our Supreme Court who's gotten tapped to be on the Eleventh Circuit and will be confirmed, I think, by the full Senate very quickly, but -- so I called Barbara like 5:30 the day before and said look, if you can show up in Miami at 10 AM tomorrow, I'll put you on the Supreme Court.

 

[Laughter]

 

And she did. And she gave a great speech, but she was up late because I did not give her a lot of lead time on that one. So we ended up doing it and then we put two other great justices on the court. One of which, Robert Luck, is also nominated for the Eleventh Circuit. So they will have been on the Supreme Court less than a year, about 11 months. And then they will go up to the Eleventh Circuit, which is well-deserved, and I think those circuit courts are very, very important.

 

So this was important for Florida. I think that we are on a good path. But I think that it was -- obviously, I took it seriously. But you had a lot of people working through Florida for a long time to develop a really good bench of legal talent. I think we've got a lot of great people. And so as good as Barbara and Bobby Luck have been, I don't know if I'll quite get to that level, but we'll get pretty close because we got a lot of really good people to choose from. So within thirteen months, most likely, because our process now for these remaining two will probably go to February, I will have made five appointments in 13 months

 

And to put that in perspective, two of my predecessors, Jeb Bush and Rick Scott served a combined 16 years, and they made a combined three appointments in 16 years. So sometimes these things just happen, so I think it's neat. And I also -- obviously, here in Washington, one of the great success stories of the Trump administration has been their federal judicial appointments. You have two, of course, Supreme Court justices and a really fast clip of confirming circuit courts of appeals judges, which many of you know is sometimes just as important given the small caseload of the Supreme Court. And I think that's a great accomplishment for the President.

 

I think Senators like McConnell and Grassley and Lindsey Graham deserve a lot, a lot of credit for that. And I think there's been an emphasis on finding judges who feel that originalism and textualist approach is the right way to do it. The reason why I think that's the right way to do it is because you have to have some objective measure to go by. It can't just be flying off the seat of your pants, philosophizing and imposing whatever idiosyncratic views you have on society under the guise of constitutional interpretation. So originalism provides a mechanism to cabin judicial discretion, which I think is very, very important.

 

And one of the frustrations I had in the Congress was I think the Founders were pretty clear about how the constitutional system was arranged and would operate. They viewed -- you had three separate branches. One branch was not necessarily subordinate to the other so when they say they were equal, in that sense they were. But they certainly were not equal in terms of the powers that were assigned to the branches.

 

There was qualitative and quantitative differences between the branches. Clearly, they believed -- Madison said the legislative authority predominates in a republican system of government. If you look at the powers assigned in Article I of the Constitution, the power of the purse, so the Executive can do what they want. You take away the money, the Executive can't do it.

 

So the Congress had robust powers, and I think the Founders viewed the Congress as the focal point in constitutional government. They thought the Executive would have an important role, but that would really depend on the exigencies. Obviously, if you're engaging in any type of military conflict, President's Commander in Chief in foreign affairs, President had a very, very important role. But ultimately, even though the president could veto acts, the legislature could check that veto by overriding the veto.

 

And so the President was important, but they also had just rebelled against the king, and so they did not envision the Executive as it is today with the massive bureaucracy. And then, of course, they thought the courts were important, but as Hamilton said by far the weakest of the three branches because it could exercise neither force nor will but merely judgment. It ultimately depends on the Executive to enforce its judgments. And so that was, I think, their view, so the Court would play a role, but it would not be the dominant role in the constitutional system.

 

Well, I think today, as we looked and having served in the Congress, to me, Congress is by far the weakest of the three branches. If you look, its most robust power, the power of the purse, it effectively has just put on autopilot by -- a lot of the spending is just automatic anyways. And then the rest, they use continuing resolutions to just basically perpetuate government and perpetuate the status quo.

 

Very rarely are they actually using the power of the purse to discipline the Executive Branch, to reign in any type of Executive overreach. And that is true regardless of who's in which party or the other has been in. And so you have a really neutered, I think, Legislative Branch. I mean, really, I did more in one week as governor than I did in six years as Con -- and I was active. I worked hard. I just -- they don't use the authority they have in an effective way and I think that the constitutional system is discombobulated as a result.

 

Of course, the Executive Branch, when you look at what the President's able to do, some of that is just because different circumstances. We're more involved internationally than we were when the Founders envisioned the Constitution. So there's a huge power there but also the bureaucracy.

 

Most of the people that would come to see me when I was in Congress and had a problem with something with the federal government, did not have a problem with anything we were actually passing in Congress. It was the agencies that were doing this or doing that, and so most of the lawmaking was really being done by the Executive Branch agencies. And so you've had a massive bureaucracy grow, and you have the Executive function really exercising both legislative and in some cases judicial powers, which is obviously not something the Founders would've wanted to do.

 

And then you have the Court which in some respects -- in some instances, I think, sees itself as being almost superior to the other branches and superior to the Constitution itself even and has gotten involved in a whole host of different things that I think they probably had no jurisdiction to deal with in the beginning. But certainly, the Court has more of an impact than the Congress does day in and day out, even only accepting 80 cases a year.

 

So that's kind of the system, and so it just caused me to reflect. I think it's great that you have two Supreme Court justices here and all these circuit judges. But the fact that that is viewed as a major achievement, to me, suggests that the courts are exercising too much power in the first place.

 

You go back and look at --

 

[Applause]

 

You go back and look at some of the past -- I think Joseph Story when Madison put him -- nominated -- I think he was confirmed within five days. You look at Stephen Field, during the Civil War, he's a Democrat from California. Lincoln nominates him. Within a week, he's confirmed. Robert Jackson, right before World War II, FDR. And the Court had started to get more active then, but, still, I think he was confirmed in like three weeks.

 

And so the fact that now we have all these titantic struggles about who sits on that shows that the Court is playing too big a role in our society. And there's some that say well, if we just get enough originalists on the court, then -- on the Supreme Court and the lower courts, then everything can be made right and everything will be good. And I think look, that would be beneficial, don't get me wrong. But I have to think back to Federalist 51.

 

The whole premise of the system is you're not going to have the right people in the positions of power. That's why they designed the system the way they did because they said, “If angels were to govern men, then no government would be necessary.” And that is something that I think they believed at -- the Founders believed at their core, that you had to have a system of checks and balances to keep each branch in line.

 

And so, for me, I want to see great judges, I think that's important. But I also want to see a system that works even when you have the wrong people in positions of power. And I think that we see some of the problems here, so I think judicial powers is too robust right now. And I think the checks upon it are just simply inadequate. I think part of it is you can go back to the original design and see the checks on it. But then also the checks that are there really aren't used by the Congress anymore. And I think that one of the areas—and I'm sure you guys will discuss it at this conference—that brings us into focus is the use of these nationwide injunctions by one district judge.

 

And so you have a national policy that's put in place by the Executive Branch, and then you have a flurry of lawsuits. So the Executive wins in Boston. They win in New York. They win in Atlanta. They win in Minneapolis. They win in Las Vegas, but they lose in San Francisco. And so guess what? You win all those other ones, you lose in San Francisco, so the whole policy is put on ice.

 

And we can sit there and say oh yeah, these are just rogue districts judges. They're part of the legal resistance. They're resisting Trump and all this stuff. And the Supreme Court will correct it. They have corrected a lot of these. And that is true, but what happens in the meantime? You got two years that goes by where the policy is frozen just because you have one district judge that puts it on hold?

 

To me, one district judge issuing a nationwide injunction is not a legitimate use of judicial power. I'd like to see the U.S. Supreme Court reign that in, but I think there's things that probably Congress can do to reign it in. But that's just the thing. I think the checks that are there, jurisdiction stripping, hasn't really proven to be that effective. Hamilton said look, if a judge gets off the rails, he'll get impeached and removed from office. That hasn't really proven to be successful.

 

I think in The Federalist, Hamilton suggests that if the judges get off the rails, then the Executive will just let that decision go but not really enforce it, but again, that's not something that is there. But I think that we're in a situation now where whatever institutional counteraction that the Founders envisioned, that's just simply overwhelmed by the partisan interest that you see now in national politics.

 

And so there may be something that's detrimental to your branch, but if that's more for your team and the partisanship is going in a good direction, then you're willing to see your own branch diminished in order to achieve the more partisan ends. And that goes with both sides. But I think the Founders believed that where you sit was where you were supposed to stand when it comes to institutional power, but that's not really where it is.

 

You do not see a robust defense across party lines of Congress's prerogatives, of the Executive's prerogatives, when those prerogatives are challenged. It's all situational. So the Congress really cares about its lawmaking authority when President Obama is doing some of these more legislative-in-nature executive orders. But then the same people that didn't care about that, they now care about it when the president’s different and vice versa. So that, to me, is just not going to be something that's going to be an effective check.

 

And so I think back -- Lincoln, he had to confront the Dred Scott decision, which is obviously one of the worse cases that the Supreme Court has ever decided, and in his inaugural address, he said that if you have the whole policy of the whole country decided by the Supreme Court based on one lawsuit between two parties, then the people are no longer their own rulers, and they're essentially turning over their authority to this imminent tribunal. And he proceeded to work with Congress.

 

Dred Scott said you cannot prohibit slavery in the territories. Well, the whole Republican Party was founded to prohibit slavery in the territories. So that's kind of like saying that the Republican Party itself was unconstitutional at the time. And so, Lincoln, they went ahead, and they did ban it in 1862. The Congress did that in spite of Dred Scott. But Lincoln had to wrestle with this before he was president because he says okay, if a decision's made, if we just don't respond, don't honor any decision, then you just have lawlessness. So he always honored it with respect to the parties in the case in Dred Scott, but he said, “I'm just not ready to say that this settles our policy for the whole country infinitum.”

 

And he went through different factors in his judgment. He believed that a unanimous decision carried more weight than a split decision. I think Dred Scott was 7-2. He said if the decision broke down on party lines, that he'd be less likely to say that that settled policy for the whole country. And then he said if it was a novel interpretation that was at odds with how previous branches had viewed it—so for example, Congress had enacted a lot of legislation that presumed they had the authority to regulate slavery in the territories—that that would be something that he would consider. But, I mean, this was something that he really, really struggled with.

 

And I don't suggest that there's easy answers to it, but what I would like to suggest is that in our system of government, it's the Constitution that is supreme. It's not the judiciary that is supreme. Courts are part of the constitutional system, but they do not hover above the constitutional system. And the more serious that other political actors take their role, I think the stronger our constitutional system will be.

 

So, I guess, the point I'll make is originalism, I think, is important to figure out how you do constitutional interpretation, how you apply legislative text. But I think, also, I consider originalism to be the structural Constitution and how different people who are actually in these branches are going to use their authority to preserve their own institutional interest. And if we say originalism is only about interpreting a statute or only about interpreting the Bill of Rights, then I think we're leaving so much on the table.

 

And, ultimately, even though an originalist judge, I think, would be more respectful of the separation of powers than a non-originalist judge, we're kind of tacitly still saying that the judiciary is superior to the other branches of government. I don't think that's what the Founding Fathers envisioned, and I don't think that that's what's the best for the country.

 

So members of Congress, if I was still there, I would tell them to take their obligations to protect their institutions seriously and the same thing with the Executive Branch. True originalism means all these branches checking and balancing each other just as the Founding Fathers intended. Thank you very much. Thanks. Appreciate it.

 

[Applause]

 

Leonard Leo:   Thank you very much, Governor. If everyone could please remain in their seats, and we're just going to call up the panelists for the next session.

 

9:45 a.m. - 11:30 a.m.
Showcase Panel I: What is Originalism?

2019 National Lawyers Convention

Topics: Constitution • Founding Era & History • Philosophy • Supreme Court
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Event Video

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Description

On November 14, 2019, the Federalist Society hosted a showcase panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The title of the panel was "What is Originalism?"

While originalism is on the rise today, its content has become fractal with different views of what are the methods of determining a constitutional provision's meaning. This panel would look at the many types of originalism and consider the extent to which the theoretical differences will result in different outcomes.

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Prof. Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
  • Mr. Evan D. Bernick, Law Clerk to the Honorable Diane S. Sykes of the United States Court of Appeals, Seventh Circuit
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Pritzker School of Law, Northwestern University
  • Prof. Christina M. Mulligan, Vice Dean for Academic and Student Affairs and Professor of Law, Brooklyn Law School
  • Prof. Stephen E. Sachs, Professor of Law, Duke University School of Law
  • Ms. Elizabeth B. Wydra, President, Constitutional Accountability Center
  • Moderator: Hon. Amul Thapar, United States Court of Appeals, Sixth Circuit

Speakers

Event Transcript

Hon. Amul Thapar:  Good morning, everyone.  I want to thank everyone for coming to this event. And we are going to start our panel now. We’re going to have a dramatic entrance by President Wydra, but she’s parking her car. This wonderful D.C. traffic that I don’t miss -- and so she’ll be here momentarily. I’m going to start with an intro.

 

      You may wonder why the moderator is giving the intro. We had a call to plan this, and they unanimously voted that I’d give the intro. In law school, they always said the A students would be professors, the B students would be judges, and the C students would be millionaires.

 

[Laughter]

 

      And so the A students wanted to hear the B student go first so they could correct all of my misconceptions about originalism. So the name of the panel is “What is Originalism?” And I thought what better to start with than what is originalism? In its most basic form, originalism is the idea that the Constitution’s meaning was fixed at the time of the Founding, and that this meaning constrains judges. There are many strains of originalism. Indeed, many would say for every three originalists, there are four theories of originalism. And you are about to hear six different theories from the A students.

 

      Today, however, many originalists, and especially originalist judges like myself, believe in original public meaning originalism. In practice, when we are doing this inquiry, we are looking at how the people who ratified the words would have understood them since communication needs both a speaker and an audience. After all, to interpret any document, we look at the words of the document.

 

      Think of how communication works in general. To understand what I am saying right now, your mind is interpreting my words as you understand them. If we want to figure out what something meant 100 years ago, we have to look at how people understood the words at the time. Think about a contract between two parties. To understand what the parties meant, we look at how they understood the words at the time. There’s a great law review by Gary Lawson in the front row called “I’m Reading Recipes” that gets to this exact point, and it’s worth reading.

 

      I also believe originalism is compelled by the oath. As a judge -- and here is the dramatic entrance I promised.

 

[Laughter and applause]

 

      Elizabeth, I said I don’t miss D.C. traffic in Kentucky.

 

Elizabeth Wydra:  It’s terrible.

 

Hon. Amul Thapar:  I also believe originalism is compelled by the oath. And the very first thing you do as a judge is you take an oath. And you should pay attention to the oath. The text of the Oaths Clause in Article 6 supports just that. It says that if we take an oath to this Constitution, it says this being the important word, Constitution, not a constitution of our liking, but this Constitution, again, meaning the words and concepts in the Constitution as ratified and subsequently amended. That is originalism. The Supremacy Clause also uses the word this Constitution. It says this Constitution is supreme and judges are bound by it.

 

      As Randy Barnett says, and I love this saying, “It is the law that governs those who govern us.” In other words, judges and public officials take an oath to this Constitution. Alexander Hamilton made exactly the same point as Professor Barnett in Federalist 27. I think he was kind of reading into the future when he said the Constitution is “the supreme law of the land,” and that “all officers, legislative, executive and judicial will be bound by the sanctity of the oath.”

 

      And the oath is especially important to remember as a judge because as Chief Justice Marshall said, “We have the ultimate say to say what the law is.” And we know all of this because of a more basic point. The Constitution was written, unlike in England. The existence of a written Constitution suggests that we are obligated to follow it. If not, what is the point?

 

      And so now, I will turn to the A students to tell me what I got wrong. And I’ll start with Evan Bernick, who is clerking for the brilliant Judge Sykes.

 

Evan Bernick:  Thank you, Judge. What is originalism? Big question. I spent what was probably an unhealthy amount of time last night trying to formulate a precise and accurate definition that would be uncontroversial. I eventually gave that up and fell asleep and didn’t satisfy myself that I had a definition. So when I woke up this morning, I decided I would set more modest aims for myself. I would say a bunch of things about originalism in general that I believe to be true, some things about my form of originalism that I know to be true, and just see what happens from there. So bear with me.

 

      One way to get a feel for what originalism is is to understand two distinct but related claims that originalists tend to make. The first claim is a descriptive claim: The original meaning of the Constitution is law. The second claim is a normative claim: Public officials ought to follow the original meaning of the Constitution. So if you find yourself in conversation with somebody here today who’s making either or both of these types of claims, you’re probably talking to an originalist. Actually, if you’re talking to anybody in this room today, you’re probably talking to an originalist. That’s a safe assumption.

 

      So what is the original meaning that an originalist says is law? Early originalists tended to talk about the original intentions of the Constitution’s framers. As Judge Thapar pointed out, most originalists today don’t talk that way. They talk about the conventional or public meaning of the Constitution’s text, what a reasonable reader of the Constitution would have understood the various words, phrases, and symbols that make it up to mean at the time that it was ratified. Of course, language is imprecise. Just read Federalist 31. And of course, historical research is hard. It’s not always clear that interpreting constitutional text is going to give you a clear answer to litigated constitutional questions.

 

      So what do you do? Well, originalists disagree. Some originalists argue that originalism’s domain is limited to the interpretation of text, and that whereof originalism cannot speak, it ought to be silent when it comes to the implementation of text. I am not one of these originalists. In my view, following the original law of the Constitution entails not only following the original meaning of the Constitution’s text when it’s clear, its letter, but when it’s not clear, having recourse to the original functions of the Constitution’s text, its original spirit.

 

      So when a public official encounters constitutional unclarity, he should have recourse to the publicly available functions that those who ratified the Constitution into law would have associated with that textual provision at the time it was ratified, and he should formulate a statute, a regulation, or a doctrinal rule that’s designed to implement that text. So there’s the letter, and there’s the spirit.

 

      Now, why should public officials follow either the letter or the spirit of the Constitution? There are a variety of normative arguments for originalism. First is a kind of ontological argument: It follows from the nature of a written Constitution to follow the original meaning of that Constitution. The second is a democratic will or a popular sovereignty type argument: The original meaning of the Constitution expresses the will of the sovereign people, and anything less is undemocratic. The third is kind of a consequentialist argument: Following original meaning will generally lead to results that, all things considered, are better than following some form of non-originalism, whether for the sake of liberty or the rule of law or generalized social welfare.

 

      Picking up on Judge Thapar’s comments, I want to throw one more normative argument into the mix. Originalism equips public officials to fulfill a promissory obligation. Promising is a valuable social institution. Most people think that they ought to keep their promises and that other people ought to keep their promises to them. Every public official makes a promise pursuant to Article 6 of the Constitution to support this Constitution. And there’s no compelling reason to believe that the original public meaning of this Constitution that Judge Thapar has just described differs substantially from the contemporary public meaning of this Constitution that public officials take. You very rarely see public officials claiming that they are bound to support a different Constitution than the one that went into effect in 1788 as validly amended, that they took an oath to a different fundamental entity than did Washington. As a consequence, both the original public meaning of the Constitution and the contemporary public meaning of this Constitution refer to a historically situated document that received its meaning when it was ratified into law.

 

      Now, not all promises carry a significant moral obligation. Think of an assassin’s promise to kill someone. And I’m prepared to say that had we an evil Constitution that required systematic injustice, I’m not necessarily sure that a promissory obligation could be supported on the basis of an oath to follow it. However, we have a reasonably, if imperfectly just Constitution that provides for a scheme of social cooperation that secures the liberty and the welfare of the people who live under it reasonably well, better than any reasonably available alternative. And that’s enough to support a moral obligation on the part of public officials to do as they have promised to ensure that the Constitution delivers on its promises. Originalism equips public officials to discharge that moral obligation.

 

[Applause]

 

Hon. Amul Thapar:  Thank you. Next, we’ll have Professor Balkin, who is the Knight Professor of Con Law and the First Amendment at Yale Law School.

 

Prof. Jack Balkin:  Hello, everyone. I am delighted to be here. It is nice to see you all. I thought I would tell you a little bit about my own theory of originalism. I guess we’re all going to tell you about our own theories. My theory has different names. Sometimes it’s called framework originalism. Sometimes it’s called living originalism. But I’ll try and explain what this is all about.

 

      So framework originalism; so what’s a constitution for? Well, a constitution like ours is basically serves many functions, but one function it serves is the following: It helps make politics possible. In other words, it helps people to have a framework in which they can struggle over power and whatever else they want through constitutional limits instead of just a free-for-all. So constitutions are designed to make politics possible. And they make politics possible by constraining politics within a framework. And so the idea of framework originalism is to figure out what’s in the framework, and here’s my view. The framework is the original meaning of the words and phrases in the Constitution and the adopter’s choice of rules, standards, and principles. That’s what the framework is.

 

      Now, why do I mention rules, standards, and principles? Very simple. If you and I were going to design a constitution together, we would find that sometimes we wanted hard-edged rules that were very difficult to get around and didn’t take much work to apply. But we would also find, especially if we were designing a Bill of Rights, for example, or some other parts of the Constitution, we’d have to use standards; unreasonable searches and seizures. Sometimes we’d even have to use principles; freedom of speech, freedom of religion. And so if you look at constitutions around the world written after the American Constitution, you’ll see they have a combination of rules, standards, and principles. The framework is the original meaning plus that choice.

 

      And then there are a bunch of other basic principles that you’re very familiar with that are also part of the framework. In the American Constitution, we have separation of powers. We have federalism. We have the rule of law. We have a commitment to democracy and a commitment to a republic; that is, a republican form of government. These things are not always directly stated in text, but they are implicit features of the kind of constitution we have.

 

      Okay. What it means to be an originalist from my perspective is to be faithful to that framework. Now, it turns out that history plays a big role in what it means to be faithful to the framework. History matters in figuring out what the original meaning of the words and phrases is. History matters in deciding whether we have a rule, a standard, or a principle. History matters in deciding what principle we have. And history also matters in the next phase of constitutional interpretation, which is what is sometimes called construction because when you have a constitution that has gaps or silences, or has rules, standards, and principles that require some degree of judgement to basically apply in new situations, you will have to use the text in order to judge.

 

      Now, when the text has a rule, you apply the rule because that’s what the text says. When the text has a standard, you apply the standard because that’s what the text says. When you have a principle, you have to apply the principle because that’s what the text says. But when you apply a principle, sometimes there’s more than one possible answer. That’s why you need construction. Construction is an action of judgement. It requires that you spend time thinking about how best to be faithful to the Constitution.

 

      How do you engage in construction? Well, I could write a whole book on this. In fact, I’m writing one right now. But, very simply, lawyers are not at a loss when they engage in construction. There are a bunch of standard techniques and kinds of arguments that lawyers use, and those are the ones that you’re supposed to use when you engage in construction. You know them all. You make arguments from structure. You make arguments from precedent. You make arguments from custom. You make arguments from convention. You make arguments from the history of the United States and its traditions. You make arguments from the nature of the American Constitution and the nature of the constitutional compact. These are all very familiar arguments. You know them all. If you went to law school, they are basically second nature. This is the task of people who are engaged in construction.

 

      Now, here’s the last idea I want to give you. Mine is also called living originalism, which is a mixture of living constitutionalism and originalism. That may seem very strange to you. You thought they were opposed. No, not at all. In fact, they are two sides of the same coin. But my version of a living constitution is a little different than the version of a living constitution that you may have heard of or thought about.

 

      All I mean by living constitution is this: In each and every generation, it is the obligation of that generation to apply the Constitution’s rules, standards, and principles in their own time based upon the tradition that they have received from the past generations. That is their duty. As they do it, as new laws are passed and as new decisions are rendered, as new constitutional controversies arise, they will be adding to that constitutional tradition. They will be producing something to what they had before. That process of addition, of construction over time is what we should call a living constitution. Understood in that way, there is no contradiction or conflict between the idea of fidelity to original meaning, that is, the framework, and the construction of the Constitution over time, which is the proper way to think about what we have when we talk about a living constitution. Thank you.

 

[Applause]

 

Hon. Amul Thapar:  Thank you, Professor. Now, we’ll move to Professor John McGinnis, who is the George C. Dix Professor in Constitutional Law at Northwestern University.

 

Prof. John McGinnis:  Well, thanks very much. I’m going to explain what Mike Rappaport, who I write with about these matters, and I think is the best form of originalism, and it’s called original methods originalism. And I can do that, I think, a little bit by contrasting our position with Evan’s and with Jack’s.

 

      First, I don’t agree that it’s an analytic truth that originalists should seek the public meaning of a provision. As Evan notes, some have thought the proper objective interpretation is the intent of the Framers. I don’t think we can decide that question as a matter of contemporary linguistics or philosophy. It depends, crucially, on the methods of interpretation that were expected to be applied at the framing, those original methods.

 

      One colloquial way of, I guess, expressing this is I’m in favor of originalism squared. We not only look for the original meaning, we look for it through those original methods. These methods were key for both positive and normative reasons. Positively, the meaning of a text, particularly a complicated text like the Constitution, must be a function of the methods that were used to decode it. Otherwise, you will get some other meaning. You won’t get the meaning that was fixed at the time where overusing these methods is normatively attractive. After all, it was the meaning as fixed by the applicable interpretive methods that got the supermajority of votes that makes our Constitution fundamental law and likely good law.

 

      And as a matter of historical fact, I do agree that the object of interpretation at the time of the framing was intended to be the public meaning of the document. That’s what the jurists at the time showed they wanted. But it doesn’t follow that the meaning was what a casual reader would have understood it. To the contrary, context is what is essential to meaning. And the most important context for the meaning of the Constitution is its legal context, which implies that the key meaning of it is often its deliberated legal meaning. Sometimes, that meaning coincides with what a layman would ascribe to it, but sometimes it’s supplemented by a meaning that would be completely clear only in a legal context. We understand that in ordinary life where often people say, “Well, I think this is what it means, but really, for a detailed answer, ask a lawyer.”

 

      The centrality of the legal context for the meaning I think is clear from the history and document itself. The Constitution wasn’t created ex nihilo but against a background of legal texts like statutes and, indeed, state constitutions. On its face, the U.S. Constitution declares itself to be law. It was put into final shape by the Committee of Detail. And who was on that Committee of Detail? The greatest lawyers of the convention. It has scores of terms — I’ve counted them — that are obviously legal and hundreds others — I’ve counted those as well — that might be legal, depending on our rules of interpretation.

 

      It even contains provisions that embed legal interpretive rules. One of those is the so-called non obstante legal interpretive rule contained in the Supremacy Clause; anything to the contrary notwithstanding. That rule eliminates another legal rule that might have been applied that favored harmonizing state and federal law, even when they were in tension. Thus, the substantial legal context, legal references, and legal vocabulary of the Constitution all show that it was expected to be interpreted according to the relevant legal interpretive rules of the time.

 

      As a result, I have to say I do disagree with those like Jack who think the Constitution is essentially an open-ended framework to be filled in, often by construction. The view of the Constitution as a general framework was certainly accurate as applied to Britain’s unwritten constitution. But as William Patterson, one of those great lawyers on the Committee of Detail, said the glory of the American Constitution was, quote, “it was reduced to written exactitude and precision.” There’s simply no evidence from the early republic that judges were thought to have a power of construction separate from interpretation. That suggests that they had a rich understanding of what could be gleaned from the words of the Constitution.

 

      And to the question of the work of each generation, the Constitution sets that forward itself. Each generation adds to the Constitution fundamentally through the amendment process. To be sure, the proof that the Constitutional law can be generated mostly by determinate legal meaning is ultimately an empirical one.

 

      But I’d end by noting that we really live in a golden age of originalism. Scholars are continuously finding more precise meaning by looking at clauses that might have been thought to be open-ended and indeterminate like due process, the Eighth Amendment, privileges or immunities, and yes, even unreasonable searches and seizures, and finding that these actually have relatively clear legal rules when understood in the legal context. What they are doing is they are resisting the idea that when clauses are not clear on their face, we go to construction.

 

      Instead, what they’re doing, as I think the interpreters of the Constitution did at the time, they’re choosing the better interpretation based on all the available method, even if that interpretation is only somewhat better than the alternatives. Indeed, I think today, the greatest achievement of originalism is the meticulous unpacking of carefully drawn provisions of the original Constitution and its all-important amendments. Thank you.

 

[Applause]

 

Hon. Amul Thapar:  Thank you. Next, we’ll go to Professor Sachs, who’s a Professor of Law at the Duke University School of Law to reconcile all of this and give us a theory.

 

Prof. Stephen Sachs:  Sure thing.

 

[Laughter]

 

      Thank you all very much for taking time out of your Thursday to come hear us in the morning. I’ve seen at least one former student in my originalism seminar, so I apologize to him if some of this is familiar.

 

      Trying to sum up what’s gone thus far and reducing it to some extent to slogan form, I’d say that originalism is following the Founder’s law. Or to have a slightly longer slogan and stealing a page from Chris Green at Mississippi, you could say that America has the oldest continuously operating written constitution in the world, is another way to state originalism, that we have the oldest continuously operating written constitution in the world. If you think that, and many people do, you might be an originalist.

 

      So what do I mean by that? Let’s start at the end: written constitution. We do not have an evolving customary common law tradition that is our Constitution. We are a common law country, we do have common law rules, but we do not have a common law constitution. Instead, our Constitution is an enactment. It’s a legal document that was adopted at a particular time and added some rules to the legal system, and those rules stay as they are until they are lawfully changed.

 

      In order to figure out what the Constitution added, we have to look back at the original law. So if I could add one more level on top of John’s, if he’s going to do originalism squared, I’d say originalism cubed. We used the original law to find out what original methods are properly used to read this original text and find its original meaning. I’m sure we can get up to fourth and fifth powers later on.

     

      Second, originalism says that we have a continuously operating Constitution. The written Constitution, that old one from back then, is still good law. When you’re making a legal argument in the American tradition, you can’t say the way they might say in France, “Well, that was the Fourth Republic. This is the Fifth Republic, and we just do things differently now.” You can’t say, “Well, the Supreme Court went the other way,” or “Well, the New Deal happened.”

 

      Nobody in our system is given legal authority to change the Constitution except in the way the Constitution actually lays out. The Supreme Court can — I know it’s shocking to say — sometimes be wrong on the law. But the Constitution of 1788 can’t be wrong on the law, although it can be amended. That means that you’ve got to have some theory for how you get lawfully from the Founders and the Founder’s law to today. This is a claim not just about how you read the text or how texts have to be read. You can read the Constitution lots of ways. You can read it as a prose poem. You can use it to line a bird cage. It’s about preserving the rules that the Constitution laid down and that remain in force over time. The text is there to preserve whatever rules the text actually made at the time that it was adopted.

 

      And finally, we have the oldest continuously operating written Constitution. We’re looking at a very old document. That means it might turn out sometimes to be bad policy. It might not do the things we want it to do. But while the Constitution might turn out to be bad policy, it can’t, as I said, be wrong on the law. And when we follow the Constitution, we’re not necessarily following it because we think everything it does is good or that everyone who made it was good any more than we follow ERISA because of some sort of patriotic piety toward the Ninety-third Congress and President Gerald Ford. They might have been great, but ERISA is law today because it was enacted and has never been repealed. And that’s how things work for enacted documents in our system.

 

      The same is true of the Constitution. And that’s why if we’re talking emoluments or impeachment or the Take Care Clause or recess appointments, arguments very naturally fall into an originalist register because whatever powers George Washington has, the occupant of the White House has today. Whatever powers Congress had in the First Congress, the current Congress does too. This is the orthodox way of defending legal claims in our system, and that’s what makes originalism our law.

 

      So many of you may have felt already that you were originalists. Some might be surprised to discover that you are originalists, sort of like the character in one of Molière’s plays who is surprised to discover, “Wow, I’ve been speaking prose all my life.” You might have been making originalist arguments all your life and only realize it now because all that originalism is is following the Founder’s law. Thank you.

 

[Applause]

 

Hon. Amul Thapar:   Next, we’re going to hear from President Wydra. Elizabeth Wydra is the President of the Constitutional Accountability Center, and she’s going to tell us why everyone before her is wrong.

 

Elizabeth Wydra:  [Laughter] Thank you so much, Judge. And thank you so much to everyone for being here this morning. I always enjoy coming to speak to The Federalist Society, in part because of great discussions like these.

 

      So one thing that I’ve heard a lot of from the folks who’ve spoken already is talking about the powers of President Washington or the First Congress. And while I consider myself to be a progressive originalist, perhaps one of the most important things that I feel is left out of the originalism discussion generally is the whole Constitution. The amended Constitution is just as much part of the Constitution as the Constitution as it stood in 1788.

 

      We the people over time have taken advantage of the Founder’s genius in putting in the amendment process to make the Constitution over time more democratic, more inclusive, more just. And I think that is an incredibly important thing to keep in mind when we think about who we are as a nation, when we think about what our Constitution means because there were some systematic injustices at the Founding.

 

      Fortunately, we the people remedied them through the constitutional means given to us. We got rid of chattel slavery through a constitutional amendment. We ensured that women and people who were of low economic means who couldn’t afford a poll tax were included in democracy through the amendment process. We made sure that equal citizenship was enshrined in the Constitution through the amendment process. And so to privilege the original Constitution over the whole Constitution is something that I think is a grievous error and something that happens sometimes when we talk about originalism but is something that we should all keep in mind when we’re making legal arguments, when we’re making value arguments about constitutional democracy.

 

      I think it’s also important to remember the whole Constitution when we talk about federalism because federalism was one of the great inventions of the 18th century Constitution. But it was drastically changed by the Second Founding, as some of us call it, after the Civil War when we enacted the Fourteenth Amendment, when we gave Congress enforcement powers under the Thirteenth, Fourteenth, Fifteenth, and then subsequent rights-enhancing amendments. Obviously, we still have a federalist system, and thank goodness for that, allowing us to have state and local innovation as well as national power to provide national solutions to national problems. But that federalism was changed after the Civil War, and to not recognize that, I think, means that you aren’t actually a real so-called originalist, someone who cares about the meaning of the words of the Constitution.

 

      But I think that everyone here is not wrong. I think that the methods and the ways that we talk about how we do originalism is an important conversation. But I think that in some ways, we have more in common than we have differences between us.

 

      Now, I’m not going to say I’m doing originalism squared or cubed or taking the square root of it or whatever, but I think as the good judge said, if not, what’s the point? People from all sides of the ideological spectrum should be grappling with, should be arguing about the words of the Constitution. If not, what was the point? What was the point of our Founders writing it down? What was the point of these generations pouring blood, sweat, and treasure into changing the Constitution if we aren’t going to take it seriously? And I love talking about that with more conservative or libertarian audiences like this morning. I love talking about that with my fellow progressives at those gatherings. And it’s something that I think we should all agree on. 

 

      Also, because as Jack said, it fosters better politics, frankly. When the Affordable Care Act was first passed, I did a lot of debates across the country, particularly with Randy Barnett. And we would get up there and we would argue about the Committee of Detail and what they meant when they gave the Commerce Clause power and all of these things. And not only did it make for, I think, a better conversation, but also, if he got up there and talked about that, and I got up there as a progressive and said, “Who cares?”, that’s not a very good debate. I guess you’d get to dinner faster, but that’s not a very good discussion. That’s talking past each other rather than grappling with what does it mean to have a limited government? What does it mean to also want to provide for quality, affordable health care? So I think that it fosters better politics, as Jack said.

 

      But one thing that I think is hard to get past when I talk about the idea of how all of us should come together around the text of the whole Constitution is that the label originalism does carry some baggage, especially for folks from the leftward side of the ideological spectrum, which is where I sit. Very few people these days actually practice the caricatured vision of originalism where you do a séance to try to think of what James Madison would think about applying Fourth Amendment protections to the internet. No one really does that. We talk about different ways in which you could do it, and there can be some methodological differences about how you practice originalism, but no one really does that caricatured version of originalism.

 

      And so then we talk about, well, what was the original meaning of these words? What was the original meaning of due process? How does that change things? That’s a real debate that I think everyone should be having. And frankly, the idea that only conservatives are originalists and liberals aren’t is just wrong, and you can look at the Supreme Court to see that. You can disagree with the way that folks on one side or the other apply it, but as we’ve heard from Justices Kagan and Ginsburg, if you’re talking about looking to the text and history of the Constitution, they’re originalists too, and they’ve said that at various points.

 

      So I think that, again, there’s more that we have in common than divides us on this particular question. Maybe on the left, I’ll have to think up a new word since originalism kind of gives everyone hives, but I haven’t come up with that slogan yet. We can talk about workshopping some of those things.

 

      But finally, I just want to say in terms of the, “If not, what is the point?”, the words of the Constitution are also valuable to us because they give us a North Star. It took the Civil Rights Acts to bring reality to the promises of the Fourteenth Amendment. We are constantly working to live up to the words of our Constitution. And so in that sense, I think thinking about the original purpose of the Constitution is not just important as a legal matter but inspiring as an American.

 

[Applause]

 

Hon. Amul Thapar:  Thank you very much. Finally, we will hear from Professor Christina Mulligan. She’s the Vice Dean for Academic and Student Affairs and Professor of Law at Brooklyn Law School, and she’s going to clean all this up.

 

Prof. Christina Mulligan:  [Laughter] Only kind of. The previous speakers have spoken about what originalism is, but these comments are going to address more what originalism is not, or at least does not have to be, not presenting a separate theory, but presenting a way of approaching the theories that we’ve just heard.

 

      Many critics of originalism discount it or see it as illegitimate because they perceive it to be a tool for conservative white men to maintain their power over legal society. And it certainly does seem like originalists are largely conservative or libertarian or Republican, largely white, and largely male, but that’s not what originalism has to be. Originalism can be more diverse in many ways, and that diversity can be leveraged to make originalism better while sticking to the values of fixation and constraint central to originalism.

 

      Now, talking about diversity and originalism with different audiences is a really interesting experience because different audiences are inclined to embrace and reject different parts of these claims. So with this audience, I expect the notion that originalism is a valuable method to be a relatively easy sell. You might reasonably think, “Listen, either originalism is the correct way to interpret the Constitution or not. That doesn’t change if the people who like originalism right now are conservative or white or male. If that’s how the law works, originalism is just what we’re legally obligated to do.”

 

      But I expect the harder sell is this: that originalists can learn from the critiques of originalism that say it has problems with sex and race because those concerns get at something real and important that we can address today while still being originalist. Or maybe in other words, just because you disagree with how some people on the left talk about race and gender doesn’t mean there’s nothing to talk about.

 

      The key insight for originalism is to recognize that some criticisms of originalism are about the past, and some criticisms of originalism are about the present. The criticisms about the past, that the Framers were white, that the Framers were male, that the Framers are dead, are things that we can argue about the relevancy of, but we can’t do anything about them. But focusing solely on the identity of the Framers misses most of the weight of the criticism of originalism surrounding sex and race. Counterintuitively, many criticisms of originalism’s relationship with sex and race are actually about what originalists do in the present.

 

      So what are these present day criticisms? First, that originalists are homogenous in terms of their political beliefs and social experiences, and so we’re all more likely to interpret constitutional text the same way, perhaps more likely to see what we would expect, given our own beliefs and experiences, rather than what the Framers or what the amendment-ratifying era populations actually did believe. Second, that originalists focus too much on sources by the Founding era elite in contrast to other historic populations. And the third criticism, that originalists and people associated with them today, Republicans, conservatives, libertarians, just don’t really care about the rights and liberties of women and people of color. So why trust originalists if they advocate for a document that ostensibly symbolizes these racist and sexist problems?

 

      So each of these concerns can be addressed today while being faithful to originalist methods, and I think addressing each of these concerns makes originalism better on its own terms. So for example, a less biased originalism is one in which those doing the interpretation come from a variety of perspectives. So it’s important to value having a diverse population doing originalist interpretation for its own sake. Elizabeth brings a different perspective than John, and while neither is more likely — Elizabeth and John on this panel, not like a hypothetical Elizabeth and John — and while neither of them is more likely to be right based on who they are or based on the fact that they are female or male or progressive or conservative, the fact that they look at the same evidence with a different eye increases the likelihood that they’re going to be able to see different things and correct each other’s mistakes.

 

      A better originalism is also one that looks to a variety of historic sources. Black people and white women were present and speaking and writing throughout the Constitution’s history, most especially during the discussion and adoption of the Reconstruction amendments. They constituted the public that makes the public meaning as much as anyone else. And we can pay more attention to them. Even though many of these authors are relatively obscure, they’re there. And self-promotion alert, discussions of some of these texts appear in my article “Diverse Originalism” if you want to look it up after the panel.

 

      Finally, and most challenging, we can start to address the alienation that many people feel from originalism and from the Constitution in a couple ways. First, we as originalists can be conscientious about applying our enthusiasm for originalism equally across legal issues. If you believe the original meaning of the Second Amendment protects a right to bear arms, make a point of emphasizing that equally, whether a gun owner in a particular case is white or black.

 

      Second, we can be more careful to separate the morality of the Constitution from the feelings of the people who wrote parts of it. To analogize from a simpler case, whether the Declaration of Independence espouses good values does not depend on whether Thomas Jefferson was a good person. Thomas Jefferson spoke with excruciating clarity about his belief in the inferiority of black people in his Notes on the State of Virginia. Yet, the Declaration will always be a beacon that reminds us all men are created equal.

 

      So to answer the original question of what is originalism, it’s a method by which we interpret legal meaning today through appropriate reference to yesterday. And to the extent we choose how to approach that interpretation today, we have a great deal of latitude in how well we can be originalist and how big a tent we can build.

 

[Applause]

 

Hon. Amul Thapar:  Thank you very much. And for those of you that were trying to scribble fast, it’s called “Diverse Originalism,” is Christina’s article, and it’s worth reading.

 

      So I’m going to start with the questions. Justice Scalia’s looking down on all of us and smiling because he used to say that when he was an originalist, people would go running from the room. And when we announced this panel, everyone kept streaming into the room. But as Elizabeth pointed out, some people now get hives when they hear the term originalism. So do you think originalism is a useful label and why? And after hearing all of your theories, are you all really under the same tent? And I’m going to start with Professor McGinnis and then have Professor Mulligan comment.

 

Prof. John McGinnis:  So I think it is a useful label. Larry Solum, who’s a professor at Georgetown, says originalists are of a family of theories, and they do agree on certain things. They agree that the meaning of the Constitution was fixed, either analytically or perhaps as Steve and I do, contingently because of original methods or the law, and that’s a very important matter. The meaning of the Constitution was fixed at the time it was enacted. And secondly, we think it should at least contribute to the constitutional law today.

 

      The difficulty, of course, is that even in families, there are black sheep. And also in families, the other difficulty is we don’t agree on who are the black sheep. And so there are a lot of divisions within originalists. And so I would just note three large matters that may, while that analytic point is absolutely true, that may divide us more in practice than unite us in theory. And so let me just lay them out very briefly because I think you should look for them. This will be discussed throughout the conference.

 

      I think the first is how thick the meaning of the Constitution is; how much is done by interpretation and is fixed, how much is done by construction and is more open-ended. We saw a big difference between Jack and myself on that. Another question is how much should judges be aggressive in using the Constitution to invalidate the views of other branches; judicial engagement versus judicial restraint. How can that be fixed in the meaning of the Constitution? And finally, precedent. There are just thousands of Supreme Court cases, not all of them originalist. What is the theory originalists have with respect to precedent? Many of us have very different theories with respect to precedent. Some have no weight to precedent. Others give it a great deal of weight. So those practical issues, I think, actually divide originalists more than unite them, but there is a core that we all share.

 

Hon. Amul Thapar:  Thank you. Christina?

 

Prof. Christina Mulligan:  So I took this question from a little more of a PR perspective in does originalism as a label do the work that we want it to do? And I don't know the way out of this, but a challenge with the label originalism is that it evokes this kind of Founder worship and wanting a historical golden age to return that people more left of center might find suspicious, even though it’s not really core to what originalism is and is doing. And I get where it comes from, that it comes from rejecting a free-wheeling living constitutionalism and trying to situate it in a particular thing, place, and time. But I get a lot more mileage out of not emphasizing the original part.

 

      So one of my colleagues before I came here says, “Why would anyone be originalist?”, like this is just some completely wild idea. And I was like, “Well, how do you interpret a statute that was passed in 1905?” And that led off into a discussion of this is just how law works, much as Steve Sachs and Will emphasize in their work a lot. And so emphasizing more this is -- we’re just doing law, this is how law works, I think makes it easier from a public relations perspective or an expansive perspective to convince people who are very nervous when they hear the word originalism because they think it means having to embrace other aspects of the 1780s. That’s not what is has to be. I don't know what other word we would use because it’s the word, but I think it’s something to keep in mind.

 

Hon. Amul Thapar:  Thank you. So let’s answer Christina’s colleague’s question. Why should someone be an originalist? And Evan and Jack, why don’t you all tackle this? So Evan, you want to go first?

 

Evan Bernick:  So yeah, I think that as an initial matter, just figuring out what the law is is a useful thing, regardless of whether you think the law is good or bad. Steve brought up ERISA. Simply knowing where you stand before the coercive apparatus of the state is a valuable thing, if only because to the extent that you don’t understand it, you can’t see what’s wrong with it, and you can’t change that in ways that would be more conducive to your normative convictions.

 

      The other way, though, that originalism is valuable, at least to me, and the reason that I’m an originalist is I think that the original Constitution is pretty good. It sets up a just scheme of social cooperation. It’s worth preserving insofar as I’m interested in establishing justice, securing the blessings of liberty, providing for the common defense, and all that stuff in the preamble. Those are non-controversial, largely, political goods that the Constitution has served well in its amended form to secure over the course of at least the last several decades. And I think that’s good enough to support a commitment to the original meaning of the Constitution.

 

Prof. Jack Balkin:  To answer that question, you need to divide it into two. First question is why does the Constitution become law? Second question is why does it continue to be law today? Answer to the first question is very easy. Constitution becomes law because of an act of popular sovereignty; actually, a series of acts of popular sovereignty, the original Constitution and then the amendment process. And then the second question is why does it continue to be law today? And that reason has already been given by several of the people on this panel; that is, it’s rule of law reasons. That is, once you make something law in our system, it continues to be law until such time as it’s lawfully changed.

 

      Now, of course, there will be various disputes about interpretation and construction that follow on to how to apply that law. But the basic idea that the law, once enacted lawfully, continues to be the law until it’s lawfully changed is a very reasonable postulate of our system.

 

Hon. Amul Thapar:  Elizabeth, in your comments, you talked about how maybe more people should be originalists and how you were going to try and help us host this panel at ACS, but my question is why do you think more people should be originalists? Do you believe public officials and judges should be originalist? And what about private citizens?

 

Elizabeth Wydra:  Yeah, absolutely. And you know, we did kind of do this panel at the ACS convention, but we -- what was the title? It was “Let’s Talk about Text.”

 

[Laughter]

 

      It has a little jazzier beat under it. But I think that absolutely not only should people from the left and right focus on the words of the Constitution, but I think that absolutely judges and public officials and private citizens should because, yes, the people who swear an oath to the Constitution, one would hope, would be very devoted to those words that they swore to uphold, but also, all of us live as part of the Constitution. All of us live in a country that is formed by the Constitution, and it frames our values.

 

      And so I think that this is also where I take inspiration from the arc of progress that we’ve seen through our Constitution. I wasn’t included in democracy when the Constitution was written initially, but we expanded who is part of democracy through caring about the Constitution and changing its words. And so private citizens, I think, can take inspiration from that to see the values, the North Star in the Declaration of Independence’s great words that we are constantly struggling to make a reality for all.

 

      And I think that public officials would do well to speak in the terms of the Constitution because they resonate with people. The average American cares about the Constitution. There’s, I think, an interesting point about you could talk to someone on the street about free speech or the Second Amendment, and they’re not lawyers, but they know what you mean. I would like people to have that resonance when we think about the rights and values of the Fourteenth Amendment, but I think it goes to illustrate just how powerful the Constitution is.

 

Hon. Amul Thapar:  Professor Sachs, what are your thoughts on this?

 

Prof. Stephen Sachs:  So I think the Constitution is definitely for more than just judges. And if the Constitution is for more than judges, than originalism is too. I think one of the worst things that can happen to a legal system is for it to be thought of as just the province of judges. I think a while back, there was a pamphlet that you could even get at the Supreme Court that was explaining “What is this thing?” for tourists that would say Congress makes the laws, and the Executive enforces the laws, and the Supreme Court interprets the laws.

 

      And I think that’s actually not quite how it goes because the Supreme Court or any court interprets laws only because a case has come up that they need to decide in accordance with the law, whatever that law might be. And they have just as much and only as much province to interpret it as anyone else has who needs to find out the legal answer to a given question in a particular case. When Chief Justice Marshall was saying that it’s the province and duty of the courts to say what the law is, it’s because they have to figure it out in order to give a legally appropriate judgement. That doesn’t mean that their voice is the only voice at the table or that whatever the courts say goes. So originalism is for anyone who wants to know about our law, and that is far, far more, and has to be far, far more than just our judges and courts.

 

Hon. Amul Thapar:  Professor Sachs, do you think originalism encourages activism or restraint? And that came up in some of your comments -- I mean, the panel’s comments. And in answering that question, can you define those terms, activism and restraint? And Professor Mulligan, be thinking about it because I’m coming to you next.

 

Prof. Stephen Sachs:  So can I define those terms? Not hardly. People use activism and restraint to mean all sorts of different things. At least one way of looking at it is activist courts are courts that are doing a lot of stuff, and restrained courts are courts that are not doing a lot of stuff. And I think part of the problem is that the Constitution requires judges to do only and exactly as much stuff as it does.

 

      Sometimes, the Constitution tells judges, “You’re going to have to strike things down. If there is freedom of speech, then no, maybe you can’t make it illegal for people to put out a movie criticizing a presidential candidate. That is something that you might have to involve yourself in the political system just to do your job as a judge to render the right decision in a particular case.” On the other hand, it might mean that you can’t interject yourself into a different kind of decision, some hotly contested area for legislation, whether in Congress or in the states. There might be some authorities that the Constitution does not reserve judges.

 

      So originalism sometimes encourages and sometimes discourages judicial action, but a lot of what people mean when they talk about judicial activism is how independent are the judges? How much of their personal judgement is being exercised? Sometimes, that, too, will come up. You can’t decide whether a given search is reasonable under particular situations, so asking yourself a lot of questions. Different reasonable judges might come to different answers on that question.

 

      But the Constitution does not, in general, give judges the power to enforce legal rules of their own invention. Their job is to enforce rules that are, by and large, created elsewhere. And so in that sense, it’s a very powerful restraint, not in the sense that it never lets them do anything, but in their choice of which rules to enforce is restrained by having a Constitution that they themselves can’t amend.

 

Hon. Amul Thapar:  Professor Mulligan?

 

Prof. Christina Mulligan:  So obviously, activism and restraint are very rhetorical terms that don’t have necessarily particularly precise definitions, but if we’re going to say activism is like making stuff up, it’s interesting because originalism was born out of a desire to give some weight to ways to not make stuff up. And yet, one of the main criticisms that you hear of originalism is that this is just an excuse for people to situate -- to dress up motivated reasoning in authority and get the results that they want. It’s a way for conservatives to be activists in just a different way.

 

      And the truth is that any interpretive method that’s not rotely mechanical is going to have the ability to be bent and twisted by people that are biased or have motivated reasoning or are too confident in their own abilities. And so not even because they’re trying to get the results they want in some conscious way, but because we all unconsciously read thing to comport with our expectations, even if our expectations are not even what we like or what’s good for us.

 

      So originalism in some ways encourages activism no more than any other methodology, though it’s important to remember there’s space for it. It also gives us the tools to restrain ourselves within the appropriate boundaries because that’s such an important value to originalism. But in order to maintain those boundaries, we have to work very consciously and intentionally to be faithful to that framework. So basically, we don’t have to be activist, but we have to try. We have to care. We can’t forget. We can’t just assume originalism will take care of it because that’s what it says on paper.

 

Hon. Amul Thapar:  So I’m going to ask each of you this question, but I’m going to start with President Wydra. You pointed out in your remarks that Justices Ginsburg and Kagan have referred to the original meaning. And so what I’d like you to do is point to an opinion, any opinion, each of you, that if asked for an example of originalism in action done properly, what opinion would you point to?

 

Elizabeth Wydra:  So I think that’s a great question, and I think Justice Ginsburg has talked about reproductive justice and reproductive autonomy in a way that I think reflects the equal citizenship guarantees in the Constitution. And I think that’s an important point to raise because one of the major criticisms of the right articulated in Roe is that it isn’t rooted in the Constitution.

 

      And so I think that one of the quiet but perhaps revolutionary things that Justice Ginsburg has done, as is often her style, is to root that more directly in the Constitution by talking not so much about privacy, but about the idea that one cannot be a truly equal citizen as guaranteed in the Fourteenth Amendment, as reinforced in the Nineteenth Amendment, which we’re going to celebrate the 100th anniversary of next year, if you cannot make the basic choice for yourself over whether or not to bear a child. And I think that that is a very powerful and, yes, originalist articulation of Roe that she has written into some of her more recent opinions at the Court as well as having in her advocacy when she was in private practice.

 

Hon. Amul Thapar:  Professor Sachs?

 

Prof. Stephen Sachs:  So the example that comes to mind actually isn’t a judicial opinion. The arguments over the creation of the Department of State and the so-called decision of 1789, whether the President could remove heads of departments, I think that the examples of the debates in Congress -- not everyone agreed. Not everyone came to the correct conclusion. But I think they were all looking at essentially the right questions. They were saying, “Okay, well, what does the Constitution grant by saying the Executive power, and what does it take away by qualifying that in other clauses that affect the President’s power? And what power does it grant to Congress in the Necessary and Proper Clause?”

 

      And so looking at this question not as just what’s the right way to run a government, they also had to decide, and very urgently, but what’s the general rule, and to what extent does the Constitution cut back on that in certain ways, and where can we look to find guidance on this? I thought it was an amazingly well-conducted debate, and really, a reminder to us today not only the Constitution is for congressmen to consider and not just judges, but also that we should expect that our representatives in Congress are having the same degree of care for constitutional questions as we would expect in a judicial confirmation hearing.

 

Hon. Amul Thapar:  And Professor McGinnis, do you have one for us?

 

Prof. John McGinnis:  I think the concurrence in Noel Canning was a really good example of originalism done right. I won’t go into it in detail, but one question is what does session mean for the purposes of the Recess Appointments Clause? And the concurrence suggested that session only applies to the inner sessions between sessions of Congress. I don’t think that’s obvious from the text of the Constitution. I think it becomes obvious from the history of the Constitution, including the use of the term sessions and other constitutions at the time. Mostly, it’s important to understand that that’s just the better meaning based on all of the evidence.

 

      And I think that’s the way originalism should be done. So I think it’s really a model of deploying the evidence. Moreover, it really relied on important originalist scholarship done my by colleague, Mike Rappaport, and it shows the important division of labor, I think, between judges today, who are busy and maybe not able to unearth all the relevant evidence, and scholars and the important role that scholars have in setting a framework for the progress of originalism.

 

Hon. Amul Thapar:  Professor Balkin?

 

Prof. Jack Balkin:  I thought first by just saying I strongly second Elizabeth’s suggestion that there is a very strong originalist case for Roe and Casey based on the Fourteenth Amendment’s prohibition on class legislation and that a style legislation that subordinates or reduces one group to another is, in fact, suspect under the Fourteenth Amendment. And that is, in fact, the best way of articulating the originalist case for Roe.

 

      But if you want an originalist opinion that really shows how originalism should be done, the one I would choose would be Justice Harlan’s dissent in the civil rights cases. I know you’re all familiar with his dissent in Plessy, but the one in the civil rights cases is in some ways even more important. And the reason why is it correctly understands Congress’s role in passing civil rights legislation, legislation designed to protect the civil rights of everyone. It also correctly understands the role that the Citizenship Clause had in binding both the federal government and the states and requiring both the federal government and the states to protect equality.

 

      And the last thing I wanted to say about this wonderful opinion — I could spend a whole lecture just on how wonderful this opinion is, originalist opinion — is that if the Court had agreed with Justice Harlan in the civil rights cases, Plessy v. Ferguson would have been a preemption case because the 1875 Civil Rights Act would have been held constitutional, and Louisiana statute in Plessy would have been preempted by federal law.

 

Evan Bernick:  So I just want to second that everything that Jack said about Harlan’s dissent in the civil rights cases. It is an overlooked originalist gem.

 

      My particular case that I would uphold as an example of originalism done properly is one of Justice Scalia’s less famous but most important opinions, and this is Crawford v. Washington, decided in 2004. As a practical matter, Crawford transformed criminal procedure by establishing an entirely new methodology for determining when the use by prosecutors of out of court statements violates a defendant’s right to confront the witnesses against him. The Court had in previous decades held that the Confrontation Clause allowed testimonial hearsay to the extent that it was sufficiently reliable to be credited. Crawford together with Davis v. Washington interpreted the Confrontation Clause to bar all statements whose primary purpose was to provide evidence against a defendant unless there was a prior opportunity for cross examination and the witness was unavailable.

 

      Now, why is this so important? Because Justice Scalia is a conservative Justice nominated by President Ronald Reagan who nobody could accuse of having a normative desire to raise the cost of prosecutors of convicting guilty people. He did it because of his methodology, and Crawford is a methodological tour de force. Scalia concedes that the text just considered in isolation, what’s a witness, is somewhat ambiguous. And he has recourse to what I would describe as the spirit of the Confrontation Clause, the primary evil against which it was directed, the use of ex parte written examinations to produce evidence of guilt.

 

      He talks extensively about the trial of Sir Walter Raleigh and the degree to which that influenced Founding era discourse, about the benefits of common law procedures to protect people’s individual rights. So I would uphold Crawford as an example of both the constraining power of originalism and an example of originalism done properly.

 

Hon. Amul Thapar:  Professor Mulligan?

 

Prof. Christina Mulligan:  This is a banal and imperfect answer, but I think a real sea change in how originalism was done in courts came to a head in Heller, which, while being maybe simplistic or opportunistic, at least in the dissent in some places, the fact that the majority and the dissent were talking to each other, using historical sources to make their arguments, and that that was the dialogue. So I’m really talking about the relationship between the majority and the dissent was a moment where it became clear that you had to take originalism and text seriously, as evidenced by the fact that the dissent in Heller doesn’t say, “We would come out the other way because it’s unjust, or because it’s wrong, or because of present day commitments,” but they argue in the text and in the history as well.

 

Hon. Amul Thapar:  Thank you. Okay. So my final question, then I’ll open it up, as Evan just noted, Justice Scalia often said, “You don’t get to pick your results when you’re an originalist.” So Jack, Professor Balkin, I’ll start with you. What is your wackiest originalist conclusion? And if you can, give us one that might not be consistent with your normative convictions. And I’m going to ask each of you this, and then we’ll open it up to the audience.

 

Prof. Jack Balkin:  Thank you, Judge. I’m going to answer a question about what kinds of originalist positions I feel that I’m required to take that are inconsistent with my politics, which some of you know are very liberal. And I would take one just from today’s headlines, and that is the wealth tax. Wealth tax has been promoted by Elizabeth Warren, among others, as a two percent levy on wealth. My view is that a straight across the board wealth tax of two percent will have serious constitutional problems. The reason is Article I, Section 9 that says that direct taxes have to be apportioned by state population.

 

      Now, there are workarounds. After all, this is tax law, and what do we hire tax lawyers for but to find workarounds? But they’re rather complicated. I’ve spent a lot of time thinking about how you would work around Article I, Section 9. But the key thing to understand is that if you don’t pay attention to Article I, Section 9 and the original meaning of Article I, Section 9, you’re going to have serious constitutional problems with the wealth tax.

 

Hon. Amul Thapar:  Professor McGinnis?

 

Prof. John McGinnis:  Well, the opinion that I -- in some sense goes to the question that we also have opinions that other branches give, and I’ve worked on opinions that suggested that there is birthright citizenship under the Fourteenth Amendment. And that’s something I don’t agree with, and I think, though, is quite clear from the legal meaning of the Fourteenth Amendment.

 

      It’s not that I think that birthright citizenship should not be given perhaps in some circumstances, but almost no other nation in the world gives birthright citizenship as a matter of its constitution. And you might think that’s a very important matter to give to the democratic process. It’s a very controversial matter now, but I think it’s absolutely clear once one looks at the meaning of the Fourteenth Amendment. I wouldn’t have done it, but I think we are bound by it.

 

Hon. Amul Thapar:  Professor Sachs?

 

Prof. Stephen Sachs:  So I see this as going in two different ways, the wackiest constitutional opinion and one that is against your policy preferences. In terms of policy preferences, I think that -- or at least I’m going to put this out there. I’m not persuaded that the Seventeenth Amendment was necessarily a good idea. It created direct election of senators as opposed to having state legislatures elect senators. I think there’s something to be said for the political safeguards of federalism, and one of them is to have the state legislatures themselves represented.

 

      Now, there are other arguments against it. David Schleicher at Yale has argued persuasively that it nationalized state elections, but that’s not a very wacky interpretive claim. The text is pretty clear right there. So in terms of wackiness, I’d say, at the risk of typecasting myself, that Erie is wrong and that there is no such thing as federal common law. They had a long debate in the late 1790s, early 1800s about the common law and the federal system, and both sides were pretty well agreed that what we did not have was any form of common law that judges could make up that preempted contrary state law and that provided for federal question jurisdiction. And those are the three hallmarks of federal common law as it exists today. Happy to say more in the Q&A.

 

Hon. Amul Thapar:  President Wydra?

 

Elizabeth Wydra:  Yes. Thank you. So I think the majority in Heller is bad originalism when it comes to the Second Amendment, but I think good originalism applied to the Fourteenth Amendment cannot help but come to the conclusion that there is some sort of individual right to have a firearm, at least in your home for self-defense. I wrote a brief that included both Jack and Randy Barnett and a co-founder of The Federalist Society as well as members of ACS that came to that conclusion. Now, of course, I’ll save myself by saying I think that my definition of what then constitutes reasonable regulation of that right is probably a lot broader than some other peoples, but the fact that there is that right I think is undeniable from the Fourteenth Amendment’s particular history and words.

 

Hon. Amul Thapar:  Professor Mulligan?

 

Prof. Christina Mulligan:  So I’m not 100 percent sure of this because I haven’t gone all the way into the research necessary, but my wackiest conclusion is that copyright law might not constitutionally be able to protect art. I tend to think -- fair disclosure, I tend to think that copyright law is too expansive, but this is -- the fact that it’s unconstitutional to protect art is so wacky and different that it sounds completely preposterous. So it makes me feel nervous saying it.

 

      So the text says, “To promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” So at the time, science tended to mean knowledge. Useful arts was technical craft, and it contrasted with fine arts. So fine arts is notably not there.

 

      Writings -- this is the part that requires the in-depth research that I’m not absolutely confident about, who could expand this to other things, but here’s what Founders knew about paintings, Founders knew about sculptures, and yet the Copyright Act of 1790 protects books, maps, and charts only because a purposeful reading of what people were thinking about at the time was how do we encourage the dissemination of knowledge, not so much to protect creative works and creative people. So I am hesitantly nervous that it may not be constitutional to use copyright law to protect basically 95 percent of the things we protect copyright law with.

 

Hon. Amul Thapar:  A lot of people are going to be unhappy with you today.

 

Prof. Christina Mulligan:  I know. This is… [laughter].

 

Hon. Amul Thapar:  Thank you. Okay, Evan?

 

Evan Bernick:  So I’ll give two quick answers, one that’s inconsistent with my own normative convictions, one that I think will strike a lot of people in this room as pretty wacky. So the one that’s inconsistent with my normative convictions is I think that the First Amendment probably only applies to Congress consisting of a Senate and a House of Representatives. Therefore, it does not constrain the President or any other constitutional actor. I hasten to add that I believe that the Fourteenth Amendment’s privilege or immunities and Due Process of Law Clause protect the freedom of speech at the state level, but I don’t think you can get to the conclusion that the First Amendment, except to the extent that the First Amendment bars acts of Congress that violates the freedom of speech and the President applies it, you can stop that, independently constrains the President. So that’s the one.

 

      The other wacky one is that I think the state action doctrine which holds that the Fourteenth Amendment generally doesn’t require states to do anything, just not to do things, is probably wrong as a matter of original meaning. I think that there is overwhelming evidence that the framers of the Fourteenth Amendment and those who ratify it would have understood the denial of equal protection to cover state omission to protect people against private violence, particularly violence that was initiated by the Ku Klux Klan. I actually think that there’s an overwhelming case for this. And so DeShaney v. Winnebago County Department of Social Services, which held that the Constitution basically has nothing to say when a state’s welfare agency fails to protect an abused child from his father despite getting repeated notice that this kid’s rights were being violated, is probably wrongly decided.

 

Hon. Amul Thapar:  Okay. Thank you all very much. So we’re now -- there are some mikes in the room. We’re going to open it up to questions. I want to remind everyone that questions typically have a question mark at the end, and please keep them brief so we can hear from the people that people came to see.

 

Prof. John McGinnis:  Over here. Over here. No, other side.

 

Hon. Amul Thapar:  Over there. All right. Good.

 

Questioner 1:  Hey. So thank you for triggering me, ladies, and I thank The Federalist Society for this safe place. But I do want to talk a little bit about  — or ask you a question about, not talk about — the reputation of originalism in the left. When you foundationally say things like, “Well, this is just white men in the 1700s,” or “It was a certain race in the 1700s,” or “It’s just certain income in the 1700s,” none of us were alive then. They’re not here to speak for themselves. In 2200, maybe they’ll be criticizing us.

 

      Do you think that foundation should be put up to a popular vote? I’m just concerned about the vilification of it when those things are the starting descriptors of who did it because it puts it in a hole to the people who haven’t had civics, haven’t had law, and the population are concerned about. So how do you -- or do you really think we should rip it up?

 

Prof. Christina Mulligan:  So my view has been that originalism is correct. But I agree with your question, which is when that is the way that a lot of people think about the Constitution and constitutional questions, that requires people who don’t think that way to do work to say, “Here’s why you should think about it in a different way.” And just saying, “I’m going to logically prove to you this is how law works,” isn’t going to have that resonance that makes people change their mind and change their view. And that’s why I think it’s really important to hear the concerns and respond to what they are, which sometimes, as I said, is that the Founders were not properly constituted.

 

      But I think a lot of the criticism comes from a present-day sense that people on the right just do not give an F about minorities, about women. And you can do a lot of work by actually taking the concerns into effect and listening to what people experience today and responding in a way that is still consistent with the fixation thesis and the constraint thesis of originalism. And that’s really my main thrust here.

 

Prof. John McGinnis:  I’d just like to second, in some sense, what Christina said. I think that it is a serious criticism of the original Constitution. Indeed, I think it is the most serious criticism of the original Constitution, particularly the creation of slavery, at least not an elimination of slavery, and then particularly the fact that African Americans and women were not included in the ratification process. I think there are answers to that now. After the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments, everyone has the rights of white males at the time.

 

      I think, also, the idea that judges can correct and can figure out what the Constitution would have been is extremely costly and will lead to worse results than we’ve got today through originalism. But I think that’s a serious issue, and so I do think originalists should take it seriously and respond to it. We should not vilify our Founders, but we should understand the defects and say that despite that, originalism is the way to interpret the Constitution today. But it’s an argument that needs to be answered.

 

Elizabeth Wydra:  Yeah, I would just add that I think that in some ways, while I don’t like when the left caricatures the right’s doing a séance of James Madison to figure out what originalism is, in the same way, I don’t think that the left wants to tear up the Constitution. I mean, this is totally a pop culture reference, but liberals are flocking to pay thousands of dollars to go see a musical about Alexander Hamilton. The idea that there’s a pure vilification on the left of the Founders, I think, is wrong.

 

      But I think one way that particularly originalists can push back against some of that idea that we’re talking about a document created by old white men in the 18th century is to talk more about the Constitution as it evolved over time. I know I’m a bit of a broken on this, but I just think it’s so important. And the fact that when we talk about founders, we’re talking about our second founders, we’re talking about the people over time who are not just18th century rich, old white men. And I think that’s important.

 

Hon. Amul Thapar:  Evan?

 

Evan Bernick:  Nothing that I said about a promissory obligation earlier applies to the Constitution before the reconstruction amendments. I just want to stipulate that. I think that there were compelling reasons for those who doubted whether they could take an oath and consistently follow the Constitution as it was originally written in 1788. I think that the best way to deal with that objection is to concede a certain amount of its force and explain how the Constitution has changed over the years through amendments that are valid for all intents and purposes as part of this Constitution. When I refer to this Constitution and say that’s the Founders’ Constitution, that’s the Founders’ Constitution as amended.

 

Hon. Amul Thapar:  Professor Lawson?

 

Prof. Gary Lawson:  All right, thanks. I was terribly disappointed that the panel stopped at the third power, so I want to see if I can push you to the fourth and fifth powers. And this follows most naturally after John McGinnis’s comments, so I’ll formally address them to John.

 

      The fourth power would be in order to apply any notion of legal methods, it seems to me you have to know what it is you’re applying the methods to. And even within the universe of legal instruments, there are lots of different kinds of legal instruments. There are statutes, treaties, corporate charters, powers of attorney. And the rules of interpretation can be subtly but importantly different for all of those. So question one, fourth power, for John, to apply legal methods, do you have to have a categorization of the thing to which you are applying those methods?

 

      And then the fifth power is that, John, you pointed out that a lot of originalist work is establishing what the best understanding of a constitutional provision is. Is that good enough? If this was a criminal trial, it certainly wouldn’t be good enough to put someone in prison. Is it good enough to establish a constitutional norm that three steps down the road might result in putting someone in prison?

 

Prof. John McGinnis:  I think those are great questions. So let me take them in reverse order, if I might. I’ll go to the fifth before the fourth. I think that is a tremendously important question, and the issue is how much evidence should be required for a judge to displace a decision of another branch? And that seems to me a question of judicial power, and that is itself an originalist question.

 

      I have my own views about that which I won’t go into here at length, which is that the evidence -- they have to have a kind of clear and convincing evidence before displacing it. I think we see some suggestions of that actually in the way judicial duty worked before the Constitution. We see some evidence of that in the way Alexander Hamilton said we’re going to strike down statutes only if they are in irreconcilable variants with the Constitution. But I agree, the quantum of evidence is a question. I would just say that it is a question to be answered according, actually, to the original Constitution. So I wouldn’t see it as a separate fifth power question.

 

      The fourth, I think, is something of a fourth power question because you’re absolutely right. There can be a lot of different kind of rules. Now, I think I want to be cautious here. A lot of interpretive rules, expressio unius, apply to all legal documents. And a lot of those apply to the Constitution. The harder questions are, well, are there some specific kinds of rules that don’t apply to a constitution? And are some specific kinds of rules that do apply to a constitution?

 

      And actually, if you look back at the debate over the Bank of the United States and the opinions of Randolph and Hamilton, in some sense, that is their biggest debate. And that, I guess, is a question really almost like a common law of interpretive rules. What kind of document is this? How do we fit it in best to the set of interpretive rules? What’s the best analogy? Do we understand the Constitution just as a super statute, which I think is the way most people understood it at the time, but what differences does that mean? Precisely because it is shorter, does that mean we do not apply certain interpretive rules? That was Hamilton’s argument in certain respects.

 

      So I agree, we do have that fourth power question. And that, I think, is the hardest issue about the decision about what interpretive rules to apply to the Constitution. There are a set of interpretive rules that you really just can’t read off, and you have to make these kind of analogous arguments. And again, you go back to my basic point, which I think was accepted at the time, the uber rule — I don’t know if you’d call it the sixth power rule — is we do the best we can. We take the best evidence, we use the best analogies we can, and we go with that.

 

Prof. Stephen Sachs:  So if I could jump in, one way to avoid going on from four to five to six and constructing the ordinals, which you didn’t know you were going to be doing this morning, is to say, look, the law is a seamless web. There are a whole lot of legal rules out there. And it so happens that the Constitution is a written enactment, but it’s part of a broader tradition, a broader common law tradition. We’re a common law country. And so there may very well be lots of legal rules that help step in and answer questions that the Constitution either does not answer or can’t answer in itself.

 

      So when we’re talking about what are the right interpretive presumptions when we’re dealing with a statute as opposed to a treaty as opposed to a contract, well, none of those are written out in the statute, in the treaty, in the contract. They might be. Sometimes you get rules like that, but most of the time, you’re drawing from an existing tradition of law. When the Founders adopted the Constitution, they were not writing on a blank slate. They did not declare year zero and remake the calendar and declare the Festival of Reason and everything that went on in the French Revolution.

 

      Instead, what they did is they said, “Okay, we’ve got existing states. We’ve got an existing confederation. We’re going to supersede it in certain respects. We’re going to play a little fast and loose with the Article’s amendment rules, but we’re otherwise maintaining a lot of existing aspects of that tradition. And those common law rules and those other rules still continue and bind to the extent that the Constitution does not supersede them.” So I think that a lot of the iterative problems can be solved, or at least eased, by recognizing that the Constitution was not the only legal game in town, and there was a whole lot of law on the books already that, indeed, the Founders were crucially relying on to make the thing they were adopting work.

 

Hon. Amul Thapar:  Over here?

 

Francois-Henri Briard:  Thank you, Judge. My name is Francois-Henri Briard. I’m the Chair of the French Chapter of The Federalist Society.

 

[Laughter]

 

Elizabeth Wydra:  Oh, now you’re in trouble.

 

Prof. Stephen Sachs:  I’m sorry.

 

[Laughter and applause]

 

Francois-Henri Briard:  Thank you. And I’m here with a group of lawyers of litigation from Paris. I have two short remarks, one for Professor Balkin and one for Professor Sachs. To Professor Balkin, I would like to say thank you because this is exactly the way we do interpret our Constitution in France. What you said about living originalism, we do refer to the original intent. And I remind you that our Constitution is not only the 1958 Constitution, but also the 1789 Bill of Rights. But also, we do remember that our interpretation is for people living in 2019.

 

      To Professor Sachs, I would say respectfully, using the favorite words of my friend Antonin Scalia, “I dissent.” I dissent with what you said about the French Constitution. You presented the French like having a different Constitution every ten years, but I would like to remind you that not only we saved America --

 

[Laughter and applause]

 

      -- we were America’s first ally. Not only this, but we did invent the principles on which current originalism relies, especially separation of powers. And we do refer to these principles in many opinions of our conseil constitutionnel, the constitutional supreme court. So your debate this morning was very interesting for us, and I would like to thank you very much.

 

[Applause]

 

Hon. Amul Thapar:  Professor Sachs, do you want to comment on that?

 

Prof. Stephen Sachs:  Oh, just to say that I very much take the point that no legal system ever truly succeeds at removing root and branch. There’s a famous, maybe apocryphal, statement by a judge that, “I don't know what the civil law is. I only know the Code Napoleon.” No one could ever really believe that all the way down because they understand legal instruments in a certain context.

 

      I think the point, really, about the United States is just that there are no constitutional innovations post 1788 that we accept as innovations. There may be amendments that are very much part of our Constitution today, but the official answer for why is the Fourteenth Amendment part of our Constitution is because it was proposed by the necessary majorities in each house of Congress and properly ratified by the states according to Article V, not because of some official break in the chain of legal authority, which many other countries have had subsequent to 1788. It is that that I’m trying to distinguish America from, and certainly not from our alliance with France.

 

[Laughter]

 

Hon. Amul Thapar:   And Professor Balkin, it sounds like you’ll have an invite to France, but do you have any…?

 

Prof. Jack Balkin:  I’m available.

 

[Laughter]

 

Hon. Amul Thapar:  [Points to audience]

 

Hon. John Curry:  Yes. Thank you, Judge. I’m Judge John Curry from Chicago. And I wanted to address a concern referenced by Professor Mulligan, and that is your concern in this dynamic talking with your students. Isn’t it wrong, if we’re going to look at our Constitution and the concept of originalism, isn’t it a problem if we’re addressing this as apologetically as a result of the work of so-called dead white males? I mean, is the Constitution and the writers of the Constitution approachable only if we conceive of Alexander Hamilton as a rapping Puerto Rican?

 

      I take the opposite view. You said, “Refer to a golden age.” It was, in fact, a golden age. The writers of the Constitution, the authors of the Constitution were inheritors of the Scottish Enlightenment, the product of a rationalist development in law and in philosophy. These were great thinkers, and there is greatness in that generation that wrote the Constitution. Shouldn’t we be rooting our originalism in extolling the virtues of our Founders as opposed to the opposite? Thank you.

 

[Applause]

 

Prof. Christina Mulligan:  So to be clear, when I repeat this “dead white men” language, it’s not because I think that’s the way we should be thinking about it, but that when a large percentage of the population thinks about something in a certain way, it necessarily becomes something that you need to address head on and talk about and take seriously, even if you disagree with what it is. To say, “I’m just not going to talk about it,” leaves a lot of people that might be potential allies who might say things that are potentially interesting or relevant that could teach you something even if you still disagree with them to the side.

 

      The reality, I think, is that the Framers, the Founders, many other people in America’s history were extremely brilliant at law and philosophy, designed an amazing governmental system, and also, for reasons that I think make sense, given the cultural context of the time, still owned people and believed that women weren’t smart or capable enough to vote. And the fact that that’s true means that there is a mixed record in the past, just as there’s a mixed record in the present.

 

      And there’s a mixed record with any complex human being that tries to do anything meaningful with their life because raw human beings trying our best to make sense of the world -- and sometimes we’re really smart, and sometimes we’re brilliant, and sometimes we get it wrong. And the right way to approach American history or any history is to recognize the whole complex picture of who we are and what we’ve been doing.

 

[Applause]

 

Hon. Amul Thapar:  Professor Balkin, do you want to comment?

 

Prof. Jack Balkin:  I want to take a page from the Enlightenment too, but first, I’ll start with Lincoln. Lincoln’s talking about the Declaration of Independence, and he says, “You know, when these words ‘all men are created equal’ are written, they’re not true. It’s just not true. People are held in slavery. The conditions are those of great inequality.” But Lincoln says the words are put there so that someday, they might become true, so that each generation would see that they had an obligation to redeem the promise of those words.

 

      This is an Enlightenment idea, the idea that each generation can improve on the past generations and can add something in their experience as times change. This also is the way we should think about our founding, as a great experiment, but also a great success, and the various ways in which we’ve improved the American experiment in democracy, especially during the period of Reconstruction, and that we should see our Constitution not as something that we are chained to or as simply an object of our obedience, but as something that we have been bequeathed, something that we have been handed, something which is our duty to redeem in our own time.

 

[Applause]

 

Chris Green:  Chris Green from Ole Miss. I have a question for Professor Balkin. Mark Tushnet has said -- I think it was on your blog. He suggested that your embrace of originalism is some sort of elaborate piece of performance art, that you’re engaged in this very, very long con at this point. I’m wondering --

 

Hon. Amul Thapar:  -- A French performance artist, no less.

 

[Laughter]

 

Chris Green:  So are you? And can you do something more vivid to demonstrate that you’re not?

 

[Laughter]

 

Prof. Christina Mulligan:  Chris Green, you’re amazing.

 

Prof. Jack Balkin:  [Laughter] I guess I would say that I don’t think Mark Tushnet’s entirely reliable in either the things that he’s written about me or many of the things he’s written on my blog. Otherwise, I think he’s a wonderful fellow and we have wonderful discussions, but I think Mark regards me as an exception that he’s trying very hard to get rid of in making a larger argument. And my argument with him is that this is not the right way to think about our constitutional tradition. So this is just a disagreement we have.

 

Chris Green:  Thank you.

 

Cameron Atkinson:  Cameron Atkinson from Connecticut. I had a question to the panel in general. So a lot of the provisions of the Bill of Rights developed through the customs and practices of English common law and ultimately are enshrined in text. At what point, in terms of Jefferson’s letter to Madison in terms of the dead hand, at what point does the customs and practices definition stop becoming relevant, especially when you’re dealing with a provision that you take the Fourth Amendment that literally uses the word reasonable. And how do you define reasonable if it stops at its enshrinement in the Fourth Amendment?

 

Prof. Stephen Sachs:  One thing that I might venture on that point -- I’d just say that first, I’m not a Fourth Amendment expert, so my research into the subject is not as extensive as I would like it to be. But there’s at least some argument, and some folks have been making this argument recently, that the Fourth Amendment reasonableness requirement has to be understood in light of the available remedies. So the Fourth Amendment was not introduced as an exclusionary rule. Indeed, the exclusionary rule, I think there’s a good deal of evidence, evolved somewhat later.

 

      The remedies that were available for the Fourth Amendment primarily were damages actions against individual officers. If an officer breaks into your house and they say, “I was trying to find evidence of a crime.” You say, “Well, where’s your warrant? And if you don’t have one, I can sue you. And the fact that you’re an officer won’t save you because there’s a right of the people to be secure in their persons, houses, papers, and effects from unreasonable searches and seizures.” And what counted as, in part, in unreasonable searches and seizure would be something that was illegal if the officer had not been an officer. If they had just been some private investigator rooting through your stuff, you would be able to sue that person for breaking into your house and searching through your stuff. And the fact that they’re an officer is no protection. So there’s a sort of private law definition of what the rights of privacy were.

 

      If that’s right, and I don’t know that it is, but if that’s right, it gives us a pretty clear idea of how we would apply it to different circumstances. So you have situations like what do we do when people are using infrared cameras to look at the temperature of the outside of your house as the Supreme Court had to decide a few years back. And there’s one way of doing it, which is just to design a realm of privacy that the Court is going to intuit and thereby protect against all infringement.

 

      Another way of doing it is to say, well, what does private law say on this matter? If your worst enemy hired a private investigator to go photograph the outside of your house and figure out how warm or cold it was, would that be illegal? And if not, maybe that shows us something about whether you can expect to have that information private or not and what is actually a reasonable search and seizure.

 

      So again, I don't know if that’s true, but many of the rules of the Bill of Rights were designed not just to preserve a particular customary arrangement that might then break when presented with new facts, but to enforce a particular kind of rule that applied to current facts. You use current facts as inputs to the rule and you get an output. And that rule stays the same over time, even when the facts that you feed into it might be different.

 

Evan Bernick:  Just to build on that a little bit, originalism really needs to take seriously the problem of compensating adjustments, particularly in the context of the Fourth Amendment. It’s one thing to say that the exclusionary rule was probably something that was just developed by the Warren Court because they thought it was a good idea as a matter of policy. It’s another thing to say, well, we should return to how the Fourth Amendment was understood circa 1789 where the assumption was that certain remedies would be available and certain immunities from constitutional suit didn’t exist at all.

 

      Now we have qualified immunity. There’s a good argument that qualified immunity has no grounds in the common law as it existed at the Founding. So what do we do? Do we get rid of the exclusionary rule? Do we wait for the abolition of qualified immunity to get rid of the exclusionary rule? Do we insist upon doing them both at once? These are hard, complex problems. I don’t think they lend themselves to an algorithmic answer, but I think it’s important that originalists confront them and think about them before taking any sweeping measures to get rid of what is obviously an unoriginalist rule.

 

Laszlo Pinter:  Thank you very much, panel. My name is Laszlo Pinter. I’m from Danbury, Connecticut. And the one thing I never thought would happen at a Federalist Society convention is to have the opportunity to thank the French for saving our country.

 

[Laughter and applause]

 

      So my question is, and this follows up on something Governor DeSantis said, which I think is a very risky and critically important issue in the last one or two years, that is the nationwide injunction effort that’s been going on. I wonder if the panel could comment on whether there’s anything in the Constitution that addresses the legality or illegality or application of the use of nationwide injunctions and anything that could be done within the language of the Constitution. Thank you.

 

Prof. Stephen Sachs:  Let me first say that if you’re looking for expertise on this issue, on January 29 at 12:30 p.m. at Duke Law School, we will be having a debate on the nationwide injunction with Professor Sam Bray of Notre Dame and Professor Mila Sohoni of USD. So I’m looking forward to learning more then.

 

      I’m honestly not sure whether the case or controversies language of Article III says very much about nationwide injunctions. I believe that Professor Bray has argued that it does, that they are unconstitutional. It strikes me that the better arguments against them really follow from the civil rules and the rules of equity, that Rule 17 requires that a case be brought in the name of the real party and interest, and that if you’re acting for the benefit of another, you have to have a statute that says you can, or meet various other criteria. Rule 23 has various restrictions before you can represent a class as a class rep. I think that it’s those things that make the nationwide injunction complicated and not necessarily rules in the Constitution.

 

Hon. Amul Thapar:  Over here?

 

Questioner 8:  There hasn’t -- one word that hasn’t come up in this conversation, although I think it’s been touched upon slightly, is legitimacy and the advantage originalism gives to the idea that the rules and laws are legitimate because they’re not made up. And my question is, to the extent there’s another interpretive method besides originalism, how do those interpretive methods have legitimacy for the populace? Some of you have talked about that, that the people talk about the Constitution.

 

      And I’d like to ask this question a little more -- sharpen it, in that we’ve -- President Wydra, you just talked about how reproductive rights are a natural exposition of the Fourteenth Amendment, but you also praised the amendment allowing women to vote. Was that amendment necessary under your originalist view of the Fourteenth Amendment?

 

Elizabeth Wydra:  Thank you. And just to be clear, you don’t have to call me President Wydra. I appreciate the Judge saying it, but you don’t really have to.

 

      But I think that legitimacy is important. And I think in some ways, that’s why we have something of agreement, as I mentioned, among the Supreme Court Justices that, obviously, you start with the words of the Constitution when you’re doing constitutional interpretation. If they just got up there and said, “We can do whatever we want,” -- they’re not going to do that. You can do it to the fourth or the fifth or the sixth power, but it’s not that deep. You start with the words of the Constitution, and I think that legitimacy is part of that.

 

      Do I think that the Nineteenth Amendment of the guarantee of the right to vote for women was necessary after the Fourteenth Amendment’s guarantee of equality in the same way that the Fifteenth Amendment was passed to ensure that people of color were not denied the vote because of racial discrimination? Sometimes we’ve got to say things a few times in the Constitution to make it clear. I don’t think that there’s anything wrong with that, and I think that the idea of women being included in the Nineteenth Amendment in democracy also has greater implications. Professor Amar has written about this, that the idea of being able to vote also involves being able to serve on a jury and the way that being a juror and being a voter have greater implications for what it means to be a citizen in democracy.

 

      So I don’t know if that gets to your question, but I think that legitimacy is something that’s important. And that’s why I think it helps for folks on the left as well to argue rooted in the text and history of the Constitution because I think that that’s something that we can all agree on, at least as a starting place. And I think if we just -- if someone said, “I don’t care. I’m going to do what I want because I think it’s good policy,” as opposed to, “I think that we should pass this policy because I’m guaranteed this equality in the words of the Constitution,” I think one of those arguments is a little more powerful.

 

Hon. Amul Thapar:  Professor Balkin?

 

Prof. Jack Balkin:  There were people who did argue, by the way, around the time of the Fourteenth Amendment that the privileges and immunities of citizenship included the right to vote. That argument did not win out. The Supreme Court rejects it in Minor v. Happersett. But it wasn’t a crazy idea at the time. Many people thought, in fact, that is the best interpretation.

 

      But one reason why we have amendments to the Constitution is when arguments lose, they can be resuscitated again. I gave the earlier example -- I was talking about the taxation. The Supreme Court had upheld an income tax during the Civil War. The Supreme Court then in Pollock basically struck down that income tax. Well, Pollock was wrong. It was just incorrectly decided. But the Sixteenth Amendment essentially restored or — not completely — but helped to restore the correct interpretation.

 

      It’s this point that Steve Sachs has made, and I agree with it. Supreme Court is very often wrong. In fact, throughout history, the Supreme Court has more often been wrong than it has been right. It’s very important when we think about our Constitution to understand that each of us has an obligation to think deeply about what we think our document means. It belongs to us. It doesn’t belong to the Supreme Court. It’s very important that each of us make our claims on the Constitution to each other because, in fact, if we don’t do that, the Constitution will be taken from us. It will no longer belong to us.

 

Hon. Amul Thapar:  I just want to note that Professor Balkin said that, not Judge Thapar.

 

Prof. John McGinnis:  So I’d like to focus on legitimacy and originalism’s importance to legitimacy. I think one of the most important aspects of legitimacy is the sense that we the people are sovereign, and we the people are sovereign must ultimately be sovereign over our fundamental law. So it is absolutely crucial that the Constitution contain an amendment process so that we the people through supermajorities can change our law and rule ourselves.

 

      Originalism is absolutely crucial to protecting the amendment process because if we didn’t have originalism, it could be judges who could amend the Constitution. And indeed, the wind would be taken out of the sails of the amendment process. People would try to do this through judges and judicial appointments rather than through collectively making decisions themselves. So we think that our popular sovereignty here and now is important to legitimacy of our Constitution and our whole political system, originalism is at the foundation of that.

 

Hon. Amul Thapar:  Well, I want to -- unfortunately, we need to stop. I know we could go all day with this panel. What a phenomenal panel. So please give them a round of applause.

 

[Applause]

 

      And thank you all very much for being such an attentive audience.

 

 

 

11:45 a.m. - 1:30 p.m.
Horizontal Federalism: May States Project their Sovereignty Beyond Their Borders?

2019 National Lawyers Convention

Topics: Federalism • Federalism & Separation of Powers • Constitution • State Courts • State Governments • Supreme Court
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 14, 2019, the Federalist Society's Federalism & Separation of Powers Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "Horizontal Federalism: May States Project Their Sovereignty Beyond Their Borders?".

The Supreme Court's recent decision in Franchise Tax Bd. v. Hyatt (overturning Nevada v. Hall) enforced an originalist understanding, limiting attempts by a state to extend its sovereign powers beyond its borders. Although often overlooked, vertical federalism arose in part as way of controlling the abuses of horizontal federalism under the Articles of Confederation. Some states had arguably been using their powers to infringe on the powers of other states. The Constitution’s strong federal government (yet with a limited number of powers) modified, without eliminating, horizontal federalism. The Constitution adapted from the Articles of Confederation certain horizontal provisions such as privileges and immunities, extradition, and full faith and credit. The two forms of federalism are encased within our current system of separation of powers. 

Vertical federalism is evident when different groups of state AGs -- Red state AGs against Obama and now Blue state AGs against Trump-- have challenged federal policies in suits filed in federal courts. Different and more difficult to challenge, however, are attempts by one state or a group of states to make its policies effectively binding on other states. Examples include sanctuary state laws, California’s Internet regulation, cities and states suing oil companies in an attempt to regulate global warming and the National Popular Vote Compact. These developments implicate not only federalism and separation of powers, but the limits of state police powers and the natural right of self-government. Do these actions by some states necessarily come at the expense of other states? Do they violate the fundamental right of citizens to be governed by their own state constitutions and the separation of powers system of the federal Constitution?

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University and Visiting Professor, Center for the Constitution, Georgetown University Law Center
  • Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law
  • Prof. Edward L. Rubin, University Professor of Law and Political Science, Vanderbilt Law School
  • Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
  • Moderator: Hon. Michael Brennan, United States Court of Appeals, Seventh Circuit

Speakers

Event Transcript

Dr. John C. Eastman:  In my role as chairman of the practice group, I want to thank you for all attending and filling the room, and to the overflow room as well, I suspect.  For those of you that are interested in our practice group, as you know, it deals with federalism and separation of powers issues, and we’re always looking for new blood on our executive committee. You can send a note to Juli Nix or Dean Reuter or me if you’re interested in that, and we’ll tell you all that’s involved. And we welcome that, as also your ongoing participation in our podcasts and our writings and the programming that the practice group sponsors.

 

      And with that, I will now introduce it to Judge Brennan on the Seventh Circuit Court of Appeals who’s going to moderate this panel. Thank you very much.

 

Hon. Michael Brennan:  Thank you, John. The topic today of our panel is “Horizontal Federalism,” the less well-known sibling of the two dimensions of federalism in our constitutional system of separation of powers, less well-known, of course, than vertical federalism. It’s allocation of power between the federal government and the states.

 

      The Constitution presents two structural features that place in tension the allocation of power among the states. The first is that states are equal in stature. Second, the Constitution defines state power in the aggregate rather than individually, which complicates efforts to define state authority. The Founders, having lived through the Articles of Confederation, were well aware of the potential for interstate discord. Certain Federalist Papers, No. 6 by Hamilton, No. 5 by Jay, and No. 45 by Madison, warned of the states’ propensity to undermine and antagonize each other. In the Confederation, which preceded the Union, states asserted their independence by retaining their own monetary systems, erecting barriers to regional trade, and controlling their own militias. So interstate friction has been with the country since there have been states.

 

Our panel today will approach a number of questions about how the behavior of states may or may not induce friction. From the Federalist Papers, some of the questions that they’re going to approach are what parts of the Constitution are designed to control the states interfering with each other? When and how may states legitimately project their power into other states? What are the different implications of a nation being divided up into states? Is there a distinction between federalism and decentralization? And if there is a distinction, what is it and is it useful anymore? Is horizontal federalism a contradiction? How does the Dormant Commerce Clause factor into thinking about how a state can project its power into another state?

 

Our prompt in the materials identifies one example of interstate friction recently decided by the U.S. Supreme Court in Franchise Tax Board v. Hyatt. I’ve also been charged with laying down a challenge to our audience today. Many conservatives think reflexively that if a state does it, then it must be justified. So part of our debate today is about what things a state does that are not justified.

 

Our distinguished panel is made up of four scholars with substantial writing and thinking in this area. I’m going to introduce them now. Their full bios are in the materials, so just a short introduction on each. John Baker is a Visiting Professor at the Center for the Constitution at Georgetown University Law Center and Professor Emeritus at Louisiana State University. He has taught at the law schools at a number of universities, including Oxford, Catholic University, Tulane, George Mason, Pepperdine, and others foreign and domestic. For years, Professor Baker taught The Federalist Society’s separation of powers course with the late Supreme Court Justice Antonin Scalia.

 

Edward Rubin is the University Professor of Law and Political Science at Vanderbilt Law School. Professor Rubin joined Vanderbilt Law School as its Dean. Previously, he has taught at the University of Pennsylvania Law School and at the Boalt Hall School of Law at the University of California Berkeley. Professor Rubin is the author of numerous books, including Federalism: Political Identity, and Tragic Compromise with Malcolm Feeley.

 

Third, we’ll hear from Ilya Shapiro, who is the Director of the Robert A. Levy Center for Constitutional studies at the Cato Institute and publisher of the Cato Supreme Court Review. He has contributed to a variety of academic, popular, and professional publications. He has testified before Congress and state legislatures, and he has filed more than 300 amicus curiae briefs at the U.S. Supreme Court.

 

Then, we’ll hear from John Eastman, the Henry Salvatori Professor of Law and Community Service and former Dean of the Chapman University School of Law. Professor Eastman is also the director of the Center for Constitutional Jurisprudence, which affiliated with the Claremont Institute for the Study of Statesmanship and Political Philosophy.

 

Each of our panelists will speak for eight minutes here from the rostrum. We’ll then ask the panelists to respond to each other’s remarks in a roundtable fashion. After we move through a couple of rounds of comments, we’ll move to questions from the audience. Let’s begin with Professor Baker.

 

[Applause]

 

Dr. John S. Baker, Jr.:  Thank you, Judge, and thank you for covering an introduction that allows me to elaborate a little bit but spend more time on other things. And by the way, it’s difficult to read on this podium with no light on here. So picking up from what Judge Brennan said, the reality is we don’t often associate the word horizontal with federalism. But to understand our system, which often we don’t fully understand the integrated structure that Judge Brennan was talking about, we have to begin with the notion that the Federalist begins with. And that is that federal systems are inherently unstable.

 

That was the problem that they faced. Back then, of course, federal and confederal meant the same thing. But because of the way we redefined things, federal has come to mean, for us at least, what the American constitutional system is. But because we tend to think of federalism in terms of the vertical relations, we often, as the judge indicated, ignore the horizontal relationships that actually were the reason why the Constitutional Convention met in the first place. We think of it just as about commerce. Yes, it was about commerce, but it was about more than that.

 

So while we may be very concerned, as we are as conservatives and libertarians, about the abuse and overreaching of power by the federal government, we have to realize that the same thing, but to a lesser extent and confined to certain states, is happening. And the danger in all of this is that it will produce the situation that the framers understood. That is, federal systems have a tendency to do one of two things: explode or implode and consolidate power.

 

We have two different tendencies in this country right now: one, the centralization of power, and the decentralization of power. You may not be aware, but there’s an active successionist movement in Hawaii in Vermont, not that they’re going any place, likely, certainly not with North Korean missiles aimed at Hawaii. But it is a concern in terms of the way we approach certain issues, first of all understanding the structure.

 

Is there a lot of booming coming off the mic? Okay. I can’t even hear myself. Okay. Thank you, John. First of all, I want to talk about -- that didn’t do any good. Trying to help me.

 

Look, three things I want to talk about: the fact that there is this inherent instability. Two, what did they do about it? What they did about it was to remove the control over borders by the states but to add to it the obligation of the federal government to protect the states. And three, what are some of the examples today where states are abusing their powers that is projecting their sovereignty, which is not full? They have residual sovereignty. They lost full sovereignty by losing control over their borders. It’s no longer a treaty system. It is a federal government, which is our invention. We seem to have forgotten. It’s significant sometimes.

 

Hon. Michael Brennan:  John, you’re not getting picked up in the other room, so just try and do it two inches away. There you go. That’s it. Right there.

 

Dr. John S. Baker, Jr.:  Who’s responsible for this sound system? Okay. Excuse me while I pick this up. I can see the light.

 

Hon. Michael Brennan:  Is there a light switch? There should be a light switch.

 

Dr. John S. Baker, Jr.:  Look. There’s certain things I’m trying to get in the Article. It’s Article IV, Section 4. There are certain provisions from the Articles of Confederation that are horizontal federalism that are taken over: full faith and credit, privileges and immunities, extradition. They were all strengthened. They were given enforcement power that didn’t exist before. That is the vertical dimension that is there to enforce the horizontal relationship among the states.

 

You add to that diversity jurisdiction, which many federal court law professors who teach federal courts don’t understand, and judges don’t understand the importance of diversity jurisdiction. It is about horizontal federalism. It is about retaining the relationships among states. It’s about controlling states from projecting their jurisdiction and their laws to other states, which they have a tendency to do in some states. But the federal government also has the obligation to protect state borders, not just against foreign intervention or invasion, but against each other.

 

So for instance, a case that you probably spent less than a nanosecond on in constitutional law is a critical case. It’s called the Lottery case. Anybody remember the Lottery case? Okay. Only one person remembers this, so that means that nobody really studied this. So why is the Lottery case important? Because Congress got it right. The Court got it wrong. Why? Now, if you remember the case, it was about lotteries in a foreign country in Central America, but that was not the case. It was all about Louisiana. That’s why I know about it.

 

Louisiana, at the time, was the only state in the country to have a lottery. The rest of them had gotten rid of them. Why? For religious regions they got rid of them. The Lottery Act was aimed only at Louisiana. But what the Congress did was not to outlaw lotteries. They simply said you can’t ship lottery tickets out of the state. Why? The other states could not block the lottery tickets from coming in. They had lost control of their borders. It was commerce. It could come in. They couldn’t do anything about it. And of course, Louisiana got 93 percent of its income from the lottery from other states.

 

So one state prohibits lotteries and another state undermines all the other states. That can’t be. It was a proper role of the Congress to protect the other states against the rogue state. That’s part of Congress’s job that it has forgotten all about. Why? The Supreme Court said in the Lottery case, “You did a good thing. This is a bad thing, lotteries.” And if you go and you read in the Congress afterwards, they said — and these are progressives — they’re saying, “The Court said we did a good thing to deal with this immoral thing.”

 

And guess what? The progressives took off with it, and that is the beginning of the over-federalization of criminal law and the vertical imposition on the police powers of the states, all because the Court got it wrong, even though Congress got it right. And generally since then, we have forgotten the relationships that should exist.

 

You can’t hold me at time after this mike thing.

 

[Laughter]

 

Hon. Michael Brennan:  I’m giving you two more minutes.

 

Dr. John S. Baker, Jr.:  We’ll negotiate. Okay. So what are some of the abuses that are going on today? I’ll just break them into several categories. One is climate change, illegal aliens, obviously, and the national popular vote.

 

      Climate change -- the former Attorney General of New York, when he launched his litigation or investigation in the Grand Jury against Exxon and other companies, announced to a press conference that because the Congress would do nothing about climate change that these 17 attorneys general were going to solve the problem of climate change. That was quite a daring operation on his part. How could he do that without projecting his power beyond its legitimate bound? And then California cities have taken it up. Cities and counties have taken it up with all kinds of litigation about the rising seas and blaming all this on the oil companies. These are national problems, if they are problems, but they’re not problems that a state can solve. And for you to get into this business, you are usurping the powers of the federal government.

 

And how about the immigration problem? There’s no obligation on the part of states to do what is a federal job. They can agree or not agree to cooperate with ICE. That’s up to the state. But it’s quite a different matter to undermine federal law, to encourage people to come. And it’s not only a problem about federal law. It is a census problem and a House of Representatives problem and an Electoral College problem. In California, citizens are leaving in large numbers. And yet, the California population keeps going up. I wonder where they’re coming from. And for decades, we have been including in the reallocation of House seats everybody physically there, even members of embassy staffs. I have it documented. That interferes with the power of other states.

 

Third thing, national popular vote. How many people know about this movement? Well, good, at least some of you. You better wake up. This has been going on for a number of years. Some year ago, we had a panel on this, but they’ve gotten to states and the District of Columbia representing 195 electoral votes. They only need a handful more of blue states, and they’ll hit the magic number 270. The whole thing is to have a compact, which the Constitution prohibits unless you have Congressional approval, which they don’t provide for. They say, “Well, we might get it.” We will have a constitutional crisis if they get to 270 votes, and you have another close election. And there is the attempt to force a change in votes where people in a state who voted by a majority for one candidate are told that their votes are going for the other candidate because the other candidate got a majority of the popular vote.

 

These are crises that are brewing, and they threaten the structure of our government. And it’s not just the federal government. The federal government is doing things it ought not to do, but it is not doing things that it ought to do. Thank you very much.

 

[Applause]

 

Hon. Michael Brennan:  Thank you, Professor Baker. We’ll move to Professor Rubin.

 

Prof. Edward L. Rubin:  I’ll try to make this work. I’m not as stentorian as John, so I hope I can make the mike work. But thanks for having me.

 

      If we think about federalism and extraterritoriality, obviously there are two considerations; one is what is extraterritoriality and the other is what is federalism. I want to talk a little bit about what federalism actually is. So my colleague, Malcolm Feeley, and I have made a distinction that we think is important between federalism and decentralization.

 

      Decentralization is a managerial policy where an institution delegates certain authority to subunits of that institution. So this is something that’s a general organizational feature. Most large firms, for example, are decentralized. And there are various principles for decentralization. You can have decentralization on the basis of function. So a firm might divide itself by production, marketing, public relations, and that sort of thing. A firm might divide itself by brands. General Motors is famous for this. Or a firm might divide itself by geographic areas, dividing the country or, indeed, the world into regions and having a subunit be responsible for each region. In politics, the division tends to be geographic in nature, and so you have political decentralization being the central government giving certain powers to geographically defined subunits of the nation.

 

Now, this is not the same thing as federalism. And the reason it cannot be is that every nation in the world under than the Vatican is decentralized to some extent on a regional basis. They all have subunits and usually localities underneath them. It really is very difficult to govern everything from a center. But the point of decentralization is that this is a mechanism that the central authority is using to govern more effectively and carry out its own policies in a more effective manner. Federalism involves the creation of definitive rights by the subunits against the center.

 

Now, why would any central government agree to lose control over portions of its jurisdiction to the authorities in a subarea? Basically, there are two reasons that we know from history. One is that’s the only way to unify the nation or unify an organization. You can think of the E.U., for example, as a highly decentralized polity. The other is because the nation may be unified, but there are groups within that nation that have a different political identity and that are unwilling to associate themselves with the nation as a whole. The example that comes readily to mind at present is Spain where you have several different areas, the Basque Country and Catalonia, where people speak a different language, have a different history and are demanding a degree of autonomy.

 

Now, we come to the United States, our country of interest. It’s not clear whether when the United States was formed it was formed as a national system that simply decentralized power to the states — that was, after all, the British Colonial model that we inherited — or whether it was a federal system where a group of states allied with each other to form a nation. There are plenty of historical support for either view. And in fact, this was one of the major battles that was occurring in the pre-Civil War period. But we know what’s happened in the post-Civil War period, which is the United States has developed a uniform political identity and has become a unified nation. So federalism, as it existed or may have existed in the pre-bellum period, is now vestigial. What we have is a decentralized system that really reflects the unified political identity that we’ve achieved. And it’s a very substantial political achievement of the United States.

 

What does this mean for territoriality? Well, it means that the principle of geography, the principle of administering through geographic subunits, is the one that should control. And that means that the issue needs to be thought of primarily in managerial terms. So this would suggest that incidence or occurrences in each state should be governed by that particular state and that we should be very skeptical of state power being extended beyond the boundaries of the state. So for example, I’ll just pick something noncontroversial like assisted suicide.

 

[Laughter]

 

If a state prohibits assisted suicide but another state permits it, and people from that state travel to the other state to avail themselves of this, it should be the other state’s law that controls because the occurrence is happening in that other state. Or to pick another example, equally uncontroversial, of abortion restrictions, the same would apply. If people travel to another state to avail themselves of different abortion rules, it should be the other state’s rule that apply because that’s the managerially based version of -- or the managerially based solution to the problem.

 

Now, interestingly, this is an example where, if you take a states’ rights view, you basically get the same results. I don’t know exactly what it means to say that the states are sovereign because the whole theory of sovereignty related to a uniform regime that had plenary authority. But assuming you want to say that and think in terms of states’ rights, okay. So the state from which the citizens depart has rights, but so does the state to which the citizens then travel. So we’re talking about two conflicting sets of rights.

 

I think the only result of that is you’re going to get a more confused analysis because you’re dealing with something mystical rather than something that is, A, practical, namely the managerial principle, and B, reflects the reality of political identity in the United States today. Thank you.

 

Hon. Michael Brennan: Thank you, Professor Rubin.

 

[Applause]

 

      Now we’ll hear from Ilya Shapiro.

 

Ilya Shapiro:  I’m going to try to solve this microphone problem with a different method here. I have one on this side, one on this side. We’ll see how that works out. What’s that? Is there a light here? Is there a light switch here? I guess not. I’m going to have to read, regardless, in the dark.

 

      Well, it’s great to be with you all here. This is actually my first time on the National Federalist Society Stage. I feel like the Crash Davis of FedSoc, been toiling in the minors, probably spoken to most of your local chapters over the years, finally get the big call up to the show.

 

[Laughter and applause]

      And they awarded me all this fruit salad of Brezhnevite ribbons to go along with it, so it’s very nice. It’s kind of distracting.

 

And they put me on a panel of horizontal federalism, which to me is a misnomer, as is cooperative federalism, by the way, because federalism by definition is the idea that you separate sovereign powers vertically between nation and state sovereigns, just as you separate them horizontally into three branches. So I get what horizontal means. The Judge did a nice way of framing the discussion, but I think it’s inapt because, for example, Maryland and Virginia weren’t splitting the same chunk of sovereignty. They’re just geographic delimitations of a broader thing.

 

What we’re talking about here, really, is interstate relations, which encompasses comity, full faith and credit, privileges and immunities, and the regulation of interstate commerce, including its Dormant capacity, as I’ll go into. Not that I have a better name for this panel, although its focus is the extraterritorial effects of state regulations as well as state lawsuits, global warming, compacts. John Baker mentioned the national popular vote, which to me -- all of which is subsumed with interfering with interstate commerce.

 

The writeup to this panel mentioned the Hyatt case from this past Supreme Court term about extra state taxation. But I think there was an equally or even more important case from last term that’s relevant here, and that’s the Tennessee Wine and Spirits v. Thomas case where the Court, by a 7-2 vote, struck down a state requirement that to get a liquor license, a retail liquor license, you have to have lived in the state for a number of years. Or if you’re a corporation, all the shareholders need to be in the state. Braden Boucek wrote an excellent piece -- I don’t know if Braden is in the room today or hopefully he’s at the conference. He’s the head lawyer at the Beacon Center in Tennessee -- for the Cato Supreme Court review this past year on Tennessee Wine called “That’s Why I Hang My Hat in Tennessee: Alcohol and the Commerce Clause.”

 

So I want to focus my remarks on the Dormant Commerce Clause, in part because this is one of the few areas of law where I depart from that hero of federalism, Justice Thomas, and the only area I’ve yet discovered where I depart from Justice Gorsuch. And I lean heavily on Braden’s exposition and analysis here. Courts have interpreted the Commerce Clause to have a negative component that prohibits states from discriminating or placing excessive burdens on interstate commerce. I liken it to the constitutional equivalent of implied statutory preemption, which is, I think, inherent in our constitutional structure. It’s kind of like judicial review.

 

They didn’t need to spell out that Congress can regulate interstate commerce. And also, when it doesn’t, states can’t interfere with it. It’s assumed. It’s implied. The Dormant Commerce Clause arises from the concern over the burdening of interstate commerce. And indeed, preventing interstate trade wars, which are not easy to win, was one of the original purposes in convening the Constitutional Convention. As the Court said in Hughes v. Oklahoma, 1979, by granting Congress authority over interstate commerce, the Constitution aimed to avoid tendencies towards the economic Balkanization that had plagued relations among the colonies and later among the states under the Articles of Confederation.

 

Dormant Commerce Clause analysis falls under one of two categories. The first is legislation that’s per se invalid. The second considers incidental burdens and applies a balancing test developed in Pike v. Bruce Church. But there’s no clear line between the two. And under either analysis, the Court has held that critical consideration is the overall effect of the statute on both local and interstate activity.

 

Two types of laws are considered per se violations: those that are facially discriminatory on out-of-state businesses and those that regulate extraterritorial conduct. The defending state has to overcome a presumption of unconstitutionality by demonstrating that the burden serves a legitimate local purpose that could not be adequately served by available nondiscriminatory alternatives. This is some sort of heightened scrutiny. It’s not quite rational basis. Plus, it’s not quite strict, but these are the showings that, overall, the courts grapple with.

 

And these cases have historically cropped up in subjects like fish, trains, trucks, which along with booze are all great subjects for country songs. So I encourage any of you academic members to let your pun flag fly in all of these sorts of literatures. For the plaintiffs who bring an extraterritorial challenge, the question is whether the practical effect of the regulation is to control conduct beyond the boundaries of the state, as the Court clearly said 30 years ago in Healy v. Beer Institute. There really are a lot of alcohol cases here.

 

The Commerce Clause generally protects against inconsistent legislation arising from the projection of a one state regulatory regime into the jurisdiction of another. For example, a state can’t force an out-of-state merchant to seek regulatory approval in one state before undertaking a transaction in another. And this extraterritorial analysis requires a court to consider not only the consequence of the statue itself but how the challenged statute may interact with the legitimate regulatory regimes of other states and what effect would arise if not one but many or every state adopted similar legislation.

 

Again, you hear echoes of this anti-interstate trade war rationale. Extraterritoriality cases actually make a small part of Commerce Clause jurisprudence, although it’s growing in part because of the types of regulations that John Eastman will talk about coming from California, but also the rise of the internet age. As states increasingly try to regulate perceived problems online, extraterritoriality challenges are apt to increase as well. Given the borderless nature of the internet, any effort to regulate is doomed to “project its regulation into other states and directly regulate commerce therein.”

 

Lower courts are all over the place on this question, so I think the Supreme Court is going to have to weigh in. But states who wish to regulate online businesses would do well to tailor those laws to remain in state. I should note that taxation and regulation are different with respect to interstate commerce. The compensatory tax doctrine allows even facially discriminatory laws to survive so long as they’re designed only to make interstate commerce bear a burden already borne by intrastate commerce. And you saw that in the Wayfair case a couple of terms ago. But this is different than the regulation of interstate commerce.

 

Under a recognized line of cases, states may not require an out-of-state party engaging in national transactions to qualify to do business in the state, absent evidence that the party has sufficiently localized. This comes from the Allenberg Cotton Company v. Pittman line of cases from 1974, which I think is an undertheorized -- and often judges look at this case, and they really don’t know what to do with it. Maybe it’s even a third category on top of the per se and the Pike balancing types of cases. Finally, when a facially neutral law has the effect of actually discriminating against out-of-state businesses, the Court reversed the level of scrutiny it applies to facially discriminatory measures. So the burden, again, is on the state to justify the local benefits and the unavailability of alternatives.

 

Now, the Dormant Commerce Clause has its critics, of course, as I’ve mentioned, who fault it for being constitutionally atextual. Could other constitutional provisions do the work that -- to invalidate, for example, Tennessee’s durational residency requirement that came up this term? Justice Thomas has suggested the Import/Export Clause or the Privileges or Immunities Clause of the Fourteenth Amendment. I certainly endorse that. I would also add Privileges and Immunities from Article IV, which both played subparts in the Tennessee Wine case but ultimately weren’t ruled upon.

 

The obvious question now surrounds the inevitable line drawing in determining where the predominant effect of a law is protectionism, not the protection of public health and safety. And there’s a big circuit split as to whether mere in-state protectionism of industries is a sufficient rationale for these types of laws. The Fifth, Sixth, and Ninth Circuits are correct in saying that protectionism is not a sufficient rationale, whereas the Second and Tenth Circuits are wrong in allowing base protectionism in state industry to prevail.

 

The larger debate about the Dormant Commerce Clause remains after Tennessee Wine. Somewhat surprisingly, the dissent, Gorsuch and Thomas, actually don’t discuss the Dormant Commerce Clause there. Their dissent was purely on the Twenty-first Amendment. But the looming conservative argument over alternative constitutional theories will have to wait. And for its part, the Dorman Commerce Clause is alive and well, both with respect to extraterritoriality and protectionism and other issues that I’ve raised, with the majority’s vigorous use of the doctrine gaining seven votes, including the newest justice, Brett Kavanaugh. Thank you.

 

Dr. John C. Eastman:  So can the soundboard guys just -- we’re getting a ton of feedback up here. Can you just adjust it just slightly so maybe we can get that fixed?

 

      I’m going to take issue just briefly with Ilya on the Dormant Commerce Clause. The issue mainly there is who gets to decide, Congress, which I think the Constitution sets out, or the courts, which I don’t think it does. I do think the Tennessee Wine and Spirits v. Thomas was an aptly named case, since it’s against Thomas’s views on the Dormant Commerce Clause. And it’s now against Thomas and Gorsuch. It was against Thomas and Scalia before. But that’ll be next year’s panel, and we’ll get you back, and we’ll have that on board.

 

A number of years ago -- let me start with this. I don’t think, whether the Dormant Commerce Clause analyses are correct or not, there’s an exception in the Dormant Commerce Clause for states when they’re acting as market participants. And it’s that market participant loophole that has led to a lot of the interstate conflict that we’re now seeing and is a threat to the kind of independent policy judgement aspect of state sovereignty that I think is really at issue here.

 

So a number of years ago, California, San Francisco, which owns the San Francisco Airport, decided to use the fact that it owned and could then decide the leases for the gates at its airport to set international airline corporate policy, not just for their operations in California, but worldwide. And if you didn’t change your corporate policy for wherever else you were flying, you would not be allowed to fly into San Francisco airport. And that seemed to be a projection not just of California’s policy judgement about particular issues but of San Francisco’s policy judgement of particular issues into corporations that were grounded in Delaware and their operations, not only in other states, but around the world. It threatened the very idea of independent sovereign states setting their own course for policy, but it also meant that California was, in some measure, deciding international or foreign policy for the United States using this hook of market participant by owning those gates at the San Francisco airport.

 

And we’ve seen this thing break out a lot. And it’s one of the exceptions to our normal understanding of the Full Faith and Credit Clause that I want to focus on. Every state has to give to each other state the full faith and credit to the public acts records and judicial proceedings of every other state. But there’s always been an exception understood in that when giving credit to another state’s policy judgements would undermine that state’s own policy judgements. So I want to pick up on Ed Rubin’s comment about if a state wants to allow for assisted suicide, and I go there to get assisted suicide, I’m probably not going back to my home state to do anything further.

 

[Laughter]

 

But it’s a different rule if I’m going to get an easy divorce from Las Vegas that was contrary to the policy in my home state, and then I go back to that home state, and I’ve now completely undermined the marriage policy of that state. So I think it’s important for us to look at these extraterritorial reaches on whether it’s altering the policy of the separate sovereign state within its own jurisdiction.

 

And we’ve got a spate of these issues that are coming up recently. California, in 2016, banned state agency travel to Kansas, Mississippi, North Carolina, and Tennessee. This was triggered by North Carolina’s policy judgement that they didn’t want men identifying as women going into the women’s showers in their schools or at their public pools. Attorney General Becerra added to that list Texas, Alabama, Kentucky, and South Dakota in 2017 driven by Texas’s decision to let religious welfare -- faith-based welfare organizations follow their own religious conscious in adoption proceedings and what have you.

 

Now, this is a market participant exception to the Dormant Commerce Clause because California didn’t ban all of its businesses from engaging with those states. It only banned its government employees and government travel to those states. And yet, it is trying to project its policy judgement on those states to express a disagreement with those states’ policy judgements. And I think we’ve got to revisit that exception when it’s being used so extraterritorially. Otherwise, we’re going to be back to the very conditions that led to the Commerce Clause, the Full Faith and Credit Clause, the Constitution itself, the Annapolis Convention.

 

In fact, I’ll go back one step before that, the Mount Vernon Conference in 1785. Everybody remember that one? It lead to the Mount Vernon compact between Virginia and Maryland on how we would control transport along the Potomac River. These things were designed to protect against states trying to interfere or counter the policy judgements of other states. Now, maybe there’s no way to deal with that, or maybe we’re in for a set of reverse trade wars based on those different policy judgements.

 

Here’s what happened when Los Angeles decided to boycott Arizona and Arizona businesses after Arizona passed SB1070. It’s an immigration bill. The Commissioner of the Arizona Corporation Commission wrote a letter back to Mayor Villaraigosa. He said, “Mayor Villaraigosa, you explained your support of the boycott as follows: ‘While we recognize that as neighbors we share resources and ties with the state of Arizona that may be difficult to sever, our goal is not to hurt the local economy of Los Angeles but to impact the economy of Arizona. Our intent is to use our dollars, or more specifically the withholding of our dollars, to send a message.’”

 

The commissioner then said, “I received your message, Mayor Villaraigosa. Please receive mine. As a statewide elected member of the Arizona Corporation Commission, overseeing Arizona’s electric and water utilities, I too am keenly aware of the resources and ties we share with the City of Los Angeles. In fact, approximately 25 percent of electricity consumed in Los Angeles is generated by power plants in Arizona. If an economic boycott is truly what you desire, I’ll be more than happy to encourage Arizona utilities to renegotiate those power agreements so Los Angeles can no longer receive any power from Arizona. I’m confident that Arizona’s utilities would be happy to take those electrons off your hands. If, however, you find that the city council lacks the strength of its convictions to turn off the lights in Los Angeles and boycott Arizona power, please reconsider the wisdom of attempting to harm Arizona’s economy. People of good will can disagree over the merits of SB70. A statewide economic boycott of Arizona is not a message sent in good will.”

 

Now, I think what’s happening here is we’re going to see more and more of that point/counterpoint quid pro quo economic fighting if we don’t start trying to limit the states of trying to limit not just their policy judgements but interfere with the policy judgements of other states within those other states’ own jurisdiction. Los Angeles quickly backed down, not on the power grid, but when they realized it was an Arizona company that managed its red light traffic camera cash cow generating system. And they quickly exempted that from that.

 

Now, one other thing here, and I’ll close with this. A lot of this latest market participant driven boycotts from California is based on California’s spending power as a governmental agency. But a lot of those funds, given California’s near bankrupt status, an increasingly large amount of those funds aren’t driven in California, but are federal funds. So one of the ways you could start to deal with this is for Congress to get back in and say you can’t use any federally funded program  to launch extraterritorial reaches into the policy judgements of your sister states. Maybe that’s all we can do. But given the current dynamics of federal spending, that may be an awful lot. Thanks so much.

 

Hon. Michael Brennan:  Can you turn the microphones on on the table?  Thank you. For our next stage, we are going to have the panelists talk amongst each other. You’ve heard about the constitutional strictures on the dangers that could be produced through interstate friction. We’ve heard about decentralization and the contrast with federalism. Ilya, no one will ever accuse you of being a Brezhnevite. Don’t worry. We’ve heard about the Dormant Commerce Clause and then the market participant loophole to that Commerce Clause. Who’d like to begin about a comment on each other’s presentations here?

 

Prof. Edward L. Rubin:  All right. I’ll say something. I mentioned that federalism is vestigial in the United States. I think to some extent, our discussions are indicative of why that’s the case. And the reason is no one really believes in it. What happens instead is it gets used for political purposes that people really care about. So when there’s a liberal government in power, conservatives like states’ rights and are big fans of the kinds of impediments to government, to central power that the states can offer. When the reverse is the case, when there’s a conservative government in power, like the Bush administration or the current administration, then, all of a sudden, liberals become big fans of states’ rights.

 

And I think this is indicative of the fact that basically federalism becomes a kind of way of dressing up more controversial positions in what looks like a general norm but is, in fact, something that has become, although it certainly had a role in our political rhetoric at the beginning of the republic and has continued to have that kind of pedigree, that it’s no longer something that people are committed to on its on terms.

 

Dr. John S. Baker, Jr.:  I don’t think you understand federalism. I don’t know whether you’ve read Federalist 39, but the term federalism is an oddity in many ways. As Madison says, we are a compound republic. And the name federalism, as we have it, is a splitting off from confederalism. And is it this complicated structure that we’ve been trying to talk about. And if you wish, I can show you that during Republican administrations, I’ve opposed state things as well. And this is why you, and many especially in the media, use the term states’ rights. Federalism is not states’ rights.

 

The Constitutional Convention was largely called to control the states. That’s why we have an independent judiciary. That’s why we have these provisions that we’ve been talking about. It is a balance. That’s why it’s unstable. And we were able to strike a level of stability. But before the Civil War we know there was the pull that lead us to the Civil War. Since then, we’ve gone the other direction. There’s an inherent instability. Now, your discussion about the managerial points have certain merit to it, but the premise under it is the administrative state, that everybody from Washington is administering, delegating down, having the lower levels.

 

That’s really the model in France. The districts do what they’re told to do, and that’s really what you’re talking about. But in this country, they still can only do that to the extent that it’s tied to money, basically, or the Commerce Clause. And when it’s just money, states like Wyoming and other places that don’t want to do it and can afford not to do, they tell Washington to take a hike. And that is federalism. When the states in areas where the federal government goes beyond its power and they have the ability to say take a hike, they’re able to do that.

 

Dr. John Eastman:  I want to push back on the other ground, Ed, on your comments, and I’ll use as the example the Gonzales v. Raich case. I’m no longer from California, but I was at the time. And I hated the California policy. But I fought hard against what I thought was federal overreach to alter California’s local domestic policy about marijuana because I thought that was California’s decision to make. And it had nothing to do with whether I agreed with the national policy or not.

 

I was consistent in saying California had that judgement to make. And I think a lot of people are. Do we bring biases that sometimes are a little below the assumption? Yes. But the real question is, when there’s something that’s obviously against your preferred policy outcome and yet you nevertheless stick with the principle, I think it’s important to make that distinction.

 

Hon. Michael Brennan:  Ed, do you want to respond?

 

Prof. Edward L. Rubin:  Yeah. I’m not trying to suggest that everybody is unprincipled, and everybody is governed by political considerations, but I think that’s the overall mood in the country. I think that’s the basic way that politics has played out over the course of not only the last several decades but really the 20th century and into the current century, that the predominant view has been predictable based on the substantive policies, which are, after all, the things that we truly care about and we’re truly committed to.

 

I think the issues of states as independent entities as opposed to a nation with a unified political identity is something that did get solved, basically, at the time of the Civil War. And I think it’s, in a way, a remarkable achievement of the United States that we have forged out of such a disparate population and decentralized origins a real national unity and a real sense of collectivity as a nation. I think that’s something very valuable, and I think it’s something that should be protected.

 

Ilya Shapiro:  But ironically, this national unity is breaking down because of the centralization of power because in such a large and diverse country, the aggregation of power in Washington and then within Washington, it’s skewing towards the Executive Branch. Pushing everything into the administrative state has created this zero-sum game rather than allowing different parts of the country to have their own policy views. If California wants to kill its own economy by having all sorts of different regulations, so be it. But it’s only once it starts regulating out-of-state companies that it becomes both a policy and a constitutional problem.

 

Dr. John S. Baker, Jr.:  I was going to say much the same thing. It is a great accomplishment, and we had a certain balance at a point. But today, if this ideological divide continues in Washington, nothing’s getting done. And the danger is, ultimately, our enemies understand this. Certainly China understands this. And they are manipulative. They know how to play us. And at some point, there will be a crisis. And unfortunately, in a crisis you have to have unity. And if Congress isn’t functioning and things aren’t getting done and the life of the country is at stake, you will have one person rule come out of it if the Congress doesn’t get to a point where it can actually begin to govern again.

 

[Applause]

 

Hon. Michael Brennan:  John, did you have a comment that you wanted to open with? One of the prompts here was on the Franchise Tax Board v. Hyatt case, and Justice Thomas gets into a historical examination in that case of where he thinks the state sovereign immunity comes and then does a rather brief stare decisis treatment on Nevada v. Hall and reverses it. John Eastman, with regard to that, this is 20 years of litigation that comes down to that determination. Your thoughts on whether it’s correct or incorrect?

 

Dr. John C. Eastman:  I’ve long been a critic of the Eleventh Amendment sovereign immunity cases, but not on this point. And my criticism has been on the late Chief Justice Rehnquist’s view that states retain their sovereign immunity, even over federal question jurisdiction. That’s the area over which, under the plan of the Convention, they were specifically no longer sovereign. And keeping a sovereign immunity that dealt with diversity questions versus federal question made a lot of sense to me, and they went in a different path.

 

But the issue in Franchise Tax Board was different. Were the states obligated to recognize the independent sovereignty of the states? And here’s just one passage from the case, and I’m going to change the word sovereign immunity to just sovereignty to make it not just about immunity from court action but respecting the policy judgements of the separate sovereign itself, which I think is more directly to the points I’m trying to make. “Although the Constitution assumes that states retain their sovereign immunity,” switch out sovereignty, “except as otherwise provided, it also fundamentally adjusts the states’ relationship with each other and curtails the states’ ability as sovereigns to decline to recognize each other’s immunity,” switch out sovereignty, “in their own courts,” switch out just as a matter of policy judgement.

 

I think the principle inherent in that case, when I apply it to the broader attempts to extraterritorially alter the policy judgements of other separate subsidiary sovereigns, that’s where we get the kind of friction that’s exactly the interstate commerce friction that led to some of the constitutional clauses in the first place. And what’s going on now? It’s different in kind, but I think it needs to be responded to in much the same way and that there has to be some curtailing of the ability of states to try and reach into other states to alter their policy judgements.

 

Ilya Shapiro:  I think that’s right, and I think it goes to a principle of equal state sovereignty and comity, whether you call it full faith and credit and the inverse of that to grant an immunity. The anti-federalists were actually quite influential on this point, and they’re cited in the Hyatt case. A preview of a panel that I’m on at the Western States Conference at the Reagan Library in January just on that subject -- what else did I want to say?

 

Hon. Michael Brennan:  Is the Court getting it right in Wayfair and Tennessee Wine? Are they picking up on those things?

 

Ilya Shapiro:  Well, I disagreed with Wayfair initially. Cato filed a brief on the other side. But as I read more and more, I don’t know. The Court’s disagreement was all about the remedy. Even the dissenters said, “Yeah. This physical place requirement isn’t correct, but we leave it up to Congress to change because of stare decisis, essentially.” So the position that I had filed on really had gained zero votes at the Court, so maybe I need to rethink that. I don’t know. There are other cases where I’m happy to be on the other side of a unanimous Supreme Court. This one I’m not as invested in and willing to learn more.

 

I think on Tennessee Wine, though, I think it’s correct. Each state does have its own powers, its own sovereignty, not so much rights. States’ rights, I think, has always been a misnomer, and I just think it’s a healthy development to have states pushing back on the federal government. But that doesn’t mean they can equally push back on each other.

 

I’m thinking here -- John raised the marijuana example. After Colorado legalized for recreational purposes, I think it was Oklahoma and Nebraska sued Colorado over its regulatory scheme saying that it was spilling crime over into their respective states, which is kind of a bizarre claim to make, given that they’re welcome to police their states. And it’s not like Colorado’s taking out ads in the Omaha Airport saying, “Come to Denver for your Rocky Mountain high,” or something like that.

 

Dr. John C. Eastman:  Except they are.

 

Ilya Shapiro:  Well, if they do that, that can be stopped. But otherwise, Nebraska and Oklahoma’s beef is with the federal government. And they’re saying, “You should be enforcing federal law,” which is a wholly different kind of case than trying to sue your sister state about the impropriety of your own domestic laws.

 

Hon. Michael Brennan:  John Baker?

 

Dr. John S. Baker, Jr.:  I did file also on the Wayfair case.

 

Hon. Michael Brennan:  Move your microphone over. Thank you.

 

Dr. John S. Baker, Jr.:  I did also file on my own behalf in the Wayfair case. And I filed under the Import/Export Clause, and I tried to bring to their attention -- and it may come back because they’ve sent it back down. It will come back again probably. The South Dakota law applies worldwide. Worldwide. And you know how they intend to enforce it? If you violate their law, they’re going to file a declaratory judgement act in a South Dakota court. And if you don’t show up, they’re going to ding you. Okay. Well, that might work in the United States.

 

      But I pointed out I keep getting these things I order that I think are from an American company, and they’re coming from China. But they’re not really located in an American base, and they come through the American postal system at the subsidized rate getting from China so they can ship it cheaper from China than you can ship it from here. How do you think you’re going to enforce this against China? In other words, my point is they’re not thinking about this in a federal context, in a sovereignty context. You have no power to enforce this. And the Import/Export Clause says you have to get Congress’s permission for this. Now, I didn’t open up and go back to what Justice Thomas was saying about the import/export among states. I didn’t want to fire it up that much.

 

      But this clause, as Justice Thomas has pointed out and is consistent with Hamilton despite the fact that he wanted free trade within the country, they thought about this in terms of taxes, tariffs. What we call today in terms of protectionism is, what, non-tariff trade barriers. But that’s for Congress. Hamilton left it to Congress. Why? Because these are matters over which we can disagree. These have to be worked out. There’s no absolutely perfect position on any tariff issue because there are different interests involved. So because we’ve forgotten these things, we’re going to, in the internet age, really screw it up until we figure out you’ve got to look at this whole thing structurally.

 

Interestingly, Justice Gorsuch mentioned that he wasn’t necessarily going along with everything. I was somewhat surprised that Justice Thomas didn’t say more. But it may be that when it comes back, and now that Justice Kennedy’s not there, there may be a totally different result.

 

Hon. Michael Brennan:  Professor Rubin, have we forgotten it? I suppose, to use your word vestigial, is it more than vestigial, or is it vestigial as a result of some type of evolution that’s happened, from your perspective?

 

Prof. Edward L. Rubin:  When you said forgotten, forgotten what?

 

Hon. Michael Brennan:  The history of the individual state sovereignty and the friction that resulted. Have we just moved beyond that, or, from your perspective, is it something that could be resurrected?

 

Prof. Edward L. Rubin:  Well, I think as long as you have authority being given to subunits of a system, you’re going to have inevitable conflicts. There were conflicts between Buick and Oldsmobile and Chevrolet in General Motors. In other words, authority of any kind is going to produce conflicts. And I think the question is what are the principles by which those are resolved?

 

It’s sort of interesting that I think the panel, despite a certain amount of ideological disagreement, seems to be all cognizant of the fact that the predominant issue here is that we have a unified nation and that the authority being granted to the individual subunits within it has to, in some way, be contained within those units and that the flow of national commerce and the relationships -- the power of extraterritoriality needs to be limited in the interest of the fact that it is a unified nation.

 

Hon. Michael Brennan:  John?

 

Dr. John S. Baker, Jr.:  But the Constitution doesn’t grant the states any powers. It limits their powers. That’s all it does. Any, quote, “powers” it gets from the federal government is a money transaction under the Spending Clause. And the Marshall Court held repeatedly, and Congress ignored, that they couldn’t allow states to enforce federal laws. So over time, yes, we’ve grown into an administrative state, and that’s what the struggle is, our constitutional structure versus this overlay that’s been put on it. And that’s where -- as far as most of us are concerned, that’s where the real struggle is.

 

Dr. John C. Eastman:  I want to just add one more point. One of the big theoretical flaws with the Dred Scott decision -- I focus on theoretical flaws because there are a whole lot of other flaws with the decision. But the theoretical flaw is that the result of that decision allowed Missouri to project its policy into not just other territories but into other states of the Union. And that meant that the states could not set their own policy. And you can take any of a number of contemporary issues and see the problem with that. Take gun free school zones or take the wonderful gun mandatory ownership rule of Kennesaw, Georgia from a number of years ago.

 

If I can figure out how to project that policy that I’ve made locally into other states, I create a huge problem. And it’s the projection that flows from not respecting other states’ policy judgements, not giving them full faith and credit, if you want to go back to that clause. Although, I don’t think that clause directly addresses this kind of reverse manipulation that we see going on now. But it will create massive tensions cross states. It will make it impossible, at the end of the day, to have independent states as independent laboratories of self-government. And it will drive everything towards a national one-size-fits-all solution.

 

And one of the beauties of our system is, because we’ve not had that, different states could go their own directions, and people could self-select where they found the best policy choices. When you go to a one-size-fits-all, we’re going to end up in a civil war, as equally divided as we are. This safety outlet of the states has proved essential to our success. And these kind of new policy judgements, these projecting policy judgements, I think, are going to undermine that to catastrophic consequence.

 

Hon. Michael Brennan:  Let’s see this in the context of the national popular vote question that we were talking about earlier. Is there any power or authority among the small states to be able to push back to say, “Our ability here is going to be so vitiated that our role within the historic constitutional structure is gone.”?

 

Dr. John S. Baker, Jr.:  Well, very few Americans have any idea that this is even going on. We debated on a panel several years ago, as I said here, the founder of the movement. And they’ve got a lot of money, and they have paid a number of Republican consultants to convince Republicans that this is a very democratic move. But that’s what got us the Seventeenth Amendment too, populism, where they equate pure democracy as being consistent with our structure. It’s not.

 

Dr. John C. Eastman:  Two points here. One, practically, given modern political circumstances, if the national popular vote compact succeeds and if it withstands the inevitable legal challenges, which I think are going to be very strong — and I’ll talk about those in a minute — think about where, modernly, this would play about because most of the states that are joining the compact are the blue states, which means the thing would come to a head when the blue states’ votes are not aligned with the national popular vote. Or let me put it in terms of the last election. California’s electoral votes are going to go to Donald Trump if he had one the national popular vote because they’re the states that have joined the compact.

 

Now, how long lasting will that compact be if New York and California have to cast their votes for Donald Trump because the reality right now, that’s the only way it’s going to play out in the foreseeable future. The legal challenges, the constitutional challenges, I think, are profound. One of them is the power of the states to set the method for choosing their own electors on its face, textually, has no limitation. That cannot possibly be right. California could not say, “We’re going to let the Sultan of Brunei choose who our electors are.” Having given the vote to California electors, the Fourteenth Amendment or Fifteenth Amendment right to vote would mean you can’t then pass off the result to somebody else.

 

But more profoundly, this compact will alter the role of other states that have not joined it. I think that’s why it’s absolutely required that Congress approve it. But even if they do, states are still allowed to say, “We’re going to let our legislature choose the states.” And therefore, they would not be any part of any national popular vote and yet would be excluded entirely from the decision of who the next President is going to be. That projecting of power from the compact states to the non-compact states is exactly the constitutional infirmity that we’ve been talking about otherwise. And I think for that reason alone, it will not get upheld at the end of the day.

 

Hon. Michael Brennan:  Any comments on that topic?

 

      Well, before we move to questions from the audience, I do want to give the opportunity for each of the panelists if there’s any final comments or reactions they have to anything that’s been said thus far to weigh in. All right. Everyone’s got their say? Ilya?

 

Ilya Shapiro:  Actually, I have a question for John, and not like a critical or a gotcha question or anything. But in the context of state action and boycotts, are there legally cognizable claims with either the city or the state saying, “We won’t have government travel to particular states because of their policies,” or the state government saying, “To contract with us, you can’t deal with those states,” or something like that?

 

Dr. John C. Eastman:  Under existing doctrine, if the state tried to regulate its private business and says you can’t go do business with North Carolina, that would be a violation of the Dormant Commerce Clause. But if the state --

 

Ilya Shapiro:  -- But you don’t like the Dormant Commerce Clause.

 

Dr. John C. Eastman:  I don’t like the Dormant. I’m accepting that as the premise. But under the existing doctrine, when a state does it with its own resources as a market participant rather than a regulator, they can do it all they want. And I think this extraterritorial projection of policy judgments using the states’ resources has to -- because it’s different in kind than the type of thing we were looking at when the market participant doctrine was developed. And I think that’s going to require some revisiting or reconsideration to deal with this new problem.

 

Hon. Michael Brennan:  All right.  Thank you. These comments obviously have engendered some questions from the audience. Feel free to line up at the microphones. Three requirements, though. First, please give us your name and affiliation. Second, I’m going to exercise the moderator prerogative here that, if you give a long preface, we need to move from a declarative sentence to an interrogative sentence at some juncture. Third, if there’s a particular speaker --

 

Ilya Shapiro:  -- Are semicolons allowed?

 

[Laughter]

 

Hon. Michael Brennan:  They are. If there is a particular speaker to whom you’re addressing your question, please say so. Otherwise, fold that into the beginning of your question that it’s going to the whole panel. Hans, let’s start with you.

 

Hans von Spakovsky:  This question is for John Eastman. John, I want to take you from the 30,000 foot level down into the practical level. And the question’s to you because you deal with election cases. And I’m wondering whether any of the issues you’ve discussed — projection of power, giving credit to what goes on in other states — should prevent a state from removing from its voter rolls an individual that they discover has been registered in another state? Because there are some judges now who have ruled that there could be a valid reason for someone to be registered in more than one state, even if it violates that state’s law. Thanks.

 

Hon. Michael Brennan:  That’s Hans von Spakovsky from the Heritage Foundation.

 

Dr. John C. Eastman:  So I think if states are deliberately not removing people from the voter rolls in order to alter the effect of elections, particularly national elections, particularly to mill the narrative on a national popular vote creating a propensity for fraud, it’s similar in kind to the problems we’ve been talking about. I have to give more thought to the full implications of that beyond that, but I’ll just give one example. We ceased being California residents, registered in New Mexico, and I can’t for the life of me get California to remove me from the rolls. I’m waiting to see if somebody votes with my name on those rolls, and then I’ll have a new cause of action. But it is a problem.

 

Hon. Michael Brennan:  The second microphone here.

 

Devin Watkins:  I wanted to ask about a state regulation of the chain of commerce before it’s sold in the state.

 

Hon. Michael Brennan:  Can you start with your name and affiliation?

 

Devin Watkins:   Sorry. Devin Watkins from the Competitive Enterprise Institute. And I’d like to suggest that there’s a spectrum and find out where that line is between what’s allowed and not in your minds. On one side, imagine a state that says, “We won’t allow you to sell a product in this state unless it was produced with the labor that was provided at least $15 an hour.” And on the other side, imagine a state that says, “We won’t allow you to sell chicken in this state unless it was kept below a certain temperature.” Both of these in some sense regulate the entire lifecycle of that product, even outside of the state. But where can we draw the line between what is allowed in that sense and what is not?

 

Ilya Shapiro:  Actually, Tennessee Wine opened the door to this discussion somewhat because some of the new ground that that case broke is about police powers and the limits of police powers. And there’s more deference and more legitimacy to a state law or regulation that’s passed with respect to public health and safety rather than other kinds of rationales. So the thing about -- it doesn’t make a product healthier or safer to say that it was -- the people who produced it were paid $15 an hour. So that one probably wouldn’t fly. That could be seen as in-state protectionism either of your industries that have to fulfill that regulation or projecting your policies, trying to put them onto other states.

 

With the hot or cold chicken, I don’t know. It depends on whether there’s a legitimate scientific basis for that. Again, I would adopt a presumption of unconstitutionality until or unless I can be convinced, as a judge, as a legal analyst, that there’s a real health and safety police power reason for it.

 

Dr. John C. Eastman:  I think that’s right. The courts have largely punted on that issue because, at the margins, it’s very difficult to tell what’s a valid health and safety regulation and what’s not. California’s got a new law that requires 50 percent of all public corporation board members to be women. And if they want to then use that law to project that to any corporation that does business in the state, you can see the extraterritorial reach. And it has no connection with health and safety. It’s got to do with a California policy that may be contrary to a more free market oriented policy in another jurisdiction.

 

And it’s that extraterritorial reach to try and alter the policy judgments of other sovereigns that I think is the problem. But if we had pretty good proof that free range chicken are healthier than non-free range chicken, and California says, “You want to sell chickens here they’ve got to be free range,” even though they’re being grown in Nebraska or wherever they are -- but you’ve got to make the connection to the health and safety. You can’t just assert it because otherwise you’re imposing your policy judgements elsewhere.

 

Prof. Edward L. Rubin:  Just one quick thing about taking a managerial approach to this as opposed to sovereignty approach is that you then aren’t making absolute judgements, but you’re making relative judgements in comparison to other policies. So there’s a market failure analysis to justify regulation. And that would suggest, for example, that health and safety regulation and certain kinds of regulations against fraud would stand better than a price regulation, which does not have a market failure justification. So the affirmation cases where a state tries to essentially protect its -- or project its pricing policies into other states would, I think, be subject to much more intensive scrutiny than health and safety.

 

Dr. John C. Eastman:  Let me just add a quick addendum to that and look at California’s policy on free range chickens. The ban on chickens that are raised not meeting California standards, I think, projects their policy judgement. But if they were simply to require a notification on chickens sold in California — did this meet California’s free range standards or not? — they would not be forcing the other state to change its policy but only affecting that which occurred within California. And maybe that’s the compromise solution that respects the two competing sovereign policy judgements.

 

Hon. Michael Brennan:  Front microphone.

 

Paul Kamenar:  Paul Kamenar, Washington, D.C., attorney. This is for Professor Baker. John, I did not read the Lottery case, and I can understand why you did, being from Louisiana. But you raised it in terms of the context of states not being able to control their borders and have to rely on the federal government. But I did recall a provision that I Googled at the table, and that’s Article I, Section 10. It says in pertinent part, “No state shall without the consent of Congress engage in war unless actually invaded or in such imminent danger as will not admit a delay.” So I don’t know if this is one exception to that rule. And also, does the Governor of Arizona arguably say these illegal aliens -- we’re being invaded, and the federal government’s not doing enough?

 

Ilya Shapiro:  And put a wall on the western border?

 

[Laughter]

 

Paul Kamenar:  Exactly.

 

Dr. John S. Baker, Jr.:  Actually, I argued that to officials in Texas several years ago, so that’s not a new argument for me.

 

Prof. Edward L. Rubin:  Okay. I just want to point out that this is an exception to the borders that you needed the consent of the federal --

 

Dr. John S. Baker, Jr.:  -- No, no. The assumption is the federal government should get there as soon as possible.

 

Prof. Edward L. Rubin:  But they can’t engage with war of that kind. Okay, fair enough.

 

Hon. Michael Brennan:  Back microphone.

 

Anthony Napolitano:  Anthony Napolitano, Arizona Attorney General’s Office. The Supreme Court has exclusive jurisdiction over cases between states and exercises discretion over whether or not to take those cases for review. Should that come to an end when there are disputes between states where they have no other forum over issues that might otherwise be casus belli, or is there some other means of rectifying these?

 

Ilya Shapiro:  I, for one, think the Supreme Court should take more cases, and this is one aspect of that. It should be forced to take those cases.

 

Dr. John S. Baker, Jr.:  Well, having had a case denied the motion to proceed, I agree that they should have to take the cases. But it’s not just the Supreme Court. Federal courts figure out ways, whenever they want to, to say they don’t have to take a case, unfortunately. But again, that’s up to Congress to punch back. And I say punch because read Federalist 51. Each of the branches is supposed to, when necessary -- to clock the other one if necessary. And there are a few things --

 

Dr. John C. Eastman:  -- That’s about three paragraphs in.

 

[Laughter]

 

Dr. John S. Baker, Jr.:  Anyway. I could go on. I won’t.

 

Ilya Shapiro:  Maybe what we just need is a constitutional amendment to add to the end of every provision “and we mean it.” And then that would just fix everything.

 

[Laughter]

 

Dr. John S. Baker, Jr.:  Yeah. It doesn’t work. It doesn’t matter.

 

Hon. Michael Brennan:  Front microphone.

 

Mario Loyola:  Hi. Mario Loyola, Competitive Enterprise Institute. Ilya, I want to commend you on your clever California joke, so this question is for you. Several years ago, at Texas Public Policy Foundation, I did a study of state antitrust enforcement and came to the conclusion that state antitrust enforcement would be greatly improved if state antitrust enforcers stopped doing everything they’re doing and did something as unrelated as possible to antitrust law. But there’s one exception, it seemed to me, where state antitrust enforcement could actually do some good. And that is, if instead of protecting their constituents from interstate competition, state antitrust enforcers actually went after each other’s cartels.

 

So I would love, for example, to see Texas sue California over California’s raisin marketing program. Now, those lawsuits are generally blocked by Parker v. Brown, the second worst decision of 1943. But in a very interesting case, which actually goes to some of Professor Rubin’s points, several years ago in North Carolina v. FTC, we saw that the Supreme Court, even the liberal justices on the Supreme Court are willing to at least tighten the state action doctrine of Parker v. Brown. So my question is what hope do we have for getting further refinement, shall we say, or curtailments of Parker v. Brown to allow states to go after each other’s cartel creation?

 

Ilya Shapiro:  Well, I think that dovetails with the previous question. For a state to sue another state, that’s an original claim in the Supreme Court, and the Court would have to entertain that. I think that is thinking creatively. I think that that would be good. I don’t know why you’d necessarily need a state to be the plaintiff though. You could have another business, a neighboring business that’s harmed by that state’s cartel. And perhaps that’s a way to push on the -- whether on Parker v. Brown or whatever else, or Dormant Commerce Clause, or privileges and immunities, all of these doctrines kind of come together at that point without the extra complication of having one sovereign against another. But I’m just spitballing.

 

Dr. John C. Eastman:  The principle thing, though, is you’ve got to get rid of the notion that anticompetitive behavior that is protecting of state’s own businesses is a legitimate governmental purpose. IJ and the guys over at Cato have been doing a lot of good work on that, either litigation or scholarly or both. And that’s what the circuit split you talked about earlier was. There’s a clear right answer. That’s not a legitimate governmental purpose. You go back to Madison and the discussions about monopolies and all of that. I think we’ve got to really engage on that issue until the point we win it.

 

Dr. John S. Baker, Jr.:  That’s interesting. What do you think about Alaska not allowing farm fishing and Washington having Washington graded apples? Would you say they couldn’t do that?

 

Dr. John C. Eastman:  It’s a problem, but I would go back to Corfield. If the state owns the resource, if they own the oysters in the seabed, if you’re going to the public trust doctrine, they don’t have to share that with everybody else. If they own the resources of their K-12 public education system, they don’t have to share it with everywhere else. Plyler v. Doe was wrong on that. But more broadly, beyond whether the owner and they’re the regulator, I think you do have huge problems with it.

 

Dr. John S. Baker, Jr.:  If they do a certification system where you opt in or not and you get to be the -- certificate that this is a Washington State apple.

 

Ilya Shapiro:  Well, I think the Seventh Circuit got wrong the Wisconsin butter grading case. But on Washington apples, there’s the inverse. Hunt v. Washington State Apple Advertising Company, 1977, this was a North Carolina law that required apples to display only the U.S. Department of Agriculture apple grade. Facially neutral but it hurt out-of-state interests and especially Washington apple companies that graded on the Washington scale. And because the law could achieve the goal of protecting citizens from confusion over the quality of apples through other means, the Court struck it down.

 

Dr. John S. Baker, Jr.:  And you were for that?

 

Ilya Shapiro:  Yeah.

 

Dr. John S. Baker, Jr.:  Okay.  Me too.  So go back. Would you be against Washington being able to do what it’s doing that caused North Carolina to do what it did?

 

Ilya Shapiro:  Well, I think butter grading is utterly ridiculous, and apple grading is rotten to the core.

 

[Laughter]

 

Hon. Michael Brennan:  Further to the pun flag, right? Professor Lawson.

 

Gary Lawson:  Gary Lawson, Boston University School of Law. Although, this is really a Yale sounding question, so brace yourselves.

 

[Laughter]

 

Ilya Shapiro:  As a Princeton and Chicago man, I take a point of personal privilege on that.

 

Gary Lawson:  It’s going to sound spacey, but it may actually help explain why some of these issues seem so difficult, both doctrinally and politically. Ed, you mentioned the notion of a national identity. Let me just throw out one anecdote. My son, just from college, tells me that virtually all of his classmates, just in casual conversation, discuss people who live in red states as horrible, awful, vile creatures. And they want them all to die, literally, literally, want them all to die. So I wonder if that national identity thing -- that’s a boomer thing, as they would say.

 

And that’s just not there anymore. And there are all sorts of good reasons not to be surprised by that. We’re all raised on Federalist 10 and the extend republic. Every human being before James Madison thought that was garbage. Maybe they were right or, the minimum, that there’s an optimal size for an extended republic that we blew out of the water a long time ago. Here’s the question mark. Is the problem from all of these doctrines that the country’s just to damned big?

 

Prof. Edward L. Rubin:  Well, first of all, I don’t think they want me to die. And the reason is that I live in Nashville, and Nashville is Democratic.

 

Gary Lawson:  That’s much too subtle and sophisticated.

 

Prof. Edward L. Rubin:  No, no, no. It’s not, and this is the reason why. We’re all familiar with the colored map of the United States. And that map does not show regions with different colors, and it certainly doesn’t show states of being different colors. What it shows is a sea of red with islands of blue. So basically, the political configuration in the entire country is one where the rural areas tend to be more conservative and the urban areas tend to be more liberal. And the particular alignment in the state has to do not with where the state is but with that relative alignment of rural versus urban forces.

 

So I do think that these issues are being debated on a national level and that it’s people’s alignment with the national issue. So I would suspect, for example, that a conservative in California feels better represented by the senators from Texas than by his own senators and vice versa for a liberal in Mississippi. So I do think that’s the basic political dynamic in the country.

 

As far as the United States being too big, it goes back a little bit to something John was saying about terminology and about the way we think about a government. So we call ourselves a democracy. But remember, democracy was a term that the founders were rather shy of. And it’s because they were thinking about ancient Greece. And of course, Aristotle in The Politics has exactly that point, that you cannot have a functioning policy beyond a certain size.

 

That’s what representation is all about. Representation was a medieval practice that had nothing to do with democracy but was adopted by the revolutionary regimes at the end of the eighteenth century precisely to deal with this question of size, and it does effectively. So I would just endorse what John was saying about the fact that the legislature needs to be a dominant force, a leading force, and a force that gets things done.

 

I think the tendency for legislatures to shy away from decisions, which we’ve seen in Australia, which we’ve seen in Ireland, which we’ve seen in Britain, of course, and we see here in terms of our legislative deadlock, needs to be resolved. And we need to move forward with the mechanism that we have developed for dealing with very large policies, and that is representative government.

 

Dr. John S. Baker, Jr.:  Gary, I don’t think Madison was wrong at all. I think he was very, very right, and he’s still right today. The problem is part of his solution has been eclipsed by technology. Here’s what I mean. His teaching on factions is all about preventing any one faction from controlling the central government. That’s key because he knew we wouldn’t all get along. We’re not a homogeneous country. We never were and we never will be.

 

       So the question was how do you deal with this? And the whole business in Federalist 9 and 10 is about the large extended republic. And what’s the key? The key is spreading out people so they can’t communicate. Well, that’s dead. The communication problem is the problem. We’re all in each other’s faces now on cable television. That has broken down the Madisonian fix. It’s a technology fix problem.

 

Dr. John C. Eastman:  I want to push back in the other direction, and that is I think it’s not a denial of national identity politics that creates that phenomena. It’s national identity on steroids. They have decided what the national identity ought to be from their own circles, and they want to impose it on everybody else or they should die. Until we allow for the outlet of different visions -- why is California getting to set transgender bathroom policy for North Carolina? If you don’t let North Carolina and these other states go their own separate way or California go its separate way on crazy things it wants to do, you’re going to force a national one-size-fits-all solution that will never be stable enough to survive.

 

Ilya Shapiro:  I agree with that. But also, it’s not that the country is too big but that many states are too big in terms of the ratio of the largest to the smallest. And also, Congress is too small. We shouldn’t have a congressman representing a million people or 800,000 people, whatever the average is these days. Canada, for example, I was watching them. I’m Canadian-American. I’m one of the few people that you’ll meet who’s naturalized twice in his life.

 

And many of you have probably heard me make my immigrant joke that, like most immigrants, I do a job that most native born Americans won’t, defending the Constitution.

 

[Laughter and applause]

 

Present company excluded. But I was watching the Canadian elections a month and a half ago, and the Canadian parliament is the same size as the House. And that’s a country a tenth the size of the United States. So here I am from Cato, and I’m telling you there should be more people in Congress. And they’d probably be -- the staff should probably be paid more as well.

 

Hon. Michael Brennan:  I apologize. We’re not going to be able to take our last question. Please join me in thanking and appreciating our panel.

 

[Applause]

 

11:45 a.m. - 1:30 p.m.
Thursday General Luncheon

2019 National Lawyers Convention

The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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11:45 a.m. - 1:30 p.m.
Is It Time to End Life Tenure for Federal Judges?

2019 National Lawyers Convention

Topics: Federal Courts • Litigation • Constitution
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 14, 2019, the Federalist Society's Litigation Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The title of the panel was "Is It Time to End Life Tenure for Federal Judges?".

The framers of our Constitution jealously guarded the independence of federal judges, and the principal means they selected for doing so was to confer life tenure upon them. But a great deal has changed since then. At the time of the founding, federal judges were not alone: most state judges enjoyed life tenure as well.  But now, federal judges are almost entirely alone—not only in the United States, but in the world—in this respect. In addition, life expectancies are vastly longer today than they were two hundred years ago. Finally, the process for selecting federal judges has arguably become more politicized than ever before—and some point to life tenure as the reason. Recent polls show that over 75% of Americans want to end life tenure.

Is it time to end life tenure? Are there ways to end it that do not require a constitutional amendment? Our panelists will debate these important and timely questions.

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Dr. Norman J. Ornstein, Resident Scholar, American Enterprise Institute and Chairman, Campaign Legal Center
  • Prof. James E. Pfander, Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law
  • Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
  • Hon. David R. Stras, Judge, United States Court of Appeals, Eighth Circuit
  • Mr. Stuart Taylor, Jr., Journalist and Author
  • Moderator: Hon. William H. Pryor, Jr., Judge, United States Court of Appeals, Eleventh Circuit

Speakers

Event Transcript

Hon. William H. Pryor, Jr.:  Welcome to the panel for the discussion “Is It Time to End Life Tenure for Federal Judges.” A topic for which I hope the presumption against retroactivity applies.

 

[Laughter]

 

      The Framers of our Constitution jealously guarded the independence of federal judges and the principal means they selected for doing so was to confer life tenure upon them. But a great deal has changed since then. At the Founding, federal judges were not alone. Most state judges enjoyed life tenure, as well. But now, federal judges are almost entirely alone, not only in the United States, but in the world. Life expectancies are longer today than they were, of course, 200 years ago. And, some say, the process for selecting federal judges has become more political.

 

[Laughter]

 

      Imagine. Recent polls show that over 75% of Americans want to end life tenure. Is it time to end life tenure? Are there ways to end it that do not require a constitutional amendment? Our panelists will debate these questions.

 

      I'm going to introduce each of our panelists. The Federalist Society, of course, has assembled as always, an all-star panel for the discussion of this topic. I'm going to introduce them in the order in which they will speak. Each of them will have six to eight minutes within which to give opening presentations. We'll have, then, some discussion among them, perhaps some questions from their moderator, and then we'll open it up to questions from the audience.

 

      Our first speaker will be James Pfander who is the Owen L. Coon Professor of Law at Northwestern University Pritzker School of Law. His teaching and research focuses on the role of the federal judiciary and his latest book is Constitutional Torts and the War on Terror. A member of the American Law Institute, Professor Pfander recently concluded his work as a reporter consultant to the Federal State Jurisdiction Committee of the Judicial Conference of the United States. He has served as chair of both the federal courts and civil procedure sections of the Association of American Law Schools.

 

      Norman Ornstein is a Resident Scholar at the American Enterprise Institute, where he studies politics, elections, and Congress. He is a co-host of the institute's Election Watch series, a contributing editor and columnist for National Journal, and the Atlantic BBC News election analyst, and the Chairman of the Campaign Legal Center. Dr. Ornstein previously served as co-director of the AEI-Brookings Elections Reform Project and Senior Counselor to the Continuity of the Government Commission. He is a Fellow of the American Academy of Arts and Sciences.

 

      David Stras is a judge of the United States Court of Appeals for the Eighth Circuit. Before serving on the Eighth Circuit, Judge Stras was an Associate Justice of the Minnesota Supreme Court. Before he became a judge, he was a member of the faculty of the University of Minnesota Law School. In football, we used to call it Mini Ha-Ha, but now they actually can play it.

 

[Laughter]

 

      There, he taught and wrote in areas of Federal Courts and Jurisdiction, Constitutional Law, Criminal Law, and Politics. Judge Stras served as a law clerk to Justice Clarence Thomas on the Supreme Court of the United States.

 

      Stuart Taylor is a Washington writer focusing on legal and policy issues and a National Journal contributing editor. He occasionally practices law. Taylor has co-authored three books, all have been acclaimed by commentators across the ideological spectrum. Since 1980, he has done reporting and commentary about issues ranging from the biggest Supreme Court cases to race, voting rights, excessive criminal penalties, campus rape, processes, journalistic bias, war powers, guns, civil liberties, education, impeachment, and other issues.    He's often been called one of the nation's best legal journalists and is known for challenging both liberal and conservative conventional wisdom.

 

      Carrie Campbell-Severino is the Chief Counsel and Policy Director of the Judicial Crisis Network and co-author with Mollie Hemingway of the best-selling book Justice on Trial: The Kavanaugh Confirmation and the Future of the Court. She writes and speaks on a wide range of judicial issues, including the constitutional limits on government, the federal nomination process, and state judicial selection. Ms. Severino also served as a law clerk to Justice Thomas on the Supreme Court.

 

      So, without further adieu, Professor Pfander.

 

Prof. James E. Pfander:  Thank you, Judge. Much of my work on the independence of the federal judiciary focuses on questions separate from life tenure. I've taken tenure during good behavior as a given in thinking about the Article III Judiciary and have asked questions about the other provisions of the Constitution that secure an independent judiciary. These additional safeguards of independence strike me as worth briefly sketching as a prelude to the panel's more focused assessment of life tenure, itself. So, let's catalogue the protections of judicial independence in the Constitution and place them in historical context.

 

      Article III, as you know, vests the judicial power “in one Supreme Court and such inferior courts as Congress shall, from time to time, ordain and establish.” It provides that “the judges, both of the Supreme and inferior courts shall hold their offices during good behavior and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.” It's the Good Behavior Clause, needless to say, that confers life tenure.

 

      Additional protections appear elsewhere. Article II provides for Presidential nomination and appointment, as we all know, and the impeachment clauses in Article I and Article II, much on our minds these days, provide for the removal of judges on impeachment and conviction of high crimes and misdemeanors. So, bracketing, for now, the good behavior provision, I want to talk about the other provisions of the Constitution that help ensure judicial independence.     

 

      So first, the provision for the payment of a compensation for judicial services not diminished during their continuance in office. Second, the protections of independence entailed in the provisions for judicial removal from office, and then finally, and in some ways I think most important, we have the guarantee of independence that flows from the vesting of the entire judicial power in the Article III Judiciary, the provision for one Supreme Court to superintend the work of inferior courts.

 

      So first, the assurance of compensation free from diminution. It surely helps protect the judiciary from retaliation. But it also introduces a one-way ratchet. Congress can raise judicial salaries but can't lower them. And that means, as a practical matter, that judicial salaries will tend to lag. Happily, though, despite the best efforts of James Madison, Article III doesn't include a provision that bars any increase in judicial salaries. The Framers knew about inflation and they understood that judge's salaries would need adjustments, so they eliminated a provision that would have barred any increase. And I'm sure my judicial colleagues will be happy to know that the Framers rejected a provision that would have hedged against inflation by calibrating judicial office salaries, in terms of such commodities as wheat or tobacco.

 

[Laughter]

 

      Apart from calling for the payment of salaries, the Framers also appeared to have ruled out the payment of fees. This was an important structural choice. It made compensation by way of salary a fixed feature of the judge's package and ended the practice that was common in the Colonies, and in England, of paying judges, in part, through the fees paid by litigants in the course of litigation.

 

      Superior Court judges in England earned an enormous amount of money from the payment of litigant fees and the sale of judicial office. By putting federal judges on salary, the Framers tended to encourage the federal judiciary to respect the boundaries that had been assigned in the Constitution, and to reject new assignments of work instead of reaching out for new cases that would bring in new fees. In other words, the Framers wanted the judges to shirk.

 

      Another source of judicial income was also foreclosed, and that's the sale of offices. That often meant the creation of sinecures in England underwritten by litigant fees. Article II of the Constitution specifies that any appointments of inferior officers were to be made by the courts of law as courts, and not by the judges within those courts. So, when Chief Justice John Jay was first appointed Chief Justice of the United States, he steadfastly refused applications for patronage appointments, explaining that all appointments were to be made by the Court, itself. By making salary the only source of compensation, the power of the political branches to curtail compensation, either through the adjustment of fees or the curtailment of offices for sale, was thereby eliminated.

 

      Judicial removal. Next, the provision of independence provided in the Provisions for Removal for Office, excuse me. Some have argued that it would be permissible for Congress to create a mechanism for the removal of federal judges outside of the impeachment and removal provisions by empowering the courts to adjudicate scire facias claims to curtail access to judicial office for misbehavior. And without belaboring the point, I think there's very little evidence to support that claim, either in the Constitution itself, or in the history that lead up to it. The Constitution tends to create judicial tenure and other office tenures, and also to provide a specific way to curtail that tenure. That's true of members of Congress. It's true of the President and the Vice President. And it seems to be true of judges, as well.

 

      Other forms of removal were considered at the Philadelphia Convention, such as removal upon the address of the Legislature. But Gouverneur Morris and others argued against address. They argued it was unfair because it would deny judges a trial on the merits before the Senate in a determination of whether the judge should be removed from office. The Framers were obviously worried about cabals and secret agreements in cloak rooms and understood that problem as one that required a trial in open air. So, for these reasons, I find it difficult to believe that the Framers meant to leave Congress free to specify judicial removal through any proceedings other than impeachment and conviction.

 

      One Supreme Court. The provisions of Article III that best all the judicial power in the federal courts and establish one Supreme Court to supervise the whole judicial structure established important protections for independence. By requiring supremacy and making other federal courts inferior to the Supreme Court, the Framers barred Congress, and the President, from acting either alone or together to set up new courts and vest new or alternative forms of judicial power in them. Congress can provide for new courts and the President can staff those courts, but they all have to answer to the Supreme Court of the United States.

 

      Which brings us in a round about way back to the problem of life tenure. Congress has created, and the President has staffed, a host of federal courts that employ judges lacking life tenure. When one considers administrative law judges, bankruptcy judges, magistrates, military judges, we have an un-tenured federal judiciary that dwarfs the size of the Article III judiciary. So, if we say there are roughly 900 federal Article III judges, we could compare that number to 1,900 ALJs, 350 bankruptcy judges, 540 magistrate judges, and several military appellate court judges. We have ensured accepted a substantial curtailment of life tenure by creating judicial offices for judges who lack Article III protections. But we make our peace with these non-Article III judges by making sure their judicial work remains subject to the oversite and control of the Article III judiciary. In other words, we accept a measure of non-Article III control at the bottom end of the judicial hierarchy, but we've so far declined to accept anything less than tenure during good behavior at the top.

 

      So now my colleagues will let us know if it's time for the top to change. Judge.

 

Hon. William H. Pryor, Jr.:  Thank you.

 

[Applause]

     

Dr. Ornstein?

 

Dr. Norman J. Ornstein:  Thanks Judge Pryor. So, I've been an advocate of term limits for Supreme Court Justices for more than 20 years, and I just want to lay out three reasons why and talk about what I would like to do. Which would be a single 18-year term staggered so that for every presidential term, there would be an opportunity to fill two vacancies.

 

      So three reasons. The first, it really began to build on me more than two decades ago, that the temperature, obviously, was rising every time there was a vacancy in the Supreme Court. The same has been true at other levels, and particularly the appeals court level, but more for the Supreme Court. The Court is now making more and more decisions, policy decisions that affect the daily lives of Americans. We're seeing, in a tribal and polarized atmosphere, the sense that the consequences of these decisions are much, much greater. And while moving to a single 18-year term, and I will say I came upon that in part because of the nine justices, but also because we've seen this work before. The Comptroller General of the United States fills a single [15]-year term. And if you talk to any of those who have been Comptroller General, they will tell you that it is a long enough time for them to be able to accomplish goals but that it has preserved a significant amount of independence for them, as well. And it would, I think, make a difference.

 

      The second is, I'd like to remove the actuarial gain that we have here. The idea that a President in a term might be able to fill four vacancies for the court and another President, none. And given that people can serve on the court for 30, 40, 50 years or more, long after those Presidents have left office, the idea of creating a better balance, also, I believe would add to the legitimacy of the choices and of the Court.

 

      And thirdly, I want to broaden the pool of those who would be considered seriously for a position on the Supreme Court. Of course, the Framers really thought that a tenure and good behavior, a life tenure, was required because giving people that salary for life would encourage those who would make very little in the legal profession, otherwise, to be able to serve.

 

      I think what's happened in recent decades is, that because Presidents want to have that power of an appointment to the Supreme Court for as long as they possibly can, we now look at those who are much younger and basically disqualify those who are older. And that was particularly striking to me when I saw what I believed was a reality that a judge who I thought would have been superbly qualified for the court, J. Harvey Wilkinson, basically because he was 60, was pushed to the side so that they could move to people in their 40s and 50s. Here, given what we know about life expectancy, picking top quality people in their 60s would be feasible and maybe even desirable.

 

      Now, finally, I would just say I believe this can be done without a constitutional amendment. Service for good behavior in the judiciary doesn't mean, necessarily, that you are a Supreme Court Justice. And one could move, after 18 years, to an appeals court, either an appeals court of the choice of the justice, or even by creating a special appeals court, or to senior status. You can preserve that constitutional requirement and do it, I think, without requiring a new constitutional amendment.

 

      Now, I've thought about whether we wanted to apply term limits to other levels of judges, not retroactively. It becomes a little bit more complicated. What I'd like to do is to see this done at the Supreme Court level, see how it works, and then get a discussion going about whether it would be something that would be applicable and desirable for courts of appeals, for example. Thank you.

 

Hon. William H. Pryor, Jr.:  Thank you.

 

[Applause]

 

Judge Stras.

 

Hon. David R. Stras:   So, I'm the federal judge on the panel, other than our moderator, and you may not be surprised to hear that I'm here to defend life tenure.

 

      [Laughter]

 

      But let me just say at the outset that I sat on a panel similar to this at The Federalist Society Convention 10 years ago when the question of life tenure was part of a showcase panel and I had the exact same view. Now, at that point, I think I did have tenure at the law school, but I wrote my article, my underlying article before I had tenure anywhere. In any event, I want to quickly highlight the constitutional issues and then the policy issues. I'm going to leave a little bit out, hopefully we can talk about it during questioning.

 

      I think that the combination of two provisions, two structural principles in the Constitution means that you can not do this by a statute. You have to do it by a constitutional amendment, if you were going to do it.

 

      The first is during good behavior. That language, we went back all the way to English common law -- a co-author of mine, Ryan Scott and I, went back to English common law and what we discovered was that's how they conveyed life estates at English common law. Now the life estates were defeasible by whatever was laid out in the deed or in the conveyance instrument. And here, the life estate would be defeasible, but only by misbehavior. So, I think it is absolutely clear that you have life tenure. Now that doesn't fully answer the question.

 

      The second part of it is what I consider, or we have called, the separate offices reading. The Constitution creates three separate offices, judicial offices. There’re obviously Legislative and Executive offices, as well. You've got the Chief Justice of the United States. You've got the Supreme Court judges, or judges of the Supreme Court. And you have the judges of the inferior courts. I think mixing and matching within those categories is fine, but I don't think you can move one judge from one category to another category without a new confirmation.

 

      For example, taken to it's logical extreme, under the view given by those proponents of term limit, by statute, you would be able to rotate the Chief Justice. I don't think anyone is advocating for that. And you would be able to do it from the lower courts or you would be able to do it from judges of the Supreme Court. So, I think the separate offices reading means once you are confirmed to a particular office, that's it. You don't move them without a new confirmation hearing.

 

      Now I want to quickly go to the policy arguments, which is something I wrote about almost 15 years ago. First of all, I don't think that the empirical case for term limits or other limitations on tenure is particularly strong. This is something where I was probably in the minority, but I don't think that the length of tenure, even on the Supreme Court, is completely out of line with what the Framers envisioned. There's lots of evidence in The Federalist Papers and elsewhere, in The Anti-Federalists Papers, as well, that people fully contemplated lengthy tenures.

 

      Then there's the issue of strategic retirements, which means that there's a theory that some judges and justices retire so as to ensure a like-minded successor. The evidence for strategic retirement is even weaker, empirically. There's anecdotal evidence all over the board, I admit that. But empirically, really, nobody's been able to prove it. There was one political science article, I think, that came pretty close, but it was debunked later on by other empirical studies. And so, while the anecdotal evidence is strong and there appears to be smoking guns, it's not all that strong in the end.

 

      Now, judicial independence. I think I'm in a little bit of a unique position here. As Judge Pryor pointed out, I served on a state supreme court for about seven years. I ran state-wide for office in a contested election and now I have life tenure. I do think that there is value, a lot of value in life tenure. I think it enables judges to not have to listen to outside voices to be able to decide the cases purely based on the law and to do the right thing. And that's not to say that serving in an election system did not allow judges to do that. I always called them like I saw them. When I was on the state supreme court, when I was one month away from election, I always viewed my job as doing the right thing and applying the law as written. But at the same time, I'm not sure that everybody else viewed it that way and so I think that life tenure makes a difference.

 

      There's also various things that happen when you have a defined term. There's a final period problem, for example. When a justice is at year 16, perhaps they change their behavior knowing that they're going to need another job at year 18 if they're purely removed from office. Or, even under this, some people don't want to be moved to the lower courts, and so perhaps they decide at year 16, I change my behavior because at year 18 I don't want to be rotated to a lower court. I want to be a member of the Executive Branch. There's famous examples of Supreme Court justices who left to take Executive Branch or Legislative Branch positions. So, I think that's a problem.

 

      And finally, I want to make one last point. I've heard this argument for about 15 years now, that somehow this will change confirmation hearings and make them less contentious. I think that is just plainly wrong. I think that is a pipe dream and the reason is, is 18 years is way longer than the political horizon for any politician. So, if you are a Senator, you have a six-year horizon. If you are the President, you have a four or eight-year horizon. Whether that justice serves for 18 years or for life, I don't think makes a lick of difference. And that confirmation hearings for Supreme Court justices under a term limit scheme will be just as contentious as they are now. And having gone through a contentious confirmation proceeding, I think I can say that with some degree of confidence.

 

Hon. William H. Pryor, Jr.:  All right, thank you.

 

      [Applause]

     

      Mr. Taylor.

 

Stuart Taylor, Jr.:  Thank you Judge. These are hard acts to follow. I'm going to agree, generally, with Norm Ornstein and disagree, respectfully, with Judge Stras, except I'd like to begin by agreeing with you on confirmation hearings. In fact, I stress at the outset that the biggest problems with the federal courts will not be solved, or even much eased, by ending life tenure.

 

      The central problem, I think, is a sharp ideological polarization between the five Republican Supreme Court appointees and the four Democratic appointees. It would still be a problem if the five and the four were differently arranged, and it reflects the polarization of the country. I don't think tinkering with appointment, with life tenure, is going to change any of that. In an era when the justices have given themselves, and lower court judges, vastly more political power than was imagined by the Framers, polarization puts them at risk of being seen, not as neutral arbiters of equal justice under law, but as gladiators in an arena ruled by unprincipled partisan politics, present company excepted, of course. Term limits seem most unlikely to ease any of that or the ugly partisan brawls that Senate confirmation proceedings have become. Indeed, they would make such spectacles more frequent.

 

      I, nonetheless, feel strongly that it is time to end life tenure for Supreme Court justices, though perhaps not for lower court federal judges. Most scholars think, and I agree, as Judge Stras indicated, only a constitutional amendment could impose term limits on federal district and appellate court judges. Don't hold your breath for the constitutional amendment. But unlike Judge Stras, and many other scholars, I also think Congress should be able to limit the terms of future Supreme Court justices by ordinary legislation provided that at the same time, Congress also allows senior justices, after expiration of their Supreme Court terms, to participate for life in lower court cases. Judge Stras has made a very eloquent argument why this is wrong. I'm not going to grapple with that in detail in my limited time, but I do register a dissent.

 

      While ending life tenure for the nine justices would not solve the biggest problem, it would ameliorate some other problems, I think. As to what term limits for justices would look like, I'm generally in accord with Norm Ornstein's idea that 18-year fixed terms followed by the ability to continue in the lower courts would be about right and it should be phased in so that every new President -- every President gets two appointments, ideally, in every term to space it out so that you don't have the fluke of four appointments by this President, zero appointments by the next President, and so forth.

 

      Paul Carrington, a Democrat and Professor Roger Cramton laid out in great detail how this would work, and it's pretty complicated. This was in an article they did in 2005 joined by about 40 other ideologically diverse law professors. If the nine current -- I'm sorry I'll skip that. The arguments for term limits, which I'll focus on, are numerous and I think cumulatively quite powerful apart from the legality of it.

 

      The broad objective would be to marry more frequent and regular injections of new blood with judicial independence, which can be protected, I think, without allowing justices to keep their vast powers for life. What are the problems with life tenure? Begin with the facts that no other advanced nation gives judges life tenure, or seems to think it's necessary, with the fact that life expectancies have grown greatly since the 1700s, as Judge Pryor pointed out. In fact, the first 10 justices served an average of under eight years each. And also, in a recent poll, Marquette poll, 72% of respondents supported ending life tenure.

 

      Add to that the risk that some justices will remain in the court until mentally debilitated, or at least past their prime, as did Justice William O. Douglas, and some others, in the past. After a stroke, Douglas barely functioned during the last 10 months of his record-setting almost 37-year tenure. Justice Thurgood Marshall, who was a mere 83 years old, just five years older than Bernie Sanders is right now, when asked in 1991 why he was retiring, he answered, because I'm getting old and falling apart.  That's a realization that showed wisdom on his part but won't necessarily be shown by many others. The hazards of advanced age also include more rigid mindsets, losing touch with the temper of the times, and in such powerful positions, the kind of arrogance and hubris once seen in medieval monarchs.

 

      Life tenure also creates incentives for Presidents to seek nominees young enough to serve 30 or 40 years. We've all seen this happening and the J. Harvey Wilkinson example is a good illustration of what it costs us. Compare this contemporary convention with the fact that the 90 justices who had completed their terms by 1970 retired, on average, after 15 years on the bench at the age of 68.

 

      Life tenure raises the stakes of each nomination and makes confirmation battles even more ugly. It's hard to imagine them becoming much more ugly, but it's a problem. It tempts, some justices to time their retirements for political advantage. Life tenure also limits the opportunities for new presidents and senators to inject a degree of indirect political accountability into the court.

 

      Then there's the ease with which aging justices can, and have, limited their workloads by hearing fewer cases. Now, about half as many as in the 1980s, and delegating work to law clerks. In this regard, the justices are unlike lower court judges, who's heavy case loads create incentives to retire while healthy. That's one of the reason's why there's not so much need for term limiting lower court judges.

 

      One more reason to regularize Supreme Court nominations to two per presidential term is to minimize the chance of dramatic shifts in the Supreme Court's ideological direction based on such happenstances as the outcome of the very close 2016 election. If President Trump wins a second term, he may well end up replacing Justice Ginsburg, now 86, Breyer, now 81, as well as the late Justice Antonin Scalia, and retired Justice Anthony Kennedy, likely entrenching a strong, mature, imminent conservative majority for a generation to come. Now, that might sit well with many in this room, but how would you have liked it if Hillary Clinton had won in 2016 and were to win again in 2020? That would have left the court with six solidly liberal justices. The risk of sudden big lurches to the ideological left and right will be substantial for as long as the justices serve for life. Thank you.

 

      [Applause]

 

Hon. William H. Pryor, Jr.:  Ms. Severino.

 

Ms. Carrie Severino:  Thank you so much. My apologies in advance for my sore throat here. My husband commented this morning that I look a lot like a flight attendant today. I'm not actually planning on switching careers, I'm just trying to keep my throat in as good condition as possible. Tea and warmth.

 

      So, calls for change to the life tenure process in the courts have been coming for almost as long as we have had federal courts.  The earliest that I found, there may be earlier, was in 1807 when Thomas Jefferson, himself, started calling for an end to life tenure in the court, so this is certainly nothing new. But I do think, before we jump into the idea of changing it, as we should with anything. I guess, being good conservatives in this sense, you should always figure out why was it there in the first place.

 

      G. K. Chesterton said, when you find a gate across a road, or a wall, as you're walking through somewhere, your first instinct shouldn't be just to tear it down because I don't know why it's here. He said, go home, think about it, figure out why somebody put it there, and then you can come back. And if you can tell me you know why it's there in the first place, then I'll listen to you if you tell me to take it down.

 

      I think, first of all, the question is what were the Framers doing here? We talked a lot about judicial independence and the question is, were they either wrong in some of those assumptions? Maybe it didn't work as they intended, or have times, in fact, changed in a way that life tenure isn't necessary for judicial independence as it once was. I'll point out that they felt life tenure was so important for the independence of the judiciary, this was actually, literally, mentioned in the Declaration of Independence. The fact that judges were dependent on the will of the Crown for their tenure and their offices, was something that our Framers took exception to. Obviously, the alternative isn't simply at the will of the President. But this was something they felt very deeply.

 

      Some of the assumptions they had were, first of all, they wanted to be -- they expected that judges maybe wouldn’t have served as long. Life tenure, of course, was only around age 40 at the time of the Declaration of Independence and the Constitution. So maybe they thought people wouldn't serve as long. However, that was something that actually was contemplated in Federalist 79, Hamilton points out that having age limits on judges can be very pernicious. It would have eliminated people like Benjamin Franklin, who was 81, from participating in the Constitutional Conventions and lists other, Lord Mansfield, and other illustrious jurists. So, they realized that not everyone's going to make it to that age. That was twice life expectancy, but that those who did might actually still be able to serve very well.

 

      At the time, of course, the problem was not people staying too long, but people leaving too early. You have people serving as few as four months in the early republic and part of that was due to the rigors of riding circuit and travel. There were many justices, actually, whose lives were shortened because of the difficulty of traveling through the early republic to do their job in terms of riding circuit. So, a lot of things have been addressed, taking out the riding circuit. Now we have air travel that makes that so much easier. There's also things like having clerks. Having Lexis and Westlaw at our fingertips. The job has been made much easier to stay in longer, so you don't have people immediately leaving, there's not the temptation, for example, to leave for elected office that, perhaps, there once was. John Jay, himself, left because he felt like the Court hadn't yet achieved the strength that he thought it should, and the prestige. He said I can do more good as Governor of New York. That probably isn't going to happen today so maybe there are some reasons people are going to stay a little longer than they thought.

 

      One of the other assumptions of the Framers was that life tenure would be very important because judges, as Hamilton put it in Federalist 78, were the least dangerous branch because, as he said, if they exercise judgment, not will, they don't have the authority to make laws. But, they also warned that if the judges were to have that power joined to the judicial power, that it would be very pernicious to have judges in life tenure, so I think we can query whether that has happened and whether we need to worry about judges having life tenure specifically because, as several people have mentioned, it's become a very political role, unfortunately.

 

      So, there are some of these things that -- I think the final thought is, the Framers assumed this would increase the independence of judges because they won't have to look for their next job, and I think that's absolutely correct. But I think we have learned that there is still risks that judges are going to look to outside influences, whether it's the adulation of the media, or some worry about the cocktail circuit, the greenhouse effect. A lot has been written and spoken on this so to the extent that those things are motivating factors to judges, maybe life tenure is, in fact, not even enough to ensure the independence of the judiciary.

 

      So, there are some things that have changed, and maybe it's time, in terms of what has changed on the ground in America, to say we can address the independence through other means and not through life tenure. But I think a bigger question also needs to be asked, and that is, what are we hoping to accomplish and would changing from life tenure actually accomplish that?

 

      We heard a lot of people talking about things like judges being appointed too young, and this is going to expand the field. I think, say you have 18-year terms. It may expand the field up to the age of 60, but I find it hard to believe that any President is still going to want to appoint someone who is old enough that they're going to be serving -- that necessarily a large portion of their term is going to be in that age. I think you still have an incentive to appoint people young. But there are natural checks in the process of appointing people too young. They function now. No 20-year-olds are being appointed to the Supreme Court because apart from having to convince Senators that they're qualified, Presidents actually want to know what the judicial philosophy of their nominees is. And so, there is going to be a natural floor in terms of the age on that. I'm not sure adding terms is going to increase that significantly.

 

      In terms of judges staying past their prime. This may address some of that, but at the same time, you end up cutting off the Ben Franklin's, the Lord Mansfield's of the world who actually can function very well in their older years. So, we have to recognize it's going to happen on both ends of the spectrum. So, it's going to cut off some people. And I think it's also worth adding that in today's world, we're literally considering electing someone who's 78-years old and just had a heart attack to be the President of the United States, not to mention all of the other septuagenarians who are running for office. If the American people seem to think these people can carry on, not only the rigors of a campaign, but also the Presidency, which I would submit is significantly is more physically, if not mentally, rigorous than the Supreme Court, we might be a little presumptuous if we're saying, we know that judges can't serve past a certain age.

 

      And then I think, finally, which seems to be the dominant reason here, is judges are acting too politically in the way that they retire. Maybe people are retiring for political reasons. I agree with Judge Stras. It's hard to prove that that happened. You have evidence even that people have tried to retire for political, or not retire for political reasons, it doesn't always work out. Thurgood Marshall is said to have told his clerks, if I die, just prop me up and keep on voting. But ultimately, he retired during George Bush's Presidency. So, he ultimately, that caught up, his actual physical health caught up to him. He said he was falling apart, and he did retire. So, people are still, that doesn't necessarily work in various number of cases.

 

      And remember, there are two types of political retirements. There are people who stay on past their prime. That, I think we should be concerned about making sure that people aren't judging past their prime. However, there are also people who retire early for political reasons. Say your term ends in what will be the first year of the next Presidency. Maybe you retire a little bit early. I'm not aware that your system would require people to serve their full 18-year terms, but I'm certain that there's still room for political strategic behavior, in terms of retirement.

 

      But finally, I think when it comes to the politics of the confirmation process, we have to really be skeptical about the idea that changing to term limits or to age limits would actually fix things. The reason Supreme Court confirmations are so contentious is not because the timing of judges retiring, and it's not more than I think a marginal difference because they serve life tenure, because 18 years would still be a huge impact. I think it's because judges, more and more, are doing exactly what Hamilton feared. They're uniting the legislative powers into the judicial power and as long as they are functioning both those roles, they are a very dangerous branch. So there may be good reasons to move from life tenure to a different system, but we can't expect that to change the confirmation process. As long as judges are having political impacts like this, we're going to see a politicized confirmation process. Thank you.

 

      [Applause]

 

Hon. William H. Pryor, Jr.:  Okay. Let me first ask the panelists if there are any things they would like to say to each other.

 

Dr. Norman J. Ornstein:  Yeah, just a couple of comments regarding some of the things that Judge Stras said. One, on your term as an elected judge, and we could have a whole other panel on whether we should have elected judges compared to having life tenure now, I think that's apples and oranges. An 18-year term is a lot different than serving as an elected judge.

 

      And also, in terms of moving to another office, so if you're a Supreme Court justice and you're there for 18 years, I can not imagine a single example of somebody 16 years in who would worry about whether there would be another job available, regardless of how you voted. And in terms of moving to an Executive office or another office, there's nothing that prevents them from doing it now, leaving their life tenure to do that, that would be the case with a single 18-year term.

 

      And finally, in terms of the temperature, I do not believe that we would have a huge difference in temperature for an appointment for the 18-year term, although it might be a little bit if we create the sense that every President has the ability to pick two justices during that term. But where it may make a difference is if somebody leaves, either voluntarily or for other reasons and then there's a four, five, six years left in the term, or maybe even one year left in the term.

 

      Let's say that we had had this in application when Justice Scalia died and let's say there were four years left in that term. The way in which I think the Senate, and maybe the country, would have looked at that position, if it weren't now picking somebody who might serve for another 40 years, but simply for the remainder of that term, it might have changed the way the Senate looked at it when Barack Obama was President and it might have changed the way they looked at the Gorsuch hearings, if that was to fill a much shorter term. So, I think it could make a difference, although not a huge one.

 

Hon. David Stras:  Just to respond, I agree with you that it is somewhat apples and oranges to compare a six-year term with elections to an 18-year term. I would say, though, that an 18-year non-renewable term is somewhere in between. It's not a six-year real short term. But it's also not life tenure and so I think that where that balance is struck, I don't know, but I do think that there's value over life tenure versus an 18-year term.

 

      And when I'm talking about the final period problem, I really highly doubt that justices -- and maybe I'm wrong about this, some justices would, but that most justices would be happy being rotated off after 18 years. And what I'm thinking is that they maybe want to do something different. Rather than starting to sit on the lower courts, the circuit courts and district courts --

 

Dr. Norman J. Ornstein:  -- Which is fine.

 

Hon. David Stras:  -- They may want to become Ambassador of the United Nations or something, and there's been examples of justices that have gone on to do that. And I think that creates an issue about how they behave in the last couple years.

 

Dr. Norman J. Ornstein:  Well, one, I would love to have people distinguished in that way moving on to other offices, but that's their choice. The point here is, you could preserve the idea of life tenure on the courts without requiring a constitutional amendment. If they wanted to stay, fine. If they wanted to leave and do something else, what a great pool of people to have in other areas of public life, or private life.

 

Ms. Carrie Severino:   If I could just address the question of filling out completed terms. I think you just have to balance the idea of maybe everyone would view, say a hypothetical four years left in Scalia's term or something that had to be filled, recall also that there are nominees on the other side. When you have the potential for the type of confirmation process we have seen, and I unfortunately don't think it'd be that much lowered in temperature, how difficult is it going to get to get our best and brightest to step up when they know they're going to have a four year non-renewable term to fill out. Who is going to step up for that seat? Or do you allow them, if they've served a short enough time to have a subsequent term? I think that creates a very sticky problem in and of itself.

 

Dr. Norman J Ornstein:  I see no problem at all in saying if somebody fills out the remainder of a term, just as we have with term limits for Presidents, if you serve for less than the two years of a remainder of a term, you are then eligible to be elected twice, that you could then be eligible to be chosen by another President to serve an additional 18-year term, no problem.

 

Ms. Carrie Severino:   Going through an additional, wonderful confirmation process.

 

Dr. Norman J Ornstein:  Yeah.

 

Ms. Carrie Severino:   It just might be harder to recruit nominees, is my concern.

 

Hon. William H. Pryor, Jr.:   Any others want to react?

 

Mr. Stuart Taylor, Jr.:  I might just throw in one caveat about, if I understood Norm correctly. I don't much like the idea of a term limit -- a justice being appointed to a four-year term and then hoping that whoever is President at the end of that term will keep him.

 

Dr. Norman J. Ornstein:  I'm not suggesting that it would then be, that you want to necessarily have the same vacancy. Just that at a subsequent point after that, you're eligible, if another President wants to choose you. It could be for a completely different seat.

 

Hon. William H. Pryor, Jr.:   On this constitutional impediment, I wonder about this. If you think that there's not a constitutional problem with having a Supreme Court justice after this fixed term, then serve in another judicial office. If that is true, then why doesn't it work always? So, that would mean, would it not, that through ordinary legislation, Congress could enable the President to move district judges to appellate courts, or appellate judges to the Supreme Court without a new confirmation. Is that right? If you can move them down, why can't you move them up?

 

Dr. Norman J Ornstein:  That I'm not sure about. I don't think that--

 

Hon. William H. Pryor, Jr.:  Might be a problem.

 

[Laughter]

 

Dr. Norman J. Ornstein:  I don't think that that would be the case. But I'm also perfectly happy if that turns out to be a problem, to simply move to senior status. And of course, what we have now is retired Supreme Court Justices on senior status who often sit on appeals courts or do other activities in the judicial arena. Do it that way and avoid the problem.

 

Hon. William H. Pryor, Jr:  One of the points Dr. Ornstein makes, Carrie, that you say, well once you get past 60, if it's an 18-year term, it really doesn't change the dynamic. But, what if they're in their late 50s? I'm asking for a friend.

 

[Laughter]

 

Ms. Carrie Severino:   Again, I don't think that, it may expand, very marginally, the age range considered. But I'd still suspect you're not going to have someone who says, this guy's already 65, but he's good for at least 18 more years. And we have had people who have served 18 years past that age, but it's still, if that's a strategic analysis, it's still going to be made whether you have an 18-year term or a life tenure.

Hon. William H. Pryor, Jr:  David, I don't know, my next job, I want to be Ambassador to the Vatican.

 

Hon. David R. Stras: There you go.

 

[Laughter]

 

Mr. Stuart Taylor, Jr.:  Now, I can't help interjecting a point in favor of life tenure. Oliver Wendell Holmes, Jr. was 90 and had 28 years on the Court under his belt when at the sight of a pretty girl, he exclaimed, “Oh, to be 70 again.”

 

[Laughter]

 

Hon. William H. Pryor, Jr:  I'm not sure if I would have regarded Holmes as the way to persuade this crowd.

 

[Laughter]

 

      Okay. We're now to the point of the program where we can take questions from the audience. Do we have microphones that are going to be available? Maybe not? I have one reminder about questions. It's my usual caveat when I moderate a panel. We have panelists who are invited to be our panelists. All the rest of us have different roles. So, there aren’t any other panelists. But we do welcome questions so long as you keep them to questions. I understand that sometimes a question needs a little bit of a set-up, but please keep in mind what we're opening this up to are questions. The first hand I see is Professor Somin. I'm not sure which Ilya you are. Are you good Ilya or bad Ilya?

 

[Laughter]

 

Prof. Somin: That depends on which Ilya you ask.

 

Hon. William H. Pryor, Jr.: Professor Somin.

 

Prof. Somin:  Thank you. So, for those of you who don't know, I’m Ilya Somin of George Mason University, a law professor. There’s also another Ilya, Ilya Shapiro, who works for the Cato Institute. I’m asking a question purely on my behalf, not that of all Ilya's everywhere.

 

[Laughter]

 

      I'm quite sympathetic to the idea of an 18-year term limit for Supreme Court justices, but I wonder if I might ask about a potentially troubling indication of the idea that this could be just done without a constitutional amendment, that the theory that was offered today is, well they would still be judges serving for life, but they could just be moved to a different court.

 

      If that could be done just by ordering legislation, would Congress then not have the power of just passing a law saying, we don't like the recent set of decisions these particular Supreme Court justices have made, so we're going to move them off the Supreme Court. They can still be federal judges, but they've got to be serving on the Federal Traffic Court in the middle of the Alaskan tundra or something. Even if they can take senior status still live in their comfortable lifestyle in Washington D.C., that still strikes me as a potential threat to judicial independence for obvious reasons. So, I wonder, is there any way to avoid that -- what would seem to be that implication of argument?

 

Dr. Norman J. Ornstein:  So, I would say, I see that as along the same lines of basically saying, we don't like this Supreme Court so we're going to increase its size by three, four, or five. You can do that legislatively, obviously. The Court started with five and moved to nine. We have pretty strong norms that have prevented that from happening and I think you have the same norms that would apply. And if those norms didn't apply, the first thing they're likely to do is just increase the size of the Court.

 

Mr. Stuart Taylor, Jr.:  I might add, 18 years is not something that can be politically manipulated. We would like to get rid of these justices now, obviously, can be politically manipulated.

 

Hon. William H. Pryor, Jr.: Any others?

 

Ms. Carrie Severino:   I'll just point out, it's another evidence this probably isn't a constitutionally available option because there have been lots of times, as I mentioned Thomas Jefferson, in the beginning, where they were just desperate to get rid of people on the Supreme Court and the fact that it hasn't been tried yet suggests that maybe no one ever thought it was really an option. So, change away, but do it with a constitutional amendment.

 

Hon. David R. Stras:  Yeah and just to add to that. I think it was between 1805 and 1807, that happened three times. Thomas Jefferson tried to change life tenure and each time the proposal was by constitutional amendment, not by statute.

 

Hon. William H. Pryor, Jr.: By the way, there is, I see now, a microphone here and over here. So, if you will, please go to the mic so that everyone can hear your question. Yes sir?

 

Questioner 2: Question is, I'm struggling with this scenario where we have a Supreme Court justice who's, maybe, filled the remainder of a term, maybe four or five years, and then they come before the Senate Judiciary Committee to be appointed for a full 18-year term. I'd love the panel to address the pros and cons of a scenario where a Supreme Court justice who has four or five years of decisions is getting questions from either side of the ends of the spectrum to justify those decisions that the Court, as a whole, has made. I think that seems problematic but pros and cons.

 

Dr. Norman J. Ornstein:  I would just say we get the same dynamic now with people who've served on courts of appeals for periods of time and have to justify the decisions they've made, or the decisions made by their courts. So, I just don't see a huge difference there, including a difference in the way that a nominee would address those issues.

 

Mr. Stuart Taylor, Jr:  I feel a little bit differently. I think I don't like the idea of somebody serving two, three, or four years and then having to try and get re-confirmed. And I think the solution to that is for any new justice gets 18 years no matter how much was left in the term of the person he or she succeeds.

 

Ms. Carrie Severino:   I’d challenge, of course. The problem is it's a very complicated thing to do. If you do that, then the beautiful balance of bipartisan-ness, or alternating Presidents, is going to get thrown off. And then there's also these weird long-term impacts of almost inevitably, you're going to have some strategic early retirements there, and so it's going to throw the whole system off. So you could have someone who goes into the Presidency knowing that unless someone retires off of their term, they would never get Supreme Court vacancy, so it's complicated.

 

Hon. William H. Pryor, Jr:  Of course, there was a time recess appointees sometimes served for a while before they were confirmed.

 

[Laughter]

 

      Justice Brennan, for example.

 

Ms. Carrie Severino:   There was a time when that was actually a very successful strategy to getting confirmed, which actually raises some of the same concerns about having a short term and then being confirmed. Because that's happened, historically, on a regular basis.

 

Hon. William H. Pryor, Jr.: Question over here on this side.

 

Questioner 3: Hello. I have a two-part question for the entire panel. I would like to know what you think of the following constitutional amendment proposal and whether you think it would enjoy popular support to get actually into the Constitution. It seems to me, what we're trying to do is limit the reign of judges because you feel that justices stay on too long. So, we could look to the other two branches of government. To serve in the House of Representatives, we have a minimum age of 25. U.S. Senate, 30. For President, 35. If we're interested in limiting to, say, 18 years, we could reverse engineer a minimum age, say 70. It would preserve the current system of like life tenure, but you would obviously limit the terms based on the minimum age of 70 or 75.

 

Hon. William H. Pryor, Jr.: Oh my. Got new life. Anybody?

 

Hon. David R. Stras: Well one problem with that is, and we highlight this in the article I read about 13, 14 years ago, is when you start talking about mandatory retirement ages, which is sort of the flip side of your proposal, which is a minimum age, it's both under-inclusive and over-inclusive. I agree with Stuart, for example, that there are well documented cases of mental and physical infirmity. Not so much recently, but over the entire course of American history where justices were not able to do their job and judges were not able to do their job in the lower court. The problem is, is it's correlated with age, but you can't precisely figure out the time in which a judge is going to become infirm. So, if you have a minimum age of 70, you may well be putting somebody who's going to end up with dementia three years down the road. And so that's not necessarily a great fix either.

 

Hon. William H. Pryor, Jr.: Any others? Is that you Professor McGinnis?

 

Prof. John McGinnis:  Yes, John McGinnis from Northwestern Law School. So, I do think it's a very hard issue, but I wonder whether this would be a --

 

Hon. William H. Pryor, Jr.:  Could you speak closer to the microphone?

 

Prof. John McGinnis:  Yes. I do think this is a very hard issue, but I would like to ask about this possible downside of an 18-year term limit, which is that it might make the Court actually more political rather than less in the sense that a President is going to choose a justice with a great regard to the issue-mix of the day and therefore will be directing the judges, sort of, politically. Over time, issue-mixes in politics change, and so you might well think that a judge who's there at 25 years or 30 years is less likely to be judging politically, but on some other basis. And we actually have examples of that in American history. The FDR was very concerned about the power of Congress and appointed judges who all agreed on that and made a political change. But as they got older, they disagreed on questions of rights because that wasn't in the contemplation of the President.

 

Dr. Norman J. Ornstein:  I'm skeptical. I'm skeptical about whether, for example, now we don't have those political considerations in the minds of Presidents, but also whether in our world now, we're going to see dramatic changes in the way judges, or justices, look at the world. If they're going to do that, we may see it emerge before the 18-year term, but I think we're not as likely to see that. And if the world changes then after 18 years, you're going to have a different context to choose another kind of justice.

 

Mr. Stuart Taylor, Jr.:  I think there are problems, down sides to the 18-year term, and that's one of them, but it's pretty far down the list, I think. I'm not very worried that Presidents are going to be thinking more than 18 years down the road when they're deciding who they want to appoint to the Supreme Court. Maybe there's somebody somewhere who would be thinking that way, but I can't think of any recent President who would have.

 

Hon. William H. Pryor, Jr.: Anyone else? This side?

 

Questioner 5: So, it seems like there's a split on the panel on it being a problem that the length of terms that we have today and the somewhat random nature of how they get filled. There's also this problem that's been eluded to about court packing and what if we change the number of members on the court and that could be done by ordinary legislation. Do you think there's a grand coalition out there for going to some kind of an 18-year system, but at the same time, putting in the Constitution that there's a nine-justice limit? And would some of you, maybe, change what you think about what you've said already on the panel if we could make that coalition, that compromise come about? Or do you think it's a good idea, at all?

 

Ms. Carrie Severino:   Well, I think one of the challenges with this, in general, is that so many times the clamor for changing something tends to follow the political trends. So, the fact that Jefferson was trying to change the Supreme Court had everything to do with the fact that he wanted to get rid of Samuel Chase, and others, who opposed him on the Court. It wasn't necessarily a broad high-minded, I'm thinking this isn't working for the Court in general. And that, unfortunately, happens over all, so I think if it were to be a successful move to go to whatever type of 18-year thing, it would have to be done in a way that it was phased in so that it didn't have any predictable impact on one political side of the spectrum or another. I think that's going to be the real challenge and maybe tying it with another, an anti-court packing strategy would be the thing. But I think trying to make it a non-partisan enough issue that you could get the overwhelming support to have a constitutional amendment is the challenge. That's one strategy.

 

Hon. David R. Stras: The other point I would make is, when you start tinkering with the Constitution, and particularly the structural parts of the Constitution, I wonder whether the cure is worse than the disease and that there's a lot of unintended consequences that could come about that, even though I wrote on this subject and studied it for a while, I may have missed things, right? And so, I don't know what it would do to our constitutional republic. And so, I worry, without a compelling case for changing it, whether we should be tinkering.

 

Hon. William H. Pryor, Jr.: Anyone else?

 

Mr. Stuart Taylor, Jr:  I would just suggest the possibility that the urge to tinker might be assuaged, somewhat, by going to 18-year term limits and take some of the energy away from the court packing urge to tinker.

 

Hon. William H. Pryor, Jr.: Yes?

 

Vishrut Shelat:  Hi, my name is Vishrut Shelat. I'm a 3L from Vermont Law School. And I just wanted to ask you guys what you thought about a compromise system where we kept the lifetime tenure but we introduced a provision in the Constitution, through a constitutional amendment of course, that allows the President to nominate a new Supreme Court justice every four or eight years, depending on popular support, if they feel like the justices that are currently appointed aren't doing a good enough job. And then, of course, the Senate and the House confirms that nomination. What do you think are the pros and cons of such a compromise where we keep the tenure system, the lifetime tenure system, but we also have a provision that allows an easier process for the Executive and the Legislative Branches to replace justices, too? Thank you.

 

Dr. Norman J. Ornstein:  I'd be a skeptic of that, partly because you could have significant periods where you have an even number on the Court. Which could mean deadlocks in many decisions. But you could also, then, end up with a very, very large court. So, I'm not sure that's a direction I'd want to go in.

 

Hon. William H. Pryor, Jr.:  Yes ma'am?

 

Questioner 7: Hi Judge.

 

Hon. William H. Pryor, Jr.: Hey.

 

Questioner 7: Quick question, primarily for Judge Stras. Does the separate offices idea mean that the current process of sitting by designation is constitutionally suspect? At least across courts?

 

Hon. David R. Stras: I think the answer is no. And this gets back to what your primary responsibilities are. If you are a circuit court judge, for example, sitting as a district court judge, or even as a Supreme Court justice. There's a famous example where Chief Justice Rehnquist sat, by designation, in the Eastern District of Virginia and then ended up, promptly, getting reversed by the Fourth Circuit.

 

[Laughter]

 

      I think that's fine because you're still carrying out the duties of your office. Where it becomes iffy is where, after 18 years, you're now, effectively, in a different office, entirely. And therefore, that's where the separate offices reading, I think, really comes in.

 

Hon. William H. Pryor, Jr.: Well, and that's really supported, isn't it, by the fact that at the founding, Supreme Court justices rode circuit.

 

Hon. David R. Stras: Right.

 

Hon. William H. Pryor, Jr.: Right?

 

Hon. David R. Stras: Which was the equivalent of designations, sort of.

 

Hon. William H. Pryor, Jr.: Yeah, the equivalent.

 

Ms. Carrie Severino: Except that they weren't circuit justices, right. It was a district judge and then two Supreme Court justices for the circuit court. So that was actually part of the requirement of the job, initially.

 

Hon. William H. Pryor, Jr.: Right. But it was the definition of the office.

 

Ms. Carrie Severino:   Right.

 

Hon. William H. Pryor, Jr.: Question from the middle.

 

Hon. Joseph Brannigan:  Yes. My name is Joe Brannigan. I'm a Superior Court judge out in San Diego, California. I was elected in 2004 and have run for re-election every six years. Recently a judge up in Northern California was recalled after a controversial decision. He followed the probation officer's recommendation and gave probation to a young man from Stanford that had -- a swimmer, I think, from the swimming team had been charged with sexual assault, convicted, plead guilty, actually. So, I guess my question for the panel is, there's a real-life example of what judges who are up for re-election every six years have to consider. I'm with the judge here that said that you put that out --

 

Hon. William H. Pryor, Jr.: Sir, is there a question or is this a --

 

Hon. Joseph Brannigan:  Yeah, the question is just what the panel thinks of a real-life case like that? Does that have any effect on their position?

 

Dr. Norman J. Ornstein:  I happen to believe that electing judges is an abomination. That it gets directly into the political arena, and I think your case, that example, is a good one. It's also what we've seen in many instances where you have judges running for election who feel they have to pander to political judgments out in the country and then there are questions of campaign contributions, where they come from, and how they're raised. So, to me, that is a good example about why we shouldn't have elected judges, but it has nothing to do with a single 18-year term for a Supreme Court justice.

 

Hon. William H. Pryor, Jr.: Go ahead.

 

Hon. David R. Stras: Just to follow up on that. It really depends on what each, what you want from your judges. So, elections work. And I disagree. I think that elections are perfectly legitimate, particularly like in Minnesota, where there is a long history of elections and it was in the constitution that you have to stand for election as a judge. But you get a politically responsive court. That's the result. Or a more politically responsive court, overall, even if not every individual member is necessarily affected by having to stand for election. If you want a politically insulated court system, where judges can just decide, and ignore all the noise out there, then life tenure would be the better system for that. So, it kind of just depends on what you want. And as I said earlier, I think 18-year non-renewable terms are somewhere in between.

 

Hon. William H. Pryor, Jr.: Doesn't that really strike, thought, at what is the meaning of judicial independence? That is independence from what? Is it independence from the people? Or is it meant as independence from the other branches? Do you have a perspective about that?

 

Prof. James E. Pfander:  We just heard some lectures from Professor Gordon Wood on the subject. And he said one of the unintended consequences of Hamilton's claim that judges were really the agents of the people, just like members of Congress were agents of the people, and the President was an agent of the people, is that it became natural, even though not welcome from Hamilton's perspective. It was natural, then, to argue that as agents of the people, the sovereign people, it was appropriate, then, to elect the judges and not have them appointed in this indirect way that we've now inherited.

     

      There's a lot of evidence, political science evidence, that suggests that in the run up to elections, the behavior of judges change. The political scientists have focused mostly on changing vote patterns in criminal cases. And the evidence suggests that fear from the political process does induce a tougher-on-crime voting pattern among state judges standing for office.

 

Hon. William H. Pryor, Jr.: But would the Founders have understood independence to be independence from the public or did Hamilton's formulation really suggest that what they were concerned with was independence from the other branches?

 

Prof. James E. Pfander:  It's structurally, I think, in terms of the other branches. I agree with you.

 

Ms. Carrie Severino:   I'd just point out, Joseph Story actually talked about it in terms of both. And he said you have to have judges who are going to be independent because sometimes making the right decision is also going to make you very unpopular. So, it goes both ways.

 

Mr. Stuart Taylor, Jr:  But also, I think the idea of electing federal judges wasn't even part of the conversation at the time, was it? And so, I think that suggests that they wanted independence from the people, as well as from the other branches.

 

Ms. Carrie Severino:   I think it was done in many states, early on. So, it's hard to . . .

 

Hon. William H. Pryor, Jr.: Next question.

 

Rob Chatfield:  Hi. Rob Chatfield, Free To Choose Network. I've heard a couple of people advocate for each President being able to nominate two, but nobody talked about when, in their term, they would do the nomination. Beginning, middle, end of term?

 

Dr. Norman J. Ornstein:  Well, you stagger these, obviously, and we phase it in as justices leave. So, I think it probably is not necessarily going to be every one comes right at the beginning or the end of a term. It's going to be somewhere, perhaps, in between.

 

      Now, if you started from scratch, you'd probably want to have either both at the beginning of a term, or one at the beginning and one two years in. But we're not starting from scratch.

 

Hon. William H. Pryor, Jr.: Next question.

 

Questioner 10:  Given what we've seen of the Legislature, what does this kind of proposal mean for the legislative function? We're turning the Legislature into electors of the Supreme Court, which shall govern us. That's a conundrum posed to you.

 

Dr. Norman J. Ornstein:  I honestly don't see any difference from what we have now. You're still going to have a confirmation process that's comparable to what we have now. Just it'll be on a somewhat more regular basis.

 

Hon. William H. Pryor, Jr.: Yes.

 

Olivia O'Sullivan:  Hi. I'm Olivia O'Sullivan from The Federalist Society, and I'm just asking, what role do you think seniority plays on the dynamics of the Supreme Court? And would that be lost or enhanced with the implementation of the 18-year term limits?

 

Hon. William H. Pryor, Jr.: You have any thoughts about that?

 

Mr. Stuart Taylor, Jr.:  I doubt that seniority has a very big effect on the workings of the court and, therefore, although this would obviously skew who has more seniority, I doubt that would have a very important effect.

 

Hon. David R. Stras: I do think that one thing that it would do, and whether you view this as good or bad, I'm going to leave that to all of you. But a number of justices, I think Justice Kagan said this most recently, that every time you add a new member of the Court, it changes the Court. It makes a new Court. And so, if you're changing the Court every two years, that is, not the seniority part, but that's going to fundamentally change the dynamics of how the Court functions. Now, whether you think that's a good thing or a bad thing, I'll leave that to you. But I do think it's an important consideration.

 

Hon. William H. Pryor, Jr.: If you walk out to the hall, please try to do it quickly. [Laughter] That is a distraction. Yes sir.

 

Dave:  Hi. My name's Dave. I'm a law clerk to Judge Stras, so I'm biased in some ways.

 

Hon. William H. Pryor:  And nervous.

 

Dave:  A little bit, a little bit. I don't want to embarrass him. So, my question is, I guess--

 

Hon. William H. Pryor, Jr.: You already have.

 

[Laughter]

 

Dave:  Fair enough. So, I guess the opposite of re-trenching new majorities and having a long influence on the Court is constant shifts. So, if every two years you're changing the composition of the Court, you're also, potentially, changing controversial decisions. And I wondered if people thought that was a good or bad thing, or if they disagree that that would be an issue at all?

 

Dr. Norman J. Ornstein:  You know, we have fairly frequent changes in the court, now. Partly, what I would hope would happen is that if you get 18-year terms, that means that in some ways, you're getting a little bit closer to what voters, in general, think; that the changes are going to be fairly gradual. But they're going to be ones that will be more reflective of where we are, as a country, at the time that these changes take place than what we have now. And what I see happening now, you're right. We're not getting 20-year-olds nominated, but the trend is moving downward. We're likely to get, and we're seeing now, nominations for appeals courts, people in their early to mid-30s. I'm not sure that's a very good thing.

 

      I suspect the tendency, as we move to even more partisan and tribal times, is going to be to try to extend your influence in the political arena as long as you possibly can after voters have decided they wanted to move in a different direction. So, it's going to be even more highly charged. And I'm just not sure that seeing these changes that happen as a President is able to pick two, or now some may be able to pick four, which can even more radically change the temperature on the Court, would be a huge deal or worse than what we have.

 

Ms. Carrie Severino:   I'm not -- It may be in a micro-sense there is a trend downward in terms of the age. But I think if you look at it more broadly, historically, there were 30-somethings being appointed in some of the early years of the Republic. I find it hard to imagine that now-a-days you would get someone confirmed under age 40, I think would be shocking, even age 43, when you've got someone like Justice Marshall, who I think was 46 when he was nominated and served for 34 years. He was young when he was nominated, he served for a long time. This is very early on, so I don't think that's anything that's new to the system.

 

Dr. Norman J. Ornstein:  30s in the early 1800s was a whole lot different than 30s now.

 

Ms. Carrie Severino:   Yes, I know it's closer to the average age, but it's again, once you got to a certain point. If you were 60, it was actually fairly likely you were going to make it to 80. It's I think there's a lot of challenging things about figuring out about those numbers. Just pointing out that this is not something that the first time in history would have happened. And I don't think 30-something appointments is likely to happen anytime in the near future.

 

Hon. David R. Stras:  Dave, to get back to your original point, though. I want to just point out, I think that the answer to your question is yes. And I'm going to go back to state courts again where in state courts, the turnover tends to be very rapid on courts of last resort, as compared to the Supreme Court. I mean, it may not be rapid by other profession standards. And what you see is, you start changing a member or two on a state supreme court and it radically changes the types of decisions you see from that court. Sometimes overruling, sometimes not overruling prior cases, but driving away from them or moving away from them. I'd love to be able to run a controlled experiment; we don't know. That's the academic in me, but I have to believe that just simply changing the membership, based on what members of the Court have said about how it changes the Court, will lead to more rapid changes in the law.

 

Hon. William H. Pryor, Jr.: Nice rescue of your law clerk, there. Yes?

 

Michael Thompson:  Hi, Michael Thompson. I'm a 2L at Yale Law School. It seems like there's a hopefulness that this will add some sort of political stabilization by offsetting these different nomination terms, but what's going to make the Senate play ball and actually confirm or deny these nominations?

 

Dr. Norman J. Ornstein:  So, what makes the Senate play ball now? And the answer is, it's very, very difficult. But I think you could actually make a case that this would be easier. If you know that it is the right of a President, of every President, you've got two slots. Not just one that happens because somebody drops dead or somebody even strategically leaves to try and give you additional leverage. There's a little more legitimacy in that and pushing the Senate to at least hold confirmation hearings and maybe to give a President a little more slack in terms of the kinds of nominees that would be accepted by a wider range of members of the Senate.

 

Hon. William H. Pryor, Jr.:  But would your proposal prevent a Senate from holding it open? Until after the election?

 

Dr. Norman J. Ornstein:  No. You can't do that anymore than you can now. And so, we know that Senator McConnell mused that if Hillary Clinton had been elected, he wouldn't let anybody fill a vacancy on the Court. That's the reality of where we are now. If we're able to change it, we can change it at the margins by giving it a little more legitimacy, which is what I believe in.

 

Hon. William H. Pryor, Jr.:  Yes sir.

 

Michael Buschbacher:  Michael Buschbacher. The Chief Justice plays a very important role in shaping, not only how the Court presents itself to the rest of the world, but how the Court goes about its business. My question is primarily to the reformists. How is the Chief Justiceship going to be allocated in this system? And what are the things that are going to be in place to ensure that, because it seems like an area for potential gainsmenship. I get it's a marginal change, not a fundamental change. But I'm just curious for your thoughts on that.

 

Dr. Norman J. Ornstein:  Of course, what we have now is, thanks to luck of the draw, a President can pick a Chief Justice and that Chief Justice can serve for many, many decades. Another reason, I think, even more of an incentive to, when you have a vacancy in the Chief Justice's position to pick somebody who tilts younger now. But you just have that position, just like any other, would be an 18-year position.

 

Ms. Carrie Severino:  As long as you're amending the Constitution, you could also decide to change it where it's a senior judge type thing. It's the most senior one.

 

Dr. Norman J. Ornstein:  Sure.

 

Ms. Carrie Severino:   I believe you'd have to amend the Constitution anyway, so there is flexibility.

 

Dr. Norman J. Ornstein:  Yeah.

 

Hon. William H. Pryor, Jr.:  Okay. Next question.

 

Owen Smitherman:  Owen Smitherman, Boston Consulting Group

 

Hon. William H. Pryor, Jr.:  You need to move closer to the mic.

 

Owen Smitherman:  I'm sorry. Owen Smitherman, Boston Consulting Group. My question is about, taking a queue from an earlier questioner, how do you get the existing justices to play ball so that they retire in the right way to set up all the 18-year, two, two, two, two, two. Is that going to be through statute, some kind of pressure? Otherwise you're going to get all this weird three years, two years, five years, one, one, one, and that kind of defeats the purpose of evenly spacing it out every two years.

 

Dr. Norman J. Ornstein:  Well, I think this is something that is going to take place over a very, very long period of time. We're not going to have it happen overnight, and it's going to have some dislocations. But I don't think you force people to retire early, or even urge them to retire early. You move as people move off the Court and then try and frame it with the timing so that you end up with, over a long period of time, the 18-year terms staggered for two. But it'll take a long time.

 

Hon. William H. Pryor, Jr.:  All right, last question and then final statements from panelists.

 

Bob Mansion [sp]:  Bob Mansion, student from George Mason--

 

Hon. William H. Pryor, Jr.:  I can't hear you.

 

Bob Mansion [sp]:  I'm Bob Mansion. I'm a student at George Mason. Some of you have addressed the contentiousness aspect of the confirmation process, but I have a question about another aspect of the confirmation process and that is, this dance that people, especially from Republican nominees, are expected to do around policy issues or politically charged issues, sort of answering questions, trying to answer questions without really answering questions. How do you anticipate this presumption that there will be two years, or two picks per President to affect that dynamic in confirmation hearings?

 

Dr. Norman J. Ornstein:  I'm not sure it changes much at all. I actually really liked the time in the past when we had justices who had much more varied backgrounds. A majority of the members of the Supreme Court had served in an elective office when Brown v. Board of Education was decided. I think it made a significant difference. I'd love to get people who've had a range of life experiences. We now live in an era where Presidents don't want to pick justices who might change over the course of their tenure, or where they are not pretty certain about where they fall on issues that they, and their parties, care about. So, it's a dance that happens during the pre-nomination process. It's why we now almost exclusively look to appeals courts for people who've served for a period of time. So, you're pretty damn sure where they're going to go. I don't like that. But that's the world we live in, and I don't see that structural change as necessarily going to change that. We hope over a longer period of time maybe we move to a different era.

 

Hon. William H. Pryor, Jr.:  Any final thoughts from any of our panelists?

 

Mr. Stuart Taylor, Jr.:  One speculative thought. The proposal, the 18-year terms and all that, has lots of complicated imperfections as it's been pointed out. One thing it might do, for better or for worse, is increase the leverage of the Senate in the picking of Supreme Court justices because if the Presidents, collectively, are going to have to do it more times, and every time they have to do it, they're going to have to get it through the Senate, that could increase Senate leverage over time. And that might be a force for moderation, frankly, I think, which I would like, and a lot of other people would not like.

 

Prof. James E. Pfander:  Just a quick comment on the power of the Chief Justice. The power of the Chief, up to a point, is not necessarily constitutionally conferred or compelled. The fact that the appointment power's vested in courts, and not in judges, suggests that you could make a change there and that that change wouldn’t require constitutional amendments and therefore, a decision to stagger Chief Justices wouldn't necessarily upset settled assumptions about the power of the Chief. If the power were reclaimed by the court, then it would seem like less of a political consideration that would be a basis for retaining a party affiliation for a particular Chief.

 

Hon. William H. Pryor, Jr.:  Okay. Please join me in thanking our panel.

 

[Applause]

1:45 p.m. - 3:15 p.m.
The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals

2019 National Lawyers Convention

Topics: Corporations, Securities & Antitrust
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 14, 2019, the Federalist Society's Corporations, Securities, & Antitrust Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals".

Robert Bork’s consumer welfare paradigm, which has influenced the evolution of antitrust enforcement in the United States and globally over the past 40 years, is under attack. Critics, including members of Congress and Presidential candidates from both parties, assert not only that antitrust has been unable to keep up with developments in the high tech, finance, communications, and pharmaceutical fields, but that competition law should be used as a tool to address a much broader range of concerns, from privacy and employment to income inequality and non-discrimination in political viewpoint. In response to these concerns, DOJ and FTC have laid the groundwork for potential investigations of Amazon, Apple, Facebook and Google. Calls to break those companies up have also spurred legislative proposals that would significantly change current merger review policy. It is critical to understand the arguments motivating this debate and why they are gaining traction now. Is it time to abandon or change the “consumer welfare” standard or to reconsider longstanding approaches to merger enforcement?

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Hon. Makan Delrahim, Assistant Attorney General, Antitrust Division, United States Department of Justice
  • Prof. Gene Kimmelman, Professorial Lecturer in Law, George Washington University Law School
  • Hon. Maureen Ohlhausen, Partner, Baker Botts
  • Dr. Rainer Wessely, Delegation of the European Union to the United States
  • Moderator: Hon. John B. Nalbandian, United States Court of Appeals, Sixth Circuit

Speakers

Event Transcript

Hon. John B. Nalbandian:   So I want to welcome everybody on behalf of the Corporations, Securities & Antitrust Practice Group. My name is John Nalbandian. I’m a judge on the Sixth Circuit, and I’m moderating our panel today on The Future of Antitrust. I was a litigator in private practice, but I always felt like I was working for the corporate lawyers, so I think nothing has changed. But I want to thank The Federalist Society for inviting me back this year to moderate a panel again and to moderate a panel on antitrust again, and I take that as a compliment. I don't know if it was meant that way, but I take it that way.

 

In any event, last year, we talked about transparency and, specifically, whether greater transparency was a possible incremental solution to, at least, perceived issues that we have in antitrust. This year, suffice it to say, we’re pushing the envelope, inviting our panelists, our distinguished panelists, if they so choose, to question, what I would say, is maybe the bedrock principle of modern antitrust, the corporate welfare standard first articulated by Robert Bork and others 40 or 50 years ago. The idea behind the consumer welfare standard, of course, is that the goal of antitrust law should be to maximize consumer welfare and economic efficiency typically measured by lower prices and greater supply.

 

Now, as we all know, antitrust law is now a hot topic of discussion, among not only academics and hipsters, but politicians as well as reflected in both public statements and legislative proposals. As part of that discussion, the existing enforcement regime, including the consumer welfare standard itself, have been questioned by those who suggested focusing entirely on existing notions of consumer welfare may be misplaced, that innovation, worker interest fostering vibrant small business in the face of tech giants and other societal values ought to be served by our antitrust laws and their enforcers. Indeed, some have suggested that our democracy itself is endangered by an ever fewer number of companies who dominate vital sectors of our economy.

 

      I expect that our panelists will address these questions in addition to a range of other topics, including, perhaps, merger enforcement priorities, including so-called killer acquisitions, market definitions, privacy and data regulations, antitrust remedies, and others -- other topics, I’m sorry, from both the U.S. and E.U. perspective. In any event, let me get to our panel. The full and very impressive bios, of course, are found in the app—conference app—so I won’t repeat all of it here but let me briefly introduce them. First up is Makan Delrahim, who serves as Assistant Attorney General for the Antitrust Division, although, I suspect he’ll inform us that he’s probably speaking solely in his individual capacity today.

 

Hon. Makan Delrahim:  No.

 

Hon. John B. Nalbandian:  No? Official?

 

Hon. Makan Delrahim:  Well, sure.

 

Hon. John B. Nalbandian:  His --

 

[Laughter]

 

Hon. Makan Delrahim:  We’re in the constitutional clear.

 

Hon. John B. Nalbandian:  So whatever he says, you can estop the government the next time you’re in court, right?

 

Hon. Makan Delrahim:  We’ll argue against that.

 

Hon. John B. Nalbandian:  I’ll overrule that.

 

[Laughter]

 

Hon. John B. Nalbandian:  His antitrust experience, of course, is vast, and very serving as a partner in private practice, and as having various stints in the government at DOJ and for the Senate Judiciary Committee. Next, we have Gene Kimmelman. It’s not often that we get someone on a panel who The Washington Post has referred to as both a “secret weapon and a consiglieri,” but he has been called both for the work that he did in the Antitrust Division during the Obama administration. He currently serves, among other things, as an adjunct law professor at GW, and is a senior advisor for the public interest group, Public Knowledge, and he also got his JD at my beloved University of Virginia, “Wa-hoo-wa.”

 

Next, we have Maureen Ohlhausen. Maureen is a partner at Baker Botts here in D.C., where she serves as practice group chair for the Antitrust & Competition Law Group. She was formerly the acting chair and commissioner of the Federal Trade Commission. Suffice it to say, her antitrust experience is vast and unparalleled. She has published numerous articles, testified numerous times in Congress, and has received numerous awards, including the FTC's Robert Pitofsky Lifetime Achievement Award.

 

And finally, we have, for our European perspective, Dr. Rainer Wessely. He’s a diplomat for the E.U., who has posted at the delegation of the E.U. to the U.S., where he is Counselor for Competition and Justice Affairs. Before this, he served in Brussels as Assistant to Directors-General with DG Competition, the competition department within the EC, and he has worked also in private practice, and did various other positions at DG Competition. He holds a PhD in international trade law and an LLM in European and international law. So join me in welcoming our panel. And with that, I give you Mr. Delrahim.

 

Hon. Makan Delrahim:  Thank you so much, Your Honor. I very much thank you for inviting me here to The Federalist Society, in particular, Dean Reuter and other leaders of FedSoc, and congratulate you on organizing, yet, another fantastic National Lawyers Convention, and to my co-panelists, who are -- I can say, have been longtime friends in various parts of my antitrust life. And it’s an honor to be with them anywhere.

 

      The subject of the panel, “The Future of Antitrust,” could not be more timely. Antitrust law, in many ways, as boring as it might be to some, again, appears to be at a crossroads. It has worked its way into the public consciousness and debate unlike any time since probably the Microsoft case in the late 1990s. The debate over antitrust law may be even louder today than it was then. And we now have presidential hopefuls campaigning on how they will change or enforce the antitrust laws. We’re also fortunate to have the first president in history who’s actually been a plaintiff in antitrust law of an antitrust case.

 

At the Department of Justice, we have not shied away from this debate. Indeed, it is imperative that the Executive Branch speak clearly on behalf of the United States regarding the questions of antitrust policy, especially, when the debate involves foreign antitrust enforcers analyzing the same conduct. Over the past two years, where I’ve had the great privilege of serving as the Assistant Attorney General for Antitrust, I repeatedly hear the same question at conferences and events across the United States and overseas; it’s the following: is a consumer welfare standard capable of handling new threats to competition, especially, in the context of digital markets?

 

I’ve given the same answer each time: Yes. I believe the consumer welfare standard is flexible and adaptable enough for the 21st century and new business models, such as digital platforms. It’s incumbent on enforcers and courts to stay up to date with the latest economic thinking and understanding of new markets. This is critical to ensuring that the consumer welfare standard keep space with new technologies. This understanding of the consumer welfare standard, flexible and adaptable, is exactly how Judge Bork and other titans of the Chicago School Antitrust Revolution intended it.

 

Judge Bork wrote the following in a new epilogue to the antitrust paradox 15 years after it was originally published:  “Though the goal of antitrust statutes, as they now stand, should be constant, the economic rules that implement that goal should not. It has been understood from the beginning that the rules will and should alter as economic understanding progresses. Consistent with this understanding for over 40 years, the consumer welfare standard has served as a neutral principle for the administration of the antitrust laws. It focuses enforcers and courts on harm to competition and requires them to evaluate competitive effects.

 

“The consumer welfare standard is agnostic to considerations other than the actual competitive process drawing the line in this matter is crucial. Otherwise, enforcers or courts would be placed in the powerful and awkward position of deciding whether a pro-consumer practice nevertheless violates antitrust laws because it offends a non-competition value, such as free speech.”

 

Justice Robert Jackson, another antitrust visionary, understood this concern well and emphasized the need for neutral principles of antitrust enforcement, 40 years before Judge Bork did, in a 1937 speech entitled “Should the Antitrust Laws be Revised?” Then-Assistant Attorney General Jackson argued “What is needed is the establishment of a consistent national policy of monopoly control, intelligible to those expected to comply with it, and those expected to enforce it.” Jackson warned that the only probable alternative to a consistent national policy, favoring competition, is government control of industry.

 

What does the future hold for consumer welfare standard? That’s up to us. No policy, no matter how sound, is immune to calls for change. Throughout history, when reformers fail in the legislative arena, they will turn to existing laws and regulations and try to manipulate them in ways never previously seen. I won’t mention specific examples, but we have seen this playbook when federal courts “interpret or, more accurately, rewrite the law in head scratching ways and when agencies issue new regulations that strain the statutory text.” Some reformers now seek to bring this playbook to the domain of antitrust law, which, if read broadly, could wield tremendous power over the economy. Unbridled, this power could do significant damage to the economic impulses that drive innovation, gains and efficiency, and other pro-competitive outcomes for consumers.

 

Antitrust law may be particularly vulnerable to hasty change given its common-law status and evolution in light of advancements and economic thinking. We will see in our lifetimes whether the pendulum will swing back and unravel the progress the field has made. What can practitioners, academics, judges, and enforcers do if they want to preserve the consumer welfare standard? First and foremost, we should not be complacent. Many deride the latest reform movement as “hipster” antitrust because advocates for abandoning the consumer welfare standard invoked a decades-old trust-busting era that we now consider antiquated and economically misguided. Labeling one’s opponents only go so far.

 

Wining the economic debate goes further, but not far enough. The modern antitrust reform movement is less concerned about economic soundness than it is about results. That means we must demonstrate to observers that we will pursue effective results whenever we find anticompetitive conduct. We must be vigilant to ensure that the biggest companies are minding the guardrails of competition. If we don’t act swiftly and certainly, then we risk looking impotent next to those who would punish monopolists just for being big. That approach, of course, is an axe where a scalpel is needed. If we don’t use our scalpel, we shouldn’t be surprised to see the reformers sharpening their axes.

 

Second, and more importantly, I believe that the consumer welfare standard will survive in the winds of change if we prove that it actually works. Antitrust law must live up to its promise of protecting competition and consumers. That requires enforcers to think creatively and act vigorously. In particular, enforcers must answer critics of the consumer welfare standard who wrongly assert that it is concerned only with price effects. That has never been the case. For decades, the courts have interpreted the Sherman and the Clayton Acts as recognizing harms to competition in the form of lower output, decreased innovation, and reduction in quality and consumer choice.

 

Indeed, the harms asserted by the government in the Microsoft case took the form of reduced innovation and consumer choice. The D.C. Circuit recently affirmed this innovation centric approach in the AT&T-Time Warner opinion. Despite the district court’s factual findings in that case, the circuit court’s opinions was favorable to future antitrust enforcement actions in several respects. Among others, the court recognized that harm to competition extends “beyond higher prices for consumers, including decreased product quality and reduced innovation.” The court’s legal analysis will help us when we bring our next case alleging non-price effects as a competitive harm.

 

To be sure, price effects are easiest to quantify and may be an effective way to appeal to a skeptical judge or jury. They are not, however, the exhaustive means of proving an antitrust violation. Instead, we should focus our energy on an understanding the broader set of effects that may result from anticompetitive behavior or transactions. Ultimately, I believe the antitrust law and consumer welfare standard will survive the winds of proposed reform in much the same way that Judge Bork envisioned it. It’s up to us, however, to keep the foundation steady through a vigorous action to protect competition and the American consumer. I thank you and I look forward to the discussions.

 

Hon. John B. Nalbandian:  Great. Thank you.

 

Hon. Makan Delrahim:  Thank you.

 

Hon. John B. Nalbandian:  Gene Kimmelman.

 

Prof. Gene Kimmelman:  Thank you. Thank you, Your Honor. And thank you and for inviting me. It’s a pleasure being here, and I always enjoy the opportunity to see if I can agree with my Assistant Attorney General as much as possible, and in this case it’s actually quite easy to do so. We fundamentally do agree. I think I can identify almost everything I was going to say in what the Assistant Attorney General just described about the benefits of using neutral principles, applying a standard rigorously, impartially, and thoroughly, and I’ll come back to that. The one thing I’ll disagree with is, I would not be so negative in description of the reformers. I believe they raise a lot of important issues about things that are problems in our society. But I think we’d probably agree they don’t belong in the antitrust analytics. They probably belong in other policy discussions. So I want to come back to that.

 

      What I think is most important in thinking about the consumer welfare standard is whether it really does stand up to what we’re experiencing in the digital marketplace. And I hope that it can, and I think the Assistant Attorney General has identified the elements of it that can be effectively applied, looking at quality, looking at innovation, looking carefully at data as a part of the calculus. But I have some skepticism, and that’s why I want to come back to some of the other policies, and here’s why: I think what we’re experiencing, when we look at the Facebooks, the Googles, the Amazons of the world, Apples, others, is that in the digital marketplace, the network effects are enormous.

 

People want to be on the same social network. There are a lot of benefits to it on both sides of that. People want to use the same apps and services, like Search. We see natural direct and indirect network effects here. We see companies that have made enormous investments with enormous upfront capital cost, then reaping the benefits of declining marginal cost over time. Economies have scaled that fit naturally with the structure of the way the digital marketplace is developing. But what I think is different than the railroads and the telephone companies, and cable, and others is we’re now experiencing a power in data through monetization of data to a magnitude and through a velocity that we’ve never experienced before in our society.

 

Data’s always been valuable, but now there’s so much more than can be done with it, and there’s so much more of it available at low cost. It has also provided a lot of economies of scope to these companies. So what I see is companies that have gotten ahead through whatever means. Hopefully, if any of it is illegal, my colleagues here, who are enforcers, will actually prevent that from continuing and put an end to it. But a lot of it can be through the natural economics of the marketplace.

 

And what that has led to is, I think, a legitimate concern about the difficulty of entry that you need massive scale to enter. You need a lot of capital, and you need to be able to expand rather quickly against companies with declining costs. Very difficult to do. I think we’re not seeing the venture capital coming into support that. Those are, I think, legitimate concerns in the market. And they may be tipping towards few or even one player in certain segments.

 

So these are important concerns that I think need to be addressed, and antitrust can address through the consumer welfare standard, when applied effectively and thoroughly, the abuses, the “putting your thumb on the scale” to take advantage of the competitive advantages some of the dominant firms may have to abuse the competitive process. But, if we want a society in a digital marketplace with as much innovation as possible and with pushing the envelope on as much competition as possible, I’m not sure antitrust can do enough. But the world doesn’t stop there. We’ve faced this before. In almost every other industrial sector, we have, for a variety of reasons, almost always also developed other policy tools that are sector specific to an industry, whether it’s agriculture, or healthcare, or securities, telecommunications.

 

And I think that’s what we need to consider here. I do not ask the Assistant Attorney General to do it. I don’t ask the Federal Trade Commission to do it. They’re bound by their current statutes, but I do think this is the job of Congress, and I think it’s also the job of Congress when you have issues like democracy, issues of disinformation, issues of abuse of power. These can be indirectly affected through antitrust, but, when you have those important issues on the table, it's the job of Congress to have an open debate about how to make sure that we protect the pillars of our democratic society.

 

So here’s my, I think, best example of how we’ve done this before. Many of you recall, we’ve broke up -- the last time we broke up a company was the Ma Bell, the AT&T monopoly, 1984. And there was a long series of both regulatory failures, regulatory capture, at certain points, inability of regulation to work, and the Justice Department intervened, and it was in the Reagan administration. But I believe that what really -- and that opened up the markets in many ways. But I believe that what really made that work in a sustainable way, from that time until today, was the fact that we could interconnect all the telephone companies that were separated in a seamless, low-friction manner. That was done through—not the breakup, not through Judge Harold Greene; it was done through the Federal Communications Commission. The fact that when you pick up your phone, and you decide you don’t like the current carrier you have, and you want to go somewhere else, you don’t have to give up your phone number—number portability. The ability to do that, that was also the Federal Communications Commission.

 

There are a number of things that we have relied on other policy tools that I would call pro-competition policies that augment antitrust, that are not in conflict with, but they’re also, usually, not the kinds of remedies that are easily administrable through antitrust enforcement. So, in these digital markets, I think we need to look to whether -- or this is what I would like Congress to consider: whether we need the kind of things like portability of numbers. Here, it might be data portability with data protections. The ability to connect networks: interoperability. Should you be able to go from Snap to Facebook without having to go into their ecosystem but have some open protocols that enable you to communicate with Facebook friends without being on Facebook? Would that be useful? Would that be beneficial? I think these are important policy discussions.

 

Discrimination. The Assistant Attorney General mentioned the AT&T-Time Warner case—a valiant effort. But the Federal Communications Commission has also used nondiscrimination to prevent cable companies from blocking satellite companies from entering the market and expanding in the market. You call that, to me, pro-competitive standards that augment what antitrust does. These are the kinds of things I would like to see Congress discuss so that the role of our antitrust enforcers, in using the consumer welfare standard well and effectively, can actually generate more competition in the digital marketplace. Thank you.

 

Hon. John B. Nalbandian:  Thank you. Maureen Ohlhausen.

 

Hon. Maureen Ohlhausen:  Well, thank you. Thanks to The Federalist Society for having me. I’m a last-minute addition to the panel, and so I’m actually going to take the liberty of not looking forward. I know this about the future of antitrust, but I think an important thing before we look forward to say where it should go. And my co-panelists have already raised some very important points I look forward to discussing, but I also wanted to tie this to the foundations of antitrust, and to our market system, and to our government system.

 

So, as the U.S. Supreme court has explained, the heart of our national economic policy has long been the faith and the value of competition. And I think right now there are some questioning about whether this should be the central value, whether -- what is competition, and what’s the government’s role in fostering, or protecting, or replacing competition. So the Supreme Court further described the antitrust laws as being important to the preservation of economic freedom and our free enterprise system as important to that as the Bill of Rights is to the protection of our fundamental personal freedoms.

So that’s -- protecting and promoting competition is an important job, and it’s one that’s related to another foundational principle of our government, which is the protection of individual liberty. And today, I just want to take a few minutes to examine this link between competition and liberty, and, specifically, through the lens of The Federalist Society principles, which are that the state exists to preserve freedom, that the separation of government powers is central to our constitution, and that it’s emphatically the province and duty of the judiciary to say what the law is and not what it should be.

 

So a fundamental question is, what is competition and why does that matter? So at first blush, competition may seem like a relatively straightforward concept because we all know a competitive market when we see it. And Adam Smith described it as a market where goods and services are sold at their natural prices. Now, two of America’s leading industrial economists, Dennis Carlton and Jeffrey Perloff, have described the indicia of a market operating under perfect competition as having homogenous output, perfect information among buyers and sellers, no transaction cost, price taking by buyers and sellers and no externalities.

 

But these indicia don’t explain what competition is any more than saying it’s a sunny day explains what weather is. Instead these observations give a snapshot of an ideal outcome rather than the process that tends toward that particular outcome. So too often the output of the competitive process—whether that’s low prices, or wider choice, or greater innovation—gets confused with the process itself. So competition is the activity of individuals pursuing their economic self-interest by convincing others to buy the good or service that they sell.

 

Now, of course, buyers are also pursuing their self-interest. And the exchange between a buyer and seller leaves both better off, even though each one is pursuing his or her own interest. And, as Adam Smith explained, it’s not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner but from their regard to their own interest. And—I’m a big Adam Smith fan—as Smith further explained, it’s the vigorous pursuit of a person’s individual interest that naturally, or rather, necessarily leads him to prefer that employment, which is most advantageous to society.

 

So, as a modern commentator has observed, the entrepreneur has a central role as the agent of change who prods and pulls the market in new directions. So thanks to the liberty preserving protections of limited government and individual rights, we are free to pursue our self-interests or to pursue happiness, as the founding fathers who eloquently stated. So individuals exercising liberty in the pursuit of self-fulfillment and prosperity, collectively, give rise to competition, and, while entrepreneurs pursue their own welfare-maximizing endeavors, the invisible hand of the competitive market steers the producers in directions that maximize social welfare or consumer welfare.

 

So market competition should determine the winners and losers. And competition, like liberty, isn’t for the meek, and it requires grit, and determination, and stamina, and its creative destruction is the dynamic cycle that, while uncertain for the competitor, motivates the entrepreneur and gives rise to new inventions that benefit society.

 

So what is the role of government in protecting competition? Now, I don’t think that government creates or drives competition. I think government, instead, provides a framework in which competition can thrive. So, as Milton Friedman described, “The purpose of government in a free economy is to do what markets cannot do.” So that is to serve as an umpire and do things like create money and build infrastructure. But the role of government is not to dictate the outcomes of the market process.

 

So I agree with this description of the role of government as the umpire, and it should make sure that competitors fairly compete on the merits, and, at least, for competition law, it should not dictate outcomes, but it should be sure that the sides are not agreeing to shave points, or prevent better players from playing, or colluding, or combining teams to undermine the nature of the contest. And I also think we need to keep in mind the difference between competition and regulation, and some of the things Gene already mentioned, I think, may be regulatory goals worth pursuing, but I wouldn’t put forward our competition laws as the way to pursue those. So I look forward to our discussion and thank you for having me.

 

Hon. John B. Nalbandian:  Great. Thank you. Dr. Wessely.

 

Dr. Rainer Wessely:  Thank you. Thank you so much to The Federalist Society for inviting me to this panel for this exciting topic and to this very beautiful venue. If you talk about the future of a policy, it’s always good to know who your policymakers are, and that can be a bit tricky sometimes. I will have to start with, actually, the usual disclaimer that I cannot speak on behalf of the Commission. I can only speak in my personal capacity. Today is the 14th of November 2019. Back in Brussels, it’s an exciting and important day. I will come to that in a moment.

 

So we had European elections earlier in May this year, and I would’ve expected and thought that by today, and when I accepted the invitation to speak today, I would have more clarity on who the new commissioners are. We have a commissioner and a new president elect from the line, but, unfortunately, we don’t have a commissioner in place yet. It was actually to take duty 1st of November two weeks ago.

 

However, as many of you will be aware, we are just now still in between two commissioners: the outgoing E.U. commissioner and the incoming front-of-line commissioner. Most of the newly designated commissioners have already successfully gone through their hearings in front of the European Parliament. Some of them have been rejected, and some of our member states had to nominate new commissioners. This is why today is a very exciting day because we are actually having the last hearings in front of the parliament for the three outstanding commissioners.

 

Some of the reports that I’ve seen are extremely critical about this process. They see that this is a dangerous setback for European policymaking. On the other hand, I think it shows that the democratic system is working, and the checks and balances that are in place to protect European citizens are actually working. And to complicate things, we, yesterday evening, received a letter from the U.K., and we were informed that U.K. actually does not have the intention to nominate a commissioner for the new upcoming commission. So we have to deal with this also. So, touching wood, I hope that with the hearings going on today, we will have a commissioner rather soon in place, and, potentially, as early as of 1st December this year.

 

With a new commission, there comes new energy, there comes new steer, and there’s always a certain degree of change. And I think we are looking forward to see what this change will be in terms of antitrust and antitrust enforcement. However, we already know, and something that is almost certain, that the new commissioner for competition will be a very familiar one. We will have Margrethe Vestager serving in a second term, and she will occupy not only the role as Commissioner for Competition, but she will even be in an extended and expanded role so she will be an executive vice-president for the digital age to make Europe fit for the digital future.

 

I will not go into detail of what this role actually entails, just to mention a bit of what she has promised and said in her hearings. She has committed herself to present a new strategy for artificial intelligence within the first 100 days of being in office. She will coordinate the work on a new digital services act, which will, amongst other, deal with the liability of platforms, so that will be heavily inspired by her work as Competition Commissioner. She will look into the best ways to facilitate access and exchange of data and big data for innovation. She will look into industrial strategy and strategy for some ease in the digital age, and she will work on international solutions for digital taxation.

 

While listening to all of this, you might wonder what the other commissioners will be doing, but -- so looking where we are today, and certainly from a European perspective, it is an excellent moment to take stock of what we have done over the last four, five years in the outgoing mandate, and I think we would all agree that it has been a very exciting period in terms of antitrust enforcement.

 

One thing that I would certainly anticipate, at this point in time, is that we will see with the new commissioner being the old commissioner a certain degree of stability and continuity in our enforcement efforts. I hope that we will be able to build on a number of lessons that we have learned during the last five years, and I think three of them are particular relevant for today’s debate.

 

The first one is we have conducted, in the last mandate, a sector inquiry into ecommerce. We did that between 2015 and 2017, and we have learned a lot about the vertical relationships. The sector inquiry actually was meant to tackle various of ecommerce within Europe, but I think it allowed us much better to understand these markets. Actually, using sector inquiries as a very powerful tool, I wonder whether we will not see an announcement of a new sector inquiry rather soon and early within the new commission.

 

The second source of knowledge, we will certainly derive from all the antitrust enforcement that we have done over the last years in the digital sphere, and I think most particular the cases that we did against Amazon in the eBooks cases, which was a settlement where we addressed most-favored nation clauses. Our cases against Google, all three of them, Google Search, Android, and AdSense, and our case against Qualcomm in the exclusivity case.

 

And I am looking forward not only learning from the experience that we get from the investigations that we did during this time but also, and, in particular, from all the remedies discussions that we had with these companies in the last month and years, and, certainly, also from the judgments as many of you will know all of these, or most of these cases are still pending in front of European courts.

 

And the third source of information will still come from the report that we have received that Commissioner Vestager has received from her special advisors. She had asked three advisors to look into enforcement in the digital age, and report actually lays out the context of a competition enforcement against platforms and the relation of data and innovation.

 

In addition to that, I think, I’m looking very much forward also to learn now from the experience that we will see on this side of the Atlantic with a lot going on, let it be, at the DOJ, at FTC, the investigations led by the state attorney generals, or even by the Congress.

 

To sum up, all these actions and activities have allowed us to confirm in principle that the tools that we have are sharp enough to tackle the issues and phenomena that we see in a digital world, let it be data, let it be platforms. However, I think we also have to recognize that some of the new challenges need quick and very decisive responses. We need remedies that adapt it to the special characteristics of these markets, such as networks effects and data accumulation.

 

I think we see that these markets are not necessarily self-correcting. Our experience confirms that market concentration and dominance are not competition concerns, as such, as long as markets remain contestable so that we see competition actually for the market and dominant play by the rules under pressure to compete and innovate for the ultimate benefit of consumers, so that we see competition within the markets.

 

And finally—and that I think mirrors very much what has been said before—we have seen, over time, and learned that not all of these phenomena are actually competition issues. Most of us, I hope, will agree that competition policy and law cannot possibly address all these problems arising from digitalization, where certain topics concern very precise and separate public policy objectives. We should use other means, such as regulation, and have well-designed regulation to tackle these concerns. Thank you very much.

 

Hon. John B. Nalbandian:  Do any of you all have any comments on what you’ve heard? I guess, I’ll start there.

 

Hon. Makan Delrahim:  I’m just sad to see that our confirmation process is going across the Atlantic Ocean to the European Union. It didn’t used to work that way in the E.U.

 

Hon. John B. Nalbandian:  Let me --

 

Dr. Rainer Wessely:  It’s not the first time.

 

Hon. Makan Delrahim:  It’s not. Yeah.

 

Hon. John B. Nalbandian:  Let me ask a question. Dr. Wessely talked a little bit about sector inquiry, and it’s something that, I guess, I’ve associated with Europe more than the U.S. Is that something that would be more formal that we could use more formally in the U.S.? Is that something that the Department has looked at?

 

Hon. Makan Delrahim:  Well, this is something I’ll speak in personal capacity since -- no, as far as our position has been, the antitrust laws are perfectly capable of dealing with the competition issues. As far as sectoral regulation, it’s been my belief that it should be, I think, the solution of last resort. I don't know -- I agree with Gene on many things, but I don’t know if healthcare and its regulation in this country, or frankly even telecom, have been models of competition or ultimately consumer benefit.

 

I think there’s a lot of inefficiencies in a system where you have a regulatory system that could be captured. So I hope we don’t go there. That’s not to say that we may not. Ultimately, if we fail to address some of the competition issues that we would identify, that could be an issue that we might have to resort to, but hopefully, it’s an issue of last resort.

 

Hon. Maureen Ohlhausen:  I just wanted to mention that the Federal Trade Commission does have powers under its statute to do studies using compulsory process, and it’s done it in areas such as Patent Assertion Entities looking at the efficacy of merger remedies and things like that. And it’s typically led to a report on these issues, sometimes with recommendations.

 

Prof. Gene Kimmelman:  If I can just jump in. I hope the Assistant Attorney General is right that we don’t need to get to the last resort, but I worry that even with the strongest antitrust enforcement, we have forces at play in the digital marketplace that really deserve congressional attention as to whether you’re getting enough competition; you’re getting enough innovation; you’re getting enough entry in the markets. And I think it’s a fair debate whether that last resort has more cost than benefits or benefits than cost, and it could be done well, and it could be done poorly. But I think we need to have that debate as the enforcers are doing their jobs thoroughly, quickly to do what the antitrust laws can do.

 

Hon. John B. Nalbandian:  Do you want to --

Dr. Rainer Wessely:  Just to add one word on the sector enquiries: as such, I think they have been an extremely helpful tool in Europe, not only to learn about the sectors and to learn where we have to enforce, but it has also helped us to inform the regulatory debate. For example, when you look at our last ecommerce sector inquiry, the lessons that we took away, for example, that we found a lot of geo-blocking, that companies actually blocked access for customers from other member states, which has led us to the adoption of geo-blocking regulation to prohibit a certain of these practices. So I think the benefit of the kind of inquiries is twofold: it’s one for enforcement, but also to make a much better and informed decision on regulation through competitive regulation.

 

Hon. John B. Nalbandian:  Great. Let me ask another question -- and I know a couple of you mentioned the big data issue, or the data collection issue and what’s going on now with these big tech companies. I’d like to just maybe do a little deeper dive on that. Is there any role for antitrust law here with concerns with privacy and data collection, or is it completely something that’s going to be outside of that realm?

 

Hon. Maureen Ohlhausen:  I’m sure Makan also has some views on this. So data is an important asset, and there’s been lots of antitrust cases brought regarding combinations of specific data sets, particularly in mergers, right? So you think about -- and sometimes about consumer data, real estate records, credit data, things like that. So it’s not a strange idea to think that a data set, even about consumer data, might not be an important asset that could have implications for competition.

 

I think the question there is to apply those traditional, competitive, analytical tools to a competition analysis for data. Because I feel some of it’s getting jumped over, which is the idea that one company has a lot of data, and it’s useful, and that’s a problem in itself. Or it’s buying another company that might have a different type of data. Normally, we would think that combining two complimentary assets might well be considered an efficiency in a merger analysis. Is the fact that there might be a privacy implications for that, how would you take that into account in an antitrust analysis, I think, is one of the important questions.

 

If the companies are competing on privacy, and there’s going to be a reduction in privacy, then, I think, that is something that is part of a traditional antitrust analysis. One of the other things that I’m finding is, are people asking the hard question of “Is that data, that the company has, so unique or so uniquely valuable, or is there really an entry barrier, or can you buy that data from other sources, like data brokers, or can you collect it more easily?” I think some of those questions are not getting the careful attention that they deserve.

 

One other thing that I do want to mention is privacy is a very important value, and it’s just because it may not be something you would take into account separate from an antitrust analysis, doesn’t mean that it’s not important. I think you need to look at the tools for protecting privacy directly. So, when you look at, for example, the Bundeskartellamt brought a case against Facebook, and said that Facebook’s use of data, which the Bundeskartellamt presumably found violated the privacy laws, not that the Bundeskartellamt enforces them. It said it was an antitrust competition violation and was imposing remedy.

 

And on appeal, the intermediate court struck that down, and said you need to analyze whether there’s a competition impact here. So I think that case -- the Bundeskartellamt said it’s going to appeal it. But I think that brought to the fore those very important modes of analysis that need to be brought to bear here. What law are you using? Is it the competition law? Is it the antitrust law, and when does antitrust law apply to data?

 

Hon. John B. Nalbandian:  Big data.

 

Hon. Makan Delrahim:  So I think Maureen covered -- and I think there’s not a whole lot of sunlight between us. The one thing I would say is that as we discuss data, we need to think about different types. Data is so multi-faceted; we actually do a disservice to the public [inaudible 01:02:07] by just calling it data or big data. We had a big, I think, a constructive debate yesterday in the House Judiciary Committee on this issue, and are you looking at user data, are you looking at usage data, are you looking at what kind of data? Who’s collecting it? How are they using it?

 

And certainly privacy, as I’ve said before, is a qualitative element of competition, and that’s something companies can compete on. So actual competition between the two, assuming consumers want that, is a qualitative element appropriate for antitrust enforcement considerations. But we have to think about, what is happening with this data? What are they doing with it? How are they collecting it? And there’s other laws and, I think, public policies that are implicated, which all lead to—because of the network effects that Gene was talking about—some competitive concerns, but I think this is a healthy debate.

 

We have multiple privacy regimes in this country for healthcare information, for your financial records, for driver’s license, for whatever, but we don’t have a generalized one. And many of you may or may not know that if you have a cell phone, when you’re sleeping, it is collecting data. It’s sending about 10 pings every minute to certain companies that are collecting all of that information. It knows when you’re asleep. It knows when you’re in a car. It knows what floor you’re on in a building. You have no idea that your phone is sending that information, and it’s collecting all of that information about you. And all of that is being used to sell ads at a higher value to you. It raises really important policy issues for people who care about civil liberties; people who care about the actual bargain that goes on between a consumer and a company with a lot of power.

 

Prof. Gene Kimmelman:  If I could just add; I agree with mostly with what Maureen and the Assistant Attorney General has said. To put a finer point on Makan’s last comment, I think we need to look at how power might be leveraged using that data. It’s not just the quantity. I think Maureen’s totally right. But, if we’re looking at the monetization that is going on now in advertiser-supported services—the ability to get all of the information off of the phones; the ability to get it more quickly; the ability to get more precise combinations of things that are defining what our traits are for a particular purpose, not just necessarily eavesdrop on us—that could be creepy—but to be able to predict what you may want to buy, or want to use, or where you might want to go on vacation, or something else that’s extremely valuable to advertisers, that’s where the competitive issue, I think, is going to be most important to look at and understand how the consumer welfare standard can be refined to draw that into the analytics.

 

Hon. Maureen Ohlhausen:  Actually, I wanted to mention one other thing on the privacy and antitrust interface. Some of the things that Gene has mentioned and that Makan has mentioned, there is this understanding that data can be a very important aspect for competition. So there are some voices saying “Oh, because it’s such an important aspect of competition, what we’re going to do is try to force companies to share the consumer data with other companies.”

 

And I think it’s important to keep in mind, as we’re also seeing these regulatory solutions or regimes being put forward to give consumers greater control over their data, and to restrict sharing of data, and to say, “Once you collect it, you can only use it for that purpose, and you can’t share it; you can’t use it in these other ways, or you’ve got to keep your lid on it,” it’s creating this tension or there are these cross currents between privacy and antitrust.

 

And some of the solutions that are being floated in the antitrust world, and some in Europe, in particular, actually, I think, run very much counter to the consumer sovereignty views that are driving a lot of data privacy protections and things like GDPR. There’s some other things: GDPR has a data portability requirement, which could help reduce lock-in and could help foster some competition. It’s not all one direction, but there are some important challenges, I think, to be addressed as these two areas come into collision.

 

Dr. Rainer Wessely:  Perhaps quickly to add to that? Thank you for highlighting the debate also in Europe. I certainly agree when it comes to mergers, and I think we have seen a lot of mergers. We have made data assessments. We treated it as currency, as assets, as barriers to entry, and as parameters of competition, and I think we found ways to deal with data questions.

 

I think what is newer is that we also analyze it in the context of antitrust. We have an ongoing investigation against Amazon, where one of the questions is Amazon as a platform with a dual function. So Amazon is not only offering this platform to merchants to sell via the platform but it’s also selling its product itself via the platform, and I think it’s inherent in this double function that you have access to very sensitive data from your competitors, from your competitors downstream.

 

So we’re looking into the questions of whether actually this access and the use of competitive sensitive information could be seen and potential antitrust violation. We have opened the investigation, it’s still too early to make any statements here, but it is something that will keep us busy. We are looking in this type of dual role in other cases. Also, we are looking into that in Apple as looking into the Apple app store selling apps from against any competition to it to Apple apps. We’re looking into that, in our Facebook investigation, where we started asking questions about Facebook’s marketplace.

 

So all these cases are very much data focused. I fully agree that it is too early, for the moment, to say that we need a more intrusive data remedies, but I think we should at least have the debate, and when I look at the report from the special advisors, they have identified this access accumulation of data as one of the biggest problem in terms of concentration. And I think we should have the debate, and we need the debate about in which cases of abuses or in which cases of mergers we would actually have to have forced data access or shared access, so I would be surprised that this would not also come over and be debated here.

 

One final point on privacy: I was very surprised to learn yesterday, listening to the Congress hearing, that data privacy is seen as one of the drivers for more concentration. This is certainly something that we do not experience, and I think, and I fully agree, that we should keep the privacy debate and the antitrust debate very separate.

 

Hon. John B. Nalbandian:  Great. I do want to -- we have some time for questions. So, if anybody’s got questions, we’ve got a microphone over here and one over there. So, if anybody wants to make their way to the microphones, otherwise, I’m going to ask a question, another one. I’m curious about -- and I had mentioned in my introductory remarks the idea of killer acquisitions, which I view as kind of a redux of the old debate about whether monopolists stifle innovation or not. And, obviously, the idea is bigger companies are acquiring smaller companies that are maybe innovative, or have a certain segment of the market, and then just swallowing them up. Is that a unique problem? Is that something that we need to be concerned about? Do we have remedies for it? Should we care? Anyone?

 

Hon. Makan Delrahim:  Well, certainly, I think if you have a company with market power, that the documents show or is intending to take a look at a competitor that would challenge that power, that market power, and are acquiring that just to crush them. It’s something that -- like the character in The Irishman, if some of you have seen it, they talking about Mr. Johnny Whispers, and said “It would be something we would be a little bit concerned about.”

 

Hon. John B. Nalbandian:  What about a company though that is, say, a Google or something that has, let’s say, market power in searches, but they acquire a YouTube or something. Maybe not in that a competitor but in just another tech company that’s doing something interesting and innovative.

 

Hon. Makan Delrahim:  So I think the burden would be on us to define the market that we’re talking about, and is that going to be a new competitor that is going to challenge that? And without speaking about Google, I’ll reference an old case, Microsoft, just 20 years ago: the D.C. Circuit, what they found was what Microsoft was doing to the browser was trying to preserve its monopoly power in the operating system because of the indirect network effects of applications providers. And the browser, for the first time, was going to disintermediate the application programmers from the operating system. So you can now write to the browser and read it on any device, and that was a big threat to Microsoft. The documents showed their intent was to really crush that because it was going to hurt them. And so, I think, if we found a similar situation, that would be a problem.

 

Prof. Gene Kimmelman:  If I could say, I think the Assistant Attorney General has it absolutely right. I think Microsoft would be the model, but I also want to say this is one of the hardest areas for enforcers to predict what is about to happen next in a market. Because, Judge, as you mentioned, sometimes it’s not a direct competitor; it can be a complement; it can be someone vertical in the market. And what we know about digital markets is that apps can take off. They can get a lot of popularity. They become like platforms, and they could compete with the underlying dominant player.

 

And that’s certainly something we would want to see happen in a vibrant, innovative, competitive market. So the prediction part is extremely hard. The documents maybe would show something. And, in antitrust, we also have a theory that if there’s a series of events that all show indications of this type of intent to take out players who could compete, that that could be actionable as well. But they’re very hard. So I’ll then say the most controversial thing that nobody else will agree with, which is that again I believe in other sectors we’ve had, Congress has granted authority to agencies to also review transactions, again, often with much too vague a standard, sometimes not exactly at all an antitrust focus --

 

Hon. Makan Delrahim:  -- Are you saying the public interest test is too vague?

 

Prof. Gene Kimmelman:  I do believe it’s too vague for what we’re talking about here. I think if you’re looking at the digital sector, there ought to be some kind of a pro-competition test as to whether companies -- even the largest dominant players, not anybody, but the dominant players can purchase even small players and put the burdens on the merging parties to actually show it is beneficial to the market. It yields more competition, not have the burden on the government. I think that’s a narrow set of situations. Because I’m not sure that antitrust can get at those. Certainly not the smallest transactions that are below reporting requirements without having to go back in later—consummated mergers. I think these are just really hard. But this is -- again, it’s a policy decision for Congress. Is it important enough to try to crank these markets open to those who are seeking to compete or potential competitors? I think it’s worthy of a public debate.

 

Hon. John B. Nalbandian:  Why don’t we see if we’ve got a question over here?

 

Questioner 1:  Is there any role for antitrust law to play in preserving free speech on big-tech platforms online, such as Twitter?

 

Hon. Makan Delrahim:  Well, it’s certainly a nuanced answer, but, if you have competitors, and a consumer would prefer to get a different kind of a speech, you would allow for that. If there’s one company that controls it, then they call all the shots of the certain type of viewpoint. I could see that being an antitrust, not so much a violation based on the ideology proposed, but the fact that it’s a qualitative element for us to consider is an important element.

 

Hon. John B. Nalbandian:  Anyone else? Free speech. No. We’ve got one over here.

 

John Shu:  Thank you, Judge. And thanks to all the panelists. I’m John Shu from Orange County. Maureen, if you could, what would you like to see the Ninth Circuit do in the Qualcomm case, and do you think it’ll actually happen?

 

Hon. Maureen Ohlhausen:  Well, I don’t want to say too much about it other than to say what I said in my dissent when the FTC brought the action. I didn’t think that there was a strong theory there. I’m concerned about the impact on property rights and respect for property rights, and particularly internationally, and how that will be interpreted. I was not displeased to see the panel, who granted the stay, site my dissenting opinion, and I look forward to seeing what the Ninth Circuit decides.

 

John Shu:  Thank you.

 

Hon. John B. Nalbandian:  Over here.

 

Questioner 3: Yeah. So in the last couple of years, I think the Antitrust Division has had some interest in clarifying some of the contours of the state action immunity doctrine and submitted some statements of interest in cases in various courts. I was just wondering if any of you would be willing to speak to the status of those efforts.

 

Hon. Makan Delrahim:  Well, we’ve had, as you may know or might be referencing, we initiated a new amicus program to file in the various courts’ private cases partly because the interpretation and development of the antitrust laws will affect our enforcement ability, and we would like to express our viewpoints without taking sides between the private parties. One of the areas we’ve looked has been when parties assert overly broad interpretation of various immunities, including the state action immunity.

 

And we have filed a number of amicus briefs and statements of interest in lower courts on those issues, including a no-poach agreement most recently between Duke and North Carolina, where the two parties had agreed not to hire each other’s radiologists. We filed a case of amicus in that case, not only arguing for a certain standard but arguing against some assertions of state action immunity. And, of course, the FTC has actually challenged a number of cases, especially during Maureen’s tenure there: North Carolina Dental and few other’s matters. We’ve recently filed in other cases.

 

Hon. John B. Nalbandian:  Great. I think this gentleman was next.

 

Kyle:  Hi. I’m Kyle. I’m a law student from up north. And I have a general question for whoever would like to answer. At a general level, how does increasingly large multi-nationals and increasingly different antitrust regimes—we’ve heard some examples today—what problems or tensions do they principally cause, and are there any solutions that are on the horizon?

 

Hon. Makan Delrahim:  I’ll let Rainer explain the effort that we jointly did with the European Commission, and Canada, and a number of others, but, for the first time in history, I’m proud to say that we actually have a multi-lateral agreement on some aspects of antitrust. And this was on due process. It was an initiative about a year and a half ago. We worked closely with our friends in European Commission, Canada, Australia, Japan, multiple different types of legal systems to, at a minimum, have a lot of -- in the process of enforcement to have the same, I think, recognized due process principles, like attorney-client privilege, like the right to counsel and a number of others, about 12, I think, principles in those agreement, which now have 72 agencies signed on to that. Now, I think the discussions continue. We all come from different regimes and different goals for some of the competition, but I think more and more we’re converging a lot more on the substantive principles but procedurally as well.

 

Kyle:  Thank you.

 

Dr. Rainer Wessely:  Just to add, perhaps, the initiative was indeed very welcomed. We had to fine tune the frameworks, so we put in the international competition at work. I think, in the end, to the satisfaction of everybody, we were proud that we signed it before you did.

 

Hon. Makan Delrahim:  Thank you.

 

Dr. Rainer Wessely:  And perhaps, to add, I think taking it from antitrust debate to merger enforcement, we already have a very good track record in incorporating extremely close together with the DOJ, with the FTC, not only on process and procedure, aligning our merger reviews, but in particular, also, when it comes to substance, I think we had really important decisions. Let’s take Bayer-Monsanto, for example, where I think we followed along and were -- extracted very good remedies, which worked on both sides of the Atlantic, so I think there is a lot of more and fruitful common basis than sometimes it is perceived outside.

 

Hon. Makan Delrahim:  But it takes a lot of work, and it doesn’t mean our work is done. We have to be diligent. We have 140 antitrust agencies. I joke sometimes: that’s one of our greatest exports out of the United States. Any one agency can weaponize by misapplying the antitrust rules for whatever, and there’s no international regime to retaliate against that. So it requires a lot of discussion, a lot of engagement, and a lot of understanding with well-meaning people, which we have, and I think that’s really important.

 

Hon. John B. Nalbandian:  I think over here.

 

Max Fillion:  Hi. I’m Max Fillion with MLex. There’s been some discussion about forced data access as a remedy for certain types of conduct, and Mr. Delrahim, I was wondering if this is something that the DOJ is considering and what types of conduct might spur a remedy like that?

 

Hon. Makan Delrahim:  Well, we’ll have to see what types of conduct could do that. I think, as a general matter, when companies are gathering that type of information, the data, and have invested in it, we certainly don’t want to have forced sharing. I think the Supreme Court has warned against those conditions under which you can do that, and it’s the outlier within Section II, but it doesn’t mean that it’s not an appropriate remedy to use, certainly, in a merger context, where you have market power and review data as an asset and an input. If there are companies that have a certain kind of data, we would ask for structural relief and a divestiture of certain collection of data.

 

Hon. John B. Nalbandian:  Anyone else? No.

 

Prof. Gene Kimmelman:  I like that.

 

Hon. John B. Nalbandian:  How about over here?

 

Deena Calium (sp):  Thanks very much. I’m Deena Calium. I’m asking for myself, and I’m not a member of the press. Earlier this summer, we heard that the division announced a change to how it’s going to consider compliance programs. Since we’re talking about the future of antitrust and convergence, I’d be happy to hear from any panelists who care to comment on this topic, whether you think indeed the future of antitrust should be placing more emphasis in considering compliance programs and, perhaps, whether this is an area where we can see international convergence.

 

Hon. Makan Delrahim:  I think you mentioned the DOJ did that July 11th. We’re very proud of that policy change. I think it’s for the better. I don’t know—Rainer—I don’t know which other regimes factor that in. So not every 140 agency has a criminal element to their enforcement regime, and so it might be limited to who does that. But it is an important part to try to motivate as many companies to not only ensure that they’re complying with the laws but put the appropriate mechanisms in to trigger when somebody may transgress.

 

Dr. Rainer Wessely:  Well, I think it will not surprise you that Commissioner Vestager keeps repeating that she welcomes any effort by companies to be compliant. But I think the line that we had in the past that we do not want to give benefit to compliance programs, if they are not working, is still the same. So, if we see that there has been an antitrust violation, or cartel, then we still think that there are good reasons not—let’s say, for example—to give a fine reduction because there was a compliance program in place, which in the end has turned out not to work, so that is still our line.

 

Hon. John B. Nalbandian:  Over here.

 

Craig Richardson:  Yeah. My name is Craig Richardson, and, General, I had the great honor of studying under one of your predecessors, antitrust Bill Baxter, who I think is part of the Baxter revolution, championed the concept that well understood microeconomic principles to guide—actually, more to the point: restrain—antitrust enforcement. It reflected a view that markets, free people in free markets, do a better job of allocating resources and promoting consumer welfare than central planners.

 

The Wall Street Journal, recently, in the last six months had a very long article about the breakdown of the bipartisan consensus that emerged from Bill Baxter about those well understood microeconomic principles and suggested there’s a shift to political objection to bigness, really part of perhaps a broader critique that’s going on right now about capitalism. Really, this is a question for all the panelists, to what extent do you agree that shift is taking place before our eyes, and to what extent does that shift affect the discussion about data and high tech that you’ve just engaged in?

 

Prof. Gene Kimmelman:  Well, I think that it is definitely a factor in the political environment and the policy environment around antitrust. I don’t see any sign that antitrust enforcers are deviating from the general approach to the principles of the standards. But I think those issues of bigness are really over simplified descriptions of experiences people are feeling in the digital marketplace, with a few companies tending to dominate. And we need to take legitimate concerns there and put them into the right policy discussion, I think, and I don’t think it leads to any one necessary solution, but I don’t think it is in antitrust.

 

Antitrust should be sensitive to that to the extent it’s about market power and dominance but not generically, but it doesn’t mean that the public sector shouldn’t be worried about whether a few companies are dominating across societies. So I think our problem here is that too much emphasis is being put on antitrust, the moment someone says companies are big, rather than thinking about where in government do we discuss these issues where we have appropriate solutions.

 

Hon. John B. Nalbandian:  Do you think that that -- we’re seeing a lot of people complaining about bigness, and is that why they’re straight to antitrust as opposed to thinking about other solutions or regulatory formulations that it just seems like antitrust should be the solution because of the old trust busting, whatever it would be -- the Sherman Act understanding?

 

Prof. Gene Kimmelman:  I certainly think that’s part of it, but let me bring in one other element too, and that is that Congress today is not the most functional it’s ever been in dealing with public policy discussions—and certainly my experience of more than 35 years watching Congress. And, in the past, one would have seen committees that have jurisdiction over large companies have a lot more hearings to discuss “Is there something wrong in the marketplace? Is something gone awry? Do we need to worry about this?” And you would have a lot more discussion about a broad set of policy tools. I think with a vacuum there of less of that kind of conversation in Congress, people assume that because it’s about size, it must be antitrust, and I think that’s really misplaced.

Hon. John B. Nalbandian:  Do you think that the Sherman Act and the Clayton Act are not what we would think of as modern legislation in the sense of being very hyper-technical detailed whatnot? Do we risk something if we go back and we ask Congress to get into the minutiae of this, and we go to the other end, or are we better off with the flexible, more open-ended statute?

 

Prof. Gene Kimmelman:  Old isn’t necessarily bad. [Laughter] And I think the flexibility has served us well. I think actually that the more important point related to that is, is the current jurisprudence interpreting those statutes in sync with how markets are actually functioning.

 

Hon. John B. Nalbandian:  Blame the judges.

 

Prof. Gene Kimmelman:  I didn’t say that. [Laughter] You could interpret it that way. Let’s just say, I think, it would be appropriate for Congress to look back and see whether the laws have been applied effectively to get the biggest bang for your buck within the antitrust framework, not going outside of it. I think the issues outside of it ought to be dealt with, with other policy tools.

 

Hon. Maureen Ohlhausen:  I was just going to mention also that I think—to Gene’s point, as well—if there are competitive issues occurring, real competitive problems, that antitrust is supposed to address that the agencies haven’t been able to address, because their tools haven’t been finely tuned enough, I think that’s an important area on which to focus. So, for example, going back a few years, the FTC and DOJ lost eight hospital merger challenges in a row, could not get a court to believe that the merger of these hospital systems was going to cause a competitive issue. So there was good empirical work done that looked at a consummated merger, and said “Yes, these anticompetitive outcomes did occur.”

 

And then the record, since then, has been much, much more success in challenging hospital mergers. So I think that’s an area where you can say, “Look, if there are something that we’re missing, if we can go far enough back in acquiring nascent competitors to know back then that that was going to be the one that was going to upend the market dominant player who was purchasing them, if our tools can get to that point, then that would, I think, be an appropriate thing for antitrust to focus on” because that’s what antitrust is supposed to be doing. Its tools can improve over time and should improve.

 

Hon. John B. Nalbandian:  Great. Any other comments? No. I don’t think we have any other questions, so join me in thanking our panel.

 

1:45 p.m. - 3:15 p.m.
Arbitration in the #MeToo Era

2019 National Lawyers Convention

Topics: Civil Rights • Labor & Employment Law
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Over the last decade, the U.S. Supreme Court has repeatedly recognized the primacy of the Federal Arbitration Act (FAA) by enforcing the terms of arbitration agreements in the employment, consumer and other contexts – including mandatory and class action waivers. The FAA encourages a mechanism for the resolution of disputes that most recognize as quicker and less expensive than courts. Some argue the benefits of arbitration are waning in the #MeToo era, with confidentiality provisions in arbitration agreements. Students at Harvard, Stanford, Yale and other elite laws schools are pressuring Big Law to dump mandatory arbitration, while some large employers have publicly abandoned legally enforceable arbitration agreements. Yet, at least one study shows employees do as well or better in terms of win rate and recoveries in arbitration as opposed to the judiciary.  First introduced after the Epic Systems decision, the Restoring Justice for Workers Act (H.R. 2749) would prohibit mandatory arbitration in employment disputes.  What is the future of mandatory arbitration? Is ending mandatory arbitration for all employment claims an over-reaction? Will forcing disputes into the judiciary mean fewer disputes will be brought to resolution? What about non-disclosure provisions in arbitration agreements? Will fewer employment agreements require arbitration of employment claims in the future?

  • Hon. Paul D. Clement, Former United States Solicitor General and Partner, Kirkland & Ellis
  • Prof. Alexander J. S. Colvin, Kenneth F. Kahn '69 Dean and Martin F. Scheinman Professor of Conflict Resolution, School of Industrial and Labor Relations, Cornell University
  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
  • Mr. Andrew J. Pincus, Partner, Mayer Brown LLP
  • Moderator: Hon. Joan Larsen, United States Court of Appeals, Sixth Circuit
  • Introduction: Ms. Tammy D. McCutchen, Principal, Littler Mendelson PC

Speakers

Event Transcript

Tammy McCutchen:  I’m very proud to be in this position because I took over from a certain new labor secretary, so it’s really great to have Gene. And I did want to remind you that Secretary Scalia will be here tomorrow to talk to us at 11:15, so I do really want to encourage you to go hear him speak. That will be in the Grand Ballroom. After that, if you’re interested in the Labor and Employment Practice Group and getting involved, we do have a lunch immediately following hearing from Gene, and that will be in the Hampshire Room tomorrow for lunch.

 

Without further ado, let me welcome our panelists and you today to this wonderful topic, “Arbitration in a #MeToo Era”. Now, our practice group chose this topic because, as employment lawyers, we’re writing arbitration agreements for our clients all the time, and  challenges to arbitration agreements have been winning over and over and over and over in the Supreme Court but, unfortunately, appear to be losing in the court of public opinion in this era of #MeToo.

 

There are law students in the room from Yale, Harvard, or Stanford. Students from those law schools are pressuring and sometimes succeeding in forcing BigLaw to give up their arbitration agreements. We’ve had employers like Google and Facebook announce that they are no longer going to have mandatory arbitration for their employment disputes. So we’re here to ask this wonderfully expert panel to answer the question today: What is the future of arbitration in the #MeToo age?

 

Now, to introduce our wonderful panelists we have Judge Joan Larsen from the United States Court of Appeals on the Sixth Circuit. Her full biography, of course, is in your app, and I’m not going to go through it, but I do want to hit some high points. The most important thing, of course, is that she’s a graduate of Northwestern Law, my own law school and, also, the law school of another Trump-appointee, Judge Brennan on the Seventh Circuit.

 

Now, Judge Brennan graduated in 1989. You graduated in 1993? I graduated in 1990. I guess President Trump missed my class. [Laughter] There’s still time. Still time. Before she went on the federal bench, she served as a clerk on the Michigan Supreme Court. She was a faculty member at the University of Michigan Law School. I will tell you I fell in love with you, sorry, when I read your article about Justice Scalia in the New York Times. One of your lines in that piece I will never forget and could in fact be a new theme for The Federalist Society. She said, “Justice Scalia believed in one simple principle, that law came to the Court as is and not as aught.” Isn’t that great? So, without further ado, the floor is yours, Judge Larsen. Welcome and thank you.

 

Hon. Joan Larsen:  Hello and welcome everyone to this panel on arbitration in the #MeToo era. I am told that this is an historic occasion. It is the first time that a National Lawyers Convention panel has included a hashtag in its title.

 

[Laughter]

     

So who says that people who like to hang out with The FedSoc don’t keep up with the times? Actually, everybody says that, but whether it’s true or not I will leave to others to judge.

 

We are here, actually, today to talk about quite an old statute. Congress adopted the Federal Arbitration Act 115 years ago, responding to a perception that courts were undoing hostile to arbitration. Yet far from being a little-used legal antiquity, the FAA has been at the center of at least 24 Supreme Court merits cases since 2006, and its provisions are robustly enforced in the lower courts. Although FAA-governed arbitration clauses can arise in any number of contractual relationships, our focus today is on arbitration agreements in the employment context.

 

Arbitration disputes in employment contracts have recently been headlining both in our courts and in the news. In its 2017 term, the Supreme Court decided Epic Systems Corporation v. Lewis, upholding arbitration clauses that waive collection action procedures in Fair Labor Standards Act cases. The dissent in that case predicted that the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers would be the inevitable result.

 

In response, the House is considering legislation, the Restore Justice for Workers Act, which would render unenforceable any pre-dispute arbitration agreement that requires arbitration of a work dispute. That legislation would abrogate the holding of Epic Systems by invalidating any agreement that requires a worker to promise not to pursue, bring, join, litigate, or support any kind of joint class or collective claim arising from or relating to a work dispute in any form. Quite broad legislation.

 

But contemporary concerns about mandating arbitration from employment disputes appear to go beyond its effects on wages or benefits. The #MeToo movement has also raised questions about confidentiality and non-disclosure, especially when required of victims of sexual assault or sexual harassment. In response to such concerns, law students have advocated for law firms to stop requiring summer associates to sign agreements requiring the arbitration of employee-related disputes, and that advocacy has expanded to encourage the abandonment of such agreements for all employees.

 

Earlier this year, Harvard Law School required all firms recruiting at the law school to disclose their mandatory arbitration policies. And I am told that women’s groups from eight highly ranked law schools pledged not to accept any funds from law firms who used mandatory arbitration agreements for any of their employees. In the face of changes in culture and potential changes in the law, we are here today to discuss what the future might hold for mandatory arbitration. What are the costs of workplace arbitration, and are there benefits that are getting lost in the shuffle?

 

With me for this discussion we have a truly exemplary panel. You have longer bios of all of these gentlemen in your apps and in your programs, so I will be brief. In fact, they are so accomplished that if I weren’t brief, our hour and a half would be over before I sat down. So I will keep it short.

 

We have first the Honorable Paul D. Clement. Paul is a partner at the Washington, D.C. office of Kirkland and Ellis and, as you all know, served as the 43rd Solicitor General of the United States from June 2005 to June 2008. Before his confirmation as Solicitor General, he served as Acting Solicitor General for nearly a year, and as Principal Deputy Solicitor General for more than three years. He has argued more than 95 cases in the U.S. Supreme Court, including most relevantly for this panel, Epics Systems Corporation v. Lewis.

 

Next, we will hear from Professor Alexander J. S. Colvin. Professor Colvin is the Kenneth F. Kahn Dean and Martin F Scheinman Professor of Conflict Resolution at the Industrial and Labor Relations School at Cornell University. He is also an associate member of the Cornell Law School Faculty. His research and writing -- well, I’m going to tell you what it is. It focuses on employment disputes with a particular emphasis on procedures in non-union workplaces and the effect of the legal environment on organizations.

 

Next, we will actually hear from Mr. Deepak Gupta. Mr. Gupta is the Founding Principal at Gupta Wessler PLLC. He focuses on Supreme Court, appellate, and complex litigation, covering a wide range of issues including constitutional law, class actions, and consumer and workers’ rights. Mr. Gupta regularly appears in the Supreme Court and in appellate courts nationwide. In the 2016-17 term, his firm was counsel of record for parties in three merits cases, and he was lead counsel in two, and he prevailed in both.

 

Finally, we have Mr. Andrew J. Pinkus. Mr. Pinkus is a partner at Mayer Brown LLP, where he focuses his appellate practice on briefing and arguing cases in the Supreme Court and in federal and state appellate courts, developing legal strategy for trial courts, and presenting policy and legal arguments to Congress, state legislatures, and regulating agencies. He is a former Assistant Solicitor General in the U.S. Department of Justice. He also founded and serves as the Director of the Yale Law School Supreme Court Advocacy Clinic.

 

So, with this fine panel, I am sure that we will have a robust discussion. The panelists have all told me that they can keep their introductory remarks to five minutes. We will see. But I promise to bang the gavel not too long after the five-minute mark. We will then follow up with a chance for the panelists to respond to each other, either with rebuttal, with questions, with comments, and I hope to get a discussion going there. And then if time permits, we will open it to the floor so that we can get some questions from all of you. So, with that, I will first give you Paul Clement.

 

[Applause]

[Cell phone rings]

 

Hon. Paul D. Clement: Silence your cell phones. On queue. No, that’s great. Thank you. [Laughter] So thank you. Thank you, Judge. It’s great to be on this panel with these distinguished colleagues, and it’s particularly great to have you moderate this panel for us. So thank you for doing it. Just like a Scalia clerk, start with the statute, the FAA. We could have an hour and a half long discussion about arbitration without mentioning the statute, but that would just be wrong. So that’s a great place to start.

 

[Laughter]

 

And I’ll follow up, then, and just talk a little bit about kind of what the Supreme Court typically does with cases that arise under the FAA. And I am going to try to keep this quite short, and I really am going to kind of just try to set the table here because as Tammy said in her introduction, this is kind of like a tale of two temperaments towards arbitration.

 

The Supreme Court seems to be very favorable to arbitration right now but in part because of the #MeToo movement. The public perception of arbitration is -- it’s a little different from say in the majority of the Courts’ perception. In terms of the Supreme Court and arbitration, until last term, my stock description of the Supreme Court in arbitration was there were two kinds of arbitration cases in the Supreme Court. There were cases where the party seeking to enforce an arbitration agreement won 9-0 and, then, there were the cases where the party seeking to enforce the arbitration agreement won 5-4. But there really weren’t any cases where the party seeking to enforce the arbitration agreement actually lost. And I learned that the hard way, along with Deepak in a case, where I was trying to get the Court to not enforce an arbitration agreement and came up with four votes and a rousing opinion in favor of the four votes but came up a vote short. And I think that really was the story in almost all these cases.

 

The exception was last term where the Court, finally, in New Prime v. Oliveira found a case where they actually didn’t accept the employer’s argument for enforcing an arbitration agreement and not allowing an individual to sue. But in a sense, I think this is the classic exception that proves the rule because the issue there arose under a codicil or a caveat in the FAA that carves out -- and since it’s a statute and Joan’s here, Judge Larsen’s here, I’ll quote it, so I’m not paraphrasing it. The judges don’t like it when you paraphrase statutes, so I’ll quote it.

 

“Contracts of employment of seaman, railroad employees, or other classes of worker engaged in foreign or interstate commerce are essentially accepted from the scope of the FAA.” And, so, the argument by the employer in this case was by a trucking firm, so it was squarely within the carve-out clause, but they said, “But we can still enforce our arbitration agreement because this particular trucker is an independent contractor and not an employee.” That’s a tough argument, and it got exactly zero votes. But that’s the kind of argument you have to make to lose in the Supreme Court when you are trying to argue in favor of arbitration.

 

A much more typical case is the case I argued a couple of terms ago that Judge Larsen eluded to which is the Epic v. Lewis case. In that case, a five-justice majority and an opinion written by Justice Gorsuch rejected the argument that Section 7 of the National Labor Relations Act created, essentially, an exception to arbitration agreements for collective action. The argument in that case, which under the Obama administration the Labor Board had accepted, was that you could have employment disputes be arbitrated, but you couldn’t enforce a class action waiver provision in an arbitration agreement because the NLRA gave special protection to collective action on behalf of the employees. The Court, as I say, in a 5-4 decision rejected the board’s position, accepted the argument that you could have arbitration of employment disputes and enforce the class action waiver.

 

And the one thing I’ll say about that, so I keep within the standard deviation of five minutes here, is to say that probably the most striking thing about the Epic decision was the dissenting opinion by Justice Ginsburg. She donned her dissenting collar, went on to the Supreme Court bench the day the case was handed down and really read her dissent from the bench and gave a kind of stirring cry that Congress might want revisit what the majority of her colleagues had just wrought in interpreting the FAA to essentially trump the NLRA.

 

And, to my mind, it was kind of reminiscent of her dissent in the Ledbetter case, which led to the Lilly Ledbetter Fair Pay Act. And, so, I do think she was quite deliberate in picking this case and this topic as a case to make a kind of a dissent from the bench and a call to Congress to action. So I think it sets the stage well enough that the Court loves arbitration agreements sometimes for dissenters, not so much, and I’ll leave it to the others to talk about the rest of public opinion.

 

Hon. Joan Larsen: All right, thank you. Professor Colvin?

 

Prof. Alexander J. S. Colvin: Great. Thanks very much. I’m going to be talking a little about what we know from an empirical perspective about what’s going on in arbitration. I just want to hit some of the highlights of the statistical analysis that has been going on to try to get a picture of what do we know about this phenomenon. And it’s a phenomenon we actually didn’t know a lot about until fairly recently I would say. And part of that reflects, I think, something that we see in the title of this session, the confluence of mentor arbitration and the #MeToo movement, right?

 

Over the last couple of years when we’ve got this increased tension of sexual harassment cases but, then, also this is a period when arbitration has sort of expanded, both in its impact across workplaces and also in the public realm. There’s a 2016 New York Times series on mentor arbitration, which is the first time I think that it got that level of attention in the mainstream media.

 

So a few basic things that we’ve been able to figure out. Firstly, the question of how widespread is the usage of mentor arbitration in an employment context? That was something that hadn’t been very clear. I did a few studies on this about 20 years ago where it seemed about 15 or 20 percent of the non-union workforce was covered. That actually seemed to stagnate through most of the 2000s and early 2010s, so if you look at the American Arbitration Association case filings, there are about a thousand cases from really about 2000 to 2013. And, so, that suggests that there really hadn’t been an increase in adoption by employers.

 

However, if you look 2013 onwards to the present, you get a dramatic growth from about a thousand cases a year to about three thousand in cases a year. That could be increased filing activity, but it’s probably much more likely that’s an increase adoption by employers. So, a couple of years ago, to try and get a hard number on this, I did a nationwide survey of employer establishments to see how widespread adoption was. And, from a sample size of over 600 employers, we found 53 percent had adopted mentor arbitration for their non-union employees. They tend to be larger employers. That’s about 56 percent of the non-union workforce, which corresponds with about 60 million employees. We do have some evidence that larger employers are more likely. There was a separate study done trying to enumerate Fortune 100 companies that had had cases in forcing arbitration and found 66 out of a 100 had enforced agreements to arbitrate. So widespread usage, mainly employees now, and particularly amongst large organizations.

 

What do we know about cases that are actually being brought in arbitration? So one of the basic things process wise is how long is it taking? Research, we found, is that it takes on average about a year to a hearing. 361 days was the number that we found in a sort of long, 11-year long sample of all the mentor arbitration sources in cases. That compares to litigation the standard stats we see in federal courts in about two years. That’s just over 700 days on average to resolution after a hearing. 723 days in state court. So we’re seeing about a sort of two-to-one ratio. One year versus two years to resolve.

 

Settlement numbers: some recent research suggesting that the difference is less dramatic in settlement -- cases that are settled. How much is it costing is always an interesting question, particularly if you’re paying the arbitrator’s fees, if your client’s paying the arbitrator fees. So we find the cost in American Arbitration Association cases average of a little over $11,000 per case for cases resolved after hearings. Overall, across all cases, $6,000 for a case. Most cases are settled in arbitration, and the arbitrator fees in the settled cases tend to be $4 to $5,000 on average. So not insubstantial for settled cases.

 

What are the outcomes of arbitration? So this is something that’s actually trickier to find out than it might seem because of a few complicating factors, and there were some mistakes made in some of the studies in this. One classic one was mixing together individually negotiated arbitration cases and mentor arbitration cases. If you have an executive client whose negotiator is part of an executive contract with the employer arbitration, those are handled differently by the AAA and there are very different sets of outcomes. If you mix the two together, you’re going to get mixed up statistics on that.

 

There are also problems in some litigation studies mixing together things like putting in summary judgment cases with dispositions after trial. One of the classic mistakes on that is putting in dispositions after a summary judgment because a disposition after the summary judgment is only going to be included if it’s a successful summary judgment.  Because in the statistics, they don’t include it as a disposition if the summary judgment is denied. So you skew the numbers against the plaintiff success rate if you put in the summary judgment ones lumped in together.

 

So what do we find overall? The studies find about 20 percent of employees are successful in arbitration. That compares to about 36 percent in federal courts, 57 percent in state courts. If I’m representing an employer, my least favorite place to be should be state court, in the middle on federal court, and I’m better off in arbitration. The same pattern holds in damages, so medium damages in arbitration, about $36,000. Half the case is larger, half the case is lower. $150,000 in federal courts. Close to $300,000 in California state courts, so California state courts are probably where you’d least like to be if you’re representing an employer.

 

One of the big questions around arbitration is accessibility. There are some arguments that it will increase accessibility. We’re not actually seeing that in the data, so the couple of stats that are relevant: We see about 3,000 cases a year filed in the American Arbitration Association. We’ve got some survey data that came out. It’s about half of all arbitrations are through the AAA. That suggests around 6,000 cases totally filed in the country. In litigation, it’s not as clear because you have to aggregate across state courts. Probably 75 to 100,000 cases filed per year in litigation in the courts. So, if you think about equal number of employees under mentor arbitration, non-mentor arbitration, it looks like about a ten-to-one difference in terms of the filing rate, which is supported by some of the surveys that we’ve done looking at plaintiff attorneys who tend to view the damages they can get in arbitration as making it not worth them bringing cases unless they’re really strong cases.

 

Now, there’s two different implications of that from policy versus practice, the policy argument around “does this suggest arbitration is problematic because it’s reducing access?” From a practice standpoint, if I was an employer counsel, this suggests that I’m doing something economically rational in advising my clients to use mentor arbitration agreements. The sort of revealed preference that we see from an economic standpoint of employers adopting this seems to be a rational preference. This is what I would say to a defense counsel they should be doing based on the numbers because the numbers suggest they are going to do better in employment arbitration. And, in large part, this is going to have an effect through plaintiff attorneys not being willing to take cases.

 

When I present these numbers in conferences with a lot of plaintiff attorneys, they tend to think, “Oh, you know, okay, the numbers suggest there’s something problematic with mentor arbitration.” They get excited, and then they start doing calculations and come up quiet to me afterwards and say, “Are you sure of those numbers?” and I say, “I’m pretty sure of the numbers.” They’re like, “I’m not any money on cases with these numbers, so I’m not going to take the cases.” Right? And that seems to be the plaintiff attorney’s reaction there. So I think that’s kind of underlying a lot of the debate that we’re seeing currently about arbitration. I’ll conclude my comments there and pass on.

 

Hon. Joan Larsen: Very good. Thank you. I think next, we are going to hear from Deepak Gupta. No?

 

Andrew J. Pinkus: I think we were going to do me next.

 

Hon. Joan Larsen: Oh, I have the -- well, it’s a good thing that we have the panel here because the moderator has it wrong.

 

Andrew J. Pinkus:  Sorry.

 

Hon. Joan Larsen:  So, all right. Andrew Pinkus will speak to us next.

 

Andrew J. Pinkus: So I think my role is to talk a little bit about the policy debate. And I guess I’ll start by saying nobody really -- arbitration doesn’t have a natural defender. You know, lawyers, we all learn about the legal system in law school, and you sort of see it as this wonderful due process model. Maybe you have some experience with it, and you become a little skeptical, but most lawyers are pretty comfortable with litigation in court. I think both plaintiff and defense lawyers have a lot of -- not quite the heebie-jeebies, but a little worry about arbitration because it’s a very different animal with a different set of rules.

 

So my hypothesis is even though arbitration doesn’t have an actual PR proponent, it’s worth digging under some of the stories that you’ve heard because actually it does pretty well. And it could do even better, I think, if there was an effort to actually popularize it rather than demonize it, and I think that’s really one of my big takeaways from spending a lot of time both looking at arbitration from a litigation perspective and from a public policy perspective is, I think for the reason that Professor Colvin talked about, arbitration is a natural place to go for smaller, individualized claims that really are not as a practical matter litigable in court because the amount at issue is not going to attract a lawyer, and you can’t litigate in court without a lawyer.  

 

Arbitration, on the other hand, is a pretty user-friendly method. The AAA lets you file online. You can choose to have telephone conference. You can choose to have your case resolved on the papers. You can have a real conference if you want, but in terms of empowering people to pursue their own claims when they may be not attractive to the legal system, it’s a pretty powerful device. And, so, my sort of starting point is, as much as lawyers love litigation, we should recognize that it has its flaws, and that there may be, for a large quantity of claims, a better way to resolve disputes. And I think that’s what arbitration does.

 

Let me step back for a minute and talk a little bit about the procedures because I think since we’re in #MeToo mode, one question that naturally arises is doesn’t arbitration put a gag rule on claimants? Doesn’t it stop people from talking about their claims? Which would be a pretty terrible thing. The answer that the courts give is no. If an arbitration agreement tries to silence you, that arbitration agreement is going to be invalid as unconscionable. If an arbitration agreement tries to stop you from talking about the outcome of the case, that arbitration agreement is going to be invalidated as unconscionable.

 

So the notion that arbitration necessarily means that claims can be hushed up is just not right. It is possible that some of the executive agreements that Professor Colvin referred to may be in that unique situation where you have someone who has access to high-level company information, a clause might be enforced. But for the kind of arbitration agreements we’re talking about here, which is really general agreements that cover wide ranges of employees, the courts just won’t allow it.

 

The other thing is, states require the publication of outcomes in arbitration. California and Maryland require that the AAA and other arbitral providers post results on their websites, which actually enables some of the analysis that people couldn’t do before. So it’s a valuable thing all around. So I think it’s important to separate the sort of arbitral process from questions about gag rules and other things, which I really think are a totally separate world.

 

The other thing people sometimes talk about arbitration is isn’t it a rigged casino? Aren’t there these arbitration agreements that require you to waive punitive damages or impose very short statues of limitations or basically say the company’s general counsel will either be the arbiter or pick the arbiter? There too, as the law has developed and the Supreme Court has blessed the application of general unconscionability principles to arbitration agreements, those kinds of provisions get knocked out. And what you have most companies doing is either going to either the AAA or JAMS, both of which have due process protocols that apply. If you want the AAA to arbitrate your employment disputes, you’re going to have to abide by a series of requirements including, for example, the employer can’t be required to pay more than a couple hundred dollars, with the employer paying the rest of the cost of the arbitration.

 

I don’t want to go too far over my five minutes, but I guess my starting point is we should try to get underneath in the public policy debate, which as Paul said is very different from the debate about enforceability of the FAA. Get behind some of the demonization of arbitration and talk about how it really works because it’s quite a different thing.

 

Hon. Joan Larsen:  All right. Thank you very much. And now we’ll hear from Deepak Gupta.

 

Mr. Deepak Gupta:  I want to thank The Federalist Society for taking notice of the way that the conversation around forced arbitration has changed as a result of the #MeToo movement. It’s an important conversation to have. And I want to thank Judge Larsen for moderating the panel, and from saving this from what the kids call a “man-el” [sp] because that wouldn’t be a great look, I think, when you’re talking about the #MeToo movement in particular.

 

So, just to set the stage for the policy conversation, I think it’s important to talk about what we’re debating and what we’re not debating. We’re not debating the merits in this policy conversation of whether arbitration or alternative dispute resolution can be a good thing, whether that should be permissible. The question instead is whether it should be forced on to people who have no realistic choice or whether it should be optional. And so, in circumstances where alternative dispute resolution makes sense, and the virtues of it are obvious to parties who are informed, they would be able to opt in to it even if the legislation that is now making its way through Congress were enacted, even if the broadest legislation that Judge Larsen described were enacted.

 

Instead, the question is should people who take a job at a big box retailer, low wage workers, people who are using products and services where there really isn’t any choice to avoid arbitration, should that choice be available? Should there be legislation to stop that? And when you poll Americans on that question, an overwhelming majorities of Republicans, Democrats, and Independents—over 80 percent—believe that it should be a choice, that they should not be forced into a private, corporate system when they have a claim against their bank or against their employer. And since the theme of The Federalist Society Convention this year is originalism, I think it’s worth really stepping back and taking a moment to think about what the Framers may have thought about the state of affairs that we find ourselves in.

 

Recall that when the Framers left the Constitutional Convention in Philadelphia, they had worked out a compromise, but they didn’t have a Bill of Rights. One of the chief critiques of the Constitution was the lack of the Bill of Rights. But it wasn’t just the lack of the Bill of Rights. It was, in particular, the absence of the Anglo-American civil jury trial right. It led to the Bill of Rights. The Founders thought that was a precious right – the ability to access court, a public court, the kind of all the due process stuff we learn about in law school. They thought that was important. So important that they put it in the Constitution. With other constitutional rights, if there’s going to be a waiver of those constitutional rights— of course, you can waive your First Amendment right, your Fifth Amendment right, your Sixth Amendment right—the law is that we require that there’s a knowing, voluntary, and intelligent waiver, and we’ve imposed pretty strict standards to ensure that there’s such a waiver.

 

It is worth asking why the state of affairs that we find ourselves in, where there’s a wholesale exit from the civil justice system that the Founders guaranteed, why that is consistent with our founding ideals. I also think it’s worth asking how we got here when we looked at the original intent of the Federal Arbitration Act, and I can’t get into all of this, there’s too much to talk about, and there are oceans of law review articles on this. But what the Supreme Court has done is something more akin to common law, adjudication, and accumulation of precedence that has kind of created a, as Justice O’Connor put it, “an Oedipus of the Court’s own creation in the guise of statutory interpretation.”

 

Paul read you Section I of the Federal Arbitration Act. If you just read that text with nothing else, unaccompanied by any of the case law, you would think that the people who wrote this statute did not intend it to apply to workers. That’s what they said in the legislative history, but for those of you in the room who only like to look at the text, the text says that. And so, we’ve really departed quite a long way away from the original intent of the statute. Justice Thomas has been a lone champion for, I think, the correct view, that the statute was never intended to apply outside of federal court. It was intended to be a purely procedural vehicle in federal court and not apply to state court.

 

But the Court has -- the statute has kind of metastasized into this preemptive beast that preempts all state law that’s in the way. And so the states are really unavailable. It’s unavailable to them to fix the problem. Even though they’ve enacted some legislation in response to #MeToo in New York and California, I think it’s fair to predict that that legislation is going to be struck down as preempted by the Federal Arbitration Act.

 

And, so, that creates a lot of pressure on Congress to do something about it. And this year for the first time, legislation that would exempt consumer and employee claims for forced arbitration passed the House of Representatives. And you may think, “Well, it’s dead on arrival in the Senate.” But there’s a vote that I don’t think most people noticed. It happened early in the Trump administration over the Consumer Financial Protection Bureau’s rule that would have banned arbitration clauses that had class action bans in the consumer context. Interestingly, that vote, which required just a simple majority under the Congressional Review Act, was so close—and there were Republican votes in favor of the Consumer Bureau’s rule—that it required the Vice President to break the tie.

 

So the politics of this are shifting. There are senators like Lindsey Graham, Joni Ernst, and others that are concerned that the jurisprudence of forced arbitration has just gone too far. I think the #MeToo movement has highlighted that, but it is not the only context in which people are concerned about this. It sweeps across the whole broad range of potential civil claims that could be brought. Wage and hour law, for example. If the legislature passes a wage and hour law and gives a private right of action, then the only way of meaningfully enforcing that law is through class litigation—which it is. It’s just not sensible to litigate or bring those claims on an individual basis—then the enforceability of arbitration clauses in the employment context is tantamount to a nullification of that law. One way of thinking about it is that corporations are writing laws in the fine print of contracts for consumers and employees that are trumping the laws written by the legislature on behalf of the people. And it really is, for a wide swap of claims, what’s happening.

 

To put that all together, forced arbitration is inconsistent with our shared constitutional values, our finding ideals. The way it operates now is inconsistent with the original intent of the people who wrote the Federal Arbitration Act. It has the effect of nullifying legislation enacted by the legislatures, and it ends up killing claims. We like to think it’s going to this other place with arbitrators deciding the cases, but for the classable claims—the claims that only exist if they can be classable—the claims just die altogether.

 

And the best evidence of that is the Consumer Financial Protection Bureau’s study which looked at the American Arbitration Association to see all of the claims within their jurisdiction. They found that over a two year period the number of consumers -- I realize they’re talking about workers, but I think a similar thing happens for workers’ claims that are classable -- the number of consumers that achieved affirmative relief on claims of $1,000 or less -- guess how many it was? It wasn’t 400,000 people, or 40,000 people, or 400 people. It was four people. Four people got relief. So it’s not a better, cheaper, faster system to which the claims go, it’s just the primary affect is to kill claims altogether. I recommend, for those of you who are interest in this, Brian Fitzpatrick’s new book, The Conservative Case for Class Actions, which was written in response to the Supreme Court’s arbitration jurisprudence. It makes an argument from conservative principles that this jurisprudence has gone too far, and that we should all, conservatives and liberals, be concerned by where this has gone.

 

Hon. Joan Larsen:  All right. Thank you. I see Andy over there scribbling notes which is good. That suggests that we’re going to have some back and forth here as people has some things to say. So I guess we don’t have a particular order in which to do a rebuttal. We can go in reverse order back, or Paul, if you want to start, or…

 

Hon. Paul D. Clement:  I think Andy is dying.

 

Hon. Joan Larsen:  Yeah, I think so too.

 

Hon. Paul D. Clement:  Dying. [Laughter]

 

Hon. Joan Larsen:  So let’s let him go first, and we’ll work our way around the table this way.

 

Andrew J. Pinkus:  Thank you. I don’t want to lose control. I really think it’s worth stepping back from the judicial system versus arbitration. This is about how are we going to resolve disputes. I mean, it’s wonderful to talk about the Seventh Amendment and the jury right. How many people actually get to the place where they have a jury trial in federal court? An infinitesimal number. A lot of the protections that federal courts provide are illusory in that they are never motivated, and what happens is this wonderful system that we’ve constructed is basically a system that provides leverage to various sides to settle the dispute, which is what happens to the vast majority of disputes in arbitration and in federal court.

 

So, to me, maybe this is an overly -- I’m not an economist by any means, but let’s look at whether we can construct a system that’s actually better at doing that than the federal court system is in that it gives more people the ability to get their claims heard, or at least to initiate a process that will lead to getting a legitimate claim vindicated as opposed to the federal court system where, let’s face it, we lawyers are gatekeepers.

 

On the plaintiff side, it’s plaintiff’s lawyers. They, understandably, want to earn a living, so they’re looking at what kinds of cases are going to earn the most living. And those may be a very small slice of cases that real people care about. I mean, one of the things that we did in connection with thinking about the Consumer Financial Protection Bureau rule that Deepak mentioned was to say what kinds of claims do consumers care about? And the CFPB actually set up a public database. So we took a random sample of the claims that actual consumers had put into a database, and it won’t surprise you to learn that most of them were not the kinds of claims that you’ll see in class actions. They were about my bill, my interest rate, my credit report, and wanting to get things corrected. Those are the types of claims that are never, ever, ever going to get into court.

 

So, to me, the question is how do we look at systems in terms of providing the most justice for the most people? And what happens in arbitration -- again, it’s largely still a system for creating incentives on both sides for settlement, but the incentives are very different. Starting at the beginning, as I said, in both the consumer and the employment context, the company has to pay the lion’s share of the fees. And right up front, the company has to pay about a thousand or so a month fee to get the arbitration started. The AAA and JAMS and sort of the conventional arbitration providers limit the fees that have to be paid. So, if you’re a company, and someone comes to you and says, “We have a beef, and we’re going to file an arbitration.” It’s sort of a no-brainer to say that the arbitration system that the company has agreed to gives that employee or that consumer significant leverage to get a settlement before the arbitration’s even started, when in fact --

 

This is what happened. I argued a case called AT&T v. Conception that dealt with the question of class waivers in the consumer context. And AT&T decided that what it wanted to do was to construct a dispute resolution system that paid less money to lawyers, including Mayer Brown, and use more of the money to settle disputes with its customers so they would be happy and actually stay as customers, which is what most companies want. So they constructed a system that said for small claims -- now “If the claim is under $75,000, we, AT&T, will pay all the fees, as long as the claim isn’t Rule 11 frivolous. Come to us first as a mediation step. Come to us first. We will give you a settlement offer that may make you happy. If you decide to go to arbitration, we will pay the fees. If in arbitration, you get a penny more than what we offered you in settlement, we will give you a minimum payment of $10,000, pay double your attorney’s fees, and pay all of your expert costs.” What’s the purpose of that? The purpose of that is to give AT&T, self-inflicted, an incentive to say, “We are going to settle all but the most crazy claims because that’s a good system that makes our customers happy and takes all the money we would spend defending class actions—paying law firms like probably many other people in this room—and puts it into resolving claims with our customers.”

 

So, when Justice Scalia, who I sort of trust the meaning of the FAA, wrote the opinion for the Court in Conception, he said, quoting some findings of the lower courts, that “There was no doubt that AT&T’s system provided quicker, shorter relief for injured consumers than the class action system.” And that’s what AT&T tried to construct. I think it’s a very important and viable system, and even Justice Kagan, in writing the dissent that Paul likes in the Amex case said, “We don’t need class actions to vindicate small claims.”

 

There are lots of other ways to do it, and one way to do it in the arbitration system is to say, if you’re a lawyer, you can say, “I want to represent all of the company’s customers or employees on some claim”, set up a website in today’s world where people can sign you up, and, then, you have the ability to file claims that will inflict a lot of economic pain on the company, and, probably, if the claim is legitimate, bring the company to the table.

 

But there’s a big difference between arbitration and class actions. If the company thinks it’s right, it doesn’t have to roll the dice on some gigantic verdict in order to get a merits decision. It can say, “You know what, we’re going to arbitrate the first claim and see what happens. And maybe the second and the third.” And if the company starts to lose, my guess is it will start to settle all those cases. If the company starts to win, maybe the lawyer will say, “Maybe these cases aren’t worth too much.” But, unlike the court system, where class action settlements virtually never turn on underlying merits, right, because it’s all about motions to dismiss some class certification, at least you have a system that gets somebody to look at the underlying merits of the claim, which I think is really important. I’d say a lot more things, but I’ll yield for the moment.

 

Hon. Joan Larsen:  All right. Thank you. Professor Colvin, do have some remarks?

 

Prof. Alexander J. S. Colvin:  Maybe just on this accessibility question because I think that is the best policy argument in favor of arbitration, right, is that if a system that could provide greater accessibility to justice and get to merits of claims, right, I think that is a strong argument. I think from the empirical standpoint when we look at -- we don’t see that yet in the current system, right? And, so, I think that’s one of the tensions here, right? We see fewer the claims than we would expect if there are great accessibilities. It’s a tenth or so of the numbers we’d expect to see. Which in one sense helps explain why it’s being adopted.

 

And the one thing I find when you talk to the executives who are considering their counsel’s advice to adopt mentor arbitration, one of the worries is it’s going to bring us a flood of claims, right? The flood of claims argument, I think, is one of the barriers to adopting it, but I think they could be convinced there aren’t a flood of claims because we don’t see the flood of claims. The question is what’s going on there? One step that may suggest there is something there is we don’t actually see a lot of self-represented people. It’s just under a quarter of the people in arbitration, similarly to litigation, are self-represented. They do terribly, like they do in litigation. Self-represented people do terribly in all legal forums. It’s one of those easy wins if you’re an empirical researcher. Self-represented people always find that effect.

 

[There’re] not a lot of smaller claims. Three quarters of the claims are over $60,000. We don’t actually see a lot of the smaller claims, and I think part of that is the inability to get lawyers to represent people bringing claims. That’s gone dead.

 

There’s also a bit of an issue which we haven’t really touched as much on yet, but that there really has been growing complexity of arbitration. I did a research exercise once where we read through a whole year’s worth of AAA arbitration files and looking at the whole case file, and there’s surprisingly thick files now. This took a lot more of my research assistant’s work than I planned because they look a lot more like a federal or state court files in terms of motion practice. Summary judgments were there in half the cases, and a lot of complexity which has increased. If you wanted to do a more sort of open, accessible system, you could imagine designing a different kind of arbitration system where it was sort of simplified and more supplemental to the courts.

 

One thing I’ve written about is sort of a more radical suggestion of adopting the British rule, which is where you can choose, ask the plaintiff to file in either the employment tribunal or in the court. And that’s the plaintiff’s election. They’re stuck whichever one they go with. There’s no double-dipping, but you get your choice there. And you can imagine sort of setting up a sort of generally available arbitration system if people wanted to use that. Or you could go to the courts if you have a bigger, more complex claim. The thing that would make this only a public policy solution is I suggest this should be the plaintiff’s election, not the defendant’s election which is the current model. But I think if you’re designing a public policy system, you could come up with a way to use arbitration to have more accessibility. We just don’t see it in the current system yet.

 

Hon. Paul D. Clement: Just a couple of thoughts from me. I think Andy started off by saying that arbitration has no natural defender, and Deepak makes a pretty good case against arbitrations, so I guess I would say, “Thank God for Andy.” [Laughter] He may be unnatural, but he’s a very good defender of arbitration.

 

I will say just from personal experience, I did an amicus brief in support of Andy’s client in the Conception case, so I actually had occasion to read the arbitration agreement that Andy, I think, worked with AT&T to formulate. Based on my relatively objective reading, I thought that was so favorable to the complainant that I wanted to go out and file a complaint even though I was a Verizon customer because I thought I had a decent chance of getting ten grand. I mean, it really was.

 

[Laughter]

 

And there’s a serious point there, though, which is not all arbitration agreements are created equal, particularly in the consumer context. I’m sure there are a lot of non-litigation reasons why AT&T wanted to write that favorable sort of agreement, but I think it probably served them very well in the Supreme Court when the Court was looking at it because that was an agreement that really made arbitration a real possibility, it seemed like anyway. That’s the last thing I’ll turn to in a minute.

 

I just wanted to sort of make a point about -- I think especially as you move from the courts being general, pro-arbitration, but you think about some of the numbers that Deepak eluded to about if you pull arbitration, hence he asked the question of course, but if you pull it, it doesn’t sound like something that’s super popular. And I do think that it’s probably important in thinking about these issues to disaggregate some of the sub-issues that are here because one thing is the issue about arbitration. The other thing is the issue about sort of gag rules and the like. And, then, the other issue is are we talking class arbitration? If we don’t have arbitration, what are the alternatives? I think those are all things that it’s worth disaggregating.

 

I think a good illustration of that is Deepak makes an excellent point that in the Framing generation the Seventh Amendment was something that the Framers took very seriously. Of course, the Framers also thought the proceedings of the Constitutional Convention should be confidential. So, they had a different view about confidentiality than they did about the Seventh Amendment. And it may be -- particularly if you’re a fan of arbitration, it may be that the best way to keep arbitration through the #MeToo era is to disaggregate the two issues. Decouple the two issues, and essentially say, “Look, gag orders or non-disclosure in this context may be a problem, but you don’t have to get rid of arbitration to get rid of those non-disclosure provisions.” So it may be important if you like arbitration, to actually make clear that there are multiple issues that are really going on here.

 

But the last think I would say, and this one thing I want to actually agree with Deepak on, and not just because it was a theme of the brief we wrote together, but I do think in having this public policy debate there’s a big difference if the debate is really a choice between arbitration and nothing, or whether it’s a choice between arbitration and litigation. I think reasonable minds can disagree about sort of the virtues of arbitration versus litigation if that’s the relevant choice. But, if you start talking about claims where the choice is if you’re going to have arbitration agreements, that the claims really aren’t going to be brought, then I do think you have to have sort of a second order of discussion about some claims aren’t brought because they’re not claims that we really want to be brought in our system if they’re not worth it to the claimant or the claimant’s lawyer. Other claims are claims we very much want to be brought, notwithstanding the fact that if you just leave it to the incentives of the lawyers, they probably won’t get brought. And then, there are ways of incentivizing those claims to be brought. And there’s a whole bunch of them that I can think of. Class actions is one way to get those claims to be brought. Another is punitive damages. Another is statutory damages.

 

Now, all three of those, based on my personal experience just representing defendants, can lead to some pretty sort of unfair settlements in claims where the underlying claim really isn’t all that great because if you’re facing a relatively sort of livable settlement versus the kind of possibility that you’re going to get really whacked in class action or in it with punitive damages, a lot of defendants will decide the right thing to do is to just settle. But I think you can’t be against everything.

 

And so, that’s why I think the way Deepak puts the issue is the right way to think about the issue, and if there are claims where they may not be brought if there isn’t some incentive to bring them, then I think that we ought to have an intelligent policy discussion about how do to we get those claims brought and maybe avoid some of the kind of disincentives where you create a system where the claim is settled without having anything to do with the merits.

 

I’m no expert on this. One thing that occurs to me, though, is you could have sort of one side of attorney’s fees shifting where if the defendant loses, the defendant pays the plaintiff’s attorneys fees, but not vice versa. That has the virtue to me of addressing a very real problem, but at the same time, that seems like something a defendant ought to be able to do without saying, “I’m going to settle this claim just because I can’t afford to take the risk of class actions with statutory damages or the possibility of punitives.” That’s a risk that’s worth running that might make the system work better.

 

But I think, especially for those that like arbitration, I do think it’s important to take sort of Deepak’s point very seriously and be prepared to be in favor of something. I do think it’s a tough position. If you’re really going to say if you don’t allow class arbitration, if you don’t allow class actions because you allow them to be in the arbitration system instead as individual claims -- if they’re claims, particularly claims under the civil rights laws, you need to be able to offer something that assures people that those claims aren’t going to get brought. Otherwise I think you may lose the public policy debate.

 

Hon. Joan Larsen:  All right. We’re going to allow Deepak because -- you didn’t get the chance for your second round.

 

Mr. Deepak Gupta:  Then we’re going to have to go around again, don’t you think? [Laughter]

 

Hon Joan Larsen:  Well, I mean, I don’t know. It depends --

 

Andrew J. Pinkus:  We can let these people go.

 

Hon. Joan Larsen: -- depends how we go. Yeah.

 

Deepak Gupta:  Well, I’m glad to see that this discussion has already generated some agreement. And I think that you see why Paul is such a great advocate. He takes apart the problem, and I think he’s right to disaggregate the problem. It’s hard to talk about this as a one-size-fits-all solution. And I think there is a very active debate going on about the world where arbitration is really killing claims. Where nothing is left as a result of an enforceable arbitration clause. And I think Paul is right. That is increasingly difficult to defend.

 

At the same time, this often devolves into a debate about the civil justice system more broadly and what people see as the pathologies of class actions. And, again, just to plug Brian Fitzpatrick’s fantastic book, he mentions some of this –

 

Hon. Joan Larson:  -- Are you getting a fee for that?

 

[Laughter]

 

Mr. Deepak Gupta:  He’s not giving me a commission. But it’s just come out, and I think this is the audience for that book. He talks about some of what Paul is talking about -- about how you can -- at the back end, there are ways to tweak the way the class action device, or the way the civil justice system works rather than throwing the baby out with the bath water, which is, I think, what the Court has effectively done with some of these cases.

 

It’s interesting, though. Our positions seem to line up based on the cases that we’ve handled in the Supreme Court.

 

[Laughter]

 

I also argued the AT&T v. Conception case, and I have a little bit of a different view. I mean, I think Paul is right that Andy and his team did a fantastic job in designing an arbitration clause that looked like the perfect arbitration clause. But I also think he’s right that that was principally for the Supreme Court’s consumption. The dialogue, when you’re writing these clauses, is not between the corporation and the worker or the consumer. The dialogue is between the corporation writing the clauses and the courts that are going to decide whether those clauses are enforceable.

 

And the Supreme Court in the Conception case made much of the features of the clause in the facts section, but the reasoning of the decision sweeps much more broadly than that. What it then provides -- gives the green light for corporations to do is to design clauses that are much worse and are nevertheless rendered enforceable. And, so, it’s the shadiest industries, industries like the payday lending industry, that have the highest prevalence of arbitration clauses where they have business models that are illegal, and they depend on exiting the civil justice system in order to make this happen.

 

So we have the cases where it’s -- arbitration is being used to exit the civil justice system, and there’s no claim at all. Then there’s also a conversation about individual claims where people really do have the wherewithal to go to court for those individual claims, and they want to. I think what the #MeToo movement has teed up is a really serious conversation that we should all ask ourselves, do we really think it is okay that somebody who has been a victim of sexual assault, for example, cannot bring that claim to a public proceeding in court and exercise all of the rights that people I think take for granted?

 

I think it’s a very difficult position to defend – the idea that those people should not even have the choice to go to court for those claims. I think we’re going to see the politics of that shifting. I think that that’s an area where people on the left and the right can agree, and I think we’re going to see legislation about that.

 

I hope I’m not going too far over my time. I just want to give one anecdote of a case that I learned about recently. A woman, her name is Lily—she doesn’t use the last name to protect her identity—went to a massage parlor. It’s a chain of massage parlors called Massage Envy, and she was sexually assaulted there. And she did all the things that you are supposed to do to try to address the problem. She reported it to the police. She tried to exercise her rights. And to add insult to injury, the company was still charging her for her membership to this company. It’s like a gym membership. So she tried to cancel, and she couldn’t cancel. And we’ve all had that experience. Sometimes it’s really hard to cancel services. They told her the only way to cancel was download the app to your phone, and you can cancel the membership. So she did that, and when she downloaded the app and cancelled, which she was able to do, she also unknowingly agreed to a forced arbitration clause that precluded her from going to court to vindicate her claim arising out of that sexual assault.

 

Now, I think I can tell that story to this room and to the American Constitution Society and to a lot of rooms, and I heard people -- you react viscerally to that. I think that is why, I think, I’m optimistic that there’s going to be change as a result of the #MeToo movement, at least in this area.

 

Hon. Joan Larsen:  Okay. Any further response from our panelists to each other?

 

Andrew J. Pinkus:  I mean, I could talk about this all day but… [Laughter]

 

Hon. Joan Larsen:  One question that I had for you, Andy, is tying it back to what we see coming out of the law schools, and we see the law schools demanding that the law firms, if they’re going to recruit on campus, that they not engage in mandatory arbitration either for summer associates or for associates more broadly. What you say suggests that those concerns, which I think arise a lot out of the confidentiality concerns, are really illusory because courts will strike them down anyway. If that’s true, I guess I’m wondering why are the students agitating? So, it could be they’re misinformed. It could be their professors are telling them arbitration is just bad in general, so you should just be mad about it. Or it could be that there’s something real to the claim that they’re trying to vindicate. I’d like to hear what your thoughts are about that.

 

Andrew J. Pinkus:  Well, I think there certainly is a belief out there, as Paul said, that all of these things go together, right? Gag rule, arbitration, gag rules, rigged decision makers, waivers of some elements of your claim. I think there’s a belief that somehow arbitration authorizes all those things. The law is to the contrary, but I think it has become a sort of a rallying cry. And that’s the nature of the movement. I do think what’s interesting about that development is it sort of shows the power of technology today to allow people to band together, and that’s why I actually don’t think this is not just the general counsel of the company, and his or her lawyer deciding what the arbitration clause is.

 

I mean, AT&T did this for a number of reasons, but it also wanted to have a clause that it could go to its customers and say, “Here’s a clause that we’ve generated that we think is a very fair deal.” And I think in today’s marketplace, that’s a really important thing for companies to talk about. So, when I talk to general counsels or other people at companies about drafting an arbitration clause, I say to them, “You know, this will become an issue of public debate, and if you want to sort of have the clause that has the most minimal things that you can possibly get away with and still have your clause enforceable under the FAA, you have to recognize that you may pay a public price for this, the same way companies do about all kinds of other clauses in their form contracts.”

 

I think, to some extent, law firms are the entities that least want to pick a fight with law students, so I think once it happened it was sort of like let’s get rid of this clause and not have a discussion that puts us on the defense of then defending arbitration. But I do think there is a discussion to be had on that. But I also think to Deepak’s point, a smart company will think hard about its arbitration clause because it just doesn’t have to defend it in court, it has to defend it in the court of public opinion, and I think that’s something really important for lawyers to think about.

 

Hon. Joan Larsen:  Deepak?

 

Mr. Deepak Gupta:  So, I want to stick up for the students that are -- I admire these students. It’s a group of students that started at Harvard Law School. It’s now spread to law schools across the country. I don’t think they’re misinformed. I think those of you who practice know that the   background assumption that is enforced every day is that arbitral proceedings are confidential. Arbitration is a vehicle for, among other things, creating secrecy around claims of sexual harassment, sexual assault, and all sorts of other claims. That is one of the problems. It’s not the only problem, but it’s one of the problems with forced arbitration, and the #MeToo movement has made that abundantly clear, that these clauses have been used.

 

Paul’s right. We have to be careful about being clear about the issues. There are separate non-disclosure agreements that can be enforced, and that’s a separate conversation, but there’s also the issue of arbitral confidentiality. And so, in a way, arbitral confidentiality is worse because it’s not like a non-disclosure agreement that’s negotiated where somebody has some leverage because they could go to court, and they settle, and they agree not to disclose the information. It’s like a non-disclosure agreement at the beginning of the case which protects all of the proceedings. And I don’t have the same confidence that Andy does that courts are willy-nilly going to strike these things down as unconscionable. That, of course, requires somebody to hire a lawyer and mount a challenge like that.

 

So I think that the students are right to point out that this is a problem, and they realize that actually the law firms are very sensitive. They need the supply of these students from elite law schools, so these students actually have some power. They assembled information about which of the firms had these clauses and pressured them to drop the clauses. Now there are just some holdouts, but most of the large law firms are dropping these clauses.

 

A similar thing happened with Google engineers. You might have seen that there was a scandal at Google involving a high-level executive who had committed sexual assaults, and Google workers around the world walked out in a coordinated walkout, and their chief demand was that Google drop forced arbitration clauses in their contracts. And the tech companies have done this. They’ve now started dropping these clauses. So you have these two groups of elite workers, students at the top law schools and engineers at places like Google, who are able to agitate to get these clauses dropped. That’s not going to work if you are working at a poultry factory in Iowa. So it highlights the problem, and it shows that well-informed people with a lot of market power can make a change here. But I don’t think it’s a solution to a substitute for a policy solution.

 

Hon. Joan Larsen:  Anything from this side of the table?

 

Hon. Paul D. Clement:  No. I guess I would just add, though, I do think some of the examples with Google and with the students -- I mean, it does show sort of the dangers about sort of not disaggregating all of the issues. We’ve talked about sort of non-disclosure and confidentially versus the substance of this.

 

The other thing is there’s a long period of time in the Supreme Court arbitration jurisprudence where you generally enforced arbitration agreements, but you didn’t apply them to federal statutes. Then there was a time where you sort of applied them to maybe a couple of commercial statutes, but you wouldn’t apply them -- or at least there was an argument that a lot of circuits had brought -- that you wouldn’t apply them to federal anti-discrimination statutes. By the time it was all said and done, the Supreme Court made clear, no, there’s no exception for federal statutes, and unless the federal statute is expressly clear, it basically says this trumps the FAA. Then you don’t have an exception for even federal anti-discrimination statutes.

 

And, in a weird way, I think some of the pressure that’s being brought to bear is almost a product of the fact that the Supreme Court went all the way to say that yes, the pro-arbitration policy applies even in the context of federal anti-discrimination statutes. And I sort of wonder if it might be prudent for some employers to proactively sort of overrule Gilmer and whatever the other couple of cases that said that the FAA applies to anti-discrimination statutes because I think if you took the anti-discrimination statutes essentially off the table and said, “No, they’re different.” Everybody’s got their own hierarchy of federal statutes both from what they think are important to enforce but, also, from a PR perspective, would be problematic to say aren’t going to be enforced in court. But I do think this debate would be a little bit different if you basically said, “No, we carve out Title VII from our arbitration agreements because, just as a policy matter, we don’t -- the Supreme Court says we can have them extend that far, but we don’t want to.” I think that would definitely change the policy debate. That’s my sense, anyways.

 

Hon. Joan Larsen:  Professor Colvin, anything?

 

Prof. Alexander J. S. Colvin:  I’d agree with that last point, but I think it would change the debate. There is something different about Title VII, the sexual harassment cases. I think one of the interesting political moments a few years ago was the Franken Amendment to the Defense Appropriations Bill that barred defense contractors from requiring arbitration, from enforcing arbitration clauses in sexual harassment, sexual assault, discrimination cases. It didn’t extend further, but it actually got through Congress. It got support from, I believe, all female Republican senators -- support of that bill. So it was interesting to see resiliency up with a kind of #MeToo related claims, which I do think have a different saliency than your routine wage and hour claim.

 

Hon. Joan Larsen:  All right. Well, we have about 15 minutes left, and I want to make sure that we have a little bit of time for questions from the audience. So I don’t want to cut off our panel discussion, but it’s always good to hear from you, and I know you probably have some questions for our panelists. So if there are questions from the audience, if you could go to a microphone, that is helpful. Although, I don’t know if people are moving to a microphone or just leaving the room. [Laughter] Okay. They’re like, oh good, I can get up now and stretch my legs.

 

Questioner 1: This is probably directed at Professor Colvin. As we discussed beforehand, arbitration has been a central part of every collective bargaining agreement since when: decades and decades and decades and has never brought up this negative reaction to arbitration. It seems to have worked within the union management context. Professor Colvin or others, where does the union arbitration processes play into this discussion, if at all?

 

Pro. Alexander J. S. Colvin:  Yeah, I think it’s a great point because it does show that it’s not arbitration per se that is the concern here. The labor arbitration is remarkably stable, and over a period of time when unionizations declined, the mutual collective bargaining has shifted, that the labor arbitration system essentially has stayed the same for over a half century. It’s almost 100 percent of agreements include labor arbitration. It’s robust thing. Why is that? I mean, I think it’s a couple of characteristics, right? One, it’s genuinely bilaterally negotiated and bilaterally administered. I think that’s fundamental to why it’s successful. I think the fact the alternative is industrial conflict, right? The alternative, if you think back to the days instead of Britain in the ‘60s or ‘70s of kind of wildcat strikes all the time, right? That’s something that has been a powerful argument for arbitration.

 

I think it’s also the case that it’s because it’s part of an integrated system in the workplace grievance procedures. And then, you get to arbitration. So it is fundamentally kind of a different system design. But I mean, it shows that you can design systems involving arbitration that can be effective in the workplace. All of the concerns about forced arbitration, like that doesn’t mean the litigation system is a good system for routine employment cases, right? I think it’s an excellent system for certain kinds of civil rights cases, but for routine employment cases we do have a fundamental problem that the amount in dispute is often not enough for a really complex system. What do you do with a person who lost $10 or $20,000, right? I mean, I think that is a valid and public policy concern.

 

Mr. Deepak Gupta:  I think this just quickly reinforces the first point that I made which is the debate is not about whether arbitration in the abstract can be useful; can be a good thing. Of course, it can be if it’s chosen by the parties and really negotiated as it is in the labor context, or it is when two oil companies decide they want to resolve their disputes through arbitration rather than litigation. So I think it’s just a completely different beast from a situation where nobody has any real choice, and they’re being hoisted out of the civil justice system against their will and without their knowledge.

 

Hon. Joan Larsen:  Okay. Another question.

 

Mike Daugherty:  Hi. I’m Mike Daugherty from Atlanta. And forgive me if I missed this entire point while I was out answering a call. Last year there was a fantastic panel about how few cases get to court, and the general public doesn’t understand this. And what they really are driven for is to be heard by a jury of their peers. So when you are starting a job and wanting money to survive, and somehow sort of don’t say anything, and it’s a Google or a big law firm, and so, you’re supposed to sign that to get the job, that’s not really the right time for the battle for arbitration. And then you’re thrust in later. And I think that’s a pro-active vigilante-like, “No, I want to be in front of my peers. And I don’t know the law, and I’ve never had this experience.” So that’s where I think the problem is. I don’t know if you addressed that or not, but I think that is sort of the core of the American public wants to be heard by their peers, not ground down by some sort of mountain climb of litigation process, whether it’s in court or arbitration. The question is what do you think about that? [Laughter].

 

Andrew J. Pinkus:  I mean, as I said—this may have been when you were on the phone—you know, I think part of the problem --

 

Mike Daugherty:  -- [Laughter]. It probably was. It must be repeated.

 

Andrew J. Pinkus:  -- Part of a problem that we have here is that we don’t have a great litigation system that works for the kinds of people that you’re talking about and, so, one question is is there a way to do something better because the civil litigation system is a very, very flawed beast, whether it’s for the individual claims that really never get in the door, or even for the claims that get in the door that are mostly not -- if they’re big, as Paul said, they’re not really going to be resolved by anybody looking at them on the merits, let alone a jury. You don’t even get a judge looking at them on the merits in any way, and that’s just a very significant problem with the way the system works. And we could have a much longer panel on whether there would be ways to change that system to make it more merits based, but that requires lawyers. We’ve constructed a system that if you had infinite money and infinite time, we’d get so many facts on the table, and you probably would get to a very reasonable result. The problem is no one has infinite money and infinite time --

 

Mike Daugherty:  -- Or attention.

 

Andrew J. Pinkus: -- And judges and lawyers who construct the system have been very unwilling to tolerate shortcuts that, yeah, sure, in some case might not yield the sort of maximally, rational result, but in the range of cases might, and that’s a really different discussion about how to structure this dispute resolution.

 

Mike Daugherty:  Probably a great thing for next year. Thank you. Sorry if I made you repeat yourself, but to me it’s like vigilante employee pitchforks. Thank you.

 

Pepper Crutcher:  Pepper Crutcher. Balch & Bingham. I’ve been a management and employment lawyer for almost 40 years. And in my experience the only way, if you’re an employee who’s got a claim in arbitration, you don’t get paid is if you don’t get paid because you lost after a hearing on the merits. The number I expected to hear you say you didn’t say which is in what percentage of arbitration cases do you get a hearing on their merits?

 

Prof. Alexander J. S. Colvin:  So the settlement rate, right? I mean, that kind of filtering out is about 70 percent in litigation and arbitration, right? So both cases I think, like Pinkus said, you’re mostly in settlement mode in both those, but obviously you’re settling in the shadow of the hearing, whether it’s litigation or arbitration, right? We know that rational sums in the shadow of hearings.

 

In terms of -- I think one thing you’re alluding to is the question about the summary judgment impact, right, which traditionally has been sort of one of the differences is the idea that arbitration you’ll get to a merit hearing, whereas you’ll get the summary judgment hearing. You’ll get summary judgment, but not to a merit hearing in litigation. It’s certainly the case that there’s more summary judgment in litigation than arbitration, though the gap is narrowing as summary judgments increased.

 

What I looked at it five years ago it was half. I’m assuming it’s greater now because I had previously looked, and it was like 20 percent and then it was 50 percent. I assume it’s higher than 15 percent now if the trajectory continues on.

 

The other thing I think that complicates things a little bit is that summary judgment right now is the crucial thing affecting on the settlement process, right? We’ve got pretty good evidence which may be sort of an obvious point that settlement behavior changes after the summary judgment. So, if you make a summary judgment and lose summary judgment, that doesn’t mean the case goes to trial, right? It usually means that the case is being settled in more favorable terms to the plaintiff, right? So, even though in litigation, there’s a complex interaction between the levels going on.

 

Pepper Crutcher:  So we just don’t know the numbers. If it’s 1 or 2 cases out of a 100 in court that get tried, we don’t know whether it’s 5 or 10 or 15 in arbitration that get tried?

 

Prof. Alexander J. S. Colvin:  No. So some sort of hearing is about 20 percent of the cases in arbitration. So it’s about are 70 percent settled, and 10 percent withdrawn or dismissed, usually non-payment of fees and, then, another 20 percent are a hearing. Of those, that’s a mixture of full hearings versus some are summary judgments in arbitration too.

 

Pepper Crutcher:  Thank you.

 

Andrew J. Pinkus:  But there are very few in arbitration. There’s almost no motion to dismiss practice, so that’s a large chunk off of court cases that are thrown out usually because the claimant is losing that you don’t have in arbitration. So that’s a large number of cases that move forward into the system and contribute to the fact that there is more sort of merits-based decision making.

 

And the other thing I would just say about arbitration is, especially in this era where you have this fee burden on employers, one of the pieces of evidence that we put in in Concepcion, for example, was that because of the fee promise made by AT&T about a billion dollars a year in claim payments to claimants happened before anybody filed an arbitration. And so with companies that have -- and most clauses do have a “tell us your claim so we can mediate before you go to arbitration”, a very large number of claims are disposed of, then, because the company doesn’t want to then have to fork over the arbitration fees.

 

Prof. Alexander J. S. Colvin:  What we haven’t gotten to yet, which is the Wild West currently of a class claims where the response -- the rational response of the plaintiff side class action lawyer, is okay, I’m going to file a thousand individual claims and those fees, you’re going to pay the thousands things. And that’s a total mess right now.

 

Andrew J. Pinkus:  Yeah. It’s a mess, but to some extent, this sort of goes with Paul’s “if you’re going to have an arbitration system there may be pluses and there may be minuses.”

 

Mr. Deepak Gupta:  The problem is it’s really hard to just make claims go away. They’re going to find a way to pop up somehow.

 

Hon. Joan Larsen:  All right, this is probably our last question.

 

Matt Hank:  It will be a brief one. My name’s Matt Hank. I defend employers at Littler Mendelson. My question is directed to Mr. Gupta. Sir, you directed most of your fire toward mandatory arbitration agreements. Would the existence of an opt-out provision assuage your concerns and, if not, would you be kind enough to elaborate why? Thank you.

 

Mr. Deepak Gupta:  Sure. I think it would depend a lot on the design. If what you’re saying is that -- and you sometimes see this, particularly you saw clauses that were drafted in order to try to address procedural unconscionability arguments where the consumer, for example -- I haven’t seen this as much in the employment context, but the consumer would have a certain number of days to opt out of the arbitration clause at the beginning after the contract is signed. And what you would expect to find is what you find which is virtually nobody does that. And that’s because at the time someone’s entering into a contract or they’re taking a job, dispute resolution is not really salient to them. They’re thinking about how much does this thing cost? How much am I going to get paid for my job? What are the terms of my job? They’re not thinking about what is going to happen if I’m sexually harassed or discriminated against or whatever.

 

And so I don’t think that’s really an answer. But I do think if what you mean is you could have a system where people can opt in at the time of the dispute or choose to go to court, I’m perfectly fine with that. That’s the point I made at the very outset which is I don’t think there’s really a real policy debate about whether arbitration should be available as an option. It can be a great option in many cases. It’s just that people should have the choice.

 

Andrew J. Pinkus:  Yeah. And from the companies’ perspective, obviously, if part of the sort of rationale of taking on the burden of paying fees—and there will be more claims. They’re certainly opening the door to more claims—what you’re doing is trying to take the litigation costs, the defense costs you’d incur in the court system, and use that as the way you’re going to pay for the additional burdens you have in arbitration. So if the answer is you have both, most companies that I know would say if you’re going to tell me that I have to allow a choice, I’m not going to have an arbitration system because that sort of means I’m going to pay twice. So that’s -- unfortunately, the reality is it’s a sort of a false choice.

 

Hon. Joan Larsen:  So what I hear overall is that everyone is in agreement that we need some kind of cheaper, faster, easier civil dispute resolution system, and none of us in this room have quite been able to come up with it yet. But, hopefully, the members of the Labor and Employment group here and others on the panel can put their heads together [and] come up with that utopian solution. We’ve had a lot of really great discussion here today. I thank all of our panelists for being here, and I thank the audience for your questions and your attention. And I think with that we are adjourned.

 

 

1:45 p.m. - 3:15 p.m.
Originalism and Changes in Technology

2019 National Lawyers Convention

Topics: Intellectual Property • First Amendment • Fourth Amendment • Security & Privacy • Free Speech & Election Law
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 14, 2019, the Federalist Society's Intellectual Property Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "Originalism and Changes in Technology".

Police track criminal suspects using cell phone data and GPS devices attached to their cars. Social media and other electronic publishing platforms allow every-day citizens to function as the “press.” VCRs and DVRs allow unauthorized recording of copyrighted television programs, while micro-antennas and internet video create an opportunity to re-broadcast these programs. Advances in modern software and biotech/medical methods combined with sometimes abusive enforcement of tech patents (many of which were inadequately examined in the late '90s when advancements in internet and computer technology outpaced the USPTO’s ability to perform robust examinations) has led courts to seek solutions by way of new interpretation of Section 101 to create further subject matter restrictions.   

How does originalism handle changes in technology? Do adherents consistently apply its principles across areas of law that range from First and Fourth Amendment to intellectual property cases? Do the narrow spaces between originalism and textualism become larger gaps when it comes to addressing new technologies? How do we judge the performance of originalism against other judicial philosophies in cases involving technological change?

This distinguished panel will look at the history of how originalism has dealt with technology and also look toward a future of advanced robotics, driverless cars, and massive personal data collection to decide whether originalism as it stands is the best tool to decide the coming cases in criminal, tort liability, free speech, intellectual property, and other legal areas, or whether even judges with originalist tendencies should start to look toward other philosophies where technological challenges arise.

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Mr. Anthony J. Dick, Associate, Jones Day
  • Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
  • Prof. Richard A. Epstein, Director, Classical Liberal Institute and Laurence A. Tisch Professor Emeritus of Law, New York University School of Law; James Parker Hall Distinguished Service Professor of Law and Senior Lecturer, University of Chicago; and Peter and Kirstin Bedford Senior Fellow, Hoover Institution
  • Prof. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
  • Moderator: Hon. Ryan T. Holte, United States Court of Federal Claims
  • Introduction: Prof. Mark F. Schultz, Professor of Law, Southern Illinois University School of Law

Speakers

Event Transcript

Mark Schultz:  Thank you for coming. I’m here to start the proceedings, briefly. I’m Mark Schultz. I am chair of the Intellectual Property Practice Group of The Federalist Society. I want to do two things here. I want to tell you that this panel is sponsored by the Intellectual Property Practice Group. It still surprises us from year to year that some of you are unfamiliar with the work of the practice groups, so that’s one of my goals is to introduce you to that and encourage you to join a practice group or several of your interest. Not only do we put on these convention panels, but we also put on the teleforums, which I’m sure you’ve received many emails about. We publish articles and do a number of other activities that I think our membership finds very beneficial and interesting. So I encourage you to join, and if you’re particularly interested in the Intellectual Property Practice Group—we of course work on IP issues as well as related technology issues—please do contact me or The Federalist Society.

 

      Now, I’d like to introduce you to our moderator. It’s my distinct pleasure to introduce you to Judge Ryan Holte. Judge Ryan Holte is a judge on the U.S. Court of Federal Claims. He joined the bench this summer at the end of July. Prior to that Judge Holte has been my friend for many years. He has been an inventor, an entrepreneur, a patent prosecutor, an IP litigator, as well as an FTC attorney before he joined academia where he was my colleague at Southern Illinois University and then the University of Akron, School of Law. Judge Holte will moderate our panel, and I think we have a terrific panel, so thank you. Judge Holte.

 

Hon. Ryan T. Holte:  Well, thank you, Professor Schultz, and thank you, everyone, for coming. It’s my job as moderator to keep things moving on time and to focus the discussion on our title which is “Originalism and Changes in Technology.” I’ll say at the onset that I’ve received a number of text messages from friends in the last couple days asking, “Well, what is this panel going to be on? Or how are you going to tame Professor Epstein into only speaking for eight minutes on this at the onset.” Wish me luck, and I’m not sure where this will go.

 

[Laughter]

 

Prof. Richard Epstein:  I’m taking ten.

 

Hon. Ryan T. Holte:  I have a team of law clerks at the front, though, with signs that say, “Stop” ready to go. I’ll make the introductions brief and then we’ll move right in. In order from your right to left, and then we’ll move into open discussion and hopefully have plenty of time for questions at the end. On my immediate right Professor Richard Epstein is the director of The Classical Liberal Institute and Laurence Tish Professor Emeritus of Law at NYU School of Law; also the James Parker Hall Distinguished Service Professor of Law, and Senior Lecturer at the University of Chicago School of Law; and Peter and Kirsten Bedford Senior Fellow at Stanford’s Hoover Institution. Farther down the line, the Honorable Professor F. Scott Kieff, another bow tie person. I like the majority of bow ties on the panel for sure.

 

 

Prof. Richard Epstein:  Oh, my god.

 

Hon. Ryan T. Holte:  The Fred C. Stevenson Research Professor at the George Washington School of Law; and the Founder of the consulting firm, Kieff Strategies, LLC; was previous to his position at George Washington, Commissioner of the United States International Trade Commission from 2013 to 2017.  On the other side, also in a bow tie, Professor John Duffy, the Samuel H. McCoy Professor of Law at the University of Virginia School of Law. Professor Duffy has been identified as one of the 25 most influential people in the nation by The American Lawyer and one of the 50 most influential people in the world by the UK publication Managing Intellectual Property. A former clerk to Judge Stephen Williams on the D.C. Circuit and Justice Scalia on the U.S. Supreme Court.

 

      And finally, at the end, not in a bow tie, Anthony Dick is the chairman of the Board of the Foundation for Individual Rights in Education, also known as the acronym FIRE; and an attorney at Jones Day’s D.C. office in the issues and appeals group. His practice focuses on constitutional and appellate litigation before the U.S. Courts of Appeals and the Supreme Court. His written articles have appeared in The Wall Street Journal, The Washington Post, National Review, SCOTUS Blog and the Washington Times. Anthony clerked for Judge Griffith on the D.C. Circuit and Justice Alito on the U.S. Supreme Court. We’ll turn things over to Professor Epstein.

 

Prof. Richard Epstein:  For his 30-minute peroration. First of all, I’d like to make a correction of the record. I am an Emeritus Professor at the University of Chicago and an active professor at the NY University. You managed to get it backwards, which I’m sure is an intellectual property violation of uncertain consequences.

 

[Laughter]

 

      But that having been said, my job is actually to do the originalism number with respect to the Constitution and not to spend our time, so much at least, on the digital age. What I’m going to do is basically go through the clause word by word, phrase by phrase and try to tell you what it is that you can learn from this and what it is that you cannot.

 

      Originalism is a general philosophical position. I understand the term as follows. You can start at any random point and you could think that you could go 360 degrees in any particular direction. What a constitutional provision does is it narrows the arc, and the great debate is just how much does it eliminate? I think actually with the Intellectual Property Clause it eliminates a fair bit of things, and I’m going to tell you where I think it’s clear and where there are ambiguities.

 

We start off with, “…promote the Progress of Science and the useful Arts.” That sounds perfectly benign. There’s one important point that I think has to be remembered about this. The practice of issuing patents when you were in England, was to issue them, not because you were promoting science or the useful arts, whatever the phrase means. It was designed to secure revenue to the Crown by creating import monopolies with respect to certain kinds of goods. And putting this particular phrase in the Constitution means that that particular practice is not something that can be allowed. The ambiguity that remains is, exactly what do we mean by the phrase “useful Arts?” Somebody could say it only deals with copyrights having to do with technical procedures for making blueprint drawings and the like. I think, in effect, useful Arts would, alas, even cover things like literature and so forth. That becomes an interpretive point. If you start going through sort of the incentive arguments, which I think are behind all of this, it would be very hard to want to include those kinds of works outside the scope of the patent protection, so you would start to bring them in. That’s the first clause.

 

      Then we “… [secure] for limited Times”. Well, it’s an extremely important phrase that we do that because the central challenge with respect to intellectual property is “Why is intellectual property in some sense different from other forms of property, including intellectual property like trademarks and tradenames and so forth?” And the basic argument is that this kind of stuff should never be given permanent inclusion because you want the incentive to create it, but unlike physical property, could be used by A) without compromising the ability of B) to use, this sort of thing. What the clause does, is not to specify exactly what the term ought to be, but to make it very clear to people that you understand the nature of this trade-off. And so that the “limited Times” has to be there.

 

      Other than question that is ambiguous what’s left of that is just how long is it going to be? I think generally speaking, if you made the term so long that it embraced the entire useful life of the particular patent or copyright, you would be out-of-sync with respect to the Constitution, so that pushes you to shorter periods. I think the case which tested this is the one about the Copyright Term Extension Act where I thought they want absolutely overboard making limited in effect de facto unlimited with respect to what was going on. That’s the second thing.

 

      Then it says it gives the rights to authors and inventors. Well, we don’t have the definition of either of these two terms, but it’s perfectly clear [what] it’s designed to do, is to say that this right is individual to the people who start to create these things. The important thing to understand is what it excludes, and in this particular case it would exclude modern claims with respect to the protection of various kinds of folklores and folk remedies that don’t have themselves discrete authors. Those things would then essentially be understood as having been already being put into the public domain. I think when you start looking at the situation here, what you come up with is the conclusion that in dealing with this thing, those kinds of claims are necessarily to be rejected leaving open the question of how you deal, for example, with such complicated questions as joint authorship or joint invention or particular kinds of advice.

 

      The next phrase that you have in the Constitution is the phrase, “the exclusive Right.” It turns out this is actually an extremely important phrase in terms of the way in which we want to construct and understand the clause. Many modernists, when they start to think about the patent and copyright situation, would prefer to put in the place of the words “exclusive Right” the word monopoly. It turns out that you get a very different sense of proportion if in fact you change the nature of the term in question. A monopoly is something which you have to be extremely worried about because there are no close substitutes for it. And you’re afraid that the combination of price increases and diminished utility will result in a loss of social welfare. You put the word “exclusive Right” in there, it doesn’t carry with it that kind of negative connotation.

 

      It also represents a different situation. It turns out the only kind of “monopoly” you’ll have with an intellectual property is the same kind of monopoly that you have over 800 North Michigan Avenue, Apartment 3502. It turns out that I have an exclusive right to the place wherein I live, but there are a lot of competitive units which have roughly the same kinds of characteristics. So the point of creating a system of exclusive rights is not to promote a monopoly. The purpose is, essentially, to compose a competition system that you want to create out of this situation. And you do so by saying that there are lots of people who get lots of exclusive rights over particular forms of property.

 

      Then the next cause that you’re starting to always worry about when you start to deal with this is exactly when you put this thing in to question just how exclusive it’s going to be. And the answer is I think pretty much you want it to be quite exclusive with respect to this, and you don’t want this thing to be a mistake. The other thing, of course, that’s true about this is, the only thing that you get out of the Copyright and Patent Clause is exclusivity. The actual substance of content of the right, in terms of your ability to produce and to alienate it, is something which under this definition would be left to state law.

 

      Then the question with respect to their respective inventions and writings; I think it’s extremely important to do this because this introduces a kind of dynamic element associated with respect to the way in which the clause is put together. There is no specification of what a writing looks like, no specification of what an invention looks like, and so what happens is you can’t go around and say, “Well, these dumb originalists didn’t understand that nanotechnology is going to be something that you have to worry about and they didn’t provide for that.” The definition of these things is completely fluid and totally open. And so to give you an illustration, Congress has the power to regulate commerce amongst the several states and that’s surely covers stage coaches and wagons, but when you start getting telephones and start getting airplanes, you start getting railroads and so forth, these things are subject to exactly the same rules. And so if you’ve got an airplane which does a local journey it should be out from underneath the federal power. If it goes across state lines, it should be in it.

 

The most important thing to understand about this is given that the term itself has a certain dynamic component associated with its particular operation, there’s no particular reason to upgrade it and so forth. When you start looking at little inventions and so forth, what you realize that in miniature they’re like big inventions. They’ve got pulleys. They’ve got switches. They’ve got things that come together and open up, and so, okay, you’re doing this at the molecular level not at the large level, but exactly the same kinds of principals should apply. The problem that you have associated with durability of a constitutional provision on this area is, I think, much less than other people might want to say, and you could work on block change, digital technologies, anything that I don’t understand, and I can figure out how to work it within the framework of a patent system which is built for the ages.

 

      Another point which I think is clear is we want this to be a uniform system nationwide, so we don’t have this done at the state level where the protections are too limited. Now, what is it that the clauses don’t cover? Here, this is the general problem associated with originalism. It turns out there’s no way that you can avoid it, but you just have to really understand it. What are the kinds of issues you worry about? The first question is how far do the things go to cover things that may not be quite inventions and may not be quite writings and so forth? There’s always a question of prenumber, so you get cases like Benito Boats and cases having to do with formats, and so forth. Do these things come under patent law? Do you protect them if they don’t come under that patent law?

 

You’re not going to be able to solve that by this particular test. You’re going to have to have a combination of sensible adjudication and reasonable statutes to deal with it. The question about whether or not there’s a justification for invalidating patents or copyrights, and so forth, essentially, what you’re doing is you’ve given a grant of power. You’re not given this code of civil or criminal procedure to let you know what to do, what justifies an infringement, what does not justify an infringement. That’s true of everything that we have in the Bill of Rights. We have a protection of freedom of speech. We have no particular guide from the text itself, that’s thoroughly reliable to say whether or not clear and present danger of a particular harm that the government has the right to prevent is or is not a justification. You have to walk that out normatively. I think there are ways to do it, but you must, in fact, do that.

 

      Then it turns out that you don’t handle the remedial question, Are we believers in the eBay system where the presumptions against injunctions or for injunctions, and so forth? None of that comes within the text. Now, how is it they’re trying to fill these gaps, I can’t see this clock to know how much more time I have, but I’m going to take 30 seconds, a minute, whatever it is, to sort of do this. What happens is the only way in which you can do this is refer this back to some kind of larger intellectual framework. And I think the framework that we have to understand is driving the entire Intellectual Property Clause is the same thing that drives the rest of the Constitution. This is not a libertarian doctrine, so you can’t say we don’t want patents because they interfere with the people to do whatever they want with their own property.

 

It turns out that it’s a classical liberal situation in which you are entitled to restrict some kinds of freedoms if in exchange you give people writ large a great capacity to do things. And so if the patent system is uniformly applied and largely positive, some is perfectly okay. What you then do within that tradition is import the various rules that deal with remedies, justifications, and so forth that you would apply generally, and then see how it works with the patent system. And if you do that, it’s exactly what you see happening. How do we deal with laches? How do we deal with bad faith?  How do we deal with contributory infringement and so forth? There are ways to handle those things.

 

I think that what the lesson you want to learn from this about originalism, you can pack good ideas in relatively small spaces. And that if you actually parse the words and go through each of them, and figure out what they’re designed to include and what they’re designed to exclude, it doesn’t solve all problems, that would be silly, but it does limit the range of inquiry to ways that make adjudication and legislation in future periods both sensible and manageable. Thank you. Am I on time?

 

Hon. Ryan T. Holte:  A little bit over, but perfect.

 

[Applause]

 

      Thank you, Professor Epstein. And now Professor Kieff.

 

Prof. F. Scott Kieff:  Well, very nice to be with everybody; so many friends. Thank you, Judge Holte. Thank you, Professor Epstein, and thank you to my future colleague commentators as well, and to, of course, all of you. Our panel on originalism and technology was advertised as covering more than just intellectual property. As somebody whose major contribution to healthcare is curing insomnia by writing books on patent law, I can’t avoid some discussion of patents, but let me offer a few more ideas as well. As we think about originalism and as we think about the Founders and we think about new technologies, it’s easy to construct two images in our head that don’t go well together. One is the internet and the other is old white men in wigs. They just don’t appear to be workable in the same system. If you think about it that way, and stop, I guess, they’re not.

 

If you think about it differently maybe they are and maybe they are really well. Here’s some reasons why. Some core themes associated with the Founders’ view of the Constitution and the system the Constitution would create and enable, are really, I think there are two core messages that we could focus on. One is meaning and the other is professionalism. Let me unpack those a little bit. Yes, many of us are lawyers and we fight over meaning, but I don’t think we or they thought all words have all meanings or no meanings. They made very deliberate choices when writing, and in those choices showed that they had different meanings for different words, different constructs, different components of our legal order.

 

Professionalism; sure, they were, in a sense, amateur farmers and amateur silversmiths, and amateur lawyers, but, gosh, they beat the largest standing army on the face of the planet at the time, and put together a document that looks pretty legal and managed to run a pretty significant country through all of that. I think there’s a lot of professionalism that flows from those very deliberate choices about meaning.

 

 

So let me give you some concrete examples in three areas of law: IP, trade, and security. Patents, as Richard was suggesting, the British system did have patents and our Framers framed against that backdrop, and our country started against that backdrop. There were some obvious similarities including the word patent, and there were some striking differences including not simply giving them out to friends or giving them out to raise money for the central government or giving them out in a way that was most likely to create monopoly effects, and most likely to create social anxiety and economic uncertainty, which is to say, willy-nilly. Willy-nilly or flexible discretion, there are a lot of ways to say it, the Founders and the original patent systems in the colonies and then in the country, were deliberately structured to do something very, very different than what the British system had often done that Charles Darwin [Dickens] wrote about, that lots of famous British writers wrote about including, of course, if you think about this great story, The Poor Man’s Tale of the Patent which includes reference to the old British patent office as the circumlocution office.

 

The idea being, of course, that there were lots of flexible discretion decisions being made and The Poor Man’s Tale of the Patent tells the story of going to the bureaucrat to ask for the exercise of that flexible discretion and being sent, in effect, to the next bureaucrat for the same flexible decision-making. The story concludes with being worn out patience and pocket. Not a system that’s going to foster investment, commercialization, and the delivery of new technologies to market.

 

So, here’s how people often phrase that today. They say, “Oh, my gosh. These poor old white men in wigs could never have anticipated these new technologies like the internet.” Patent law has a term of art in it. The term of art is anticipation. Our patent system did anticipate those new technologies by choosing to make one of the core requirements for patentability, no anticipation. Put differently, anticipated technologies are not patentable. Unanticipated technologies are. That’s why we want patents on them, is that they are new. That novelty question, or as patent lawyers call it, anticipation, that is not just a gist or “Hey. You know what I mean when I say it’s good.” That’s a concrete word with very specific meaning, chosen precisely because it gives less discretion, more certainty, and investment.  

 

      Let’s talk about trade. Hamilton, one of the Founders tried very hard, very unsuccessfully given the state of the art at the time, but very hard to make trade decisions on tariffs based on data. We’re still struggling with that, but Hamilton and Lincoln and others since, have tried to focus, tried to constrain that decision-making to be data driven.

 

Let me give you a final example about security, in view of the time, and point out some core differences anchored in originalism. Everybody remembers the fight over the warrant for the Apple iPhone key. And it’s worth noticing that that fight took place in a U.S. district court, exercising criminal law power, using what federal lawyers think of as Title 18 of the U.S. Code, criminal law.

 

Here’s the thing about Title 18, and they do you a favor on this one, they give it away in the name. Tucked into Title 18 is that number 18 which implies there are a whole bunch before, and by the way, some after. You see, because had the federal government wanted the key, it could have exercised a number of other of its statutory and constitutional powers including for example, the Takings Clause which does not say, “Don’t take.” It just says, “Please pay when you do.” Had we framed our discussion about whether to get access to that key, not merely as, is it good, is it bad, or is it a criminal requirement? We could have framed it in the context of any of these other different discussions, different meanings, deliberately chosen by these professionals who framed. I’ll leave it there. Professor Duffy.

 

Hon. Ryan T. Holte:  Professor Kieff. All right and now to somewhat move us out of the patent context, Professor Duffy.

 

Prof. John F. Duffy:  Thanks a lot. Strange again, that I’m moving you out of the patent context because I teach patent law and have a casebook in patent law, and I’ve spent a lot of intellectual time on that. I want to open with just a few remarks. First of all, I’ve been identified as influential in intellectual property, not more generally. So if you’re thinking, “Who is this?” If you know intellectual property, maybe you know me, but not otherwise.

 

One of the reasons I’m here, one of the reasons I’m interested in intellectual property is I did my undergraduate degree in physics and so I have a physics degree. I always was quite proud of that and got it from a reasonable institution. I realized, though, law is quite different. I think that was really driven home to me when was a young lawyer and got a call to interview with Justice Scalia for a clerkship, and I said, “Well, I’m going to read everything I can.” So I read just about everything that I could possibly read about Justice Scalia including his entire confirmation hearings, cover to cover. I found a little snippet in there. He said, “I don’t think law really needs to concern itself with technology. That’s really something that is completely separate, and I would never want a law clerk who’s technically trained.”

 

[Laughter]

 

Prof. John F. Duffy:  So needless to say, one thing I learned is I was not going to raise my technical degree in the interview, which I did not and that probably was a good idea. The other thing was, I thought of a lot about the interface between technology and law, and I think generally I agree with Justice Scalia, and I think Richard’s points are also similar to this, that a lot of times technology doesn’t affect the principles of law, and especially constitutional law. Yet, that point is not uncontroversial. So for example, if you look back at the Progressive Era and New Deal era, and the theorists of that era and say, “What did they talk about when they were building up and justifying the case for these new institutions of administrative agencies?”—another area that I teach.

 

They repeatedly rely on scientific change. So you’ll get people like an early theorist like Charles Frances Adams, Jr., a descendent of the Presidents Adams, and he talked about this wonderous new world were in because of the amazing scientific advance of the steam engine. We were just living in a different world than the Framers were and so, that was an explanation that was routinely invoked. He not only did that, Adolf Berle, who before he became a corporate law theorist was an administrative law theorist. James Landis, who was one of the most influential theorists of the early administrative state, one of the youngest deans of Harvard Law School ever, also talked about how we don’t need to follow Montesquieu’s triadic lines anymore because this is a different world. We have so many different inventions and different social innovations that the wisdom of the Framers is just really beside the point.

 

I think we see that not only in the past, but even in current days. There’s the book, and I won’t name the name, but an influential theorist of telecommunications law, who in 1997 published a book about telecommunications and change and argued against administrative agencies and in favor of abolishing the FCC in particular, but more generally against administrative agencies. Once again, why? Because of technological change. I’m at The Federalist Society, so if you want to argue for cutting back on administrative power, I’m all ears. But if you start talking about technological change I think you lose me. I don’t think that’s a solid argument. I don’t think it was a solid argument to build administrative agencies. I don’t think it’s such a solid argument to change administrative law. I think the structure of our government and the wisdom of the Framers doesn’t really change based on technology.

 

And so I’ll give you a concrete recent example. For example, at the Federal Circuit, which is the patent court that everybody knows, the recently held unconstitutional all the administrative patent judges citing an article I wrote some years ago entitled, Are Administrative Patent Judges Unconstitutional? Now I’m working on a follow up which is -- Congress actually passed the statute to remedy that problem, and now they’re working on a new one. They’re going to have a hearing on Tuesday. I think my new article has to be entitled, Are Administrative Patent Judges Unconstitutional Again?

 

[Laughter]

 

But I’ll tell you one thing that will not be in that article or in my congressional testimony. I’m not going to be talking about technological change. I don’t think it’s relevant. It’s an Appointments Clause, separation of powers issue, and I think that that’s really sideways. Even though people make these arguments that, “Oh. It’s a brave new world and everything is different.” That usually is a terrible argument, but it comes up in history, so know it when you see it, and know that it’s been run many times before and in general it’s a bad argument.

Then there are I think the middle tier where I think the technological change does change things, but usually on a fairly micro level. I think Richard talked a lot about this, and I think I agree with most of what you say --

 

Prof. Richard Epstein:  -- Reasonably enough.   

 

Prof. John F. Duffy:  It’s amazing. It’s amazing. There’s only one tweak I’d make to what you said. You said that the language the Framers chose was flexible. And I am always worried -- you used that word, and I actually --

 

Prof. Richard Epstein:  -- I didn’t use that word.

 

Prof. John F. Duffy:  I’m pretty sure you did, but we’ll check the transcript.

 

Prof. Richard Epstein:  Not intentionally.

 

Prof. John F. Duffy:  Well, if you didn’t use the word, then I misheard because I thought you said flexible and of course, I don’t like flexibility. I think the Constitution is not a yoga document. It doesn’t have flexibility built into it. I think that the language in the Intellectual Property Clause is broad, but that doesn’t mean it’s flexible. I think we agree, ultimately, on the outcome which is that the patent language is simply broad. A lot of things are constitutional. That means that the original meaning is fixed; it simply is very broad, that Congress can make a lot of things, whether they be inventions or writings, they can extend the Intellectual Property Clause to that.

 

I think a good example is the mid-nineteenth century change to add photographs into the copyright system, which was kind of a big step at the time. It seemed kind of big although I think in the grand scheme of things it’s a rather micro change in copyright law. The same property rights system was changed. I fact if you go back and read the history, it’s kind of interesting. The first district court decision that had this issue, the current existing copyright statute actually had among the things that could be protected, prints. And you might think, “Well, that’s photographs, right?” When I was a little kid my mother said, “I’m going to go down and get some prints of these photographs.” Right? And she meant she was going to get hard copies of the photographs. So saying that something is a print, you’d say, “Well, of course it covers photographs then.” But the judge said, “Well, print only means that you’ve got to have pressure. It’s got to be pressing down on the paper, so if it’s just using light, then there’s no pressure and therefore it’s outside the scope of print.” That didn’t age well. It got overruled by Congress very rapidly. Even today we think, “Boy. That’s not a really good definition of print.” So there are small changes like that, and we have to be careful not to read language too narrowly because lots of times both the Congress and the Framers chose relatively broad language.

 

The final thing I’ll say in my last minute is just -- I’ll just leave this for future questions is, is there anything where technological change does actually present us with some problem that seems actually quite new? There may be. I’m not totally convinced because I’m always a sceptic when people say there’s new things going on. But I think that the problem of data aggregation, of public available data aggregation is something that might be quite new.

 

Most of you know in the room that the Chinese government is instituting a huge system where it captures people walking on the street with facial recognition. And in some ways, you think that sounds anathema to us in our liberal government, our classically liberally government, that sort of monitoring where everybody goes. On the other hand, it’s not clear that it would violate any constitutional rule if our government were to do it. It’s people out on the street. If you ask somebody, “Was John Duffy on the corner of 17th and Connecticut, or I Street and Connecticut?” Somebody could say, “Yeah. I saw him there.” It’s government land, you could put cameras out there and you could capture all of it, but it does seem to pose some sort of new threat that I think society is still beginning to think about. Our society, European societies, and maybe even Chinese society, at least the dissidents in Chinese society are thinking about it. I’ll close there as something where we might have something really new with technology that might affect our constitutional law.

 

Hon. Ryan T. Holte:  Great. Thank you, Professor Duffy.

 

[Applause]

 

      In our last introductory remarks from Anthony Dick, who did respond to my biography email and confirmed things correctly.

 

Prof. John F. Duffy:  Sorry.

 

[Laugher]

 

Hon. Ryan T. Holte:  Anthony.

 

Mr. Anthony J. Dick:  That’s a nice backhanded introduction. Thank you. Thank you very much. Those of us who are here at The Federalist Society I think many of us have the happy advantage of being both originalists and classical liberals within some range of that definition. In that position we often enjoy the happy situation of having those two principles align and come together. Changes in technology are often advanced by intellectual opponents of ours as reasons to depart from originalism, to depart from classical liberalism. Sometimes those arguments take a bad form. “We’ve invented the steam engine.” “Holy Hell. Let’s get rid of enumerated limited powers,” doesn’t seem to follow necessarily. Sometimes there are better versions of that.

 

But I want to just go through a new examples of those and talk about how generally originalism can be used as a tool to push back in favor of classical liberal principles, but then why, in the world of patents, I think some recent developments at the Supreme Court have thrown classical liberalism and originalism into a bit of tension, if not opposition, and why that may cause some consternation for us and give us reason to think we sometimes may have to choose between the two.

 

Some examples, I think you guys probably are familiar with many of the arguments about why changing technology requires us to abandon original meanings of the Constitution. In the First Amendment context, a particularly good example of what I would consider a bad argument was published in The Washington Post a few weeks ago where the argument was made that the marketplace of ideas view of free speech no longer obtains because, “On the internet truth is not optimized. On the web it’s not enough to battle falsehood with truth. The truth doesn’t always win. In the age of social media the marketplace model doesn’t work.” Therefore, the author argued, we need to ban hate speech. Again, I don’t think the conclusion follows quite from the premises.

 

A better argument you sometimes see in the Second Amendment context with Heller telling us that the Second Amendment protects the right to bear arms of weapons that are in common use in society. “What about assault weapons?” you hear people say, that have a degree of destructive power that may not have been contemplated by the framers. I think that argument has some force, even if you make allowance for people distorting assault weapons to mean something which most people misunderstand what weapons like an AR-15 that are in common use. Again, I don’t think this argument ultimately succeeds, but it starts to move closer to the line that the cost, benefit trade-off of what the Framers may have been thinking about with the musket might not apply to a semi-automatic weapon where you can kill 30 people in a minute without much trouble in the way you would have to with reloading a musket.

 

You also see this -- I’ll skip the Third Amendment because we don’t have any quartering of soldiers yet, at least not until the next presidential election happens.

 

[Laughter]

 

With the Fourth Amendment you see some better arguments here—the originalist conceptions of trespass, property invasions—a lot of people think today don’t quite capture the value that the Framers were trying to protect of privacy, so you replace a trespass model with a reasonable expectation of privacy model. I happened to clerk at the Supreme Court the year of the Jones GPS tracking device case, which actually reminds me a lot of what Professor Duffy mentioned, which is that you have a plain view doctrine where the ordinary rule would be if something’s seen in public, there’s no problem with the government tracking that and following you around physically, but what about when you have a new technology where you can actually create a mosaic of someone’s every movement through some combination GPS tracking or facial recognition and you can produce a full picture of somebody’s life that the government now can watch. Does that require some alteration of what we usually understand to be searches and seizures and does the constitutional law need to account for that?

 

I think what we can see as a theme of all of these kinds of arguments is that, in general, you’ll see changes in technology used a reason to depart from what may have been the previously understood rights or practices under the Constitution, and we need to move away from these. Generally, those who support free speech, those who support the Second Amendment, press to retain an originalist view because an originalist view will sync with their classical liberal principles.

 

I’m not saying everybody takes the outcome oriented view of the way they interpret the Constitution, but often you don’t have to choose, because, after all, the Framers of the Constitution and the way the Constitution was originally understood, was for the most part a classical liberal document ratified and written by mostly classical liberal people.

 

Why do I say that the patent system has thrown classical liberalism and originalism into some conflict in recent years? Well, I’m thinking about the Oil States case, which a lot of you may know. Professor Epstein certainly knows because I’ve seen him write on it and he’s been disappointed by the outcome in the case.

 

Prof. Richard Epstein:  Three times. Three times.

 

Mr. Anthony J. Dick:  Professor Epstein takes what I take to be a quite powerful view of basically the transportability of classical liberal property rights into the concept of modern intellectual property rights. He’s written a fantastic article, which I commend to all you, called The Disintegration of Intellectual Property. Do I have that right? A play on the title of The Disintegration of Property.

 

Prof. Richard Epstein:  [Inaudible 42:08]

 

Mr. Anthony J. Dick:  It happened to be published the year I was on the articles committee at the Stanford Law Review, so I got to have some great familiarity with that article of his. The basic argument is that actually promoting technology and having a sensible patent, intellectual property system, will happen best if we adhere to classical liberal notions of property rights and try to transport those over into the system of intellectual property. That typically works quite well. The simple rules for a complex world, to coin a phrase. In the Oil States case, the Court addressed the question of basically whether an administrative proceeding can be used to invalidate a patent without the involvement of an Article III court. Now, if patent rights were like traditional common law private property rights, you would need an Article III court to be involved before those right can be destroyed and stripped from the right holder.

 

The Supreme Court confronted whether that was the case with intellectual property rights, with patents. The Supreme Court decided in a 7-2 decision written by none other than Justice Thomas, that these are not private rights, that these are not like classical liberal property rights, much to the consternation of Professor Epstein. It’s an interesting case because you have the opinion being authored by one of the Court’s foremost originalists, and I think someone who is also considered a foremost classical liberal on the Court. And In dissent you have Justice Gorsuch, who I think is probably the second or first in both of those categories on the Court as well. Justice Gorsuch is joined by the Chief, who I think is driven by his jealous guardianship of the Article III rule of the federal judiciary.

 

In any event, I find Justice Thomas’s opinion in this case distressingly persuasive on the question of original meaning, as much as I dislike the policy outcome that it drives. My main goal here is for my own psychological wellbeing to convince Richard to convince me that I’m mistaken and in fact there is no disparity between originalism and classical liberalism and that Justice Thomas has it wrong as an original matter as persuasive as I otherwise find the opinion to be. I’ll leave it there.

 

Hon. Ryan T. Holte:  Thank you, Anthony.

 

[Applause]

 

We’ll open the floor to questions in a minute, but I would love the opportunity to hear the panelists, especially our early panelists to respond to others. With that I will have to begin with Professor Epstein.

 

Prof. Richard Epstein:  Alas, let me just make a couple of discordant observations about various points. The first thing I think is important to mention is something about the nature of the British system of patent law. One of the things is, it’s got the same formal exclusive right, but the procedures associates with the British system made it virtually impossible for anybody to contain some kind of a patent right by normal processes. There was a conscious democratization when one came to the United States about who could file, how much was needed and so forth, none of which is directed by the Patent Clause, but nonetheless was in practice. And it’s really made a difference. Arnold Plant, a famous friend of Ronald Coase, wrote these very skeptical articles on the effects of the patent system in Great Britain. People have taken it to be a statement about patents systems generally, but in fact it was a reflection of the terrible situation of the British law, not one of the American law, and I think this thing went wrong.

 

The second point I want to make is the question about how it is that we start to deal with social change and legal conceptions. Forty years ago I wrote a paper called The Static Conception of the Common Law, which I think was designed to adumbrate something which has been said by both Anthony and by way of John. I said, by and large I’m a Roman lawyer by training. Somebody said, “You gotta get that in here.” And that most of this stuff, in fact, has incredible durability over time. But you do, in the area of property rights, have circumstances where you’re going to have to have changes in laws in order to deal with technological improvements. But you have to understand the way in which they’re done.

 

To some people they say, “Well. We don’t like the current situation. Let’s just re-designate things as property rights one way or another.” I constantly stress when I teach property—and I see one or two of my students here—if you want to do this, there’s a procedure for justification which is essentially you try to show on all but the most extreme cases that the change that you want to make is a Pareto improvement over the previous state of affairs, so that you cannot confuse two functions. A one massive redistribution through the redefinition of property rights with general overall improvements that work for the benefit of all.

 

And so the two cases that are most conspicuous is with respect telecommunications. Nobody seriously believes that you ought to be able to enjoin or sue for damages somebody who says something from the electromagnetic spectrum across your land, even though it might be a technical trespass, because the gains across the system are so large. And with respect to overflights, at least when you’re not dealing with landing rights, you make exactly the same judgement. So what you do is you condemn the over rights and you give people the benefits that they get of that particular system. These are such massive Pareto improvements that the corollary of this is that what you never, ever do under these circumstances is try to figure out whether I got more out of this than you did. When you’re trying to do that with 300 million people, forget about it; you don’t want [it].

 

When you get to the progressives, what they do is they completely and deliberately mess all of this up. And so just to take the telecommunications thing for one second, what happens is you really do need to prevent the chaos on the internet, and so you have to have defined rights. Now, what that means that you have to have interference rules. But if you’re Justice Frankfurter and have the misguidance of a Harvard progressive liberal education, what you do, you say, “Oh. We don’t want to be so [inaudible 47:44] as to make sure that the frequencies are well defined so there’s no interference. What we’ve going to do, is to determine the composition of the traffic.”

 

And he had not the foggiest idea how that should be done. And so by not having a strong system of property rights, sold by auction or by occupation, depending on the circumstances, he created chaos that has lasted for a very, very long time inside of that particular organization. When I talked to John, I said, “There’s flexibility in some sense in the patent rights system, in the property rights system, to make these improvements, but there’s not massive stuff to get redistribution. A classical liberal will accept Pareto improvements, will be very suspicious about disguised redistribution.

 

The last point that I want to make about this is about the Oil States case. It is one of the worst opinions that I’ve ever read. I’m sorry that Justice Thomas happened to write it, but the question is if you’re starting to go back to the historical roots, as Justice Gorsuch pointed out and Justice Roberts had pointed out earlier, what happens is the system of grants that were created under the Patent Clause was to create property rights in particular individuals.

 

The public rights stuff came up only in connection with collections under customs duties in a case called Murray against Hunter’s Lesee, no—whatever it is--Hoboken. City of Hoboken against Murray [Murray’s Lessee v. Hoboken Land & Improvement Co.]. It’s a completely different kind of problem. All of the key opinions that talked about this were that way, and what happened is, when you would start to say that the definition of public rights means anything which is a grant from the government, what you literally have to do is to overrule precedent after precedent after precedent from the 19th century. The most conspicuous of which is a case named McConnell—not after the current Senator or the eminent law professor—on these things. And Justice Thomas’ argument just had to be wrong. He said, “Gee. If they understood what the patent system was about, they would change their views with respect to what intellectual property is,” which is the worst kind of intellectual relativism.

 

This is a pretty straightforward thing, and the correct line in all of these cases is, this guy gets to decide as a judge under those circumstances where there’s been a final issue of the patent. And somebody else gets to decide, as an administrator, before that time. If you don’t draw the bright line, as our friend John Duffy will say, you’re never going to get it right. And so there were a few little encroachments that were made in the 80’s, and they paved the way for somebody like Justice Breyer, balancing himself to intellectual oblivion on this kind of issue, to put himself into the case where he said, “Well, we’ve done it a little bit, we could do it a little bit more. Where am I to draw the balance?”

 

And the answer is on those kinds of questions, on property right formation questions, you want hard lines. You need the flexibility on some of the remedial questions. You don’t need it there. So I hope I can persuade you, Anthony, that you cannot find a worse decision on either separation of powers or on property rights than the Oil [States] decision. Fortunately, much of the stuff that has been done badly in the Supreme Court has been undone by administrators inside the patent office, and so maybe we’ll get some return to sanity.

 

Prof. F. Scott Kieff:  Well, I’m pleased that I benefit from the -- we all can jumble and the foreshadowing to respond to the data aggregation and new tech point. As I foreshadowed by referencing Charles Darwin when I was in fact intending to reference Charles Dickens.

 

[Laughter]

 

Prof. F. Scott Kieff:  But as I think about Dickens’, Poor Man’s Tale of a Patent, it does connect up with Darwin and Darwinian evolution in the face of data aggregation and big data, which is to say, If you listen to Dan Geer’s keynote at the Black Hat Conference a few years ago, he makes, as others have made as well, the monoculture monopoly point. So for the biologists in the room, if we all have the exact same DNA, it just takes one antibiotic, or one toxin and we’re all wiped out. If our data is all in one place, in the same way, there are a lot of vulnerabilities that come from that, including civil libertarian vulnerabilities, that I believe you were focused on. I don’t think this is inconsistent with what you were saying. I think that there is room within the constitutional order to address that concern.

 

And here again, the Framers’ approach to the patent, anti-trust system offers one significant leverage point, which is to say there are at least a lot of us, including many of us up here, who have written about an approach to the patent nanny trust system that would lead to, that would facilitate, maybe not require but facilitate, in a meaningful way, the existence of a large plurality of firm sizes in the high-tech sector rather than what we generally have now, which a relatively small number of very, very large firms. And that is the monoculture problem. And that is a concrete solution to the monoculture problem, whether it’s for civil libertarian purposes or national security purposes.

 

Prof. John F. Duffy:  I think the data aggregation problem is significant, and I did want to say that that is, I think, sort of a forward-looking thing. Most of my talk is about why technology change doesn’t matter. This piece, I think, is why it might very well matter. There really are some incredibly powerful examples. So for example, this is one example that just really made an impression on me, is that there was an MIT PhD graduate student who was indicted for insider trading because his wife was a lawyer in New York and obviously had some inside information on deals. Part of the indictment recited a fact that I found very interesting, that this guy’s Google search had the “How does SEC catch insider traders?”

 

[Laughter]

 

Prof. John F. Duffy:  Which they had in the indictment. And I thought, “Well. That’s really bad evidence for that guy. They had lots of other evidence, too, but they knew that. The interesting this is they may not have even needed a warrant to get that. They may have asked Google and Google said, “Yeah. We got that data, and we’ll give it to you. It’s our data, but we’ll provide it. We’ve got it. Here.” They may not need it. If Google said, “No. We’re not going to give it to you.” Then they might need some sort of compulsory process. But they may not have needed any compulsory process. I think that that gives an example in which a lot of things we do are subject to these increased data aggregation and also long-tailed memory.

 

So the Europeans are developing a theory of the right to be forgotten. I hate to say it, but they might be on to something there. That there’s something in there. I know Richard probably doesn’t like this, but they may be going about it the wrong way because they’re regulating private companies, but there is something about the increased aggregation of data which I think should be somewhat scary to civil libertarians and is maybe genuinely new, that simply memory of humans, the paper records were so disorganized, and it was so expensive to collect information, that it wasn’t so big a problem in the Founding Era; therefore, we don’t have any rules about this.

 

Now, the first thing to do is to legislate, and obviously the Constitution gives both the federal and the state governments lots of room to legislate. There may even be some constitutional changes, and that can be done maybe through judicial interpretation in some cases, but maybe also through the Article V process which I think people forget about all the time, but I think we should include. We can be originalists. We can dictate a constitutional amendment if we find one that’s wise.

 

Hon. Ryan T. Holte:  While Anthony is making some final comments, I’ll invite people to come to the microphone if they have questions as well, so we can begin the queue for audience questions.

 

Mr. Anthony J. Dick:  Yeah. Just let me respond briefly I think with the same thematic point that I think goes both to John and Richard, which is that it’s not exactly groundbreaking to say that the policy outcomes we prefer and the constitutional interpretations we think are most faithful to the process of interpretation may lead us to different results and that constitutional interpretation is not going to always lead to the best policy solutions. It is not going to address every problem that we see arising. It may well be that we need legislation rather than interpretation or constitutional amendment to address problems like non-Article III judges invalidating the patents or like data aggregation.

 

But I think legislatures are, in many ways, a better tool for doing this because they’re much better able to operate with a scalpel than with the sledge hammer of a court decision taking off the table what you might be able to do with respect to Article III courts or administrative proceedings or how you would have a judicial system trying to regulate the use of GPS tracking or the use of data aggregation. Judicial decisions are necessarily limited and reactive, and so when I worked for Justice Alito, I know he took the very strong view that courts should leave room on something like GPS tracking for a sensitive legislative solution. I know that’s not perfect, but it may be the best that we can do.

 

Prof. Richard Epstein:  Somebody’s going to the microphone.

 

Hon. Ryan T. Holte:  Yes, sir.

 

Rob Rando:  Hi. Rob Rando, New York.  I’m also a member of The Federalist Society Intellectual Property Practice Group and I want to thank the panel. It’s been outstanding. The question I have, and PTO Director Iancu has raised this issue, in terms of author and inventor, with respect to artificial intelligence, within the context of this program. And this is for anyone on the panel.

 

Prof. Richard Epstein:  Well, the answer is who controls the program would be the person. Joint authorship is permissible. Assignment of joint authorship to companies after the patent has been perfected is still permissible. And so if you have good rules on joint ownership it seems to me that they should be able to handle that. The way in which you then would do this, as with any other syndication where you’re trying to get a group of people to invest in an idea, what you do is you have to have a governance structure with respect to that, and you have to have a distribution with respect to the benefits, so that each penny is accounted for in some kind of consistent way.

 

So the way in which you handle that is not to muck around with the patent system, but to essentially muck around, in a sensible contractual way, with the facilitation of multiple authorship. And there’s nothing I think about the word author in the Constitution which says every patent has to have only a single inventor. And so I don’t think that presents anything other than a very serious business and management problem. But I don’t think it presents a problem having to do with the scope and the power of the Patent Clause.

 

Prof. F. Scott Kieff:  I mean, I think I would just add that artificial intelligence and machine learning techniques and data science generally can be very useful within government, not only within industry, as facilitators of more efficient as well as more effective operating. If you want the patent office examiner in the old days to go to the shoe, to look through the wrapper, those are not only high paper cut risk, but take a fair amount of time. You can immediately see that one of the very, very, very large parts of the United States government, the U.S. Patent Office, is mostly that big because it hires a lot of very expensive people to do a lot of searching and searching something AIML and data science do well.

 

Rob Rando:  Sure.

 

Prof. John F. Duffy:  I think that most of the time, at least with our current technology, we’re miles from having an android that is like Data on Star Trek that actually can do something creative. Instead these are just like tools and people who direct the tool towards a particular problem, those people are the inventor. I wouldn’t even say that you necessarily have to make it a joint inventorship. You don’t say, “It’s the machine plus the human.” It’s the human. It’s the human who details the problem. Even the best computer today does not say, “Oh. By the way, while I was figuring out all the chess moves that you had me do, I also figured out a cure for cancer. Do you want that?” No. That does not happen. Instead, people have to direct machines to a problem. They have to load it with data. They have to give it lots of patterns to recognize. And then maybe it comes up with something we could not see, but people direct it towards that problem. I don’t think that it is such a big problem. It can change something called the non-obviousness doctrine which generally says that things that are easy to invent are not patentable and the more tools we get -- and this is not just AI. It’s computers --

 

Prof. Richard Epstein:  -- Every tool.

 

Prof. John F. Duffy:  Every tool. Any tool that makes things really, really easy to invent could make some things not patentable because people can do them in a trivial fashion. I think it could affect that, but again, that’s just simply extending existing principles, existing general principles to a slightly new situation.

 

Rob Rondo:  Sure. I appreciate that. I would just say to your point, in terms of inventorship, bringing it back to the human, in the case of artificial intelligences you might have to track through various levels to find out how many humans were involved.

 

Prof. Richard Epstein:   That’s okay.

 

Prof. John F. Duffy:  That’s true. Then I agree with Richard. That’s a team of inventors and most patents these days, the inventor is a team of people rather than a single person.

 

Mr. Anthony J. Dick:  I think that’s right. I think you would only start to see a fundamental challenge at the point which we may never reach, but we might, where you get independent artificial intelligence that can invent and innovate without the need for incentives. Because after all, the foundational principle of granting patents and exclusive rights is we need to do that to incentivize people to make innovations and discoveries and inventions. If the independent computer is walking around out there making inventions without any need for incentive to do that then maybe we have to re-evaluate it. I don’t think we’re going to see that in our lifetimes, but maybe I’ll be pleasantly surprised.

 

Rob Rondo:  Thank you.

 

Hon. Ryan T. Holte:  Another question over here, and if you can just mention your name and perhaps where you’re from.

 

Howard Klein:  My name is Howard Klein. I’m on the IP Practice Group Executive Committee. This is a great panel. Thank you all for coming. It’s really great. Thanks, Mark for putting this together. In the past six or seven years we’ve watched the Supreme Court interpret patent eligibility rules in a way that’s pretty much excluded some of our most cutting-edge technologies: medical diagnostics, computer science. These are things where the U.S. is the leader of the world technologically. We’ve seen now China almost supplanting us or positioned to supplant us in the patent world in these areas. How do you see these judicially created exceptions to patent eligibility? How do you see that as being consistent with either the original meaning of the constitutional empowerment under Article I and most importantly the text, the simple text of Section 101 of the Patent Statute?

 

Prof. Richard Epstein:  You’re talking about Alice/Mayo?

 

Howard Klein:  Yes.

 

Prof. Richard Epstein:  These are self-inflicted disasters of the worst order by a Supreme Court which simply does not understand what’s going on. Scott is permanently scarred with having clerked for Giles Rich as his last clerk who got it right as early as 1994. If you’re starting to put together elements which are innocent when taken to themselves but have a combination so that if you start at the beginning, you can do a functionality that you could not have done previously, that ought to be enough to guarantee patentability. What happens under the Alice/Mayo test, essentially all forms of modern technology are treated as belonging to the public domain. If you then go back to the theory which says either we give protection to labor in some form or another, or what will happen is we won’t get it. It will be dissipated. That’s exactly what’s going to happen in this case.

 

It’s important to understand, however, what the labor theory of value actually means. It doesn’t mean that you have to spend so much labor that, essentially, you dissipate all the net gain you could get from the patent. It says that you are the guy who puts all of the inventors in, we want you to spend as little time as possible to make something which is invented because it increases the social surplus both in the terms of what the inventor gets and in terms of the lower prices that it can give to everybody else. That’s a classic illustration of a Supreme Court as a non-specialist body who has this kind of deep suspicion of patents as being somehow or other robbing something from the public domain which has led to a major disaster and it will shift technology overseas and will make it harder to implement here.

 

There’s been a large battle between the Federal Circuit and the Supreme Court on some of these issues. You can take one side or another on other things, but I think those two decisions together, and there are more that are promised the other way. I think there’s a petition for certiorari coming up from your court [Gesture to Hon. Ryan Holte] where everybody agreed that the decisions were nuts, and then the issue is whether you could distinguish a particular case or whether or not it was behind. If a court, which contains young and able judges, has to do that kind of deliberation, then the Supreme Court really has to engage in massive retrospective thinking about whether or not it has created more danger than it has eliminated. I regard these decisions as unmitigated disaster.

 

Prof. F. Scott Kieff:  I really think the short answer to your question, implicit in what Richard’s saying is, not; they’re not compatible. What the Court’s doing in those cases is not compatible with the plain meaning, not compatible with the different meanings the drafters of those statutes clearly had in mind when they chose different words. They didn’t say, “Section 101, give patents on good inventions. Section 102, really good inventions. Section 103, the really good ones who are also really your friends,” or any other vague language like that. They, in fact said, really straightforward things like, “If it’s not new, it’s not patentable. If it’s not new and also obvious, then not patentable.”

 

They picked very specific words; novelty, non-obviousness. They have a whole set of words for how precise the patentee has to be in meeting the disclosure or written description or enablement requirements. What the Courts do when they ignore all of those words, is they end up importing all of those words into some version of the patentable subject matter debate and then finding, “Oh, my gosh. I’ve taken these words that have lots of interpretive baggage, and I’m now going to just reinterpret them willy-nilly.” And that inevitably leads to, I think, a lot of consternation for the courts and a lot of consternation for the parties who appear before the courts. Yeah. I think it’s, in effect, a mess. It’s unfortunate.

 

Mr. Anthony J. Dick:  I agree with that as a statutory matter. It seems to me there’s no constitutional argument, though. I think the courts have gotten wrong the meaning of the statute, but I think under Article I, that Congress has quite broad leeway to tailor eligibility rules. It could have written the eligibility rules the way the Court says it did. I think the Court got that wrong, but to me I don’t see how that runs afoul of the original meaning of the Constitution. I think legislation can fix this problem. It’s happened before. I hope it will happen again. I think it’s hard to see, unless judges in lower courts can create a fairly ingenious system of restoring some of those rules, in light of the Supreme Court’s precedent. I think we need a legislative fix, but I don’t think we’ve got any Constitutional arguments to get us there.

 

Prof. John F. Duffy:  I’ll just say that when you start saying, “What do you think about these a-textual judicial exceptions, I get off that bus pretty quickly.

 

[Laughter]

 

If you’re a textualist, then the Court says, “These are these judicially created exceptions that don’t really have a home in the text of the statute.” which the Court explicitly said in Bilski, one of the decisions. Well, you know, that should be the time that you get off the bus. Now, why the conservative majority signs on to these opinions I must say, I think one day soon, hopefully, they’re going to wake up and say, “What has Justice Breyer convinced us to do? Why are we expanding beyond any historical thing? We know we did have these precedents about exceptions, but we’re expanding them dramatically.” And you can prove that empirically very easily. “Why have we been convinced to do that 'cause we’re supposed to stick to the text? We’re a textualists, aren’t we?”

 

I hope that will happen someday soon. I think there’s been a lot of both bad judging and bad lawyering in those cases in multiple ways. I think that, hopefully we can get more sophisticated people who come up and are able to guide the justices well. You have to have good lawyers to present these cases in a way that especially the conservative judges can understand.

 

Howard Klein:  Just an observation. The Federal Circuit just recently ruled that a garage door opener is an abstraction and therefore not patent eligible subject matter.

 

Prof. John F. Duffy:  But there’s nothing new under the sun because the 19th century Supreme Court held that a pencil eraser was unpatentable as an abstract idea, too. That’s true. And so there are these persistent errors. If you know history, some of these errors go back a long way.

 

Howard Klein:  Thank you. Thank you all.

 

Hon. Ryan T. Holte:  Back to originalism.

 

Roger Klein:  Roger Klein, not related, but friends. If you’ll indulge me a comment. I was an expert in the Myriad case for Association for Molecular Pathology. In addition to being and attorney, I’m a molecular pathologist. I couldn’t disagree more with what you said. So with respect to Mayo, were it not for Mayo we could not do gene sequencing, sequencing genomes, which we do regularly. I have to say, when these --

 

Prof. F. Scott Kieff:  How did the human genome get sequenced while those patents were enforced?

 

Roger Klein:  It was research. We do it clinically. For example, Myriad Genetics, when people were doing BRCA1 and 2 testing, nobody could test for BRCA1 and 2. They were behind technologically five years. Between the Myriad case and Mayo, what happened was you could no longer patent a variant in the genome in the relationship with the genotype, phenotype association. Because of that, we routinely, routinely sequenced exomes. The price has come down --

 

Hon. Ryan T. Holte:  -- Is there a question in this?

 

Roger Klein:  -- It cost billions of dollars to do the original. You can get an exome done for 500 bucks. After the Myriad case, the price dropped immediately, immediately. These were not real inventions.

 

Hon. Ryan T. Holte:  Okay.

 

Prof. Richard Epstein:  By the way. Can I answer the comment?

 

Prof. F. Scott Kieff:  No. Just let it go. Just let it go.

 

Roger Klein:  These are not inventions. They’re not discoveries. What they are is they’re properties.

 

Hon. Ryan T. Holte:  The IP panel is always the most exciting.

 

Prof. Richard Epstein:   Can I give a one sentence answer to this comment?

 

Hon. Ryan T. Holte:  Do you have a question, though, Mr. Klein?

 

Prof. Richard Epstein:  No. He doesn’t.

 

Roger Klein:  No. It was a comment. At the Association of Molecular Pathology. Look at our vendors. Diagnostic --

 

Prof. Richard Epstein:  Stop being hysterical for a second. All right? Let me answer. Grow up is what I wanted to say. Look. The point about the BRCA gene is a different problem. I agree with you that the patent should not extend to testing something which is in situ in the body. But I don’t agree that if somebody makes a new and artificial entity that if you wanted to sell that outside of it, you can do it. So I think, in effect, the Myriad patent was too broad, but if you give it insensible eyes, Alice/Mayo turns out are also incorrect. What you’ve done is you’ve conflated the two issues. You have to be more careful. And you’re not.

 

Roger Klein:  I’m talking about Mayo.

 

Prof. John F. Duffy:  I do think, actually, that I agree with Richard here. Some of the patents that were invalidated in the four decisions on 101 could have been, I think actually maybe all of them could have been invalidated on traditional grounds that are actually in the text of the statute. I’d be totally happy with that decision. I might quibble about here and there, but a lot of those patents were questionable for traditional reasons. It’s just bad to create this new doctrine that’s judicially graded expanded. Pretty soon you get decisions that you probably would disagree with; the garage door openers and other things.

 

Hon. Ryan T. Holte:  I think we’ll have to transition to Judge Braydon now. She’s been so polite standing there with a question, so, Judge Braydon.

 

Judge Susan Braden:  I’m a retired federal judge that’s also recuperating, but I think Professor Epstein will remember a time when the Supreme Court’s antitrust juris prudence was as --

 

Prof. Richard Epstein:  -- Mixed up.

 

Judge Susan Braden:  -- disruptive as the intellectual property area. The use of guidelines, it began in the Justice Department which basically were dictated, as I understand, to Steve Breyer on the golf course by his AAG at the time. I wonder if you have any thoughts about the Patent Office guidelines that have come out, which from my perspective, I think really do go a long way to solve a problem, but the Federal Circuits decided that they don’t give deference to those guidelines.

 

Prof. Richard Epstein:  Well, I mean, I haven’t read the guidelines. I mean, my view about them, if they’re sound you ought to follow them, if not. On the anti-trust stuff, essentially what they did is the conventional measure of concentration would be a Herfindahl Index and you had to have a fairly high movement, say, .25 before you really got excited with sort of four, three mergers being the case. And what they were doing was going after Utah Pie and Brown Shoe and it was way off. Bork wrote his book. Bowman wrote his articles at the time, and they became accepted wisdom.

 

I am proud to say that one of the reasons I lost a faint chance at a Supreme clerkship is I went after a man named Murray Bring, extremely smart guy who clerked for Warren. I told him I thought that Brown Shoe, this is back in 1967, was one of the great stains on the history of antitrust law. So I think we’ve moved the antitrust stuff down. We need to have somebody write a synthetic book on patents which will set the ship aright. Understanding, by the way, that an essential part of the patent system is there are certain things which are in the common domain, and you don’t want the notion of an invention to be so broad that essentially it allows you to patent what’s in your genome, so it can’t be tested by anybody else.

 

Hon. Ryan T. Holte:   Question on this side of the room.

 

Nick Roths (sp):  Nick Roths. I’m a current law clerk. As the panelists may have suggested, that the Supreme Court is using 101 to short circuit 103. Would a reverse doctrine of equivalents be a preferable approach to prevent infringement or inventions that aren’t meritorious?

 

Prof. Richard Epstein:  Ah. No. The explanation is the fundamental problem of eligibility on Section 101 is so broad that to try to use any version of the equivalents doctrine would directly reverse. To fix a fundamental mistake is not there. The equivalents doctrine is -- this is the “flexibility issue” that John Duffy referred to. If you have a literal patent and somebody comes so close to it that essentially they create, for example the easiest case, a new patent by simply substituting one molecule for another, essentially pinching on the label of another, if you haven’t specified that, you’re willing to say that it’s covered by some kind of a very narrow penumbra.

 

It’s a very narrow doctrine, and it’s not designed to make sure that what you can do is patent something that serves the same functionality, for example, as somebody that’s already under a patent. I just don’t think that a doctrine that exotic could actually get it right. I think you have to, as John Duffy said, Scott said—I think everyone here agrees with it—you have to be much more serious about the breadth of scope under the patent eligibility doctrine and hidden exceptions. I’m not against exceptions, by the way, but these are absolutely contradictory to the stuff that’s in the text. These are not peace power exceptions, laches exceptions, and so forth. That’s what you have to fight. And I think you have to fight it straight up.

 

Prof. John F. Duffy:  I think that a lot of patents that the Supreme Court has recently held invalid on 101 are invalid under traditional doctrines, not just 103 obviousness, but also under other scope doctrines. For example, the Mayo case which is one of the most troubling ones. It really hurt medical testing. That patent in particular, if you look at traditional mid-20th century sources on claiming clearly, unambiguously had a claiming defect that was set forth in treatises on claiming. It said the one thing you cannot do is write a claim like this. And it’s exactly the way the Mayo claim is written.

 

Prof. Richard Epstein:  [Inaudible 01:14:27]

 

Prof. John F. Duffy:  And the reason was because it’s indefinite.

 

Prof. Richard Epstein:  Do you recommend this?

 

Prof. John F. Duffy:  Pardon me? Yes. I’ve written on this.

 

Prof. Richard Epstein:  Really?

 

Prof. John F. Duffy:  Yeah. This is quite clear. The “whereas clause.” You can’t put your novelty in a “whereas clause.” That was a rule. There’s theory behind it. I do think that there are a number of doctrines narrowing patents with a reverse doctrine of equivalents is one way to deal with these problems. And I think that infringement doctrines are largely left up to judicial development. The Patent Act itself doesn’t have any of the language about how to actually determine infringement, so there I think judges can say, “Well, the Patent Act just says we’re engaged in infringement analysis.” We’ve long been doing that with case law, since 19th century. Congress keeps re-enacting the same language, so that’s sort of a basic ratification of our judicially developed doctrines on what does it mean to infringe a patent? I think that’s another tool that they could do, and they would have a theory traceable back to the statutory language and to ratification as to why they’re doing what they’re doing. The judicial exceptions I think, sadly, they don’t have that theory.

 

Hon. Ryan T. Holte:  Yes, sir.

 

Jonathan Hurowitz:  Thank you. Jonathan Hurowitz. I’m a student at Stanford. It’s my understanding that the Trademark Acts and the Lanham Act are passed under the Commerce Clause and not the IP Clause. With many originalists proposing a scaling back of the Commerce Clause to pre-New Deal jurisprudence, what major doctrinal shifts do you think in IP law will result in that, if that happens?

 

Prof. F. Scott Kieff:   I will just mention, as long as we’re talking about big data and other things, you raised the question of both a trademark notion of the Lanham Act and the false advertising notion, two slightly separate notions. It is worth just separating them on the one hand from what we all often experience as big data on the other hand. Let me give you some concrete examples. When you log on to the internet and have in mind what you’re looking for and get barraged with ads, that’s a form of speech that may very well be worth protecting constitutionally, probably should be because the Constitution says so, but from a commercial perspective is probably, from your perspective, searching, far more of a cost than it is a benefit.

 

On the other hand, if there is a mark, whether it’s a name or an image, that you can quickly recognize, then in fact, that’s serving to decrease your search cost and so is commercial truth. The theory that could support a robust trademark and false advertising regime, that notion of decreased search cost and improved market efficiency, would be a theory that would be coherent, sensible, helpful, and would fit within Commerce Clause power if Congress chooses to promulgate that statute. But I don’t know that it falls for lack of power or is required as a so-called right. I think that’s why it makes sense to locate it in the Commerce Clause power.

 

Prof. John F. Duffy:  I’ll just say it’s not just the trademark, Congress just passed a trade secret law. That used to be state law within recent memory. Now there’s a large federal statute that is the burgeoning area of practice is trade secret law; also not based on the Intellectual Property Clause, also clearly based on the Commerce Clause power. I think the Commerce Clause is actually a good example where maybe technology change doesn’t change the Constitution, but just puts more stuff in it. It is true that there is greater commerce among the states and among other countries, too. I think sometimes that argument is oversold, and that the Court has expanded Commerce Clause jurisprudence, quite clearly. But even if you narrow it to some degree, still a lot of things are—shoes and clothes and everything else—are just marketed in all 50 states. That’s where the Lanham Act applies. That’s where the trade secret law applies. I don’t think it’s going to make a huge difference if the Commerce Clause were narrowed somewhat.

 

Prof. F. Scott Kieff:   And just for the fun of it, if you’re really curious about this stuff and like civil libertarian case law and constitutional case law, go read the Supreme Court Bose v. Consumer Union decision argued by a great Boston lawyer with a bow tie, Chuck Hieken, who had been a college classmate of Amar Bose. But Chuck did what a lot of First Amendment lawyers thought was going to be impossible, and he did it as a trademark patent lawyer and what he did was sued a publication for, in effect, a false statement about Bose’s speakers. And the defense tried to be, “Hey. It’s our First Amendment right. We can say whatever we want.” His response was, in effect, “You can if it’s clear it’s opinion. You can’t if what you are saying is it’s fact and it turns out you actually have no facts to back up what you’re saying is fact.” They lost, they the publisher, because they said it was fact, and they didn’t have fact.

 

Jonathan Horowitz:  Thank you.

 

Prof. Richard Epstein:  Oh, my god.

 

Hon. Ryan T. Holte:  Other questions?

 

Prof. Richard Epstein:  Yeah. I have a comment, okay? If there’s no other questions.

 

Hon. Ryan T. Holte:  Professor Epstein.

 

Prof. Richard Epstein:  God forbid. I just went back a looked at Mayo again, just to remind myself. It’s amazing what you can do when you have a computer, but there’s a very important line here which you can get both right and wrong, which is the question, what is or it does not count as a natural law. Essentially I think E=mc² counts as a natural law, but running a test which says that you reach a certain level of threshold sensibility with respect to the administration of one drug for one kind of condition is not to be regarded as a natural law because it means you can’t make a diagnostic kit for anything that comes out from under it. Yes, yes, yes. No, no, no. I think it’s important that one understands that. There was a period before the 52 Act was passed where there was a case called Funk in which the question is that if you found a bunch of things that you could put together in the same sack that were compatible, and you did it through an immense amount of searching, they said, “Well, that was just the natural law.”

 

      I don’t think, in effect, that finding particular correlations through a system of trial and error which turn out to be true and verified in that fashion, should basically be covered by the Natural Law Exception or by the Mathematical Exception. What’s happened is that the 52 Act was passed, in large part, in reaction to the rather narrow interpretation that the Supreme Court, chiefly through Justice Douglas, had given in patent stuff in the ‘40s in order to do it. When I see cases like Alice and Mayo, I think what you’re doing is you’re really going back to the pre-1952 situation and that that, in fact, is some kind of a mistake. The BRCA gene, as I’ve said before, is highly distinguishable. But I think when you start to figure out the amount of effort that it takes to get these tests there, to say that somebody else can simply imitate it without any particular payment at all, when they could buy kits on the competitive market and other people can then develop other tests, I think it’s a big mistake.

 

Hon. Ryan T. Holte:  Yes, sir.

 

Art Macomber:  Good afternoon. Art Macomber. Wondering if you can speak to the originalist approach to the temporal aspects of this clause. It says, “To promote the Progress of Science and useful Arts.” Then it says, “limited Times.” And so a layperson just looks at it and says, “Well, there’s an industry argument. We’ll protect these people for a certain amount of time, and then after that, the market will approach it and spread the word and new things will occur then again and multiply.” But it seems like in the high-tech world, the limited time should be very short, or at least shorter than they were during the Founding Era. I think they were around 14 years, or something like that. Now, it seems like they were getting longer, and I don’t understand why.

 

Prof. F. Scott Kieff:  Well, you definitely have administrability problems if you start drawing lines between or among different areas of technology, especially as we all know, as technology goes faster. In the modern world is a hospital a hospital? Or is it a large data center backed up by a lot of equipment with also some people? How about finance? How about, and how about, and how about? When you start to try to draw lines what you find, I think, is very quickly shifts in claim drafting. In the period in the 1970s where there was a fair amount of uncertainty about whether software could be programmed, the two central techniques people had for coping with it was to claim a general purpose computer having been programmed a certain way, claimed the box, or a disc encoded with a certain program, claimed the disc, rather than claim the program. Then you can fight over whether that counts as a disc or counts as a box, rather than counting as code. I think you’re going to find that’s where you end up going with “should you meter the right amount of time” debate.

 

I guess, my other core concern about metering the right amount of time is what’s your concern? If technology really moves that quickly, then aren’t all those patents pretty irrelevant?

 

Prof. Richard Epstein:  Yeah.

 

Prof. F. Scott Kieff:  If you’re really saying the opposite, they’re really valuable, then do you want the no patents on the non-valuable stuff? Or do you want the no patents on the valuable stuff? Because I think what we often find in these debates is it’s not a mama bear, papa bear, get it just right debate, it’s a, “I don’t want to be an infringer” debate, so I’d love it if you could just get rid of those patents being asserted against me.

 

Prof. Richard Epstein:  I would draw a strong distinction between the copyright side and the patent side. On the copyright side, I get a song, and this could last for a very long period of time. Micky Mouse is finally starting to decay in value because people have different sensibilities, but it’s an 80- or 90-year run. I think, in effect, you ought to give a patent which somehow reflects that, but not to life plus 70 years. I think, in effect, limited terms is 14, 28, looking at the original 1790 period, and they’d be doubling it and so forth.

 

With respect to the patent [Inaudible 01:25:30], I don’t think it’s a serious problem. Because what happens is, I did some work on this about ten years ago and you realize that the effective monopoly of a patent in terms of rival competition has systematically gone down all throughout the 20th century.

 

      If you were to invent a certain kind of a vacuum cleaner in 1920 you might have a really dominant position to the end of the patent. But now, the new cycles come up much more rapidly. And so if somebody else has a new patent which renders the old patent essentially unimportant in terms of commercial stuff, you don’t have to shorten the period with respect to it because the natural forces will displace it. My understanding, at least when I worked with some of these companies, is they say, “If I can’t get an invention patented very quickly, this thing is going to lose half of its value within 30 months.” And so the real question is not the duration of the patent, it’s a question of just how quickly you get it off the ground so as to put it into circulation before it stops. When they had that Microsoft stuff where before you could do anything you had to run it through a committee of review, essentially, they didn’t bother to do anything because the period of review took away all the useful commercial time with this stuff. I think they’re two very, very different problems.

 

Prof. John F. Duffy:  I’ll say that this is a fascinating area that I’m working on a paper on about the patent and the copyright system. It’s absolutely diverged in this way because the copyright term, Richard is right, has gotten longer and longer. But before you go condemning that, realize it’s gotten longer and longer in every country. It’s not just us. An economist might look at this and just say, “This is data.” It’s getting longer and longer in every country. In the patent area, it’s not only that the de facto term has gotten shorter, the de jure term has gotten shorter because it used to be that copyright you had to renew your copyright. We’ve eliminated that, and most of the rest of the world has done that, too.

 

Instead the rest of the world and our country have actually switched to renewal fees for patents, and it’s a very short period of time. The average patent now lasts less than a decade. Fewer than 50 percent of patents survive into their second decade. It’s actually shorter than the Founding. It’s kind of interesting that the systems have changed. My co-author and I look at this, among other things, and think it’s an example of property rights being optimized over time. We have a theory about that. Richard might think that the copyright has gone off the rails, but it’s hard to say. Every country, everywhere in the world has gone off the rail.

 

Prof. Richard Epstein:  No. It’s not. Monopoly, public choice things are endemic to the world.

 

Prof. John F. Duffy:  Yeah, but you know.

 

Prof. Richard Epstein:  In fact we --

 

Prof. John F. Duffy:  The patent system’s going the opposite way. It’s sort of a weird thing.

 

Prof. Richard Epstein:  We understand that because there’s a real difference. The expected useful life of an artistic work by given the fact that you have multiple ways in which you can express it has gotten longer and more powerful. For the patents it turns out the substitution rates are much higher. But I --  

 

Prof. John F. Duffy:  -- Not for fundamental patents. The Wright brothers’ patent would still be getting royalties today because it still is exactly how every jet plane achieves balance.

 

Prof. Richard Epstein:  I’m saying --

 

Hon. Ryan T. Holte:  On that disagreement, I think we are out of time.

 

Prof. Richard Epstein:  We’re out of time.

 

Hon. Ryan T. Holte:  Thank you so much to our panelists.

 

2:30 p.m. - 3:25 p.m.
Book Signings

2019 National Lawyers Convention

Promenade
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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  • Free to Believe: The Battle Over Religious Liberty in America by Luke Goodrich
  • Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court by Mollie Hemingway and Carrie Severino

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3:30 p.m. - 5:00 p.m.
Nondelegation after Gundy — Are we Waiting for Godot?

2019 National Lawyers Convention

Topics: Administrative Law & Regulation
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 14, 2019, the Federalist Society's Administrative Law & Regulation Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The title of the panel was "Nondelegation after Gundy: Are We Waiting for Godot?".

Contrary to the expectations of some, the U.S. Supreme Court’s June decision in Gundy v. United States did not reinvigorate the nondelegation doctrine. Instead, the Court upheld a delegation contained in the Sex Offender Registration and Notification Act (SORNA), a 2006 law which appeared to leave it up to the Attorney General of the U.S. to decide how to apply that statute to prior offenders already in custody. However, because Justice Alito’s concurrence in the judgment expressed willingness to reconsider the Court’s approach to the doctrine and Justice Kavanaugh did not sit on this case, the Gundy decision whetted appetites for what may come in the next nondelegation case to reach the Court.

This panel will examine the Court’s decision in Gundy, dissect the various viewpoints that the justices presented, and—especially—explore what those perspectives (and Justice Kavanaugh’s subsequent participation) could mean for the future of the nondelegation doctrine. The panel will address questions such as: Will the Court alter the doctrine? What would a strengthened nondelegation doctrine look like? Is there a judicially administrable way to redefine what counts as an “intelligible principle”? What would an ideal case for the Court’s consideration look like? What will happen to delegations approved under the current version of the doctrine? Will the modern Administrative State look much different under a reinvigorated nondelegation doctrine?

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Hon. Ronald A. Cass, President, Cass & Associates, PC; Dean Emeritus, Boston University School of Law
  • Prof. David Schoenbrod, Trustee Professor of Law, New York Law School
  • Prof. Kristin E. Hickman, Distinguished McKnight University Professor; Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School
  • Prof. Alan Morrison, Lerner Family Associate Dean, Public Interest and Public Service Law and Professorial Lecturer in Law, George Washington University Law School
  • Moderator: Hon. Ryan D. Nelson, Judge, United States Court of Appeals, Ninth Circuit
  • Introduction: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

Speakers

Event Transcript

Elieen O’Connor:  Good afternoon. Good afternoon, ladies and gentlemen. I’m Elieen O’Connor. I’m Chairman of the Administrative Law & Regulatory Practice Group. Thank you for choosing the Ad Law Practice Group’s panel this afternoon. There’re a couple of other interesting things going on, but you might be planning to do what I am. And that is watch the others on video next week.

 

      I’ll introduce today’s moderator who’ll introduce the topic and this afternoon’s panelists. But first, let me mention just a bit about practice groups and executive committees. The Federalist Society has 15 practice groups, each of which focuses on a specific area of law. Each practice group has an executive committee whose membership consists of a two dozen or so lawyers engaged in government, academia, private practice, or the corporate world. We meet on the phone for about half an hour once a month to share information and ideas and plan events from which we think the membership would benefit, like teleforum conferences and this afternoon’s panel. If you're not yet a member of a practice group and are interested in joining one, please see any member of The Federalist Society staff or go online.

 

      Now it is my pleasure to introduce the moderator of your panel this afternoon. First, on a personal note, I must mention that as a first-generation American, I found it particularly intriguing that our moderator today is a member of the sixth generation of his family to live in Idaho. His ancestors, in fact, were there long before it was even a state. More to the point for our purposes today, however, Ryan Douglas Nelson is the second of eight United States circuit court judges nominated by President Trump and confirmed to the Ninth Circuit. He was confirmed in October 2018 to the seat vacated by the taking senior status of Randy Smith, also of Idaho, whom President George W. Bush had appointed in 2007. Judge Nelson maintains his chambers in Idaho Falls, Idaho.

 

      He is a graduated of Brigham Young University, and with honors, its J. Ruben Clark Law School. During law school, Judge Nelson clerked for then-Senate Legal Counsel, Thomas B. Griffith, now of the D.C. Circuit, during the impeachment trial of President Clinton. Law degree in hand, he then clerked for Judge Karen Henderson on the D.C. Circuit and then moved on to the Iran-U.S. Claims Tribunal in The Hague. He was with Sidley Austin for nine years, served at the Department of Justice as a Deputy Assistant Attorney General in the Environment and Natural Resources Division, and then at the Office of Management and Budget as Deputy General Counsel.

 

      Immediately before his appointment to the bench, Judge Nelson for nine years was general counsel for a billion-dollar consumer products company based in Idaho Falls, Idaho. He became a member of The Federalist Society in 1997, and appropriate for our topic this afternoon, served for six years as co-chairman of the general counsel committee of the American Bar Association’s Administrative Law and Regulatory Practice Section. Judge Nelson.

 

[Applause]

 

Hon. Ryan D. Nelson:  Thanks to everyone for coming out today. I’d like to introduce, briefly, the panel we’ve gathered together to talk about “Nondelegation after the Gundy decision.” We’ve first got -- I’ll present in -- I’ll introduce them in the order that they’re speaking. We’ve got the Honorable Ronald Cass, who is currently serving as the President of Cass & Associates. We have Professor Kristin Hickman, the Distinguished McKnight University Professor; Harlan Albert Rogers Professor in Law; Associate Director at Corporate Institute at the University of Minnesota Law School. And I will note also a fellow D.C. Circuit clerk back in 1999, a few years ago.

 

      And we have Professor David Schoenbrod, the Trustee Professor of Law at New York Law School. And then Professor Alan Morrison, the Lerner Family Associate Dean, Public Interest and Public Service Law and Professorial Lecturer in Law at George Washington University Law School. And I understand this is not the end of his day. He’s going to go teach some students tonight as well. So with that, we’ll turn it over to Ron, if you want to go ahead. And we’ll have everybody give some comments.

 

Hon. Ronald A. Cass:  Thank you, Judge. Delighted to be here. And every program must begin, by law, with a true story. This story is, as you will recognize the truth -- it is a priest, a minister, and a rabbi having a discussion about funerals. And they talk about how difficult it is to find the right thing to say at funerals. And at one point the conversation turns to “What would you like to hear said at your funeral?” The priest says, “I would like to hear someone say, ‘He was a good shepherd to his flock.’” The other nod. The minister says, “I would like to hear ‘He was a good shepherd to his flock and a good man to his family.’” The others nod again. The rabbi said, “I would like to hear someone say, ‘Look! He’s still moving!’”

 

[Laughter]

 

      And of course the topic today is is the delegation doctrine still moving?

 

[Laughter]

 

      You knew there’d be a segue there.

 

      The constitutional design is really based on structure. And the chief structure is the separation of functions, the separation of powers, among the three branches of government and between the federal government and the states. I’m going to ignore the states—being a long-time ad law professor, I’m used to ignoring the states—and talk about the separation of powers within the federal government.

 

      If you look at the Vesting Clause, the Vesting Clause very clearly specify who gets what power. A lot of people look at them and say, “Okay, we see who gets what power. But that doesn’t say anything about what you can give away.” To which the short answer is “Poppycock,” which is, if you look it up, that’s one of those words that people over the age of 70 use.

 

      The Framers spent so much time trying to figure out what the right assignment of powers was. And they were particularly worried about one power; they were particularly worried about the legislative power. This was the power that when you look at the Constitution, it occupies most of the space. If any of you have seen the Constitution as a document, not as one of those things we get from The Federalist Society and we page through looking for the most interesting thing in there, but as the actual document itself, what is most striking is how much of that document is devoted to the legislative power.

 

      Article I is the lion’s share -- well, not really the lion’s share, which is everything, but what we would normally refer to as the lion’s share of the document. It is the only power, the exercise of which—not just who gets to exercise it but how it gets exercised—is spelled out there. And it is spelled out in great detail. You have to have people from both houses of Congress elected differently for different constituencies, for different periods of time. You have to have presentment to the President; someone else who is elected from a different constituency for a different term. You have to have all of these agreed or you have to have super majorities override a presidential veto. These are very, very carefully designed structures, to limit the likelihood of law being rushed through, to limit the likelihood of power being exercised in ways that are intemperate. We’re used to politicians who make intemperate remarks, but intemperate lawmaking was something the Constitution was designed to prevent.

 

      That means that not only is the lawmaking power assigned to Congress, it can’t reassign it. And those who were reading Locke and Montesquieu at the time of the Framing know that that was one of the things they expressly wrote about; that the Legislature was to make laws, not to make lawmakers.

 

      The problem that we’ve had is not the recognition of that principle but the application of it. So if you look over time, we start with the first important case on this, the first really important case. Chief Justice Marshall, in 1825, when I was just a boy, writing in Wayman v. Southard, when he said that Congress can assign power that isn’t strictly legislative to others, but the legislative power, the power that has to be exercised by Congress, is the power to make important rules for the governance of society. This was Chief Justice Marshall ably stealing the words of Alexander Hamilton from Federalist 78.

 

      After that, the question was “What was an important matter? What was an important decision?” We didn’t put that to the test very often because the Congresses, for the first 150 years or so, didn’t really give out much in the way of big powers by law. In Field v. Clark, which is a tariff case -- we tend to get cases involving transportation and cases involving tariffs for most of our really important nondelegation cases. In Field v. Clark, there was a reduction in tariffs for certain items, and an instruction to the President that if another country raised tariffs in a way that wasn’t really playing fair after we reduced tariffs on these items, he could raise the tariffs back on those items. And everything that needed doing was really specified there.

 

      Field v .Clark says we recognize -- it’s universally recognized that you can’t delegate legislative power. In J.W. Hampton v. United States, which comes along in 1928, the decision written by former Chief Executive William Howard Taft, says, “Of course you can delegate, not legislative power, but the power to make important decisions. And the more important it is, the more you ought to delegate it to the president. But you need an intelligible principle.

 

      The intelligible principle test survived about seven years and was applied twice in 1935. And then, for all intents and purposes, became a boogie man was that was trotted out periodically to scare people but never was actually used again.

     

      In 1943 in the NBC case, the Federal Communications Commission, formerly the Federal Radio Commission, had the power to issue broadcast licenses as the public interest necessity and convenience dictated. And it decided in the 1940s it was also going to regulate the relationships between broadcast companies and networks and regulate what the networks did as well as what the broadcast companies did. The Supreme Court, in an opinion by Justice Frankfurter, said the structure of the act gave meaning to the phrase “public interest necessity and convenience.” And when he said that, he took it out of the part of the act where it actually had some discreet meaning because he applied not to the assignment of licenses or the allocation of broadcast stations but to the pervasive regulation of broadcast. So he made it clear that the intelligible principle test no longer actually had any bite.

 

      Later on in the 1980s, Justice Rehnquist and Chief Justice Berger tried to resuscitate the nondelegation doctrine as a doctrine. They were unsuccessful in persuading anyone else to go along. By the 1990s and early 2000s, it looked like the doctrine was dead. I think Gary Lawson at one point toed it up, “The winds and losses for the nondelegation doctrine,” and in a relatively short period, I think he came up with, I think, 53 to nothing against the doctrine actually having any purchase.

 

      By the time you get to the Whitman case, Whitman v. the American Trucking Association, you have two justices saying, “Let’s just forget about trying to have a nondelegation doctrine and admit it doesn’t exist,” and you have another justice, Justice Scalia, who says, “We really have to be careful who exercises what power, but trying to find a way to actually have a workable nondelegation doctrine that doesn’t just give judges a lot of power is tough to do.”

 

      In the 2000 -- I think it was 2015, you have Department of Transportation v. [Association of American Railroads]. Justices Alito and Thomas say, “Look, we really need to take this seriously. There has to be something on what Congress can give others to do, and the intelligible principle test ain’t it. It simply isn’t working. It’s not constraining at all. We need to really revisit this issue.” That case didn’t provide a good vehicle because the issue there was whether they had a government entity or a non-government entity that was involved in regulation.

 

      We come now to this past term: Gundy v. United States. You have three justices who argue for a real resuscitation of the nondelegation doctrine and a return to a version of it that looks like Chief Justice Marshall’s. You have one other justice who says, “This is not the right case to take this issue on, for reasons that have to do with the particular structure of the law and argument over the law’s meaning. But I am available to actually participate in that task when it comes back in the appropriate case.” And you had one justice, who is a recent addition to the Court—Justice Kavanaugh—who was not on the panel at the time the case was briefed and argued. Although he was there when it was decided, he was not participating.

 

      So is there now hope that we will have a working nondelegation doctrine? I’m with the rabbi on this. I think it’s still moving. But that’s what we’re going to be discussing for the rest of the program. Thank you.

 

[Applause]

 

Prof. Kristin E. Hickman:  So I’m going to beg your forgiveness at the outset. I’ve dutifully written up my notes, thought about the topic, written down what I thought, and then as I was reading through it earlier today, I was like, “Wow, what a Debbie Downer.” And I hate to be that way. I’m a sunny, optimistic kind of person, and I was thinking last year I was on this panel talking about finality doctrine, and it was like “Hey, things are moving.” And then I look at this, and it’s like, “Oh boy.”

 

      Okay, so let me start by saying you can put me in the camp of those who are disturbed at the extent to which Congress has been willing to abdicate its legislative authority and allow the Executive Branch to fill the void. I agree with Justice Gorsuch that even when a statute contains a high degree of overall specificity, delegating authority to an agency to adopt regulations based on open-ended terms, like “feasible” or “reasonable” or “in the public interest,” is at the very least troubling, if not a violation of the Article I Vesting Clause.

 

      At the same time, at a certain level—and maybe I’m just getting tired and cynical in my old age—I have to wonder whether this is a case of “Here we go again.” With Gundy, yet again, the Supreme Court has upheld a statute against a nondelegation challenge. And yet again, for those who wish that the Court would apply the nondelegation doctrine with more, or really any, rigor and that Congress would do its job of legislating rather than relying on agencies to do the hard work and make the hard choices, Justice Gorsuch’s dissenting opinion in Gundy seems to offer some small amount of hope.

 

      Well, I’m sorry, with all of the hoopla notwithstanding, color me a little bit skeptical that the Court is really going to do anything to give the nondelegation doctrine actual heft because we’ve been here before, right? 40 years ago, I was in preschool. Carl McGowan John Hart Ely, Ernest Gellhorn made the case for reinvigorating the nondelegation doctrine and curtailing agency discretionary power. In the benzene case in 1980, the Supreme Court considered whether the Occupational Safety and Health Act—a statute that Cass Sunstein has said if any statute violates the nondelegation doctrine, it would be this one—the Supreme Court considered whether that act violated the nondelegation doctrine by allowing OSHA to adopt limitations for workplace exposure to harmful chemicals using an open-ended “feasibility” standard that itself was inferred from, rather than explicitly provided by, a statutory requirement that such limitations be “reasonably necessary and appropriate.” The Court found this statute constitutional based on an interpretive inference that the statute required finding of “significant risk,” although it also invalidated OSHA’s regulation for failing to provide that finding. Justice Rehnquist concurred in the judgment but, citing Ely, argued that the statute was limitless and violated the nondelegation doctrine, giving us hope, right?

 

      Then 20 years ago, the D.C. Circuit surprised many people by declaring the American Trucking Case that the EPA violated the Clean Air Act by construing too broadly the act’s authorization of national ambient air quality standards, limited solely by fuzzy terms like “requisite to protect the public health” with “an adequate margin of safety.” The Supreme Court reversed with Justice Scalia for the majority, rejecting the notion that an agency can “cure an unconstitutionally standardless delegation of power” and also finding this statute well within the outer limits of the Court’s nondelegation doctrine precedents, and suggesting that the Court would only rarely be qualified to second guess Congress’ decision to give agency policymaking discretion.

 

      Justice Thomas concurred but expressed “willingness to consider whether the Court’s delegation jurisprudence had strayed too far from our Founders’ understanding of separation of powers.”

 

      So they knocked us down and then they give us hope, right? And now there’s this case. Philip Hamburger’s critique of the contemporary administrative state “Is Administrative Law Unlawful?” has captured the imagination of many scholars and commentators. Hamburger rejected as unconstitutional virtually any statutory grant of agency rulemaking authority to adopt legally binding regulations irrespective of whether the statute contains intelligible principles.

 

      Meanwhile, we have several justices on the Supreme Court on record expressing dissatisfaction with and a willingness to consider various aspects of administrative law doctrine to curtail agency discretion. So the Court’s taking up of Gundy prompted many to wonder whether this time, just maybe, the Court would breathe new life into the nondelegation doctrine. And the saga’s not over because the Court has not yet denied the petition for rehearing in Gundy. Still, and again, color me a little skeptical -- forgot one little bit of my notes.

 

      So Gundy concerns the constitutionality of a provision of the Sex Offender Registration and Notification Act, or SORNA, which authorizes the Attorney General to determine the applicability of SORNA’s registration requirements for sex offenders convicted prior to SORNA’s enactment. The provision, taken on its own, is quite open ended. It directs the Attorney General to specify the applicability of SORNA’s requirements and prescribe rules for the registration of pre-act sex offenders without further direction. Of course, that provision is part of a much larger statute that is reasonable detailed regarding the mechanics of registration for sex offenders more explicitly covered by the statute’s terms. Suffice it to say, the Attorney General relied on this delegation of authority to adopt regulations that required pre-act offenders to register, tweaking as necessary in order to fit within the details otherwise provided by the statute.

 

      Justice Kagan wrote the opinion for the Court, representing a plurality of four. And she read the statute as requiring the Attorney General to “apply SORNA’s regulation requirements as soon as feasible to offenders convicted before the statute’s enactment.” Of course the relative statutory provision doesn’t actually include the word “feasible.” Shades of benzene. Instead, Justice Kagan inferred this feasibility from SORNA’s statutory declaration of purpose and legislative history as well as the Court’s 2012 decision in Reynolds v. United States, which she said held that Congress clearly intended SORNA’s registration requirements to apply to pre-act offenders, albeit only after the Attorney General adopted regulations. So in other words, SORNA obligated the Attorney General to adopt regulations, adapting and applying the rest of SORNA’s details to pre-act offenders with only a little latitude for feasibility.

 

      So as we all know Justice Alito concurred in the judgment purely because of stare decisis. A majority of the participating justices were unwilling to reconsider the intelligible principle standard when you had an eight-justice Court. And given the Court’s history of applying that doctrine, he said, “It would be freakish to single out SORNA for special treatment.” Justice Gorsuch writes his blistering dissent, Chief Justice Roberts and Justice Thomas join him. They describe the relevant statutory provision as permitting “unbounded policy choices with profound consequences.”

 

      In any event -- so going from there, you might think -- you’ve got four justices on record saying, “Hey, we’re willing to reconsider the intelligible principle standard,” Justice Alito saying, “I’ll reconsider it,” Gorsuch, Roberts, and . . .

 

Unknown Panelist:  -- Thomas.

 

Prof. Kristin E. Hickman:  Thomas. Thank you. Senior moment. Long day. In any event, saying, “We’re ready. We’ve got an idea. We’re going to get rid of it.” And now all we need is Justice Kavanaugh, right? So you put all of that together, if we take everything at face value, it seems like we are tantalizingly close to getting rid of the intelligible principle standard and reinvigorating the nondelegation doctrine.

 

      The problem is what then? Because it’s notable that Justice Gorsuch in his opinion did not go the full Hamburger, meaning that he did not reject delegation of rulemaking power altogether. Instead, he clearly contemplated that Congress is going to be able to give agencies the power to adopt legally binding regulations. In fact, no justice seems willing to deny Congress the ability to delegate rulemaking power altogether. And Justice Gorsuch even seemed to find acceptable statutes that allow federal agencies to resolve even highly consequential details, so long as Congress prescribes the rule insuring -- the rule governing final conduct.

 

      Justice Gorsuch’s primary objection seems to be with mushy terms like “reasonable” or “feasible” and perhaps, even then, not all the time. Consequently, any more rigorous replacement for the intelligible principle standard needs to facilitate some line drawing—what actually is going to get included and what’s not. Finding a better, more rigorous standard for discerning between acceptable and unacceptable grants of rulemaking authority is really, really hard it turns out.

 

      Justice Gorsuch really tried. He outlined what he described as three important guiding principles provided by the Framers. First, although Congress must make the policy decisions when regulating private conduct, it may authorize another branch to fill up the details. Second, although Congress must prescribe the rule governing private conduct, it may make the application of that rule depend on executive fact finding. And finally, Congress may assign the Executive and Judicial Branches certain non-legislative responsibilities.

 

      Now all of that sounds really good until you start thinking about how to distinguish mere details from the policy decisions that regulate private conduct. Sometimes the devil of a statute is in the details. Applying statutes to individual facts and circumstances entails some amount of interpretation. And those interpretations can be policy driven and highly consequential. Contrasting mere details with policy decisions and rules governing final conduct simply seems too susceptible to the same whim of the moment and too likely to go down the road of the intelligible principle standard.

 

      So I want to say a word, too, about stare decisis. Justice Kagan’s assertion that “if SORNA’s delegation is unconstitutional, then most of government is unconstitutional” is clearly overblown. Yet, clearly, too, any more rigorous nondelegation doctrine standard that the Court might adopt would immediately call into question the validity of more than a few existing statutes, some quite longstanding, as well as regulations implementing those statutes, and an even larger number of enforcement actions based on those regulations.

 

      Opinions in other cases in the last terms suggested that some number of justices are willing to approach stare decisis more aggressively and overturn past precedents. But the justices collectively have not really yet pulled this trigger, at least not in this context.

 

      So this is not to say that those justices who think administrative law has tilted too far in agencies’ favor should do nothing to reign in delegations they find objectionable. Justice Gorsuch went on to note in his dissent that the Court “still regularly reins in Congress’ efforts to delegate legislative power” just using “different names,” like the “major questions” doctrine or “void for vagueness.” And the Court utilizes other doctrines beyond those to limit agency discretion. Just last term, for example, without overturning it, the Court curtailed Auer deference in Kisor v. Wilkie a little further than it had before.

 

      We’re starting to see incremental movement in the finality doctrine that suggests that more subregulatory guidance actions may be subject to some amount of judicial scrutiny. Great! As statements about separation of powers and the roles and responsibilities of the three traditional branches, all of these difficult alternatives—void for vagueness and major questions doctrine and finality doctrine, etc.—these alternatives lack the symbolic value and the heft and the punch at a certain level of replacing the intelligible principle standard. But they also lack the baggage. And there’s some value in that kind of incrementalism or that kind of approach that maybe isn’t so splashy but maybe gets us where we need to go.

 

[Applause]

 

Prof. David Schoenbrod:  Well, I agree with Professor Hickman that the Gorsuch dissent in Gundy does not successfully draw the line. But I have some good news. I think there’s a way of doing it, not to fully enforce the doctrine but to enforce it somewhat. On the other hand, I have some bad news. I’m intending to use a little bit of PowerPoint. There it is. So here I go.

 

      The Declaration of Independence promised a government based upon the consent of the people. And to deliver such consent, the Constitution vested key powers in a legislative process composed of officials whose continuance in office would depend upon the “consent of the governed.” And it would undercut this consent of the governed for Congress to divest itself of legislative powers. And although paying lip service in just about every case to this principle, the Court has allowed Congress, also quite consistently, to pass the buck.

 

      So why the Court has done so I think could be made clear in a -- by reference to a book published by Professor Lawrence Lessig. He shows that the Court from the very beginning of the constitutional process down to today, both on the left and the right, has read the Constitution with reference to two considerations: one -- they're supposed to come up here [PowerPoint slide not working]. There it goes -- fidelity to meaning. In other words, the original meaning. What does the Constitution mean? And also, secondly, constraints on the full judicial enforcement of this meaning needed to preserve the authority of the Court as a judicial institution. Such constraints can prompt justices to adopt tests that under enforce the Constitution’s meaning.

 

      For example, the Court says that the Constitution means that one person, one vote is how districts should be assigned -- legislative districts should be assigned. But because of a variety of constraints, the courts actually allow legislative districts to differ in population by up to 10 percent. So that test, within 10 percent, is different than the meaning of the Constitution. And there’s no end of areas where the meaning and the test are somewhat different.

 

      Now Lessig does not discuss the constraints on judicial enforcement of the delegation doctrine that lead to a test that’s less than the meaning of the doctrine. But I will.

 

      The first such constraint is impossibility. It’s impossible for Congress to make all the rules of public conduct. And that was recognized as early as 1825 in the Wayman case that Ron talked about. And obviously, things have gotten much worse since then because we live in a much more complicated world that needs a lot more rules.

 

      Ultimately, this sense that Congress could not make each and every one of the rules of private conduct led to the form of the intelligible principle test that we started to have in the 1930s which ultimately meant something like this: Congress could leave it to the agencies to make the laws so long as it said enough about the goals of the laws. And the problem with that, though, is it’s a totally judicially unmanageable test because what’s enough? How do you compare a statute in one area, like employment discrimination, versus another in, I don't know, constraint of trade. There’s just no way of managing this thing. So that’s the second constraint that has kept the Court from doing much of anything.

 

      A third constraint is strong political hostility in the enforcement of the meaning of the Constitution. And that certainly came up during the New Deal when the Court struck down in two different cases, the Panama Refining case and the Schechter case, parts of the National Industrial Recovery Act. And that turned out to be convenient for the Court because -- excuse me. It’s the other way around. The intelligible principle test was convenient for the Court because it allowed it to bow out of these very politically touchy issues. So that was fine from the Court’s point of view.

 

      But Lessig points out that since strong opposition is, in his words, “a force majeure,” then it follows that when the force is removed, the obligation to return to the Constitution’s meaning returns as well. And I think public opinion has turned against all of this buck passing. In fact, there was a poll taken in January of this year where 80 percent of the respondents said that Congress should vote on the major regulations. And the 80 percent was consistent among Democrats and Republicans, and even a higher percentage among Independents. And that’s just one of several polls that I think point in that kind of direction.

 

      The fourth constraint that we now face with nondelegation is this: is by the Court allowing delegation for so many decades upon decades, Congress has built this edifice, this code of federal regulations, which is massive. And so if the Court, then, knocks the whole thing down, what does one do? And if the Court adopts a test like in Gundy, like in Gorsuch’s thing in Gundy, the head of every organization, be it a government, a business, a union, a university, I don't care what, they're going to wake up the next morning and say to themselves, “What part of the CFR do I have to obey and what part don’t I have to obey?” It’d be absolute pandemonium. So we got a problem there. And by the way, I think the pandemonium would then reawaken the strong political hostility problem. So Gundy is not the way forward, the Gundy dissent.

 

      Here’s how the Court could in fact move forward to partially, substantially enforce the doctrine, but not 100 percent. I’m going to go through these various constraints and talk about how the Court could arrange to maneuver through them.

 

      Impossibility. Congress could take a lot more responsibility than it now does. We all know that. And a simple way of understanding that is to think about the suggestion made by James Landis, the guru of administrative law in the New Deal and then later dean of Harvard Law School. He proposed in a book published by Yale Press in 1938 that Congress would vote on the significant rules.

 

      Now if significant rules were defined the way that the executive order that’s been in force for four presidential administrations – two Democrat, two Republican – there’d be able as many votes on those rules per session as votes on the naming of post offices. Now, a difference between the two is naming post offices is not a legislative power but enacting the laws is.

 

      And following up on that, a judge by the name of Stephen Breyer published an article in the Georgetown Law Review in 1984 showing how the Landis idea could in fact work in a practical way through a fast-track process. It could be done.

 

      So that means that it’s possible the first constraint can be overcome. There we go. Okay. So the problem, though, is that Congress doesn’t want to take responsibility. And that isn’t just the Democrats who don’t want to take responsibility. The Republicans are just as bad. Take the Reins Act. The Reins Act actually incorporates Landis and Breyer’s idea, but it’s structured in a way—and I think intentionally so—that it can never pass. There’s lots of poisoned pills in there that are not pro-responsibility; they're anti-regulation. The Democrats will never swallow it. It’ll never get passed. Therefore, the Republicans can say, “I want to be responsible. I’m for cutting regulatory costs,” but they don’t want to have to vote on the hard choices. So the problem is is how we can actually get Congress to do the thing.

 

      Okay. So this is how I think it could be done. The Court could dump the intelligible principle test. But instead of this test, forewarn Congress that it will by a date certain strike significant new regulations whose promulgation by the agency Congress has not voted to approve. And there’s some precedent for this. I mean, in Wayman v. Southard, the 1825 case, the Court talks about minor regulations. That’s all right to leave to the Executive. By the way, that part of the opinion is not mentioned by Justice Gorsuch. I wish it had been.

 

      Now, of course, how you go about it and how you define [inaudible 40:06] regulations, there’s some policy implications there. But the Court has a way of finessing that one. Think about how they handle legislative redistricting after it fines that a current districting is not in accord with one person, one vote. They say to the state legislature, “You district it. And by the way, if you don’t do it by a certain time, we’re going to do it.” Which means at that point, the Court will have to make some very important, very political decisions.

 

      So Congress gives the -- the Court gives Congress the opportunity to decide how to do it, and if they don’t, the Court steps in. And I think the possibility of the Court doing that might actually be a real shove towards the Congress, actually, doing it. Partly also because the polls are pushing Congress that way. The public wants a responsible Congress.

 

      What about the other parts of it? So when the Court actually steps in, how does it come up with a judicially manageable test? Well, it could take the executive order, which as I said before has been in force under Democratic and Republican administrations, take the first part of it – annual impact on the economy of $100 million per year, positive or negative – and that would be the test. Now, there’s other parts of the executive order that are much more amorphous and Susan knows that better than me. But the Court ought to leave those other parts out because they are amorphous, and therefore not judicially manageable, but Congress could build them in if it took the responsibility. So the Court would not be for considering other things like environmental impact or something like that. But Congress could add that in.

 

      So then I think $100 million, that sounds pretty judicially manageable to me. So that’s number two. What about strong political opposition? Well, as I’ve just said, the polls indicate there’s strong public support for a Congress that takes responsibility. I think the ducking is part of the polls show that the public has such a contempt for Congress. So I think the political opposition and the strong political hostility won’t be a problem if we can deal with the fourth problem, which is reliance on delegation.

 

      I’m onto that one. The Court could point out to Congress that it could take care of all of these old regulations by approving them en masse. Now, that’s no real political accountability. But that’s gets rid of the problem for the time being. And if Congress is unwilling to do that, the Court could -- I believe there’s a very strong argument for this despite some cases we could talk about later, could make the new standard applicable only to new regulations, not existing regulations.

     

      So we knocked down all four of those constraints. Now, there’s a lot of issues to be parked out here, and I don't have that time to deal with them all here, but there’s an article that’s going to be published soon in the Harvard Journal of Law and Public Policy I’ve written that marches through them. It’ll be out in January. I hope you're patient enough until then. But I think there’s one point I do want to say a little bit about. Is this too bold for the Court to do? I mean, it would be quite a change, right? Well, I have a couple things to say in defense of it.

 

      Number one, it’s sticking with the original meaning and, in fact, the meaning that the Supreme Court has given lip service to consistently from the beginning. Number two, it would be a new test to better deal with constraints on enforcement. And the whole point of Lessig’s book is—not the whole point, but a big point is that when there’s better ways -- when the Court realized there’s better ways of getting around constraints or times of change and the constraint isn’t there anymore, the Court has done it. It has changed its tests. And in fact, one change it made was adopting the intelligible principle test. It’s done it with delegation.

 

      In closing I want to say this: instead of enforcing this doctrine, this fundamental doctrine that has to do with, I think the most important principle in the Constitution, which is a principle about consent of the governed -- so in response to that principle -- in response to the argument that Congress unconstitutionally outsources its responsibility for the laws, the Court outsources to Congress its responsibility to judge compliance with the Constitution. That is poetic injustice.

 

[Applause]

     

Prof. Alan Morrison:  So happy to be here, and as a famous orator once said, “I do not come to praise delegation nor to bury it but rather to see that it’s properly applied.”

 

[Laughter]

 

      The proof of the validity of a theory is, in my judgment, dependent upon how it’s applied in practice. So I want to talk to you about a case in which I’m the chief counsel that’s litigating the delegation doctrine this very time. The case is called The American Institute for International Steel v. United States. And it involves the delegation that Congress gave in the Trade Expansion Act of 1962 to the President of the United States to control the level of imports of products into the United States. The case is now in the Federal Circuit. It’s going to be argued the first week in January. There’s a question presented about a prior case that the Supreme Court handled on this very question. But ultimately, if the case gets to the Supreme Court, that prior decision will not be of any impediment to the Court if it doesn’t want to be an impediment. If it wants to be an impediment, it can duck it that way.

 

      But the question presented is, “Is the National Security Delegation in Section 232 excessive under the delegation doctrine?” First, let me start with a couple of facts about the statute and how it’s operated in the context of the delegation that the President used in March of 2018 to impose tariffs on all imported steel.

 

      The President chose to impose a tariff of 25 percent on all imported steel. That number is completely made up. It’s not contained in any place in the statute. He could’ve imposed a 5 percent tariff or a 50 percent tariff. He could’ve imposed quotas, licensing fees, import restrictions, anything he wanted to do he could do under the statute. And by the way, nobody disputes that.

 

      In fact, six months after he got into the statute, he got angry at Turkey. And so he doubled the tariffs on the steel imports from Turkey to 50 percent, and then six months later he backed down and said, “No, I’ll back them off.” While this was going on, he initially imposed tariffs on everybody and then he changed his mind and said, “We’ll have quotas for some and we’ll have other restrictions for other people. The people that I’m happy with will get one, and to the other people we’re happy with, other trade agreements, will get another.” All entirely within the limits, without any limitation in the statute whatsoever.

 

      I gave a talk about this statute to a bunch of trade lawyers six months ago. And I said to them, “All steel products are not fungible.” And the room broke laughing, and I said, “I never realized that was such a funny statement.” Well, it is to trade lawyers because it turns out that there are 177 different classifications of steel under the import tariffs, and they in fact are not fungible. They're used for different purposes; they come in different ways into the United States. Some of the steel products are finished products, semi-finished products. They have very different uses in the industry. The standards are very different for all of them. And in some we have no defense needs for them, and some we have major defense needs for them. And some we have more than adequate supplies in the United States and others we do not have. But the President chose, because he could do so, to treat every steel product exactly the same.

 

      Third, he gave no consideration to the adverse effects on other segments of the economy. For those of you who are aware of what happened, not unexpectedly foreign countries retaliated massively against the United States. And guess who was the biggest loser in these? The farmers. And so, for political reasons, the President has now spent $29 billion on farmers to subsidize their losses of crop sales overseas, and there’s more coming down the road. And that’s all because he didn’t have to take into account these other facts, even though everybody who was aware of the industry knew what was going to happen.

 

      Finally, there’s no judicial review whatsoever of the President’s determinations of any kind. Everybody agrees with that. Even the Justice Department agrees that there’s no judicial review. And that’s because the decisions are those of the President and he is not subject to the Administrative Procedure Act. In addition, there are no notice-and-comment provisions. The President’s decision on 25 percent was never subject to any question as to whether it’s the right number or anything else. And so we have, essentially, a President who can do whatever he wants to do because he can do it.

     

      So what’s the legal theory in the case? The legal theory is actually quite simple. It may be wrong, but it’s quite simple. We looked at the statutes that Congress has passed and that the Supreme Court has upheld. And in every one the Court talks about boundaries. There have been boundaries this way and that way. And we say in this situation, “There are no boundaries in Section 232.” We have been challenging the government since the case began, “Tell us one thing the President cannot do under this statute other than affect products that are not imports—that is he cannot deal with domestic products.” And the government has been unable to challenge at all -- has been able to respond at all.

 

      And so we say the President can do anything he wants to do. And we cite, reminiscent of this, the case called United States v. Lopez, which as most of you know, is a Commerce Clause case, in which the Court said to the government, “Tell us what the government can’t do -- Congress can’t do under your theory of the Commerce Clause?” The solicitor general was unable to explain what Congress could not do, and the Court said “That shows there are no boundaries under the Commerce Clause. We have a system of limited government; that cannot be the right answer. And we cite Lopez, and we think the same principle that applies in Lopez applies in this case here.

 

      Now, in terms of the analysis under the statute, we break statutes down into two parts. This is not something that other cases have done, but I think it’s consistent with the outcome of the way courts have actually analyzed them. The first part we examine what is the trigger; that is what must the agency, or in this case the President, find in order to be able to employ the remedies under the statute?

 

      So the trigger here is that the level of imports and the circumstances of the importation may have an adverse effect on national security. “Well,” you say, “national security. That could be very broad, and that the President’s got a lot of authority under national security.” Well, not quite so fast. Two things about that: first in this very case, as required by statute, the Secretary of Defense was asked “what about the national security implications of imports of steel?” The Secretary of Defense wrote a letter, which is in the record, and says, “Not a problem. We got all the steel we need for all of the defense needs.” National security by the board.

 

      Second, and this probably the most significant. The statute doesn’t stop with national security as most of us think of national security. But it includes, in a very long paragraph which you cannot say in fewer than five or six breaths, that it includes, essentially, everything in the economy or any industry in the economy. In other words, anything. And so we say that the trigger on the front end is as broad as it could possibly be for imports. In other words, they don’t have to find anything, and of course there’s no judicial review.

 

      In that connection, this case was filed in the Court of International Trade, not my usual venue for litigation. But that’s where it had to be filed. And when we had the hearing there, the judge said to the counsel for the government, “Could the President ban the importation of peanut butter?” And the government lawyer hemmed and hawed and didn’t answer the question at all. But the one answer she had for the question was, “Well, whatever he did, the Court could not review that determination.” Translated to me means, “Yes, the President could ban the importation of peanut butter under this statute.”

 

      So we say the trigger is very broad, but our principle focus is on the remedies. That is the President has, as I outlined before, an unlimited choice of remedies. There’s nothing he can’t do in any amount for any reason or for no reason just because he’s the president and there’s no way to control it either in the statute or otherwise. He can do whatever he, in the language of the statute, “deems appropriate.” And if that isn’t open-ended language without a boundary, I don't know what it is.

  

      So what does Gundy have to say about all of this? Well, I looked it up today and cert was granted in Gundy 10 days before the President issued these tariffs. And I knew about the cert grant in Gundy. When I saw about the tariffs being issued, I talked to one of my colleagues, who’s a trade person, and said, “What’s this statute all about?” He pointed me to it, and I said, “Hmm, Gundy says maybe there’s some life in the delegation doctrine, and so let’s take a look at it.” And we looked at it, and found, yes, there’s at least some interest in the Court in reviving it. When Gundy was granted, there had been 11 circuits that had looked at this question and every one of them had come down in favor of the government. And cert had been denied half a dozen or 15 times before Gundy came along and cert was granted. Something was going on there which gave us some hope. So in that sense, Gundy surely, for those who are concerned about the extent of delegation, gives us some hope.

 

      What does Gundy actually decide? Not very much. If you read the opinions, or when you read the opinions, Justice Gorsuch’s principled debate with Justice Kagan goes over what the statute meant. Justice Kagan saved the statute by claiming that it dealt with “feasibility.” That’s a very difficult argument to make. The government had not made it in the prior cases under this statute and she made the argument and she got three other votes to go along with her.

 

      Justice Gorsuch said “Well, that’s not feasible -- that’s not a proper interpretation of the statute. And since it’s’ completely open ended, then therefore it’s unconstitutional.” Justice Kagan said, “Well, if you interpret the statute the way I do, there’s no delegation problem at all,” and I think that’s probably correct. If the word “feasible” -- if the word said, “Attorney General, you should do this as soon and as comprehensibly as feasible,” I don't think anyone would’ve thought that was a very good delegation case to take, no matter what your views are on the doctrine. But that’s not what the statute said.

 

      Second, Justice Gorsuch spent a lot of time doing what, in some respects, sounded more like a treatise or a law review article rather than the application to a particular set of circumstances. And so I don't take much from the decision other than the fact that there is obvious interest in the Court in cutting into it. As Kristen said a moment ago, Gundy rehearing has been filed. The basis for the rehearing is that there were only four justices. There are now -- oh, I’m sorry. Only eight justices, there are now nine and so we should have a decision reviewed, reheard. But in addition, there are two other cert petitions, at least, with the exact same question presented that they don’t have to have rehearing. It’s on the conference again for tomorrow. This is the eighth time this case has been on the conference. Just as we wondered about what was happening with Gundy the first time it got decided, we’re wondering what’s happening or what’s taking so long this time as well.

 

      All right. So let me just -- in addition to the open-endedness of the trigger, and especially the remedies, we point to a couple of other factors. The absence of any judicial review of the discretionary determinations by the President. If, as the Court has said, we have to be able to determine whether the agency or the President is following the law, if there’s no judicial review, that’s impossible to determine by Congress, by the courts, or by the people whether the President is obeying the law. And in the absence of judicial review, is in our view a recognition by the Congress that there is nothing to review; that they intended to give everything to the President, which is exactly the delegation problem we’re talking about. The APA doesn’t apply in any of its procedural requirements; none of the other executive protections are there.

 

      So let me turn last to a somewhat broader notion of delegation. I think the fundamental reason why delegations have been approved is the recognition that while Congress can make a number of important policy determinations, it cannot do what the voting members of Congress and the public want the federal government to do today. Just think about the Whitman v. American Trucking Association case. There’s no way that Congress could have written those rules. If it wanted the rules written and required, they’d be updated every five years. It can’t pass the budget; it can’t do other things that are essential. How in the world is it ever going to do anything like that?

 

      Now maybe people think, “Well, that’s okay. We don’t need those rules; shouldn’t have them.” But as long as we’re going to have the rules, we’ve got to have some system under which Congress can delegate substantial authority with, in that case, full, full APA review of the determinations made by the APA there.

 

      Second, and this is really what Gundy was all about, Congress was unwilling to make hard choices in Gundy. One house of Congress said that these provisions for notification should be retroactive and should apply to offenses that occurred before the date of the statute. The other house said, no, they shouldn’t be retroactive. And the states actually supported that because they saw this as an additional burden. So it was an important, political question to be decided. So when they went to conference, they decided just split it down the middle by giving it to the Attorney General. That seems to me to be fundamentally wrong having nothing to do with the lack of expertise in Congress or the inability to predict the future, or time, or anything like that. They just refused to make a clearly difficult, political decision. And it’s hard to understand why we have to protect that kind of non-decisional activity under the delegation clause or otherwise.

 

      Two other points I want to make about this. One is that laws like Section 232 were written at a time when we expected those carrying them out to provide by some norms. The statute has been used dozens or so times since it was enacted, almost always in the case of petroleum, for very short periods of times, modest levels of control by the government. And now this steel imports, at least according to all of the trade lawyers I’ve talked to, is like no other act under Section 232. Far broader, far longer, much bigger ramifications than ever before. And it’s the breaking of the norm which is permissible only because the statute has no norms or controls in it. That is problematic. And that Congress has to try and recognize that when they write the statutes and see how broadly they might be construed, not how broadly we think they will be construed as we go forward.

 

      Congress clearly can’t do everything, but it surely should be able to do more than it’s doing now. My goal is not to try to stop the administrative state but to make it more accountable. Thank you.

 

[Applause]

 

Hon. Ryan D. Nelson:  I’d like to thank the panelists for their comments. And maybe we can have some rebuttal time. And Ron or Kristen, if either of you would like to respond to David’s proposal, that might be a good way to start it off.

 

Hon. Ronald A. Cass:  Well, let me just make a few observations. First of all, David mentioned that 80 percent of the public believes that Congress should make all of the important decisions. I’m skeptical about polls because I think 80 percent also believe that we should adopt only the first five words of the First Amendment, which says “Congress shall make no law.” While people want Congress to make hard choices, they want Congress to make the choices their way. And of the things that Congress has learned is that you get further by making no hard choices than you do by making unpopular hard choices.

 

      Alan was talking about the peanut butter issue. I think that’s a sticky issue, so I’ll leave that. The problem -- I don't think that -- I admire a lot of David’s work in this area, and David’s been writing in this area for a very long time. I don't think the rule that he’s proposing is one that the Court really can do. I don't think the Court can adopt, essentially, the same sort of rules that OIRA operates under in terms of the amount that makes a rule, a major policy rule that triggers OIRA review.

 

      I do think that all of us are grappling with a way of operationalizing the non-delegation norm. It is hard to do. I think that Chief Justice Marshall almost 200 years ago—time passes very quickly when you're having fun with topics like this—I think he came as close as you can. I think just saying that you have to make the most important choices is about as good as you're going to get. And having the Court periodically step in and strike something down for not making the hard choices -- we’re were talking about having incremental progress. I think incremental progress is better than excremental progress. Doing crappy things is not as good as doing good things, even if you do them a little at a time.

 

[Laughter]

 

Hon. Ryan D. Nelson:  Kristen, I don't know if you had anything to add, or maybe we just move on.

 

Prof. Kristin E. Hickman:  How could I follow that? I think the only thing I want to say with respect to David’s proposal is that one of the difficulties here when you start talking about getting Congress to make the hard choices is that the sheer volume of what agencies are doing at this point, I think to the extent we try to run -- I mean, this has always been the problem with the Reins Act, right, is that when you contemplate Congress considering all of the things that agencies are doing, there aren’t enough hours in the day for them to tackle all of that. It’s not a very satisfying answer. It doesn’t necessarily mean we should be happy with the status quo so much as it does present just a logistical difficulty when you start talking about Congress making the hard choices.

 

Hon. Ryan D. Nelson:  And David, feel free to respond as you want.

 

Prof. David Schoenbrod:  There are some things they said that I’d like to respond to. 

 

Hon. Ryan D. Nelson:  Okay. Go ahead and do that, and then I have a question.

 

Prof. David Schoenbrod:  So Ron, you say that Congress gets nowhere by making the hard choices. Well, I agree in terms of re-election that this is not -- that making hard choices is not the way to get re-elected. But if we have a situation where they're stuck in a corner, then I think they're going to have to make the choices. And I don't think it’s a question one where like you're saying -- where Alan Morrison is saying, “Well, Congress just doesn’t have the expertise.” I go back to Landis. This is what Landis said about this kind of thing. We have “the administrative agency is the technical agent in the initiation of the roles of conduct. Yet at the same time, to have the Legislative Branch share in the responsibility for their adoption.” I think we can have the best of both worlds.

 

      Now to me, either the Gundy Gorsuch dissent or knocking off a statute every once in a while is not a good idea. Justice Scalia, when he was a law professor, wrote an article in Regulation Magazine in the 1980s saying, “Every once in a while, the Court should knock off a statute.” Well, he got on the Court; he didn’t do it, right? And the reason I think fundamentally is that unless you can explain why you're knocking off this statute or that statute, it looks totally lawless. It looks like a judicially unmanageable test. It shows the Court picking and choosing among statutes and regulations. And that’s just terrible for the Court. That really does look quite political and not judicial. So it seems to me that if they do something kind of analogous to one person, one vote, and they make a bright line, then they're not picking -- like $100 million a year, they're not picking and choosing. And they're insulated to some considerable extent from the accusation that they're being political.

 

Prof. Alan Morrison:  Well, I can’t resist. The notion that a Court, the Supreme Court, should draw $100 million line as a constitutional principle seems to me to be offensive to every notion that I’ve ever heard in the judiciary. It’s not -- you can’t have a reasoned explanation. Are they going to put an inflation adjustment in it as well? CPI with or without adjustment? Just no. That’s just not an answer to the problem. Nor is the answer to the problem words like important from Wayman or technical or fact finding. Those just are so squishy.

 

      We ought to recognize that in -- let’s take the EPA regs at issue in Whitman. There were significant policy choices made in those regulations. That’s what the companies were unhappy about. They didn’t like the choices that had been made. Some of them were made in the statute. But there cannot ever be a situation in which Congress is going to be able to fill in all of the blanks. And as soon as Congress is going to pass laws that the American people seem to want in these areas, we’re going to have to accept some degree of delegation.

 

      My submission is there’ve got to be some outer limits. There’s got to be some way in which we can say that the agency has gone beyond what they’ve been permitted to do. And Congress has to pay more attention to the remedies and what is available and what the agency or the President can do. But writing $100 million in a constitutional decision offends my every sense of what a judicial decision should be.

 

Prof. David Schoenbrod:  I’d like to reply very briefly to that.

 

Prof. Alan Morrison:  Okay.

 

Prof. David Schoenbrod:  So in defense of my position, first of all, I would have the Court give the first crack to Congress to draw the line. And if Congress doesn’t, then the Court could say, like it does with the redistricting, “We gave them a chance; they didn’t do it.” And they could revert to the $100 million because that has some bipartisan authenticity to it. Yes, it is -- the Constitution says nothing like $100 million. But it also says nothing about why 10 percent variation is the right line to draw with one person, one vote.

 

Prof. Alan Morrison:  That’s only for the states. There’s no variation in the federal Congress. That’s only for the state rules on one of their houses. But anyway, we will disagree about it.

 

Prof. David Schoenbrod:  Okay.

 

Hon. Ryan D. Nelson:  Well, Ron, in your article “Delegation Reconsidered,” you took the position that the nondelegation doctrine should focus first and foremost on the nature and authority granted by Congress. In your view, do the rules announced in Gundy, does that do the work that you were looking for?

 

Hon. Ronald A. Cass:  Well, I’m fundamentally sympathetic to the approach in Gundy, although I think that there is more attention paid to the scope of the delegation than simply to the nature of the delegation. But obviously, there’s language in the opinion for Justice Gorsuch and the Chief Justice and Justice Thomas that does take up the importance of the nature of the regulation of rules for society.

 

      When you look at what we have now, we have a U.S. Code of about 30,000 pages. And we have a Code of Federal Regulation, of agency-adopted rules, that runs over 200,000 pages. And it’s like reading a bad novel 200,000 times. A lot of that 200,000 pages are rules that are criminally enforceable. And if the law, if the notion of due process means anything, it means that you need to have the legislative authority adopt the rules that if you violate them, you're going to be guilty of a crime. In the old days, the criminal code either consisted of things that everybody knew were criminal. You could write it on a few stone tablets. And for most people, I think of it as the Ten Commandments. I think Bill Clinton called it the Two Commandments and the Eight Suggestions.

 

[Laughter]

 

      I may have that wrong. Although I do think Moses came down from Mount Sinai and said, “The good news it I got Him down to 10. The bad news is adultery is still in.” I think it’s important that if you're not going to have rules that are intuitive to everybody, that everybody understands are criminally punishable, that they're adopted by the Legislature and they're adopted in clear terms.

 

      I also just would say one thing on David’s comment about “we can have the best of both worlds.” I’m reminded of the conversation that Winston Churchill had with a lovely young woman who said, “Winston, we should get married. Think of the children we’d have with your brains and my beauty.” And Winston said, “Ah, yes, ma’am. But think of the children we’d have with your brains and my beauty.” It’s not always easy to get the best of both worlds.

 

[Laughter]

 

Hon. Ryan D. Nelson:  Alan, you talked about your case that’s going up now, or you have now before the Federal Circuit. And you are now dealing with Gundy, which I take it was not there when you -- in the lower court. Now that Justice Gorsuch has weighed in and he seems to have approved delegations that implicate the President’s inherent Article II authority over national security and trade, do you think you have to address or convince Justice Gorsuch -- if your case were to go up to the Supreme Court, would you have to convince him to soften his views on that point?

 

Prof. Alan Morrison:  Soften his views? No. I mean, he seems to agree with me, but I read his opinion as being far broader than what I need to have to win my case. We have not included a lot of discussion of Gundy in our Federal Circuit brief, largely because we tried to focus our case on this statute and how open-ended it is. And Gorsuch’s opinion is more philosophical and broader and it deals with a very different statute. And one of the points that we make throughout the brief is that each statute has to be looked at on its own, examining both the trigger and the remedies, and therefore, looking at what the Court did in another statute is not all that helpful, particularly when the principle issue in Gundy was what the meaning of the statute was to begin with. And we say that that’s not the problem in our case.

 

Hon. Ryan D. Nelson:  But I guess the question is do you think that a statute dealing with national security or trade would be right statute to take up post-Gundy if it’s not reconsidered?

 

Prof. Alan Morrison:  Well, Gorsuch does talk about national security, and the government does raise the national security flag in defending the statute. But we think that that’s not a good, fair designation of what the statute is about. And as far as this being the right case, we have clients with real money at stake and they want to challenge this. And we think -- as one of the judges said in the lower court, if this isn’t excessive delegation, please tell me what is. And that’s our theme in this case.

 

Hon. Ryan D. Nelson:  We have time for questions if anyone has any. Go ahead.

 

Devon Watkins:  Devon Watkins from the Competitive Enterprise Institute. The primary problem it seems that you're describing of Justice Gorsuch’s opinion is that it doesn’t draw a bright enough line for you; that it’s a little too squishy it be able to be properly, judicially enforced. As someone who wrote an amicus brief in that case, I see Justice Gorsuch’s opinion as quite a bright-line rule if it’s properly understood, especially his part about J.W. Hampton. J.W. Hampton and the intelligible principle test, he seems to suggest, was rightly decided. It is the later course that misinterpreted the intelligible principle test to allow things like “in the public interest” or whatever as being intelligible principle that were not actually understood as intelligible principle in that case. Especially if you look at Justice Story’s commentaries on the law of agency, which was cited, and they quoted the Latin phrase from that treatise where they get into the principles of agency. And that the people delegate their power to Congress, and that, then, understand the law of agency cannot be subdelegated but for ministerial acts. That seems to be a very bright-line rule between questions of fact and questions of law that seems to be, at least, justiciable.

 

Prof. Kristin E. Hickman:  So I’m going to take this one, or I’ll tackle it. I think there’s a very big difference between contemporary statutes and the statutes of the era of J. W. Hampton. And I think therein lies a big part of the problem because the test that Justice Gorsuch describes, I think is easy when you have a simple statute. I think it’s really, really, really hard when you have 1,000 pages of Affordable Care Act or Sarbanes-Oxley or Dodd-Frank or whatever where the difficulty really does lie in the fact that the policy issues are embedded in all of the arcane details.

 

      It’s not that Justice Gorsuch’s test is mushy; it’s that in the fact of contemporary statutory text, I find it meaningless. And that’s where -- I haven’t written the article yet where I try to apply it in some cases. I’m hoping to maybe do that in the spring -- or some statutes, I mean. I’m hoping to maybe do that in the spring. But at the same time, that’s the fundamental problem that I have is that it’s just that it’s mushy; it’s that it’s meaningless in the face of the details and the complexity of contemporary statutes.

 

Prof. Alan Morrison:  Yeah, I agree with Kristen that the problem with the opinion is that it doesn’t tell you which other cases are going to come out differently. He says there’s been this big change after Hampton, but doesn’t tell you which actual cases he would decide the other way and more importantly, what aspects of those other statutes make them improper delegations.

 

Prof. David Schoenbrod:  I would pile on and say that the test doesn’t make clear how much -- doesn’t make clear whether Congress has to specify the rules or the goals, and if so, to what extent. It’s kind of like I know them when I see it, and I think it’s harder to know when you have more complex statutes. But beyond that, the very fact that we have all of these 200,000 pages of Code of Federal Regulation means that all of the sudden overnight the whole thing is somewhat under a cloud and people aren’t going to know what to do. And I think it would create an atmosphere of crisis in terms of -- for those people who are regulated. And also the people with advocacy groups, the beating up the -- the frothing up the resentment, and it would just be a terrible pressure on the Court.

 

Hon. Ryan D. Nelson:  Let’s take another question here.

 

Questioner 2:  You mentioned Obamacare. One thing that comes to mind is that Chevron counts, except that if it’s really big, then we don’t apply Chevron. It sounds like that same idea, whether it’s $100 million or not, you could say if the delegation is really big, then we don’t allow it. But how do they do that with Chevron? How is that somehow justiciable and some other bright line isn’t? My real question is no one has mentioned the Congressional Review Act, I don't think. I think we’ve mentioned Reins. Does the Congressional Review Act have any effect on this analysis?

 

Prof. David Schoenbrod:  Well, what the Congressional Review Act does is it gives Congress the option whether to vote on hard choices, whereas the kind of statute I’d be hoping that Congress passes is one that would require them to vote on the bigger regulations. Now, in point of fact, up until Trump was elected, Congress only opted to make the hard choices once. And the reason that there was so many votes possible after Trump was elected was the Obama administration wanted to put all of the hard choices off until the end of the term, expecting Hillary Clinton as president would make sure nothing got bumped off.

 

      But even with the Republicans in charge of the Senate, the House, and the White House, they did not vote on most of the things that they could have voted on. They only voted on the stuff that were easy votes for their party in Congress.

 

Hon. Ryan D. Nelson:  Let’s take a question over here.

 

Brian Bishop (sp):  Thank you. Brian Bishop, the Stephen Hopkins Center for Civil Rights. I wanted to quickly throw David a bone in his argument about the Court establishing arbitrary numerical filters for this. I do believe that there was a case that was affected in the federal arena that said something about a law going on for another 25 years. I think it was Sandra O’Connor who said that.

 

Prof. David Schoenbrod:  Oh yeah!

 

Brian Bishop:  It just seems to me that, as you pointed out, it’s quite common for the Court to resort to this. But I also wanted to add I think the importance here that we haven’t hit is emphasizing the distinction of the process or the protections that the constitutional structure provides versus the substance of rights. And an area I was hoping that we’d see a challenge was on the President’s orders on immigration, operating under 8 U.S.C. § 1182 where it says that whenever the President finds that the entry of any aliens of any class would be detrimental to the interest of the United States, he may by proclamation suspend the entry of all aliens of any class.

 

      Now that has no -- there is a word in there, “detrimental.” But this is an area of substance that seems to me that would attract, suddenly, much interest in whether or not that is a proper delegation.

 

Prof. Alan Morrison:  Yeah, I don't know . . .

 

Prof. Kristin E. Hickman:  Well, I’ll bite. I’ll try. One of the things that I think is really interesting here is that we are fixating a lot—and I understand why—on broad, highly-subjective quasi-meaningless words like “detrimental,” “feasible,” “reasonable,” etc. And I do think rightly so because they're contentless. You can look them up in the dictionary but that doesn’t tell you what they mean in the context of a statute. I’m not sure that’s the right way to fixate because at least one, maybe not with respect to that particular immigration context with which I am less familiar, okay? But at least in a lot of administrative law context, when you have an express delegation to do something -- and by this I mean explicit, rather than the implicit feasibility that Kagan read into the statute in Gundy. But you always have State Farm as a backstop, where the Court -- the agency at least has to articulate its justifications for acting the way it is, and you‘ve got judicial review on that basis. There’s not much to interpret as a Court with words like “feasible,” or “reasonable” or what have you.

 

      Actually, the delegations that bug me on a certain level are the ones where the statute just gives the agency the authority to adopt all needful rules and regulations to effectuate the statute without specifying exactly what beyond the four corners of the larger statute, those rules might actually do, and then leaves it to the agency to fill in the blank as it finds it.

 

Hon. Ronald A. Cass:  If I can jump in on this as well. There are terms, like “reasonable,” that we’ve had in different contexts. Reasonable rates – we’ve had a whole body of what a reasonable rate consist of that was worked out at common law and then taken into statute laws. The problem is when you use those terms outside a context where it has a defined meaning or relatively definite meaning or a body of law that gives it some structure, that’s the place where you're in the soup.

 

      That’s why I go back to the NBC case back in 1943 where you had -- when you're looking at assigning different frequencies, you have a series of problems involving where frequencies will interfere with each other. How much separation do you need? How wide an area can you allow a frequency to operate in, which is a function of the power as well as the nature of the broadcast? How wide an area can you have it operate in without creating a series of problems? And what you had being worked out by the Federal Radio Commission, and then by the FCC, was a series of rules about the technical aspects of radio allocation. What Frankfurter did in the NBC case is said we can is said we can apply that to the entire field of broadcasting and allow regulation of the entire field based on that.

 

      That is what gives the green light to Congress to enact statutes that give out large amounts of power without real defined understanding. And then whatever happens ex post is the question about the CRA -- whatever happens ex post is largely a function of other political decisions. And Congress works hard using its power over appointments to the agency, oversight to the agency, to do a different version of lawmaking, but it’s one that doesn’t in any way involve the sort of lawmaking process the Constitution has.

     

      I’m sympathetic to Justice Gorsuch and Justice Thomas and Chief Justice Roberts’ effort at trying to find a way to cabin this, even if it is an imperfect effort.

 

Hon. Ryan D. Nelson:  All right, I think we have time for one more question here.

 

Cameron Atkinson:  Thank you, Judge. Cameron Atkinson from Connecticut. So Chadha kills even the prospect of a bicameral legislative veto. Scalia’s dissent in Morrison would essentially preclude that as an option. So my question is is when we look at the broader context, of Congress starting to either delegate power to an administrative agency or work within an agency, aren’t the courts really falling over themselves, in essence, to create a nondelegation doctrine because they haven’t taken the step of going back and reaching a more definitive conclusion on their interpretation of what the words in the Necessary and Proper Clause actually mean?

 

Hon. Ryan D. Nelson:  I don't know who wants to take that one. David or Kristen, you can take another stab?

 

Prof. Kristin E. Hickman:  That’s a tough one.

 

Hon. Ronald A. Cass:  Good answer.

 

[Laughter]

 

Prof. Alan Morrison:  If we think it’s hard for the Court to back down on the delegation doctrine, I think the Necessary and Proper Clause is even harder.

 

Prof. Kristin E. Hickman:  I’ll second that one.

 

Prof. David Schoenbrod:  I third it.

 

Hon. Ryan D. Nelson:  Okay, I think we ended on an agreement, and I’d like to thank the panelists for their time.

3:30 p.m. - 5:00 p.m.
The Wisdom and Legality of Sanctuary Cities

2019 National Lawyers Convention

Topics: Criminal Law & Procedure • Federalism • International & National Security Law
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 14, 2019, the Federalist Society's Criminal Law & Procedure Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "The Wisdom and Legality of Sanctuary Cities".

The issue of sanctuary cities has increasingly been in the news in recent years. The Trump administration has threatened to cut off funds to sanctuary jurisdictions and to transport aliens who enter our borders to those jurisdictions, and also claims that these jurisdictions are endangering their citizens. Sanctuary jurisdictions have challenged (so far successfully) the administration’s ability to cut off funds, and has cited the 10th Amendment, among other arguments, to support their actions. They also argue that being a sanctuary jurisdiction actually helps their law enforcement efforts by encouraging illegal immigrants (who are often victims or witnesses of criminal conduct) to “come out of the shadows” and cooperate with law enforcement officials. A Massachusetts judge and her bailiff were recently indicted for helping assisting an illegal alien escape the clutches of an ICE agent who was waiting to arrest him, and federal authorities are still contemplating charges against Oakland’s mayor for warning illegal aliens that immigration authorities were about to conduct raids looking for them. We could debate the legal and moral questions surrounding sanctuary cities.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Hon. Stephanos Bibas, United States Court of Appeals, Third Circuit
  • Mr. Mark Fleming, Associate Director of Litigation, National Immigrant Justice Center
  • Mr. Christopher Hajec, Director of Litigation, Immigration Reform Law Institute 
  • Hon. Jefferson B. Sessions III, Former United States Attorney General
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
  • Moderator: Hon. Kurt D. Engelhardt, Judge, United States Court of Appeals, Fifth Circuit
  • Introduction: John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation

Speakers

Event Transcript

John Malcolm:  Come on in. Come on in. Take your seats. So my name is John Malcolm, and I am the chairman of the Criminal Law Practice Group. And I welcome you all here to our breakout session. I’m pleased to see such a packed room. By dint of that, I would assume that many of you have an interest in criminal law.

 

We have a very active practice group. We host a lot of events and telefora. We have our own Facebook page. And I will be around for the rest of the convention. So if any of you are interested in finding out more information about our practice group or are interested in getting involved in the group, please come up to me and let me know of your interest and I’ll be sure to follow up with you.

 

Without further ado, I’m going to bring up our moderator, Fifth Circuit Judge Kurt Engelhardt, and we’ll kick off our program. Thank you.  

 

Hon. Kurt D. Engelhardt:  Thank you all for being here and welcome to the session on -- it’s entitled “The Wisdom and” -- I’m sorry. I’m looking at the wrong thing here. Sanctuary cities, right? In a victory for the State of Texas, my court, the Fifth Circuit Court of Appeals, last year vacated almost all of a preliminary injunction issued by a district court that was preventing the Lone Star State from enforcing a state law directed to sanctuary cities, such as Austin, the state’s capital. Texas argued, among other things, that sanctuary policies allow “dangerous criminals back into our communities to possibly commit more crimes.”

 

To stop Texas from becoming a sanctuary for criminal aliens, the state Legislature passed a law that required local governments to comply with federal immigration law. That included Title VIII United States Code Section 1373, which we’ll discuss in further detail, and which forbids state and local governments from preventing their officials from sending information to the federal government on illegal aliens who have been arrested or otherwise detained. In fact, the state law requires city and county official to assist federal immigration agents in their enforcement efforts and, most importantly, to comply with, honor, and fulfill any detainer requests made by the federal government.

 

Local sheriffs and city police departments that fail to honor federal detainer warrants, which are requests issued by federal immigration authorities to hold illegal aliens for pickup, are therefore in violation of state law. Texas law enforcement officials can also be charged with criminal misdemeanors for failing to honor detainer warrants. And the state Attorney General can file a petition with the state court to remove them from office.

 

I’ve got to get this microphone in the right spot. Pardon me. Maybe that’ll work.

 

The Texas statute imposes a civil penalty on sanctuary cities of up to $25,500 for each day they intentionally violate the law. Only two days before the law was scheduled to take effect on September 1, 2017, a federal district judge issued a preliminary injunction stopping Texas from enforcing the most important provisions of the law.

 

That injunction was vacated by a three judge panel of the Fifth Circuit in an 18-page opinion written by my colleague, Judge Edith Jones. The panel dissolved all of the injunction, except for a very minor provision. This case and others like it question what areas of the law the states and the federal government share responsibility.

 

This issue is not new. Section 8.4 of Article I gives Congress exclusive authority to “establish a uniform rule of naturalization,” just as Section 8 gives Congress the exclusive authority to establish and collect all imposts and excises or tariffs. In 1832, President Andrew Jackson faced the nullification crisis in which Vice President John Calhoun’s South Carolina and other states maintained that they had the final authority to declare federal laws unconstitutional and thus null and void within each state. Jackson considered this unconstitutional, claimed it to be “an abominable doctrine,” and that it would “dissolve the union.”

 

Undeterred, the nullifiers took control of the South Carolina government in 1832 and passed what is known as the Ordinance of Nullification. Now, President Jackson responded by issuing a nullification proclamation in December of 1832, and the showdown was on. The proclamation state that the nullification was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which is was founded, and destructive of the great object for which it was formed.” Of course, that crisis was resolved by a compromise on tariffs in 1833, which compromise also gave the President the power to use state militias and federal forces against the nullifiers.

 

I might also add, parenthetically, I recently came across on of the many Ken Burns documentaries on prohibition. And the middle of the three episodes or three sections on prohibition is called “A Nation of Scofflaws.” So we’re here today to discuss whether sanctuary cities make us a nation of scofflaws or whether they are a true exercise of federalism in the most raw form. With this backdrop, we’ll discuss those concepts and the practicalities of sanctuary cities in this country.

 

We have a very esteemed panel here to discuss these issues, and I’ve enjoyed working with them. And I know you’re going to enjoy very much hearing from each of them. Their bios are on the app, but I’m going to go ahead and cover some of the highlights here for each. If I covered all of their many qualifications, we wouldn’t have time for the program.

 

First, my colleague from the Third Circuit Court of Appeals, Judge Stephanos Bibas was nominated to that court by President Trump on June 19, 2017, and officially joined that court in November 2017. He received his bachelor’s from Columbia University and Oxford and is a 1994 graduate of Yale Law School. I’m proud to state that he served as a clerk in the Fifth Circuit under my colleague, Judge Patrick Higginbotham, then entered private practice here in Washington, D.C., before clerking for Justice Anthony Kennedy in the 1997-98 term.

 

He served as an Assistant U.S. Attorney in the Southern District of New York and as a professor of law at the University of Iowa, University of Chicago, and University of Pennsylvania. At Penn, Judge Bibas directed the Supreme Court clinic, for which he litigated a wide range of appellate cases under consideration before the U.S. Supreme Court and personally argued at least six of those prior to taking the bench.

 

Professor Ilya Somin is a professor of law at George Mason University and focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy. His work has appeared in numerous scholarly journals and law review publications, as well as popular press outlets. He has testified before Congress on multiple occasions and is a regular contributor to the Volokh Conspiracy blog. Professor Somin earned his bachelor’s with honors at Amherst College, a master’s in political science from Harvard University, and his law degree from Yale Law School.

 

He has published two books, one called Democracy and Political Ignorance: Why Smaller Government is Smarter and another by the name of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain. He will be a visiting scholar at the Georgetown Center for the Constitution during the spring 2020 semester. I’m also proud to say that, in 2001 and 2002, he clerked for my other colleague on the Fifth Circuit, Judge Jerry Smith.

 

Next, of course, is former Attorney General Jeff Sessions. Before becoming the 84th United States Attorney General in 2017, Jeff Session served in the United States Senate, beginning in 1996, and was reelected in 2002, 2008, and 2014 from the state of Alabama. What you may not know is that Jeff Session became an Eagle Scout in 1964 and also earned the distinguished Eagle Scout award for his many years of service. He is a graduate of Huntington College in Montgomery, Alabama, and received his law degree from the University of Alabama School of Law in 1973.

 

After private practice in Russellville and later Mobile, Alabama, during which time he served as a captain in the Army Reserve in the 1970s, Jeff Sessions was named United States Attorney for the Southern District of Alabama, a position he held for 12 years under Presidents Reagan and George H.W. Bush. He was elected Attorney General of the state of Alabama in 1994, a post he filled until his election to the U.S. Senate.

 

Mark Fleming is the associate director of the National Immigrant Justice Center’s Federal Litigation Project. Mark focuses on strategic litigation and public policy related to immigration enforcement and detention. NIJC’s work on enforcement issues was recognized with the 2014 Daniel Levy Award of the National Immigration Project. Prior to joining the NIJC, Mark was the staff attorney at the Interamerican Commission for Human Rights, focused on migrants’ rights in the Western Hemisphere.

 

In that capacity, he coordinated the Interamerican Commission’s investigation into human rights, concerns with the U.S. immigration enforcement and detention policies, as well as detention’s impact on due process. Mark graduated magna cum laude from Georgetown University Law Center in 2006. While in law school, he worked on a host of immigrants’ rights projects, including representing asylum seekers and coordinating a fact-finding mission to Ecuador to investigate the impacts of changes to immigration law on Colombian refugees.

 

Mr. Christopher Hajec is the director of litigation at the Immigration Reform Law Institute, or IRLI. He received his law degree from the University of Pennsylvania Law School and undergraduate degree, with honors, from the University of Michigan. He also has a Ph.D. in Philosophy from the University of Miami and studied philosophy and sociology at Oxford University.

 

Chris was an officer in the Navy Judge Advocate General’s Corps before joining the Center for Individual Rights, where he litigated a string of high profile cases including the defense of videographer James O’Keefe in suits brought by former ACORN employees, a class action suit on behalf of Asian American students discriminated against by the New York City Public Schools, and a case that resulted in the Fifth Circuit Court of Appeals striking down Texas’s psychologist-licensing statute as an overbroad restriction on free speech. The public interest litigation he handles at IRLI focuses on constitutional and other civil rights law in public interest, with focus on the adverse effects of illegal and excessive legal immigration on American jobs and communities.

 

So our program will begin with each of our speakers making an opening statement of about seven minutes in length. Following each of the speaker’s presentations, we’ll give each one a chance to respond to anything that any of the other panelists may have said. We will also have some questions that we have prepared for the panel to respond to, but we will be taking questions, of course, from all of you. So get your questions ready. We’ve got a great panel, and I know that they’re going to be able to handle all of the important issues that you might raise with them. So at this point, Judge Bibas.

 

Hon. Stephanos Bibas:  Thank you, Judge Engelhardt. Thank you, all of you. So this is a new set of conflicts. For a very long time, we have assumed that immigration is a federal power and federal realm and also that, historically, criminal justice is a local or state matter. See United States v. Lopez. In the 1980s, if not before, the Immigration and Naturalization Service began seeking criminal enforcement by sending agents, now ICE agents, into jails to interview prisoners about their immigration status.

 

And over the last few decades, a field of crimmigration has grown up at the intersection of criminal prosecutions and convictions and the immigration consequences that are connected to them. So you have a clash or an intersection between a traditionally federal area and a traditionally state-and-local area and a series of unresolved questions about what happens at that fault line.

 

There are several laws that are in play here that our panelists are going to talk about. The first of these is 8 U.S. Code 1373. It’s an unusual statute that mandates that a federal, state, or local government entity may not forbid or restrict any government agent or official from sharing citizenship or immigration information with the Immigration Naturalization Service, now Homeland Security. And there’s an Executive Order that the current administration promulgated, Executive Order 13768, that sought to implement 8 U.S.C. 1373 by attaching conditions and saying, “If you fail to provide all of this information, if you get in the way of sharing this information, we will restrict your access to certain government grants.” And all of the district courts that have considered Executive Order 13768, to my knowledge, have found the Executive Order unconstitutional, either because its not unambiguously clear, or because it’s coercive, or under an anticommandeering principle.

 

A second place on this fault line is the Department of Justice policy to add three new conditions to the Byrne Memorial Justice Assistance Grants. A lot of money comes from the federal government to assist state and local criminal law enforcement. And they added conditions that said, “For you to get this money that was authorized by Congress -- you’ve got to certify you’re complying with section 1373. You’ve got to permit Homeland Security personnel to access any detention facility, to come in and interview the inmates about their citizenship and immigration status, and give at least 48 hours advanced notice to DHS of the release date and time of an alien who’s in custody when DHS requests that notice because they want to come in and take custody of that alien.” And there have been about nine district court cases on this. And all but one of them, out of Chicago, have struck down the three conditions saying that Congress had not authorized them as conditions on the Byrne grants.

 

There’s been litigation over some state laws, too. Judge Engelhardt already mentioned the Texas state law that attempted to limit some local sanctuary cities. The other state law I’m going to flag for you is that California has some sanctuary laws that forbid state employees to be cooperating with the feds. But there’s also a restriction in there that purports to limit California private employers from voluntarily -- that is without a subpoena or legal process -- cooperating with immigration enforcement agents to enter nonpublic areas or to look at employee records. And the district court litigation on this so far has said unlikely that this is preempted but found that a portion of this law, the portion that governs -- that tells private employers they can’t cooperate voluntarily with the feds, violated the doctrine of intergovernmental immunity.

 

So this raises a series of questions that the panelists are going to get into. One of them is separation of powers. Can the President unilaterally add new conditions to federal grants? Can the President, this or future presidents, do this in other areas of law: environmental law, education, health law, guns, et cetera?

 

There’s also the issue that hasn’t really been developed in the cases about whether the 8 U.S.C. 1373 itself is unconstitutional. There’s this anticommandeering doctrine in the federalism law in cases like Murphy v. NCAA and Printz, New York v. United States, not really clear how this plays out in general. Some suggestion by some commentators may be, even if anticommandeering in general is right, maybe it’s different when it comes to information-sharing laws. There’s a suggestion in one of the driver’s license privacy cases about information maybe being different.

 

There’s a preemption debate out there about whether certain state statutes like the California law is preempted by federal law. And the Supreme Court, in Arizona v. the United States, took on one of these laws, but California’s is a very different law. There’s the Spending Clause. If the government is giving out money -- under the Byrne grants for example, the federal government is giving it out -- how related does the condition have to be to the purpose of the grants for it not to violate cases like South Dakota v. Dole? If it furthers the purpose of the program, more likely, but how far can it go from what is the core purpose and how do we know what the core purpose of the program is?

 

Then there’s this area of crimmigration that I identified where immigration is increasingly intertwined with criminal justice. And should the federal government permit or encourage localities to control their own criminal justice priorities? To what extent does the federal government have a role in steering those priorities? And both as a legal matter and then as a policy matter, what does that do to trust and cooperation among levels of government?

 

And finally, we have this issue of the local laws where this is not just a federal/state issue. In Texas, it’s a state/local issue as well. And there’s not nearly as well developed law on what federalism looks like at the local and sub-local level. And I look forward to learning from the panelists about that.

 

Hon. Kurt D. Engelhardt:  Professor Somin was next, and you can either address the audience from where you’re seated or the podium, whichever you prefer.

 

Prof. Ilya Somin:  It might be easier to stand, so we’ll be slightly less cramped. So thanks to The Federalist Society for organizing this event and all of you for coming. And I suppose I should also thank the current administration for unintentionally helping to make federalism great again by loosing a whole bunch of sanctuary cities cases in federal court. And in this presentation, I’m going to briefly talk about the federalism issues raised by these cases and why the administration has lost them. And at the end, I’ll briefly touch on the policy question surrounding sanctuary cities, as well.

 

So the basic story of the sanctuary cities cases, somewhat ironically, is that you have blue jurisdictions litigation against the Republican administration, relying on federalism principles championed by conservative judges and legal scholars against an administration which is championing a very broad view of national power, which would override those principles if the courts were to accept them, which so far, at least, they almost uniformly have refused to do so. Most of these cases involve the issue of either the Byrne grant conditions or Trump’s Executive Order from January 2017, both of which attach various immigration-related conditions to certain federal grants to state and local governments.

 

And uniformly, lower courts have ruled against them. There was that one district court decision that went the other way. But then that same judge actually reversed his decision at a preliminary injunction stage. And part of his decision ruled in favor of the administration. But when it got to a final decision, he ruled the other way.

 

And the basic reason why all these judges have ruled pretty much the same way, both conservative judges and liberal ones, is that only Congress has the power to attach conditions to federal grants. And when it does so, those conditions have to be clearly stated in the statute. And in this case, Congress never authorized those conditions. And they certainly were not clearly stated on the face of the statute. And that’s pretty much what just about every federal court, both district court decision, but also now several court of appeal decisions -- that’s what they’ve concluded about this set of policies.

 

At best, the administration can try to rely on some very sort of vague language saying, well, they must apply with “applicable federal laws.” But applicable federal laws can’t mean any law of any kind that might apply to state and local governments. If it did, you could use similar language in other statutes to tie pretty much any grant to anything else that might be in a federal law somewhere. And of course, if that can be done in the area of sanctuary cities and immigration, it can be done in pretty much every other area of policy as well, as Judge Bibas mentioned, environmental law, education law, pretty much anything else. So even if you’re comfortable with the Trump administration using this power to pressure and coerce state and local governments in the area of immigration, you might not be so happy if, for example, Elizabeth Warren becomes president and she gets to use the same power in a wide range of other areas to promote more left-of-center types of policies.

 

These cases also raise some other spending power issues. In the case of the Trump Executive Order, it also seems to apply to nearly all federal grants to state and local governments. And that raises the issue of coercion, that it would seem to put a gun to the head of the states and localities, which is forbidden by the Supreme Court’s decision in NFID v. Sebelius, another part of that decision the conservatives actually liked and championed. Similarly, when you have the conditions be this broad, it might violate the requirement that conditions must be related to the purpose of the original grant. And several courts have ruled against the administration on that basis as well.

 

These cases also raise the issue of commandeering, specifically with respect to Section 1373, which was mentioned by Judge Bibas. In a series of decisions all uniformly supported by conservative justices or written by them as well, like Justice Scalia, the Supreme Court made clear that the federal government can’t force states and localities to help enforce federal laws, even, by the way, in areas where the federal government does, in fact, have a clear power to enact the law in that area. Section 1373 tried to circumvent that by saying, “It’s not that we’re ordering you to turn over information. It’s that we’re ordering you not to instruct your subordinates to refuse to turn over the information.” So it’s sort of circuitous.

 

Whether this was forbidden by anticommandeering or not was, I admit, somewhat of a difficult question early on. But the question was cleared up by the Supreme Court’s decision in NCAA v. Murphy, which was a 7-2 decision joined by all five conservative justices. And that struck down a provision of a federal law which forbade states and localities from “authorizing sports gambling under their state laws.” And the Supreme Court said it didn’t matter that it doesn’t specifically require them to ban sports gambling. It just prevents them from authorizing. They said that’s a distinction without a difference because it’s still usurping control over state law.

 

And exactly the same reasoning applies in Section 1373. It’s still usurping the states’ and localities’ control over their own employees. And that’s why, in the aftermath of NCAA v. Murphy, every district court and court of appeals which has considered this has either ruled that Murphy makes Section 1373 unconstitutional or that it requires Section 1373 to be interpreted so narrowly that it imposes little or no actual constraint on the autonomy of state and local governments. And of course, this also has broader implications that go beyond immigration because, if this sort of circumvention under Section 1373 is allowed, it could be used in a wide range of other policy areas, all those that were mentioned earlier.

 

Finally, a very brief word on the question of the policy issues surrounding sanctuary cities. The main accusation against them is that it somehow, if you have sanctuary cities, they increase crime. That is pretty much exactly the opposite of the truth. Pretty much every study that’s been done of this shows that the crime rate in sanctuary cities, controlling for other variables, is either unchanged as a result of sanctuary policies or it’s actually lowered. If you’re interest in this, there’s a good literature review on this published just last year in the journal Sociology Compass.

 

And there’s good reasons why this wouldn’t increase crime. One is, if state and local governments are using law enforcement resources to catch undocumented immigrants, that diverts those resources from actually combatting violent and property crime. Also, police chiefs in jurisdictions which have large numbers of undocumented immigrants and other immigrants, they have long stated that, if they’re forced to engage in enforcing immigration law, that sews distrust through the community, makes minorities less likely to cooperate with the police and, thus, less likely to testify and provide evidence in important cases. I would add that there’s also large literature which indicates that immigrants in general, including undocumented immigrants, actually have substantially lower crime rates than native born Americans. So far from increasing the crime rate, they’re actually lowering it at the margin.

 

There’s yet another reason why it’s good policy for states and localities to refuse to cooperate here, and that is the truly horrendous record of abuse in ICE detention facilities. If you don’t believe the testimony of the doctors and lawyers who have visited these facilities, try reading the Department of Homeland Security’s Inspector General reports on these matters. There’s plenty of hair-raising material just even in the DHS’s own publication. And it’s understandable and a good thing if states and localities do not want to contribute to such horrible abuses or cooperate with agencies that engage in that. I look forward to the further discussion and to your questions. Thank you.

 

Hon. Kurt D. Engelhardt:  All right. The next one to address us will be former Attorney General Sessions.

 

Hon. Jefferson B. Sessions III:  Thank you. It’s great to be here today. I appreciate the opportunity. I’m such a fan of The Federalist Society. I’ve said previously that no interest organization advocating for certain values and principles has been more effective, I think, at least in the last 50 years, maybe ever, than The Federalist Society. And it’s so helpful to the Department of Justice and President Trump to receive your advice and information on judges for nomination. And I think the President has done the greatest job maybe we’ve ever seen in appointing fabulous judges to the bench. So thank you all for that.

 

Look. The policy of the United States is to create a lawful system of immigration that allows immigration to occur in an effective way. I think I heard Ken Cuccinelli say yesterday that our 1.1 million people we allow permanent residence every year is more than the next three countries in the world combined. We are a generous nation on immigration. But the American people believe that we should have a legal system that follows the law, that people aren’t able just to wander in the country and be successful in doing so. President Trump campaigned on that.

 

I believe in the strong -- the unified Executive. And one leader of this government is the President of the United States. He campaigned on it. He said, “I am going to build a wall. We’re going to stop this illegality.” And the people affirmed that in this past election. And I think that’s good policy. That’s correct policy. Surely we don’t advocate illegal entry into the United States. So as a matter of policy, let us say that there was at least bipartisan agreement under the Obama administration that people who entered the country illegally and then committed another crime in the United States should be deported. How simple is that?

 

To reject that philosophy is to be clearly what some of our friends even on the libertarian side believe in, which is open borders. And that is not a sustainable policy for the United States of America. And cities who say, “You can come into our city or our county illegally, being subject to deportation under the law,” which is indisputable, “and then commit additional crimes in our city. We’re not going to cooperate. And matter of fact, we’re not going to even let our law enforcement officers cooperate with you.”

 

So this is where the conflict arises. The federal government is not asking -- is not asking people to go out and arrest illegal immigrants. What the federal government is saying is, “When you’ve arrested somebody in your jurisdiction and it’s determined they’re an illegal alien, that you should allow, as a matter of comity and partnership, the federal government to be able to interview them in jail and allow them, as we do throughout the country in every kind of crime, to place a detainer on them so that, before they’re released, you have the ability to take them into custody.”

 

Now, I started in the 1970s as an Assistant United States Attorney and then 12 years as the United States Attorney. One of the greatest things that ever happened in law enforcement is this tremendous cooperative spirit we have today. I led it when President Reagan asked us to -- the work to build teamwork between state and federal officials. This administration believes in it. When I travel the United States as Attorney General, I preached cooperative spirit.

 

By the tens of thousands, probably, on a daily basis, a person is arrested in one jurisdiction. Another jurisdiction has charges against them. They place detainers on them. So it says, basically, “When you complete your processes in your jurisdiction, we want to take them into custody because they owe accountability in our jurisdiction.” That goes on every day. But radical city leaders have directed their police departments—contrary to the will of virtually every policeman in America—they’ve directed them to secret, basically, the arrestees, the illegal alien who’s committed additional crime and even let them out the back door so the federal people can’t place a detainer or can’t apprehend them.

 

If you don’t -- as a practical matter, the danger that our officers are placed in and the time and effort and cost of trying to arrest somebody in a sanctuary city, like those in California, who’s been released and may be a dangerous criminal, may have been in custody for violent crimes, major drug dealers, think about it. When you could pick the person up at jail and, in a safe environment, conduct an interview of that person in jail. And the federal government provides assistance to state and local law enforcement every day in a whole lot of ways. And one of the reasons is to build this cooperative spirit, to make each agency more productive, and to protect the safety of the people throughout the country.

 

It’s a matter of federal interest that an alien who entered the country illegally and commits crimes -- it’s a matter that goes beyond the city or the county or the state, even. And as you know and has been noted, that immigration law -- federal government preempts it. Now, we’ve got the Immigration and Nationality Act now is in two volumes. I think it’s 7- or 800 pages, inches thick. Why? It’s designed to create a lawful system of immigration. That’s what Congress wanted. So now we have this massive attack, in every possible way, to undermine certain principles that have been understood over the years to help us be effective enforcing immigration law. They want to undermine that -- in fact, have achieved a number of loophole victories, a number of court victories that have made it exceedingly difficult.

 

Are you keeping time, Judge? You know, I was a senator. I could talk even when I was a senator. I just want to tell you, in my view, this is no little matter. And I’m a resolute critic of these jurisdictions. It is absolutely indefensible, in my opinion. Say we can’t prove -- they’ve got these studies. Look. When we admit a legal immigrant, we want to seek somebody not a criminal. If they’ve got a criminal record, no, no, no. You don’t get in the United States as a citizen. We want honest people who obey the law and are going to be good citizens. We don’t want to introduce drug dealers and smugglers and human trafficking people into the United States or people who had serious criminal charges in their own country.

 

Why should we want to do that? We can’t admit everybody. We get more applicants than we can admit. Let’s admit 1.1 million people without crime. They don’t have a right to demand entry into the United States of America. The immigration system of this country should serve the national interest. And in fact, when I took over the subcommittee in the judiciary on immigration, I change the name to Immigration and the National Interest. That’s what I think the committee was about, should be about.

 

So I wrap up. All right. We’re not commandeering the states. What we’re saying is that 1373 says that you should not order your police department to be uncooperative. We’ll challenge that. Maybe we’ll see where the courts go with that. But I would say this about criminals who are arrested. The Department of Justice completed under a program study under the Obama administration of recidivism. They did a nine-year period. And they found that over a period of nine years, 83 percent of the people who were convicted of crimes recidivated. It’s set up under their protocols.

 

It’s not been talked about. But recidivism is a huge problem. And an education program, a job training program, a drug program does not guarantee that people won’t recidivate. Many of these people had gone through those programs. So if you have an illegal immigrant who violated that law and comes in and commits another one, it’s likely they’ll commit more crimes in the future, clearly. So when we set priorities and enforce the law, that’s the way it should -- we should take that into effect.

 

And it cannot be that a person who crosses the border of this country illegally and makes it 50 miles, 500 miles can never be deported. So they’re home free? All you’ve got to do is -- and you create this incentive. If you can get across the border, you’re home free. So I suggest that is not a rational immigration policy. Thank you, Judge.

 

Hon. Kurt D. Engelhardt:  We will next hear from Mark Fleming.

 

Mark Fleming:  Thank you for the opportunity to be here. My name is Mark Fleming. I’m the Associate Director of Litigation at the National Immigrant Justice Center located in Chicago. NIJC provides legal representation to thousands of immigrants each year, which informs our policy work and our strategic litigation. I’d like to use my few minutes here to give you kind of a brief background context to sanctuary laws. First, I’d like to cover changes in ICE interior enforcement that gave rise to the current sanctuary laws. I was involved in some of the guidance as far as the Chicago sanctuary law back in 2011 so have been familiar in this area for some time. Second, I wanted to cover the basics of what a sanctuary law is and what it is not. And then, finally, time permitting, some of the policy rationales that went into those sanctuary laws.

 

So what are these changes in ICE enforcement that I’m talking about? Well, until recently, immigration officers generally conducted interior enforcement either on their own, or they would assume custody of individuals at state or federal prisons. Individuals in state prisons have gone through the criminal process. They’ve been convicted of an offense and an offense that lead to a prison sentence, so typically a felony with a sentence of over one year. ICE has officers stationed at or present at all 4,300 state and federal prisons in the United States. This true even in all “sanctuary jurisdictions.”

 

In 2008, ICE launched a new enforcement strategy called Secure Communities. ICE originally pitched this program as voluntary and that it was targeted only at individuals who had been convicted of serious offenses. At its heart, Secure Communities is a fingerprint and data sharing program. Any time local law enforcement sends an individual’s fingerprints to the FBI for a criminal check, those fingerprints and booking information are shared automatically with ICE in real time for possible enforcement. ICE will then send an immigration detainer to that law enforcement agency requesting that they detain the person extra time after the person would otherwise be released so that ICE can assume custody.

 

Many times, these detainers are triggered at the point the person is posting bail or there has been a decision not to press charges. Thus, Secure Communities has moved ICE’s enforcement to the front end of the criminal justice system, where it identifies individuals prior to any charges, any trial, or any conviction, thus sweeping up anyone who potentially has an encounter with police. As I mentioned, initially this program was voluntary. 42 states entered into memorandums of agreement to join the Secure Communities program. And in fact, you see the one here from the state of Illinois. And as you can see, the purpose of it was to go after people convicted of serious criminal offenses.

 

However, by May of 2011, Illinois sought to terminate its state MOA, citing serious concerns that the program was actually disproportionately targeting individuals with limited or no criminal record. In fact, by ICE’s own statistics at that point, less than 20 percent of the individuals had been convicted of a serious offense. Instead of honoring Illinois’ decision to opt out, ICE immediately made the program mandatory on the state. By August of 2011, as more states tried to opt out citing similar concerns, ICE then unilaterally rescinded all 42 MOAs and made the program mandatory on all states.

 

As a result, law enforcement nationwide is required, to this day, to contribute with immigration enforcement if they want access to the FBI criminal database. To give you a sense of the scope of Secure Communities, from October 2008 until February 2015, when ICE just stopped publishing the data, the FBI had shared 47 million fingerprints and background checks, biographical information, to ICE. At this point, it’s likely over 100 million. I’d also flag that disproportionately these are U.S. citizens’ fingerprints and booking information that’s being sent there. We still don’t know if ICE is storing those fingerprints and whether they are sharing them with other jurisdictions.

 

So you’ve heard a bit of this discussion about 8 U.S.C. 1373, which is important. But this information is being shared. It’s commandeered through Secure Communities even now in all sanctuary jurisdictions. ICE is alerted in real time of every single arrest in the United States -- the person’s name, their address, and any other information that’s gathered during booking. This radically transformed local officers’ relationships to their community because, in effect, they’re now frontline immigration agents. It’s this commandeering of local police that these sanctuary laws were sought to ameliorate.

 

So what are some of the common components of a sanctuary law, and what aren’t sanctuary laws? They can vary quite a bit. They’re not all cookie cutter. But here are some of the common components: one, that local law enforcement is not going to inquire about immigration status; two, that local law enforcement is not going to hold someone extra time after they would otherwise be released like any other person in state or local custody. And in fact, in most states, there is no authority to hold people for a civil immigration arrest. And ICE has conceded repeatedly in litigation that, when sending the detainer request, it is not providing legal authority for them to hold the person.

 

Third, some limit access to individuals in local jails regarding interviews and transfers. Now, the circumstances of those can vary quite a bit, and I’m happy to get into those in the Q&A. Fourth, some prohibit communicating an individual’s release and contact information. And then, finally, there are a lot of exceptions for certain individuals with criminal charges, convictions, or that they’re listed in a terrorism-and-gang database. Notably, the Chicago ordinance and the California law that was cited by Attorney General have myriad exceptions, substantial exceptions. In fact, I had three slides of eight point font of all the exceptions in the California law that I just pulled out.

 

So what aren’t sanctuary laws? Sanctuary laws don’t block ICE from conducting its own enforcement. ICE and CVP’s budget is 35 percent larger than the FBI, ATF, DEA, Secret Service, and U.S. Marshalls combined. ICE and CVP, 35 percent more than the five largest criminal federal agencies. They can do their own enforcement. Sanctuary laws currently don’t prevent notification and transfers from state prisons. I mentioned the Secure Communities fingerprint sharing. And they do not limit cooperation on ICE criminal warrants.

 

There was a discussion about detainers between federal agencies and state agencies sharing. That’s under the Interstate Detainer Agreement, which ICE detainers aren’t a part of. And they have a criminal warrant behind them. There’s nothing in these sanctuary laws that prevent cooperation on criminal warrants. And then, finally, just a couple of the rationales for these. State and local officials should determine how to keep their communities safe. They’re the ones that are accountable to the local community. They should make the decisions.

 

As the professor mentioned, the major cities’ chiefs have, for over a decade across the Bush, the Obama, and the Trump administrations, have said that entanglement with immigration undermines our ability to protect our communities. We should listen to these chiefs. Second, we want to ensure that all residents can contact the police without fear. The available survey and empirical evidence shows that crime reporting goes down when they fear that they may be subject to immigration enforcement. Third, we don’t want to ensure -- as an immigrant advocate, I want to ensure that families aren’t torn apart due to just an encounter with local police. If they get convicted of a serious crime, of course, immigration enforcement may be part of it on the back end after the conviction.

 

But there are over 5 million U.S. citizen children that have an undocumented parent. If the parent is deported, they’re gone forever. There is no pathway back. Finally, the available empirical evidence shows that Secure Communities just doesn’t work. The Journal of Law and Economics at Chicago, the dean of the Chicago Law School concluded that this program does not work and that sanctuary laws do not increase the rate of crime. So I will stop there, and I look forward to your questions.

 

Hon. Kurt D. Engelhardt:  All right. Finally, we’ll hear from Christopher Hajec.

 

Christopher Hajec:  Can I have some light? I can’t read.

 

Hon. Kurt D. Engelhardt:  Do you want to do it from sitting down, if you want? Either way.

 

Christopher Hajec:  That’s no good either. Thank you. I didn’t want to be deprived of anything to say. I’m very happy to be here on this distinguished panel and addressing such a distinguished gathering. There seems to be a good chance that soon sanctuary cities and policies, to a large extent, won’t be up for debate anymore, or at least the debate won’t have much point. That’s because of the case U.S.A. v. California, in which the Justice Department, under Attorney General Jeff Sessions, sued California over its sanctuary state law. The case is now at the cert petition stage.

 

If cert is granted and the Supreme Court rules in favor of the United States, sanctuary laws, to a great extent, and policies will be invalidated all over the country. A centerpiece of California’s sanctuary state law, SB54, is that state and local law enforcement officers are prohibited from cooperating with ICE, for example, by informing ICE when asked when a given criminal alien will be released from custody for his crime or transferring custody of a criminal alien to ICE or even giving ICE a criminal alien’s personal information, such as an address. The United States argues that these features of the laws are preempted because they constitute obstacles to the congressional purpose that immigration laws be enforced and that criminal aliens be deported after their release from custody.

 

According to the Supreme Court, state laws that stand as obstacles to the full accomplishment of Congress’ purpose in a federal law violate the Supremacy Clause and are preempted. I would add that this doctrine seems originalist and textualist to me. What kind of supremacy would it be if states were free to thwart Congress’s will with every sort of stratagem they could come up with? And of course, the kind of maneuvers states could and would use would be infinite in their variety. If the results Congress was trying to achieve in its laws could be blocked at every turn by states that didn’t want those results, federal law would be supreme in name only, and the state laws that blocked or interfered with federal laws would be to the contrary of the latter within a reasonable meaning of that phrase in the Supremacy Clause.

 

As Chief Justice Marshall wrote, “It is of the very essence of supremacy to remove all obstacles to its action within its own sphere and so to modify every power invested in subordinate governments as to exempt its own operations from their influence.” In U.S.A. v. California, the Ninth Circuit panel wrote a remarkable opinion, all the more useful because en banc review was denied and this opinion will go to the Supreme Court. In it, the Ninth Circuit acknowledge the California sanctuary law makes ICE’s job more difficult.

 

It could hardly have avoided making that acknowledgement. ICE can hardly stake out every jail in California waiting for criminal aliens to be released or hunt them down later when local officers are even prohibited from giving ICE their contact information. To use Marshall’s phrase, SB54 influences ICE’s operations and very much to the detriment of those operations. So why is it not an obstacle? One reason the Ninth Circuit gave was the Tenth Amendment. The federal government can’t commandeer the states by telling state legislatures what to do or by telling state officers to administer a federal program.

 

Of course, there’s no commandeering here. No federal law tells state officers to cooperate with ICE, but there’s the specter of the commandeering doctrine the Ninth Circuit explained. If Congress had told state officers to cooperate, that would have been commandeering. And it would have violated the Tenth Amendment. And that means courts can’t complete the obstacle preemption equation in this instance. The specter of commandeering scares them off.

 

But perhaps sensing that a mere metaphor was not enough to explain its decision, the panel moved on to another tack. It agreed with the district court when it said that, when California stands aside from cooperation, that is not interfering. Indeed, you might say standing aside is the very opposite of interfering. It’s just refusing to be involved, either to interfere or to assist. So rather than saying that California’s law is an obstacle but not preempted because of the specter of commandeering, the panel here says that California’s law is not an obstacle after all. It’s just California standing aside.

 

This is mere sophistry, of course. In SB54, California doesn’t stand aside. It affirmatively commands state officers who would otherwise cooperate with ICE not to cooperate. If California had really wanted to stand aside, it would have passed no law either to command cooperation or to prohibit it.

 

The Ninth Circuit also gestures at the presumption against preemption. A state, of course, generally has power to control its officers, particularly in the area of criminal law enforcement. That does not mean, though, that states traditionally have the power to control or influence what happens to criminal aliens after they have served their state sentences. That is centrally and paradigmatically a federal concern. It is a part of having a unified national foreign policy. It is squarely within the federal plenary power over immigration. So if a state law interferes with Congress’s purposes in that area, even if that state law enjoys any presumption against preemption, that presumption is readily overcome given the overriding federal interests here.

 

I would like to conclude with my own understanding of how the Tenth Amendment reserves power to the states and invite anyone who disagrees to correct me. It seems to me just reading the text that you first have to look at whether a power is delegated to the United States in the Constitution or prohibited to the states in the Constitution before you can decide whether it is reserved to the states. And by power, I think the Tenth Amendment means the power to make a particular kind of law, not the power to levitate or to fly to Mars.

 

So I don’t quite see how the Tenth Amendment could ever block preemption from going forward as the Ninth Circuit said happened here. If a law is preempted, the power to make that law is prohibited to the states by the Supremacy Clause, is it not? And in that case, the Tenth Amendment by its terms doesn’t reserve that power to the states.

 

Perhaps something can be done with the presumption against preemption in cases other than this one. But beyond that, it seems to me that the Ninth Circuit’s move admitting that SB54 is an obstacle but saying it’s not in violation of the Constitution because of the Tenth Amendment can never work. If a law is an obstacle, it is obstacle preempted. And the power to make it is prohibited to the states by the Constitution and thus isn’t reserved for the states in the Tenth Amendment. Thank you.

 

Hon. Kurt D. Engelhardt:  Thank you, Chris. Appreciate all of the remarks that have been made. We will now go into a series of questions for our panel. I would like the panelists to stay in their seats, if they would, to answer to that we can go quicker. Also, if you can keep your answers as short as possible. We’ll allow each panelist who wants to add to an answer or respond to do so. And of course, you don’t have to respond if something’s already been said. But if you’d like to add something, you’ll certainly be given that chance. Let me ask Mark first. Mark, you had submitted to me a question or two that you would like to propound to a fellow panelist. So would you like to go ahead and begin?

 

Mark Fleming:  Sure. So one question I had for the Attorney General, if public safety is one of the concerns or one of the principle concerns with sanctuary laws, why, as a policy matter, was the strategy to strip state and local law enforcement of millions of dollars through the Byrne JAG grants in order to gain pressure or coerce them into complying with -- or giving up on their sanctuary laws? Why would we target millions of dollars of law enforcement money in order to promote public safety?

 

Hon. Jefferson B. Sessions III:  One of the great achievements in modern law enforcement is cooperativeness. Every day, detainers holds are placed on people from one jurisdiction. They place it on another one where a person is apprehended and held in custody. Without that, it would be a monumental degradation of it. So it’s not up to the jurisdiction who has a prisoner when they receive a hold to litigate the validity of the charge in the other jurisdiction. That’s not a practical thing to do.

 

So what the cities apparently are doing, the sanctuary cities, they’re saying, “Yes. We know we honor holds and detainers. But we don’t like your law, so we’re not going to honor it.” Whether or not they have the legal basis to do so, it is a very detrimental attack on the legal duty of ICE officers to enforce immigration law. It degradates their ability to be successful. Instead of picking up -- one officer can go and pick up a person from a prison. But if they have to make an arrest in some area of the city, it may take five officers, and they may not find the person. So many hours -- it’s a monumental practical problem for them.

 

So I think that if they don’t cooperate, then why should the federal government provide additional funding to their own budget? And with regards to the COPS program, we recommended and put in our grant proposals, which helps our police and all, extra points if you’re cooperative with the duties of the federal government in enforcing immigration. And that one has been upheld by the Ninth Circuit.

 

So how it will all work out and how the Supreme Court will see 1373, I don’t know. But the President believes sanctuary cities is not good. He believes that pretty strongly, and so did I. So I thought it was appropriate, and the President does, to say that if you don’t cooperate you don’t receive the money.

 

Hon. Kurt D. Engelhardt:  Anybody else want to comment on this briefly?

 

Hon. Jefferson B. Sessions III:  Well, I’ll just say this. We targeted it only to direct law enforcement. We didn’t say highway funds can be denied or Medicaid or something beyond that. Efforts were made by our lawyers to focus it on appropriate financial grants.

 

Hon. Kurt D. Engelhardt:  Okay. Anybody else want to briefly comment. Yes, Professor Somin.

 

Prof. Ilya Somin:  So I think there’s a deep contradiction here in the administration’s position. On the one hand, they want to say, “We’re the enforcers of law and order.” But at the same time, they’re being lawless themselves in the way that they go about it. They’re ignoring basic constitutional constraints on how the Executive is not allowed to attach new conditions to federal grants, including law enforcement grants.

 

And, in the case of the Executive Order issued in January of 2017, it’s not, in fact, limited to law enforcement grants. There’s no such limitation stated in the text of the order. After the fact, Justice Department lawyers said, “Well, you should try to read in such a limitation.” But it’s not in the order itself. And the courts have refused to read in this sort of post-hoc constraint.

 

And the same goes, I think, with commandeering. That if their arguments here are accepted about the idea that, if they demand cooperation, that’s not commandeering. It’s just obstacle preemption or something. Then that would completely destroy the anticommandeering doctrine because, by the same logic which says that it makes ICE’s job harder if state and local governments don’t help them, you can say the same thing with pretty much every other federal law.

 

You can say in every other area that, if state and local law enforcement doesn’t help out, it makes it at the margin more difficult for the federal government to enforce the laws as it wants. That would require reversing the Printz decision where some states refused to help enforce federal gun control laws. You would essential gut the entire anticommandeering doctrine if the same logic is applicable everywhere else.

 

Hon. Kurt D. Engelhardt:  I had a question for you about the Printz decision, but I think you just covered it. Go ahead and finish up.

 

Prof. Ilya Somin:  No, I’m done. Go ahead.

 

Hon. Kurt D. Engelhardt:  Okay. You just answered the question I was going to ask. Does anybody else want to respond to the question that Mark has on the floor?

 

Hon. Jefferson B. Sessions III:  Well, I’ll just say this. The legislation that created the grant programs for COPS and Byrne grants provide authority for the Department of Justice to put certain conditions on it. And we think we put reasonable conditions on it. The Court will decide, I suppose, but we thought there is language in the laws that created the grant program that allow that kind of activity.

 

Hon. Kurt D. Engelhardt:  Chris, you look like you were wanting to jump in here.

 

Christopher Hajec:  I would just say that the laws that preempt SB54 are not commandeering laws. They don’t tell state officers what to do. They don’t tell states what to do. The laws in Printz did. It said that state officers had to do background checks. If New York had told state officers, “You can’t do background checks for the federal government,” that would be an analogous situation. And it’s an interesting analogy to think about.

 

Hon. Kurt D. Engelhardt:  I’m kind of curious. A couple of you made some references to -- we’ve talked about federalism. We’ve talked about commandeering. But it seems to me, and I’ll get your responses to it -- it seems to me there’s a bit difference between the relationship between the federal government and statutory authority as per the states compared to the situation that I started out with where you have a locality and a state trying to impose on a locality compliance with federal law.

 

It seems to me there’s a difference. That would tend to defeat arguments based on commandeering or federalism. Does anybody want to comment on that? And by the way, before we get answers, if any of you have questions, if you could make your way to one of the microphones, we’ll try to take those. I know we have an event this evening. So we’ll try to break straight up at 5:00. But we do want to take some of your questions. Yes?

 

Prof. Ilya Somin:  So here I think I largely agree with you. There is a difference. The federal constitution constrains what the federal government can do to states, but it imposes very few, if any, constraints on what states can do to their own localities. Some state constitutions do that. I don’t know enough about the Texas Constitution to say what’s true in that case. But it does present a very different kind of an issue from a federal constitutional point of view, in my view. It is perhaps a mistake that the federal constitution doesn’t give localities more autonomy than it does, but that is the way its structured.

 

Hon. Jefferson B. Sessions III:   The way I understand it, at least in Alabama, cities and counties are creatures of the state, and the state law dominates over any local policy. And in addition, as you said, judge, once a state has established such a law, I think it weakens some of these other arguments that have been raised.

 

Hon. Kurt D. Engelhardt:  Anybody else want to comment?

 

Mark Fleming:  The only thing I would comment is that, yeah, the -- they’re called home rule laws at the state level, and they do vary quite a bit from state to state as to what control the state legislatures have over local communities. The only other one comment I wanted to make, with respect to the Byrne JAG litigation, there has been ten lawsuits. And the Department of Justice has lost in all ten. And they are before a lot of conservative judges and liberal judges. It’s a wide mix of the bench. And they have been uniform as to the Byrne JAG as to that the conditions are not lawful.

 

Prof. Ilya Somin:  Can I make one small point? The most recent of these decisions, yes, it’s from the Ninth Circuit, but it was joined by Judge Jay Bybee, who’s one of the most conservative judges in the entire federal judiciary and also known for his support of broad executive power in a lot of areas. If your argument about executive power is so overreaching that you can’t convince Judge Bybee, then maybe you have some homework. So you may want to rethink your approach.

 

Hon. Kurt D. Engelhardt:  Let’s do this. We’ll start at this microphone. If you want to address your question to a particular panelist, please do. But we will let other panelists respond. And if you all can respond briefly, we can take more questions. So we’ll start here, and then we’ll come to this microphone. And I’m trying to see with that light. Is there another microphone in the back?

 

Unidentified Male:  Just two.

 

Hon. Kurt D. Engelhardt:  Two. Okay. Great. All right. Then we’ll start with this one here. Sir, if you’d like to go ahead and ask your question?

 

Questioner 1:  Sure. So let me direct it to the panel as a whole. Would it be legal for -- and I don’t know the answer to this. Would it be legal for California to write a law that says, “We disagree with Georgia’s laws or Georgia’s law enforcement system. We will honor no detainers from the state of Georgia, but we will honor detainers from all other states?” And if that is not constitutional, then how is this different?

 

Hon. Jefferson B. Sessions III:  I would say that may be constitutional, but I would say that it would be a monumental breech of comity of such extraordinary impact that it would be unthinkable that a state would do that. Secondly, the federal government shouldn’t subsidize such behavior.

 

Hon. Kurt D. Engelhardt:  Mark, did you want to -- let me let Mark response and then I’ll get to you, Chris. Let me get Mark first, and then we’ll take it over here.

 

Mark Fleming:  There’s a critical difference here between criminal detainers and immigration detainers. There is an interstate compact, a compact between the federal government and each of the states called the Interstate Agreement on Detainers, or the Interstate Detainer Agreement, in which that is what controls the authority, to your question, about can I say, “Georgia, we’re not going to honor it.” What’s critically different here is that immigration is not part of that detainer agreement, so it falls completely outside of any sort of responsibilities.

 

That Interstate Detainer Agreement is what binds the requirement to honor other states’ detainers, which are backed by criminal warrants, actually probable-cause findings, et cetera, that gets attached to it. In fact, there are cases on this where, because of the Interstate Detainer Agreement, you cannot, unless you step out of that agreement, just ignore another states’ or the federal government’s criminal detainers. And that’s why criminal warrants of the Immigration and Customs Enforcement have to be honored, because of the Interstate Detainer Agreement. But these are not criminal warrants or criminal detainers.

 

Hon. Kurt D. Engelhardt:  Okay.  Chris?

 

Christopher Hajec:  I would just say that there’s no Georgia Supremacy Clause in the Constitution.

 

Prof. Ilya Somin:  I agree it would not be unconstitutional. In many cases it would be a bad idea if you boycott another state entirely. However, if in certain particular areas of their criminal law or other law a state had a history of abuse comparable in scale to ICE’s history of abuse, then it might be entirely justifiable and desirable for other states to refuse to turn over fugitives to that state. And indeed, during the era of slavery and Jim Crow when some southern states did have abuses like this sometimes, there were cases where northern states or, in the antebellum era, free states refused to turn people over to them. And I think that often there was good reason for doing that.

 

So there’s a lot of things where states cooperate with each other or cooperate with the federal government where they do so voluntarily, and it may be a good idea to do so. It doesn’t mean that they are constitutionally required. Thank you.

 

Hon. Kurt D. Engelhardt:  Judge, I’m not ignoring you, but I know you’re somewhat limited in what you can say, as am I. So if ever you want to chime in, please do. Don’t take offense to the fact that I’m not looking your way. All right. Let’s take a question here.

 

Questioner 2:  Sure. I’ll direct this at Attorney General Sessions, but anyone can chime in as well. I wanted to ask about the problem of how easy it’s become for -- to find a district court judge who will issue a national injunction against virtually every attempt at controlling illegal immigration, be it through regulation or Executive Order. I’m not saying that every order should be upheld either, but it’s almost 100 percent guaranteed that a new order or rule will be enjoined.

 

And courts aren’t going to be much help because usually it’s appealed to the Ninth Circuit. The Supreme Court can’t take all these. So what are we to do given the willingness of, again, the courts to enjoin everything Trump does and this seemingly new standard under the Administrative Procedures Act in which it’s gone from being -- an APA challenge has gone from being a longshot to a good bet?

 

Hon. Kurt D. Engelhardt:  I don’t mean to interrupt you, but your question originally related to the nationwide injunction?

 

Questioner 2:  Yeah. What are we to do about the fact that it seems hopeless to ever do anything about illegal immigration if everything is going to be enjoined? So what is a president to do?

 

Hon. Kurt D. Engelhardt:  Let’s go ahead and address that one. Okay. Thank you.

 

Hon. Jefferson B. Sessions III:  The Department’s litigating position is impacted, at least the perception of it, by the media. So when the travel order was issued by the president right after he took office, so-called travel ban, judges all over the country issued nationwide injunctions. It’s unenforceable. And we had a big conference, and I thought it was perfectly lawful under the powers given to the President to protect the safety of the United States. So we filed an emergency appeal with the Supreme Court. It took that.

 

The lawyers say you don’t do this often. You can’t do this every day. We did, and about 90 percent of the President’s order was upheld. And I think the rest of it will when final. So they struck down that.

 

Also, we had a judge in Chicago on the grant -- one of the grant programs. I forgot which. And he issued a nationwide injunction. But Chicago is, I think, one of the speakers said all these sanctuary city policies are different. What was before his court didn’t apply to New Orleans or Montgomery County, Maryland, or Berkeley or all these other cases.

 

It was very improper for a single sitting district judge, 600 in the country, to just strike down an entire law. And either he backed down after two Supreme Court justices questioned the nationwide injunction policies, or the court of appeals blocked it. I’ve forgotten which.

 

Hon. Kurt D. Engelhardt:  Professor Somin, did you want to --?

 

Prof. Ilya Somin:  Yeah. So I would say a couple things about the nationwide-injunction question which is obviously a question that goes far beyond this particular area of law. One is liberals challenging the Trump administration were not the first to get nationwide injunctions in an immigration case. When conservative states challenged the Obama administration in the DAPA case, they sought and got such an injunction. And, in my view, although I disagreed with their legal arguments, if their substantive arguments were correct, I think it also followed that they deserved a nationwide injunction.

 

I think the same is true in some of these cases against the Trump administration, as well. If the legal problem with the administration policy is one that doesn’t vary based on facts that diverge in particular areas, but rather it’s just a general problem that applies everywhere, such as that they’re trying to impose conditions that weren’t authorized by Congress, then I think a nationwide injunction is entirely appropriate. But I would add, finally, that in this particular area it’s simply not the case there’s some unusual outlier judge sitting somewhere out in a weird position or something doing this. They’ve lost these cases pretty uniformly with judges with a wide range of views and ideologies.

 

So, I think, if a nationwide injunction is ever appropriate at all, I think it is appropriate in these kinds of cases which are not local-context dependent but rather dependent on more fundamental questions like “Is this commandeering? Was this condition authorized by Congress?” I do recognize there are principle arguments which say nationwide injunctions are always unconstitutional. I don’t have the time to address that now, but there was a great panel on this by The Federalist Society I think last year. And I urge people to watch the video of that if they’re interested.

 

Questioner 2:  By the way, I wasn’t focusing on the national part, just the fact that it’s almost 100 percent assured that you can get any Trump order on immigration enjoined.

 

Christopher Hajec:  I think the best designed system depends on its personnel.

 

Hon. Jefferson B. Sessions III:  I would say also that it’s been getting more and more difficult for the Executive Branch to carry out its duties. The Executive Branch has been empowered to handle immigration law. But brilliant lawyers with theories like my friend over here attack all of this, and the individual statutes that become critical aren’t interpreted sufficiently, in my view, in accord with the overall intent of the act.

 

The overall intent of the act is to have a lawful system of immigration. So now we’re at a point where we’re going to have to go to the Congress and to fix some of these problems because it is unenforceable in many ways if we can’t fix them. We basically have a lawless system that’s protected by a system that’s supposed to block lawlessness.

 

Hon. Kurt D. Engelhardt:  Let me ask. Mark, did you have anything on this topic?

 

Mark Fleming:  The one thing I would add is the Chicago case. It was before  Judge Leinenweber, who is a Reagan appointee, probably one of the more conservative on the district court that issued the nationwide injunction. So he enjoined first the 2017 conditions. DOJ turned around and put a bow on them and issued the exact same conditions in 2018, which brought it back to the same judge. So not only is it uniform across as the professor mentioned, but also they brought back the exact same conditions to the exact same judge. So there was reason for a stronger injunction.

 

Hon. Kurt D. Engelhardt:  Okay. Let’s get to the next question. Yes, ma’am.

 

Questioner 3:  Thank you, Your Honor. I have appreciated the discussion, very learned and articulate discussion about illegal immigration. I have a more practical question, and I would welcome the response of any panel member. Do the rights of illegal aliens exceed or are they superior to the rights of natural born citizens?

 

Christopher Hajec:  No.

 

Hon. Kurt D. Engelhardt:  Is there a uniform answer or is there some dissent on the panel?

 

Prof. Ilya Somin:  I’ll give a uniform answer which is that structural constraints on federal power that are in the constitution apply to immigration policy just like they do to every other area of federal policy. And it doesn’t matter whether it’s dealing with illegal aliens or something else. Still those constraints should be respected. And by the way, also, there are lots of constitutional rights that apply irrespective of whether a person is a citizen or not, irrespective of whether they’re an illegal immigrant and so forth. There are some constitutional rights which, indeed, are reserved for citizens, but most are not.

 

Christopher Hajec:  I caution that may be an innovative opinion.

 

Prof. Ilya Somin:  It’s one held by people like James Madison and others. So if he was an innovator, I’m happy to be linked with him.

 

Hon. Kurt D. Engelhardt:  He played the Madison card. Anybody else? If not, we’ll go ahead to the next question.

 

Questioner 4:  Sure. General Sessions pointed out earlier that the statute actually confers on the Attorney General, at least for some grants, the ability to add conditions. That creates an interesting nondelegation problem. If those conditions were imposed directly by Congress, would you think it would be valid? And then second, I just want to thank Attorney General Sessions for your service. You did a tremendous job, and I think we all owe you a debt of gratitude.

 

Hon. Kurt D. Engelhardt:  Thank you. So the question pertains to conditions that are placed and whether, if they were placed by Congress, would that make a difference, if I’m distilling your question down even further.

 

Hon. Jefferson B. Sessions III:  Yes. All the grant programs are conditioned, or everybody would be eligible for everything. You can criticize the delegation to the Department of Justice powers, but it’s done every day in all kinds of grant programs. So I think that Congress gave the Department the power to do this. We’ll see what the courts ultimately hold.

 

Prof. Ilya Somin: I wonder if I could comment on the first part of it. I think if this was specifically authorized by Congress, that would, of course, remove what has been the main objection in many of these cases, which is that it wasn’t authorized by Congress. But in some cases, there have been other issues such as coercion. In the January 2017 Executive Order, at least the way it’s phrased, it seems to apply to virtually all federal grants to state and local governments. That’s exactly what is forbidden in the NFIB v. Sebelius decision where it was authorized by Congress, but the Supreme Court said, “You can’t hold a gun to the head of the state governments.”

 

In some cases, also, there are issues about whether immigration enforcement is sufficiently related to the traditional local law enforcement purposes of the Byrne grant. And in the district court decision in Philadelphia, they ruled that it was not. I think what is or is not related is kind of a difficult issue. So in the hypothetical universe where all this was properly authorized by Congress and they narrowed it down enough that it wasn’t coercive, then we might face some difficult questions about exactly where relatedness begins and where it ends. And frankly, the Supreme Court’s jurisprudence on this is not a model of clarity.

 

Hon. Kurt D. Engelhardt:  Okay. Let’s see if we can take a couple more, at least a couple more before the 5:00 hour. Yes, sir.

 

Questioner 5:  Thank you very much, panel. First of all, I also wanted to salute the Attorney General. Thank you, Attorney General Sessions, for your strong stance and I feel, in my opinion, a proper stance on this issue and the strength of your character in this issue. So again, thank you very much for your job as Attorney General. I’m a city attorney in Danbury, Connecticut, and I’ve dealt with sanctuary city issues since the famous case, the Danbury 11 case—you can look it up on Google—in 2006 where the police in Danbury cooperated with FBI officials and got tagged for it a few years later and had to pay half a million dollars to several illegal alien workers as a result of what, again, the courts felt was inappropriate combination.

 

But the reason I bring that up is because I swear in a lot of officers and other officials, including political officials in the city. And every time they raise their right hands to take the oath, they always swear an oath to the laws of the jurisdiction and the laws of the United States. And the police officers, at least in Danbury, felt strong enough where they were upholding the laws of the jurisdiction and of the United States. So I guess my question is, at the federal level when federal officials, anybody, holds up their hand and swears allegiance to the federal laws and laws of the United States, aren’t they violating that oath with they allow state laws to supersede those federal laws?

 

Hon. Kurt D. Engelhardt:  Anybody wish to respond to that?

 

Prof. Ilya Somin:  The laws of the United States include constitutional limitations on federal power. And among those limitations is limitations on the ability of the federal government to pressure state governments and use them in effect to help enforce federal law. So far from violating the oath, actually the individuals in question, when they refuse to help the federal government when their state government is telling them not to do so, they’re actually upholding the Constitution by upholding the Constitution’s important limitations on federal power, which are part of what makes it possible for us to have a diverse nation with many issues left to state governments rather than the federal government.

 

And part of it also imposes political accountability on the federal government in that it can’t just offload enforcement of its own laws onto the states when the states feel that it’s not in their interest to cooperate. It then either has to persuade them otherwise or it has to allocate its own resources to enforce its own laws.

 

Hon. Kurt D. Engelhardt:  We have a few more minutes. Let’s see if we can get these last two question in. Yes?

 

Questioner 6:  Hi, thank you. I would ask about the public safety element of these sanctuary city policies. Generally, I’d ask the panelists, when citing to studies about the relationship between crime and migration, to qualify a little bit their citations because, case by case, some of these studies make findings that are actually counterproductive to the pro-sanctuary cities argument, such as studies that conflate lawful and unlawful migrants. And one study in particular hypothesized that the reason a jurisdiction could see a drop in crime is because it responds to an influx of illegal migration by putting more police officers on the street.

 

So my question is whether the panelists who favor sanctuary cities have noticed anywhere any particular example of a policy under the sanctuary city umbrella that maybe you would concede is counterproductive to the goal of public safety, such as, for example, policies where a municipality will pay for pro bono legal representation to an alien who is also a convicted criminal to avoid his deportation or when district attorneys down plead crimes for aliens that they would enforce more strictly against citizens specifically because they don’t want these aliens to be deported or when states change --

 

Hon. Kurt D. Engelhardt:  I don’t mean to cut you off, but I think we have the --

 

Questioner 6:  Yeah. Yeah. I just want some examples. That’s all.

 

Hon. Kurt D. Engelhardt:  I think we have the question. We’ll go ahead and answer that one as quickly as we can, and we’ll get to the last question.

 

Prof. Ilya Somin:  So I don’t have time in this short period that we have to review every study out there, but I will simply mention that there is a pretty broad consensus here among academic experts that, even the best studies that do separate out legal and illegal—I do recognize a need to do that—they come to the same sorts of conclusions that law enforcement resources are better directed directly to fight violent, property, and other crimes than to try to deport undocumented immigrants. If you’re interested, there’s a literature review just last year in the journal Criminology, which is one of the leading journals in this field, as to are there particular policies which may have counterproductive affects.

 

Again, I can’t review every single policy that’s out there. At least generally speaking, the core policy of denying state and local cooperation to ICE and other similar federal agencies, the standard finding on that is either it has little or no effect on crime, or it actually has a beneficial effect because of the issue of cooperation of immigrant communities with law enforcement. If the cities do respond by putting more police on the street, that might actually be a good thing because lots of studies do show that, when you put more police on the street and they’re devoted to traditional crime fighting rather than to deportation, that does reduce crime.

 

Hon. Kurt D. Engelhardt:  Professor, let me let whoever else wants to comment on this one, and we’ll get this last one in very quickly.

 

Prof. Ilya Somin:  Sure. Of course.

 

Hon. Kurt D. Engelhardt:  Sorry to interrupt.

 

Prof. Ilya Somin:  I apologize.

 

Hon. Kurt D. Engelhardt:  That’s all right.

 

Hon. Jefferson B. Sessions III:  I consider it incomprehensible that if we have an 80 percent recidivism rate and you have an illegal alien who commits a crime in the United States -- when that individual is deported, there will be less crime than otherwise would be the case. What planet are we on? I don’t think the numbers are huge. I’m not saying that it’s huge, but there can be no doubt in my mind that if you have -- these individuals present risk, many of them violent risk, drug dealing risk, other things, if they’re removed, you’ll have less crime.

 

I would say an Arizona study showed that illegal aliens represent a higher percentage of the population than they represent in the state based on nonimmigration offenses. And also, people who are illegal immigrants who are convicted for serious crimes are usually sent back to their country earlier than a normal person would, just to get them out of the jail.

 

Hon. Kurt D. Engelhardt:  I don’t mean to interrupt you, but, Mark, do you want to respond? And then we’ll just take this last question.

 

Mark Fleming:  Last year in removal proceedings, only three percent of cases included a criminal ground of removability, three percent. And the bar is fairly low after the 1996 laws.

 

Richard Schlott (sp):  Hi, my name is Richard Schlott. I’m a 3L from Vermont Law School. I’m going to make this very brief. I know that we’re running out of time. Given the fact that states have different standards on their immigration policies, with Arizona being on the extreme conservative end and California being on the extreme liberal end of the policies, and also given the fact that many immigrants who commit high crimes, such as the drug trade, tend to have an effect on interstate commerce -- they distribute their drugs across different states -- my question to you is shouldn’t field preemption apply in this case?

 

Shouldn’t the federal government have the authority to regulate illegal immigration simply because the illegal crimes affect multiple states? And if states don’t share information to the federal government, they’re effectively endangering other states where the immigrants may cross into their borders. So from a policy perspective, isn’t it prudent to share information to the federal government? Of course, and then you can debate whether the federal government has a right to arrest someone. But as far as the information sharing perspective is concerned, that’s what I wanted to ask.

 

Hon. Kurt D. Engelhardt:  Chris, did you want to --? Professor, you want to --?

 

Prof. Ilya Somin:  So just very briefly, even if this is wise from a policy point of view, it doesn’t follow that it’s constitutional. But I think it’s unwise even from a policy point of view if information sharing actually detracts from effective law enforcement of laws against violent crime, which it does. And to the extent that it contributes to the war on drugs, this is actually a whole other discussion. But I think it’s truly the war on drugs itself which is causing harms across state lines and should be gotten rid of and promoting organized crime and the like.

 

So from a policy perspective, to the extent that this information sharing might reinforce the war on drugs, that doesn’t strike me as a good idea. I would add further, if you accept the argument the federal government can interfere anywhere where there might be some cross-border effects, that is another argument that would essentially collapse virtually any constitutional restrictions on federal power because you can almost always argue to almost anything if it happens often enough will have some effect on other states.

 

Hon. Kurt D. Engelhardt:  Okay. Anybody else want to wrap up this last question?

 

Mark Fleming:  None of what we’re talking about with sanctuary laws impact cooperation on criminal matters. So as to communication, none of this impacts that. This is purely in the noncriminal context. And as I pointed out, cooperation on criminal warrants or sharing of information, joint task forces happen everywhere for criminal matters.

 

Christopher Hajec:  I would just say that the federal government already has plenary power over immigration. And the concerns you raise are one of the reasons why. And that when states pass laws meant to make federal law enforcement and immigration less effective, those laws are preempted.

 

Hon. Kurt D. Engelhardt:  Okay. Well, I want to thank all of our panelists here. If you all could give them a round of applause.

 

     

 

3:30 p.m. - 5:00 p.m.
The Future of the Establishment Clause in the Roberts Court

2019 National Lawyers Convention

Topics: Civil Rights • Constitution • Religious Liberty • Supreme Court • Religious Liberties
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 14, 2019, the Federalist Society's Religious Liberty Practice Group held a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panelists discussed "The Future of the Establishment Clause in the Roberts Court".

This panel will address the meaning of the American Legion v. American Humanist Association decision regarding the Bladensburg Peace Cross and where the Court is headed next. Has Lemon been completely or at least partially overruled? And if so, what do we anticipate the guiding principle will be going forward in Establishment Clause cases? This question has particular salience in light of the Court’s upcoming case regarding funding for religious schools in Espinoza v. Montana Department of Revenue. Finally, to what extent do we think the Court will, or should, interpret the Establishment Clause to place strict limits on government’s ability to protect religious exercise that causes harm to third parties, including dignitary harms? Such a question may be relevant to pending cert petitions, including in Fulton v. City of Philadelphia, a case dealing with a faith-based adoption agency’s inability to certify same-sex couples for foster care.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Prof. Stephanie H. Barclay, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University
  • Mr. Luke Goodrich, Vice President and Senior Counsel, Becket and Adjunct Professor, S. J. Quinney College of Law, University of Utah
  • Prof. Micah J. Schwartzman, Hardy Cross Dillard Professor of Law; Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law; Director, Karsh Center for Law and Democracy, University of Virginia School of Law
  • Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
  • Moderator: Hon. Carlos Bea, United States Court of Appeals, Ninth Circuit
  • Introduction: Mr. William L. Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America

Speakers

Event Transcript

Bill Saunders:  Welcome everybody. Welcome to this session of Religious Liberties Practice Group's breakout panel. My name's Bill Saunders. I am the Chairman of the Religious Liberties Practice Group. As I say, I welcome you here. I appreciate all the interest the members have in this subject matter and I encourage you to join the Practice Group. Again, it's easy to do online or you can see me, or you can see Dean. So I just want to invite you to get more involved. And I will turn it over, now, to our moderator, Judge Bea who will introduce the panelists. Judge?

 

Hon. Carlos Bea:  Thank you. Well, I'd like to welcome all of you to today's panel. We've got some distinguished professors to discuss both pro-religion and, perhaps, the separation side. It's a typical good Federalist Society group. You get both sides.

 

      Today, the panel will address, I'm sorry I have to read up here, but the lights are very bright. The panel will address the meaning of the American Legion v. American Humanists Association decision case regarding the Bladensburg Peace Cross in New Jersey and where the Court is headed next. Has the Lemon test been completely, or at least partially, overruled? And if so, what do we anticipate the guiding principles will be going forward in Establishment Clause cases? This question has particular salience in light of the Court's upcoming case regarding funding for religious schools in Espinoza v. Montana Department of Revenue.

 

      Finally, to what extent do we think the Court will, or should, interpret the Establishment Clause to place strict limits on government's ability to protect religious exercise that causes harm to third parties, including dignitary harm? Such a question may be relevant to pending cert petitions, including in Fulton v. City of Philadelphia, a case dealing with faith-based adoption agencies inability to certify same-sex couples for foster care.

 

      Leading off today's discussion and presentation will be Professor Stephanie Barclay who's an Associate Professor of Law at the J. Reuben Clark Law School at Brigham Young University. She will briefly touch on a recent article she co-authored that used corpus linguistic tools to evaluate the historical support for different theories of Establishment Clause cases. She'll also talk about recent legislation, like the Do No Harm Act, which has passed the lower house of Congress and arguments made by thoughtful scholars, like Micah, about certain third-party harms preventing religious exemptions under the Establishment Clause.

 

      She'll be followed by Mr. Luke Goodrich, who's Vice President and Senior Counsel, Becket and Adjunct Professor at Quinney College of Law at the University of Utah. Mr. Goodrich will explain the Supreme Court's decision in American Legion the Bladensburg Cross case and that it strikes another major blow to the often-maligned Lemon v. Kurtzman test and signals a return to a more historically grounded approach to interpreting the Establishment Clause. He'll flesh out what the historical approach means for other major Establishment Clause cases.

 

      He'll be followed by Bill Marshall, who is the William Rand Kenan Distinguished Professor of Law at the University of North Carolina Law School. Bill will discuss the Roberts Court decisions in the Establishment Clause standing. Specifically, he will address whether the Arizona Christian School Tuition Organization v. Winn case and the concurring opinion of Justices Thomas and Gorsuch in the cross case, in the Bladensburg Cross case, where at least some of the justices are moving to not only limit the access of the Establishment Clause plaintiffs to the federal court, but whether they are seeking to use standing doctrine to redefine what constitutes an Establishment Clause case. If time permits, he will also discuss what happens if a state chooses to fund religious organizations on the same basis as it funds parallel non-religious organizations and a possible new conclusion that there may not be an Establishment Clause violation, even where the state funds religious organizations more favorably than it funds parallel non-religious organizations.

 

      The clean-up hitter is Micah Schwartzman, who's a professor at the Hardy Cross Dillard Professor of Law at the University of Virginia Law School.

 

      Now, before they present their views of the Bladensburg Cross case, I'm using a point of personal privilege to give you what is the rule of result. What results will you get in cases where there are religious symbols in the public square? This is a theory I've developed in which you, as practitioners, can take to your clients with sure predictability of result.

 

      You have to consider four cases. One is Lynch v. Donnelly, which involves the placement of a creche nativity scene in a park outside in Rhode Island. And that was held not to be a violation of the Establishment Clause. A creche placed inside a courthouse in Allegheny County was found to be a violation of the Establishment Clause.

 

      Now turn to the Ten Commandments cases. The Ten Commandments graven on an obelisk outside a Texas library in a Texas park was found not to be a violation of the Establishment Clause. The same text on parchment inside a Kentucky courthouse was found to be a violation of the Establishment Clause.

 

      From this, the rule of decision and the rule of result is very simple. If the monument gets rained on, it's okay. If there's a roof over it, it's not okay.

 

      [Laughter]

 

      With that, I cede to Professor Barclay.

 

      Oh, it's Mr. Goodrich.

 

Prof. Stephanie H. Barclay:  We're keeping you on your toes. We're just going to switch spots.

 

Mr. Luke Goodrich: Thank you Judge Bea for that kind introduction. I'm very glad that we are indoors so that religious expression is safe and not getting rained on here. Thank you for The Federalist Society for having me on this great panel and for all of you for being here today.

 

      I'm especially happy to be here today because I come to you bearing good news. The future of the Establishment Clause is looking bright because the future of the Establishment Clause will increasingly focus on the history of the Establishment Clause. To impact that, I'm going to very briefly do three things.

 

      First, I'll highlight a very significant shift that's taken place in the Supreme Court's jurisprudence. Away from the subjective Lemon test and toward a more objective historical approach. Second, I'll describe what this historical approach may look like, in practice. And finally, I'll explain why this is such good news.

 

      So first, what is this shift that has taken place? If you know anything about the Establishment Clause, you know about the three-part Lemon test which asks courts to examine the purpose, effect, and potential entanglement of any government action. You know this test has been criticized for decades by folks like Judge Bea for producing inconsistent results. And you know that Justice Scalia once compared it to a ghoul in a late-night horror movie that stalks the Supreme Court's Establishment Clause jurisprudence even after it seems to have been repeatedly killed and buried.

 

      That analogy is apt because, as much as the Supreme Court criticized the Lemon test, it never offered anything to replace it. So lower courts have felt bound to apply the Lemon test and Lemon has kept wreaking havoc.

 

      The good news is this. The Court has finally offered an alternative to the Lemon test in the form of a historical analysis. We see this most recently in American Legion, where the Court, by 7-2 vote, upheld the display of a Latin cross on government land. A four-justice parallelity, which included Justice Breyer, expressly rejected the Lemon test and said it was adopting "a more modest approach that looks to history for guidance." Justices Gorsuch and Thomas didn't join that opinion because they actually wanted to go even further. But they agreed, overall, with a historical approach. So you now have six justices saying Lemon is wrong and the Court needs to focus on history.

 

      This shift toward history, however, wasn't invented in American Legion. It's been happening for quite some time. In 2014, in the Town of Greece decision involving legislative prayer, a majority of the Court also refused to apply Lemon and said, "The Establishment Clause must be interpreted by a reference to historical practices and understanding."

 

      Nor is this historical approach a 21st century innovation. Many of the Court's earliest Establishment Clause cases, like Everson, McGowan, and Walz, were all self-consciously rooted in a historical approach. So the historical approach is not new, but the fact that a majority of the Court has now rejected Lemon and offered a historical approach as a replacement mark a very important shift in Establishment Clause jurisprudence.

 

      So what is this shift to a historical approach going to look like in practice? Given the multiple opinions in American Legion, there's still some work to be done to flesh this out. But it helps to start with a solid understanding of what constituted an establishment of religion at the time of the Founding. Fortunately, this is not a particularly controversial question because 9 of the 13 colonies had established churches and we know what those entail.

 

      Professor McConnell has identified six key elements of an establishment at the time of the Founding. The first was government control over the doctrine and personnel of the church. These were laws, like the Acts of Uniformity in England, prescribing the articles of faith of the established church and regulating who could be appointed as clergy.

 

      [The] second element of establishment was mandatory attendance in the established church. So you actually had laws punishing people for failing to attend worship. The third element was government financial support of the established church. These were transfers of money or land grants exclusively for the support of the church. The fourth element was restrictions on worship in dissenting churches. The fifth was restrictions on political participation by dissenters. And the final was the use of the established church to carry out government functions like giving churches authority to prosecute moral offenses.

 

      Once we understand what actually constituted an establishment at the time of the Founding, we're in a much better position to see what a historical approach to interpreting the Establishment Clause might look like. Rather than asking whether some hypothetical reasonable observer might think the government is endorsing religion, as the Courts had to ask under the Lemon test, courts can, instead, ask whether the challenged government action shares the characteristics of an establishment at the time of the Founding.

 

      As applied to the cross in American Legion, the answer is clearly no. The cross didn't control religious doctrine or compel religious observance. It didn't subsidize a church or penalize dissenters. It just sat there and anybody who didn't like it could simply ignore it.

 

      This historical approach also has very important implications for other areas of Establishment Clause jurisprudence, like funding, religious expression in public schools, and religious accommodations, and we'll get into some of that today. But the other piece of good news is that lower courts are already starting to flesh out what this historical approach can look like in practice.

 

      Judge Brennan on the Seventh Circuit recently applied a historical test in upholding a long-standing tax exemption for the housing of ministers. And Judges Hardiman and Bibas on the Third Circuit recently relied on a historical approach to uphold a county seal that included a Latin cross. You wouldn't have seen these decisions a decade or two ago, and these are important indicators of better things to come.

 

      So in closing, I'll offer three reasons why this shift to a historical approach is good news. First, a historical approach offers a more objective basis for resolving Establishment Clause claims. We all know Lemon was basically a Rorschach test with the reasonable observer always ending up looking like the judge who held the deciding vote. A historical approach, by contrast, requires courts to compare challenged governmental actions to known historical practices.

 

      Second, a historical approach actually does a better job of making sense of existing case law. One example would be school prayer, like in Engel v. Vitale. The prayer, there, was problematic, not necessarily because it endorsed religion, but because the government was controlling religious doctrine by composing an official prayer. And it was compelling religious observants by pressuring school children to say it. The historical approach also makes better sense of decisions on funding, on TESDOs, and delegation of government power to religious groups. So you don't need the made-up Lemon test to give meaningful content to the Establishment Clause.

 

      Finally, the historical approach is more faithful to the underlying purpose of the religion clauses, which is to leave religion as untouched by government power as possible. In the private sphere, this means the government doesn't compel religious observants, punish religious dissent, or prop up a favored church. It leaves religion free to flourish according to the zeal of its adherence. And in the public sphere, this means the government doesn't tear down religious symbols or pretend that religion doesn't exist. Instead, it recognizes religion as a natural part of human culture, just like race, ethnicity, and sex are natural parts of human culture.

 

      In short, the historical approach provides a more objective analysis that is faithful to the text, history, and purpose of the Establishment Clause. And the best news of all is, we can finally bury the zombie of Lemon once and for all. Thank you.

 

      [Applause]

 

Hon. Carlos Bea:  Professor Barclay.

 

Prof. Stephanie H. Barclay:  I'll echo Luke's thanks to Judge Bea and The Federalist Society and Bill Saunders, and for all of you for being here and being interested in this topic. I think Luke has done a great job describing some of the shifts that we have seen the Supreme Court engage in with respect to its jurisprudence. And the Court's Establishment Clause jurisprudence, I think, has needed some work and some revision for some time. To use the legal term of art that Judge Newsome described, our Establishment Clause jurisprudence has been "a hot mess." And so I think some of these historical shifts are bringing welcome clarity to this area of the law.

 

      I want to talk about three different things today, adding a little bit more description to what the test might look like in the historical context and how that might differ from what the Court was doing before, under Lemon. I'm also going to discuss, briefly, an important theory that my colleague, Micah Schwartzman, is going to be discussing as well, as far as how should we think about harm to third parties under the Establishment Clause. And then I'll touch, just very briefly, on standing.

 

      So for the historical shift, one thing that I think is valuable about that is that in the past, one reason Lemon failed is we have this abstract test at a high level of generality that's trying to control all of the different situations that would arise in Establishment Clause context. And it turns out that establishment is a multi-layered term with a lot of different meanings. And I think what we're more likely to see the Court doing is adapting different approaches for each of the unique hallmarks of an establishment. And Luke has already mentioned some of the really important scholarship that Professor Michael McConnell has done looking at some of those hallmarks.

 

      One thing that I wanted to do, along with some co-authors, including Annika Boone, whose in the room, and Brady Earley, is we wanted to take some of the tools of corpus linguistics and see does that provide any more information about what some of these historic hallmarks might look like or might suggest. We've already had some great historical analysis sort of diving deeply into some of the debates about the Establishment Clause or different historical analogues, but how were people talking about it?

 

      If we search large databases of newspapers or speeches at the time, how are people referring to the term, establishment in the context of a church and state establishment? And it turns out that aside from establishing one designated legal church of the state, which was quite prevalent in our results for what people were talking about, we also found a lot of support for the idea that government would be coercing or persecuting dissenters who weren't participating in the established church’s religious practices. The government was trying to control the leadership or the doctrine of the church. The government was interfering with the church in that way. They were providing preferential public support of established churches. And then they were restricting the ability to participate in civic or political participation based on lack of membership to the established church. And the public support piece, it was interesting that every time we saw this example come up, it wasn't just the fact that government was giving support or funding to an established church. It's that it was doing it in a directly preferential way.

 

      We didn't find any support for the idea that there would be concerns about government display of religious symbols. In fact, when that did come up a handful of times, the concern was about government tearing down symbols of dissenting churches that were not established churches. And I think the Supreme Court's decision in American Legion is at least consistent with that idea. There's a line about how if government were roving across the countryside tearing down religious symbols, that looks like a government hostile to religion, not a government that's being accommodating of religion.

 

      We didn't find support for the idea that religious exemptions would be problematic. And of interest, I think in the context of education, the only example we found about that discussed the fact that in England, only the established church could have ministers or leaders who would teach in school. So the problem wasn't the idea that there would be any sort of religion involved in schools. The problem was that only the established church had that privilege.

 

      Moving to the third-party harm point. This is a theory that has, I think, really gained traction in some circles. There is legislation called the Do No Harm Act that has been introduced in the House and we can talk a little bit more about that later if that comes up. But the idea driving behind this theory is that the Establishment Clause prohibits religious exemptions or religious accommodations if they result in harm to third parties. And what harm means is defined differently by the legislation or by some of the scholars who are advancing these theories.

 

      I'll just offer, really quickly, three reasons why I think that this theory is not likely to gain purchase and I think would be a problematic way to interpret the Establishment Clause. And one case where you might see this come up is in the pending cert petition if the Supreme Court decides to take it up. In Fulton v. City of Philadelphia, this is where there are Catholic adoption agencies who the city decided to not renew the contract with to allow them to continue serving the city's vulnerable foster children because of the Catholic agency’s beliefs about marriage and their inability to certify unmarried couples or same-sex couples. Even though, at this time when the city shut down that contract, no same-sex couple had actually ever asked the Catholic Social Services to perform such certification. One argument that was made in the lower courts is that if the city accommodated Catholic Social Services, it would violate the Establishment Clause because it would be potentially imposing harm or a burden on these third parties.

 

      Why do I think that that's problematic? As a doctrinal matter, the Supreme Court seemed to suggest fairly clearly in footnote 37 in Hobby Lobby that while harm to third parties is part of the analysis, it's baked into the type of analysis that we consider in strict scrutiny analysis when we're considering the government's interests and the alternatives government has to advance those interests. But it doesn’t operate as a strict bar on the ability to protect religious organizations. Otherwise, we would be essentially saying that religious rights never matter and are always defeated as long as there is essentially anything more than a de minimis harm on the other side of the scale.

 

      Also, Calder, one of the leading cases that is relied on for this proposition, was originally decided under the Court's Lemon precedent and, as I think Luke described, Lemon is really questionable precedent to rely on anymore. And as a historical matter, our country long recognized accommodations for religious individuals, even when sometimes they were very costly. A really famous and prominent example is the fact that we exempted Quaker individuals from being drafted in the military because of the pacifist religious beliefs of the Quaker individuals. That was a costly accommodation. Someone else had to take their place and had to go fight.

 

      And yet, we realized as a country that forcing them to fight wasn't really accomplishing anything. There were some historical quotes, at the time, when we're penalizing these Quaker individuals, sometimes sending them to jail or engaging in even harsher punishments, it's not actually encouraging them to fight. So we're punishing good citizens that could otherwise be contributing in a valuable way to our country and so we're adding to human suffering without actually benefiting our country.

 

      I guess the final normative point on this issue is that as law and economic theorists have long recognized, every time you protect a right that results in externalities to third parties. This is something that Ronald Coase observed long ago, where he said, "Exercising a right is always resulting in a cost to society." That's something that more recently professors like Professor Holmes and Sunstein have again reiterated.

 

      And what this means is that anytime we hold a right as important and fundamental, if we say we're only willing to protect it if there's no cost to society, what we're really saying is, we're not willing to protect it, that doesn't matter to us. Because rights are costly. Freedom of Speech is a costly right. Freedom of Speech is a right that often results in harm to third parties, including dignitary harms. And we embrace that as a country because we realize that the benefits of protecting those rights are critical to being able to have the type of free nation that we want to have.

 

      And finally, the last point is that Justice Gorsuch did suggest, in his concurrence, that he thinks it would be valuable to bring the Establishment Clause jurisprudence more in line with how we think of standing in other context. He asked about, in other context, we certainly can't imagine, he said, if a bystander was disturbed by a police stop and they tried to sue under the Fourth Amendment, or of an advocacy organization whose members were distressed by a state decision tried to deny someone a civil jury trial if they sought to complain under the Seventh Amendment, or envision a religious group upset about application of the death penalty trying to sue to stop that, does anyone doubt that those cases would be rapidly dispatched for lack of standing? And his point is that the Establishment Clause way in which we thought about standing has long been an anomaly and that's another area where we could possibly bring that back in line with the way in which we treat standing for many of our other rights under the Constitution. Thank you.

 

[Applause]

 

Hon. Carlos Bea:  Bill Marshall.

 

Prof. William P. Marshall:  Thanks. Let me begin by thanking Judge Bea and really terrific panelists. Also let me thank The Federalist Society. I am so grateful to The Federalist Society for inviting card carrying members of the American Constitution Society, like myself and Micah. We live in a world in which conversations across party lines is a little bit too infrequent. I was reading something recently that Democrats don't want their kids marrying Republicans and Republicans don't want their kids marrying Democrats. My dad was a conservative Republican. My mom was a liberal Democrat. I take this personally. I wouldn't be here if people were not talking across party lines. Of course, I later realized, as I'm sure you all would, that my mom was so much smarter.

 

[Laughter]

 

      But that's another story. I'm going to talk about Establishment Clause standing, picking up where Stephanie left off. I'm going to be talking about standing, so this is a good time to pull out the pillows, or whatever you want to do, because I'm going to talk about procedure, and you can all fall asleep during the middle of it.

 

      But if there's any dramatic area where the Roberts Court seems to be going, it is in standing. In the Hein case, the Court said, without overruling Flast v Cohen -- because Stephanie is right. We've had much broader rules in standing in Establishment Clause areas than in other areas. But without ruling directly Flast v. Cohen the Court said, “Well, there's no standing to challenge congressional grants of moneys to religious organizations -- excuse me, executive grant of money to religious organizations. Only Congress' giving money to religious organizations.” Try to get your hands around that one.

 

      Then in the Winn case, what was at issue was a grant program in which a taxpayer could pay money to an organization that was primarily funding religious schools. And the Court said that was distinguishable from Flast as well because the taxpayer wasn't directly paying money to the government and handing it out. Although this was a dollar for dollar tax credit. This would make no sense, economically, to try to distinguish between the two. As a matter of fact, the bill for Religious Assessments that Madison criticized in his remonstrance had a similar kind of provision. If you didn't want to support a church, you could pay money elsewhere, but Madison still felt that that was a direct violation of what establishment principles should be.

 

      And then in the American Legion case, Justice Gorsuch and Thomas did exactly what Stephanie said, suggesting that we really ought to take this kind of broad establishment standing away and treat the Establishment Clause like other provisions.

 

      First of all, two practical aspects of that. One is, the grant decision in Winn is basically an instruction of how to avoid Establishment Clause scrutiny. Instead of taxing and then giving the money to religious organization, just give the money to the organization directly in a dollar for dollar credit and you avoid kind of constitutional scrutiny. So if the city wants to build a church, the way that they can do it is structure a grant program as opposed to a taxation program.

 

      The American Legion decision, if Gorsuch and Thomas's opinion is to be taken seriously, would suggest that nobody would have any standing to challenge new monuments. Although the decision itself, by the majority, was suggesting there might be a distinction between new monuments and all monuments, so there'd be quite a difference in what results there would be. And all of you, many of you I'm sure are saying, great, this is terrific. But let me indicate why this might not be so terrific.

 

      One of the reasons why Establishment Clause standing is different than other kinds of standing is because the Establishment Clause is different. It doesn't really create individual rights. It creates a sort of broader, broader prohibition. And many of the principles that we see and that the Establishment Clause is trying to enforce are of what Justice Scalia called psychic harms and what Justices Gorsuch and Thomas were trying to take away from standing. For example, the harm to taxpayers that Madison was concerned about was a conscience harm. It was that your conscience was being harmed if you saw your money going to religious groups and religious teachings that you didn't support. Most justices believe that denominational preferences are improper, but that's also likely to be just a psychic harm. If an organization says, our town is Presbyterian and we celebrate Presbyterianism in our town, then the Baptists are suffering only psychological harm by that particular declaration, yet one would assume that that kind of explicit government preference for one religion creates some sort of establishment problem. Again, this would be immunized from judicial review by the standing decisions.

 

      Coercion. If you define coercion the way Justice Scalia does, or did -- normally I come here and defend Justice Scalia because I'm defending the Smith decision. And you guys are all critical because I know you don't support a lot of what Justice Scalia had to say.

 

[Laughter]

 

      But here, I'm going to come back and sort of suggest Justice Scalia was missing something here. With respect to coercion, he thought that coercion just meant under legal penalty. In Lee v. Weisman, though as you all know, Justice Kennedy drew it a lot broader, and said basically, fear of social ostracization is a kind of coercion against which the Establishment Clause protects against. Well, that is also simply a psychic harm. It's not a tangible harm that you might see in other standing cases.

 

      Anti-corruption. Luke was referring to the notion in Engel, and he's exactly right, that Engel was largely concerned about the fact that it was the government involving itself in religion by drafting a prayer. But the idea of corruption of religion, that is a psychic harm. That religion, itself, is being corrupted. It's not a tangible harm, or if it is, the only folks who are getting harmed by that are the people who get the benefit of the government support. And one would think that they would not be appropriate plaintiffs to have standing.

 

      And finally, there is the alienation of outsiders concern that Luke was talking about that has been used with respect to challenges to monuments. But if we suggest there's no standing on that basis, you're suggesting that also is not a legitimate part of what the Establishment Clause is all about.

 

      And let me point out, by the way, I'm only talking here about standing. I'm not talking about the results. When Winn was decided the way it did, it ignored the fact, or at least mentioned the fact, that other cases like Walz v Tax Commission, Mueller v Allen, in those cases standing had been allowed sub silentio on the courts that it wasn't going to use them as precedence. But those two decisions established legitimacy of state support of religion. In Mueller, it was tax deductions and in Walz, it was property taxation.

 

      Now, Justice Gorsuch has an answer to this. He says, don't worry about losing too much stuff because you're still going to be able to have standing to challenge things. And he says, and this is a quote from his opinion, so there would be, “by way of example . . . a public school student compelled to recite a prayer will still have standing to sue,” citing School District of Abington Township v Schempp. Except that that wasn't Schempp. Schempp wasn't compelled recitation of a prayer. The prayers in Schempp were voluntary. If you're going to say that you need compulsion, then the school prayer decisions are wrong, or shouldn't have been reached because there was no proper standing.

 

      And some may be thinking that's a great idea. Let's bring school prayer back. In fact, I think those decisions still remain the decisions that a majority of the American people still don't accept. And what's the problem with school prayer in Engel? It was accurately described as a 21-word vacuous assertion of parity. But then that leads to the second question. Whose prayer? And that's where the real problem has developed. People have killed each other over whose prayer.

 

      If you open up communities by saying there's no standing to build particular monuments to particular religious organizations or have particular religious prayer, then other groups are going to want to get involved. You know, a vote for Harris is a vote heresy, is the way you're going to see elections. And one of the purposes, one of the clear purposes, it seems to me underlying the Establishment Clause, was trying to eliminate some of the religious divisiveness that the Framers were looking to across the pond when they drafted the Constitution. If we gut standing the way that I think the Roberts Court is going, you're going to have that kind of political division take place along religious lines. And to go back to where I started, I'm not sure we need more division in this society right now. Thank you.

 

      [Applause]

 

Hon. Carlos Bea:  Micah Schwartzman.

 

Prof Micah J. Schwartzman:  So I also want to thank Judge Bea and The Federalist Society for including me in this discussion, this panel, about the future of the Establishment Clause in the Roberts Court.

 

      I want to begin by laying out a claim, which is that the Court has inverted Establishment Clause doctrine in three main areas. Those are regarding the limits on religious exemptions, as Stephanie Barclay laid out. It has inverted the doctrine with respect to government funding of religious schools and it's done the same with respect to government religious expression. The result of all of those inversions has been to facilitate a kind of religious favoritism or preferentialism, and more specifically, I think favoritism toward Christianity, which violates core principles of disestablishment and threatens greater polarization and public attitudes toward religious freedom.

 

      So I realize that's a fairly strong claim, especially in this audience, I think. So I want to say a few words about each of these doctrinal categories and I'll try to explain my reasoning for laying out the claim as I have.

 

      Let me start with religious exemptions. After the Court's decisions in Hosanna Tabor, in Hobby Lobby, and in Masterpiece Cakeshop, we've now reached the Court's high-water mark in terms of its protecting religious free exercise. At no point in our prior history has the Court ever been more solicitous of religious accommodations.

 

      Whether under the Religious Freedom Restoration Act, or under the Religious Land Use and Institutionalized Persons Act, or under the First Amendment, we're a long way from the conservative decisions of the Berger and Rehnquist courts in the 1980s and 1990s, let alone any court prior to those decades. The Berger and Rehnquist courts were deeply skeptical of religious exemptions culminating, as you well know, in Justice Scalia's decision in Employment Division v Smith. And now, it's clear that at last four justices want to reverse Justice Scalia's decision. I think it's fair to say that conservative jurisprudence has been somewhat schizophrenic on the question of exemptions. The Berger and Rehnquist courts almost never granted religious accommodations under the Free Exercise Clause and those courts showed real concern for the harms that religious exemptions might cause to other people who don't benefit from them.

 

      By contrast, the Roberts Court has repeatedly granted religious exemptions. And I think not demonstrated serious concern for whether those exemptions imposed real harms on other people. So in the context of religious exemptions, the doctrinal inversion looks something like this. We've gone from a Court that grants almost no exemptions and rejects accommodations that harms third parties to a Court that is prepared to grant statutory and religious exemptions, even when they result in serious harms to other people.

 

      The second category I mentioned has to do with government funding of religious schools, and you've already heard something about this. But here, in this context, the Court's doctrinal inversion is even more striking. The Court has moved from a principle of strict separation or no aid, going back to the Court's decision in Everson in 1947, and applied, admittedly haphazardly, through Lemon and it's progeny to a principle of neutrality in which the Rehnquist Court authorized state funding of religious schools but did not require it, in a case called Zelman involving school vouchers, as you know. And then to the Roberts Court in Trinity Lutheran, which seems like a short step to requiring state funding of religious education. At least in some circumstances. So the trajectory here is going from no aid, to aid is permitted, now to aid is required.  

 

      In Locke v Davey, Chief Justice Rehnquist refused to hold that the Free Exercise Clause required funding of religious education. And his view was, in part, based on federalism values. But those values are, at this point, completely absent from view in these funding cases. I think it will be interesting to see whether this happens, but I suspect some enterprising originalist, someone who values local government, at some point will start to ask questions about whether Justice Thomas's federalism approach to the Establishment Clause has something to say about this. Whether it makes sense under federalism conception of establishment, even with respect to its historical understanding to require states to engage in funding of religious activities of religious institutions. I think we haven't seen that argument out in a serious way, just yet.

 

      The last issue is with respect to religious expression. And of course, we have the Bladensburg Cross case as our most recent and salient example. But here, too, we have a long line of cases from the Warren, Berger, and Rehnquist Courts limiting government religious speech. At this point, I think it's not clear anymore what those limits are, if there are any. I mean, if the state can put up a 40-foot Latin cross, the central symbol of Christianity, then the Establishment Clause is no real obstacle to putting the state's imprimatur and prestige behind the majority religion in this country.

 

      Still, moving from restricting government speech to allowing it is not a total inversion. That only gets you part of the way around. To do a full 180, you'd have to have a Supreme Court decision that said that the government was required to have some form of religious expression, and that you might think is unlikely. But we've heard already on this panel a claim that removing religious symbols would be an expression of hostility toward religion. And we know from Masterpiece Cakeshop that animus or hostility toward religion, a violation of a principle of religious neutrality is in conflict with First Amendment's religion clauses. If that's right, and if removing religious symbols is animus or hostility toward religion, that sounds a lot like, we have to keep religious symbols that are already existing in order to avoid hostility under the Free Exercise Clause. The Court would be in a position to demand that the state continue to support religious symbols. That would be quite a striking inversion of Establishment Clause principles.

 

      So that's three inversions. From no religious exemptions to requiring exemptions that harm others. From no funding to requiring funding of religious institutions. From limits on government expression to almost no limits, and possibly to requiring government religious expression.

 

      I think that these inversions facilitate a kind of religious preferentialism, a kind of favoritism toward the majority religion in this country. In the funding context, the likely beneficiaries are going to be religious majorities with political power to set the terms of funding programs. With respect to government expression, I think a 40-foot cross tells you, more or less, all you need to know. And in respect to exemptions, the main beneficiaries, again, are going to be members of religious groups that receive some solicitude from the courts.

 

      I want to mention one last case that colors this analysis and it hasn't been mentioned on this panel just yet, but that I think looms quite large for thinking about whether the Court is serious about protecting religion and religious liberty in an even-handed way. And that case is Trump v Hawaii, which is the travel-ban case, in which the Court sanctioned the most egregious example of official religious animus in its recent history, and perhaps ever. If you think about the history of the Establishment Clause as embracing a historical approach, there is no history of Presidents expressing animus toward a religious group in the way that we have seen.

 

      When compared with the solicitude that the Court has shown religious believers, and especially members of Christian denominations in Hobby Lobby, in Masterpiece, and in American Legion, the contrast in Trump v Hawaii could not be more stark. That case, I would argue, remains a stain on the Roberts Court and it will be a great source of skepticism about the willingness of this Court to take seriously, and to treat fairly, the demands of religious minorities.

 

      I can't pass on the symbol of The Federalist Society, which is the silhouette of James Madison, and I'm reminded of his words in the “Memorial and Remonstrance” where he wrote in paragraph nine, “Instead of holding forth an asylum to the persecuted, it is”—and he's talking here about the proposed Virginia Assessment—“a signal of persecution. It degrades from equal rank of citizens all those whose opinions and religion do not bend to the legislative authority. Distant as it may be in the present form from the Inquisition, it differs only in degree. The one is the first step, the other a last in the career of intolerance.” I think the Court has a long way to go to show that it's unwilling to permit that beacon of intolerance. These cases suggest a kind of preferentialism which it will have to do much more work to dispel. Thanks.

 

[Applause]

 

Hon. Carlos Bea:  Thank you very much.

 

      I would now like to open the discussion so that individual members can ask others questions and back and forth, so we'll start with Luke.

 

Mr. Luke Goodrich:  Great. I'd love to respond, briefly, both to Micah and Bill. And with Micah, I'm surprised at how much we agree. I mean, I think the Court has moved on exemptions from forbidding them to, in many cases, requiring them. It has moved on funding from no aid to sometimes requiring neutral aid. And it has moved on symbols from trying to stamp them out to leaving room for them. I think we just disagree on whether it's a good thing or not.

 

      And you call it religious favoritism. I think it's actually a manifestation of religious neutrality in a good way. So, for example, we talked about Fulton v City of Philadelphia, where the City of Philadelphia is trying to shut down Catholic Social Services, which for over 100 years has provided -- helped recruit loving families for foster children. And when the government shuts them down, despite the fact that there are 29 other private adoption and foster care agencies in the city that willingly serve LGBT couples, that's not neutrality. When it shuts them down, that's hostility toward religion and when the government allows different private agencies to provide all the same services to all the various families that might want to do foster care, that's actually neutral. So requiring a government exemption there is a form of neutrality.

 

      Same with funding. Trinity Lutheran is an example. When the government provides a scholarship program and poor families can use scholarships at both religious and non-religious schools, that's a form of neutrality. The government is not influencing private religious choice about where to go to school. But when the government shuts down scholarships only for religious organizations and gives scholarships to secular schools, that actually influences religious choice. It pushes people towards secular schools, so it's not neutral.

 

      And then same with symbols. The government occupies a lot of land in this country. And if the government removes all religious symbols from public land in the country, that speaks volumes about religion. It says religion is somehow distasteful or shouldn't be welcome in a public place. By contrast, when government property kind of mirrors the level of religiosity in the private square, that is actually neutral. So allowing religious symbols to be maintained in the public square and treating them like a natural part of human culture is actually a form of neutrality.

 

      I think maybe one place I would take issue is where you say we've reached the high-water mark of religious exemptions. I think I have good news for everyone. I think we're going to actually go even higher and see some very good decisions in the coming years. So, look forward to it.

 

[Applause]

     

Hon. Carlos Bea:  Professor Barclay?

 

Prof. Stephanie H. Barclay:  I'll echo. I loved what Bill was saying about the importance       of these conversations and so I'm really grateful that both Bill and Micah are willing to be part of these conversations.

 

      I want to pick up where Micah was talking about the Virginia Assessment and Madison's important words about our country being one where we have tolerance for minority religious groups and that we are not facilitating and allowing persecution towards these groups. And this is a principle on which, both, Micah and I absolutely agree.

 

      But I also want to take us back a little bit to some of our history, as far as lessons that we have learned about the country when we've gotten that wrong. And this is in the twin flag salute cases of Gobitis versus Barnette. And in Gobitis, there was an 11-year old boy who decided that his Jehovah Witness religious beliefs would prevent him from saluting the flag. At this time, we're a nation on the brink of World War II in the 1940s. And because of that, his teacher, first, tried to physically force his hand up. The salute, at the time, looked like this. And he was able to keep his hand in his pocket.

 

      But as a result of that, he was expelled. His family's grocery store was threatened with mob violence and they were boycotted. That case made its way up to the Supreme Court and the Supreme Court was asked, they were essentially asking for a religious exemption from this requirement that was applying to all the students that they engage to this flag salute. And the Court said this is an issue of national importance where we really need to instill patriotism. And we can't afford “immunity for dissidence,” is the words that the Court used. And so they said no to that religious exemption request.

 

      And after that, Professor Noah Feldman at Harvard has written about how it was as though the Supreme Court declared open season on these religious groups. And there were FBI reports of fatalities. There were churches burnt to the ground. There were Jehovah Witness individuals who were force fed castor oil and marched through the street of a town.

 

      And just a few years later, the Supreme Court took an almost identical case, in Barnette and the Supreme Court essentially said, we got it wrong. We got it deeply wrong. And there's no fixed star in our constitutional jurisprudence more clear than the idea that government cannot decide what is orthodox in religious beliefs and in speech. And I'm paraphrasing, but those words from Justice Jackson are some of my favorite.

 

      And so this early case in the 1940s, where we were granting religious exemption is an example, I think, of the way in which we protect minority religious beliefs through religious exemptions. The majority views are going to be baked into the general laws that we often have. The majority religious views are often not going to collide with a lot of the general laws that apply to everyone else. But the less popular, the less known religious beliefs, those are the ones that need more protection.

 

      And as far as the point about our country is schizophrenic. History with respect to religious exemptions, I think it's important to think of that in context, generally a broader context of our country's history of figuring out how to protect constitutional rights, generally. We had some fits and starts as a country. We didn't even have incorporation against the states of a lot of these fundamental rights until into the 1920s, ‘30s, and ‘40s. Strict scrutiny wasn't developed until 1963. We did have that early example of Gobitis.

 

      There's another case in the 1940s of Murdoch. Another Berger case providing a really important religious exemption is Wisconsin v. Yoder in 1972. In many ways, what we saw prior to this court was a retreat from that. What I think, thankfully, was a temporary retreat and I think that the way in which the Court has reinvigorated the protection of religious minorities is a good thing. And this dates all the way back to our country's Founding with an important case that Professor Michael McConnell has written about called People v Phelps where we provided a judicial religious exemption as early as 1813.

 

Hon. Carlos Bea:  Thank you. Go ahead, Bill.

 

Prof. William P. Marshall:  By the way, terrific comments. I could spend the rest of the week responding to a lot of what's going on. I'm going to try to do it relatively quickly.

 

      With respect to Luke and the idea of neutrality, I actually am not problematic with a lot of the funding decisions that have taken place if they treat them alike. But there's a reason why we have an Establishment Clause. The Establishment Clause isn't neutral. If we want to start our prayer in the school every day and not make it a prayer and say, Adam Smith we acknowledge our dependence upon thee, or the invisible hand, we can do it. But the Framers took religion off the table with respect to establishment, and why? And I think the answer is because they understood, and this was explained in Engel, that when the prize of government is out there, religions are going to compete for that. And if religions compete for that, that doesn't lead to a stable society. It leads to the problems that they witnessed in Europe. So they took the establishment prize off the table to minimize that kind of conflict. And what we're seeing now is a debate over that.

 

      To go to a Free Speech case, in the Abrams case, Justice Holmes talked about why is it that people want a censor? And the answer is, if you really believe something, you want to enforce it. If you really believe your religion is the right religion, this is not nefarious, nothing about it, you might want a symbol to your religion. The problem is, somebody else is going to believe that about their religion. And then if we start fighting about that in the political marketplace, then it's the kind of division along religious lines that I think the Framers were wary about.

 

      With respect to exemptions, and Stephanie made a great point because her argument about protecting minorities, and we sometimes forget this. The exemption regime was Justice Brennan's regime. It was Justice Scalia who stepped in and put an end to it. There are a lot of reasons to debate exemptions back and forth. But one of the questions is if you're really talking about protecting minorities, will that exemption regime, if it's adopted, really work? Take, for example, the cases out there right now when people want exemptions against federal laws for shielding immigrants. Is that going to be upheld, are we going to create exemptions for that? Are there going to be a lot of cases coming, not necessarily from the kind of case that Luke talked about, but coming from the left, with respect to exemptions. And there's a problem as to how fairly those things are going to be enforced.  

 

      It's not an easy decision, either way. And the interesting thing about exemptions is that I think there are a lot of strong conservatives and a lot of strong liberals that think exemption is a good idea and a lot of strong conservatives and a lot of strong liberals that think it's not a good idea. Not one that breaks down on political lines.

 

Hon. Carlos Bea:  Micah, do you want to --?

 

Prof. Micah J. Schwartzman:  I'll just follow up on that to say, when I mentioned schizophrenia with respect to the religious exemptions, all I really mean here is that Justice Scalia took one view and most of the conservatives on the Supreme Court, maybe not all of them, we'll have to see, take a different view. I don't think there's any bad faith on either side of that. I think they just had a different understanding of the Free Exercise Clause and different priorities. I think Justice Scalia viewed the question mainly in the rule of law terms and thought, look if you can challenge the law just because you have a religious motivation, that's going to lead to all kinds of problems. Problems of anarchy with respect to enforcement of the law and also, it's going to put into the hands of judges having to balance claims of religious conscience against state interest. And he thought that was problematic. There's a lot more confidence on this Court that that balancing can be struck by judges, in part, perhaps because of its experience of Religious Freedom Restoration Act.

 

      But it's interesting to mark the transition. I think when social conservatives were fairly secure, the question of mandatory constitutional exemptions was not as pressing. And now that that security is gone and there's legislation pushing against the religious views of many denominations in this country, now all the sudden, on the right, religious exemptions have an importance that they simply didn't have in the 1980s and 1990s.

 

      It's not to say there weren't conservative thinkers in that time period who favored accommodations. There certainly were. Mike McConnell were writing these articles promoting religious accommodations at the same time that Justice Scalia was deciding against them. But again, I think the cultural politics of exemptions has shifted considerably.

 

      Let me just make one last point about the question of neutrality.  You can ask questions about neutrality in all three of the contexts that I discussed. With respect to funding. With respect to exemptions. And with respect to government religious expression. But on that last point, on expression, there's nothing neutral about a 40-foot tall Latin cross. It's not a neutral symbol. When the case came up in Salazar, there was an exchange with a Jewish lawyer representing the ALCU, Peter Eliasberg and Justice Scalia. And Scalia said, of course the cross represents the war dead who aren't Christian. And I realize I'm in a dissenting view here, and now, as a matter of law, in dissent. But Scalia was wrong about that and people in the courtroom laughed in response.

 

      It's simply not the case that the cross represents all the war dead and has never been the case. That's not the history. And if that's a signal of how the Court is going to understand neutrality, again as I said, the Court has a lot of work to do. Especially when you look across other cases and hear, especially the travel ban, and don't see neutral application of the Court's understanding of religious freedom. The animus doctrine out of Masterpiece is a razor-thin trigger in terms of generating strict scrutiny for when there has been official hostility. And the travel ban, nothing. The Court sanctions animus, again, like we've never seen. When I look across those cases and I ask, do I think that this Court has embraced a serious principle of religious neutrality? I think it's really hard to make that case.

 

Hon. Carlos Bea:  Now, I've got a couple of questions to put to the panel because I'm in a business where we try to figure out what the law is and how to apply it.  And one of the questions I have is, I took down a note that, I think it was Bill Marshall mentioned that Justice Kennedy had zeroed in as to what the interest was, which was entitled to protection under the First Amendment as the fear of social stigmatization. But later on in Town of Greece, he sort of made it clear that he wasn't so involved, he wasn't so conscious about offensiveness. Offensiveness wasn't enough to give standing, or at least on the substance of the case. He was talking about coercion. Now, do you see a difference in that, Bill? Do you see a movement by Justice Kennedy from, perhaps, the person who feels offended by being thought to be not a member of the in-group to saying that's not enough to invoke First Amendment claim? You've got to show that you're being coerced to do something. See it?

 

Prof. William P. Marshall:  I completely understand. The one salient that I think ACS and The Federalist Society have agreed upon is Justice Kennedy's inconsistency from one opinion to another.

 

[Laughter]

 

      Obviously, one took place in a school, Lee v Weisman, where he was concerned about the ostracization and he didn't accept the coercion argument in the Town of Greece case. I think he's saying that you're dealing with adults there. There's not the same sort of coercive pressure, even though the people are appearing before a board that might be making decisions over some of their complaints. But yeah, I don't think he was particularly consistent in his view of what constituted coercion and what didn't.

 

Hon. Carlos Bea:  Another issue that comes up pretty frequently is the application of the ministerial exception. In Hosanna-Tabor, of course, we had somebody who is a card-carrying minister, I'll just say, the bureaucracy of the church had named that person as a minister. We have some cases where a regular schoolteacher in a Catholic school does have to give a religious class. That's part of her classes, like mathematics or history or whatever. But when she's giving that, does she take on the cloth of a minister? Or is she teaching a course in comparative religions? Is she indoctrinating? Or is she educating? What do you think about that?

 

Prof. William P. Marshall:  You're asking me?

 

Hon. Carlos Bea:  Yeah.

 

Prof. William P. Marshall:  Ah Socratic method. My students will be happy, and some of them are in here. So they're cheering you on, Judge Bea.

 

      You know, I think these are one of those very difficult decisions. One of the things that's left open by Hosanna-Tabor is how you determine when somebody is a minister or not. Is this going to be self-defining? I think Justice Thomas thinks she should defer. I think Fred Gedicks, Stephanie's colleague from BYU thinks that you really need to take a close look at what constitutes a minister or not. In that case, it was a teacher who primarily taught secular kinds of courses, but also [was] involved with it. I can't give you a clear line. I don't think the Court gave us a clear line on that. I do think it's no surprise that the Court found the ministerial exemption. I think that's appropriate that they did. But I can't give you a clear line of demarcation, sorry.

 

Hon. Carlos Bea:  I'd like to open it up to the questions, go ahead.

 

Mr. Luke Goodrich:  I was just going to speak to that, very briefly. Hosanna-Tabor, that was a 9-0 decision by the Supreme Court saying the government can't interfere with a religious organization's choice of its leaders. And what you see in that decision was, again, a self-consciously historical approach where Chief Justice Roberts in writing that opinion looked at the history of the Establishment Clause, including two of the elements I mentioned, government control over religious doctrine and government selection of religious leaders, and said that the ministerial exception was actually required by both clauses. Not only the Free Exercise Clause, but also the Establishment Clause.

 

      I think that ruling, also, is a real difficulty for the third-party harms argument that Micah has occasionally made because you have a fourth-grade teacher and she's losing her job. A very significant harm to her and yet, not only is that harm not a violation of the Establishment Clause, it's actually required under the Establishment Clause. And you get there through historical analysis, understanding what an establishment was at the time of the Founding, that government control over ministers and over doctrine.

 

Prof. Stephanie H. Barclay:  So one thing that I think is tempting to do in the Establishment Clause context is just sort of have reference to some abstract high-level concept as the be-all or end-all of how we're going to decide these cases. That's what Lemon was doing. I loved in oral argument when Justice Gorsuch said that it's essentially been described as the dog's breakfast, which wouldn't really like. But also, he sort of asked the attorneys, in oral argument, it sounds like you might be proposing potential tests that just take us back to another version of the dog's breakfast and they're equally malleable or difficult to administer in any sort of predictable way.

 

      And I think coercion is an important consideration of the Establishment Clause in certain contexts. If we're coercing someone to participate in religious practices that they don't want to participate in, for example. That's a great example of where, I think, coercion would be an Establishment Clause problem. But I don't think the Establishment Clause is limited to coercion.

 

      There's an example cited in the Hosanna-Tabor decision about when religious groups were reaching out to James Madison asking for him to resolve some religious questions for them about their doctrine and their structure. And Madison said, that's not something that we, as government, are allowed to do. Even when it was permissive, this was something that we saw in some of our corpus linguistics results, as well, is that sometimes, there was, especially for the established church, they welcomed the government interference with what they were doing. Because there were a lot of nice perks that came with that. And yet, that is still a problematic establishment.

 

      I think neutrality has a similar gravitational pull where we just want to say, turn to that as sort of the be all, end all. Is it neutral, is it not? And I think, as Micah and Luke demonstrate, neutrality unmoored from a specific set of facts or a specific hallmark of the establishment can be really malleable. Neutrality is going to be in the eye of the beholder. And I think that's why it's important to look at, if we're in the funding context, is the government being neutral with respect to providing equal opportunity and equal access to funding? It's a much more concrete question than just the idea of neutrality in a vacuum.

 

      The last thing I'll say, though, about how is it possible that religious monuments or religious symbols on government property can ever be neutral? I think, again, in isolation, if that's the only monument that we're thinking about on government property that doesn't look neutral, even to the extent that that's an important test, and I sort of push back on the idea that it is.

 

      But when you think about all of the different things that the government has on its property, this was relevant in another case before the Ninth Circuit with a statue called Montana Jesus. There was a statute of Montana on ski-slopes that were owned by the government. People really loved skiing down the mountain and jumping to high-five Jesus on their way down. It was a really important part of that ski-slope. But a lot of evidence in that case pointed out the wide arrange of quirky monuments and things that the government allows to be on its property. And so then, if we're saying, only religious monuments can't be on government property, that looks far from neutral. Even to the extent that's an important consideration.

 

Prof. Micah J. Schwartzman:  So I will say a word about Hosanna-Tabor because I think it links up to this last point that you're making about broadening our view to look at other types of speech that the government might support. In Hosanna-Tabor the Court said that churches receive special solicitude under the First Amendment. That is religious organizations are picked out by the religion clauses of the First Amendment for special treatment. And churches get very special protection in the ministerial exception.

 

      If you run a business, you know, especially if you're in an H.R. department, you don't get anything close to the kinds of immunities from anti-discrimination law that a church does. Especially when it's hiring ministers. So churches are very special types of entities, at least with respect to the ministerial exception. But when we turn around and ask whether the government can fund those entities, or whether states are required to fund those entities, then the claim is something like, churches are just like all other organizations. They're not special in any way. They have to be treated just like everyone else.

 

      And so with respect to exemptions, it looks like religious organizations and religious believers, more generally, are very special. When it comes to this establishment, they have to be treated like everything else. Religious symbols are just like other kinds of symbols that the state might support. There's nothing distinctive about them. And this is really strange. This is a kind of double standard that is not easy, I think, to explain. If religious groups are special for some purposes, you might think, well they'll be special for other purposes, too. I certainly think our Framers had views like this. Madison thought religious obligations had distinctive force, but he also thought that there were reasons to disestablish religious views.

 

      Let me just say one more word about third-party harms. Which I think is a kind of cutting-edge doctrinal topic and still not all that well litigated or understood. Imagine this. Imagine you worked for a for-profit company and that company comes to you and says, we're not going to pay your Social Security benefits anymore. We have religious objections to paying for Social Security. And now ask the question, do you think that you would be harmed if a court said that business is entitled not to pay those benefits to you. And I think most of us would say, that's a setback to my interests. That's costly to me. It's harmful to me. And in a case under the Berger court in the 1980s in United States v Lee, a unanimous court basically said the same things. You can't deny someone their Social Security benefits just because you have a religious objection to paying Social Security taxes.

 

      When religious exemptions, or when religious beliefs, would harm other people in a serious way, that becomes a question that the Court has to take into consideration, both under the Free Exercise Clause and under the Establishment Clause. We have to think about that problem, and I suspect that, really, what's going to happen here is the Courts aren't going to dismiss this question out of hand. It would be completely untenable to do that. The question is going to be how much harm are courts willing to allow when it comes to religious exemptions, not whether the religion causes have anything to say or not to say about it. Of course they have something to say about it.

 

Hon. Carlos Bea:  One last question from somebody who's in the pits all the time on this issue. We're increasingly told that the first thing we have to consider whether or not it's brought up in the briefs is standing. And one of the issues that I see causing some doubt is concept of dignitary injury. It's very difficult for me to put an objective definition on that and be able to say this is a dignitary injury and this is not even a dignitary injury. Maybe you could help me on that.

 

Prof. Micah J. Schwartzman:  I get asked this question a lot now, what counts as a dignitary harm, and the example I like to give is, to distinguish material harms from dignitary harms is, suppose I run a bus service and I think I'm obligated on religious grounds -- and this doesn't happen anymore, thankfully in our country, or extremely rarely but I think I'm required by my religious tenants to discriminate on racial grounds. And I say, look, I'm prepared to let people of a racial minority ride on my bus, so there's no material harm to them. They can get from point A to point B on my bus. But I say, in order to be consistent with my beliefs, the people who are members of racial minorities, they have to sit in the back. I think we all, intuitively, understand that requiring someone to do that imposes a dignitary harm on them. It denies their status as an equal citizen. It's not about getting from point A to point B, it's about how you get from point A to point B and that matters to our dignity as citizens. I don't know how better to explain it than that, but I think that's a lot of what's going on here.

 

Hon. Carlos Bea:  It's a good example. Bill?

 

      All right. Now's the time that we're going to open it up to questions from the audience. And if you'll just step up to the microphone and state your name and then please state a question, not a statement.

 

Nate Kinard:  Good evening. Nate Kinard from the Chattanooga Bar. Thank you to the panel for an excellent presentation. My question is for Professor Schwartzman, I think--

 

Hon. Carlos Bea:  Please speak up.

 

Nate Kinard:  My apologies. I think the degree to which the Roberts Court looks to be particularly solicitous of the majority religion, Christianity versus others is to, some degree, a matter of perception. And the example you gave, which shows a different treatment is the Trump v Hawaii case versus Masterpiece Cakeshop, but I think of the Holt v Hobbs case where the Court was very solicitous of the views of the Muslim prisoner. What's your response to that? Does that somewhat negate a perception that the Court treats minority religions less favorably? Thank you.

 

Prof. Micah J. Schwartzman:  I love the Holt v Hobbs case. It's a great example for the question that you're asking. And you're right, it's a good counterexample. It was preceded in litigation by a case that the UVA Supreme Court Clinic—I have to give some kind of shout-out to UVA—a case called Iron Thunderhorse. It was CVSG’d. I think it helped to tee up Iron Thunderhorse.

 

      Look, at the end of the day, we're just going to have to see more cases, and a run of cases. I'm not optimistic that Iron Thunderhorse is going to be the definitive marker here. I mean, I'm a little worried that it's an example of tokenism. But it was an important case because there was a clear split in the circuits about how to implement strict scrutiny in the prison context. So I don't disagree that it's an important decision and it's a decision that affirms the Free Exercise rights of a Muslim prisoner. And there are many religious minorities affected by RLUIPA and we are seeing huge numbers of RLUIPA cases. They vastly outnumber any other type of Free Exercise case throughout the country and have for more than a decade. I think this is something that's not all that well appreciated, publicly, about our religious Free Exercise regime. Enormous amount of litigation is happening in the prison, so I don't underestimate that decision.

 

Hon. Carlos Bea:  Next question over there?

 

Clark Forsythe:  Clark Forsythe, Americans United for Life. To follow up on Professor Marshall's point, I wanted to ask, how much religion did the Framers take off the table by writing the Establishment Clause rather than the support clause, or the favor clause, or the recognize clause?

 

Hon. Carlos Bea:  Anybody want to tackle that one?

 

Prof. William P. Marshall:  I'm not sure I understand your question.

 

Clark Forsythe:  Well this is an originalist conference --

 

Hon. Carlos Bea:  -- Could you repeat the question, please?

 

Clark Forsythe:  -- so I'm asking an originalist question, which is, you said that the Framers took religion off the table. And I wanted to ask, how much religion did they take off the table by writing the Establishment Clause rather than the support clause or the recognize clause or the favor clause?

 

Prof. William P. Marshall:  Well, yeah, okay thank you. I think they took off the table that -- I think what they were trying to do, and how much we want to figure out what establishment means and was interesting to me that Virginia, shortly after the enactment of the First Amendment, didn't want churches to be able to own property or be incorporated because they thought that that was improper support of religion. So one of the problems with history is we all know that history can be interpreted in multitudes of ways.

 

      The point that I was making wasn't that all religion was taken off the table, but that the Framers were clearly concerned about the idea that religions would compete for government favor. And that's the problem that I think they were worried about and the divisiveness that comes when you have religions compete for government favor.

 

      I'm not in favor of taking down all symbols. I think that Breyer's point, that taking down all symbols does show some hostility, is an accurate one. I think we aren't going to change the name of Corpus Christi. We aren't going to change the name of Los Angeles, although we might want to because it's clearly not the City of Angels.

 

      [Laughter]

 

      But going forward, I think that there's a natural dynamic that if you see a town supporting somebody else's religion, you're going to want them to support yours. Or if a new political majority takes over in a town that's of a different religious faith than the previous majority, you're going to take down one monument and put up another one. And the standing cases, standing cases are just letting it go to court, but if we don't have any of those kind of constraints at all, I think we're going to have the political divisiveness that the Framers were worried about.

 

Hon. Carlos Bea:  Thank you, Bill. Next?

 

Jordan Lorence:  Jordan Lorence. I work for Alliance Defending Freedom and Professor Marshall, I wanted to bring up the very topic that, and you just said, well of course the City of Los Angeles couldn't get sued to change its name. And you made an inappropriate joke, I would say. But the way that Justice Ginsburg wrote her dissenting opinion, if that had been the majority opinion that something only has one meaning and that you can't make a cross into a secular monument by saying it's dedicated to veterans, then to me, I think, you would have lawsuits saying, Saint Paul, Minnesota violates the Establishment Clause. The rainbow flags at the Stonewall National Monument can't have two meanings. They mean Noah and Genesis and the Gay Rights Movement; they can't say there's two meanings. That seems like the same logic. So I don't understand why that would not be -- that we would see all these kinds of lawsuits against Providence, Rhode Island and Corpus Christi, etc.

 

Prof. William P. Marshall:  Well look, I'm not buying into Justice Ginsburg's theory on the particular point you're making. We have a problem in this area. I don't think there's many areas that are as beset by inherent contradiction as the religion clauses. The First Amendment, itself, seems to require special support for religion in one clause, and a special disability for religion in another clause. I think that's what Micah was referring to before.

 

      We have a cultural history that's deeply embedded with all kinds of religious symbolism. When we were talking about this in my class the other day and we had some real ardent separationists, I said, okay we'll make class on Thanksgiving because that's obviously unconstitutional to have it as a national holiday. They quickly retreated from that, by the way.

 

[Laughter]

 

      So your point is right. But I do think there is a point that the Court has been eluding to and trying to work out all these years, that at some point when you enter into new kinds of symbols and new kinds of traditions, or whatever, it creates the kind of problems that don't exist with things that have been around for a long time. Justice Alito's opinion seems to be eluding to that in the American Legion case. The Ten Commandments cases had that before. But when you create -- and the distinction between McCreary and Van Orden on that, I think, expressed that as well. We aren't going to have the clear lines of demarcation that I think Luke would like us to have because I don't think it's a particularly clear area to figure out an absolute bright line.

 

Jordan Lorence:  Well, maybe I should ask Professor Schwartzman if he agrees with that because I take it that you agreed with what Justice Ginsburg said?

 

Prof. Micah J. Schwartzman:  I don't think Ginsburg was saying that a religious symbol can't have multiple meanings. I think she meant that symbol didn't have multiple meanings, and she's right about that. That symbol didn't have multiple meanings. It had one meaning when it was put up. We know that because at the time that it was put up—and this is a nice originalist point—there were alternative religious symbols for people who were veterans and war dead from World War I. If you were a Jewish veteran of World War I, you didn't have a cross on your tombstone. You had a star. And there were available means to select if you were choosing tombstones, at the time. And I think that was common knowledge.

 

      So I think her point is just about this particular symbol. I don't think you'll see a parade of horribles to city names, and so on. I think it's understood that some symbols can be secularized over time, but not this one.

 

Hon. Carlos Bea:  Luke?

 

Mr. Luke Goodrich:  Yeah, I think Bill's, going back to Bill's soliloquy, I think it really illustrates what the difference is on this side of the podium and that in that he seems to view the two religion clauses as intention or conflict with each other. So Free Exercise Clause is there to help religion and the Establishment Clause is there to kind of make the government a little bit skeptical of religion. And that's really the view of the Lemon test. Interpreting the Establishment Clause, not to have any sort of meaning rooted in history, but just a general roving mandate to restrict religion in the public square. But that would be real news to the Founders. Because the Founders viewed the two religion clauses as working together toward the same goal of reducing government control over religion.

 

      And when you understand what an establishment actually was at the time of the Founding, those elements that Professor McConnell has identified, those types of government practices were exercise of government control over religion in very specific ways. If you restrict the government from that, and you also restrict the government from interfering with Free Exercise, you're leaving religion free to flourish by its own merits. So I think that's where the difference comes in. It also affects views on religious symbols. So we talked about divisiveness and standing.

 

      And really, in this area of the law, religious symbols were not a concern at the Founding. The first Supreme Court decision addressing religious symbols under the Establishment Clause was Stone v Graham in 1980. We had almost 200 years where the Supreme Court was simply not in the business of policing religious symbols. You didn't end up with crosses on top of City Hall. What you ended up with was sort of a mirror, the public square kind of reflected the amount of religiosity in the private square. So the Lemon test actually promotes more divisiveness, more social conflict in this area by generating these kinds of lawsuits that lead to bitter strife over what were, for almost 200 years, just innocuous religious symbols.

 

Hon. Carlos Bea:  Next Question?

 

Reed Smith:  Reed Smith, Christian Legal Society. This kind of follows up on Jordan's question. In particular, Professor Schwartzman, what is your limiting principle here? If you say Latin crosses are clearly a religious symbol, are we now going to go into Arlington National Cemetery and maybe, if we aren't going to desecrate each of the gravestones, we might desecrate some of the other free-standing crosses there. And if you're wanting to go to a size issue, you may have noticed, we have a relatively large obelisk here in the middle of Washington D.C., which also has its origins in religious symbolism, so. I'm just kind of wondering where the limiting principle is here. Thank you.

 

Prof. Micah J. Schwartsman:  It's a fair question. I don't think anyone has any objection to selecting religious symbols for individual grave markers, as in Arlington. My father was a military chaplain for most of his career and was the chaplain in Arlington for a while. I can't imagine, I just don't think that there's any serious Establishment Clause objection and I don't see anyone on the Court, including Ginsburg and Sotomayor staking out a position that would conflict with those types of decisions.

 

      It still leaves open the question, what the principle is. And I think, in a way, I think American Legion is right, it's all about social meaning. Justice Alito says determining social meaning is difficult, but he knows what social meaning is. And the way you know he knows it is because he thinks it’s quite clear that removing the monument would be a signal of hostility. Why? Because it's clear that some people would be offended by that. And when you ask, what's the role of offense in the Establishment Clause? We say, well it has no role. But it does have a role. It signals, or it could signal, anyway, hostility.

 

      So I guess I want to turn back the question, to some extent. I think it's all about social meaning and there's no way, really, of escaping that. It's about that question on both sides. And I also, then, would want to know what's the limiting principle for the Court. Historical principle? That doesn't really tell us very much. We can allow crosses on capital buildings. We didn't have them, historically. Will we have them now? I don’t know the answer to that question.

 

Hon. Carlos Bea:  Okay. I think we have time for one more question before we adjourn.

 

Sam Wright:  I'm Sam Wright. I'm a retired Navy JAG. If there's a conflict or tension between the Free Exercise Clause and the Establishment of Religion Clause, does the Free Exercise Clause still trump? In the federal government spends hundreds of millions of dollars providing chaplains for military personnel, for federal prisoners, for patients in VA hospitals. But if we didn't provide that, where would those people go to worship? Are the chaplain services safe from this kind of attack?

 

Hon. Carlos Bea:  Anybody want to tackle that one?

 

Prof. Micah J. Schwartsman:  I don't want to say I grew up the beneficiary of an unconstitutional practice.

 

      [Laughter]

 

Hon. Carlos Bea:  Do you think you did?

 

Prof. Micah J. Schwartsman:  No, no, I think it's constitutional.

 

Hon. Carlos Bea:  I'd like you all to thank the distinguished panel.

 

      [Applause]

 

      And we are adjourned. Thank you very much.

 

6:00 p.m. - 7:00 p.m.
Lawyers Convention Reception

2019 National Lawyers Convention

East Hall
Union Station
50 Massachusetts Avenue NE
Washington, DC 20002

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6:00 p.m. - 7:00 p.m.
Madison Club Reception

2019 National Lawyers Convention

Columbus Club
Union Station
50 Massachusetts Avenue NE
Washington, DC 20002

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7:00 p.m. - 10:00 p.m.
Antonin Scalia Memorial Dinner

2019 National Lawyers Convention

Great Hall
Union Station
50 Massachusetts Avenue NE
Washington, DC 20002

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  • Hon. Brett M. Kavanaugh, Associate Justice, Supreme Court of the United States

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10:00 p.m. - 11:00 p.m.
Closing Reception

2019 National Lawyers Convention

East Hall
Union Station
50 Massachusetts Avenue NE
Washington, DC 20036

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9:00 a.m. - 11:00 a.m.
Showcase Panel II: Why, or Why Not, Be an Originalist?

2019 National Lawyers Convention

Topics: Constitution • Jurisprudence • Philosophy
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 15, 2019, the Federalist Society hosted the second showcase panel of the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The topic of the panel was "Why, or Why Not, Be an Originalist?"

There are a variety of arguments for following originalism today, such as justifications rooted in language, positivism, sovereignty, and consequences. This panel would look at many normative positions for and against originalism.

*******

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Featuring:

  • Hon. Amy Coney Barrett, United States Court of Appeals, Seventh Circuit
  • Prof. Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School
  • Prof. Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law
  • Prof. Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University Law School
  • Moderator: Hon. Thomas Hardiman, United States Court of Appeals, Third Circuit

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Event Transcript

Dean Reuter:  Good morning. Let’s get started if we could. Thank you very much. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. Welcome and thank you all. Welcome back, or welcome, as the case may be. This is the second and best day of The Federalist Society National Lawyers Convention, so thank you for being here. This is our showcase panel on “Why, or Why Not, Be an Originalist?” And as Justice Kagan has said, and as we heard again last night, we’re all originalists now. So one could wonder, if we’re all originalists, why do we have a panel on or why or why not be an originalist? I’m interested to find that out myself, so we’ll find out momentarily.

 

But I thought we had a great day yesterday, capped last night by what I thought was a very personal and touching address by Justice Kavanagh, just splendid. And I don’t think people in this room necessarily know but that event was sold out before we could advertise it. So it’s a good time to be in The Federalist Society. And I apologize for the delay in getting into the room last night, into the building. That was caused by a last minute security, a second security sweep of the entire building. It turns out a security sweep that was almost perfect but not quite perfect, as we did have one protestor in the room.

 

So the good news is that that protestor last night, if you were there — who tried to interrupt the proceedings — she apparently did pay for her dinner ticket.

 

[Laughter]

 

Someone suggested it might be nice for us to take that money and do something meaningful or useful with it. We charged $250 for dinner last night for nonmembers, and I’m pretty confident she was not a member. So you all know me. If you have a great idea of how The Federalist Society should spend that $250, let me know. I was thinking staff bonuses, but you might have better ideas.

 

[Laughter]

 

In terms of special things going on today, there’s an exhibit today upstairs in the Rhode Island Room of one of the original copies of the Federalist Papers. If you get a chance, you should really take a look. It’s going to be on display tomorrow as well, but only part of the day tomorrow. So that’s the Rhode Island Room upstairs. We’ve got more book signings today, as well — but please don’t sign the Federalist Papers upstairs — several panel discussions and an address, of course, by Labor Secretary Eugene Scalia. And then we’ll end the day with an address by Bill Barr, the Olson Lecture.

 

One thing we’ve added this year — actually, we had it last year — is the livestream of all of our proceedings, virtually all the proceedings. So I would encourage folks to email and tweet your friends and family, let them know they can watch all these proceedings online. Just go to The Federalist Society website, fedsoc.org.

 

With that, it becomes my duty to introduce our moderator, Judge Hardiman. I’ve urged all our moderators to introduce their panelists very briefly, so I’m going to introduce him only briefly by saying he’s a great friend of the organization, a repeat performer here. And I welcome him. Please join me in welcoming Judge Tom Hardiman.

 

Hon. Thomas Hardiman:  Thank you, Dean. It is a great privilege for me to be here to moderate this panel of outstanding thinkers and scholars. Our first presenter this morning will be the Honorable Amy Coney Barrett. She served as a judge of the United States Court of Appeals for the Seventh Circuit for the past two years. She spent some time here in Washington serving as a law clerk to Judge Laurence Silberman and Justice Antonin Scalia. She also practiced law at Miller, Cassidy, Larroca & Lewin for three years before returning to a place that is near and dear to my heart, University of Notre Dame, her alma mater, in 2002, where she became a distinguished professor of law. In addition to her extensive duty on the Seventh Circuit, she continues to teach at Notre Dame.

 

After Judge Barrett, we’re going to hear from Professor Richard Pildes. He’s the Sudler Family Professor of Constitutional Law at NYU Law School. He’s one of the nation’s leading scholars of constitutional law and a specialist in legal issues concerning democracy. A former law clerk to Justice Thurgood Marshall, Professor Pildes has been elected into the American Academy of Arts and Sciences and the America Law Institute. He’s also received recognition as a Guggenheim Fellow and a Carnegie Scholar. He authored an acclaimed case book on The Law of Democracy. And we’ll hear more from Professor Pildes about the law of democracy during his remarks.

 

Our third presenter will be Professor Sai Prakash. He’s the James Monroe Distinguished Professor of Law and the Paul G. Mahoney Research Professor of Law at the University of Virginia Law School. A graduate of Stanford University and Yale Law School, Professor Prakash clerked for, like Judge Barrett, Judge Laurence Silberman here in Washington. And he also clerked for Justice Clarence Thomas. A widely respected scholar of the separation of powers in general and executive power, in particular, Professor Prakash’s forthcoming book, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, will be published by Harvard University Press next year.

 

Last, but certainly not least, Professor Michael Dorf is the Robert S. Stevens Professor of Law at Cornell Law School where he has taught since 2008. A prolific author of more than 100 articles and essays, Professor Dorf is co-author with Professor Laurence Tribe of On Reading the Constitution. A graduate of Harvard College and Harvard Law School, Professor Dorf clerked on the Ninth Circuit for Judge Steven Reinhardt and on the Supreme Court for Justice Anthony Kennedy.

 

In the grand tradition of The Federalist Society, we will have opening statements of approximately ten minutes from each of our panelists, followed by great diversity of opinions, vigorous discussion, and concluding with questions, I reiterate, questions from the audience at the tail end of the presentation. So without further ado, Judge Amy Barrett.

 

[Applause]

 

Hon. Amy Coney Barrett:  Thank you, Judge Hardiman. I’m delighted to be at the convention and on this panel this morning. I look forward to a lively debate.

 

      At bottom, I think one ought to be an originalist because the Constitution, no less than a statute, is law. It’s not merely a statement of our aspirations, as some have described it, nor, as others have said, is it simply a symbol of our political culture’s commitment to the idea of fundamental rights. Those things are true of the Declaration of Independence, a document that we revere. But the Declaration does not bind us, and the Constitution does. It’s more than an expression of political ideals. It has the force of law.

 

      Why is the Constitution law? As an initial matter, the original Constitution, along with each of its amendments, was adopted in an exercise of popular sovereignty through a process self-consciously designed to create authoritative law. And the authoritative law that the people created is the text that they ratified. That text is what satisfied the onerous process of ratification. That is what has supermajority buy-in. And if a constitutional provision became authoritative because the people consented to it, then we need to know what they consented to. And to discern that, we look at the meaning that the text had at the time it was drafted and ratified.

 

      Two features of our Constitution make that possible. The fact that it is written enables us to identify the content of our constitutional commitments, and the fact that the Constitution and its amendments become authoritative through a formal process enables us to put the text in its historical context. The same isn’t true of an unwritten constitution, for example, like the British Constitution. If fundamental law grows through a largely unwritten tradition, it is difficult to pin down its precise content, much less to isolate the moment at which any given principle becomes fundamental law.

 

Our Constitution is structured differently. It’s meaning was fixed at the time it was written and formally adopted, and it stays the same until it is lawfully changed. And this fixation of the text is part of our constitutional design because it sharpens the constraint. The content of the commitment does not change even if popular attitudes wax and wane. Even if a majority of the country thinks that free speech is passé, the First Amendment stands.

 

Arguments that the text is authoritative raise a number of objections, but one common one is the dead hand objection. We were not among the people who ratified any of these constitutional provisions, nor, when some of these constitutional provisions were ratified, would many of us have been able to participate in their ratification. So why should we be bound to the text as those who ratified it understood it?

 

This is more than an objection to originalism. It’s an objection to the Constitution’s status as law. On this view, the Constitution has no claim on us because we didn’t participate in the process of its adoption. But this idea doesn’t really have purchase in real life. So we’ve seen criticisms recently of the Electoral College and of equal representation in the Senate. But we don’t see serious proposals to simply abandon the Electoral College in the next election or to seat more than two senators in California.

 

We wouldn’t make either change without a constitutional amendment because, in our ongoing society, each generation treats the law as authoritative until it is lawfully changed. And the constitutional law that is handed down is — I’m going to borrow this from Professor Stephen Sachs — the founder’s law plus lawful changes. To figure out what the law is, we go to the source. We identify the meaning of the text that the people ratified and account for any lawful changes that have happened since.

 

Now, it’s indisputably true that a constitutional change is hard to come by. The hurdles of the Article V process are steep. Does the difficulty of that process mean that we’re stuck with the Founders’ law no matter how much we might want to change it? Or put differently, is the Constitution a straitjacket? No. For one thing, it bears emphasis that the Constitution itself leaves plenty of room for change, political, legal, social, and otherwise. The Constitution is less than 6,000 words, and it makes no attempt to regulate every aspect of American life. It leaves change largely in the hands of the states and of the political branches of the federal government.

 

The Constitution may be hard to amend, but legislation is easier to pass. And state constitutions are much easier to amend than our federal Constitution. As Judge Sutton has reminded us, we have 51 imperfect solutions, not one. Our Constitution is not supposed to be the mechanism by which we accomplish every change, even significant ones.

 

Moreover, when the Constitution does speak, it does so through a mix of rules and standards. That has given the Constitution the flexibility to last. It speaks not only in specifics but also in generalities. And fidelity to the Constitution means respecting the level of generality at which the text is written, not to transform standards into rules or vice versa. As Justice Scalia said, text should not be construed strictly. It should not be construed leniently. It should be construed reasonably to contain all that it fairly means.

 

Now, notwithstanding the ways in which the Constitution leaves us flexibility, there is no denying that it also imposes constraints. After all, entrenching certain values and structural features of government is the point. Is that reason to say that we ought not be bound by this law, including by the mechanisms that it proscribes for change? Again, no.

 

The difficulty of constitutional amendment is, in my view, one of the things that enables us to hang together as a country. Amending the Constitution is difficult not simply because Article V makes it so. It’s because the size and diversity of our country makes supermajority buy-in very difficult to achieve. But perhaps that’s okay. Having fewer rather than more national and entrenched rules, thereby permitting regional differences to flourish, is necessary in a country like ours. It’s remarkable, really, that the people of Louisiana and California, of New York and New Mexico are able to live under one constitutional roof.

 

We compare ourselves to Western European countries. But consider that Germany, closest to us in size, is roughly 138,000 square miles and has a population of roughly 83 million. The United States has a population of roughly 330 million and is roughly 3.8 million square miles. While I haven’t looked at the statistics, I think it’s a pretty safe bet that we have more racial, cultural, and religious diversity than any of our Western European peers or our Canadian neighbors. The Constitution that we have may not be the one that we would adopt if we started from scratch with our own constitutional convention today. Then again, I’m kind of skeptical that we would be able to agree on any constitution at all today. But we do agree on the one that we have, as reflected in our continued acceptance of it.

 

We treat our original Constitution as law, and we are right to do so. If we abandon it, if judges or elected officials seize the authority to change it outside of the lawfully proscribed process, then we’re imposing constraints on the people to which they have not consented. And I think that undermines the ability of the citizens of our very large and diverse country to live peaceably together under one constitutional roof.

 

So I’ll sum up by saying this: In keeping with the theme of we’re all originalists now, the really interesting questions are what are the mechanisms for lawful constitutional change, not whether the Constitution binds. And I think questions about identifying the level of generality at which provisions are written and the authority of precedent and how one builds out the more general language of the Constitution is where a lot of the fruitful debate is currently occurring. Thank you.

 

[Applause]

 

Prof. Richard H. Pildes:  Up until now, I have largely avoided getting caught in the crossfire of the debates between originalists and non-originalists. In my academic work, I haven’t engaged with the interpretive debates in general. But now that this event thrusts me onto that battlefield, maybe I can add a bit of a different perspective to these debates by engaging them from a somewhat different perspective, which as Judge Hardiman said, is the perspective of the substantive work I do, which I call the law of democracy.

 

So in particular, I want to raise the question, for those who are originalists, whether originalism should be understood as a complete theory of constitutional interpretation or only a partial theory. More specifically, are there some domains of law that even originalists do recognize or should recognize that are not and should not be governed by originalism and that are, in fact, legitimately even anti-originalist? Now, not surprisingly, perhaps, one of those domains in my view is the law of democracy. This body of law is probably the most radically non-originalist body of constitutional law that we have as a body. It’s been deeply established for 50 years or so now. Much of this law is widely accepted and not controversial, although some aspects of it, of course, are.

 

Let me give you a list of just four of the fundamental building blocks of the law of democracy so that everyone knows what I’m talking about. So first, recognizing the right to vote as a fundamental right under the Equal Protection Clause, although this could easily also be called an application of the dreaded substantive due process. Second, recognizing that malapportioned legislative districts violate Article I, Section 2 of the Constitution or the Fourteenth Amendment, that is the establishment of the one vote, one person principles.

 

Third, striking down under the First Amendment ballot access laws that make it unjustifiably difficult for third parties or independent candidates to get onto the ballot, the doctrine that John McCain benefited from when he challenged George Bush in the 2000 election primary because New York law for decades had made it virtually impossible in the Republican presidential primary for anyone other than the establishment anointed candidate to even get on the primary ballot. Fourth, the body of law that recognizes that political parties have constitutional rights that prohibit states from allowing, for example, independent voters to vote in party’s primary, even though the states can impose a primary on the parties in the first place.

 

I can’t explain in detail here why all of these doctrines are so non-originalist, and I’ve left out law of democracy doctrines that arguably are more closely tied to the text of the Constitution, like those involving campaign finance law, racial vote dilution, racial gerrymandering. But with respect to constitutional protection of the vote or access to the ballot box or the design of legislative districts or the role of political parties, it’s not easy to square any of that with the text of the Constitution, with any version of originalism, whether that originalism focuses on public understandings at the time provisions were enacted, the expected application of provisions, original intent. And it’s not even easy to square this body of law for non-originalists with stories about evolving historical practices of American democracy at the time the decisions were made. They were more radical even than that.

 

And the underlying reason is so difficult to square this body of law with the Constitution is that one of the paradoxes of our Constitution is that, precisely because we are the oldest continuous constitutional democracy, the Constitution itself is remarkably thin, much thinner than most modern constitutions and much thinner than most Americans recognize with respect to protection political rights or in specifying much at all concerning the framework for the democratic process.

 

The Fourteenth Amendment, for example, was specifically not intended or publicly understood to include political rights. Issues about state regulation of the ballot couldn’t even arise until the states began to take over printing and regulating ballots, which didn’t happen until the rise of the secret ballot in the 1890s when the state took over this function. Political parties were thought to be anathema to the system the Constitution was designed to set up, the quintessential form of Federalist No. 10’s faction. Yet by the time of World War II, almost all the new constitutions protect the rights of political parties because doing so had come to be thought to be essential to democracy in the aftermath of one party totalitarian states.

Moreover, much of this law of democracy is created directly in the teeth of contrary constitutional text, or at least so a textualist or an originalist might well argue. For example, the Elections Clause gives Congress the power to regulate how congressional districts are drawn. And Congress had that power to end the massive malapportionment of congressional districts, not state districts but congressional districts. And for many decades, that is part of why the Court stayed out of this issue.

 

But eventually, the Court learned something that the framers couldn’t have known, that with the rise of political parties, members of Congress and in state legislatures from the same party, which share a strong common partisan political interest, and Congress therefore would not function as an effective check standing above and independent of state manipulation of national political processes, including the design of congressional districts. So constitutional law filled in for this role, at least in the context of malapportionment.

 

So what is the approach to constitutional interpretation that justifies all of that and much of the law of democracy? The best single sentence answer to that, which is a highly functionalist, pragmatic kind of answer, comes from none other than Justice Scalia who wrote, “The first instinct of power is the retention of power.” And as his comments implicitly suggest, one of the primary functions of judicial review is precisely to provide a check against that instinct being turned into law.

 

Let me elaborate on Justice Scalia’s point. As a general matter, we know that in any democratic system, those who temporarily gain power will be tempted to leverage that power through policies that entrench themselves and their allies more securely in control, whether policies that reduce competitive threats from opposition parties from candidates or policies that undermine the other checks and balances that hold political power accountable.

 

If we had grown complacent about that, we just have to look at the rise in formerly democratic countries today, for example, in Hungary and Poland, of what’s been called electoral authoritarianism; governments that continue to hold competitive elections, or at least nominally competitive elections, and so get legitimation from the political process but use the power they have in office to capture control of the courts, the media, to manipulate the electoral process itself through gerrymandering election districts and other structural manipulations that create significant hurdles to meaningful political opposition.

 

The risk of political self-entrenchment that insiders will rig the system for their own benefit is one all democracies face. We know that. All of us know that. And so how can we not understand one of the most important functions of judicial review and constitutionalism to be aggressively protecting democratic self-government against that very risk, given the inevitability of this instinct to retain power and the fact that the danger cannot be protected against easily from within the democratic process itself?

 

Is this a matter of constitutional interpretation? Shall we call this a representation reinforcing approach to judicial review à la John Ely, or an approach based on the Constitution’s underlying structures and relationships à la Professor Charles Black? Perhaps. But rather than a matter of interpretation, maybe this is even better understood as a matter of applying principles that are constitutive of the very idea of government by consent that underwrites the Constitution as a whole, the idea that the coercive power of the state is legitimate only when it arises through processes of political competition that are not distorted through these kinds of manipulations of that process by incumbent political forces.

 

So how does originalism deal with this non-originalist body of law? Others here can answer that perhaps better than me. I think that originalists have not grappled all that fully with the law of democracy as a body of law, but here are three options, briefly. The first is denial and rejection, for originalists to deny the legitimacy of most or all of this body of law. Robert Bork seems to have taken that approach in The Tempting of America, but he only has a couple of sentences on this issue.

 

The second option is a kind of partial accommodation, coming up with heroic interpretations of the text to accommodate at least some of this body of law. That’s what one of our best originalists, my friend Michael McConnell, has done to justify the Court taking on the issue of malapportionment. He argues that the Republican Form of Government Clause should be understood to bar the kind of malapportionment that existed before the Court stepped in. But even that approach, which is designed to protect effective majority rule, as he says, only deals with a piece of these issues and not all of the anticompetitive laws that courts have struck down in the name of the First Amendment or the Fourteenth Amendment to preserve the processes of democratic competition.

 

So the third option for originalists is the one I suggested at the beginning, to accept that at least some large domains of our most important constitutional law are legitimately not originalist or even anti-originalist. And that’s because one of the biggest risks to democratic self-government is that those with power will use it to entrench themselves more deeply in power, and that one of the most important roles of constitutionalism is to protect the democratic process against that risk.

 

Of course, we’ll disagree about exactly what the courts should do and where the boundaries are, but unless originalists are prepared to shut the door completely for any such role for the courts, we should at least acknowledge some role for a non-originalist approach to constitutional interpretation. Thank you.

 

[Applause]

 

Prof. Saikrishna B. Prakash:  Well, it’s an absolute pleasure to be here today. I’m very impressed with the size of the auditorium, and I’m honored to be with these wonderful speakers. I can see many people in the audience that know about as much about originalism as I do.

 

      The topic today is, “Why, or why not, be an originalist?” And it’s an odd question to me because it’s a bit like asking why or why not be a human. I think originalism — this is my first point — originalism is the natural way of understanding utterances. I think Richard Fallon in his book, Implementing the Constitution, writes that most of his students come to Harvard Law as originalists. They try to understand what the law makers are trying to enact. And he says most people are originalist. And I don’t know what happens to those students once they leave Harvard Law School, but they came with the right instinct. I was an originalist before I went to law school, before I went to college. You try to understand people’s utterances. You try to understand what they’re trying to convey.

 

Law making is a form of communication. We’re trying to discern what the law maker’s trying to provide. If we’re honest with ourselves, we don’t try to invest what we would like to law maker to say. Parents give instructions to children. If children are manipulating the meaning of those instructions to serve their own ends, they’re not really trying to understand what the parents are saying. That’s not true interpretation. So I think Fallon is right. It’s the natural way of understanding utterances. It’s the natural way of understanding communications. It’s the natural way of understanding law, as well.

 

And I think we can see this today. If you are fortunate enough to watch the impeachment hearings, you will hear ad nauseum hundreds, if not thousands, of times over the next several months “What did the Founders think about impeachment?” Half of the Congress will say the Founders would have wanted Donald Trump to be impeached because he’s committed high crimes and misdemeanors. They’ll quote Article II, Section 4, which talks about “shall be impeached for the following high crimes and misdemeanors.” And if you’re a Republican, you’ll talk about perhaps the Founders rolling over in their graves. This is not an impeachable offense. I’m not interested in the specifics of the arguments.

 

My point is they’re both making this argument because it’s precisely what people expect. If a member of Congress goes up there and says, “We don’t really care what this clause was meant to do. We just want to get rid of the President, or we just want to save the President, come what may,” that’s just not a legitimate argument in Congress, I don’t think, certainly not at this point. And these sorts of arguments are going to be made because people expect to hear them. In my view, the marks on a page, the utterances that people make are not an invitation to readers or to listeners to generate meanings that are at variance with what the speaker was trying to convey or what a reasonable reader would take the text to mean.

 

My second point -- my first point was that originalism is the natural way of understanding utterances and words. My second point is I think originalism is not about whether we should honor some meaning. I think I disagree with Judge Barrett, with all due respect. I think meaning is different and separate from decisions to act, to honor, and to be bound by. In other words, saying what some text means does not establish that we ought to abide by whatever injunction, cautions, and warnings are in the text.

 

I can tell you what the Articles of Confederation mean using originalism. That’s not a reason for us to follow the Articles of Confederation. I can tell you about the 1788 Treaty of Alliance with France. That treaty is defunct, declared by Congress as such during the quasi-war with France. A Canadian using originalism can understand our Constitution. Obviously, the Canadian does not need to follow our Constitution or feel any allegiance to it. When talking about some defunct law or expired law, I think we understand this. Not much turns on the Fugitive Slave Clause. We can still figure out what it means. Not much turns on it because of the Thirteenth Amendment.

 

So in my view, originalism properly understood is not a normative theory. It’s a theory of interpretation about what something means. I think I’ve gotten this from Randy Barnett and Gary Lawson. It’s not a theory of normativity. It’s a theory of what something means. And you need something else to decide what to do with what the text means. So whether we should honor something requires a normative theory.

 

Let me sort of unpack that. Some people say that we should follow the Constitution because it was adopted by means of popular sovereignty. I think Judge Barrett said that, and other people have eloquently also made that sort of argument. But I don’t think that follows. I don’t think it matters whether the Constitution -- if the question is, “What does the Constitution mean?”, I don’t think it follows that we should be originalists because it was adopted by means of popular sovereignty.

 

It seems to me someone can be an originalist. Someone can try to make sense of a text whether or not they agree with popular sovereignty. There will be some people, call them libertarians, who may blanche at what comes through or what emerges from a process reflecting popular sovereignty. And there’ll be other people who have different points of view. So I think one can be an originalist. One can be a believer in popular sovereignty.

 

One can also reject this Constitution on the grounds that its no longer a reflection of the popular sovereignty of today, right? One can take the Jeffersonian position that the Earth belongs to the living and that the past shouldn’t be able to control the present, certainly not the past of 200 years ago. I agree with Judge Barrett. It’s often said of originalism that it allows the past to control the present. It really doesn’t. It’s a mode of interpretation. Whether you choose to be bound by the past is up to you. It’s not ascribable to the theory of interpretation.

 

So again, if what I’ve said is true, originalism is a theory of interpretation. It’s not a normative theory. And this takes me to my last point. I think the last point reflects the curious position we’re in. Everyone in this country wants to say that they subscribe to the Constitution, they believe in the Constitution. Then the fight is, well, what do we make of it? I think originalists have on their side this intuition that the meaning of the Constitution ought to be understood by reference to what it meant in 1789, because, again, I think that’s the natural way of understanding words.

 

And people that believe in change and change in the Constitution on a more progressive visions of the Constitution, they have cases and doctrines that many people actually like. There’s a good portion of the country that likes much of what the Warren Court did. There’s a good portion of the country that likes some of the things that the more recent Court has done. And they’re able to point to those things. Rick just did that. They’re able to point to those things and say, “If you’re an originalist, you have to reject all these things.”

 

So what we see is a struggle, I think, over how to make sense of the words of the Constitution to account for both of these impulses. And I think the originalists have the idea that originalism is the natural way of understanding the Constitution. And living constitutionalists have in their corner the idea that there are many innovations in constitutional law that people favor. Many people would favor some of the innovations that Rick mentioned earlier.

 

Let me end with two points. First, Justice Scalia wrote a wonderful article called “Originalism: The Necessary Evil.” And I commend it to you. I think the Justice was wrong. It’s not an evil at all. Interpretation is not evil. What you do with the clause may or may not be evil. So the Fugitive Slave Clause has a meaning. The clause itself is evil, but the act of interpreting it is not. So I think it was a mistake to talk about it as an evil. I think what he was trying to suggest was, as compared to other ways of deciding cases or deciding meaning, it’s less evil. But I don’t know why you would call originalism evil any more than you would call interpretation evil. I don’t understand that.

 

And my second point is to end with a hypothetical. Suppose you’ve got a grandfather on his deathbed, and he whispers to you, “Stay off the grass.” And you promise to abide by his injunction. He smiles. He seems relieved, and he passes. You know precisely what he means, what he meant to say. He was a drug addict during the ‘70s, and he is telling you to stay off marijuana. But you like to smoke marijuana. So you instead understand that command and your faithfulness to it as a requirement that you stay off grass. You don’t play football on grass. You play it only on artificial turf. You always use the concrete pathways. You’re not really honoring your grandfather’s wishes, and you should just give up the game. If you don’t want to honor it, don’t pretend that your misinterpretation is what he was trying to convey.

 

So I’m not here to sermonize against marijuana. I’ve never inhaled. I’m like the former President. But my point is it’s a mistake to misinterpret the Constitution to achieve some end. Rick’s point I think is well-taken. If you wish to pursue other ends, if you wish to salvage some portions of the Court’s jurisprudence that you favor, you’re going to have to use something other than originalism. Our jurisprudence is awash with non-originalist doctrines. So thank you so much.

 

[Applause]

 

Prof. Michael C. Dorf:  So I want to begin by thanking The Federalist Society, Judge Hardiman for moderating, my fellow panelists, and all of you for coming out here today.

 

      My position on the question why or why not to be an originalist is first we need to figure out what exactly it is we mean by originalism because, by my count, there are originalisms, not a single originalism. And I want to talk in particular about two lines of cleavage that one can see in the historical evolution of originalism from its, if you will, original instantiation.

 

So the idea that the original understanding of  the words of the Constitution is very important in constitutional interpretation is not originalism. That’s an idea that is accepted across the jurisprudential ideological spectrum. What makes originalism distinctive, it’s sometimes said, is the notion that those words are determinative of the results in concrete cases.

 

But if you dig into that a little bit, you’ll see, well, that can’t be right either for at least two reasons. One is all originalists, even Justice Thomas who is sort of the most skeptical of this, but all originalists accept some account of stare decisis. And stare decisis entails that sometimes you will accept a case as precedential even though it is inconsistent with the original understanding. So then you need a sort of further theory of when to be an originalist and when to be somebody who, on prudential and pragmatic grounds, accepts stare decisis.

 

The other reason is that the original understanding is often quite underdeterminate. Sometimes it’s indeterminate, but often its determinate. Judge Barrett gave a number of examples: two senators per state. That’s pretty fully determinate. But there are all sorts of other questions in which it’s underdeterminate. So even originalists are not going to be deciding cases simply in virtue of the original understanding in all cases. So the proposition that what distinguishes originalists from non-originalists is that originalists always follow the original understanding, whereas non-originalists just think its relevant, doesn’t quite work.

 

So let me ask, well, what is originalism? What makes originalism distinctive? My view on this is that originalism is an ism. It’s an ideology. And to understand an ideology, it’s helpful to think about where it came from. So again, you can find lots of statements in Supreme Court and lower court cases and the treatises of opinion writers throughout the 19th century into the 20th century talking about the importance of original understanding, usually in terms of original intent. Although, they sometimes meant by intent something different from the subjective intensions and expectations of the Founders. But you don’t get originalism as a distinctive ideology until really the 1970s and 1980s. And it arises roughly simultaneously with The Federalist Society, and for more or less the same reason, not because its some of the same people, which is that it is a reaction against what are perceived to be some of the excesses of the Warren Court and the early Burger Court.

 

In the view of people who then call themselves originalists, these Justices were using the Constitution very loosely to impose their own values in ways that they could achieve through the democratic process. So the idea behind original originalism was this was going to make constitutional interpretation more constrained and more legitimate. Many of the original originalists coupled originalism with an ideology of judicial restraint. And judicial restraint here means that courts oughtn’t to strike down the outputs of legislative and other majoritarian processes unless there’s a very clear answer in the Constitution’s text and history. The leading advocate of this position is actually a 19th century advocate, James Bradley Thayer, who wrote a very influential article in the late 19th century promoting this. The idea was you don’t overrule the outputs of majoritarian processes unless you’re sort of clear beyond a reasonable doubt that that’s what is required.

 

But modern originalism is not coupled with judicial restraint. At some point — I have a theory as to why. If somebody wants to ask me later, I’d be happy to explain it — but at some point, originalists decided, “You know, as long as we’re being bound by the Constitution’s original meaning, we don’t also have to be judicially restrained. So we can use the Constitution as a sword, not just as a shield. We can use originalism to strike down, if we’re justified in striking down, laws that we think are unconstitutional as inconsistent with the original meaning.” So cases of finding a right to individual ownership and possession of firearms, the modern federalism decisions, state sovereign immunity, campaign finance, these are all cases of the Court using ostensibly the original understanding, at least in some of these cases, as a means of striking down laws.

 

So the first question you have to ask is does originalism entail judicial restraint? I think the answer to that question is it originally did. It doesn’t anymore. Okay. Second question, I think this is sort of more salient contemporary line of cleavage, or it had been as I’ll explain in a moment, is whether one’s going to look at the original, subjective expectations and intentions of the founders, whether that’s the people who attended the convention, those who attended the ratifying convention, the general public. What did they have in mind with respect to concrete cases, on the one hand, versus what is often called original public meaning? What is the semantic content of the words?

 

And what you have found over the last 20 to 30 years is that the vast majority of academic originalists have shifted from subjective intentions and expectations — stay off the grass means don’t smoke the marijuana — to objective public meaning. Stay off the grass. Well, that’s a sort of idiom. Usually, people use that to mean don’t trample on the grass. And that’s the way we understand it. In a moment, I’ll critique original public meaning, but I want to point out that there were good reasons why originalists moved from subjective expectations and intentions to public meaning.

 

So let me just identify what I think are the key reasons. So number one, as a general matter, we believe that the law should be comprehensible to the public and that the law consists of the authoritative utterances of the legitimate lawmaking bodies. It’s their authoritative utterances, meaning the words, not what they might have had in their heads. So that’s true not just of constitutional interpretation. It’s true of statutory interpretation as well.

 

Second, that’s especially true, given the historical process that gave rise to the Constitution. The convention met in secret. We didn’t get Madison’s notes until 50 years later. So the Framers were quite self-consciously adopting a procedure by which we wouldn’t be looking to what they had in mind. Rather you look to what was ratified.

 

Third, what makes the Constitution law, at least originally -- and here I agree with Judge Barrett as to what originally makes the Constitutional law, although I’ll say some words about what makes it law now maybe in the back and forth. What made it law originally was a process that was very wide open. There were ratifying conventions in each of the states. There were lots of different people expressing different views. So in order to find something on which we can agree, it makes sense to look at meaning, original public meaning, rather than subjective expectations and intentions because you’re more likely to find a shared understanding on meaning than you are as to expectations and intentions.

 

And as an illustration of that, just think about some of the questions that vexed the early republic, in particular whether the first bank of the United States was valid. This was an issue that divided the Washington administration. Hamilton’s position eventually won, but there were strong positions by Randolph, by Jefferson to the contrary. And they all were very familiar with what had just happened. They had different intentions and expectations. Maybe meaning helps us there. Maybe we can find something at the level of meaning.

 

Finally, as Professor Pildes has pointed out, there are contexts in which the original intentions and expectations are going to lead to sort of normatively very unpalatable results. So the original intentions of the people who wrote the Fourteenth Amendment was almost certainly not to make sex equality entailed by the Equal Protection Clause of Section 1. And we know that because they include a sex line later in the Fourteenth Amendment.

 

There are lots of other examples. Think about Chief Justice Taney’s opinion in Dred Scott in which he talks about the reason why he’s going to say that African Americans can’t be citizens is because that was the intention, not written into the text exactly, but that was the intention and the understanding, the expectation of virtually everybody who was politically active in the late 18th century, its original intent. You can escape these problems by moving to original public meaning because original public meaning, as able to generate a consensus, necessarily operates at a much higher level of abstraction.

 

So I agree with the self-styled originalist scholars who pushed away from expectations and intentions to meaning that it does solve some of the problems, some of the core problems with intentions and expectations. But it does so at substantial cost. And the main cost there, I think, is that the level of generality that one needs to generate consensus in the late 18th century or the antebellum period, if you’re talking about the Reconstruction amendments, is so abstract as to be very substantially under determinate in concrete cases. And that’s also true of a level of abstraction you need to avoid the sorts of odious results that otherwise you get via intentions and expectations.

 

Once you go to that level of abstraction, however, originalism becomes virtually indistinguishable from living constitutionalism. This is why Professor Jack Balkin was able to write a book relatively recently with the title Living Originalism in which he argues that originalism and living constitutionalism are opposite sides of the same coin. Ronald Dworkin said that same thing in a book he wrote in the mid-1990s. He said, “Well, if you define originalism simply as what the Framers intended to say as opposed to what other intentions and expectations they may have had, well, then that’s totally consistent with my view.”

 

Professors Will Bode and Stephen Sachs — Professor Sachs was cited by Judge Barrett — have this view that originalism is already our law, they argue, because once one understands that originalism only operates at this high level of abstraction and you see courts not professing to contradict the original understanding, you’ve got originalism. So if the way to save originalism is to render it equivalent in virtually all concrete cases — maybe there were a few where it makes a difference — but in all the cases we really care about, make it equivalent to living constitutionalism, then the answer to the question why or why not be an originalist, I think, is who cares? That is to say, if we are all originalists but originalism is no longer a distinctive position, there’s really nothing at stake.

 

Now, let me take my remaining two minutes or negative two minutes — I don’t know how long I’ve spoken — to say one reason why we ought to care. I think that sophisticated audiences, like the people in this room and the people on this panel, understand, when they speak about originalism, the difference between original public meaning and original intentions and expectations. And usually, they mean original public meaning, although there are contexts of course, like Professor Prakash’s example, where it’s better to be a subjective intentionalist originalist. You want to honor your grandfather’s wishes and not smoke marijuana.

 

But the argument for constitutional interpretation has generally shifted and, I think, been pretty decisively won by the original public meaning originalists. However, if you look at the public discourse, and you see this during confirmation hearings. You see this during the impeachment proceedings about which I’ll say a little more during the comments. It is virtually -- all the time, you see legislatures and often judges and justices resorting to expectations and intentions. So I have, in a larger article I wrote some years ago, I gave examples of Justice Scalia, Justice Thomas talking the talk of original public meaning, but then in particular cases using concrete intentions and expectations.

 

So one reason why you might not want to call yourself originalist is that, although you may have in mind the legitimate original public meaning version that’s equivalent to living constitutionalism, when you make arguments that justify originalism, you will thereby license politicians and judges and justices in their unguarded moments to use this discredited form of originalism. And of course, we don’t want people to be acting dishonestly in that way.

 

Okay. I’ve got lots more to say, but hopefully someone will ask me during the Q&A, “What else were you going to say, Professor Dorf?”

 

[Laughter and applause]

 

Hon. Thomas Hardiman:  Well, that was terrific. Why don’t we start by giving the panelists an opportunity to respond, if they wish, to anything said by their co-panelists? Judge Barrett, do you want to begin?

 

Hon. Amy Coney Barrett:  Sure, I will. I actually think that Professor Prakash and I — I just wanted to clarify my position — don’t disagree about whether originalism is a theory of interpretation or normative theory of justification. My position is that, if you accept the proposition that the Constitution is law, which for reasons of popular sovereignty -- and then, I think actually I’m persuaded by the Will Bode and Steve Sachs argument that we treat the Constitution as law as a positive matter.

 

And I think Professor Prakash’s example in the impeachment proceedings of members of Congress invoking it shows part of -- our public officials and our courts do treat the Constitution as law. Then, I think once we accept that its law, originalism, because, as Professor Prakash said, “That is the natural way to interpret words.” We’ve committed it to words. If we accept it as law, then I think that originalism is the way to interpret it.

 

Prof. Saikrishna B. Prakash:  Oh, you want me to follow up? I also agree with Judge Barrett. And we had a phone call before our talk today. And she said something -- I don’t know if it made it into your comments, but originalism is not about rules versus standard. It’s not about judicial restraint. It’s not about being against rights. It’s not about any of those things. It’s a method of interpretation.

 

I think Professor Dorf is right that some people may have glommed on to originalism originally for those sorts of purposes, but there’s no way that you can know ex-ante whether the Constitution systematically favors rules versus standards or systematically favors judicial restraint. So I agree with the comments that Judge Barrett made in our private conversation.

 

[Laughter]

 

Hon. Thomas Hardiman:  Which is not very private. Professor Pildes?

 

Prof. Richard H. Pildes:  Well, I was surprised by Sai Prakash’s comments because I’m trying to understand what’s at stake if the only question is is originalism an appropriate method of interpretation, but there’s nothing normative that follows if you agree with that. The reason we have these debates, of course, is because we’re talking about how the Constitution should be applied to some of the most charged issues in American democracy. And I suppose one might well agree as a matter of meaning.

 

But if you agree also that we’re free to decide what the appropriate normative theory of constitutional application is that follows and that there’s nothing about originalism that dictates anything about that question, then I’m a little surprised about sort of the question of what is we’re exactly debating here. So if you could say more about that, I would appreciate it.

 

Prof. Saikrishna B. Prakash:  Sure. I think I get nervous when I tell people that they have to believe something, and they have to do something, and I --

 

Prof. Richard H. Pildes:  -- You should be a computer scientist or something then.

 

[Laughter]

 

Prof. Saikrishna B. Prakash:  And I get nervous when people tell me that I have to accept the Warren Court’s jurisprudence or Justice Kennedy’s jurisprudence or anyone’s jurisprudence as a matter of law. So you’re right that my claim is narrow. I think it’s helpfully narrow. I think if you’re going to tell people that they have to believe that the country can’t do X or must do Y, you’ve got to have a normative theory. I think you’re right that some people have a normative theory, and you can judge it.

 

People who are originalists have given us reasons they believe should compel us to follow the original meaning. I don’t have such a theory because I’m wary of telling you what you should or shouldn’t do. I’m not in the business of telling you what you should or shouldn’t do. So for that reason my claim is more narrow. I agree.

 

Prof. Michael C. Dorf:  So I just want to make two points. One is sort of further to my remarks but using the example of impeachment. So I think that Professor Prakash is exactly right about who will be making what arguments, and that these arguments will be roughly the inverse of the positions that the parties took with respect to the Clinton impeachment, and that the votes will largely reflect the political priors of the members of the House and the Senate, and that what this shows is that arguments about original understanding are not determinative, or at least not used in a way that is determinative.

 

Yes, there’s sort of the rhetorical envelope into which people can fit their normative priors, but that doesn’t mean that they’re actually doing the work. We should distinguish between what people say and their actual motivations. And now you might say, well, that’s understandable. Those are politicians, but the same thing is true of Supreme Court Justices. So if you look at the sort of -- I was a scientist before I was a lawyer. I still do some science work. So I like to look at empirical evidence. And the overwhelming empirical evidence we have is that the single greatest determinate of how Justices vote are their ideological priors, and that this is true whether they call themselves originalists, living constitutionalist, whether they follow Ely, whether they follow somebody else. And that suggests that originalism is a kind of rhetorical move. It’s not a method for deciding cases.

 

Now, the way that I think the best originalist scholars deal with this is they use a distinction that I trace — I think it’s Keith Whittington’s in the first instance, but there are lots of people who have this — between interpretation, which is what Professor Prakash was talking about — that’s just what the thing means — and what they call construction. And construction is supposedly much more wide open.

 

 Professor Barnett and a guy named Evan Bernick have a paper that suggests that even in the construction zone, one ought to be more constrained than just sort of things being wide open. And I think that’s an admirable normative view. I don’t think one sees evidence of it in the actual practices of judges and justices. So I end up again thinking that originalism is not actually doing any real work in the world.

 

Hon. Thomas Hardiman:  Let me jump in and defend the judges. If our priors are so important, then how do you account for the remarkable number of unanimous opinions on the Supreme Court and even more remarkable number of 3-0 panel opinions on the courts of appeals among judges whose priors are remarkably different?

 

Prof. Michael C. Dorf:  So in many of those cases, the ideological stakes are low or very difficult to identify. I think that there is -- I like you people. We’re in many ways the same. We went to the same schools. We send our kids to the same schools. We’re not that different. You’re part of the same social world. There’s not that much difference between libertarians and civil libertarians. I think a lot of the consensus is rooted in actually ideological agreement. It’s only when you have ideological disagreement that I think priors become important.

 

And of course, I’m not a nihilist. I do think law has some constraining force. So the question is what’s going to happen where ideology becomes very, very highly salient. And then I just think that there’s no evidence that originalism or any other methodology is doing real work.

 

Prof. Saikrishna B. Prakash:  Just to respond to Professor Dorf’s comment about what’s going on with respect to impeachment, I think he’s absolutely right, descriptively. People are going to flip 180 degrees this time around. But it seems to me that’s hypocrisy. What’s that old statement that hypocrisy is the tribute that vice pays to virtue? And the virtue is they understand that to make sense of the Constitution, you should understand what the people writing the Constitution and ratifying it, the ratifiers, what they took it to mean, what it would have meant at the time.

 

So they’re making the right sort of argument. They’re just humans. They do what everyone else does. They try to use arguments in their favor. The fact that none of us are able to perfectly queue to any particular theory doesn’t mean that the theory’s wrong. You might say you shouldn’t lie, or you shouldn’t steal, but some people might find themselves in a situation where they have to steal because they’re starving. And I don’t know if that means that the theory is wrong. It just means that people can’t be expected to be perfect, certainly not the people in the halls of Congress, with all due respect to the people in the halls of Congress.

 

Hon. Thomas Hardiman:  Professor Pildes, if I took it down right — he’ll correct me if I didn’t — indicated that some large domains of our constitutional law are neither originalist or, in some cases, are anti-originalist. Do any of the panelists, particularly perhaps Judge Barrett or Professor Prakash, but also Professor  Dorf, would you like to agree or disagree or modify that claim?

 

Prof. Saikrishna B. Prakash:  I think he’s absolutely right, and he gave us various options. My view is that much of the jurisprudence about democracy is not grounded in the Constitution. I don’t think equi-populist districts as required by the Republican Guarantee Clause, unlike Professor McConnell -- we think about the Senate, and it’s certainly gerrymandered in a sense. I’m wondering what’s to prevent a litigant, say Eric Holder, going to court and saying the equal protection component of the Due Process Clause of the Fifth Amendment renders the Senate unconstitutional.

 

Now, I heard someone laugh. But that could be made. And if it’s accepted by the Court 20 years from now, enough people might think it’s not a bad idea. But my point is that’s just not -- to me, that’s not a rational reading or an originalist reading, let me put it that way, of the Constitution. And it’s just an artifact I think, in part, that it hasn’t been made and it hasn’t been accepted. But it could equally made of the Senate, just like it was made of the state legislatures.

 

Prof. Michael C. Dorf:  Yeah. I would just add that what Professor Pildes says is true of the law of democracy. It’s also true of most of the law of the First Amendment. There is pretty good evidence that the First Amendment, as originally understood with respect to freedom of speech, implied the Zenger principles in defamation cases, probably forbade prior restraints. Maybe there’s a good argument that the Sedition Act was unconstitutional under the First Amendment, much of modern First Amendment law, going much further than that, including all of the campaign finance law.

 

      I’m not going to say its necessarily anti-originalist, but you can’t derive it from the original understanding. The best you can do is to say that if we understand freedom of speech at a suitably high level of generality, then the modern doctrine is consistent with it. So this is the second move that Professor Pildes described. And I think that’s just true of lots of our modern constitutional law, which raises a question for me for the defenders of originalism. Do you envision it as a sort of theory of reform, what the courts and others ought to be doing, or as a currently descriptively accurate theory? So this is for Judge Barrett and Professor Prakash.

 

Hon. Amy Coney Barrett:  Well, I won’t give a complete answer to your question, but the examples that you gave of the First Amendment are about expected applications. You’re saying that, at the time, these things would have been -- and as you pointed out in your remarks, originalists don’t consider the expected applications to be binding. I think rules and standards are that the Constitution lays down some rules, lays down some standards. So yes, I think maybe the answer to some of that is that it’s not inconsistent with the original understanding. I haven’t done the work in those particular areas.

 

But I don’t think it makes originalism meaningless to say that, for some things, like free speech, the content may be at a high enough level of generality that we’re going to disagree. Originalism doesn’t proport to give an answer to every question, nor does it hold itself out as being easier determine. I mean, Justices Scalia and Thomas disagreed. So I guess I’m there with you. I will accept that, yes, originalism doesn’t answer every question, that sometimes it is at a high level of generality, but so is the Constitutional text.

 

Prof. Saikrishna B. Prakash:  I guess I would add, I think, Professor Dorf, you mentioned the role that the precedent plays. And I think Justice Scalia understood precedent as sort of an extra non-constitutionally grounded factor that he would use to decide cases. And that certainly suggests there’s something more than originalism going on. And the question is, well, why can’t there be still more beyond those two things?

 

There are scholars who claim that part of the judicial power included some requirement to consider precedent. John McGinnis and Michael Rappaport and I think my colleague Caleb Nelson have written along these lines. So there’s a dispute amongst originalists about what role precedents should play in adjudication. You’re quite right that, if you have the view, as some originalists do, that judges should not consider precedent, then judges who consider it aren’t being strict originalists.

 

Prof. Richard H. Pildes:  Can I just say also one thing to clarify the point that I’m trying to make? I am not defending living constitutionalism, per se. I’m not saying anything about the rights provisions and how they should be interpreted or whether there should be unenumerated rights as a general matter. I’m trying to resist framing the choice as a choice between originalism or non-originalism kind of writ large and to argue that, at least in some domains, we are non-originalists. We have good reasons for being non-originalists. Most of the Court accepts non-originalism in those domains. But that’s not a broad argument for living constitutionalism and a rejection of originalism across the board. I want to carve this down to a more specific kind of focus.

 

Hon. Thomas Hardiman: Does that mean you’d agree that originalism should be, as I think Professor Prakash wrote, the default rule? But when it does violence to the law of democracy, then the judge should move in a different direction?

 

Prof. Richard H. Pildes:  Well, I’m very persuaded by a lot of what Professor Dorf says about the difficulty of pinning down exactly what is meant by originalism, both among academics and among judges and, to the extent there’s a conflict between the two, what choice I would make. I certainly agree that all judges should take into account the text of the Constitution. Where the text is determinate, it applies.

 

      No one has litigated the constitutionality of the Senate, even though, by the way, I should point out that when the Senate was first formed, the disparity in population between the largest and smallest state was 13 to one, if you count the slaves in Virginia who aren’t voting. So if you actually count people who are eligible to vote, the disparity was about six to one between the largest and smallest state. Now it’s something like 70 to one, California to Wyoming.

 

      So the institution has changed quite dramatically in terms of the representational basis for it. But even so, no one thinks to bring that case. No one thinks they would win such a case. Similarly with the Electoral College, I find it hard to believe we would adopt that today on a clean slate. I don’t know exactly what we would adopt instead. But no one’s arguing it’s unconstitutional. It’s just not a credible argument and we understand why.

 

Prof. Michael C. Dorf:  Let me just say a word about that. Professor Balkin has a useful metaphor for thinking of this. He talks about arguments that are off the wall versus arguments that are, and here a coined a phrase, “on the wall.” So the idea is the argument that the Senate is unconstitutional is off the wall. But of course, what makes an argument off the wall is not simply the semantic content of the constitutional text. A lot of it is social understanding. So it’s not off the wall. Indeed, it is now the wall that paper money is legal tender. That was a sort of off the wall argument back in the 19th century. It was sort of a felt necessity of the times, economic pressures, all sorts of things that pushed an argument from being off the wall to on the wall.

 

      Now, I think that -- again, I’m not a nihilist. I think that there are some words that are so determinant in our understanding of them that there will be positions that are sort of permanently off the wall. But a lot of what we now think of as off the wall -- it’s not off the wall because it’s so much more of a textual stretch than a lot of the doctrines we have. And that includes doctrines that conservatives like, as well as doctrines that liberals like.

 

Prof. Saikrishna B. Prakash: My aim is not to get the Senate declared unconstitutional. I completely agree with Professor Dorf that, right now, that argument’s off the wall. But if 30 percent of the country comes to believe it, in part for instrumental reasons, it’s no longer off the wall. And let me give you another off the wall argument that’s not off the wall anymore, which is that the death penalty is unconstitutional even though the Constitution talks about take life, liberty, or property. It seems inconceivable where we sit now, but a lot of things were inconceivable 20 years ago that have come to pass.

 

So there really isn’t any -- I know that Rich’s denying that he favors living constitutionalism. That’s fine. I want to say that I favor, as a policy matter, one person, one vote. I’m not saying that I’m against it. But I’m against the idea that the Constitution has to solve all of our problems and that whatever we really feel strongly about we have to find within the Constitution. The Constitution was not a perfect document when it was made. We know that because it basically fostered slavery by giving the South more representation in the House by allowing the South to have a disproportionate role in the selection of presidents. There was the Virginia series of presidents because of the three-fifths clause.

 

The Constitution is not perfect today. So it’s quite true that if you’re an originalist you have to question or perhaps jettison several Supreme Court precedents. But they’re doing that anyway. One final comment -- they’ve been doing that for hundreds of years. One final comment I think for Professor Dorf about originalism, there’s the word originalism and there’s the concept. So maybe the word was coined in the ‘60s or ‘70s. I don’t really know. That would be an interesting study. But I think early constitutional jurisprudence was originalist in the sense that they did not believe that the meaning of words should change over time or the meanings of provisions should change over time.

 

I believe my colleague Ted White has said this about the period before the progressive era. And I think that’s an accurate assessment of what was going on. There were differences of opinion about what the Constitution meant. There were serious differences of opinion, but they were still bounded by this notion that the meaning of the Constitution is fixed. They were just trying to take advantage of whatever ambiguities they saw in it.

 

Prof. Michael C. Dorf:  So I think I agree largely with that, although I would point out that the original meaning is not playing a determinative role in those cases. It is generally thought that the Marshall Court engaged in what Charles Black later calls structural interpretation. A lot of his decisions are controversial. What’s he doing? He’s got a nationalist and, to some sense, court empowering agenda. And he does that -- he’s able to do that by saying that he’s just applying the fixed meaning of the Constitution because the fixed meaning of the Constitution turns out to be very underdeterminate on the questions that are most highly contested.

 

Prof. Richard H. Pildes:  So again, I want to resist having these debates cast as the Constitution means anything you like because, at least with respect to the argument I’m trying to make, there’s a much more specific set of issues on the table, which is how can the outcomes of a democratic process be accepted as legitimate, why should courts defer to them, if the democratic process itself is manipulated in such a way by those who have power to do so so that they are not subject to the kind of political competition that is essential to legitimating self-government?

 

And when that is done, it is often extremely difficult for the rest of us to restructure that process from the inside precisely because those are the people who have the power that you have to go through to end things, like massively malapportioned legislative districts, or to be able to get on a ballot to run for office without having to surmount hurdles that are utterly unrealistic and that are put there precisely to insulate the people in power from having meaningful competition. So I’m not saying the Constitution should mean whatever people want it to mean. I’m saying this is at the core of constitutional self-government. It’s a very specific argument for why non-originalism in this area is justified and that’s why we have it.

 

As I say, Justice Scalia distilled this notion down in a very powerful way, as he often did, with that line about the instinct of power being the retention of power. So I think at least for me, that’s what I’m trying to push the focus on. I want non-originalists to think about this domain and to ask themselves hard questions about how originalism does or doesn’t apply in this domain and whether they want to go with Judge Bork and abandon all of this law or find some other accommodation to it and in what form.

 

Hon. Amy Coney Barrett:  And I’ll add one thing. I think that part of the thrust of Professor Dorf’s objection is that originalism can’t yield determinate answers. And as I said before, I don’t think that’s kind of what’s on offer. But that’s true of all constitutional theories. There’s always going to be disagreement about what the Constitution requires, no matter what interpretive standpoint you are approaching the document from. So I don’t think that’s a fatal flaw in originalism. I think that’s just the reality on the ground, that constitutional law, especially in the set of cases that make it to the Supreme Court, involves indeterminacy and some disagreement.

 

Prof. Michael C. Dorf:  So just one word on that. I agree with that, that all the theories on offer are vastly underdeterminative. I do think that, at least in public debate, originalism is often sold as much more determinate than it is as part of a kind of rule of law agenda. So one reason why I don’t want to use the word originalism, although I don’t so much object to the concept, is precisely to avoid this kind of confusion in public debate about how much work is being done by the theory of meaning versus the construction and so forth.

 

      Can I give you a possible answer to your question? So this is not along the dimension of originalism versus non-originalism. So the best answer I’ve heard in response to your question is by your colleague Jeremy Waldron who says that the problem with Ely-style representation reinforcing judicial review is that it too doesn’t have a natural stopping point because there are lots of controversial theories about democracy. And if you look at England, they got rid of the rotten boroughs through legislative action. So it’s not impossible to use majoritarian processes to cure the majoritarian defects. Now, maybe the answer is yeah, but if it goes too far, then it’s too late because you’ve got the Brownshirts in the streets. But that is an answer that’s out there.

 

Prof. Richard H. Pildes:  Yes. And it’s certainly true, as Judge Barrett said. And I would agree with her on this, that most theories on offer of constitutional interpretation have, as my colleague from Israel, Joseph Weiler, likes to say, every border has its guerrillas. Every theory has its boundary problems. And that’s certainly true of representation reinforcing approaches to judicial review. And of course, it could be a danger, too, because it can lead courts to do things that they ought not to do in the name of preserving the democratic process under the Constitution.

 

But, as with all of these theories, we’re faced with a choice. Do we abandon this central role for the Court and say maybe, although it’s been 70 years, as it was in the United States, that we’d have massive malapportionment of legislative districts? Eventually, that problem will be taken care of. I think the Supreme Court actually thought that in the 1940s when it stayed out of these issues in the Colegrove v. Green case, in part because England at that time was adopting independent boundary commission to draw its districts. And then after another 20 years, as these disparities became greater and greater, I think even Justices who had not been inclined for the Court to get involved finally decided they had to get involved.

 

So yes, the barriers to change can be extremely high within the existing structure when it’s been manipulated to protect incumbent powers. Might you eventually be able to change it with enough public pressure in some context? Yes, if  most of politics gets devoted to that. But I don’t think that that justifies those structures. I don’t think it’s an argument for courts staying out of this altogether. I think that we are better off for the body of law, even though I disagree with some of it. And by the way, we don’t have to have gone all the way to one person, one vote to have decided that massive malapportionment was unconstitutional.

 

The question is not adopting some ideal theory of democracy. It’s saying that certain manipulations of democracy that can only be justified by nothing more than naked political self-interest become unconstitutional. That leaves lots of room for different theories and different approaches to democracy. It’s not, of course, imposing one vision. It’s saying that certain manipulations are off limits.

 

Hon. Thomas Hardiman:  But how do judges know what those manipulations are? Is it they should know it when they see it?

 

Prof. Richard H. Pildes:  Well, so the courts have decided, for example, that ballot access laws in presidential elections that require a non-major party candidate, like John Anderson back in the 1980 election, to get enough signatures to get on the ballot one year before the election, before you even know who the major party candidates are, that those are unconstitutional under the First Amendment because they impose an unjustifiable burden on non-party candidates. I assume, by the way, this same doctrine is going to be the basis for the Court striking down California’s effort to require presidential candidates to disclose their tax returns in order to be listed on the ballot.

 

It’s going to be this same body of law that says ballot access rules can become unconstitutional when they impose inappropriate burdens, undue burdens, particularly in presidential election contests. And the Court has been very explicit in saying there’s no litmus test for making these judgements. It’s a balancing of burdens and justifications, as in many areas of the law. But there is -- over time, we accrue precedence, we accrue decisions, and it’s like any common law or related areas of constitutional law. It’s difficult, but it’s what courts do.

 

Hon. Thomas Hardiman:  All right. Let me throw a question from left field. We’ve been talking about methods of interpretation, and obviously textualism is a critical part of the originalism discussion. What do our panelists think, if they have thought about it at all, about addressing Professor Prakash’s stay off the grass hypothetical by having recourse to corpus linguistics to figure out whether grandpa was talking about marijuana or the lawn?

 

Hon. Amy Coney Barrett:  Well, even corpus linguistics isn’t going to answer -- language, as Professor Prakash was pointing out, it’s a social construct and it depends on context. And modern textualism and modern originalism accept that. So I imagine that if you plug in “stay off the grass” into a corpus linguistics database, you may well generate answers that are both “stay off the green stuff on the lawn” as well as “stay off of pot.”

 

But we know which one it is because of the grandfather being a drug addict in the 1970s. It was the context of that situation that answered the question. So I don’t think that interpretation, whether we’re talking about statutes or the Constitution, is a kind of mechanistic exercise where you can look in dictionaries or even a corpus linguistics database to generate every answer.

 

Prof. Michael C. Dorf:  So I think that if you’re going to be an originalist or an original textualist than it can be helpful, especially for finding sort of idiomatic usages or terms of art. I do think that one can run away with it and that often, the game isn’t worth the candle because you go so far deep into the weeds that you loose sight of the fact that, well, actually, this is sort of underdeterminate. But one thing that I think you find if you do this work is that the line between subjective intentions/expectations on one side and meaning on the other gets a little blurred because you will find -- you do it ostensibly to get original public meaning because you’re look at all sorts of contexts that aren’t necessarily legal context, just with the way people wrote in other ways.

 

But language is a social act, and so it’s often hard to separate meaning from intentions. This is a point Stanley Fish has made in his intentionalist phase that the line that I highlighted, that people have drawn between meaning as an objective fact about language and subjective intentions and expectations, is not necessarily coherent in light of our best theories on language.

 

Hon. Thomas Hardiman:  We’re going to have final comments from our panelists, but I’m going to invite the audience to line up at our two microphones. I do want to give folks a chance for questions. Go ahead, Professor Pildes.

 

Prof. Richard H. Pildes:  I was just going to say that one of the things that we have to be careful of with textualism or corpus linguistics — and I do agree it has value — is that, precisely because language is social, it’s used in a particular context. So you have to know when you see certain words what were they being used against. And what I mean concretely -- let me give you this example from the Constitution. The Constitution, in the Elections Clause, gives the power to the legislatures of the states to do various things, regulate national elections.

 

Now, when they use the word legislature, they were thinking about “Should we give this power to the Executive? Should we give this power to the courts?” Legislature was a choice made against the context of those options. If we ask today, “Well, should this permit independent districting commissions to be adopted by voters to do districting?”, a controversy the Supreme Court faced in the Arizona Independent Redistricting where the Court upheld this in a 5-4 vote, you can look at corpus linguistics all you want, but nobody at the time even conceived of the notion of popular law making to do anything. It just wasn’t on the table. It would sound like the word legislature was chosen to reject popular law making.

 

And of course, governors do participate in state election legislation. They have a veto power. State courts interpret this legislation. That doesn’t interfere with the legislative power. So the debate has been should legislature be understood to refer to the law making power in the state as the state constitutes it, which in some places includes popular law making, or should we just look at the word legislature and see how it was used in 1789 when it was being used in a context which wasn’t engaging this question at all. And that’s an issue that has to be thought about, I think, with textualism.

 

Hon. Thomas Hardiman:  Any final comments before we go to questions? No? Okay. Recognizing that the last shall be first, I’m going to start with the -- I wish I could see. I think there’s a lady at the microphone there. Okay. Please, your question. And please, keep your questions as short as you can, and let’s do sort of a lightning round here so everyone gets a chance to ask their question. Ma’am?

 

Questioner 1:  So I first wanted to say thank you for coming to speak to current law students like myself. It’s very helpful in class discussions and everything. But I also wanted to ask about your opinions on the effects of the kind of pro-socialism movement on the sustainability of this originalism ideology in the next coming years.

 

Prof. Richard H. Pildes:  I think Michael’s closest to being appropriate for that question.

 

Hon. Amy Coney Barrett:  It sounds like a law of democracy kind of question to me.

 

Questioner 1:  It’s a hard question.

 

Prof. Richard H. Pildes:  So there are all sorts of -- not just in America, but in other countries modern major established democracies, we are facing all sorts of forms of politics, populist politics of various sorts, right, left versions that we haven’t experienced through most of our history, not just here but -- or at least in post-World War II history in Europe. I have no idea how any of these forces will play out, which of these forces will prevail, how they’ll get moderated if they ever gain power.

 

The American system of separated powers and staggered elections for the House, the Senate, the presidency, makes it very difficult for ideological forces to capture all of government unless there’s really sustained support over substantial period of time. So yes, you could imagine all sorts of forces coming to power and putting pressure on various constitutional understandings. But I think we have a pretty robust and resilient system, and so I’ll leave it at that.

 

Prof. Michael C. Dorf:  I’ll take a crack at it. So I’m not a socialist of any kind, but first I’d say that the people in the U.S. now who have gained some traction are -- they call themselves democratic socialists. So that’s supposed to be more like Sweden in the 1970s than the Soviet Union at the same time. And then the question is is that consistent with the Constitution? So in many respects, yes. In Holmes’s phrase, the Constitution does not enact Herbert Spencer’s social statics, so it could -- there’s plenty of room to do legislatively things that are quite redistributionist.

 

      There are limits. There is the Takings Clause. There are various other protections for private property. I think it’s notable that the sort of emergence of people calling themselves democratic socialists -- they have not generally said that the Constitution requires that, which I think we would regard as off the wall. But it was almost on the wall in the early ‘70s. Frank Michelman wrote a Harvard Law Review forward basically talking about ways in which the Constitution might require redistribution. Now, that position now seems like a period piece, but there was a possibility of it becoming on the wall. So I think the answer is we don’t really know.

 

Chris Green:  Chris Green from Ole Miss. Two questions, chiefly for Professors Pildes and Dorf. Do we have the oldest currently operational constitution in the world? And what is the object of the Article VI oath?

 

Prof. Richard H. Pildes:  Well, we’re the longest continuous constitutional democracy with a written constitution. So the U.K., as Judge Barrett said, of course has operated under what they call an unwritten constitution or a set of constitutional-like conventions. But in terms of continuous operation under a written constitution, we are.

 

      What was the question about Article VI?

 

Chris Green:  What is the object of the Article VI oath? When we swear to support this Constitution, are we swearing to support the same thing that George Washington did, given that Reynolds seems inconsistent with it?

 

Prof. Richard H. Pildes:  Well, yes. We still have arguments about how to interpret and apply that Constitution, but of course we’re supporting the same Constitution.

 

Prof. Michael C. Dorf:  Yeah. I’m not so sure.

 

[Laughter]

 

      So part of the answer is it depends on what you think happened during Reconstruction. The amendment process via the Thirteenth and Fourteenth Amendments was sort of mutually inconsistent with each other, arguably not consistent with certain parts of the original understanding. This is Bruce Ackerman’s theory that we actually had a revolution at the end of the Civil War. There is also some very good work by Tom Ginsburg and others on comparative constitutionalism saying that the longevity of a constitution -- most constitutions last very short period. The U.S. Constitution is an outlier in that it has lasted for a very long time. And their account is that’s because of flexible interpretation by the Court so that it really has changed substantially.

 

      Now, my own view is that I don’t buy Ackerman’s view. My own view is that it’s the same, but in the same way that you are the same person you were when you were an infant, even though all the atoms in your body are different. The Constitution is like the ship of Theseus. So we replace one plank at a time. Do we have the same ship at the end of the day? In some sense yes, in some sense no. That’s a very academic answer. I apologize for that.

 

[Laughter]

 

Hon. Thomas Hardiman:  Before we get into Heraclitus, never step in the same river twice, let’s go to the rear microphone, please.

 

John Vorperian:  John Vorperian, Westchester County, New York. Professor Prakash, I enjoyed the illustration, “Keep off the grass.” May I offer, if ever called upon to operate a power plant, “Remember, you can never put too much water into a nuclear reactor.”

 

      To the panel, I would ask, given the tenor of our political times and the divisiveness, the heightened confrontation between left and right, does the ascendency of originalism give impetus or the green light to political activists to simply seek remedy via constitutional amendment?

 

Prof. Saikrishna B. Prakash:  I’m sorry. Is the question whether we can just change the Constitution to do what we want to do? Is that the question?

 

John Vorperian:  Essentially, in essence, yes, it is. Does it give political activists of both left and right simply go out and seek amendment for their particular paradigms?

 

Prof. Saikrishna B. Prakash:  I’ll say something. I think the answer is obviously yes. I think one of the reasons why we have so much amendment outside of Article V is because Article V is just too difficult to navigate. So it was an improvement over the Articles of Confederation, which required unanimity, but it’s still very hard to amend the Constitution. We would have more amendments if the Court didn’t amend the Constitution for us.

 

So I would say, given how difficult it is to amend the Constitution, it’s understandable in some way that political movements try to channel their amendments through the courts. If you’re going to make it impossible to do something via this route, the water’s going to flow the other direction.

 

Prof. Michael C. Dorf:  So there is speculation that the Virginia legislature is now going to ratify the ERA, which would be enough to get it over the top, assuming you count the deadline that Congress initially imposed and then extended and then expired as non-operative. So I don’t want to take a position on whether that’s valid or not. I do think it’s interesting that, if that happens, then that will mean the last two amendments were both amendments that passed long after they were originally proposed.

 

The ERA would be nothing compared to the Twenty-seventh Amendment, which was finally ratified in 1991, having been proposed in 1789. But I think it says something about the difficulty of amendment that you can only actually get amendments that are controversial in their day long after they’re no longer controversial. And that should lead you to question the utility of the amendment process.

 

Hon. Thomas Hardiman:  Professor Barnett?

 

Prof. Randy Barnett:  Hi, Randy Barnett from Georgetown Law. I want to adjudicate a little bit the disagreement between Professor Prakash and Judge Barrett on what originalism is. I think originalism is a family of theories that surrounds two different propositions. The first is the fixation thesis, which is that the meaning of the text of the Constitution is fixed at the time it’s enacted, whatever that time may be. And the originalists disagree about exactly how and why it’s fixed. That’s where you see differences between public meaning, original methods, original law. That’s a disagreement about exactly how it’s fixed, but they all agree that it is fixed. And that’s an empirical question. If you believe it’s fixed, you think that the fixed meaning is empirically discoverable. That’s what Professor Prakash was calling interpretation, I think, accurately.

 

      But there’s a second part of originalism, which is the constraint principle. And that is that constitutional actors ought to follow or be constrained or be influenced in their decisions by the fixed meaning of the Constitution. And that’s not an empirical proposition. That’s a normative proposition. And there are different reasons why originalists hold the second proposition, popular sovereignty, rule of law, natural rights. There’s different other — consequentialism — theories for the second proposition as well. So there’s some disagreements there. And I think that’s Judge Barrett’s view. So I think that these views are ultimately reconcilable if you see that there are two components of originalism, not just one.

 

      The other brief point I wanted to make in response to Michael Dorf, level of generality move, is that, in my experience, originalists -- there’s a consensus that most of the Constitution is relatively determinate, two senators, two houses of Congress, presentment, a bunch of other stuff. Most of the Constitution is really quite determinative. What the move is is that the stuff we’re interested in, the stuff we debate about, that’s the stuff that happens at a high enough level of generality to be very underdeterminate or indeterminate. I think there’s a lot of underdeterminacy.

 

      But I think the more research one does into the more underdeterminate general provisions, like the Equal Protections of the Laws Clause or the Due Process of the Laws Clause or the Cruel and Unusual Punishment Clause, the more research you do, the more determinate it actually becomes. It’s not as thin a meaning as non-originalists both assume and persist in assuming and insist on assuming in order to give them more room to run. But that’s, of course, the proof of the pudding of that is in the eating.

 

[Applause]

 

Hon. Thomas Hardiman:  Do you want to take the first point at all?

 

Hon. Amy Coney Barrett:  I don’t think I really have anything to add. I don't know. Professor Prakash?

 

Prof. Saikrishna B. Prakash:  I think Randy’s right. Most originalists favor the original Constitution. But if you understand the first part of Randy’s point, it’s possible to be an originalist who doesn’t like the original Constitution as amended. And there’s nothing wrong with that, to say that. Obviously, I like the original Constitution as amended, but I think Randy’s right that there’s an interpretational aspect to originalism. There’s a normative claim. But of course, as Randy well knows, people have different normative arguments for why we should follow the Constitution.

 

Prof. Michael C. Dorf:  So let me say something about what I would call -- characterize your point as the selection bias idea. That is to say, we don’t see the ways in which the Constitution is determinative because there’s a selection bias in contested cases for things that are contestable, and that’s especially true as you go up to the U.S. Supreme Court level because they’re going to take those cases that are most contestable. I fully agree with that. That’s why, as I say, I am not a legal nihilist. I do think that law is often quite determinative.

 

Then, on this further question of what do you find when you look at the original understanding, I sort of agree as a general matter that it is possible that you will discover that the original meaning is determinative on some point as to which you thought it was underdeterminative. However, I don’t see evidence yet of any Justices of the Supreme Court who claim to be originalist or sort of originalists lite actually doing that. That is to say, again, you look at the empirical evidence. It’s ideological priors that are deciding the resolution of concrete cases.

 

Now, when I posted that point on my blog a couple years ago, Professor Barnett’s colleague, Larry Solum said, “Well, that’s because there are no real originalists on the Supreme Court.” And to me, that move reminded me of a move that I used to hear from actual communists in the days when there was communism, which was you would say, “Every attempt to implement communism, whatever one thinks of its ideals in theory, has resulted in totalitarian states that trample on basic human rights.”

 

And then my friends, or the people I was talking to, anyway, --

 

[Laughter]

 

-- would say, “Oh, those people aren’t real communists. They’re not really faithful to the writings of Marx and Engels and so forth. They’ve perverted the true ideals of communism.” It seems to me, at some point, you have to judge a theory or an ideology by how it gets used in practice, whether that theory is communism or originalism.

 

Prof. Saikrishna B. Prakash:  Just a quick response, I do think that judges decide cases against their ideology. I recall Justice Thomas’s dissent in the gay rights case where he said, “I think this is an uncommonly silly law.” He’s quoting another Justice who was saying something similar about another law. So I don’t think it’s the case that judges are just deciding on the basis of their personal preferences about the content of the law.

 

      I don’t think that’s true for the liberal Justices either. I think they’re often deciding cases against their ideological preferences. I agree that their ideological preferences might have some weight in their thinking because, again, they’re human. And you can have a perfect theory, but when you put humanity into it, it’s just not going to be implemented perfectly.

 

Prof. Michael C. Dorf:  So Chris Eisgruber, who’s the president of Princeton, wrote a book back — it must have been close to 20 years ago — on this question. And one of the things that he says, which I actually think is very accurate, is that a lot of the examples of Justices voting against their ideological priors are actually not them voting against their ideological priors, that their ideological priors are complex. For example, people often talked about Justice Scalia voting in favor of criminal defendants in Sixth Amendment Confrontation Clause cases. So the ideological prior is a kind of criminal justice libertarianism.

 

I think you see some of that in Justice Gorsuch, that Justice Gorsuch is proving to be, in many ways, a worthy successor to Justice Scalia on criminal procedure cases. And I like a lot of his opinions. I think he does a really nice job with these. But I don’t think these are necessarily against type simply because we say he’s a conservative. He’s a certain kind of conservative. He’s a libertarian conservative in certain respects. That’s a perfectly respectable position, but it doesn’t mean it’s against ideological priors.

 

But I will agree with Professor Prakash that, of course, I don’t think that every Justice simply thinks in a particular case, “What is my first order normative view about the best policy, and how do I implement that in this case?” The claim is that the ideological priors are doing a lot more work than the jurisprudential skein in which they wrap it.

 

Hon. Thomas Hardiman:  Back microphone.

 

Questioner 5:  Thank you, your honor. This is specifically a question for Mr. Pildes. I completely understand the concerns you’ve expressed that the law of democracy is necessary in order to assure fair competition for power and that there are real problems with the potential entrenchment of those in power to avoid any check on their authority. I can help noticing, though, that that body of law, as you’ve represented it, ceases the check on that of the judiciary, which is, of course, the most entrenched and hardest to check of our branches.

 

That seems a bit of a problem especially in an era where, for several decades, some judges have seemed to be adherents of judicial supremacy. So I ask what exactly would be the check on that entrenched power seeking to prevent any check on itself?

 

Prof. Richard H. Pildes:  So that’s a great question. And something implicit in what I have talked about and certainly implicit in the Court’s development of this doctrine is that, in the United States, we do not have -- have not created, for the most part, institutions that a lot of other democracies have to kind of oversee the political process, if you will, or to take on various functions that right now we have in the hands of sitting legislators. Many modern constitutions actually in the constitutions themselves create certain independent institutions to set the ground rules for the political process.

 

 So we are the only country that uses election districts that allows the people most self-interested in that process to draw the districts for themselves. I think, as most other countries,  as all other countries do, that’s an inherently pathological situation. And you’re going to get what we see. It’s a very interesting question that fascinates me about why in the United States we have been so unable to create various kinds of institutions to take on this role. And we in the United States have this political culture, which I think does go fairly deep in our DNA, that is just much more skeptical about creating these sorts of independent or maybe bipartisan institutions to oversee parts of the electoral process. I would prefer that than having the courts play this role.

 

So I agree with you, I think, in what you’re suggesting. It’s sort of by fault of other institutions to respond to what is obviously a problem that’s endemic to democratic systems. We have used the courts in that way for a long time now, and the courts will continue to be pressed to play that role in the absence of creating other institutions that might more appropriately take on those tasks. But it’s, in the United States, a very difficult matter to get people to accept the institutions that you’re talking about.

 

Questioner 5:  Just to be clear, who would guard us from the guardians?

 

Prof. Richard H. Pildes:  Well, there’s no answer to that question. You can ask that about any sets of institutions that are designed to create checks and balances on other institutions. It goes all the way down. There’s no ultimate guardian to guard us against the guardians that, in a democratic system, will not potentially create similar kinds of risks of the ones that you’re raising. That’s an inescapable problem. We do the best we can in designing institutions in a way that hopefully minimizes that risk and have other institutions that also help check and balance those institutions. But I think that’s the best any system can do.

 

Hon. Thomas Hardiman:  Ilya Shapiro?

 

Ilya Shapiro:  Ilya Shapiro from Cato and it looks like, based on the time, I might be the last question, which is somewhat apt because my question is orthogonal to the panel’s topic, really. If this is about why we should be originalists, well, that’s great. Most of us in this room probably already identify as originalists, and we’re appreciative of the further support or adjustment to our understanding of that. The law students here, I guess, have the most to gain from that kind of perspective. But wouldn’t this panel be even better placed at an ACS convention?

 

Because it seems like, to invoke Jack Balkin or, yesterday, Elizabeth Wydra of the Constitutional Accountability Center, we’ve long been now, for a decade or so, all have been textualists. Now, we’re sort of all becoming originalists. And maybe ten years from now, the battle will be all among competing originalists where the word originalist will no longer mean anything, and it’s back to what’s the best method of constitutional interpretation or what have you. So in the sense, if that comes to pass or to the extent that we’re seeing that trend now, which could be reversed, and certainly could be reversed if the balance of the courts is reversed, then will that mean a victory for originalism or would it mean kind of a, well, we’re back to square one in that originalism means whatever you want it to mean?

 

Or as advanced by the new originalists, there’s now competing progressive originalists, living originalists, as much as there are original meaning -- the sort of thing that we had in Heller, for example, to use practical purposes where we’re all competing on the same battleground, which is healthy in a certain sense.

 

Hon. Thomas Hardiman:  I’m looking at Professor Dorf because I understood you to say that original public meaning has gotten to a level of abstraction as to make it somewhat indistinguishable from living constitutionalism. Is that the limit to your question?

 

Prof. Michael C. Dorf:  I think, Ilya, the point you make is true of most concepts. So think about -- just to choose a more concrete example, think about the debate in the Bakke case between either the liberals and the conservatives, putting Justice Powell aside for the moment. So the question is whether race-based affirmative action should be judged under the same strict scrutiny standard as applies to conventional race discrimination, or should it be judged under intermediate scrutiny? And the strict scrutiny team won that case.

 

And then 20 years later, the people who lost said, “Well, it’s strict scrutiny, but it’s not the same strict scrutiny that you apply in these other cases.” So whenever there’s a kind of victory for one side, the other side doesn’t go away. What they do is they regroup and now they make the same kinds of arguments within the new framework. So I think what you described is inevitable if it is true that we are all originalists now. I think that’s probably true of lots of other areas of the law, too.

 

Hon. Thomas Hardiman:  Okay. Great. I have two tasks remaining as the moderator. The first is to invite you to remain seated. Apparently, a video is going to be -- there’s going to be a brief video. I know not what it is, but one will be shown for your pleasure. But before we do that, please join me in thanking our outstanding panel.

 

[Applause]

 

Nate Kaczmarek:  Thank you, Judge. Good morning. My name is Nate Kaczmarek. It is my privilege to direct The Federalist Society’s Article I initiative and the Regulatory Transparency Project. Today, we wanted to share with you an exciting update from RTP. RTP continues to drive a nationwide conversation about innovation, regulatory policy, and the administrative state. One big part of our recent efforts has been to create a full-length documentary featuring many of our RTP experts.

 

The film is called They Say It Can’t Be Done, and it explores the challenges that scientific innovators first face to help solve societal problems and also the often difficult next step of bringing their solutions through our current regulatory environment into the public. Our student and lawyer chapters have already begun private screenings of the film, and we wanted you to see a quick trailer this morning. Please visit the RTP table in the Palm Court today or tomorrow to learn more about how you can bring this great movie to your chapter. Thank you and we hope you enjoy it.

 

[Movie trailer plays]

 

[Applause]

 

Hon. Thomas Hardiman:  Gene, no? Nothing else? Enjoy the rest of today and tomorrow.

     

 

9:00 a.m. - 4:30 p.m.
Federalist Papers Exhibit

2019 National Lawyers Convention

Rhode Island Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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10:45 a.m. - 11:30 a.m.
Book Signings

2019 National Lawyers Convention

Promenade
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Description

  • The Dubious Morality of the Modern Administrative State by Prof. Richard A. Epstein
  • The Conservative Case for Class Actions by Prof. Brian T. Fitzpatrick
  • A Debt Against the Living: An Introduction to Originalism by Prof. Ilan Wurman

Speakers

11:15 a.m. - 12:00 p.m.
Address by Secretary Eugene Scalia

2019 National Lawyers Convention

Topics: Labor & Employment Law • Constitution
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

Event Video

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Description

On November 15, 2019, the Federalist Society's Labor & Employment Practice Group hosted an address by Secretary of Labor Eugene Scalia at the Mayflower Hotel in Washington, DC. Secretary Scalia discussed his plans as the Secretary of Labor as well as some important constitutional decisions involving labor and employment law.

*******

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Featuring:

  • Hon. Eugene Scalia, Secretary of Labor, United States Department of Labor
  • Introduction: Dean Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society

Speakers

Event Transcript

Dean Reuter:  Thank you all for being here. I’m Dean Reuter, General Counsel, Vice President, Director of Practice Groups of The Federalist Society. Thank you all for being here. Please feel free to squeeze together like you do at mass or church if there are people that are trying to find seats.

 

It’s really my distinct pleasure and honor to welcome our next guest, the Honorable Eugene Scalia, Secretary of The U.S. Department of Labor, which to my mind has a great ring to it, Secretary Eugene Scalia. You can applaud that. Please.

 

[Applause]

 

It’s a great deal of fun to wander the halls here and call old friends Secretary or Judge or whatnot. That, of course, reminds me of a very brief story that I’ll tell which involves a former Federalist Society colleague, David, who could be exceedingly formal. David would never, ever call someone by their first name without an invitation to do so. He always used a person’s formal title. And I watched David interact with one guy in particular, Professor Jim Lindgren of Northwestern, known to many of you here. David would say, “Professor Lindgren, could you be on this panel? I’d suggest we think about doing it this way, Professor Lindgren.” So Professor Lindgren let this go on for years, decades even, until one day Professor Lindgren said, “David, we’ve known each other for years. Please call me Mr. Lindgren.”

 

[Laughter]

 

So turning to Secretary Scalia, he has a sterling resume. He’s graduated with distinction from the University of Virginia, went on to the University of Chicago Law School where he graduated cum laude, and served as editor of the Law Review. He served as a speech writer to William Bennett, Secretary of Education, during the Reagan administration. From ’92-’93 he served as special assistant to Attorney General Barr, from whom we’ll hear more this evening.

 

This, of course, is not his first tour at the Labor Department. He served as Solicitor of Labor, the Department’s principal legal officer in the early 2000’s. In the interim period from all these high-level government positions he earned a national reputation as an expert in labor and employment law and in administrative and regulatory law in private practice at Gibson, Dunn, and Crutcher. He also distinguished himself as the go-to lawyer for challenging questionable agency action. Importantly, during those same interim periods, he’s been a leader of The Federalist Society. We’re very pleased to have him with us today. Please join me in welcoming Labor Secretary Eugene Scalia.

 

[Applause]

 

Secretary Eugene Scalia:  Thank you, Dean. Thank you, all. It’s a great pleasure to be at this conference and to have the chance to talk to you all today. The Federalist Society is a deeply important institution to which my family and I feel a strong personal tie. Many of us had the pleasure last night of coming to the dinner now named in honor of my father, Justice Scalia. He was a professor to Lee Otis and David McIntosh, two Federalist Society founders, and was the first faculty advisor to the Chicago Law School chapter. In his years on the Court, my father enjoyed few things more than speaking to fellow Society law school chapters, teaching his FedSoc separation of powers course over the summer, and, course, coming many times to this conference. He relished the opportunity these events gave to teach, to explain, and above all perhaps, to argue. He drew strength from the friendships and comradery here, which on more than one occasion helped boost his spirits after a disappointing decision or term. Among our fondest memories as a family was the 2011 annual dinner when the Society recognized my father’s 25th anniversary on the Court by inviting my eight brothers and sisters and me to join our parents on stage. My father proudly introduced us and said, “Nine children and not a dullard among ‘em.” My brother, Chris, he complained under his breath to us, “Daddy always forgets about me.”

 

For my part, the first time I ever made public remarks was at a 1986 meeting of the Washington Lawyers Chapter. I was asked to introduce my boss at the time, as Dean mentioned, Education Secretary William Bennett. That’s when I had the good fortune to meet two young Reagan administration lawyers who had helped start the chapter at Yale and would go on to clerk on the Supreme Court and do other interesting things; Steve Calabrese and Peter Keisler. I joined the Society in law school about a year later and have been an active member since.

 

That said, I realize that it’s not my personal connection to this organization that is the reason for my invitation to speak today. It’s because of the position I hold as Secretary of Labor. The subject of this conference is Originalism and the Constitution. I head a 15,000-person cabinet department that has important enforcement responsibilities, that issues what we call legislative rules, and houses several adjudicative agencies. Evidently Gene Meyer thought I should come here and give an accounting.

 

[Laughter]

 

      Or perhaps Leonard Leo and Dean Reuter here, thought I should address one of the important constitutional decisions involving labor employment law. There’s Lochner, an early application of substantive due process striking down a regulation of working hours. That era, the Lochner Era ended with the West Coast Hotel v. Parrish, the so-called “switch in time that saved nine,” involving a minimum wage law. That same year, 1937, the Court upheld the constitutionality of the National Labor Relations Act in Jones v. Laughlin Steel, a decision that set the Court on its modern approach to the Commerce Clause.

 

As for the Labor Department itself, it’s been involved in some noteworthy decisions. Who can forget Garcia v. Antonia Metropolitan Transit where the Supreme Court disclaimed much of its responsibility for policing Congress’s use of the Commerce Clause to regulate states? I know that some in this audience have been heard to complain about yet another decision involving Labor Department, even though it was a unanimous decision written by the great originalist, Antonin Scalia. In this case, Auer v. Robbins, my father presciently recognized the appropriateness of deferring to what I, the Secretary of Labor say in amicus briefs.

 

[Laughter]

 

      Any of these cases would provide rich material for a speech on originalism, but that will have to await some other time. Today, being new to my position, I wanted to talk about some constitutional principles that will guide me as Labor Secretary. I’ll conclude with a foundational constitutional principle that is currently embattled, I think, and which lawyers have a special interest in defending. No one’s better equipped to that than members of this group.

 

      Article II of the Constitution directs the President of the United States to take care that the laws be faithfully executed. The Supreme Court has said that the Take Care Clause embodies the President’s most important constitutional duty. It’s a duty that I consider myself to hold as well as a principle officer appointed by the President, with responsibility for administering and enforcing a range of statutes. Put differently, the President takes care that the laws are faithfully executed in part through the officers he appoints to run the cabinet departments. This means to me that as Secretary of Labor I have a constitutional responsibility for the agency’s enforcement activities under the statutes it administers.

 

This included the Fair Labor Standards Act, governing minimum wages and overtime; ERISA, concerning pensions and employer-sponsored health plans; OSHA, and the Mine Safety Health Act; and the worker protections that apply to unions under the Landrum-Griffin Act. The Department, of course, also enforces the non-discrimination requirements applicable to federal contractors. The enforcement actions we bring under these and other statutes are not merely the responsibility of the capable Labor Department officials we have in the field, they’re activities for which I’m accountable as the Secretary and as the official in whose name those cases are brought. And so it’s incumbent on me, and by extension it’s incumbent on the heads of the agencies within the Department, to exercise appropriate oversight over our litigation nationwide.

 

As I review our enforcement activities, one thing I’m interested in as Secretary, is the effectiveness of our investigative programs. We should be selecting companies for inspection and investigation based on the likelihood that there will be a prosecutable violation of the laws we administer. Our inspections and investigations should be targeted to that end. If they are not effectively identifying violations of law, resources should be redeployed to places where significant violations may be more likely found. Inspections and investigations are not ends in themselves, but tools that must be wielded thoughtfully to enforce the laws effectively and efficiently.

 

In taking care that the laws are faithfully executed, I’m also interested in consistency. As I’ll discuss in a moment, we should strive to make the law’s requirements clear. The Labor Department administers statutes of national application. The regulated public should subject to a consistent nationwide interpretation of those laws. The interpretation shouldn’t vary based on the parties involved or the jurisdiction where the case arises. Consistency in enforcement furthers compliance and respect for the rule of law, and it will be one of my goals as Secretary.

 

      Of course, taking care that the laws are faithfully executed includes vigorous enforcement where warranted. I did not shrink from that previously when serving as Solicitor, the general counsel at the Department, and we will not hesitate to do so while I’m Secretary. In fiscal year 2019, the Department’s Wage Hour Division recovered more than $320 million in wages owed to workers. That’s a record for Wage Hour. Recently the Department used its so-called hot goods authority, which is a powerful weapon we have, to recover nearly $6 million in back pay for workers and other employees at a company that shut its door without paying its workers. This was a 100 percent back pay recovery for all the affected workers except the CEO and two family members.

 

The Department’s Office of Federal Contract Compliance Programs, which as I mentioned enforces non-discrimination requirements for federal contractors, also obtained record recoveries in 2019; over $40 million. Investigations by the Department’s Office of Labor Management Standards, which enforces union democracy and financial integrity laws led to 60 criminal convictions in fiscal year 2019. For OLMS, which works together with the Justice Department, that’s five convictions a month.

 

      A second constitutional principle that will be important to me as Labor Secretary received early expression in a 1926 case involving employment regulation. Connally v. General Construction involved an Oklahoma statute that required businesses to pay workers “not less than the current rate of per diem wages in the locality where the work is performed”. The statute provided for financial penalties and imprisonment of three to six months for each violation. The Supreme Court found this criminal prohibition void for vagueness saying, “The dividing line between what is lawful and unlawful cannot be left to conjecture.” This is generally known today as the principle of fair notice and has been extended to actions of administrative agencies. For example, as many of you know, in the 2012 FCC v. Fox case Justice Kennedy wrote that, “Regulated parties should know what is required of them so they may act accordingly. Precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.”

 

My department has not been immune from criticism in this area. In another 2012 case, Christopher v. SmithKline, the Court refused to give deference to a Labor Department interpretation of its own regulation that had been articulated in amicus briefs and not in rulemaking, and which had changed over time. Justice Alito, quoting an opinion by my father, said that, “Deference to the agency’s interpretation in this circumstance would seriously undermine the principle that agencies should provide regulated parties fair warning of the conduct a regulation prohibits or requires.”

 

In my view, a lot of the criticism we’ve heard in recent years of Chevron and Auer and other deference doctrines has in part to do with the concern of some that those doctrines as sometimes applied fail to give fair notice. Fair notice and consistent, effective, and efficient execution of law will be important to me as Secretary, and they are important to President Trump.

 

Last month, the President issued two executive orders to implement principles of fair notice and to promote the efficient and effective implementation of the law. The first order requires agencies to post all guidance documents online in a searchable format, so they can be easily found and read by the public. Guidance documents not included on that website are considered rescinded. Significant new guidance documents go through OMB review and public notice and comment.

 

The second executive order instructs agencies to recognize that guidance documents are non-binding and cannot create an independent basis for enforcement action. Pre-existing statutes and duly authorized regulations must provide the rule of decision in enforcement actions. This doesn’t mean that guidance is wrong or bad, by the way in my view. On the contrary, if they serve to highlight legal requirements that reside elsewhere in a statute or in a regulation guidance documents help provide fair notice.

 

  When I was a practicing lawyer, my clients wanted guidance. What they didn’t want, what they rightly objected to, were government edicts labeled as guidance that threatened or coerced them to comply with new legal norms without the protections of notice-and-comment rulemaking. At the Labor Department we will continue the compliance assistance programs that are an essential part of how we inform the regulated public of their obligations.

 

President Trump’s attention to the proper use of guidance is part of a broader commitment he has demonstrated to eliminating unnecessary regulatory requirements that stifle American innovation and productivity and which burden the economy. A government of limited powers was, of course, central to the Framers’ original design for our constitution. In a debate in the House in 1789, for example, James Madison deplored what he called commercial shackles. It  is a truth he said that, “If industry and labor are left to take their own course, they will generally be directed to those objects which are the most productive, and this in a more certain and direct manner than the wisdom of the most enlightened legislature could point to.”

 

In this spirit, President Trump early in the administration ordered federal agencies to take two regulations off the books for every one added. To date the administration has cut at least eight regulations for every one that’s been added. The Council of Economic Advisors estimates that these changes have saved the American economy about $50 billion and will achieve cost savings of $220 billion once fully implemented. At the Department we have taken a number of important deregulatory steps and we have more in the works. The President’s deregulatory efforts together with other steps, like his 2017 tax cuts, are having their intended effect. Right now the American people are benefitting from an extraordinary economy.

 

Part of my job as labor secretary is to gather and report employment related data through the Department’s Bureau of Labor Statistics. That data shows a job market that few of us have seen in our lifetimes. The national unemployment rate is 3.6 percent which is close to the lowest rate in more than 50 years. More than 6.3 million new U.S. jobs have been created since January 2017. Wages are rising. They’ve been rising at or above 3 percent for 15 months. They’re rising faster than prices, and weekly earnings are rising faster for the lowest paid full-time workers than for the highest paid. The job report we issued in October showed the lowest unemployment rate ever recorded for African Americans. We’ve also seen the lowest unemployment rates ever recorded, or some of the lowest ever recorded, for Hispanic Americans, Asian Americans, Americans with disabilities, adult women, and Americans who do not have a high school diploma.

 

I recite all this data to you, not just because the major media often downplay or ignore it. I recite it also because it confirms a truth that Ronald Reagan believed to his core, and that drives our current President, too. The simple best thing for working Americans, including women, minorities, and Americans with disabilities, is a vibrant, growing economy in which businesses compete to attract and retain workers. The current economy helps workers in other, less obvious ways, too. When I speak to businesspeople, the concern they now cite most frequently is the tight job market; the challenge they face finding workers. That’s a real problem that we need to address to keep the economy growing, and it’s one of my principle concerns as Labor Secretary, but the tight job market is helping workers. Businesses, in addition to raising wages, are investing more in training so they can bring more workers into their company. This is part of the reason that apprenticeships are a high priority for American business, The Labor Department, and the White House.

 

In this tight job market employers are also taking a closer look at job applicants that at other times they might pass over. As I mentioned, the unemployment rate for Americans with disabilities right now is the lowest ever recorded. Employers are more open to hiring Americans reentering the workforce from the criminal justice system. And in part, so they can retain and find new workers, businesses are helping tackle a crisis that’s afflicting our country. That’s opioid abuse which claims tens of thousands of lives every year and which has terrible radiating impacts on countless American families and communities. Responding to this crisis is a priority to President Trump and The Labor Department, and American businesses want to help. They want to help in part because they recognize it’s another means to bring more workers into their workplace.

 

I want to mention a final twist we’re observing, which is a robust economy in which companies are searching for workers can help sweep away still other unnecessary regulatory barriers. Right now we’re seeing a nationwide movement to reform requirements for occupational licenses in the states. In part this involves increased state reciprocity. Earlier this year Governor Ducey of Arizona signed a bill that allows the state’s licensing boards to accept out-of-state occupational licenses for new residents. If you’re good enough to be a realtor in California, Arizona trusts you to do it there, too. Governor Ducey, I’m pleased to have you join us here today.

 

[Applause]

 

These state reforms which have been championed by President Trump, have been bipartisan. Colorado Governor Polis recently vetoed bills to reimpose licensing requirements on sports agents and homeowner association managers. He said the objective was to make sure that licenses protect people from harm, not industry insiders from competition. These are valuable deregulatory initiatives and they result partly from prior deregulatory efforts undertaken by this President which have contributed to today’s vibrant job market. For all of these reasons I urge you to remember this particular moment in our economic history and in federal policymaking. Smart deregulation that frees American business gives an incredible boost also to the American worker.

 

Well, I wanted to conclude this morning by talking about another bedrock constitutional principle, one that’s been particularly important to this organization. Last Sunday marked the 100th anniversary of Justice Holmes’s famous articulation of the value of free speech in the Abrams case. He said the First Amendment embodies the view that, “the ultimate good is better reached by the free trade in ideas.” It is “the theory of our Constitution,” he said, “that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

 

Now, I admit to some doubt that fundamental truths are established in the same manner as the value of pork bellies. But Holmes was right that the free exchange of ideas is at the core of the First Amendment and at the heart of our democratic government. And yet, it is disfavored in some quarters today. That’s most apparent at colleges and universities where conservative speakers have been disinvited, banned, assaulted, and when allowed to speak, accused of harming students merely by expressing ideas that run counter to some students’ preconceptions.

 

This intolerance is not isolated to our universities. It’s a broad trend. So much so that two weeks ago it drew criticism from former-President Obama. I believe that this intolerance and the pressure to suppress ideas that may be unwelcome to some, poses a special threat to the practice of law. One of the great traditions of the legal profession is to respect the right to legal representation of those we disagree with, and even to undertake that representation ourselves. John Adams’s defense of the British soldiers charged with the Boston Massacre is one of our most important stories about the practice of law. Adams wrote that his defense of those soldiers was he said, “One of the most gallant, generous, manly, and disinterested actions of my life.” Adams wasn’t our most modest Founder.

 

[Laughter]

 

But on this he was right. It is appropriate, admirable, and necessary for lawyers to take on clients in advanced position that may offend some observers. In this sense lawyers have a professional commitment to the free trade and ideas praised by Justice Holmes. They should be among its staunchest defenders and should recognize, too, in Justice Jackson’s words, that the “freedom to differ is not limited to things that do not matter much.” That would be a mere shadow of freedom.

 

And yet, there are growing indications that our most powerful law firms are growing uncomfortable with this commitment. Earlier this week, the Supreme Court heard argument in the challenge to President Trump’s cancellation of the DACA program under which certain young people who entered the country illegally received forbearance from deportation. By my count approximately 25 large law firms filed amicus briefs opposing the President’s action on top of the three large firms representing the plaintiffs. Not a single major firm filed a brief supporting the administration’s position.

 

Similarly, at the start of the term, the Court heard argument in the Bostock case presenting the question whether the Title VII’s prohibition of sex discrimination includes discrimination based on sexual orientation. Around 20 large law firms filed amicus briefs supporting plaintiffs in a broad reading of Title VII, not a single big firm filed a brief supporting the defendant.

 

As should be very apparent from my preceding remarks, I have no objection to any of these firms providing the representation they did. I should be clear also that nothing I say today should be understood as a criticism of my former law firm where my friend and mentor Ted Olson argued on behalf of the DACA plaintiffs. He also represented Governor Bush in Bush v. Gore. My concern is not the particular position any individual firm took in any specific case, but the complete absence of any large firm on the other side of either of those case and a similar imbalance in other cases involving hot-button issues.

 

Everyone familiar with the practice of law knows that these lopsided representations have nothing to do with the legal merits of the two cases, or with the absence of lawyers at large firms who would be interested in representing a client on the other side. There are lawyers in large firms, maybe some in this room, who would have welcomed the chance to file a brief supporting the government’s position in the DACA case, for example, or supporting the defendant employer in the Title VII case.

 

One factor preventing that, in these and other cases I believe, is self-censorship. Our elite law firms are hesitant to let their lawyers get involved in cases that might generate criticism from left-of-center or that conflict with views other lawyers in the firm may hold personally. Second, and related, firms fear repercussions from certain well-heeled corporate clients if they take positions disfavored by progressives. And sadly, there’s reason for that concern. As many of you know, and all of you should, some years ago clients of Paul Clement’s old law firm, a different firm than where he works now, pressured that firm to end Clement’s representation of The House of Representatives in connection with the Defense of Marriage Act. Clement left that firm.

 

In the aftermath of that episode, firms are even more hesitant, I think, to get involved in high-profile, controversial cases taking right-of-center positions. Today, it’s difficult for certain clients to obtain representation from our top law firms because the firms fear repercussions for doing so. Fortunately, smaller, boutique litigation firms often step in to provide representation. But it remains troubling that the largest law firms increasingly shrink from their lawyers representing clients on the right-of-center side in controversial cases. John Adams would be concerned by this trend, too, I think. And it should trouble the legal profession, particularly lawyers in private firms. The public must be reminded that a firm’s representation of a particular client or its presentation of a particular position does not necessarily, obviously, reflect lawyers’ personal views or the position of the firm itself. Firms should pride themselves, as they have in the past, on representing people or positions that may be disfavored in some quarters. They should be leading defenders of Holmes’s vision of a free trade in ideas and should push back firmly on clients who seek to judge or muscle the firm because of another client the firm represents.

 

It can’t be assumed that corporate executives know or will honor and defend the values of the legal profession. That is the role of members of the bar. Firms should explain to clients that no single representation defines the firm. The firm will allow its lawyers to provide pro bono representation to murderers without approving of murder. Its lawyers will represent companies charged with securities violations without approving of defrauding widows and orphans. And its lawyers will represent the Little Sisters of the Poor without, heaven forbid, accepting the teachings of the Catholic Church.

 

Firms should also remind clients that it is this detachment, this detachment of lawyer from client, of the conduct being defended from the lawyer defending it, that facilitates firms’ representation of corporate clients accused of troubling misconduct. Today a corporation accused of environmental crimes objects to a lawyer at its outside law firm filing a brief in support of the unborn. Tomorrow, why can’t someone schooled in today’s cancelled culture use the same logic to attack the firm for defending that company’s environmental depredations? Saying, “Hey. We’re profiting from this work.” is not going to be a satisfactory answer to many, particularly in a culture that devalues the First Amendment, and which has lost sight of this special place and independence of members of the bar.

 

Well, it’s been a pleasure to be with you today, and over this week. A central reason many of you come is The Federalist Society’s commitment to the principle I’ve been discussing: the free exchange of competing ideas. That’s evident from the list of people who’ve spoken at this conference. As has been observed in the past, “If this were an organization dedicated to promoting one single narrowminded view of the law, you invite the wrong people to come talk.” I hope that you enjoy your panels and debates this week, and that when you return home, you have occasion to promote these First Amendment principles within our profession as a whole. Thank you.

 

[Applause]

 

Dean Reuter:  Thank you. That was terrific, Secretary Scalia. We have time for questions. There are microphones in the aisles to take questions. We’ve only got a few minutes. We are all textualists, so we understand what a question means. Brian in the back.

 

Brian Bishop:  Yeah. Thanks, Dean. Brian Bishop from the Stephen Hopkins Center for Civil Rights. Secretary Scalia, I’m wondering, you came to my attention with an article in the Harvard Journal of Law and Public Policy, that contrasted the success of unionism, especially in the private sector. The government regulation side came up. The interest in unionism, or in the tangential benefits of it, consequently diminished. I’m wondering now that you have the role of enforcing this body of regulations, seeing it carefully enforced, is there a way that you may also advance the interests of essentially private relations between employers and employees?

 

Secretary Eugene Scalia:  Well, that was just Law Review theorizing. Now, I’m in the government. Yeah. That was a piece I wrote some time ago. The basic point was that you could look at the union framework we have as one model for regulating the employment relationship with another model for regulating that relationship being mandates imposed by the state. I pointed out that unions’ decline in membership seems to have occurred, to some extent, parallel with increase of direct regulation of the employment relationship. Sadly, that idea never got much interest or traction. Am I interested in ways that we can further private employment relationships? Very much so. I think that’s at the heart of our mission. I think we should respect those relationships while also recognizing the importance of the legal obligations that we are charged with enforcing. I couldn’t tell you that that article will be a charter for how we approach things. Sorry.

 

Brian Bishop:  I can dream, can’t I?

 

Dean Reuters:  We’ll count that as a follow up question. Yes, sir.

 

Cameron Atkinson:  Cameron Atkinson from Connecticut. Secretary Scalia, how would you address, in the context of increasing free censorship of speech in the public employment context, especially in the light of the Garcetti decision and then Lane v. Franks in 2014? What do you use the scope in terms of how public employers should be operating under the Pickering Balancing test and then how it was narrowed in Franks?

 

Secretary Eugene Scalia:  I think we should let you answer that question because that, with all respect, I’m afraid that involves a degree of nuance and multi-factored tests that I didn’t come here prepared to answer. Look, you’re balancing on the one hand the free speech rights that we all have. That’s a point at which Justice Holmes has been determined wrong, right? You do have the right to be a policeman and also have free speech at the same time. But it is important at the same time that people who represent institutions, in doing so, represent those institutions. Those are the competing values. A balance has to be struck. The Supreme Court seems to continue to be working at that.

 

Cameron Atkinson:  Definitely, but the line gets blurry, obviously. Thank you.

 

Richard Schalad (sp):   Hi, Mr. Secretary. My name is Richard Schalad. I’m a 3L from Vermont Law School. My quick question for you was about the Chevron deference standard. Both sides of the political spectrum, conservatives and liberals, have used the Chevron deference as a tool to provide more power for the administrative agencies to demonstrate their expertise in a given field. My question to you is do you think the Chevron deference standard, particularly step zero, is an affront to originalism? And I’m not trying to imply that it is, but I’m just wondering what your stance on Chevron deference and originalism is. Do you think that expanding of power for the federal government and its expertise, through the expertise argument, takes away the rights of the states to determine how administrative law should be applied in their own jurisdictions? Thank you.

 

Secretary Eugene Scalia:  For the first time in I think more than 30 years I’m actually not a lawyer. I’ve got a terrific one, Cato Scanlon’s, here in the front row, my solicitor. That has some real upsides. One of them is on questions like that I can often turn to others for guidance. Cate, can you come—no, I’m kidding.

 

[Laughter]

 

Secretary Eugene Scalia:  And more importantly turn to the Justice Department to lay out what they regard as the proper way to approach this topic until the Supreme Court provides further direction if it decides to do so. That said, I’ll admit, on a personal level, I’ve just got some fondness for Chevron just because I’ve got a dad who loved the thing at least to his last years. I think there remain arguments to be made for Chevron deference. It certainly, in some contexts, poses serious problems, and I’ve had cases on both sides of the Chevron issue in that past and I suppose there’ll be cases with my name on them in the years ahead, again, where both sides are presented. It’s best for me not to try to speak for myself in addressing that except that, like I said, I’ve not been as great a Chevron critic as some in part just out of respect for the old man. But in part, too, because I think there are some serious considerations on both sides.

 

Richard Schalad:  Thank you.

 

Dean Reuter:  Secretary Scalia, thank you so much for being with us today.

 

[Applause]     

12:00 p.m. - 2:15 p.m.
The Future of Telecommunications Law and Policy

2019 National Lawyers Convention

Topics: Telecommunications & Electronic Media • Corporations, Securities & Antitrust • Intellectual Property
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 15, 2019, the Federalist Society's Telecommunications & Electronic Media Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel explored "The Future of Telecommunications Law and Policy".

In an era of unprecedented technological change and relentless innovation, what is the proper role of regulators in competition antitrust and innovation policy? America has achieved global leadership across a wide swath of technology sectors, but at what price? How should we balance global innovation leadership with domestic competition policy, and should our answer depend on the competition and IP policies of other countries?

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Remarks: Mr. Brendan Carr, Commissioner, Federal Communications Commission

  • Mr. Jeffrey H. Blum, Senior Vice President, Public Policy and Government Affairs, DISH Network
  • Dr. Jeffrey A. Eisenach, Managing Director, NERA Economic Consulting
  • Ms. Angie Kronenberg, Chief Advocate & General Counsel, INCOMPAS
  • Ms. Giulia McHenry, Acting Chief, Office of Economics and Analytics, Federal Communications Commission
  • Moderator: Hon. Jeffrey S. Sutton, United States Court of Appeals, Sixth Circuit
  • Introduction: Bryan N. Tramont, Managing Partner, Wilkinson Barker Knauer LLP

Speakers

Event Transcript

Bryan Tramont:  Good afternoon everyone. Thank you so much for joining us for our panel today, “The Future of Telecommunications Law and Policy.” I'm Bryan Tramont. I'm the Managing Partner at Wilkinson Barker Knauer, here in Washington D.C. and I'm the head of the practice group and I'm thrilled to be here today. Excited to have our keynote from Commissioner Brendan Carr, followed by a terrific panel of friends. The two Jeffs, Angie, and Giulia are here to do a great job giving you an overview of some of the issues presented in the U.S. Telecommunications industry today.

 

      But, to kick us off, it is my pleasure to introduce the Honorable Jeffrey Sutton from the US Court of Appeals for the Sixth Circuit. He was formally a partner at the law firm of Jones Day and served as a State Solicitor for the State of Ohio. Previous to that, among other clerking experiences, he clerked for Justice Scalia. In addition, he's the author of numerous books and articles, including most recently 51 Imperfect Solutions: States and the Making of American Constitutional Law. His bio could go on and on, but without further ado, I will turn it over to Judge Sutton and thank him very much for moderating us today.

 

      [Applause]

 

Hon. Jeffrey S. Sutton:  Thank you. I was asked to moderate this panel, not because I'm an expert on telecom policy or law, in fact I may know less about this than anyone here. I did bring my iPhone though, so I'm feeling somewhat sophisticated. I think the reason I'm moderating this is that Dean Reuter thought this was the only panel during this convention where I would have no reason to talk about state constitutions.

 

      [Laughter]

 

      Dean, I consider that a challenge. We have some time here.

 

      So let me introduce our speakers and get on with -- everyone's going to speak in the 10-minute range, we'll talk a little among ourselves, and we'll leave some time for questions from the audience.

 

      So starting us off is Commissioner Carr. He was nominated to serve as Commissioner of the FCC by President Trump and was confirmed, unanimously, by the U.S. Senate. That bothers me.

 

      [Laughter]

 

      A unifying candidate. I would have thought unifying as alienating everybody, not getting them all to agree with you. But, was sworn into office August 11, 2017. Before that he was General Counsel of the FCC, an attorney at Wiley Rein, got his law degree at Catholic University and Georgetown Undergrad.

 

      Let me introduce the rest of the speakers, again, in the order they're going to speak.

 

Dr. Giulia McHenry is the acting Chief of the Office of Economics and Analysis within the FCC. Before that, she was the Chief Economist of the National Telecommunications and Information Administration. She received her Ph.D. in Economics from Maryland.

 

After that will be Jeff Blum. He is the Senior Vice President of Public Policy and Government Affairs for DISH Network. Before that, he was a partner at Davis Wright Tremaine. He got his law degree from Boston University and undergrad from McGill University.

 

After that will be Jeffrey Eisenach. He is a Managing Director and Co-Chair of National Economic Research Associates Communications Media and Internet Practice. That needs an acronym.

 

[Laughter]

 

He's written a book, the subtitle of which is Antitrust in the Digital Marketplace. He received his Ph.D. from UVA in economics.

 

And finally, cleanup, Angie Kronenberg. She is the Chief Advocate and General Counsel for INCOMPAS, which stands for the Internet and Competitive Networks Association. She received her law degree, as well, from Catholic University and a BA from Baylor.

 

So we've got two lawyers, two Ph.D. economists, and three Jeffs.

 

[Laughter]

 

Commissioner Carr, the floor is yours.

 

Hon. Brendan Carr:  Well thank you, appreciate it. Thank you very much Judge Sutton for that very kind introduction. It's great to join these distinguished panelists. For my part, it is really great to be back at the FedSoc's National Lawyers Convention. I have to confess, though, right up front that was a bit nervous and worried on my way into the meeting room this afternoon. You see, it's been about two years since I last spoke at a FedSoc event, and so I was afraid I'd forgotten the secret handshake that's needed to get into the door. But, thankfully, I recalled that it's the exact same handshake that I use to get into another locus of liberal ire, speaking of course of Chick-fil-A. And so, as you can tell, that's a pretty easy one for me to remember given what I do most weekends.

 

      In all seriousness, though, it is an honor to be with you all to discuss some of our shared principles: That the state exists to preserve freedom. That the separation of powers is central to our Constitution. And that it is the province and duty of the judiciary to say what the law is, not what it should be. I'll leave the commentary on the judiciary part to Judge Sutton, of course. For my part, I'd like to discuss today, that first principle, preserving freedom and how those of us in government might think about that as regulators of industries as dynamic as the tech sector.

 

      The FCC, where I work, has jurisdiction over 1/6th of our country's economy. Our core jurisdiction is over communications by wire and radio, as our organic statute puts it. Telegraphs and telephones, in the beginning. And now cable, wireless, and satellite all added to the mix. And today, over many of those technologies, we get the internet. The internet has transformed the way that we all live, work, and connect. Not since the invention of the printing press has a technology more fundamentally advanced the principles of freedom and liberty. It's been a tremendous source of prosperity for Americans.

 

      Think back just a decade ago. Before high-speed internet services were as widespread as they are today. Back then, the largest companies by market cap were big oil and big bank. Today, the top five companies are Apple, Microsoft, Google, Amazon, and Facebook. Everyone is American and everyone is built, and depends, on America's world leading communications network. This kind of dynamism often leads regulators and competition authorities to make two errors.

 

      First, as more inventions are built and value is created on these platforms, the importance of those platforms grows, as does the temptation for some regulators to exercise greater governmental power. To embrace an ethos of unlimited government, rather than the limited one envisioned by our Founders. And these power grabs present more than just theoretical problems. We know that heavy-handed regulation, even of the well-meaning variety, is not costless. Prescription has a price. And it's one that, every day, Americans pay economically in higher costs for services and in barriers to creating the next Apple, the next Google, or the next Facebook.

 

      At the FCC, we observed this problem at work in the Title II, or Net Neutrality debate. You may have heard something about that. In 2014, President Obama instructed the FCC, an independent agency, to break from decades of successful and bipartisan precedent, and pull internet services under Title II – a heavy-handed regime that Congress designed for the Ma Bell telephone monopoly of the 1930s. The Commission quickly obeyed.  Predictably, those Depression-era rules did not encourage risk-taking, and investment and internet infrastructure declined for the first time outside of a recession. Internet providers pulled back on their broadband builds.

 

      When the Commission's leadership changed, two years ago, we did something very rare in Washington. We reversed our own agency's prior power-grab. And we secured the FCC's appropriate and more limited jurisdiction over internet services. Predictably, investment increased. Broadband builds accelerated. The digital divide narrowed by nearly 20 percent last year, alone. Internet speeds jumped 56 percent. And the United States is a leader, once again, with the strongest and most vibrant communications network in the world.

 

      Now, spotting and correcting this first error, this instinct that some in government have to expand their own powers, is relatively easy. Or to borrow a phrase from Justice Scalia, “This wolf comes as a wolf.” But there's a more subtler, or to belabor the analogy, wolf in sheep's clothing error that I want to focus on today. And it's an error that competition authorities often make when regulating dynamic and expanding industries, like the tech sector. Put simply, they fail to keep pace with those industries. And in failing to do so, they convince themselves, whether consciously or not, that their own lack of vision can only benefit consumers. They fail to see how their thinking, their failure, operates as a restraint on competition and how it denies Americans the benefits that the free market can deliver.

 

      Part of this comes from a very human limitation on our own thinking. We tend to underestimate the pace and speed of technological change. We often assume that the next big thing will just be a faster version of what we have today. We suffer from a status-quo bias. And when technology creates and destroys on shorter and shorter cycles, regulators can be caught reading from a chapter of history that has long since passed us by.

 

      This isn't a new phenomena or something unique to the DNA of regulators, we all do it. Henry Ford reportedly said that if he asked people what they wanted, they would have said faster horses. We called the first cars horseless carriages. In a 1908 op-ed in the New York Times, Henry Billings Brown, then a retired Supreme Court Justice, argued, time alone can determine if automobiles will be a mere whim of fashion or meet a real need of the community. He lamented that a horse makes a better companion than a car, perhaps. And "little more than a perfunctory view of the scenery can be thoroughly taken in when running at more than 12 miles an hour." Justice Brown also happened to be the author of Plessy v Ferguson, so he was wrong about quite a few things.

 

      Yet, attempting to see around the corner is a mandate of competition authorities, including the FCC, where we must apply our statutory public intrastandard. If we regulate based on the competition that exists today, we sacrifice what could be to preserve what is. And this brings me to the great one. Wayne Gretzky. A Canadian by birth but, I'm told, an American by heart who warned us against this status-quo bias. The secret to his legendary success, of course, was the saying, “Skate to where the puck is, not where it's been.” The Gretzky test is popular in sports and in business now. And I think competition authorities, especially those of us in dynamic industries like tech and telecom, should hold ourselves to it, too. The FCC hasn't always met that test. Take our media regulations.

 

For decades, the FCC prohibited someone from owning a newspaper and a broadcast station in the same market. This restriction was born in an era when newspapers and broadcasters were the only games in town for local news and information. So the FCC sought to preserve competition in those markets. But over time, the FCC failed to acknowledge the titanic changes reshaping the news and information business, particularly with the rise of the internet. Our prohibition on newspaper and broadcast cross-ownership, as we called it, while first designed to preserve those outlets, only made it harder for them to gain the scale needed to compete with the new entrant: internet giants.

 

When we finally eliminated that prohibition in 2017, it was too late for much of the industry. 1,800 newspapers went out of business between 2004 and that decision. They were facing competition from market segments that the FCC refused to even recognize. Communities across the country lost access to local news and information, at least in part, because the FCC failed to react quickly enough to changes in the marketplace. For too long, too many at the FCC sought to preserve the status quo, thinking that doing so could only benefit the Americans we serve. And the FCC was wrong.

 

And there may be no more important iteration of the Gretzky test for telecom regulators today than understanding the impact of 5G. You may have heard of 5G. It's a wireless technology that promises 10 times more responsiveness, networks that are 100 times current speeds, and that are able to serve 1,000 times more devices. All of the life changing technologies that we hear about today from autonomous cars to smart cities; from remote surgery to virtual reality. None of those will work, or they won't work well, without 5G. And 5G can't really be understood as just another wireless network, as an upgraded version of the 4G you may have on your phones today.

 

5G's performance characteristics, and how it's built, will blur the distinctions between wired and wireless networks. 5G means that wireless internet starts looking more and more like wired internet. Think about what that will mean for consumers and for competition. Keep thinking about it while I turn the page.

 

[Laughter]

 

Stop thinking. 5G will enable more choices as previously siloed industries compete, which we know will decrease prices and increase quality for consumers. Now, right at this moment of immense transmission and convergence comes to the FCC the merger of T-Mobile and Sprint, our smallest nationwide wireless providers. Part of the companies argument for their merger is that it will allow them to finally have the scale in assets to compete against wireless market leaders, Verizon and AT&T. The big two have built the leading national networks. They have dominant coverage in capacity, and they generate almost all of the industry's profits. This version of T-Mobile and Sprint's argument, in my view, shows that the merger is more than sufficiently pro-competitive to merit approval.

 

But, looking backwards at a wireless industry as if it is stuck in time with the same old competitors and well-worn services isn't sufficient. Fundamentally, our job at the FCC is to see clearly the generational upgrade in communications that is taking place before us right now. We have to grasp how 5G will reshape competition. It would be unwise for the expert telecom agency to blinker itself to the coming 5G convergence and what that means for everyday Americans.

 

Analysis that looks backward to the age of talk and text may prolong those dying use cases, but it lacks relevance to how consumers use high-speed connections today, and certainly tomorrow. From this perspective, the Commission didn't get the merger completely right. It was a missed opportunity. Because while we formally approved it two weeks ago, our analysis, too often, looked backwards to where the puck was, and not where it's going. We made this error when we refused to update the relevant market definition in our competition analysis. We defined the market as one for mobile telephony broadband services.

 

Now, that's a market definition that the Commission first adopted back in 2008. That was more than two years before any nationwide wireless provider had even deployed 4G. When mobile broadband started taking off. And yet, even then, even in 2008, the Commission saw how faster wireless service would combine, what were then, separate markets for phone, talk, text, low-data usage, and computers for high-data usage. To quote the 2008 FCC order, “We concluded that there are risks associated with defining product markets too narrowly. Since doing so may thwart future pro-competitive deals that take place in the context of rapidly evolving markets and services.”

 

I wish we followed that advice, because 11 years later, telecom is again on the cusp of a fundamental change. And despite that, the FCC chose to look backwards to an 11-year-old market definition that predated 4G LTE and, for most people, the iPhone. And that's a shame because it forced us to understate the benefits of this transaction to the Americans we serve.

 

You can see the effects of this era most clearly in our treatment of in-home broadband. The new T-Mobile would have lots of new capacity, and it would use some of that capacity to provide home internet access to 28 million Americans. Many Americans feel like they have only one choice for home internet access today. And so providing them with an additional option with new T-Mobile, with 5G wireless services, is undoubtedly a significant public interest benefit. But the FCC treated that as a benefit outside of our main competition analysis. And that's because we were myopically focused on the wireless industry as it existed in 2008, and not the high-speed industry that 5G creates. We were trying to fit the round peg of 5G competition into the square hole of a 2008 market definition.

 

Reorienting our view of the market wouldn't have been difficult. We didn't have to rely on the Commission's predictive judgment about 5G because we see 5G convergence already. 5G is being deployed, right now, in more than three dozen communities. Verizon's first 5G offering is for in-home broadband, taking on cable. Cable, in turn, is offering wireless service and building out infrastructure in the process. Wireless cable satellite companies are all offering Next Gen, Smart City, and IOT applications. If we don't see this, we risk turning the government into a restraint on competition.

 

Tech and telecom are increasingly important to our lives. How we provide for our families, help our kids learn, and connect to one another. It's a dynamic sector. And if you spend enough time around it, you can't help but be optimistic about the new opportunities that exist around the corner in the future of our country. As regulators, we need to help drive that competition, not inadvertently restrain it.

 

So in closing, I think it is incumbent on those of us in government to meet the Gretzky test. Our competition policy, how we define the relevant markets needs fresh thinking. We need to regulate based on where these dynamic markets are going, and that is the best way to preserve freedom and the benefits that free markets can bring to Americans.

 

Thank you for the opportunity to speak with you, and I look forward to hearing the panel's views on some of these same topics. Thanks.

 

[Applause]

 

Hon. Jeffrey S. Sutton:  Dr. McHenry.

 

Giulia McHenry:  Thank you. Hello. So usually I spend my life surrounded by this many economists, not attorneys, which actually means it's more lively in here than I'm used to.

 

      [Laughter]

 

      So, I just wanted to give a thank you, first, for having me on this panel and thank you, Commissioner Carr, for your remarks.

 

      I just wanted to give you a little bit of a perspective on where the FCC economists are going because we are actually in the process of going through a fairly monumental change of our own. And really, what I consider, an institutional change for the better. And we spend a lot of time thinking about that and how it relates to doing sound innovative economic analysis and ensuring that we can do it in the future, too.

 

      Back in 2017, right after Chairman Pai took his seat, he actually went to the Hudson Institute and gave a fairly groundbreaking—at least for economists—speech on economics at the FCC. He laid out a number of problems with the original approach, which the FCC had had up to that point, which was really siloing economists underneath the policy bureaus within the individual policy bureaus. So you had your wireless economists, and you had your wireline economists, and you had your media economists. Those economists were essentially beholden to the policy makers at the top, which meant that many times, they weren't allowed to do the quality rigorous sound economic analysis independent from whatever, essentially, the rule of the day was there. So we changed that.

 

      The Chairman essentially put together a task force. They came up with a plan and by last December in 2018, we stood up. We did not hire any new economists. We took everybody who was currently within the Commission and we restructured them. Now, the Office of Economics and Analytics stands, and it holds all of the FCC's economists and all of the economic and analytic functions, so I think that's a recognition that, increasingly, economics goes beyond traditional analysis and takes on data and all sorts of other things.

 

      We now have data collection. We have our auctions team. We're moving more towards data and those initiatives. And then we now have a group, the Economic Analysis Division, that reviews every Commission level item, so that means everything that goes up to the Commissioner and the Chairman is reviewed by us and it is reviewed in the beginning and then we follow the policy making. Our role is to provide independent economic analysis separate from the policy-making bureaus that eventually goes up to the Chairman's office.

 

      I will tell you, process reform is challenging, particularly in the federal government. I think some of the remarks that Commissioner Carr pointed to point to that. That really, economists within the federal government can tend to get stuck in their own views, particularly when they are beholden to the policy makers. I think we've at least taken one giant leap forward in moving the economists into our own group, which means that we are more beholden to each other. We are empowered to stand up and say when we think something is wrong, and we are, right now, empowered to stand up to the Chairman's office and say, this is where our analysis comes out. Now, that said, I am an economist. I am whole-heartedly an economist, but I did take one government class in college.

 

      [Laughter]

 

      And one thing that came out of that class was my professor saying, “Giulia, it's not all about the economics. It's government.” And I think there's something really to that, which is our role is to be objective economists, to produce sound economic analysis that we can then bring to the policy makers, bring to the Chairmen, bring to the commissioners, and say, this is what we found. That doesn't make, necessarily, for good governance. So it is the role for policy makers to, in the end, say, “Here are our policy priorities. This may be the direction we want to go given those policy priorities.” And I think that's an excellent backstop on the economics at times.

 

      I also look at that as, we right now, we need that legacy because, as you all know, we have a phenomenal Chairman who thinks the way most of us in the room think. What I worry about is what happens next. Right now, in terms of process reform, we were at the beginning. My job is to institutionalize this office so that, regardless of who is running the FCC, the economists are allowed to continue doing independent economic analysis. I think that component, that economists at the end of the day still need -- we inform the analysis. It is the policy makers and the decision makers who decide what governs our country.

 

Hon. Jeffrey S. Sutton:  Thank you.

 

      [Applause]

 

      Jeff Blum.

 

Jeffrey H. Blum:  Great. It's an honor to be here. I have two question. How can antitrust economics take into account developing technologies, as Commissioner Carr talked about in 5G? And I'll talk about the merger and DISH's role in that.

 

      The second question is, how can the government promote competition, separate and apart from M&A activity by looking at all the regulations that may be inhibiting it?  And Commissioner Carr and the FCC, with respect to 5G, have done a tremendous job of looking at all the rules that no longer make sense, that stifle deployment and innovation, and I think that's very important. We don't always make competition better through mergers. Most of the time, there's not mergers. And so how can the FCC and government agencies look at old rules to promote freedom and to promote competition?

 

      How many of you have dealt with economics and antitrust? Raise your hand in this room. Not that many, alright. A lot of it is based upon static models. You—and the economists understand this—you have to look at market share, you look at marginal costs, you look at diversion ratios, and you plug in these assumptions, and it spits out a predictive price increase. Based upon these assumptions, here's what consumers could expect to pay if the merger goes through. That has been traditional antitrust for many years. And there's some mergers where it should remain, and it is appropriate to use static antitrust models. But how do those static models work when you have a dynamic paradigm change in technology? I think the T-Mo/Sprint merger is a good example of how old models may no longer be appropriate.

 

      As some of you may have read, the FCC and the Department of Justice and a bipartisan group of states approved the T-Mo/Sprint merger, but the Department of Justice imposed a structural remedy that enabled DISH—we've been in the satellite business 39 years, we've invested $20 billion to Spectrum—to enter the market as a facilities-based number four, to address any harm to competition from going from four to three.

 

As Commissioner Carr explained, 5G is not just about faster speeds. We are competing with China, who wants to be the leader in 5G. 5G is going to transform our society, not necessarily through faster speeds on your cell phone—that's an important part of it—but the technology will allow massive connectivity for smart cities, remote healthcare, robotics, autonomous vehicles. The latency of 5G is almost instantaneous. You're not going to want to have a heart surgeon operating on you, remotely, if you can not have an instantaneous scalpel doing that. So the changes to our society from 5G are enormous.

 

Our perspective is that the Department of Justice, by enabling DISH, who wants to deploy a stand-alone, no-legacy, 5G network to beat China and provide consumers and business and cities with all these technologies, is new. It's dynamic. And the old models that just say, “Oh, here's what will happen with prices,” no longer make sense when you have a new entrant that is facilitated by a strong set of structural remedies and our behavior. Our pricing decisions, our business decisions are dynamic. We're going to be looking to the future, rather than the past. We're going to be the Wayne Gretzky, and that is something that antitrust has to account for when you have mergers that are talking about change in technology.

 

The second point is, separate and apart from mergers, how can the agency look at old rules and regulations to promote competition. And I'll just talk about an example that happened with our company.

 

Many years ago, the FCC granted satellite licenses in what's called S Band. They decided, “Hey, we have terrestrial coming about so let's do something, let's impose a set of rules that allow the satellite technology and spectrum to be used for terrestrial.” And what the government did, in their wisdom at the time, was mandate certain technology requirements. It said, “Okay satellite companies, if you want to offer terrestrial service, your device has to have a satellite chip and a terrestrial chip.” That was the dictate from the federal government. What do you think happened to those satellite companies under restrictions of limiting their business plans and models? Do you think they were successful? No, they went completely bankrupt.

 

DISH bought them out of bankruptcy and asked the FCC in 2012, “Let's get rid of this tech mandate. It no longer makes sense, especially as 3G and 4G are developing. Free it up.” And the FCC, after a several year process, said, “You know what? You're right. We're not going to force specifications. We're not going to dictate business plans for this spectrum, so we're going to remove the rule. We're going to give DISH flexible use to determine, in its wisdom, what the spectrum should be used for.” And that decision that the FCC made in 2012 is now the very spectrum that we are deploying to have, potentially, the first stand-alone 5G network in the United States. The same philosophy of looking at old regulations, I think, is what the FCC has done so well over the past few years.

 

In order to deploy all this great technology, you have to get a radio on a tower. You'd think that would be easy, it's not. Some states and cities, you can go and say, “Hey, we want to put a radio on a tower.”  Texas, for example. Great, do it. Other cities, it takes 18 to 24 months to do that. So where do you think investment is happening? We're going to go to those places that don't have those restrictions. And Commissioner Carr and the FCC have led an effort to try to cut through some of those restrictions to allow wireless carriers to more easily, less expensively, more quickly deploy. And that is taking a fresh look at a regulations inhibiting competition. We hope the FCC continues to do that. We're excited about the future of 5G. Thank you.

 

      [Applause]

 

Hon. Jeffrey S. Sutton:  Thank you Jeff. Jeff Eisenach, your turn.

 

Dr. Jeffrey A. Eisenach:  Thank you, Your Honor. Commissioner. It's an honor for me to be here. My first FedSoc attendance and presentation, so it's something. I've read about y'all for a long time and admired. It's an honor to be here. I'm still looking for somebody to introduce me to the secret handshake. Maybe I can talk to Commissioner Carr about that later.

 

So, I've been studying telecoms policy for 30 years, or so. 20 years, or so, maybe 25. And I want to take things up to 20,000 feet and talk about, broadly, the future of telecoms policy. I had the honor of chairing the Trump administration's Transition Team on the Federal Communications Commission in 2016 and ‘17. I got a phone call about that in September of 2016 when it seemed very unlikely to be a very important position --

 

[Laughter]

 

-- from a very good guy who was running the transition named Ron Nicol, who'd actually had chaired the communications practice. He was running the whole transition agency interaction, part of the transition team, but had happened to be the former head of the Communications Practice at Boston Consulting Group, a former nuclear sub driver. So our meetings ran on time. So he called me, and he said, I've heard that you might be somebody that we'd want to talk to about this FCC transition position. What do you think? And I said, well I'd be interested, but I've got to give you truth in advertising here. My position on the FCC for 20 years or so has been that we shouldn't have one. That actually the Civil Aeronautics sports a pretty good model for the FCC. And that's what we ought to be aspiring to. And he said, you know, two or three other calls I was going to make, but you're hired.

 

[Laughter]

 

At that point, I thought maybe these guys are serious about the swamp business.

 

So let's talk substantively, how do you get from here to there? We've heard a lot of talk about better regulation, and better regulation's a good thing. The steps that the FCC has taken under Chairman Pai and Commissioner Carr and Commissioner O'Rielly have been extraordinarily positive steps. The creation and moving in the direction, really, of a model which would reflect moving away from the public utility regulated model of the 1930s, when the Communications Act was passed in 1934 to a model which more completely, more appropriately reflects the convergence of the communications and computing sectors.

 

So going way back to the early days of the internet, the 1990s, it became increasingly apparent that you had these two sectors that were converging. The communications sector, which at that time, still was very much a publicly regulated utility, both at the state and federal level, on the one hand and on the other hand, this incredibly entrepreneurial computer sector characterized by companies like Intel and NetScape and Microsoft and so forth. And the question was, how is government going to address these two industries as they came together?

 

An industry half free and half not free wasn't going to function very well, so how would we get to some reasonable convergence? A number of us started saying, at that point, that we ought to be adopting the computer model and bringing the unregulated, or less regulated, approach that we were taking towards the computer industry into the communications sector than the other way around. That's been a battle all along. That battle began in the 1990s. It's continued and the most recent chapter in that battle, of course, is the net neutrality fight that you've heard referenced. The essence of net neutrality was an effort to bring internet services, when they were provided and only when they were provided by companies like Comcast and Verizon, under the auspices of classic rate-of-return public utility rate regulation under Title II of the Communications Act. That battle has continued. The sad news is that, depending on how the election turns out next year, that battle may well continue again.

 

The way that battle went was there was a bipartisan consensus dating all the way back, not so much to FCC Chairman Reed Hundt, but certainly Bill Kennard and then through the Bush Administration under Michael Powell, of a light-handed approach to regulating internet services and, essentially, beginning to pare back regulation of communications. Under Chairman Wheeler, at the direction of the White House, and ultimately, really, at the direction of the big internet companies, Google, Facebook, and Amazon, who were the motive force behind net neutrality regulation—rent seeking—the Commission reversed itself and attempted to impose Title II regulation, it did impose Title II regulation on the ISPs. That threat remains in the future.

 

A macro reason to move away from, and ultimately to seek the, I think ultimately, the abolishment of the Federal Communications Commission, when you talk about how you get from here to there, is the recognition that that kind of policy enacted by five unelected, very honorable and smart people, but without the force of law, under a very broad interpretation of the delegation, non-delegation doctrine, which I think a lot of people in this room probably question, as I do, whether that's the way to run policy, particularly given that rent-seeking is part of the game at the FCC.

 

The other reason, more micro reason, is that even the best intended regulatory agencies are going to act like regulatory agencies, which is to say that there are procedures that have to be followed. There's constituencies that have to be satisfied. There is a process and a procedure, and it doesn't happen quickly, and we don't always get, even the most best intended regulators, don't always get it right.

 

What's happened at the Pai Commission, as Commissioner Carr and Giulia have referenced, has been an extraordinary effort to clear out the regulatory underbrush. An extraordinary effort to allow, both at the federal level and also looking at the impediments that the states and localities put in the way, a more rapid deployment. An extraordinary effort to deregulate and to regulate more smartly. But at the same time, regulation takes time. And on two issues that have been absolutely essential to the accelerating the buildout of 5G, I think we'll talk more about 5G as we're here. An essential, both economic and national security objective of the United States is to lead the race to 5G, and it's very difficult to do.

 

The two most important public policy choices associated with that in the past year and a half, almost two years, have been the T-Mobile/Sprint merger and a proceeding at the FCC, still going on, called CBAN proceeding. The essence of both of those proceedings, with T-Mo and Sprint, the essence of T-Mo and Sprint was to bring together the spectrum portfolios of those two companies, which would have given them, uniquely, the ability to build out a 5G network that encompass, both low-band, mid-band, and high-band spectrum. I won't go into why that's important, except it is a robust 5G network, which Verizon can't do today because they only have 5G spectrum which only goes a very short distance. So when you hear or see Verizon advertising, we're putting 5G in sports stadiums, that's because it's the only place their 5G will work. They can't put it out in the country because the spectrum they have. 4 or 5G doesn't have the ability to travel over long distances.

 

That proceeding, the T-Mobile/Sprint proceeding, which would have brought these two companies together, will eventually bring them together, is almost two years old. They announced the merger in April 2018. So for more than 18 months, and this really is not, mostly, the FCC's fault, but for nearly 18 months, we've now delayed a transformational change in the capability of the deployment of the central assets to building 5G in the U.S.

 

The second proceeding is one that would take mid-band spectrum, the kind that neither AT&T, nor Verizon, have today, which is currently used to broadcast television signals to local TV stations, called the CBAN spectrum, and allow that spectrum to be reallocated to where Verizon and AT&T could  purchase it and put it to use. Verizon, AT&T, and other purchasers have been willing to buy that spectrum from the current holders for, again, going on two years now, a year and a half, and the FCC has not been able to get it done despite the best of intentions.

 

I'll stop here, except to say that there was an old phrase that went around during the ‘90s that the telecom regulators needed to learn to move at internet speed, and they haven't done it, and it's unlikely under the current institutional arrangements that it's possible. I'll stop there.

 

[Applause]

 

Hon. Jeffrey S. Sutton:  All right, Angie, the stage is yours.

 

Angie Kronenberg:  I'm moving up here because from there, I would be talking to these two tables. So I thought--

 

Hon. Jeffrey S. Sutton: Those are great tables.

 

Angie Kronenberg:  Yeah, you're awesome, but I thought maybe the rest of the room would like to see my full face and not just part of it, even though you have this great screen up there.

 

      This is new for me. I didn't know that the nickname was FedSoc. So, now I know that. Commissioner? So have you made it to Chick-fil-A since the peppermint milkshake has become available?

 

Hon. Brendan Carr:  Interesting point.

 

Angie Kronenberg:  So my children, one of them now drives—that's a little scary—informed me the other day, that the peppermint milkshakes are back at Chick-fil-A, and would it be okay that on the way to school that they stop at the Chick-fil-A in the morning to pick one up? So, my daughter, who is the driver in the family, she started to have this conversation with her brother about, do they really sell milkshakes in the morning? And I said, well why don't you call and find out. It turns out that they do serve them in the morning, so there are no restrictions on the milkshake availability. And yes, they did go get one. And part of the logic for my daughter of getting one in the morning was, well then, I can burn off the calories during the school day. I have dance that day, I have softball practice that afternoon. So I thought, okay, go ahead, get your milkshake.

 

Hon. Brendan Carr:  I thought there was a city in the country that does not allow milkshakes to be sold in the mornings.

 

      [Laughter]

 

Giulia McHenry:  I only allow my daughters to eat candy in the mornings.

 

Angie Kronenberg:  There's a lot of sense to that, right. You get your sugar in the morning and then focus on the school day.

 

      Well thank you so much for having me. This is really a pleasure to be here. My name is Angie Kronenberg, and I am the Chief Advocate and General Counsel of INCOMPAS. INCOMPAS is the Internet and Competitive Networks Association. We're a national industry association for providers of internet streaming, fiber builders, and competitive networks. We're an advocacy-driven association. We focus on competition, innovation, and network building. Preserving and fostering competition and innovation in the communications market is our mission. Our membership is very diverse. It includes internet content and cloud companies, fiber providers and small ISPs, fixed wireless, satellite companies, enterprise service providers, and internet backbone companies. They provide communications and technology services to almost every type of customer, including schools and libraries, healthcare facilities, government entities, small businesses, mid-sized businesses, very large enterprises, and yes, consumers.

 

      Competition drives investment. It drives innovation. It's driving more deployment that gives us faster speeds, more affordability, better customer service. With the right competition focused policies, all of the entities that enjoy these services will be able to see improvements. Our small local broadband builders are an American-made success story. They are the catalyst for creating economic growth and improving the quality of life in their communities. And I wanted to just provide you some sense of who our small fiber provider ISPs are.

 

      Sonic. Sonic is based in California. It started out as a dial-up ISP 25 years ago. As a result of the market-opening bipartisan 1996 Telecommunications Act, Sonic has been able to build a customer base and build fiber. They're building last-mile fiber throughout the Bay area and other parts of California. And guess what happens as a result of that? The incumbents also start to build fiber. Cable upgrades their facilities to provide faster speeds, better service, and lower prices to customers. We have entities that we represent that are small fiber providers in other parts of the United States.

 

      SmartCOMM, in South Texas, that is providing the needed assets so that the Department of Homeland Security can secure the border. Mammoth in Wyoming, who’s serving very rural parts of Wyoming, connecting its networks, its last-mile fiber networks, with necessary dark-fiber. Rocket Fiber has been helping the city of Detroit to turn around by building last-mile fiber throughout the city to provide faster speeds to consumers. And yes, INCOMPAS also represents DISH. DISH has been a disrupter in the DBS marketplace, in the over-the-top marketplace, and soon, in the 5G wireless marketplace.

 

      What does 5G need to be successful? It needs a lot of spectrum. It needs great companies working on it. But it also needs our small fiber providers throughout the United States building more fiber. They are the ones who are going to be the companies that are doing it. The large ISPs aren't in the position to do so. They're highly leveraged. They're cutting back on their investment. So it's important that we look to the small companies who are in process of building their networks and rely on them to give us the density that's needed for the 5G companies to be able to connect their wireless networks.

 

      The race to 5G is dependent on extensive buildout of fiber networks. They will be the backhaul of the small-cell architecture and carrying all the data that's going to be required to go back to the internet.

 

      There are several key policy areas that are critical to achieving the goal of driving fiber and 5G wireless and the FCC, as has been noted already, has been doing very important work to enable this deployment. And we're so lucky to have Commissioner Carr on the Commission, who has been focusing on this work.

 

      Competition driven markets where a third provider, using fiber, has entered the space to serve residences and businesses are the markets where we see new networks, faster speeds, and lower pricing. The FCC, already, has adopted a policy called One Touch Make Ready. Okay, sorry, I'm going to get a little technical. But this allows for fiber providers to more easily actually attach their fiber to poles. And that's really important because there are a lot of poles and we need a lot of fiber going on them. And the FCC did such a great job with this rule, but unfortunately, the FCC's jurisdiction is not nationwide for all poles.

 

So INCOMPAS has been calling for the One Touch Make Ready to be adopted across those states that still have their own jurisdiction, across all companies—not all of them have to abide by the Commission's One Touch Make Ready—so that faster fiber deployment can happen. We believe that it's really important for entities to be looking at expanding the shock clocks so that it applies, not just to the small-cell antenna that has to go on to poles, but also so that it applies to the fiber that needs to go onto poles.

 

We think it's really important for our members to know what the fees are going to be. And setting reasonable fees is really critical to allowing them to deploy more fiber, which will be connected to all of the 5G antenna. So our members are going into local communities and they're educating them. And usually that goes pretty smoothly. But sometimes it doesn't go so smoothly. So it's very helpful if we have, both, the FCC as well as the local PUCs and localities, themselves, coming to an understanding about the importance of this fiber deployment, and also about the importance of having reasonable fees and timeframes by which all of the fiber companies can take advantage of this new policy.

 

There's another area that the Commission is working on that also is critical to ensuring that fiber providers have the capability to deploy their networks. This is called access to multi-tenant buildings. 30 percent of Americans life in buildings with other people. It's hard to believe, right? I always think of myself, I live in a single-family home, but nope. 30 percent of Americans life in multi-tenant buildings and the Commission has had a policy against exclusivity for those buildings, such that any provider who asks to have access to the building could get access. Unfortunately, though, there are some practices that still exist in the marketplace that the Commission is looking at currently that have prohibited competitive fiber providers from being able to enter those MTEs and to serve customers, even when customers are asking them to. Things like graduated revenue sharing arrangements. Exclusive marketing agreements, rooftop exclusivity agreements have prohibited competitors from accessing multi-tenant environments to serve customers. These practices dilute the odds of a competitive provider being able to achieve the necessary penetration rates that bring an acceptable rate of return.

 

We support the Commission's ongoing review of the practices that are harmful. The Commission already has a lot of support in the record from the communications industry and we're hopeful that it will act soon on this record. However, we are very concerned that the Commission is about to take a costly detour that will discourage fiber builds and hurt consumers who rely on the small fiber providers I was just mentioning from being able to offer service throughout the communities that they serve.

 

The FCC will consider an NPRM at its meeting next Friday that proposes to remove wholesale access that is critical to providing the bridge to broadband. The wholesale market is a means of competitive entry that has spurred fiber builds, creating a race to next generation networks, including 5G. The record shows that smaller competitive providers in the areas that they operate are actually building more fiber than the giant incumbents, like AT&T. In fact, AT&T has announced, already, that it is cutting fiber investment by $3 billion, and as a result, has laid off thousands of its wireline workers. It has historic levels of debt from the megamergers its undergone and Wall Street has said that it must milk its old copper lines and not bother with building new fiber. We need INCOMPAS's fiber builders to be able to continue in the market and be able to continue to offer their fiber builds to their communities.

 

If the NPRM goes to order, we think it means less fiber is going to be built. There'll be less competition, and consumers, small business, schools, and libraries, and rural healthcare facilities will be subject to higher prices in the form of unlimited price hikes and loss of innovation. Our members are the ones that are bringing the competition that the bipartisan 1996 Telecom Act envisioned. The tools it offers are still critical for fiber builds and 5G so that the U.S. can compete in the global marketplace. It is the competition constitution. It's driving investment, innovation, faster speeds, lower prices, and better service. The act was the future then. It is the future today. And it is the future for tomorrow. Thank you very much.

 

[Applause]

 

Hon. Jeffrey S. Sutton:  Thank you, Angie. We're going to have a little conversation among ourselves and then we'll eventually open up to questions from the audience.

 

      So I'm from Ohio so I have a slight bias here. Ohioans are very aware of America becoming more of a place of haves and have nots. And a lot of the have nots are in places like Southeastern Ohio, rural parts of the country. If I were to guess, the average Southeastern Ohioan would say about 1G through 5G, which is just when you got to the end, after 10 years of 1G, it was just getting access in Southeastern Ohio, then you did 2G. And so my suspicion with 5G is we're going to repeat this.

 

And the only way someone in Southeastern Ohio is going to get access to 5G is to go to every Ohio State football game where, okay fine, in the stadium you can get great video. But if you want this stuff regularly, you're going to have to drive to the Nelsonville Library after hours to get access to the internet. So I'm no fan of public utilities approach to this. I get the commercial shackles problem. One thing about public utilities is they did delivery the electricity and the water to everyone. So is 5G going to fix this problem or is it going to take 10 years and by the time you actually have access to 5G in Southeastern Ohio, there'll be 6G?

 

      Commissioner Carr?

 

Hon. Brendan Carr:  Judge, it's a great question. And that's why, for those of us at the FCC, when we talk about 5G and building out this platform that is going to be the one that unleashes a new wave of economic opportunity, our finish line is not the first time 5G is built in New York or San Francisco. For us, the finish line is how do we get 5G in all these other communities, including the one that you just mentioned. In this job, in the two years on, I've spent a significant amount of time outside of D.C. in a lot of these communities to make sure that we understand how to get 5G there quickly.

 

      I was in a small town, Sugar Ridge, Ohio. I climbed up to the top of this grain elevator and a provider had installed a small cell, a fixed wireless antenna up there and was beaming high speed internet connectivity to that small community. That's a real good success story. That's not a success that every single one of these rural community's feeling. We're not raising the mission accomplished flag just yet. But the policies we're putting in place want to make sure that all these communities get a fair shot. And so how are we doing that?

 

      What Jeff mentioned about cutting red tape is big. That, alone, shifts the business case for thousands of communities that were on the edge of being profitable for the private sector to go in there, or not. That could make a very big difference. This convergence of technology is a big piece of it. We talked about, technical speak, this fixed wireless service, 5G service, there's a new generation of low-earth orbit satellites that can help provide competitive broadband. So when we think about 5G more broadly, or next gen connectivity more broadly, we're very focused that the stakes are too high to leave rural America behind.

 

      We're making progress, as I mentioned. We closed that digital divide, the percentage of Americans that don't have high-speed internet, by 20 percent.

 

Hon. Jeffrey S. Sutton:  So how does that happen? Is it by regulation or is it just by the incentives of the marketplace? Why can one rest assured? Is it going to be regulation that makes sure it's provided to the small town in Ohio?

 

Hon. Brendan Carr:  Yeah, there's three sort of ways to look at it.

 

      One is, we have this program at the FCC called the Universal Service Program. It's a $10 billion a year fund. You pay into this fund on your cell phone bill, so thank you for your involuntary contribution in that respect.

 

      [Laughter]

 

Giulia McHenry:  They're getting bigger.

 

Hon. Brendan Carr:  Yeah, and we are in the processes right now of re-orienting that program to support, to subsidize, the build out of internet in communities where the private sector business case simply isn't there. And why do we do that, even as a conservative, like myself, spending that money? Because we look at the broader economic impact. I've been in these small towns where you go a feed lot, where you go to a seed processing plant, a company that makes the steel containers used for oil field services. And to a person, the people there tell me, they wouldn't be there, those jobs wouldn't be there, the largest employers in a tax base in those communities wouldn't be there if they didn't have high-speed connectivity. So the Universal Service Program is designed to make it make sense to build out to every community. So it's part one.

 

      Part two is the regulatory reform. We're cutting, literally, billions of dollars in red tape that is flipping the business case. And the other part of it is making sure, we talked a little bit about Title II and net neutrality, from my perspective at least, creating an investment atmosphere where people are going to take risks, where they are going to build out. So I think moving on all of those different vehicles is why you saw a significant turnaround in two years.

 

      Again, I think we were sort of headed in the wrong direction, from my perspective. The last couple of years of the last administration were starting to fall behind some global competitors and we've reversed that story. We have the largest 5G platform in the world, right now, in the U.S. 14 cities got 5G last year. 33 today. Going over 42 by the end of the year. That's the biggest 5G build in the world. And more important than the numbers, you add to it the culture and free market innovations here that I'm confident that the U.S. is going to leverage this 5G network to help grow our economy.

 

Hon. Jeffrey S. Sutton:  Thanks a lot. Oh, go ahead, Giulia.

 

Giulia McHenry:  I think, just to add to that, I think even when the FCC is thinking about how to bring more resources to rural America for 5G and for, as you mentioned, libraries, that is more of a wireline problem. That is just fixed service, making sure that we have the broadband to the home in these areas. So I think one thing that, just to reiterate what Brendan said about Universal Service. I think we are focused more on giving out Universal Service funds through auctions to ensure that even if we are stuck in a world where in order to support a business case, we have to provide funding, that we're doing so in a competitive way to really support those who are coming up with a strong business case in these areas and looking how we can facilitate those business cases as opposed to just doling out money to whoever is there.

 

      Another thing that the Commission's been really focused on is spectrum. When you talk about 5G, as Jeff said, you need spectrum. So one thing we are constantly focused on is, we've been introducing spectrum into the marketplace in order to facilitate that competition for years, and we are working very hard on the CBAND problem to ensure that nationwide, we have more spectrum available for 5G. So I think the Commission is focused on, as Brendan said, ensuring that we can find a way to bring this access further into rural areas. But without simply regulating.

 

Hon. Jeffrey S. Sutton:  Let me ask a law question. We know Auer deference. The Court has reconfigured it, but the bottom line is, the Court seemed to be a little bit more skeptical of that. They seemed to be a little bit more skeptical of Chevron deference. So even if Chevron survives, you still have a world in which the courts are not deferring as much to the agencies. There's no other way to think about it. There's the possibility of the non-delegation doctrine getting revived. Jeff Eisenach, I don't know that we're going to get to the place of eliminating the FCC.

 

Dr. Jeffrey A. Eisenach:  Yes, we will.

 

[Laughter]

 

Hon. Jeffrey S. Sutton:  In your world, hope springs eternal. Maybe we don't have to have the conversation go all that way. Jeff Blum, I'm curious from your perspective, working for a regulated entity, would you rather see Congress playing a bigger role here? Or maybe not so much? Which way does it cut for you all?

 

Jeffrey H. Blum:  As a business, we just want to know what we can do and what we can't do. What's the most frustrating thing is that the FCC promulgates a vague rule and we look at what the FCC has approved in the past and we do it. And then the FCC says, no, no, you shouldn't have done it that way. That's not promoting competition and that uncertainty is a problem. We expect of our government, give us fair notice of what we're able to do and what we can't do. And we'll try to follow it. So I think there needs to be a balance of, where appropriate, Congress legislates, but then delegates to the FCC, and other agencies. But those agencies need to set the rules of the road and don't move the goal post. That is the most frustrating thing is, businesses are making investment in reliance on what we think the agency will do. And if the agency then moves those goal posts, subsequently, and a license is lost, or a fine is imposed, or a spectrum can't be obtained, we don't think that's positive for consumers or for business.

 

Hon. Jeffrey S. Sutton:  But you know, of course, the problem could be, even if the courts are more involved, they can be just as unpredictable. In other words, we have a statute --

 

Jeffrey H. Blum:  -- I agree. We lost cases before for that very reason.

 

Hon. Jeffrey S. Sutton:  -- You have a 20-year old statute, let's say the agency has no role, and then the courts are asked by two parties to decide what it means. It's not just Congress, it's Congress doing thing more responsively. Angie, do your clients all, are they in the same, your members?

 

Angie Kronenberg:  So I think there are pros and cons. On the pro side, regulation can be really helpful because it can give them the certainty that they need. And I think the small cells is an example of this and the work that the Commissioner did with the other Commissioners on telling the cities and localities that it's important to do their part in reviewing the process. But here's the outer timeframe in which you have to do that. And here's the reasonable fees that we think, or as we're looking across the board at what localities generally charge, this is what's going to be considered reasonable. So having some certainty in that respect from regulation I think is also incredibly helpful.

 

      The ‘96 Act set some rules into place about getting access to incumbent facilities. And that has been a critical piece for our members to be able to, then, build the last mile from there. And so you have this interconnecting networks and more competition that's been driven in the marketplace as a result of those aspects of the regulation being there.

 

      But as Jeff mentioned, yes there could be some downsides to regulation. But it's important to have -- this is where I would disagree with you. I think it's really important to have an expert agency that knows, can review the facts on the ground, and can say what the rules of the road should be. And then also can go back and review and make adjustments. That's a lot of what the current FCC has been doing is going back, reviewing what the rules of the road have been and determining whether or not there should be adjustments made.

 

Hon. Jeffrey Sutton:  Jeff -- oh, go ahead.

 

Hon. Brendan Carr:  Sorry, I was just going to jump in, Judge. I think to that point you asked how does that line up expert agencies versus judiciary and judicial review, and I think we see some of that. In fact, obviously, if there's a value that we bring for better or worse, we are trying to be and spent our lives focused on tech and telecom and being experts in that market and where it's going. And I mentioned an example that newspaper/broadcast cross-ownership rule that the FCC eliminated in 2017 based on understanding, okay, it's a vastly different market right now than back then. Unfortunately, that repeal was reversed by the Third Circuit a few weeks back and so now that old prohibition is back in place. So I think there is something to, and maybe you don't need it through an expert agency, but taking these people who understand, where is this dynamic market going. And whether it's the judiciary or an agency regulating based on that and not based on a static backward-looking view.

 

      Something that Jeff said about antitrust review is, oftentimes it feels like, and I think to some extent, the FCC's own decision in Sprint/T-Mobile felt like we were running through a series of increasingly irrelevant static models that don't tell you anything about what is happening in the dynamic marketplace today. So I think we should be focused, at least, on applying our expertise in that area.

 

Hon. Jeffrey S. Sutton:  So Jeff Eisenach, agency, court, Congress? Who do you want deciding this? Or states, if you want to add states to the equation. Go for it. You’ll warm my heart.

 

      [Laughter]

 

Dr. Jeffrey A. Eisenach:  Well, there's an argument for all those in the right circumstances. But what you don't want is an industry specific regulator subject to capture. Capture theory, the whole public interest doctrine about how regulated industries come to capture their regulators. If there's one seminal piece of work in that whole literature, it's Ronald Coase's work around the theory of social cost, which originally appeared in an article by Ronald Coase in the Journal of Law and Economics in 1959, in which he asks the question, why is it the case that if I want to use the airwaves to broadcast a television signal, I have to go get permission from seven unelected people in Washington D.C.? And he then explored the dynamics that went into that, and not surprisingly, you're all probably familiar that Lyndon Johnson's fortune was originated by the fact that his wife had a monopoly television station outside of Austin, which the FCC would not approve any competition to.

 

So the use of the Federal Communications Commission, and other industry specific regulators, for rent-seeking purposes to protect incumbents, to prevent technological progress, to generate free access to investments that other people made, or below-cost access to investments that other people made, and thereby deter future investment, all of those problems are problems that the FCC has been uniquely prone to it. When you open the economics dictionary, under rent-seeking, there's a picture of the Federal Communications Commission.

 

      [Laughter]

 

Hon. Brendan Carr:  Hopefully not my picture.

 

Dr. Jeffrey A. Eisenach:  It's precisely what that neutrality was all, the leading issue of the day and net neutrality was all about.

 

      So what's the alternative? There is an alternative. If you think about -- one further piece of evidence. If you think about the Federal Trade Commission and you think about the Federal Communications Commission, there's a huge difference. And the difference is that every year in Washington, there is a dinner at the Washington Hilton with about 3,000 people called the Federal Communications Bar Association. And they're there celebrating the rents. That's what they're there to do. There is no Federal Trade Commission Bar Association. And why is that? Because the Federal Trade Commission is a drive-by regulator. It's an ex-post regulator. The Federal Trade Commission goes out and identifies competitive and consumer protection problems. It prosecutes them and enforces them, under Section V of the Federal Trade Commission Act, and it goes away and looks for the next perpetrator. The Federal Communications Commission is there every day and that's why there is a Federal Communications Commission Bar and Federal Communications Commission Lobby, and there always will be as long as there is an industry specific regulator which is there each and every day determining how the wealth that is allocated by the regulatory process is divvied up among the various interest groups.

 

Hon. Jeffrey S. Sutton:  Jeff, I don't think you're going to get invited to next year's dinner.

 

      [Laughter]

 

Dr. Jeffrey A. Eisenach:  I haven't been to it. I don't go to those, actually.

 

Hon. Jeffrey S. Sutton:  I was curious if you'd ever been, and then it made me wonder how you could know how many people were there, but I suspect you're right.

 

Dr. Jeffrey A. Eisenach:  I went to one. I went to one.

 

Hon. Jeffrey S. Sutton:  I do suspect you're right. So let me ask an economics question, Giulia. So centralizing the economics, not siloing it, is there anything you can point to in the recent past, or possibilities going forward, where that might affect policymaking? I know you guys are providing the analysis data for the policymakers, but are there ways in which that could actually affect policy as opposed to just making economists happy?

 

Giulia McHenry:  Right, so I think a number of things. I think in very small ways, we actually put out some research earlier this year that showed how having the economists centralized within one organization, in fact, improves the quality of the economic analysis related to OIRA review.

 

As a regulator, all major rulemakings, which is essentially anything, according to the Congressional Review Act, that is anything over $100 million of annual impact and some other things, has to be reviewed by OIRA. What you actually see is for agencies who have a centralized group of economists who are working together, the quality of that analysis is better. And that's true across the SCC, the FTC, the DO- -- well, I guess the DOJ isn't. I think that is one way where, every day, we make a difference.

 

I think you'll also see that what we aim to do is to inform the rulemaking at the beginning. So try to create a world in which part of the options we're considering are more market driven, are more economics driven. So we still have to operate within the subjects of the constraints of mandate and what Congress tells us to do, which a lot of economists don't like. But really, I think, what you see is a number of rulemakings where the economists are in on the ground talking about what's the right approach to do this.

 

I think one thing that Commissioner Carr hasn't mentioned, yet, is he had initiative earlier this year to put an NPRM on telehealth and on a pilot. The economists were in on that very early on talking about how can we develop a pilot that, in fact, has the right incentives, that avoids waste, fraud, and abuse. Those are ways where I think having the economists be independent really helps.

 

I also think the FCC is also different from the FTC in a different way, which is, it is looking at a single industry. There are a number of highly technical reasons why something like communications needs a regulator who understands it in a highly detailed and complex way. But one nice thing is, we had economists looking at even more detail in their own little part of the communications world, opening up to have all the economists under one means there's a little bit more variety. I think you see people with a more wireless innovative background looking at wireline a little bit differently. As we start to question some of these market definitions, it is helpful to have all the economists under one roof.

 

Hon. Jeffrey S. Sutton:  Great. So we're going to open up now to questions from the audience. There's a couple microphones. I think we'd all be grateful if you'd give your name and your organization at the beginning. And if you look behind you and you notice there's some other people in line, maybe make your question fairly quick.

 

Hon. Brendan Carr:  And end in a question mark.

 

Hon. Jeffrey S. Sutton:  And end in a question mark, but that never works. We say that all the time. That one I know I can't get to happen. But you can look behind you and remember not to be too selfish. So why don't we, on my right side here, if you could go first?

 

Roslyn Layton:  Yes, thank you panel. I'm Roslyn Layton, American Enterprise Institute. You know, there are a number of issues before the Commission, highly contentious, important market opportunities. Look at something like the CBAND on order of maybe $60 billion, competing proposals. Why not use the Office of Economics and Analytics to present a competing economic presentations as a way to remove the pressure in politics from the commissioners?

 

Hon. Jeffrey S. Sutton:  Giulia, you seem perfect for that one.

 

Giulia McHenry:  Yeah. I'll answer it. I think that's actually a very good point. In fact, we have economists working on this CBAND issue in a number of different ways. We have both, obviously, our auctions team is hard at work in thinking about how we can perform an auction for CBAND that would accommodate the incumbents and open up new spectrum for 5G. At the same time, we also have, and we have been in since the beginning, have economists, in fact, thinking hard about what are the correct ways to free up this asset. So we've actually been in since the beginning and continue to work daily, I think. But unfortunately, there are a number of issues at play and so much of that hasn't necessarily become public yet.

 

Hon. Jeffrey S. Sutton:  Okay. On the left, yeah.

 

Brooks Harlow:  Thank you. Brooks Harlow, long time telecom lawyer, sometimes antitrust lawyer. I could talk all afternoon about the merger case. I really enjoyed Commissioner Carr's concurrence and you hit the nail on the head with the definition with relevant market, which is what most competition cases turn on and I think that'll occupy the Court's time and ultimately will decide how the Court comes out. But I'd like to focus on a narrow procedural issue which is Commissioner Rosenworcel focused on a lot in her dissent, which is the issue of the change to the deal that occurred because of the deal with DISH and others that was worked out by the Department of Justice. Procedurally, should the FCC have allowed a new round of comments since the deal had changed substantially. Is there a risk of reversal? Who can comment on that? And why or why not, if there's not a risk of reversal? Thank you.

 

Hon. Jeffrey S. Sutton:  You say there's not a risk of reversal, then what?

 

      [Laughter]

 

Hon. Brendan Carr:  That's right. Under the process that the FCC followed on the Sprint/T-Mobile transaction was the same by-the-book process that we always use in adjudications. And so we didn't deviate from that process. I think that was the right call.

 

Hon. Jeffrey S. Sutton:  Anyone else want to comment on that? No. Okay. This side?

 

Devin Watkins:  Hi. In 2015 there was--

 

Hon. Jeffrey S. Sutton:  What's your name?

 

Devin Watkins:  Devin Watkins from the Competitive Enterprise Institute. In 2015 there was a merger that was granted by the FCC and they added a bunch of conditions that were really expensive to that merger. We represented some consumers that complained that those conditions were unlawful. The FCC refused to respond to us until we filed Mandamus and were a couple days before the oral arguments in the D.C. circuit. And then, after that, they complained that we had failed to file comments before these conditions were ever even proposed or had notice of them, and that these burdensome conditions on businesses don't hurt consumers. I have a hard time, regardless of this case, in particular, seeing that kind of behavior as one that emphasizes the rule of law and be that kind of champion for the rule of law that it seems the Commissioner and yourself are trying to say that's what the FCC is trying to do right now. Is there something you can say about this kind of conduct? Or some way that the FCC might be able to improve in the future?

 

Hon. Brendan Carr:  Yeah, thanks. I lost the thread partway through. But, in terms of the actions in 2015 FCC took, you won't find me defending too many of those actions from the prior Commission, so if we're dunking on them, I'm all with you on that.

 

      [Laughter]

 

      I do think that one thing that you, rightly, highlight is that the FCC, historically, has had an instinct to, when a merger comes before it, it views it as Christmas in July, or April, or whatever month it is and there's a lot of sector-wide regulation, a sector-wide wish list that since you've got two parties before you, you get them to agree to voluntary conditions that end up making it in the document. I think that's part of what you're talking about is last minute voluntary conditions. I think, contrasting that with, since I have to now, contrasting that with the decision that the FCC made that I did vote for in Sprint/T-Mobile was, conditions on that transaction we imposed that made enforceable commitments that the company's already made. If you approve this, we're going to be able to do X, we're going to be able to do Y and then we just put that to paper and said, okay, well, you better do X, you better do Y, and these become enforceable conditions. To me, maybe not to other people, but to me that's very different than a world in which we say, now that you're here, I want all of these goodies over here. I think that is something, at least from my conservative perspective, that we shouldn't be engaging in.

 

Dr. Jeffrey A. Eisenach:  That's a problem. In the nature of regulatory agencies, you have a hold-up problem. It has been, traditionally, a problem at the FCC, which is, every time two companies want to come together, for example, and do a transfer of licenses, every interest group in the world shows up and files comments with various conditions they'd like to see imposed on those license transfers, which often have nothing to do with competition. But anything goes, under a public interest standard. And not surprisingly, the states are even worse. So if you look at states public utility commissions. State public utility commissioners are typically running for something, and they take the opportunity—I've written a paper about this—to do everything from public parks to sponsorship of sporting events, all of which gets your nationwide merger of two big companies gets conditioned on being willing to spend a few million dollars sponsoring sporting events in California, to pick one of the frequent perpetrators. Or Massachusetts or so on. All the more reason that telecommunications mergers, like all other mergers, ought to be adjudicated under the antitrust laws.

 

Hon. Jeffrey S. Sutton:  Left side.

 

Paul Burbank:  Hi there. My name is Paul Burbank, and I'm a telecom lawyer with a firm called Fasken in Canada. Firstly, Commissioner Carr, with respect, hands off Gretzky, he's still ours.

 

      [Laughter]

 

Hon. Brendan Carr:  Fair enough, fair enough.

 

Paul Burbank:  That's greatly offensive, there. My question's really quite simple. It's, what's the role of the free flow of foreign investment in reducing costs and spurring innovation? I ask this because in Canada, consumer welfare groups are increasingly looking at foreign investment restrictions as being a cause of the digital divide and high cost for consumers.

 

Hon. Brendan Carr:  Free flow of investment was the first part? We want to encourage investment in the telecom networks in the U.S. Of course, putting a pin in that for a second, we do have a review process that takes place, a technical process – CFIUS. There's other team telecom reviews to make sure there isn't illegal undue foreign influence in that process. But we certainly have opened up our markets to investment. And I think that's a great thing, particularly when you look at 5G, which could potentially be a $275 billion investment to get 5G built out across the country. Capital flows globally, as you know, and we want to make sure that part of why we're getting our regulations right, or cutting the red tape, is to make the US an attractive place for people to invest the money that we need to build out these networks.

 

Hon. Jeffrey S. Sutton:  I'm gonna follow up just on the international front. How's America doing in competing with, say, China, and some other companies? Is this a race we're winning, losing, in the middle of the pack?

 

Hon. Brendan Carr:  The U.S. is in really great shape. Where I started in my remarks, 2014, 2015, the U.S. was falling behind a lot of our global competitors. It cost too much and it took too long to build out this next generation internet infrastructure from hanging the small cells that you need for 5G, to building out the fiber that you need to connect all this. Back then, China was putting up cell sites at about 12 times our pace.  So starting in 2017, 2018, we adopted a number of reforms that have now accelerated the buildout of internet infrastructure in the U.S. If you take small cells—again these are the building blocks for 5G—about 13,000 were put up in this country in 2017. With reforms in place, that jumped to 60,000 in 2018. We're going to have a net total of 200,000 by the end of the year. And so the numbers tell a very clear story that this is one tremendous success story is U.S. turning it around, and right now, being the leader in 5G. And again, more than just the numbers, even though the numbers tell a very clear story, we have this broader free-market approach that's going to make sure that the 5G platform in the U.S. is the one that the next generation of innovators are going to create on.

 

Jeffrey H. Blum:  And let me just add, today, every radio on a cell tower in the United States is made by a foreign company. There's only five companies for 4G making radios. Two of them are Chinese—Huawei and ZTE—Nokia, Ericcson, and Samsung. And the United States made the decision not to develop radios, but for 5G, there's now a real opportunity. And there are American companies, small companies, who are making the radios, who are designing the software for 5G, who are looking at the core. So I think you're going to see as carriers deploy 5G, more American vendors and I think that's a positive to encourage investment. We welcome competition. China's a little bit different. They do a test with 100,000 towers. There's no permitting issues in China. But I think the United States, there's no one better for software. And a lot of the benefits of 5G are coming because of software. Less reliance upon hardware. All the stuff you see at the bottom of a tower, all that baseband processing, 5G doesn't need it. You put that in the cloud. And so I think the opportunities for American leadership are enormous, thanks to the good work of the FCC. o facilitate this investment, you're going to see the smaller American companies developing technology for the American wireless carriers in the United States.

 

Dr. Jeffrey A. Eisenach:  Let me just jump in because this is something, I've looked at pretty closely. And I agree with part of what's been said here. But the telecommunications infrastructure business, like a lot of industries in the IT sector is very dependent on economies that scale and scope. And Huawei, if you go to Shenzhen, I have not visited Shenzhen and under current conditions probably won't, but what you'll find is a Huawei engineering facility --

 

Hon. Jeffrey S. Sutton:  -- Less frequently than the Chairman's dinner.

 

      [Laughter]

 

Dr. Jeffrey A. Eisenach:  I think I'd feel safer at the Chairman's dinner. Huawei has 35,000 engineers developing 5G technology, mobile wireless technology. The next largest group of engineers in the world is at Ericcson, with 3,500. So we have a real challenge, and ultimately, that's what -- when you hear about Huawei and the US and where should they be allowed to deploy.

 

The national security, the spying issue, is surely an important issue. But the larger question is whether we're going to wake up in a world five years from now, or eight years from now, or ten years from now, where there're two providers of really advanced 6G network architecture. And there's ZTE and Huawei. And maybe a third, Samsung. And Ericcson and Nokia not being in existence at all. So that is a real risk and for the United States. It is really an essential national security imperative to ensure that we have a 5G, and eventually a 6G, western innovation ecosystem, which is of scale and scope necessary to be successful and to keep us on the leading edge. Because it's not just an economic issue. This is the technology that's going to drive autonomous weapons, which will be the weapons that win the next war.

 

Hon. Jeffrey S. Sutton:  Over here on the right?

 

Alister Riviere:  Good afternoon, my name is Alister Riviere. I'm a 2L at Boston College. My question has to do with the recent decision in the Mozilla case. And I wanted to know if you had any thoughts about that, in particular, we're seeing political responses in California and Washington, where the state is trying to pass laws to prevent throttling and paid prioritization on the internet. Just wondering, how do we deal with that? What's going to be the outcome of that sort of fight between those states and the federal government?

 

Hon. Jeffrey S. Sutton:  Anyone want to take that? Go for it, go ahead Angie.

 

Angie Kronenberg:  Thank you so much for the question. I haven't really had an opportunity to talk about net neutrality and those of you in the room may know that INCOMPAS is a supporter of net neutrality policy and we were involved in the federal case as a petitioner that the D.C. Circuit just recently decided. And as you reference, the D.C. Circuit did look at the Commission's preemption of state policy on net neutrality and left open a really significant question, now, about states being able to enact their own legislation. The D.C. Circuit did say that they were going to look at -- that it would be appropriate for courts to look at it on a case by case basis and it appears that there are a number of states, now, that are looking at enacting their own net neutrality legislation. One would fully expect, then, that those individual cases would go through their own review process in the court system.

 

      One of the impacts, though, that we find encouraging about potentially having other policymakers look at this issue is that it may drive more of a conversation on the hill with respect to doing federal legislation. INCOMPAS has been very supportive of Congressional action that would enshrine the net neutrality protections in new federal law. And so we do think that, potentially, it could bring parties to the table to have more discussions about having federal law to finally settle the issue.

 

Hon. Jeffrey S. Sutton:  Anyone else want to talk about the federal/state side? I tried.

 

[Laughter]

 

      On the left.

 

Cecile Coors (sp):  Hi. Thank you very much for taking questions. My name is Cecile Coors. I'm an antitrust lawyer with TIG Advisors in New York. Can you tell me what the urgency is with clearing LBAND, given that CBAND is so close to coming to market? Can you talk about LBAND at all?

 

Hon. Jeffrey S. Sutton:  You want to try it, Giulia?

 

Dr. Jeffrey A. Eisenach:  I won't speak to the LBAND piece, but the CBAND piece, it's not at all clear how quick CBAND is coming to market, unfortunately.

 

Since we've talked about CBAND a couple of times, let me just step back for a second. CBAND is mid-band spectrum, which is between 3.7 and 4.2 gigahertz. That doesn't mean very much, except, that's kind of in the middle of the spectrum range. So very high spectrum, high-band spectrum is very short distance, extremely fast, low latency, when your watch is talking to your car, it's going to be over that kind of spectrum. Low-band spectrum is very good for coverage, wide areas, rural areas. Mid-band spectrum is that middle, not too hot, not too cold ground that allows you to, both, have very, very high capacity and reasonably wide areas.  A multi-band 5G build is one that will, both, have lots of coverage and lots of low latency and it requires all three of those types of spectrums.

 

The CBAND spectrum is spectrum that's currently used, as I mentioned, for transmitting television signals, mostly from base stations to television stations. There're 500 megahertz of it, which is a lot of spectrum. And at least 200 or 300 megahertz of that is being used inefficiently and could be transferred to 5G. It's important, both, because it's this not too hot, not too cold mid-band, very important for a multi-band buildout, but also because it's part of the international global standards for where 5G is getting built out. What's important about that is that this guy, the next generation of these guys, has got to have all three of those antennas built into them. It's got to have antennas built into it and electronics that allows it to talk to all of those different bandwidths. So very important to get that spectrum to market. So that's kind of the backstory on all this.

 

Now, the CBAND operators are two primary companies. SES and Intelsat, and they have this unique situation where they are jointly licensed on all 500 megahertz. So it’s not like I own -- Intelsat owns 200 megahertz and SES owns 300 megahertz and they could transfer their 200 megahertz or their 300 megahertz, they can move off of part of that and sell it to somebody. They have to do it jointly. So they formed an alliance about a year and a half, two years ago, saying we're going to jointly act together with our customers, who are all the TV stations and broadcasters, to clear out some of this spectrum and make it available to the mobile operators.

 

And for Verizon and AT&T, this is a big deal. And it's especially a big deal, so these things are interrelated. It turns out that the T-Mobile/Sprint merger, when it is consummated—could have been a year ago—when it is consummated will allow those two companies, they will have all three spectrum bands available and ready to build. And that's what they told the FCC in April 2018. We're ready to build a 5G network starting in the next six months, or so, multi-band network, if you'll just let us go forward and do it. And what happens with that? All of a sudden, Verizon and AT&T are in trouble because they don't have that spectrum. So going from a number three and a number four, barely surviving companies, to a new leader in the marketplace with 5G. But what would have happened then? AT&T and Verizon would have had to have the mid-band spectrum they needed, then, to be able to compete with this much more robust build coming from T-Mobile.

 

      That proposal came forward shortly after the CBAND proposal came forward, shortly after, and the proposal was, let us go sell the spectrum to the mobile broadband carriers, whoever wants it. The problem now is, that's gotten caught up in the usual process. And I'm not casting aspersions on anybody. The usual process is what it is. It's the reason, in my view, we should not have this much of the usual process. The presumption ought to be that if private actors want to engage in a private market transaction, where I take something I own and have a license to and transfer that to somebody else, that's a secondary market transaction that should have been permitted from the get-go. But the law and the jurisprudence make that very difficult today. That's why I couldn't resist getting in the bigger story on CBAND.

 

Cecile Coors: I appreciate that, but--

 

Dr. Jeffrey A. Eisenach:  I think it's a pretty interesting dynamic, really.

 

Cecile Coors:  Okay, thanks.

 

Hon. Jeffrey S. Sutton:  I was going to let Giulia respond, next.

 

Giulia McHenry:  First of all, do you want to repeat your question, because I think I remember what it was, but you just want to go ahead?

 

Dr. Jeffrey A. Eisenach:  I'm sorry. We have a few extra minutes, I thought I'd fill.

 

Cecile Coors:  Can you just talk about the urgency of clearing the LBAND? LBAND.

 

Giulia McHenry:  Everything Jeff said is almost right.

 

      [Laughter]

 

      I got to be honest, that was a long description, and very accurate, except that, in fact, the number of players, the number of satellite players is closer to seven than to two. So at the end, when he talks about a private transaction, in fact it's far more complicated than that because you have at least two, but probably more like three or four players on the carrier side looking to access the spectrum. And you have seven players on the other side. So we have collective action problem on one side, and a hold out problem on the other. So I think that's where the FCC is looking to figure out how to facilitate that in a legal way where everybody continues to have the rights that they need to continue their business plan, which is the real complication. But truly, he summarized it very nicely.

 

      Thinking about spectrum, more broadly, the growth, and where the United States is, in terms of wireless access now. The fact that we are even at 5G in the United States and globally, has a ton to do with the fact that for the last 20 or 30 years, the FCC has been finding ways to allow for private access to spectrum that enables wireless services. Through that time, the principle, since at least the ‘90s, the primary principle has been to put that spectrum into the hands of those who value it most under the argument that if you get it to the private actors that value it most, you will get the most economic value from it, and from there, the most consumer welfare value. So inherently, I think in terms of from a telecommunications standpoint, the competitiveness of the United States, economically and in a broader sense, globally, is inherent on our ability to continue to put as much spectrum as we humanly can to the highest value use.

 

      Right now, the priority is certainly, or one of our priorities, is certainly CBAND. I could bore you to death with many other, lots of the spectrum that we have already auctioned this year and are planning, in fact, to auction in the next year. And that's really fascinating to me. But I think somewhere after CBAND is LBAND because we want to ensure that we are constantly looking for every way to put as much spectrum as humanly possible to the highest valued use. Does that answer it?

 

[Crosstalk]

 

Hon. Jeffrey S. Sutton:  I'm going to let this question go, and then when we're done with that one, you can stay there, and I'll give you another shot. Go ahead.

 

Patrick Toth:  Thanks. Patrick Toth. I'm at Stanford Law School and Stanford Graduate School of Business. I want to ask a question that I asked Commissioner Rosenworcel to see how your answers differ, which is--

 

      [Laughter]

 

      Which is when the FCC reports broadband competition, it's typically reported as how many broadband providers are servicing a particular census block. Some academics think that this overstates the level of competition because if you serve one address in a census block, you're counted as serving the whole census block. This is not true, necessarily, in urban areas where a census block may include many multi-family buildings, or rural areas where the census block might just be geographically large. Does the FCC have any plans to get more granular in terms of reporting where broadband providers are actually serving? How do you think that these census block model can be improved to get a more accurate idea of what competition actually exists in the market? Thanks

 

Hon. Brendan Carr:  Well, the problem is actually even worse than what you stated, if you can believe it. To your point, right now the FCC has a process that has been in place for a long, long time. Which to your point is, we take a geographic area, whether it's a county or a census block, or census group, and your question said if one person is served in that census group, we consider everybody in that group to be served with high-speed broadband. Well, to my point, it's worse than that. If nobody in that census block has any high-speed internet service but some, one person could get service in that census block within a sufficiently quick period of time, then we color in the entire census block and call the entire census block served.

 

That's a process that commission after commission after commission has kept in place, has left in place because the original purpose for it was X, it was something else, and now we've come to rely on it very heavily for, in part, identifying where we should be sending these $10 billion worth of federal subsidies. So the map has to be right for all kinds of reasons. What we've done at this commission is we decided, we're not going to just put another ornament on the Christmas tree. We're going to scrap that approach, entirely. So we have launched a new process that is going to take an entirely different, what we call, more granular approach, to make sure we're only identifying those areas as served that are, in fact, served. Whether it's contour maps or other ways of doing it, we get the problem and we've committed to trying to fix that.

 

      Did that answer deviate, by the way, from the prior one you got?

 

Patrick Toth:  Slightly.

 

Hon. Brendan Carr:  Okay.

 

Hon. Jeffrey S. Sutton:  Two more questions, but if you could make them quick.

 

Cecile Coors:  No, this is really quick. It’s just a follow up to the last question and that was, the FCC can't move on LBAND sua sponte. I mean, it relayed the information over to IRAC, and now you're waiting to hear back from them. I-R-A-C.

 

Giulia McHenry:  Yeah, IRAC.

 

Cecile Coors:  Yeah. And you're waiting to hear back. And I'm just wondering how is that coalescing because I don’t know.

 

Hon. Brendan Carr:  I don't mean, to Jeff's point, it sounds like you have a strong interest in the LBAND and to prove Jeff wrong, I will not be captured. I'm not going to answer that.

 

      [Laughter]

 

      Fortunately, I have lived through many a spectrum debate where we were always told, this is a once in a generation opportunity. We have to do it. I've lived through a lot of generations of spectrum opportunities, thankfully. The approach we're taking is the right one, which is, we've talked about low-band, mid-band, high-band. Our approach is, we need to get as much spectrum across the board out there as quickly as we can and that's what we're committed to doing. And in terms of slotting one ahead of the other, there's all sorts of reasons for that, but at the end of the day, let's push it all out there.

 

Giulia McHenry:  And just to inform everybody else in the room what IRAC is and why it matters. The IRAC is the Intergovernmental Radio Advisory Council, which is an interagency group of federal spectrum users. And so everything that involves federal use spectrum has to involve the IRAC and you have get clearance from them. And that process has its own special way. I think there's enough, publicly, out there as to how that's going right now.

 

Hon. Jeffrey S. Sutton:  I thought it was Issue, Rule, Application.

 

[Crosstalk]

 

      [Laughter]

 

      I thought, what an advancement. We've got an agency that's helping these people write. This is wonderful. I'm so disappointed to hear the real answer.

 

Hon. Brendan Carr:  Don't get any ideas about another agency.

 

      [Laughter]

 

Hon. Jeffrey S. Sutton:  So last question.

 

Questioner 8:  Thank you Judge. Actually, it's something for you. I don’t think your question was well answered and I work in international broadband comparisons. But U.S. broadband market is about $300 billion. And annually, we're approaching about $90 billion in investment. That's 25 percent of the world's total. So it's pretty staggering, U.S. is 5 percent of the world's population, has 25 percent of the world's broadband investment. So in a big picture, it's great. But to not, before we congratulate ourselves on the back, you can look at the European Union, about 10 to 15 years ago, they were 1/3rd of the world's total. And they decided to go down this regulatory path, net neutrality, resistance to mergers, holding back, and today, Europe is about 10 percent of the world's total.

 

So, very quickly, it can go the other direction and China came from nowhere fast. So, presently we have about a quarter, 25 percent advantage on China's investment front, but they're closing that gap quickly. So I would just say, I think the panel would agree with this, but it took us 40 years to do the first spectrum auction after Ronald Coase proposed it. Many things in telecommunications have taken decades. We're seeing that now with the other spectrum bands, that parties want to come forward. Their technology is out of date. They want to trade it in and do something better, use the spectrum more efficiently. So I would say our FTC wants to catch up, they're not there yet. And I'm not sure how we square the circle, but in the past, we didn't have a competitor like China and today we do.

 

Hon. Jeffrey S. Sutton:  Well, I think you probably answered this already when you said mission is not yet accomplished. So I heard that. But great point.

 

      Thank you to this great panel, really appreciate your presentations, Commissioner, for being here. Thank you.

 

      [Applause]

 

           

 

 

 

           

 

     

 

12:00 p.m. - 2:15 p.m.
Friday General Luncheon

2019 National Lawyers Convention

The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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12:00 p.m. - 2:15 p.m.
Money and the Constitution

2019 National Lawyers Convention

Topics: Campaign Finance • Constitution • Financial Services • Financial Services & E-Commerce
Chinese Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Description

On November 15, 2019, the Federalist Society's Financial Services & E-Commerce Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel covered "Money and the Constitution".

Money. We all use it, for exchange, for store of value, for identifying prices, and many other purposes and exercises. In the United States, and under our Constitution, what is money, how is it created, what is its value, who gets to decide, and to whom are such decision makers accountable? Is it an instrument of freedom, or a tool of government policy to affect that freedom? These questions, which touch all of us, will be the topic of discussion of our panelists.

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Dr. Don Kohn, Robert V. Roosa Chair in International Economics, Senior Fellow, Economic Studies, The Brookings Institute 
  • Mr. Alex J. Pollock, Distinguished Senior Fellow, Finance, Insurance & Trade, R Street
  • Dr. Paul Sheard, Senior Fellow, Mossavar-Rahmani Center for Business and Government, Harvard Kennedy School
  • Prof. Richard E. Sylla, Professor Emeritus of Economics, New York University Stern School of Business
  • Moderator: Hon. Paul B. Matey, United States Court of Appeals, Third Circuit
  • Introduction: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Af, American Bankers Association

Speakers

Event Transcript

Wayne Abernathy:  Good afternoon. Thank you, ladies and gentlemen. We appreciate you being here for this session. We understand that you have many different choices. We appreciate you flying with this particular airline. Appreciate you being here.

 

      My name is Wayne Abernathy. I’m the Executive Vice President for Financial Institutions Policy and Regulatory Affairs at the American Bankers Association. For today, I’m honored to be the Chairman of the Executive Committee of the Financial Services & E-Commerce Practice Group at The Federalist Society, which is sponsoring this particular panel today, and we really appreciate you being here because, frankly, you do have many different choices.

 

      We presume that by being here, you’ll take the opportunity this next week to be able to view the various other sessions that are concurrently taking place. They’re all being recording, so you won’t be missing anything. You’re just getting this one live. Appreciate you being here.

 

      One thing about the practice group I want to mention, that do contact me or other members of The Federalist Society if you have an interest in participating, at some point, in the work of the Financial Services & E-Commerce Practice Group. We’d love to have you involved. That’s how we’re able to keep our thoughts and ideas fresh as well as meet the needs of members of the society.

 

      Our panel will be examining today something that should be very familiar to you: money, and more related to money. They will be considering the Constitution, the constitutional nest in which our money policies rest, including just what is money in the United States, how much there is, at what interest rates it is traded, and who gets to decide all of that, and how are they accountable?

 

      Our panel moderator today is the distinguished and honorable Paul Matey, a United States circuit judge for the United States Circuit Court of the Third Circuit Court of Appeals. Judge Matey will introduce the members of the panel. Please join me in welcoming our moderator, Judge Matey.

 

[Applause]

 

Hon. Paul B. Matey:  Thank you, Wayne. Well, Wayne, on behalf of the panel, thank you for that kind introduction, and I’m delighted to welcome everyone to this lunch and discussion.

 

      I’d like to start by perhaps setting the stage because a national crisis looms. Scarred by years of internal conflict and bitterly contested national elections, our public teeters on the verge of collapse. At stake, a fragile economy poised to expand further into the emerging international market, the independence of the judiciary against encroachments by the coordinate branches, and most ominously, calls to embrace the spirit and intent of the Constitution to fulfill new populist desires, all in sharp opposition to the barely questioned evidence of the Framer’s understanding of the limited and divided nature of the federal government.

 

      If it all sounds familiar, well, it should because it all happened in the tumultuous and consequential period between 1860 and 1872. And as our reconstructing republic sought to finance its newly forged national character, the Supreme Court began down a path of interpretation built on deference to an expanding federal government. But recall the text. Article I, Section 10 takes the states out of the money game, prohibiting them from issuing bills of credit or promissory notes and making new forms of legal tender. Article I, Section 8 puts Congress in charge of borrowing money, but it grants it only the power to coin money and regulate its value.

 

      So what about all that paper? It’s a question that Secretary of the Treasury Chase would ask, and that Chief Justice Chase would answer firmly, “Paper money is a power the Constitution does not provide.” So might a committed originalist then question this scarcely doubted textual foundation but running counter to the widespread and populist understanding of the Congress’s power, or did Judge Bork have it right when he said that any judge who thought that today ought to be accompanied by a guardian rather than sitting on a bench? Either way, the battle over greenbacks foreshadowed a willingness to find unenumerated powers.

 

      True, paralyzing debt was defeated, at least for a time. But at what cost to the philosophical grounding of a nation built, it was thought, on a system of finite and predictable laws? And what would Chase, the administrator of the nation’s treasurer, or Chase, the interpreter of its laws, say about money that is neither coin nor paper, but only a string of digital values purporting to represent trillions in wealth?

 

      We are fortunate to have four experienced voices to discuss these issues today, beginning with Mr. Alex Pollock, currently a Distinguished Senior Fellow at the R Street Institute in Washington. He was a Resident Fellow at the American Enterprise Institute from 2004 to 2015, the President and Chief Executive Officer of the Federal Home and Loan Bank of Chicago from 1991 to 2004. His many works include the books Boom and Bust and Finance and Philosophy.

 

      Dick Sylla joins us as well. He is a Professor Emeritus of Economics at New York University where for 25 years he served as the Henry Kaufman Professor of the History of Financial Institutions and Markets and a Professor of Economics. His specialty is United States financial history, with a long-standing interest in the Federalist Financial Revolution, implemented chiefly by Alexander Hamilton as our first Secretary of the Treasurer. And his works include the recent book Alexander Hamilton on Finance, Credit and Debt.

 

      Mr. Don Kohn is a 40-year veteran of the Federal Reserve, serving his last four years as the Chairman under Ben Bernanke during the financial crisis. He is currently the Robert V. Roosa Chair in International Economics at Brookings and a member of the Financial Policy Committee at the Bank of England, which is responsible for maintaining the financial stability of the United Kingdom.

 

      And, finally, Dr. Paul Sheard. Paul is a veteran central bank watcher, having been Chief Economist at Lehman Brothers, Nomura Securities, at S&P. He is currently Senior Fellow at the Center for Business and Government at the Harvard Kennedy School.

 

      We’ll hear from each today, beginning with Alex. And after what I am sure will be a lively exchange, we will turn to the audience for your questions. So with that, I turn it over to Alex.

 

Alex J. Pollock:  Thank you, Judge Matey, ladies and gentlemen. The question of money, which I try to say with a capital “M” is always political. What is the definition of money, what is its nature, how is it created, and how debts are settled are all debated over time. I recall how hot this debate can become. As William Jennings Bryan’s famous and burning rhetoric of 1896 had it, “You shall not press down upon the brow of labor this crown of thorns. You shall not crucify mankind upon a cross of gold,” as you remember, and he was addressing the definition of money in that speech.

 

      Turning to the Constitution, what it says about the definition of money is succinct as Judge Matey suggested. Article I, Section 8 gives an expressed power to coin money and regulate the value of, and as writers on the subject have pointed out innumerable times, “to coin” is obviously not the same as “to print.” So what about the national governments issuing irredeemable fiat paper money, the only kind we have today? The Constitution, as was said, expressly prohibits states from issuing such money, but is silent about the national government on this point.

 

      Looking at the history of the Constitutional Convention and its debates, the Founding Fathers were nearly unanimously opposed to paper money, as the notes of the debates and the federal convention made completely clear. In general, they shared the view later expressed by James Madison about “the rage for paper money or any other improper or wicked project,” like paper money. But they considered and refused to include a prohibition of federal paper money in the Constitution.

 

      In the debate, George Mason pointed out that, “Though he had a mortal hatred to paper money, yet he could not foresee all the emergencies of the future and was unwilling to tie the hands of the legislature.” The constitutional result was the expressed power to coin and silence on “to print.” Should we conclude there is an implied power for the government to print pure paper money, and even more, to make it legal tender for the settlement of debts, even if those debts have been contracted for and expressly required by contract payment, for example, in gold coin? A lot of supreme judicial ink would later be devoted to debating and ultimately deciding this question.

     

      Back to the Constitutional Convention for a moment: Gouverneur Morris, say the notes, recited the history of paper emissions and the perseverance of legislative assemblies in repeating them with all the distressing effects. He continued, “If a war was to break out with this prediction, if war was to break out, this ruinous expedient would again be resorted to.” And this prediction of a national paper money was fulfilled when the Civil War did break out, and the Lincoln administration soon turned to paper money to pay the huge costs of the Union Army.

 

      By 1861, faced with the staggering expenses of the war, Congress authorized the issuance of paper money, or greenbacks, as they were called. In 1862, they added the provision that these greenbacks were legal tender which must be accepted as all payments. Predictably, these greenbacks went to a large discount versus gold. And their exchange value fluctuated, as you would expect, with the military fortunes of the union.

 

      After the war, this expedient of paper, legal tender, resulted in a series of legal tender cases and Supreme Court judgments, in which first, making paper money a legal tender for debts previously contracted in gold was found to be unconstitutional in a 4-3 decision. Then, soon after, the Court reversed itself 5-4, declaring it was constitutional, after all. It was thought to be a scandal that two new justices had been added to make up the five majority. And the majority stressed, in this decision, that the nation had a sovereign right to preserve itself, and thus the government power in monetary affairs.

 

      Now, these opinions make very interesting reading, and I’m sorry we don’t have time for some good quotes from them. But about them, it was said, “Measured by the intensity of the public debate at the time, it is one of the leading constitutional controversies in American history that they’re now largely forgotten.” In one of these series of decisions, one later overruled, the Court wrote: “Expressed contracts to pay in coined dollars can only be satisfied by the payment of coined dollars, not by United States notes.”

 

      That this decision did not stand was handy for the United States government later in 1933 when the U.S. government defaulted on its expressed promise to pay U.S. Treasury gold bonds in gold coin and instead paid in paper money, exactly the reverse of the previous Supreme Court dictum. This action in 1935, the Supreme Court upheld by 5-4, although no one doubted the clarity of the promise that was broken. Among the majority’s key arguments was the sovereign right of the government to default if it wanted to, and the sovereign right to regulate money.

 

      Well, what about today? As we all know, we have a pure fiat money system of the paper Federal Reserve Notes in your wallet and mere bookkeeping entries on the books of the Fed, which are at the center of the banking and financial system. This pure paper currency, the Federal Reserve, on its own, has committed to depreciate by two percent a year forever. This is in spite of the fact that the Federal Reserve Act instructs the Fed to pursue “stable prices.” By promising perpetual two percent inflation, the Fed promises to make average prices quintuple in a normal lifetime. That’s just the math of compound interest, but it’s staggering.

 

      I’d like to point out that the Fed made this momentous, inherently political decision about the nature of money on its own, without the consent of Congress. It didn’t even ask Congress for an opinion on this policy, let alone for approval. And I want to ask—and I think it’s a great panel to ask it on—where under the Constitution did the Fed get the right to proceed in this matter without Congress? And that the Fed presumed to do this on its own authority was quite a remarkable act by what we know as the administrative state. And with all due respect to the Fed and my honor to colleague Don Kohn on this panel, I think one could argue that this action by the Federal Reserve, was an unconstitutional violation of Article I, Section 8 in the express power of the Congress to regulate the value of money. Well, unfortunately, we have no lawsuits about it, so we can only observe it.

 

      In conclusion, as one close student of the legal tender cases of the 1860s and 1870s concluded, he said, “There remains the intriguing question of the constitutional basis for today’s legal tender paper fiat money.” There remains the constitutional question, indeed there does, but the political basis rules, and life goes on. Thank you.

 

[Applause]

 

Prof. Richard E. Sylla:  I suppose I should feel a bit uncomfortable here because I think I’m in a room with a whole lot of lawyers and very few economists. In my teaching career at NYU, it was just the opposite. I had 25 or 30 economists and MBA students in my class, but I also had a few lawyers wandering over from the NYU law school, and I developed an admiration for them because in my course, called The Development of Financial Institutions in Markets—so it was about the history of finance—I would at some point read them a statement from a letter that Alexander Hamilton wrote to James Duane in September 1780. Hamilton, then, was a lieutenant colonel in the Continental Army. James Duane, I think, was a member of the Congress.

 

      And what Hamilton said in this letter is that “Congress should have complete sovereignty in all that relates to war, peace, trade, finance, and to the management of foreign affairs, the right of declaring war, of raising armies, officering, paying them, directing their motions in every respect, of equipping fleets, and doing the same with them, of building fortifications, arsenals, magazines, etc., etc.; of making peace on such conditions as they think proper”—remember, this is all what Congress should have the power to do—"regulating trade, determining with what countries it should be carried on, granting indulgences, laying prohibitions in all the articles of export and import, imposing duties, granting bounties, and premiums for the raising, exporting, importing, and applying to their own use the product of these duties, only giving credit to the states on whom they are raised in the general account of revenues and expenses, instituting admiralty courts, etc.; of coining money, establishing banks on such terms and with such privileges as they think proper, appropriating funds, and doing whatever else relates to the operations of finance, transacting everything with foreign nations, making alliances, offences, defenses, treaties of commerce, etc., etc.”

 

      And so, then, the question I would ask the students in this group of mostly economists and MBA students, but with a few lawyers, I’d say, “Did you ever encounter those similar lists of things that you’ve heard of before?” And the MBAs and the economists would look stony, like “I hope he doesn’t call on me.” And the lawyers would raise their hands, and they would say, “Yes. That has certain parallels with Article I, Section 8 of the U.S. Constitution,” which was written sever years later. And, if you know the history of this era, Hamilton was, of course, a spearhead of the movement for the Constitution. So that passage of his letter of 1780 and Article I, Section 8 of the Constitution have an eerie parallel. Well, he did say that Congress should have the power to coin money, and he mentioned banks too, but the Constitution doesn’t have the word banks in it, which has been a product of certain controversies in U.S. history.

 

      There are basically three monetary clauses in the Constitution. And as Bray Hammond, in a famous book of 70 years ago called Banks and Politics in America, pointed out, the monetary clauses have one authorization and four prohibitions. And the authorization, as Alex has already mentioned, Article I, Section 8 says, “Congress has the power to coin money, regulate the value thereof in a foreign coin, and fix the standard of weights and measures.” The prohibitions come in Article I, Section 10, where it says, “No State shall… coin Money; emit Bills of Credit;”—meaning paper money—"make any Thing but gold and silver Coin a Tender in Payment of Debts; and no State shall pass any Law impairing the Obligation of Contracts.” So those are the monetary clauses. There are not very many words to them, but those are the monetary clauses.

 

      And as Alex noted, the federal government has the power to regulate money, but the states could not print paper money. But it said nothing. The great silences are the state shall not print paper money, but it doesn’t say what the federal government might do. And with respect to legal tender and contractual obligations, the states are forbidden to interfere with either of those, but nothing is said about what the federal government might do. These are these kind of interesting silences. And Alex noted that all this was discussed in the Convention. And the records of the Constitutional Convention show, under the Articles of Confederation, the national government did have the power to print paper money.

 

      And so this was debated, and should they put this same power from the Articles into the federal Constitution. And they voted by states then, and it was defeated by a vote of 9-2 to give the national government the power to print paper money. But the delegates were strongly against an explicit authorization of Congress to issue paper money. They didn’t say, though, that they couldn’t. That’s the interesting thing about the Constitution. And I think the -- so it’s kind of restrictive on states but doesn’t really say much about what the federal government can do. And a lot of these later legal cases, some of which Alex referred to, were partly because of the silence of the Constitution.

 

      Now, why did the states go along with this? Well, it turns out that while the states could not print paper money, as they had been doing earlier, they could charter banks. And the Constitution doesn’t mention banks, and Hamilton argued that we should have a national bank, and he won that argument in the year 1791 Congress. But the states, who might’ve been inconvenienced by not being able to issue paper money, found that not only could they charter banks, but they could take ownership stakes in them. So the state bank money replaced the paper money that the states themselves used to issue.

 

      Now, the background to this, I think, is that they had some bad experiences. The Constitution’s written just a decade earlier. You’re in the middle of the American Revolution, and Congress is issuing paper money called Continentals. It basically becomes worthless because Congress issues, and overissues it, and so that was a bad experience they had. And then in the 1780s, before the Constitution, the states continued to issue paper money, and there were some egregious cases. One was Rhode Island, which wasn’t at the Constitutional Convention because they didn’t even send delegates, I think, and they were the last state to ratify the Constitution. And Rhode Island, a sort of agrarian farmer faction, took over the state government and proceeded to issue a lot of paper money and pay off all their debts to the bondholders in depreciated paper money.

 

      And this is -- Alex quoted James Madison as talking about this being wicked. This was some wicked thing. You had to prevent it. So I think the reason the Constitution has these prohibitions is that they had very bad experiences with paper money, and they wanted to make sure that didn’t happen again. But there is the strange silence. Well, the states couldn’t do these things. Nothing is said about whether the federal government can do that. And I think that’s an interesting aspect of the Constitution.

 

      The states aren’t supposed to interfere with the application of contracts, but they’re just -- it doesn’t say the federal government can’t do it. So, in some sense, when Alex talks about the 1930s and the abrogation of the Gold Clauses, in some sense, that might’ve been allowed under the Constitution. At least, that’s what, I guess, the people who were for it claimed, that they had a constitutional basis for doing that. So, anyway, I think if you study the history of that period in the early days, they had a real reason to be suspicious of paper money, but they were not willing to go far enough to say the federal government could never do that.

 

      Hamilton in 1791 in his report on the banks said the Constitution wisely prohibits the states from printing paper money, and the federal government might take it -- it doesn’t say the federal government can’t, but Hamilton thought it might be a good idea for the federal government to adopt the same policy of not printing paper money. But I think later on, he may have changed his mind when he thought the country didn’t have enough money.

 

      0But, anyway, there is a -- the Constitution is the words on paper, and we live by them today, but they were particularly directed at problems of that time. I think that’s -- originalism ought to always look at what were the things that the people who wrote the Constitution were reacting to, and one was this fear of paper money. Thank you.

 

[Applause]

 

Dr. Don Kohn:  Thank you. I appreciate the opportunity to be on this panel with terrific historians, and colleagues, and economics, and law. I am not a lawyer, or a constitutional scholar, or even an historian. I’m a central banker, as Paul noted, and I’ll reflect -- I want to spend a few minutes reflecting on the position of the Federal Reserve in the government. So reflecting on independence from short-term political pressure and the accountability that comes with that independence.

 

      So I think it’s interesting that from the get-go, from 1913, Congress limited its influence on the Federal Reserve. It made fixed terms. I think there were 10-year terms for board members in the 1913 Act, and, of course, it created the Federal Reserve Banks, which were privately owned and had private boards of directors who selected the presidents of those reserve banks. Of course, there was no real monetary policy and any -- there was seasonal fluctuations in currency and in interest rates that Congress was focused on. The first clause of the preamble is to create an elastic currency to deal with that. But there was no real monetary policy because we were on the gold standard at the time.

 

      By 1935, as we’ve heard, after 1933, there was monetary policy, or there was room for monetary policy, and there were some important amendments to the Federal Reserve Act in 1935. But I think, interestingly, those amendments, more on balance, strengthened the independence of the Federal Reserve from the short-term political pressures. So it removed the controller of the currency and the secretary of the treasury from the board of governors. So the two people from the administration that had been sitting on the board were removed from the administration. It lengthened board member’s terms from 12 to 14 years. It kept the budgetary independence of the Federal Reserve through the seigniorage that the Fed does through its Federal Reserve notes, so not subject to congressional oversight. Congress didn’t do anything with that.

 

      It did establish the board as a dominant influence on a revamped Federal Open Market Committee dominating the presidents, so giving it more democratic input from that perspective, since the President would appoint the majority of the FOMC, subject to senate confirmation. Actually, there hasn’t been a majority of the FOMC from the board of governors in many years, but it’s there in theory. But they’re still fixed terms for the members of the board.

 

      By the mid-1970s, Congress was, for very good reason, quite dissatisfied with the performance of the Federal Reserve, so it took a number of steps. Number one, it made the targets more explicit for what monetary policy was supposed to do; still kind of vague. And Alex referred to this, and we come back, perhaps, in the discussion the goals of our maximum employment stable prices and moderate long-term interest rates for monetary policy, but, at least, there’s something established by Congress. There was nothing there before.

 

      It increased transparency and accountability for the Federal Reserve by mandating monetary money supply targets that the Fed choose and publish money supply targets based on economic forecast that the Fed made public. How did it choose these targets that needed to justify them with its forecast for the economy and inflation? And it established semi-annual monetary policy reports and testimony by the Chair of the Federal Reserve on those reports. So it regularized a process of oversight through Congress, both the senate and the house.

 

      Notably, it did not reduce the ability of policymakers to set monetary policy instruments free of short-term political influence. It authorized GAO. At that point, I think it was called General Accountability Office audits, but not specifically exempted monetary policy from those audits, so it gave monetary policy more of an arms-length relationship to the Congress than other forms of Federal Reserve Policy. And I think this is important to bear in mind, the independence -- the Fed is bifurcated. It’s much stronger for monetary policy than it is for regulatory policy, and that’s fine.

 

      There have been lots of discussions since the mid and late ‘70s about potential legislation which would affect the independence of the Federal Reserve. There were some in the Reagan administration where they were unhappy with the Volcker disinflation. There were some from -- the Democrats, in the ‘90s, talked about removing the presidents from the voting on the FOMC because they weren’t appointed by the President and confirmed by the Senate. The Republicans in Congress, in 2010 to 2016, had this Audit the Fed bill, which was going to take away that GAO exemption that I talked about for monetary policy. And they were trying to put into law a rule to make monetary policy perform by a rule, and they favored a particular rule in that regard. But in the end, there were no changes. So we are left where we were, really, in 1977, 1978.

 

      So why did Congress tie its hands in this way? The traditional view is that Congress recognized that they really couldn’t be trusted to run monetary policy for the common good. A short-term focus of people running for office interacting with a tendency for easy monetary policy to affect growth first and inflation later would give rise to an inflationary bias in monetary policy run by elected politicians. And we’ve seen this in a number of countries and across time in that when politicians do have their hands on the levers, it tends to produce more inflation.

 

      The politicians should set goals, appoint knowledgeable technicians, hold the technicians accountable for landing the plane but keep their hands off the landing controls if they really wanted the plane to land. From the perspective of the late 1970s, when the last major reform was done, you could see why this concern about meddling by politicians was relevant. Lyndon Johnson famously leaned all over Bill Martin to ease monetary policy, or not to tighten monetary policy, as inflation was getting going. And Richard Nixon leaned all over Arthur Burns to keep policy easy, especially in election years. And that combined -- unfortunately, Martin, and especially Burns, were not sufficiently resistant to this kind of pressure, and that was one underlying cause of the inflation of the 1970s.

 

      I think this predilection for easy monetary policy, leading up to elections, we can see in the Twitter account of our current President. And this will lead to -- any erosion of independence will lead to stop-go policies, as we’ve seen recently, and procyclical policies, stepping on the gas when the economy’s already doing well, as we’ve seen recently for fiscal policy. But do the arguments for independence hold even when we’re in a disinflationary world? No one’s really worried too much about inflation reasonably. And I think they still do, and I would give two reasons. One is inflation. Maybe I lived through the 1970s and the Federal Reserve, and that’s in my DNA, but I can’t believe that inflation will be dead forever and that there isn’t some irresponsible monetary policy that could get it going again.

 

      Secondly, I think there’s the issue of expertise. So monetary policy is hard and technical. We need to utilize all available evidence and good analysis to achieve good public policy outcomes. Congress recognized they’re not capable of having that technical expertise, so they appoint technicians and then hold them accountable for the outcomes. What does the Fed need to do to preserve the current level of independence against attacks that are occurring? One is produce good results. Examples of, I think, pressures on Fed independence, after the global financial crisis and the sluggish recovery from that crisis, that’s what give rise -- to some extent, that’s what gave rise to the attempts to roll back or limit independence in the Congress of the 2010 to 2016 year. I think there are other reasons, but that’s one of them.

 

      So I think it’s not always under the Federal Reserve’s control, the outcomes. The trade war effects on business uncertainty and capital spending are a great example right now. But they’ve got to do the best they can. I think the Fed -- second point is the Fed always has to focus on achieving its legislative mandates as expeditiously and quickly as possible without regard to what party is in power anywhere. They’ve got to stay focused and non-political. It’s absolutely critical. It’s something that Chair Powell has emphasized in response to the current tax.

 

      And thirdly, I think they’ve got to be as transparent as possible with achieving these mandates. They’ve got to explain themselves, as well as possible, in terms of how their actions will foster the mandates, the goals that Congress has set for them. They’ve got to engage with responsible critics and alter their behavior where that can be demonstrated to achieve goals. And I think if they follow those guidelines, their independence can be preserved. Thank you.

 

[Applause]

 

Dr. Paul Sheard:  My wife and I became naturalized U.S. citizens in January of this year, so to be invited to a panel on money and the Constitution at The Federalist Society makes me feel that the invisible hand is at work in some shape or form. Like many of the other panelists, I’m an economist not a lawyer. Although, I do have my copy of the Constitution handy here. But I’m going to reach for something else in a moment.

 

      But what I’d like to do is dig a little bit deeper, as an economist, into this issue of how money is created and what are some of the implications of that. So I will reach for the $20 bill in my pocket and start here with this paper money that has been referenced, and, of course, I hardly need to remind this audience that this must be the most ironically designed bank note in the world, adorned as it is by Andrew Jackson’s face.

 

      But it’s a very interesting thing, a dollar note. It is, of course, a Federal Reserve note, but the Federal Reserve Act makes clear that this is an obligation of the U.S. government. And Don has already referred to the fact that the Federal Reserve itself considers itself to be not independent of the government but independent within the government. But, interestingly, the Federal Reserve notes are not signed by the Chairman of the Board of the Federal Reserve but rather by the Secretary of the Treasury, and another treasury official, the U.S. Treasurer. Easy to confuse those two, but they’re separate.

 

      This money, of course, this paper money, is only a small fraction of the money, again, that’s been referred to already. It’s about, I think, about 10 percent or so of the money supply, maybe about 8 percent relative to nominal GDP. So it’s a relatively small $1.6 or $1.7 trillion of this stuff, relative to a $20-trillion, $21-, $22-trillion economy. But already, from that brief description of what a Federal Reserve note looks like, you get one of my major points that money is very much a joint product of the government that we normally consider and the Federal Reserve, although they’ve been somewhat separated over time.

 

      The interesting thing though is to think about where this dollar bill came from. Now, I got it from somebody else, but, ultimately, to come into circulation, it had to be taken out of a bank. And that’s a very – I guess, everyone does this. But, when you think about it, it’s a very interesting thing that happens then because when you take that $20 note out of the bank or out of the ATM, out of the bank account, it’s turning from a debt of a private bank into a debt obligation of the federal government.

 

      And, of course, behind that is the fact that when you take that $20 bill out of the bank, out of the ATM, the bank is taking $20 out of its reserve account at the Federal Reserve. And that $20 reserve now turns into a $20 bank note, so there’s a shift in the liability composition of the central bank’s balance sheet as money turns from a private bank liability into a federal government liability. Quite a fascinating little plumbing there.

 

      That sort of joining at the hip, if you like, of the fiscal and the monetary is seen in the banking system, all three operating together to produce funny stuff called money. I think you see more clearly when we ask the next question. Well, if that $20 note came out of a bank account, a deposit in the bank, where did that bank deposit come from? So where does that fundamental money actually come from? And I would identify three places, and I’ll list them in order of importance, my sense of what the importance is.

 

      The first one, again, has been briefly mentioned by Professor Sylla, which is a large chunk of money, of course, comes into existence when banks engage in lending, credit creation. The act of lending is the act of a bank creating money supply, as we call it, M2 or M1; that is, bank deposits. So that’s the banking system itself, not mentioned in the Constitution, is really very front and central in money creation. The second place that money comes from, although we’re not always used to thinking about it in these terms, is when a government runs a budget deficit. The federal government, or any government, running a budget deficit is an act of injecting more purchasing power into the economy through its spending than it simultaneously withdraws through its taxation.

 

      Now, typically, the way these things work in the modern architecture of a monetary and fiscal system is that the government sterilizes or changes the form, changes the nature of that purchasing power, that net purchasing power, which I’m implicitly defining as money, by issuing government debt securities, and now that purchasing power resides in that form. But when the federal government and the U.S. has got about a stock of debt of about $20 trillion, that’s an awful lot of purchasing power that has been created through the government running budget deficits. So, again, you see that key point of fiscal and monetary policy being very much joined at the hip. I’ll develop that theme as I go along.

 

      And the third place that money comes from—you may be wondering where the central banks fit into this—is the central bank purchasing assets, usually those government debt securities that they have been created in order to absorb or sterilize the budget deficits from the non-banking system public, so think of households, hedge funds, mutual funds, corporations, whoever happens to be holding those debt securities. Central bank, through so-called open-market operations, buys those things, turns them into bank deposits and reserves in the banking system. But I put that third because quantitatively, even though this is the model that we learn in the textbooks, and that the central bank controls the money supply, and that’s monetary policy, quantitatively is a relatively small part of the overall monetary action. It’s certainly dwarfed by bank credit creation and government debt issuance.

 

      So pre-crisis, for example, the Federal Reserve’s balance sheet was about $900 billion. It’s now $4 trillion, but even $4 trillion is not all that big in terms of the whole monetary scheme. So, again, we see this point: banking system and the government very much jointly engaged in money creation, and also, therefore, jointly engaged, if you like, in the transmission of what we call monetary and fiscal policy, the macroeconomic policy levers that are so important.

 

      So with that somewhat analytical perspective on the plumbing of the monetary and fiscal system, let me just turn briefly in my conclusion of my introductory remarks to two contemporary policy issues. I’ve been in the markets for the best part of the last quarter of a century, a lot of central bank watching, interaction with clients. So what are policymakers thinking about now, and what are the market debates? Well, one big issue, in the last 10 years, is a so-called quantitative easing, which the Fed has ceased, although it’s started up under a -- well, debatable. It started to expand its balance sheet again since October 11, around about $60 billion per month for a while.

 

      But the Fed’s balance sheet, after all that QE that it did after the big crisis -- and by the way, I’m kind of big fan of QE. I’m not here to criticize QE, but I want to point something out about it that’s interesting. Its balance sheet is now $4 trillion. Without that QE, it would probably, on my estimation, be around about $2 trillion if hadn’t engaged in QE. So it’s already bloated by the stock of past quantitative easing. But what is QE? Of course, the Federal Reserve called it LSAPs. I have to say, Don, I never liked that term. QE rolls off the tongue a little bit easier than large scale asset purchases.

 

      But quantitative easing—let me just say this slowly—I think to understand what it is, inasmuch as it involves the purchase of government debt securities, or securities like MBS, they’re guaranteed by the government. It is a debt refinancing operation of the consolidated government, the consolidated government being the government and the central bank, with a twist. But the debt refinancing is done via the central bank going into the market and purchasing and retiring government debt securities, those things that were created to absorb the money that was created by budget deficits in the first place, retiring those and refinancing them, dollar for dollar, into central bank money or central bank reserves.

 

      So viewed from that perspective -- most people don’t talk about it this way. But if you think of the consolidated balance sheet of the U.S. government, quantitative easing is just, if you like, a switching around of the form of the liabilities. But I would regard all of those liabilities as in some sense being money or purchasing power that’s created by the government, one way or another. When you think about quantitative easing this way, it clearly blurs the lines. You can see that the lines between what we think of as monetary policy and fiscal policy are blurred. This being a debt refinancing operation sounds a little bit more like something you’d expect the treasury to do, as very much revolving around the amount of government debt that sits in private sector hands.

 

      But I would point out that I don’t see that as necessarily a problem because I don’t think actually the lines between fiscal and monetary affairs and things are as bright as they are drawn in contemporary policy discussions. And I suspect, although I’m no expert on this, that that monetary fiscal distinction is pretty blurred, if it’s there at all, in the Constitution, but I’ll let others be the judge of that. And QE is still alive and well, and we may see more of it coming. Certainly, the Bank of Japan, the ECB are still doing big QE. The Fed has started up the engine a little bit under a different kind of guise, but balance sheets are expanding.

 

      The second big debate, which is gripping people in the markets in the policy world at the moment, is this concern about whether policymakers will have enough ammunition in the next downturn when it comes. Hopefully, it won’t come, but everybody says, “Well, eventually you do get these recessions.” So, even in the U.S., for example, obviously, the debt levels have blown out over the last 10 years. Debt to GDP ratio is around about 100 percent now. I don’t think that’s such a big problem, but most people do.

 

      The Fed, as I said, has already got an expanded balance sheet to begin with. It’s now cut its interest rate three times to just 150 to 175 basis points. Typically, the Fed, to deal with a recession in the postwar period, has needed and used about 500 basis points of interest rate ammunition. So if a big shock at the economy right now, it would only have about 150, 175 basis points of interest rate ammunition. And, if you look at the rest of the world, I mentioned the Eurozone, Japan, etc., those metrics look much worse. You’ve got negative interest rates in those areas and much more QE having taken place.

 

      There’s a lot of talk in the markets about secular stagnation. It’s a funny word. Basically, it’s low R-star. There’s probably only half a dozen people understand that. But, sorry, what that  means is this idea that economists have come onto that the natural rate of interest, or the real equilibrium rate of interest, which happens to be a very important invisible variable for central bankers, to where the real rate of interest would be when the economy is where the Fed and the government wants it to be, full employment, low stable inflation, is very, very low, close to zero, or maybe half a percent max, maybe one percent. And what do you do, how do you manage the economy with money, with monetary and fiscal policy, in such a world?

 

      So the thought I’d like to leave you with is that my view, having looked at the development of these issues over the last couple of decades, starting in Japan, where they really came onto the radar screen first, is that it is time to rethink the standard macroeconomic policy model. Don talked about this a little bit from the monetary policy perspective, but what if monetary policy alone is just not enough firepower to deal with the next recession? Then you do need to think about monetary and fiscal policy coming together, coordinating, cooperating, maybe acting more jointly. Goes against the grain a little bit of this idea of central bank independence, but it may be something that we need to think about structuring a framework that actually allows that to happen. And I think that that may be the legal scholars, if we go in that direction, will turn to the Constitution for some guidance, but we economists have got a few ideas.

 

      I’ll just leave it there for the moment. Thank you very much.

 

[Applause]

 

Hon. Paul B. Matey:  Well, I want to thank everyone for those introductory remarks, and I’m going to turn this over to discussion of the panel in a just moment. When I was asked to moderate this discussion on money and the Constitution, I thought, “Well, that’s interesting. I know nothing about money, other than I don’t make as much of it now as I am a judge.” But I thought, “Well, there must be something that is significant here.” And, when you dive into the rich history that the panel has begun to explore today, you begin to see a story of policy, governance, and philosophical foundational principles that’s really unmatched in American history.

 

      If you think about it for a moment, Lincoln needs to finance the debt coming out of the war, so he goes to Salmon Chase, the Secretary of the Treasury, and says, “We’re going to print money.” Salmon Chase says, “Well, I don’t see anything in the Constitution that allows us to do that.” Lincoln writes back an extraordinary note saying, “Not to worry. I have the Constitution right here, and I’m keeping it safe and sound.”

 

[Laughter]

 

      So Chase relents. Except Lincoln then puts him on the Supreme Court, where Chase says, “No. I’ve rethought it, and, in fact, it’s unconstitutional.” And then Grant comes into office, and he puts in two new justices who, one year later, overturn that decision, leading to the creation of an entire administrative state. Can you imagine how this would play out in the media today? It is an extraordinary story of developing government powers in response to a crisis in a way that defied popular notions of what this new federal government should be.

 

      So with that, I think, I’ll start with Alex by asking how would you perhaps translate into modern language this concept of paper money being wicked, this prevalent concept that was around at the framing? And what might current commentators say about that notion to that?

 

Alex J. Pollock:  I think current commentators would -- all of us, even supporters of pure fiat systems run by governments, as Paul rightly said, some combination of government and central bank, it’s really a highly related entity. All would agree that the paper money out of control, as has happened often in history, and, as Don said, it happened here in the 1970s. We had paper money out of control with terrible results for the people. And, in fact, that out-of-control paper money of the ‘70s created, in my judgement, the amazing financial crisis of the 1980s, which, although we don’t perhaps remember them as well as we should, the ‘80s had a whole series of intense financial collapses really coming out of the paper money experience.

 

      And we all know of -- there have been a lot of hyper inflations in history and now, like Venezuela, Argentina, Zimbabwe, as famous. I have a little joke, which is what people call modern monetary theory, which is unbridled printing of money, is really not MMT. It’s really ZMT, namely Zimbabwe monetary theory. And I think everybody would agree that that’s bad and that you can’t have a situation where you get out-of-control money creation. We say printing, but of course most of it is bookkeeping, not printing, but out-of-control money creation.

 

      So now, the discussion becomes, well, in that case, how do you control it? The members of the Constitutional Convention, almost all of them—not all of them, but almost all of them—thought you controlled it by defining money as gold and silver coinage, hence the constitutional expressed power to coin money, regulate the value thereof. Regulate the value meant define how many ounces of gold or silver would be legally a dollar, and then how that weight of coin related to foreign coins.

 

      Modern thoughts of regulating the value thereof, of course, have come a long way from there. And when the Supreme Court, in 1935, in these really fastening Gold Clause Cases -- if you don’t know them, may I recommend for any good lawyer as spare time great reading, those Gold Clause Cases are really fun, 5-4. By then, regulate the value meant something completely different from what was in the Constitution.

 

      So would you want a gold coin standard? My answer is no, as almost all economists agree with that and, certainly, almost all central bankers who manage fiat currencies agree with it. But how, at the same time, do you avoid the runaway inflation that everybody agrees is wicked and terrible, just like Madison said and just like they experienced in the runaway inflations during the Revolutionary War, and many societies since have experienced? Now, how do you put a constitutional structure around controlling this money, which I believe is fundamentally a political -- it’s a political and political philosophical issue.

 

      And that’s where I may differ from some of the other panelists. I believe that the Congress, exactly as envisioned in the Constitution, should be much more active, should make itself -- Don mentioned maybe it doesn’t know enough, but I believe the Congress has the responsibility to make itself expert in these matters and be more involved, which actually was the idea behind the 1977 Federal Reserve Reform Acts, which were Democratic party bills enacted in democratic congresses to try to make the Congress more involved in central banking. I’m sorry for the rambling answer there, Judge, but it’s -- the wicked potentiality is clear, and how do you control it well is not so clear.

 

Hon. Paul B. Matey:  Responses?

 

Prof. Richard E. Sylla:  Well, I would just say that I agree that there are people around who think we should go back on the gold standard, but the gold standard is a very expensive form of money. Keynes made fun of it the sense that people work very hard digging down in the ground, and digging up the gold and ore, and then spending a lot of money to refine it into pure gold and make it into gold bricks, which are then taken to Fort Knox and buried in the ground. The point is that if somebody came in from Mars, they would think people were crazy on this planet Earth for doing that.

 

      And another great thinker, as I’m mentioning people like Keynes, John Law, who was a Scottish guy who tried to reform the finances of France back in 1720, he said, “It’s crazy to base money on gold and silver,” for probably the same reasons Keynes said. And so he was for paper money. He issued too much of the paper money, and the whole thing blew up on him in the Mississippi bubble of 1720 and the related South Sea bubble in England.

 

      But I think the great issue is, could we have some sort of -- right now, the Federal Reserve’s a creature of the Congress, and it has certain things to do. And Don mentioned that it has mandates, and they should focus on their mandates, one of which is stable value of money. But we also know that we’ve had periods like the 1970s when the value of money wasn’t stable.

 

      But what can we do to constitutionalize price stability or something? How can we do that? The people who want us to go back on gold think that’ll guarantee it. They’re right. The country was on gold standard from the 1790s, actually, to the 1930s, but let’s say World War I,  during that period, the price level didn’t change long-term in the U.S. So the price index, it’d show the prices weren’t too different in 1815 than they were in 1914.

 

      0The 20th century, basically, it’s a three-percent inflation century. A lot of that came with higher inflation during wartimes in the 1970s. But one of the raps on the Federal Reserve is that it came in in 1914, and since then, we’ve had a much higher rate of inflation than we did in the first century of our history. I don’t think we can blame the Fed for that. The Fed didn’t cause World War I or World War II. The Fed was implicated in the 1970s --

 

Alex J. Pollock:  -- But they financed both of them.

 

Prof. Richard E. Sylla:  Yeah. But I do think that there’s that chance that we’ll have inflation again. I’m glad that Don Kohn said this. He saw we had it once, and there’s a chance we’ll have it again. But can we do anything to make it less likely that we have runaway inflation again?

 

Dr. Don Kohn:  So I think I agree with Alex’s point that 1977 was about Congress involving itself more in the Fed’s business by setting goals and holding hearings. I think what they did was they established this stable price goal for the Federal Reserve in order to avoid that happening again, but it’s up to Congress to hold the Fed accountable to that goal.

 

      And I would say, I sat behind Alan Greenspan as a staff member through 15 years of congressional hearings, and I’ve been up there myself, and look at Wayne -- I don't know. I think Congress does a terrible job of holding the Federal Reserve accountable for its monetary policy. They don’t ask --

 

Alex J. Pollock:  -- Could I jump in and say I fully agree with that.

 

[Laughter]

 

Dr. Don Kohn:  They don’t ask good questions. They don’t know what they’re talking about, most of them, most of the time. Phil Graham was an exception. Barney Frank was an exception, so both sides. But they can’t ask followup questions, and they use those appearances by the chairman to score political points on the other party, 95 percent of the time unrelated—and this is true of both parties; this is a bipartisan, nonpartisan critique that’s at most times—unrelated to monetary policy. Often, fiscal policy gets in there, but -- so I think they could do a much better job.

 

      And I would say I have experience now in Parliament in the U.K., and those guys do a much better job of asking. I testified on financial stability. I’ve actually read our reports. They can ask a followup question. I don’t know why the difference is, but it’s a much better hearing.

 

      Can I take the opportunity to respond a little bit to Alex on the two percent, because this comes back to Congress? So Alex said, “The Fed adopted this two percent target.” That’s not really price stability. Prices double every 35 years, or whatever, 36 years. I think a couple of points here. One is that Ben Bernanke did consult with Congress and talks about going up and talking to both the Senate in the House, and both parties in the Senate in the House, and tell them what the Fed was going to do.

 

      I think it would’ve been a great idea for one of those chambers to hold hearings and talk about this, but they didn’t. They had an opportunity. They knew it was coming. There’s been no pushback whatsoever on that. And in fact, the Republican bills to embody monetary rules are based on a Taylor rule which starts at two percent inflation as the goal for the Federal Reserve. So the Republicans in the House of Financial Services Committee themselves are trying to write bills that embody the two percent inflation.

 

      I think one way of thinking about this is the dual mandate, the inflation plus full employment mandate, and it goes to Paul’s point about ammunition. How much ammunition you have is based on the real interest rate plus the inflation expectations on top of it. And when real interest rates are very low, if you don’t have any inflation expectations, you’ll have even less ammunition. So the two percent target is an attempt to reconcile to find the optimum combination of targets that will help them fulfill their legislative mandate.

 

      There’s a lot of dispute about that, and a number of academics think it should be higher because of the ammunition problem. But I think that’s where that’s coming out. And the Fed is running a program now to relook at its framework, but they explicitly said -- because of the ammunition problem, they said, “We are not going to question the two percent target.”

 

Alex J. Pollock:  Could I just jump in there? We’re going to have too much fun if he lets us go, Don. These are all arguments, highly theoretical, in fact. No one really knows how all this works, in my opinion. But they are highly political about the government, and the Congress should have held hearings and should have acted. In other countries who also set a two percent inflation goal, the actions were joint. The government entered, like in -- New Zealand was the inventor of the two percent inflation target. And the point of two percent inflation in New Zealand was to get inflation down to two percent from its runaway four, or five, or six, and in other places.

 

      So now we’re in an Alice in Wonderland world of trying to get inflation up. But the point I want to get to is, these were agreements. It’s also true in Canada, between the government and the central bank, a clearly outright public decision about the nature of money, about the definition of money, and the nature of money. Okay. We’re going to have a money which perpetually depreciates at some rate. That’s a political decision. And they should have done that.

 

      I’m really interested by Don’s point about the difference with Britain. Paul Tucker, whom you know, of course, has written this very fat book, which I agreed to review before I knew it was 600 pages long, but subsequently read and reviewed. And he makes a strong argument in there, which I think is correct, and it’s clearly influenced by his British experience with the Parliament and the Bank of England, that the legislature has to be strongly involved in the fundamental strategies of money.

 

      I think that’s constitutionally right. And I think to say the Federal Reserve could do it—even after some informal conversations—by itself, is in my opinion, is fundamentally wrong. I think Tucker’s right. But it does mean that the legislature has to make itself a serious --

 

Dr. Don Kohn:  -- Yeah. They have to do a better --

 

Alex J. Pollock:  -- a serious interlocular.

 

Dr. Don Kohn:  They should do a better job. Absolutely. And it’s in their power, authority.

 

Alex J. Pollock:  Yes. No, I agree with that. And we know in other areas, you can get long-time committee members in Congress and chairmen of committees who know a lot about their domain of jurisdiction, and it should be that way with the Fed and with monetary policy.

 

Dr. Paul Sheard:  Judge Matey, can I just come in on this? I just again would point out that, in general, if we’re thinking about a robust framework here, it’s a two-sided problem, this issue of price stability, if you operationalize it as two percent, which is you can be trying to fight against too much inflation, or you can be trying to fight against too little inflation. And the problem that emerged in Japan has now spread to Europe, and also, it’s spread to the U.S., post the financial crisis, is the challenge of what happens if you slip too far below.

 

      And I think that that’s a world in which you do need to start thinking about bringing the arms of monetary and fiscal policy perhaps together. And of course, that runs counter to the DNA of the independent central bank, which is there to put a check on excessive government spending. But I think that needs to be considered.

 

      And I just relate that to this discussion about the Fed’s monetary policy review. I’ve been a little bit critical of this because the Fed launched in November of last year what is going to be more than a yearlong review of its monetary policy, tools, strategy, and communication. And it’s been on a so-called listening tour, and had about 14 events where they listened to the public, and went out to the communities, etc. Part of the motivation for that review is the concern that there will not be enough ammunition come the next downturn, and so they should be thinking about it now. And I applaud all of that, but I think the review is much too narrowly focused that it should be what’s required, I think, is a much -- that can be one component of a much broader review of the overall macroeconomic policy framework, including fiscal policy, banking policy, structural policy; you could include that as well in.

 

      So I think from that perspective, this conversation about the point that Alex is making and Don is agreeing with, that perhaps the Fed should try to engage Congress more, I think, is very germane because as far as I can tell, and I asked this question to senior officials in public a couple of times, there doesn’t seem to be any formal consultation process going on—correct if I’m wrong—between the Fed and the government and the Congress, the administration and the Congress, seeking their input, listening to them because come the next downturn, if it’s a serious shock to the U.S. economy, you can bet your bottom dollar—excuse the pun—that fiscal policy will need to be front and center. Have that discussion now rather than in the crisis in reaction to it, if there is one.

 

Alex J. Pollock:  Is one more comment allowed? Combining fiscal and monetary policy, of course, is what always happens in a war. In a war, in a big war, the central bank becomes the servant of the Treasury, and this Treasury tells them how many bonds they’re going to buy, and they buy them. And this happened all during the Second World War, the Treasury just said, “You buy this much, and you have to buy enough to keep the rate at two and a half percent.”

 

      Going on after the Second World War, we get into the Korean War, and here’s where President Truman, Paul, would be in complete agreement with you, only this is the Executive branch, to coordinate fiscal and monetary policy. And the dispute between President Truman and the Fed, as Don well knows, and Dick of course, is there is the origin of the current theory of Federal Reserve independence. Truman said to the Fed, “You want to raise rates. I’m fighting a war, the Korean War.” At that moment, the American Army was losing, was going backwards down the Korean peninsula under the onslaught of the Chinese Army, and here’s the Fed going to screw up the game by raising rates.

 

      So Truman—I think this was unique in Federal Reserve history—invited the entire Federal Reserve Open Market Committee, and they went to the Whitehouse to meet with the President, who told them what he wanted, which is, “You keep buying all the bonds that I need to sell at two and a half percent yield to finance this Korean War (that I’m losing), and I need to keep fighting.” But the Fed didn’t agree in the end, and they had this big, very public, very nasty dispute. Now, that was between the Executive and the Fed.

 

      So here’s a constitutional question: Is the real discussion about monetary policy and what the central bank should do between the Executive and the Federal Reserve or the central bank, or between the Congress? And I think the Constitution is completely clear. It’s a discussion with the Congress, not with the Executive, although, of course, the Executive discussions informally are going to happen.

 

Hon. Paul B. Matey:  I think Alex’s comment --

 

Alex J. Pollock:   -- Sorry, Judge. Thanks.

 

Hon. Paul B. Matey:  No, of course. And I think your comments regarding the wartime necessity that often drives these decisions hearken back to Chief Justice Chase’s comment in Hepburn v. Griswold where he found the Legal Tender Act to be unconstitutional, where he commented that power assumed from patriotic movements should be questioned.

 

Alex J. Pollock: We’re having a little trouble hearing this over here. Yeah.

 

Hon. Paul B. Matey:  So it’s an interesting observation that this question regarding what the motivations are for political necessities has always been part of the judicial and executive dialogue.

 

      I want to return now to two things that Dick said. You mentioned that the great silences in the Constitution perhaps provide some support for the creation of the monetary system that the United States pursued, and that originalism ought to look at the factors that policymakers, or legislatures in this case, were reacting to. I suspect some in the room might question those assertions. So I welcome you to elaborate on them and perhaps defend.

 

Prof. Richard E. Sylla:  What am I supposed to defend?

 

[Laughter]

 

Prof. Richard E. Sylla:  Remember I’m an economist, not a lawyer.

 

[Laughter]

 

Hon. Paul B. Matey:  You made what I think is a very interesting comment that originalism or perhaps theories of judicial review ought to look at factors that are being responded to in the creation of legislation or perhaps policy. How do you think that courts should go about that and, what might that example teach judges that are encountering cases in the financial sector?

 

Prof. Richard E. Sylla:  Oh, well, I think the -- well, it’s deliberate, I think, on the part of the people who wrote the Constitution to not take a strong stand. Under the Articles of Confederation, the national government had the power to print paper money. And they discussed that at the convention, and they said, “No, no, no, we don’t want to give the new government that sort of power,” because they think it’s met.

 

      But then they didn’t want to be explicit about it, and I think it’s because some of the counterpoint at the convention was, “You know, there might be a thing like a Korean War, or like World War II.” World War I was the same thing, where the Fed helped the government finance itself, mainly by liquifying the banking system so that the banks and the public could buy a lot of government bonds.

 

      I think that that was the counterpoint at the convention when people said, “We don’t want to authorize the government to issue paper money, but we don’t want to say that it can never do that.” The people who -- like Luther Martin was one of them, and there were some others at the Convention that said, “It’s going too far to take this power away.” So they were silent on it. And that means that you can’t really go back today, from our point of view, you can’t go back and look at what they said and say, “We’re not doing it the way they wanted to now.”

 

      And in fact, they sort of punted on it. They prevented the states from doing it. They had the example of Rhode Island, and they thought that was very bad. By the way, I would just say that the problem today is, what did they do in Rhode Island in the late 1780s? Well, a sort of debtor farmer faction took over the government. They had a lot of debts, and so they printed a lot of money and paid off the legal tender you had. If you were a creditor of Rhode Island, you had to take this paper money, which was depreciating, and that was the way it was.

 

      Who’s the biggest debtor today? The United States government is the biggest debtor today. We talked about -- Don Kohn mentioned, and I kind of agreed with him that we’ve seen inflation in our lifetime. Maybe some of you are too young to have seen really high inflation, but old guys like Don and me have seen it. And the government’s the biggest debtor, and the government -- I think that we don’t really seem to pay much attention now to the rapid rise of our debt.

 

      At some point, it’ll become -- the U.S. will be in a situation like Rhode Island was in 1790, where, “What’s the way out of this now?” And what’ll happen is that, “Well, we’ll find some way to print a lot of money and pay off the debtors with cheaper --”. We’ve done this in some ways in the past, and I think that may be in the future. I live in New York and New Hampshire, and I don’t quite understand why people in this town don’t really seem to be more concerned about the rapid rise of our debt. What’s going on here? You tell me.

 

Hon. Paul B. Matey:  Don, you had mentioned that expertise in this area is critical, which sometimes runs into objections regarding growth of the administrative state. Do you see this as an area where better government is necessary, or will more government suffice?

 

Dr. Don Kohn:  Well, I think the dialogue that Alex and I have been having about -- I think you need the expertise, and people need to see, to have confidence in your institution, that you are using the best available expertise in an objective, nonpartisan way, if you’re not an elected official. So this has been delegated to the nonelected official. And I think there are things that the Congress can’t do, that it creates a civil service, it creates a Federal Reserve to carry out technical tasks.

 

      But it’s important that these technicians be held accountable, and I think it’s most important they be held accountable for the results that they produce and explain why the results aren’t what they should be, and what they’re going to do to fix it. And that’s up to Congress to do that. So I think the expertise is really important to bring to bear, but—and this goes to the Paul Tucker point, I think, to some extent—within bounds, within bounds.

 

Dr. Paul Sheard:  Perhaps just come in on that, and again just develop this idea of maybe a review of the broader macroeconomic policy framework again, if you look at monitoring fiscal policy, I think at the moment that the framework is actually somewhat suboptimal and maybe a little bit incoherent. In the following sense, that what economists are concerned about is making sure that there’s sufficient aggregate demand but that we’re at full employment and low stable inflation. And there is an aggregate -- clearly an aggregate demand management component of monetary policy, but there is an aggregate demand management component of fiscal policy as well.

 

      And the way that things happen, at the moment, is there’s no coordination between those two things, or very little. And while the aggregate demand management component of monetary policy is in the hands of experts, the other component of aggregate demand management policy, the fiscal part, is given to the politicians, and the Congress, and whatnot. And the reason for that-- so I think that’s a little bit incoherent.

 

      So one thing that I’ve suggested is—and wrote a piece in 2018 on this—is maybe we could think about -- we do want, in some sense, the question of making sure that we’re at full employment with low stable inflation to be managed, you could argue, by the technical experts that the Fed has at the moment. But maybe we need to conceive of that in a different entity, maybe an agency of aggregate demand management, which includes a central bank, but also includes components of fiscal policy.

 

      Now, the argument on the fiscal side is often made that while fiscal policy, all of fiscal policy -- so fiscal policy has two components: aggregate demand management, but also all the redistribution, setting the rules of the game, the real political part, in particular. And so it’s often said that well, that has to stay with the politicians and the polity. But I think one of the things that, we, people, economists have slowly come to realize in the last 10 years, particularly when monetary policy is being operated at the zero bound, or beyond zero interest rates, quantitative easing, that that also can have -- because it operates mainly through asset prices, particularly, stock markets, credit spreads, bond prices, that could also have great impacts on distribution as well.

 

      So there’s a political component there that the central banks don’t try to address. It would touch that like a hot potato, but nobody’s really looking at it. So I think, again, my view is two ways to approach this macroeconomic framework issue. One is to have a broader perspective and try to separate out the redistributional political elements from the aggregate demand elements and line up the institutions more coherently around that, maybe an agency of aggregate demand management.

 

      The other way to do it would be some kind of switching regime where you said there are two problems here: too high inflation, and sometimes—and maybe it’s on the horizon in the U.S.—too low inflation. We know when we’re in one or other of those regimes, and, when we know we’re going from one to the other, we sort of switch the regime so that in the too low inflation, outright deflation kind of environment, everybody knows that fiscal and monetary policy will coordinate much more closely.

 

      You could have something like helicopter money, monetization of deficits. Why? Because that’s a good policy to achieve your macroeconomic policy targets, but that’s a lousy policy when you’re in the other world, which is a world that the U.S. has been in for most of the last 50 years of inflationary pressures.

 

Dr. Don Kohn:  But that implies that Congress give up the authority to cut taxes and raise spending. And I think there are a lot of -- I agree with Paul, actually. If Paul and I were the benign dictators—we would be benign, of course—

 

[Laughter]

 

      And we could set policy -- we can sit here and do the fiscal monetary stuff. And there are a number of proposals similar to Paul’s that, at least, in the second thing, where there’s very little ammunition, monetary policy is played out. It’s got be more fiscal policy. In fact, this the point Jay Powell made, just yesterday or the day before, to Congress, that more is going to be on them, that somehow you set up a separate way of making those decisions. But it does imply that Congress isn’t going to be able to take credit for tax cuts and this sort of thing. I think --

 

Dr. Paul Sheard:  -- Well, you’d separate it. You’d find a way of separating out the two that this agency of aggregate demand management would be focused much more on making judgements about where you are relative to where you need to be, what kind of -- how much stimulus you would need, and maybe some menu of suggestions about the composition. But of course, the Congress would be at liberty to -- anything to do with over redistributional political decisions relating to fiscal policy would obviously --

 

Alex J. Pollock:  -- I would say, Paul and Don, if you’re a politician, and you’re in office, and to stay in office, what you wish to do is increase expenditures and cut taxes, the thing you want the most is a bond buying central bank to finance your ability to do exactly that. And this is deep in the reasons why central banks exist.

 

Hon. Paul B. Matey:  I want to turn this discussion over to the audience right after one last question. As judges and lawyers, one of the more interesting interpretive debates we have is how to handle new examples or problems. What do we do when the law isn’t clearly written and perhaps doesn’t directly contemplate on a legal issue that has come before us? And so we’ve talked much about gold, and silver, and paper. Much money today, though, seems to exist in an altogether new format, and we can certainly be sure that the Framers were not thinking about cryptocurrency, directly, when they wrote Article I. So for anyone on the panel, were do you see these emerging technologies intersecting with some of the challenges you’ve already discussed?

 

Alex J. Pollock:  I think cryptocurrencies are just another form of bookkeeping currency, and bookkeeping currency is what most money is, either on the books of private banks or the books of central banks. So it’s a method of changing the process, but the underlying money are debits and credits on bank and central bank books in either case.

 

Dr. Paul Sheard:  I don’t think anybody today has actually rehearsed the normal thing that you hear on these panels, which is money is a unit of account, a medium of exchange, and a store of value. That’s the three things that money has to satisfy to be a good money because at the end of the day, what passes as money is something that has to be accepted by the community. So you’ll have these stories of prisoners of war using cigarettes in the prisoner of war camps because that worked for them. It’s not going to work for us.

 

      And I think similarly with cryptocurrency, I think cryptocurrencies and bitcoin, in particular, they seem to have a place in the emerging financial ecosystem. Some people think of bitcoin as potentially being a digital gold asset. And there’s clearly a big element here of fintech, financial innovation. The more you dig into bitcoin and cryptocurrencies, the more you run into blockchain, which does seem to be potentially quite a transformative technology. But the idea that any of these cryptocurrencies, first of all, will be denominating our prices in cryptocurrencies, will be transacting in cryptocurrencies, they’ll be using them as a store of value, I think, is very stretched.

 

      When you talk to some of these cryptocurrency kind of people, it’s a very evangelical kind of world. They really believe in their stuff. They say, “But look at the price of bitcoin. It’s going up, and up, and up.” And I say, “Yeah. That makes it a lousy store of value,” because essentially it’s an exchange rate against the dollar of a virtual currency, and, if it has wild swings, by definition—unless you are in that world where everybody’s using that cryptocurrency, which we’re not, and I doubt we’ll ever get there—then it’s not a good store of value. A very good speculative asset, but not a good store of value.

 

Alex J. Pollock:  A different way of making the absolutely correct point you just made is you would not like to be a debtor denominated in bitcoin when it’s going up, and up, and up.

 

Prof. Richard E. Sylla:  I would say that my financial historian’s perspective is before the Civil War in the United States where we had about 1,500, 1,600 banks, each of which was issuing its own several denominations of bank notes, of $1 bills, $3 bills, $5 bills, $10 bills. So you had about 9,000 different pieces of paper all claiming to be U.S. dollars, and that seemed to be a bit of a chaotic system. And so the Civil War, the Union government decided to clean it up a little bit by banning state banks from issuing all of these notes, and basically making our currency a liability of the federal government in terms of these greenbacks that we talked about and the national bank notes. They all looked the same, and the national bank notes were backed by government bonds, so they became a liability of the federal government, in effect.

 

      What I see today is a whole bunch of people coming up with IPOs for the new bitcoin. And what kind of world are we going to have if there’s bitcoin plus several hundred other types of digital currency? It’ll be the same sort of chaos we had in this country before the Civil War.

 

      So my conclusion is that if there’s something to this technology, and they’re probably is, because the bankers charge us too much to move money internationally now, if there’s something to this technology, it’ll be taken over by the governments and the central banks. And that’s probably a good thing because instead of having 500 different digital currencies, we’ll have one issued by the government. And of course, it’ll be subject to the same sorts of inflation as others, but I think that’s what’s really going to happen. If it is a promising technology, we will find that the central banks and governments take it over.

 

Dr. Paul Sheard:  And that’s exactly what’s happening at the moment. Every central bank on the planet does have a blockchain or cryptocurrency research group. They’re all looking into this. There are some central banks that have actually either prototyped or issued some digital currency. And, just recently, the G7 issued a paper on stablecoins, which is a central bank version, if you like, of Libra. So I think that train, Don, has left the station, tentatively.

 

Dr. Don Kohn:  Maybe. So I think Libra has been an interesting example where it’s fine -- the sort of initial payment offering of small coins, or bitcoins, or even large -- it’s really a -- it’s a commodity, I think, one of you called it, like gold, and I agree. When you have Facebook—with how many billion users? Two and a half or something like that—all of a sudden, putting out a means of payment, then that raised a lot of questions.

 

      This is really to Dick’s point about government getting involved. So the government has an interest that terrorists not be able to use this to fund their activities. The government has an interest that its citizens understand what they’re getting and how they’re getting it. The government has an interest that something that’s funding a -- could fund a vast number of transactions not be subject to cyberattack so that hostile countries take it over, etc.

 

      So there’s a point at which these little promising technologies become threats to the public interest, and that’s the point at which governments have stepped in on Libra. It’s been fascinating to see that thing announced, have it not be very well developed, when it’s announced, and every government in the world jump in, and say, “No, no. Wait. We’ve got to set the rules to the road before you can proceed.”

 

Hon. Paul B. Matey:  I think now would be a great time to open it up to questions. I see some hands. I don't know if we have microphones, but there’s microphones towards the back there, but -- okay, we’ll come around. So right here.

 

Bernie Lee:  Thank you. Bernie Lee, banking consultant. A key function of the Fed is manipulating interest rates or effectively the price of credit. And it’s been mentioned specifically with regard to quantitative easing. My question is, what provision in the Constitution sanctions what essentially is a government price fixing activity, i.e., manipulating the price of credit?

 

Prof. Richard E. Sylla:  I would say there is none.

 

Dr. Don Kohn:  But the Congress clearly -- that’s the way monetary policy has operated for decades. There was a period in the 1970s when Milton Friedman became more prominent, and there was monetarism, so he said, “Well, instead of manipulating the price of credit of interest rates --” because they didn’t think the central banks could ever do that in a responsible way. That’s control the quantity of money. But that was control over something else. So I don't know. I leave it to the Judge to tell me there.

 

[Laughter]

 

      But I think when something’s been going on since 1933, and hasn’t been found illegal, I guess I was comfortable at the Federal Reserve using that in order to accomplish legislative goals.

 

Dr. Paul Sheard:  Let me just add to that that the price of credit that the Fed is controlling, at least at the moment, is still just the overnight rate of interest. And, of course, the whole yield curve, and the asset price structure, and the whole economy, it’s priced off that through the term structure theory, the idea that if you control the overnight rate, you can control it forever. That’s going to influence the expectations of longer-term asset prices. But, technically, if you wanted to have a defense against, you could say, “Well, we only just fiddled with one little price there, and everything else is left to the market.” But there is a central bank in the world at the moment that goes beyond that, which is the Bank of Japan, which actually does target the 10-year rate, a little bit like the Fed did back in the ’43 to ’51 period.

 

Keith Rothfus:  Keith Rothfus from Pittsburg, Pennsylvania. I just want to defend the work of the Financial Services Committee over the last six years, since I was a member of that committee. I guess I’d maybe put in the context of a couple of things. Sovereignty in our country is in the people, and it’s exercised through the Congress. Also, I’d like to talk a little bit about hubris and what we saw post-financial crisis, which I would contend was pretty much an ad hoc monetary policy.

 

      I remember having those conversations with the chairs, and I argued at one point that the Fed was trying to do with monetary policy what should’ve been done with fiscal policy. And so you had bad fiscal policy during the Obama administration, whether it was higher taxes, more regulation, and these were things that were real drags on the economy. I talked about manmade or anthropogenic headwinds that the Obama administration was putting on the economy.

 

      The whole idea of the Taylor rule -- look, to do a mandate is a political mandate telling the Fed what to do. The Taylor rule did not mandate any action by the Fed other than to explain its monetary policy moves. And so, again, my concern continues to be this idea of who is the sovereign in this country? We’ve delegated to these administrative elites, whether it’s in whatever space across the government, and seeking ways for the people, the sovereign in this country, to have some oversight of what is happening at these agencies.

 

      And with respect to the Taylor rule, just explain what you’re doing because it has been ad hoc, and we have yet to see the real ramifications of blowing up the balance sheet the way they did. And who knows whether the issues that they’ve been having other the last couple of months, with the repos, and trying to unwind that balance sheet. So I just posit it out there for consideration.

 

Dr. Don Kohn:  So I agree that policy was ad hoc in the crisis. We had never ever been in this situation before where, at least not since World War II anyhow, or not since 1933, been in a situation which interest rates had to be reduced to zero to keep the economy from being even more depressed. When we got into that situation, there was some reference to history books. I mean, people tried to learn. So we said how can we stop the loss of jobs that was happening, get interest rates down to encourage spending, get them down across the yield curve by buying securities, by giving guidance about future interest rates. But there was no rulebook for this. I totally agree that there was no rulebook.

 

      I think the Fed -- I think I’m in agreement with you that the Fed could have been doing a better job explaining what it was doing and why. I think following the Taylor rule would’ve been disastrous, would have had an even deeper -- would’ve taken a deep recession and created a depression in the middle of this thing. But we could’ve had that discussion. And I think the Fed has, by including more information about rules and its monetary policy report, has moved a bit in the direction of trying to satisfy that need. But it is, as Alex and I have been saying, I think it’s partly up to Congress to ask the tough questions, demand the answers, respond to the answers in a way -- I think growing the balance sheet was difficult. It wasn’t unprecedented.

 

      When I went to conferences in the spring of 2009 at Hoover Institution and other places, I heard Zimbabwe, Weimar -- so there was fear, concern, that was going to result in a lot of inflation. That was the thing. The Republican primary, the 2012, this was about the Fed debasing the currency. Well, that was bad analysis. It didn’t debase the currency. The currency rose in 2013, 2014, and 2015. Inflation was low in 2013, 2014, 2015, and 2016. So there were difficulties growing the balance sheet. I felt that some people weren’t willing to listen to the reasons as well as they might have. And so I was not persuaded that we were going to end up in Zimbabwe.

 

Keith Rothfus:  We have yet to see the difficulties.

 

Dr. Don Kohn:  Yes. Allan Meltzer used to say that to me. He said it’s not whether but when you’re going to produce inflation. But that was 10 years ago, so I’m still waiting. I think we just need more of a reasoned discussion of these things, and people have got to get out of their corners and listen to each other. But that’s true, monetary policy is a tiny point in that broader issue in the United States today.

 

Dr. Paul Sheard:  Judge, can I just come in? Can I just second Don’s point there that that was bad analysis? People who thought that the expansion of the Fed’s balance sheet back in 2008, 2009, was going to lead to a burst of inflation at some point had a money multiplier model of credit creation and monetary affairs in their head.

 

      To cut a long story short, that does not work that way. That’s why, when in my comments, to say that what QE is, it’s not creating a whole lot of monetary base that is going to multiply into a massive credit creation. It is changing slightly—I would say just slightly, frankly speaking, when you’re in a very low interest rate environment, or a little bit—the composition of the consolidated government’s debt. QE does not inject $1 of purchasing power into the economy that was not there already. It’s just a swap of one form of debt for another form of debt. From a proper economic analysis of it, you would not expect it to be very inflationary. It’s supposed to help inflation up a little bit, but it doesn’t work that way. So I’m pretty confident that we’re not going to get the hyperinflation that those folks predicted because of that. You might get it for another reason.

 

      But can I just -- but on the type of one issue that hasn’t really come up today, which I do worry about with this excessive reliance on monetary policy in all circumstances, is that monetary—and I don’t think this was sufficiently recognized in the past—that monetary policy works indirectly on the real economy through financial conditions, that is through the financial sector. And essentially, banks and other financial system elements, members of the trading community, investors, everybody out there, they’re all obsessively watching the Fed and other central banks. Monetary policy is a joint activity of the central banks and the financial markets to transmit to the real economy.

 

      And I do think there is a question that needs to be asked and looked at more carefully in some of these reviews and other discussions of is this framework leading inadvertently to excessive financialization of the economy and, essentially, activities that really amount to little more than zero-sum game rent-seeking activities. And I think that a little bit more weight in certain circumstances on fiscal policy could actually correct for that.

 

Questioner 3:  Hi. I was originally sitting back there, but I moved here just so you all could see me when I ask my question. So cryptocurrency is a very interesting field for me, and one key question that I had about the cryptocurrency was it’s very similar to our standard paper currency in that it’s used for exchange, it’s used to transfer, it has its own unit of value. However, one issue with cryptocurrency is that it fluctuates very rapidly, and it’s very easy to create your own cryptocurrency as opposed to printing your own paper currency and getting it to be accepted by the general public.

 

      So I guess my question with cryptocurrency is do you believe that there are merits to implement the gold standard on our cryptocurrency? That’s been a key issue in the industry recently where proponents have argued that implementing the gold standard will allow cryptocurrency to become a more mainstream currency instead of just an alternate form of monetary exchange that’s using the blockchain spectrum right now. So I wanted to see what your thoughts were on the topic, basically. Thank you.

 

Alex J. Pollock:  As the, I think, only former banker on the panel, I’ll answer that. If by a gold standard, you mean that for every unit of currency there is some defined amount of gold, then you have a gold standard where the currency is, upon demand by the holder, redeemable in something real, that is to say, gold coins. Notice that one thing that a bitcoin is not is a coin. It’s the exact opposite of a physical coin. But, if you have a system that’s basically a warehouse receipt for gold coins, well, then you just have a classic original bank.

 

      Now, as soon as you have that, somebody will figure out, just like the goldsmiths did in banking history, that I don’t really have to have a gold coin for all of my liabilities. I can just have some of them, and probably people won’t be around asking me for all the gold coins. Now, you have fractional reserve banking, and you are just a bank. And the next thing is, well, what do you have? What are you doing with these funds, what kind of assets are you accumulating, and are they any good, are they sound, are they safe? Or are they speculative investments, are they bad loans, are they a subprime somethings?

 

      And so that direction really is talking about a classic evolution of banks in a fractional reserve world. If it’s 100 percent reserves, then you have a narrow bank, then you have a warehouse receipt. And then the answer is are the gold coins really there? You say they’re there. We’ve already had experience with cryptocurrencies where it’s discovered that the assets which are claimed to be there, in fact, don’t exist. Well, that’s just fraud.

 

      There’s an old story, in the gold standard days, that in the wildcat banks of the West, as the examiner went around to count the gold that the banks had to have on reserve, that the banks would cooperate to send, by rapid horse, the gold ahead of the examiner so that the same gold got to -- I don’t know if this story is true. It’s just an illustrative story. So the gold got to the next bank ahead of the examiner so he could count the same cold coins over again. And these are classic construction of financial system problems, and I assume they would occur in a cryptocurrency world, like they have many times before.

 

Prof. Richard E. Sylla:  Just to add that we have an example of this in history. There was a bank once in Amsterdam called the Bank of Amsterdam, which was actually run by the City of Amsterdam. It was founded in the year 1609. The same year, I think, the Dutch sent Henry Hudson sailing up the Hudson river. And the Bank of Amsterdam was a great bank. It just took in gold coins, and often the coins of that time were not really full-bodied. They’d been clipped and things like that. And the Bank of Amsterdam would weigh them and give receipts, which were full-valued money, and so the bank money turned out to be better than the hard money coins.

 

      And the bank was basically a bank that had 100 percent reserves for about 150 years. But then as Alex said, there was a temptation to say, “Well, gee, people really like our bank receipts. Why don’t we just issue some of the receipts that don’t have gold behind them?” And that was the beginning of the downfall of the Bank of Amsterdam. By 1780 or ’90, it was caput because it had the temptation to do that. The same thing might happen with your kind of gold standard cryptocoins that whoever’s got the gold, at some point they’ll say, “Well, maybe we could issue some of the coins without having any gold behind them.” And what’s to guarantee that won’t happen? Something like Libra? I mean, basically, it’s a bank. It would probably have to be regulated as other banks are.

 

Dr. Paul Sheard:  Can I just make a comment on that? I don’t think we have to go back to the gold standard in any shape or form. I think the fiat money system actually is -- we’re learning as we go along, but it’s working reasonably well. On this cryptocurrencies, one thing that always gets left out of the discussion, it seems to me, is how do the cryptocurrencies get into circulation? And I talked about it before in my remarks that there are well-defined ways that credit creation, budget deficits, central banks buying assets, creates the money in the first place.

 

      The solution for bitcoin, of course, is this convoluted mining system, and this algorithm, and decentralized ledger, and everything else, which is it tries to mimic in some sense a gold standard in the sense that there’s finite gold in the world, and we go out and discover it and mine it. But it doesn’t seem to be a very robust illusion, and the people who are concerned about climate change should be worried about the energy costs of running that system.

 

      And then a lot of it is this ICOs and tokens and things, which seem to be really tied to these start-up business models, and, to me, look much more like equity than they do like real currency. And then finally, Libra. It’s a little bit ironic in the context of this conversation. I think that the whole idea of Libra is it would be backed by a basket of sovereign debt of government bonds, so we’re back with Libra to the conventional system. And when I looked at Libra, I thought, my conscience, Don, is this Keynes’s bancor at last coming into the world, an idea that he had back in the Bretton Woods Conference of 1944.

 

Hon. Paul B. Matey:  I think there’s some questions at the back.

 

Coach Weinhaus:  Hello. Coach Weinhaus, UCLA Anderson. And I did teach University of Chicago Booth’s first cryptocurrency and blockchain course. So, as Judge Matey anticipated, that would be a first question here. I want to ask a little bit more about things that maybe the lawyers in the room understand better than things like the Taylor rule, which is this agency theory of government.

 

      Vice Chairman Kohn, you had mentioned that Congress does a lousy job, I believe, of regulating the Federal Reserve. And I think on the other hand, you talked about some of the excuses, reasons, and justifications for regulating cryptocurrency. My question is, is cryptocurrency and people’s exit of the financial system, as individuals, is that the best way to regulate the Fed if Congress is not doing its job up to your standard?

 

Alex J. Pollock:  I think the question was is competition for the Fed with other currencies a good way of regulating the central bank. Of course, there’s a famous essay by Friedrich Hayek called “Competition in Currencies,” which is a great essay which suggests just that, that if you have multiple denominations of a currency, and the people have the right to choose which ones they use, that is a control of the central banks monopoly by making it competitive. I think a lot of the cryptocurrency enthusiasts either read that essay or subscribe to the theory. It’s a highly attractive theory but very hard to make real, I would say.

 

Hon. Paul B. Matey:  A question in the back too.

 

David Murley (sp):  Hi. David Murley. I’m a 3L at Memphis Law. It’s a fascinating time to be in law school. And I was in legislation in the spring watching Nancy Pelosi and the President debate the spending bill over immigration and the border security wall. Is there a way to conceptualize -- so we learn Article II President’s power to veto makes him like, in effect, a de facto chief legislator. So, if you conceive him as he, being representing Congress, he, being the only nationally elected officer, he’s holding his -- I don't know. I think he believes he can fire Mr. Powell at any time, and he also has the duty to take care. So can you conceive his Twitter account as holding the Federal Reserve accountable and then also him implementing this policy of deficits not mattering anymore? The King of Debts. We’re at highest wartime spending.

 

Hon. Paul B. Matey:  Yeah, the audio is a little bit bad.

 

David Murley:  Sorry.

 

Dr. Don Kohn:  This room was not built for people with hearing aids.

 

David Murley:  Forgive me.

 

Hon. Paul B. Mater:  I think the question centers on what is the Executive’s role and this particular President, given ultimately that these oversight --

 

Dr. Don Kohn:  -- Could you speak up?

 

Hon. Paul B. Mater:  Oh, sure. What is the role of the President in the Executive Branch above the administrative infrastructure that sets monetary policy except for that of the Congress, and could we see more vibrant Executive oversight in this area?

 

Dr. Don Kohn:  Well, certainly the President appoints the members of the board. So in a sense the President has the ultimate control. It’s just that it takes time. This President has actually appointed all, all but one. So there are five members of the board.

 

Dr. Paul Sheard: [Whispers to Dr. Don Kohn]

 

Dr. Don Kohn:  Well, but he chose Jay as the chair. He says he has regrets, but he chose it. So he has actually chosen four of the members of the board. So I think that’s really the control. The ultimate control on the democratic accountability has established Constitution and the laws about presidential appointment and Senate approval. I would also say my experience has been there’s always very close -- lots of conversations between the administration and the Federal Reserve, usually carried through the Treasury Department.

 

      I don't know what happens now, but there were weekly breakfasts. They were always over a meal or something. So there were weekly breakfasts between the secretary, the treasury, and the chairman of the Fed, and that carried through many chairs, as far as I know. I don’t know what’s happening now. And monthly lunches. The Council of Economic Advisors came over. So there are a lot of -- and then there was a lot of conversation between. There are many, many channels for the administration to make its views known and to convince the Fed that what it’s doing is not the way to achieve its legislative mandates.

 

      That’s really, really what has to happen because, ultimately, it’s Congress that set those mandates. The President signed the bill, so the argument is how can you best achieve these mandates, and that’s the way the argument has to be framed. Too often, it’s framed in terms of election years, that’s sitting in the back.

 

      So Paul Volcker, in his book, tells a story about being invited to the White House in 1984, into the library of the White House, which he presumes is -- because there wasn’t any recording equipment there. And Jim Baker and Ronald Reagan are sitting there, and Jim Baker says to Paul Volcker, “The President orders you not to raise interest rates this year.”

 

Prof. Richard E. Sylla:  Before the election.

 

Dr. Don Kohn:  Right. 1984.

 

Prof. Richard E. Sylla:   Yeah. It was the summer of ’84 before the election.

 

Dr. Don Kohn:  So there’s that. Thankfully, Volcker walked out. So it’s up to the administration to make the argument, I think, and to appoint the people. In the Reagan administration, by the time Reagan had appointed -- well, he reappointed Volcker, but then he appointed four more people in the spring of 1986. The first time they had the four people, they voted to lower interest rates against Paul Volcker’s view. So there is a way for the President to work, both by reason and by appointment.

 

Alex J. Pollock:  I understand that Wright Patman, the populist democratic congressman from Texas who became very prominent in central bank discussions and banking discussions generally in the course of his career, agreed with your suggestion and with President Truman that the Federal Reserve should be part of the executive branch and should be doing what the President wanted, but that’s not what the Constitution says.

 

Dr. Paul Sheard:  Can I just say, I think in these discussions, there needs be a distinction between preserving the autonomy of the decision making of the Fed and its current independence, if you like, and the question about the communication between the administration, maybe the Congress, but let’s just focus on the Executive, the administration, and the Fed, which is part of the Executive as an independent agency. And that seems to be completely lacking in terms of formal mechanisms.

 

      So what Don said, you often hear, is “Well, there are back channels, and breakfasts, and informal mechanisms.” But I think that, maybe a bit of a flamethrower here, certainly consideration should be given to whether -- again, the institutional framework shouldn’t be looked at with a view to ensuring that there are some kind of channels whereby the Executive, the administration, can communicate to the Fed its views on the economy and its own signal of what it’s intending to do with economic policy so that the Fed hears that in a formal kind of setting rather than this backdoor room thing.

 

      Now, that sort of framework exists in many other countries. There are many different models for this. And I, for example, suggested why not think about the chairman of the Fed being a member in terms of the organizational structure of the natural economic council, for example, so that you’re in the framework. This happens in Japan in a parallel kind of way. And I think—and I’ll be really contentious here—that it should be looked at whether the Executive should not have some kind of ex officio representation on the FRMC, maybe non-voting. The voting versus non-voting issue needs to be looked at, as, of course, was the case up until 1935.

 

      So I, for one, think that the pendulum has actually swung too far, and the whole notion of Fed independence and central bank independence has become too much of an end rather than a means to an end. I’m not suggesting that the independence be eroded, but I think we need to make a distinction between the institutional framework, communication, coordination, and who has the decision rights.

 

      And I think the question was also -- and I think that would actually -- this attack on the Fed’s independence by Twitter potentially could go away and could be diffused then. What is the administration’s official view about monetary policy? The Fed might want to listen to that. What they do with that information is completely up to the Fed.

      I think there was also a question there about can the President just sack Jay at will? He definitely can appoint Jay Powell. Can he sack Jay Powell? And as I understand it—and I’m getting out of my comfort zone as an economist—there is employment at will and firing for cause. And, under the Federal Reserve Act, the President can only terminate Board of Governors positions if there is cause. And I understand that has a pretty strict legal interpretation. So that if it did happen via a tweet one day, I suspect the next morning, you would see Fed counsel or somebody in one of these circuit courts, wherever you go for these things, putting a stay on that decision.

 

Alex J. Pollock:  And on the first issue, under the original Federal Reserve Act of 1913, speaking of the role of the Executive, the Secretary of the Treasury was automatically, by virtue of his office, Chairman of the Federal Reserve Board. That was the view of the authors of the Federal Reserve Act.

 

Hon. Paul B. Matey:  And having reached this specter of litigation, it’s a perfect place to end. I want to thank all the members of the panel. I want to thank the audience for that great participation, and certainly thank Wayne and the Financial Services and Financial Committee for assembling today’s conversation. I thank you all for being here and look forward to seeing you the rest of the week.

 

[Applause]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12:00 p.m. - 2:15 p.m.
Stare Decisis in Civil Rights Cases

2019 National Lawyers Convention

Topics: Civil Rights • Supreme Court
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 15, 2019, the Federalist Society's Civil Rights Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel covered "Stare Decisis in Civil Rights Cases".

Stare decisis is generally regarded as a stronger force when applied to statutes than it is in constitutional law. The standard rationale is that it is much easier for the legislature to overrule statutory precedents than it is for the people to overrule constitutional precedents. But stare decisis has never been an absolute rule in either context. Has the Supreme Court been excessively reluctant to reconsider high-profile precedents that clearly misinterpreted the original meaning of the Civil Rights Act of 1964 and similar statutes?

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Mr. Michael A. Carvin, Partner, Jones Day
  • Mr. William S. Consovoy, Partner, Consovoy McCarthy PLLC and Adjunct Professor, Antonin Scalia Law School, George Mason University
  • Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School
  • Prof. Neil Kinkopf, Professor of Law, Georgia State University College of Law 
  • Prof. Nelson Lund, University Professor, Antonin Scalia Law School, George Mason University
  • Moderator: Hon. Diane S. Sykes, United States Court of Appeals, Seventh Circuit

Speakers

Event Transcript

Hon. Diane Sykes:  Good afternoon, everyone. If those of you who are coming in can please find a seat, we’ll get started. There are some seats in the front.

 

      All right. Good afternoon, everyone, and welcome to this panel discussion of “Stare Decisis in Civil Rights Cases.” My name is Diane Sykes. I serve on the Seventh Circuit Court of Appeals in Chicago, and it’s my pleasure to moderate this panel discussion this afternoon.

 

[Applause]

 

      Thank you. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any individual because of such individual’s race, color, religion, sex, or national origin. Some of the Supreme Court’s interpretations of this transformational statute have been controversial, notably, the Court’s 1971 decision in Griggs v. Duke Power Company, which recognized a theory of liability under Title VII for employment practices that are facially neutral; that is, they do not discriminate intentionally but have a disparate impact on racial minorities or persons in another protected class, and the Weber and Johnson cases in 1979 and 1987 which permitted employers to use affirmative action practices that entail intentional discrimination in favor of racial minorities or persons in another statutorily protected class.

 

      The Griggs disparate impact principle was codified in the Civil Rights Act of 1991. The Court’s affirmative action precedents remain on the books but can be difficult in application, as was seen most recently in the Court’s 2009 decision in Ricci v. DeStefano. In this respect, our foundational anti-discrimination law continues to elude stable construction. And just last month, the Court heard arguments in three cases that require the Justices to consider whether Title VII’s ban on employment discrimination because of sex covers discrimination because of a person’s sexual orientation or transgender status.

 

      Since the statute’s inception, the federal appellate courts had uniformly said no, holding that sexual orientation and transgender discrimination are different in kind than sex discrimination. Two years ago, my court, sitting en banc, overruled that stable interpretation and the Second Circuit soon followed suit. Now, the Supreme Court will decide.

 

      The principle of stare decisis is generally thought to have stronger force when applied to statutory questions than to constitutional questions, largely based on the rationale that it is far easier for Congress to override statutory precedents than it is for the people to override constitutional precedents by amending the Constitution. Our panel will discuss stare decisis in the context of statutory civil rights cases.

 

      Our panelists are well known to you, and time is short, so I will keep the introductions short. Professor Nelson Lund will start our conversation. He’s on my far right. He is the University Professor at the Antonin Scalia Law School at George Mason University where he teaches constitutional law and related courses. Professor Lund graduated from St. John’s College and holds a master’s degree from Catholic University, a Ph.D. from Harvard, and a J.D. from the University of Chicago Law School.

 

      Neil Kinkopf will follow him. Professor Kinkopf teaches at Georgia State University College of Law where he specialized in constitutional law, civil procedure, and legislation. He has also taught at the law schools at Case Western and Duke. Professor Kinkopf holds a bachelor’s degree from Boston College and earned his J.D. at Case Western Reserve University School of Law.

 

      Next in line is Michael Carvin, to my left, a trial and appellate specialist at the Jones Day Law Firm here in Washington, D.C. Mr. Carvin is a leading member of the Supreme Court bar, having argued ten cases and counting, and he has argued in almost every federal appeals court in the country, including my own, before panels including yours truly, your humble moderator. And I will resist the temptation to interrupt him with questions almost immediately. Mr. Carvin holds a bachelor’s degree from Tulane University and a J.D. from George Washington University School of Law.

 

      And finally, we’ll hear from Professor William Eskridge, Jr. He is the John A. Garver Professor of Jurisprudence at Yale Law School, where he teaches courses and writes on topics in constitutional law and statutory interpretation, among many other areas of expertise. Professor Eskridge holds a bachelor’s degree from Davison College, a master’s degree from Harvard, and a J.D. from Yale Law School.

 

      With that, I will call on Professor Lund.

 

[Applause]

 

Prof. Nelson Lund:  Well, thank you very much, Judge. It’s an honor to be here.

 

      Quotas and preferences for favored racial groups and for women have become an established feature in the modern workplace, largely because of two Supreme Court decisions, Weber and Johnson, that rejected the plain language of the Civil Rights Act of 1964. In 1991, Congress either overruled those decisions or at the very least, deprived them of precedential authority.

 

      Now, in order to explain how that happened, I’ll have to give a little background. Title VII of the ’64 Act by its terms forbids employers to discriminate against any individual because of such individual’s race, color, religion, sex, or national origin. This obviously applies to intentional discrimination, whether its overt or covert. In the Griggs case in ’71, the Court unanimously held that the statute also prohibits unintended adverse effects on racial groups whose members are disproportionately lacking in the requisite qualifications for a job. The Court then created an exception for practices that resulted in racial disparities that are smaller than some unspecified large magnitude. And finally, even if there is a sufficiently large disparate impact, the Court said the job qualifications set by the employer are permissible if they have some unspecified business justification.

 

      There’s no hint of these exceptions in the statute, which is not surprising since there’s no hint of the disparate impact rule to which they are exceptions, nor was there any support for any of this in the legislative history. The Supreme Court just made the whole thing up.

 

      Eight years later in Weber, the Court legalized intentional discrimination. The case arose from a program adopted in a collective bargaining agreement designed to train some of the employer’s unskilled employees for higher paying skill jobs at the company. Slots in the program were limited, and the slots were to be allocated by seniority. Under pressure from the Federal Labor Department, however, the employer and the union agreed to an exception from the seniority rule by imposing a 50 percent quota for black workers. The plaintiff in the case was a white worker who had more seniority than some of the black workers who were admitted to the program.

 

      At the outset of the majority opinion, Justice Brennan acknowledged that the quota violated what he called the statute’s literal language forbidding discrimination because of race. Most of his opinion was devoted to arguing that the overt racial discrimination entailed in this racial quota was consistent with what he called the spirit of the statute. Brennan purported to find evidence of this spirit hiding behind other provisions of the text and in the legislative history. Justice Rehnquist’s dissent systematically demolished every bit of the supposed evidence and proved that the Court had introduced into Title VII a tolerance for the very evil that the law was intended to eradicate.

 

      Eight years later, the Johnson case gave approval to a preference given to a white woman over a more qualified man. Once again, Justice Brennan wrote the majority opinion. Weber had relied entirely on evidence that Title VII was meant to address what was called in the opinion and in Congress in ’64 “the plight of the Negro in our economy,” and its holding extended only to measures aimed at eliminating racial imbalances. Unable to invoke stare decisis in Johnson, Brennan claimed that Weber should be extended beyond its holding because Congress had not overruled it.

 

      Justice Scalia’s dissenting opinion skillfully refuted all of Brennan’s arguments, much as Rehnquist had done in Weber. But I want to focus on the fact that Johnson’s rationale for preserving and extending Weber rested entirely on a single proposition; namely, that Congress had tacitly endorsed Weber by failing to overrule it. I think that theory’s plainly fallacious, but if we assume that it’s correct, it follows that Congress can also tacitly remove or repudiate the tacit endorsement that Brennan attributed to the legislature’s post-Weber inaction.

 

      And that’s just what the Civil Rights Act of 1991 did. This statute resulted from a bitter, two-year debate about a series of employment discriminations from the Supreme Court in 1989. Most of the controversy arose from efforts to codify a very aggressive, disparate impact theory that the Supreme Court had rejected. Proponents said they were trying to restore Griggs. Opponents defended the Supreme Court decisions that had interpreted Griggs more narrowly, and opponents also called this a quota bill that would force employers to use racial preferences to avoid the imbalances that could trigger disparate impact liability. In the end, Congress codified the disparate impact theory in an extraordinarily ambiguous form. This allowed both sides to claim victory in public while privately lamenting the outcome.

 

      But the statute made a number of other changes to Title VII as well. Most important for my purposes today, Congress added a new provision to the statute. It says, and I’m quoting, “Except as otherwise provided in Title VII, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”

 

      Now, on its face, this section of the ’91 act overrules Weber and Johnson. Race and sex were indisputably motivating factors in both cases and in every other so-called affirmative action program. The only way to escape this conclusion is by appealing to a savings clause in the ’91 statute which provides, and I’m quoting, “Nothing in the amendments made by this act shall be construed to affect court ordered remedies, affirmative action, or conciliation agreements that are in accordance with the law.”

 

      Now, the natural reading of this language would apply only to court ordered affirmative action, a traditional equitable remedy in which preferences are given to specific victims of proven forms of discrimination. Even if one assumes that the language may apply more broadly, the affirmative action would still have to be in accordance with the law. If Weber and Johnson  are the law, the ’91 statute becomes internally inconsistent as well as inconsistent with the anti-discrimination language adopted in 1964. But judicial opinions are only law in a metaphorical sense, whereas Title VII is undoubtedly the law. And Title VII still provides, as it always has, that intentional discrimination because of race or sex is forbidden.

 

      Although the ’91 act overrules Weber and Johnson on its face, the legislative history indicates that the new provision about motivating factors was aimed at overruling a different Supreme Court decision called Price Waterhouse. Nor is there anything in the legislative history specifically indicating that it was also meant to overrule Weber and Johnson. In fact, one of the strangest features of the lengthy process that led to the ’91 act was the absence of commentary on these cases, Weber and Johnson. The debate focused largely on disputes about whether disparate impact liability would lead employers to adopt racial preferences, yet there was almost a conspiracy of silence about the legality of such preferences.

 

      Does that mean the Congress has, in effect, confirmed Justice Brennan’s assumption that the legislature’s inaction constitutes approval of Weber and Johnson? On the contrary. If Congress can confer approval by inaction, it can just as easily withdraw that approval in the same way. And that’s just what happened in 1991 when Congress added or amended at least 22 statutory provisions dealing with employment discrimination. In doing so, it expressly endorsed the controversial Griggs decision, but it chose not to endorse Weber and Johnson. What’s more, this is specifically confirmed in the legislative history, which is a lot more than Brennan was able to say in Johnson.

 

      A memorandum submitted for the record by fourteen senators who supported the final compromise specifically said that nothing in the new statute, including the savings clause,  disapproved or approved of Weber and Johnson, and nobody in either house contradicted that statement. Thus, even if one accepts Brennan’s dubious theory of approval by inaction, Congress withdrew that approval through its deliberate inaction in 1991.

 

      Recall that the text of the ’91 statute plainly overrules Weber and Johnson in the new motivating factors provision. Even if one invokes the legislative history to reject that plain meaning, the text and legislative history of the new statute deprived Weber of the precedential authority that the Court attributed to it in Johnson. At a minimum, therefore, the ’91 statute frees the courts to reconsider those decisions. And since both of them are indefensible on the merits, as Rehnquist and Scalia proved in their dissenting opinions, the Court should now overrule them both. Thank you.

 

[Applause]

 

Prof. Neil Kinkopf:  First, I just want to say what an honor it is to be here. This is a really, really great honor, to put it mildly, to appear in such a large room filled with people who think, and think deeply, about important issues of law and public policy. I’m also quite conscious of being a member of a panel with really deep thinkers about law and about the issues before us. And so finally, I guess I’m conscious of the fact that this is a lunch talk, and I want to offer food for thought. I don’t want to offer, though, a full-blown filling entrée. Instead, what I’d like to offer are some tapas, a few small plates. And the beauty of tapas, of small plates, is they’re meant to share.

 

      So I want to offer a few ideas that I mean to share with the panelists to just get conversation going, and also with the room because I’m really curious to hear what people in the room have to say about the issues that this panel means to cover. And those issues, I think, come from the theme of the conference overall, originalism, and the theme of this panel, stare decisis in Civil Rights Act cases. And I think a great vehicle for thinking through originalism, or as we call it in the statutory interpretation setting, textualism, is this set of cases that the Supreme Court took and heard oral argument in a few weeks ago relating to the application of Title VII and whether or not it protects LGBTQ people.

 

      So first, I think, what are the values of originalism? What values does textualism promote? So first of all, it promotes formal compliance with the Constitution. The Constitution says that laws must be passed through bicameralism in presentment. It’s only the words, the text of the statute that go through that process, and so it’s only the words that are the law. It is not the intentions or expectations of the drafters that are the law. It’s the words of the law. The law is what it is, regardless of what the legislators intend.

 

      Closely related to that is a rule of law value. So when statutes are understood by the objective public meaning of the words rather than by the intent of the statute drafters, that constrains law to be law. And we are governed by the law and not by the intentions of the law givers. We are, therefore, a government of laws and not of men.

 

      Third, textualism constrains judges. If judges start looking to purpose intent — and I think Nelson’s talk illustrated this point rather well — it becomes malleable. The statute can be made to mean whatever the judge wants it to mean. And so then we end up with a situation where it is not emphatically the province and duty of the judicial department to say what the law is, but rather to say what they would like the law to be.

 

      I think these are all strong arguments in favor of textualism, and if we apply textualism to the Title VII case, I think the result is really rather easy. Title VII prohibits employers from discriminating because of race, color, sex, religion, or national origin. If an employer fires an employee because they marry a person of the wrong race, that is discrimination forbidden by Title VII. If an employer fires a person because they marry someone of the wrong religion, that’s discrimination in violation of Title VII. If an employer fires someone because they marry someone of the wrong national origin, that’s discrimination in violation of Title VII. How, then, can it not be that firing someone for marrying a person of the wrong sex is not discrimination forbidden by Title VII?

 

      Well, one answer that you hear is that Title VII meant to address a different evil. Including the word sex was meant to address the evil of sexism, not the evil of homophobia. But that’s interpreting the law according to its purpose, not a textualist basis for understanding or interpreting the statute. In that respect, the move partakes of the opinion the Court issued in the great bête noire of textualists, Holy Trinity Church where the Supreme Court interpreted labor or service of any kind not to apply to Christian ministers, even though they perform a labor or service of any kind, because their labor or service didn’t involve the kind of evil that this statute was meant to redress. All right, first small plate.

 

      Second small plate: I want to talk a little bit about stare decisis. Stare decisis is the doctrine that courts should uphold precedents. It promotes the values of stability and predictability in the law. It promotes the value of equality in that similarly situated parties are treated similarly. It promotes the constraint of judges, prevents them from simply imposing their preferences or their will. And I think most importantly, it promotes the institutional legitimacy of courts. As a result, courts tend to be loath to overrule precedent.

 

      And I think that’s been a particularly strong value in the Rehnquist and Roberts courts. Think, for example, of the federalism case, Garcia v. San Antonio Metropolitan Transit Authority. In that case, Justice Rehnquist promised in his dissenting opinion to come back one day and overrule Garcia, but he never did formally. Effectively, however, he did.

 

      But to see how Garcia becomes not such good law anymore, you have to follow through the anti-commandeering doctrine and how it’s developed in the years after Garcia. You have to follow the expansion of the understanding of state sovereign immunity far beyond what’s indicated in the text of the Constitution. And you have to follow through the Court’s limits on the scope of Congress’s power under Section 5 of the Fourteenth Amendment which could abrogate state sovereign immunity.

 

      But who can follow all of that? Well, certain kinds of very specialized lawyers can. But the problem is, and Garcia is but one example of what I think is a strong trend, was on the Rehnquist Court and is on the Roberts Court, of instead of overruling precedents, distinguishing and limiting them to death. And the problem with that approach is that it undermines transparency. Only very specialized lawyers can see what the Court is doing.

 

      And so in this connection, I want to raise another case that the Court has taken this term, and that’s the Louisiana abortion case. Now, I don't know why the Court took that case. I don’t pretend to know the Court’s mind. But I do think that case is being taken at a time when it’s easy to look around the country and see that many states have adopted sets of regulations that are designed to make the provision of abortion services virtually impossible, death by a thousand regulatory cuts.

 

      And it’s my hope that as these cases and as this background comes to the Court, if the Court is going to overrule Roe v. Wade that it does so expressly in a way that’s transparent and the public can know. I think that’s something that’s very contrary to the instincts of Chief Justice Roberts because I think he’s so committed to preserving the legitimacy, the public standing of the Court. But I think it’s really important for the Court to do that forthrightly if that’s the direction it’s going to go in.

 

      Third plate is Trump v. Hawaii, the travel ban case from last year. Now, Trump v. Hawaii fits under the heading of stare decisis, I suppose, because at the end of the opinion, the Supreme Court struck down the ancient and notorious case Korematsu, which upheld the Japanese internment camps during World War II. And I think that’s an interesting counter example to what we typically think of with respect to stare decisis. In that instance, I think striking down the precedent, overruling the precedent actually enhances the standing and legitimacy of the judiciary.

 

      But I raise the case also because I think it’s an important case from the standpoint of doing statutory interpretation in the context of presidential power. And three of us on the panel used to work at the Office of Legal Counsel where interpreting statutes relating to presidential power is something you do almost every day. And so I think the Court’s decision in Trump v. Hawaii is a really important one in that it shows that the Court is inclined to extend a great deal of deference to the President’s interpretation of statutes and to the President’s exercise of power pursuant to statutory authority.

 

      It provides an interesting counterpoint, I think, to the Court’s current hostility toward the Chevron doctrine because it looks an awful lot like Chevron, only for the President. Now, it’s interesting that Chevron has never been interpreted as applying to the President, and that Chief Justice Roberts, before he was appointed to the Supreme Court, as an appellate court judge actually noted that in a concurring opinion and said that he would apply Chevron to the President.

 

      And so what we get is the doctrine of great deference to the President, and there are reasons that that’s a good thing, but there are things to be concerned about relating to it as well, and I think the Chevron comparison illuminates that. So the concern would be great deference to the President’s authority under statutes is apt to relieve the President of legal constraints. And so if you think of a president that you don’t like, then that kind of deference to presidential power is a troubling thing. If you think about it in the context of presidents you do like, then you’re apt to think it’s a good thing.

 

      All right, so those are my small plates. Thank you.

 

[Applause]

 

Michael Carvin:  Good afternoon, also good to be here. I’d like to pick up, actually, on the points that have previously been made, first about Weber and Griggs, and then also about the recent cases that are involving sexual orientation being covered by Title VII.

 

      In terms of stare decisis in Title VII, I think the fundamental thing you need to understand is that no statute has been so twisted by the judiciary to mean precisely the opposite of what it says. It’s really a frontal assault on democracy. In 1964, the nation came together, greatly deliberated this landmark legislation, and emerged with a basic moral principle embodied in law, which is that no individual in the United States can be disadvantaged on the basis of irrelevant characteristics like skin color.

 

      Within a few years, a handful of judges decided that no, it meant precisely the opposite, that you were required to use race in employment, that you are allowed and required to discriminate against at least non-black employees, and so literally turned the statue that was the embodiment of the democratic process completely on its head to mean the opposite of what its plain words meant.

 

      It doesn’t take any kind of legal scholar to figure out what Title VII said. As has been pointed out repeatedly, it says you can’t discriminate against any individual because of race, sex, national origin, etc. So as Nelson’s really already pointed out, Weber first took the words any individual and made them different, said, well, any non-black individual, you can certainly discriminate against them. When Congress said any individual, apparently, they only meant members of certain select racial groups.

 

      That was dismantled, as Nelson’s already pointed out, by Rehnquist’s dissent, both in terms of the language and the legislative history. And the only response by the majority was it would be ironic indeed that a statute that was intended to help blacks actually frustrated their progress. And as Justice Rehnquist pointed out, that’s about as ironic as saying two wrongs don’t make a right. So that was the first part of the statute that the judiciary rewrote.

 

      The second part was “because of race.” It said because of race. You can’t distinguish between individuals because of race, because of their skin color. And Griggs said, “Well, no. If you make a distinction that’s wholly unrelated to race, say, their scores on a race-neutral test or whether they’ve got a high school diploma, that is also now encompassed within ‘because of race.’”

 

      The statute doesn’t say because of things statistically associated with race; it says race. And when you convert it into a rule against anything which disadvantages a particular racial group statistically, what you of course have done is established a quota system. An effects test is a quota. It says you must hire and promote in proportion to the availability of the particular group in the work force or the community. So it’s an absolute, unyielding quota.

     

      Now, as Nelson pointed out, they had to make up, therefore, a justification to make it not a strict quota. They were never entirely sure what that justification was because, again, they had to make it up since none of this was in the statute. And it was variously described as business necessity. If taken literally, that means you need to hire on the basis of quotas unless it’s necessary for the survival of your business not to do so, to engage in race-neutral hiring. So this is obviously, as Justice Scalia pointed out in his Ricci concurrence, in great tension with the Constitution’s Fourteenth Amendment, requiring people to hire people on the basis of quotas. So that was the second rewriting by the judiciary of the plain language of the statute.

 

      Now we’re confronted with the third effort to rewrite the statute, and that is, of course, saying that sexual orientation comes within the discrimination because of sex. And it’s ironic, as we’ve heard today, that people who embrace Griggs and Weber have now become born-again textualists. And I certainly welcome them to the party. But listening to them is a lot like -- liberals trying to be textualists is like children playing with handguns because I don’t really think they understand what this is all about.

 

[Laughter]

 

      I don’t care if Congress intended to protect homosexuals in 1964, but I do care what was the law they enacted. And the law they enacted was you can’t treat people differently because of sex. It didn’t say in plain language because of sexual orientation. The public meaning of that word is obvious to everybody. If an employer fired every gay and lesbian employee, not one person in the United States would say he’s discriminating on the basis of sex. He’s discriminating on the basis of sexual orientation.

 

      Discriminating on the basis of sex is, for those of you new to the country, a distinction between men and women and not a distinction between people who are romantically involved with people of the same sex and those who are romantically involved with people of different sexes. And this is so obvious that when the Supreme Court struck down gay marriage in the Obergefell decision, not one Justice, not one party argued that this is prohibited sex discrimination.

 

      Obviously, the Fourteenth Amendment prohibits sex discrimination. If this was remotely a plausible interpretation, all they would have had to say was this is sex discrimination discriminating against gay marriage and therefore, we’re striking it down. But it never even occurred to anybody to make that counter textual, counter linguistic argument.

 

      Now, we fast-forward, and it’s becoming convenient to make this argument, and we’ve heard the rationale. “Well, you know, if it was interracial marriage, and you discriminated on the basis of someone’s romantic partner, their race, that would be racial discrimination.” But that’s a semantic game. Discrimination on the basis of someone’s partner’s sex is the very definition of sexual orientation discrimination.

 

      The only distinction between heterosexuals and homosexuals is the gender of their partners. So if you’re discriminating against somebody because of the sex of their partner, you’re not engaging in sex discrimination. You’re engaging in sexual orientation discrimination. And obviously, in the racial context, if you ask somebody why is the employer opposed to interracial marriage, the answer is race. If you ask somebody why is the employer opposed to same-sex marriage, the answer would be animus or hostility towards homosexual relationships.

 

      So this is purely wordsmithing. This has nothing to do with either the English language, much less the intent of Congress, which, again, is proved by the fact that for years, they’ve been trying to amend Title VII to add sexual orientation because that’s an entirely different basis of discrimination. And there are many statutes out there which do single out sexual orientation discrimination.

 

      So now to return to the topic of precedent. What do we do with an undemocratic, judicial assault on a statute where they’ve tried to twist the meaning of the words to accomplish liberal goals that were never embodied in the democratic process? With respect to Weber, I think Nelson’s made an excellent argument about why the ’91 Civil Rights Act requires you to overturn that. I’d also point out that since we’re all textualists now, since everybody on the Court this term has claimed that it’s the text of Title VII that governs, regardless of intent, that means you have to overturn Weber because Weber said no, the spirit was overruling the letter.

 

      Finally, of course, Weber’s entire rationale, as Nelson pointed out, was that Title VII wasn’t designed to overcome the history of segregated workforce in the United States. Well, Title VII was enacted 55 years ago. We’re in our third generation of living under Title VII’s regime, so we have eliminated all of these vestiges of segregation. So the rationale for continuing Weber after its goal has been accomplished vanishes. It’s kind of like in the Michigan cases where the Supreme Court said, “We’re going to end diversity in 2025,” or whatever it was. It seems to me the end date for Weber has come and should be done.

 

      Griggs is a little more complicated because of the ’91 Civil Rights Act. I can’t bore you with this. Nelson’s entirely right. Their endorsement of disparate impact was extraordinarily ambiguous. So whether or not there’s any kind of life to disparate impact, I think, is a dicey question, given the ’91 Civil Rights Act, but there’s two important points. One is the key under disparate impact is not so much whether or not you have to justify the action, it’s what you need to do to justify it.

 

      And there were two decisions prior to the ’91 Civil Rights Act called Watson and Wards Cove where they basically said if you can come up with a rational justification for your test or your hiring policy, then it’s okay, which would greatly reduce the quota force of Griggs. And I think there’s a very strong argument that the ’91 Civil Rights Act did not overturn Watson and Wards Cove, and that should be done. Plus which, if you don’t interpret Title VII’s disparate impact to allow the employer to come up with a rational justification, then it does impose this quota regime that Justice Scalia noted in Ricci and under the doctrine of constitutional avoidance. You need to do away with it.

 

      The decisions this term, obviously, have nothing to do with stare decisis. But if they’re decided correctly, we won’t have to confront the mischief that they’ve created in future years. Thank you.

 

[Applause]

 

Prof. William Eskridge:  Well, I think Nelson was the appetizer. Neil, I think you were the tapas. Michael, you were the meat and potatoes. And I don’t know what that makes me. Maybe I’m the dessert, and I’d like to think a just dessert.

 

[Laughter]

 

      So let me pick up on the conversation where Michael left it. Michael, I appreciate your very candid comments.

 

[Laughter]

 

      I would say textualism is not for conservatives. My understanding -- I was very good friends with Justice Scalia. I’m a great admirer of any textualists from Easterbrook and Scalia, who founded this. And I can assure you the Justices’ view, and I’m pretty sure Frank Easterbrook’s view, is that textualism is not for one ideological group. And so you should be welcoming any kind of political or whatnot use of textualism if you think that it is the most legitimate way to approach statutory interpretation.

 

      Now, words like semantics and wordsmithing, well, that, frankly, is what textualism is all about, that, look, when you pass a statute, you’re enacting words. Words have meaning, and the role of judges and the rest of us it to apply that meaning, even to new circumstances.

 

      Before I go to the stare decisis stuff, I do want to give you a thought experiment for Title VII. And we have put at your table, at my request, a copy of the statute, fragments of it, obviously, and some precedents and some amendments to the statute. So look at the statute. It says it’s unlawful for the employer to discriminate against any individual because of such individual’s sex and other characteristics. Now, turn it over, and you get 703(m), which Nelson has quoted, but it gives it to you in piece of paper. 703(m) says an employer is culpable of an impermissible consideration of sex, as well as race, etc., when sex is a motivating factor for any employment practice.

 

      Now, consider these three hypotheticals. Employer fires X. Let’s say X is a man, and the employer fires X because X is attracted and dates other men. That’s the Zarda case. Let’s say X is a black person, and the employer fires the black person because the black person dates Y, who is a white person. That is race discrimination, to discriminate against interracialsexuals. You can play a word game and say that no, that’s not race discrimination, that’s discrimination against interracialsexuals. You can do that, but it’s still race discrimination. Let’s say X is a Roman Catholic, and the employer is happy to hire Roman Catholics, but — you see where I’m going with this — not Roman Catholics who date Protestants. Say Y is a Protestant. You fire X because of the kind of person X is dating or is sexually attracted to. So that’s basically the Zarda case in terms of the statutory words.

 

      And I would submit that if you want to be a textualist, words have meaning. Justice Scalia, actually, in a very famous opinion which is cited for you on my handout, in the Oncale case ruled that if an employed tolerated homosexual harassment, which were the facts in Oncale, the employer could be held accountable under Title VII. That result might have been unthinkable in 1964, but that result for a unanimous Court was suggested by the statutory text.

 

      Now, I do want to talk about the topic that Judge Sykes very generously introduced to us, and that is stare decisis and original meaning. And I want to start with some — if I’ve not already been heretical, I’m going to get there very quickly — some of the ways in which stare decisis, as the other panelists have suggested, might be in some tension with original meaning, however defined. And I would suggest that if you want to look at the original meaning of the Constitution, stare decisis has got to be considered an important part of the institutional architecture of Article 3 and an important part in the rule of law and the legitimacy of government.

     

      Start with Federalist Paper No. 78, which is the most important document on the debating history of Article 3 and the guarantee of judicial independence. Federalist No. 78 says, and there’s a lot more language, but it also says this: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” And there’s a lot more. That’s not surprising, because we come from a common law tradition where precedent was considered literally law. Now, in interpreting the Constitution, Judge Sykes, I would suggest that what you do, you and your colleagues, when you interpret the Constitution and statutes, you are making law. Now, you’re doing the best you can to follow whatever your methodology is, but your precedents are binding law. They’re part of the rule of law.

 

      And the rule of law is actually very important, and precedent is actually very important for a second reason that Neil emphasized, and that is they do constrain judges. And I would suggest that precedent and stare decisis constrain judges in two different ways. And I would say the following: One is ex post, and that is that precedent does take off the table and settles certain rules from the statute, sometimes statutory purposes, plans, etc., etc.

 

      But precedent also constrains judges ex-ante because when you’re writing an opinion, a judge who know that this opinion is going to be binding in the future, including for facts that she doesn’t anticipate, stare decisis does press judges to narrow their opinions, to limit them to particular facts, and usually, to err on the side of incremental law rather than making big declarations where you don’t understand the consequences or cannot foresee them. So I would suggest statutory interpretation stare decisis is actually very important and is worth some degree of respect.

 

      Now, another point of my little handout that I’ve given you is to suggest that here’s another role that precedent plays, that precedent and statutory amendments work hand in glove for many of the statutes that we like to talk about like Title VII. And what I’ve shown you there is not all the precedents. I’ve not listed Weber and some of the others — there are a lot of other important ones — but a lot of the precedents that are relevant to the Title VII issues, Zarda, that are before the Court today.

 

      And as you see, precedents sometimes stimulate statutory amendments, as in the case of Hopkins. Hopkins is on the back. Hopkins is the case where the complainant was a woman. Price Waterhouse didn’t promote her, not because she was a woman. They had women they would promote. But she was too macho for them. She was not feminine enough for them. She didn’t conform to gender stereotypes. Now, many women do conform to them, and that was fine, but she did not.

 

      And the Supreme Court ruled two things. Number one, the majority of the Court, five Justices and possibly six, Justice White, said she was alleging sex discrimination, discrimination because of her sex. But number two, the employer had credible evidence that it had other reasons for not promoting her, and it remanded for a burden of proof that would be on Hopkins to show that that was the main reason.

     

      Now, as other people have already said, Congress in 1991 overrode Hopkins, overrode some of these other decisions, but it only overrode the burden of proof part of Hopkins with a much more liberal burden of proof, and that’s 703(m). But the part of Hopkins that defined discrimination because of sex was not only left alone, but was repeatedly endorsed, including by committee reports. That’s of some significance. So that’s important.

 

      Now, even if stare decisis were not important for the rule of law, formalism, legitimacy, and so forth, it would still have a number of values. And one of them, a very important one, is reliance. Keep your eye on the ball. If precedents are relied upon by either the public like Congress or by private entities like employers, it is an independent reason why precedents should not be easily revisited. That’s in addition to all the formal arguments.

 

      Moreover, stare decisis — and this was true of the common law, it’s true of the constitutional law, it’s true of statutory law — stare decisis does have the theoretical virtue of an orderly, moderate evolution of law that does not yo-yo or whipsaw. And that value of stare decisis also might be here in play in the Title VII cases. What does the Supreme Court do with Oncale? That’s the homosexual harassment case, Justice Scalia. What does it do with Hopkins? That’s the Ann Hopkins gender stereotype case.

 

      And then, returning to legitimacy, and that is yet another value of stare decisis is that stare decisis invites the following: it invites an overlapping consensus across time and sometimes across generations. So rather than each generation of judges renouncing the work of their predecessors, particularly when that work has been acquiesced in by Congress, stare decisis suggests for each new generation what can you learn from the precedents that have already been handed down? How can they be practically applied to the circumstances that we face today, and in particular, not only different generations but also different political perspectives applying the same kinds of rules and trying to work out some kind of moderate course?

     

      Now, let me conclude with this, and that is, of course, there is a cost to stare decisis. And no one believes in absolute stare decisis. Stare decisis is particularly, as I understand it, relaxed in constitutional cases. That’s Justice Brandeis’s insight. And it’s supposed to be rather tight in statutory cases, but there are still some overrulings.

 

      Justice Thomas, known to some of you, was at Yale a couple of weeks ago, and told this anecdote. A student asked, “Well, Justice Thomas, what’s your view about stare decisis?” And he laughed, and he said, “Well, you know, there are many cases where a court could say A, or it could say B. And I’m okay with that. But there’s some cases where the court says Z.” Okay, there you are, Nelson. Now, I have a feeling -- and then he would maybe monkey with those. I have a feeling that Justice Thomas would also depart for C and D, and you don’t have to go all the way to Z for Justice Thomas.

     

      Now, I will say that that has not been the Supreme Court’s practice, I think, at any point in its history. In other words, where it thinks it could be A or B, but I don’t think C is in the ballpark, and so I’m going to overrule it. I will repeat: That has never been, to my knowledge, the Court’s practice in our history.

 

      The typical practice has been that in Patterson, we give you the citation of Patterson in the handout, and Kimball, a more recent case, these are statutory cases, and that is that precedent should be overruled only when they were both erroneous and, more importantly, the error is harmful error, that they are out of sync today strongly with the way the law has evolved and/or they are harmful in an affirmative way to the statutory policy. And that’s a test that sometimes can be met, and that’s what you all are trying to do.

 

      Now, I’ll finally acknowledge at the end a point that was raised, I think, by both Neil and Michael, and that’s also a reality, and that is that stare decisis does not tell Justices they cannot evade precedents, distinguish precedents, limit precedents, narrow precedents, expand precedents, etc., etc. And so there is always room for play with precedents.

 

      But I would recommend for you a Justice who’s not often mentioned anymore at The Federalist Society, and that is the second Justice Harlan. The second Justice Harlan, who is one of the great legal minds, I think, in the history of the Supreme Court, and I recommend him to The Federalist Society, the second Justice Harlan was someone who sometimes strongly disagreed with where the Court was going, and sometimes persevered in his disagreement and was often right. But Justice Harlan’s approach to precedent was an approach that asked, “What can I now learn from the path of this Court’s decisions, and how can I best accommodate the law that I am now finding to my now reading of the record in this next case?” And I would offer that as, perhaps, the final dessert.

 

[Applause]

 

Hon. Diane Sykes:  All right. Thanks to all for those opening remarks, which were very provocative and thought inspiring, good food for thought. I think we have a couple of different strands of disagreement and some agreement here from the specific application level in the Title VII cases that are now pending before the Court on the sexual orientation discrimination and transgender discrimination issues, but then also at the broader theoretical level.

 

      So maybe let’s start with the specific and then move to the theoretical. The specific points of disagreement about the currently pending Title VII cases, I think, were touched on by both Neil and Mike, and, of course, Professor Eskridge as well. So perhaps you’d like to respond to your fellow panelists on that specific issue, and then we’ll take the broader approach to the theory of stare decisis in statutory cases.

 

Prof. Neil Kinkopf:  Okay, sure. So if it’s true that we are all textualists now, I’m reminded of Milton Friedman declaring, “We are all Keynesians now.” And when Milton Friedman declared that, it meant no one was a Keynesian anymore. And it may be that if we are all textualists now, no one is a textualist anymore. And textualism just reduces to wordplay, to games, and so I’m sensitive to Mike’s point that it’s a handgun that I, the child, is wielding.

 

[Laughter]

 

       But I think when I hear the arguments that Mike makes, they have power, but they don’t have power for me as textualism. So for example, the argument that, well, Congress has considered legislation repeatedly to grant sexual orientation protections, that kind of post-enactment legislative history is antithetical to textualism. Ah! But we don’t raise it as post-enactment legislative history. We raise it as something that confirms the original understanding of Title VII as having never included sexual orientation.

 

      Well, you can tell the jury that that’s why you’re introducing the evidence and not to consider it for other purposes, but everyone who’s ever tried a case to a jury knows that once you get the evidence in, it’s going to play, regardless of what kind of instruction the judge puts on it or what kind of limitation the instruction attempts to put on it. And so the powerful arguments, and they are powerful arguments, are that the enacting Congress did not expect Title VII to apply to sexual orientation. I think that’s probably true, although it was a killer amendment, so they might have been pleased to know it would have that kind of broad application.

 

      It’s also, I think, true that at the time -- well, it’s also true that we think of sexism and sexual orientation discrimination or homophobia as different things. But those aren’t in the statute. Those words aren’t in the statute. And so to draw that distinction introduces a refinement that itself is not directly in the text of the statute, and so in that respect, I think, represents legislating from the bench. And I think, here, I would just go back to the point that Bill made, and that is that when judges decide cases, they make law. They legislate from the bench no matter how they decide. It’s inevitable and unavoidable. So we are all textualists now, and I’m afraid that may mean none of us actually is a textualist anymore.

 

Michael Carvin:  Yeah, I’m still a textualist.

 

[Laughter]

 

      And it has nothing to do with what Congress thought about. It has nothing to do with anything except pulling out a dictionary --

 

Audience:  Louder, louder.

 

Michael Carvin:  Can you hear this? Yes. Pull out a dictionary. On the basis of sex is different than on the basis of sexual orientation. Those are two different traits. One is prohibited, one is not. Let’s apply it to the real world. An employer puts up a sign, says “No homosexuals need apply.” All are banned. Raise your hand. Among an English speaking person, does that discriminate on the basis of sex because of sex? Are people being excluded because they are a man or a woman, or are they being excluded because they are homosexual? Those are two entirely different things. It has nothing to do with whether homophobia was contemplated. It has to do with the basis for the exclusion, which is in the statute.

 

      Now, they have realized that when you mean sexual orientation discrimination, you mean discrimination on the basis of your partner’s sex. So they come up with this analogy to, well, what about your partner’s race? And then they play this word game which distorts the text to say that discrimination on the basis of your partner’s sex is discrimination on the basis of sex, but it’s not. It’s discrimination on the basis of your partner’s sex, not because of yours. We tend to blend those distinctions, it is true in the racial context, because you don’t want to penalize people for associating with people of a different race. But at the end of the day, the animus toward interracial marriage is based on race. Animus toward same-sex marriage is not based on sex. It’s based on sexual orientation.

     

      My final and dispositive point is if this is true --

 

[Laughter]

 

      -- Well, I’ve actually already made dispositive points. But if all of this sematic gamesmanship is true that means legislatures are unable to discriminate -- to eliminate sex discrimination without banning homosexual discrimination. If sex means sexual orientation and you want to ban sex discrimination, it is, under this theory, literally impossible to do without engaging in the entirely different public policy justification that I am now going to require employers not to take account of homosexuality. And if that is true, and there’s got to be a distinction between sex and sexual orientation, then that is the most lasting proof that all of these arguments have to be wrong strictly as a textual matter.

 

Hon. Diane Sykes:  Thank you. Go ahead. Yes.

 

Prof. William Eskridge:  Let me talk as a textual matter. Can everybody hear? Okay, in the handout, Michael, I’ve actually given them a dictionary definition from 1964, so you might want to see. Actually, one good thing about textualism is it makes you actually do research. In Webster’s Second, which is a pretty famous dictionary — even Justice Scalia liked that version of Webster’s — defines sex in a very complicated way. Sure, it can mean sex as biology, but it can also mean sex as gender — this is quoting from the dictionary, 1961, a few years before — and also sex as sexuality. And we give you the exact language in the footnote at the bottom of the handout that is on everybody’s table.

 

      So it is all about words, but it’s also all about the way that words come together to convey meaning. So let me just play Michael’s word game for a second and make a few corrections. If you put up a sign on a restaurant, as people would have done if they had been so literate, and say “No interracialsexuals allowed,” that would be race discrimination. Even a restaurant or an employer that was willing to hire a white person but not a white person who dated black people, that would be race discrimination.

 

      Now, Michael’s -- pretty much his only answer is, “Hey, my little hypothetical of X and Y, that was only the sex of the partner.” Does everybody see how wrong that is? So if X is fired because X is a man who dates Y, another man, it’s the sex of X, the employee. If X were a woman who dated a man, that would be great, from the employer who does not like -- does everyone understand that?

 

Michael Carvin:  I don’t.

 

Audience:  No. [Laughter]

 

Prof. William Eskridge:  X is fired because X dates Y. X is a man; Y is another man. Michael says, “Oh, no, you’re fired because Y is a man rather than a woman.” You can look at it that way. But you could also look at it as he’s fired because X is a man and not a woman, because an employer would allow a woman who dates men but not a man who dates men.

 

Michael Carvin:  In either instance, it’s the sex of the romantic partner that is the basis for the adverse action.

 

Prof. William Eskridge:  No, it’s the sex --

 

Michael Carvin: -- No.

 

Prof. William Eskridge:  It’s both. Okay, have you ever heard of the Certs debate? Certs is a candy mint; Certs is a breath mint? It’s both. Okay.

 

[Laughter]

 

Hon. Diane Sykes:  I think many people apply that to Altoids and not Certs.

 

Prof. William Eskridge:  But here’s the other thing that’s going on. Here is the other thing that’s going on, and that is, look, I’m afraid Michael has gotten off on totally the wrong track.

 

Michael Carvin:  Eh. [Gestures]

 

[Laughter]

 

Prof. William Eskridge:  The deep reason why the sex discrimination argument is hard for some people but not all people to get their minds around is that it lacks, in their minds, symmetry. Race discrimination connects even against interracialsexuals, connects the classification, the class that’s harmed, people of color, and an ideology which we call white supremacy.

 

      One reason why a lot of people, cutting through all of the ridiculousness, a lot of people have a problem with the sex discrimination argument as it seems to lack the symmetry of the Loving v. Virginia argument against different race relationships. And that is that the classification, sex -- and remember, Title VII is just a classification statute. As Neil says, it does not mention classes, just classifications. But the classification, sex, does not seem to match up as well with the category of people, gays and lesbians, or the ideology, which sounds like homophobia.

 

      Now, the reason why that argument has more traction today is that it is widely accepted, though not universally, of course, that the discrimination against a lesbian because she’s a lesbian matches up with the discrimination against a lesbian because she’s a woman because both of them impose rigid gender stereotypes on the woman. And rigid gender stereotyping, if you look at precedent, like the VMI case at the Supreme Court level, is the underlying ideology which modern sex discrimination jurisprudence is aimed against. Now, you don’t all have to be persuaded by that, but I don’t want you to leave this room without understanding how the semantic word arguments link up with the larger meaning arguments.

 

Hon. Diane Sykes:  All right. I know, Professor Lund, you had a point to make, but Mike Carvin’s about to jump out of his skin here, so --

 

[Laughter]

 

      -- in the interest of keeping peace on the podium, let’s have at it.

 

Michael Carvin:  Oh, no. I’ve already thoroughly refuted it, and I’m not going to --

 

[Laughter]

 

Hon. Diane Sykes:  Do you want to address the Loving point?

 

Michael Carvin: But I was fascinated with this dictionary definition, which, yes, you point out --

 

Prof. William Eskridge:  -- Well, dictionaries will surprise you.

 

Michael Carvin:  Yeah. No. And you say sex has to do with sexuality, and that is true because sometimes we use sex to mean man or woman, and sometimes we mean sex, you know, to have sex. But what it doesn’t say, remotely say, is attraction to the same sex. That’s not in the dictionary definition. And that would be the basis for sexual orientation discrimination.

 

      Under this theory, if you want to play that semantic game, then anything relating to sexuality would be a prohibited basis. So you couldn’t fire adulterers, promiscuous people, people who engage in sexual harassment because that’s all about sexuality. No. This has nothing to do with same-sex attraction. It’s just that sex has two different meanings.

 

[Applause]

 

Prof. William Eskridge:  May I have a legal response?

 

Hon. Diane Sykes:  Yes, a legal response.

 

Prof. William Eskridge:  I mean, if the test is jumping out of the chair, I’ll jump out of the chair --

 

Michael Carvin:  -- All right.

 

Prof. William Eskridge:  -- and ask you to read the dictionary.

 

Michael Carvin:  I am.

 

Prof. William Eskridge:  No. Hush up. I didn’t interrupt you.

 

Michael Carvin:  Okay. I know.

 

[Talking over one another]:

 

Prof. William Eskridge:  Please, at least, be polite enough not to interrupt me.

 

Michael Carvin:  Please, please, please, please, please, please. Sure.

 

Prof. William Eskridge: So read the dictionary. What’s the middle term that counsel has conveniently forgotten about? Gender. And this is a legal point, Your Honor.

 

[Laughter]

 

      So the legal point is I think in most of the circuits, I think every circuit -- almost every circuit that I know of that’s addressed it, lesbian and gay employees do get the benefit of Price Waterhouse. And so if they’re able to show they were harassed or fired because of gender nonconformity, then they have a claim in most circuits. And not just in the Seventh Circuit that has Hively, but in some circuits that do not have a Hively or a Zarda.

 

      Now, so at the very least, you’ve got to think about that as well. That’s dictionary definition, 1964, that’s the evolution of the statute, and that’s binding precedent which has been, in my opinion, that part reaffirmed in 1991, and then partially overruled in 1991, only with burden of proof. So at the very least, it seems to me it is problematic to discriminate against gay and lesbian employees because of gender nonconformity. And I would submit it is a very short line between gender nonconformity and dating someone of the wrong sex or gender.

 

Hon. Diane Sykes:  All right. Professor Lund?

 

Prof. Nelson Lund:  I just wanted to add something that’s in support of Mike Carvin, not surprisingly. But first I want to note that Bill Eskridge outed me as an admirer of Justice Thomas, and I just want to say that I was a Thomas before it was cool to be a Thomas.

 

[Laughter and applause]

 

      Now, the thing I wanted to add was a kind of variation on one of Mike’s points, is that the statute doesn’t say because of sex. It says because of such individual’s sex, namely, the plaintiff’s sex --

 

Michael Carvin:  -- Good point.

 

Prof. Nelson Lund:  -- and that’s why you can’t read it -- there was this case recently where the CEO of McDonald’s was fired for having sex with a subordinate. And if it said because of sex, you could argue that the text made that an unlawful employment practice to fire him for having sex with a subordinate. You can’t do that because the statute says such individual’s race or sex. It doesn’t say because of sex or because of race. And that, in my mind, in my Thomistic mind, that means a lot of precedents, some of which were authored by Rehnquist and Scalia, are very questionable.

 

Prof. Neil Kinkopf:  But if that’s right, then it doesn’t violate Title VII to fire someone because of the race of their partner, either. It’s not that individual’s race. And we can have the hypothetical employer who says, “I hire people of all races, but I think they ought to be in relationships with people of their own race.” That’s a permissible reading of Title VII.

 

      But once we’ve read Title VII not that way, not as distinguishing between discrimination on account of the race of the employee but rather as encompassing discrimination based on animus toward miscegenation, a separate thing from racism itself — related, but a separate thing — once we understand that term that way, then we have to understand the other terms that are similarly, in the same provision, similarly unqualified and categorical in the same way as well.

 

[Applause]

 

      You can clap. It’s okay.

 

Hon. Diane Sykes:  That’s the Loving v. Virginia  point. Is there any other response on that point? Otherwise, we’ll move on to the theoretical questions. Okay. We had some --

 

Prof. Nelson Lund:  -- Okay, I disagree.

 

Hon. Diane Sykes:  Okay. There you go.

 

[Laughter]

 

      We had some--

 

Prof. William Eskridge:  -- I will concur with the Judge.

 

[Laugher]

 

Michael Carvin:  I’m going to keep my views to myself.

 

Hon. Diane Sykes:  That’s a first.

 

[Laughter and applause]

 

      All right. We had some theoretical discussion about the validity of the principle of legislative acquiescence. We had some theoretical back and forth about the idea, the concept that stare decisis has stronger force, or especially strong force in statutory cases. I think there was general agreement about the background principles that animate the stare decisis doctrine.

 

      I don’t think we had a lot of disagreement that it enforces rule of law values and has a constraining effect or is supposed to have a constraining effect on the judiciary, and that it comes to us from a common law tradition. But there’s different pressure points in the argument about how much weight stare decisis deserves in statutory cases versus constitutional cases and this idea of legislative acquiescence. So are there any responses to what your panelists had to say about that? Yes.

 

Prof. William Eskridge:  I have nothing but admiration, Nelson, for your presentation. I think Nelson has teed up the Weber/Johnson issue very nicely. I do think — and I hate to be such a harpy on this — I do think you have to read the statutes very carefully, and that’s not a lifeline.

 

      The first thing is there is more to say on the Weber issue. Brennan actually does rely on the statutory text, and using a Scalia-esque principle, and that is that Section 703(m) -- I’ve just quoted in my thing 703(a)(1); you’ve relied on that as well. 703(j) in the original act says that the government shall not require — I’m boiling it down — affirmative action from employers. And Brennan got some juice from that because the Weber plan was a voluntary affirmative action plan and not a government required one, not court ordered, not EOC required, that.

 

      And Brennan said the most specific provision on this issue is 703(j) because it actually does talk about affirmative action explicitly. And because 703(j) seems to have that allowance that the government can’t force it, but employers can choose it — and you can debate about whether government is forcing it — it seems to me, that text is relevant. And look, this is a serious audience. You need to think about that.

 

      And I also want to push back a little bit on Section 116, Nelson, that you quoted earlier, accurately, of the ’91 amendments. You can argue that 703(m), which, again, I’ve given you in the handout, read literally, creates problems for Weber. Okay, fair enough. 703(m), read literally, creates even more problems for the view that men dating men are excluded from Title VII. And certainly in the Harris Funeral case, which involves a transgender employee, how can you say firing someone because they’re transgender is not in some way motivated by sex of that person? So 703(m), if you want to read it literally, can cut lots of different ways.

 

Hon. Diane Sykes:  Just to clarify for the audience, that’s the provision that altered the causation standard for Title VII. Causation can be established if one of the prohibited factors was a motivating factor after 1991.

 

Prof. William Eskridge:  That’s on the very back at the bottom of the handout. Now, here’s the other thing, though. 116, which I didn’t reproduce but I will give it to you now, 116 of the ’91 statute says, “Nothing in these amendments made by this Title shall be construed to affect court ordered remedies, affirmative action, or conciliation agreements that are in accordance with the law.” Now, Nelson, you seemed to be reading that to say that it’s only limited to court ordered remedies, court ordered affirmative action, or court ordered conciliation agreements. You were reading court ordered to modify all of the different nouns. Is that right?

 

Prof. Nelson Lund:  I said that’s the most natural reading. I didn’t say it’s the only possible reading.

 

Prof. William Eskridge:  No, it’s not the most natural one because conciliation agreements -- I honestly can’t name a conciliation agreement I know of that was court ordered.

 

Prof. Nelson Lund:  Well, but I believe they are often enforced by courts.

 

Prof. William Eskridge:  Well, but it’s not court ordered conciliation agreements. And affirmative action, remember, under Weber and Johnson never involves, those cases anyway, court ordered affirmative action. Weber and Johnson were -- those cases, and in Ricci, I think, as well, voluntary affirmative action.

 

Prof. Nelson Lund:  Well, right. But that’s why the savings clause might not apply.

 

Prof. William Eskridge:  I understand. So the way I would read -- I would not read court ordered as a textual matter to apply to each of the three nouns. I just don’t think it applies to conciliation agreements. I can’t. I would say that 116 is a broad legislative acquiescence. It’s an explicit textual acquiescence passed by Congress, signed by the President, and the existing, in 1991, which means Johnson, means Weber, existing law as regards voluntary affirmative action, not court ordered affirmative action, but voluntary affirmative action.

 

      I’m at least suggesting that -- I hope everybody understands the textual argument there. And we’ve not reproduced it in the handout, but you can find it in 1991 amendments. It’s Section 116 at the end of the statute, at that part of the statute.

 

Prof. Nelson Lund:  My point was only that it doesn’t necessarily mean that. And in addition, the words affirmative action might not necessarily apply to intentional discrimination. It was often used prior to 1964 to make outreach efforts and making sure we’re open and so on. So what I would rest my argument on more than what I think is the ambiguous textual language on court ordered affirmative action is rather the phrase that are in accordance with the law. And my claim here is that Weber and Johnson are law only in a metaphorical sense. And Title VII  really is law, and therefore, the Section 116, the savings clause, doesn’t save Weber and Johnson.

 

Prof. William Eskridge:  Well, the Congress that passed the ’91 act did consider Weber and Johnson to be statements of the law.

 

Prof. Nelson Lund:  They didn’t say that in the statute.

 

Prof. William Eskridge:  Well, I know. But they say what I just read, which is pretty close, honestly.

 

Hon. Diane Sykes:  All right. We’ll continue this discussion, but those of you who have questions, if you would find one of the microphones. There are two of them in the room, I’m told, so please step up to the microphone -- one of the microphones if you have questions for the panel. Do any of you have any responses to what was just discussed about the 1991 amendments? All right. Well, let’s go to questions then. Yes, sir? Right here.

 

John Bursch:  Good afternoon. John Bursch, and in full disclosure, I argued in the Supreme Court on behalf of Harris Funeral Homes, one of the trio of Title VII cases.

 

[Applause]

 

      Thank you. So I have a thought experiment for Professor Eskridge with respect to Harris, but first, three important clarifications I want to make about the sheet so that no one leaves the room with a misunderstanding about Title VII and its precedent.

 

      First, with respect to the dictionary in 1964, gender and sex were synonymous back then. That’s why, famously, in the On the Basis of Sex movie, Justice Ginsburg changed the reference to sex everywhere in her brief to gender because they meant exactly the same thing. So how some people conceptualize gender today as being malleable, easily changed, and not tied to biology was not what the dictionary was referring to in 1964.

 

      Second, in Price Waterhouse, the company absolutely was discriminating on the basis of sex. It wasn’t that women generally were able to get promotion to partnership and macho women were not. In fact, of the partners who -- or the associates who were up for partnership that year, Class of ’88, she was the only woman. And what the Supreme Court actually said in that case was not that macho women have a claim for sex discrimination, but that you can use sex stereotyping to prove sex discrimination, which they defined as treating one sex worse than the other because of sex. That’s a very different understanding of that case.

 

      Finally, in Oncale, the context of that same-sex harassment is important. Justice Scalia emphasized that the supervisor, who was a male, was gay. And so if there was a female subordinate, she would have been treated differently because of sex than the male subordinate, just as if you had a case of opposite-sex harassment. So this wasn’t an expansion of Title VII. It was simply applying the exact concept, one sex being treated better than the other because of sex, to a same-sex harassment situation.

 

      So the thought experiment goes like this: Say the funeral home received a job application, and it has a box on it to check whether you’re male or female. And the applicant crosses that out and instead writes that, “I am transgender, and I will not comply with the company’s sex-specific dress policy based on my biological sex, or even based on my sex assigned at birth.” And the employer decides not to hire that person because of that statement. They have no idea what the actual sex, male or female, of the applicant is. It’s entirely because of their transgender status declaration and the refusal to follow the sex-specific dress code.

 

      So in that instance where the employer doesn’t even know the sex of the employee, how can you say that’s sex discrimination in the way that we would have understood that in 1964? I would note that when Pam Karlan in the Zarda case was asked a very similar question by Justice Alito, if the employer didn’t know the sex of an employee but discriminated against them based orientation, she said that would not be a Title VII violation.

 

Prof. William Eskridge:  Well, okay. There’s a lot in there. Let me say a word about the gender thing. I think -- oh, John, by the way, we know each other a little bit because I’m doing a book on the marriage debate, and John was a very important player in the marriage debate. He very capably argued for the states in Obergefell, and our book has a lot of praise for him.

 

      You look at the dictionary, and when we say sex is gender, we give you the quote from the actual dictionary. So you should read that. The quote actually is, “Sex means,” among other things, “the sphere of behavior dominated by the relations between male and female.” And sex, therefore, had this broader understanding of gender characteristics, what we would today call that, and not just pure biology, and also not just pure sexuality.

 

      On the Price Waterhouse point, again, in the handout, we give you the quotations, the way Brennan, for the four in the plurality, and O’Connor, the fifth vote, characterized what Hopkins was literally complaining about. And so just like the words of the statue are important, the actual words of the judicial opinion are also important in stare decisis, I would submit.

 

      And I agree with you on Oncale. What’s striking about Oncale is that homosexual harassment was considered actionable under Title VII. And I agree with my good friend John that, yes, the Scalia opinion — I would go further than you did; you were not quite far enough — that the Scalia opinion that remanded it to the lower courts to determine whether or not the discrimination against Mr. Oncale had been because of sex. So he actually left that question unanswered.

 

      Now, in your thought experiment, my doctrinal answer to that, and I’m just a law professor, my doctrinal answer to that would unfortunately have to be let’s read the text of the statute. And if your exact hypothetical were posed to the employer, I think the answer to that would have to be in 703(e)(2), that any claim of sex discrimination, if that’s what the employee actually then makes, can be met by an employer if the employer shows that sex or religion or whatnot was a bona fide occupational qualification for the job that the employer was asking you to do. And it’s a defense that seems to me that would often or sometimes be available in some of these cases. So that’s my statutory answer.

 

Hon. Diane Sykes:  That would be an affirmative defense. I don’t think that’s quite the same as Professor Karlan’s answer during the oral argument which said that’s not a Title VII violation to begin with, if I’m understanding the arguments correctly.

 

Prof. William Eskridge:  Well, here’s my view on the bathroom issue, if you want my view on that. Again, it’s the text. 703(a) does not create a violation unless you show that it’s a material condition of your employment, like you’re fired or something. And so on the bathroom issue, under Title VII, as I read the text, employers have a lot of discretion in determining how they figure out the bathroom issue. I think what they would have to do is if all other employees have access to bathrooms, they would have to have a bathroom access somehow to transgender employees as well as other kinds of employees.

 

Michael Carvin:  So they could fire a man for going into the women’s bathroom, yes?

 

Prof. William Eskridge:  Sometimes.

 

Michael Carvin:  Oh.

 

[Laughter]

 

Hon. Diane Sykes:  Okay. All right, let’s go to the back microphone.

 

John Vecchione:  Thank you, Your Honor. John Vecchione, Cause of Action. I think part of the textualist is -- of analyzing the text is analyzing what they were doing when they made sex discrimination and put sex in there. And this entire effort -- we’ve lived under this for so long, but usually, there was a regime of liberty. You could hire and fire for any reason or no reason at all. And all of these, I think one of the panelists called it -- it was a killing amendment. It was supposed to be about race, and then Congressman Smith put in all these words because he thought, “This is ridiculous. No one will go for that.” But the time had come to get rid of race discrimination, so they just all voted it up.

 

       And my point in all this is as a textual matter, since they’re taking away liberty, shouldn’t the textual interpretation be more strictly construed? In other words, if Congress is going to take away a liberty that you always had, you should know that it’s doing it, and they should know they’re doing it. and this whole debate shows that just because we don’t know this was happening, the tie should go to liberty, meaning that it is not sexual orientation discrimination because there was a regime of liberty, and when you’re going to take that liberty away, it’s strictly construed.

 

Hon. Diane Sykes:  All right, who’d like to take that one?

 

Prof. Neil Kinkopf:  Sure. So I think that’s not a textualist argument. That’s an argument for construing the text in a way that advances a substantive value preference. And so you’re proposing a cannon of statutory interpretation that may be laudable, but it is not a neutral objective understanding of the text. It’s sort of the like the avoidance cannon, avoid infringing liberty. And so in that respect, I think it’s just not a textualist argument.

 

Hon. Diane Sykes:  So it’s a substantive cannon, it’s not a linguistic cannon.

 

Prof. Neil Kinkopf:  Right.

 

Hon. Diane Sykes:  Okay. All right, front -- I’m sorry, did you have something to add?

 

Prof. William Eskridge:  I agree with that Neil has said. John Vecchione was a student of mine at Georgetown, so he’s clearly picked up a lot of good statutory learning. But I agree with Neil that he didn’t learn textualism well enough from me.

 

      But also, the statute itself in the ’91 amendments, for example, the statute itself does have statements of purpose. The ’78 amendment which we give you in the handout sets forth this proposition, that pregnant workers — but I think it’s more generalizable, but they do put it in the text — should have opportunities based only upon their ability or inability to work. Title VII, though limited to the categories, the classifications, is a statute about your ability to have a job and keep it should be based upon your ability or inability to work as their baseline, again, limited by the classifications, admittedly. So I would also add that.

 

Hon. Diane Sykes:  All right.

 

Prof. Nelson Lund:  I would -- maybe one slight counterpoint to that, which is it’s true that the ’91 act has statements of purpose. They are as exquisitely ambiguous, as so many of the other important provisions in the statute are. And let me add one other possible way to defend the kind of presumption of liberty that the questioner wants to invoke, which is by noting that the constitutional basis for Title VII in the Commerce Clause is pretty dubious on its own, and so that might, in some way, provide a rationale for being careful about construing Title VII with unnecessary breadth.

 

Prof. William Eskridge:  I’d like to make a legal correction.

 

Hon. Diane Sykes:  Sure.

 

Prof. William Eskridge:  And that is, if I may invoke Judge Bork in these halls, Title VII was amended in 1972 to expand, including the sex discrimination provisions to state, local, and federal employees. As you know, Congress cannot do that under the Commerce Clause, at least, to state and local. Judge Bork, when he was Solicitor General, right after he’d been a Yale law professor, argued to the U.S. Supreme Court in a sex discrimination case, Fitzpatrick v. Bitzer, that the expansion to sex discrimination was constitutionally supported by the Fourteenth Amendment. And I believe, in an opinion by Justice Rehnquist, the Supreme Court unanimously agreed. So I would slightly amend that the Title VII rests upon both Fourteenth Amendment and Commerce Clause foundations.

 

Hon. Diane Sykes:  All right, next question.

 

Questioner 3:  Given that we are all textualists now, how useful or how much stare decisis or precedential values are the cases that previous to the 1990s that did not engage in a lot of textualism in interpreting current cases before the Court, especially when the parties are making heavy textualist arguments?

 

Michael Carvin:  Yeah, it’s an interesting question. I mean, we haven’t talked about another civil rights provision which is the Voting Rights Act where there’s all kinds of case law that’s completely divorced from the text. With respect to Title VII specifically though, I think I would embrace the test that Professor Eskridge was advocating, which is you rarely would want to overturn a precedent, particularly in the statutory context unless it’s erroneous and harmful.

 

      And Weber and Griggs are not only extraordinarily erroneous, they’re extraordinarily harmful. It’s not as if they expanded the statute beyond what Congress really contemplated. They completely made north/south and took a statute, as Justice Scalia has pointed out, into a powerful engine of discrimination for what was supposed to be an anti-discrimination principle. So whether you’re looking at the second Justice Harlan or anybody else, there’s really no standard of overturning prior precedent that would not condemn both Weber and Griggs.

 

Hon. Diane Sykes:  All right, back microphone.

 

Tarek Malouf:  Hi. Tarek Malouf, University of Pittsburgh. My question’s for Professor Eskridge. In your Xs and Ys example, you compare a homosexual man to a heterosexual woman as a way of finding discriminatory behavior. Why do you think that’s a more appropriate comparison than comparing a homosexual man to a homosexual woman? And how is it not, as Judge Sykes wrote in the Hively dissent, loading the dice by changing two traits at once?

 

Prof. William Eskridge:  Well, my answer to that’s pretty simple. You could make the same argument for the interracialsexuals. And indeed, when at the Supreme Court, actually, that was the law of the land for about 100 years. The Supreme Court in Pace v. Alabama confronted an interracialsexual prohibition as criminal law in that case, and it was claimed to be a race discrimination in violation of the newly enacted Fourteenth Amendment. Supreme Court said no, this is not a race discrimination because black people are treated the same as white people. And the appropriate comparison would be that. That was Pace v. Alabama. Pace v. Alabama was a basis for Plessy v. Ferguson, was overruled, finally in McLaughlin v. Florida and Loving v. Virginia. So that way of thinking actually predominated for much of our history on the issue of race.

 

      And I would submit, is that because people were not able to think right or didn’t understand grammar? No, of course not. It was based upon social meaning that as long as an apartheid idea dominated much of the country, and the idea that the races were different and should not be mixed -- and often, these were inspired by religion. As long as that dominated the country, Pace v. Alabama was completely logical. Once that had been discredited by the 1960s, that was no longer an argument that could be made.

 

      And I might add, in Title VII, every court of appeals I know of — and Judge Sykes, correct me if I’m wrong — every court of appeals that I know of that’s explicitly addressed the issue of different race couples under Title VII, in other words, X is discriminated against because X is involved in an interracial relationship or attractions, every one of those cases, the courts of appeals have held that to be a violation of Title VII, of the race prohibition in Title VII. Now, what I suggested before was that the social meaning of here, X and Y has evolved more slowly. And there’s not consensus, I understand, but that’s my answer.

 

Hon. Diane Sykes:  Yes?

 

Prof. Nelson Lund:  If I could make one comment on Pace v. Alabama, if I recall correctly, that was a unanimous decision in which Justice Harlan agreed with everybody else on the Court. I could be wrong, but I think that’s the way I remember it. And by the time you get to Plessy v. Ferguson, this body of law had become completely detached from the text of the Constitution. So it’s certainly true that once they left the text, they went way beyond Pace v. Alabama and rejected that. But that decision was unanimous at the time, and very hard in any reasonable way to dispute on the basis of the Equal Protection Clause as opposed to substantive due process, which took over eventually in the Supreme Court.

 

Hon. Diane Sykes:  All right, next?

 

Questioner 5:  This is a very interesting panel. Thank you very much. The Title VII deals with five classifications. Three of those five are race, color, and national origin. Race and color are very similar. I mean, they mean different things, but I think they’re very similar. And had they dropped color, I think courts probably would have interpreted race and color to be the same thing. Can’t be sure of that, but that’s my guess. And I think there’s a strong argument that national origin would encompass all three. But still, Congress listed those three classifications, however similar, they listed them. And again, I make the argument that they are very close. I’m not sure you agree, but I think they are.

 

      Homosexuality is not a new phenomenon, and I believe they probably knew about it back in the 1960s, yet they didn’t list sexual orientation. If sexual orientation is to be interpreted to be sex, I guess one would argue that those two are closer together than race and color. Do you agree with that? Do you really believe that sex and sexual orientation are closer together than race, color, and national origin? For Professor Kinkopf, but anyone can take it.

 

Prof. Neil Kinkopf:  So I guess -- so is this sort of a textual argument that because Congress elaborated race, color, and national origin, it would have done the same thing with sex and sexual orientation?

 

Questioner 5:  Yes.

 

Prof. Neil Kinkopf:  So I guess I just -- we’re ascribing to Congress an intent, so we’ve already left textualism. In terms of the public meaning, certainly our understanding of those terms and categories has changed dramatically over time, as has our understanding of the term sex, terms like sexual orientation and gender identity, which I’m not sure gender identity as a term would have made a lot of sense to Congress in 1964 the way it makes perfect sense to us today as something to talk about. So I’m not sure as a textual argument that that gets us anywhere. I think what the Court, or what…

 

Questioner 5:  They didn’t list it is what I’m saying.

 

Prof. Neil Kinkopf:  Right. So I guess what I would ascribe to Congress in listing race, color, national origin, is a desire to make sure it didn’t leave anything out, just belt and suspenders and nothing more than that. But I don’t think that tells us much about what the public understanding, the public meaning of sex was with respect to sexual orientation. And so I think it’s plausible to say on the face of it, it doesn’t include sexual orientation, but only if we’re also willing to then go back to the interracial marriage point with respect to race or color or national origin. And so I’m not sure that that actually gets us anywhere.

 

Questioner 5:  What argument is that? Interracial --

 

Hon. Diane Sykes:  -- It’s the Loving argument that --

 

Questioner 5:  -- that you could be fired for --

 

Prof. Neil Kinkopf:  -- Right. If we didn’t accept Loving, if we didn’t accept that firing for interracial marriage or interracial relationships is race discrimination, then I think it would be a much stronger argument to say sex refers only to biological sex, doesn’t include who you have sex with. But one once we accept that race goes there, I don’t see textually how we get to the conclusion that sex doesn’t.

 

Prof. William Eskridge:  This was briefed in the Title VII cases. Sexual orientation was not a term that was used in common parlance and certainly never in statutes in 1964, so they wouldn’t have done that.

 

      There is a little technical point as well. Supreme Court addressed a similar issue, not the same one you’re raising, in al-Khazraji. It’s a decision interpreting the Civil Rights Act of 1866 which prohibits discrimination based on race in contracting and property. And the question was, did it apply to ethnicity and national origin? And the argument that was made was that no, it couldn’t because the Civil Rights Act of ’64 and other statutes had explicitly said race or national origin or color, etc., etc. Supreme Court unanimously rejected that argument, al-Khazraji, and said no, we’re going to interpret race to include national origin because that’s the object, the purpose, etc., etc. So that’s the kind of move I’m talking about.

 

Hon. Diane Sykes:  All right, the back microphone.

 

Questioner 6:  Hi. I think Mr. Vecchione’s good question about the presumption of liberty raises the issue about the absurdity doctrine. And I’m curious how this panel would suggest a textualist should approach the absurdity doctrine, namely the idea that when ascertaining original public meaning, the plain text controls, except when it would lead to absurd results, which, to a 1964 audience would probably have been absurd to think that this plain text means orientation and transgenderism and these other second and third degree ideas.

 

Hon. Diane Sykes:  Anyone want to take that one on? Go ahead.

 

Prof. William Eskridge:  You know that I can. Great question, great question. Bingo. Here’s a problem with it. One problem with it: What is the operative date for original meaning? The plaintiffs in these cases are relying on Section 703(a)(1), true, passed in ‘64, and on Section 703(m). Now, when was section 703(m) passed? It was passed in 1991. So if you want to ask would it be absurd -- normally, the question the way Justice Scalia would ask it, “Is it absurd in current circumstances?” I suppose he’d be friendly to your variation, but even if you want to ask it as an original meaning question, would it be absurd in 1991, the answer is clearly no. In 1964, you make a good point.

 

Hon. Diane Sykes:  All right, last question.

 

Questioner 7:  Thank you. Starting with Mike but for the panel as a whole, Mike, you opened the door to this. In one of the Michigan cases, Justice O’Connor said that we ought to wait 25 years and this whole diversity edifice will fall down on its own. Should we wait 25 years or just clean it out now?

 

Hon. Diane Sykes:  That’s a reference to the affirmative action cases from Michigan. Go ahead.

 

Michael Carvin:  Right. No, no. It’s really bizarre. The Michigan cases were bad enough. The Texas case was absurd. I mean, they basically claim they’re applying strict scrutiny but allowing a bunch of unsupported slogans about the benefits of diversity to perpetuate a racially discriminatory regime. When I was in the Reagan Civil Rights Division in the 1980s, everybody was arguing, look, this is a temporary adjustment to overcome the history of prior discrimination. Now, literally, 65 years after Brown, 55 years after Title VII Civil Rights Act, you don’t hear anybody talking about remedying prior discrimination. It’s just a desire for racial balance for it’s own sake that is ageless in its reach in the past and will continue with us forever.

 

      So in 2019, we are talking about perpetuating a regime that divvies us up on the basis of the most irrelevant characteristics and that have historically divided us, then it is clearly unconstitutional under the Equal Protection Clause with no justification and having abandoned the prior justification of this is a temporary adjustment. I’m quite hopeful that the Supreme Court talk about precedent will very rapidly, hopefully in the Harvard case or one of the others -- and they really don’t have to overturn precedent. They can say, “Okay, we’re applying strict scrutiny.” But now we’re really applying strict scrutiny, and there’s no college preference regime in the country that could possibly survive. So yeah, I think we need to do it now, and quite emphatically.

 

Hon. Diane Sykes:  All right, we are out of time. Please join me in thanking the panel.

 

[Applause]

 

2:45 p.m. - 4:30 p.m.
Originalism, Populism, and the Second Amendment Right to Keep and Bear Arms

2019 National Lawyers Convention

Topics: Constitution • Second Amendment
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 15, 2019, the Federalist Society's practice groups hosted a special session for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "Originalism, Populism, and the Second Amendment Right to Keep and Bear Arms".

The Second Amendment has again become a topic of national discussion in recent years. Mass shooting tragedies of this past year captured the attention of the national media and Americans at large. The Supreme Court in this upcoming term, for the first time in almost a decade, will be confronting the Second Amendment head-on in New York State Rifle & Pistol Association Inc. v. City of New York.  Many will be expecting the Supreme Court to further develop its jurisprudence following the landmark cases of Heller v. District of Columbia, and McDonald v. City of Chicago. This panel will debate these issues and analyze the Second Amendment in this current political climate as well as through the lens of Originalism.

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Prof. Renée Lettow Lerner, Donald Phillip Rothschild Research Professor, George Washington University Law School
  • Mr. Jonathan Lowy, Chief Counsel & Vice President, Legal, Brady
  • Mr. Mark W. Smith, Founding Partner, Smith Valliere PLLC
  • Mr. Jonathan Taylor, Principal, Gupta Wessler PLLC
  • Moderator: Hon. Andrew S. Oldham, United States Court of Appeals, Fifth Circuit

Speakers

Event Transcript

Hon. Andrew Oldham:  Ladies and gentlemen, we're going to get started. My name is Andrew Oldham from the United States Court of Appeals for the Fifth Circuit. Welcome all to this wonderful, special session that we have at The Federalist Society. It is an exciting time for this panel on the Second Amendment.

 

      As you know, it has been a long time since the Supreme Court has taken a Second Amendment case. We had Heller and McDonald three years apart and then a nine-year break since McDonald before the Supreme Court recently granted cert in the New York Pistol & Rifle Association case, which is currently pending before the Court. And our incredible distinguished panel today is going to have a lot to say about that and other issues implicating the Second Amendment and the right or any restrictions that they may see in the Second Amendment on the right to carry outside of the home.

 

      So today we have an amazing panel. I would commend to you their distinguished bios that are in your materials. So I'm going to give very brief introductions of each of them, basically their names and their affiliations, so that we can get started on the substance of what we have to talk about today.

 

      So first, to my right and your left is Professor Renée Lettow Lerner. She is the Donald Phillip Rothschild Research Professor at the George Washington University School of Law. To her left, Jonathan Lowy, Chief Counsel and Vice President for Legal at the Brady Campaign. To my left, Mr. Mark W. Smith, who is the Presidential Scholar at King's College, New York City. And then to his left, last but certainly not least, Jon Taylor who is a Principal at Gupta Wessler.

 

      So each panelist is going to have a few minutes to set forth their affirmative views on the issue that's before us today. And then we'll have a slight back and forth, hopefully, with the panelists talking to each other more than to me. And then we'll open up for questions. So without further ado, let me turn it over to Professor Lerner.

 

Prof. Renée Lettow Lerner:  Thank you to Judge Oldham for moderating this panel, to my distinguished fellow panelists, and to all of you who are here and watching, and The Federalist Society for putting on this panel.

 

Of all the rights in the U.S. Constitution, the right to keep and bear arms most reflects the spirit of a free people. It's the spirit of resisting oppression. And that oppression can come in different forms: oppression by the government and oppression by private thugs. And the U.S., as I'll mention in a moment, is not the only place where that spirit exists. It's growing in places around the world.

 

But this spirit is one that causes one to stand up for oneself, for one's family, and one's community. It's the spirit of courage and the spirit of self-reliance. Self-reliance was famously a classic characteristic of the American people. The American people settled a continent in the face of staggering dangers. But in certain circles these days, self-reliance is not a popular virtue.

 

The argument goes we no longer live on the frontier. We have a specialized police force, and it will keep us safe 24/7. We need to think about whether that's so. Violent crime has not disappeared, but in America today, it is localized. The fear of violent crime doesn't affect me personally much at all. I don't live in a high crime neighborhood and I never have. Most other suburban soccer moms don't either, and I count myself as a suburban soccer mom, having recently taken my daughter to soccer practice.

 

But mean streets and mean places are not a joke for many persons. A friend of mine became interested in carrying a gun for self-defense because of a new job. That job was being a clerk on the graveyard shift at a motel on Route 1 in Howard County, Maryland, close to here. After my friend had quit his previous job and started work at the motel, he found out the reason for the job opening. The previous night clerk had been shot by a person robbing the motel.

 

A police officer stopped by and mentioned to him that it might be a good idea for him to get a permit and a gun. Such permits were very hard to get. The police approved his application, though, because they were feeling bad about not solving the murder. He got the gun right away and started carrying it.

 

Of course, for persons who live in high-crime neighborhoods, these sorts of problems are routine. There's a considerable risk if you're walking alone at night that you will be robbed. And that's something that is easy to forget when you're a suburban soccer mom or otherwise upper middle class and insulated largely from violence.

 

Such persons are not likely to hear about the many times that firearms are used in self-defense: over 67,000 times a year, according to a study by a pro-gun control group, using data compiled by the FBI. And that's considered a low estimate, 67,000 times a year that a firearm is used in self-defense.

 

But what a suburban soccer mom is likely to hear about a great deal are criminal shootings. And these shootings play on the fears of an already quivering and anxious society. And so the call goes out, do something about it. Politicians rush to say that they want to ban this or that device that was used or to end or prohibit legal carrying in public. How effective is that?

 

For that, we can go back to the 18th century. In 1764, the Italian enlightenment criminologist Cesare Beccaria had something to say about the effectiveness of gun control. He is much beloved of progressives these days because he opposed the death penalty. In his own time, he was famous throughout Europe and also influential with the Founders of this country. So here is what he had to say about gun control. "False is the idea of utility that sacrifice is a thousand real advantages for one imaginary or trifling inconvenience that would take fire from men because it burns and water because one may drown in it. That has no remedy for evils except destruction."

 

The laws that forbid the carrying of arms are of such a nature. They disarm—this is according to Beccaria—they disarm only those who are neither inclined nor determined to commit crimes. Beccaria goes on to say that anyone who's prepared to violate laws against robbery and murder would also violate laws against carrying arms. And he says that a ban on carrying arms would "put an end to personal liberty."

 

Two and a half centuries later, Beccaria nailed it. Criminals find a way to get firearms, while law-abiding citizens are disabled. And one of the best examples of this is the U.K. The U.K. government boasts that it has some of the strictest gun control laws in the world. Since 1997, and following a mass shooting at a school, handguns were confiscated. It's virtually impossible to get a license to keep or carry a handgun. The U.K. international pistol shooting team has to go to Belgium to practice.

 

[Laughter]

 

What happened next? Crimes involving handguns increased by nearly 40 percent over the next two years alone and had doubled by 2009. Just in late December 2018, within the past 12 months, there was an article in the Guardian about how floods of illegal firearms are now entering the U.K., smuggled by organized crime rings. The U.K. police have made seizing illegal firearms a top priority, but they admit that they can't keep up. And among the most popular of those illegal firearms are handguns, exactly the sort of ban that gun control advocates in the U.S. dream of.

 

Conversely, what do we see when the population is legally armed and carrying? And for that, we turn to the U.S., and in particular to Florida. Florida, in 1987, became the first state with major urban populations to ensure that almost all law-abiding adults can get a concealed carry permit. Gun control advocates hysterically predicted murder and mayhem on Florida streets.

 

In fact, violent crime went down. Licensed holders almost never misused their weapons. Florida's successful law prompted other states to do the same. Social scientists have yet to find any adverse effects on public safety. So the evidence is overwhelming that gun control not only does not promote public safety, it affirmatively endangers us. And this impulse to prohibit carry is based on, ultimately, distrust of the people and the desire to make the people dependent on government. And this eventually leads to the end of government by the people.

 

Now, unfortunately, the ruling classes over time have taken away the right to keep and bear arms from disfavored groups. And the English did this right off the bat. The provision in the English Bill of Rights guaranteeing the right to keep and bear arms was limited to Protestants only. Catholics were a suspect and disfavored group, and they could be disarmed. And the English further enforced their disarming of disfavored groups through what's known as the game laws, hunting laws that in effect restricted gun ownership to the upper classes and prohibited the lower classes from owning and carrying.

 

Americans, meanwhile, had their own disfavored groups. After the Civil War, these included African American freedmen. In the former confederate states, groups were going around disarming the firearms of freedmen, taking the firearms of newly freed former slaves. In response to these confiscations, Congress passed the Civil Rights Act of 1966, guaranteeing to freedmen the right to keep and bear arms. And in the Fourteenth Amendment, ratified two years later, is widely understood to have, at a minimum, constitutionalized the Civil Rights Act of 1866.

 

So I'd like to show you a picture of an American. There she is. An American pro-gun advocate, Harriet Tubman. Harriet Tubman usually carried a revolver when she did her Underground Railroad work, but here she is with a long gun because she actually participated in the Civil War as an armed scout. So this is what she looked like when she was working with the Union Army, and she participated in an armed raid in South Carolina.

 

But she was a fervent believer in the power of firearms in the hands of disfavored groups. There is a new movie about Harriet Tubman called Harriet which was released on November 1, just a few weeks ago. And the trailer shows her using firearms, I believe I counted five times, in the very short trailer. So I commend that movie to your attention.

 

Well, in the 20th century, along with the expansion of regulatory government generally, the regulation of firearms expanded. And state and local governments imposed heavy taxes. They prohibited or limited sales of certain types of firearms and created gun-free zones. Some of them imposed complete bans on possession of handguns. And some made it almost impossible for law-abiding citizens to carry a gun for self-protection.

 

Again, these regulations affect mainly ordinary persons, not persons who are upper-middle class and otherwise safe from violence. It's interesting that when gun regulations actually do begin to bite, people with power and political connections manage to find a way around them. So, for example, it's telling that William F. Buckley, Nelson Rockefeller, and Punch Sulzberger, the publisher of the New York Times, the gun control crusading New York Times, all had a permit to carry firearms in New York City. But Bernie Goetz, who had been assaulted and beaten on the subway, was denied one.

 

I think it's appropriate to analogize gun laws today with the English game laws. In other words, it's designed, gun control today, by the ruling class to keep control of ordinary persons. Now, there are signs that ordinary people of other countries are getting fed up with being told by the safe ruling classes that they can't have guns. And this is occurring around the world in France, the U.K., Germany, Belgium, and Italy.

 

Perhaps the most dramatic case is Brazil. Brazil is undergoing an epidemic of criminal violence. Brazil has some of the lowest rates of legitimate gun ownership in the region and huge numbers of firearms in the hands of criminals. And there are many, many indications that there is a massive problem in Brazil. Brazil had to send the army to deal with a wave of violent crime in Rio de Janeiro. Ordinary people are wearing bullet proof vests and bullet-proofing their cars. School children in certain neighborhoods are getting used to lying on the floor when there's a gun battle.

 

In 2003, Brazil's Congress enacted a gun control law that is appropriately called the Disarmament Statute. Faced with an owner's registration process, many Brazilians surrendered their firearms. And it's no wonder that Bolsonaro's promise to relax firearms restrictions proved popular. In anticipation of the change, ordinary Brazilians are training at gun ranges.

 

I'm going to show you first a picture of two American pro-gun advocates, Tariq and Geneva Chambers, who are members of Black Guns Matter. There they are in Philadelphia. You'll observe the pistol grips of their firearms and notice how Geneva Chambers has decorated hers. I believe that's with some sort of metallic tape, so she likes to put her own special decoration on her firearm.

 

But in Brazil, we have Natalie Ortega, and there she is training with firearms in São Paulo, Brazil. And this is what she had to say. She said, "Right now, only the criminals have guns. I'm not going to run around the streets with a gun in my hand, but a criminal might think twice if normal citizens could be armed." And Natalie Ortega is right.

 

Gun control limits the possession of guns to criminals. The people, especially minorities, women, and the elderly, will be increasingly prey to criminal men. This breakdown, in turn, will cause the victims to turn to government even more. And the government, in response to the crisis of its own making, will continue to expand its already vast powers and personnel. The people will be drained of self-reliance and ultimately drained of spirit, and that is the spirit necessary for self-government.

 

So I'd like to introduce briefly an example of the problem that is very salient today and that Judge Oldham referred to in his opening remarks, New York Rifle & Pistol Association Inc. v. The City of New York. And cert has been granted in this case by the U.S. Supreme Court.

 

The situation was this: New York had and still has one of the most restrictive carry laws in the world, and they're -- excuse me, in the country. New York City permitted transport of firearms only to seven authorized gun ranges in the City of New York and to a gunsmith, if the owner had permission of the New York City Police Department to do so. The petitioners in that case wanted to be able to carry firearms to ranges outside the city and to be able to carry their guns to second homes.

 

The city fiercely resisted. The city won in the district court and in the Second Circuit. The Second Circuit upheld these severe New York City restrictions and assumed, without deciding, that transport of guns did implicate the Second Amendment. And it also decided that intermediate scrutiny applied, and Mark Smith is going to tell us more about levels of scrutiny that the circuit courts have used.

 

But the Second Circuit denied that firearms practice is a core Second Amendment right. And it agreed with the city that the regulation protected public safety based on an affidavit from a former commander of the state licensing division, hypothesizing that transporting unloaded, locked guns, separate from ammunition, could be a public safety risk in a road rage or other stressful situation.

 

So that is now the situation, except that then the U.S. Supreme Court granted cert. And at that point, New York City and New York State moved into high gear in effect to prevent the U.S. Supreme Court from addressing the case. New York City changed its regulation in a very limited way to permit transport of firearms outside the city to a lawful range, not specifying what lawful is, and also to second homes.

 

So the question then arose, is the case now moot? And there's a vigorous discussion about that. Separate briefing in the case concerning the mootness issue, the city vigorously arguing that it is moot because the petitioners, according to the city, have everything they want. Petitioners, on the other hand, are arguing that no, we don't. The city's regulations, for example, require continuous and uninterrupted transport. Apparently, no gas station breaks are allowed. No coffee breaks are allowed in the transport of these firearms, and there is a question of continuing consequences for past violations.

 

It's also unclear what the city means exactly by lawful gun ranges, and even the definition of another residence is unclear. So the city in effect has done, and the state, which passed a law prohibiting cities from enacting such regulations, did the absolute minimum necessary to try to moot the case. And the Supreme Court had asked for briefing on the mootness issue and got it.

 

And in the upcoming oral argument, I suspect mootness will be a significant issue. It'll be fascinating to see what happens, and I suspect that my fellow panelists will talk more about that case. Thank you.

 

[Applause]

 

Jonathan Lowy:  Thank you all very much. My name is Jon Lowy. I'm with Brady. And I want to thank The Federalist Society for hosting this important discussion and for assembling a truly balanced panel. I think particularly in these divisive times, it is especially important that we engage different views civilly as we're doing here today.

 

And that spirit is certainly central to Brady. We are a bipartisan, nonpartisan organization. We were founded by Republicans. We are named for prominent Republicans. And our motto today is, "Take action, not sides," which gets us to what we are talking about today which is, really, does the Constitution allow Americans, through their elected representatives, to take action to prevent gun violence?

 

To be clear, we are not discussing what Americans should decide as far as gun policy, even though my sense is that this conversation will bleed into that. It seems like it always does when you're discussing the Second Amendment. But the question really is not what our gun policy should be, but who should decide that gun policy? Whether gun policy should be decided by Americans through their elected representatives, which we can all disagree with if we choose, or by judges, with all due respect to Judge Oldham.

 

So the question is if Americans at the state or national level decide that their communities would be safer if background checks were required before anyone buys a gun to see if they are legally allowed to buy the gun, or that military style assault weapons should be restricted to the military, or that law enforcement has authority to limit guns in public spaces, if Americans decided that is the policy they want, can they, through their representatives, enact those public safety laws?

 

Put another way, does the Constitution deprive Americans of those choices about what gun laws they want? Does the Constitution require Americans to live in a society where virtually anyone can carry guns and potentially fire guns in public spaces if they deem it necessary, whether in parks, streets, roads, and perhaps further, schools, workplaces, and elsewhere? Are assault weapons a constitutional mandate, effectively written in by our Framers into the original American pact that founded our government? That's the question.

 

Now, the Supreme Court, in District of Colombia v. Heller, took one policy choice off the table. Americans cannot enact broad gun bans that utterly deprive responsible, law-abiding Americans of a gun in the home for self-defense. The question before the courts today, and before all of us here today, is does the Second Amendment take other Democratic policy choices off the table too?

 

And any decision that would deprive Americans of those other public safety policy choices must expand upon the Heller decision because Heller merely held that complete bans of the sort that were in the District of Colombia are prohibited. And those bans were very rare at the time of Heller, and they do not exist anywhere today. And, by the way, Brady, even before Heller, held that as a matter of policy, we did not support those bans. That isn't to say that we thought they were unconstitutional, but we didn't favor them as a matter of policy.

 

So what I'd like to examine in my remarks here today is does the Heller decision and other jurisprudence provide the sturdy foundation to expand that holding? Does it provide a model for how courts should apply a text history and tradition approach, for example, to expand private firearms rights under the Second Amendment beyond what the Heller court decided?

 

So first, let's look at history. And in the spirit of not taking sides, engaging with opposing views, I consulted with the writings of an esteemed intellectual with The Federalist Society and The Heritage Foundation, Professor Nelson Lund, who is, in candor, a strong supporter of gun rights and, I believe, agrees with the ultimate holding in the Heller decision. But this is what he wrote about the Heller opinion, the majority opinion. And I'll just provide some quotes.

 

"The Court's reasoning is at critical points so defective and so transparently non-originalist, in some respects, that Heller should be seen as an embarrassment for those who joined the majority opinion." Another quote from Professor Lund, "Justice Scalia flunked his own test. Justice Scalia's opinion makes a great show of being committed to the Constitution's original meaning but fails to carry through on that commitment." A last quote from Professor Lund, "Justice Scalia's Heller opinion itself shows that his use of history and tradition is little more than a disguised version of the kind of interest balancing that he purported to condemn. At crucial points, he simply issued ipse dixits unsupported by any historical evidence, and at other points, he misrepresented historical facts."

 

Next, there's Judge Richard Posner, a President Reagan appointee. He wrote of Heller, "That Heller is questionable in both method and result and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a free-wheeling discretion strongly flavored with ideology." Another quote from Judge Posner, the irony is that the "originalist method would have yielded the opposite result."

 

And, finally, a quote from Judge J. Harvie Wilkinson of the Fourth Circuit, another Reagan appointee and formerly short-listed often for Supreme Court nominations in Republican administrations. He wrote that Heller "represents a failure, the Court's failure to adhere to a conservative judicial methodology in reaching its decision. In fact, Heller encourages Americans to do what conservative jurists warned for years they should not do: bypass the ballot and seek to press their political agenda in the courts."

 

Now, even a cursory, and I'm not quoting anymore, even a cursory analysis of how Justice Scalia analyzed the historical record in Heller shows why these conservatives were so upset with the opinion. And I'll just give one example, and maybe others will come up in our discussion afterwards. In the initial draft of the Second Amendment, James Madison included a conscientious objector clause.

 

His draft read, "The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person." So in the same sentence, Madison was equating bearing arms with rendering military service.

 

Now as Justice Stevens noted in his dissent in Heller, this indicates rather clearly that Madison intended a military meaning to the critical term to keep and bear arms. No one suggested that there was a need for conscientious objector clause because people would be forced to possess and use private weapons for private purposes. The issue was military militia service.

 

And the record indicates that the conscientious objector clause was removed over concern that Congress could define who was religiously scrupulous of bearing arms and thereby neuter the militia that was of such concern to the Second Amendment's Framers. And no one contends that when the Framers decided to delete this provision that they intended to wholly transform the purpose of the Second Amendment or the meaning of bearing arms. It remained focused on the well-regulated militia that the Amendment continued to reference, that is state armies.

 

Next, let's talk briefly about text. As for how Heller treats text, just consider what is left of the first half of the Second Amendment, "A well-regulate militia being necessary for the security of a free state." For American history and jurisprudence, up until 2008, this militia clause was accepted as critical to informing what is meant by the second half of the Second Amendment, as it was surely critical to the Framers. The pre-Heller reading of what the Second Amendment means was something like this—and clearly, I am making up these words to put it into plainer English—a well-regulated militia, being necessary for the security of a free state, the right of the people to participate in said militia by keeping and bearing arms to use in that militia, shall not be infringed.

 

Now, those who argue for a broader Second Amendment right post-Heller, I would contend, read the Second Amendment something like this—again, these are my words, trying to put it in plain English—a well-regulated militia, being necessary to the security of a free state, the right of the people, including people who have absolutely nothing to do with said militias or even people who oppose said militias, to have and use guns with little or no regulation, shall not be infringed.

 

Now, a textual analysis would and should draw meaning from the Second Amendment's first half. And I would contend that a broad reading of the Second Amendment makes the first half of it an inconvenience, language that must be argued around and may even be effectively erased as if it were never written. As some put it, what part of well-regulated militia don't you understand?

 

Now, I raise these points not to relitigate Heller; it is the law of the land. But these facts are worth noting when we talk about whether and how to expand upon Heller or whether we should use the historical or textual approaches that the Heller Court purported to apply.

 

Now, let's talk a little about tradition, because not just history and text, but tradition also supports interpreting the Second Amendment in a way that preserves the rights of Americans to enact the strong gun laws that they want to protect their communities and families, if they so choose.

 

The United States was founded upon the declaration, the Declaration of Independence itself, that the core purpose of government is to protect life, liberty, and "safety and happiness." Thomas Jefferson later reiterated that "the care of human life and happiness, and not their destruction, is the first and only legitimate object of good government."

 

Centuries of American gun laws confirm that it has long been understood that the government has broad authority to regulate firearms to protect public safety. And two opinions, there are many, but I'll just point to two, that from shortly after the ratification of the Fourteenth Amendment, reflect how courts understood these principles to reign in expansive gun rights.

 

In fact, to save time, I'm just going to give you one of them. The Supreme Court of Georgia 1874 explaining that expansive gun rights were inconsistent with the Framer's vision of a "well-ordered and civilized community." And here's what the Court said, "To suppose that the Framers of the Constitution ever dreamed, that in their anxiety to secure to the state a well-regulated militia, they were sacrificing the dignity of their courts of justice, the sanctity of their houses of worship, and the peacefulness and good order of their other necessary public assemblies, is absurd."

 

And what the concern was here was that guns would be brought into these spaces. "To do so. is to assume that they took it for granted, that their whole scheme of law and order and government and protection would be a failure and that the people, instead of depending upon the laws and the public authorities for protection, were each man to take care of himself, and to be always ready to resist to the death, then and there, all opposers." Pretty strong stuff. And other courts similarly found that the conception of a broad right, constitutional right to engage in armed confrontation or carrying firearms in public were anathema to the civil society envisioned by the Framers.

 

And the Supreme Court has long construed all constitutional rights to give way to strong interest in public safety. The right to free speech does not entitle the speaker to engage in fighting words because they create too great a risk of a fist fight. The right to freely exercise religion does not entitle snake handlers to endanger worshippers. The right to property does not allow for public nuisances. Miranda rights have been held to give way when police are in search of a single gun because of its risk to public safety.

 

The Second Amendment right to arms also must be constrained by public safety concerns. Even if the Court erases the all-important militia language that the Framers chose to put front and center in the Second Amendment's text, the well-regulated language also put in that text cannot be so easily dispensed with for gun regulation runs through American history. It's a consequence of long-standing police power authority to protect public safety and the right of Americans, through their representatives, to enact the laws that they need and want to protect themselves.

 

One last point. There are few threads running through America's founding documents, through Supreme Court case law protecting public safety and America's history of gun regulation. There's a recognition, sometimes implicit, of one, the right that the Founders declared first in creating this nation, the right to live; two, the duty of the government to protect that right; and three, the recognition that no right may be exercised to infringe on that fundamental right to live.

 

In construing whether the Constitution recognizes a broad right to possess and use private lethal firearms, courts should make sure not to infringe on that most fundamental of all rights. Thank you.

 

[Applause]

 

Hon. Andrew Oldham:  All set?

 

Mark W. Smith:  Yeah. Good afternoon. As Professor Lerner explained, the Supreme Court currently has before it a case involving the right to carry or to bear firearms outside of the home. I submit that the Supreme Court should protect this fundamental constitutional right and make it very clear that government may not ban law-abiding citizens from carrying arms for self-protection, nor may the government limit the right to carry firearms to a few privileged members of the elite, which is the effect, by the way, of these so-called "state may issue" laws, which essentially gives certain government bureaucrats the power to decide whether an American citizen has the need or good cause to carry a firearm.

 

      Now, in my view, the question of whether or not Americans have a right to carry firearms outside of the home is really quite simple. To begin with, I don't think this is a very difficult question for the Roberts Court. This is true because regardless of the methodology that the U.S. Supreme Court chooses to apply in a question of whether or not one has a right to carry guns outside the home, regardless of the methodology, the constitutional conclusion remains the same.

 

      Fully protecting and enforcing the right to carry firearms outside the home is entirely consistent with the text of the Constitution, and it is also entirely consistent with the ordinary principles of all aspects of constitutional law that we know today. And in the case of carrying firearms outside of the home, the Court is not being asked to vindicate or invent a minority right that has no populist nor popular support in America.

 

      In fact, the Court is only being asked to enforce the right to bear arms, bear arms, against really a very few outlier jurisdictions. And enforcing American's constitutional rights as citizens against minority outlier jurisdictions fits squarely within one of the traditional roles of the Supreme Court. That is protecting local minorities from hostile legislation and rules that are out of step with and contrary to the national constitutional baseline of fundamental and other rights.

 

      Well, let us just start not with Heller but with the text of the Constitution, which is where all good constitutionalist scholars should begin. When we the people adopted the Second Amendment, they provided very clearly that "the right of the people to keep and bear arms shall not be infringed." The text is very simple, and it very simply protects not just the right to keep arms, which was the right at issue not just in the Heller decision, but also in the McDonald v. Chicago decision in 2010, but it also addresses the right to bear arms.

 

So the text of the Second Amendment, to me, these rights are on equal footing. And, furthermore, where the constitutional Founders decided to limit a right to the house or to the home, they knew how to write that in, which is what they did in the Third Amendment, quartering of troops in one's home, and what they talked about in the Fourth Amendment in protecting your property, your papers in the home, among other places.

 

      So if they wanted to restrict the rights to the Second Amendment within the home, they certainly knew how to write that in, but they didn't. History, too, supports the view that the right to bear arms extends outside of one's home. The right to bear arms outside of the home is supported by our American history. We know from Heller and McDonald, for example, that the main purpose of the Second Amendment, the North Star, if you will, of the right to keep and bear arms is the right of armed self-defense.

 

      It was well understood at the founding, and even long before, that because the need of self-defense might arise in public, the right to exercise the right of self-defense extended also to being out in public. William Hawkins, who wrote a widely read, "Treatise of the Pleas of the Crown," described the doctrine of self-defense in 1716. Mind you that William Hawkins was very well understood and discussed by the Founding Fathers as they drafted, among other things, the Constitution.

 

      Hawkins wrote in the 18th century, "The killing of a wrongdoer may be justified where a man kills one who assaults him in the highway to rob or to murder him." Beyond that, we also know that the Founders of the Constitution of our country actually lived the experience of having guns outside the home for self-protection.

 

      We know from contemporaries’ documentation that Thomas Jefferson was a big proponent of carrying guns and he even advised it of his cousins and other family members. We know that George Washington would often travel outside with firearms. We know that Patrick Henry would carry firearms. And we know that then future president Andrew Jackson was very well-known, not for carrying one, not two, not three, but four firearms at a time as he rode, among other things, circuit before he was President. In fact, there's a very famous quote of his. I believe it's one year after the signing and enactment of the Constitution and two years before the enactment of the Bill of Rights and the Second Amendment that talks about how he rode with four firearms in his biography by a prominent historian.

 

      But also, we know that in the founding period, there were often requirements, not only -- there were actual requirements to carry guns. Many colonies, and later states, had laws requiring law-abiding citizens to carry firearms in public, such as when they attended church or town meetings.

 

Now, many in the anti-gun community, if you will, argues that our American history does not support, as a matter of fact, a robust right to carry firearms in public. They often point to various sorts of historical laws allegedly restricting that practice. Now, for the purpose of today, to help you in the audience not just learn about the Second Amendment but perhaps even talk about the Second Amendment when you go back to your communities, I'd like to give you a few ways to think about these antebellum laws or these examples that sometimes get thrown out there from a historical point of view. And here's a series of questions to think about as you are faced with some of these random and relatively rare laws.

 

      First, ask yourself is it clear that these laws are actually relevant to the Second Amendment? Bear in mind, to the extent they actually rely on ancient English law, for example, can we be sure that the Second Amendment was designed to codify Old English law as opposed to repudiate Old English law? Since, after all, last I checked, we fought a revolution and threw the English out.

 

      Next, let us not forget some basic history, such as the shot heard round the world at the Battle of Concord. It's a very strong historical case that the reason why we ultimately fought the American Revolution and became the United States of America, and not just a province of the United Kingdom, was because the British were trying to confiscate guns and powder as they marched out of Boston. That did not work out well, did it? But that history should not be lost because that common sense, elementary school history is not irrelevant to the historical question of whether or not we have the right to bear arms, not only in the home but outside the home.

 

      Second, when you hear anti-gun historical examples thrown out there, ask yourself are these examples atypical or widespread? Are they really just outlier laws that were in place in only a few unique jurisdictions and often for short periods of time?

 

      Third, ask yourself is there any evidence that these laws were actually applied or enforced? Or were they simply on the books? And if they were enforced, ask yourself against whom are they being enforced? For example, if they were southern gun laws, were they mostly being enforced against the poor, against immigrants that were unfavored, or against African Americans that were no longer slaves?

 

      Or, perhaps, in the case of New York City's Sullivan laws, they were just being used against the Italians. A very great quote that I liked, it was found by scholar Stephen Halbrook, who's in the audience, quotes the New York Times—that's right, the New York Times—where they're applauding a decision to put an Italian in prison for carrying a concealed firearm in New York City. The New York Times referred to the Italian, last name Rossi, as a hotheaded countryman. And then they added—and this is the New York Times—"The judge's warning to the Italian community was timely and exemplary." Are these the kinds of historical laws that the anti-gun community want to hold up as representative of the best of America and how to interpret our Constitution? I suggest the answer is no.

 

      And, finally, you must ask if the Founders understood the Second Amendment right to be saddled with all sorts of limitations on carrying firearms in public, then what on the earth does the language the right of the people to bear arm actually mean? I submit that the text and history of the Second Amendment shows that it protects a robust right to carry guns outside of the home.

 

      Now, in today's world, what many courts—and most of these courts, by the way, are in your usual suspect anti-gun blue states, such as New York, California, Hawaii, New Jersey, Maryland, and Massachusetts—what they've generally done is they've skipped over and ignored the text, history, and tradition discussion of Heller and McDonald, and instead applied some sort of a weak tea version of intermediate scrutiny.

 

      And as we all know, intermediate scrutiny is one of the three traditional tiers of scrutiny. But the fundamental problem with applying tiers of scrutiny to the Second Amendment, or anywhere in the Constitution for that matter, is that tiers of scrutiny of strict intermediate scrutiny and rational basis scrutiny is really just made up by judges.

 

As a recent article in the National Affairs publication by Joel Alicea and John Ohlendorf explained, these tiers of scrutiny are judge-made doctrine, which were basically invented in the 1960s as a political compromise between the factions of the Supreme Court in the context of the First Amendment. They have no grounding in the text or history of the Constitution.

 

      In fact, during oral argument in the Heller case, none other than Chief Justice John Roberts noted exactly this. Justice Roberts said at oral argument, "These standards," referring to the tiers of scrutiny, "that apply in the First Amendment just kind of developed over the years of sort of baggage that the First Amendment picked up."

 

      Well, Justice Roberts was correct. The Court should apply the Second Amendment according to its text and history and not these tiers of scrutiny baggage. Not least of which, as the Heller decision specifically said, that there's certain decisions that are removed from balancing by the government including by members of the Court, which is part of government, because they were found in the constitutional text.

 

      But let us even assume, for the sake of argument, that the Supreme Court were to apply some form of intermediate scrutiny in the New York City case or any other future case addressing the right to carry outside the home. Under intermediate scrutiny, as you probably recall from law school, a law must be struck down unless it substantially advances, substantially advances, an important government interest.

 

      Now, there is zero evidence that limits on the right to carry to do anything or do anything to advance public safety. And we have lots of data on this because as a matter of statutory law, they do not restrict the right to carry for law-abiding citizens. In fact, 42 states either have a de jure or de facto shall-issue system that allows you to carry firearms in public with no permit or with a permit that you get basically just by asking.

 

      Now, years of crime statistics in these states demonstrate that people who get a permit to carry firearms in public are incredibly law-abiding. In fact, there's much evidence that people that have licenses to carry firearms are more law-abiding statistically than even law enforcement members. And there's numerous studies that have looked at crime rates across different states more generally that have concluded that there is zero evidence in allowing public carry under a shall-issue type system causes any increase in crime rates. And it may, in fact, decrease them.

 

      Which brings me to the final, parting thoughts of this presentation. The vast majority of states today respect the right not just to keep arms but to carry arms, to bear arms. The six outlier states restrict that right. And, more generally, lawful gun use and ownership remains enormously popular and widespread nationwide, which is contrary to what the mainstream media in a handful of urban areas tell you is the case.

 

      For example, this is from Pew, right, not exactly a right-wing source. This is from Pew, a study they did. At least two-thirds, that's two-thirds, of American adults have lived in a household with one or more guns in the household at some point in their lives and either currently own a firearm or say that they might own one in the future. Each year, 11.5 million Americans use a firearm for hunting and another 32 million engage in target shooting.

 

And approximately 18 million Americans are licensed to carry a concealed firearm, and mind you that that number is deflated. It's undercounted because in about 17 states in America, you can carry firearms without a permit. So the 18 million people with permits don’t count all the people that can carry firearms without a permit that don't get counted. So this number, if anything, undercounts the number of people that carry guns in America every day.

 

      The right to bear arms is thus extremely popular nationwide. It is not akin to certain other rights, such as the right to an abortion, for example, used in Roe v. Wade to strike down, at a single pen stroke, popularly adopted abortion restrictions in 30 states. Instead, the right to keep and bear arms fits an entirely different philosophical model for the Supreme Court and the federal courts as a whole. The Supreme Court's practice of protecting the constitutional rights that are popular nationwide against the infringement of local outliers is what we're talking about in the gun context in the Supreme Court.

 

      When the Court struck down Connecticut's ban on contraceptives, for example, in the Griswold v. Connecticut case, really all it was doing was enforcing a mainstream, national norm against an extremely unusual local law. Likewise, when it invalidated Texas sodomy law in Lawrence v. Texas, this court was merely putting the final period on the handwriting that was already on the wall.

 

      So, too, with the right to bear arms. May-issue discretionary carry permit laws are the modern analogies of literacy tests to exercise the right to vote. Gun owners living today in places like Manhattan, Hawaii, and San Francisco, and New Jersey face the same challenges faced earlier by local minorities living in hostile jurisdictions such as African Americans in the Deep South earlier in the 20th century. These jurisdictions are out of step with the national mainstream.

 

      And I will close with the trend in constitutional jurisprudence over the last two centuries has been towards steadily broadening constitutional rights and not shrinking them. The Court now broadly protects many constitutional rights that are not even enumerated or mentioned in the Constitution's text. For the Court to bless draconian restrictions on the enumerated, enumerated Second Amendment right based on a handful of outlier historical laws or flawed public policies that deny an enumerated right would simply cut across the grain of historical protections of citizens by the U.S. Supreme Court and the federal courts.

 

And this is yet another reason why I believe that the Roberts Court will view the right to personal protection and self-defense, i.e., the right to carry, as an easy case of constitutional law and not a hard one. And for these reasons, I am confident the Roberts Court will protect the fundamental Second Amendment right to carry against the infringement of a handful of vocal and elite but still outlying outlier jurisdictions which are simply out of touch with America when it comes to firearms. Thank you.

 

[Applause]

 

Jonathan E. Taylor:  Thank you very much. Thanks to The Federalist Society for inviting me. Thanks to my co-panelists. Thanks to Judge Oldham for moderating. It's an honor to be here.

 

      I should say at the outset that my wife is pregnant, and there is some possibility that she could go into labor at any moment, so if you see me get flustered and abruptly head for the exit, I want you to know that that is the reason why. I'm not relenting under the pressure of an opposing argument.

 

[Laughter and applause]

 

      Thanks, thanks. Judge Oldham mentioned the New York City case at the outset, which is now set for argument in the Supreme Court. And, perhaps, we can say something about the case in the discussion that follows, but I want to focus my opening remarks where Mark left off. And that is on, really, what might be the next case to come before the Supreme Court and that's public carry and more specifically whether state laws generally requiring good cause to carry a loaded firearm in public comport with the Second Amendment's guarantee.

 

      And to answer this question, I think, really, this discussion has to begin with Heller. And the question that the Court was resolving in Heller, of course, was whether the Second Amendment right protects an individual right or a collective right. And the Court resolved that disagreement in favor of the individual rights approach. But in doing so, Justice Scalia's opinion for the Court looked not only to the text of the Second Amendment but also to history and tradition. And for that reason, the opinion is often regarded as a triumph of originalism.

 

      In canvasing the history, the Court looked first to the English history, which matters because the Second Amendment protects the right to keep and bear arms which assumes a pre-existing right inherited from our predecessors in England. And then the Court looked to the early American colonial laws and the American tradition to understand the contours and the nature of the right as it existed here.

 

      And the historical materials that the Court looked to were not just limited to the Founding Era but extended all the way through the end of the 19th century, making clear that it's not just the Founding Era documents that matter but the full sweep of America's tradition. And the conclusion that the Court came to after it consulted these historical materials and the text of the Second Amendment is that the Amendment elevates above all else the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

 

      So that's the core of the right: armed self-defense inside the home, not necessarily the only right, but the core. But Heller also says that the right is not unlimited. So how do you know what the limitations are? The text doesn't tell you. The text just says, "The right of the people to keep and bear arms shall not be infringed." You can stare hard at that text all day, and you're not going to find in it the answers to difficult questions. And so, instead, you've got to consult history and tradition.

 

      And here's what the Court said, "We do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation or to keep and carry any weapon whatsoever in any manner or for any purpose." Instead, the Court explained that long-standing prohibitions are seen as a kind of tradition-based exception to the Second Amendment and are thus constitutional by virtue of their historical justifications.

 

      Examples that the Court gave include the prohibition on possession of firearm ownership by felons and the mentally ill, which are notable because these prohibitions, while long-standing in the Court's eyes, had been around for only about 100 years or so. And so what the Court is saying is you don't just look to the Founding Era, you also look to more modern laws from the late 19th century or early 20th century.

 

      Now, the lower courts, in interpreting Heller, have coalesced around a two-step approach where you start by consulting the history and asking whether a particular law at issue is long-standing. And if it is, it's constitutional, and if it's not, you then go to the second part, which is applying what has traditionally or typically been intermediate scrutiny but could arguably be something else.

 

      Now, there have been dissenters from that approach, most notably Justice Kavanaugh when he was on the D.C. Circuit. He dissented from Heller too and took the view that Heller mandates a history, text, and tradition only approach. And so you ask whether a law is long-standing, and if it is, it's constitutional. And if it's not, it's not. That's the whole analysis.

 

      Most of the courts of appeals that have addressed good cause restrictions have assessed the restrictions by assuming that they burden conduct that is protected by the Second Amendment. And then they skipped to the second part and upheld the laws under intermediate scrutiny. That's a fine approach, but it's not the approach I'm going to take today.

 

      I'm going to, instead, make the argument, which I think Justice Kavanaugh would find appealing and which I hope some of the folks in this room would find appealing, that what these good cause laws are is long-standing and they should be upheld at step one because they are consistent with our historical tradition.

 

      Now, in framing the historical question, you first have to have a handle on how the laws operate in practical effect. And so I'm speaking about good cause laws, and the challengers in these cases and Mr. Smith today have tried to characterize these laws as operating as a total prohibition on armed carry outside the home, and that is just not true.

 

      So if you look to a First Circuit case called Gould v. Morgan, and this is a case that I argued, the plaintiff in that case had requested an unrestricted license to carry a firearm in public from the town of Brookline, and he was denied the license. But he was given the ability to carry a firearm in his home, at work, to and from work, including at night, while hiking, which was a purpose that he articulated as being particularly important to him, and then while target shooting. And then there are a number of other circumstances.

 

      Now, in circumstances beyond those, he was restricted from carrying a firearm. But I think the question, then, whether the Second Amendment has any purchase outside the home, which is the question that Mr. Smith focused on, it's a fine question. But it's not ultimately going to answer the question whether a regime like Brookline's comports with the Constitution.

 

      I think instead you have to ask whether the restrictions that are imposed find sufficient support in our history and tradition to be deemed long-standing and thus constitutional. For a few reasons, these laws are long-standing. The first is you look to the English tradition which dates all the way back to 1328 and the statute of North Hampton. And that statute was in effect for hundreds of years, up to and past the English Declaration of Rights, which recognize the right to keep and bear arms, which is the predecessor to our Second Amendment, as the Court said in Heller.

 

      And that law was a broad prohibition on carrying firearms in fairs, markets, and any place where people congregated in public. There's a decision from the and King's Bench in the 17th century that interpreted that law to have no exception for people just peacefully carrying a firearm. The very act of carrying a firearm was considered to be in terror of the people and therefore prohibited.

 

      That tradition then took root in early colonial America where a lot of colonies and states passed mere images of that statute. And then a few decades later in the early 19th century, beginning with Massachusetts in 1836, some states started to take a more permissive approach. And they allowed some form of public carry so long as someone could demonstrate that they had a good cause for doing so. And these early good cause laws, I think, operate very similarly to the regimes that remain in effect today.

 

      Then immediately before and after the Civil War, which is a critical historical moment if you're talking about the meaning of the Second Amendment as applied to the states through the Fourteenth Amendment, over a dozen states and countless municipalities enacted laws that were at least at restrictive as the good cause laws you see today. These laws either entirely prohibited public carry in populated urban areas or they required a good cause for doing so. A couple of examples from states that I don't think anyone would accuse of being hostile to gun rights. Example one, West Virginia. It passed a law that made clear that if any person goes armed with a deadly or dangerous weapon without reasonable cause to fear of violence to his person, family, or property, he may be required to face criminal penalties. Courts construed the self-defense exception quite narrowly to require specific evidence of a concrete, serious threat.

     

Example two, Texas. It also had a good cause requirement and its Supreme Court twice upheld that requirement as constitutional. Once, in 1873, three years after the Fourteenth Amendment's ratification, and then again in 1874. In those two cases, the Court explained that the law was "nothing more than a legitimate and highly proper regulation that undertakes to regulate the place where and the circumstances under which a pistol may be carried and makes all necessary exceptions," including the right to have one at home and at your place of business, just as Brookline does today and a lot of these other jurisdictions do today.

 

      The Texas Supreme Court noted that it had been -- that it would be a little short of ridiculous—their words, not mine—for a citizen to claim the right to carry a pistol in places "where ladies and gentlemen are congregated together and without a good reason for doing so."

 

      Further, the Court observed the good cause requirement was not peculiar to our own state. "It is safe to say that almost if not every one of the states in this Union, have a similar law upon their statute books." That is three years after the Fourteenth Amendment's ratification. And the only point, the modest point that I'm making, is that for the dozen states or so that have continued this tradition today, they're not barred by the Second Amendment from doing so.

 

      Now, this is not to say that this was the only approach taken by states in this country. There was another approach primarily taken in the South that was more permissive. But in that sense, it just mirrors the policy debate that you see today where one side takes one view and the other side takes the other view. And that is what you would expect in a federalist system.

 

      And the question now is whether you want to end that long-standing debate, that policy debate, and constitutionalize it, and declare one side right for all time for everyone. And I would submit to you that that's not the right approach. And I'm going to quote a few judges here.

 

      The first is Judge Wilkinson who said, "Constitutionalizing this critical issue will place it in a freeze frame, which only the Supreme Court itself could alter. Disenfranchising the American people on this life and death subject would be the gravest and most serious of steps. It is their community, not ours. It is their safety, not ours. It is their lives, not ours. To say in the wake of so many mass shootings, in so many localities across this country that the people themselves are now to be rendered newly powerless, that all they can do is stand by and watch as federal courts design their destiny. This would deliver a body blow to democracy as we have known it since the very founding of this nation."

 

      So that is what is at stake, and as Judge Easterbrook said, "The Constitution establishes a federal republic where local differences are cherished as elements of liberty rather than eliminated in a search for national uniformity. When there is no definitive constitutional rule, matters are left for the legislative process." And what is also at stake, then, is the value of originalism as a method of constitutional interpretation.

 

      One thing that Justice Kavanaugh noted, and he drew from Justice Scalia's concurrence in McDonald, is that the Heller test faithfully applied, in his view, will be more determinative -- determinate, excuse me, and much less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague, ethno-political first principles whose combined conclusion can be found to point in any direction the judges favor.

 

      Now, if a group of people can look at the same historical record and see in it their own policy preferences, then originalism is stripped of this advantage. And what you have, as one smart judge has put it in another context, is originalism for me but not for thee, and that is no originalism at all. Thank you.

 

[Applause]

 

Hon. Andrew Oldham:  Thank you very much to our wonderful panelists and the hat tip. So we have two microphones in the middle of the room. We have about half an hour for discussion. So I'll get us started while folks are lining up, and then we'll take some questions. I hope this will be a lively discussion as we talk to each other.

 

      So one thing that all four of our panelists talked about this afternoon is the impact of the Second Amendment vis-à-vis the people and who gets to decide what the rights are, what the right answers to these questions are. So one thing that dawned on me as I was listening to all four of you was that in the Heller decision at page 634, the Supreme Court says, "The very enumeration of the right takes out of the hands of the government, including the Third Branch of Government, the power to decide on a case-by-case basis whether the right is really worth insisting upon," Justice Scalia's emphasis.

 

      So isn't the real question here one of constitutional methodology? That is, do you think that it matters whether James Madison or Thomas Jefferson or Andrew Jackson thought the right was important or linked to a militia, or do you instead think it's a question of original public meaning? And if the latter, how do we decide that rather than who decides writ more large?

 

In that sense, isn't it really just like every other question in the Constitution, which is how do we figure out what the right enumerated, as the Court put it in Heller, really means? So any of you to engage with one another.

 

Mark W. Smith:  Well, I -- should I?

 

Hon. Andrew Oldham:  Sure.

 

Mark W. Smith:  I think it's a great question. I think there's several answers for it. I think the first approach, of course, in interpreting the Constitution or understanding a constitutional question is you start with the text. And when you look at the text of the Second Amendment, it talks about the right to keep and to bear, right, two separate words. If you just say it just has the right to keep a firearm in your home, then what's the point of to bear? That you could put a gun on your body and walk from the bathroom to the bedroom to the kitchen? I don't think that makes sense from a textual point of view.

 

      From an originalist point of view, I think there's a bunch of different ways you can go about being an originalist, right? Some of it requires you to really analyze the Constitution as if it's a statute, trying to understand what people are getting at, what they were trying to address at the time they were adopting the text, in this case, the Constitution.

 

      And I think the one thing we probably can agree upon, the purpose of the United States Constitution, at the end of the day, was really sort of an anti-tyranny protection of individual right mechanism. Everything, whether it's the checks and balances, and you can talk about the structural Constitution, whether you talk about the Bill of Rights, every part of it was about preventing the government from growing so big and dangerous to take away our fundamental rights.

 

      And I think the Second Amendment, and other people have written on this, the Second Amendment is just another tool that can be used as an anti-tyranny mechanism to protect our rights. And, of course, last but not least, there's these sort of debates, I always like to think, there is this sort of debate with Thomas and Scalia about how you interpret the Constitution where, I think, again, Scalia's a little bit more of a textualist. Then I think Thomas has a little bit more of a broad scope of what you look to. I think Thomas, I don't want to speak for the Justice, but I think he would say that he does look to things like the Declaration of Independence as inspiring the meaning of the Constitution.

 

      And if you look at the backdrop of the Declaration of Independence, it's a very John Lockean philosophy of natural rights, classical Liberalism in the 19th century, is this notion out of Locke that we own our bodies and thus we own the rights to the fruits of our labor, this sort of notion, this sort of also fundamental, I would argue, to capitalism because it's based on property rights which is what you produce with your body. And, of course, you also, obviously, have the right to protect your body which is your ultimate asset. And even from a Western Christian religion perspective, your body is given to you by God and thus you have the duty to defend your gift from God with self-defense, in which would include, among other tools, swords, firearms, whatever.

 

      So I think no matter what Western tradition you want to apply, if you want to go beyond the text and beyond originalism, I still think you get to the right answer on the question of do I have a right to carry a firearm outside the home to protect my life, my family's life, and my community, and my country?

 

Jonathan Lowy:  I need to borrow yours. I think mine’s not working.

 

      Just briefly responding to a couple of Mark's points. One, I think the historical record of the Second Amendment is about state power versus federal power. It was not about wanting to make the Constitution a suicide pact or a homicide pact where people could take up arms against all government.

 

It was clearly, and I don't think there's much dispute about this, clearly a concern that state governments, that were giving up their sovereignty to some degree, could maintain their state armies, which were the well-regulated militias referenced in the Second Amendment, and a concern that if this new powerful federal government wanted to, it could starve or neuter those state armies. And that's why the Second Amendment has this inconvenient first half to it, "a well-regulated militia being necessary for the security of a free state." That's what they were talking about.

 

Prof. Renée Lettow Lerner:  I'd just like to pick up on the Judge's point, absolutely. This is an enumerated right in the Bill of Rights. It's specified and therefore, to a certain extent, limits the choices of the people in the states.

     

      To respond to Jonathan Lowy's point about the meaning of the text, it's important to understand what the militia meant in the late 18th century in the United States. The militia meant all able-bodied men, all able-bodied men. So it was a huge portion of the population, someone in virtually every household. And the concern was, it, indeed, did have to do with federalism because the U.S. Constitution gave the federal government power over the state militias, and people in America feared that that power could be used by the federal government to disarm the people.      

 

      And so that was the concern. Heller was correct, it is an individual right, but there was a federal component to it that the federal government would use its power to disarm the people. So we need to understand that broad definition of militia back in the late 18th century.

 

Hon. Andrew Oldham:  Wonderful. Well, we have a long line of folks to ask questions, so why don't we start at the front mic and we'll oscillate back front, or front back, front back. And feel free to address your questions to the panel generally or to any person individually.

 

Owen Smith:  Owen Smith. I'm with Boston Consulting Group. So I have two questions, one for each side. For Jon and Jonathan, I want to talk about Young v. Hawaii. Already through Peruta, the Ninth Circuit rule that you could ban concealed carry based on historical precedent, they didn't talk about the open carry. So in Young v. Hawaii, a plaintiff brought suit saying he wanted an open carry license. Hawaii banned concealed carry. Ninth Circuit already upheld that, so now he's going after open carry.

 

      At the trial, the defendant for the State said he can't think of any example in which someone had ever been granted an open carry license in Hawaii. And I think through research they found four concealed carry licenses in the last 20 years. So thinking about these states that have good cause laws that have been existing for many years, what level of, you could majoritively say, violation of the Second Amendment needs to happen in order for you to say that's not just good cause, they're actually destroying their right. This is not okay.

 

      And then to the other side, I want to ask about corpus linguistics. Josh Blackman and others have done some analysis of corpus linguistics looking at the right to keep and bear arms. And in contrary to our view of the bearing arms and sort of carrying, they found that the majority uses of those words back around the time of the founding ratification was in a military sense.

 

That's kind of fixed up on the point that was just being discussed, but how do you respond to this: that it wasn't really an individual right to bear arms as a person outside the home for carrying from self-defense, but the right to keep and bear arms was really more of a military view. Does that change the reasoning that supports more of an expansive Second Amendment? And if so, was Heller correctly decided but incorrectly reasoned?

 

Hon. Andrew Oldham:  And in the interest of time, I'm just going to ask that -- In the interest of time, I'll just ask that we keep our answers as short as we can so we can get as many questions as we can.

 

Jonathan E. Taylor:  I'll try to be very succinct. Your first question is a great one, and I think it's why it's important for any court that is assessing the constitutionality of a law to ask what the law not just says in its text but how it operates on the ground, what its practical effect is.

 

      And if it turns out that a particular law, in practical effect, is not a good cause law but a good cause law in name only and actually operates as something more akin to a total prohibition, then I think you would have to analyze the constitutionality of that law, potentially, as if it were a total prohibition. And that is a different historical inquiry.

 

Prof. Renée Lettow Lerner:  On corpus linguistics, so the idea behind corpus linguistics is that you can tell the meaning of the word by big data, basically by analyzing massive amounts of examples at a particular time period, in this case, the late 18th century, and determine what the words meant.

 

      So I think the use of corpus linguistics here illustrates the limitations of the method. What's been discovered, not too surprisingly, is that to bear arms was generally in the late 18th century used in a military context. This is not too surprising that that would be the case. But, again, that is not understanding military context at the time, that the military consisted of, again, I say, of all able-bodied men, so a very large portion of the population.

 

      We tend to think of the military today as a very specialized group, relatively small, compared to the rest of the population, group of people. That is not the way the 18th century persons thought of it. They thought of military service as essentially co-terminus with citizenship.

 

Hon. Andrew Oldham:  Let's go to the back mic now.

 

Howard Klein:  Yes, thank you very much. Thank you for this great panel. My name is Howard Klein from the shall-issue State of Florida. The question I have -- we've been talking about the Second Amendment and what it means and parsing the words and the phrases. But let's assume, for the sake of argument, that the Second Amendment didn't exist. We all agree that there has been since time immemorial a right of self-defense. And that right has been cabined by very various regimes at various times, but it's a right that's been well-recognized for centuries.

 

And I would ask if whether or not the right of self-defense should be the ultimate right of privacy. And if we look at the right of self-defense or the right to keep and bear arms through the lens of privacy, the Supreme Court has already told us in several cases that the right of privacy can be only infringed under a strict scrutiny standard. So why do we not -- or do we come to a different conclusion about the level of scrutiny if we view the right of self-defense as the ultimate right of privacy, the privacy to protect one's own body?

 

Mark W. Smith:  In my view, I do think there's an unenumerated right to self-defense and an unenumerated right to life beyond the text of the Constitution. Approaching the question from, again, a Lockean natural rights point of view, which I do think really illuminates the Constitution itself, and certainly if you understand that the Locke role in the Founding Fathers thought about the Constitution and what was important to protect and the -- I forgot how many references to property and contracts and the like there are in the Constitution, but I believe it's something like 25 references.

 

I think you could infer that the right to property, which really is derived from your right to go out and do something to acquire the property, again, comes back to the point if you have a right to your body to generate that property, it seems you have an inherent natural human right to protect it. And I think the right to self-defense and the right to protect yourself and your family is an inherent fundamental human right over and above anything one might find in the Constitution itself. But I don't think we have to get to those esoteric theoretical questions because I think we have an easy answer here with the text of the Second Amendment.

 

Jonathan Lowy:  I just want to briefly respond to a point that's been made a couple of times that the militia drew on virtually all able-bodied men, which to me doesn't address the point that those able-bodied men were participating in a militia. And they had arms to participate in a militia and which was subject to well regulation. And so I don't think it advances the argument to just talk about the fact that the populace that militia was drawn from.

 

Prof. Renée Lettow Lerner:  I think the well-regulated includes most importantly the right to keep and bear arms by the general population. So I think that's the answer to that, but I want to emphasize self-defense. Clearly, the Founders had in mind self-defense. And I agree with Mark that the Second Amendment should be read and thought of in the context of a natural rights idea and, in particular, of self-defense.

 

      And Jonathan Lowy mentioned Nelson Lund. Nelson Lund has been one of the foremost illuminators of this idea of self-defense as applied to the Second Amendment. And he has emphasized the ideas of John Locke, William Blackstone, Beccaria, whom I mentioned, and Adam Smith, all of whom thought that the right to bear arms was necessary for self-defense and personal safety.

 

      Blackstone, who was relied on heavily by the Framers, said that the right to keep and bear arms was indispensable to what he called, and I'm quoting here, "the three great and primary rights of personal security, personal liberty, and private property." And he said this right is "the right of resistance and self-preservation when the sanctions of society and laws are found insufficient to restrain the violence of oppression." And those were the ideas that the Framers of our Constitution were drawing on.

 

Hon. Andrew Oldham:  Let's go to the front mic.

 

Bob Bird:  Good afternoon. My name is Bob Bird. I'm from the State of Iowa and following up on a point raised by Dr. Lerner, I've got a question for Mr. Lowy, I believe, concerning the inconvenient first half of the Second Amendment. The State of Iowa in 1857 adopted in its Constitution a provision to the effect that the militia shall consist of all able-bodied male citizens from the ages of 18 to 45.

 

      The legislature never, to my knowledge, thereafter, made any provision either for the armament of that militia or for the storage of their weapons and armories or in any other depositories. The expectation, I believe, was that the armament of that militia was to be provided by the members thereof, of their own resources and kept by them in compliance with other applicable laws.

 

      Is Iowa an outlier, sir? Or does this help us understand what militia meant in the Founding period?

 

Jonathan Lowy:  Well, I don't want to speak to Iowa law because I don't know anything about it, to be honest with you. But I think the Stevens dissent and the Scalia majority in Heller, I think, setup the historical argument. I think Justice Stevens got it right as to the meaning of the Second Amendment, and I've talked to that.

 

      I do think that moving forward, given Heller is unquestionably the law of the land, I think it's just instructive to note some of the perils of lawyers and judges playing historian, to be frank. We're not -- none of us, I think, are trained as historians. It's not what we do. I don't think it's a class in law school, and it becomes sort of an appellate battle of the historical experts. And as people have said, it is interesting how people’s view of history aligns absolutely perfectly with their policy preferences every single time.

 

      And this is not a slam one side or the other, I think it's both sides of the debate. And that should give one pause in putting too much stock on that. And I do think that moving forward interpreting Heller, we do have the language in Heller that long-standing laws remain presumptively lawful. And I think it's incumbent on courts, among other things, to construe that language broadly because if they take too narrow a view of whether a particular law is long-standing -- is an assault weapon ban long-standing? Of course not, there weren't assault weapons. But there were restrictions on various types of dangerous weapons.

 

      There are not going to be specific analogs, but they're going to be broad analog. And I think courts should recognize what they're good at and what they aren't good at, and this is whatever side you're on, and then make sure to also be deferential to the right of Americans to self-determination and to, again, enact the public safety laws that they want, which is certainly part of the American tradition.

 

Jonathan Taylor:  Just building off of that point, I think one reason why you've seen a lot of courts apply scrutiny and just skip ahead to step two is they're just more comfortable doing intermediate scrutiny or strict scrutiny than they are with engaging in a kind of historical analysis and playing the role of a legal historian.

 

      And I don't think it's necessarily hostility toward Heller or its methodology, they're just doing what they think is consistent with Heller and that they're comfortable and used to doing. And it could be that the Supreme Court in the New York City case or in some case down the road will insist on a different methodological approach. But for now, I think that helps explain why the courts have done, the lower courts that is, have done what they've done.

 

Mark W. Smith:  I just want to offer one thing. While no one will criticize lawyers faster than I will, the reality is that if you let American law be turned over to the historians, you also have a different kind of problem. We all know the scandal involving Michael Bellesiles, the historian that won all those historian awards based on an anti-gun series of scholarship that—and this is all public—that turned out to be not true. So had we listened to historians and the historians that gave historians award for being really good historians, we would've gotten all of our history wrong on the question.

 

So if we don't have lawyers looking to history and rely on historians, that may not give rise to a good outcome either. But at the end of the day, lawyers are historians. It's our job to go back in time to understand what a statute means, what a constitution means, what a contract written 20 years means, what a will written by a family in five years means as applied today.

 

So the only thing that lawyers do in terms of interpreting documents are look back in time, understand what was intended at the time, and apply it in today's world. So I think that lawyers are naturally designed to look back in time, figure out what was going on, apply it to today's world, and move society forward.

 

Prof. Renée Lettow Lerner:  And I'd like to put in a plug for legal history. I am a legal historian. And some of us do actually try to do history, and we're fortunate to have here today Stephen Halbrook, who is a marvelous historian. So it can be done. And it is relevant to our discussions of the meaning of the Constitution and to the Second Amendment.

 

      Along those lines, I'd like to point out that many of the restrictions that have been noted by Jonathan Lowy and Jonathan Taylor had to do, in fact, with restricting arms for, as I said before, disfavored groups, especially African Americans. So I think it's important to keep that context in mind that many of those restrictions, especially in the late 19th century, were intended to do that. And that is exactly what the Civil Rights Act of 1866 was trying to prevent and the subsequent Fourteenth Amendment.

 

Hon. Andrew Oldham:  I think we've got time for one or two more questions, so let's go the back mic and then we'll come back to the front.

 

Jonathan Zimmer:  Okay. Jonathan Zimmer from Austin, Texas. My question's forward looking. It's on red flag laws. Scalia in Heller said that restrictions on who can keep -- on specific classes of people, on who can keep and bear arms such as felons and the mentally ill were constitutional.

 

      Red flag laws, they can deprive people of guns and the right to keep and bear arms, basically a search and seizure and deprivation of right upon a finding of dangerousness found by a judge but with hearings much later, if at all, under civil standards, and the decisions are ultimately up to a judge alone and not the jury.

 

      This has implications not only for the Second Amendment but also for rights guaranteed under the Fourth, Fifth, and Sixth Amendments such as the right to trial by jury, right to confrontation, all of those. My question for the panel is do you think that these red flag laws are consistent with the original public meaning of the Bill of Rights? Can they be drafted to avoid these issues? Or are they just an originalist non-starter?

 

Jonathan Lowy:  I mean, just -- yes, I think they are. And for context, I'd give a real example of what these what we call extreme risk protection order laws are. Your troubled 16-year-old son is texting and posting that he wants to shoot up his school -- well, not say 16, let's say 22-year-old son living in your basement, and that he -- so he's a legal purchaser and possessor, but he says he wants to shoot up his college classroom and he wants to go against -- take out some, whether it's Latinos or federalists or what have you, whatever his agenda is, and he has guns. And the parents want to stop that. And so they go into court, they get an order where those guns are taken away temporarily and then he's entitled to a hearing.

 

      Now, in my view, that is constitutional in that it gets back to the right to life, the right to public safety, which clearly, the compelling interest in preventing that sort of tragedy, I think, greatly outweighs the temporary, perhaps, deprival of Second Amendment rights.

 

Mark W. Smith:  I think red flag laws are terrible. They're unconstitutional and should be rejected at every turn. They're totally unnecessary.

 

[Applause]

     

      The argument in favor of red flag laws goes one of two ways, either there's someone crazy in the neighborhood we need to put away. Every state already has some form of a Baker law that says if you're mentally ill, if you're showing evidence of mental illness, there's a way to take that person into custody, observe them for 24 hours, get them treatment, figure out what the problem is, and if they're mentally ill, then civilly commit them.

 

Every state has this, but to do this, by the way, and this is why certain people don't like them, is you have to actually follow due process. You have to give them a lawyer. You have to give them mental health professionals. You have to actually do things to protect the right of the person and their bodily integrity.

 

      The alternative argument is oh, someone is out there on the internet threatening to shoot up a school. Well, there's already laws in all 50 states that say if you're threatening someone, that's a crime. You can be arrested for it and go to jail. The laws are already on the books, so what are the point of red flag laws?

     

      This is really designed, and I write about this in my last book which you all have a copy of on your chair; there's a whole chapter on this. What this is really about is giving people another set of laws to ensnare law-abiding Americans that follow laws into losing a fundamental right to bear arms, to take their guns away.

 

      Notice that they only want to take away the guns from these so-called dangerous people. They don't want -- and my view is if you're too dangerous to be out on the street with a firearm, you're too dangerous to be out on the street period. That should be the law, and that is the law and that's how it should remain. Red flag laws are all about giving people an excuse to go after neighbors that have signs in the property or use the "oh, see something, say something."

 

      Well, that's what they do, but, trust me, this will be used as a political weapon against lower middle-class people and force them to get lawyers and all those sort of things. And they're extremely dangerous, and here's why they're so dangerous, because criminals expect the cops to show up at their house because it's a cost of doing business. It's a tax. They get it. They expect to get arrested, it's just part of what they do. It's their career choice.

 

But ordinary people that have no arrest record, that have never had a problem with the law, that never see the police unless they're walking down the mall or something, these people do a dynamic entry or knock on the door, somebody with guns and dressed all up, and five in the morning, shows up unexpected, you're asking for extremely dangerous situations. And there's already been one instance in Maryland of a red flag raid of a place causing the guy to pull out a gun on the cops because he didn't know who these people were, and the cops killed this guy.

 

Hon. Andrew Oldham:  Let's give Jon Lowy just one quick second to respond, and we're over time so.

 

Jonathan Lowy:  The threshold for depriving someone of their liberty, I think rightly, should be higher than the threshold for temporarily depriving a potential killer, mass killer of their firearms in which they have their right to retain those firearms. I think that's the distinction made in these laws. I think it's a proper one.

 

Hon. Andrew Oldham:  Well, thank you all very much for an extraordinary discussion. I'm sorry that we didn't get more chance to take the long line of questions, which is a testament to this great panel. I'm going to beg them to answer more afterwards, but please join me in thanking them for a wonderful discussion.

 

[Applause]

2:45 p.m. - 4:30 p.m.
Freedom of Speech and Private Power

2019 National Lawyers Convention

Topics: First Amendment • Free Speech & Election Law • Constitution • State Governments
District Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 15, 2019, the Federalist Society's Free Speech & Election Law Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "Freedom of Speech and Private Power".

Should the government protect speech against private power, and not just governmental power? Many states restrict private employers’ ability to fire employees based on their speech. A few protect private college students, private high school students, or speakers at private shopping malls. And of course employment law and public accommodation law routinely ban private discrimination based on religion, including based on religious speech.

Should the federal and state governments provide comparable protection against private discrimination based on political affiliation, including political speech? Should the government require colleges and universities to demonstrate a commitment to free speech to receive government funding? Should banks, insurers, and social media platforms be required to protect free speech? Or should private entities remain largely free (or even become freer) to discriminate based on speech and ideology?

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Prof. Adam Candeub, Professor of Law and Director, Intellectual Property, Information & Communications Law Program, Michigan State University College of Law
  • Ms. Ann Coulter, Author and Columnist
  • Prof. Eric Goldman, Professor of Law and Co-Director, High Tech Law Institute, Santa Clara University School of Law
  • Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
  • Moderator: Hon. Britt C. Grant, United States Court of Appeals, Eleventh Circuit
  • Introduction: Erik S. Jaffe, Partner, Schaerr | Jaffe LLP

Speakers

Event Transcript

Erik Jaffe:  Okay, thank you. Sorry for the brief delay, but we’re about ready to get started. I am Erik Jaffe. I’m the Chairman of the Free Speech and Election Law Practice Group for The Federalist Society, which is sponsoring this panel on whether or not government should regulate the private regulation of free speech, not just government regulation of free speech.

 

I’m here simply to say hello, to pitch the practice groups, and tell you you should join a practice group. They bring you wonderful programming like this on either free speech or some other topic if you were so silly as to want to do some topic but this topic. And they’ve put out a ton of interesting opportunities for writing, for speaking, and things like that. So please. If you haven’t already joined one of the practice groups, join our practice group. That would be great. I will introduce Judge Grant, and then she will take it from there and introduce all the panelists.

 

So with us moderating the panel today is Judge Grant from the Eleventh Circuit appointed in 2018. I would say that her list of prior positions is like a laundry list of separation of powers -- violations maybe, really. [Laughter] She almost had the perfect double triple but just is one shy, and you’ll see which one it is. So, in Georgia, she was counsel to the Attorney General. She was Solicitor General and, ultimately, a Supreme Court justice – missing, of course, the legislative branch in Georgia. At the federal level, she worked for a Georgia congressman, Nathan Deal.

 

She had several positions in the White House and, then, of course, she clerked for then-judge now Justice Kavanaugh, which we all heard from last night wonderfully and inspiringly. All the rest of her background and detail, like daughter to all those wonderful positions you can read in the bio. I’m not going to belabor them, but I would like to say thank you very much, Judge Grant, and take it away.

 

Hon. Britt C. Grant:  Thank you. Thank you for the very kind introduction, and this is a great panel to be leading. I’ve heard some joking complaints from practice group members that they try to hide this group in the basement, but it looks like they’ve been found. So thank you all for coming to what promises to be a very exciting and interesting panel.

 

      As we know, this is about whether the government can, should, or sometimes even can regulate private speech and internet content, and this is one of the many areas where technology and the development of personal practices and technological needs has created some interesting ways of looking at the law and thinking about the law in ways that perhaps we haven’t imagined even five and ten years ago.

 

      So, what I’m going to do to give you the run of the show is I’ll introduce each of our panelists in turn, and then each one of them will give you a six to eight minute thesis, what their argument is about how the policy and legal interactions between these topic areas should be handled. And, then, after that, they’ll have the opportunity to pose questions to each other to bring out some of the finer-grained differences in their approaches. So I’ll interject as necessary, try to keep this in line and, then, after that hopefully we’ll have a chance to get some questions from all of you. We’re really appreciative of having such a great, interested audience as well.

 

      So the first panelist to my right here is Professor Eugene Volokh, who is Professor of Law at UCLA School of Law where he writes mostly about First Amendment and internet law. Seems like a perfect panelist. In 2012, he was commissioned by Google to co-write a paper on search engines’ First Amendment rights to control their search results. He’s speaking here, however, entirely on his own behalf.

 

The next panelist, Ann Coulter, was kindly invited by one of our panelists who is unable to attend, and Ann Coulter is the author of 13 New York Times best sellers. She’s the legal correspondent for Human Events and writes a popular, syndicated column for Universal Press Syndicate. She’s also a frequent guest on many TV shows. She’s a Connecticut native who graduated with honors from Cornell University School of Arts and Sciences and received her J. D. from the University of Michigan Law School where she was also an editor at the Michigan Law Review.

 

She clerked for the Honorable Pasco Bowman II of the United States Court of Appeals for the Eighth Circuit and was an attorney in the Department of Justice Honors Program for outstanding law graduates. After practicing in private practice in New York City, Coulter worked for the Senate Judiciary Committee where she handled crime and immigration issues for Senator Spencer Abraham of Michigan, a friend of The Society. From there she became a litigator with the Center for Individual Rights in Washington, D.C.

 

Next is Professor Eric Goldman, Professor of Law and Co-Director of the High Tech Law Institute at Santa Clara University School of Law. Before he became a full-time academic in 2002, he practiced internet law for eight years in the Silicon Valley. His research in teaching focuses on internet, IP, and advertising law topics, and he blogs on these topics at the Technology and Marketing Law blog. Managing IP Magazine has twice named him to a short list of North American IP Thought Leaders, and he’s been named an IP Vanguard by California State Bar’s IP section. In 2019, he was the recipient of the University Award for Sustained Excellence in Scholarship, Santa Clara University’s highest award for scholarly achievement.

 

And last, but not least, Adam Candeub is a Professor of Law at Michigan State University. He directs his intellectual property, information, and communications law program. Prior to entering the academy, he worked at the Federal Communications Commission and in private practice in Washington, D.C. Let’s welcome all of our panelists.

 

Professor Volokh, kick it off.

 

Prof. Eugene Volokh:  Great. Thank you. So this is a subject that I’ve long been interested in. Is the Power Point all queued up? Well, all right. While we’re waiting for it, the big picture here I think is something I think as a good Federalist, I’m kind of torn on. On one hand, private entities should have very broad rights over their own property. And I think that’s sort of my presumption is that when private entities do things or exclude things from their own property that should be their choice. And that’s actually part of the diversity of power centers that happens in American society that’s, I think, generally quite good.

 

At the same time, if you think about kind of the big picture First Amendment theories about search for truth and marketplace of ideas and democratic self-government, private power can interfere with participation in the marketplace of ideas. Search for truth, democratic self-government, may not be able to interfere quite as forcefully or as monopolistically in a sense as the government can, but it can do it pretty significantly. So it turns out, as a result, that I think we have some interesting and difficult questions. I have some intuitions about how to resolve them but just want to kind of chart out some of the issues.

 

First question that some people ask is does current law already ban viewpoint description by platforms? Platforms would be things like YouTube—run by Google, but let’s view it as separate—Facebook, Twitter. So I think it’s quite clear there’s no state action for First Amendment purposes. I don’t think there are monopolies. If there were monopolies, there still wouldn’t be state action. That’s just a pretty solid doctrine, that even regulated monopolies are not state actors for First Amendment purposes, much less unregulated things, which I don’t think are monopolies in the eyes of the law. Now, some people point to the Marsh v. Alabama doctrine. That’s the famous company town case from the late 1940s, early in the free speech jurisprudence.

 

In that case, the Court said, “Well, a private company can’t exclude people from the streets of its company town.” But that’s because the Court’s view is this is a town. Towns are traditionally run by the government. Speech in the streets of towns is protected. This town may be owned by this company, but except for that it has all the characteristics of any other town. Essentially, it’s been understood -- Jackson v. Metro. Edison is a more recent characterization of Marsh as a case involving a traditional public function; that if you are a private entity and you run a town, then, in that case, you are subject to the First Amendment. But being a platform is not a traditional public function. To the extent, it’s analogous to what has been done traditionally—and I realize the analogy is imperfect, as all analogies are—it would be to a newspaper which is not at all a traditional public function. But going beyond that there is no governmental analogy.

 

Now, there are these state access to shopping mall rules under state law. The classic example is PruneYard doctrine in California. I just think they’re preempted by federal law, both by Section 230, but also by the Commerce Clause. I don’t think that a state can set up rules on these very much interstate, multistate telecommunications companies.

 

What about contract law? I think we’ll hear a little bit about that. My view is if a contract promises continued rights to post, it should be enforceable. So, if a company says, “We will let you keep those three, and that’s that.” All right. A deal’s a deal. I’ve seen some cases that say that, too, is preempted by Section 230. I don’t think that’s right. I think contract law is enforceable. But the default is provider right to control what it hosts on its own property, just like by default the property owner can tell visitors sorry, you’ve got to leave unless it violates some state’s public accommodations law. But in the absence of that it’s entitled to do that. That’s the default.

 

I think that it would take an affirmative promise, a clear promise, to go against the default. And Facebook and YouTube, for example, try pretty hard to make clear that, for example, if we determine that you have reputed our community standards, we may suspend your account. YouTube even more clearly says, “YouTube reserves the right to decide whether content violates terms of service”. So, when it says you can’t have harassing or offensive or dangerous or harmful or whatever else, it’s up to them to decide. That seems to me, as a private property owner, choosing what to allow on its property and not promising the contrary.

 

But the interesting question it seems to me is what if Congress says, “Well, we have a different view. We are going to implement an anti-discrimination, a viewpoint discrimination ban.” It could be either a common carrier model or an anti-discrimination civil rights law-type model. You may not discriminate based on viewpoint. My view, and I talk about it in the paper, but I’ll stand by it as an academic too—and that’s in the Google white paper—is state laws can’t interfere with editorial choices. And, for example, the output of Google Search -- I just want to make sure the time is right. The output of Google Search is an editorial choice. If Google comes out with a particular layout of things, it’s just like an encyclopedia publisher deciding what to include and what to exclude. Or a newspaper deciding what to include and exclude. Under Miami Herald v. Tornillo, I think that they have the right to make decisions about what to recommend and that includes if Facebook or Twitter or YouTube decide to say, “Oh, we recommend this video.” They can recommend what they want and refuse to recommend what they don’t want. That’s their choice just like any newspaper editors.

 

But what about platform rules that platforms must even-handedly host speech? So it says, “Look, Twitter, you don’t recommend particular Twitter feeds, but you can’t just cancel them.” Somebody’s built up a big audience in a Twitter feed, you can’t, then, at some point say, “Nope. Sorry, you can’t do that,” regardless of what your contract says. We’re going to ban discrimination based on viewpoint just as we might ban discrimination based on religion or race or whatever else. I think that’s a difficult question.

 

My sense is, probably under existing precedence, like here I’m quoting from Rumsfeld v. FAIR, which upheld the requirement that universities host military recruiters even if they don’t want to, and concluded that would be permissible to impose just even as a flat rule, not as just a condition on funding. Similarly, under PruneYard case from the Supreme Court under the Turner Broadcasting case, it seems to me that’s probably constitutional. I think Eric might disagree. I’d like to hear from him. And it may be unwise. It may be a bad idea to impose these kinds of requirements, but I wanted to stress that this is a different question from the question of whether it’s okay to restrict what people recommend, what these services recommend.

 

Now, here’s a question, and I imagine there’s such a statute, but Congress says, “Except we really like the fact that, for example, you tried to block pro-terrorist accounts.” Accounts that seem to engage in ISIS recruiting. Not outright criminal. Not just accounts that are part of a conspiracy but accounts that praise ISIS and sort of—at least as best we can tell they’re not criminal—they just advocate for ISIS. But Twitter, YouTube say, “No, no, no. We want to distance our self from that.” If Congress has to impose any of the anti-discrimination laws in itself a viewpoint neutral way, if that is the rule, then in that case Congress has a choice. Either it has to leave full flexibility for the services to ban whatever they want, or it has to require that services allow everything. It wouldn’t be able to impose this kind of rule which would be a viewpoint-based rule.

 

So one interesting question is when protecting speech—we know that when restricting speech, the government has to be viewpoint neutral – the question is when it’s providing extra protection from speech from private actors. Does it have to be viewpoint neutral too? It’s an interesting question. There’s some disagreement about this. I’m inclined to say probably yes. But I think that’s an important thing to consider whenever we’re urging Congress, let’s say, or thinking about urging Congress to do that.

 

The last thing I want to stress is employer power. This isn’t something that necessarily the other panelists will want to talk much about, but I want to point this out because as important as the platforms are, if I, tomorrow, am kicked off of Twitter, let’s say, my automatic Tweeter feed, well, it’s too bad, but I’ll find some other way of conveying my message. If I’m kicked off for the reason’s website -- not that they would ever kick us off, but if they did, which they have every right to do, then I’d find some other place to be. But, if I were threatened with firing? As it happens, I’m a government employee, but what if I were a private company employee, I might think twice about saying certain things because then I’d be losing my livelihood.

 

It happens that about a third of the states and a bunch of cities and counties have actual rules that ban employers from—here’s the California rule—from enforcing or adopting any rule that controls the political activities of employees. And political activities, the California Supreme Court and the gay law students case back in the 1970s says “connotes the espousal of a candidate or a cause.” So it’s not just partisan or electoral activities, it’s any ideological activities. And, in that situation, the Court interpreted that as banning sexual orientation discrimination before any such specific sexual orientation statute was enacted, based on this political activity statute, on the theory that being out of the closet is itself, as well as advocating for gay rights causes, is itself a political activity.

 

So another question we should ask ourselves is what should we think about that? Should we say it’s yet another improper trammeling of private employer power? Or do we think that this is an important way of making sure that that search for truth in the marketplace of ideas and democratic self-government isn’t done duly interfered with by private entities.

 

Hon. Britt C. Grant:  Thank you, Professor Volokh. Ms. Coulter?

 

[Applause]

 

Ann Coulter:  I haven’t practiced law for twenty years. I know nothing about the legal area, but I’m an avid social media user. And, luckily, I think in this case, it doesn’t matter because this isn’t a shopping mall. This is the movie Rollerball. This is a few corporations. It isn’t companies like Twitter, like Facebook. It is Google, Facebook, Twitter. They control the discourse. It would be as if -- a few years ago I saw a story about the guy who invented a way to force people to pay for the air that goes in their car tires; air that is at a gas station. They used to not know how to charge people for that. So, oh, congratulations. Thanks, jerk. It used to be free, but you made us pay for it. It would be as if somebody cornered a market on oxygen.

 

This is how people communicate. Anyone over 50 may not understand this. There’s no one under 50 who’s turned on a TV. It’s not enough to just say, “Oh, go start your own Twitter.” I mean, look at what happened to Gab. Gab tried to start an alternative to Twitter, and it got its server taken away. It’s got its bank taken away. It got taken off every app, every platform. No, these are monopolies on speech. It’s like having a monopoly on air. It isn’t a shopping center. And, no, if you’re thrown off Twitter, actually it turns out you won’t be able to come out with some other way to be heard.

 

I mean, look at Milo Yiannopoulos, who was the biggest thing since sliced bread. He was making something like $800,000 a month on his YouTube videos through Facebook. Thrown off, deplatformed, depersoned. He’s not on Twitter. He’s not on Facebook. You can’t find him any place. Gavin McInnes, the same thing. Laura Loomer. No, these people are all deplatformed. This is how we communicate with one another. I knew this happened because I sort of wondered -- I mean, you see the nostalgia for the three networks, especially during impeachment right now.

 

If only we could go back to when we could remove a president. [Laughter] That was great. Remember when Dan Rather went on TV and said we were losing the Vietnam War? Those were the good ole’ days. I mean, for a few years now, I’ve been wondering how are they letting us have free speech? They’ve got to put an end to this. Well, yeah, they are putting an end to it. I mean, I know Libertarians also make the argument. But, oh, but if you started a government regulation. Well, then the Democrat comes in and regulates. No, I’m not suggesting new regulations. I’m saying this a unicorn. This is like someone cornering the market on air. Or if Alexander Graham Bell invents the telephone and instead of being a genius inventor, was also a genius inventor slash left-wing dictator, and he starts listening in on your phone conversations. No, no, no phone service for -- oh, start your own telephone company.

 

That’s what we’re dealing with now. It’s not a question of regulation. I think you have to look at these three social media companies -- and, by the way, I have begged my friends in tech to create an alternative. I mean, that’s who I’d prefer to be talking to, not that -- you’re very lovely. The law’s very important.

 

[Laughter]

 

I’d like to be talking to MIT. I’d like to be talking to MIT geeks and asking them to start a Manhattan project to come up with an alternative. I have. I have. I have. They say you cannot do it. It is too entrenched – Facebook, Google, Twitter.

 

I mean, Google does have an excellent search algorithm, but it’s more than that. Everyone is on Google. We can’t get out of it. It isn’t a shopping mall. It’s a gigantic public square. We don’t need somebody to regulate it. We have free speech rules. Just treat them as if they’re a government running a public square because that is what they are doing except they are more powerful than governments. They are like Rollerball with three companies that are far more powerful than a government. They shut down Google. I mean, Twitter is sad. Oh, yeah, if you weren’t president, we’d ban President Trump. How does President Trump communicate? How does Johan Omar communicate? I mean, almost all of the news we get is from what people are putting on Twitter, and they just come along and take certain -- and Twitter’s one of the better ones. They’re better than Facebook and YouTube. And they come along and take down tweets, demonetizing one conservative platform after another. The power they have is stupendous and terrifying, and if you believe in free speech, it’s just enough to say go create your own Twitter, or I’ll stand on the town square. Nobody’s going to be in the town square. They’re home on Facebook. Thank you.

 

[Applause]

 

Hon. Britt C. Grant:  Professor Goldman.

 

Prof. Eric Goldman:  Yeah. I think it was interesting Ann invoked the sci-fi dystopian movie of Rollerball. Actually, I think there was a movie about a monopoly and oxygen. I think it was called Spaceballs.

 

[Laughter]

 

For the first 20 years of the internet, we saw just a remarkable shift in the overall human condition. We saw the rapid growth and innovation of new technologies that provided services that make our lives better on a day-to-day, hour-by-hour, minute-by-minute basis. And I’ve been baffled by the shift in attitudes towards the internet, going from an environment where we love it, and it makes our lives to better to something else. I’ve been kind of puzzled about what’s prompting that? And so I’m going to talk about three things that might be driving why we have a conversation like this which we didn’t have for the first 20 years of the internet. What’s going on that’s prompting these dystopian fears? Are we going to live in a Rollerball world? I hope not. I think I would be smooshed pretty quickly.

 

And so let’s talk about three things that might be going on here that’s driving this conversation. One is the fear of bias, and I think in this room, I think there are maybe some people subscribe to the view that the internet companies are biased against conservatives. And I think that there’s a lot of ways to peel that back and disaggregate all the different norms that are baked in to that fear.

 

But we have to start with the terminology. We often hear reference to things like platforms, and platforms are doing this, and platforms are doing that. What internet companies do -- Google, Facebook, Twitter, if we want to focus only on those, is that they publish third party content. They’re content publishers. And every time that we shift the rhetoric from publication of third-party content, we actually are creating some weird dynamics in our conversation because when we talk about publishing third-party content, we kind of know what the answer is. That’s what we expect to be protected under the Constitution.

 

The decision of what content to publish or not is, like, so basic to how we think about free speech that the only way we can really have this conversation—not talk how we can censure Google, Facebook, Twitter—is by shifting the rhetoric. So let’s take the rhetoric back to where we start from. Bias against conservatives would be another way of saying publishers exercise their editorial discretion in ways that some people like, some people don’t. That form of bias is intrinsic in every publication process.

 

In other words, what do publishers do? They exercise editorial discretion. When they do that, they prioritize some content and they de-prioritize other. That’s what it means to be a publisher. You cannot have neutral publication because the very act of publication is not neutral. It is prioritizing some things and not others.

 

Now, Section 230—I trust most of you are familiar—for those of you who aren’t, it simply says websites aren’t liable for third-party content. They can publish that content and not be liable for it. That law was really one of the most pure codification of the libertarian norm that I can recall seeing in the last 25-plus years. It says, “We’re going to clean out a bunch of potential legal liability in order to create new opportunities for growth.” That is a key part of why we were in love with the internet for the first 20 some-odd years because it was creating new things. We’re making our lives better. Section 230 is what opened up the door for conservatives to have the voices that they wanted to have. You cannot have a bunch of the people who are -- now we would recognize as brand names, and Ann mentioned some of them -- they would not have existed without having had the opportunity to have access to the services that let them publish their content. And so that entire flourishing ecosystem is actually due to the fact that we removed the legal constraints on the publication of the third-party content.

 

We are seeing a continued diversification of services catering to conservative voices and suggested that maybe Gab isn’t going to be our solution, but there’s a whole lot of innovation. I actually did a search before this talk about conservative social media, and I couldn’t even count all the names. So a lot of innovation going on in this space. Why? Because Section 230 enables that kind of activity to take place by lowering the entry barriers and not holding those services liable for fact that there’s going to be people that are going to say some stupid things on them, as they do on all services. Whenever we talk about trying to tell people that they must carry content, that they are -- the publishers are favoring one category content over another, that sounds a little bit like the fairness doctrine which was one of the doctrines that was a lightning rod for the conservative movement for years as a way of restricting the power of private publishers to decide what they thought was best for their audience. We got rid of the fairness doctrine, but I’m not sure that there are people who are in support re-instantiating that for the internet.

 

In 1997, the Supreme Court said that the internet was not like broadcasting, and so any of the regulatory solutions to broadcasting like the fairness doctrine just don’t apply here. They’re not appropriate for this community. And I do slightly disagree with Professor Volokh, which I don’t like doing because he is smarter than me, [Laughter] and especially on constitutional law, so I’m a little nervous here. But taking away the power of a publisher to decide what to publish, forcing them to publish something they don’t want for their audience to me is a form of censorship. It is a violation on constitutional rights.

 

I’m just going to mention two other things quickly as I’m sure I’m already over time. I do want to mention this issue about media consolidation, that there’s too much power and too few hands. I think if I understood Ann’s remarks, that was the main objection that she raised. Unfortunately, media ecologies usually consolidate. That’s not an unusual thing in media industries generally. We’ve seen over and over again that they start out with a wild west where lots of people start, and then they roll up in to smaller and smaller communities. That’s a natural dynamic in this field. It’s nothing surprising. Antitrust law still applies, and there’s no reason to rule out the ability to constrain the behavior of monopolists who abuse their marketplace position, but only when they abuse their marketplace position. Being big is not a crime under anti-trust law. That’s something where we looked for something more, and that’s an intrinsic part of the antitrust laws that we’ve built up since the Reagan revolution, and we should continue to embrace that.

 

The last thing I’ll mention is about there is, I think, at least among some people, a fear of technology. If it’s not about the power of Twitter to turn off someone’s feed or YouTube to kick someone off and take away their 800 grand a month, it’s that the AI is going to kill us, that the robots are coming for us and they won’t value human life. Whatever it is, I do encourage us all to remember just how much technology has benefited us on a day-to-day, hour-to-hour, minute-by-minute basis. What you do on a minute-by-minute basis is usually fueled by access to internet services, and many of those internet services are in existence only because we have kept the law from squashing them.

 

And so before we forget all the great things that are taking place in our lives, I want to just remind you that we got here because of the ability to keep the law out of it. And, if we turn a corner on that, clearly, we are actually going to continue to see the benefits that we hope to get. Thank you.

 

[Applause]

 

Hon. Britt C. Grant:  Thank you, Eric. Do you need the technology?  .

 

Prof. Adam Candeub:  Yes, we do.

Hon. Britt C. Grant:  Professor Candeub.

 

Prof. Adam Candeub:  Thank you.

 

Hon. Britt C. Grant:  Last but not least.

 

Prof. Adam Candeub:  Well, I’m not 5 foot 5, so maybe I am least but, in any case -- that did not work well. Okay, I’ll think of another joke.

 

[Laughter]

 

Prof. Eric Goldman:  You’re giant to us, Adam.

 

Prof. Adam Candeub:  Yeah, exactly. Well, I am going to disagree with Professor Volokh, and we’ll let the audience decide. I think that the notion that some sort of anti-discrimination requirement on the big media companies is compelled speech or would be prohibited by the First Amendment isn’t true. I think if we had general, sort of basic, anti-discrimination rules governing the deplatforming of Twitter or Facebook so they couldn’t throw you off if you were African American or a homosexual or a member of The Federalist Society, this would be quite consistent with 200 years of American law.

 

To this day, the telephone company, can’t deny you a telephone if you’re a Republican or if you’re a Satanist; rather, they are common carriers. They have an obligation to serve everybody. There’s messages going over the telephone all the time that presumably Verizon and AT&T don’t like very much. But for over two centuries we’ve been having this regulation, and the First Amendment has never gotten in the way. People have accepted this as a basic part of what communication is.

 

This is what Ann was talking about. Every society needs a place where we all can come as equals and converse. And it’s not just common carriers. It’s not just this tiny, little group of industries. Rather, Turner Broadcasting. That was the old cable system ruling from the Supreme Court, and it’s a little esoteric, but it involves requiring cable systems to carry the messages of broadcasters. Function and services are legitimate. Public interests, allowing to people to converse equally on this platform seems to me to pass muster.

 

Can you actually impose these sort of non-discrimination requirements on social media? Well, if you’re going to go so far as to classify as them as a common carrier, which if you look at the statutory definition -- and I won’t go through it with you. I’m the last panelist and it’s getting a little long already -- but I think you probably could. Now, would the FCC ever do that? I don’t think so. I think we all know that the powers that be would send lobbyists, and they would set themselves on fire in front of the FCC on 12th Street. But that would never happen.

 

[Laughter]

 

But, if not common carriers, you could probably regulate them in the same way that cable television is. Again, a basic, mild non-discrimination requirement so they can’t single out people. They can’t have a clear ideological slant.

 

Finally, you can clearly condition non-discrimination on the special liability breaks found in Section 230. Professor Goldman spoke about them, but right now internet platforms have a degree of immunity from liability that no newspaper, no television, no cable system has ever had in our history—that was a gift to the nascent industry by a grateful Congress—and that could be revisited. And say, “Look, if you want this liability break, you have some obligations to forward a truly democratic public forum that we can all can be part of.”

 

And just one more point about -- it’s not on the slides, but about something that Professor Volokh talked about which is this like Marsh. Marsh was a public town, and the Court said, “Look there’s some public points of access that you have to recognize as a city company town.” The company town couldn’t restrict the citizens, the town, from hosting things and from I think it was religious proselytizing. And the idea was well, look, the private actor takes the job of the government well, then, First Amendment obligations come along. Professor Volokh said, “Oh, no, obviously Twitter is not the government.”

 

But consider this. Every Congressman has a Twitter account. Agencies have public meetings on Twitter. Our President has an account which has been determined to be a public forum in which he cannot legally block people from entering. If Google blocks you from, or de-platforms you, or YouTube de-platforms you—or Twitter, I guess—you can’t go to these meetings and participate as a citizen. You can’t go and comment and respond to President Trump. So, in that sense, I think it’s pretty clear that social media is becoming a sort of public town -- sorry, a company town, and it’s totally natural and appropriate that we consider rights of access.

 

And, finally, I’ll just leave with some more sort of speculative ideas. Again, I’m taking issue with what Professor Volokh says. He believes that Google expresses its editorial judgment when it gives you results. I’m not so sure. What does Google express? Does it express Googliness? Does Twitter express Twitterness? Are the responses that Google gives when you put in a search, is it really an editorial judgment or is it simply like a Dewey decimal system? It’s a way of classifying information so you can retrieve it more speedily. The Dewey decimal system doesn’t express anything.

 

Now, even under Supreme Court precedent, remember, to be expressive, minimally expressive, we look to the Renton case, which of course involved naked, nude go-go dancing. Maybe it’s just me, but I find nude go-go dancing infinitely more expressive than the Dewey decimal system.

 

[Laughter]

 

I think that’s an open question. Finally, even if it is an editorial decision, even if we grant that to Professors Goldman and Volokh, not all editorial positions are protected by the First Amendment. So, for instance, let’s say that Google decided we’re going to downgrade all businesses owned by African Americans, or all Jewish videos on YouTube shall be banned. That’s our editorial judgment. It would seem to me, however, that civil rights and a bunch of other laws would take precedence.

 

And, finally, I do have to say this, I’m disclosing at the end. I’m lead counsel in a case against Twitter involving a deplatformed individual, a very eminent feminist Canadian activist, Meghan Murphy, who was kicked off Twitter, relied on Twitter’s express promises and terms of use -- and if anyone’s interested, I have them up there if you want to go through them. Meghan called Jonathan/Jessica Yaniv a man. And Yaniv is an alleged sexual predator who became a public figure in Canada for suing female beauty salon employees for refusing to wax his still quite male personal parts. So we go around and actually sue these poor, working women for refusing to do these services for him.

 

Murphy denounced him on Twitter, said this was a terrible thing to do, and called him a man. And she was kicked off Twitter for the crime of misgendering. You talk through the contractual provisions if people are interested.

 

But I will just conclude, getting back to Ann’s point, which is about the question of power. There’s a very eminent, probably one of the most eminent child psychiatrists, and his name is Paul McHugh, who pretty much says the same thing that Murphy did. He does not believe in transsexual therapy for children. He thinks it’s ridiculous and it’s wrong, and he doesn’t believe that sort of thing. He tweeted that. He was kicked off. Now, there is sufficient outrage from the -- he’s a professor at Johns Hopkins -- there’s sufficient outrage that he was put back on. But Meghan Murphy, who’s just an activist in Vancouver, said pretty much the same thing: no.

 

So what we’re getting in the social media is the very opposite of a democratic discourse. We’re having a conversation of the powerful and the well-connected, and I think that’s profoundly destructive for our democracy. And that’s it.

 

Hon. Britt C. Grant:  Thank you.

 

[Applause]

 

We’ve heard, definitely, four interesting perspectives, and although I’ve got plenty of questions of my own, I think it would be unfair, after promising the panelists so they could question one another, I jumped in. So does anyone have a particular question that they’d like to ask one of the others?

 

Prof. Eugene Volokh:  Could I ask a question of Eric and a question of Adam? So, Eric, I appreciate your argument. I agree with much of it. But I wonder about this argument that the platforms are publishers as to everything. So just take an example. As I understand it, Gmail has never said, “Oh” – or Google has never said, “Oh, if you use Gmail for hateful purposes, we’re going to cancel your account.” Right? And I take it that if they did that, there would be a lot of outrage, and there’d be a call for Congress to say, “Look, if you’re providing email services, you can’t do it a viewpoint-based way.

 

Now, you could argue as to whether that would be a good or a bad call, but I take it we’d say that there Google is operating as a platform, as an entity that distributes others’ material, like a phone company does, and that that is, therefore, not within its first -- there’s not a First Amendment violation requiring even-handedness with regard to email. So, what I’m wondering is, why wouldn’t the same apply when YouTube simply provides space for people to host things? Why isn’t that indeed closer to Turner-Broadcasting than to the fairness doctrine? I recall one of the problems of the fairness doctrine is it did restrict the speech of the television stations. It deterred them from posting certain things because that would trigger right of response. It took up time that they would otherwise like to use for posting other things, and that was the problem with it.

 

But in Turner, when it came to a more content-neutral mandate, that seemed okay. What do you think about this hypothetical law that bars email services from discrimination? And if you think that’s permissible when it comes to their restriction on one-to-one people’s speech, why wouldn’t it be okay to have—constitutionally okay, whether or not a good idea—to have a similar law when it comes to platforms operating as just hosts?

 

For Adam, I want to ask a separate question which is if Google Search really is like a company town and subject to First Amendment rules, then it would have to be content neutral and not viewpoint neutral. Google Search that’s content neutral would be useless.

 

Obviously, we want Google to select things that are of matching content, but not even just, “Well, we insisted it would be. Our algorithm just counts the number of references.” If I post something that says, “How old is the Earth?” it’s actually a useful service to me if Google tells me six billion years rather than six thousand years. So, if indeed Google were governed by Marsh v. Alabama, again, as to its recommendation as the search function, not as its hosting function, wouldn’t that damage a lot of its qualities, which makes us think that maybe it is engaging in expression the way that an encyclopedia publisher, even though the Britannica may not be conveying a message of Britannica-ness, is importantly selecting things that it thinks are worth passing along and not things that are not?

 

Prof. Eric Goldman:  Just for the audience here, I think you’ve just seen firsthand what it’s like for a law professor to cold call another law professor.

 

[Laughter]

 

I can assure you that was not planned, and I’m a little stressed here about answering Professor Volokh. Professor Volokh gave actually three different examples, and it shows the difficulty of keeping our conversation straight when you talk about media. He gave the example of email as a service, cable broadcasting as a service and, then, web publishing as a service. Each of them have different technological and legal foundations that could leave to different constitutional conclusions.

 

So, for example, when we have email, it is illegal for the email service provider to read the contents of the email. So if someone’s sending an email filled with the most hateful content, the email service provider should be agnostic of that. Now, having said that, if the email service provider gets complaints about that person, they are consistently engaging in wrongful behavior, in fact, the email service provider might very well turn that email account off. And might be expected to turn it off. Section 230 might say they’re not liable if they choose not to do so, but they might still nevertheless decide that it is in everyone’s interest to turn that account off. Not because they read emails, but because it’s clear their email account was being abused for wrongful purposes.

 

So email is its own unique category, and it has its own unique dynamics about what is permissible and what isn’t. Cable broadcasting has been treated analogously to over-the-air broadcasting in some respects. I will point out the Halleck case, actually, I think does some serious violence to the standards about Turner and otherwise, basically saying if it’s private property, it can’t be commandeered to require them to publish content they choose not to publish. That was just from this last term. From my perspective, I think that we’re getting some pretty strong signals from the Supreme Court that even in the context of cable broadcasting, they are not required to carry everything that the legislation might require.

 

And then the analogy to YouTube and to web publishing is to me like apples and oranges. We don’t have a model of cable broadcasting, over-the-air broadcasting to refer to. We have this whole new thing where users are given the power to reach a global audience through the provision of a publisher that says, “I’ll take whatever you submit, subject to some very light rules at the outtake and subject to some backend rules I might enforce.” It’s a whole new category, and that’s what the Supreme Court said in the 1997 Reno v. ACLU case which said that the internet is a wholly unique medium. We can’t look to the rules that apply to broadcasting and extrapolate them to the internet because the technological dynamics are different.

 

We have something new that we’ve never seen before, and the Supreme Court said in 1997, there is no basis for qualifying the level of First Amendment protection, therefore, publication of content on the internet. So it isn’t like broadcasting where there has been a circumscription of what obligations and rights a broadcaster has. The Court said this is not that, and as a result, I think that when we try to lump together email, cable broadcasting, and web publishing, we’re putting three things together. Profession Volokh, did I pass your question?

 

Prof. Eugene Volokh:  Thank you.

 

Hon. Britt C. Grant:  Would anyone else like to weigh in on that one before I move to the next question?

 

Prof. Eric Goldman:  I’m sorry. There was a question for –

 

Hon Britt C. Grant:  Right. I’ll take that as a no.

 

Prof. Adam Candeub:  Yeah. Okay. So the question was what use is content-neutral search and that, therefore, obviously all search has to be somehow content based or have some sort of content component or element or it just wouldn’t be interesting. Well, I think to answer that question, which is probably correct—I think that’s a correct observation—you have to look to where the question was asked. The question was is Google expressive?

 

Well, whether it’s content neutral or content based is not exactly the answer to that question. Of course, it is expressive to some degree, but you are able to point to some idea, some notion that it expresses. Professor Volokh suggested, well, it expresses the true age of the Earth. It’s kind of a mild type of expression. It expresses correct answers. It expresses Google’s best guess of what you think. We all know the Dewey decimal system also expresses its best guess as to what you want when you’re looking for a book. I’m willing to accept that Google has some sort of basic level of expressiveness, but then you have to ask the next question. Does that even minimal level of expressiveness warrant First Amendment protection? Or if it’s less than that expressive, it doesn’t get that much First Amendment protection, and then we’re off to the races as to how we can regulate it.

 

Hon. Britt C. Grant:  Thank you. I think we’ve got time for one more question from a panelist, and then we’ll open it up for questions from the audience, so please be thinking about your brief questions that quickly end with question mark while we hear one more from all of these folks.

 

Prof. Eric Goldman:  If possible, I would take that. Okay?

 

Hon. Britt C. Grant:  Yes, please.

 

Prof. Eric Goldman:  This is a question primarily for Professor Candeub. The New York Times has long had a motto that says, “All the news is fit to print.” [Laughter] I’m sorry. There are again laughs. I haven’t even told my punchline.

 

[Laughter]

 

A farmer and a doctor walk into a bar. [Laughter] Okay.

 

But we know that’s not true. Everyone knows that that’s not true. It’s the all the news that the New York Times concludes is fit to print which is a very different statement than “all the news that’s fit to print.” Do you think that the New York Times should be liable for the fact that it has claimed “all the news that’s fit to print?” And if, effectively, what the internet services who are publishing third-party content are saying, “We will publish all the user content that we think is fit to print,” would that be different?

 

Prof. Adam Candeub:  It’s hard to answer that question. I don’t quite understand it to be honest. We all know the New York Times only prints news and precisely that news which it believes to be fit to print, and it does make editorial decisions. What are Google’s editorial decisions? I guess to answer that question you have to know what they are, but they won’t tell us because all of the algorithms are secret.

 

Ann Coulter:  Could I also say I think it kind of misses the point. I don’t care if Google goes around bragging, saying we’re not crossing the creepy line. That was the big thing with them. And we all think they are crossing the creepy line. We don’t care what their motto is. They can say, “We allow everyone. We arrange our search engines so that only the truest answer comes to the top.” But we care if they’re not doing it. And, if they’re discriminating on the basis of not liking -- well, certainly it’s very obvious -- not liking peoples’ politics.

 

I mean, years ago when Google first started, Rush and Drudge pointed out to me, you search our names, Ann Coulter, Matt Drudge, Rush Limbaugh. The first ten results are ann-coulter-is-a-c-word.com, rush-limbaugh-is-a-c-word.com, [Laughter] matt-drudge-is-a-c-word.com.

 

Prof. Eugene Volokh:  Same C word? Or different ones?

 

Ann Coulter: They mixed it up a little. [Laughter] But it would be like a whole page before you get to our official webpages. Now, come on. Come on. You’re not going to give The Drudge Report? I think it gets more hits. I mean, I’m not really sure what do when you’re talking about search engines rather than banning content speech, but I could think a first step would be at least for Google to release its algorithm so we can see it. Right now, it only comes out secretly when Google employees go to The Daily Caller or Breitbart and say, “Oh, yeah, we were told to blacklist your site. We were told to blacklist Michelle Malkin.” No. This isn’t a shopping mall. It isn’t the New York Times. You didn’t have to subscribe to the New York Times. There were lots of other newspapers. There was local new. There was national news. They were standing on the street corner. Now, you have three companies controlling 90 percent of all communication. There is nothing like this.

 

Hon. Britt C. Grant:  Questions from the audience? I think we’ve got microphones around the room. Looks like you were up first.

 

Questioner 1:  Sure. My questions are a two-part question principally directed to Ms. Coulter. As a conservative, I’m quite conscious of how norms that are liberty-enhancing when applied to the state to restrict liberty when applied to the private sector. And so I’m struck by just sort of the strength with which your argument that these norms should be applied to private speakers. But let me ask you, then, do you think that the FCC’s abandonment of the fairness doctrine, which was unanimous in 1987 and roundly criticized by, not just conservative and libertarian scholars, but scholars across the spectrum, was wrong? And, what gives you confidence that the government can neutrally be an arbiter of neutrality? I mean, is President Warren’s FTC going to be a good arbiter of whether somebody was wrongly given too low of a search response on Google?

 

Hon. Britt C. Grant:  Thank you.

 

Ann Coulter:  Because we have two hundred years of First Amendment law. No, I’m not suggesting the FCC start regulating things or bringing back the fairness doctrine. I’m say that these three entities control 90 percent of all communication. They should be treated like the public square being operated by the government, except obviously there’s no time, place, or manner restriction. You’re not going to be bothering anyone if you tweet at three in the morning. It’s not like a foghorn or something. But we have rules for these things, and the courts have developed it. And, yet, somehow, we’re all still living in freedom.

 

[Laughter]

 

Hon. Britt C. Grant:  Next question over there.

 

Questioner 2:  I suppose I have a question on the opposite end of this. Ms. Coulter suggested that you should treat these entities as if we’re treating the government because they control 90 percent of the traffic. What about kind of the opposite? With a couple of the decisions coming out of Southern District and then Second Circuit holding that, for example, President Trump can’t ban users on Twitter. And it seems somewhat odd to me for the following reasons. Twitter could ban someone for being, essentially, abusive. Forget about misgendered but, like, outright abusive, right? But a politician to whom you’re being abusive and not necessarily contributory, under those instances, can’t ban it. And that seems -- now I understand the difference between private entity and public, but nowadays that seems somewhat odd. It seems odd from the perspective, and I suspect it would hurt women and minorities more than anybody else. But it also seems odd that you actually then can’t get your message out of somebody spamming you with abuse. So, any sort of views on those decisions and how they’ll eventually play out?

 

Prof. Eugene Volokh:  Eric, do you want to go?

 

Prof. Eric Goldman:  I’m sorry. I don’t need to challenge your factual premise there. The Second Circuit case made it clear that President Trump banned the speakers because he didn’t like what they were saying to him, not because they’re abusive. That question hasn’t been litigated in court, so your factual premise isn’t supported by that particular ruling. We don’t know what will happen in the situation you described.

 

Prof. Eugene Volokh:  I think the broader point, I think, is an interesting point. It’s not a terribly practically important point. Actually, not much rides on whether politicians can or cannot ban commenters in part because commenters can easily just sign on to a different account. [Laughter] But I think the analogy -- and I’m not sure those decisions are right for other reasons, but I think the analogy is imagine that the government rents space from a private entity. Let’s say it wasn’t President Trump. Let’s say it’s actually a government entity rather than just a politician who might have a private hat, that this is a school board which has no private hat. But it doesn’t have space, so it rents space in a church, or rents space in a local Lions Club. The club could kick people out for whatever reason, at least unless it’s promised not to do so in the contract. But it doesn’t mean that when the government is using that private space, it can then decide who to include or exclude.

 

I think the sensible point behind those decisions is when the government is making decisions about—viewpoint-based decisions—about what goes on on property that’s within the government’s control even if ultimately somebody else owns the fee simple right. But that is subject to First Amendment scrutiny. That seems to me to make sense.

 

Hon. Britt C. Grant:  Thank you. Next questions?

 

Hans von Spakovsky:  Hey, I’m Hans von Spakovsky, and my question is directed to Professor Goldman, although I’d be interested in what all the panelists said. Look, you gave a very vigorous defense of Section 230, which in essence gives government the equivalent of governmental immunity to the big platform providers. But the big platform providers lobbied Congress for that provision because they argued that they were not publishers. You consistently refer to them as publishers. In fact, what they said was, “We’re only distributors of content.”

 

If, in fact, they’re now acting as publishers, they are exercising editorial control by deciding what they’re going to publish and what they’re not going to publish, why should they get immunity from libel laws? Other publishers, publishers of books, publishers of newspapers, who exercise the same kind of editorial control – they’re not immune from libel law. Why should they continue to have that immunity?

 

Prof. Eric Goldman:  Thank you for the opportunity to talk about that. Just a factual clarification, Google, Facebook, and Twitter did not lobby for Section 230. They did not exist when the law was enacted. And, in fact, they exist because the law was enacted. So they were the beneficiaries of other people who thought it would be a great idea to have this particular liability scheme, not the proponents of it.

 

Your question basically gets at the heart of everything we do in internet law. I’ve been teaching internet law since 1996. This is what I do in every single class. We start with a fundamental question. Is there some reason to treat the internet different than other media? Is there something unique, special, or different about how the internet is constituted, about how it operates, that it may be beneficial to treat it as something other than other media that we could analogize it to. And, in some cases, the answer is clearly no, that the internet is just like other media. It should be subject to the exact same regulations as other media, and I would support that.

What we learned from the Section 230 experiment is that there’s certain classes of content that exist only because we have a different rule on things like defamation for the online environment than we do for the offline environment. In other words, these classes of content didn’t exist in the offline world because, in part, of the liability scheme that suppressed them from emerging. The primary example: this is something like Consumer Reviews. We never had an offline analogy to Consumer Reviews because they were litigation bait under the existing law. With a different liability scheme, we can create a whole new class of content that makes marketplace better.

 

We also have things like online marketplaces. We have a variety of online marketplaces that did not have any offline analogy. They exist because Section 230 allows them to configure the market in a way, not take liability for the transactions that they enable, but to make those marketplaces more efficient.

 

The last thing I’ll point out is something like the YouTube videos. The better example is something like the how-to videos. You can literally look up how to do anything on YouTube and find out an answer. It might be wrong, it might even be dangerous, but chances are you’re going to get information that’s going to help you solve your problem. There were no how-to videos available to you as a consumer in the offline world. We also didn’t have the same degree of cat videos, but that’s not even now as socially important.

 

[Laughter]

 

Ann Coulter:  I don’t think that’s true. I think the question is an important one. Either you’re a publisher, either you’re the New York Times or you’re a bulletin board. If you have a public square and someone is allowed and it’s the government allowing you to go and stand on your soapbox, and someone stands up and engages in open, legal defamation – okay, you had a lawsuit against the person who defamed. You don’t have a lawsuit against the gardener in the park or the person who is cleaning up the park. That’s just the park that’s open. It’s the air because we’re not publishing this. We’re allowing you free speech in this park. If the park is deciding, well, these people can talk and these people can’t talk, then I do think you have a right to sue the park for saying you’ve just been defamed. You can’t have it both ways. We’re just a bulletin board, and I’m all for it being a bulletin board. Nobody hates the internet. We love the internet. We’re very upset that only certain viewpoints are being banned and discriminated against on the internet.

 

[CROSSTALK]

 

Prof. Adam Candeub:  Yeah. Well, first of all, it wasn’t Google, YouTube, or Facebook that had lobbied it. It was CompuServe and Prodigy. So it’s not as if 230 was some sort of natural fusion of the public discourse. It was a giveaway to a certain industry. As I have mentioned, it was a very generous giveaway, and that’s one of the real problems with the current legal arrangement because they’re sort of able to play a sort of jujitsu. When they want First Amendment protection from various laws or regulations, they say, “Oh, all of this is expressive,” just as a Professor Volokh was saying. Our search results are the inner soul of Sergey Brin. But, when we are in Section 230, which only immunizes comments and content from third parties, “Oh, we’re just a platform. We don’t have any control over what other people say. We can’t be liable for these third-party comments and content.” So the question is not, oh, this is a wonderful system and allowed us to have how-to videos. The question is we need a consistent liability regime for, as Ann said, the central engine of communications today.

 

Prof. Eugene Volokh:  I want to agree in part with Ann and Adam, and in part with Eric. There is ample precedent for absolute immunity against libel liability for my loosely called platforms. Long before the internet there was blackletter law. You couldn’t sue a telephone company for allowing libelous communications. The cases of which it arose is there was somebody that had a libelous outgoing message on an answering machine, and somebody demanded that the phone company cancel that number. And they didn’t, and there was a lawsuit. And the Court said, “Look, the phone company isn’t allowed to cancel it. It is a common carrier. Therefore, it gets immunity.”

 

Likewise, as I understand it, under FCC rules or maybe even under statute, broadcasters had absolute immunity over libelous statements in candidate ads because they were required by law to allow candidate ads. Likewise, the park. The city that owns the park has immunity from libelous statements said in the park because under First Amendment rules it can’t exclude people from the park, generally speaking. So, in fact, before Section 230, there was this tradition of absolute immunity that was tied to non-discrimination obligations. So, in that respect, Ann and Adam are actually arguing for a return to a pretty traditional notion.

 

But here’s what happened in the mid-1990s. There were actually a couple of Court decisions that sued the point in exactly that direction. What they said is if you host online bulletin boards and you are non-discriminatory based on content, then, in that case, you get immunity. But if you host these bulletin boards -- I shouldn’t say a couple cases. One case in particular are pointed in that direction. But once you, as an entity -- I believe it was Prodigy -- once you --

 

Prof. Eric Goldman:  -- CompuServe.

 

Prof. Eugene Volokh:  Was it CompuServe? I think CompuServe --

 

Prof. Eric Goldman:  The company was [CROSSTALK].

 

Prof. Eugene Volokh:  Once you actually say, “We’re going to have some sort of content moderation,” then you get stuck with liability. So, the sense was, as a result, online platforms would be deterred from providing content moderation which people wanted. People wanted those platforms to restrict vulgarities, to restrict maybe pornography, to do various other things. It was a deliberate choice by Congress to promote content selectivity of some sort by making sure that the content selective entities, like the content-neutral entities, both got the same kind of immunity. So it may be time to revisit that. But it’s important to remember that there was a deliberate congressional judgment that we want to have some sort of content selectivity. And the question is are we really prepared to mandate content neutrality?

 

Prof. Adam Candeub:  If I could just jump in. I think that interpretation of the ’96 Act is a bit retrospective. This was 1996. Not many people were using the web. The World Wide Web protocol was only introduced in 1995. Section 230 was introduced as part of the Communications Decency Act. Does anyone remember what that was about? It was about banning pornography from kids, and it was pretty much all turned down by the Supreme Court. This was not a desire by Congress to have monopolists become content moderators, our friendly content moderators. This was really a desire by Congress to give some liability protection for people who wanted to get rid of porn. I think that’s obvious from the statute. It was not a desire—democratic desire—to the people of America saying, “Moderate me, moderate me, oh internet giants.”

 

[Laughter]

 

Hon. Britt C. Grant:  I think it’s time for the next question.

 

Questioner 4:  This question’s for Professor Goldman. One of the most remarkable things I’ve seen in recent years is there are journalists on Twitter asking @JackDorsey to ban their political opponents. You see the same people writing op-eds demanding that Mark Zuckerberg censure their opponents. This is truly remarkable. It’s clear that the power to control speech is now in these select few peoples’ hands. They can make and break people’s careers, livelihoods, reputations.

 

At what point do you think that this power becomes too concentrated? Is there any point for you that which this power is concentrated in too few hands and used for sufficiently abusive ends that would justify government action? If the Constitution’s not a suicide pact, then certainly the First Amendment isn’t the pact against free speech.

 

Hon. Britt C. Grant:  Thank you. Professor?

 

Prof. Eric Goldman:  Let’s just start with our terms. It’s fine if you’re concerned about Twitter, Facebook, Google because of the disproportionate share of our minds that they occupy. But they are a small fraction of the overall activity that’s taking place on the internet. And one of the ways we can get ourselves in a lot of trouble is to say -- to equate the two. To treat the Google, Facebook, and maybe Twitter as if they are the internet because there’s so many other services that we use on a day-to-day basis that make all of our lives better. And you might be a Twitter aficionado and, so, what Twitter does rocks your world.

 

But there’s all kinds of communities out there that you’re not a part of that are benefiting every single day by Section 230 and the First Amendment. And they’re in competition with each other to try and find a way to best cater to their audience. Those of you who are knitters, you know there is a whole world of knitting that’s taking place that maybe I’m not a part of but, boy, that’s really important. That’s worth fighting for. We have to be very thoughtful about distinguishing what we feel about the internet from how we feel about Google, Facebook, and Twitter. Now, with respect to them, honestly, if you ask Twitter, they’d say, “We’re not as big as Google and Facebook, so thank you for treating us as if we’re equal to them but we wish we had a small percentage of the revenue and profits that they generate.”

 

We have antitrust laws, and antitrust laws apply to publishers just as they do to everyone else. In fact, we’ve literally have given exemptions to publishers from antitrust law where we thought it was better for them to coordinate their actions than not. The antitrust concerns here: really, I think, we don’t have any foundation for the antitrust concern. What we’re really hearing is we’re afraid of them because they are big and because of power they have. Now, this is nothing new. Go read all the media literature from the 1970s. In every local market there was one, and only one, dominant newspaper that controlled everything that was read by the committee members. Their power went up to the Supreme Court in the Miami Herald v. Tornillo case where the legislature tried to require the publication of content in this one, single newspaper that dominated the local metro area. It was the way to reach the audience if you wanted to reach them in print. The Court said, “I know that there’s only one dominant plan on the market. They are the monopolist in that market. We still cannot circumscribe their First Amendment protections, the freedom of the press.”

 

We have to recognize if there’s an antitrust violation, we should deal with it as such. Every other form of power and consolidation that take place in the media is a well-known phenomenon. It always leads to people complaining about that power, and we still don’t get the right to circumscribe that publisher’s constitutional protection because of it.

 

Prof. Adam Candeub:  If I could just say, I think you’re correct. I think for conservatives we have a choice. We can sort of attach ourselves to what I would consider a somewhat esoteric views of the First Amendment that seem consistent with the early writings of Robert Nozick. Or we can adapt a view of the First Amendment that actually protects public discourse and is not waiting for some antitrust suit that will never come to allow people to speak. I think we all know who dominates public discourse. We all know who is really speaking to young people and is changing minds. And I think if we want to have a seat at the table and want our ideas to have any chance, we have to make sure that these companies get their feet of our necks.

 

Prof. Eugene Volokh:  Adam, so let me just ask you this. Would you have been in the dissent in Miami Herald v. Tornillo because those arguments really are -- this I agree with Eric -- those arguments really are the arguments that until the newspapers almost went out of business, the arguments that routinely levied with regard to newspapers that really had dominant power in any particular locality.

 

Ann Coulter:  Adam, can I interrupt?

 

Prof. Adam Candeub:  Please.

 

[CROSSTALK]

 

Ann Coulter:  I’m sorry. This is an insane comparison. [Laughter] First of all, you may talk about the internet. Oh, Twitter, Facebook, Google. Really, they don’t do much. Yeah, okay. There probably shopping on Amazon or looking at porn. Nobody cares about that. We’re talking about free speech, political speech. This is how people communicate politically. Ooh, Miami Herald, ooh, they were so dominant. I’m sorry. In the 1970s they had radio. They had TV. They had telephones. They had PennySavers. There is nothing that can compare to Facebook, Google, Twitter, which owns YouTube, and rest of them. There is no comparison. It’s silly to talk about a one newspaper town. It is absolutely silly to make any comparison to that, and I am sure everyone under 50 in the room knows that. That’s for those of you who are over 50.

 

[Laughter and Applause]

 

Hon. Britt C. Grant:  Any further comeback? All right. [Laughter]

 

Questioner 5:  Hearing this conversation actually makes me feel like all of the campus free speech conversations we have apparently mean nothing because apparently none of that is happening. All conversation happens online. But my question basically is we are at The Federalist Society convention. We literally have a copy of The Federalist Papers two floors above us right now. I’m not hearing any originalist argument either for the application of the First Amendment, which begins “Congress shall make no law”, to private parties, or to even permitting the government to engage here and start restricting the content that these private parties are providing. Would anyone like to make -- I mean, maybe begin with the Prager lawsuit, right? I mean, is there any originalist argument? Or are we basically just saying we’re comfortable in this context with the living Constitution argument?

 

Prof. Eugene Volokh:  I’ve actually done a little bit of writing about the original meaning of the First Amendment. There’s some stuff you can squeeze out of that. Really quite little. I mean, it’s not an accident that the country was quite bitterly divided ten years after the First Amendment over a simpler question as to whether it’s permissible to ban seditious libel. Now, to be sure, there’s actually -- the Sedition Act was an advance, in many respects, over older rules; its backers were right about that.

 

But there was a lot of dispute in part because Framers agreed that they liked freedom of the press, that it wasn’t at all clear exactly what freedom of the press meant even as to the relatively familiar technologies of the time. Not saying that’s truest to everything. It may very well be that as to jury trial rights, people had actually talked about thought and experienced jury trials all the time day in and day out. So it may be that you can get a lot of originalist information about particular things. It’s not an accident that setting aside a few opinions by Justice Thomas -- and they really are even a small part of his own free speech work.

 

It’s no accident that the Supreme Court basically almost never relies on really originalist arguments of free speech. Maybe that’s a mistake, but that’s been the reality from the left and the right. This is one of those areas where there’s a lot of precedent, and I don’t think it’s going anywhere based on original meaning analysis except maybe in the opinions of Justice Thomas and that even very rarely.

 

Prof. Adam Candeub:  If I could just add a bit of historical esoterica, I think the Founding Fathers were very comfortable with media regulation and sort of the ensuring equal platforms, and that would be the postal service. One of the first acts of Congress, of the first Congress, was to put, I guess some constitutional lawyers would say, discriminatory rates that would favor newspapers. And it was very specific. If you were a newspaper, you got a special rate. Is that viewpoint discrimination? They still have it, sort of. And also, really until the 19th century, the federal government did not run most of the postal system. It was really that they ran in large groups and then contracted out to local providers to do the rest of the work. And, when they contracted out with the more anti-discrimination requirement. So simply because you’re a contractee of the government but a private person, you can decide whose letters to carry.

 

Now, that could be a contractual issue, not a constitutional issue, but I do think it speaks to the Founding Fathers’ belief that we need some sort of platform, communications platform, to bind the nation together. You don’t like that. Okay. [Laughter]

 

Hon. Britt C. Grant: Thank you, Adam. Next question.

 

Questioner 6:  In case you thought you didn’t have to worry about campus speech controversies, you should just take into account the fact that the very people shutting down speakers on campuses are graduating and going on to write the very terms of service that all these Silicon Valley companies are using. So it is worth worrying.

 

      Professor Goldman, you asked a few questions ago a sort of general question about what makes these companies so worthy of specific attention. And in Section 230, what it says—part of what it says—is that the internet and other interactive computer services offer a forum for true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. Now, if the explicit reason for granting Section 230 protection is that these companies are expected to uphold political diversity, then once they start defaulting on that, why should we be expected to, as the people, uphold our end of the bargain and continue granting them protections that no other publisher is given?

 

Hon. Britt C. Grant:  Thank you.

 

Prof. Eric Goldman:  I want to give you a compliment here. I’ve thought a lot about Section 230, and that’s actually a new argument to me. I’ve never heard anyone argue to the point that you just made. So, kudos to you for that.

 

[Applause]

 

Prof. Eugene Volokh:  Can I just interrupt and say if a judge were to say, “Oh, that a new argument,” that’s actually a pejorative. [Laughter] But when a law professor says it that’s a compliment.

 

[Laughter]

 

Prof. Eric Goldman:  I’m sorry. I really did mean it as a compliment.

 

Prof. Eugene Volokh:  Yeah, it is!

 

[Laughter]

 

Prof. Eric Goldman:  Okay, you guys all got that. So you’ll know when I’m giving you a pejorative, and it won’t be subtle.

 

      So, I want to take you back to what things were like in 1996. The idea wasn’t that there was a vertical integration of all political, diverse viewpoints in a single site. The idea behind Section 230 was to let the marketplace flourish with lots of different sites catering to different audiences. The language that you quote was not about trying to integrate it all in a single company but to make sure that the door was open for the full range of the human condition being expressed and different services catering to different needs. And that still really remains true today. And, if you want to say all the action is on Twitter, that’s your view. I understand that. I don’t agree with that at all because there’s lots of action taking place throughout the rest of the internet, and Section 230 is what’s keeping open the door for those other services to enter the market to cater to the audiences that they serve. So that’s how I would read the language. Thank you for raising it.

 

Questioner 7:  I’m interested in the way that the debate over net neutrality plays into what everybody’s been saying here because when I listen to Eric -- and I think I find very compelling a lot of the arguments that you made against imposing common carrier viewpoint neutrality regulations on platforms. They sound to me extremely similar to the whole panoply of arguments that are similarly made against imposing common carrier bit neutrality, net neutrality, regulations on backbone providers. So, I’m wondering -- it’s not like I don’t want to just pile on Eric but, I mean, everybody on the panel, I’m curious. Do you come out the same way on both those questions? If you’re against common carrier regulation for platforms, are you also against net neutrality regulation? If you distinguish them, I’m curious to know how you reconcile distinguishing the two.

 

Prof. Eric Goldman:  Yeah, pretty sure. I know my colleague, Professor Candeub, is going to want to speak up on that as well. He has a new paper coming out on that where he makes arguments to try to explain, and I think, ultimately, eliminate what could be perceived to be a dichotomy.

 

I will tell you I find net neutrality a very hard topic, one I haven’t taken a position on publicly. I’ve done 3,000 blog posts. I’ve never actually done a blog post on net neutrality because of the fact that I do find it such a difficult thing.

 

On the one hand, to the extent that companies are moving data, they’re contributing conversations in our society. They’re publishing content that should be protected as free speech and, therefore, net neutrality obligations would be an incursion on that. The problem is—and this is what Professor Volokh and I were having colloquy about before—that trying to take rules that are built for one medium and extrapolate to another might not work.

 

For those of you that are familiar with the notions of the internet as a set of layers where there’s a stack of different services that are all bundled on top of each other, anywhere from the transport of bits, the actual content that’s being expressed, that different layers have different marketplaces dynamics. And those marketplace dynamics might suggest it actually should be treated differently, accordingly. That we wouldn’t want to treat the person that is moving bits the same as the person as who’s actually trying to express a viewpoint. It is awkward to talk about net neutrality because we have to confront the marketplace dynamics of the market for internet access.

 

I am sure there are people in the room who think that marketplace is competitive. I do not agree with that assessment, and in a marketplace that is so constrained by government regulation that has, in most markets, a duopoly, that is a wildly different circumstance than what I see as the internet. Now, I think – I don’t mean to speak for you, Ann – but I think you’re saying there’s not even a duopoly, it’s just monopoly, monopoly, monopoly in three different categories. If you feel that way, then you wouldn’t lead to a conclusion. While we have the same lack of competition in the same marketplace, that’s not how I see it and, therefore, it might be that we would want to regulate net neutrality different than we would choose the “content neutrality analogy” just because of the marketplace differences.

 

Hon. Britt C. Grant:  Professor Candeub, what about you?

 

Prof. Adam Candeub:  Yeah. I do just want to point out, Eric—or at least that side of the table— that in Tornillo there’s only a monopoly of newspapers, but you don’t think there should be access. But, if in the last mile there’s only two access providers, then maybe we should have some sort of regulation. Network neutrality is related to all of this stuff in the sense that if it’s a First Amendment absolute right over the wires of the dominant communications networks, not to carry anyone else’s messages then that goes to net neutrality as well. But, by that same token, if we’re going to keep the First Amendment to that end extreme, we wouldn’t have a phone at work. We wouldn’t the basic building blocks of information required to some degree mandatory into connection which in turn requires some degree of compelled speech broadly construed. I think what’s good for the goose is good for the gander on both sides.

 

Hon. Britt C. Grant:  Next question.

 

Questioner 8:  My question is something that the panelists, I think, have touched on but not really dug into. Professor Goldman was saying that Google perhaps constitutes a small part of the internet, but I think most people in this room would agree it’s how you access the rest of the internet. If you want to find Ms. Coulter’s site, you google it to try to get there. And, if there’s ten results that are coming up first instead of what you’re searching for, that seems to me a problem, and I wonder to what degree we should view Google as, perhaps, different than Twitter or Facebook. Will these nominally provide terms and conditions you will be blocked for X, Y, Z when Google has an algorithm that is, essentially, gatekeeping the rest of the internet?

 

Prof. Eugene Volokh:  I love having my computer up here. I googled --

 

Ann Coulter:  We complained about it, and they stopped it.

 

Prof. Eugene Volokh:  So I appreciate it. I googled it and it’s Ann Coulter, Ann Coulter, Ann Coulter. And rightly so. Rightly so.

 

Ann Coulter:  I absolutely was not this way ten years ago. Rush and Drudge started making fun of Google for it. I think Rush was talking about his radio show. No longer true. But I will tell you when you make a search for something on Google -- I’ve looked for statements that I’d just read the week before. I needed a statement. I distinctly remember this because I was at a conference, and I had to run to my hotel room, and I go on Google. I can’t find it. I can’t find it. I can’t find it. I’ve learned a trick. If you want to get the real answer, if you want to know how old the Earth is, go to page two or three if it has any political content whatsoever.

 

Prof. Eugene Volokh:  I appreciate that. It would be interesting to see specific details. The interesting thing is that we’re talking now about two different things, each of which are quite important. One is what we might call the platforms, the things that really are the hosting companies. You could also imagine things like WordPress or sometimes domain name registrars might be similar. I will say my quick search suggests -- and maybe this is wrong, but according to a Pew Research Center report, 20 percent of adults last year said they often get news via social media, 16 percent print newspapers. Television topped the list with 49 percent from TV, 26 percent radio, 33 percent newspaper websites. So, when it comes to platforms, you can certainly envision a content neutrality regime. I’m not sure it’s right for some of the reasons Eric mentions, but I’m inclined to say it would be constitutional for some of the reasons that Adam and Ann have mentioned. But, at the same time, there’s actually not that much at stake because I don’t think we’re close to a monopoly.

 

For Google searches that I understand, in the U.S., for search, Google Search is over 90 percent of all the results. So there really is a tremendous amount at stake. I haven’t seen that much evidence of sort of political manipulation by Google, but this is also an area that I think we can all agree. You can’t have a content neutrality rule. You probably can’t even have a viewpoint neutrality rule in the strict sense.

 

So, if you do want to apply some sort of First Amendment to your statutory rules to Google Search, again, I think there’s First Amendment problems with it just like there would be our Britannica encyclopedia. But, even if there weren’t, it would actually be really difficult to design a statute that prohibits improper selection criteria on Google’s part, but allows those selection criteria that I think are really good. And simply saying, “Disclose your algorithm,” well, first of all, the algorithm, I think, is extraordinarily complicated, in some respects may have some properties, emerging properties that might not be fully known to the authors.  

 

But beyond that also is actually from a property rights perspective is a tremendously important trade secret on Google’s part. So you can imagine the disclosure regime. It’s hard to imagine what kind of outright regulatory regime you could have for Google Search without either itself becoming viewpoint based saying, “Oh, it’s okay for you to exclude certain viewpoints and not other viewpoints,” or becoming something that essentially zaps searchable over all the other things we expect.

 

Prof. Adam Candeub:  Professor Volokh, if I could I just respond. I take issue with that dichotomy. It’s not as if we can say, “Oh, the only way we can regulate Google is saying you must be content neutral.” I agree that doesn’t really make sense given the fact what Google does. But you can say you can’t be discriminatory. I mean, the Wall Street Journal9 just today was about how there are blacklists on Google and things like that. Now, if that’s the case, then that has to be disclosed, and I think it’s very reasonable and perfectly consistent with 200 years of our law to say you can’t do that.

 

Prof. Eugene Volokh:  Whoa. But wait a -- okay. So, set aside disclosures. An interesting question raises again. Trade secret questions. But I agree that would be a lesser sort of regulation, but imagine you had even a viewpoint neutrality regulation. I do a search on Google, and let’s say I ask, “Should I vaccinate my child?” Now, I do think that anti-vax positions ought to be protected by the First Amendment, but at the same time, if I’m a Google user, presumably I would like to have reliable information.

 

A true viewpoint neutrality regime means that Google can’t select for what it has good reason to think is the more reliable information, which is, in the end, the very information that its customers want. You would have to have an algorithm that as somebody sets up some sort of search engine optimization that puts all the anti-vax stuff up at the very top, or not even should I have by accident, but what’s the cure for X, and somebody has some arsenic cure for it or something like that. It would have to put it up there. Again, is that what we really want from search engines?

 

Ann Coulter:  Yes. That’s exactly the underlying point of the First Amendment, that the truth will emerge. There are not anti-vaxxers—sorry if you’re in the audience—and, then, there are a lot more people saying these people are nuts. But, I mean, it’s the whole point of the First Amendment.

 

You allow speech to counter speech. And let me just say quickly, I do not believe that poll. Number one, the average age of the Fox News and MSNBC and CNN viewers is 64. Those people are dying off. Anyone who claims to get most of their news from TV is in a nursing home. [Laughter] People who claim to be getting their news from newspapers -- I think they’re talking about reading the newspapers online. I mean, I just found out Miami Herald was about to go under. Kansas City Star is about to go under. Actual hold-in-your-hands newspapers, I don’t know, maybe they’re popular at the nursing homes. So, when people say they’re getting their news from newspapers, I think they’re saying they’re reading a newspaper online. And how did they get it? Through Google.

 

Prof. Adam Candeub:  And Google? That’s hard evidence. No. Google has been in Brussels and Lutzenberg for years and years and years. And we have hard data. Yeah. They dominate over two-thirds, 80 percent, 90 percent in Europe; all the search market is Google and much harder data than what Pew gets from its surveys.

 

Prof. Eugene Volokh:  Oh, Google Search? No, no, no. I totally agree that for Google Search it has this highly dominant position. So that we don’t disagree on.

 

Hon. Britt C. Grant:  Professor Goldman, it looks like you wanted to break in.

 

Prof. Eric Goldman:  I did want to answer the question that the audience member asked. [Laughter] I do want to come back to Professor Candeub’s point, though, that search engines should not discriminate. As I mentioned, all publication decisions are inherently discriminatory. They preference certain things, and they deprioritize others. So there is no such thing as a non-discriminatory search engine. That is a null set that simply could not . . .

 

Prof. Adam Candeub:  But, that’s like saying --

 

Prof. Eric Goldman:  But, that’s not what he said.

 

Prof. Adam Candeub:  There is no non-discriminatory job search. Yes, you’re right. You want to choose the right person. But that doesn’t mean that we can’t take out certain considerations like race, like sex, from that search. Yes, all job searches you discriminate. I like this one. I don’t like that one. But that doesn’t mean that certain motives or certain ideas can’t guide that discrimination. In fact, that’s what AI is doing right because they don’t like what the algorithms are giving them, and so they’re actually learning how to de-discriminate machine learning.

 

Hon. Britt C. Grant:  Do you think that could apply more broadly than banning a ban on particular content? Do you see a more nuanced way, in your view, that that could be carried out by the companies?

 

Prof. Adam Candeub:  Well, I would hope so, yes. I mean, certainly certain kinds of speech like political discrimination I think that we can put a very big magnifying glass on it and actually demand great disclosure. As far as knitting, like you seem to be so interested in, Professor --

 

Prof. Eric Goldman:  -- Don’t mess with the knitters here. Do not mess with those knitters. [Laughter]

 

Prof. Adam Candeub:  -- or anti-vax. I mean, I’m less concerned. But, again, getting back to I think the comments Ann so forcefully and correctly made is that if you’re talking about the basic engine of the marketplace of ideas, extra scrutiny is totally okay.

 

Prof. Eric Goldman:  What I propose is that -- because you can tell the term discrimination here in this context is constantly changing its meaning, and we need to be rigorous about exactly which discrimination, why that’s a problem, how that’s different from the ordinary discrimination that’s inherent in the publication process. And if, in fact, we even think there’s some reason that we could regulate that in light of the freedom of the press that we --

 

Ann Coulter:  -- Viewpoint, viewpoint, viewpoint. Same as the First Amendment.

 

Prof. Eric Goldman:  There’s plenty of competition --

 

Ann Coulter:  -- That’s the only thing you don’t want. I don’t know what the algorithm is that makes Google so good, but my guess is they look at how many people read a certain site. How long people spend on a certain site. Whether it’s linked to other responsible sites, that sort of thing, or other well-read sites. That isn’t, “We disagree with this person’s point of view.”

 

That’s the only discrimination I’m talking about. Adam can get into other examples of where we do prohibit even speech that’s discriminatory. All I care about is viewpoint discrimination because that’s the whole idea of the First Amendment, that the correct ideas will come out. But not with Google and Facebook and Twitter saying, “Oh, no, you can’t have the opinion that a man can’t become a woman. And you cannot misgender someone.” And that’s viewpoint discrimination.

 

Prof. Eric Goldman:  So, again, I think viewpoint discrimination doesn’t actually answer the question. For example, if we would ban viewpoint discrimination, we would allow all of the different types of terrorist organizations to have equal treatment as the people they oppose.

 

Ann Coulter:  Correct. Unless they’re committing a crime by describing how to build a bomb. And how do I know that? Because the First Amendment already says that. We don’t need to invent the wheel.

 

Prof. Eric Goldman:  I think the government has taken a different view on that very same question, that they, in fact, have required the removal of terrorist content that is, in fact, protected by the First Amendment because they have made a choice about the viewpoint that terrorism is a threat to our society, and that we, as a society, are prepared to fight that threat to us. So I think that even the notion that we can be more precise or accurate by simply saying we’re only going to ban viewpoint discrimination. I actually don’t think we really mean that. You might. But we --

 

Ann Coulter:  -- But viewpoint within the world of what is First Amendment protected speech. That’s what I’m talking about. So no, not obscenity, not describing how to molest a child or build a bomb. Those are crimes. But we already have that law. That’s why I’m saying Libertarians don’t need to get freaked out about the FCC getting involved. [Laughter] We’re just going to apply First Amendment law because this is the equivalent of a public square.

 

Prof. Eric Goldman:  I’m sorry, Libertarians, if you’re not freaked out, you should be because that’s saying we’re going to tell you how you can use your private property. That’s not --

 

Prof. Adam Candeub:  -- But, Eric, Eric --

 

Prof. Eugene Volokh:  -- But the law often does that. Maybe in a perfect libertarian world it wouldn’t, but we are in a world where the law does restrict private property in all sorts of ways.

 

Prof. Eric Goldman:  I understand. I’m just saying that Libertarians oppose that.

 

Prof. Eugene Volokh:  Right. Well, all right. Well, the really, really, pure Libertarians --

 

Hon. Britt C. Grant:  -- All right. Freedom of speech for this commenter right here.

 

Prof. Eugene Volokh:  Yes, yes, yes. Exactly. [Laughter]

 

Hon. Britt C. Grant:  If we go fast, we may be able to fit in two questions, so I’ll ask you for a brief question, and we’ll move on from there.

 

Questioner 9:  Thank you very much. This is actually one of my favorite topics here, viewpoint discrimination, and this goes right into the segue of media conglomerate. And I want to direct this question to Ms. Ann Coulter. I believe she’s an expert on this topic.

 

Hon. Britt C. Grant:  Remember, we’re keeping it brief.

 

Questioner 9:  We have a president that is very expressive in the media realm, but yet we have a media that acts with double standards as saying one thing and do another. And we have a conservative reality and we have a libertarian reality and we have liberal reality, and they don’t treat each other as equals. You made up the point about Michelle Malkin, and she has expressed a certain of her public opinions in the media outlet, and yet she was being just punished. I mean, to the max, on the issue of Sharia law. I want to see if you could give us some perspective and share some insights on that in terms of -- in regards to the debate that you guys currently were having. Thank you very much.

 

Ann Coulter:  Well, the one thing I can say is just to elaborate on what I said. I mean, it’s been shocking having these Google employees -- this hasn’t been shocking to the people who are the victims of it. I mean, a lot of conservative websites probably—a lot of your favorite conservative websites—used to be making a lot of money online. They’d post a story. It gets a lot of hits. They have ads there. Google, Twitter, Facebook take it down. Oh, and by the way, they’ll usually come back three weeks later when the story’s over and say, “Oh, yeah, we’re sorry. We made a mistake.”

 

I anticipate that this will happen next year. During an election year, we’re all going to be thrown off Facebook and Twitter and once the election is over, they’ll say, “Oh, I’m sorry. That was a glitch. Don’t know how that happened.” And she was one of the people, along with Daily Caller, Breitbart, where no, these people are blacklisted. We’re going to lower their Twitter followers or Facebook hits. Yeah, they can go in and do that. And, coincidentally, it’s always conservatives. In the case of Milo, Gavin, and others, they’re some of the most absolutely popular—and especially popular with young people—right-wingers. Coincidentally, they are gone. Now, if you’re dull and you have no followers. If you couldn’t convince your mother -- no, you’re fine on Twitter.

 

Hon. Britt C. Grant:  Last but not least.

 

Questioner 10:  Hi. First of all, I’d like to say you brought the really important question of down with knitting videos to the forefront, so I appreciate that. And I’m 51, and I don’t read newspapers. [Laughter] But you brought up -- there’s a lot of discussion within this whole zone of the old fairness doctrine and the parade of horribles that came from that in that it really did end up with people being suppressed because entities didn’t want to comply with that.

 

But I’m wondering if this can be thought about differently because in those old broadcast mediums they were constrained by time and space. In other words, a broadcast entity only had 24 hours a day. So one of the reasons why they wouldn’t publish -- didn’t want that fairness doctrine is because it ate into their time that they had available. The same thing with an actual, physical newspaper or a publisher in that respect. And the internet’s just different. There are no time and space constraints. So, to think that would play something similar to a fairness doctrine would play much differently.

 

Prof. Adam Candeub:  If I can just say one point. I think a lot of this discussion loses the nature of the internet or social network platforms which is they’re a bunch of private networks. If you don’t want to talk to Gavin, you don’t follow Gavin. If you don’t to talk to Michelle Malkin, you don’t follow her. People can make their own choices, and that’s what I want them to do. Sometimes that would require having people make good choices with some law and regulations to protect them and not Zuckerberg or Dorsey.

 

Hon. Britt C. Grant:  Well, thank you all. This is obviously a very vigorous discussion.  

2:45 p.m. - 4:30 p.m.
Economic Law & Policy as a Tool of National Security

2019 National Lawyers Convention

Topics: International Law & Trade • International & National Security Law • Law & Economics • Security & Privacy
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 15, 2019, the Federalist Society's International & National Security Law Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "Economic Law & Policy as a tool of National Security".

Since the wars in Iraq and Afghanistan, the U.S. has shifted from large-scale military interventions to the use of economic levers such as tariffs, sanctions, export/import controls, and renegotiating trade agreements to address national security challenges including great power rivals, rogue nations engaging in nuclear proliferation, terrorism, and immigration. Our panel of experts will discuss the efficacy and sustainability of this approach and whether an economic-oriented national security policy is likely to advance U.S. interests abroad.

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Hon. Kristen Silverberg, Former U.S. Ambassador to the European Union
  • Prof. John Yoo, Emanuel S. Heller Professor of Law, UC Berkeley School of Law; Visiting Fellow, Hoover Institution; Visiting Scholar, American Enterprise Institute
  • Hon. Juan C. Zarate, Chairman and Co-Founder, Financial Integrity Network
  • Moderator: Hon. Gregory G. Katsas, United States Court of Appeals, D.C. Circuit
  • Introduction: Mr. Matthew R. A. Heiman, Senior Fellow and Associate Director for Global Security, National Security Institute

Speakers

Event Transcript

Matthew Heiman:  Good afternoon. If we could take seats, we’re just about ready to begin. Thank you. Thanks to everyone for turning out. My name is Matthew Heiman. On behalf of the International and National Security Law Practice Group at The Federalist Society and the National Security Institute at the Scalia Law School at George Mason University, we are delighted to be hosting today’s panel, and we’re especially appreciative of the panelists for getting together on what we think will be a very interesting topic.

 

Just a word about the practice group, we do programming like this throughout the year, whether it’s teleforum calls that become podcasts or live events like these. If you’re interested in the work of the practice group, you can find me here at the convention or check out the website and send an email to Erica Munkwitz, and we are happy to get people involved.

 

Likewise, the National Security Institute is very much focused on law and policy matters as they relate to national security, and this is part and parcel of the kind of work that NSI does, and I’m delighted to say that two of our three panelists are advisory board members at the National Security Institute. And our moderator has taught some courses with us at the National Security Institute, so we’re well represented.

 

And with that, I’d like to introduce today’s moderator. Judge Gregory Katsas was appointed to the D.C. Circuit in December 2017. Prior to joining the bench, Judge Katsas served as a law clerk to Judge Edward Becker on the Third Circuit, to then Judge Clarence Thomas on the D.C. Circuit, and subsequently to Justice Thomas on the Supreme Court. In addition to that work, Judge Katsas had a couple of stints with the Jones Day Law firm where his focus practiced on appellate and complex litigation.

 

From 2001 to 2009, he served in a number of positions at the Department of Justice, including Assistant Attorney General for the civil division and Acting Associate Attorney General. In 2017, he served as Deputy Assistant to the President and Deputy Counsel to the President. And with that, I’ll turn it over to our moderator, Judge Katsas.  

 

Hon. Gregory G. Katsas:  Thank you. So I spent many years at DOJ in the Civil Division defending national security initiatives. We spent most of our time dealing with a set of cases involving detainees and whether they could be held at Guantanamo Bay, whether they could be tried by military commission, whether they could be subjected to enhanced interrogation techniques. Another set of cases involving signals, intelligence, use of a presidentially authorized terrorist surveillance program, and then a later statutory authorization. And those cases occupied a huge part of my time.

 

But there was a third prong of counterterrorism operations at the time, much less visible perhaps, and certainly generating much less litigation, so I am not a subject matter expert in this. But—economic weapons—fortunately, we have three folks here today who served with me and who are subject matter experts in that area and are going to enlighten us all in that area. So let me just introduce our distinguished panel in the order in which they will be speaking.

 

      John Yoo is the Emanuel Heller Professor of Law at the University of California at Berkeley, a Visiting Scholar at the American Enterprise Institute, and Visiting Fellow at the Hoover Institution. His latest book, co-authored with Jeremy Rabkin, is called Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War. He has written many other books, nearly 100 scholarly articles on subjects, including war and peace, national security, constitutional law, international law, and the Supreme Court.

 

He served in all three branches of government, including as a Deputy Assistant Attorney General in the Office of Legal Counsel, as General Counsel to the Senate Judiciary Committee under Chairman Orrin Hatch, and as law clerk to Judge Laurence Silberman, one of my very distinguished colleagues on the D.C. Circuit, and to Justice Thomas. He’s a graduate of Harvard College and Yale Law School.

 

      Ambassador Kristen Silverburg is an Executive Vice President at the Business Roundtable, where she leads its Policy team. She’s also served as a Managing Director at the Institute of International Finance. During the Bush administration, she served as Ambassador to the European Union, Assistant Secretary of State for International Organization Affairs, and as Deputy Domestic Policy Adviser in the Whitehouse.

 

In 2003, she received the Secretary of Defense Medal for Outstanding Public Service, rendered in Bagdad, Iraq. She formerly practiced law at Williams and Connolly, and served as a law clerk to Judge David Sentelle, another of my very distinguished colleagues on the D.C. Circuit, and also to Justice Thomas on the Supreme Court. She’s a graduate of Harvard College and the University of Texas Law School.  

 

And finally, Juan Zarate is Chairman and Co-Founder of the Financial Integrity Network, chairman of the Center on Economics and Financial Power, and a senior national security analyst for NBC News/MSNBC. He also serves as a Senior Adviser at the Center for Strategic and International Studies and as a Senior Fellow at West Point’s Combating Terrorism Center. His books include Treasury’s War, published in 2013, and Forging Democracy, published in 1994.

 

From 2005 to 2009, he served as a Deputy Assistant to the President and as Deputy National Security Adviser responsible for counterterrorism efforts. He also served as the first Assistant Secretary of the Treasury for Terrorist Financing and Financial Crimes. He’s prosecuted terrorism cases for the federal government, and, for eight years, he was a visiting lecturer in law at Harvard Law School.

 

John is going to lead off talking about economic sanctions. Kristen will follow up speaking about some trade authorities, and Juan will conclude with some AML type issues and maybe frame some broader questions for further discussions. So, John.

 

Prof. John Yoo:  Well, thank you.

 

[Applause]

 

Hon. Gregory G. Katsas:  No, you don’t need to clap for the moderator. 

 

Prof. John Yoo:  Well, thank you very much, Judge Katsas. This is great to be able to call you Judge not just Greg, as I used to for most of my life. I’m glad you all are here, especially, given the competing panels. There’s one on guns going on right now. One on free speech, but everyone in this room knows what really makes a world go around: money. Right? So welcome to the money panel. I’m also glad to see a lot of my friends from the New York City chapter here: Judge Mukasey, here, prominently a good friend. So we all know which chapter, in all the chapters in America, cares the most about the money, which is the New York City chapter.

 

      I also just want to say it’s great to be on this panel. Greg just went through all the tough issues that gave him so much work in the Justice Department, like Gitmo and the Terrorist Surveillance Program. But I thought all that up because I wanted to get you back for something. And why I wanted to get you back is, I met Greg for the first time when I interviewed for a clerkship with Justice Thomas, and so we had this interview. And then he said, “Come with me. I want to show you an opinion announcement.” So I said, “Oh, okay.”

 

I’m just finished my third year in law school, so I go with Greg. He takes me up to watch an opinion announcement. I have no idea what opinion is going to be announced, and it turns out to be Casey v. Planned Parenthood at Southeastern Pennsylvania. “Greg, I think --” I’m just out of law school. I’m trying to think, “Is this consistent with the Roe v. Wade framework?” I think Greg’s watching my face carefully to see every reaction that comes out during the statements. And then I didn’t get the clerkship. [Laughter] So Gitmo, TSP is my revenge on you for that very terrible judgement you made. It’s also --

 

Hon. Gregory G. Katsas:  Eventually, you got it.

 

Prof. John Yoo:  Eventually, I got it after you left office.

 

[Laughter]

 

Prof. John Yoo:  And then to my right is Kristen Silverburg, who then, I might say, I interviewed for a clerkship, and I didn’t make her go watch any oral arguments, or weird opinion announcements, or see her reactions to Justice Kennedy in real time. We gave her the job. It was an obvious choice, and I’m glad to see that she has pursued it. You have a much more interesting life than most other Thomas clerks have had.

 

      Juan, we worked together when we were both very young in the National Security Council in the Justice Department. And, well, two things. First, Juan is not a former Thomas clerk, so he’s the liberal on the panel. [Laughter] And you’ll notice, all the Thomas clerks kept their hair. [Laughter] So something about not clerking for Thomas and hair loss. Maybe the Justice should do commercials for hair baldness remedies.

 

Hon. Juan C. Zarate:  I would’ve applied. [Laughter]

 

Prof. John Yoo:  But it’s great to see Juan. We haven’t seen each other for 15 years, probably. It’s great to be on a panel with you.

 

Hon. Juan C. Zarate:  Thank you.

 

Prof. John Yoo:  So let me just very quickly, now that I’ve consumed my time -- [Laughter] Thank, God. So I wasn’t really sure what to talk about, but then over at lunch, I sat next to the former undersecretary of the treasury in charge of sanctions. So I was able to ask her all these questions about what really had happened in the last two years, which I had suspected but had not been sure about.

 

So one thing she told me, which I had thought just from general impression, is that the Trump administration has used more economic sanctions and more economic leverage as a tool of foreign policy than any administration in the past. I think one reason for this, of course, is because of President Trump’s desire to realign American commitments abroad with our resources. And, if we’re going to be drawing down on our deployments abroad, then it seems obvious economic sanctions are going to increase as a preferred tool of foreign policy.

 

But the other thing she mentioned -- also you get glimmers of this in cases and opinions. It’s also the way sanctions are being used. So we are continuing with sanctions, but just North Korea, Iran, Russia, Venezuela, Syria, Turkey—on again, off again—and so on. But we’re also -- the administration is doing something different in the way it’s using the sanctions. You might have noticed, in particular, the administration’s using what are called secondary sanctions, I think, much more broadly than any previous administration.

 

This is where you don’t just sanction the country, but you also sanction any business or person who’s connected to the U.S. financial system that has any business with the sanctioned countries. That’s the second. That’s a tool that first came to use in the Reagan administration, in the first term, when the United States tried to stop European companies from cooperating with the construction of a pipeline with the Soviet Union. But I think this administration has really put that kind of sanctions on steroids, and so the -- not just the countries but the numbers of people and organizations that the Treasury Department has pursued, I think, has gone up dramatically.

 

And then the other area where you’ve seen economic leverage used, as a tool of foreign policy, has been in trade, of course. Of course, I think you’ve all -- I think one major shift that the Trump administration has caused in our foreign policy that will survive him -- I think, a remarkable change to its pre-bipartisan agreement in the foreign policy establishment has been the nature of China and its rise and what we have to do in response. And the Trump administration has used all the levers, I think, of economic power, aside from direct IEEPA sanctions themselves, but in the trade area to try to counter some of the abuses by China in international relations.

 

However, we also do it to some of our allies, and this is where, I think, Trump has been most controversial. He’s also used trade sanctions on Canada and Mexico, and he’s used trade sanctions or threaten them on our western European allies, and on Japan, and on South Korea, and on Turkey. He’s been using the threat of breaking trade agreements, or tariffs, trade barriers in order to leverage into some kind of foreign policy achievement.

 

So very briefly, my only take on this—before I turn it over to the real experts—is I think there are two interesting legal consequences of this. One is, when the United States uses economic sanctions versus the other normal tools of power, like diplomacy or the military, in the separation of powers world, what does that lead to? It leads to an increase in Congress’s role because, right, Congress under Article I controls international commerce as well as domestic commerce. That gives Congress more ability to pursue a foreign policy that’s at odds with that of the White House, right? Congress can impose sanctions over the veto of a President, right? It can’t order the military to launch a strike if the President disagrees with it.

 

Theoretically, I don’t know if this is actually how it turns up, but you would think Congress can’t order our diplomats to act or do certain things if it’s in contradiction with the President’s control of foreign affairs. So this is where we get to impeachment, right? Well, you’ve all been waiting for it. Why are we all having panels on free speech in the second amendment? We all really want to talk about impeachment, right? Let’s talk about impeachment.

 

So, if you think about impeachment, what’s going on with Ukraine and the hearings today with the ambassador Yovanovitch, and George Kent, and William Taylor, these are all about the conflict between the President’s foreign policy towards Ukraine and Congress’s preferred policy towards Ukraine. Congress wanted to be more generous to Ukraine – allocated $400 million to go to Ukraine. The President clearly has a dimmer view of Ukraine than is held by many of the leaders in Congress. And so what do we have? We have a constitutional confrontation and an impeachment proceeding, even, going on because of Congress’s greater constitutional authority when we use economic sanctions or economic benefits as a foreign policy tool.

 

During Q&A, let’s, though, talk about whether this is an impeachable offense or a high crime and misdemeanor, whether the House owes due process, whether the Senate trial -- what it has to look like, but -- just the bar pictures. If it weren’t like this, President Trump -- well, suppose President Trump had said, “Do me this favor. Look into that Hunter guy, and look into this CrowdStrike thing,” and there was no $400 million at stake, would there be an impeachable question at all? So there’s one way to think about what’s going on now is, you go down this road, over the long run, you are giving Congress more and more power over foreign policy.

 

And then just the last point, and then I’ll close, is there’s also an interesting international law consequence. So President Trump, of course, doesn’t want to use force as much, does not want to have heavy military deployments abroad, prefers to use economic sanctions. International law favors this as well. However, we should ask ourselves, is this actually the better way to coerce other countries? Yes, military force kills people. Economic sanctions: well, there’s a theory of it. We make life miserable for a whole population of another country. We force them to undergo economic suffering in the hopes that they will impose political pressure on their leaders or even overthrow the government. That’s the theory behind economic sanctions.

 

Think about it, what is the trade off between using military force versus economic sanctions in terms of the harm it puts another country? And, if we are going to go down this road, where we prefer imposing greater harms on a country because they’re more diffuse and more spread out, why don’t we go down that road with cyber and all the other new kinds of technologies we have available?

 

So, if we’re going to impose tough economic sanctions on Iran, in the hopes that cutting them off from the world financial system will cause the people to undergo food shortages, undergo economic collapse, and demand a change of their leadership, why don’t we use cyber weapons to do the same thing? They’re much more targeted. Why can’t we use cyber weapons to target critical parts of rival country’s infrastructure, like the banking system, or stock markets, or distribution in transportation networks?

 

Actually, those would be, in so many ways, far less harmful than broad-based economic sanctions, more targeted and might achieve our goals. Right now, actually, since the early Obama years, this is something that our military and intelligence services have really resisted – the idea of using cyber in this way. But I would say, “What is the difference in terms of cost benefit or morally from using that when we’re always only too happy to use these broad-based economic sanctions?” Thank you very much for giving me the chance to join you. I look forward to the questions and answers.

 

Hon. Kristen Silverburg:  Well, thank you. It’s really great to be here with these friends and former colleagues. Although, I have to say that John has much fonder memories of my screening interview for Justice Thomas than I do. He did not show me Casey, but he did ask me the questions about all the con law cases that show up as a tiny footnote in your textbook.

 

Prof. John Yoo:  Those are all the ones I clerked at the Court for. That’s why I was asking them.

 

Hon. Kristen Silverburg:  And then he grilled me when I tried to scramble through it, so I always say that that’s when I first learned about his views on enhanced interrogation.

 

[Laughter]

 

So I thought I’d take a minute to talk about some of the trade issues, which John introduced, and which are really putting us, as a country, into some uncharted waters.

 

As you know, for modern American history, the U.S. has had one set of national security adversaries and then one set of economic competitors but without a lot of overlap. So, at the height of the Soviet Union, they had a GDP that was about half the GDP of the U.S. They weren’t really competitors in any sense. Moreover, our economies were so separated from each other. The Soviet counted for about one person of U.S. trade, slightly more than that for some of our western European allies. And their principle trading partners were countries like North Korea and Cuba. So, at the time, it was fine for us to say, “We’ll go our way. You go your way” with no real consequences.

 

And, of course, now we’re entering this phase, as John was mentioning, with an entirely different landscape. Our principle national security adversary and our principle economic competitor are the same country, and we have vast economic ties. So our economies are closely linked, and there are real dangers to trying to unlink them, partly because we would be saying that U.S. companies are going to abandon this massive Chinese market and potentially some other countries in the region and leave them to Chinese firms to dominate. Anyway, I think this is going to raise a whole host of issues about our trade authorities and trade policies, and we can talk about a lot of those in the Q&A.

 

The one I wanted to focus on was the one that John mentioned around separation of powers and the question of this balance between executive and congressional authorities in the trade area. So I think that you all know the history of this very well, but since early in the 20th century, Congress has delegated extraordinary powers to the President to regulate trade. That could be in the context of an emergency; it could be in the context of unfair training practices.

 

And I think that the China example will tempt a lot of presidents, not just President Trump but all of his successors, to make full use of those authorities. But I think there’s a real question about whether that delegation is just part of our modern constitutional order and the way that things are going to move forward or whether we’ve given the executive too much authority in a way that could potentially undermine consistency in the role of law going forward.

 

So up until about the 1930s, Congress had exercised its constitutional authorities over trade quite directly. It would pass detailed tariff schedules, for example, and you would see horse trading in Congress, where you’d agree -- when you’d get a protectionist measure in support of this district and a protectionist measure over here. And, of course, all of that culminated in Smoot-Hawley, and the backlash to Smoot-Hawley was for congress to start to give authority to the president to start negotiating decreases in tariffs, and that set off this long period of trade liberalization, which mostly proceeded that way for the next three quarters of a century.

 

Along the way, and sometimes as way of getting support for trade liberalization, Congress also delegated to the President authorities to bring the hammer down when necessary. And there was all work -- there were lots of them, and they all work in slightly different ways, but basically, they require threshold decision from the President that there’s a national emergency or there’s a threat to national security, and then they unleash a host of authorities.

 

So Section 232, of the Trade Expansion Act of 1962, allows the President to impose tariffs in response to a national security threat. Section 301 of the Trade Act of 1974 allows him to take action in response to different unfair trade practices. And then IEEPA—actually, which Juan may end up talking about it—which we normally think of a sanctions authority, requires the President to declare a national emergency. But then, if he does that, it just sets lose this whole bundle of authorities to deal with cross-border activity. And the upshot of all of these delegations combined is that the President now has authority to set tariff rates, quota levels, and restrict cross-border trade all without any congressional involvement.

 

This was all a footnote on trade policy until 2016 with President Trump getting elected with this—as John was saying—this strong bipartisan consensus that there was imbalance in our trading relationship with China. It decided to dust off some of these provisions and has used them, of course, not only for China but also around trade issues with Europe, steel and aluminum imports, and so on. We now have tariffs on about 15 percent of total goods imports, two-thirds of the goods from China, which equals about $365 billion, all without congressional approval.

 

Now, just to be clear, I think the President was acting in response to some genuine and legitimate grievances and threats from China: intellectual property theft, forced technology transfer, state-owned enterprises, a lot of market distorting activities. But I think that the balance on the unilateral tariff increases, as a tool of foreign policy, is upsetting the balance between congressional and executive powers, and it’s not balancing the need for deliberate action against deliberation, which is what our system is meant to protect. And I also think it’s raising some precedential issues.

 

So when you think about, even if you’re happy with the way that President Trump has exercised them because you agree with his goals on China, would you be equally happy to see these trade authorities in the hands of one of his successors? So we have to think about that. There are lots of proposals for the ways that Congress can reassert some of its authorities: cooling off periods before tariff increases, asking for either a congressional approval, and so on. And maybe we can talk some more about that in the Q&A.

 

[Applause]

 

Hon. Juan C. Zarate:  Wonderful. Wonderful. Good afternoon, everybody. Judge, thank you for moderating this panel. I’m honored to be up here. I’m obviously the oddball. I’m the one who doesn’t have hair. I didn’t clerk for the Justice. I’ve never been called a liberal before, John, so I’d prefer to be called Bush’s mercenary, which is what the Cuban government called me. [Laughter] In any --

 

Prof. John Yoo:  That’s still be pretty liberal, actually. [Laughter]

 

Hon. Juan C. Zarate:  These days, maybe. I don't know. But, in any event, it’s a real honor to be here, and I appreciate The Federalist Society putting this panel together because I do think the issues that John and Kristen have just introduced really portend a different period, an era, of the use of economic and financial levers in totality as part of our policy and economic and legal structure. So I think I really applaud this panel just thematically.

 

What I thought I would do is give a little bit of context, maybe throughput, to what John and Kristen have said, and maybe propose a couple of questions, Judge, for us to consider moving forward. One thing to think about is that the last 20 years, especially in the post-9/11 period, you’ve had a movement toward the use of financial power, largely sanctions, but also other financial and economic levers, as a core part of national security. Everything John was talking about is absolutely right.

 

So you think about all of the key national security issues: Turkey, Russia, North Korea, terrorism, counter-proliferation, the question of, how you use financial and economic measures to unplug America’s enemies from the global financial system. How do you make it harder, costlier, and riskier for them to raise and move money around the world? How do you use that as part of strategic leverage, either directly or asymmetrically is all part of, now, the national security strategy and doctrine?

 

That really wasn’t the case pre-9/11. Sanctions, pre-9/11, were really thought of as an alternative to war—as John was saying, that’s how it grew up in the post-World War II period—or as an aid to diplomacy, giving teeth to diplomat’s words, or just as a symbolic gesture by Congress if we were angry at a country or at a leader. But, in this post-9/11 period, sanctions, financial measures—and I’ll get into some of these measures in just a second—really became a central part of how we thought about protecting the country and then attacking America’s enemies. And this is why you’ve had this evolution of the use of sanctions—some would argue overuse of sanctions—in the first instance.

 

And even the move by Congress to reflexively move quickly to maximalist approaches to the use of these tools whenever they need a tool to yield. But what’s fascinating, over the last five or so years, is that you’ve begun to see both a legal and a functional blend of these tools. That is to say, sanctions have more and more been focused, not just on countries, not just on regime leadership, but on conduct – underlying transnational conduct of concern. And so sanctions are targeted at networks and individuals that are engaged in, an essence, criminality.

 

So you look at the sanctions programs that are focusing now much more on corruption and human rights abuses. The Global Magnitsky Act, an executive order, is a manifestation of that. And more and more, you see the use of these sanctions for that kind of criminal behavior. You had it in the post-9/11 period, obviously, with counterterrorism, terrorist financing, and counterproliferation, but, more and more, we’re looking at underlying conduct as the source and reason for the use of these tools. What’s interesting about that, among other reasons, is that that begins to blend with the fundamentals of the use of other financial and economic laws and tools internationally.

 

In the anti-money laundering context, for example, the anti-money-laundering world is based on the premise that we want financial transactions to be transparent, traceable, and accountable, right? We want to know who’s doing business with whom. We want to understand if there’s illicit behavior. There are reporting requirements of financial institutions, etc. that are built as a part of that regime. But that fundamental question of, do you know source of wealth, source of funds? Do you know your customer? Do you know your counterparty? And in recent months, in Congress, the question of, do you know the ultimate beneficial owner of a company or corporation? That’s the essence of the anti-money-laundering system. Can you account for that?

 

Well, that has blended, over time, with the sanctions regime with the export control requirements, and now, more and more, with the Committee on Foreign Investment in the United States, and questions about who’s investing in the United States, and what’s happening with those investments?

 

And so the first point I want to make to you is, there’s a very interesting evolution here of both law and policy where sanctions, the anti-money-laundering regime, and some of these other tools of economic statecraft and defense have begun to blend in some very important and interesting ways. We do a lot of consulting for financial institutions, and what this does is it puts enormous stress on the financial sector because they now have to worry about their anti-money-laundering systems, their sanction systems, their fraud systems, their cyber systems, all of which implicate these issues.

 

A second point, and related, is that this now converges with what Kristen was mentioning, which is a broader sense of what our national economic security actually means. And so, when we think about how do you deal with a complicated case like Russia, which is a major economy in the world, or China, where we’re interlinked, the question is how do you use sanctions or tools? It’s very hard to use traditional sanctions the way we have with North Korea, or in al-Qaeda, or in Iran, where the blowback or the boomerang effect is not great, can be contained, the externalities are all manageable – much harder in the Russian context or in the Chinese context.

 

In addition with the consideration that trade provides a vehicle for other actors to influence the United States, or to get investments into key technologies, or access to IP, there’s a greater sense of vulnerability around those issues. So, if you look at the national security strategy that President Trump put out about a year and a half, two years ago, he talks about the defense of the innovation base of the United States as a core national security goal. That’s the first time that’s ever been articulated that way.

 

And so that’s an example of where you have this broader sense of national economic security, such that issues related to trade, trade controls and tariffs, issues of investment in the United States, controlled largely by CFIUS and now a new law, FIRRMA, that was passed by Congress. And, even on the positive side, the billback, which gives more revenue to the government to marry with the private sector, to go out and challenge the Chinese, for example, with the One Belt One Road Initiative, all of that—to include the sanctions and anti-money-laundering rules and regulations—forms part of a national economic security spectrum that is now a part of our strategy.

 

So my second point to you is the last 20 years were about the insertion of sanctions and anti-money laundering into our national security. We now have national economic security as central to our National Security Doctrine.

 

A final point -- and I think this is important to note, and it goes to John’s point about why not use other tools in an environment where other actors are using asymmetric tools, be they cyber, or be they information warfare, be they hybrid warfare—you see what the Russians are doing with Mercenaries—the idea is this: our enemies that are targets of these measures understand perhaps more clearly than we do that they are being attacked with what is, in essence, a power where we hold escalatory dominance.

 

Because these tools, these strategies, work because the dollar is predominant—there’s the Chief Reserve currency around the world, Chief Trade currency. We have an attractive capital market—the most attractive in the world. We have a system that works. We have leveraged that over the last 20 years, in particular, for national security purposes. So Iran understands that we’re attacking them with our financial system. They’ve said, “We know that we’re being attacked economically.” In fact, they’ve said that over and over again over the last 15 years. The Russians threatened -- and they said this when Congress was contemplating some of the maximalist sanctions after they invaded Ukraine and Crimea. The Russians said twice, “If you pass legislation that unplugs our banks from the global banking system, namely the SWIFT bank messaging system based in Brussels, we will consider that an act of war.” Because from a financial perspective that would be considered a nuclear measure against their ability to connect to the global financial system.

 

So the Russians see this very much as part of a contest and an asymmetric warfare, and I would argue the Chinese do as well. And the Chinese are not shy about this, but they themselves have begun to use similar tools and strategies using access to their markets as points of leverage. We’ve seen this in the context of Hong Kong, right? Forcing Cathay Pacific to change their policies or to fire individuals. We see this in the context of their IP rules and requirements. And we see this in the context of how they construe their relationships and how they’re thinking about One Belt One Road.

 

So my final point is that America’s enemies understand that this economic warfare, these tools and strategies, these things that are considered laws and regulations to us—folks in New York who often complain about them, in the minds of folks in Beijing, and Moscow, Ankara, or Pyongyang—it’s actually a form of warfare, and it’s a fundamental part of how the United States [absent 00:36:48] dropping bombs is able to impact their ability to do what they want to do.

 

And, a final point—maybe a slight disagreement with John—sanctions in their maximalist form and these tools in maximalist form are intended to change behavior, maybe even change regime. But they are also intended to do a whole range of other things, right? Deny access to materials, slow programs, maybe create leverage within regimes by pressuring here and not there. So the very strategies and tools that we now deploy, in which Sigal Mandelker did very well, I think, for the Trump administration, is much more nuanced where we’re now not only designating countries or leadership, we are now sanctioning types of transactions; we are restricting kinds of investment and debt; we’re doing other things that allows us a lot more nuance and capability to pressure and to achieve things beyond a maximalist goal of a change of regime or change of behavior.

 

So, Judge, let me just end with three areas of consideration. One is the role of technology. Technology is both amplifying our capabilities and potentially denuding us of the ability to use maximum pressure in the international financial system. There’s often discussion of crypto regimes, cryptocurrencies, providing anonymity for financial transactions. It’s no secret that the North Koreans, over the last year or so, have been trying to master the access to cryptocurrencies in order to gain access to money they couldn’t otherwise through the banking system to the tune of over $2 billion of cyber heists, and activities, and attacks.

 

A second question, Judge, is how do the principles of transparency and accountability, which are the hallmark of these systems and what we’ve used to push regimes in countries to do the right thing, how does that match and conflict with the move toward greater data localization, greater concerns around data privacy, and the reality that, in the face of totalitarian or authoritarian regimes, total transparency may be very dangerous?

 

And the third question, to John’s earlier point about international law norms, much of the effectiveness and sustainability of these tools comes from a recognition of common norms and principles. A Dutch bank, a U.S. bank, a British bank, they don’t want to do with business with criminals. They don’t want al-Qaeda accounts. They don’t want to be serving as financial facilitators for the North Korean regime, right? So there are underlying norms and principles that drive a lot of this.

 

But are those sustainable, and how do we sustain them in ways that continues to reinforce America’s predominance in this space? There’s much debate as to whether or not we are losing our centrality in the international financial system, whether or not there are challenges to the dollar, and whether or not there are concerted efforts. And I think there are, by the Chinese and the Russians, to create alternate or parallel systems that will create less dependency on U.S. systems, U.S. policy, and U.S. law.

 

Hon. Gregory G. Katsas:  Okay. We’re now going to give each panelist a chance to respond to what’s been said, and, John, you can follow up on specific comments or the general questions that Juan posed at the end.

 

Prof. John Yoo:  Sure. Three thoughts. One is there is an open debate overall about whether economic sanctions are actually effective. So I think the way Juan and Kristen talked about their use has been in a kind of attrition of strategy, where you’re just trying to deprive rivals, opponents, or movements we don’t like of access to resources. When it comes time to actually changing foreign policies, there are a lot of scholars who argue they actually don’t in the end change nations from a course of conduct that they hold dear. So I don’t have any illusions that economic sanctions are going to actually get Iran to give up nuclear weapons, or North Korea to give up nuclear weapons.

 

Unfortunately, I think one of the lessons of the administration, in which we all served, was that the United States will, probably, not attack a country with nuclear weapons. But, if you don’t have nuclear weapons, well, if you’re within reach of a tomahawk missile, we might shoot at you, right? But Libya gave up its nuclear weapons, and, once they did, we were happy to support regime change under the Obama administration.

 

So one thing is, how beneficial are they when -- and the other thing about economic sanctions is—and I think this, addressing Juan’s point—they cost us a lot, right? When we use these economic sanctions, as heavily as we are now, we are not just hurting our own economy, or the China sanctions are clearly hurting our own economy quite a bit, but they, also, do encourage this reaction of other countries, eventually, setting up a different kind of financial system.

 

So you might’ve read that the Europeans in Iran tried to set up their own mini-SWIFT bank transfer system so that they could figure out more ways to give Iran money while they pretended not to build a nuclear weapon while they built a nuclear weapon. Only the Europeans would want to give away money for that. The cost could be high. We’re kind of living -- I think when you -- we’re living in one of the beneficial hangovers of the post-World War II world where the United States did lead the world, we had -- at the end of World War II, the United States was about 50 percent of all world GDP, so we could set up a financial system that ran on the dollar, in which all the major corporations of the world were doing business here, or we were doing business abroad. Now, China is either tied or, by some measures, a larger economy than we are. The European Union is, collectively, a larger economy than we are.

 

We are acting in a way like we are -- we are acting in economics, sometimes, the way we act in the military sphere, where we clearly are still the dominant military power, the only global -- the only power that can project force, globally, still. But we act that way with economics. We still want to act unilaterally. But I think, as Juan and Kristen described, there’s a lot of web of national and international laws that make that very difficult to do, plus the fact that we aren’t the world’s largest economy anymore. And so the more we use this, the more we’re going to generate, I think, these reactions against us.

 

So that’s my pitch of why these new technologies might be a better solution because we could achieve the goals of these economic sanctions, right? So suppose China actually takes some kind of hostile action against us in the South China Sea, suppose we try to send a destroyer on these Freedom of Navigation Operations through part of the world waters in the South China Sea that China is now claiming sovereignty, and suppose they were to do something like hit the ship with another ship or even sink an American ship. President Trump doesn’t want to use force.

 

Economic sanctions are not going to force the Chinese to give up all these artificial islands. So why don’t we use cyber weapons to make our displeasure known? Why don’t we take the Shanghai Stock Exchange offline for a day? We are unwilling to consider these kinds of options. Why don’t we turn off the electricity in Beijing for a day?

 

Look, I’ve just lived through a whole week or two of no electricity in San Francisco. Now, I’ll do whatever the Chinese want me to do now to get the electricity back. [Laughter] But we are unwilling to consider that, even though we’re willing to consider economic sanctions, which in gross effect and much more a clumsy way are designed to achieve that same end.

 

And so that’s the thing, I think, that economic sanctions eventually—and we talk about technology—will lead us. If we’re going to have that same mind set, not using military force, we want to come up with more discreet, less destructive, more targeted ways of coercing other countries. Actually, cyber weapons and information warfare law, these hybrid ways of contesting, whether the countries are really where we should go, rather than these blunt economic tools, which sometimes may hurt us just as much as it hurts the other country.

 

Hon. Gregory G. Katsas:  Kristen.

 

Hon. Kristen Silverburg:  This panel is a reminder that John Yoo has a higher risk tolerance than I do. [Laughter] A luxury of an academic. So just to go back to this point—the discussion that Juan and John were having about the kinds of sanctions—I think of them in three different categories. There’s the attrition sanctions you were talking about where you’re just trying to cut off resources from some bad actor. Then, there’s the conduct or compliance efforts where you’re actually trying to persuade a foreign government, or maybe a foreign non-state entity, to take a particular set of decisions, so you’re just using it as leverage as part of a broader diplomatic strategy.

 

And then there’s the “You want to burn the place down” that you really -- that’s the old school “We want to tank the economy, potentially provoke regime change.” And I’ve seen elements of all three of these. Iran has used different variations of all of these at different points. We had a period in sanctions, which was principally designed to cut off their access to particular kinds of sensitive technologies. Then, we moved into a much tougher period of economic sanctions that were designed to get them to the negotiating table, and I think actually succeeded in getting them to the table. I thought the leverage was squandered by the Obama administration, which cut a bad deal, but actually the sanctions, I think, did a reasonable job in changing their calculus.

 

And now I think we’re in a period where the Trump administration’s prepared to put just really, I think, very tough pressure on Iran with a much broader, more ambitious set of objectives. I think there are some things you can do to make them more effective. Although I take John’s point that the efficacy of sanctions is debated, I think there are other cases where they’ve worked. One thing—and this is a point, actually, I’ve heard you [nodding to Hon. Zarate] make publicly—is that you have to go into sanctions with a strategy, that there are sometimes -- when you’re in the U.S. government, sometimes, whatever, the NSC can’t come up with anything, so they go to sanctions. And, in my old job, at the State Department, they would sometimes go to “Get a UN resolution.” [Laughter]

 

Hon. Juan C. Zarate:  And that was your job.

 

Hon. Kristen Silverburg:  That was my job. And so, anyway, I think you have to go in with a really clear set off of objectives about “Here’s how we view success. We have aligned our resources available to that strategy, to that objective, and a clear-eyed sense of chances of success.” I think John is right that they ought to be done in concert with other tools, and that can be lots of different things. It can be some of the more aggressive things he’s talking about or just diplomatic pressure. Lots of pieces --

 

Prof. John Yoo:  -- Or we could send Rudy Giuliani to the country. [Laughter]

 

Hon. Kristen Silverburg:  As I said . . . [Laughter] So I think they’re better, usually, done with others, and I don’t mean UN multilateral sanctions. I just mean it’s better if you’ve got some other people going along. If the response of another country to sanctions is “Well, fine, we’ll just go work with this other supplier over here,” then you haven’t done very much. So obviously the broader, the better. And I think they’re better when they’re done in a way that’s really sustainable over a long period of time; that a lot of countries set themselves up. There’s this period where—in fact, prior to the Trump administration—where Putin was anticipating being at odds with the international community, and basically built up foreign reserves for that purpose.

 

These are governments that are -- they’ve got a long-term plan that involves being at odds with us, and so we have to have more strategic patience than they do in that, which is not our strong suit, in part because our system changes governments and policies a lot. And so, to me, sustainability means broad bipartisan support here in the U.S., and it also means a plan that we can really keep our policies in place over the long term.

 

Hon. Juan C. Zarate:  Yeah. Judge, I think we’re in heated agreement here. What Kristen said, though, was really important because the question of longevity and sustainability of these measures is critical. It goes to John’s point about how much are we willing to risk and harm ourselves in terms of the economy, in terms of American interest where there are sanctions programs. But it also goes to this broader point—and, John, maybe this is where you and I disagree slightly—is, if we agree that there’s a landscape where there’s a multiplicity of tools to apply to influence or to attack enemy actors, sanctions and economic levers have to be a part of that mix, whether or not you think they’re fully effective or not. And so the question, then, is how do use those tools effectively against competitors and even enemies that are willing to play it out, that are willing to engage in proxy wars, that are willing to engage in asymmetric warfare.

 

Frankly, it’s the big debate in Europe around how to handle Russia sanctions, right? That’s the transatlantic tension with Europe. And we’ve met with European diplomats who say, “When does this end?” Well, you know what? It might not end. If the Russians don’t stop their behavior, and if you don’t have other tools to push back or even to deter, which is another mechanism and effect of effective sanctions, the threat of further economic pain or isolation has to be credible, has to be sustainable.

 

But there’s a real interesting question here, both in terms of policy but also law, given that we’re using these tools much more as tools of economic suasion and statecraft, as well as for conduct that doesn’t go away necessarily because you’ve signed some diplomatic agreement. This was the major fallacy, I think, of the JCPOA. And I testified to this, at the time, when the Senate was debating what to do with what the prior administration presented, which was this fallacy that you could resolve all of the underlying issues that had created the reason for sanctions and isolation against the Iranians with a nuclear deal. That was never going to happen given the concerns of the international system around Iranian risk.

 

So to John’s point about what the Europeans were trying to do to set up a humanitarian channel, etc., that was independent of the U.S. system, guess what? It failed. It never emerged. No credible bank wanted to be a part of it, first of all, because they were afraid of sanctions and they were also afraid of the underlying risk. Who are they doing business with in Iran? God only knows, right? And it’s probably the IRGC if it’s a sector of any significance.

 

And secondly, there is this underlying risk that is embedded in the private sector—which is an important point I want to make—which makes the sanctions and measures of the last 20 years different from the prior 20, and that is, it’s the fact that the private sector and the institutions of the financial order have embedded these principles and norms as part of their behavior – not perfectly. There are bad banks out there. There’s bad behavior. There’s lots of fines, billions of dollars of fines on institutions, of course, for problems.

 

But for the most part, these banks don’t enter into agreements to go do business in Iran, even if they’re countries are literally telling them to. Secretary Kerry, remember, in the wake of the JCPOA, did a roadshow in Europe trying to convince European institutions—after, by the way, years of our trying to convince European institutions—how risky it was to do business in Iran. He went around trying to, in essence, sell the Iranian system so that they would reenter. Guess what? The European institutions, despite all that, said, “No, thanks,” right?

 

So it’s emblematic of this question of effectiveness. Because the effectiveness is less about the maximalist approach, and to Kristen’s point, you have to have more tools, and to John’s point, and I agree, you’ve got to be more aggressive in other domains. But the effectiveness comes with the fact that you have more allies in the private sector that are actually doing some of this business for us, right? The antibodies are in the system if you know how to animate them, and structure them, and strategize. And that’s why I said, I think, the sanctions and measures of today are much less blunt, much more effective than in the past. And I think we’ve got to keep that in mind when we think about a toolkit that we’re using to deal with countries, but we’ve got to deal with all the externalities to the point made by John.

 

Hon. Gregory G. Katsas:  Let me pick up on a comment you made, John, which is, you said that use of sanctions tends to increase congressional involvement in foreign policy, and let me just probe a little on whether that’s right. Because one of the experiences we had over the course of the Bush administration, in non-economic areas, is increasing congressional involvement. So if you think of military commissions where we started with an executive order, and we ended with the Military Commissions Act, which is a highly reticulated statute that looks like the UCMJ. And, in the surveillance area, right, we started with the TSP executive action, and we end up with a statute, and judicial supervision, and all. So is there anything distinctive about economic sanctions or is this just an illustration that our modern legal and political culture tends to like action by rule rather than executive action, even in these foreign policy areas?

 

Prof. John Yoo:  Well, you could continue on with more of my greatest hits if there are anything else you want to mention.

 

Hon. Gregory G. Katsas:  Well, my litigation hits too.

 

Prof. John Yoo:  But I think actually it’s the other way around when it comes to economics, and that’s why I worry about the increase in congressional power because of the use of sanctions in setting foreign policy. Because in the economic sanctions area, these are not areas where the president went first, and said, “I’m going to impose sanctions, and then Congress passes statute to codify what I did.” Right? All these sanctions regimes, we’re talking about, are using delegated power from Congress.

 

I think the happy story, so far, is that Congress, when it often does want to impose its own discreet mandatory sanctions, as Juan was saying, maximalist sanctions, based on the headlines of the day, but often that gets headed off. But, in the constitutional realm, right, this was all done because of -- primarily through the IEEPA statute, the International Emergency Economic Powers Act of 1970. So I’m not sure if I got the E’s in the right order.

 

Hon. Juan C. Zarate:  Yeah. I always mix them up too.

 

Prof. John Yoo:  Yeah. IEEPA statute from 1977, and before that, the Trading with the Enemy Act of, I think, it’s 1917. But these were all areas where Congress realized they should not be trusted with the power to start imposing sanctions country by country, activity by activity. And so they delegated this huge amount of sanctions authority to the President. But, constitutionally, Congress went first and chose to do that. Now, the two things that have arisen, I think, that also show -- before I say that. I agree with, I think maybe your implicit suggestion is, I don’t think it would be a good idea if Congress was to take the upper hand or the lead initiative in running international economic sanctions, even though they constitutionally could.

 

Because I do think – this should come as no surprise, I do think Justice Sutherland and Alexander Hamilton are correct when they said that “In foreign affairs, the presidency, as a unified actor, can act swiftly, and stealthily, and decisively to protect the national security.” The president can impose and lift sanctions based on minute-by-minute circumstances, right? We have imposed sanctions on Turkey, then we’ve lifted them. Now, I think we threatened to impose them, just now, but I don’t think we actually have because then how did Erdoğan get into the country just a few days ago, right?

 

So I think we -- but can you imagine, Congress, how long it takes to pass an act trying to put on and lift, put on and lift sanctions just as to one country, and then how could it do it systematically? I think that would be even worse for the country. But some of the things we’ve been talking about have been provoking these kinds of reactions. So some of you might’ve seen in the last year, year and a half, there are members of Congress from both parties that have proposed amending IEEPA to subject -- the way IEEPA works is you declare an emergency -- the President declares an emergency, then he accesses all these sanction tools.

 

There are people who want to amend IEEPA to make clear that the President’s declaration of emergency should be subject to judicial review and that there should be some kind of statutory criteria for what’s an emergency or not. This is a really good idea by Congress to define an emergency before it happens. What could possibly go wrong with that? [Laughter] But this is the kind of reaction, I think, we’re getting. But that also is not possible but for the fact that Congress has that constitutional upper hand.

 

Hon. Gregory G. Katsas:  You want to say a few words defending the proposition that Congress should be more active?

 

Hon. Kristen Silverburg:  Well, first, I totally agree with John that we wouldn’t want Congress entirely drawing back all of the President’s authority around sanctions, but I do think there’s room for them to clarify what they meant in some of these delegations. So, for example, you all remember that President Trump had proposed to use IEEPA to impose sanctions on Mexico for immigration challenges. Now, there were a lot of people flooding across the border. You can make a real legitimate claim about that, but it clearly wasn’t what Congress had in mind when it was talking about -- when it adopted IEEPA. And you can imagine lots of scenarios where somebody -- what if a future president decided they wanted to impose -- use IEEPA to declare a national emergency around—I don't know, pick your issue—Mexican labor practices, or environmental issues, or take your pick. So I do think some constraints around -- or, at least, a broader understanding of what these provisions that give the President vast authority mean would be, totally, appropriate.

 

And to go back to my opening remarks about trade issues, to switch topics a little bit, I also don’t think that’s an area where Congress ought to take back all of the presidential delegations. I do think presidents need authority to negotiate trade agreements, and to impose tariffs, and lots of cases. But, again, I think there needs to be a broader understanding about what the threshold determination is.

 

President Trump has proposed to use Section 232 around auto tariffs, for example, which is again the provision that requires a finding of a national security threat, which, in my view, just doesn’t exist around autos. And so, anyway, I do think this is time. We’re entering, as I said, this kind of new phase where we’re going to need to look more broadly at U.S. trade authorities, about our connection with the multilateral trading system, and so I think part of that is going to have to be a discussion about the tools and also the separation of powers issues.

 

Prof. John Yoo:  Can I add more ammo to Kristen, against me, just for fun?

 

Hon. Gregory G. Katsas:  Sure. Fire away.

 

Prof. John Yoo:  No, the example that some of the Republican senators give is what if president Elizabeth Warren declares a national emergency over climate change, and then starts using IEEPA to redo the economy. So that’s there.

 

Hon. Juan C. Zarate:  Judge, the only thing I would add is, where you’ve seen, over the last 10 years, Congress get much more involved in the blocking and tackling nitty-gritty of sanctions is where Congress has felt that the administration is either not trustworthy or just not being an aggressive enough to match their sensibilities. And so three very clear examples: the passage of CISADA which was a series of very strict sanctions with respect to Iran that Congress passed—by the way, usually unanimous agreement on these kinds of things—when it was sensed that the Obama administration was going soft on Iran or not as aggressive as possible.

 

You’ve had the same with respect to the Trump administration in Russia where Congress has passed elements of Russia sanctions, reporting requirements, and the rest, that are very specific with respect to Russia. And then in this latest episode, the threat of sanctions vis-à-vis Turkey regardless of what the President did in a nine-day span—putting them on and then taking them off—it’s still an ongoing debate in Congress as to the application of sanctions for the purchase of Russian missiles plus all of the other issues, including invasion of Northern Syria. So Congress, in those episodes, has intervened and been much more prescriptive, as a result of lack of confidence in the stance of the administration, or the willingness of the administration, to use the tools.  

 

Hon. Gregory G. Katsas:  I’m going to ask one more question, and then we’ll open it up—and we have plenty of time—from the floor, which is we heard the traditional dichotomy between dropping bombs, which is clearly an act of war, and a purely economic boycott, which is clearly not. And we heard about a lot of intermediate options, which are more or less edgy things like the cyber-attacks. So the question is, at what point do things like that become an act of war under international law, not under Russian posturing, and is that a line we should care about?

 

Prof. John Yoo:  So can I just make one more point about the last question?

 

Hon. Gregory G. Katsas:  Sure.

 

Prof. John Yoo:  Just one last point about what other -- also another consequence of giving Congress a larger hand because we start to emphasize sanctions -- this actually does come up with the impeachment, and it’s come up with the Mueller Report, and it comes up with this Horowitz Report, which I’m sure is going to be a great read soon one of these days about FISA abuse -- is if we start using economic sanctions and money to achieve foreign policy goals, I think it’s going to give Congress more power over the foreign policy bureaucracy. And one way to read what’s going on with Ukraine, right now, and impeachment is the Foreign Service is rising up against the President. I don’t know if you see it this way. The White House has ordered these people not to testify to Congress, and they are defying the orders of the President, who is the titular head of foreign policy in the United States and going to Congress to testify.

 

I think it’s just a remarkable example of the Foreign Service going to war or thinking themselves independent of a president and his agenda. I think what happened with the Mueller Report described or what the FISA report described is that that also starting to happen in the intelligence agencies where they don’t think they work for the President. They think they work for the interagency consensus and not the duly elected President. And so can you imagine if foreign policy really starts to revolve around economics, which is under the control of Congress because of the person, interstate commerce, it is going to make this problem -- it doesn’t matter whether it’s Trump, whatever President’s in charge in the future, they are going to have deal with a foreign policy bureaucracy, intelligence community that they can’t trust anymore.

 

Hon. Kristen Silverburg:  This is actually a good time to reference Judge Silberman’s article from the 1970s on giving the President control at the state department, which shows these are persistent issues.

 

Prof. John Yoo:  I just hate crediting anyone I’ve worked for when I steal their ideas, but now that you did it.

 

So back to your question. So this is actually part of why our intelligence and defense communities, I think, are reluctant to start using these other kinds of techniques to pressure other countries, like cyber and so forth, because they aren’t sure when what they do crosses whatever line there is into the international phrase of “state of armed conflict.” So what they call kinetic—I just love these antiseptic words. But the kinetic attacks seem to be acts of war, even very minimal ones, right? If you used one missile to attack another country, like Iran, allegedly, sending over drones to hit Saudi Arabian oil facilities. It’s clearly an act of war; this kinetic.

 

But what our agencies are still arguing about and unsure of is, what if Iran had used a cyber attack to take those same oil facilities offline? So I think there are lawyers in our Defense Department and our intelligence communities who think that too is an act of war. I’m not so sure. Part of my argument is why should that be considered an act of war when we are allowed to use economic sanctions that actually cause much more harm against other countries, and we don’t think it’s war. In fact, the UN charter talks about using embargos, sanctions, and so on, as means short of war. So, to me, that’s an area where the United States has an advantage. We ought to use it more aggressively than we are, and that we should not let, necessarily, lawyers decide that there’s just some kind of line that we call war versus peace that we shouldn’t cross over that parallels what you do with military force.  

 

Hon. Gregory G. Katsas:  All right. Let’s take questions. The mic is open.

 

Joe Cosby:  Hello. Okay. Joe Cosby from Washington D.C. Your question is about reserve currencies and how that’s going to ultimately affect the power that’s going on here. As it’s been pointed out, Russia, actually, the EU, China, are all looking for ways to create a new reserve currency so that the United States doesn’t have as much power over the financial system and can’t use these levers to that degree. So two aspects: where do you see this all going? Are we going to start losing power? How and when? And is there anything that the United States ought to be doing in order to preserve its power in these areas or perhaps backing off so that it doesn’t antagonize others as much as we might be doing now?

 

Hon. Juan C. Zarate:  I’m happy to take that on. I think there is a debate underway, and, in fact, a remarkable speech from Mark Carney the head of the Bank of England, at the end of August, in Jackson Hole talking about that very issue. And even proposing a crypto solution as an alternative. Not a basket of fiat currency but maybe even a sovereign collective crypto, which was a remarkable statement actually, if you think about it, at several levels. But I think it is a challenge—and I think you do have countries like China, Russia beginning to think about this—both in terms of the current system and how to displace it given the current rules of the road, as well as with new technologies and new systems that they’re trying to put into place.

 

And so, for example, creating trading relationships, and payment networks, and ecosystems that don’t rely on the dollar that are, for example, ruble [inaudible 01:09:41] trade in oil, as opposed to in dollars. What that does is it doesn’t require the conversion into dollars. It doesn’t require any transactionality with the U.S. financial system, no U-turn transactions through New York or some other dollar clearing mechanism offshore. And so it begins to pull away the power and the centrality of the U.S.

 

The other dimension of this that’s playing out is in the crypto context. And there’s no immediate threat that a crypto regime or a cryptocurrency will replace the U.S. dollar or even some other fiat currency. But it’s the future potential of different crypto regimes blending and creating broader markets in networks that allow for opportunities for trade.

 

This is a little bit of the allergic reaction that you’ve seen with the Facebook announcement of Libra and Calibra, this idea of creating a crypto system within the Facebook network and with 99 other companies and associations. And so I think there’s something there, of course, that we’ve got to watch. Near term? I don’t think there’s a real challenge to the dollar because the dollar is strong and used because of the attractiveness of our markets; the importance of our trading relationships; the stability of our system rule of law.

 

So there are fundamental issues, and elements, and pillars that go to the centrality of the dollar, so I think tending to those fundamentals is critical; the health of our economy; the attractiveness of our markets; the rule of law. But then also finding ways of defining the norms and rules of the road for these other systems that are emerging where we continue to be the rule setter as well as the central economic player in a lot of these places, or, at least, challenging where they’re emerging. And I think that’s really important.

 

Hon. Kristen Silverburg:  Can I have another round to quickly put on that, that to Juan’s point, I think right now we’re benefitting from the lack of any alternatives, that an alternative reserve currency has to be liquid. And Chinese capital controls mean that’s not a great option, and Europe, and partly because of the political system isn’t going to be an attractive -- just two years ago, we were talking about collapse of the eurozone, but that’s not -- those two conditions may not be long-term issues. And so, to Juan’s point, I think we have to be wary-focused. In part, when we apply financial sanctions, we have to make sure that they really matter. We can’t overuse it as a tool and incentivize players to wire around use of the dollar.

 

Questioner 2:  Hi. I have a question about the variety of ways in which the United States can cause harm to people abroad through kinetic warfare or cyber warfare financial tools. Notwithstanding that there may be a statutes, or norms, or treaties that purport to constrain the president’s discretion to cause such harms and purport to obligate him to consider the welfare and interest of people abroad. Is there any legal authority that rivals in importance the President’s ultimate duty and power under the Constitution to promote the national security of the United States?

 

Prof. John Yoo:  Why you guys looking at me? [Laughter] So I think it gets this point of military versus economic --

 

Questioner 2:  -- Thank you.

 

Prof. John Yoo:  Yeah. Sure. And I think it’s interesting the constraints are different, based on domestic and international law. So with international law, right, there are these very complicated rules that apply to the use of force, like proportionality, necessity, discrimination, right? But when you use economics, I don’t think those rules apply to the use of economic sanctions as far as I know. There’s no requirement, for example, that when the U.S. imposes economic sanctions, say, on Iran, that they’re somehow proportional to what we’re trying to stop them from doing, -- and think about discrimination. Remember discrimination is the idea that you -- when you use force, you are very careful not to target civilians, and you reduce collateral damage.

 

The whole point of economic sanctions, unfortunately, is that we’re trying to put a massive amount of pressure on a civilian population to get them to change the policies of their regime or remove the civilian resources that undergird military strength for another -- so economic sanctions actually quite clearly violate the principle of discrimination. So that might be actually another reason why President Trump might like using economic sanctions more than the military option. Because under international law policy, we, the United States, just have so much more freedom. We’re not going to get criticized as much for a sanction. The Foreign Service may not testify against him as much if he uses economic sanctions versus force.

 

But I think domestically it’s quite different. And it’s just interesting, domestically, I think under domestic law, I personally think, and I think history has shown the President can use force without congressional permission. And so, right, he can bomb Syria as he has, right? Twice now. In 2018 and 2017, there was 59 Tomahawk missiles in 2017, and then in 2018, we attacked three Syrian chemical weapons facilities.

 

And I was just reading an account for a thing I’m writing about the first attack, and the military leaders were quite proud that when we attacked the Syrian chemical facilities, that we did at 4:00 am so not many people would be hurt by our destruction of three Syrian -- but that’s all up to the President. Internationally, they worry about that, but domestically, right, what’s the -- but, when we use economic sanctions, then all kinds of domestic constraints come into play because the President doesn’t have the constitutional authority to levy them, only delegated statutory power through, primarily, IEEPA and some of the trade statutes.

 

Hon. Juan C. Zarate:  Can I address this, Judge, for a second?

 

Hon. Gregory G. Katsas:  Sure. Sure.

 

Hon. Juan C. Zarate:  Because it goes back to your earlier question too. There’s a very interesting dimension of customary international law that applies here because there are functional limits to how far you can go with economic sanctions. So I agree with John, there aren’t law-of-war principles for purposes of the use of economic authorities, but there are well understood practices around effectiveness and perception of the targets that begin to limit how they can be used. And so the moment, I think, that sanctions are viewed to be illegitimate, inhumane, don’t allow for humanitarian exemptions, all those sorts of things, would be the moment that they stop being wholly effective, where the private sector wouldn’t respond, allies wouldn’t comply, etc. So there’s almost an organic dimension to how there are limits.

 

The other side of it is, again, as I said earlier, the enemy that’s targeted by these tools is reacting to them in a variety of ways, and so when they’re applied, how they’re applied is really important. The story around Pearl Harbor is that one of the main triggers for the Japanese decision to attack Pearl Harbor was the imposition of a devastating oil embargo, and then that tipped the balance in the decision making of some of the generals and the leadership in Tokyo. There are other factors too, but that sanction, at that moment, in the eyes of everything the Japanese were seeing, was an act of war, and so they decided to take the action in Pearl Harbor.

 

So I think there are elements of the international system that provide boundaries that may not be codified in treaties or understood under UN Security Council resolutions but are a part of the landscape and constrain how we think about the use of these tools.  

 

Prof. John Yoo:  See I said you were going to be the liberal in the end. [Laughter]

 

Hon. Juan C. Zarate:  There you go. There you go.

 

Prof. John Yoo:  I don’t think that it was customary or international law norm, or legal norms. I think they’re good policy, right? When we impose sanctions on North Korea, we allow food shipments too, but it’s because we’re a generous country. I don’t think it’s because of any kind of law requires it. I knew Juan would show his true colors sooner or later. [Laughter]

 

Hon. Juan C. Zarate:  We’re all from Harvard, brother.

 

Hon. Gregory G. Katsas:  All right. Next question.

 

Bill Emanuel:  Yes. My name is Bill Emanuel. I’m from California, but I’m currently working here in D.C. as a member of the NLRB. My question is the business press, namely The Wall Street Journal, has on several occasions published editorials warning the President that if he imposes tariffs on countries that we do business with, such as China, but any other country we do business with, that risks a very serious adverse consequences on our booming U.S. economy. But I think John alluded briefly to that, at one point, but I’d like to hear more elaboration on it.

 

Hon. Kristen Silverburg:  I do think -- yeah, I do think tariffs can risk-- have negative economic consequences on the U.S. economy in a host of circumstances. One might be depending on the retaliation from the other country and what leverage they have against us. Some of it is just you’re raising costs on a U.S. company or a U.S. consumer, and depending on how that hits them, in terms of their investment decisions or employment decisions, that can have an impact. And that’s why you hear, at every Federal Reserve meeting, they mention that one of the key threats to the U.S. economy is the current trade environment.

 

You get this a lot in some of the economic surveys of big companies that one of the constraints on investment right now is trade uncertainty. Some of them have to -- they have to make big decisions, like are we going to move part of our supply chain from one country to another country, and that can be expensive. I don’t think that’s true of every tariff. I think there’s ways to use tariffs as leverage without putting your own economy at risk. But I clearly think that an extended trade war—and one that imposes tariffs across lots of sectors, and lots of industry, and where there’s not a clear signal to companies about where it’s headed—I think that can absolutely impose an economic cost.

 

Prof. John Yoo:  I think, in general, tariffs are a bad idea. It just recalls to mind Milton Friedman, when he talked about economic subsidies in other countries, he would say something like, “Well, if China wants to pay its workers to make things for me cheaper than the market price, that’s great. I’m happy to have them.” Tariffs, if you think about it, we are imposing a tax on ourselves to make products in the United States more expensive. They’re just another tax. Why would we want to -- if it was just the economy we worry about, why would we want to do it? There are always going to be harmful twists.

 

So it seems, to me, the only reason you would do them is certain exceptional circumstances, like you’re using them to force a better long-term trade deal that makes trade terms better, expands free trade in the longer run, or you’re doing it from some non-trade reason, like China -- part of what we’re doing, theoretically, is China is stealing our intellectual property. And so you could say trade sanctions in the longer run are worth it to stop that kind of theft. Or they’re using entry into our economic and technological systems to steal national security secrets, and we just decide the benefit from that outweighs the economic cost.

 

Where I sympathize with The Wall Street Journal editorial page and disagree with the administration, perhaps, is how profligate the administration is with tariffs. I can see using them against China. I agree with what Kristen and Juan said. They are our long-term competitor and rival economically and militarily. But I don’t see why we’re using tariffs against Canada and Mexico to achieve this—what are we supposed to call it? —the USCMA or USMCA --

 

Hon. Kristen Silverburg:  MCA.

 

Prof. John Yoo:  -- or the U.S. Marine Corp. I don't know. But whatever it is, if you look at the agreement, it’s really pretty much the same as NAFTA with some changes about the source origins of cars and your manufacturer. It’s not that different. Why are we using tariffs against European products? If you looked at a -- even if you took Juan’s way or Kristen’s way, have a strategy, we should be reaching free-trade agreements with all our allies first, and then ganging up on China, rather than unilaterally putting tariffs on everyone first, and then lifting them one by one. That doesn’t make sense. So, sometimes, I think just the economic sanctions are too easy for it to use. They want to show action, so they just started to impose them for too much.

 

Hon. Gregory G. Katsas:  Next question.

 

Questioner 4:  Good afternoon. My question is focused on CFIUS and the concentration of power within that committee. I’m not exactly arguing that the U.S. shouldn’t be vigilant against Chinese state-owned companies using mergers and acquisitions to basically do forced tech transfers. But I am concerned over whether Congress has conceded too much power to that committee in the pursuit of economic and national security policy. With FIRRMA, it has given Treasury and DOD concentrated, legislative, executive, and judicial power to, basically, police any and all foreign mergers and acquisitions.

 

The problem with this concentration is that I believe it has ended up with too much. It is ending up burning legitimate mergers and acquisitions between, ostensibly, U.S. corporations and even foreign companies that are not from a hostile nation, like the United Arab Emirates for instance. More specifically, I’m thinking about the Broadcom/Qualcomm merger where you have two U.S. corporations, and they went before the committee, and, ultimately, the Trump administration shot it down because of concerns from China, which is a little bit hard to find where the Chinese part of either of those corporations are. So my real concern is, in our quest for national security, are we running the risk of burning the U.S. economy, and is there a way that we can play this balancing act without tipping over the edge? Thank you.

 

Hon. Juan C. Zarate:  That’s a great question. That’s a great question, and I think it’s a fundamental one that we’re facing, in part because we’re facing a very different kind of competitor that is a state-authoritarian capitalist system whose global institutions, be it the banks or the technology companies or others, are now entering the international market in force, right? So we’re now butting against the Huaweis, the ZTEs, the Bank of Chinas of the world, right? —the Chinese system. And they’re expanding well beyond the Chinese borders, right? So you see Chinese technology in Brazil, and Malaysia, and India.

 

And so you’re right that there’s a real challenge as to how do we think about Chinese capital as it enters the system without doing fundamental damage to our system? I’ve written about this. I’ve said, “Look, we have to devise new systems.” And I’ve been in favor of FIRRMA and expanding the role of CFIUS, so just to cut to the chase on that. But I do think it presents some of the risks you’ve described. How far can the federal government go to determining who and what is invested in the U.S., and what is a national security priority? What is a national security technology in the age of enormous innovation where day to day, we’re seeing innovation around machine learning, AI, robotics, quantum computing? Is the government going to define those fears? Is it going to define the limits of who can invest here or there?

 

So I don’t propose to have an answer, but you’re right to raise those sensitivities. I think we’ve got to watch very carefully how the CFIUS process plays out. I also think we have to do this in alliance with our allies because the Australians, the Brits, Europeans are dealing with very similar questions because of this clash of systems and clash of types of capital that present enormous opportunity but also potential enormous risk. And so what are the limits to what the government can do to scrutinize and limit?

 

I go back to first principles. I want transparency and accountability in the system. I want to know who’s investing in the U.S., then we can make decisions as to whether or not it’s dangerous or not. A Russian oligarch investing in Manhattan high-rises: I want to know that they’re behind the Shell company. Whether or not you want to sell the property to them: that’s your decision, right? Are they on a list? Is there a reputational risk? You make that decision. But I do want to know who’s transacting, who’s operating, who’s doing business in the U.S? And, in particular, if they’re acquiring sensitive technologies, we need to know it.

 

Hon. Gregory G. Katsas:  Yes.

 

Questioner 5:  Good afternoon. I have a question bouncing off of some of the concerns that have been raised about China, and it’s a worst case scenario kind of a question with three parts is, if the tables were turned and the United States became the subject of considerable economic sanctions -- for example, I just came off the panel, The Telecommunications Regulatory panel, and they were talking about China’s race to become the first country to be a 5G powerhouse. And that raises all kinds of concerns in my head about cybersecurity and the like. And so I have a three-part question: should we be concerned about the risk of a country like China using our own economic sanction tools against us, and, if that risk is considerable, what are we doing to prepare for that risk, and what should we be doing to prepare for that possibility? Thank you.

 

Hon. Kristen Silverburg:  I would say China does currently impose lots of restrictions on U.S. companies doing business in China. There are plenty of U.S. companies who have robust market share, but in particular sectors, particularly, China will have limits on foreign investment, foreign ownership. They’ll use their foreign ownership restrictions to compel you as companies to turn over sensitive technology. So, basically, they’ll say, “You can only come into China as part of a joint venture, and, as part of the joint venture, we want to see your proprietary technology around X.”

 

So I already feel like we’re well into the area where China is using all of its tools to try to secure competitive advantage. There’s a principle and U.S. trade law that shows up since—I don't know—1934, or whatever, on reciprocity, and it always bothers me in this period. Because the last thing we want is reciprocity with a state-run economy. There are lots of things we’re not going to do even if the Chinese are doing them because we believe in free-market principles, and we believe in an open-trading system and all of those things. So, to me, the real challenge is how do we smartly use leverage to compel, as John was saying, long-term changes in the Chinese system that can make it fair and more legitimate without absorbing some of the worst elements of Chinese trade policy.  

 

Hon. Gregory G. Katsas:  Anybody else? Juan?

 

Hon. Juan C. Zarate:  Yeah. Just a quick point on this. I think this turns very insidious very quickly in terms of the economic influence that China wields. And I think this is where we do have some fundamental choices. You saw this play out in the NBA debate around criticism about what’s happening in Hong Kong or not. It’s already impacting the way that we think about freedom of speech in the country, not to mention whether or not you turn over your source code as you go to do business in Shanghai, right?

 

So I think it’s a really important question. I do think, in this regard, we need to think about our alliances differently. That’s why I mentioned thinking about an alliance around CFIUS kinds of practices, right? I’ve talked often about we should have, first and foremost, a Five Eyes CFIUS practice so that the Brits aren’t investing in Huawei when we think there’s vulnerabilities. We’ve been talking about this for a long time. Unfortunately, we’re now having to grapple with it. But I think we need to think about our alliances differently.

 

The other thing we’ve seen is these boycott and divestment strategies against our allies, like Israel, right? Which I think we’ve got to be very conscious of, and I think we’ve got to support allies that become subject of some of the same kinds of tools, but we’ve got to give them market backstop.  

 

Prof. John Yoo:  So some basic ideas about China is I think they all are a long-term rival, much like the Soviet Union was during the Cold War. The difference is not their intention. So I think it’s pretty clear China wants to assume a position where they are a rival superpower in the United States, and, at the very least, they want to push United States out of Asia. I think they’ve made that pretty clear, and they want to be the hegemonic power over the fastest growing part of the world economy, where we have had long-term interest, both economic and political.

 

The difference from the Soviet Union is that they are an economy that really rivals us. So I was looking this up, the Soviet Union at the -- I guess, in the early ‘70s, late ‘60s, the closest it ever came to United States using their own inflated economic figures was something like 20 percent of the size of the American economy. And, of course, if you added the Soviet Union and their satellite states with the United States and the Western economic system, it wasn’t even close. So we had a huge advantage in this very realm which we don’t have now. That is what causes the difficulties. How do we compete with this kind of Soviet Union-like rival, right, an authoritarian dictatorship with nuclear weapons and global ambitions when they are closely intertwined with our economic system?

 

So I’m not so -- I think we tend to exaggerate, however, China’s long-term threat in some respect. So one, they are, as Juan pointed out, they are not a market economy. They’ve become a kind of government-driven state-owned enterprise economy. And I think there in the figure of something: 50 percent of all industrial production in China is done by state-owned enterprises. Unless [inaudible 01:32:56] was wrong, that is extremely inefficient, right? Mankind using bureaucracy cannot do a better job than markets and the millions of decisions consumers and producers make. So, hopefully, all over the long term, the Chinese economy will become more and more inefficient, and maybe we’re already starting to see signs of that right now.

 

The second point is they are really brittle as a matter of a political system. There’s a reason why they want to watch everybody all the time with closed circuit TV. There’s a reason why they’re coming up with a social credit score for every citizen. It’s because the regime doesn’t trust its own citizens, right? This is not a sign of a healthy long-term political system, right? So the thing that’s been propping up that crazy system, in a way, has been giving them access to the western markets. The economy growing is the only thing that keeps their regime legitimately in power.

 

And so I think, unfortunately -- and maybe this where, I think, again Trump has built a bipartisan consensus is that over the long term, even though our economies are intertwined, I think the strategically smart thing to do is to slowly disentangle the two systems so that our economic growth is not propping up the Chinese regimes ability to stay in power. Because, I think, that’s really what’s going on. Without that, I think you see things like Hong Kong in a protest. They’re going to spread throughout China if they don’t have the ability to say, “We’re providing jobs for everyone,” and the economy keeps growing. And they’ve been doing that off their ability to integrate in our world trading system.

 

Hon. Gregory G. Katsas:  All right. We’ll take two more questions.

 

Doug Gates:  Hey. Good afternoon. My name’s Doug Gates. I’m a law clerk on the district court here and before --

 

Prof. John Yoo:  My condolences.

 

Doug Gates:  But, before I was lawyer, I used to drive destroyers around the South China Sea, so something you said got me to perk up a little bit. I was just hoping for a point of clarification. When you were wondering why we’re not considering the use of various cyber options, were you saying that the administration has made an affirmative decision to take those off the table or rather that we’re just not talking about that as part of the public discourse?

 

Prof. John Yoo:  So my impression, just from reading public source material, is that at the end of the Obama administration, we started to suffer a lot of cyber attacks and thefts from state actors. And you can go through them. The theft of the entire OPM database. We’re in Washington. How many of you have worked for the federal government, right? It’s easier for you to get your personnel files probably in some marketplace in Beijing than it is by filing a FOIA request now. [Laughter] Right? The Chinese have all of our personnel files.

 

Hon. Juan C. Zarate:  And your fingerprints.

 

Hon. Kristen Silverburg:  It’s true.

 

Prof. John Yoo:  Right. But there’s number after number of these -- just from the public source materials, my impression is that the Obama administration deliberately chose not to retaliate in the cybersphere as they could have in an equivalent way. And the reason they said they tried that -- this gives you the flavor of their vision of international relations is, they hoped, that by showing restraint, we would encourage the Russians and Chinese to show equal restraint, and we’d eventually come to an international norm of “no first use” of cyber weapons. And instead, I think, what happened in the very last two years of the Obama administration is that China, and Russia, and their pals accelerated their use of cyber on us.

 

And I think was much in keeping with the sense of the, actually, I think the bureaucracy, the defense and diplomat bureaucracies, who are worried about the question that Judge Katsas asked, what if we do things in the cybersphere that’s equivalent to what an act of war would be? Are we crossing some kind of—I was about to say—redline. Yeah. We know those don’t count in the Obama administration. But some kind of line.

 

And so, I think because of that, we -- I’m not saying the Trump administration is taking them off the table, but I think there has been a consistent practice of our government choosing, at least, the last 10 years choosing not to use them that widely. Now, hopefully, I would think, at least, the Trump administration, purely for deterrent sake, to stop this constant level of cyber attacks on our systems is saying “Well, we might consider or even doing it,” and we just don’t know about it.

 

Hon. Juan C. Zarate:   I think it’s worthy of note in light of this question that the Trump administration has used for the first time this term cyber-enabled economic warfare in their national security strategy. That is to say a recognition that America’s enemies—namely the Chinese, but others—are using both cyber and economic tools in combination to undermine American economic interest and, in particular, private sector interests, right, stealing IP, forcing bankruptcies, using the bankruptcy courts actually to get access to capabilities.

 

And so this very idea of warfare blending tools is important in the context of what you described. But I do think there’s been a tradition of restraint dating back probably 25, 30 years to not using tools in such a maximalist form, be they cyber or otherwise, that would destroy the sense of stability of the international financial system. Secretary Paulson, former secretary of the treasury, used to call this the magnificent glass house. You don’t want to disrupt the magnificent glass house, for which we are largely stewards, and so I think that helps --

 

Prof. John Yoo:  -- So, instead, let’s just get people to buy lots of mortgages at high rates with no money down.  [Laughter]

 

Hon. Juan C. Zarate:  That’s a different things story. That’s a different thing. But, no, to this point, it does demonstrate where the decision has been made from a policy perspective as to how far we will go with these kinds of tools and what targets are on the table for their use.

 

Hon. Gregory G. Katsas:  Last question.

 

Wade Leach:  Thank you. My name is Wade Leach. I’m a law clerk to Chief Judge Frank Whitney in the Western District of North Carolina. I’m generally in agreement that we need to move beyond kinetic attacks, and economic attacks, and where those lines are drawn. But my question is, how do we convince other countries that the law of war fundamentally needs to change to account for those developments so that we can cyber responses on our own terms? Thank you.

 

Prof. John Yoo:  You’re going to have buy my book with Jeremy Rabkin, which is available at a very discounted price on Amazon.com. Although, if you buy it, it’s probably been ripped off by a Chinese publisher, and you’re just buying some cheap facsimile copy. [Laughter]

 

But, in the book, we argue, as far as I can remember -- because now I’ve got Trump on the brain this last year. Juan talked about customary international law. There’s no real customary international law here yet, so the most powerful countries in the world have to set the -- the ones with the capabilities have to set the rules of the road, and they do it by their conduct.

 

And I think here the United States has the ability, but I think it has to come about through deterrence. I don’t think the Chinese and Russians are going to stop trying to hack our electrical systems, for example, if we just complain about it a lot. If the Trump administration takes the Russian cyber agency offline during the three days of the midterm elections, that will have a more of an effect, and after these deterrent uses of force are used, then eventually you’ll get some kind of norm of restraint. But it’s not going to be one, I think, that’s going to be cheap by proposing customary international law first, and trying to hope all the other countries sign on when they can -- it makes a lot of sense for them to do what they’re doing. Because what they’re doing asymmetrically negates our huge advantage in military strength. So I don’t blame them for doing what they’re doing, but we should be deterring them by using the same kind of techniques against them.

 

Hon. Juan C. Zarate:  As long as we’re talking about books and China, the Chinese bought the rights to my book The Treasury’s War. I’ve been in negotiations for the last three and a half years for the translation of that book. They’ve continued to want to take out any reference to Chinese involvement with the North Korean economy, such that it’s, in essence, denuded a core part of the book.

 

Prof. John Yoo:  I read your book for free on a Chinese website just the other day. What are you taking about? It’s widely available in China. [Laughter]

 

Hon. Juan C. Zarate:  So that’s right. It’s out there if you want to get the bootleg version. It’s not coming out official. [Laughter]

 

Hon. Gregory G. Katsas:  Kristen, do you want to hock a book? [Laughter] Well, if not, then please join me in thanking our panelists.

 

5:00 p.m. - 5:45 p.m.
19th Annual Barbara K. Olson Memorial Lecture

2019 National Lawyers Convention

Topics: Constitution • Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 15, 2019, the Federalist Society held the 19th Annual Barbara K. Olson Memorial Lecture at the Mayflower Hotel in Washington, DC. The lecture featured Attorney General William Barr, who discussed the development of the role of the executive in the federal government.

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals.

*******

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Featuring:

  • Hon. William P. Barr
  • Introduction: Eugene Meyer, President and CEO, The Federalist Society
 

Speakers

5:45 p.m. - 7:30 p.m.
Barbara K. Olson Memorial Reception

2019 National Lawyers Convention

East and State Rooms
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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9:00 a.m. - 10:45 a.m.
Showcase Panel III: Does Originalism Protect Unenumerated Rights?

2019 National Lawyers Convention

Topics: Civil Rights • Constitution • Philosophy • Supreme Court
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 16, 2019, the Federalist Society hosted the third showcase panel of the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel explored the question "Does Originalism Protect Unenumerated Rights?".

Does the original meaning of any constitutional provision protect fundamental rights? Substantive Due Process had been a target of originalists, but is it fair to dismiss it as an oxymoron? And even if Due Process does not have a substantive component, does the Privileges or Immunities Clause provide a justification for a fundamental right jurisprudence?

*******

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Featuring:

  • Prof. Stephanie H. Barclay, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University
  • Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
  • Prof. Jamal Greene, Dwight Professor of Law, Columbia Law School
  • Prof. Gary S. Lawson, Philip S. Beck Professor of Law, Boston University School of Law
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor and Director, Constitutional Law Center, Stanford Law School
  • Moderator: Hon. Kevin C. Newsom, United States Court of Appeals, Eleventh Circuit
  • Introduction: Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society, The Federalist Society

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Event Transcript

Dean Reuter:  Good morning, everyone. Good morning and welcome, or welcome back, as the case may be. I’m Dean Reuter, General Counsel, Vice President, and Director of Practice Groups at The Federalist Society. Welcome to the third and best day of the National Lawyers Convention. Momentarily, we’re going to begin our panel on originalism and unenumerated rights. Later today, we’ll have the Rosenkranz debate, several panel discussions, several book signings, and an event featuring Justice Gorsuch.

 

      I’m actually doing a book signing myself for my new non-fiction World War II book, not a law and policy book, and I’m listed in the brochure as the Honorable Dean Reuter, and several people seem intrigued by that.

 

[Laughter]

 

      You weren’t supposed to laugh at that, but…

 

[Laughter]

 

      So I thought I’d give the back story on that. During the Obama administration, I tried to be helpful to Mitch McConnell and his staff by identifying good conservatives to serve on presidentially appointed bi-partisan boards and commissions, so think the FTC, the SEC, the ITC. The Republican members of those commissions, even in a Democratic administration, are selected by the Republican leader. So I tried to help in that process. And after a while, his team eventually said that I should serve on a board for a grant making agency at which I had worked some years before in the IG’s office. So I was nominated by President Obama, confirmed by the Senate, making me the Honorable Dean Reuter, to my wife’s chagrin.

 

      And I’ve got to finish this story by adding, somewhat relatedly, that I live very far outside the city, west of the city. We have these carpool rules here in Washington created by bureaucrats, so years ago, I bought a hybrid vehicle so I could get in the carpool lanes even when I’m driving solo. So the bottom line is I am a Prius driving Obama appointee, and I work for a non-profit organization.

 

[Laughter and applause]

 

      Those are my sterling conservative credentials.

 

      So now to our panel on unenumerated rights and the credentials of our moderator, the Honorable Kevin Newsom. He is a judge on the Eleventh Circuit Court of Appeals in Birmingham. He graduated summa cum laude from Stanford University and magna cum laude from Harvard Law School, where he was the editor of the Harvard Law Review. He clerked for Judge O’Scannlain, who’s here, I know — there he is. Judge, welcome — and then for Justice Souter on the Supreme Court. He served as Alabama’s second Solicitor General for then-Attorney General Bill Pryor, and later, Troy King. Still later, he headed the appellate practice group at Bradley Arant, arguing cases in the Supreme Court and appellate courts everywhere. We’re so pleased to have him with us today. With that, please welcome Judge Kevin Newsom.

 

Hon. Kevin Newsom:  Thank you. Thank you so much, Dean. Thank you, everyone. If it’s okay with you, we’re going to sit. I guess if you have a preference to come to the podium, that’s fine, but I think we’ll sit and speak to you from where we are.

 

      So this morning, “Does Originalism Protect Unenumerated Rights?” I think if this won’t get your Saturday morning juices flowing, at least for the types of people who are in this room, nothing will. So I hope you’re as excited about this as I am. As Dean said, this is the best day of the convention, this is the best topic of the convention, and I have the best panel at the convention.

 

      So today, we’re going to talk, again, about “Does Originalism Protect Unenumerated Rights?” That will require us to explore what exactly originalism is. We have a vague sense for what it is, but our panelists will help to unpack it for you. What exactly unenumerated rights are; we may think we know what those are, but I think there will be a range of opinion about precisely what it means for a right to be either enumerated or unenumerated in the text of the document.

 

      We will talk about, among other clauses, the Necessary and Proper Clause, the Due Process Clauses, the Ninth Amendment, my personal favorite, the Privileges or Immunities Clause of the Fourteenth Amendment, not the Privileges and Immunities Clause, but the Privileges or Immunities Clause. We’ll also talk, if I might tempt our panelists, one or two of them, to talk about the Republican Form of Government Clause.

 

      So I typically feel quite understaffed, undereducated to moderate panels like this. This is the one that I think I might like plausibly be capable of moderating. My one little virgin foray into law review article authorship was an article about the Privileges or Immunities Clause, and so I’ve kind of been down this road before, but I think I have a lot to learn from these guys.

 

      So without further ado, let me introduce to you our panelists in the order in which they will present. Once they have presented their opening remarks, we might have a little bit of rebuttal, and then what I hope will be a robust exchange among them, questions, if necessary, from me, between them to one another, and then, ultimately, from you. So first, to kick us off, Stephanie Barclay, at my far right, your far left, who is a Professor at BYU, a constitutional law expert, and a future clerk to the Honorable Neil Gorsuch.

 

      After her, we’ll hear from Randy Barnett, whom you know well. Randy is a Professor at Georgetown and the Director of the Georgetown Center for the Constitution. And as I said to Randy on our planning call, he knows this, Randy is in part one of the reasons that I went to law school. When I was an undergrad, I fell into the geeky habit of hanging out in the law school library reading law review articles, and I read a lot of Akhil Amar, and then I fell into Randy’s book, Rights Retained by the People, a two volume set, a compilation of essays about the Ninth Amendment, which I really sort of fell in love with, and it led me, in part, to law school, so I appreciate Randy for that.

 

      After Randy, we’ll hear from Judge and Professor Michael McConnell, who is the Director of the Constitutional Law Center at Stanford, former judge on the Tenth Circuit. After Michael, we will hear from Jamal Greene, at the table to your right, who is a Professor and a con law expert at Columbia. And finally, to wrap us up, Gary Lawson, at your far right, who’s a Professor at Boston University and, as I think you probably know, a founding member of this organization, The Federalist Society. So we all owe him a debt of gratitude for that.

 

      All right, so with that introduction, let me give the floor to Stephanie, who will begin our discussion. Thank you.

 

Prof. Stephanie Barclay:  Thank you to The Federalist Society for hosting this discussion and for the opportunity to be here. I feel particularly honored to be here among such a distinguished panel and that I’ll get to hear from and learn from their remarks. And I’m also very glad to go first so I won’t have to be the follow-up act of any of these giants in their field.

 

      So the question of whether originalism protects unenumerated rights is a big complicated question that I think means different things to different people. For my remarks today, I want to break this down into some subsidiary questions that at least help inform my thinking about this topic. And I’ll warn you that I’m going to come at these issues and think about examples primarily through the lens of expressive and religious rights like we find in the First Amendment, which is where I focus a lot of my scholarship.

 

      While we’re speaking of the First Amendment, I will just say that there are some rights that are enumerated in the First Amendment that we treat like are not, like the freedom of assembly. And I know that my colleagues at Beckett would love if we took that right more seriously and if we looked at that and paid attention to the fact that that’s one that actually is enumerated in the Constitution and gets very little attention.

 

      So as far as my three subsidiary questions, I want to think about what is the remedy in some of these contexts, number one. Number two, which sovereign powers are reserved to the people in a system of popular sovereignty? And number three, what is the standard of care the government is inherently expected to follow as a result of its fiduciary relationship as an agent acting on behalf of the people? This question, I think, is important to ask not just with respect to the federal government as an agent of the people, but also with respect to state governments which entails potential limits on their state police powers.

 

      And you’ll have to forgive me, but I just can’t resist speaking about police power without telling you very briefly about my recent run-in with police power when I got pulled oven on my way to drop my eight-year-old daughter, Siri, off at school. And when the policeman came up to the window and made very clear that I had been speeding, my 8-year-old said from the backseat, “Mom, why were you speeding again?”

 

[Laughter]

 

      I said, “Siri, please just let the nice officer and I have a conversation. Please be quiet.” So he went to check on my license and registration, and when he came back, my daughter -- I heard her pipe up again and thought, oh no. And she said, “You know, officer, when you turned on your lights to pull us over, I wasn’t actually buckled up. I just hurried and buckled so that you wouldn’t see.”

 

[Laughter]

 

      I’m a little flabbergasted at this point, and he said, “Why weren’t you buckled up? Don’t you know that that’s not safe to drive around unbuckled?” And she said, “I know. My mom tells me that. But I was thinking that if our car drove into the ocean and we were sinking, it would be easier to swim away if I was unbuckled. So that’s actually safer.” To which this wise officer responded, “Well, there are no oceans in Utah, so I highly recommend that you stay buckled driving around from now on.” And this kind officer ultimately did not give me a ticket. I hope Randy and I can agree this was not an arbitrary use of police power in this instance.

 

[Laughter]

 

      So to my first question about thinking about remedies in the context of these rights, it’s not enough to ask what a right is as a general concept, though we often focus on that. I think we also have to ask how is that concept mechanized or applied in the real world. In other words, what is the constitutional remedy? And I think the constitutional remedies are often left unenumerated in the Constitution. They are not explicitly spelled out. Professor Jed Campbell has written about how in some contexts, like the First Amendment, there may have been broad consensus about some of these concepts regarding rights but a lot less consensus about how to give meaning to those concepts in the real world.

 

      Further, even where there’s an express constitutional requirement or prohibition, it doesn’t necessarily follow that there’s a federal judicial remedy that would enforce that right. We know this to be true for things that are not justiciable or political questions, and so I think it’s just valuable as we’re having some of these discussions to keep those concepts of constitutional protections and remedies in the real world separate.

 

      Where the Constitution doesn’t enumerate the remedy for those rights, this can leave a fair amount of indeterminacy, and this is true whether we’re talking about a traditional right that is a privilege or an immunity, or whether we’re talking about a specifically unenumerated right. This is an area that some originalists describe as the construction zone where an originalist understanding may permit a range of plausible options that are an acceptable remedy without necessarily requiring one. So in sum, I think it’s important to treat this area of indeterminacy with respect to rights as a baseline often applicable to any sort of right and not something unique to unenumerated rights.

 

      So for the second question, with the people as sovereigns in a system of government, I think it’s important to think about, and particularly when we’re talking about rights, where ultimate power resides. In British legal thought, the answer to this question, as many of you know, was Parliament. James Wilson stated that in England, “the British Constitution is just what Parliament pleases.” Blackstone famously described sovereignty as “that absolute despotic power in which all governments must reside somewhere.”

 

      In preparing this talk, my husband and I were chatting about this principle of sovereignty, and that somehow led to a friendly discussion about who the ultimate sovereign is in our family. And I think that you’ll all agree with me that the answer is --

 

Hon. Kevin Newsom:  -- Sounds like Siri to me.

 

[Laughter]

 

Prof. Stephanie Barclay:  Yeah, the answer is very simple: our daughter. That’s what we decided.

 

      So after the Revolution in America, the Founders asserted that the people had claimed ultimate sovereignty, meaning that they were the seat of this authority in our country. The question of popular sovereignty and the understanding of this I think is important to understanding unenumerated rights because, as our Ninth Amendment suggests, the people as sovereigns were reserving certain powers to themselves and did not delegate those powers to government to exercise.

 

      James Wilson described the Bill of Rights as “an enumeration of the powers reserved.” One of those powers before the Bill of Rights that was reserved to the people as sovereigns was unrestrained censorial power. Notably, we see this exercise by the people, and they recognize that they’re exercising it years before we had the First Amendment, and it was enumerated in the Bill of Rights. So it’s an early example of a recognition of an unwritten right that is inherent in the Constitution and in the principle of popular sovereignty.

 

      Akhil Amar has written about how our Constitution came into being on a continent awash with speech and through a process teeming with expression. This was a sharp break from English longstanding law where the people did not enjoy the broad ability to criticize the government or government policies, and indeed, Parliament as sovereign could hold critics in contempt. Madison contrasted that English approach with the American republican approach and said, “If revert to the nature of republican government, we shall find that the censorial power is in the people over the government and not in the government over the people.” And while there was a lot of sharp-elbowed political maneuvering and disagreement, there was not widespread punishment for that expression.

 

      Speech took place, of course, in communities, churches, town squares, taverns, etc., but the constitutional ratifying conventions were possibly the location where this right being exercised was on its most full display. Even in conventions where one side had a decisive majority, whether federalist or anti-federalist, dissenters were still able to peacefully voice their opposition. And yet, they went on, many of them, to still lead successful political careers. This is different even than what was going on leading up to the American Revolution where those colonists who remained loyal to the Crown were punished and treated as traitors.

 

      James Wilson, who was one of the great defenders of popular sovereignty, said at the Pennsylvania Ratifying Convention before any state had agreed to the Philadelphia plan that, “We, at this moment, speak and deliberate under this immediate and benign influence,” talking about popular sovereignty. And he also said, “In America, sovereignty continues, resides, and remains in the body of the people under the practical influence of this great truth we are now sitting and deliberating.” So in short, I think this expressive freedom is an example of something that was intrinsic and indispensable an aspect of our Constitution and a core component of our government even before the adoption of the Bill of Rights had occurred.

 

      The third question to think about is what the government’s obligations are to the people as agents of the people. Gary Lawson has written before, “All federal actors under the Constitution exercise delegated authority from we the people as agents, and thus, all federal actors under the Constitution are bound by a duty of care.” So I agree with that. I think he’s done a lot of important scholarship in this area. And this fiduciary relationship means that when government is acting as agent of the people, that fiduciary standard of care implies that some government action is off the table in terms of legitimacy. As Justice Samuel Chase said, “Government was a trustee of the people, accountable to them, subject to the will of the people.” And Justice Story also wrote about this fiduciary relationship and how it created unwritten restraints on government as the principle to act -- or, excuse me, on government to act in a moral and beneficial way as an agent for the principle.

 

      Where there might be a little bit of daylight between my position and Gary’s, although I’ll let Gary speak to this, is that I think that this is also true of state governments and not just federal governments. As expressed by Madison, “There are powers exercised by most other governments which in the United States are withheld by the people both from the general government and from the state governments.” And he talked about -- he continued to say, “Of this sort are many of the powers prohibited by the Declaration of Rights, prefix to the constitutions, or by the clauses in the constitutions and the nature of such declarations.”

 

      Early constitutional provisions written after the Revolution I think illustrate this new agency relationship between the people and state governments. Virginia’s Constitution stated, “All power is vested in and consequently derived from the people, that magistrates or their trustees and servants, and at all times amenable to them.” North Carolina, Maryland, Massachusetts, New Jersey, had somewhat similar provisions. Some have also argued that the Ninth Amendment is merely a means of preventing state or local rights from being supplanted, meaning that power not delegated to the federal government was reserved for the state police powers.

      But one evidence I think that suggests that it’s not true, that the Ninth Amendment was just about state rights, is that in the antebellum era, there were 12 states who adopted provisions similar to the Ninth Amendment, and two states who adopted the same principal judicially. Southern States were engaging in egregious free speech suppression in order to prop up the institution of slavery and silence dissenters. This was an illegitimate act of government in a nation where the people were sovereign.

 

      That’s a separate question from whether there was a federal remedy to rectify this injustice prior to the Fourteenth Amendment. And that’s, indeed, I think, a large reason why we ultimately created the Fourteenth Amendment because there wasn’t a remedy for these violations federally. But the Privileges or Immunities Clause, I think, correctly interpreted, is not meant to create a new right. That power already existed and really belonged to the people as ultimate sovereigns. But this new federal remedy was giving the people another option to enforce that right and that retained power that they had against the states.

 

      One concluding thought I’ll make about this third question is the fact that I think government operates as an agent for the people doesn’t necessarily, I think, equate to the judiciary being able to review everything that the government does. And I have some concerns about a Lochner-style approach. I think unrestrained judicial power raises concerns about not being democratic, and it’s also an endeavor I worry offers little constraint for the -- sometimes, judges don’t have the capacity to do well.

 

      So while it may be appealing to have the judiciary be a roving commission to ensure that the democratic branches of government are operating with the appropriate standard of care for agents of the people, such a system, I think, would raise questions about who will ensure that the judiciary is also operating in a way that is faithful to the limited powers the judiciary has been delegated by the people? And there’s this countervailing concern that should inform our thinking here, and also, I think, gives reasons to have safeguards ensuring that the judiciary is not frustrating the legitimate exercise of power that the people have delegated to the democratic branches of government. Thank you.

 

[Applause]

 

Hon. Kevin Newsom:  Wonderful, Stephanie. Thank you so much. Great way to kick it off. Randy, if you’ll continue our conversation.

 

Prof. Randy Barnett:  I’m going to stand up here because I can’t see half the room from this place I’m sitting here, so hopefully this is better.

 

      Let me begin by offering a hypothetical. Suppose a state statute mandated that all children be taken immediately after their birth to be raised by state-controlled nurseries, as Plato recommended in The Republic, and that statute is enacted by the requisite majority of each chamber in a state legislature and signed into law by that state’s governor. Would a federal or state judge have the power to declare that such a statute is unconstitutional? Or let me pose the question this way. Do you have a constitutional right to raise your own children when the Constitution says nothing about such a right?

 

      In my book, Restoring the Lost Constitution, I offer the following answer to this question, and I quote, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Oh, wait, that’s not me who said this.

 

[Laughter]

 

      This is actually an entire amendment of the U.S. Constitution, duly enacted and ratified by the states.

 

      In my eight minutes, I merely have time to identify five provisions of the Constitution, the original meaning of which protects the unenumerated rights retained by the people. I will then explain how theses rights can and should be protected by the judiciary. The Necessary and Proper Clause, the Ninth Amendment, and the Due Process Clause of the Fifth Amendment protect against federal infringement on unenumerated rights. And unenumerated rights are protected from state abridgement by the Fourteenth Amendment’s Privileges or Immunities and Due Process of Law Clauses.

 

      The Necessary and Proper Clause requires that laws passed by Congress to execute its enumerated powers not only be necessary but also proper. Gary Lawson has argued that for the two years we had a Constitution but no First Amendment, a federal law abridging the freedom of speech, which would have been an unenumerated right at that point, would have been improper.

 

      But in the interest of time, I’m going to pass over this clause and leave to Gary whatever he might want to say about it and now move on to the Ninth Amendment, which I’ve already quoted. The rights retained by the people in the Ninth Amendment refer to those individual rights that persons have in a state of nature before government is instituted among them and which they retain after a government is instituted among them. The rights one has in a state of nature can be called liberty rights. These are the Lockean rights a person has to do what he or she wills or desires with what properly belongs to that person. They do not include positive rights or governmental benefits because there are no governmental benefits or government in the state of nature.

 

      Like the rest of what we now call the Bill of Rights, the Ninth Amendment originally applied to the federal government. But its rule of construction against privileging enumerated rights over unenumerated rights applies to the entire Constitution, including later amendments. Such later amendments include the Privileges or Immunities Clause of the Fourteenth Amendment which states that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. This is an expressed textual limitation on the legislative powers of states which bars the abridgement of fundamental rights which are not enumerated in that clause belonging to all citizens.

 

      As explained by Justice Bushrod Washington in Corfield v. Coryell, these rights include “protection by the government, the enjoyment of life and liberty with the right to acquire and possess property of every kind, and to pursue and obtaining happiness and safety, subject, nevertheless, to such restraints as the government must justly prescribe for the general good of the whole, and also, to take hold and dispose of property, either real or personal.” This formulation was a direct copy of the statement of natural rights authored by George Mason for the Virginia Declaration of Rights and reproduced in the constitutions of four other states. Now, after quoting from the language of Corfield, Michigan Senator Jacob Howard, the sponsor of the Fourteenth Amendment in the Senate continued, “To these privileges and immunities, whatever they may be, for they are not and cannot be fully defined in their entire extent and precise nature, to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution.”

 

      Now, having identified two provisions of the Constitution that expressly recognize unenumerated rights. I wish to stress that identifying such rights is not the same as explaining how they are to be protected by a judiciary. For this, we need to look to the two Due Process of Law Clauses located in the Fifth and Fourteenth Amendments.  These two clauses require a judicial process. That’s what they’re all about. They’re all about the judiciary. Before a person may be deprived of his life, liberty, or property for violating a federal or state statute.

 

      Now, what is the scope of this judicial process? Before any person may be deprived of their life, liberty, or property, there must be a judicial finding that they are a) actually guilty of violating b) a lawful command. They are actually guilty of violating a lawful command. This requires a realistic assessment of two questions. First, were they guilty of violating a properly enacted statute? Second, was the statute being applied to them within the proper or just powers of the legislature to enact? The due process of law, and we must always remember the “of law” part is in there, requires that no one be deprived of life, liberty, or property except for violating a valid law.

 

      As Justice Samuel Chase affirmed in Calder v. Bull, a statute that exceeds the proper power of the legislature is a mere legislative act and not a law. This distinction between a law and a mere legislative act can be found not only in Calder, but all over the Founding era judicial decisions, including several by Marshall, including McCulloch v. Maryland where he says, “Should Congress, under the pretext of exercising one of its powers, actually exercise a power that it was not granted?” It would become the painful duty of this tribunal to say that such an act was not the law of the land. There’s the distinction between act and law.

 

      For a federal statute, this requires a judicial assessment that a statute is within the enumerated powers of Congress to enact. So a Commerce Clause challenge is also a Fifth Amendment due process of law challenge because the issue is whether the law is valid. The Fourteenth Amendment’s Due Process of Law Clause requires a similar assessment of state laws. But because state legislatures have general powers, this requires an assessment of whether a statute depriving someone of life, liberty, or property is within the police power of a state. It is, therefore, no coincidence that a theory of the police power was developed in earnest by Thomas Cooley and others starting the year, the very year that the Fourteenth Amendment was ratified, called and raised the need for such a theory.

 

      In my book, Our Republican Constitution, I offer this summary of the police power of states. “That all men are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Oh, wait, that’s not me who said this. It is the Declaration of Independence which is the officially adopted political philosophy of the United States. In short, the just police powers of government are those powers which are necessary to secure the natural and unalienable rights retained by the people.

 

      What, then, may legislatures do to secure these rights? There’s a widespread consensus that the police power includes the protection of the health, safety, and public morals of the people; and by that, I mean the moral behavior in the public sphere that is controlled by government. There is then a debate over whether it also includes bare moral legislative disapproval of acts performed outside of public spaces that violate no one’s rights. But very few laws are actually justified this last way. What is normally at issue with a law is whether it was really not pretextually enacted in pursuance of a just police power, which requires some realistic assessment of fit between means and ends. It’s usually health and safety.

 

      Before closing, I need to distinguish this traditional approach to the due process of law from the modern doctrine of substantive due process. Post-New Deal substantive due process puts the onus on judges to identify substantive rights — that’s why it’s called substantive due process — which are then protected by super-duper scrutiny, or whatever.

 

[Laughter]

 

      Super-duper is close enough. That legislation will rarely pass. In contrast, the traditional pre-New Deal review of statutes for arbitrariness puts the onus on judges to examine the substance of statutes. So there is a substantive dimension of due process as well, but not substantive rights, but the substance of statutes to ensure that they are within the proper scope or limit of legislative powers.

 

      Which returns me, now, to my hypothetical statute authorizing a state government to take away our children to be raised collectively. Without doubt, such a statute restricts the background natural rights retained by the people. There’s just no doubt that we all have that right in the state of nature. So we must then ask whether such a restriction is within the proper or just police power of a state. Now, this is an easy case for a police power theory that is limited to protecting the rights of each citizen from infringements by others. The clear answer to this question is no. This hypothetical is more challenging for a theory that empowers the state to mandate the morality of its citizens, but I won’t explore that any further.

 

      Now, as it happens, in the 2000 case of Troxel v. Granville, the Supreme Court, by a vote of 6-3, found that there was a constitutional right to raise one’s child as one sees fit. Justice Thomas sided with the majority and even concurred to contend that the Court should protect that right with strict scrutiny.

 

      Justice Scalia dissented. In his dissent, he conceded that, “In my view, the right of parents to direct the upbringing of their children is among the inalienable rights with which the Declaration of Independence proclaims all men are endowed by their Creator.” And in my view, that right is also among the other rights retained by the people which the Ninth Amendment says the Constitution’s enumeration of rights shall not be construed to deny or disparage. So far, so good. But he then contended that, “The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts, and the Constitution’s refusal to deny or disparage other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they may be and to enforce the judge’s list against laws duly enacted by the people.” And hence, his dissent.

 

      Now, in my view, Justice Scalia was half right, and he was half wrong. And at least on this day, Justice Thomas was the better originalist. Thanks.

 

[Applause]

 

Hon. Kevin Newsom:  Randy, thank you so much. And now, to Professor McConnell.

 

Hon. Michael McConnell:  Thank you. I’d like to begin by just pointing out what it is is the topic. Judge Newsom invited us to begin this way, so what are unenumerated rights? What are we talking about? All of this has to do with federal constitutional law. There are any number of rights that we have that have nothing to do with the Constitution. They may arise from common law. They may arise from federal or state statutes. They may arise from any other source.

 

      Just after the ratification of our Constitution, our Founders wrote a Bill of Rights in which they decided on particular rights, all of them coming from the British constitutional tradition, although with some important expansions and changes. But they identified a set of rights reflected in the first eight amendments of the Constitution. Those become what we call constitutional rights, and there are a few others located elsewhere in the Constitution as well. Those constitutional rights limit the power of the government, meaning Congress and the state legislatures, to pass laws that contradict those rights.

 

      And so just think about the language of the Bill of Rights. The First Amendment says, “Congress shall make no law abridging…,” and then listing certain rights. So the idea of constitutional rights is that they are judicially enforceable limitations on the legislative power of the government. And everyone at the time of the Founding understood that that list of rights in the first eight amendments, and a few of them elsewhere in the Constitution, was not an exhaustive list of the rights that Americans would have. Common law, statute, all of those other sources of rights remain entirely in place.

 

      But those other rights are not federal constitutional rights. The federal constitutional rights are the ones that they set forth, and we call them enumerated rights. And those are the ones that the federal judiciary has authority by virtue of the Constitution to enforce, even in the teeth of contrary legislation that would otherwise be within the authority of the government to enact.

 

      Now, there are -- the modern practice, though, and really from -- it’s been going on for the last 135 years. Dred Scott, I think, was the first example, but some modern substantive due process that Randy talks about as its current most important incarnation, federal judges, sometimes state judges, but especially federal judges reason as follows: “Here is a right that we think the people ought to have. We think it’s really fundamental, and we think it’s really important to dignity or to some other -- or to democratic participation, or any number of possible moral arguments. This is something we really, really think ought to be a constitutional right, and therefore, we are going to interpret it and enforce it, even in the teeth of the fact that the American people through their representatives have taken a different view.”

 

      And in many of these cases, these conclusions about rights are expressly understood by the judges themselves as being matters on which reasonable minds may differ. So we’re not talking about -- and think about examples like, well, shall I say abortion is the most important of these in our modern jurisprudence, but the rights of parents to control the upbringing of their children, self-defense, assisted suicide. There are any number of claims of rights which are not among the enumerated rights in the Constitution. And the real question that I think is before the panel is what, if any, is the authority of the courts to decide upon these rights, often contentious and maybe even in the teeth of the judgement of majorities of the American people. When can the judges do that?

 

      And I think one might look at this question from a 30,000-foot level and argue from the premises of democratic government and reach, I think, somewhat different conclusions than I think Randy sometimes reaches. But I’m not going to do that because we were asked the question, “What does originalism have to say?” And originalism is a doctrine about reading the text of the Constitution. So I propose that we look at the text of the Constitution and understand the text of the Constitution in the way it would have been understood by those who had the authority to enact it.

 

      And the principle provisions of the Constitution that have been invoked by the courts in order to engage in this practice of creating unenumerated rights in the teeth of legislative disapproval are the Due Process Clause, the Ninth Amendment, and the Privileges or Immunities Clause. We could talk about the Necessary and Proper Clause later if you wish, or even the Republican Form of Government Clause, or my favorite, which is the prohibition on titles of nobility.

 

[Laughter]

     

      That’s my least favorite. I’d kind of like to become Lord McConnell of Palo Alto, but I guess that’s not going to happen.

 

[Laughter]

 

      So beginning with due process, which has been the Supreme Court’s chosen vehicle for assertion of the right to countermand the decisions of the representatives of the people, I think I largely agree with what Randy was saying about substantive due process. Just look at the text. It says that no person “shall be deprived of life, liberty, or property,” — but it doesn’t stop there — “without due process of law.” Well, what is due process of law? I agree with Randy. The most important thing here is the “of law,” that is to say, duly enacted legislation within the enumerated powers of the government.

 

      Now, as to states, the federal Constitution does not decide what the enumerated powers of state legislatures are. It leaves that to the people of each state and their own constitutional processes. And in fact, the Tenth Amendment is explicit that unless there’s something in the U.S. Constitution to the contrary, that the powers not delegated to the United States by the Constitution nor prohibited by it to the states are left to the states.

 

      So I respectfully disagree with Randy and with Thomas Cooley and their attempt to create a limited list of police powers to which the states are confined. That’s just plainly contrary to the Tenth Amendment and, I think, to the original understanding of the Constitution. The states get to do what they want unless there is something in the United States Constitution to the contrary. Now, actually, there may be state constitutional problems. There may be all kinds of other legal problems with the things that state legislatures might do, but it doesn’t violate the U.S. Constitution unless it violates the U.S. Constitution.

 

      So, “of law” -- now, at the federal level, I agree with Randy that it’s very important to look to whether the power has been enumerated to the Congress. So there has to be a duly enacted law and that law must be enforced through process, which is to say through a neutral arbiter. Traditionally, this meant juries and courts. We can argue over whether other neutral arbiters like ALJs and so forth can provide due process. That would be an interesting debate.

 

      But the basic idea here is due process protects everyone’s right to be able to exercise natural liberty except when there has been a law duly passed and properly enforced. It does not give courts the right to say that there’s some liberties that can’t be infringed even with due process of law. It just doesn’t say that, and no one ever thought that it did, that it meant that until quite late in the 1870s, I think, at the earliest, unless we want to go back to Dred Scott, which is the first case that holds that. So due process, I think, is really a non-starter, even though that is the Supreme Court’s chosen vehicle.

 

      Now, I think the Ninth Amendment and the Privileges or Immunities Clauses are much more promising sources for finding some authority in the federal courts to countermand legislatures, but I think that even giving them a generous -- right now, I’m going to give them a generous interpretation. Let me tell you, even my generous interpretation could be refuted. I don’t think there’s anybody on this panel who’s going to defend the old Robert Bork-style judicial restraint objection, so that doesn’t mean there aren’t arguments against this.

 

      But giving them a generous interpretation, this is what -- the Ninth Amendment and the Fourteenth Amendment are quite different. Ninth Amendment is addressed to the federal government, and it comes out of our tradition of natural rights. The Privileges or Immunities Clause is directed at the state governments, and it comes out of -- it does have a natural law backdrop, but it principally comes out of the nationalizing project of the Civil War, the conclusion that state governments, and think now the Southern states, the state governments were not a responsible protector of the rights of the citizens. So it is part of a project of making rights into a national matter rather than predominantly of a state matter.

 

      So the Ninth Amendment tells us that the enumeration in the Constitution of certain rights, think now, they’ve just added the Bill of Rights. This is part of it, so the fact that we have enumerated all these rights in the first eight amendments “shall not be construed to deny or disparage others retained by the people.” Now, first of all, what are these rights that are retained by the people? Any number of sources of rights. This is where I begin. Could be statutes, could be common law. It could be natural law, even. I believe it is, although there can be an argument about that. But the rights retained by the people are rights that already have prior to the Constitution.

 

      These are not positive law rights created by the government. These are retained natural rights. I agree with Randy. He calls them liberty rights. Isaiah Berlin calls them negative rights. It is not possible to construe the Ninth Amendment to create such things as, say, welfare rights or, this is very controversial, but a right to marry is not a natural right. It is a positive right, and it cannot be addressed -- logically, is not addressed by the Ninth Amendment. So we’re thinking of retained natural rights.

 

      Now, in the Lockean natural rights tradition, natural rights were not trumps. They are not the sort of thing that necessarily overwhelm a properly elected statute. You heard Randy reading you from Corfield v. Coryell, and I don’t think he emphasized this language, but after listing what the natural rights are, it basically says unless the legislatures have passed laws within their powers to restrain them. So the natural rights tradition is kind of like common law in that these are rights we have that aren’t written down, but the legislature -- they’re background rights or default rights in the absence of legislative acts.

 

      And so what does the Ninth Amendment tell us that the Bill of Rights doesn’t do? It doesn’t deny -- it shall not deny or disparage these other rights that are retained by the people. Note that it does not say that they become federally enforceable constitutional rights. That isn’t what they were the day before the Bill of Rights was enacted. And the Ninth Amendment tells us they have exactly the same status after the Bill of Rights that they had before. They’re not going to be denied or disparaged. In other words, they’re being held harmless. They’re going to be the same.

 

      Now, how are these enforced? This is a very big topic on which I think Randy and I don’t actually disagree very much. But in the pre-constitutional tradition when there were no enumerated constitutional rights, natural rights could be invoked in court, and courts paid attention to them, but through what we might call Blackstonean equitable interpretation. That is, Blackstone and some of the early American judges would say, “Here’s a natural right. We are not going to assume that broad language in statutes not directed to that right are intended to abrogate a natural right.” So it’s basically something like a clear statement rule for the abrogation of natural rights.

 

      And on this side of the Atlantic, a great example of this is the 1785 decision in Rutgers v. Waddington in which Alexander Hamilton was a lawyer for the plaintiff. And essentially, what the judge there says is when you have a natural right that we are going to construe the state law narrowly in order not to overturn it. But if the state’s legislature, the legislative authority, the representatives of the people specifically and intentionally abrogate the right, well, in the end, natural rights don’t survive that kind of an enactment. And in the end, there’s legislative supremacy with respect to natural rights.

 

      Well, what about the Privileges or Immunities Clause? So this says that no state shall make or enforce any law that abridges the privileges or immunities of citizens of the United States. I agree basically with Randy’s construction of this. The authors of the Fourteenth Amendment certainly referred back to Corfield v. Coryell and another small handful of antebellum cases.

 

      And so what were the privileges and immunities? And there was a list. It isn’t a complete list. This is not exclusive. But it’s also the rights that are listed in the Civil Rights Act of 1866. They are essentially the rights to have, own, use, sell property. So property rights. The right to enter into contracts. So property rights, contract rights. The right to the protection of the laws for the protection of persons, so basically tort law rights. The right to sue and be sued, so civil -- it’s basically the first year law school curriculum. And the right to have the same criminal law applied to you as applied to…

 

      Now, Corfield v. Coryell was about discrimination against out-of-staters. It was about what rights a citizen of Massachusetts would have when in South Carolina. A citizen of Massachusetts is not to be treated like an alien. When you’re in South Carolina, you have the right to buy property. You can enter into contracts. You’re subject to the same tort law. That’s what the Privileges and Immunities Clause of Article IV was all about.

 

      Now, what does it mean when in the Fourteenth Amendment we now say that no state may abrogate, may abridge the privileges and immunities of citizens of the United States? All of those Corfield v. Coryell rights are actually common law rights that we understand as arising from state law. What does it mean to say that they become privileges and immunities of citizens of the United States? Legal historians differ about this. My personal view, though, is that the only way all of this really makes sense is to say that the framers of the Fourteenth Amendment understood that certain of these rights are actually common among the country as a whole. So we have certain things like the right to contract and property and so forth, and that they become a common heritage of the country as a whole. And what the Privileges and Immunities Clause says is that states cannot discriminate among their citizens in withholding certain of those rights.

 

      So we’re really thinking here of the Friedman and the aftermath of the Thirteenth Amendment. The Black Codes of the South, which were the particular target of the Fourteenth Amendment essentially tried to come as close as possible to recreating the conditions of slavery by saying that persons of African descent may not own property, fully exercise contracts, they’re subject to different criminal laws, etc., etc. The Privileges and Immunities Clause says no, as to these sets of common rights that are now commonly accepted across the country, the states can’t single out some of their citizens and say that they can’t have them.

 

      Now, what does this mean for us today as a source of unenumerated rights for federal judges to overturn legislatures? I think it may give the -- it gives some color to claims of deeply embedded, widespread rights so that a right which has been recognized for a considerable period of time essentially on an almost national basis becomes a nationally recognized right. Griswold v. Connecticut doesn’t mention, doesn’t rely on the Privileges or Immunities Clause, but it should have. In that case, Connecticut was actually the last, the only state in the union that still forbade the use of contraceptives by married couples. And so if every state has now recognized this as a right, the reasoning in Justice Harlan’s concurring opinion comes very close to saying that’s become a privilege or immunity of citizens.

 

      What it does not give the Court the authority to do, in my opinion, is to create new rights in the face of consensus to the contrary. So look at, say, dare I talk about Roe v. Wade? I can no longer be impeached, so --

 

[Laughter]

 

      -- although my tenure might be at stake for saying something as radical as this. But at the time of Roe v. Wade, at least 45 and arguably 49 of the states rejected the idea of abortion on demand. So when the Court recognized that unenumerated right, it was not enforcing a national longstanding consensus such as might be supported by the Privileges or Immunities Clause. Instead, the Court was imposing its highly questionable will on a highly contentious moral issue about which we Americans disagree, and saying that, “Representative government has to give way to our opinion. Why? Because our opinion is right.” And that, I think, is not within the original meaning of the Privileges or Immunities Clause. Thank you.

 

[Applause]

 

Hon. Kevin Newsom:  All right, Michael. Thank you very much. And next up, Jamal.

 

Prof. Jamal Greene:  Thank you. Thank you for having me. It’s always hard to follow Lord Michael of Palo Alto, but I’ll do my best.

 

[Laughter]

 

      So to the degree the question we’re being asked to think about here is whether the original meaning of the Constitution protects fundamental unenumerated rights, I think there is a fairly straightforward answer to that question. I agree with Randy and, to some degree, Michael as well that the Privileges or Immunities Clause of the Fourteenth Amendment protects the civil rights of citizens. That includes, as we’ve heard, the common law rights, first year curriculum rights, the right to sue and be sued, the right to appear as a witness in court, the right to own and convey property, the right to enter into and enforce contracts.

 

      I would include among those something that isn’t a first year curriculum right, which is Randy’s right to direct the upbringing of one’s child. I think that if South Carolina had denied that right only to citizens of Massachusetts prior to the Fourteenth Amendment, that would be a violation of the Article IV Privileges or Immunities Clause. I took Michael to disagree with that, so there’s a little bit of disagreement, but I think there’s a great deal of evidence that the framers and ratifiers of the Fourteenth Amendment would have understood those rights -- or it’s a little bit hard to specify them, but some set of those rights as substantively protected against state infringement, at least without any good justification. There are enumerated in the sense that they are sourced in a constitutional text, but they’re not specified.

 

      Now, of course, rights to contract are not the rights that the current Supreme Court treats as fundamental. And so the question for the panel might more interestingly be whether there’s a right to abortion or birth control or marriage or sexual privacy or a right against forced sterilization, let’s say, to be found within the Constitution’s original meaning. I think the answer to that question might well be yes. I’m not going to dwell on it very much unless people want to, but I think the answer to that might well be yes. I think there’s a decent argument that, taken together, the Citizenship Clause, the Privileges or Immunities Clause, and the Equal Protection Clause give or protect equal access of citizens to certain important rights, and that those rights were left unspecified precisely because to specify them was difficult, unknown, left for downstream adjudicators in their wisdom and judgement.

 

      I think that the right to equality and the right to liberty are not so easy to separate in a kind of hermetically sealed way as we sometimes believe. And so there’s a lot of ways in which thinking about equality rights blends into thinking about liberty rights. I think that’s probably the more sensible way to approach something like abortion rights. The other thing I’ll say is that there are, I think, certain individual rights that can be implied from the constitutional structure. Again, I’m not going to dwell on that either, but the right to vote is not specifically enumerated but I think is protected via the constitutional structure.

 

      What I want to spend the bulk of my time on, actually, is a somewhat less straightforward, I think, less obvious proposition, namely that -- and I want to talk about the Ninth Amendment as Randy did and as Michael did. But I want to think about it as a repository for entirely unenumerated constitutional rights that are protected by state and local representative institutions, which is to say rights protected through law as opposed to rights that are fundamentally individual or natural rights.

 

      As Randy indicated, the Ninth Amendment, I think, is a fairly direct statement in the Constitution that it should not be read to protect only enumerated rights. What I want to emphasize, though, is that the rights retained by the people as the Ninth Amendment specifies are not just some kind of free-floating set of rights waiting to be discovered by federal judges, but neither are they just an ink blot, as Judge Bork said at his confirmation hearing. Rather, the way in which the people recognize and develop rights is through state and local representative institutions. Those are state and local legislatures. Those are juries, fundamentally. Those are the militia. Those are state and local churches, which would have been understood as places for public deliberation.

 

      I see the Ninth Amendment primarily, though not necessarily exclusively as shielding the rights protected by and through these state and local institutions from undue federal interference, and that includes undue interference by federal judges. And the way I get there is by looking at the full context of the Bill of Rights. We often think of the Bill of Rights as embodying a commitment to individual liberty, as against the federal government. On this view, the protected rights are individual entitlements to thwart the will of democratic majorities who would otherwise get their way. Judges are therefore needed on this view to defend rights because the judges are insulated from majoritarian politics, but that’s a very modern view of how we think about rights.

 

      The Bill of Rights was not inspired by that vision and doesn’t take that form. The Bill of Rights was placed in the Constitution not to protect individual rights as such, but to limit federal power. And limiting federal power meant the preservation of existing state and local representative institutions which were modes of governance, legislatures and juries again, primarily. But they were not inconsistent with that, the very institutions through which citizens protect their rights.

 

      So for example, the First Amendment’s speech provision originally protects against prior restraints but not necessarily against subsequent liability for harmful speech. Why would you make that distinction? You would make that distinction because juries are a vital protection against liability for alleged harmful speech, but those can be abated through a licensing scheme or a prior restraint. The Establishment Clause protects against federal interference with established state churches at a time when, in much of the country, again, churches were important sites for public deliberation.

 

      The Second Amendment protects the militia, an important mode of local policing from federal regulation. The Third Amendment preserves the primacy of the militia by denying the quartering of federal troops. The militia, of course, didn’t need to be quartered because it was a local institution constituted by local individuals, and so that part helps to guard against a standing federal army.

 

      The Fourth Amendment protects against unlawful searches and seizures by placing a local governing institution, that is, the jury, which can decide reasonableness, in between the feds and individuals. When a jury is not present, as in a situation in which federal officials are trying to obtain a warrant, the substantive standard is increased, not decreased, increased from reasonableness to probable cause.

 

      The Fifth Amendment — you see the pattern here — but the Fifth Amendment requires a grand jury and federal indictments, so that protects juries directly. It requires just compensation for a federal taking, which should ordinarily be a jury question, per the Seventh Amendment should be a jury question. It protects the jury’s verdict through double jeopardy. The self-incrimination clause protects against prosecutors circumventing the jury’s fact finding role through coerced confessions. The Sixth and Seventh Amendments protect juries quite directly in criminal and civil cases, respectively. The Eighth Amendment ensures that the sentence is supported by the jury’s verdict and not added to in some sense by federal judges. The Tenth Amendment directly protects the reserve powers of states.

 

      I go through this list to show just how pervasive the theme is, which is that the Bill of Rights protects rights indirectly by allowing them to reside within local, legislative, and adjudicative institutions. It’s directed towards making sure that outsiders do not circumvent those local, inside institutional processes of rights elaboration. Those local institutional processes were the ones to which the founding generation entrusted rights. What this means is that one significant place to look in determining what specific rights the Ninth Amendment protects is those rights that are embedded within state and local institutions.

 

      It also means that in thinking about how far those rights go, it makes sense to take seriously what it means for rights to be recognized, developed, and elaborated through a political process rather than through a process of legal interpretation, which is to say that they’re virtually never absolute but are constantly subject to the police power of the community. That’s the way in which local institutions typically protect rights.

 

      And so I’ll just close with a very quick example of how one might operationalize the institutional view of the Ninth Amendment that I’m suggesting, which is Lochner v. New York. On the institutional view, the one that I’ve just tired to defend, Lochner’s problem is not that the majority invented rights to contract. I think there’s plenty of reason to think the Constitution does, in fact, protect rights to contract. Rather, the problem with the Lochner Court was that it gave insufficient weight to the labor rights that were protected through state law. The Ninth Amendment gives some protection to those rights. Not absolute protection, but some protection to those rights, even protection from federal judges who might wish to interfere with them by protecting rights to contract too robustly.

 

[Applause]

 

Hon. Kevin Newsom:  Thank you. All right, so we’re going to wrap up the initial presentations with Gary Lawson. And just to forecast a bit, we’re at 10:10. We’ve got to wrap up here at about 10:40. So when Gary’s done, we might have a little bit of rebuttal up here, but I want you to be thinking about questions that you may have for these guys, most importantly. So Gary, finish us up.

 

Prof. Gary Lawson:  All right. I’m going to come at this topic indirectly, or as you might say, come at it Yale.

 

[Laughter]

 

      So I’m going to start with a much more basic question. Does the Constitution contain unenumerated anythings? And the answer is obviously yes. It contains lots of unenumerated things. Here are a few examples. There are interpretative principles that unenumerated but that are clearly part of the Constitution. There is no clause in the Constitution that says, “Read me in English.” But of course, you should be reading the Constitution in English. And if there was a clause, you would have infinite regressive clauses because you’d need to read that one. And it’s actually even more specific than that. As John McGinnis and Mike Rappaport point out in a very important article just published last year, what the Constitution really says, unenumeratedly, is, “Read me in a dialect of English that you might call legal English.” Very, very important unenumerated idea.

 

      Here’s another one. “Read me seriously and not sarcastically.” “Congress shall make no law abridging…” Yeah, like we really mean that.

 

[Laughter]

 

      There’s no anti-sarcasm clause in the constitution, and again, there would be an infinite regress if there was. That’s an unenumerated principle that’s really quite important. If you don’t have that notion that you’re reading the Constitution seriously and not sarcastically, you’re going to get very, very different results. And there are contexts in which you would read documents sarcastically. If the Constitution was a poem by some beat hippie or something, you might well want to read it -- if it was written by Monty Python’s Flying Circus, you might well want to read it sarcastically. So these sound trivial, but these are all unenumerated ideas that are essential to and part of the Constitution.

     

      Well, the Constitution isn’t a poem and it wasn’t written by Monty Python. What is it? Well, it says it’s “this Constitution,” but as Douglas Adams would say, “Yes, but what exactly is it?” And Stephanie actually pointed out the answer. The Constitution is a kind of fiduciary or agency instrument. Is there a clause that says so? No. There were state constitutions of the time, by the way, that had clauses that said that that’s what they were. The U.S. Constitution doesn’t have an express clause that says it, but it’s certainly implicit to the point where it’s a fair judgement to say that’s part of what the Constitution is. That’s an unenumerated idea, but as I’ll explain as I go, essential to answering the rest of the questions.

 

      “Well, okay,” you might say. “That’s all cheating. We’re not really talking about interpretative principles and reading the Constitution in English. What about the powers and rights, the stuff?” Okay, well, let’s start with unenumerated powers. Does the Constitution contain unenumerated powers? Well, actually, it kind of does. Once you’ve acknowledged, as I think one can acknowledge, the Constitution is a kind of fiduciary or agency instrument, as Stephanie mentioned. Standard 18th century agency law said when you grant agents powers, ordinarily, there are incidental powers that flow from the express grants.

 

      Now, that inference can be overcome by a specific clause in the instrument that says otherwise, as the Articles of Confederation did. The Articles of Confederation contained a clause that expressly excluded incidental powers. The U.S. Constitution doesn’t. Well, it sort of, kind of does. Congress as an institution can’t claim unenumerated incidental powers because there is a specific clause dealing with Congress’s incidental powers. That’s the Necessary and Proper Clause. That’s what that clause is. It’s a codification and therefore a definition and cabining of Congress’s incidental powers. So Congress’s incidental powers are enumerated, not unenumerated.

 

      What about the President and the federal courts? They don’t have Necessary and Proper Clauses cabining and defining their incidental powers. Are there things that are incidental to and therefore exist even though unenumerated to the executive and judicial power? Again, I think the answer has to be yes. I don't know if Jim Pfander and/or Amy Coney Barrett are out there because there are lights glaring in my face and I can’t see any of you, but if they are, they, along with others like Robert Pushaw have written very important work talking about the incidental powers of federal courts, what things go along with the judicial power as a necessary incident. So yeah, absolutely, there can be unenumerated powers of federal institutions.

 

      What about unenumerated powers of the United States as an entity? And here, the starting point is that there are no enumerated powers of the United States as an entity. Every single grant of power in the United States Constitution is to some specific institution or actor. There is no clause in the Constitution, none, zero, zilch, that grants power to the national government or the federal government as an undifferentiated entity.

 

      So are there any unenumerated powers of the national government as an undifferentiated entity? Well, again, the answer, I think, is yes. Not the ones that the Supreme Court has made up over the last 150 years. There was  period of about half a century from roughly 1870 into the 1920s and ‘30s when the Court got very fond of a kind of reasoning that went, “All self-respecting governments can do X. The United States is a self-respecting government; therefore, the United States can do X.”

 

      That’s a lousy kind of reasoning, given the nature of the U.S. Constitution, but that’s the kind of reasoning that gave implied powers, ranging from dubious to ludicrous, of such things as federal power of eminent domain, not recognized till the mid-1870s, by the way; federal power over immigration -- there is no enumerated federal power over immigration; power over Indian affairs other than commerce with the Indian tribes; the military draft. This kind of reasoning infused cases from Missouri v. Holland to Curtiss-Wright. There’s lots of stuff that case law from the last century and a half recognizes as unenumerated powers of the federal government.

 

      I think all that is nonsense, but there are some, not many, tiny, small, but some unenumerated powers of the federal government stemming from the federal government’s character as a corporation. And by corporation, we mean an 18th century corporation, not a mid-19th century, post-general incorporation statute corporation because all government entities were corporations in the 18th century. And there are certain things that just go with corporate status, certain things you can do just by virtue of being a corporation, even if they aren’t enumerated. The right to sue and be sued. The right to have a seal. There’s no clause in the Constitution that says the United States government can have a seal, but it can have a seal because it’s a corporation. Power to hold property. The United States as an entity held property before there was a constitution. Who held the Northwest Territory before there was a constitution? It was the United States as an entity.

 

      So yeah, there are certain powers that are unenumerated that belong to the United States as an entity. They’re not a whole lot, not a big deal, but they’re absolutely there. So conceptually, they’re asking, well, are there also unenumerated rights? Well, that should not be an odd notion. Unenumerated principles of interpretation, unenumerated powers, unenumerated rights is not an odd notion.

 

      Okay, so now we get to the main event. Are there unenumerated rights, and if so, what are they? Well, again, I think the answer is yes, but they’re not necessarily what people think. And let’s start with the observation, and this has come out. Jamal pointed it out. I think several other people did as well. The places that people normally look for unenumerated rights are not actually unenumerated. They’re enumerated. The Due Process of Law Clauses, those are enumerations. The Privileges or Immunities Clause, that’s an enumeration. The Ninth Amendment, that’s an enumeration. All the stuff Randy was reading, those are enumerations.

 

      Now, there are all sorts of nasty questions about what exactly they enumerate, but those are, I would submit, ordinary questions of interpretation. Those are the sorts of things that original interpretation is designed to do. What I want to focus on is whether there are unenumerated rights that don’t depend on how the debates between Mike McConnell and Randy Barnett come out, that don’t depend upon how you wind up interpreting the enumerated provisions that don’t necessarily spell out in crisp detail what the rights are.

 

      And I think there are some of those as well. Again, they’re not enormous, but they’re actually quite important. And Stephanie hit on this one as well. Once you recognize the Constitution as an agency or fiduciary instrument, there are certain duties, obligations of agents that were standard, part of the background in 18th century agency law, as they are today. Again, those duties can always be cancelled, modified, enhanced, whatever, by the instrument, but they’re there as a background rule. The duty of personal exercise of discretionary authority; that is, by the way, where the constitutional principle against sub-delegation really comes from. Duty of loyalty, duty of care, what Stephanie talked about. Absolutely, there is a background rule of duty of care for any agent. Does that correspond to what we might call substantive due process? Well, it corresponds analogous to it.

 

      It’s different from substantive due process in three important respects. Number one, it doesn’t come from a clause, so it’s not an interpretation or misinterpretation of the Due Process of Law Clause. It doesn’t apply just to Congress. It applies to all federal actors, including the President and the federal courts. And the standard baseline 18th century standard of care was a whole lot stricter than rational basis. It was looser than negligence. There’s a classic 18th century English case that talks about supine negligence as the standard, and that’s probably right. But what that means is that all the grants of power to federal agents as agents come with an implicit unenumerated coda, “Oh, for heaven’s sake, be reasonable.” And if you want to go around calling that substantive due process, it’s not because it’s not due process of law. But that’s basically right, so am I saying as an original matter something like substantive due process is correct? I think it is. Sorry.

 

      There’s another one that’s just as important. What happens when an agent represents multiple principles? Lots of circumstances where that could happen. You could go off with a ship full of stuff from several different merchants, and there’s a storm, and you’ve got to toss a bunch of the cargo overboard. Whose cargo gets tossed? Or you’re administering an estate, or you’re exercising a power of appointment to dole out the estate to the kids or the grandkids. How do you do that? Well, again, the background norm in 18th century agency law was that when you’re dealing with multiple principals, you have to treat the multiple principals fairly; not necessarily equally, but fairly.

 

      All of the federal agents represent multiple principals, like several hundred million of them. So does that mean that federal agents have what we might call analogously an obligation of federal equal protection? Well, again, I think the answer is yes, not because there is an Equal Protection Clause. There isn’t. Not because the Fourteenth Amendment Equal Protection Clause is reverse incorporated. It isn’t. But because independent of all of those clauses, the nature of the Constitution as an agency instrument carries with it, unless it’s cancelled by something else, the obligation of the agents acting to treat all of the multiple principals fairly.

 

      And if you look at the 18th century cases that are the closest to this, the powers of appointment and the administration of wills, equality serves as a starting point, as a baseline norm. But if you have good reasons for departing from that baseline norm of equality, that’s okay because the underlying norm is one of fairness, not of equality, which means a strict, unconditional rule of federal colorblindness probably is not defensible as a matter of original meaning.

 

      Now, the place, as Stephanie predicted, where I part company with her is all of these unenumerated things that sound so awful and wild, and how can an originalist be saying all of this stuff, not only applies to the federal government, not because state governments are not fiduciaries and agents, they are, but because their status as fiduciary agents does not come from and is not regulated by the federal Constitution as an agency instrument. There may very well be instruments, their own state constitutions, that govern what they can do and define their powers and obligations as fiduciaries. I just don’t think the federal Constitution does that. It doesn’t do that particular work.

 

      So with respect to what the states can do, nothing that I’ve just said has any bearing on any of that. So if you were hoping that I would end with something like a grand constitutional right against the states to kill babies or marry your cat, sorry. That’s just not going to happen. But with respect to the federal government and the federal actors, and again, this is not just Congress. This is the President. This is the federal courts. This is citizens acting as grand jurors as a federal institution. All of them, I do think, have unenumerated obligations which correspond to unenumerated rights of the principals, the people against whom they are exercising power that look suspiciously like fairly rigorous applications of what today we doctrinally call substantive due process and federal equal protection.

 

      And if that doesn’t generate something, I don't know what will. So I’ll stop there.

 

[Applause]

 

Hon. Kevin Newsom:  All right. So because by my watch we have about 12 minutes left, what I’d like to do is cue up the microphones. Unless there is rebuttal that’s just burning a hole in the side of someone’s mouth, I’d like to hear from you. So if you have questions, please queue up at the microphones. Let’s start over here. And again, as Gary said, I can barely see you, but I know you’re out there.

 

Roger Pilon:  Okay. Thank you, Judge Newsom. Michael, Roger Pilon here at the Cato Institute.

 

Hon. Michael McConnell:  What would a FedSoc convention be without Roger asking me a question?

 

[Laughter]

 

Roger Pilon:  Well, thank you. I would like to go after your misreading of the Privileges or Immunities Clause, but rather than do that, I’m going to pose a question of a higher order, namely that in your wide ranging discussion, you tried to distance yourself from Robert Bork as, for example, when you said that judges should -- they may have to do some enforcement of some enumerated rights like those that are deeply rooted in the nation’s tradition, alluding, therefore, to Glucksberg.

 

      Well, the problem that I have with your argument is that at the end of the day, you’re privileging majoritarian democracy over individual liberty. And that means that your view is essentially like Bork’s, no different from the post-New Deal majoritarian liberals. And so I wonder how you square that with a Constitution that was designed to skewer individual liberty rather than privilege majoritarian democracy.

 

Hon. Michael McConnell:  So individual liberty. If one person has a right, someone else is going to suffer as a result of that. If there’s an abortion right, there’s an unborn child who is going to suffer from that. If there is an absolute right of parents to control the upbringing of their children, there are going to be children who are going to suffer neglect and so forth.

 

      So the question is how do we balance these various rights? And I do not see it as state versus individual rights. I see it as judges making their own moral judgements as opposed to the people of the United States making a collective moral judgement. And as to them, I hate to be disloyal to my former tribe, but I’ll trust the American people any day.

 

      And I also think that that’s what the Constitution does. So the Constitution gives the government certain powers, and then it limits their powers in particular ways, but those particular ways were put in there through a superdemocratic process. And I’m not willing to say that an unelected group of people who are not representative of the American people in any way get to have the final word on all these things.

 

[Applause]

 

Prof. Randy Barnett:  Kevin?

 

Hon. Kevin Newsom:  Yeah?

 

Prof. Randy Barnett:  Actually, I haven’t been heard from for like over an hour.

 

[Laughter]

 

      Let me just -- I think that’s a little too facile. As we heard last night from Attorney General Barr, we had a government that was set up because parliamentary supremacy was not accepted here. The founders did not equate the people of the United States with their legislatures and government. Those are two different entities. And just to equate one with the other is the post-New Deal way of looking at things — it’s also pre-New Deal as well — that I think just goes too fast. You have to ask yourself what were these delegated sub-assemblies? What are the checks and balances upon them? Last night, we heard about the Executive Branch being a check. All of these agencies should be limited, including the judiciary, but it’s just too quick to say oh, well, we trust the people. Yeah, you may trust the people, but do you trust the legislatures, who are not the same as the people?

 

      One more thing. I just want to stress the degree to which Mike and I actually agree about most of these things. There’s been a sea change in the way conservative legal movement have considered the due process of law since I started with The Federalist Society years ago. It used to be that the due process of law was thought to be satisfied as long as a statute -- the “of law” part of the due process of law was satisfied as long as the statute was a duly enacted law by a state legislature. You had to be passed by the requisite majority and signed by the governor. That’s the due process of law. You might call it the due process of legislation.

 

      But there is an increasing consensus among constitutional scholars, including Mike and his co-author Nathan Chapman and myself, that “of law” does more work than that. They have a separation of powers theory of what work that “of law” part does, and I think that they’re right in many cases that they talk about that, but there’s more to it than that. Mike says that this idea that you would go beyond a separation of powers view to view what “of law” was something that was invented in the late 19th century. There are earlier cases which in their articles they dismiss as outliers, but I think they were unusual but not necessarily outliers.

 

      The final thing I will say because I have a limit — I have a lot more to say — the final thing I’ll say is that Mike started his talk -- this is one of the areas where we do disagree, I think, but I don’t think it makes that much difference, is that he distinguished between federal constitutional rights and natural rights or background rights. And he said that those are the ones that get put in the Constitution. Well, if that were the case, that would mean that for two years, there was not Constitutional right of freedom of speech in this country until the First Amendment was enacted. And if that were the case, you would think the enactment of the First Amendment was a really big deal that everyone would say, “Oh, we need this amendment because we don’t have such a constitutional right.” And then after they got it, they’d celebrate. “We’ve got this constitutional right we didn’t have before.”

 

      As far as I know, no one said anything like that. No one said anything like that. The only complaints about the First Amendment and the rest of the amendments by such legislatures as Virginia’s, they didn’t go far enough. They didn’t protect the rights of states the way the anti-federalists had wanted. They merely protect individual rights, which are already protected. And so if there had been that big distinction between constitutional rights which are enforceable and mere natural rights which are not, the enactment of the first ten amendments would have been huge. It was not huge. I don’t think that that’s right.

 

       I do think, at the end of the day, when my co-author Evan Bernick and I do cash out how you discover the privileges or immunities of a citizen of the United States, you’re going to find we do something very similar to what Mike recommends at the end of his talk where he talks about certain rights that are common in the country as a whole. And the only difference would be he would limit the protection of those common to the whole rights to discrimination, and we think those rights historically were protected absolutely as well as from against discrimination.

 

Prof. Gary Lawson:  Yeah, one quick thought. If I hadn’t given the talk that I did, the talk that I gave would have been a thought experiment which says imagine which laws on December 14, 1791, would have been constitutional that would have become unconstitutional the next day when the Bill of Rights was ratified. And it turns out, it’s a fairly thin list.

 

Hon. Kevin Newsom:  All right, let’s see if we can get at least one more. Over here.

 

Questioner 2:  As was alluded to early in the talk, there are a number of states that have versions of the Ninth Amendment in their own state constitutions. And these are 33 if you add them all up. They were enacted all the way from 1819 to 1970 is the most latest one. There’s also these things that Professor Calabresi calls Lockean natural rights guarantees that take language straight out of George Mason’s draft of the Virginia Constitution, and they’ve been enacted in various times. If you put these two together, there’s over 40 state constitutions that have pretty explicit protection of unenumerated rights.

 

      So not that this changes our understanding of the U.S. Constitution, its text, but does this show that across the ages, Americans have been quite comfortable with unenumerated rights? They put them on their own state constitutions when they have conventions. Does that show that interpreting the Ninth Amendment, the Due Process Clause, the Privileges or Immunities Clause to protect unenumerated rights isn’t an off-the-wall idea, it’s actually something that Americans are quite comfortable with?

 

Hon. Kevin Newsom:  Stephanie, I was wondering if you might start with that since you and Gary have this disagreement about the fiduciary nature of the federal Constitution vis-à-vis the states?

 

Prof. Stephanie Barclay:  Sure. So thanks for that helpful information. I think that the state constitutional things that look like the Ninth Amendment or the sort of Lockean promises you’re talking about do suggest that states took seriously -- or the people took seriously the idea that there were limitations on government power. They go to this fiduciary nature that Gary is talking about. And I think that Gary’s right that the federal Constitution creates some of that fiduciary relationship, but I also think some of that is inherent in the fact that the people inherited sovereignty in the United States, and so that creates limits with their relationship with government at both the state and federal level.

 

      And I think that you’re right that the fact that some of these guarantees are in the state constitutions suggests that there was more widespread understanding about that. How you mechanize that, what the actual remedies are about that, I think that’s a separate question, but I’d love to hear Gary’s thoughts as well.

 

Hon. Michael McConnell:  It’s important to remember that most state constitutions did not enumerate powers in the way the federal does either, and so you have both unenumerated powers and unenumerated rights, and much of this is understood to be directed to the legislature and not to be judicially enforceable.

 

Prof. Gary Lawson:  And with respect to the states, the problem is that the Constitution as a legal instrument does not take those fiduciary norms and make them legal with respect to the states. It doesn’t mean they aren’t fiduciaries. It doesn’t mean that there aren’t legal fiduciary norms. It’s just whether this particular legal instrument is a source of those norms. And I think with respect to the states, the answer is no.

 

Hon. Kevin Newsom:  Jamal, do you have anything on this before we wrap up?

 

Prof. Jamal Greene:  Well, the answer is yes.

 

[Laughter]

 

Hon. Kevin Newsom:  All right. So everybody --

 

[Laughter and applause]

 

Hon. Michael McConnell:  May I speak to the necessary and proper point --

 

Hon. Kevin Newsom:  -- Yes, please. Please, please, please.

 

Hon. Michael McConnell:  -- because I think what Randy said is not a fair summary of the history here. So in that two-year period, the reason why there were not a lot of federal laws that violate anything that would be in the Bill of Rights is because of the enumeration of powers. And so we didn’t have rights -- we didn’t have federal laws about speech or press until the Alien and Sedition Acts in 1798. And that was Hamilton’s and many people’s answer to the demand for a Bill of Rights is that the federal government was so carefully limited in what it could do that natural rights wouldn’t be affected.

 

      The supporters of the Bill of Rights very effectively refuted the Hamiltonian position by pointing out the various ways in which the enumerated powers of Congress could be used in such a way that would invade these rights. George Mason, for example, talks about the collection of taxes in the port cities and maybe the tax collectors would break into merchants’ warehouses without a warrant, so we need some kind of protection against that. Freedom of the press was a favored example. And if -- they won that argument. The supporters of the Bill of Rights won the argument for a Bill of Rights, and the reason they won is that the word proper did not, nobody thought it did, protect these rights. We needed a Bill of Rights precisely because there was no such protection.

 

Hon. Kevin Newsom:  All right. So I am going to make a soft promise on behalf of my panelists they might stick around for a little bit at the end here to answer follow-up questions.

 

Prof. Randy Barnett:  I actually have to get out and do a book signing, so I’m going to run out of here.

 

Hon. Kevin Newsom:  Okay, so here, look. Everybody has a boss. Even Article III judges have bosses. My boss this weekend is the Honorable Dean Reuter, wherever he is, and Dean has sworn me to stop us now because there is a teaser video that The Federalist Society would like to show you about a PBS documentary coming up called A More or Less Perfect Union. And as soon as I shut up, they’re going to cue the video so that you can watch that. And if you recognize the voice of the narrator, you’ll hear Doug Ginsburg’s voice, who’s narrating the video for  you. So please watch the video and then attend the book signings out in the great hall.

 

[Documentary trailer plays]

 

      All right, please help me thank our panel for their participation this morning.

 

[Applause]

10:45 a.m. - 11:15 a.m.
Book Signings

2019 National Lawyers Convention

Promenade
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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  • An Introduction to Constitutional Law: The 100 Supreme Court Cases Everyone Should Know by Prof. Randy E. Barnett and Prof. Josh Blackman
  • The Hidden Nazi: The Untold Story of America's Deal with the Devil by Dean A. Reuter

Speakers

11:00 a.m. - 12:30 p.m.
Originalism and Constitutional Property Rights Jurisprudence

2019 National Lawyers Convention

Topics: Environmental & Energy Law • Property Law • Environmental Law & Property Rights • Due Process • Fourteenth Amendment • Law & Economics
District Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 16, 2019, the Federalist Society's Environmental Law & Property Rights Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "Originalism and Constitutional Property Rights Jurisprudence".

Much controversy surrounds the extent to which the United States Constitution protects property rights. During the New Deal, most constitutional property rights came to hold the same low status as the liberty of contract recognized in Lochner v. New York and other economic rights recognized in substantive due process doctrines. Now, most lawyers and judges recognize that property rights are protected against federal intrusion (by the Fifth Amendment's Takings Clause) and state intrusion (by the Fifth Amendment as incorporated through the Fourteenth Amendment's Due Process Clause). Yet there are also vigorous debates about what these clauses mean and how far they sweep in protecting property rights. The 2005 decision Kelo v. City of New London reopened basic questions about what it means for a taking to be for public use. And in a concurrence in the 2017 regulatory takings case Murr v. Wisconsin, Justice Thomas opined that the Court had “never purported to ground [regulatory takings] precedents in the Constitution as it was originally understood” and called on lawyers and scholars to clarify whether regulatory takings doctrines are grounded in the Constitution’s original meaning. This session will showcase scholars on both sides of these debates: scholars who believe the Constitution does little to protect property from use- and value-destroying government actions, and scholars who believe that the Constitution does provide robust protection to property from such actions.

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Prof. Eric R. Claeys, Professor of Law, Antonin Scalia Law School, George Mason University
  • Prof. Richard Lazarus, Howard J. and Katherine W. Aibel Professor of Law, Harvard Law School
  • Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
  • Moderator: Hon. Elizabeth “Lisa” Branch, United States Court of Appeals, Eleventh Circuit

Speakers

Event Transcript

Hon. Elizabeth "Lisa" Branch:   Certainly, welcome. I'm glad all of you could join us on this Saturday morning. This is the Originalism and Property Rights session, and our panelists today will examine the extent to which the Constitution protects property rights.  The Fifth Amendment provides that private property shall not be taken for public use without just compensation. What is the original meaning of this clause, and has the Supreme Court stayed true to it?

 

      Justice O'Connor in her dissent in Kelo v. City of New London didn't think so, nor did Justice Thomas in his dissent in Murr v. Wisconsin. And today, we're going to find out what our panelists think about this issue.

 

      Let me briefly provide you with a quick overview of the format that we're going to follow today, which is pretty standard. I'm going to briefly introduce our four panelists. Each will speak for about six to eight minutes, and then they'll have a brief opportunity to respond to each other or ask each other questions. And then I'll open it up to the audience after that.

 

      Certainly, the bios are in the app and on the website, so I'm just going to hit some of the highlights to keep this brief. Our first speaker will be Professor Ilya Somin. He's a Law Professor at George Mason, and his research focuses on constitutional law and property law. And, interestingly, in 2009, he testified on property rights issues before the Senate Judiciary Committee, before Justice Sotomayor's confirmation hearings. He writes regularly for the Volokh Conspiracy blog, which I'm sure a lot of Federalist Society members are familiar with, and he previously served as co-editor of the Supreme Court Economic Review.

 

      Our second speaker will be Professor Thomas Merrill, who is a Professor at Columbia Law School. He previously taught at Northwestern Law and Yale Law School. He also served as Deputy Solicitor at the Department of Justice, and I can't even begin to list all of his writings about property rights, but you will find that in his bio.

 

      Our third speaker will be Professor Richard Lazarus. He is Professor at Harvard Law School, where he teaches environmental law, natural resources law, Supreme Court Advocacy, and torts. He has represented the United States' state and local governments and environmental groups in the Supreme Court in more than 40 cases and has presented oral arguments in 14 of those, most recently, and most interestingly for this panel, in Murr v. Wisconsin.

 

He's also filed briefs on behalf of governmental parties and many other regulatory takings cases, and he will be publishing -- this is also interesting to me and I know to my former boss Susan Dudley, who was the administrator of OIRA when this decision came down from the Supreme Court. He's publishing a book on the Supreme Court's 2007 decision in Massachusetts v. EPA. He previously worked for the Solicitor General's office, where he was assistant to the Solicitor General.

 

And last but certainly not least, Professor Eric Claeys, who is a Professor of Law at Antonin Scalia Law School. He's written widely in the fields of property law, private law, and constitutional law. And his current research interests focus on natural rights, justifications for property. His main teaching interests include property, torts, jurisprudence, and intellectual property.

 

And with that, I will now turn to Professor Somin.

 

Prof. Ilya Somin:   Thank you. I'd like to thank Federalist Society for organizing this event and all of you for coming. In my talk, I'm going to talk about the original meaning of public use, how it constrains the government in what it can take private property for, and what it might mean for today if we move closer back to that original meaning.

 

      So the Fifth Amendment indicates that the government can only take private property if it's for public use, but for over 200 years now, there has been active debate about what exactly that means. One side of the debate, what I call the narrow view of public use, says that a public use only exists if it's for a government-owned facility, such as a public road, for example, or if the property's taken for a new private owner, that private owner must have a legal duty to serve the entire public and give them access, such as with a public utility, for example.

 

      The other view, the broad view of public use, holds that virtually anything can be a public use so long as there's some potential benefit to the public. And this is the view that has been embraced by the Supreme Court in such modern decisions as Kelo v. City of New London and Berman v. Parker.

 

      In my book, "The Grasping Hand," which I'm going to draw on today, I argue for the narrow views on originalist grounds, also actually on living constitutional grounds as well, but that's perhaps for a different panel. And I think the evidence does support that position.

 

So I'll talk first about the evidence as of 1791, when the Bill of Rights was first ratified. And at that time, we have only limited information about not only public use but really almost anything having to do with the Takings Clause. It was not one of the parts of the Bill of Rights that was particularly much debated at the time. However, such evidence as we do have supports mostly the narrow view of public use.

 

If you look at some of the sources that the Founders were heavily influenced by, like Blackstone, John Locke, and others, they all drew distinctions between takings for public projects, publicly owned ones, and takings for private parties and considered the latter illegitimate and beyond the power of government.

 

If you also look at early decisions such as Calder v. Bull and Vanhorne Lessee, both written by Supreme Court justices, they also suggest the takings from one person to another are unconstitutional and impermissible. And there's a number of early state court decisions interpreting state public use clauses mostly in a narrow direction.

 

Many originalists today argue that when it comes to applying the Bill of Rights to state and local governments, and those governments reviewed a vast majority of condemnations, the right time period to look at is not 1791 but 1868. 1868, of course, is when the Fourteenth Amendment was ratified and applied the Bill of Rights to the states.

 

And for this period, we actually have a great deal of evidence. By that time, numerous states' Supreme Courts had issued decisions interpreting the meaning of public use under their State Constitutions, nearly all which have wording which are close to or identical to the federal Constitution, and a large majority of those state Supreme Courts, approximately two-thirds, actually ruled in favor of the narrow view of public use.

 

The same position was adopted overwhelmingly by the leading legal treatises of this period, which dealt with the question of public use. And in the 1860s, people didn't have things like Westlaw and Lexis, so if you wanted to look up the meaning of legal terms, these treatises were far more important at that time than they are today.

 

In addition, the narrow view of public use is much more consistent than the broad view with the reason why the Framers in the Fourteenth Amendment and others at the time wanted to incorporate the Takings Clause against the states to begin with, which is that they wanted to protect the property rights of white unionists in the South and also recently-freed African Americans. If the government can take property for virtually any reason it wants, as under the broad view of public use, then that provides very little meaningful protection for that purpose.

 

Now, I will pause now to say that there are some people who go beyond the traditional narrow versus broad view of public use debate. There are a few modern scholars, like Jed Rubenfeld from Yale and possibly Tom Merrill today. I'm not sure if he's actually going to make this argument. But just in case he is, I'm going to preempt it, that is the argument that not only does the public use clause not constrain as much as the narrow view, but it doesn't constrain takings at all. It just says if it's taken for a public use, then there must be compensation, but it doesn't say it must only be taken for a public use.

 

I think this is linguistically possible, but it's just not in accordance with the original meaning. I already mentioned the evidence to the original meaning. I will just further add that in the entire 200-year history of this debate, I'm not aware of a single legal decision, either federal or state court, that actually has taken this Jed Rubenfeld-like position. And while linguistically, I think this is a possible reading of the text, so is the view that there's an assumption there that takings must be for a public use. And that assumption is firmly embedded both in the original meaning and in the case law up to this point.

 

So what if we were to go back to the original meaning of public usage—to lay my cards on the table, I do advocate viewing—I think this would lead to the reversal of the Kelo decision, the notorious 2005 case where the Supreme Court ruled that you can take property and give it to private parties just to promote economic development. I think it would also lead to what in my mind is the much worse decision in Berman v. Parker in 1954, which is the first decision where the Supreme Court endorsed the broad view of public use. That decision authorized blight and urban renewal condemnations and led to the displacement of many hundreds of thousands of people, mostly poor and minorities, from their neighborhoods.

 

So Berman v. Parker, I like to say, is the most important terrible Supreme Court decision that even many law professors have never heard of. But they should hear of it, and we should talk about whether we really want to keep it or not. I think the answer is that it would be a good thing to get rid of because abuse of blight condemnations, while not as common today as in the 1950s and ‘60s, certainly do still do happen on a considerable extent. And they still victimize the poor and disadvantaged, as is also true for economic development takings, of the sort upheld in the Kelo case.

 

Finally, I would mention that reversal of these precedents would have implications for pipeline condemnations, which have become a big issue in recent years. In many states, it's possible to condemn property for pipelines even though the pump in a pipeline is not a common carrier or a public utility of any kind. And these takings do sometimes harm large numbers of people, cause environmental damage, and the like.

 

So I think, therefore, this is an area where the original meaning is significant. We have variance with current doctrine, but I think it's possible to at least begin to bring current doctrine more in line with the original meaning. And, overall, I think the consequences of doing so, I think, would be quite beneficial, particularly for the poor and the politically weak and those people who tend to get shafted when the government can take property for almost any reason that it wants.

 

So on that note, I conclude, but I very much look forward to the discussion. Thank you.

 

Hon. Elizabeth "Lisa" Branch:   Thank you. Professor Merrill?

 

Prof. Thomas Merrill:   Okay. So I'm going to confine my comments to the original meaning of the Fifth Amendment's Takings Clause as of 1791 when it was adopted. So Ilya alluded to this, but let me elaborate a little bit. We know very, very little about the original understanding of the Takings Clause as of 1791.

 

As a condition of ratification of the main body of the Constitution, a number of states insisted that there be a Bill of Rights added to the Constitution. And as part of that discussion, states submitted over 80 proposed amendments to the first Congress for adoption as a Bill of Rights. Not a single state proposed adopting a takings clause as part of the original Bill of Rights.

 

James Madison, who took it upon himself to be this collator and a main floor proponent of the Bill of Rights, basically added the Takings Clause on his own volition. We don't know why. It's always been a matter of considerable speculation.

 

The original text that Madison proposed was similar to the text as adopted except it included the word necessary. And for some reason, the select committee that was placed in charge of scrubbing the Madisonian list of the Bill of Rights took that word out, otherwise modestly modified the Takings Clause and some of the other provisions of the Bill of Rights, but there's no indication as to why they did that or what their thinking was.

 

The House had some public discussions about the Bill of Rights. Some provisions, like the religion clauses, were debated quite extensively. Not a single person raised any point about the Takings Clause. The Senate at that time -- it was passed, along with the other package of rights that was approved. The Senate at that time did not keep a journal so we don't know what discussions took place in the Senate. The Senate also approved the Bill of Rights, including the Takings Clause.

 

Twelve amendments were then sent to the then-fourteen states. Vermont had slipped into the Union by the time this happened. And eight of them approved the Bill of Rights, at least 10 of the Bill of Rights. There's no public discussion in any of the ratifying procedures as to what they thought the Takings Clause meant.

 

So the bottom line is that we really know very little about the Takings Clause. I think the main sources that one would look to if we were strictly confining ourselves to original meaning would be to look at the text of the Clause and also to well-understood background propositions understood at the time of the adoption of the Takings Clause.

 

So the first thing I would address is the public use requirement that Ilya mentioned -- discussed exclusively, really. Ilya gave you the 19th century living Constitution version of the public use requirement. I'm going to give you what I think is a more plausible original understanding of the public use requirement.

 

I don't deny that today, public use is understood to be a restraint or condition on the exercise of eminent domain. Every justice of the Supreme Court thinks that. They've even taken to speaking of the public use clause of the Constitution as a sub-part of the Takings Clause. But I think it's doubtful if you look just at the text of the Constitution, which is the main source of our understanding as to what the Framers understood by the meaning of the Takings Clause, that's not clear at all. In fact, it's quite doubtful.

 

So the text says, "Nor shall private property be taken for public use without just compensation." You note that the critical prohibitory word "without" occurs before "just compensation." There's no prohibitory word that occurs before "public use." The words "public use" clearly modify the word "taking," or taken. So grammatically, for public use indicates that the Takings Clause is about a sub-set of takings of private property, not all of takings of private property.

 

What else? If in fact the Framers had meant for public use to be a limitation, they would have said something like private property shall not be taken except for public use nor without just compensation, but they did not write the clause that way.

 

So what other types of takings of private property might occur besides takings for public use? Well, there's really quite a few, many of which were clearly well-established by 1791. You could take property when somebody didn't pay their taxes. You could have forfeitures of property when someone committed a crime using the property. You could take property for unpaid debts. The government could take property by having government agents commit torts that destroyed your property, and so on and so forth.

 

I think most plausibly what the plain meaning of the Constitution indicates is that the compensation requirement is restricted to a different type of taking, a taking for public use as opposed to those other types of government takings of private property.

 

So in effect, I think one could fairly say that the Framers may have anticipated or assumed that the just compensation requirement would be applicable to something called takings for public use, but they did not, by the language of the Constitution, require that as a limitation on the power of eminent domain.

 

A very common objection at this point is well: doesn't that mean that the Constitution would permit takings for private use without just compensation? And doesn't that contradict the natural rights assumption that you can't take property from A and give it to B, Calder v. Bull, a concurring opinion by Iredell and so forth.

 

A couple of possible responses to that: one, of course -- three, actually. One is that there may be some other clause in the Constitution that prohibits private takings, the due process clause, perhaps, and its substantive guise. Another might be that there's some kind of unenumerated right. We heard a big panel this morning about unenumerated rights. Maybe there's some kind of unenumerated right to prohibit takings for private use.

 

Another possibility, which intrigues me, is that the Framers may have used the words "taken for public use" because they didn't have a word to refer to compulsory acquisitions of property in which property is taken to be used as property in some other -- in the hands of some other person for some kind of affirmative purpose as opposed to being taken deferred payment of taxes or forfeiture or something of that nature.

 

The word eminent domain, which was coined by continental theorists, did not really enter into American discourse until the 1830s, so if the Framers were looking for a word that would be what we call today eminent domain, they may have not had that word ready at hand. They may have used taken for public use to be roughly synonymous to a compulsory taking or taking for eminent domain. If that's in fact what they had in mind to distinguish what they were talking about from forfeitures and taxes and things of that nature, then essentially that Takings Clause would say that any taking, public or private, requires just compensation.

 

But in any event, maybe in the mid-19th century, everyone got all excited about this narrow interpretation of public use and so forth. I do not doubt that, but that's a living Constitution argument, not an original meaning argument.

 

With respect to regulatory takings, however, I do think that the Constitution, as originally understood, can give rise to a regulatory takings doctrine. I say this for the following reason. The Framers were well aware that there was an addition to this insipid power of takings for public use. Only two states had clauses like that before the Constitution was adopted; in Northwest territories, a statute also did, but there was virtually no jurisprudence about this.

 

But in addition to authorizing or saying that takings for public use required just compensation, the Framers were surely aware that the right to regulate public nuisances was well-established. It had been around since the 15th century. And it was well-established that when you regulate something as a public nuisance, you're not required to make just compensation.

 

So you have these two understandings: the new understanding that you had to pay just compensation for public use takings and the well-established understanding, you didn't have to pay compensation for public nuisances – what, then in the 19th century, quickly became called the police power.

 

So I don't think that there was probably any discussion or even explicit deliberation about how these two settled under these two understandings—one new, the other old and settled—would be accommodated with each other, but if they gave any thought to this at all, or I think logic would require, that you couldn't have one swallow up the other.

 

You couldn't have the just compensation requirement be interpreted so broadly that every sort of taking of private property by state action would required compensation. We have forfeitures and taxes and so forth. Nor, on the other hand, could you have the public nuisance idea, which becomes the police power, construed so broadly that the government could just label it a police power exercise and not have to pay just compensation.

 

What you would logically want to have is some kind of boundary maintenance provision or some kind of anti-circumvention provision that would say that the government can't use the word public nuisance or police power in order to evade its responsibility to compensate when in fact it should be paying compensation. So you'd have to have some kind of substantive understanding of when the compensation requirement necessarily applies.

 

And I think what you would do, at a minimum, would be to say that the power of eminent domain, the power of compulsory acquisition, is used to acquire resources that ordinarily a non-governmental party would have to purchase in the open market. So if the government uses a regulation that in effect requires a resource that a private party would have to acquire on the open market, the government either has to purchase it or use the power of eminent domain. And the government can't label it a police power measure or a public nuisance regulation and get away with the compensation requirement.

 

That would give you, I think, a minimal regulatory takings doctrine straight from well-established principles that come straight from 1791 and would justify some type of regulatory taking doctrine. Now, I don't think it would necessarily justify the one that we have, which is this kind of Baroque edifice that Richard will no doubt defend, Murr and so forth, but so I think it's very unlikely that you could get to where we are today from originalist premises. But you can certainly get to some type of a regulatory takings doctrine that would be non-trivial.

 

It would mean, for example, that if something like conservation easements are routinely gifted or acquired as they are today, not necessarily in years past, but they are today, that the government couldn't compel a conservation easement by regulatory command. In other words, Penn Central would have to be reversed. Thank you.

 

Hon. Elizabeth "Lisa" Branch:   Thank you.

 

Prof. Richard Lazarus:   Well, I understand my role in this panel. It's to be the progressive provocateur. I have no problem with that, and I'm going to happily embrace it.

 

      So in my eight minutes, I'm going to make, briefly, three points. The first is the Supreme Court has thrice stumbled upon the original meaning of the just compensation clause. Second, the Court's recent decision in Murr v. Wisconsin haply limits the damage. But third, the Court's even more recent decision in Knick v. Township of Scott compounds the Court's earlier errors and ironically places at peril the very property rights it purports to safeguard.

 

      So turning to the first, what are the three times the Court I think has abandoned the original meaning of the just compensation clause? In Pennsylvania Coal in 1922 and twice in June of 1987, it was a bad month for the original understanding of the just compensation clause. In early June, in the First English Evangelical Church v. City of Glendale and second, at the end of June, I believe it was the last day of the term, in Nollan v. California Coastal Commission.

 

      In Penn Coal, Justice Oliver Wendell Holmes invented the regulatory takings doctrine in the absence of any pretext of a hearing to the original meaning of that clause. Where'd he get that idea? None other than one of the greatest lawyers of the 20th century, John W. Davis, who was representing Pennsylvania Coal.

 

But it was a throwaway line in Davis's brief. He focused mostly on the due process clause, the contract clause. He had less than two pages in his brief on the just compensation takings argument. He made zero effort to claim any original meaning. He cited no Supreme Court cases, no state Supreme Court cases, and for reason. There weren't any, nor did Holmes himself in Penn Central.

 

It was clear to everybody. It had been clear many people since, with a few dissents here and there, including no less than Robert Bork, that takings meant what it meant back then, which is a physical takings. That was the plain meaning of the term. I always admire Tom's arguments, but I'm not buying the idea of a dormant just compensation clause, which extends to non-regulatory -- sorry, non-physical takings. If there's a place for that, and I think there is, it's in the substantive due process clause, as he was saying for the public use notion.

 

The Court's second stumble was in the First English ruling in early June of 1987. Now, when the Court held the just compensation clause mandated the just compensational remedy for violations of the Fifth Amendment, the text simply doesn't support that conclusion. The Fifth Amendment makes takings unlawful, absent just compensation, does not prescribe the remedy for that violation any more than it announces a remedy for any of the other limits the Fifth Amendment poses on governmental authority.

 

Therefore, the Fifth Amendment says, "No person shall be held answerable to infamous crimes unless presentment of grandy jury indictment. No person shall be deprived of life, liberty, or due process -- sorry, life, liberty, or property without due process, and nor shall private property be taken for public use without just compensation."

 

So it says what the government can't do. It does not remotely purport to prescribe a constitutional required remedy for past regulatory takings. It just establishes a condition precedent for the future. The remedy question for past temporal violations is entirely distinct, and it's not answered by the Constitution.

 

The Court's third misstep on the original meaning of just compensation clause was in Nollan in late June of 1987, when the Court equated an unconstituted condition with a regulatory taking, when it's clearly at most a violation of substantive due process. To posit, as Nollan does, that a permit condition is a taking, when an outright denial of the same permit would conceivably not be a taking, it is non-sensical.

 

When the justices first deliberated on the conference in Nollan, Justice Scalia acknowledged just that in his opening discussion. He said this is not a regulatory taking. He said this is a due process issue. But he had drunk the Kool-Aid by the -- and actually authored an opinion that put it in the regulatory takings category by the time the Court reached a decision at the end of that term in June. But as Scalia later made clear in Lucas v. South Carolina Coastal Council, he was under no delusion, this was all a matter of original understanding of just compensation clause. The best he could then muster in Lucas was a matter of constitutional culture.

 

My last two points are both the good news and the bad news. The good news is in Murr v. Wisconsin, the Court has mitigated the harm of its earlier mischief by embracing a test of justice and fairness, makes it harder for plaintiffs to prevail. The Court does so by requiring courts and measuring the economic impact of a challenged regulation to account for the fact that many land use regulations, like those challenged in Murr itself, add enormous market value to land.

 

Indeed, the reasons why the Murr property at the bend of the wonderful St. Croix River in Wisconsin was worth so much were the very land use restrictions they were challenged. That's why all nine justices in that case, including the dissenters who disagreed about what the denominator test should be, acknowledged that the Murrs were actually not being treated at all unfairly.

 

But now, for the bad news, the Knick case from last June, where I think the Court has made the regulatory takings problem worse. Here is my concern because of Knick. It will now be open season for Section 1983 regulatory takings claims against municipal governments. The just compensation awards mandated by Penn Coal and First English will now be joined by both the attorney's fees awards and potentially punitive damage awards.

 

The upshot, the likely perverse erosion of private property protection upon which landowner value depends, as a general matter, comprehensive of land use restrictions enhance and don't diminish economic value. But a local government scrap for resources feel exposed to massive monetary liability under Section 1983 and faced with the vagaries of the regulatory taking test, they're likely to retreat from adopting needed laws, to landowner's ultimate detriment.

 

It's not unlike what some believe may have happened with local police. Worried about monetary liability for strict law enforcement, and they respond with less enforcement, to the ultimate detriment of the communities now facing higher crime rates. This time, however, I think landowners will be the losers.

 

Hon. Elizabeth "Lisa" Branch:   Thank you. Professor Claeys?

 

Prof. Eric Claeys:   Thank you, Judge Branch. In my remarks, I'm going to make two points and try to illustrate the second with a case example.

 

      And so the first point is that the intro opening remarks about the panel and the other three panelists, I think they've all focused much too much on the Fifth Amendment and not nearly enough on the Fourteenth. As anyone in this room who's a litigator knows, and as Ilya alluded to, most of the action and practice with condemnation and regulatory takings is at the state level. And the Fifth Amendment applies to the federal government, seems so as of its text and it position after the Constitution in 1787. And if there are any doubt, Barron v. Baltimore established that, and nobody questions Barron.     

 

      Now, the panelists can and have, I think, assumed quite reasonably that it's worth using the Fifth Amendment as a way to think about regulatory takings and other takings guarantees us against states, but when that assumption's made, it's on the ground that the Fourteenth Amendment incorporates, the Fifth Amendment applies.

 

And I want to just point out, in my first point, just say I'm skeptical that incorporation is the way in which property rights guarantees in the federal Constitution or applied to the states. I'll assume that's one possibility, but it's just one of three or four. And the two more viable ones go like this.

 

One is that regardless of what the due process clause in the Fifth Amendment meant, by 1867-1868, enough antebellum courts had legitimated what we now call substantive due process that the Fourteenth Amendment due process clause had a substantive component. I guess I'm politely disagreeing with Judge McConnell. I can't see, because of the same [inaudible 31:40] lights as he complained about, whether he's here now, but I think that the Fourteenth Amendment -- I am not sure about this, and I've committed myself and printed this, but from what I know, what I've seen, I think that that Fourteenth Amendment due process clause enforces substantive guarantees.

 

And then separately, the Fourteenth Amendment also has a Privileges or Immunities Clause, and thanks to Corfield v. Coryell and the way abolitionists talked about Corfield v. Coryell, I think it likely that the Fourteenth Amendment Privileges or Immunities Clause made property one of the -- we had a fundamental rights reading, and property was one of the privileges protected in a way that it had substantive guarantees.

 

And so to the extent we're talking about the original meaning of property and the Constitution of the U.S. playing against states, those are the three theories we need to be thinking about: incorporation, substantive due process, and a fundamental rights reading of the Privileges or Immunities Clause.

 

So now to my second point, if one or more of those theories is a viable way to understand part of the Fourteenth Amendment, then one needs to understand how property was understood as a penumbra of property and due process or a privilege and how government justifications for restricting property rights are in hearing in words like deprive or abridged.

 

And I've done work on this, and so I'll just make a quick reference. What I'm about to say relies on a 2003 article called, "Takings, Regulation, and Natural Property Rights," I wrote in Cornell Law Review and a 2004 article called, "Public Use Limitations and Natural Rights," from the Michigan State Law Review.

 

And so throughout the 19th century, many state courts and a few federal courts worked out a principled set of distinctions saying here's the kind of situation which the government has legitimate authority to condemn property via eminent domain, and here are the situations in which the government has legitimate authority to regulate using the police power. And anything that doesn't meet one of those two or the taxing power is a confiscation and is wrong as a matter of natural law and is unconstitutional under due process under state-based rights guarantees.

 

And so the three basic acceptable forms of government action that I'll focus on here, and the first is an exercise of eminent domain. And so if the government needs to take property for a public use, it may do so as long as it pays just compensation and as long as it takes public use in the sense that Ilya was talking about in his remarks.

 

Second, the government may regulate property and -- or second and third, there are two different ways the government may regulate property. One is the one that Tom was mentioning, the power to regulate properties, the power to make one's rights regular, as Randy Barnett put it, by keeping one person's rights from interfering with someone else's rights, the power to control nuisances or control harms.

 

The other form of regulation, though, is one that Justice Brand -- somewhat anachronistically and after the fact, Justice Brandeis and Justice Holmes talked about laws that secure an average reciprocity of advantage. There are a lot of 19th century cases that recognize this idea. The most famous is an 1850 case out of Massachusetts called Commonwealth v. Alger by Chief Justice Lemuel Shaw, and in these laws, the government restrains how people use property in this one way to enlarge their use of the property in another way.

 

And so in Alger, the State of Massachusetts, this legislature, redrew the shoreline property boundaries to give people clearer property rights. And in substance, Shaw said that's fine because even though the rights changed, they've changed in a way that provides clarity that's to the advantage of the owners. Anything that didn't meet these three tests was seen to be an unjustifiable confiscation of property.

 

And by the by, I guess, these approaches matter also just because if these approaches are part of the Fourteenth Amendment, by the mid-19th century, it was taken for granted that property would refer not really to the right to exclude, kind of contrary to what Richard was saying. By the middle of the 19th century, courts were saying properties, the trinity of the rights to control and to use and dispose of the property, and so the right to use and the right to dispose got protection under these doctrines on terms equal to the right to exclude.

 

So the last point I want to make, the illustration, is just to illustrate a case that -- a situation where this understanding makes a big, important difference. And the one I want to suggest is a case called Fallbrook Irrigation District v. Bradley. Fallbrook is a case from just after 19 -- I'll tell you it was just before 1900. And in it, a person brought a substantive due process challenge to a law that forced her to let the county install an irrigation system across her property and then make her pay taxes to support the irrigation system.

 

And in it, the Supreme Court said that the law is constitutional on two grounds. The Court said that the law was a valid exercise of eminent domain, but in a separate part, it said that the same law was also valid of what I was just calling a law securing an average reciprocity of advantage. I want to suggest that the first holding was wrong. That was a taking for -- to the extent like an irrigation company ends up keeping an easement on someone's property, that's a taking for private use for the reasons that Ilya was talking about.

 

But the part about that law being an -- a taking being a regulation of securing an average reciprocity of advantage, what the Court called—I want to get the Court's exact phrase—"a regulation for the general advantage of those retreated as owners of a common property." I think that's right. And that makes a very important difference because Fallbrook was a case that Tom, in a brief for the American Planning Association, argued in Kelo ought to justify saying that New London, if it takes property of Susette Kelo and Kelo's neighbors in the Fort Trumbull neighborhood and creates economic benefits for New London, that's a taking for a public use.

 

And the argument is that a taking for a public use means that the city wants to create economic benefits. Those economic benefits are a public use. What I would suggest, under the narrower reading of Fallbrook, there's not a taking for a public use. There's been a taking to transfer land to a commercial developer. But the thing you'd then have to ask in a Kelo kind of situation is is the condemnation of property worked for reciprocity of advantage, including the owner who loses property?

 

And I want to suggest there's a big difference between a farmer having to give up a ditch easement, an irrigation easement to get back water and owners kicked off of their property and ordered to move somewhere else to make way for commercial development.

 

So I think in Kelo situations, we have to ask two things. Has there been a taking for a public use in the narrow sense Ilya talked about and then has there been a taking -- is there some reason why the system regulates property secure in an average reciprocity of advantage? And in a lot of the cases like Berman and Kelo, that reciprocity advantage test kind of focuses on what's different from the building of an irrigation system on one side versus commercial development that moves out owners on another side.

 

Hon. Elizabeth "Lisa" Branch:   Well, I want to thank all of the panelists for their opening remarks, and now that you've had a chance to digest what the others have said, do you have any responses to the other panelists? Do you have any questions of the other panelists?

 

Prof. Ilya Somin:   Are we going in the same order or different?

 

Hon. Elizabeth "Lisa" Branch:   Whatever order you would like.

 

Prof. Ilya Somin:   So I have a brief response to Tom since he talked about many of the same issues I did, maybe a brief comment/question on Richard Lazarus's presentation. I think first, Tom can't get away with dismissing the 19th century evidence saying well, it's living constitutionalism because even if those 19th century decisions had gotten the 1790s original meaning wrong, what they understood to be the case is relevant to the 1868 original meaning when this stuff actually became applicable against state and local governments.

 

And the idea that the Bill of Rights, when applied to state and local governments, should be interpreted as understood in 1868 is actually rapidly becoming, if not the dominant position among originalists, then at least equally common with the position when we only look at 1791. Prominent originalists like Akhil Amar, Kurt Lash, and others have endorsed this view. I think that Justice Thomas moves towards it a lot in the Chicago Second Amendment case which incorporated the Second Amendment against state and local governments, and he relied there, in his opinion, a great deal on what the Second Amendment was understood to protect in the 1860s, if it was to the 1790s.

 

      The second is on this view, again, of well, the public use doesn’t constrain at all. If this really is the original meaning, I think it's a great mystery why nobody thought of this until the 1990s. There were lots of takings cases and public use cases from the early Republic. No court embraced this argument, to my knowledge. I'm not even aware of anybody making it, though I grant, there could've been cases where the records weren't preserved, or I haven't found them. But it's striking that this is such a novel invention. Usually, it's attributed to Jeb Rubenfeld in a 1993 article, but I managed to find another scholar who wrote a piece in 1991, who made a similar argument. So it's perhaps the original meaning as of 1991, at least according to some legal scholars, but it's not the original meaning of either the 1790s or the 1860s.

 

      Finally, on this point of well, maybe public use denotes certain categories of takings but not others such as tax delinquencies and the like, I don't think public use can actually isolate those from eminent domain because, of course, when the government seizes properties to pay to for tax purposes and the like, they still get to keep the property and use it. The same if they use up the property by destroying it when they commit a tort and so on. So that I think the phrase public use, either in its narrow or in its broad sense, would not actually serve to make that distinction.

 

      And then a small point on Professor Lazarus's presentation, and maybe I misunderstood his argument. But if the argument is that you shouldn't be able to have a cause of action for regulatory takings because the Fifth Amendment doesn't specifically specify a remedy and therefore you can't file a case in court to get the remedy, it seemed to me that that same reasoning would undermine every other constitutional right where the text of the Constitution doesn’t specifically outline a remedy. If anything, the usual sense of regulatory takings violations is that this is one of the rare cases where the Constitution does more explicitly prescribe a remedy, namely compensation, right?

 

      So if that's not enough, then certainly, freedom of speech, unconstitutional discrimination, all the rest of it where no specific remedy is prescribed, it seems like I'm not -- it's possible I'm misunderstanding the argument. I'd appreciate clarification if I am. But if that is the argument, it'd seem to have implications that would require us to bite a lot of painful bullets.

 

Prof. Thomas Merrill:   Okay. I'm next?

 

Hon. Elizabeth "Lisa" Branch:   Yes.

 

Prof. Thomas Merrill:   So, yes. The issue of incorporation and the Fourteenth Amendment has come up in a number of panels. But from a number of comments, I was focusing simply on 1791 given my eight minutes and so forth.

 

      I admit that there's an issue here. One thing I would point out is that the public use issue and the regulatory takings issue have been in different silos with respect to whether the Supreme Court, the principal expositor of federal constitutional law, is reviewing federal judgments or state judgments. So the public use cases almost always come out of eminent domain proceedings.

 

      It's hard to find or think of a single regulatory takings case in which public use has been prominently debated. And so the cases that the Supreme Court has gotten, until fairly recently, that involved public use challenges have come out of the federal courts because it's the federal government seeking to condemn property.

 

And the states have been left on their own to basically interpret their state constitutions in this regard. And it's only fairly recently with, I think, cases like Midkiff and so forth that you begin to see the Supreme Court treating the incorporation issue as allowing the same jurisprudence that it develops under these federal eminent domain cases as well state eminent domain cases as being the same with respect to public use.

 

And, of course, by then, if so, if there's a de facto incorporation of public use as late as the Midkiff decision, the 1980s, then by then, you've got the broad public use -- probably purpose interpretation is the nominal one, not the narrow one that both Ilya and Eric would like to see implemented.

 

Richard and Justice Holmes' lack of originalist support in the Penn Coal case -- actually, I think Holmes's argument in Penn Coal is exactly the one I was trying to make. It's not a argument based on documentary evidence or on some kind of smoke and gun about what the Framers thought and so forth. It's an argument based on logic that -- and Holmes made this fairly explicitly.

 

I'll quote you the language. He says, "The protection of private property in the Fifth Amendment presupposes that it is wanted for public use but provides that it shall not be taken as such without compensation. When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last, private property disappears, but that cannot be accomplished in this way under the Constitution of the United States."

 

So I think Holmes is basically making the same point I was trying to make which is that if you have these two understandings, one that you have to compensate for public use takings and the other that you don't under the police power, you have to come up with some limiting principles. And the regulatory takings doctrine, which springs forth in that case most explicitly, is the limiting principle that he comes up with.

 

One or two other points. Richard, on the Knicks case, I think you're overreading Knicks as declaring open season for federal court adjudication of state regulatory takings issues. There's some lack of clarity about this, but the Supreme Court has never forthrightly said that state sovereign immunity is abrogated by the Takings Clause.

 

There's a footnote in First English that points in that direction, but it's not really been followed up. My view is that state sovereign immunity still does exist and particularly given the Court's recent enthusiasm about state sovereign immunity. And therefore, if you have a taking by the state or an agency of the state, you ain't going to get any just compensation unless you go to a forum in which the state has waived sovereign immunity to allow you to get compensation.

 

So I would think that what the Knick case does is it strips away the Williamson County argument that there's no constitutional violation until you've been denied compensation. It says that if the government takes your property and does not immediately promise to pay compensation, there's a constitutional violation. But the remedy is clearly compensation, ultimately, and if the state hasn't waived sovereign immunity, the state's going to have a variety of defenses and so forth that will channel a lot of these cases back into state court, at least before final judgment is reached.

 

I have a bunch of other interesting notes here, but I can't read my own handwriting, so I'll pass it off to Richard.

 

Prof. Richard Lazarus:   All right. Just three things, quickly. First, on the original meaning of the regulatory Takings Clause, I want to embrace and paraphrase what Ilya said and that was what he said about the public use requirement. If this was, being regulatory takings, the original meaning, then you -- it's sort of surprising that the first time we ever see anyone make the argument isn't until the 1990s or the 2000s.

 

Prof. Thomas Merrill:   Oh, can I just interject one more thing?

 

Prof. Richard Lazarus:   No.

 

Prof. Thomas Merrill:   John Lewis's treatise from the 1870s has exactly the argument about the language of the Takings Clause in public use.

 

Prof. Ilya Somin:   Treatise was actually in the 1880s.

 

Prof. Thomas Merrill:   Oh, whatever.

 

[Laughter]

 

Prof. Richard Lazarus:   I think it's not happenstance you don't see the argument, because it simply isn't there. To clarify and answer to Ilya's question about what I was saying about remedy. I'm surely not suggesting there's no constitutional remedy for these different violations when the Constitution doesn't prescribe one. I'm simply saying the Constitution doesn't tell you what the remedy is. It doesn't say that it has to be just compensation, that it's self-executing. What it said is figure out what the damages are, just like you do for any other constitutional violation. How has this person been damaged? What happened during the period of time that they could not use the property they wanted? It's a case-specific answer about how they've been damaged, just like for free speech, just like for everything else. It's just not answered by the Constitution that they get just compensation based on the ownership idea.

 

      On the sovereign immunity issue that Tom raises, I'm all for that. In other words, if it turns out that the Court has not answered the sovereign immunity issue for the states, then I would favor that result. I'm not sure that's going to be the case. I will be ready there to brief it, but part of the implication the Court saying the Fifth Amendment is self-executing, that it demands a just compensation remedy -- and this was briefed in the First English case.

 

      One of the main reasons that was given in the U.S. amicus brief in First English against this idea of a self-executing Fifth Amendment for just compensation remedy was they said that makes no sense. Given it was quite clear in the Constitution, the Court was not waiving the federal government's sovereign immunity. And the Fifth Amendment itself just applies on its own terms to the federal government. So the government argued this makes no sense because of that. It says it makes no sense in terms of the states as well for sovereign immunity, and the Court rejected those arguments.

 

      I think you're right that the Court has not yet squarely addressed it since, but I think the clear implication of the ruling will be that -- and I think paradoxically and oddly, that the Fifth Amendment—actually, now through the Fourteenth for the states—actually overrides any waiver of sovereign immunity, which makes no sense to me, but I think they may have asked and answered that one. But I'd be happy to brief it.

 

Prof. Thomas Merrill:   The only reason you have to bring a federal takings claim in the Court of Federal Claims under the Tucker Act is because of the assumption of federal --

 

[CROSSTALK]

 

Prof. Richard Lazarus:   And that was the argument they gave in First English why none of this made any sense, and the Court ran right over it.

 

Prof. Ilya Somin:   I would just note that the Eleventh Circuit recently decided their decision saying sovereign immunities still does apply after Knick to takings cases. But there is a cert petition that if the Supreme Court grants it, this issue would be taken up. To my mind, it makes little sense to say that there should be sovereign immunity for the states here, and it doesn't apply to other provisions of the Bill of Rights. I'm not a big fan of the modern doctrine of sovereign immunity anyway. If you live in constitutionalism, I would say look there where they essentially expanded the Eleventh Amendment to cover much more than its text, but that's perhaps a subject for another panel.

 

Hon. Lisa Branch:   Professor Claeys.

 

Prof. Eric Claeys:   So I had three points to make, one in response to each of the other commenters. So with Richard's last point, I am not as impressed by the argument that he made or I'm not persuaded by the argument he made. I guess because --

 

Prof. Richard Lazarus:  That's better than impressed.

 

[Laughter]

 

Prof. Eric Claeys:  Yeah. That's right. And that's why -- yeah, it's -- I think that a lot of what he's pointed to can be explained by two facts. And one is it just took the U.S.' legal system a long time to decide after the Civil War and the adoption of the Civil War amendments that federal courts were going to get into the business of using the Fourteenth Amendment to put limitations on states on a lot of topics. And so if it took a while for ideas about the federal Constitution limiting the way states dealt with property, that was happening a lot of other topics as well.

 

      And in the 19th century, most of the action -- most of the thinking about the right relation between the government and individuals and property was done in state courts. So if it took a long time, it's just everybody took for granted that the states were thinking these things through until such time as the federal court started to get involved in the Fourteenth Amendment.

 

      So I want to elaborate a little bit on one of the points I made, just to say what I like and what I'm concerned about in Ilya's remarks and in his book, "The Grasping Hand." I think the book is an excellent book in many respects. It does a great job on public use and what public use ought to mean. But if it is the case that the regulatory power, the police power, has as one of two sub-components, this idea that governments may legitimately regulate property to secure an average reciprocity of advantage, a lot of the situations that public use cases end up litigating are situations in which the government says there are a bunch of fragmented pieces of property, and we ought to be able to coordinate them. And irrigation systems are one; in the 19th century, there were Mille Lacs. And the same kinds of arguments are used now in the context of a commercial developer coming to a city and saying, "Nice neighborhood you got there, would look better with a Wal-Mart or a big office building there."

 

And the argument that comes back is does the government have legitimate authority to make people surrender some property rights to create some higher value use. I think the theory of reciprocity of advantage has to -- I think it is historically in the toolkit for governments, and normatively, it needs to be in a complete theory of government. And I'm concerned that "The Grasping Hand" doesn't talk about cases like Fallbrook or Head v. Amoskeag Manufacturing to the extent that it needs to to give a thorough account of those cases.

 

So the last point I want to make is I want to give a different account of why the idea of public use, no private use distinction, might've been there in the constitutional understanding around 1788. So I want to read -- I guess, first thing is I take it for granted that lots of Founders were saying to each other, "Would be awful or wrong or a gross violation of property rights for the government to take from A and give to B." Calder v. Bull came after the Bill of Rights was ratified, but I think it's safe to say that the sentiment expressed by Iredell in Calder v. Bull “but no taking from A to B” was shared 10 years earlier.

 

But in Blackstone, in his commentaries, when he introduces properties, one of the three fundamental rights in book one of his commentaries, Blackstone recognizes that the government may legitimately exercise eminent domain. But what he does, he rationalizes eminent domain saying the public is now considered as an individual, treating with an individual for an exchange. And if you think that is the public dealing as a corporation or an association with an individual, I think it's reasonable to infer the public -- the association's supposed to keep what it takes.

 

If that's right, then when the Fifth Amendment says, "Nor shall private property be taken for public use," I think it's understood that the government doesn't have the power to take property for a private use. And we have to remember also, the Fifth Amendment is part of the Bill of Rights, and it could be that the Constitution already worked some -- or operationalizes both eminent domain and restrictions on it.

 

There's no eminent domain clause in the Constitution of 1787, and this got litigated about 80 or 90 years later, but I think it reasonable to infer that the federal government has what power of eminent domain it has through the Necessary and Proper Clause, but the terms “necessary” and more so “proper” ought to structure how that power be exercised. And I think it reasonable to infer that “necessary” and especially “proper” limit the kinds of ways in which the government can conduct eminent domain.

 

And I would suspect, if some Founder had thought about this and put a writing about it in 1788, they would've said that a taking for private use seems improper. It's not proper in the course of taking property to carry into execution one of the enumerated powers.

 

Hon. Elizabeth Branch:  Well, thank you for that, for all the panelists, but I'd like to -- I think we could go back and forth all day. But I'd like to open it up to the audience now. If you could line up, and we'll just go back and forth between the two microphones.

 

Roger Pilan:  Yes, thank you. I'm Roger Pilan with the Cato Institute. My question is for Richard Lazarus. Your argument set aside the Supreme Court's regulatory takings jurisprudence which, as Tom Merrill suggested, is a theoretical mess. Your argument that the government should pay only for a taking of the fee, not for various uses.

 

Since we're talking about originalism here, let's look at the definition of property that the Framers had, and there's no better example than Madison's famous essay on property in the National Gazette in 1792 when he said that just as a man is said to have a right in his property, so too he can be said to have a property in his rights. In other words, all the uses that go with property are property in themselves.

 

      And so when you deny compensation for taking those uses outside of a nuisance exception for some public use, like a lovely view and the like, then you are taking something that reduces the value of his property. And so you're left with—and here's my question—how can you justify, given that, a case like Lucas whereby the South Carolina Coastal Commission reduced the value of his property from about $1 million to virtually nothing. But because he was left with an empty orange peel with nothing inside of it, so to speak, he is entitled to no compensation. That strikes me as a paradigmatic case where regulatory takings requires compensation under the Takings Clause.

 

Prof. Richard Lazarus:  Call me old-fashioned, but Madison's essay is not in the Constitution.

 

[CROSSTALK]

 

      I look at the text of the Constitution --

 

Roger Pilan:  -- It is instructive.

 

Prof. Richard Lazarus:  I look at the text. You can look at all the history and all the speeches given. I've certainly heard a lot of people talking about how you actually look at the text, and the text is about physical takings. That's what it's about. If there are other problems, then they have to be satisfied by other constitutional provisions. If they're deprivations of property, that'll be due process of law. Then you should look over there, but don't look to the Takings Clause.

 

As far as Lucas, you and I both know in Lucas, that was, in terms of the factual findings upon which the Court premised its decision -- and I should acknowledge, I was co-counsel for South Carolina in that case. The factual premise was one upon which was so ludicrous, that Justice Souter said that he thought it should be dismissed improperly granted. Kennedy wrote a separate concurring opinion in the case basically saying he didn't really believe the factual premise of the case.

 

It was a litigation bait-and-switch, [inaudible 01:00:40] spent a lot of time on in terms of what the legal theory was. The legal theory that was posited in the lower courts in that case was that there was no nuisance exception to takings. That was their argument at trial. That was their exclusive argument in the South Carolina Supreme Court. They were allowed to switch their argument in the Supreme Court, which most people aren't allowed to do. That's why the case had been litigated the way it was, and the lower court had assumed this idea that was worth nothing. It was completely ludicrous that that property was worth nothing.

 

Roger Pilan:   You've defined property as it is nowhere else defined in the law of property.

 

Prof. Richard Lazarus:   Thank you.

 

Hon. Elizabeth Branch:   All right. Next question.

 

Questioner 2:   I guess this -- excuse me. I guess this question's directed to Professor Lazarus as well, although -- can people hear me?

 

Prof. Richard Lazarus:   Yeah.

 

Questioner 2:   -- although, anyone else can answer. Regarding your comment about overruling Williamson and creating open season on municipalities, what really do things change in terms of being able to file a 1983 claim or seek 1988 fees? Even before Knick, you were able to --

 

Prof. Richard Lazarus:   Yeah. 1983 allows for attorney's fees awards.

 

Questioner 2:   Sure.

 

Prof. Richard Lazarus:   That's going to be a huge -- I mean talk to any lawyers. Talk to any lawyers who do private property. That is a sea change in the incentive. You can have attorney's fees awards in takings cases. It's going to catalyze things.

 

Questioner 2:   Of course. But even before Knick, you were allowed to file a 1983 claim in state court. In fact, you're normally required to before Knick. You were able to seek the 1988 fees there too. Overruling Williamson practically only removes the removal trap requirement where you follow your claim to state court, remove to federal court, and then have a 12(b)(1) motion filed against you. Am I wrong here or --

 

Prof. Richard Lazarus:   I think you are wrong, but I think they had to follow state procedures first to try to get just compensation under state law in the state before they could bring a 1983 case anywhere. That's why there weren't 1983 cases.

 

Hon. Elizabeth Branch:   Oh, do you have something you'd like to say?

 

Prof. Ilya Somin:   Yeah. So to the extent that this is open season here, it's open season in much the same way as the Bill of Rights and other constitutional rights create open season on state local governments which violate them. And on the attorney's fees thing, of course, you can only get the attorney's fees if you win. So what Knick does is its biggest impact will be on that category of cases where state and local governments would have prevailed in state court or would've at least been able to drag out the proceedings a great deal in state court, perhaps, but then would lose in federal court if it was brought there.

 

And if there really is a big divergence, if there really is a lot cases like that -- we actually don’t know how many there are, but if there really is a lot of cases like that, that strongly suggests under protection of this constitutional right by the relevant state courts. And you have the same rationale for being able to bring these cases in federal court as we have for pretty much every other constitutional rights claims. That's why Section 1983 exists in the first place to eliminate potentially problem -- or to create a venue that allows you to get around potentially problematic state courts.

 

Prof. Richard Lazarus:   And I would say that my point was the chilling effect that uncertain constitutional tests has in regulatory takings on financially strapped local governments, that it's not that the cases will necessarily -- it's the combined threat of now enhanced monetary liability which will cause needed land use regulations not to be adopted. And that will actually be the detriment of the landowners.

 

Prof. Eric Claeys:   And the other thing you have to think about is the chilling effect of putting a creche out on a public street or chilling effect of a law that restricts the right to bear arms. And so the thing that I would say about any -- the concern about the chilling effect is flood it through with five, not just one right in the Bill of Rights, but all of them, some you like and you don't like, and ask whether you want the states and localities to have chill effects to not to violate some rights --

 

[CROSSTALK]

 

Prof. Richard Lazarus:   And they're not damage remedies for those.

 

Prof. Ilya Somin:   I would add if these regulations really are creating enormous value, which increase the value of property, they should also be massively increasing attack space almost certainly enough to outweigh any attorney's fees that you're likely to get in a takings case or even compensation for particular owners. So if it's just a revenue calculation, either these regulations are not actually creating all this great value, in which case the chilling effect is not a big deal, or they are creating a great value, in which case there's not likely to be much of a chilling effect.

 

Hon. Elizabeth Branch:   Next question.

 

Prof. Gary Lawson:  Hi, Gary Lawson, Boston University School of Law. I have one question for Richard and then one for any of the regressives who want to take it.

 

      For Richard, if Nollan v. California Coastal Commission had been written expressly in the language of unconstitutional conditions, would you have a problem with it?

 

Prof. Richard Lazarus:  I actually thought that was the right way to write it. I should acknowledge here, I wrote the government's amicus brief in Nollan v. California Coastal Commission for the solicitor general. We are the ones who actually proposed that it was a regular takings framework. That was because I was representing my client at the time during the Reagan administration. None of us thought it actually made any theoretical sense to do it, but you have a client in a case. Yes, I think that would've been a much more defensible approach. I thought it was incoherent to approach it from a regulatory takings, completely coherent to approach it from a due process approach. I thought it was the better framework.

 

Prof. Gary Lawson:   All right. And then for anyone else, this really comes out of Eric's final comments. Suppose it was December 14, 1791. There is no Bill of Rights. There is no Takings Clause. What could the national government do on that day that it suddenly couldn't do the next day, the upshot being is the language of the Takings Clause actually doing any relevant work in any of the questions that we're talking about?

 

Prof. Thomas Merrill:   Well, I think Will Baude's --

 

Prof. Gary Lawson:   -- Or is everything handled by background norms?

 

Prof. Thomas Merrill:  Will Baude's interesting article a few years ago, I think, fairly clearly establishes that in 1791, no one thought the federal government had the power of eminent domain. So there wouldn't have been any formal takings by the federal government. Now it did have --

 

 Prof. Gary Lawson:   -- Well, in federal territories, maybe.

 

Prof. Thomas Merrill:  In federal territories, and they had the impressment power. The only contemporary evidence about the Takings Clause comes from St. George Tucker's version of Blackstone, which is probably written a few years after the adoption of the Bill of Rights. And he thought that the Takings Clause was put in there because people were upset about the impressments that the Revolutionary War army had executed during the war. They took horses and feed and things like that without paying for it because they didn't have any money to pay for it.

 

And the clause was in response to those sorts of abuses. So to the extent there was still a federal army or navy, they would have episodes like that. The Constitution authorizes post offices and post roads, I believe. This mentioned roads. So there might've been situations where the federal government might've done something that would've been like taking property, if they didn't pay compensation. So it might have made a difference in those cases.

 

Prof. Ilya Somin:  So I too would commend Will Baude's excellent 2013 Yale Law Journal article on this which establishes at the very least, I think, that people did not think there was a general federal power of eminent domain at that time, but there were large federal territories and also they needed -- they were going to setup the District of Colombia. It wasn't yet set up, but they knew they were going to setup a special capital district. And there, the federal government would have all the same powers as a state government normally would have. So there, that would surely include the power of eminent domain.

 

      In addition, as Tom alluded, while I think Will's article effectively establishes that there wasn't, during [inaudible 68:55], wouldn't be a general federal eminent domain power. It might be possible -- and I don't know what the answer to this really is, but it might be possible that he would've thought there might be an eminent domain power for specific, particular purposes, like post roads, military impressment, other purposes. And, potentially, if there was such a thing, they could even have thought well, transferring property to private parties through eminent domain would even help promote some kind of raising of armies, like transferring it to a private cannon manufacture or something that would then manufacture weapons for the army and so forth.

 

      So depending on whether you think that Will's argument shows they thought the government couldn't use eminent domain at all or whether you think it's just that they couldn't use eminent domain except for narrowly-specified purposes and native other enumerated powers, there could've been an impact there as well.

 

Prof. Eric Claeys:  So it's been a little bit on my -- the last remark I made before we went to questions, if one is being an originalist to the point of what was -- trying to get to the plain -- understand the plain meaning of the Constitution in 1788, I think the inquiry one needs to conduct is to ask knowing what was known in 1788, is the power to exercise eminent domain, is that the kind of power that seems like a really big principle, important power? It's so big that if it were going to be in the Constitution, it would have to be enumerated earlier in Article I Section 8, or is it one that seems, though significant, not so principal or primary that it can fall in the ambit of the Necessary and Proper Clause?

 

And then the next thing one has to ask is knowing what was known by lawyers 1788, if one were to think that eminent domain existed, would there be certain implicit limitations on how to use that compensation must be paid, that it must be used only for takings for private use? Was that in the intellectual background as eminent domain is understood in 1788 such that you're reasonably confident that ideas about necessity and more so propriety then limit the way in which economy should happen.

 

And Baude's article is excellent. I don't think it's the final word. What more could be said?

 

Hon. Elizabeth Bench:  Next question.

 

Questioner 4:  Professor Lazarus, I'd like to dive in, and I would like to get a clarification on I think what I understood to be your warning that we all better be careful because we're going to scare local governments away from regulating in ways that are going to then -- we're going to lose value. And I want to just ask you about the value that we're losing.

 

I think maybe you were referring to the idea that what the local governments are doing with zoning is addressing commons or coordination problems, but, I mean, certainly, you'd agree that what sometimes they're doing is restricting the supply of housing and property uses in a way that does make those things more expensive and more valuable for the people that currently own them but overall result in a sea of single-level ranch houses as opposed to something where you have less restrictive zoning.

 

So what's the value that we're losing by saying that people can use their liberty to build houses as big as they want or build apartment buildings, even if that might make the cost of housing lower?

 

Prof. Richard Lazarus:  Yeah, okay. I'll give you an example, but I would never suggest that local government of any kind, including land use planners, are immune from overreaching and being excessive in their regulations. I would never suggest that there can be never be abuses by land use planners, just like there can be abuses by other parts of the government.

 

      My point here is, now referring to the Murr case in particular, about added value, but quite often, in many circumstances, land value is increased by the fact you have certain kinds of restrictions, particularly environmental sensitive properties. The Murr property is a wonderful example of that.

 

      The Murr property, if you ever looked at it, it was narrower than this property -- than this room here, between here and here. It was about 50 feet wide and about 600 feet up and about three-quarters of it was an untraversable steep slope you couldn't possibly walk. They had a little footprint down below. They had a bigger footprint up above. They wanted to build down below where the water came up to about almost the steep slope itself.

 

      As a result, all of the properties along the St. Croix River, including the Murrs who were at the bend, were subject to very serious restrictions to protect the coastal zone and protect the steep slope from destruction. And because of those protections, this property was enormously valuable. The property is worth about $500,000, and it was like a quarter acre, it was almost nothing. And it was because of the fact that everyone was restricted in exactly how they could build so it wouldn't destroy the natural resource.

 

      What they effectively wanted was they wanted to build the way other people couldn't build. So they would've gotten all the value of the restriction being placed on everybody else, which it protected this area. It made it such an unbelievably gorgeous area. They wanted the restrictions to apply not to them but to everybody else. And it was actually those restrictions which had prevented destructed development in that very sensitive area since the 1960s, which is why their property was worth so much.

 

      Absent those restrictions, it would not have been worth nearly as much. So the restrictions were in fact one which is a true reciprocity of advantage that Eric was talking about before. It was a real reciprocity of advantage case, and that's quite often the case when you got protections in environmentally sensitive areas.

 

And that was the record evidence in the case, and that's why none less than the four dissenters in the case who believed in a different denominator test said they actually didn't think on remand, anyone would find a takings in this case. And that was because of the value created by the land use restrictions. And I was very pleased to see a Supreme Court decision which actually talked about it. I missed the opportunity at oral argument because I ran out of time to say that I thought it was a regulatory giving rather than a regulatory taking. But I'll use the moment here to say that.

 

Questioner 4:  So -- oh, go ahead, Ilya.

 

Prof. Ilya Somin:  So if the argument is that in that case or in some other cases, the regulation in question actually increases the value of the property more than it diminishes it, to my --

 

Prof. Richard Lazarus:  -- I didn't say that. I said it increased it a lot.

 

Prof. Ilya Somin:  It increased what?

 

Prof. Richard Lazarus:  It doesn't always increase it. It means you have to do a fair measure of the justice and fairness test. You actually have to look at how it adds value and not just at how -- and it actually was a very small diminution in that case.

 

Prof. Ilya Somin:  Yeah, yeah, okay. So my point is this, that those kind of questions are ones that should be analyzed at the stage of compensation. And it may be that on net, this regulation increases your value and doesn't diminish it or maybe increases it more than it diminishes it, then maybe the right compensation amount is zero. That's a distinct possibility, but I think that doesn't go to the question of whether there was a taking because the question of whether there was a taking is a question that would've deprived you of any of the relevant property rights or a sufficient amount of them or whatnot.

 

That's distinct from the question of how much compensation you are owed. And under the current fair market value test actually, if it really is the case that it increased the value of your property more than it diminished it, then you would get that result. But I think that that's the kind of thing that should be considered at compensation rather than at the stage where you analyze whether there has been a taking or not.

 

Prof. Eric Claeys:  I'd like to jump in. My name was invoked. So I want to just -- Richard's -- this is a discussion about environmental restriction. I just want to walk through how the 19th century higher-law or rights-based police powers cases would treat the restraint on the use of property. And so the first thing you would ask is is the person being restrained from using property to stop some sort of harm? And if somebody's using property in a way that has runoff that goes into a lake, like in the Tahoe-Sierra case where the building causes erosion into a lake and messes up the character of the lake, you'd have to run through then whether there is something that would look traditionally like a public nuisance, and it could justify public action.

 

      But if there's a restraint for environmental benefits where there's not some public commons getting polluted, I think that you can say that there might be public benefits from creating public beauty, but the person's not invading anyone else's rights, so it's not a regulation for harm.

 

      So then you'd have to ask -- and this is the part where Richard came over and kind of touched my shoulder and said Eric's reciprocity of advantage test. So you then have to ask whether the regulation is -- whether environmental restriction that restrains use is giving everybody reciprocal advantages. As you're conducting that analysis, the thing you have to think through is that people can get gratification from using property for a wide range of reasons. And some people might like to have property undeveloped and get gratification from that, but other people might want to use their property actively. And if you think that a restriction is going to interfere with a significant number of people's present plans how to derive benefit from the land, you have to worry that there's not a reciprocity of advantage because it's favoring the people that prefer the passive uses.

 

And so then what you're left with is to say is the government, if it tells somebody, "You can't use the property to preserve scenery," or something like that, that's a taking of a property right, a use right, a servitude, and the government can do so because the public then uses the absence of the building and other things for the public use of enjoying the scenery. The scenery's a public use, but eminent domain has to be used, and compensation needs to be paid.

 

Hon. Elizabeth Bench:  Thank you. Next question.

 

Hon. John Curry:  Thank you. I'm Judge John Curry from Chicago. And now, we've had about 15 years since the Kelo decision, and if we look at, say, the scenario for liberal interest groups around the country on other constitutional issues, they've said oh geez, now we have Justice Brett Kavanaugh. Let's not go to the federal courts. Let's do activism in the state courts. And I had thought after Kelo, there'd be a plethora of state court decisions which would embrace the concepts of Kelo, the broader sense of taking for public use conceivable. But I've not perceived that to be the case in my own jurisdiction.

 

      Approximately, about five years before the Kelo case, there was a major public takings case in the State of Illinois which was rather more conservative than the Kelo decision, and that case still remains good law in Illinois, and I've not seen -- I'm not aware of any state supreme court decision that has thrown out what would be I think the Collinsville case and then has embraced the Kelo decision.

 

      So this is really an informational question. What has been the development in the state courts regarding the takings for public use pronouncements under Kelo across the country?

 

Prof. Ilya Somin:  So chapter seven of my book addresses this very question and goes through all of the decisions, at least up and through 2016. And I think what you said --

 

Hon. John Curry:  [Inaudible 80:28] so if you could summarize it.

 

Prof. Ilya Somin:  Sure. I'm about to do that.

 

Prof. Richard Lazarus:  University Chicago Press 2015. 

 

[Laughter]

     

Prof. Ilya Somin:  Yeah, and there's also a revised edition in 2016 as well. But the basic story is this --

 

Unknown:   Excuse me. I'm some 8th grade books in reading, so, but thank you. Go ahead.

 

Prof. Ilya Somin:  It's suitable for assignment both in high school and the university level. But let me, in all seriousness, briefly summarize. There have been several state supreme court decisions since Kelo which actually explicitly repudiate Kelo as a guide to the interpretation of their state constitutions. The Ohio Supreme Court has done this, the Oklahoma Supreme Court, and several others. And either that they embrace Justice O'Connor's dissent in Kelo, which says that economic development takings at least should be constitutionally forbidden or they take a position that moves strongly in that direction.

 

      It is not quite true, however, that there have not been any state supreme court decisions going the other way. The New York Court of Appeals in two decisions around 2009 and ‘10, they actually embraced an extremely broad definition of public use. In some ways, I think actually, they embraced some things that the Kelo majority probably forbids, such as takings that might very well be considered pre-textual. The Kelo majority does still say the pre-textual takings are forbidden where the official rationale is a smoke screen for some scheme to benefit a private party.

 

Though, I admit, and I discuss in the book in greater detail, there's a lot of disagreement in the lower courts about what exactly is a pre-textual taking and how do we tell if it's pre-textual. But what's striking about these two New York decisions is that in those two cases, you had all of the indications of pre-text, which in other jurisdictions have been said might be unconstitutional. They were all there, and yet, the New York Court of Appeals still said that this is perfectly fine.

 

      So more could be said, but that's the basic outline of the story. Most state supreme courts to address this since Kelo have not actually embraced it, which is significant. It's a sign that the tide of opinion on what is a public use is moving towards the narrow view. And if it's not necessarily moving all the way there, that’s very different than the reaction to Berman v. Parker in 1954 where after Berman, in the 15 years after that, numerous state supreme courts embraced Berman's holding with respect to condemnations for blight and urban renewal. So it's a different intellectual climate, I think, in these last 15 years than it was, say, 50 years ago.

 

      And even more importantly, before Kelo, people like me who favored a narrow definition of public use thought well, you guys are just weird, wacky, extremists. We might still be wrong. We might still be extreme in a certain sense, but increasingly, this position is embraced by at least a good many state supreme courts, even if certainly by no means all.

 

Prof. Thomas Merrill:  Yeah. I think between Kelo and the backlash to Kelo, the backlash was the true constitutional moment. And Ilya doesn't mention it, but there were like 44 states --

 

Prof. Ilya Somin:  -- 45.

 

Prof. Thomas Merrill:  45 now, excuse me, have adopted either constitutional amendments or state statutory limitations on eminent domain. And even the New York courts, bless their hearts, were strongly divided in the two cases that Ilya referred to. There were strong dissents in those cases to using eminent domain.

 

Prof. Ilya Somin:  Only one dissent in one of the cases. One was 7-0. One was 6-1.

 

Prof. Eric Claeys:  I have a couple of thoughts. One is I think states -- and here, I'm relying on some of Tom's studies of public use cases in state courts. Courts have consistently for 20 or more years before Kelo, state courts have looked to see if a particular project looked really bad in some sense and used public use guarantees to knock out some of those. And so they were already in that habit and didn't change it.

 

      And I think a lot of the rest of the story is not really legal, it's political and cultural. If a right is important enough that voters are going to really care about it and single out somebody's elected official, depending on how they go on it, like gun rights are at that level, religious freedom rights are at that level, and the fight about Kelo put the condemnation to make way for a Wal-Mart or for a Barkley Center at the same level, judges who were elected in states noticed.

 

Prof. Richard Lazarus:  And I would just like to comment by thanking the judge for asking a question about Kelo that left me out of the bullseye of that one. 

 

[Laughter]

 

Hon. Elizabeth Bench:  We probably have time for one more question, so we'll take yours.

 

Holden Tanner:  Hi, Holden Tanner, Yale Law School. Thank you, guys, for coming today. My question is for any of the panelists. And, in general, it's this: What do you think is the appropriate level of deference for courts to give to state legislatures when they declare what a harm is within the scope of the police power?

 

And specifically, I'm thinking about maybe an example like Hawaii Housing Authority v. Midkiff and whether or not a state could in theory just declare that something like land oligopoly is a harm or a public nuisance, go through the formality of declaring it as a matter of positive law, and then take it without having to just compensation.

 

Prof. Ilya Somin:  So I'll start. I think the appropriate level of deference is very little difference, just like for other important rights under the Bill of Rights. I would add also that in the specific case of the supposed oligopoly in Hawaii Housing Authority v. Midkiff, there was no real evidence that there was an oligopoly. They said it was 72 private landowners. They said that the so-called market powers actually very difficult to run an effective cartel with as many as 72 members, and that may be why the state, as far as I know, didn't even really consider bringing a traditional antitrust action against them because there was no real evidence of oligopoly.

 

      So I would finally add, under the modern conception of police power, that power is so broad that if you say that anything that's within the state police power qualifies as a harm that can then be regulated without compensation or without being considered a taking, then they could do that with almost everything. Maybe if you go back to a narrow view of the police power, the kind that some people advocated in the late 19th century, things would be different. But under the modern conception of what counts as the police power, letting them declare that something is a harm and then giving it deference would essentially gut this particular provision of the Constitution. We don’t allow that with respect to other constitutional rights. I don't think it should be allowed here either.

 

Prof. Thomas Merrill:  Yeah. This is a big problem, and it's one reason why I think that the better approach in trying to draw the line between the compensation requirement and the police power is to focus on whether the government is -- regulations effectively acquiring a property right, which is ordinarily bought in the market place. So that gets you around the problem of having to define what the police power is and how broad the police power is.

 

      Justice Scalia in Lucas tried to put a limit on the police power by saying it would had to be something that was subject to regulation or the common law of nuisance, which sort of freezes the police power concept at a very old-fashioned level. I don't think most people would agree with that. It’s a sort of too static a kind of conception of the police power, and we have lots of things that states do by way of regulation that go beyond that. So I think my preference would be to try to make sure the power of eminent domain is being used when the government is actually acquiring property which is bought and sold.

 

Prof. Richard Lazarus:  I just -- 

 

Hon. Elizabeth Bench:  -- And we are running up against a hard stop --  

 

Prof. Richard Lazarus: -- Okay. Okay.

 

Hon. Elizabeth Bench:   -- because, just as a reminder, we have the -- I'm going to ask, as soon as we conclude this, I'm going to have everybody go up to the Grand Ballroom for the Rosenkranz debate and luncheon. But I, first and foremost, want to thank all of our panelists.

 

11:00 a.m. - 12:30 p.m.
51 Imperfect Solutions for the Ethical Practice of Law

2019 National Lawyers Convention

Topics: Jurisprudence • Philosophy • Professional Responsibility & Legal Education • Corporations, Securities & Antitrust • Religious Liberty • Free Speech & Election Law
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 16, 2019, the Federalist Society's practice groups held a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "51 Imperfect Solutions for the Ethical Practice of Law.

The practice of law in the United States is not monolithic. Each state establishes its own rules of professional conduct. This form of federalism allows states to serve as "laboratories of democracy," and innovate how the legal profession operates. This panel will focus on four areas in which states disagree. First, the majority of states have rejected ABA Model Rule 8.4(g), which purports to prohibit "harassment" in "conduct related to the practice of law." Second, in the wake of Janus v. AFSCME, states are considering whether to abolish "integrated" bars. Third, some states are engaging in novel experiments to permit non-lawyers to perform some types of legal services. Finally, we are in the earliest stages of understanding how legal analytics—using technology to predict how courts will decide cases—fits within the rubric of the unauthorized practice of law. These topics implicate critical issues like the freedom of speech, the free exercise of religion, antitrust law, and cutting-edge legal technology.

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Hon. G. Barry Anderson, Associate Justice, Minnesota Supreme Court
  • Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston
  • Mr. Mauricio R. Hernandez, Principal, Hernandez Law Office 
  • Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School
  • Moderator: Hon. Jennifer Walker Elrod, Judge, United States Court of Appeals, Fifth Circuit
  • Introduction: Mr. John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP

Speakers

Event Transcript

Mr. Jack Park:  Good morning. My name is Jack Park, and I’m the chair of the Professional Responsibility and Legal Education Practice Group which considers the regulation of the practice of law and the state of legal education. One of the things that we try to do and that we can be of service to members of The Federalist Society is by offering programs that may or may not get you continuing legal education in ethics depending on the state in which you’re licensed. To do that, we had an ethics teleforum earlier this year by Josh Blackman. We have a diversity CLE teleforum coming up in December for those of you in states that require an hour of diversity CLE, and we’re hopeful that this program will both be of interest to you and will generate legal education credit in ethics.

 

We’re honored today to have as our moderator Judge Jennifer Elrod. Judge Elrod has served as Circuit Judge on the United States Court of Appeals for the Fifth Circuit since being confirmed by a voice vote in 2007. There aren’t many voice votes any more. Prior to serving as a Circuit Judge, Judge Elrod was appointed and then twice elected Judge of the 190th District Court of Harris County, Texas, where she spent more than 5 years presiding over more than 200 jury and non-jury trials.

 

She’s a Phi Beta Kappa graduate of Baylor University where she was the Outstanding Graduating Senior in the Honors Program and was later named an Outstanding Young Alumna. She graduated cum laude from Harvard Law School where she was an active member of the Harvard Federalist Society, an Ames Moot Court Finalist, and Senior Editor of the Harvard Journal of Law and Public Policy. She clerked for the Honorable Sim Lake in the Southern District of Texas, and before serving as a judge, she was in private practice.

 

Hon. Jennifer Walker Elrod:  You don’t have to do that. [Laughter]

 

Jack Park:  Well, we’re honored to have Judge Elrod as our moderator, and we’ll let her introduce the members of the panel.

 

[Applause]

 

Hon. Jennifer Walker Elrod:  It is such a privilege to be here with you this morning on the last day of The Federalist Society National Lawyers Convention. Each year, without fail, The Federalist Society assembles a diverse array of accomplished lawyers and scholars who provide insights on pressing issues that confront our nation, the law, and the legal profession. Today’s panel is no different.

 

      As a side note, you know that I really want to be here with you today, so much that I am missing ESPN Gameday at my alma mater, Baylor University, where the undefeated Baylor Bears, 9-0, are taking on Oklahoma. Sic ‘em. [Laughter]

 

      As another side note, there may be an elephant in the room for some of you, wondering what in the world is a federal judge doing moderating a Federalist Society panel. You may have seen some things in the newspaper about such things. I want you to know that I take ethical responsibilities very seriously and, in fact, I am privileged to be an appointee on the Judicial Codes of Conduct Committee, appointed by the Chief Justice.

 

      So I have personally studied Advisory Opinion 116, and I can’t speak for others, but I can speak for myself. And I believe it is entirely ethical to be engaged with lawyers and scholars leading in the fields in non-partisan fashion in the wonderful way that The Federalist Society does. So I’m glad to be here.

 

[Applause]

 

      Our panel is called “51 Imperfect Solutions for the Ethical Practice of Law”. I don’t know if our friend, Judge Jeff Sutton, has approved of our ripping on his excellent book about state constitutions’ roles. But we are here to talk about the regulation by state authorities and how that makes this wonderful potpourri patchwork of ethical rules throughout our nation.

 

      The ethical practice of law in the United States is not monolithic. Each state establishes its own rules of professional conduct. This form of federalism allows states to serve as laboratories of democracy and innovate how the legal profession operates. The panel will focus on several areas. We will have a discussion about ABA Model Rule 8.4(g). We’ll discuss the wake of Janus and how states are discussing whether they should eliminate the integrated unitary bar.

 

      We will discuss novel experiments that permit non-lawyers to perform some types of legal services in order to keep the costs of legal services down, and in order to expand the reach of legal services. And, finally, we will discuss how legal analytics are used to predict how courts will decide cases, and what are the ethical ramifications of that.

 

      Our distinguished panel includes Professor Thomas D. Morgan. Professor Morgan is an Oppenheim Professor of Antitrust and Trade Regulation Law Emeritus at George Washington University. He was Dean of the Emory University School of Law, and he’s been on the faculties of the University of Illinois and Brigham Young University. He is co-author of Problems and Materials on Professional Responsibility. Professor Morgan served as an Associate Reporter for both the ALI’s Restatement of the Law, the Law of Governing Lawyers, and the ABA’s Ethics 2000 Commission.

 

      He is an Executive Committee member of The Federalist Society’s Professional Responsibility and Legal Education Practice Group and a member of the ABA Business Law section’s Professional Responsibility committee. His book, The Vanishing American Lawyer, was published by Oxford University Press.

 

      We also have here -- you’re over here. Good. I was worried. I thought you were out in the hall with Josh selling books. [Laughter] We have Mauricio “Mo” Hernandez, a business attorney in Goodyear, Arizona. Before moving to the Grand Canyon State, he was in general practice in Northern Nevada and represented plaintiffs in state and federal courts.

 

      Prior to his career in law, he spent more than two decades working in petroleum marketing operations and management for a Fortune 50 multinational corporation. For the past five years, Mr. Hernandez has been vigorously engaged in legislative efforts to advance free speech and freedom of association interest of lawyers in Arizona. He has also continued fighting the foreseeable intensification of lawyer discipline resulting through new lawyer speech codes. He has rallied opposition against similar regulatory encroachments on the attorney autonomy, individual judgment, and economic choice.

 

      In 2015, the Speaker of the Arizona House of Representatives appointed him to the House Ad Hoc Study Committee on Mandatory Bar Associations, and in 2016, he was the principal drafter of the House Concurrent Memorial, urging the state supreme court to modify its rules related to the state bar to ensure the protection of First Amendment freedoms. Welcome, Mr. Hernandez.

 

[Applause]

 

      Our next speaker is the Honorable G. Barry Anderson. Justice Anderson is a graduate of the University of Minnesota Law School and was a member of the Minnesota Court of Appeals until his appointment to the Supreme Court. He was sworn in on joining the Court on October 13, 2004 and is currently the senior justice on that court. He previously was a partner in the Minneapolis and Hutchinson law firms of Arnold, Anderson & Dove, and also served the City of Hutchinson as City Attorney.

 

      He is a certified civil trial specialist, and he devotes considerable efforts and his time to public service in various civic education. He also serves on the Minnesota Judicial Council, the managing body for the Minnesota Judicial Branch. We appreciate having you here, Justice Anderson. Thank you.

 

[Applause]

 

      And I guess I’ll go ahead and introduce him, but I think he’s still in the hall. Professor Josh Blackman is known to many of you, and he is an Associate Professor of Law at the South Texas College of Law. He specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology.

 

      He’s the author of several books, and his latest book -- which is in the hall, and I’m not advocating people purchase books or not purchase books, but he is out in the hall with his book and the professor that he has written with, Professor Randy Barnett.

 

      Professor Blackman was selected by Forbes Magazine for “30 Under 30” in Law and Policy. He’s testified in numerous hearings. He’s the President of the Harlan Institute, the Founder of FantasySCOTUS. You probably know him -- and I understand as of last night, he got 2 million hits on his Twitter feed. Welcome to Professor Blackman. I know we’ll welcome him when he gets here. But right now, we’re going to get started.

 

      Professor Morgan, will you lead the way?

 

Prof. Thomas D. Morgan:  Thank you, Judge Elrod. We have to admit that “51 Imperfect Solutions for the Practice of Law” may be a provocative title, but it may not strike everybody as a promising idea. Today, it seems almost counter-cultural. Law practice now is increasingly national and international in character and an appealing argument is being made that the rules governing lawyer conduct ought to be uniform and not subject to multiple jurisdictional distinctions.

 

      In this conference I suspect it’s a lot easier to sell the idea of a state-based regulation of lawyers. This is the method of regulation that would have been familiar to the Founders. The regulation of lawyers has been for centuries under the control of courts, and it has fallen to the advocates of uniformity, who are found primarily in national law firms and the American Bar Association, to draft model rules that then are submitted to the states and, hopefully, at least in the minds of the drafters, will be adopted unchanged.

 

      Over the last 50 years or so, however, the model rule enterprise has not produced uniformity. First, many of the rules of legal ethics are a compromise of conflicting policy values. And it’s reasonable to expect that state court justices around the country will weigh the values differently.

 

      Second, model rules proposed by the ABA only get to be model rules by passing through an ABA legislative process that is not always guaranteed to produce a high-quality product. I’ve been involved in several of the roles that make up the ABA process. And while I don’t question the sincerity of the people that are working in that area, I can say that what gets through the ABA House of Delegates is usually the result of coalition building and compromise. Proponents of a rule change tend to get prestige by passing something, not by withdrawing a bad idea, and that does not necessarily lead to a coherent, consistent set of professional standards. Thus, the ABA can wind up offering proposals that represent an effort at uniformity but that may not necessarily be sound policy.

 

      The morning, I will use to illustrate this process briefly, Model Rule 8.4(g), one that several of you I know have worked on, others may have heard about. It is now before several of the states and has received a lot attention by our practice group, thanks especially to the work of our colleague, Josh Blackman.

 

      Rule 8.4(g) would impose professional discipline on any lawyer who “engages in conduct that the lawyer knows, or reasonably should know, is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” That rule has a lot to unpack, and I’m not going to go into all of it today. But most important for those of us who are critical of it is that Model Rule 8.4(g) appears to be just waiting to be employed as an imposition on a lawyer’s freedom of speech.

 

      The concept of harassment might easily be used to try to punish someone for the expression of ideas that some other person in one of the protected groups says they find hurtful or offensive or both. Now, it’s important to remember that lawyers do not have unlimited freedom of speech. Model Rule 8.4(c) prohibits a lawyer’s conduct involving dishonesty, fraud, deceit, or misrepresentation. And I think we can all recognize those are inappropriate uses of speech, and Judge Elrod and Justice Anderson are not constitutionally required to be indifferent about a lawyer’s failure to behave with civility in the courtroom before them.

 

      Advocates of Rule 8.4(g) say that’s analogous to what its prohibitions would do. The proposed rule addressed conduct that the lawyer knows constitutes harassment or discrimination. Who, the proponents say, could object a punishing speech that a lawyer knowingly weaponizes so as to intentionally hurt other people. I agree that is a test proposition for the validity of this rule, but I disagree with those who think that the proposed rule handles the situation properly.

 

      First, while it may be hard to defend conduct that a lawyer knows amounts to discrimination or harassment, the ABA rule also reaches speech that the lawyer reasonably should know is harassing or discriminatory. The reasonably-should-know test is always addressed in hindsight. And a lawyer can never really know when people will determine that he or she did not actually know of the effect, but reasonably should have known the effects of the lawyers’ statements or acts.

 

      Second, an even greater problem with proposed Model Rule 8.4(g), is its failure to intelligibly define harassment and discrimination. You may think that we have lots of law defining both of those terms, but the ABA, in Model Rule 8.4(g) has expressly refused to be bound by such precedent. After much negotiation which, as I say, is part of the ABA’s process—probably part of any legislative process—Comment 3, which addresses this topic, says only that law relating to harassment and discrimination may guide application of paragraph (g). But the intended implication is that lawyer discrimination and harassment need not be defined or constrained by law developed in cases involving non-lawyers.

 

      As state supreme courts have considered Model Rule 8.4(g) and the cases for and against it, it appears that only two, Vermont and Maine, have adopted it as written. And even Maine is not perfectly aligned. Many states have had anti-discrimination rules for several years and have seen no reason to change. Others looked at the rule and expressly rejected it. What tends to distinguish the ABA proposal from existing state rules and from newer rules adopted in response to consideration of Model Rule 8.4(g) is the focus of the state rules on clear definitions of both prohibited acts and settings in which they’re prohibited.

 

      They do what most of the rest of Rule 8.4 does: they say that a lawyer may be professionally disciplined, in addition to any civil or criminal penalties, for conduct that would violate the law if done by anybody who wasn’t a lawyer. We can go into that later, but that’s the standard approach of the rest of the companion sections of 8.4(g).

 

      Our panel today is going to look at several other situations in the jurisdictions that are likely to disagree and in which we may wind up with non-uniform approaches to lawyer regulation. I’m not saying the ABA is acting with an evil intent or is always wrong. But I’ve tried to use Model Rule 8.4(g) to illustrate that I think we’re going to do better sticking with what we have come to understand as the appropriate way of regulating lawyers, and that’s through 51 potentially imperfect not solutions for the practice of law, but efforts of the state supreme courts to come up with the most effective ways to impose that regulation.

 

Hon. Jennifer Walker Elrod:  Thank you, Professor. 

 

[Applause]

 

      We will now hear from Mr. Hernandez.

 

Mauricio R. Hernandez:  Thank you. The legendary American philosopher, Yogi Berra, once said, “If the world was perfect, it wouldn’t be.” [Laughter] Yogi’s pronouncement must surely be animating lawyer regulators in their unending quest to find even more imperfect solutions for the ethical practice of law.

 

      Our topics today highlight that search, but they should also underline the tension between regulator authoritarianism and lawyers who prize freedom of choice and professional autonomy. For example, should lawyers continue surrendering their First Amendment rights for what those favoring such constraints call the privilege of practicing law. Should lawyers continue subsidizing speech they disagree with? Should earning a living as a lawyer be conditioned on joining a professional trade association? Should the interests of the public be more important than the interest of lawyers.

 

      Such questions are at the heart of the discussions that we will be looking at today in what some call innovation and others call more of the same -- go over these questions and others. Also mull the debate over proposed lawyer misconduct rule 8.4(g) and the latest push to abolish integrated bars in the aftermath of Janus v. AFSCME.

 

      No one disputes there’s an access-to-justice gap, that legal services are unaffordable for many people. The disagreements predictably arise when regulators tinker with the protected interests of lawyers and consumers and redefine what it means to practice law.

 

      Justice Kennedy quit almost 30 years ago during oral argument in Keller v. State Bar of California. Everybody knows that lawyers don’t agree on very much. As states conjure up even more exemptions to unauthorizes practice such as allowing non-lawyers to co-own law firms, lawyer disagreements predictably arise that even Justice Kennedy may not have anticipated. As for my own hobby horse, contrary to what mandatory bars choose to believe, Keller did not settle the problem of forced funding of political and ideological speech that’s inherent in the mandatory bar model.

 

      Indeed, the claims Eddie Keller and 20 other California Bar members made against their bar, are largely indistinguishable from the claims being made in the latest wave of litigation filed against mandatory bars in Louisiana, in Michigan, North Dakota, Oklahoma, 2 in Oregon, Texas, Washington, and 2 others in Wisconsin. History has shown how imprecisely Keller’s guiderails keep mandatory bars from using dissenting members’ dues to fund political and ideological activities unrelated to regulatory purposes.

 

      The Court itself acknowledged that drawing a precise line between acceptable and unacceptable activities wasn’t always easy. Last year, the Supreme Court overruled Abood v. Detroit Board of Education in order to decide Janus v. AFSCME. The Court struck down, on free speech grounds, deductions paid the public sector unions by non-members without affirmative consent. It rejected Abood’s germane versus nongermane standard used to distinguish when non-member’s compulsory agency fees could be constitutionally required for germane activities like collective bargaining and when a public sector union could not compel non-member funds to fund activities considering nongermane. The Keller Court had used Abood to decide Eddie Keller’s claim, a compelled speech claim. As in Abood, a bar association like a public sector union, may not fund political activity with mandatory funds, but the bar could force lawyers to join and to fund germane activities, in the Court’s words, “to regulate the legal profession and improve the quality of legal services.”

 

      When Abood was overturned, lawyers opposed to mandatory association and compel funding saw an opportunity to help cut off the rest of the footings under Keller. But, in practice, the post-Keller years saw few mandatory bars undertaking any kind of rigorous germane versus nongermane analysis. As in Janus, where non-members were required to pay for undetermined lobbying that might eventually be beneficial to local bargaining union members, the unions approach was so broad and vague, the Court’s words, “to encompass just about anything the union might choose to do.” Mandatory bars have for decades relied upon the same vague approach to justify their uses of mandatory dues.

 

      But before the Court decided Janus, Arnold Fleck has filed a lawsuit against a North Dakota Bar. It was working its way through the federal courts. Fleck sued in 2014 after discovering that the bar was using his dues to oppose a shared parenting measure that he supported. So he sued, claiming that mandatory membership violated his First Amendment right of association, his First Amendment right not to subsidize ideological speech he disagreed with, and his First Amendment right to affirmatively consent before subsidizing nongermane expeditioners. But post-Janus bar case’s buttress, by the rejection of Abood, are challenging the constitutionality of compelling lawyers to join a state bar association. They also contest the presumption that lawyers, once forced to join, consent to subsidizing that association by requiring them to opt out if they disagree.

 

      Among the ten cases, the alleged nongermane use of dues by the defendant range from opposing tort reform in Oklahoma to amending the definition of marriage in Texas. In Oregon, both plaintiffs in both lawsuits site the publication of a statement on white nationalism and normalization of violence in the bar’s magazine. While in Wisconsin, they take issue with the bar’s expenditure of over $520,000 last session on lobbying. And in Texas, consistent with Janus, the plaintiffs seek affirmative consent procedures and germaneness safeguards to prevent mandatory dues expenditures from being used for impermissible purposes unrelated to regulating lawyers or improving the quality of legal services.

 

      The plaintiffs also uniformly argue that Janus’s exacting scrutiny standard of review applies to the mandatory membership requirement. When the association of freedoms are infringed, the requirement is unconstitutional unless the state shows that its compelling interests cannot be achieved in a less restrictive way. Well, we know it can be done. The centuries-long history and now successful operation of 18 voluntary bar states demonstrate that states can indeed achieve their compelling interest regulating lawyers less restrictively.

 

      Now, the renewed litigation to regain lawyer free speech and freedom of association rights from compulsory bars offers a basis to frame these lawsuits as part of a wider assessment of how lawyers think about their own constitutional rights. As Professor Margaret Tarkington—I’m not getting paid for this—points out in her terrific book, Voice of Justice, lawyers have long undervalued these rights, particularly their free speech, petition, and association rights. She pauses that when lower First Amendment rights are reclaimed from regulators, lawyers will more fully realize their roles as voices of justice to check government and institutional power to protect client, life, liberty, and property.

 

      Finally, last month I checked in with my friend, Michigan lawyer, Allan Falk. In the annals of mandatory bar litigation, Allan Falk is a familiar name. His first challenge was 42 years ago this month when he filed a petition alleging that the Michigan Bar was using his mandatory dues to fund activities violating his First Amendment right of association, speech, and religion. Now, lawyers like Allan who want to reclaim their First Amendment rights are often called quixotic, jousting unsuccessfully for years against an entrenched system.

 

      So on news that the Eight Circuit had again rejected Arnold Fleck’s mandatory dues challenge, I was eager to get Allan’s take on the ruling and about all the post-Janus litigation that has followed. After decades of enduring his own frustrations battling the Michigan Bar, I asked Allan if his outlook had changed. Had he become cynical? Was he pessimistic about the eventual outcome of all this new litigation? He said he remained ever the optimist. “I’m still that kid,” he told me, “who on Christmas morning is wide-eyed, digging with excitement through a huge pile of horse manure convinced there must be a pony in here somewhere.” [Laughter] Thank you.

 

Hon. Jennifer Walker Elrod:  Justice Anderson?

 

Hon. G. Barry Anderson:  Thank you. Two Minnesota-specific points before we begin. First, we heard earlier about somebody else’s football team. I just want to note that the University of Minnesota Golden Gophers are 8-0, actually, 9-0 now as a result of their victory over Penn State last Saturday. And just to show you what an accomplishment that is for a Minnesota football team, the last time the Gophers were 9-0 was 1904. Some of us have been waiting a long time for that day.

 

      The second Minnesota-specific thing I should note -- and I don’t see our colleague Josh Blackman here yet but, he…

 

Hon. Jennifer Walker Elrod:  He just made an entrance.

 

Hon. G. Barry Anderson: He just made an entrance. Well, he posts a “This day in Supreme Court history” thing periodically. And today’s note is on this day in 1939 the United States Supreme Court Justice Pierce Butler died. He happens to be from Minnesota. One of three Minnesotans who have served on the United States Supreme Court, and is also famous for, as my colleague David Stras pointed out to me many years ago -- David is back in the room hiding there somewhere, now a member of the Eight Circuit Court of Appeals. Pierce Butler was famous for dissenting in the infamous Buck v. Bell decision. So two Minnesota notes before we begin.

 

      So I’ve been asked to talk a little bit about alternative legal practice as it is experienced in the states. And that means you have to first talk about the problem. Over the course of my remarks I want to cover three areas. I want to talk about the extent of the problem, some of the responses that states have had to these concerns and, then, finally talk about effectiveness of solutions and how to perhaps construct effective alternative legal practice programs.

 

      Let’s talk first about the problem. It comes in two flavors. First, when we talk about lack of access to justice, which drives a lot of these conversations, the media coverage is almost exclusively focused upon areas where lawyers are not sufficiently present, not available, to individuals who have problems. So let’s review some of those statistics. Nothing more interesting than listening to a speaker who recites statistics, but we’re going to do it because I think we have to do it to understand the problem.

 

      Let’s start with a 2015 Utah Task Force report, and you’re going to see some consistency here in these statistics which I think tells us something. In debt collection cases, something like 98 percent of respondents were self-represented in debt collection matters. In eviction housing matters, in the neighborhood of 8,000 cases, 96 percent of tenants were self-represented, while 87 percent of landlords had counsel.

 

      In family law matters—divorce, annulment, things of that sort—80 percent of respondents in 13,000 cases—I mean, we’re talking a pretty significant pool of data here—were self-represented, and only 40 percent of petitioners had counsel. And that’s, I think, a significant statistic because it’s one thing for a party in a divorce to not be represented, they’re a respondent, maybe there’s been an agreement, etc., but in the state of Utah in this sample, half of those seeking a divorce were not represented by counsel.

 

      Similar statistics apply elsewhere. I’m going to give you some numbers from Minnesota. Again, they’re very consistent with the Utah experience. 96 percent of debtors, no representation. In housing disputes, 51 percent of landlords have representation but only 3 percent of tenants did not. Family law matters, 47 percent had representation. Only 16 percent of respondents had representation. You’ll find other statistics dealing with legal aid issues. From a 2015 Minnesota, study 60 percent of those who were eligible for legal aid—in other words, they met the income standards—contacted legal aid for help and were turned down because there were insufficient resources available to provide legal assistance.

 

      Now, I want to offer a cautionary note about some of these statistics. I don’t mean to minimize the significance. They are very significant. But I think you have to be a little careful. I used to do some landlord/tenant work both representing landlords and tenants. I had a general law practice which meant that if I wasn’t an expert in the problem when you walked in the door, I was an expert by the time you walked out. So I would see both landlord and tenants to deal with these issues.

 

      If you’ve got a rent dispute, and there’s no dispute that the rent wasn’t paid, it may not be so surprising that you have single-digit legal representation. But I think it’s fair to say that landlord tenant disputes are not 95 or 96 percent in favor of the landlord. I think we can say that there are some problems here. But I want to talk about a little different angle. Sort of a second subset to the access-to-justice problem that I notice from my own personal experience.

 

      It’s not just a function of inability to retain a lawyer because of the cost of a lawyers. It’s also a function of are there lawyers available. So just a piece of personal history. I began my practice of law in 1979 with a pretty good-sized law firm in Fairmont, Minnesota, a community of about 11,000 people immediately north of the Iowa border. The Gophers are playing Iowa this afternoon, and I anticipate that they’ll win. That’s just an aside.

 

      The Court recently had the opportunity to go back to Fairmont and hold oral argument there in the local high school. There’s about half the numbers of lawyers practicing in that community today than practiced there in 1979. A town in the area that had very large -- for a rural Minnesota law firm, that particular county now has one lawyer practicing in it. We have several counties in Minnesota where there are single-digit lawyers practicing. We had one county where it was necessary to import a lawyer to serve as the county attorney. In Nebraska there are seven counties with no lawyers. I was talking to a member of the North Dakota Supreme Court, and he indicated they have similar issues.

 

So it’s not just a function -- when we talk about access-to-justice issue, it’s not just a function of inability to pay for a lawyer. In some cases, we’re having trouble putting lawyers in communities where they can help people. How do we deal with that problem?

 

So that leads me to the second point which is what have states done in turning to trying to resolve these issues. It’s a complicated and difficult problem for reasons I’ll talk about in a moment, but let’s consider some of the examples. I just want to mention in passing -- Minnesota -- I’m not going to talk a lot about it because eventually the task force that we’ve created is going to produce a report, and I’m going to be expected to vote on it. I’d just as soon not have the video tape here marked as Exhibit A and have a discussion about what I said about that task force. I’ll just say that it’s ably chaired by my colleague, Paul Thissen, member of the Minnesota Supreme Court, and my colleague, John Rodenberg, Judge of the Minnesota Court of Appeals, and a former district court judge. And we have a pilot project that’s under way, and we’re hoping it will see some proposals from that opportunity.

 

Let’s start with some examples. They found that kind of two different kinds of categories: Form preparation and empowering legal assistance to sometimes appear in court or to advise clients. Often, these examples will say -- the courts will say that you can’t provide legal advice, but you can assist in preparing forms. And how you draw that line is a little difficult for me to understand which is sometimes in filling out the form, aren’t you providing legal advice? There’s a little lack of clarity on where that’s going to occur. Let’s talk about some of these examples.

 

The New York courts have a system that they call Navigators. Aimed at pro se litigants, you have to have three hours of training. They work largely in non-payment of rent proceedings or consumer debt efforts. They are allowed in court and authorized to answer fact questions, but they’re to provide legal information and not advice. As I said, drawing that line may prove challenging.

 

Colorado has a system it calls the Sherlocks system. Again, providing legal information, not advise, in working on assisting in forms. Arizona has a very robust model, and we have an expert—I’m going to call him an expert—down here because he happens to practice in Arizona. So, if you ask me technical questions about that, I’m just going to look right over there, and we’ll have Mr. Hernandez answer the question.

 

But what’s interesting about it is it’s a certified legal document preparer program and, candidly, those who go through the program, acquire the necessary training, are empowered to help in filling out almost any of kind of legal form, at least that’s the way I read the rule. I think it’s pretty robust. It’s a model that I think that others may want to consider.

 

Another model that we have that has become the subject of a great deal of discussion—and I’m going to add a caveat to that in a minute—is the Washington model which deals with limited-license technicians. In other words, licensing legal assistants or paralegals in primarily family law areas now and perhaps extended to debt collection issues and consumer finance issues. There are some significant limitations on what these legal assistants can do, but they are empowered to help persons who fall within the category of the program.

 

Now, you could talk a great length about each of these programs, and I state them only as examples. But I want to talk about them in the context of a third point that I want to visit with you today about which is are these programs effective? And what makes for an effective, alternative legal practitioner program or alternative legal practice program?

 

I would suggest the available data we have is that nobody has an answer that fits every possible solution for every possible problem. It suggests what my colleague Professor Morgan here suggested which is that we really should be encouraging states to experiment because I suspect there’s a better answer than each of these alternatives that I’ve discussed today. Why do I say that? For example, the Washington model, which has sparked a great deal of interest -- the American Bar Association has recommended it as something that states should be considering. That model has -- I think they’re less than 50 licensed technicians, and that program has been around 2014. The Arizona model has been around since 2003, and they have about 800 certified document preparers in a state of 7 million people. The Minnesota model is just getting going, and so and so on in terms of actual participation.

 

Why is that? A bunch of reasons. Time doesn’t permit me to go into them, but remember I talked earlier about the issues relating to the availability of lawyers. Some of this relates to the continued profitability of the rural practice of law. And those factors are also present in the context of, for example, empowering paralegals to represent individuals. It’s a very complicated problem. How do we go about making sure these programs are effective? We are going to have to involve the lawyers who are directly affected. We’re going to have to provide for task forces that are more than just folks who think we need to impose solutions on lawyers who are actually practicing in these areas, and we’re going to have to experiment. And some experiments are going to fail. That is also part of what it means to have a federal as a model and to have experienced that cover 50 states.

 

Now, I could go on a greater length here, but I’m going to be ruled out of order by my colleague on the federal bench, so I’m done. Thank you.

 

[Applause]

 

Hon. Jennifer Walker Elrod:  Thank you, Justice Anderson. That’s a very gracious response to the red light. [Laughter]

 

Hon. G. Barry Anderson:  I’m familiar with the red light problem, yes.

 

Hon. Jennifer Walker Elrod:  Now, Professor Blackman, so nice of you to join us today.

 

Prof. Josh Blackman:  I know, I --

 

Hon. Jennifer Walker Elrod:  Good thing that you’re not in court.

 

Prof. Josh Blackman:  No, I know. I’d be in contempt right now. [Laughter] Legal ethics panel, huh? Thank you so much. I apologize. FedSoc double-booked me. You can’t double bill; you shouldn’t double book. We’re having a book signing. They’re sold out, so you can’t get anymore, but I signed everyone. Thank you so much. My apologies to you Judge Elrod, Justice Anderson, Tom Morgan, and Mo.

 

      My topic today is about legal analytics which is something of a cutting-edge topic that we now need to bring to the FedSoc audience. First, I’d like to talk about my experience with legal analytics. Second, I want to talk about how law firms are developing this marketplace. And, third, like any good FedSoc talk, I’d like to talk about how the government has and they try to regulate this technology to either stifle it or protect consumers depending on which perspective you come from.

 

      How did I get in this field? Ten years ago today or, actually, this week. I created FantasySCOTUS. Yes, when I was a -- maybe four months out of law school, I built a Supreme Court fantasy league. [Laughter] I did. I had this crazy idea of what if we had people putting down numbers of how they think each of the justices will rule any given case. It was mostly a joke, but then I decided to actually build it. And within about 24 hours, it went viral. I launched it at the convention in 2009, so just about a decade ago this week. Over the past decade, we’ve had thousands and thousands of people make predictions on how the Supreme Court will decide cases.

 

      But this database I had gave rise to an idea. What if we pooled the wisdom of the crowds? What is the wisdom of the crowds? If I ask one of you, what is the temperature in this room, maybe you’re right, maybe you’re wrong. But if I ask everyone of you what is the temperature, and I averaged those out, I will put money that’s the right answer. Or at least close enough.

 

      The concept is when you ask a lot of people with different experiences and different backgrounds about an idea, they bring different ideas to bare. Intellectual diversity one might call it. This is the concept of the wisdom of crowds, and let me tell you something. Our players in FantasySCOTUS are really good. We get an average 70-75 percent the case is right. Our top players get 80 percent right. I will put them against any partner in a law firm and they will beat them. I’d put that money down.

 

      But I didn’t stop at just crowds. A couple of years later, I partnered with two professors who were also computer scientists. And we began to develop an algorithm to predict the outcome of Supreme Court cases. We were able to reduce every single appeal down to an 80 variable, which we coded, and our algorithm was not as good as the people. The machine has not risen yet. The people still prevail. But our algorithm was at 70-odd percent which beats random.

 

      But you don’t stop there, right? The key, the crowning moment, is when you combine man and machine, right? When you have the algorithms predicting some cases and people predicting others. For example, most people don’t know enough about ERISA or bankruptcy to make informed predictions. Those are, actually, fairly easy to predict. But when you have a case involving abortion or guns or substantive due process, people tend be better at both. So you figure out where are machines better, and where are people better? And that is what we are looking for in this industry, right? This is not some sort of magic button where you click, beep, beep “Siri, try a case for me.” That’s not going to happen, right?

 

It’s how do you leverage this technology to improve the practice of law, hopefully access to justice, which is what we’re all trying to do. Give justice for all. In fact, I was briefly, for a couple of years, in one of these legal tech companies. I exited. I’m no longer one of them, but I saw firsthand how this technology develops. All right. 

 

Second, I want to walk through some of the areas where we’re using this technology. Who here has used eDiscovery? Almost all of you, right? Any of you use machine learning instead of keyword searches? Okay. The prospect of discovery is looking at a huge trunk of documents and usually just searching for a keyword like privilege or something like that. But as we all know, those keyword searches are not always very effective. In fact, often you will miss stuff and inadvertently turn over privileged documents to opposing counsel, and that creates a headache all to itself.

 

Machine learning is different. Rather than the difference between dumb searches for words, it figured out from context what might be a privileged communication. You may not realize this, but this is actually fairly sophisticated technology that’s deciding what is and is not privileged.

 

What are some other examples? I think Justice Anderson mentioned landlord tenant law. This is a very important area where people with fairly mundane disputes can use apps, tools on their phone if there’s a broken heating valve in their apartment or a sink is backed up, right? Instead of having to go hire a lawyer, you can maybe file some sort of complaint in your app with the county housing board.

 

But now we get a little more sophisticated. Contract drafting, right, is something which lawyers take very personally but most lawyers use a boilerplate and sort of move stuff around. You can have a person who’s not sophisticated who enter certain terms into a form, and that form spits out a contract that’s pretty darn good. The same way you have TurboTax, right, or Quicken that can ask a few questions and generate a 1040, a tax return, the building blocks for a contract operate in a similar fashion. Okay, that maybe sounds intimidating, but I’m not done yet.

 

What if we had analytics about judges? Oh, Judge Elrod’s nodding at me. What if I could tell you that this judge grants motions dismissed in these sort of cases 80 percent of the time? Or if I could tell you this forum in Delaware, right, routinely dismisses for lack of personal jurisdiction, right? What if I were to tell you that these judges routinely grant oral argument, and these let stuff go to trial because they don’t want to decide motions?

 

Now, these are the kind of things lawyers kind of know anecdotally, right? They build up experience from years of practice. Maybe their firm has a binder on every judge – I know you have these things, right? I know. I know. You have a binder on every judge, and the partner has the coveted bookshelf, right? “Oh, you have Judge X. Well, let me tell you about Judge X.” But this little anecdotal stuff. You can study this stuff. You can train it. And there are tools that exist today that let’s you see with a degree of accuracy how judges might handle certain motions. And this is very useful for you trying to decide do you try a case? Do you settle? Let it go to a jury? Right?

 

These are not just sort of well, ask a partner with gray hair what he thinks. There are -- no offense to people with gray hair. I’m sorry. I have some myself now. They’re coming in. But there are tools you can use to actually inform this with some precision.

 

Now, what does regulation look like in this sphere? So far, very almost non-existent. There are companies like LegalZoom. LegalZoom will maybe produce a will for you, or they’ll incorporate a company for you, or these sort of, I don’t want to say mundane but fairly simple tasks. And some states are trying to shut them down, saying they’re engaged in UPL. Our favorite, right? The Unauthorized practice of law. This is a term that’s not defined anywhere. I think there are due process vagueness challenges. I’m on the wrong panel for that. But this is an important term because if you are a tech company—not a law firm but a tech company—you have some problems. Okay.

 

Now, we want to talk about four areas of resistance. I’m not talking about Arnold Schwarzenegger and Rage Against the Machine. No, no. Resistance to this technology. The first is state bars. I don’t think they’ve quite caught on to this, but they will soon enough. I think we’ll see some of these legal tech companies face UPL suits. They’re not owned by attorneys. These firms are not even run by attorneys often. They’re run by tech people from Silicon Valley. I think we will see UPL suits. Once the bar realizes that there’s competition to be had, cartels do what cartels do – they rent seek, and they shut things down.

 

The second area I can see a form of resistance is resistance from judges, but I will not say judicial resistance. That word has been used way too much this weekend. [Laughter] I don’t know—and I’ll ask my two judges on the panel, my dear friends—how judges react to these sorts of algorithms, right? If people are putting out reports saying here’s how Judge X is going to rule, that’s going to feel kind of weird because that means am I really individual? I’m an autonomist, right? Am I that predictable?

 

Will a judge decide just to do the opposite of what the algorithm says because forget it, I’m going to do the opposite, right? If there are any judges in the room, I encourage you to maybe talk to me afterwards. It’s a disconcerting feeling when they say there’s an 80 percent chance you will do X. It’s just a little bit weird.

 

What if judges decide, okay, I’m going to decide cases. Justice Kennedy, if you’re on the Court, let me check FantasySCOTUS. How should I vote in this case? What do the people want. Tell me. Instead of checking what he has for breakfast, check my prediction market. It’s a little bit weirdness. And, then, that leads to even a weirder function. What if judges just start doing what the algorithm says? That can create an ossification, a fixture of the law, where things are basically stuck in place.

 

The next area where I think we’ll have some resistance from the law firms themselves – currently a lot of these tech companies are sort of operating in the shadows. They’re being hired as contractors. But I think law firms might become the noise saying, “Wait a minute, why are we paying these whiz kids when we know what the best? We know what the courts are going to say.” But, eventually, either the law firms will buy these companies, or they’ll try to shut them down. Either one. I don’t know which one, but there’ll be resistance.

 

My final point with my 30 seconds left are clients. We have to always think about clients first, right? Can you artificially program Atticus Finch, the great lawyer? Can you put in ethos or, Lord help me, empathy? Can you code empathy—would you want to—to a judge? I don’t know.

 

But here’s where the title of our topic comes to place, 51 imperfect solutions. We have laboratories of democracy. We do not have a single nationwide code of law, thankfully. States can do what they want to do, and in some states, you see experimentation. California, for example, is considering whether these tech companies can be owned by non-lawyers. I mean, it seems like a mundane issue but it’s very important.

 

I don’t know where this technology leads, but I think all of us should think about it as we go back to our state bars; see how can we, perhaps, welcome this technology but ensuring always that clients do come first. And I apologize again for being late. Thank you so much.

 

[Applause]

 

Hon. Jennifer Walker Elrod:  Wow. That’s so much. We don’t know where to go. We could ask the panel to decide if Professor Blackman has violated Model Rule 8.4(g) --

 

Prof. Josh Blackman:  Oh, boy.

 

Hon. Jennifer Walker Elrod:  -- by talking about people’s gray hair.

 

Prof. Josh Blackman:  Oh, boy. Age. Oh, boy. Oh, boy. [Laughter]

 

Hon. Jennifer Walker Elrod:  We could --

 

Prof. Josh Blackman:  Oh, boy. Sanction me.

 

Hon. Jennifer Walker Elrod:  We could instead talk about how judges are also using predictive data analytics as tools in sentencing pilot programs and things. We could talk about with our antitrust expert what do with think that -- who’s going to put the protest against all these newfangled ways of making our services more ubiquitous and cheaper. And are lawyers going to revolt? Or we could talk about what’s keeping these practical tools which you’ve talked about, Your Honor, from being more widely distributed, and what your ideas would be for that.

 

So it’s free time, and we’re going to let Mo go first if he wants to go and talk about whatever he wants to talk about in that genre. There’s a lot of things to talk about. And you can begin lining up as well because we’re going to take questions. I think that’s one of the most valuable parts of these conferences.

 

Mauricio R. Hernandez:  I have a question about the legal analytics component with respect to access to justice. I understand how we can help in complex litigation, but how will that tool help consumers with kitchen table issues having to do with an eviction proceeding, somebody getting cheated at work with overtime that they’re not getting paid, things like that. How does that help?

 

Prof. Josh Blackman:  Thanks, Mo. See, I am a bit of an apostate. I actually am skeptical of the technology that I build. Sort of almost like a Luddite of my own world. I don’t know how much this helps the little guy. And the reason why is that these are tools that are being designed for fairly sophisticated parties. That’s one of the most helpful. In fact, they may actually screw the little guy.

 

Judge Elrod mentioned sentencing guidelines, right? Any judges who do sentencing here know that sentencing is a very human judgment, perhaps, no more human judgment there is than putting a person in prison. And when you have an algorithm that’s odd, given these factors and these offenses, here’s a number, that bothers me a little bit. Now, maybe if you have a really tough judge, then the algorithm is lower. But keep in mind, the person coding this is a human being who has his own biases who violates 8.4(g) on a daily basis, I’m sure. Right?

 

But, I mean, if I want to be a libertarian, I can code a presumption of liberty into my algorithm, and no one would ever know. It’s a black box. So don’t always trust the code. Again, I’m an apostate in my own field, but I’m skeptical of what I’m doing.

 

Hon. Jennifer Walker Elrod:  Justice?

 

Hon. G. Barry Anderson:  Well, I’d like to ask Mr. Hernandez, you and I had a conversation before we began today, and we were talking a little bit about the Arizona experiment. And we talked about the importance of stakeholders. And I’m wondering is if you could share with our audience a little bit of what you told me, and why you think that’s important.

 

Mauricio R. Hernandez:  Thank you very much, Judge, for asking that question because that’s been on my concerns. According to the ABA, out of the 1.2 million lawyers that are practicing in the United States, 46 percent, or well over a half a million of them, are sole practitioners and lawyers in small 2 to 5-member law firms. And so a lot of the initiatives to remote access to justice will have great implications on that segment of the lower population. And my concern, particularly in Arizona where they had a 15-member task force studying this -- I think one small firm was represented on the task force, and there were no sole practitioners on it.

 

      Half the membership were judges or people in judicial administration. There were two law school professors engaged, and two big law firms, ex-bar presidents were there. So at the end of the process—surprise, surprise—a lot of the recommendations that were issued on October 4th had broad implications. One will modify ethical Rule 5.4 which will allow non-lawyer ownership of law firms, and the other one will sort of what I say, take the existing, certified legal document preparer that’s been around 16 years and sort of put it on steroids because the folks in that program, and then getting into the other one, the legal license technician program, will be focused on family law which is the bread and butter of a lot of those in that segment. And so it’s kind of unique.

 

      The Utah model and the Minnesota model have paralegals, or limited-license practitioners, that will be under the supervision of an attorney. But the Arizona model is more along the lines of what Washington has done where they can go to court without supervision of an attorney, granted they will have training ahead of time. But it sort of puts into question in my mind the proposition of whether or not -- what’s the purpose of law school if you’re going to have non-lawyers practicing in the courts.

 

And my biggest criticism, of course, is that there’s a lack of stakeholders on these task forces, being that segment of 46 percent of lawyers. And there should be law students involved because you have law students matriculated in these law schools paying substantial sums for their education. And when they graduate, the value proposition, or as I said when I was in business, a return on investment, is sort of put into doubt because now the field has changed, and they had no chance to weigh in on those changes. So there’s a reliance interest that’s going to be implicated as well.

 

Hon. Jennifer Walker Elrod:  One more quick question. Have you seen bar organizations by the bars in the states – have any of them retracted some of their services down to the core bread-and-butter functions in order to try to ward off these complaints that people have been raising?

 

Prof. Thomas D. Morgan:  Yes. It seems to me that one of the things that we are seeing is that the concept of the integrated bar is changing in some areas. Nebraska is one that I recall very recently where you break up the section, function, the whole variety of the socializing function into a voluntary bar and retain just one function, perhaps, the client security fund, these things in an official bar.

 

      The integrated bar historically came out of the idea the ends of court, where the judges came out of the bar. The bar and the court were seen as together. We’re a long way from old England, but I think this is an area where we really will see considerable variety. And the pressures that Mo was talking about are certainly going to affect how that turns out.

 

Questioner 1:  Thank you. First question, I’d like a clarification from Mr. Hernandez. I was wondering if you could explain to the audience the different types of bars and how that affects your analysis. For instance, in the Commonwealth Virginia, the bar is an agency of the State Supreme Court. In other places, it’s a private entity. And in terms of the free speech analysis that you were speaking of, how does that impact it?

 

And then, secondly, to the panel as a whole, for the majority of this country’s history, the profession did not attend law schools. Not until well after the Civil War did law schools become the norm. So if we’re talking about access to justice, is there any good reason that we can’t find the next Abraham Lincoln and just let somebody study under another lawyer, and then go out into the profession after he passes some sort of certification exam?

 

Mauricio R. Hernandez:  I’ll comment on that second part before I answer the first. California still allows people to read the law --

 

Hon. Jennifer Walker Elrod:  -- Isn’t Kim Kardashian doing that? [Laughter]

 

Prof. Josh Blackman:  Yes. And she uses Randy Barnett’s contracts casebook, by the way. [Laughter] She Instagrammed it.

 

Mauricio R. Hernandez:  And Oregon just allowed the same thing. Oregon just passed a recommendation to permit the same thing to read the law. So, of course, that will have implications for the law schools as an institution. And I suggest maybe this whole thing needs to be re-engineered in certain ways, not just picking up at the margins of reform.

 

But with respect to mandatory bars and the unified bars and the voluntary bars, there’s a lot of euphemisms that go into that that I sort of find objectionable. One is the unified bar and the integrated bar. They really are what they are. They’re compulsory membership. In other words, they condition your right to earn a living in that state and being forced to join a trade association that wears two hats. It’s got a regulatory hat to enforce lawyer discipline, protect the public, and in Arizona it’s got a trade function hat where they have their conventions and various programs and free legal research and the like, and you can network and sort of help your practices that way.

 

There’s 18 voluntary bar states. Virginia is not one of them. The voluntary bars -- in fact, I had a conversation with three different lawyers yesterday, and because they practice in voluntary bar states, they didn’t understand the whole problem, what the issue was. So I was happy to talk to them about it. I’m very passionate about it as you can tell. Essentially, we want to promote the eradication of abolishment of those 30 states where there is a mandatory bar requirement.

 

Whether you take a right-to-work analysis to it, or whether you take, as the Janus case will show us the way, that the standard now is heightened because when you’re talking about First Amendment rights, and exacting scrutiny requires that the compelling state interest is the burdens on the state to show that it cannot achieve its compelling interest while regulating lawyers in a less restrictive way. But the elephant in the room is that you have states like Colorado, New Jersey, Pennsylvania, Indiana, Illinois, Connecticut, I mean, the 18 mandatory bars – Minnesota, where the Judge is from is a voluntary bar state.

 

They’ve been regulating lawyers. Lawyers there are as ethical as they are in mandatory bar. They operate with the same oath. Nobody has ever said that the lawyers are less ethical in a voluntary bar state than in a mandatory bar state. So there’s really no need for it. And in Nebraska, as the judge said, they did recently bifurcate the bar in 2013. Then, California just did so last year as well. So they divided regulatory and non-regulatory functions for that. Sorry for my long answer, but I like talking about it.

 

Hon. Jennifer Walker Elrod:  It’s very helpful – educational.

 

Questioner 2:  My question’s for Justice Anderson. So many of the problems I heard you describe about the supply of lawyers in rural areas struck me as similar to the medical profession where there’s a lack of doctors. And the medical profession has also looked at nurse practitioners and non-doctors providing what used to be doctor services. In the work that’s being done to look at options, do you see that there’s being comparisons made to what the medical profession is doing? And are things that lawyers can look at to what this other regulated, also high cost of entry profession offers?

 

Hon. G. Barry Anderson:  I think that’s a great question. And it’s this question of how do you provide legal resources in particularly rural areas is one that is going to be very difficult to solve. I want to identify a couple of barriers here that tie back to your question.

 

      One is the changing nature of the legal practice. Now, I’m not making any value judgments here. Marketplaces make decisions sort of collectively, and they have effects. When I started practicing in 1979, a significant part of revenue for any rural practitioner, at least in Minnesota -- it wasn’t true elsewhere in the country, but at least in Minnesota it was the preparation of title opinions. That has now become almost -- I wouldn’t say almost exclusively, but largely a function of title insurance.

 

      Similarly, there’s been a concentration of personal injury work, which again has affected rural practitioners. And so one of the barriers here is what is our theory about how are we going to get more lawyers to practice in places that don’t have enough lawyers. The question is is there enough revenue, is there enough business to sustain even a limited-license technician who has some limited rights to appear in court. And I don’t know the answer to that question.

 

      It’s going to be something that we’re going to be struggling with. I mentioned earlier -- I want to correct one thing I said. I said there were seven counties in Nebraska that didn’t have lawyers. According to the information I have, it’s actually eleven. And the problem, I think, is going to get worse.

 

      One of the models, candidly, that the medical profession has adopted, you’ll find rural communities that wind up subsidizing the hiring of doctors or nurse practitioners or whatever to work in those communities. Now, I think the day when the local county board is going to subsidize lawyers is not -- I don’t think that’s coming [laughter]. But these are going to be some very complicated and difficult issues.

 

Hon. Jennifer Walker Elrod:  Thank you. Do you want to weigh in?

 

Prof. Thomas D. Morgan:  Can I weigh in on this? I think Justice Anderson has hit the nail on the head. Part of the problem here is that there is a cost to practicing law or delivering legal services more generally. And the challenge is to figure out how we reduce that cost or otherwise lower the cost of resolving a dispute or achieving a result that somebody wants to get. And this is where some of the technology that Josh is talking about is likely to really play a part.

 

      There are programs now, I understand, that are capable of taking in information about your case, not the big Supreme Court case – taking the arguments on both sides and suggesting a result without any human being involved in the process at all. I’m not advocating for that, but I’m saying that we’re talking about a world in which we can perhaps lower the transaction costs associated with the delivery of legal services.

 

      It’s a fascinating reality today that there are a number -- at least the surveys I’ve seen are that many solo practitioners are working approximately two billable hours a day, maybe three. It isn’t that they aren’t in the office, they’re trying to keep busy or whatever, but why aren’t they going out to the rural communities?

 

The fact is that it’s costly. It’s costly to provide almost any solution, and the challenge for us is to either simplify procedures or otherwise find ways to get that transaction cost down. It’s not easy. But this is where these institutions, these groups that are being set up by the states, are so important. We’re talking about California, Illinois, Virginia, in addition to the ones we’ve talked about. These are big states. The results are going to be watched. And I think we may well -- we’re certainly going to see something better than just giving it to an ABA commission and saying you solve it for everybody. Then we’ll work from there.

 

Hon. Jennifer Walker Elrod:  That reminds me that when we’ve had natural disasters like Hurricane Harvey in Houston, the Supreme Court suspended the barriers to entry from out-of-state lawyers so that they could come in. And if you can do it in short-term emergency situations, perhaps you can suspend barriers to entry as well. And that’s just a thought. I’m not advocating that.

 

Do you have a question?

 

Questioner 3:  I do. I have two, actually. First, on 8.4(g), though more states have rejected it than have adopted it, the ABA still accredits law schools, and I wonder whether the panelists have seen any noise or activity indicating that that accreditation power is going to be used to enforce the teaching of a model rule that actually hasn’t been adopted very often.

 

      Then, the second question, and then I’ll sit down, is more generally, it seems to each of me that each of your topics, panelists, call into question the core issue of what is lawyering today? I’ve always thought of it as helping people manage the complexity of power or money-sharing rules, but I wonder whether the definition of it is something you could comment on since it seems to sort of be a common thread through all these issues. And I thank you.

 

Hon. Jennifer Walker Elrod:  Thank you.

 

Prof. Thomas D. Morgan:  I think the short answer to your question is that to the extent that we’re talking about the regulation that law schools provide instruction in professional responsibility, including the model rules. 8.4(g) is a model rule, and so it’s part of the requirement. And it’s part of the MPRE. To pass the MPRE, you’ve got to pass a test on the model rules, and not every exam has an 8.4(g) question, but it is testable. So it has its impact, even if it’s not been adopted by the state.

 

      There are a number of rules that have not gotten a whole lot of purchase in the states. The sale of law firms’ rule -- well, I won’t go into all of them, but the point is they’re all testable.

 

Prof. Josh Blackman:  May I add a point to Tom’s observation? Is teaching a class at an ABA accredited law conduct related to the practice of law? Would a professor, even an adjunct in one of these states that adopts it, have to worry about a student filing a complaint with the bar if they make a statement in class that’s demeaning on the basis of age, like my gray hair comment perhaps? This is a non-trivial concern with this capacious definition of conduct relates to the practice of law. Even adjuncts, rather than having a complaint to the dean, you get a complaint to the bar counsel. And don’t think students have motivation. They may. They may want to come after you. So this is another reason why this rule’s very, very scary. I’m tenure. I don’t care. They can’t take my tenure away from me, but they can yank my law license, right? That’s to a pressure point that exists. Texas has not adopted. Thank you.

 

Questioner 4:  One of the questions I have regarding 8.4(g) in particular that I don’t see addressed often is the issue with attorneys who have multi-jurisdictions. So, for example, there’s a possibility that if you’re admitted in a jurisdiction that has adopted the model rule and one that has not, you can have a perfectly legal and ethical representation of a client or statement that then triggers in the adopted one. And, then, we’re creating an opportunity for a reference back to the bar where you had a perfectly ethical practice. I haven’t seen a lot of literature or discussion on that. I’d be curious to hear your thoughts of how we address this for attorneys who are admitted in multiple jurisdictions.

 

Prof. Thomas D. Morgan:  Well, it’s a problem that exists in a number of areas where there is a difference among the rules, and it’s one of the reasons – it’s one of the real arguments made by the advocates of uniformity for eliminating or just saying let’s get rid of the conflict of laws problem by making the rule the same everywhere. And that’s an appealing argument for people who are traveling all over the country in their practice.

 

      We do have conflicts of law rules in the Model Rules that are designed to try to at least minimize the likelihood that you’re going to be convicted in a state that didn’t make your act improper just because it was improper in some other state.

 

Questioner 5:  Hi. First, I’d like to thank Mo for suggesting that we law students have an interest in contributing. I’d like to not be in debt forever. [Laughter] Also, I’d like to direct a speculative question at the two professors on the panel. They’re mentioning to Professor Blackman about law firms maybe will buy some of these technology companies and, also, the suggestion that non-lawyers may be able to own and invest in some of these law firms with changing of law. How do you think these two changes – what are the main problems you think that these could create? For example, antitrust issues? Ethical concerns? Would it change the law practice in general? This is looking 10, 20, 30 years out as more states adopt this.

 

Hon. Jennifer Walker Elrod:  Do you have a comment, Professor Morgan? Did you hear the question?

 

Prof. Thomas D. Morgan:  It’s really hard in this room to hear the question.

 

Prof. Josh Blackman:  I think I heard most of the question. I think the question was if law firms start acquiring these legal tech companies, or conversely you have these legal tech companies starting to invest in law firms, what are the implications? Professor Morgan is well qualified to answer that question.

 

Questioner 5:  That’s exactly the question. Thank you.

 

Hon. Jennifer Walker Elrod:  But what about also large accounting firms.

 

Prof. Josh Blackman:  Yeah. The Big Four. I mean, what if KPMG --

 

Hon. Jennifer Walker Elrod:  Do you have a comment on that?

 

Prof. Josh Blackman:  Professor Morgan, I think you go first on this one.

 

Prof. Thomas D. Morgan:  It is a regulated area, so I suspect that what’s going to happen is that the state supreme courts will be invited to regulate this area and try to minimize the antitrust issues. But there certainly can be an antitrust issue raised if somehow you’ve got a patented technology that a single law firm can use to drive others out of business. I don’t think this is where most of the practical issues are going to arise. There is so much development in the technology space that I think you’d be foolish to try to control the market by buying companies that happen to have existing technology. Somebody else will invent around you very shortly. And so I suspect that this is not where the practical action is going to take place in this area.

 

Prof. Josh Blackman:  Judge Elrod mentioned the accounting firms, the Big Four, like KPMG and the others. They’ve entered the consulting space, and they come close to legal practice in areas. I think Arizona -- did I read that right, Mo? Arizona is looking at maybe breaking out of barriers because once --

 

Mauricio R. Hernandez:  They did it.

 

Prof. Josh Blackman:  Oh, they did it?

 

Mauricio R. Hernandez:  Yeah.

 

Prof. Josh Blackman:  Oh, they did. Thanks, Mo.

 

Mauricio R. Hernandez:  It’s going to go out for public comment.

 

Prof. Josh Blackman:  Mo knows. [Laughter]  Remember Bo knows, but yeah. Close, with no nose (sp). Not Monet, Mo-knows. I’m going to shut up now. But I think that there’s a space for the accounting firms perhaps to crowd in, and you may seem some consolidation which could give rise to antitrust concerns which I think the question was about a moment ago.

 

Prof. Thomas D. Morgan:  Judge, could I just suggest there are three major areas that these conditions in the various states are looking at, and at least it’s useful to kind of keep them straight. One is authorizing non-lawyers to engage in activity that is traditionally been called the practice of law. That was the LegalZoom case. That’s these preparers of documents and so on. There can be all sorts of such things, and that’s where the accounting firms are one of the places they may come in or try to come in.

 

      Second is the licensing of existing lawyers in state A to be able to practice anywhere. Some people call it the driver’s license view of a law license. You’ve got your driver’s license in Virginia. You can drive anywhere. You get your law license in Virginia. You can practice anywhere. What that may do is lead to a kind of national law firm operating with technology, with Skype or something similar, that will perhaps allow interstate practice.

 

      Third is the firm composed of both lawyers and non-lawyers. This is the one that is most attractive to me because I think we have all sorts of problems in the world. Take the divorce situation. Very often it is the problems of sorting out social security and how you take care of the kids and so on that can be handled by people trained in social services who would combine with lawyers and offer combinations of services that you can’t now do. Those, I suggest, are three different kinds of issues that will raise all sorts of different impacts, and we’re going to see simultaneous changes in each of those areas as these commissions deal with them in their particular states.

.

Prof. Josh Blackman:  One last interjection. Are you guys aware of the uniform bar exam that many states, including our beloved Texas, is adopting what’s effectively a uniform law? The federalist in me weeps because now state law becomes irrelevant. There’s just no standard law, and that, actually, makes me very sad. Texas adopted it coming up in two years, so now you don’t need to know oil and gas for the bar anymore. That’s gone. I think there’s a serious loss to the accounts of the federalism when people say it’s just law, the states don’t matter. States matter.

 

Hon. Jennifer Walker Elrod:  Well, as a matter of history, I think about Texas that has come partly from Spanish law, and Mississippi and my other states come from English common law. And Louisiana, my other state in Napolionic code. We have this lovely history of the common law of the states developing through different traditions. That’s not part of the uniform bar exam.

 

      You may have the last question, sir.

 

Questioner 6:  Oh, good. This sort of dovetails with Professor Blackman’s point right there. So as the UBE becomes less relevant to the law of the individual states, do you think you’ll see states -- do you think it’s a non-starter for states to transfer to a certification approach rather than a licensing approach where if you take the bar and become a Virginia certified lawyer, and you get to stamp that on your [inaudible 01:28:18] but you don’t need to be barred to practice law in Virginia? Thank you.

 

Hon. Jennifer Walker Elrod:  Anyone think that there’s likely to be a certification approach instead of a bar license approach? Is it fair to say we don’t know what’s coming?

 

Hon. G. Barry Anderson:  I just want to say one last thing on this question of ownership of -- the involvement of the accounting firms, for example, and owning law firms and things of that sort. The kind of problem that I’ve been discussing, the access issue – greater Minnesota, rural areas, urban areas, unrepresented housing court participants, etc. – that is not an area where I think those developments are likely to have much positive impact. That’s an argument among folks on the very profitable end of the practice.

 

The question you raised about certification -- I think lurking behind the question that you ask is going to be some of these experiments that we’re seeing unfold which is how do we get legal resources to communities and to areas that don’t have them now. And that probably involves something other than a sudden change in the marketplace where there’s going to be a flood of lawyers to rural counties in Minnesota. And I don’t know what it’s going to look like, and I don’t know what the format’s going to be, but change is ahead of us, I think.

 

Hon. Jennifer Walker Elrod:  Thank you very much to our panelists.

     

 

11:00 a.m. - 12:30 p.m.
Special Session: Executive Power vs. Congressional Power

2019 National Lawyers Convention

Topics: Constitution • Federalism • Separation of Powers • Federalism & Separation of Powers
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 16, 2019, the Federalist Society's Federalism & Separation of Powers Practice Group held a special session for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The session covered "Executive Power vs. Congressional Power".

There are a number of currently unfolding battles, involving important constitutional issues, between Congress and the Executive Branch.  At the operational level, they involve the House’s exercise of its oversight, and impeachment powers, pitted against the Administration’s opposition to these efforts.  At the more conceptual level, we hear assertions that arguably challenge the Constitution’s core separation of powers architecture, which holds that the three branches of the federal government are co-equal. How much power does the Constitution give to the Executive Branch, and how much to the Legislative Branch, and does the answer depend on whether or not one of these two branches is exercising power against the other?

*******

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring:

  • Mr. W. Neil Eggleston, Partner, Kirkland & Ellis
  • Hon. Edith H. Jones, United States Court of Appeals, Fifth Circuit
  • Prof. Martin Lederman, Professor from Practice, Georgetown University Law Center
  • Mr. David B. Rivkin, Jr., Partner, BakerHostetler
  • Moderator: Hon. A. Raymond Randolph, United States Court of Appeals, D.C. Circuit

Speakers

Event Transcript

Hon. A. Raymond Randolph:  Okay, let's get started please. Our topic is “Congressional Power vs. Executive Power.” I want to start by just giving you one example of congressional power that's not very well known. But to tee it up, I think it's been said that, in theory, Congress could constitutionally cut the President's salary in half, auction off the White House, reduce the President's staff to one secretary, and limit him or her to answering personal correspondence, which gives you an idea of the extent of  the congressional power.

 

      In fact, Congress did something along those lines when Thomas Jefferson took office.  Congress went and -- well, Adams had a stable of horses that were provided by the Federal Treasury. And Congress ordered those horses to be auctioned off and told Jefferson if he wanted transportation, buy your own horses.

 

      That little history will be expanded by our first speaker, and I'm going to introduce the speakers in the order in which they're going to present. Our first speaker is Judge Edith Jones of the Fifth Circuit, who has been on the court since—what, 1985? Is that correct?—and was Chief Judge for a period of time.

 

      And then, our next speaker will be David Rivkin, who is a Partner in the firm of Baker and Hostetler and co-leader of the firm's national appellate practice. He's published hundreds of articles in the Wall Street Journal, The Washington Post, The New York Times, and so forth. Matter of fact, his most recent -- this is your most recent article, I think, isn't it, David, in yesterday's Wall Street Journal? I'll just read to you the beginning of it, which I found interesting. “Is it an impeachable offense for a President to resist impeachment?”

 

[Laughter]

 

      Martin Lederman teaches Constitutional Law and Separation of Powers at Georgetown Law Center. He served as Deputy Assistant Attorney General in the Department of Justice Office of Legal Counsel, and as an Attorney Advisor in OLC. And in 2008, with David Barron, he published a two-part article in the Harvard Law Review examining Congress's power authority to regulate the Commander in Chief's conduct of war.

 

      Our final speaker is Neil Eggleston. He's a Litigation Partner in the Washington office of Kirkland & Ellis. He was White House Counsel to President Obama, Associate Counsel to President Clinton. He served as Deputy Chief Counsel of the House of Representatives Select Committee investigating the Iran Contra Affair, and he was also an Assistant U.S. Attorney.

 

      Judge Jones.

 

[Applause]

 

Hon. Edith H. Jones:  Thank you very much. To set the stage for discussion of these issues, I'm going to go into history. I had breakfast with my law clerks this morning, and one of them was reminding another one that he had only been born in 1987 when the other law clerk had finished up his term. So I am not speaking from personal knowledge about the events surrounding the impeachment of President Andrew Johnson.

 

[Laughter]

 

      But I have read up on the subject in more sources than Wikipedia. One of those that I would commend to you is Justice Rehnquist's book called Grand Inquest, and before that, there was a book written in 1973 by Raoul Berger called Impeachment: The Constitutional Issues. And again, some young person said to me recently, “Who is Raoul Berger?” Well, Raoul Berger was a fellow who did extensive research in legal history over a period of nearly 50 years, starting in the early 1960s. I became a friend of his when he was a spring chicken of 84, and he only recently just passed away within the last 10 or 15 years.

 

      But what had provoked his writing that book? You may think, as I did originally, “Oh, this had something to do with Nixon and Watergate.” No it didn't. Raoul got concerned, I believe, because the then most recent event was Congressman Gerald Ford introducing a resolution to impeach Justice Warren O. Douglas. So there's quite a rich history in this country of impeachment. I will add one other footnote. When I was the Chief Judge, we had to engage in misconduct inquiries regarding two federal judges, one of whom, Thomas Porteous, was eventually tried, convicted, and removed by the U.S. Senate.

 

      And in my first or about second year on the court, I was one of the only non-recused Fifth Circuit judges who sat on the appeal of the conviction of Judge Walter Nixon, who was tried and convicted for perjury, and insisted on his rights, and was tried and removed by the U.S. Senate. And that gave rise to an interesting case called Nixon v. United States, which is not Richard Nixon, but Walter Nixon. And Walter Nixon contended that he could not be tried in the U.S. Senate by a committee of less than the whole Senate. He lost, and Justice Rehnquist declared, for a majority of the court, that most of the issues surrounding impeachment are non-justiciable political questions.

 

      Reading Justice Story or The Federalist Paper, one is inclined to think that most of the issues surrounding impeachment are, indeed, non-justiciable political questions for good reason. As Alexander Hamilton said, there are inherent conflicts of interests because the power to impeach is not the power to convict, criminally, for anything, and therefore an officeholder who is impeached may be tried. And if a judicial body, like the Supreme Court, were to get involved, it would be an inherent conflict of interest, having presided over both proceedings.

 

      The impeachment was regarded by the Founders, I think, as a baleful necessity. They had a lot of examples for hundreds of years in English law to draw upon of impeachments that were used to rein in the Ministers of the King. Some of them were conducted for good reasons. Many of them were not conducted for good reasons. And therefore, the notion of impeachment is hedged about very carefully in the U.S. Constitution. That said, it is an inherently political endeavor, and we will see this in what happened to Andrew Johnson.

 

      Most of us have studied Andrew Johnson as just a footnote to Lincoln's assassination and a brief transition between Lincoln and Ulysses S. Grant and the passage of the Reconstruction Amendments. Johnson -- there was good reason why he was Vice President. He was one of the few Democrats who was not in favor of secession. He was a Tennessean. Lincoln had appointed him the interim Governor of Tennessee as the Union was prevailing and brought him on as Vice President.

 

      Unfortunately, he had much different ideas about reconstruction than the Republicans, who had taken over two-thirds of both the House and the Senate, following -- well in 1866, I guess. Almost within a few months, they started planning how might they impeach Andrew Johnson because he kept vetoing reconstruction legislation, among other things. They set up a committee to investigate possible grounds of impeachment, some of which had to do with his personal conduct. The committee went nowhere. One law clerk was reminding me this morning, they set up a second committee. That committee went nowhere.

 

      Finally, Andrew Johnson provided an issue for them. What was that? He dismissed the Secretary of War, Stanton, who he believed had been leaking information to his political opponents, at this point, the radical Republicans. And he had suspended Stanton in 1867, but then brought him back into office, partly because he couldn't find a replacement. Then, in early 1868, he felt obliged to dismiss Stanton. But he wanted to appoint a successor immediately, knowing that this was a case that was going to get into the U.S. Courts on a question about the Tenure in Office Act.

 

What was the Tenure in Office Act? Congress had passed, over Johnson's veto, a law that said that any person appointed by the President with the advice and consent of the Senate could only be removed by the President with the advice and consent of the Senate. Sixty years later, the Supreme Court would agree that that kind of law was unconstitutional as a matter of separation of powers, but it was not decided at that time.

 

So when Johnson dismissed Stanton in February of 1868, three days later, the Republicans lept on that and impeached him. Ten days after that, they presented eleven Articles of Impeachment to the U.S. Senate, nine of which had to do with the abuse of the Tenure in Office Act, one of which was complaining, as an impeachable act, that President Johnson had been badmouthing Congress, essentially.

 

[Laughter]

 

Johnson hastily assembled a defense team. The period for reply and rebuttal, which are spoken of in the Constitution, were foreshortened. One of the members of his defense team was the Attorney General, who resigned in order to take on that responsibility. Another member of his defense team was Benjamin Curtis. Benjamin Curtis wrote the dissent in Dred Scott. He is the only member of the Supreme Court ever to have resigned, on principle, as a result of that decision. No doubt he had quite different views from those of President Johnson on the matter of Reconstruction, but he came in to defend him. There were several other eminent lawyers, as well.

 

During the trail, one of the members of the defense team fell seriously ill. That man was supposed to have offered significant testimony. The Republicans were a dominant majority in the U.S. Senate. The defense team asked for a continuance of 48 hours. They were given, basically, half a day. The rules of -- although the Chief Justice Chase presides at the impeachment trial, the rules for conducting the trial were not exactly according to Hoyle because it was ambiguous whether the Senate could overrule the Chief Justice's rulings. And indeed, they did so on several occasions, saying that the President could not offer the evidence that he sought to offer. So it was a very interesting proceeding. There were some questions raised, I think, by the defense team about whether they were being given, what we call due process of law.

 

I think I need to start concluding my remarks. Eventually, as you probably know, he escaped impeachment by one vote. Seven Republicans ended up voting against impeachment. In the aftermath, there were various charges of vote buying, the President trying to get support, the radical Republicans trying to get support from others. And some years after, in fact, not many years afterwards, Andrew Johnson was -- many of the people who had voted for impeachment realized that it was a political misadventure, but had it succeeded, it would have fatally undermined the power of the Presidency.

 

Now, just to put a little more point on some of the parallels or comparisons with the present time, I would note that the Articles of Impeachment dealt with the Tenure of Office Act. But in fact, those were a mask, in my view, for the real problems, which had to do with the administration of Reconstruction, which is serious policy disagreements. The voting was entirely on a partisan basis. Andrew Johnson was impeached within less than a year of when the national elections were going to be held, so people were saying, “Why bother? He'll be out of office. Ulysses S. Grant is standing in the wings. What are we trying to do?”

 

And finally, he did have serious constitutional arguments on his behalf. Number one, that he hadn't even violated that statute. Number two, that that statute was probably unconstitutional. A piece of evidence he was not allowed to admit was that his entire cabinet, along with ousted Secretary of War Stanton had advised him to veto the Tenure of Office Act. But he wasn't allowed to admit that.

 

So there is a lot to be said about this episode as demonstrating the difficulties, the political perils, and the threats to the presidency that exist in the nature of impeachment, and, what other members of the panel will talk about, overriding or overweening congressional inquiries. Thank you.

 

[Applause]

 

David B. Rivkin, Jr.:  Thank you. It's an honor to follow a great judge from a great circuit. I want to also thank Federalist Society for bringing us together. I can think of no other organization in Washington that doesn't just sponsor discussions on key constitutional law issues but consistently and conspicuously endeavors to ensure that the panel that's discussing them has some balanced composition. Since I suspect some of us might have a little bit of a spirited discussion later on, the credit goes to The Federalist Society.

 

      Now, to give you a slightly broader picture, at the time we conceived this panel, there, of course, were already numerous unfolding battles between Congress and the Executive Branch. At the operational level, those battles involved, shall we say, vigorous oversight process, pretty vigorous. And those battles are both quite partisan, and are not, in my opinion at least, very much animated by institutional impulses.

 

      Now of course, those battles are as old as our Republic, but the intensity and breadth are quite remarkable. To put it crisply, as far as the Congress is concerned these days, there's not simply a single Executive Branch agency or department where we're handling foreign and domestic policy issues, that's not lurching from one act of malfeasance to another. At the risk of sounding overly humorous, I would say since the Trump Administration doesn't seem to have gotten control of most of the machinery of government, I find it a bit peculiar that all the agency and departments have gone to seat on their own, but maybe something remarkable happened here.

 

      Another interesting detail to me, and somewhat depressing, is what I would call a relative dearth or de-emphasis of Congress’s long-term institutional interests in most battles. This is not how things were meant to be. For centuries, we've had great congressional leaders from both parties who strove, in addition, of course, to being politicians, to vindicate what we would call institutional prerogatives or Article I. In modern times, folks like Robert Byrd from West Virginia, Ted Kennedy from Massachusetts, and I would say Mitch McConnell from Kentucky come to mind. And that's exactly what the Framers expected because they expected that the institutional considerations would lubricate the separation of powers architecture, each branch jealously protecting its turf, and even trying to invade the turf of other branches.

 

I think it's a bit sad—I'm repeating myself—it's not entirely true anymore. For example, we're just a few days from a Supreme Court argument on DACA. It's worth noting that congressional Democrats were quite supportive of the Obama administration's both DACA and DAPA exercises, despite the fact that they both involved, in my opinion, what the British used to be called suspending power. Not the exercise of run-of-the-mill prosecutorial discretion, but rather the power to stop entirely the enforcement of a particular piece of legislation. Not only had the Framers rejected that type of authority, but to put it gently, it seriously challenges congressional power. What's the point of passing legislation on any issue when the President can ignore any statute he wants? It did not happen to him, what happened to Andrew Johnson. And yet congressional Democrats were fully on board.

 

Now, at the more conceptual level, we've heard recently assertions most prominently from Speaker Pelosi that I would at least say challenge the Constitution's core separation of powers architecture, which pretty much assumes that all three branches of federal government are co-equal; different powers, to be sure, but co-equal. Some of you may have heard Speaker Pelosi refer to Congress, several times, as the superior branch. Should have been, in my opinion, something that discomfited the Framers.

 

The Framers, as we know, were quite concerned about legislative supremacy, even expected that because they felt legislation would then be our most powerful branch, devoted much of the debate in Philadelphia to figuring out how to give sufficient authority to the other branches to deal with this, but certainly not whooping for joy about this. It's depressing to me that the difficult questions, how much power does Article I have versus Article II and what happens when they come into conflict, seems to be mostly answered entirely these days, driven by partisan considerations, depending on which political party’s ox get gored.

 

And now, we're in the middle of impeachment. There is a stunt of the battles that Judge Jones was talking about in terms of the first presidential impeachment. Now we have the House Democrats driven impeachment inquiry, or to put it more bluntly, pretty much peer ordained impeachment of President Trump, not an unprecedented development. In addition to President Johnson, we had 12 other presidents. President Nixon and President Clinton became subject of impeachment process, and then of course, Johnson and Clinton were impeached by the House but acquitted by the Senate. Nixon resigned.

 

But I would say there are few things, and hopefully we'll talk about it more as we go on with the panel, there's some aspects of this impeachment process that, in my opinion, are quite different from what's gone before. And by the way, I happen to think from separation of powers perspective and sort of a democratic accountability perspective, presidential impeachments are quite different from impeachment of judges and Executive Branch officers since it is the President alone who is elected to office by all the people.

 

So what's peculiar about the current process? First, the House did not vote to authorize the current impeachment inquiry until several weeks into the process, after a considerable period of time of secret hearings in the House Permanent Select Committee on Intelligence. And even after the hearings have started last week, ability of the House Republicans to call witnesses and participate vigorously in the process remains firmly controlled by Chairman Schiff and the Democrats.

 

I think there's serious problems, incidentally. Unlike some of my friends and colleagues, I would not call it due process. The problem is, I'm not convinced that, technically speaking, due process applies to impeachment proceedings. But I do think that these are problems because they certainly rank consistent with centuries of Anglo-American practice and the fundamental norms of fairness. To me, it matters the fact that judicial review, as Judge Jones pointed out, does not touch most aspects of the impeachment process does not mean that there are no applicable constitutional norms. That also causes the impeachment to be even more polarizing than it would otherwise be.

 

Let me just briefly say that there are, at least my opinion, some merit problems. Does the President's conduct rise to high crimes and misdemeanors as a matter of law? Let's forget about the facts. I expect us to spar about this, but let me put two things on the table. First, unlike the case of President Clinton and Nixon, but somewhat like the case of President Johnson, President Trump is being impeached because of his exercise of his core constitutional power.

 

Now, I know some of you may say, “What are you talking about? There are Articles referring to the abuse of power in the Nixon impeachment.” But I would say the core underlying conduct, his coverup of Watergate break in, had nothing to do with the exercise of presidential power. And Clinton misconduct, lying under oath, had even less to do with being a President. And yes, Johnson's conduct violating the Tenure in Office Act did involve, of course, discharge of his powers as the head of Article II. But to me, the fact that this all stems from Trump’s exercise of his discretionary core foreign affairs powers is very, very significant.

 

Let me repeat what Judge Randolph was kind enough to flag. To me, the fact that there are going to be, for sure, Articles of Impeachment that talk about obstructing congressional inquiry in a situation where the President has asserted two judicially blessed and long established venerable privileges, absolute privileges, for immediate advisors and for national security. And the House is going to do that without seeking to adjudicate this matter definitively. In fact, doing their best not to adjudicate this matter definitively by withdrawing the subpoena to Mr. Kupperman and trying to moot the case, which is now before Judge Leon, to me is quite stunning.

 

Let me add on a nonpartisan note, even though I'm going to repeat what Judge Jones said about Andrew Johnson's Articles of Impeachment, but I cannot help myself because it did contain some snarky charges. And I'm just going to read from the very article that Judge Jones was talking about. So he gave three speeches that were contumacious. And the quote is that “he attempted to bring disgrace, ridicule, hatred, contempt and reproach to the Congress of the United States and brought disgrace and ridicule to the presidency by his aforementioned words and actions.” So if I remember correctly, the Senate actually rejected those Articles without trying them, but it goes to show impeachment does tend to be an ugly business.  Thank you.

 

[Applause]

 

Prof. Martin Lederman:  I, too, would like to thank The Federalist Society and Judge Randolph, Judge Jones, David and Neil for being able to be part of this very important and timely panel. I have to confess that at about 12:30 last night, I turned on the internet and -- is that what they call it, turning it on?

 

[Laughter]

 

      And I had to basically tear up my remarks for today because I read the Attorney General's remarks from last night and he said everything that I was going to say.

 

[Laughter]

 

      So with Judge Randolph's indulgence, though, I do want to -- I hope I won't go too far over time. I do think it's important to respond because he was speaking about the topics of this panel and because his speech will and ought to get some attention. I thought I would just give a couple of short remarks, but obviously it's the sort of stuff that would warrant its own full panel, in fact, its own full conference.

 

      His speech was met with a rousing ovation. Many of you were probably there. And I have to confess, this confused me a little bit because, after all, I had been led to believe that originalism, close adherence to text, were proud articles of faith for most Federalist Society members. And yet, here, many of you were on your feet cheering a view of the Executive that would have been unrecognizable to the Framers — (Although I don't know if Mike McConnell is out in this crowd. He's speaking next. And Mike is writing a book about the executive power at the origins, and I'm very eager to read it. I suspect I'll disagree with a lot, but I always learn an enormous amount from Michael's work.) — that asserts presidential powers, prerogatives, and immunities that are entirely untethered from the text. Where do you find executive privilege, testimonial immunity, the claim the Attorney General made that the President's prosecutional board "cannot be directed by a pre-existing legal regime," although it has since the start.

 

      And then in addition, his remarks, I think, or his view of the President are deeply inconsistent with centuries of history and Supreme Court precedents, for the handful of you who continue to think those old-fashioned modalities are relevant to constitutional interpretation. So I hope that there will be an engagement by The Federalist Society, in particular, on the terms that you rightly champion about constitutional interpretation with the Attorney General's remarks.

 

But before moving on, there was something else that disturbed me and many other people about the speech, and I thought it would be incumbent upon me to briefly answer a question the Attorney General asked about those to whom he referred as “the other side.” I'm troubled by that reference. I assume that he meant folks such as myself, although I don't feel as though I'm on a side. He expressed befuddlement that we, on the other side, accuse this administration of shredding constitutional norms and raging war on the rule of law.

 

According to him, he often asks his friends on the other side, “What are you referring to?” And his friends respond with vacuous stares. I'm not sure what that says about his friends --

 

[Laughter]

 

-- but just this morning, one prominent Federalist Society member, and a very fine scholar, offered this as one example as an answer to the Attorney General's question. How about when the President of the United States farms out the nation's diplomacy to his personal attorney, a man who he concedes was acting pursuant to his duty of loyalty to the President in his individual capacity for the purpose of leveraging valuable military aid and other crucially desired support in order to pressure a foreign nation to announce on CNN a criminal investigation of his likely opponent in the forthcoming election?

 

Or when the President publicly declares he has tremendous power to respond if China doesn't do what we want, namely start an investigation into the Bidens? Or when he attacks career diplomats, urges the exposure of whistleblowers, tries to control DOJ and FBI criminal investigations concerning himself and those close to him? When he insists that no other persons be present, nor any, even, transcript be made of his meetings with Vladimir Putin shortly before affirming Putin's view contrary to the American intelligence community's findings that Russia had nothing to do with the interference with the election? Accusing countless legislative and law enforcement officers of treason when he's not busy taunting them with schoolyard references to their physiques?

 

The list really does go on and on. That's just the last few days. I think most of you would agree, and some of you—I think this is very important—some of you have publicly said so, and unabashedly, much to your credit, that there's plenty of shredding of constitutional norms on a daily basis, if you only know where to look for it. And this previously unthinkable conduct has become, I think, the new norm, or at least the new normal.

 

I just want to add one more example that troubles me of norm shredding. When learning about this blatant abuse of presidential authority related to the Ukraine, the subversion of American foreign policy to personal ends, and his open insult on the integrity of U.S. elections, the President's Attorney General and Secretary of State, as far as we know, and this may not be the full story, apparently took no steps to end that practice. Contrast that with what we saw not so long ago, when John Ashcroft and 30 other high-level DOJ officials, some of whom are likely in this room or attending this conference, threatened to collectively resign in protest in the middle of an election year rather than be party to what they saw as a systematic violation of presidential obligations.

 

I make these remarks very much in sadness and in deep concern, rather than in anger and certainly not as a “got you” point. I hope that we will have our hospital room moment, maybe with many of you in the audience, sometime soon.

 

So my task here today, to turn to the less contentious matters, perhaps the law, is to mostly be descriptive and to give you, in the audience, some sense—things are coming so fast and furious—about three things. The first, very briefly, is a very important Supreme Court case now pending that many of you know about, that will actually involve Kannon Shanmugam, Noel Francisco, and Paul Clement, all arguing with Paul on the other side. He was appointed by the Court, the Seila case involving the constitutionality of the CFPB's removal provisions. The second thing I'll talk about is the series of cases involving congressional oversight of the President and subpoenas. And then finally, a few words at the end about the lurking issues that aren't yet in the courts, and may never be, but to my mind, and Neil's I think probably, are the most important which is lurking executive privilege questions, to which we're very sympathetic. Both Neil and I were government lawyers and we actually are quite -- I joked at the outset, but I'm actually quite a big believer in significant presidential prerogatives, albeit subject to congressional or statutory checks. And so the executive privilege questions, it strikes me, are important and probably won't be resolved by the courts. And I'll have some words about that.

 

So let's start with Seila. Statute provides that by the Dodd-Frank Act, as many of you know, the President may not remove the director of the CFPB except for inefficiency, neglect of duty, or malfeasance in office. We often refer to this as for cause or for good cause. Now-Justice, then-Judge Kavanaugh wrote a dissent in the D.C. Circuit—I won't go into detail, most of you know this—suggesting that the fact that this was a single member, not a multi-member commission, made this unconstitutional, even if a multi-member commission with the exact same removal provisions was constitutional, which is the currently governing law. I don't think this distinction, frankly, has any basis in text or original understanding. It's purely functionalist. And I'm a functionalist, so that's okay with me.

 

I don't agree with Justice Kavanaugh, but I do think it’s notable. And I look forward to the originalist and textualist briefs from many of you writing on behalf of the CFPB in the case, but I'm not sure it'll make a difference. I think the Court will likely, but not certainly, say that this is unconstitutional. And of course, what's really at stake here is what Attorney General Barr said last night, namely, the very fact of independent agencies. It won't be resolved in this case, but ultimately, Attorney General Barr's argument that if Congress tries to vest the power to execute the law on someone beyond the control of the President, it contravenes the Framers’ clear intent to vest the power in a single person would, if accepted by the court, mean a radical change in American governance.

 

Everyone agrees the President must retain some control to make sure that the officials can faithfully execute the law, and a good con standard accomplishes that, as the Morrison case held. But actual power to direct and to remove the officer if she exercises discretion in a manner inconsistent with the statute -- consistent with the statute, but different from what the President would prefer, that would mean the end of the independent agency, something that Chief Justice Rehnquist, Justice O'Connor unceremoniously rejected, along with all but one other justice in the 1980s in Boucher and Morrison, and it's easy to see why. Imagine if President Trump, or a President that you might like less than President Trump, making decisions, directing decisions on the nations campaign finance laws, or access to the media, or adjustment of the nations monetary policy to advance his or her political electoral prospects. You don't really have to imagine it. We're seeing it now. The President wants to do just that.

 

Okay, oversight and subpoenas, this is the main issue that I'll address. Here, I'm going to go sort of rapid fire. I apologize, but if you have any questions, we can get into it in the Q&A afterwards, if you're interested. There's six cases now being litigated that implicate the questions of congressional oversight of the President and related questions. That doesn't even include the Kupperman case, to which David referred, because I think that will be dismissed by Judge Leon either on mootness or no cause of action grounds quite quickly.

 

There's motions by both sides, the House and the President, to do so. I think he will agree with that. Most of them involve efforts by the House, and in one case, a New York Grand Jury, to obtain Donald Trump's personal tax, bank, and financial records for many reasons, but the most important ones are those cited by late Chairman Cummings specially to see whether the President has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, what explains his inclination to accommodate law and capitulate to strongmen, such as Erdogan and Putin. Perhaps nothing, maybe the documents will show that, perhaps something else. The case that's further -- that's not me, is it? [Checks cell phone]

 

[Laughter]

 

The case that's furthest along in these is Trump v. Vance, the one that you know the cert petition was filed this week, which doesn't involve the House, itself. There the claim, the theory is that states’ grand juries are categorically precluded, not only from incarcerating, not only trying, not only indicting the President, but from actually investigating his crimes, or whether he was involved in anyone else's crimes, in his personal capacity. Judge Katzmann's opinion for the Second Circuit, I think, is airtight. I suspect the court might grant cert on this, just as in deference to the President, but I will be surprised if this gets any, or many votes. I think it's a radical claim that even the Department of Justice is not supporting for reasons that we can get into later. I want to move quickly ahead.

 

More important are the four other cases. In one of them, the House Ways and Means Committee is suing the Department of Commerce to require it to comply with the law that says it shall furnish the committee with any tax returns that are requested. The other three cases involve parties who are willing to respond to House subpoenas, or House requests, Deutsche Bank for the President's bank records, Mazars for his accounting records, and the State of New York who, under a new New York law, would give the House committees Trump's state tax records if and when the committees ask for them. They haven't done so yet.

 

And the last case, Trump's suit is now against the House, actually. He wants an injunction in his personal capacity against them asking New York to share the records. Mazars and Deutsche Bank, Mazars out of the DC Circuit, Deutsche Bank out of the Second Circuit, are the furthest along. Mazars, I think, will be -- there will be a petition in that very soon. I think it will be granted, I hope, on expedited briefing. I don't know what the Court will do. This is the one in which Judge Rao gave a dissent. The Ways and Means v. DOC and Trump v. Ways and Means cases are still awaiting non-merits rulings from Judges McFadden and Nichols, respectfully. I don't think those will be the ones that get to the Court.

 

It's important to stress at the outset, Trump is not asserting executive privilege in any of these cases. Instead, the arguments are that the House is absolutely disabled from obtaining information about the President, even in his personal capacity, and even when a third party is willing to provide such information voluntarily. There are three variations of the argument, very quickly. The first, offered by both Trump and DOJ, is that outside the impeachment context, Congress can only investigate anyone or anything for purposes of deliberating upon possible legislation, not to inform itself or the public about the conduct of current officials, not to discover whether they're subject to conflicts of interest, not to deter officials from wrongdoing, and that both the courts and Congress can conclude Congress doesn’t have a generally permissible legislative purpose. It's a very radical argument, I think. I've written about it. We can talk about it later.

 

Second, Trump, not DOJ, argues further, this means Congress can never investigate the President, at least outside of impeachment, because Congress can never legislate concerning the President's personal finances, not even to impose disclosure requirements. This would mean that many current statutes are unconstitutional that every President has complied with. It would also mean that all the famous congressional investigations that you're familiar with, the Ervin Committee in 1973, the Iran-Contra, and the like, Congress never had any constitutional authority to engage in any of those, even though no one, at the time, thought to make such an argument. 

 

Third, Judge Rao, in her dissent in Mazars, contends Congress may not investigate, and certainly may not compel testimony or documents, with respect to any constitutional officers, not just presidents, but judges, Executive Branch officers and the like, unless it first triggers impeachment proceedings, that it has to do something with respect to impeachment before it can investigate the wrongdoing of any officers of the United States. I don't think this will pick up any votes. It didn't even secure Judge Katsas’s in the en banc panel. But I do think the Supreme Court will take up the Mazars case and possibly the Deutsche Bank case if the Second Circuit issues its decision soon, which I hope it will do.

 

Then there are cases where the House subpoenas current or former officials to testify, and in those cases, the Department of Justice is making this claim of absolute testimonial immunity with respect to certain close advisors of the President and former close advisors of the President, such as Donald McGahn. In the McGahn case, which is the one furthest along, the Office of Legal Counsel, including when I was there, although I was recused from the case, has been making a version of this argument and making it stronger and stronger and stronger for about the last 40 years.

 

It emanates -- it first appeared in public, anyway, on March 12, 1973, when President Nixon—this is at the very beginning of his second term—was trying to preclude testimony by then-counsel John Dean and former aide Dwight Chapin. And he wrote that under the doctrine of separation of powers, the manner in which the President exercises his powers is not subject to questioning by another branch of government at all. And therefore, he said, “Obviously, it's equally appropriate that members of my staff not be so questioned because they're just an extension of me, and Congress can't investigate me.” As I'll mention at the end, that position lasted seven weeks for the President. He gave in after seven weeks.

 

The Court may resolve this question later in the context of the McGahn case, or a case against -- if the House subpoenas Kellyanne Conway or some other official who's making this claim, but I don’t think it will be resolved during the impeachment proceedings, maybe not even during this term of President Trump's presidency. I do think it's very important, and I think it's wrong for reasons we can discuss, this absolute immunity claim.

 

And that leads to my final topic, which is what's underlying and what troubles me the most—and I think Neil as well, probably everyone on the panel—is that even if there's not absolute immunity, what folks such as John Bolton or Mick Mulvaney, even, or others would be asked to testify about in this context are things that we agree should be confidential almost all of the time. They're at the core of what we would think of as executive privilege, communications with foreign officials, communications with high level national security aids and the White House counsel. I'm a big believer in keeping those communications confidential most of the time. I was very troubled by the leaks, for instance, much as I hated the substance of them, of the leaks of the President's communications with the Australian Prime Minister and the like.  I don't think that's right, and I think it's very destructive.

 

There is this issue, though. It's coming up now in the context of impeachment. And one thing that's really interesting, and this is to build on what Judge Jones was saying, the tradition, even among Presidents who resisted their aides and themselves providing information to Congress and other context, always confess, going back to the Washington Administration, in no uncertain terms, that when it comes to impeachment investigations, of course. The House is entitled to everything within the Executive Branch, all of the information, all of the documents—okay, I’m wrapping up—which President Polk wrote that the safety of the Republic would be the supreme law and the power of the House and the pursuit of the object would penetrate into the most secret recesses of the Executive departments.

 

And Andrew Johnson did not assert any kind of privilege. His communications with his aides were freely part of the impeachment proceeding, interestingly. And until Nixon, that was the case. And like I said, even Nixon gave in under pressure seven weeks after he asserted this and long before even there was an impeachment proceeding at play.

 

So I'm worried about executive privilege, but it might be outweighed by the need of the House to investigate. And I want to say that I don't think these executive privilege questions, which I think are the most important, will probably be resolved by the courts. They're being resolved in other ways. First of all, possibly, at least in some administrations, like Johnson, like Nixon, by voluntarily allowing the conversations. After all, the President says everything was pitch perfect. He wants you to read the transcript. Well, let's read all the transcripts. Once you've let this out, it might get out there.

 

And even when the Executive Branch or the President is trying to keep officials from testifying, what we're seeing is really remarkable. White House Counsel Cipollone directed all parties not to cooperate, saying that the House's impeachment proceedings were unconstitutional and baseless. And yet, many people are voluntarily doing so. Now, they're not talking about their communications with the President yet, but they might. And it's that sort of thing, people coming forward and resisting when they know that very severe wrongdoing is going on in the Executive Branch and the President isn't making things available to Congress that will probably be the way that much of this gets out in the public, as it has already.

 

I just wanted to make one slight correction to Judge Jones. I taught it wrong for years, and I think most of us do. President Johnson did not remove Edwin Stanton. He tried to remove Edwin Stanton, but Stanton stayed in office, literally stayed in the office. His replacement, Acting Secretary Lorenzo Thomas, couldn't get in the building. Stanton locked him out and continued acting as Secretary of War. Talk about the deep state. What's that, Judge?

 

Hon. Edith H. Jones:  He did not continue acting. He was not allowed to continue acting.

 

Prof. Martin Lederman:  Who?

 

David B. Rivkin, Jr.:  That’s right.

 

Hon. Edith H. Jones:  Stanton.

 

David B. Rivkin, Jr.:  And Johnson issue communications to --

 

Prof. Martin Lederman:  No -- maybe I'm wrong. Okay, maybe we'll debate this. I thought -- Stanton remained in the building as far as I know. It's a better story anyway.

 

[Laughter]

 

Hon. Edith H. Jones:  And you know what? That's just like the protestors who took over the President's office at Columbia University, but they didn't become the president because they littered the office.

 

[Laughter and Applause]

 

Prof. Martin Lederman:  I agree. And I actually think -- I actually don't think Stanton did the right thing, so I didn't mean to suggest that. But I do think that --

 

Hon. A. Raymond Randolph:  -- May I interrupt you? I've shared the experience as a moderator every once in a while, and a famous Harvard professor who will go unnamed kept going on and on and on. And he said, “The judge is looking for a gavel.” And I said, “No, I'm looking for a U.S. Attorney.”

 

[Laughter]

 

Prof. Martin Lederman:  Well, since I believe in the power of U.S. attorneys to prosecute, I will sit now and talk more later.

 

[Applause]

 

W. Neil Eggleston:  Thank you very much. So there's a note up here, presumably written to Marty, which is underlined, exclamation point. It says something like, “Please wrap up.” Then below that it says, “Please wrap up.” And then below that it says, “Please wrap up!”

 

      So anyway, I also want to thank everybody for the invitation. I've attended a couple of these, and I always appreciate the invitation. And mostly -- and I think, I can't remember if my friend, Mr. Rivkin said this or not, this organization is to be praised for having people like Marty and me appear on these panels. We recognize you don't always agree with what we say, but we're treated with respect and we're listened to, and maybe we'll help you think through some of the issues. We don't necessarily think we're going to change your mind.

 

      I will not go as long as Marty, and I don't speak as quickly as Marty.

 

[Laughter]

 

      So those of you whose ears are bleeding, I will try to slow down a little bit.

 

      The one thing -- there are just a couple comments I want to say in response to some of the things that were said, which was one is in the Spring I teach a seminar at Harvard Law School on presidential power. And you could tell from the list of cases that Marty went through that the syllabus is going to expand, once again, in the spring as these cases come down. Already, the biggest complaint from my class is that I assign them way too much work.

 

      A couple other issues -- I was fascinated, as well, by the DACA argument earlier this week. I would actually have to say I was surprised that the Court took the case because it went straight from district judges to the Supreme Court, if I'm remembering correctly. And all the district judges, including Judge Bates, who's certainly not a rabble-rouser, all concluded that the determination that because of DAPA, DACA was illegal was not appropriate. But as a policy matter, if the President wanted to do it, the President could do it. Everybody said, just go ahead and do it. It's odd that the Administration essentially refused to go ahead and make the policy determination and, instead, took it to the Supreme Court. And I was equally surprised, actually, that the Supreme Court took it. It seemed like something that was pretty easily solvable without getting the Supreme Court involved.

 

      David, I just have -- where you have your Pelosi quote about, “We're the superior branch,” I just want to come back with my Trump quote, which is, “Under Article II, I can do anything I want.”

 

[Laughter]

 

      I'm pretty sure people in this room don't believe that. I assure you that President Obama would not have believed that, as well. And finally, the only other thing I wanted to say…

 

[Laughter]

 

      This is a tough crowd if you disagree with that. So actually since -- and again, I then will race through the rest of my remarks, although I won't talk quickly.

 

      So on DAPA, which was the one that took place when I was the White House Counsel, various interest groups would come in and talk to the President and they would push him, “You should go big on this. You should include as many people as possible.” And I was usually in the room. And he would, at some point, invariably, turn and point at me and say, “I'll go as far as he lets me go.” Well, that didn't work out so well; lost before Judge Hannah, lost before the Fifth Circuit. I think you were not on the panel, if I’m remembering correctly. And I think we didn't seek on en banc because we wanted to get straight to the Supreme Court. And actually, it ended up 4-4 in the Supreme Court, so that's the way it was resolved.

 

      So let me just talk a little bit. I'm going to talk about some of these conflicts that others have talked about in a much more practical sense. And like Marty, and probably even more than like Marty, I'm a pro-President person in these arguments. I worked for President Clinton during the Whitewater and Monica Lewinski investigation. I argued in Ray Espy, which is probably the leading case on presidential communications and executive privilege. That was my argument in the D.C. Circuit.

 

      I argued the Lindsey case, which had to do with attorney-client privilege, governmental attorney-client privilege. I actually lost that one. I think -- Judge Randolph, I can't remember if you were on that panel or not, actually. I was thinking you were the third judge. I remember Judge Rogers and Judge Tatel, and I was thinking you were the third judge. So Judge Randolph voted against me, and I lost. And in addition --

 

[Laughter]

 

Hon. A. Raymond Randolph:  -- It was a good argument.

 

W. Neil Eggleston:  Thank you. Thank you. [Laughter] So I'm going to relay that to my clients, immediately.

 

[Laughter]

 

      So in addition -- and this is sort of -- and Marty talked about this a little bit, this issue has come up a lot about absolute immunity for Executive Branch officials responding to congressional testimony. The most recent opinion on that in the Obama administration was actually written to me in the summer of 2014, and it involved David Simas, who at the time was head of the office of Public Engagement. I can't remember what it was called. And he'd been subpoenaed by Chairman Issa, an order to testify. And I got an OLC opinion that said that he did not have to respond, actually, in response to those.

 

      It was quite a narrow opinion. It applied to current officials. I actually think that the principles -- I haven't completely thought through this, but I don't actually think the principles that at least concern me apply to former officials. The way I thought about it -- and I saw this, actually, in the Clinton Administration—a number of you will probably remember this—where there were just waves of people were called up to testify in various different proceedings. I testified before Congress more than once in the Whitewater investigation.

 

      My worry about this is that Congress can, essentially, disable the President from performing his function if he can occupy all of his aides. The President has to work through his aides, and if they can tie up the aides, they can really disable the President from performing his function. I think that that is a valid issue. I haven't really thought through whether it's still valid in an impeachment inquiry, and I think I just have to think more about that. Marty had some comments about that. I have to think more about that. I don't really think that the issue is all that valid, actually, with prior former officials, and so as to a John Bolton or a Don McGahn, I think that should be fairly easy. I don't know how the courts are going to come out, but I actually think that that should be fairly easy.

 

      Let me get to just a few more nuts and bolts issues. The Cipollone letter -- Pat was my partner at Kirkland & Ellis for a time. He left Kirkland, actually, when I was at the White House. I have to say -- I assume Pat is not in the audience. I assume he's got important things he's doing at the moment; Pat, obviously being the White House Counsel. I wouldn't have sent the letter. I wouldn't have sent it for two reasons, which was, one, it was essentially a non-legal letter. David talked about assertions of privilege. It was mostly a complaint that the process is unfair. And every criminal defendant sitting in jail thinks he is there because of an unfair process. And having a claim of an unfair process is not the type of privilege that is typically recognized.

 

      But there's probably a more practical reason that I would not have sent it, which is I learned in the White House, and frankly, Presidents typically learn in the White House, you have some control over senior advisors. You have less control over the career people, the OMB people, the NSC people who are in the White House. They're career; much less control over them. You have virtually no control over officials who are in the State Department and the Department of Defense. And so the likelihood that this letter was going to be affective beyond the people quite close to the President, I think, had a very low likelihood of success. And that's exactly the way it turned out.

 

      Then we had this weird circumstance. If one person in the White House has a claim to absolute immunity from testifying, it's Mick Mulvaney, the Chief of Staff. And so for a while, he was going to join this lawsuit that was being brought, which I think of as kind of an interpleader action, to get judge -- now it's gotten assigned to Judge Leon to decide which of these sides he had to take.

 

      I assume Mr. Mulvaney had thought it through, but by subjecting himself to the lawsuit, he kind of had, I think, had to agree to the outcome. And the outcome might be, or might have been—he's now withdrawn himself from the litigation—but might have been a court order that he actually had to appear and testify, unlike, in my view, Mr. Bolton, whom I think no longer has the absolute immunity from testifying. I think Mulvaney probably still does, unless it's overridden by the impeachment process. And as I say, I really haven't thought that through. But he got himself in kind of a weird position. I'm not sure why in the world he would have done it.

 

      We've talked a little bit about various different power issues. I want to just do this just for a minute. There're not that many enforcement mechanisms, actually, as you all know, that the Congress has. It has a civil contempt process which, frankly, in a matter like this, is not very effective. I assume that the theory that Mr. Cooper, the lawyer for Kupperman -- I guess he's the lawyer for Bolton, although I'm not sure that Bolton has actually joined the case as opposed to just say -- either going to join it, or just say, “I'll follow the outcome,” or maybe really neither. But I assume in some ways, it's a form of stall because if Judge Leon rules against him, there'll be appeal and the like.

 

      We saw this a little bit in Fast and Furious. Fast and Furious -- I was not there when the litigation started, but I was there near the end. I'll tell everybody I did everything I can to resolve that case and moot it in the House of Representatives. Republican, obviously, at the time, would not take yes for an answer. I think we gave them every document, and they kept changing the goal posts. But that litigation went on, I guess, until the Trump Administration began. So particularly in an impeachment process, such as this, the civil enforcement mechanism, which has to go through the courts is really just not an affective mechanism, in my view.

 

The second mechanism is criminal contempt. There is a statute that -- there's a discussion sometimes about inherent contempt. I'm not going to get into that. It hasn't happened in a long time. I don't know whether it's valid anymore. But there's a criminal contempt statute which permits Congress to refer for criminal prosecution, it's a misdemeanor, but incarceration up to 12 months per offense. Congress would refer to the Justice Department for prosecution people who did not appear in response to a testimony or do not provide documents in response to a testimony.

 

And frankly, there've been a number of people who have refused to respond to the House Intelligence Committee. Rudy Giuliani would be one. Mr. Giuliani has absolutely no privilege not to appear. There's no claim he has no privilege not to appear. He might have attorney-client privilege not to reveal certain communications with his client, but we know he did lots more than just talk to his client. He has absolutely no privilege not to appear. And various others, I think, have no privilege.

 

And this is the reason that when things looked like they might move towards contempt on David Simas that I went to the Office of Legal Counsel and got an opinion that he was exempt from appearing. And the Office of Legal Counsel opinion essentially binds the Justice Department. He could not, thereafter, be prosecuted. But I will tell you, anybody who doesn't have an OLC opinion exempting them will run a serious risk of prosecution.

 

And so you're all thinking to yourself, well look, what difference does it make? Attorney General Barr is certainly not going to authorize any investigation. Well, there's going to be an election in about a year, and I don't think the statute of limitations will have run. And I think all those people need to think through to themselves, “Do I actually have a valid reason not to appear?” And frankly, I would urge, as to those people without a legitimate claim, that the House of Representatives go forward and urge a criminal contempt, or make a criminal contempt finding.

 

And then, just the last thing I wanted to say -- and I think this will be interesting. I don't know if it's going to be used or not, but in the impeachment rules, which will apply when we get -- remember, the impeachment takes place in front of the Judiciary Committee. When we get there, Congress has written in a provision that would permit the Chairman to bar administration lawyers, I think in whole or in part—it'll never happen in whole—to the extent the administration has refused to cooperate and refused to produce various information in connection with the inquiry.

 

As those of you who are litigators in this room know, it's actually a fairly common remedy in civil litigation. If a party refuses to provide documents in response to subpoenas or engages some sort of obstruction of justice, it's actually fairly common preclusion remedy which has been written in. It'll be interesting to see whether it's actually used. I think as a legal matter, it would be perfectly appropriate. I think the Chairman will have to think through -- if Chairman Nadler uses it, then I think Chairman Nadler will have to think through, “Am I giving a process talking point to the Republicans that I don't particularly really need?” In any event, thank you all. Looking forward to the question and answer period.

 

[Applause]

 

Hon. A. Raymond Randolph:  Before we get to that, I'd just like to fill in a few blanks. The statute that Neil was talking about says that when the House or Senate refers a criminal contempt citation to the U.S. Attorney, it says, “Reports shall be certified,” I'm quoting, “to the appropriate United States Attorney whose duty it shall be to bring the matter before a grand jury for its action.” But the Department of Justice and the OLC has long interpreted that to give prosecutorial discretion to the Attorney General and the U.S. Attorney.

 

      And there's another thing that I think, in light of all the reports that we've been reading about and some of the remarks that have been made today, the OLC, the Office of Legal Counsel at DOJ also has decided that the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an Executive Branch official who asserts the President's claim of executive privilege. And more than that, it says that when the President directs or endorses the non-compliance with a subpoena, and that's happened, such as where the official refuses to disclose information pursuant to the President's decision that the Department of Justice will not take action against that official. So that's where we are.

 

      I'd like to -- first of all, if any of the members or any of the speakers, presenters would like to comment on anybody else's remarks? Or we'll go right to questions.

 

David B. Rivkin, Jr.:  Judge Randolph, I appreciate that. I'll be very brief. I happen to disagree with Marty and Neil about the scope of those privileges, as far as the immediate advisor's privilege. And if I'm not mistaken, it actually goes back for articulation to the 1971 OSC opinion by young William Rehnquist, does not just apply in situations where you can tie up the presidential advisors. There's an excellent language that was loosely referred to, I think, by Neil, that most people -- our President’s out for ego. Since the President cannot command members of Congress to appear before him, they cannot command him to appear before them. So I think it applies equally.

 

      The other privilege, national security privilege, I think, was best articulated in an opinion by Mike Ludick in 1989 that I was privileged to read when I was working for Boyden Gray. It is more venerable. It predicated upon a couple of things, including the state seekers privilege, which was first asserted by Jefferson and recognized by the Court in 1807. I think that those privileges are vigorous. I think if the Supreme Court were ever to reach the merits, I would be stunned if both of them were rejected.

 

      And by the way, I emphatically do not agree that the impeachment reshuffles the deck in any way. It does not abolish both the separation of powers or the President's policy choice, whether he wishes to produce testimony or documents. But to me, the context does not matter. To make an obvious point, ladies and gentlemen, these are absolute privileges. There's no balancing if they're properly invoked. Unless you scrub them, it doesn't matter if it's oversight or impeachment.

 

      My only other point to Marty would be this: The extent of presidential immunity from civil litigation, which was addressed in Paula Jones, the extent of presidential non-immunity from investigation that, of course, is reflected in the two OLC opinions, is not a bright-line test. It is a test driven by the degree of encumbrance, a degree of imposition on the President. What I would say, gently, if you read the Paula Jones opinion, the court clearly acknowledged that if it so happened that the President would be confronted, not of a single case once in a while, but of an avalanche of cases, it might feel differently.

 

      And I'll just stop by noting, I don't think anybody in this room would disagree, but this particular President, whatever you think of him, has been presented with an avalanche of lawsuits, investigations, and all sorts of efforts designed to impede his ability to discharge his powers. I just want to keep this context in mind for all of you. Thank you.

 

[Applause]

 

W. Neil Eggleston:  Could I? So just very quickly, I mean, look, everybody has to remember the OLC is not a court. It doesn't bind anybody except the Justice Department. And so in the Miers, Harriet Miers, and I guess it was Josh Bolten litigation that took place at the end of the Bush Administration, Judge Bates—I mentioned him earlier—Judge Bates, Ken Starr's deputy in the Clinton independent counsel investigation, appointed by a Republican, nobody's bleeding heart liberal, basically ruled that both Bolten and Miers had to appear before Congress and said -- well, she says, “That's interesting, but it's got nothing to do with me. They are a party to a litigation and it's interesting, but it doesn’t bind me.”

 

      Marty, you're better at cases than I am, so my recollection -- I'm going to say one more thing before I turn it to you. My recollection is that Chief Judge Howell, or maybe one of the judges in New York similarly in the last six months made a very similar point, which is the OLC opinion was cited to him or her, and the response was, “Well, that's interesting as analysis by smart people, but it really has nothing to do with the judicial function.”

 

Mr. David B. Rivkin, Jr.:  Neil, just one sentence. That opinion specifically says, Judge Bates opinion, that it would have been different. It was National Security. What's unique here are two privileges working together. I can give you a precise cite if you want.

 

W. Neil Eggleston:  That's more detail than I remember from that case, so maybe you're right. But I don't think it's because of the OLC opinion as opposed to -- because there's no doubt OLC opinions do not bind courts.

 

      And let me just -- on your last point, David, I just want to say, I was in the Clinton administration and I know that President Trump talks about nobody's ever been investigated as much as he has. Boy. Look I was there. Chairman Burton sent us a dozen subpoenas, I'm pretty sure, every day. He was sued like crazy. And so I would -- look, I get there's been a lot of litigation involving the President, but I'm not sure that -- first, I'm not sure comparisons work, but I'll tell you from personal experience, there was a lot raining down on the Clinton Administration.

 

Hon. A. Raymond Randolph:  Yeah, go ahead.

 

Prof. Martin Lederman:  I have two quick points in response to David. The first is, the OLC opinion, the 2000 OLC opinion saying the President couldn't be indicted while he was in office did so, in large part, because it said that the grand jury could continue to investigate him. That's why I think the OLC opinion itself cuts against the argument in the New York case.

 

      But much more importantly on the privilege question, I'm going to slightly disagree with David but end in a place where I think we might agree. He said that the privilege is absolute. It seemed to be before 1974, but the whole thing of U.S. v. Nixon was that it was subject to a balancing. And in the impeachment context, the history is that the Presidents have realized that the balance is on Congress's side when you get to impeachment. Washington, Polk, the statements are quite dramatic and quite unequivocal.

 

      But if it were really put to courts to make that balancing in an impeachment context, I'm very concerned about that prospect. This is where David and I are maybe on the same page because the court would have to balance the need of the House in the context and make an assessment about how serious the allegation of high crimes and misdemeanors might be, something that I think the courts will and ought to be very wary about getting involved in. So I actually think these privilege questions will be mostly resolved outside of courts, especially in the impeachment context, and maybe not as categorically as they were under most administrations throughout most of our history.

 

Hon. A. Raymond Randolph:  I can't tell, the lights are so bright. Is anybody up at the microphone? Yes.

 

Greg DeLong:  Hi. Greg DeLong from the University of Baltimore. I actually want to pick up where David left off on this idea of balancing. And I guess, perhaps, it's a question mostly for Marty, but the question is what test do you think courts should use in order to balance? I mean, how does one figure out how important the congressional need for investigation is versus whatever the President's interest in keeping information private because it seems to me that there's not necessarily a very good judicial standard to adjudicate it. And ultimately, if Congress is unhappy with the information that's being provided, it can simply go -- it can impeach or it can do some other things as Judge Randolph began this whole thing, can reduce Presidency to a single secretary responsible for answering mail only.

 

      And if there is a balancing test, for example, how does it work in other context when Congress wants to investigate, say, sitting judges? Could they subpoena their communications with other members of the panel or with their law clerks? So is there a judicial test, and is it only peculiar to the President or any other official that Congress wishes to investigate?

 

David B. Rivkin, Jr.:  Let me go briefly. Marty and I may or may not agree, but I do believe that balancing the needs of the two political branches, either in the oversight context or in the impeachment context, is PQD, pure and simple. I'm attracted to the absolute privilege because it does enable Article III to adjudicate the more structural question. And to me, I actually be bold and say again, if this issue goes up, I think we are going to get to five, especially with two privileges working together.

 

      And one final historical point: I starkly disagree with Marty's interpretation of the Nixon case and the implications of a main Nixon decision in other things. The privilege there was asserted for presidential communications writ large. I actually read Nixon case quite differently, the main Nixon case, for the proposition that a more particularized assertion of national security-based privilege would have been honored. If a President cannot conduct the core powers of his office, that of foreign and national security affairs, he is nothing. And I think the Court would recognize that, or at least enough justices.

 

Prof. Martin Lederman: So we do have some common ground here in that I think it would be very difficult for courts to assess the needs of the House or the Senate in any particular impeachment case, which is why I think what the Executive ought to do is what Executives did for so long, which is to say that the attendance of any and every agent of government, to compel them to produce all papers, public or private, official or unofficial, and testify to all facts within their knowledge is appropriate in an impeachment proceeding. I don't think this President will abide by that. I'm not sure many modern Presidents would abide by that.

 

      But I do want to say, on the other side, the President's need for absolute confidentiality that the Attorney General mentioned last night, and that Neil and I, everyone up on the panel somewhat agrees with, I do think we should take account of the fact that that rationale for the privilege is being increasingly undermined by the fact that not only does the President talk about his communications with foreign officials and allows some people to talk.

 

      But we have this pattern in the Executive Branch that we don't see in the judiciary and Congress of close aides to the President going out and writing memoirs about their communications with the President on foreign affairs and national security matters while the President is still sitting. Nikki Haley is about to write a book about exactly that, and the President is lauding her for doing so. John Bolten might do the same. The idea that the President has to have absolute confidentiality and the confidence that those communications will never get out is a little bit hard to take—and this is on both sides of the aisle—when so many executive officials are so free to write about their experiences and their communications with the President.

 

Hon. Edith H. Jones:  Maybe they're trying to defray their legal expenses.

 

[Laughter and applause]

 

 

Prof. Martin Lederman:  I think Ambassador Haley has something else in mind.

 

W. Neil Eggleston:  Judge, could I just raise a related issue? Thank you.

 

On a related issue, much of the litigation that the President has undertaken -- and frankly, I think Steve Mnuchin's response to the request for the tax returns that was made pursuant to a statute was a determination that Congress's need for that material -- I'm sorry, the investigation or whether or not it was legitimate, I frankly have a very similar view of that, which it seems to me, there ought to be an enormous discretion -- enormous deference, excuse me, to Congress about whether its investigation is legitimate.

 

And frankly, the notion that Article II branch could render an opinion about whether the investigation is legitimate, I think that's inappropriate. I actually think that, probably, the Judicial Branch should not do it either, that that certainly has got to be something, in my view, that's committed to Congress and is all but, I would say, nearly -- I'm sure that people could come up with hypotheticals where I'd say maybe this is a step too far, but should generally, I think, be absolutely committed to the discretion of Congress and not subject to review.

 

Hon. A. Raymond Randolph:  Okay. We have another question?

 

Chris Green:  Chris Green from Ole Miss. I wanted say a word on behalf of the non-Stanton Article of Impeachment against Johnson. So I agree, the Stanton stuff was ridiculous, but it was a bit more than bad-mouthing Congress.  So Johnson had called Congress a “so-called Congress.” He had arguably incited race riots in Memphis in May 1866 and in New Orleans in July. He had encouraged people to kill other people in the streets. And I imagine if you go back to the history in 1386 where high crimes and misdemeanors comes from, the impeachment -- I think it was Sussex, it was basically not playing ball with a parliamentary committee.

 

      I imagine a world where they removed Johnson in 1866, you'd get Reconstruction going considerably earlier. It's actually a much better world. Wouldn't that be a much better, more honest basis on which to remove the President? You don't like him because he's encouraging people to say that Congress isn't really a Congress until they get the South back in. Wouldn't that have been better?

 

Hon. Edith H. Jones:  Well, look, he could have gone out and burned the flag, right? I mean, that was the first article, I think, or the second article that was voted on, and it was rejected, even by the radical Republican in the Senate. So I don't quite understand the argument that the President is abusing his power by, god-forbid, even inciting a riot. Something within the  -- I'll take your word for whatever he may have been inciting, but it was still speech.

 

Chris Green:  Impeachable speech, literally. I mean, if the President burned the flag and then went out and killed 20 people --

 

Hon. Edith H. Jones:  -- Things were running -- tempers were running very high, and one of the Republican senators, had he not had assaulted and nearly killed one of the members of the House while they were sitting there.

 

Hon. A Raymond Randolph:  Okay we'll take the next question.

 

Questioner 3:  Okay, so I have a question in two parts. First, Judge Jones, you recommended Raoul Berger to our consideration, and I'm wondering if you have any thoughts about Raoul Berger's thoughts on executive privilege? He wrote extensively that the Constitution does not actually grant the President executive privilege.

 

      I'm also curious, Marty, you raised Attorney General Barr's speech last night. And Attorney General Barr, in the speech, contended that the courts should not resolve separation of powers issues, especially disputes between Congress and the President. And he didn't speak narrowly about privilege fights because the case he cited was Morrison v Olson, Congress's regulation of the removal power. And I'm curious just what panelists think about the idea that the courts should not get involved in resolving separation of powers questions. They should leave it to the branches, sort of like, I guess, the branches worked out the Tenure in Office Act problem. Congress went to impeach. President tried to remove Stanton. Whether he successfully physically removed him from the building or not, I think, that's not the dispute I mean to get you all to, but to the question of whether that's the right process.

 

Hon. Edith H. Jones:  Start off with Raoul Berger on executive privilege. I know I have that article. I have not studied it. I do not see how any -- being on the courts which have the greatest secrecy possible, and quite often, although we have pressing matters, we don't normally have matters as pressing as the running of the free world before us, or the nation. And I do not see how any office can function without a certain matter of confidentiality, so I would disagree in principle.

      I would also -- and Judge Randolph has had a bunch more exposure to these issues than I on the D.C. Circuit, but again, as a matter of principle, it would seem to me that every time you commit a decision like this to the Article III courts, there is less room for flexibility, compromise, and political discourse and discussion by those other branches. It's just the same as when the judiciary hauls off and rules on constitutional issues. To that extent, the political process is disabled from achieving democratically acceptable solutions. And the same thing is certainly true with regard to separation of powers controversies at this level of executive privilege.

 

David B. Rivkin, Jr.:  Could I just -- one sentence. I agree with Judge Jones. In fact, I strongly disagree with Marty's general observation that all those privileges and various other things are not somehow originalist because they're not mentioned in the Constitution specifically. Constitution has an architecture. Constitution has all sorts of propositions that are eminently derivable from its provisions, and I cannot put it any better. Article II is completely incapable of functioning without appropriate secrecy.

 

      I would say one thing, though. I have enormous esteem of General Barr, having worked with him in his early incarnation. But I do think that many separation of powers issues, to the extent that they’re raised in a forceful manner by one branch, not trying to achieve accommodation, have to be resolved by Article III, including the specific immunities issue. It would be a good thing. And if it's resolved, the right thing -- if the President wants to accommodate, then it's clear it’s accommodation. It does not set the precedent that vitiates the privilege.

 

Prof. Martin Lederman:  So it's great because we do have a lot of common ground here. I agree with the Judge and with David that there is executive privilege because of the penumbras and emanations from the document and from our history. But I'm sorry, I know that most of you textualists and originalists will agree with Raoul Berger that there is no executive privilege. But I do think there is one. I just think it's going to be very difficult to adjudicate it in this context.

 

Hon. A. Raymond Randolph:  You'll be happy to know that George Washington agrees with you. The Jay Treaty --

 

Prof. Martin Lederman:  -- Which he thought he would have to turn over all the information to the House if they impeached him.

 

Hon. A. Raymond Randolph:  That’s so. Yes. Gentleman in the back.

 

Questioner 4:  Judge Randolph, thank you. This question is directed to Judge Jones or David Rivkin, whichever of the two of you feel compelled to answer. It's in response to a comment Neil Eggleston mentioned earlier, which is that without an OLC opinion, an executive official who chooses to claim executive privilege and not appear before a subpoena of the House could later be prosecuted by the same political party in a subsequent administration.

 

      My question to you is this: As a former Assistant U.S. Attorney issuing a subpoena on behalf of the Executive Branch, in order to ensure that some penalty, a criminal penalty, imprisonment, in fact, for failure to comply with an order of the court after a motion to compel is filed, going to the third branch, the judiciary, to receive that order to compel and a failure to follow that order results in a subpoena -- excuse me, motion for sanctions, and that sanction order is how somebody later is criminally prosecuted or criminally punished for failure to comply, is there any argument or mechanism to legitimize a subsequent prosecution that the House of Representatives should avail themselves in some manner of the third branch before the Executive Branch of another administration prosecutes for criminal contempt?

 

Hon. Edith H. Jones:  I'm sorry, I didn't follow your question.

 

Questioner 4:  For instance, if an executive official does not appear after being subpoenaed to appear before the House of Representatives --

 

Hon. Edith H. Jones:  -- Right.

 

Questioner 4:  -- and then a subsequent  -- and they don't have an OLC opinion, they haven't gone to OLC before they don't appear, but they do claim executive privilege, Neil Eggleston had made the point that a subsequent administration, after the elections in 2020, let's say --

 

Hon. Edith H. Jones:  -- Could prosecute them.

 

Questioner 4:  Could prosecute them criminally. Is --

 

David B. Rivkin, Jr.:  -- Well, whatever adjudicating, presumably the legality. What you're talking about is a situation where you could be prosecuted for not complying with something, even though it may have been unlawful to try to get you to testify. Is that right?

 

Prof. Martin Lederman:  I think the President would have to assert executive privilege. And I think if you were a current official who was complying with the President's assertion, whether it's right or wrong, you shouldn't be able to be prosecuted afterward. The interesting question is the former officials who are not subject to the President's direction. If he says, “You will be violating my executive privilege,” and they disagree, or if they agree, I suppose, then I think it's an open question, although I doubt DOJ would ever prosecute someone in that context.

 

W. Neil Eggleston:  Well, let me just make my point a little clearer. Maybe I wasn't that clear. My point of the OLC opinion is that the OLC opinion binds the Justice Department, including future Justice Departments. And so when I got the opinion for Simas, I was not worried that if President Trump won in 2016 that the Department of Justice could prosecute him because he'd gotten an OLC opinion that said he did not have to appear.

 

      I thought of it as an insurance policy. I was not suggesting that there would be no possible defenses. But anybody who doesn't get an OLC opinion that thereafter binds -- and look, I don't know what happens if it's a John Yoo style OLC opinion that's later discredited and withdrawn, but my point is, that's an insurance policy. I'm not saying you couldn't, thereafter, litigate it, but you're in a much more precarious place because it may happen after criminal charges are filed against you. And frankly, nobody wants that to happen.

 

Hon. Edith H. Jones:  So you've answered your own question. I'm sorry.

 

Hon. A. Raymond Randolph:  Okay, I think we're out of time.

 

Questioner 4:  It sounds like it. Thank you.

 

Hon. A. Raymond Randolph:  Let's give a hand to the panel. I think they did a great job.

 

[Applause]

 

 

     

 

12:30 p.m. - 2:30 p.m.
Twelfth Annual Rosenkranz Debate & Luncheon

2019 National Lawyers Convention

Topics: Constitution • Religious Liberty • Religious Liberties
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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RESOLVED: The Free Exercise Clause guarantees a constitutional right of religious exemption from general laws when such an exemption would not endanger public peace and good order.

On November 16, 2019, the Federalist Society held the twelfth annual Rosenkranz Debate at the Mayflower Hotel in Washington, DC. The participants discussed whether the Free Exercise Clause guarantees a constitutional right of religious exemption from general laws when such an exemption would not endanger public peace and good order.

*******

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Featuring:

  • Prof. Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School
  • Prof. Michael W. McConnell, Richard and Frances Mallery Professor of Law and Director, Constitutional Law Center, Stanford Law School
  • Moderator: Hon. Stuart Kyle Duncan, United States Court of Appeals, Fifth Circuit
  • Introduction: Mr. Eugene B. Meyer, President and CEO, The Federalist Society

Speakers

Event Transcript

Eugene Meyer:  Good afternoon and welcome to our Rosenkranz Debate. I’m Eugene Meyer, President of the Society. Before we do the debate, we’re going to show a trailer for an upcoming movie, Created Equal: Clarence Thomas in His Own Words.

 

[Applause]

 

      I’ll give you brief info on the timing where that’s going to be shown, but right now, let’s take a look and see the trailer.

 

[Movie trailer plays]

 

      This will be in movie theatres, I believe, January 31, and PBS is committed to covering it nationwide starting the second week of May. So if you -- one thing would be nice. I think the people who do this would appreciate if you would -- obviously, encourage you to go yourselves, but also to help spread the word on what is, I think, a pretty remarkable documentary.

 

      Now, on to our lunch for today. And we used to do our banquet in this room and the Mayflower for the convention. Today, we don’t really fit our lunch. We, apparently, counting our overflow rooms, and there are a couple of them, we have I think it’s like 926 people here.

 

[Applause]

 

      I want to welcome you to the Twelfth Annual Rosenkranz Debate, and we express our gratitude, as we do every year, to the Rosenkranz Foundation for supporting this event. We love having this Saturday centerpiece for our convention, a debate between two highly prominent legal theorists.

 

      It’s been quite a distinguished debate series. It started in 2008 with Judges Posner and McConnell, then Judges Calabresi and Easterbrook the next year; Professors Epstein and William Eskridge; Paul Clement and Larry Tribe debated healthcare; Judge Kozinski and Hadley Arkes. We had Randy Barnett and Judge Wilkinson; General Mukasey debating Nadine Strossen on civil liberties; Robby George and John McGinnis debating if the Constitution was made for a moral and religious people and is indeed suited for the government of no other. Since then, we had Eugene Volokh and Debra Rhode; Randy Barnett and Akhil Amar; and last year, John Harrison and Neal Katyal.

 

      To moderate this debate and introduce our speakers, who are already onstage, I want to call on the Honorable Kyle Duncan, who serves on the U.S. Court of Appeals for the Fifth Circuit. Judge?

 

Hon. Kyle Duncan:  Thank you, Gene. It’s an honor to be here and to be asked to moderate this debate. Let me introduce the participants. This is going to take some time, given the density of the biographies that I’ve been handed, but Michael W. McConnell is the Richard and Francis Mallery Professor and Director of the Constitutional Law Center at Stanford Law School and a Senior Fellow at the Hoover Institution. From 2002 to the summer of 2009, he served as a Circuit Judge on the United States Court of Appeals for the Tenth Circuit. He has chaired professorships at the University of Chicago and the University of Utah, visiting professorships at Harvard and NYU. He’s published widely in the fields of constitutional law and theory, especially church and state, equal protection, and constitutional structure. According to a recent study, Professor McConnell’s work has been cited in opinions of the Supreme Court second most often of any legal scholar during the past decade.

 

[Applause]

 

      He is the -- who’s first? I don't know. He’s not here.

 

Prof. Michael McConnell:  I think it’s Cass Sunstein.

 

Hon. Kyle Duncan:  Oh, okay. Well, I like you better.

 

[Laughter]

 

Prof. Michael McConnell:  I like him a lot.

 

Hon. Kyle Duncan:  Well…

 

      He’s the co-editor of three books, Religion and the Law, Christian Perspectives on Legal Thought, and The Constitution of the United States. You’re a co-editor of the Constitution of the United States.

 

[Laughter]

 

Prof. Michael McConnell:  Gouverneur Morris and I.

 

Hon. Kyle Duncan:  Well done.

 

[Laughter]

 

      Professor McConnell’s argued 15 cases in the Supreme Court. He’s a member of the American Academy of Arts and Sciences, the 2017 winner of the Rex E. Lee Appellate Advocacy Award, and the recipient of honorary doctorates from the Notre Dame University and the Michigan State University College of Law. He asked me to mention also that he is the recipient of the Lee Liberman Otis Award from the University of Chicago.

 

[Applause]

 

      And finally, he served as law clerk to Supreme Court Justice William J. Brennan, Jr., and is Of Counsel to the appellate practice of Kirkland & Ellis.

 

      Professor Philip Hamburger is a scholar of constitutional law and its history at Colombia Law School where he is the Maurice and Hilda Friedman Professor of Law. He’s also President of the New Civil Liberties Alliance, a civil rights organization dedicated to protecting all Americans from the administrative state and other threats to constitutional rights. Before coming to Colombia, Professor Hamburger was the John P. Wilson Professor at the University of Chicago Law School. He’s a member of the American Academy of Arts and Sciences, and he’s served on the board of directors of the American Society for Legal History.

 

      He’s twice received the Sutherland Prize and has been awarded the Henry Paolucci/Walter Bagehot Book Award, the Hayek Book Prize, and the Bradley Prize. His books are, in reverse chronological order, Liberal Suppression: Section 501(c)(3) and the Taxation of Speech, The Administrative Threat, Is Administrative Law Unlawful? — A rhetorical question, right? —

 

[Laughter]

     

      Law and Judicial Duty, and one of my personal favorites, which I read at Colombia, The Separation of Church and State, which is a wonderful book, as are they all. Among his recent articles is “Chevron Bias?”, another rhetorical question; “George Washington Law Review 2016,” which explains how Chevron deference violates due process.

 

      On to our debate. The subject is whether the Free Exercise Clause guarantees a right of religious exemptions from general laws. Just a few words about why this topic is a perfect capstone to our convention theme, originalism. Three main reasons occur to me. First, here, we have a debate not between an originalist and a living constitutionalist, but between two originalists. In other words, here we have a shared commitment to a method of interpretation but a robust and principled disagreement about what historical materials say about the meaning of the Free Exercise Clause. So much for the idea that originalism gives neat, easy answers to questions of constitutional meaning. To the contrary, as our debaters will show, originalism requires intense engagement with the history, text, and context of constitutional provisions and can lead to principled disagreement about what the Constitution means.

 

      Second, lurking in the background of this debate is the correctness of the Supreme Court’s 1990 decision in Employment Division v. Smith. It will have escaped no one’s attention that Smith was authored by originalism’s most articulate and forceful judicial champion, the late and dearly missed Justice Antonin Scalia. And yet, Smith has been energetically criticized, most prominently by one of the debaters here as a departure from the original meaning of the Free Exercise Clause. It is said that even Homer nods, sometimes. Did Justice Scalia nod in Smith? We will hear more about this from the debaters.

 

      Third and finally, this debate addresses a question that is being asked with increasing frequency today. Earlier this year, the Supreme Court denied certiorari in a case called Kennedy v. Bremerton School District, which concerned the free speech claims of a public school football coach who was sanctioned for praying silently on the 50-yard line after games. This was not the Alabama coach after the recent LSU game, but I digress.

 

[Laughter]

 

      I apologize for that.

 

[Laughter]

 

      In a statement respecting that denial, Justice Alito observed that the coach still had live free exercise claims but had not pressed them, possibly “due to certain decisions of this Court.” One of those decisions, Justice Alito continued, was Smith, which in his words, “drastically cut back on the protection provided by the Free Exercise Clause.” Justice Alito’s statement ended by saying, “In this case, however, we have not been asked to revisit Smith.”

 

      Well, did I forget to mention that three other Justices joined that statement? It should, therefore, be no surprise that whether to revisit Smith is a question asked in at least three pending certiorari petitions to the Court. So whether Smith correctly divined the original meaning of the Free Exercise Clause is not merely an academic question, but one with pressing relevance today. And should the Court decide to revisit Smith, whether to overrule it or only to recalibrate its interpretation of the Free Exercise Clause, it will almost certainly turn to the penetrating writings of the two debaters we are so fortunate to have before us.

 

      Our format will be as follows: Each participant will have a 15 minute opening statement, give or take a couple of minutes, according to their preferences, followed by 7 minutes for each rebuttal. A discussion with then follow, moderated by me. And then we will have questions, time permitting, from the audience. And so I turn it over to the debaters. I will be the timekeeper. And who will be going first, gentlemen?

 

Prof. Michael McConnell:  So I will. First of all, thank you, Kyle. Thank you, Gene. And especially, thank you, Nick Rosenkranz, for organizing these events. And I also want to thank Philip. I should say it’s really an honor and a pleasure to be on a stage with Philip. Again, this is not our first time to do this, but Philip is, in my estimation, possibly our country’s most distinguished constitutional historian in an originalist vein. I’ve been reading Philip, I don't know, 25, 30 years and so admire his work. Any of you who have not read Is Administrative Law Lawful? or my personal favorite, The Judicial Duty, you should really not waste any time and go out to do that. And so it’s just such a pleasure to be able to have this conversation this morning.

 

      And I should say — and we were talking at lunch about this — we wanted to make clear, we are going to be back in the 18th century. That’s what we’re going to be debating. We’re going to be talking about the meaning of the free exercise concept at the beginning. There are a lot of other things one might think about. You might want to think about precedent. You might want to think about changed circumstances in particular, as we were talking about during lunch.

 

      The big changed circumstance here is that we now live in an era in which religious faith of all sort is under considerable attack, which was just not true at the Founding. Does that cause anyone, maybe, to think a little bit differently? Would that maybe have caused Nino Scalia to think a little bit differently in Smith? We’re not going to be talking about that. We are only -- we’re both going to be talking about principles at the Founding.

 

      And to help us talk through this, because so much of this is legal, technical, we thought that you should have before you the actual language of some of the legal texts that both of us are going to be talking about. The slides here are a joint product, so these are not my slides, these are not Philip’s. We put them together. We both agree that what you’re going to be seeing and what we’re going to be talking about are the basic historical materials. And I don’t think Philip and I disagree about the facts about almost any of this. We disagree about interpretation, and so that’s what we’re going to be getting into.

 

      But we both believe that the first thing to look at when doing originalist interpretation under the Constitution is the relevant text, so that’s what you have in front of you. I hope this is familiar.

 

[Laughter]

 

      I just absolutely love the first five words, “Congress shall make no law.” Why didn’t they just put a period there and go home?

 

[Laughter and applause]

 

      But it goes on to say, “no law prohibiting the free exercise of religion.” And so I’m going to be defending the idea that the most probable meaning of that language is that Congress, and now, with the application to state and local governments, governments in general can’t pass laws that have the effect of prohibiting the free exercise of religion. And so if, for example, there is a law that applies to everyone saying no one may ingest peyote, a psychedelic drug, that as applied to a member of the Native American Church for whom peyote is their sacrament, that that law is a law prohibiting the free exercise of religion.

     

      The alternative reading in Smith that I think Philip is going to be defending today is that it isn’t a law prohibiting the free exercise thereof unless it is targeted at religion, unless the subject matter of the law is the free exercise of religion. So a law prohibiting the sacrament of peyote in the Native American Church would be a law prohibiting the free exercise of religion. But the Controlled Substances Act isn’t about religion. Nobody was thinking about religion. It’s not a -- so these are the two possible interpretations.

 

      I want to begin -- there’s a lot of text here. Don’t try to read it all, but just to give you a little bit of context as we talk about what’s especially relevant. I want to begin just with the background understandings of, I think, our most important founder with respect to religious freedom, and that’s James Madison. And his Memorial and Remonstrance in 1785, I think, is generally regarded as the most important statement of the philosophical backdrop of freedom of religion in America. This is, of course, before the First Amendment. This isn’t about the words of the First Amendment. This is a philosophical backdrop of the First Amendment.

 

Hon. Kyle Duncan:  Michael, did you edit this also?

 

Prof. Michael McConnell:  I’m sorry?

 

Hon. Kyle Duncan:  Did you edit this as well as the Constitution? I’m just kidding.

 

[Laughter]

 

Prof. Michael McConnell:  It’s part of the -- well, this is actually not part of the Constitution, so no, I didn’t get to edit this.

 

[Laughter]

 

Hon. Kyle Duncan:  Okay. All right.

 

Prof. Michael McConnell:  I’d like to. I mean, it’s a little long, and some of the words…

 

[Laughter]

 

      By the way, the actual language, I should say -- after last night and Attorney General Barr’s talk, I can’t resist pointing out that the person who actually wrote the final draft that became the Free Exercise Clause was that curmudgeonly founder Fisher Ames that Attorney General Barr referred to last night. But anyway, so back to Madison.

 

[Laughter]

 

      The highlighted language right in the middle, “It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.” So the idea of religious freedom, free exercise of religion is rooted in the idea that everyone has a duty to render homage to the Creator, but only such homage as the individual believer regards as acceptable. And so an atheist is not to be compelled to go to church because the atheist does not believe that that’s appropriate homage. A Jew will deliver the homage that a Jew is persuaded is acceptable to the Creator. So also, Presbyterians — that covers the two of us — but Zoroastrians, you name it. The idea here is that it’s a duty to God, but it’s a duty which is understood in the conscience of each individual believer.

 

      And then he goes on to say, “This duty is precedent both in order of time and in degree of obligation to the claims of Civil Society.” Because it is a duty to the Creator, this exists before civil society, and it is superior in its claims. That’s why it is philosophically plausible to think of the Free Exercise Clause as being a right that we exercise even in the face of neutral and generally applicable legislation, which is the claims of civil society.

 

      And George Washington — again, this is not a constitutional interpretation; this is about his understanding of the way this new free republic will operate — he writes a letter to the Quakers, who, by the way, at the time, I think we now have sort of a warm and fuzzy view of Quakers, who could be -- but Quakers were a very controversial group at the time, the subject of a great deal of persecution in Britain and in New England as well.

 

      And Washington, being the Commander in Chief of the Revolutionary Armies, did not like the fact that some people wouldn’t serve in the army. Notwithstanding that claim of civil society, Washington writes them a letter saying that “the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws,” the laws, “may always be as extensively accommodated to them,” meaning to the Quakers, “as a due regard for the protection and essential interests of the nation may justify and permit.”

 

      Again, I think this helps us to understand why the reading that I’m going to be urging of the Free Exercise Clause is plausible because when the idea of free exercise is then inserted as in the very first amendment in the Bill of Rights, I think that that reflects the kind of attitude toward the free exercise of religion that George Washington is espousing with regard to a group that he -- I mean, at time of war when he is having trouble raising enough people for the Revolutionary Army, he believes we should accommodate to that anyway.

 

      So now let’s turn to some of the legal text because I think it’s a shared view -- maybe Philip would disagree, but I don’t think so. I think it’s a shared view between the two of us that the best way to understand what the legal context, not a philosophical matter but as a legal matter,  is of the concept of free exercise of religion is to look to some of the pre-First Amendment legal guarantees, and we’re going to focus on the free exercise clauses of the states prior to the First Amendment. They didn’t all -- and I certainly don’t recommend you try to read all of this, but most of the states had some kind of free exercise clause. We have every one of them here in these two slides, beginning with Rhode Island’s, which is very old.

 

      Now, the dark language is the highlighting, and as you can see, most, but not all, the first three — these are in chronological order — most of the provisions have what we call provisos or caveats. That is, the logical structure of these provisions, let’s just take a random -- New York is here. So “the free exercise and enjoyment of religious profession and worship” is permitted “to all mankind: Provided,” so there’s a caveat, “Provided, That the liberty of conscience, herein granted, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace or safety of this State.”

 

      Rhode Island, the first one, started this off, and they’re saying, so people have -- can’t be punished for the exercise of religion unless they “actually,” note the word actually, “disturb the civil peace of our said colony.” And that they have the full enjoyment of their -- in matters of religion, “they, behaving themselves peaceably and quietly, and not using this liberty to licentiousness and profaneness, nor to the civil injury or outward disturbance of others.”

 

      So most of these provisions, not all, but most of them have this same logical structure. They say the right is protected, but not to the disturbance of the peace and order where the peace and order are expressed in various ways.

 

Hon. Kyle Duncan:  You have about two minutes.

 

Prof. Michael McConnell:  Oh, okay.

 

Hon. Kyle Duncan:  Your yellow light’s on.

 

Prof. Michael McConnell:  So I’m sorry. The point here is that unless the basic right prior to the caveat does give some kind of right against what otherwise would be the law, there would be absolutely no point to the caveats. So what the caveats say is although you have this considerable free exercise right, it’s not going to extend so far as to disturb the peace and safety of the state. That’s at least a kissing cousin to our modern idea of a compelling governmental interest. I actually think this is a lot more precise. I’d rather have this language than this generalized compelling governmental interest. But logically, it’s pretty much the same way.

 

      And we know that this is actually the way the legal mind, judges and lawyers, thought about these provisions at the time because People v. Phillips is the first published, oldest that we know of published opinion interpreting any one of these free exercise provisions. And it involves a claim against a neutral and generally applicable law. This is a case in which a Roman Catholic priest is summoned under the general requirement of everyone to give evidence relevant in a criminal case. And he was called to testify to the identity of someone who brought him -- who had stolen goods and had come to him in the confessional and had confessed. And the priest said, “No, I can’t tell you who that is.” He actually, as part of the penance, had induced the person to return the goods, but he said, “I can’t tell you who it is.” And yet, he’s still being called under penalty of contempt to testify.

 

      It goes to the court. This — by the way, the judge here is DeWitt Clinton — and it says no. It talks about the New York Constitution, and it says it must be -- and they’re referring to the peace and safety caveat here, and they’re saying it must be clearly made that the concealment and the sacrament of penance is a practice inconsistent with the peace or safety of the state.

 

      Then look at what he says. “The language of the constitution is emphatic and striking, it speaks to acts of licentiousness, of practices inconsistent with the tranquility and safety of the state; it has reference to something actually, not negatively injurious. To acts committed, not to acts omitted — offenses of a deep dye, and of an extensively injurious nature.” It does not extend to every generally applicable law, but only to those applicable laws which in the context of the practices, that is the individual’s practices, not hypothetically, but the thing actually being litigated in the case itself, are of an extensively injurious nature.

 

Hon. Kyle Duncan:  Professor, do you want to wrap up, or --

 

Prof. Michael McConnell:  -- That was my wrap up.

 

Hon. Kyle Duncan:  That was great.

 

[Laughter and applause]

 

Prof. Michael McConnell:  Your Honor.

 

Hon. Kyle Duncan:  Even when former judges appear in our court, even they are subject to the time limitations.

 

[Laughter]

 

      But you’ll get a chance to rebut Professor Hamburger.

 

Prof. Michael McConnell:  I was subject to the time limit. I just didn’t comply with it.

 

[Laughter]

 

Hon. Kyle Duncan:  And I granted you an exemption of at least two minutes from the time limitation, so…

 

Prof. Michael McConnell:  Let’s see, we need -- the slides have disappeared.

 

Hon. Kyle Duncan:  Excellent.

 

Prof. Michael McConnell:  Who is in charge of the slides? Okay, here we go.

 

Hon. Kyle Duncan:  I thought you were in charge of the slides.

 

Prof. Michael McConnell:  I was hoping I was.

 

[Laughter]

 

Hon. Kyle Duncan:  And you will, of course, get a change to rebut, but we will now turn to Professor Hamburger, who will also have 15 minutes, give or take.

 

Prof. Philip Hamburger:  Well, I’m most grateful to The Federalist Society and to Nick Rosenkranz for inviting me. Especially, it’s an honor to be here with so distinguished a scholar as Mike McConnell. But I confess, I was a little puzzled when I got here and I saw the topic. I thought we were going to debate administrative power.

 

[Laughter]

 

      So I’m completely unprepared.

 

      More seriously, what does the First Amendment guarantee? Is it a freedom under equal laws regardless of one’s religion, or is it a freedom from equal laws precisely because of one’s religion? Now, that may not be the way Michael would summarize the question, but I think that captures the breadth of conceptual issues at stake here. In my view, and I may be wrong, but I don’t think so, the First Amendment does not guarantee a general right of exemption. And Michael’s defense of such a right, although very well intentioned, and I’m deeply sympathetic with the full range of his concerns, is deeply mistaken.

 

      Now, there are all sorts of obvious non-historical arguments to be made against the proposed free exercise right of exemption. I could tell you that a general right of exemption creates moral hazard, something the Founders understood, but you already know this. I could tell you that Michael’s terms “public peace” and “good order” are astonishingly vague. For example, would abortion, public nudity, or pot smoking be contrary to good order? I don't know. I could add that these standards are highly variable, that public nudity is against good order enrichment, but not so clearly in parts of San Francisco.

 

[Laughter]

 

      I could further say that these standards leave dangerous discretion in the courts. How are the judges to measure such things? Perhaps they’ll know it when they see it.

 

      But I don’t want to bore you with all of this. You already know it. So let’s focus on the historical evidence. I have five points I’d like to make. And forgive me if I go a little fast because I actually want to get through them within the time.

 

[Laughter]

 

      So first, let’s start with the text of the First Amendment. Far from authorizing constitutional right of religious exemption, the text itself bars any such right; not merely not permissive, it bars it. The Free Exercise Clause can be understood to prohibit a range of things. It clearly bars laws imposing unequal or discriminatory constraints, and it probably bars, as I will want to get back to later, some laws such as those interfering with religious association.

 

      But my argument today does not stake out a position on the breadth of possible meanings. Instead, my point is simply that the First Amendment does not guarantee a right of exemption. And this is plain enough from the drafting debates where no one is recorded, no one is recorded,  as even having discussed clearly a general right of exemption. And it’s even more clear from the resulting text. The First Amendment says, “Congress shall make no law respecting establishment of religion, or prohibiting the free exercise thereof.” So that if a statute prohibits the free exercise of religion, Congress had no power ab initio to make the law. Such a statute or the severable provision is simply unlawful and void. And there, thus, is no room under the First Amendment for a right of exemption.

 

      Now, this point is familiar from a range of scholarship, not just mine, but also other academics, and I must say, most notably, Nick Rosenkranz, who develops this notion further than anybody else. The First Amendment’s text clearly simply bars the right of exemption.

 

      Second, let’s turn to the texts of the state constitutions. Now, interpreting the First Amendment, Michael, quite understandably, prefers to focus on those state constitutions. But here again, I think he is profoundly wrong, although, again, with the best of intentions.

 

[Laughter]

 

      For one thing -- no, I’m quite serious about that. We are sincerely in accord about the dangers to religious liberty we now face. And the question is just what can we find in the past, and what will we do in the years to come?

 

      For one thing, the provisos he considers definitional I think are actually conditions. I’m an old corporate lawyer, so I think I recognize a condition when I see it. Consider their phrasing and see, for example, New Hampshire and Maryland. Some provisions, such as New Hampshire’s, end by reciting, “provided he doth disturb the public peace.” Others, such as Maryland’s, conclude, “unless, under color of religion, any man shall disturb…” etc., etc.

 

      Michael says these provisions are definitional, that they’re limits to the substance of the guaranteed liberty, from which he concludes that religious liberty extends to whatever does not disturb the peace, etc. But in fact, the qualifications about peace and so forth are conditions which indicate when religious liberty can actually be denied to the persons who seem to be a threat to society. And this is evident from the very words of the provisos which say “provided that” and “unless.”

 

      It’s also evident from the punctuation. There is usually a colon or semi-colon before those words. And even the state guarantees that do not use the words “provided that” and “unless” are sometimes make clear that peaceableness is a condition of enjoying lawful freedom. See for example South Carolina. It spells out, “All denominations of Christian Protestants in this state, demeaning themselves peaceably and faithfully, shall enjoy religious and civil privileges.” Protestants who are peaceable enjoy such rights. Those who are not peaceable do not enjoy such rights. The provisos, thus, do not reveal a right of exemption. Instead, their texts show that they are conditions. They’re safety valves, allowing liberty to be denied if ever the state is threatened by religion.

 

      Now, even more devastating, I think, to Michael’s claim — and it’s a noble claim, but I just think it’s simply wrong — is the substance of the protected liberty. As a preliminary matter, note that eight of the state religious liberty guarantees confine their freedom to religious persuasion and/or worship, thus making the liberty much narrower than Michael, I think, assumes. More seriously, eight of the state religious liberty guarantees, including six with peaceableness provisos, define their liberty as a sort of non-discrimination, thus precluding exemption.

 

      So see, for example, Delaware, New York, Massachusetts, and Maryland. Delaware says, and these are just examples, “All persons professing a Christian religion ought forever to enjoy equal rights and privileges in this state.” New York: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed.” Massachusetts: “No subject shall be hurt, molested, or restrained,” and so forth, “for worshiping God in the manner…” etc. Maryland: “No person ought by law to be molested in his person or estate on account of his religious persuasion,” etc., and so forth. These are anti-discrimination provisions, so that even if Michael were right that the provisos are not conditions, and I think he’s clearly wrong on this, the guaranteed liberty is not a right of exemption.

 

      Now, let’s step back. Let’s assume, contrary to the evidence, that Michael is right about the state constitutions. My next question is what on earth does that prove about the First Amendment to the U.S. Constitution? The First Amendment contains no public peace and good order proviso, so that even if Michael’s right about such provisos in state constitutions, might he not be wrong about them in the federal Constitution? It would seem so.

 

      The different phrasing suggests a different meaning and is, therefore, I think, utterly anti-textual to say that the First Amendment has the meaning Michael derives from state constitutions with provisos. I can understand being disappointed with the First Amendment’s text, but I did not expect such anti-textualism in this room.

 

[Laughter]

 

      Now, having considered the texts, state and federal, it is now time, third, to evaluate the social context. In particular, what alliance of denominations sought a general right of exemption? What matters for understanding the constitutional question are not the words of a few scattered individuals, but the positions taken by denominations. Yet, the only denomination that took a position in favor of a general right of religious exemption was the Society of Friends. And the only time they made a concerted effort to interpret state constitutional document to guarantee a general right of religious exemption was in 1775 in Pennsylvania.

 

      Unsurprisingly, they were resoundingly defeated. Pennsylvanians joined mass marches to protest the Quaker interpretation, and then they draft the Pennsylvania Constitution to clarify its rejection of a general right of exemption. For details, I offer you an exquisitely tedious article written by myself called “Religious Liberty in Philadelphia.” So even in Pennsylvania — and this is the main point — even in Pennsylvania, the Quakers’ home base, they could not win, and that’s telling. A general right of exemption was a non-starter. Like the constitutional text, the social context cuts against the right of exemption.

 

      Fourth, let’s look at the intellectual context. Put simply, the development of religious liberty in the 17th and 18th centuries reveals a shift from conditional toleration to an unconditional religious liberty. What I mean by this: In the 17th Century, there are widespread fears that Catholics and radical Protestants are intolerant, that they will defeat their enemies not with words but with weapons, and bloodily, and also that they might claim to be religiously exempt from their contracts, oaths, allegiance, and general laws. That’s right. What shapes the development of religious liberty was not a demand for exemption but a fear of religion, both religious intolerance and religious claims of exemption.

 

      The English response is to protect only conditional toleration, which thereafter can be denied if religious minorities get out of hand. And this contingent freedom finds expression in conditions on religious liberty. For example, 17th century American charters contain the provisos Michael talks about. The 1690 Toleration Act is structured in these ways and the theory of John Locke. In the 18th century, the fears of religious danger persisted and conditions on religious liberty, therefore, remained typical, the states.

 

      And the New York constitution, if we could look at that, illustrates this. It begins, actually, by reciting the threat from the Catholic Church. John Jay had familial and personal reasons for this, and it’s not altogether admirable, of course. He says that we are required “to guard against the spiritual oppression and intolerance wherewith bigotry and ambition of weak and wicked priests and princes have scourged mankind.” That is not really what you hope to read in an American constitution, but there it is.

 

      So responding to this fear, the New York guarantee limits its protection to worship and, moreover, ends with a condition, “provided liberty of conscience…” etc., etc., “should not be so construed.” And I think it means so construed by the people who are exercising the religion, though liberty can thus be denied to Catholics and others who interpret religious liberty to exempt dangerous practices or otherwise seem dangerous in their views. In short, a fear of claims of exemptions and of intolerance leads many states to make religious liberty conditional so that liberty can be denied when religion becomes dangerous.

 

      Now, fortunately, there’s a move to reject conditions and make religious liberty inalienable. The 1776 Virginia Bill of Rights takes this view. Jefferson does it in 1775 in his act establishing religious liberty, and the First Amendment follows their path in avoiding any condition. In short, Michael gets the development of religious liberty exactly backwards. He sees a move towards a right of religious exemption, whereas, in fact, religious liberty had been driven by fears of religion, and that’s why we see so many conditions lingering. And that’s why unconditional or inalienable religious liberty comes so late. In other words, Michael’s history, I fear, inverts the reality. It’s almost an Alice in Wonderland world in which conditions against claims of exemption prove a right of exemption, in which Americans are moving toward exemption. I think this is an engaging but a fantastical illusion.

 

      Fifth and finally, we must examine 18th century theoretical statements that illuminate all of this, the theoretical accounts that reveal the reasoning underlying a host of legal documents, including state constitutions. They show that the provisos relied upon by Michael did not delineate exemptions, but rather rendered the liberty conditional.

 

      So let’s look at the first set of theoretical statements. Oh, I see it’s up there. Gershom Lyman, a preacher, writes in 1784, “Everyone has an undoubted right to choose that religion and mode of worship which to him appears most agreeable to the word of God,” sounds very pleasing, enlightenment-like, “unless it be such as evidently tends to destroy civil peace and government; in that case, no one ought to be tolerated — self-preservation forbids it.” Let those words sink in. The provisos about peace and good order are not limits on exemption but of measures of when no on ought to be tolerated.

 

      Another example comes from Oliver Ellsworth, a drafter of the Constitution, advocate of the Bill of Rights, and Chief Justice of the Supreme Court, eventually. He says, “Every man has a right to worship God in that way which is most agreeable to his own conscience. If he be a good and peaceable citizen, he is liable to no penalties or incapacities on account of his religious sentiments: or in other words, he is not subject to persecution.” Okay. Persecution is allowed, apparently, if he’s not a good and peaceable citizen.

 

      These theoretical statements, and there are others, if we could look at the second set of theoretical statements, reveal how the provisos — I think there’s another slide, part two — reveal how the provisos were understood by many contemporaries. And I think they utterly undercut the pleasing but, I think, mistaken view about exemptions.

 

      And so just to sum up, if I may. I hope I’m in time. A free exercise right of exemption conflicts with historical evidence in five ways. It defies the text of the First Amendment, it misinterprets the texts of the state constitutions, it ignores the social context, it inverts intellectual context, and it’s repudiated by 18th century theory. In short, the free exercise right of exemption is anti-textual, non-contextual, and directly repudiated by 18th century writers.

 

      Michael’s concern for religion is admirable, and I think it’s fair to say that the Founders may not have anticipated everything we need today. The playing field has changed. And maybe the text needs to be amended, and maybe that will be difficult to do. But I fear that a general right of exemption is a strange beast, slouching toward originalism. Thank you.

 

Hon. Kyle Duncan:  Thank you, Philip.

 

[Applause]

 

      I want to give you both a short rebuttal, but since I don’t want to butt up against the next, the showcase session -- so as you’re rebutting, Michael, one thing I was particularly interested in that Philip said is the textualism point, meaning that to the extent that you rely on provisos and state constitutions to elucidate the meaning of the Free Exercise Clause, what do we do with the textualism point that he made that there are no provisos in the Free Exercise Clause? So for example, if the Supreme Court did decide to revisit Smith, how are they going to grapple with that problem of textualism, if it is a problem?

 

      And then when Philip rebuts afterwards, I’d like to hear from him if the Supreme Court does decide to revisit Smith, does it need to expand, refine, correct its reasoning in Smith to the extent that that fell short of elucidating the original meaning of the Free Exercise Clause? Michael, take a few minutes.

 

Prof. Michael McConnell:  So I’ll begin with the question that you put, Kyle. It is true there is no proviso in the First Amendment, but it isn’t -- the proviso is not what gives the protection for free exercise of religion. The provisos are evidence that the drafters of the earlier state constitutions understood that unless they had a proviso of some sort that the concept of free exercise of religion was, well, dangerous. Of course, it’s not going to be dangerous unless it gives some kind of an exemption from the law. So the very idea that we need to protect against an expansive, an unlimited interpretation of free exercise of religion is the point.

 

      And I think here, the development in Virginia -- so there’s a debate between Virginia in connection with the Virginia Declaration of Rights of 1776 between George Mason and the young James Madison. They both have a draft of -- and Mason’s is much more limited. They both have a proviso. Madison’s is a much narrower -- Madison thinks that the free exercise of religion should be unless the preservation of equal liberty and the existence of the state are manifestly endangered. That’s compelling governmental interest of a very high bar, whereas Mason says the peace, the happiness, which is a very broad term, or safety of the state. So that’s a very low bar.

 

      So they’re debating how big the proviso should be. And what do they do? They actually compromise through silence by just protecting the right itself and leaving it to future legislatures and courts to decide what the exact extent of the caveat is going to be. That’s exactly what we have in the federal free exercise as well.

 

Hon. Kyle Duncan:  Michael, do you think that, properly understood, the free exercise right ends up being as protective as RFRA with the compelling interest test and the substantial burden, or is it different? I know that’s speculation, but…

 

Prof. Michael McConnell:  I think that the Congress that passed RFRA believed that they were reinstating free exercise as it had been and existed before Smith. I think that a subsequent amendment at the time of RLUIPA had the effect of actually making RFRA a little bit more protective because it makes it clear that each case is decided on the basis of the consequences to the government of the practice in the particular case, and I think that’s an important point.

 

      Let me just say one last thing. There are a number of things, actually two things, about Philip’s position. One is if it is true that compliance with the peace and safety provisos is a condition to being tolerated at all, that would mean that anyone whose religion violates a neutral and generally applicable law cannot practice their religion, period. So the members of the Native American Church who sneak off in the forest and ingest some peyote, not only are they liable for punishment for ingesting peyote, but the entire Native American Church can be shut down. They will not be tolerated at all.

 

      Not only does that strike me as an extreme and almost totalitarian consequence, it is way more extreme than Smith. That is not the position in Smith. But also, that never happened in America. So there was never a case in America where someone who is raising a free exercise exemption claim and loses, thereby loses their entire right to practice their religion.

 

      Now, Philip says the Quakers, the Society of Friends are the only people actively working for exemptions. And in a sense, that’s sort of true because exemption from compulsory military service was one of the few examples of a widespread religious practice that came into conflict with generally applicable laws.

 

      But if you look to the cases where individual people are -- so a very early case is brought by the leader of the Jewish community in Philadelphia about the practice of having the courts open on Saturday and him being subpoenaed to participate in a case on the day of Sabbath. That’s an exemption claim. He lost, but he brought the claim. Several people early on bring claims who believe that they can’t swear and can’t judge others raise exemption claims against compulsory jury service, and then the first reported claim that actually gets a decision by a court is the exemption claim in People v. Phillips to protect the priest from being compelled to testify to what he learned in the confessional. So it wasn’t just the Society of Friends.

 

      And one last thing. Philip says that the language actually -- not only does it not compel exemptions, but that the language of equality actually works against exemptions. Well, think about that position. If that is so, not only are there no free exercise exemptions compelled, but that means that there can be no accommodations, no legislative accommodations. So that means that the military draft exemptions, which have existed from the beginning, indeed, before the beginning, are not just not constitutionally compelled, but they are unconstitutional because according to Philip’s reading, they violate the equality of rights.

 

      I do not believe that’s the way equality of rights was meant. I think it means that everyone has an equal right to bring these claims based upon whatever their religion happens to be. It doesn’t mean that Zoroastrian’s rights are going to end up to be the same as Lutheran’s rights. Depending upon the particulars of their religion, they may end up practicing, exercising a different kind of religion. But if it were true that that’s what the equality language of those provisions meant, then we would be in a very radical situation in which accommodation becomes unconstitutional.

 

Hon. Kyle Duncan:  Why don’t we let Philip in the last few minutes -- Philip, I’d like to hear if you are as radically a totalitarian as Michael has made you out to be.

 

Prof. Michael McConnell:  But well meaning.

 

[Laugher]

 

Hon. Kyle Duncan:  A well-meaning totalitarian.

 

[ Laughter and applause]

 

      And along those lines, imagine that the Supreme Court does revisit Smith and agrees with you. What would a free exercise right look like, and what role would judges end up having in protecting religious liberty?

 

Prof. Philip Hamburger:  Thank you. And thanks for the suggestion of totalitarianism. That’s a new one.

 

      So just to clear away the underbrush for a moment here, the position that I find in the state constitutions, not to say my position, but that I see historically in the state constitutions is a conditional religious liberty which was the toleration that was favored in England in the 18th century based on the writings of John Locke. I had last heard him called, actually, a liberal philosopher, not a totalitarian philosopher. And I actually don’t think it was at all totalitarian. It was actually designed to cut off their fears of what in their century seemed like a sort of totalitarianism.

 

      Now, as for my views of the Free Exercise Clause, I do not think it requires equality such that would bar statutory exemptions. There may come a point at which a statutory exemption runs into the Establishment Clause, but you have to go pretty far to get there. I’m not aware of any obvious examples of that. And I, therefore, think it’s a mistake to suggest that a guarantee of equal religious freedom constitutionally precludes a statutory grant of exemption. Certainly, I’ve never taken that position. It’s an interesting one. I, in fact, don’t know of anyone who takes that position. So I don’t think it really stands in the way of any of the arguments made here.

 

      Now, Michael is right about something. It’s true that the provisos, the conditions in state constitutions were never actually enforced, and we think that they’re odd. But it’s not at all surprising. The provisos were safety valves, pessimistic precautions against 17th century-style dangers which never needed to be enforced.

 

      I think it actually makes much more sense to flip around the question about enforcement, to ask Michael if American constitutions secure the general right of exemption, why was this never enforced in the courts in the 18th century? He cites only very late cases from the 19th century.

 

      State courts in the 1770s and 1780s frequently uphold constitutional claims, even against statutes. I spent eight years of my life travelling to county courts looking at these cases. They’re never on grounds of free exercise of exemption. So I would ask where are your cases, Michael? Show us a case upholding the constitutional right of exemption from the 18th century. Show us a case in which a party even made such an argument. And having spent decades looking through records, I have never seen such a case.

 

      I might mention --

 

Prof. Michael McConnell:  -- By the way, I apologize for the totalitarian.

 

Prof. Philip Hamburger:  Oh, no, no. Not at all.

 

Prof. Michael McConnell:  I shouldn’t have said that.

 

Prof. Philip Hamburger:  No, you shouldn’t.

 

[Laughter]

 

Prof. Michael McConnell:  That was bad of me.

 

Prof. Philip Hamburger:  I enjoyed it. It’s fine.

 

Prof. Michael McConnell:  And it isn’t true.

 

Prof. Philip Hamburger:  I get much worse from my colleagues.

 

[Laughter and applause]

 

Prof. Michael McConnell:  That is a low bar.

 

Prof. Philip Hamburger:  [Laugher] So Mike -- notice, Michael does not point to any 18th century source that expressly enunciates his peculiar proposition about exemption, not one. I think his views are therefore his. They may be appealing views, but they’re not those of the Founders.

 

      So in fact, I think his thesis is a concoction created by recombining words selectively taken from old constitutional documents. Free exercise of religion is mentioned only in the Virginia and Georgia constitutions; public peace only in Massachusetts and New Hampshire; good order only in Maryland. So where does Michael’s proposal actually get stated in the 18th century? And the answer is nowhere, nowhere at all. His version of free exercise of religion it a dog that didn’t bark. He’s asking us to listen to the sounds of silence, and to my mind, that’s a bit much.

 

      How many minutes do I have? Do I have a few more?

 

Hon. Kyle Duncan:  You’re fine. Have a couple of minutes, and then I will wrap us all up in the interest of not going into the next panel.

 

Prof. Philip Hamburger:  Thank you. So I think we have to confront the reality that the two central figures and standard histories, Madison and Jefferson, favored non-discrimination provisions. And that’s not to say I think that free exercise is just about non-discrimination. If I have time, I’ll get to that.

 

      But if we see Madison’s two proposals in 1776 — I don't know if they’re available on the screen — he interprets free exercise to require non-discrimination. His first proposal, “All men are equally entitled to full and free exercise of religion, according to dictates of conscience,” and therefore, “no men or class of men, ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities,” etc. His second proposal, “All men are equally entitled to the full and free exercise of religion,’ etc., “unpunished and unrestrained by the magistrate.”

 

      And Jefferson, in 1785, says, “No man shall suffer on account of his religious opinions,” and so forth. You can read it. These are anti-discrimination provisions. And so if we are going to find a free exercise right of exemption, we have to move away from what are generally understood as the standard documents for looking at the Framers.

 

      I’d like to shift gears because, notwithstanding our disagreement, we agree on something fundamental, that the ground has shifted under us. Religion and religious liberty is under attack. I almost regret it if I am right on this, not because I think it’s a desirable standard Michael proposes, but the current understanding of the free exercise may be too weak.

 

      So what are we to do? And I’d like to suggest three points along these lines. I think we need the judges to do their job rather better than they have. First, on federal power, the judges have expanded congressional power so far as to threaten religious liberty. If the judges are free to expand federal power in ways that threaten religious liberty, they surely also have a power, indeed, a duty to limit that threat. For example, the judges have expanded the commerce power into a federal power to regulate private relations in the workplace and education. Whatever the merits of such regulation, the judges cannot thereby justify government assaults on religious freedom.

 

      Second, when we turn to rights, the judges need to recognize the freedom of religious association. If they can recognize new rights of sexual association, they should also recognize the old right of religious association. At the statutory level, this means new statutory rights should not defeat the old constitutional right. For example, anti-discrimination laws force open membership in religiously oriented associations, be it a Bible reading group or a business corporation. The government is directly dictating religious fellowship and association in violation of at least the Establishment Clause, which protects us against privileges in religion. And that’s exactly what happens in anti-discrimination laws.

 

      And third, we have to talk about administrative inequality. You see, it all comes back to administrative power.

 

[Laughter]

 

      In Employment Division v. Smith, it closes, very interestingly -- it notes that Americans, religious Americans, can seek relief through the political process and democratic government. It’s a nice thought, and there’s some merit to it if we had such a government.

 

[Laughter]

 

      Well, we have it in form, but within that shell, we have something very different, an administrative state. The judges have legitimized a partial exclusion of Americans from the political process. They have justified administrative power, thereby insulating rule makers from popular accountability and elevating rule makers who are devoted to scientism and who are skeptical of religion. So whereas members of Congress are attentive to their religious constituents, these bureaucrats are indifferent, if not hostile.

 

      The judges, moreover, have upheld administrative limits on church speech under 501(c)(3) of the Tax Code. By the way, the two provisions in the Tax Code limiting speech were first proposed not as a technical tax provision, but by Hiram Evans, Imperial Wizard of the KKK, which will tell you something about the nature of those provisions.

 

      All of this amounts to a partial but very serious exclusion from the political process, and it makes a mockery of the idea of equal laws. The surface of administrative rules may seem equal, but the underlying rulemaking process is a tilted game so that even facially equal administrative rules are discriminatory against religious Americans. This is a profoundly unconstitutional inequality, a violation of free exercise and of equal protection. And the judges need to stop sitting on their hands. They need to recognize this, the realities of how we’re governed now.

 

Hon. Kyle Duncan:  Philip, if I could interject, did I hear you suggesting that when a burden on religious exercise comes from an administrative agency, you don’t think Smith was correct, or you think the rationale of Smith sort of runs out there?

 

Prof. Philip Hamburger:  The rationale of Smith does not seem to apply there. Now, you can go two ways with this. You could say ah-ha, and now we have the pre-Smith rule that we can have a right of exemption. Personally, I think it’s much easier and more consistent with the Constitution simply to recognize that inequalities can come in the process as well as in the substantive rule, and this is a systematic discrimination against religious Americans and needs to be recognized.

 

Hon. Kyle Duncan:  Thank you. Now, I’ve been given an electronic indulgence from the powers to keep going until 2:30. So Michael, I want to give you an opportunity to weigh in with anything else you might like to add, or even a question?

 

Prof. Michael McConnell:  So I was inclined to go back to the history again, but did you want to go to the audience?

 

Hon. Kyle Duncan:  Well, I’ll tell you what. Why don’t you make another point, and if anybody wants to -- if we could have a couple of questions before 2:30, we’d be happy to have them. Just proceed to the microphone.

 

Prof. Michael McConnell:  So Philip says that I have not invoked any 18th century evidence. There were no claims for exemption -- we had an established church in every state south of Pennsylvania. We had effectively established churches in New England. There were a couple of states in between, like Pennsylvania, and Pennsylvania is, of course, the one state that Philip recognizes where there were claims for exemption because the Quaker minority was so concerned about military conscription.

 

      But almost immediately, we start getting claims for exemption as soon as the New Republic gets underway. The claim by the Jewish merchant not to have to testify on his Sabbath in Philadelphia is, if I remember correctly, 1791. That’s pretty early. Now, it is true that that’s rejected, but we don’t have any evidence -- we don’t know why it was rejected. The report just tells us that the claim was rejected. The first published opinion that we know of under one of these provisions, 1813. That’s not late 19th century. 1813’s pretty early 19th century, and it upholds an exemption claim.

 

      And there are no cases the other way. I mean, it’s not as if people are raising exemption claims and courts are saying, “Oh, no, no, no, no. We don’t do that sort of thing.” So there is a lot of absence of evidence here, but that doesn’t -- that, I don’t think, gets to be dumped in my lap.

 

[Laughter]

 

Hon. Kyle Duncan:  Why don’t we take a couple of questions in the remaining six minutes. Why don’t you go ahead, please? Identify yourself and ask your questions.

 

Marco Peraza:  Hi, my name’s Marco Peraza. I’m a 3L at Penn Law, and my question is for Professor McConnell. If we were to recognize an exemption through the Free Exercise Clause to general laws, it seems that the question about what counts as a religion becomes extremely important. It’s very easy to plead a moral belief that’s sincerely held that may be even fundamental to your life. What prevents people from just claiming exemptions to any laws they don’t like on that basis?

 

Hon. Kyle Duncan:  Thank you. Michael?

 

Prof. Michael McConnell:  Well, the formal doctrine on this is that the courts can inquire into sincerity. So there’s a case -- a lot of these cases come up in the prisons, but it’s one where a group is formed whose sacrament is that they need to have a weekly sacrament of fillet mignon and Bordeaux wine. And the case is called United States v. Kuch [pronounced kook] --

 

[Laughter]

 

      -- K-U-C-H, but, nonetheless. And the courts make pretty fast work of the insincere claims. I think the hardest claim -- the hardest part of this isn’t people making up claims. The hardest part is the boundaries between a religion and conscientiously held but not obviously religious positions. And the courts go both ways on this. I think I know every case in which one of these has been raised in the last 50 years, and there have been a few. Meanwhile, there have been 150 law review articles worrying about this problem, none of them giving a very good answer.

 

Hon. Kyle Duncan:  Thank you. Why don’t we take one from over here? Please identify yourself and ask a question.

 

Devin Watkins:  Hi. Devin Watkins, Competitive Enterprise Institute. So to me, the free exercise seems a lot like the First Amendment in the freedom of speech context. Freedom of speech doesn’t have any proviso, and yet, it doesn’t extend to all speech, only that that is injurious to others — defamation, verbal contracts for murder, things like that are not included — because it was considered a natural right. It extends to your right to do these things that aren’t injurious to others.

 

      And in a similar way, I see the free exercise of religion as your right to pray or do sacraments that aren’t injurious to others. And so it wouldn’t extend to the right to -- against generally applicable laws against harming others in various ways, but it would extend a right to generally applicable laws that aren’t injurious to others. Is there any way that you can see a correlation between the freedom of speech and the free exercise in that way?

 

Prof. Michael McConnell:  Well, I think your point is exactly right. All of these should be understood against the backdrop of natural rights theory. Natural rights were not understood as absolute there. The initial boundaries, of course, what Locke calls the law of nature, which is essentially the equal right of others to be able to exercise the same. Note that some of the peace and safety provisos specifically refer to -- one of the things you can’t do is to disturb the religious observances of others. Well, that’s a perfect reflection of the way in which the limitations of the law of nature confine and define what the natural rights are.

 

      I think speech and religion are very similar here, and neither comes from a backdrop of absolutism. So I think to some extent, the things that Philip and I are worrying about, and we all worry about from a 20th century point of view, are a little foreign to them because of course there’re going to be limitations. And so the peace and safety provisos are simply ways of stating the kinds of limitations you would expect from natural rights theory. And I think that’s true of speech as well as religion.

 

Hon. Kyle Duncan:  Philip, did you want to add anything?

 

Prof. Philip Hamburger:  Yeah. The awkwardness is that in the 18th century, increasingly, Americans say that religious liberty is an inalienable right, that it’s owed to God, not to government. And they say that it’s distinct from other rights. It’s unlike other natural rights in that it by no means can be subjected in any part to government.

 

      And that leaves us sort of a curious problem, doesn’t it, because it means that the right has to be sufficiently tightly defined that we’re not inviting trumping mechanisms that will defeat it such as compelling government interests and the like. So there’s an awkwardness there, and that, I think, drives some of the concerns you see in this debate.

 

Prof. Michael McConnell:  So the right is inalienable, according to Madison, because it’s -- actually, it’s right up there. [Pointing]  It’s because it’s a duty toward the Creator, and a duty you can’t give up. That doesn’t tell us what the right is. It doesn’t tell us anything about the scope of the right. Whatever the scope of the right is, we have to protect it.

 

Prof. Philip Hamburger:  But it does seem rather peculiar to define what’s owed to God in terms of what’s owed to one’s neighbors and to government. One can define religion this way, but most people in the 18th century did not, and most people today do not. The idea that what’s owed to God is limited in this way, in fact, is most unusual.

 

      And in fact, one looks at 18th century folks who explain their claims against government, sometimes -- well, very rarely do they say it’s limited by government. I’ll give you some examples. Quakers in 17th century often, to show their spiritual purity and the depravity of the world, would walk naked as a sign. They did not even wear shoes. I think they may have kept their hats on, but otherwise, they walked naked as a sign. Women would do this in Salem in the 1680s. Some men, some Rogerenes, a group you’ve never heard of, Connecticut, a religious  dissenting group, argued for this in the 1750s.

 

      When asked to justify themselves, the Quakers and the Rogerenes have a very simple answer. They say, “Isaiah did it,” and that’s the end of the conversation. There’s no explanation that this is compatible to government. It’s irrelevant. There’s another gentleman in Virginia who does this in Richmond six times. He gets imprisoned six times in 1792.

 

Prof. Michael McConnell:  There was a student who did this at Berkeley not long ago.

 

[Laughter]

 

Prof. Philip Hamburger:  There we go. And who’s to say -- these folks never say, “Oh, I have a duty to God, but limited, of course, by the laws of Virginia or by good order, and the rest.” It’s just not part of the theological vocabulary.

 

Hon. Kyle Duncan:  And on that note of nudity --

 

Prof. Philip Hamburger:  -- Let’s strip.

 

Hon. Kyle Duncan:  -- And I would point out that Isaiah was --

 

Prof. Michael McConnell:  -- That’ll be the next panel.

 

Hon. Kyle Duncan:  I would point out that it didn’t go well for Isaiah in the end.

 

[Laughter]

 

      I’d like us all to join in thanking our esteemed panelists.

 

[Applause]

2:00 p.m. - 4:30 p.m.
Federalist Papers Exhibit

2019 National Lawyers Convention

Rhode Island Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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2:45 p.m. - 4:30 p.m.
Showcase Panel IV: Originalism and Precedent

2019 National Lawyers Convention

Topics: Constitution • Supreme Court
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On November 16, 2019, the Federalist Society hosted the fourth showcase panel of the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "Originalism and Precedent."

The Supreme Court has decided hundreds of cases, many of which do not seem to square with the original meaning. How much account, if any, should originalism take account of precedent. Are there particular precedent rules that originalism can generate?

*******

As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

Featuring:

  • Prof. Tara Leigh Grove, Mills E. Godwin, Jr., Professor of Law and Cabell Research Professor, William & Mary Law School
  • Prof. Bernadette Meyler, Carl and Sheila Spaeth Professor of Law and Associate Dean, Research and Intellectual Life, Stanford Law School
  • Prof. Michael Stokes Paulsen, Distinguished University Chair and Professor of Law, University of St. Thomas School of Law
  • Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Neomi Rao, United States Court of Appeals, District of Columbia Circuit

Speakers

Event Transcript

Hon. Neomi Rao:  Hello? Oh, there we go. Great. Okay, if you could all please take your seats. Okay. Good afternoon, I'm Neomi Rao. I'm a Judge on the D.C. Circuit Court of Appeals.

 

[Applause]

 

      Thank you. Thanks. Thank you. Thank you all for being here at this last panel just before Justice Gorsuch delivers the closing lecture. As always, The Federalist Society has put together a great conference, and I hope you can all join me in thanking the organizers who have worked so hard to make this another great convention.

 

[Applause]

 

      So this panel's going to focus on the relationship between originalism and precedent. This is a very important and pressing question for originalists at a time when many Supreme Court precedents and, perhaps, even the structure of our government are arguably inconsistent with the original meaning of the Constitution. So what's a good originalist to do when original meaning conflicts with precedent?

 

      And today we have a wonderful all-star panel who have studied and written about this question from different perspectives. I certainly recommend to you their articles on the subject. I found them very interesting. And they're going to seek to provide some different perspectives, considering the principled and practical interrelationship between originalism and stare decisis.

 

      So our speakers have their full bios in your materials, so I'm not going to go through all of that. But I just want to introduce them briefly in the order in which they'll be speaking. So to my right, we have Professor Michael Stokes Paulsen, who is the Distinguished University Chair and Professor of Law at St. Thomas School of Law in Minneapolis.  Next, we have Professor Larry Solum of Georgetown University Law Center where he is the Carmack Waterhouse Professor of Law. And then we have Professor Tara Leigh Grove who is at William & Mary Law School where she is the Mills E. Godwin, Jr., Professor of Law and Cabell Research Professor. And finally, Professor Bernadette Meyler of Cornell Law School where she is the Carl and Sheila Spaeth Professor of Law and Associate Dean for Research and Intellectual Life.

 

      So our format of this panel will be pretty familiar. Each of our four panelists will give a brief introductory statement. That will be followed by a moderated discussion, and then I'll be sure to leave time for your questions. With that, we're going to start with Professor Paulsen.

 

Prof. Michael Paulsen:  Thank you, Neomi. Or I should say Your Honor, but I knew Neomi when she was a visiting professor at University of Minnesota Law School when she was just a young pup. So thank you, Neomi. It is an honor and a privilege to be here. This panel is devoted to originalism and precedent, and I've given my remarks the title of, "An Originalist Theory of Precedent in Eight Minutes." And the somewhat even more cheeky subtitle, "The Pernicious Doctrine of Stare Decisis."

 

My proposition is simply this. If the proper task of constitutional interpretation is ascertaining and faithfully applying the document's original meaning, precedent can have only a limited role. It can inform, guide, and persuade. It can provide valuable information to subsequent interpreters. It can give you the benefit of prior thinking and prior analysis. It can provide a starting point or even a baseline for justification.

 

A system of precedent is valuable for all of these purposes. But from an originalist perspective, precedent cannot properly dictate a decision contrary to the meaning of the Constitution's words. In short, precedent can advise the interpreter, but it cannot revise the document. The Constitution is supreme. Judicial decisions misinterpreting it are not. If the Constitution says one thing and judicial precedent interpreting it says something else, it is the Constitution that must prevail. Judicial decisions cannot amend the Constitution or change its meaning.

 

Put differently, and somewhat more dramatically, stare decisis is inconsistent with originalism. Whatever it is that makes originalism right in principle makes deliberate adherence to non-originalist precedents wrong in principle. Now, I say this as a committed originalist. If you are an originalist, if you believe that the proper mode of constitutional interpretation is to seek to ascertain and faithfully apply the objective original public meaning of the words of the document, then a doctrine of stare decisis understood as deliberately adhering to non-originalist precedents, precedents you would otherwise be fully persuaded are wrong, is flatly inconsistent with your originalist theory as an interpretive method.

 

It follows that if you are a good, faithful originalist, you should reject, discard, abandon stare decisis completely. Stare decisis taken seriously is a corruption of originalism. The doctrine of stare decisis should be repudiated entirely in the area of constitutional law. Now, this conclusion I submit follows from a clear-eyed understanding of what originalism is and from a clear-eyed understanding of what stare decisis is and does.

 

In my remarks today, or the time remaining, I'll make three broad points. First, I will define originalism and define stare decisis and contrast stare decisis with what I think is a proper originalist theory of the role of precedent and constitutional adjudication. Second, I will set forth the simple and, probably by now familiar to many Federalist Society types, argument why stare decisis, understood in this strong sense of deliberated adherence to erroneous precedent, is not only a bad idea, but it is affirmatively unconstitutional. Third and finally, if time permits, I will briefly sketch the dramatic and in some ways radical sounding implications of this argument. Though it sounds radical, I actually think that most of these implications are entirely correct.

 

So, I'd like to start off by first defining originalism and then defining stare decisis. By originalism, I mean, and most original meaning textualists mean, the set of interpretive principles that holds that the task of constitutional interpretation is to accurately ascertain and then faithfully apply as law the objective original public meaning of the words and phrases of the Constitution as a written legal instrument. That is, the meaning that the words and phrases would have had to a reasonably informed speaker and reader of the English language at the time and in the political context in which these texts were adopted, attending to things like the structure and architecture and logic of the document as a whole, and any inferences that can be fairly derived therefrom, and accounting for any specialized usages or terms of art, and taking into consideration background norms that may inform understanding of the Constitution's provision so as to avoid anachronistic interpretation.

 

Originalism posits that where that inquiry supplies a rule of law, you apply that rule of law. That is basically the principle of Marbury v. Madison. When the Constitution prescribes a rule, you are bound to follow it to the exclusion of everything else. Where that inquiry establishes a general principle, government actions that are within the scope of that principle are constitutional, and government actions that are without the scope of that principle are unconstitutional.

 

And where the text supplies no controlling rule or principle -- now, the words of the text is indeterminate or has a range of meaning, the decision defaults to some other source of law, typically, the law made by representative institutions of government. So that's what originalism is in a nutshell is decision in accordance with the objective original public meaning of the words and the inferences that can be drawn therefrom.

 

Stare decisis is in conflict of it. What is the essence of the doctrine of stare decisis as opposed to a system of mere consideration of precedent? What gives it any independent force? I submit that the essence of the doctrine of stare decisis as distinguished from just following precedent is adhering to a prior decision simply because it is a prior decision, even if it is wrong. And this is reflected in the Supreme Court's understanding of stare decisis, too, in the famous or infamous case of Planned Parenthood v. Casey.

 

The Supreme Court refers to adhering to Roe v. Wade whether or not mistaken. That is really the essence of the doctrine is that you ignore the merits of the underlying constitutional issue. The doctrine of stare decisis, really, if you think about it, only has bite if a court would otherwise decide a question differently. You don't need a doctrine of stare decisis to justify adhering to decisions you think are right. You adhere to them because you think are right. In those circumstances, the invocation of precedent is merely a make way to a cover for what the judge is doing anyway. Now, what I'm talking about is the idea of stare decisis when you are deliberately adhering to a decision you would otherwise conclude on other interpretive principles is just plain objectively wrong. That's the doctrine that I'm attacking.

 

Now, that doesn't mean that a good originalist ignores precedent entirely. As I said before, a precedent can inform, guide, and persuade. It is proper to have a demeanor of interpretive humility that doesn't necessarily assume that your interpretations are correct, that looks to precedent and what the valuable thinking is of other interpreters and provides valuable information about it.

 

But when a judge is fully persuaded after careful and thoughtful investigation that the prior precedent or line of precedents is wrong, the judge should not follow it. So I contrast that information function of precedent with what I would call a disposition function of precedent, which basically says not that you are benefitting from prior thinking, but that you've stopped thinking at all and just apply the decision whether or not you think it is mistaken. For originalists, there is a crisp divide between consideration of precedent as an aid to faithful originalist interpretation, which is always proper, and a doctrine of stare decisis that would counsel or dictate adherence to erroneous precedents, which I submit is never proper.

 

And that leads me to my second broad point that understood in this sense, stare decisis is incompatible with originalism. The fundamental premise of originalism is that the original objective meaning of the Constitution and nothing else is controlling. The fundamental premise of stare decisis is that something else is controlling, that precedent contrary to original meaning may sometimes to some extent be controlling, notwithstanding the correct interpretation of the Constitution as an original matter.

 

The premises of originalism and the premises of stare decisis are hopelessly at war with each other and there can be but one winner. If originalism is the correct method of constitutional interpretation, stare decisis is unconstitutional. Simply put, if the Constitution says one thing and a judicial precedent interpreting it says something else entirely or to the contrary, a faithful interpreter must go with the Constitution and not the faithless departure from it. The Supremacy Clause says so. It says that the Constitution is the supreme law of the land, not Supreme Court decisions misinterpreting it. The obligation of the oath in Article VI of the Constitution says so, too. Judges swear an oath to support the Constitution, not the Supreme Court's faithless departures from it.

 

And the logical argument from the syllogism of Marbury v. Madison, a worthy precedent if ever there were one, supports exactly this same reasoning. The logic of the argument for judicial review is simply this: The Constitution trumps any action of government action inconsistent with it. If the Constitution says one thing and a statute of Congress says something else entirely, the Constitution prevails, and the court must give effect to the Constitution and not to the faithless departure from it by a mere subordinate agency of government. The exact same logic applies to the argument for not following precedents that are contrary to the Constitution. If the Constitution says one thing and a precedent decision says something in conflict with it, the faithful Constitution interpreter must follow the Constitution and not the faithless departure from it.

 

Now, all this that I've said is not original or particularly creative. It should be very familiar to good Federalist Society aficionados. It is the position adopted almost verbatim by Justice Thomas in his concurrence last June in Gamble v. United States. But I'd like to conclude by just pointing out some of the dramatic implications of this. It does have major implications for proper and originalist adjudication. If the Constitution must always prevail as against faithless departures from it, Roe v. Wade, for example, a decision utterly irreconcilable with original meaning should and must be overruled. And no matter how many times the Supreme Court has reaffirmed it, the decision must nonetheless be overruled.

 

Indeed, Planned Parenthood v. Casey, the 1992 Supreme Court decision affirming Roe, not on the basis that the justices thought it was correct but almost exclusively on the basis of the doctrine of stare decisis, is probably the most wrong and most dishonorable decision of the Supreme Court of all time. Thank you.

 

[Applause]

 

Prof. Lawrence Solum:  Thank you, Judge Rao. Thank you to The Federalist Society for inviting me. It's been a marvelous event. I'm going to go straight to my remarks.

 

      So I agree with Michael Paulsen. If we take what he says as a theory of originalism in a first-best world, a world in which the Supreme Court has a majority or perhaps all originalists, a world in which the court of appeals are dominated by originalists. But that is not the world we live in.

 

      So my first point is that we live in a second-best world. We live in a world in which no federal appellate court has an originalist majority, in which the United States Supreme Court does not have an originalist majority. There may be some state supreme courts that do have an originalist majority, and then state constitutional interpretation might be different in those states.

 

      Second, the second-best world imposes constraints. If you're an originalist judge and the circuit on which you sit has a non-originalist majority and most panels on which you sit have non-originalist majorities, then adherence to Professor Paulsen's principle would create some very serious practical problems. For instance, you would almost never be able to join a majority opinion. Every opinion you wrote would be -- almost every opinion you wrote would be a concurrence or a dissent. And that might not go down well with your colleagues who have work to do.

 

[Laughter]

 

      And Professor Paulsen's theory has the implication that even vertical stare decisis is not binding on the court of appeals or on district court judges or on officials in the Executive Branch or on Congress. So in a non-originalist world, we would have significant practical problems.

 

      Three: precedent. So how should originalists view precedent? I think here, it is very important for originalists to resist the debasement of the doctrine of stare decisis that has characterized contemporary jurisprudence. Originalists need to take a second look at the doctrine itself. So the classical approach to precedent, to the doctrine of stare decisis, limits the holding of a case to the ratio decidendi. The ratio decidendi of a case is the legal norm that is logically implied by the reasons that are necessary to the decision on the facts and the issues that were put into play, either by the parties or by the judges in the case.

 

      So in many cases, the Supreme Court announces holdings. Courts of appeal announce holdings that go far beyond the actual binding effect of the case according to the best theory of stare decisis. And that means that stare decisis leaves more room for originalism than many judges believe.

     

      Four: a principled approach. Treating the relationship between originalism and precedent as discretionary is a very bad idea for originalism for two reasons. The first reason is this: If originalist judges sometimes respect precedent and other times go with original meaning, but they have no principled basis for deciding when they do one of these things as opposed to the other, they open originalism up to the criticism that it is unprincipled and that it is inconsistent with the rule of law. And that delegitimates originalism. It reduces the chance of originalism to win the day in the end. And, of course, it results in internal inconsistency. It results in judges doing things in once case that they would not do in the other. So we need a principled approach to the doctrine of stare decisis.

 

      So how would that play out? I'm going to look at this, number five, originalism in precedent in the court of appeals in a practical way. What can court of appeals judges do, practically speaking? So the first thing I would say is that when an originalist result and opinion is feasible when there is no controlling decision of the Supreme Court and you can get your panel or your court to go for the originalist approach, then you must go for it.

 

      Second, I think it is possible to build some originalism into every majority opinion that you write, even if you cannot limit your decisions to originalist grounds. So for example, I think on constitutional issues, every opinion written by an originalist judge could say something like we begin as we must, with the constitutional text.

 

      Three, third thing you can do: identify cases in which there is no binding precedent. This is very important. Look carefully at the state of the law, both circuit law and Supreme Court decisions, and identify the cases in which the original meaning is possible.

 

      Fourth thing you can do: reach the originalist result. Reach the outcome that would be required by original meaning even if the reasoning in the majority opinion will not be originalist. If the law moves towards the results required by originalism, this makes the transition to originalism more possible, less disruptive. Whereas if you don't reach originalist results, you make originalism more difficult.

 

      Fifth thing: make careful decisions about when to concur or dissent on originalist grounds. Now, these decisions are going to require practical judgement. Lots of things have to be taken into account. Here's just one practical factor. Determining the original meaning of some constitutional provisions takes a lot of work. If the parties have not provided briefing on this issue and the scholarship suggests to you that your clerks are going to have to spend weeks or months in the library in order to reach a sound and solid conclusion about original meaning, then that may not be a case in which a separate concurrence or dissent is feasible.

 

      But whatever practical considerations come into play, one consideration should be forbidden. You should not make the decision whether to follow the original meaning or precedent to write a concurrence or to write a dissent on the basis of your own personal beliefs about what the law ought to be. Ideology politics should be forbidden.

 

      What about originalism in the Supreme Court? It's different than in the court of appeals. For one thing, the Supreme Court is not bound by its own prior decisions as are the lower federal courts. And I just want to make a comment here that the Supreme Court Clause of the Constitution does not name the court. That phrase "supreme court" is not the name of a court. It is the function of the Court to be supreme.

 

      In the Supreme Court, I think a good case can be made for two different approaches. One approach we might call principled pragmatism, and it would be very similar to the approach that I've suggested could be followed on the court of appeals, but, obviously, with much greater degrees of freedom because the Supreme Court is not bound in the same way as are the courts of appeals.

 

      The other approach we might call uncompromising originalism. Perhaps, the first approach would be followed by a hypothetical justice, let's call him Neil. And the second approach by a different hypothetical justice, let's call him Clarence. And it might well be that this approach with one justice advancing original meaning consistently, and another justice engaging in principled pragmatism would best advance the cause of originalism.

 

      One final thing: inputs. Inputs. Originalist judges can change the way lawyering occurs. In every oral argument, they can ask the question, in constitutional cases, "Counselor, can you explain to me how your result can be reached if we follow the original public meaning of the constitutional text?" If you ask that question every time, it will change the way lawyers approach oral arguments and their briefs.

 

      You can push for institutional resources for originalism. The libraries of the circuits and district courts are not well-equipped for this task now, but they could be. You can hire law clerks who have been trained in originalism. You can ask for supplemental briefing. You can change the practice of law, and if the practice of law changes, then originalism becomes more feasible.

 

      So I just end where I started, which is that I agree with Michael Paulsen. This is where we want to get, but it is not where we are today.

 

[Applause]

 

Prof. Tara Leigh Grove:  Thanks very much to all the organizers for inviting me and to all of you for coming. It's been a wonderful conference thus far.

 

      So when we think about originalism and stare decisis, typically what we think about is should the Supreme Court continue to apply precedents that it believes are inconsistent with the original meaning? But as Larry Solum has just recognized, vertical stare decisis matters a lot, too. And I'm going to talk to you about Article III and the relationship between the Supreme Court and the inferior federal courts. And I think that actually has something to tell us about some current debates.

 

      Okay, so what does Article III say? Article III vests the judicial power of the United States in one Supreme Court and in such inferior federal courts as the Congress may ordain and establish. Now, most scholars believe that Article III creates a hierarchical judiciary such that lower courts are bound by Supreme Court precedent. I should note there's an important exception to that, and that is Mike Paulsen, so I very much look forward to hearing his reactions to what I'm about to say. But the vast majority of scholars, originalists and non-originalists alike, believe that the original meaning of Article III creates a hierarchical judiciary such that lower courts are bound by Supreme Court doctrine.

 

      I want to also suggest that it creates an obligation on the part of the Supreme Court to guide its lower courts on how to enforce federal law. Okay, so how can the Supreme Court do that? Well, for much of our history, the Supreme Court had mandatory appellate jurisdiction and really could serve as a court of error. As decisions came up, it could say yay or nay to the lower federal courts on what to do.

 

      But that started to change in late 19th century. The Supreme Court's docket was overloaded. The cases from the lower federal courts were coming up in droves. The Court was deciding 400 to 500 cases per year and still had a backlog of over 1000 cases. So the justices said to Congress, “Look, we can't do all of this stuff.” And in 1891, Congress established certiorari jurisdiction, giving the Supreme Court discretionary review power over a portion of its docket.

 

But even then, discretionary certiorari jurisdiction extended primarily to diversity cases, not federal question cases. That changed in 1925. So in the 1920s, Chief Justice William Howard Taft said to Congress, “Look, the one Supreme Court created by the United States Constitution cannot attend to every federal question case. It cannot be done.” So in response, Congress gave the Supreme Court substantial discretionary review power over federal question cases. In 1925, it was very substantial, and that was extended to virtually every federal question case in 1988.

 

What Chief Justice Taft understood in 1925 is that this would entail a substantial change in the way the Supreme Court did its work. It had to have a new way of communicating with the lower federal courts. What Chief Justice Taft said is, "The chief function in a court of last resort today is not to serve as a court of error. It is to clarify the law so as to provide guidance in other cases." That is, the Supreme Court should issue broad, and I would suggest rule-like, doctrines to guide the lower federal courts in what to do in all the cases the Supreme Court cannot hear on direct appeal.

 

Okay, so how does that cash out today? I think it has a couple of really important implications. First, a number of scholars today have said the tiers of scrutiny, the standards of scrutiny, strict scrutiny, rational basis scrutiny, are at odds with the original understanding of the Constitution. Now, it is true that in the 19th century, federal courts did not apply these rigid tiers of scrutiny. They were developed in the mid-20th century. And what I want to suggest to you is that rigid tiers of scrutiny make a good deal of sense in our modern day judiciary where the Supreme Court hears only a fraction of cases because these tiers of scrutiny provide guidance to lower courts on what to do in individual cases.

 

Second, I'm talking about very broad doctrines, but broad doctrines need not be doctrines that interfere with the majoritarian branches. They can be broad doctrines of deference, whether it is deference to Congress, state legislatures, local legislatures, or a matter of great interest today, broad deference to administrative agencies. In fact, if one wants to have deference to the political branches, the best way to do it is for the Supreme Court to issue broad doctrines of deference, such that the Supreme Court is saying that not only itself but also the lower federal courts have to keep hands off on what the political branches are doing.

 

Third, I want to give you a policy argument that it is crucially important for the Supreme Court today to issue broad, rule-like doctrines in the high-profile cases that tend to be the subject of confirmation hearings for the lower federal courts. And here, I want to give you a bit of history. So we all know that in Brown I in 1954, the Supreme Court declared that separate but equal educational facilities are inherently unequal. But the Supreme Court didn't actually issue a remedy. It heard oral argument again to figure out, well, what is it going to tell the lower courts about this new declaration?

 

In the oral arguments for Brown II, the NAACP, per Thurgood Marshall, urged the Court to issue a firm deadline for desegregation. Thurgood Marshall said, “Make them do it by September 1955”—by the way, that would've been a couple of months—"or September 1956 at the latest.” The state attorneys had a very different view. They said to the Supreme Court “No, no, no. Give lots of discretion to the lower federal courts.” And this Attorney General for South Carolina said that's true. That might mean that desegregation does not occur until, and I'm quoting here, "perhaps 2015 or 2045."

 

Nonetheless, the Supreme Court issued the "all deliberate speed" standard and, as Thurgood Marshall predicted, it created a nightmare in the lower federal courts. Now, some certainly were out to defy Brown because some district court judges were devoted to segregation, but many just didn't know what to do with "all deliberate speed."

 

So as Professor -- then Professor J. Harvie Wilkinson said, "Brown II left federal district judges much too exposed. They had little to hide behind. The enormous discretion of the trial judge in interpreting such language as 'prompt and reasonable start' and 'all deliberate speed' made his personal role painfully obvious." District court judges were subjected to extraordinary pressure, and it started a matter in confirmation proceedings.

 

Now, up until this time, lower court confirmation proceedings were largely a matter of patronage. Senators would pick their buddies, presidents would nominate those buddies, and things continued on. Nobody really cared what lower court judges thought about specific constitutional issues, with just a few, few exceptions. But after Brown II, presidents and senators really started to care. Now, in the 1950s and 1960s, presidential administrations were largely favoring integration, and they wanted judges who would want to enforce Brown. But the largely Democratic southern state senators wanted people who would not. And, hence, we had our first major confirmation fights.

 

Fast-forward to today. The Supreme Court has issued very unclear doctrines in a number of areas. Planned Parenthood v. Casey's undue burden standard is one example. The Second Amendment is another important example where the Supreme Court said there is an individual right to bear arms and has told us nothing about what that actually means.

 

And that means that things get pushed onto lower courts and huge pressure is placed on the lower federal judiciary, and senators scrutinize how those lower federal court judges are going to vote on these issues. And whatever one thinks of the substantive issues themselves, I think we can all agree that the divisive and contentious nature of lower court federal confirmation hearings are not healthy for the Article III judiciary.

 

So I'm just going to close with a reference to Justice Scalia. We know that he loved rules. And, in fact, Justice Scalia said that the rule of law is the law of rules. Now, I think that was a dramatic overstatement, but what I want to suggest to you is in our current judicial hierarchy, in order for the Supreme Court to maintain a meaningful supremacy over its judicial inferiors, the Supreme Court should create a law of rules. Thank you.

 

[Applause]

 

Prof. Bernadette Meyler:  So I want to join my co-panelists in thanking the organizers and also Judge Rao for moderating this panel.

 

      My talk is going to be on originalism and stare decisis, two considerations from the common law. You may have already guessed from the trajectory of this panel so far, beginning with Michael's critique of stare decisis, then continuing with Larry and Tara, that I will suggest that originalism is not incompatible with stare decisis, so you have the full range of perspectives, at least if stare decisis is conceived as flexibly as both originalists and non-originalists have done over the past several decades.

 

      Rather than making the positive case for stare decisis, though, I instead want to focus on two arguments in particular against eliminating it. And these arguments are derived from common law jurisprudence, the same jurisprudence from which stare decisis was originally derived. The first argument is that stare decisis protects against fundamental interpretive errors performed by one judge or a small set of judges. And the second is that there might be a quasi-Democratic basis for stare decisis. Larry Solum has argued elsewhere that there is a rule of law justification for retaining stare decisis, and I want to say that there may be also Democratic reasons.

 

      Well, I will look back to a 17th century English controversy between common lawyer Sir Matthew Hale, who was widely read by lawyers of the founding generation in America, and early modern philosopher Thomas Hobbes to flush out these arguments. I think that they furnish a rationale for various explanations of stare decisis that we can find in a number of Supreme Court decisions, both of recent years and of the founding era.

 

      In late 17th century England, Sir Matthew Hale, author of The History of the Common Law and a jurist both during and after the English Revolution, as well as a law reformer under Cromwell, entered into a significant controversy with Thomas Hobbes about the nature of law and legal authority. Hale followed Sir Edward Cook who had spoken of the artificial wisdom of the common law which derive from long accumulated precedent and custom.

 

      Hale insisted upon the significance of judicial office and the force of judge-made law as accepted by the people. And this emphasis on acceptance came partly from the fact that he, himself, lived through such tumultuous times where he was both a lawyer before Charles I was beheaded, then a lawyer under Cromwell, and then also under the Restoration. So he had to think about justifications for retaining the law during times of tumult.

 

      Hobbes argued against Hale that only the sovereign could make laws and ultimately interpret them. But the difficulty of Hobbes's position that only the sovereign could make laws became quickly evident even within his own critique of Hale. Addressing the worry that even though the sovereign made the laws, the wrong interpreter of the law could misunderstand it. Hobbes ultimately had to acknowledge that under his theory, the sovereign himself also had to be the final interpreter.

 

      So when the sovereign becomes the people, as in the U.S. system, this strategy seems increasingly difficult and would require resort to the amendment process as some political theorists, including Richard Tuck, have recently argued. So this idea of general acceptance of judicial interpretations may thus suggest an alternative form of popular authorization.

 

      So I want to turn to the first point and how it plays out in recent jurisprudence. We could see how worries about error in interpretation furnishes a justification for stare decisis both in the very recent Gamble case, which was already mentioned, although it was the Thomas opinion in Gamble, not the one that I'm going to focus on, as well as the very early case of Ex Parte Bollman from 1807.

 

      In Gamble, as many of you already probably know, Justice Alito, writing for the majority, reaffirmed the line of Supreme Court cases holding that the Double Jeopardy Clause permits both the federal government and the states to prosecute a defendant because they're separate sovereigns. And, therefore, an offense against the federal government is not the same as an offense against the state governments.

 

      Alito's opinion relied on the idea that "something more than ambiguous historical evidence is required before we will flatly overrule a number of major decisions of this Court." I think if we were to follow this reasoning, and also take into account the extent of legitimate contestation over original meaning, in extent that we saw witnessed by the fascinating debate between Michael McConnell and Philip Hamburger at lunch time, it would lead us to implement a fairly strong norm of stare decisis within originalist decision-making.

 

      So the Gamble case is a recent example of using this method. but I think turning back the clock, Chief Justice Marshall's opinion in Ex Parte Bollman, which affirmed the Court's constitutional capacity to hear a writ of habeas corpus brought in the case, weighed two precedents heavily and gave a similar justification.

 

      So in weighing these precedents very heavily, he followed the argument of lawyer Robert Harper, who had urged the case for stare decisis in quite passionate terms, contending, “It is behind stare decisis that courts and judges love to take refuge, in times and circumstances that might induce them to doubt of themselves, to dread the secret operation of their own passions and prejudices, or those external influences, against which, in the imperfection of our nature, our minds can never be sufficiently guarded.

 

“In such times and circumstances, a judge will say to himself, 'I know not how far I might be able in this case to form an impartial opinion. I know not how far my judgment may be blinded or misled by my own feelings or the views and wishes of those with whom I am connected. But here is a precedent established under circumstances which exclude all possibility of improper bias. This precedent is, therefore, more to be relied on than my judgment; and to this I will adhere as the best and only means of protecting myself, my own reputation, and the safety of those who are to be affected by my decision, against the danger of those powerful, though imperceptible influences.'"

 

Under this account, adhering to stare decisis avoids not only factual error or error about the true original meaning of the Constitution, but also the sometimes unconscious effects of emotional or political bias. So that first point is really about the possibility of error and the role of stare decisis in preventing the persistence of error.

 

The second point I want to make is that the acceptance of settled decisions furnishes a kind of democratic basis for retaining them. I've often found implausible the idea of the counter-majoritarian difficulty. Given the implausibility that voters would hold presidents or legislators accountable for one particular decision as opposed to the vast set of other determinations that he or she makes, it seems that the frequent insistence on legislative and executive decision-making as more democratic than judicial decision-making is somewhat odd.

 

After all, you could have a story of democratic accountability of judges, too, who are also appointed by the president, a democratically elected official, obviously, and confirmed by the Senate, and could potentially be removed from the office in extreme circumstances by impeachment. These considerations, which I don't have time to go into further here, aside, I think that one use of the idea of reliance within cases appealing to stare decisis in recent years has, in fact, drawn upon the notion that establish precedents acquire a kind of democratic legitimacy.

 

A narrow view of reliance articulated by Justice Roger Tawny in his 1851 decision in the Propeller Genesee Chief case, distinguishes the kind of reliance placed upon decisions of "any question of property or laying down any rule by which the right of property should be determined or disturbing the rights and properties of parties from the other such jurisdictional issues as were involved in the Genesee Chief case." And he thinks that -- he thought that only the former really could be protected by stare decisis, not the broader principles.

 

This property-based understanding of reliance does persist today, but alongside it has grown another conception of societal reliance, which appeared explicitly in support of the decision in cases like Arizona v. Gant, Dickerson, and Casey, which was also referred to earlier. Similarly, in Lawrence v. Texas and Adarand v. Peña, the Court felt the need to disclaim such societal reliance upon the earlier rulings that they overturned.

 

This variety of reliance, I think, is not only, as Larry Solum might argue, about retaining the rule of law but also supports democratic values. Exceptions of the decisions in these cases may have indicated their democratic legitimation and also have helped to structure democratic processes in their aftermath.

 

So those are the two points that I want to raise that I think the common law brings us in support of using stare decisis in originalist interpretation. And I want to leave enough time for our conversation, so I'll stop there. Thanks.

 

[Applause]

 

Hon. Neomi Rao:  Great. Thanks so much to everyone. I guess I will take the moderator's prerogative of kicking off with a few questions. So I'll start with you, Mike, if that's okay? So I'm just wondering, how would you respond to Professor Solum's view that we have to account for being in a second-best world? Would you agree that we're in a second-best world?

 

Prof. Michael Paulsen:  We are in a second-best world, but I really admire Larry's systematic theory of how we move from a second-best world to a first-best world. I would like to live in a first-best world. I am a purist and I think there are ways -- and some of this is very much compatible with what Larry was saying in terms of how you act as a lower court judge—we may be advising you, Judge Rao, on this—in order to be a faithful originalist in a second-best world.

 

I think Justice Clarence Thomas is a good exemplar of that. I do not think he ever joins a decision that he is fully persuaded is incorrect on originalist grounds. He does not always advance his originalist arguments if they are not briefed or prepared and if he's not ready to go. But he does not deliberately join a decision on the basis of stare decisis that he otherwise would conclude as wrong.

 

You see that that does in Thomas produce some separate concurring opinions, and I think that's a good way to be. That he actually does say I reserve the question of whether we should reconsider this doctrine more fully, but in terms of the Court's precedents, I do not disagree with the analysis or the conclusion reached, I think that's a good way to do it.

 

Just anecdotally, I've seen some excellent lower federal court judges who I believe are originalists, who feel themselves constrained by hierarchical precedent, but nonetheless, it's hard pressed to actually find instances where they decide in a way that originalism would conclude as wrong.

 

A great example of this -- so I haven't read every opinion Judge Frank Easterbrook has written. I've read quite a few where he seems to be able to work within existing sets of doctrines but reach faithfully originalist results. I've never read a decision of his -- I mean, sometimes there are contestable originalist conclusions, but I’ve never read one where he is unsuccessful in conforming the doctrine to what he understands to be the correct answer.

 

Hon. Neomi Rao:  Thanks. I think it's a sign of how many federal judges are in the audience that so many of the panelists focus on advice for federal judges.

 

[Laughter]

 

      Okay, so I actually -- I have a question maybe that for the other three panelists, in part relating because I think Professor Paulsen's view is such a purist view. There are, of course, line-drawing problems in many of the other approaches. If, for instance, we should think about common law principles, or if the Supreme Court should be laying down certain rules that other courts can follow, or if we should be moving towards a first-best world, then why not just adopt Professor Paulsen's approach? Does that get rid of some of the line-drawing problems, some of the difficulties?

 

      Do you want to start?

 

Prof. Bernadette Meyler:  So yeah. I think that there have always been line-drawing problems in judging and that that's actually part of the beauty of a system where people are judging in a way very similarly to how they did 500 years ago under the common law. I know that the late Justice Scalia had a critique of that system saying that we should be more like civil law judges or we should have something more like civil law judges, even though everyone is educated into this common law system by the first year of law school.

 

But I think that this is a kind of line-drawing -- a set of line-drawing problems that judges have always had to handle and are handling in a way no differently under originalism than under other theories. And I haven't looked empirically at this, but my sense is that, actually, originalist judges aren't necessarily overturning precedent any more frequently than non-originalist judges, that, in fact, the problems of stare decisis seem fairly consistent across both originalist and non-originalist judges. So that I see this as more a problem of judicial method that there's always going to be these line-drawing issues that are going to crop up whenever we have a judicial system along the Anglo-American model.

 

Hon. Neomi Rao:  Mm-hmm, yeah. Go ahead.

 

Prof. Tara Leigh Grove:  So, I think, first of all, I wonder if Professor Paulsen is quite as absolutist as I always take you to be in your writing, which is wonderful writing, because you did say that a judge can have "interpretive humility." And if that's the case, and if, as this conference itself has underscored, there is tremendous disagreement as to what originalism even requires in a number of different areas, does that notion of interpretive humility, I wonder, potentially just allow for stare decisis?

 

Hon. Neomi Rao:  Do you want to respond, Professor?

 

Prof. Michael Paulsen:  Well, I don't think it allows for stare decisis almost by definition. When I speak of interpretive humility, I think that when you approach a legal issue, you consider all the sources. You don't necessarily believe that you have at the outset the single best right answer. And you read the precedents, you read the decisions, you analyze the text, and you come up with a conclusion.

 

      Where you are sufficiently persuaded that the precedents are contrary to the objective original meaning of the text, that is when the doctrine of stare decisis hits the road. That's when the rubber hits the road. The whole force of the doctrine is to compel adherence to a decision you would otherwise conclude is wrong.

 

      Where you have reached the position after full consideration of all the evidence that a decision is wrong, to deliberately follow the wrong decision is wrong. If you are an originalist and you have concluded that this precedent decision is contrary to the original meaning of the text, your obligation is to follow the original meaning of the text wherever you have reached that conclusion.

 

      So I wouldn't say that I've retreated from my absolutist views, but just the absolutist views come into play wherever after the interpretive enterprise has been run, you are convinced of the incorrectness of a line of precedents.

 

Hon. Neomi Rao:  We're going to take some questions from -- I know, I'm going to let you -- if you guys want to go to the microphones while we're hearing from Larry.

 

Prof. Bernadette Meyler:  Could I ask a follow-up question to Mike?

 

Hon. Neomi Rao:  Oh, sure. Okay. Do you want -- Larry --

 

Prof. Bernadette Meyler:  Is it -- I just want to ask one follow-up, too, because what if you have -- say that we imagine a Supreme Court with nine originalist justices, and all of them have a different view of what the original meaning requires. What would you suggest happen in that case?

 

Prof. Michael Paulsen:  I would suggest seriatim opinions.

 

[Applause]

 

      I've no idea why that's popular.

 

[Laughter]

 

      Originalism doesn't always yield ineluctable answers. There can be disagreements between originalists both as to interpretive method,  defined points of it, and as to the specific inclusions as to assessing the evidence. But originalism is a superior method of constitutional interpretation in that it sets the relevant -- the correct ground rules, the boundaries of the interpretive debate. But it’s still possible that you will have differences between faithful originalists as to the correct interpretation of the Constitution.

 

      Justice Scalia and Justice Thomas sometimes ended up on different sides of the case, weighing the originalist evidence differently. That's not surprising that there are differences, but the differences occur within a narrower range. I'm kind of speaking to the situation of what is an individual judge to do? If an individual judge has within whatever degree of persuasiveness needed to satisfy their psychological need for repose, concluded that a decision -- that this is a right answer, the judge should always adhere to what he or she believes is the right answer and not to the views of colleagues that he is persuaded are incorrect.

 

Hon. Neomi Rao:  Larry?

 

Prof. Lawrence Solum:  So there are three reasons why I disagree with Michael Paulsen. So the first reason is that I believe that it is extremely unlikely that the jurisprudence of the Supreme Court always permits lower court judges to reach originalist results. If, in fact, it's true that Frank Easterbrook always reaches originalist results, then one of two things is happening.

 

      One possibility is he's gotten extremely lucky in the cases he has drawn, and he has simply never drawn a case in which the Supreme Court's precedent, it requires a non-originalist result. The other possibility's he’s very clever, but he's not actually complying with the decisions of the Supreme Court. The Easterbrook hypothesis that Michael Paulsen advances made the problem go away, and I don't believe that the problem is not a real problem.

 

      Second, there is really a need for settlement of constitutional cases. So if we have a system in which every official who swears an oath to the Constitution is required to vote their belief about what the Constitution requires if they're a judge or to act in the way that they believe the Constitution requires if they are an Executive official or a legislature, that's a recipe for disaster. Originalism is not a suicide pact. It's not a philosophy that requires us to have constitutional anarchy. We do need mechanisms for settling constitutional questions.

 

      So third thing, that process of settlement is only going to work if we have some standard for reversing precedent that is higher than, "I think it's wrong." "I think it's wrong" creates a legal system that is inherently unstable, given the fact that on some wide range of constitutional questions, at least in the current state of research, there is substantial disagreement about very important questions.

 

      So the formula is not important, but we could say something like, "We will reverse a prior decision that reached a conclusion about original meaning only if we are convinced now that there's clear and convincing evidence that the prior decision is wrong." In other words, we defer to the past until, not just we believe all things considers there's a greater than 50 percent chance that the decision is wrong, but we're convinced that the question should now be taken as settled the other way.

 

Hon. Neomi Rao:  Okay. Did you have something? Okay. We're going to start with some questions. We'll start at the front microphone.

 

Questioner 1:  Ma'am, sirs, my question relates directly to what you were just discussing. Moving out of the realm of the theoretical and into the real life, real world event, in order for the U.S. Supreme Court to overturn precedent in any way, a case has to get there first. And, of course, in this room, there are plenty of Article III judges.

 

My question is in real life, what would you propose that those inferior court judges do when a matter comes along that challenges what is established in stare decisis, but originalism would say is clearly wrong? For example, you brought up the instance of Roe v. Wade. So what would you have an actual Article III district court judge do when that matter comes before him?

 

Prof. Michael Paulsen:  That is a terrific question. That is actually the subject, as Tara pointed out, of one of my earliest Law Review articles that I wrote some 30 years ago, arguing that lower court judges should, to coin a phrase, underrule Roe v. Wade.

 

      I actually think that the argument against stare decisis fully applies to lower court judges in exactly the same way analytically. If the Constitution says one thing and the precedent of the Supreme Court says something to the contrary, the obligation of the court, of the judge in a particular case, is to follow the Constitution, not the faithless departure from it.

 

      I believe that the proper response of a lower federal district court is to defy Roe v. Wade and say that this is an incorrect decision. I think that as a function of the judicial hierarchy, that decision can be reversed, but I think that the proper approach of an independent Article III judge is to require the Supreme Court to, so to speak, do its own dirty work.

 

      The obligation of a lower federal court judge is to the Constitution, not to the Supreme Court's decisions that are departures from the Constitution. The notion of a supreme court and an inferior courts does have some power, but I believe that the necessary and sufficient understanding of the word supreme in Supreme Court is that it is a court from which no appeals lie and it is capable of reversing and exercising jurisdiction, if granted it, to review and reverse decisions of lower courts.

 

      It does not turn lower court judges into potted plants or law clerks or robots. A lower court judge is not the agent or law clerk of the Supreme Court. It is an independent constitutional officer. The Supreme Court doesn't hire lower court judges, doesn’t fire lower court judges. They have the power where they have jurisdiction to review and reverse them.

 

      Now, as a practical matter, this does create some disruption, right?

 

[Laughter]

 

Questioner 1:  I would think so.

 

Prof. Michael Paulsen:  But if you take seriously the obligation of the oath to the Constitution, that's disruption that is warranted. Larry poses a question; it's a great quip. Originalism is not a suicide pact. But actually, if you have taken an oath to support the Constitution and you believe the correct mode of interpreting the Constitution is originalism, originalism is a suicide pact. You have signed on to this.

 

      And in a certain way, there is not too much of a difference between formally underruling and what happens all the time in routine situations. Judge's sub silentio overruler undermines Supreme Court decisions. I think that rather than a lower court judge saying, "I am going to decide incorrectly because I'm required to by my oath," I think the judge should say, "I am going to decide correctly, and you can reverse me if you want."

 

Questioner 1:  Thank you.

 

Hon. Neomi Rao:  Okay. We'll go to the back microphone.

 

Cameron Atkinson:  Thank you, Judge Rao. Cameron Atkinson from Connecticut. I had a question for Professor Solum about his second-best world analogy. I'm not sure if I'm necessarily understanding you correctly, but I find it somewhat slightly alarming your point about working within a doctrine to achieve a result that we believe possible. I think I would like to hear your thoughts on why that isn't almost akin to what living constitutionalists do in essence of making either a statute or a law what they want it to be instead of faithfully interpreting what the law is as it comes to them.

 

Prof. Lawrence Solum:  So I'm not sure I fully understand the question, but if the question is how can we reconcile the practice of voting in a way that is consistent with the result required by originalism, despite the fact that the opinion, either written by another judge on a lower court or an opinion you might write yourself, is not a thoroughly originalist opinion, and you might actually sign on to an opinion that says very little about original meaning.

 

      How is that consistent with originalism? So this is the problem of the second-best world is that it's not an option to just have everything conform to originalism right now, today. That requires that other judges join with you in an originalist opinion that reaches the originalist outcome. If that's not possible, that is the sense in which the world is second-best.

 

It is not possible to achieve everything originalism requires. Then you can either opt out and only concur and dissent in constitutional cases with a rare exception of the case where you can get an originalist outcome for an originalist reason, or you have to compromise. So compromise, it seems to me, is the only feasible choice under those circumstances.

 

Hon. Neomi Rao:  Did you want to say something?

 

Prof. Tara Leigh Grove:  I just -- you know, it's interesting when we think about vertical stare decisis and the obligations of lower court judges. I think in this room, I think because of the situation that constitutional doctrine has been in for quite some time, people envision a world in which there's a lot of living constitutionalist precedent and originalists have to figure out how to deal with it. So lower court originalist judges have to figure out how to deal with Supreme Court precedent, and Professor Solum's offering a really powerful way for them to do that.

 

But I think people, especially when you think about whether you want to keep vertical stare decisis, imagine a world in which the Supreme Court is originalist and the lower federal courts are living constitutionalists. And think about how you would like living constitutionalist lower federal court judges to treat originalist precedents by the Supreme Court. And I think if you think about that, I think many, many people who might not otherwise be too keen on vertical stare decisis would like lower courts to abide by Supreme Court precedent. And also think about the extent to which the Supreme Court needs to issue doctrines that lower courts can actually apply because it is simply infeasible for a lower federal court judge to do whatever kind of interpretive work they're going to do on a case by case basis the way the Supreme Court can do just in terms of time.

 

Hon. Neomi Rao:  We'll go to the first microphone here.

 

Questioner 3:  Thanks for such a terrific discussion. Just two quick questions. One that I'll address to Tara is the argument I've heard about stare decisis maybe being consistent with originalism is there are some principles baked into the Article III judicial power that the judiciary wasn't going to be changing the law back and forth every other year so that people could order their lives in a meaningful way and depend on a settled rule of law. And I'm curious if you or others have thoughts about or just reactions to that argument, which I thought was interesting.

 

      And then one quick question for Michael. The argument you're making that I think make sense to me is that if there seems to be precedent that is clearly inconsistent with originalist understanding, then your duty as a judge is to ignore that precedent and speak up, and whether that means writing separately or getting your panel to agree with you, try to take the law in the clear originalist direction.

           

      My question is what if we're dealing with a situation where maybe originalism clearly takes some options off the table, but it gives you a range of plausible options that are correct? Some originalists describe this as the construction zone, and I think this gets to some of what Larry was discussing earlier. But if, as an originalist, maybe you think one of those options is slightly more plausible, maybe 52 percent, but you acknowledge that the other option is not crazy and within the range of what is plausible based on originalist principles, is that an area where you think humility is warranted and precedent might play a stronger role?

 

Hon. Neomi Rao:  Do you want to start?

 

Prof. Tara Leigh Grove:  So I am persuaded by the arguments. And I haven't done the historical work myself, so I put that out there, but I am persuaded by the arguments that the Article III judicial power involved precedent, that that was actually part of it. And I think that's something that actually hasn't been brought up in our panel today, and I think it's an important aspect of the challenge to Professor Paulsen's argument to the extent that judicial power just entailed precedent. Then precedent has to be part of our system.

 

      I think Professor Meyler's comments very much went to that. My comments were about well, taking that as true, how does the Supreme Court today formulate doctrines for other courts to apply? But that's building on an assumption that precedent is part of our constitutional system.

 

Prof. Bernadette Meyler:  I just want to add something. Yeah, I would agree with that. And I think that a lot of the treatment by the Supreme Court of precedent in the early years, which is often taken as a persuasive gloss by originalists on what original meaning might have been, suggested the importance of precedent and of stare decisis in determining meaning. So I think that contemporaneous to the Founding and right after it, you see the importance of stare decisis.

 

      I would qualify that by saying that it's not the same kind of stare decisis that comes up in the later 19th century. So I think it's a more flexible vision of precedent than we get solidified, say, in the mid-19th century, both in England and America. So I'm not sure that the very strong views of stare decisis are the ones that would've been originally available. But, certainly, the importance of precedent and adhering to long-established precedent was there.

 

Prof. Michael Paulsen:  Let me address the second question. This is a recurrent debate within originalism. What do you do when the meaning of a constitutional provision is uncertain, unclear, ambiguous, or indeterminate in some way? As Larry Solum puts it, what do you do when meaning runs out?

 

      I believe that the Constitution generally suggests a default rule, where the Constitution does not supply a rule, that it defaults to the institutions of representative government. Where a court cannot say that the actions of representative government are contrary to a rule or principle established in the Constitution, the Constitution's default principle is democracy. The people choose. So that the answer where the Constitution doesn't supply a rule is that the Constitution doesn't supply a rule and you have to look elsewhere for your rule of law.

 

      Now, this actually gets to an interesting point about Justice Thomas's concurrence in Gamble. The standard he adopts, it's a little bit different from the one Larry proposes. He says, "You should never adhere to a demonstrably erroneous precedent." And it's unclear whether he would say if the interpretation advanced in a prior decision is within the range of meaning of fair originalist interpretations, you should adhere to it. And I think there's a plausible basis for that's the maximum situation of interpretive humility is where you cannot conclude that a prior decision is wrong. So I think that's a very valid argument.

 

Hon. Neomi Rao:  Larry, did you want to add something?

 

Prof. Lawrence Solum:  No, it's okay.

 

Hon. Neomi Rao:  Okay. We'll go to the back microphone.

 

Clarke Forsythe:  Clarke Forsythe, Americans United for Life. I wanted to ask about where the current majority is on stare decisis. There seems to be a debate ongoing between Chief Justice Roberts, who has said that when we're dealing with a well-settled precedent, we require a special justification beyond the claim that the precedent was merely wrongly decided, and which I believe has been joined in by Justice Kavanaugh and Justice Alito, versus Justice Thomas who, in his Gamble dissent, seemed to be saying no, we start with whether it's wrongly decided or demonstrably erroneous. Is that an accurate description of where the majority is right now and where is that debate going?

 

Prof. Lawrence Solum:  I think that this question is very important but that it's a difficult question to answer because different members of the Court have different ideas about what precedent -- how you interpret a precedent, what the scope of a precedent is.

 

      So Justice Roberts, obviously, is very reluctant to overrule a prior decision, but in the areas where I know the law deeply, I believe that Justice Roberts frequently has a very, very flexible approach to understanding what a case stands for. So the difference between overruling a case openly and characterizing a prior decision in such a way that it does not control, that makes all the difference.

 

      So I don't think that this is easy, and I think that this problem is complicated. But I write a treatise on the doctrine of stare decisis. I have the volume in Moore's Federal Practice on stare decisis. I read a lot of stare decisis decisions. This problem is compounded by the fact that many federal judges clearly do not -- I'm sorry, not -- present company excepted.

 

Hon. Neomi Rao:  I've only been on the bench a few months, so I know.

 

[Laugher]

 

Prof. Lawrence Solum:  Many federal judges do not have a consistent approach to stare decisis. So in some cases, they adopt the theory that if a prior case says, “We hold that…” then they're bound by that statement. In another case, they say, “Ah, but there are factual differences between this case and the prior case. We are not bound.” And in yet another case, they might apply something approximating the traditional theory of the ratio decidendi. So given that the practice, with respect to stare decisis, is radically inconsistent between judges and then even within the same judge, it's very difficult to figure out what's actually going on with respect to stare decisis.

 

Prof. Michael Paulsen:  Can I echo Larry's point? As a function of different justices and judges, not only running different interpretive theories but running different interpretive programs as to the force of stare decisis and what actually constitutes stare decisis, there is no coherent doctrine of stare decisis.

 

      A few years ago, I wrote a snottily titled article called, "Does the Supreme Court's Current Doctrine of Stare Decisis Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis?"

 

[Laugher]

 

      And the reality is that all of the factors that are invoked are inherently manipulable. Nobody applies them the same way, and so the idea that precedent or a system of stare decisis acts as a genuine substitute constraint on judges is, I think, a loser. Stare decisis is a manipulable doctrine and various judges and justices are good at manipulating it to avoid it when they want to avoid it. They believe it just adds another layer to the analysis when the proper analysis should be what is the correct meaning of the Constitution?

 

Prof. Tara Leigh Grove:  Yeah, I want to add something. I think this is a really interesting question and discussion. I think Larry is right to say that overruling is only one of a set of tools that judges use, and another one is reinterpreting precedents in different ways, and then another is narrowing them or cabining them for various reasons. And there may be others that I'm not even including.

 

      And another thing that I'm interested in is the explicit discussions of stare decisis have really only emerged in the last couple of decades with great force. I think before 1850, there are only a couple of explicit discussions even though the Court is following precedent. And I think that in cases where the Court is overruling earlier cases, obviously, they want to account for why that is and go through various rationales for departing from stare decisis.

 

      But I think it's interesting the cases where they discuss stare decisis extensively where they are adhering to stare decisis and what that means. And it seems to me that the Court is becoming more self-conscious about stare decisis. I'm not sure exactly which way that cuts.

 

Hon. Neomi Rao:  We'll go to the front microphone.

 

Dan Hinde:  Thank you, Your Honor. Dan Hinde. I'm a former state trial judge from Houston, Texas. And first of all, I'd like to thank the panel for some very incisive comments today.

 

      Professor Grove touched on this a few moments ago and, actually, Professor Paulsen, you may have already touched on this as well. Professor Grove mentioned the problem of vertical stare decisis and what do you do when your lower courts are populated by living constitutionalists.

 

And that kind of goes to the question I wanted to ask you is isn't it your critique of stare decisis applicable to just about any other competing mode of interpreting a contract? In other words, couldn't living constitutionalists use your argument here to disregard originalist precedents such as Heller or other things? Essentially, what the Warren Court did when it started overruling all those prior precedents.

 

Prof. Michael Paulsen:  Yeah, that's a terrific question. I think the core problem is this: Wherever you vest interpretive power, that power can be abused or used incorrectly. I think that's true. If you vest all interpretive power in the Supreme Court, then that power can be abused because they have the complete interpretive power.

 

      I actually agree with Larry Solum's reductio ad absurdum that a consequence of my critique of stare decisis is that there are multiple constitutional interpreters, none of whom is literally bound by the views of any of the others. I believe the Constitution does not specify a single authoritative interpreter but divides the interpretive power and divides it within the judiciary.

 

      That is not necessarily a recipe for chaos or anarchy, but it is a decentralized model of constitutional interpretive power. If you do have lower court judges who are running an incorrect interpretive program, right, living constitutionalists, there is the possibility that they will -- probability that they will decide incorrectly. But whatever the principle is as to the force of precedent, it's got to apply as across any interpretive methodology.

 

Dan Hinde:  Thank you.

 

Hon. Neomi Rao:  Go to the back microphone.

 

Gary Lawson:  Hi. Gary Lawson, Boston University School of Law. I'll address this to Larry because it comes out of his comments, but anyone should be free to take or reject it. This morning, Mike McConnell raised Blackstonian interpretation as an alternative to straight up judicial review, who -- surely, the legislature could not have meant to abuse the rights of the citizens, so we will not interpret them as having done so absent the clearest indication. And then if the legislature says, “Yeah, we really mean to abuse the rights of the citizens.” Okay, we gotcha.

 

[Laughter]

 

      And could you do that judicial opinions? Surely, the judges who swore an oath to uphold the Constitution could not have meant to toss the document into the Potomac River and make up crap.

 

[Laughter]

 

      And we will not interpret them as doing so unless they say, “We're tossing the Constitution into the Potomac River and making up crap.” That would at least have the virtue of honesty, and it might actually promote the project of making the Court give clear guidance of whatever kind to lower courts. That okay?

 

Prof. Lawrence Solum:  Thank you, Gary, as always.

 

Hon. Neomi Rao:  Now, that's some advice.

 

Prof. Lawrence Solum:  As always, brilliant. So I'm a little worried by this idea because I do think that that sort of interpreting away holdings that are true holdings that are contrary to the original public meaning of the Constitution could have serious effects on the rule of law. But to the extent that it's done in good faith, that is, to the extent that a Supreme Court decision genuinely permits a lower court judge to reach an originalist result, I applaud that.

 

And to the -- what I don't -- what I certainly would not endorse is the idea that we have to honor the spirit of a Supreme Court opinion that is living constitutionalist even in cases where the actual rule, the actual holding of the opinion, does not require that result.

 

Hon. Neomi Rao:  I'm curious what you both think about that question.

 

Prof. Tara Leigh Grove:  So I think this is yet another reason that whenever we're articulating interpretive principles or rules of vertical stare decisis, we should think about the fact that not everyone is an originalist. Not everyone is going to be an originalist. And ask yourselves how much power you want lower courts to have to interpret the Supreme Court as having thrown the Constitution out because that power could be used by many, many different kinds of lower court judges who have very different approaches to interpretive theory than I suspect many people in this room.

 

Prof. Bernadette Meyler:  I agree with what was said previously.

 

Hon. Neomi Rao:  Okay, great. Question?

 

Chris Green:  Chris Green from Ole Miss. So Mike Paulsen's comment about law clerks makes me think of this: You say lower courts aren't law clerks, but law clerks take oaths, too.

 

[Laughter]

 

      So imagine a case where it's a per curiam. One thing's well, your name isn't on the opinion. Your judge's name might not be on the opinion. I take it the answer would be well, yeah, you take an oath, but it's not your job to be writing the opinion, like literally, it's going out under somebody else's name, at least metaphorically.

 

But you could say the same thing about the Fifth Circuit of the D.C. Circuit that well, it's just not your job to fix U.S. Supreme Court opinions. And you could say the same thing about the U.S. Supreme Court at time two, that sometimes, it's not, unfortunately, the job of Supreme Court at time two to fix mistakes made at time one. Sometimes it is, but sometimes it's not.

 

      So this, I call this the "not my job" defense to the accusation of infidelity to the Article VI oath. Surely, you should never pronounce this sentence: The Constitution requires acts if the Constitution refers to the original meaning expressed by the text. But sometimes it's not your job to interpret the Constitution at all. Your job is just to interpret the precedent. So what about that, Mike?

 

[Laughter]

 

Prof. Michael Paulsen:  Well, I'm probably influenced by the fact that I was never a judicial law clerk, and that probably accounts for some of my suspicions about judicial authority generally.

 

      Chris, I guess my answer would be that wherever you swear an oath to support the Constitution, you have an obligation to act faithfully. The power you have might be different. In prior writing, I've distinguished between the structure of Article II and the structure of Article III. It might be the same thing for a literal law clerk, too.

 

      Under Article II, all of the executive power, for better or worse, is vested in a President of the United States who has the exclusive power to enforce and direct the enforcement of the laws. I was an Executive Branch subordinate attorney, and I possessed exactly one millionth of a percent of executive power, but my decisions could always be subject to being countermanded or overruled by the Deputy Assistant Attorney General, by the Assistant Attorney General, by the Deputy Attorney General, by the Attorney General, or by the President.

 

      I think the structure of Article III is materially different as respects the decisions of lower court judges, federal judges, and the Supreme Court. I believe that they are not subordinates in the same sense that they don't really exercise independently the judicial power. I believe lower federal court judges possess the judicial power and all of it within the scope of the jurisdiction that's given to them.

 

      While their decision can be reversed, I think that their obligation by their oath where they do possess actual governmental judicial power is to decide the case correctly.

 

Chris Green:  Thank you.

 

Hon. Neomi Rao:  Other thoughts about that?

 

Prof. Bernadette Meyler:  I'll take it up. I think it's a really interesting question, Chris. And it raises for me the issue of what's entailed in an office, which I think comes out in this recent piece by Judge Shugerman and Andrew Kent and Ethan Leib about faithful execution in Article II. And in kind of thinking about and responding to that piece, I came across a lot of literature suggesting that the Founders were very interested in the delimitations of office and what constituted the appropriate role in an office.

 

      So we might say that the office of law clerk is limited by the fact that they can be fired by the judge, and so therefore need to at least, to some extent with some dialogue, implement the desires of that judge and whatever that judge thinks is the correct interpretation of the law. And I guess I would say something similar about lower court judges that that is their office within the system and that there are constraints associated with particular offices that I would just disagree with Mike about the difference between Article II as unfettered executive power and Article III.

 

Prof. Lawrence Solum:  If I could just say one thing about Chris Green's very good question. The "it's not my job" principle illustrates something very deep and important about law. So in the constitutional context, we can distinguish between first-order questions. What does the Constitution mean? What is the meaning of the Dormant Commerce Clause? Oops, there was no Dormant Commerce Clause. What is the meaning of the Commerce Clause? What is the meaning of the phrase judicial power? These are first-order questions.

 

      And then there are second-order questions. These are questions about how we decide the first-order questions; that is, who gets to make authoritative judgments about the meaning of the Commerce Clause, the meaning of the judicial power? The rule of law depends on the idea that it is possible to settle first-order questions by having second-order mechanisms, mechanisms that allocate institutional responsibility. And this is why decentralization, the idea that everyone gets to make their own constitutional decisions, is fundamentally at odds with the rule of law and constitutional order.

 

Prof. Tara Leigh Grove:  I want to say if we start going down that road, I hope that all lower federal court judges interpret Article III the way that I do and think that supreme and inferior really do establish a hierarchical relationship, and that all law clerks view it as their constitutional obligation to do precisely what their Article III judges tell them to do.

 

Hon. Neomi Rao:  Okay. Well, I'll have to pick my law clerks carefully.

 

[Laughter]

 

      So any other final thoughts? We're pretty much nearing the end. No? No? Okay, well, there seems to be music and large crowds waiting outside for Justice Gorsuch, so thank you. Please join me in thanking our wonderful panel.

 

[Applause]

 

 

4:45 p.m. - 5:30 p.m.
Hon. Robert H. Bork Memorial Lecture

2019 National Lawyers Convention

Topics: Constitution
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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  • Hon. Neil M. Gorsuch, Associate Justice, Supreme Court of the United States
  • Mr. David J. Feder, Associate, Jones Day
  • Mrs. Jane E. Nitze, Member, The Privacy and Civil Liberties Oversight Board
  • Moderator: Mr. Leonard A. Leo, Co-Chairman and Executive Vice President, The Federalist Society

Speakers

5:30 p.m. - 7:00 p.m.
Closing Reception & Book Signing

2019 National Lawyers Convention

Palm Court Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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All registrants are welcome to attend the Closing Reception.

Book Signing:

  • A Republic, If You Can Keep It by Justice Neil M. Gorsuch

Speakers

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