1127 Connecticut Avenue, NW
Washington, DC 20036
OriginalismNovember 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!
2019 Antonin Scalia Memorial Dinner
Collection of the Supreme Court of the United States
Hon. Brett M. Kavanaugh
Supreme Court of the United States
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
Nineteenth Annual Barbara K. Olson Memorial Lecture
Hon. William P. Barr
The Mayflower Hotel
1127 Connecticut Avenue NW
Friday, November 15, 2019
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.
The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 16, 2019
Collection of the Supreme Court of the United States
Hon. Neil M. Gorsuch
Supreme Court of the United States
The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 16, 2019
Showcase Sessions Discussing the Convention Theme:
Practice Group Breakout Sessions
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:
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Washington, DC 20036
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Cut off Date: October 21, unless rooms sell out sooner.
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*The Sessions Package includes all three days of sessions, CLE, and lunches as well as the Annual Rosenkranz Debate & Luncheon.
|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.
|Antonin Scalia Memorial Dinner|
|Antonin Scalia Memorial Dinner|
| SOLD OUT|
|Barbara K. Olson Memorial Lecture & Reception|
| SOLD OUT|
|Barbara K. Olson Memorial Lecture & Reception |
| SOLD OUT|
***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.
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2019 National Lawyers Convention
|Topics:||Federalism • Federalist Society • Separation of Powers • State Courts • State Governments • Supreme Court • Federalism & Separation of Powers|
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.
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.
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.
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.
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 --
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.
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.
2019 National Lawyers Convention
|Topics:||Constitution • Founding Era & History • Philosophy • Supreme Court|
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
Chris Green: So are you? And can you do something more vivid to demonstrate that you’re not?
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.
And thank you all very much for being such an attentive audience.
2019 National Lawyers Convention
|Topics:||Federalism • Federalism & Separation of Powers • Constitution • State Courts • State Governments • Supreme Court|
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.
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.
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.
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.
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.
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.
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.
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.
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?
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?
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.
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.
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.
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.
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.
2019 National Lawyers Convention
2019 National Lawyers Convention
|Topics:||Federal Courts • Litigation • Constitution|
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.
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.
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.
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.
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.
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.
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 -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.
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.
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.
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.
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.
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.
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.
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.
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.”
Hon. William H. Pryor, Jr: I'm not sure if I would have regarded Holmes as the way to persuade this crowd.
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?
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.
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.
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.
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.
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.
2019 National Lawyers Convention
|Topics:||Corporations, Securities & Antitrust|
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?
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 --
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.
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.
2019 National Lawyers Convention