Brown, Epstein, and Gulati on The Constraining Efect of "History and Tradition": A Test

Rebecca L. Brown, USC School of Law, Lee Epstein, University of Southern California, and Mitu Gulati, University of Virginia School of Law, have published The Constraining Effect of "History and Tradition": A Test as Virginia Public Law and Legal Theory Research Paper No. 2024-63, Virginia Law and Economics Research Paper No. 2024-28, and USC Law Legal Studies Paper No. 24-33. Here is the abstract.

The U.S. Supreme Court’s embrace of originalism, and particularly the “history and tradition” method of interpreting constitutional text, is often justified by its defenders as constraining judges from making up the law to match their preferences. Two Second Amendment cases (Heller in 2008 and Bruen in 2022), where the Court switched methodologies, provide a vehicle to test the debated question. Analyzing data from federal court decisions on gun rights spanning 2000 to 2023, we find that the switch from a means-ends to a history-tradition methodology corresponds with an increase in judicial discretion. Personal factors like partisan identity, gender, race and careerist considerations shape judicial behavior in the post-Bruen era in ways they did not under the prior regime. The results challenge the notion that a historical approach provides a neutral constraint on judicial discretion.

Download the article from SSRN at the link.

Brooks and Gamage on The Original Meaning of the Sixteenth Amendment @FordhamLawNYC @davidsgamage

John R. Brooks, Fordham University School of Law, and David Gamage, University of Missouri School of Law, are publishing The Original Meaning of the Sixteenth Amendment in the Washington University Law Review. Here is the abstract.

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2023 Supreme Court case of Moore v. United States, taxpayers have argued that the Sixteenth Amendment only authorizes taxation of realized income—this is, that gain from appreciated property can only be taxed as “income” when there has been a sale or conversion of that property. In this Article we argue—based on the original meaning of the Sixteenth Amendment—that this approach to constitutional tax questions is wrong. The focus of the Sixteenth Amendment and of the Congressional income tax power is not “income” per se, but rather “taxes on incomes, from whatever source derived.” Thus, the question should not be whether the thing being taxed satisfies some isolated definition of “income,” but rather whether that tax in question comports with the original meaning of “taxes on incomes.” This is because, as we show here, the explicit and well-understood original meaning of the Sixteenth Amendment was to overrule the Supreme Court case of Pollock v. Farmers’ Loan & Trust Co. and restore the “complete and plenary power of income taxation” as it was understood at the time. The Amendment did not create Congress’s power to tax income, a power which it had been exercising since the Civil War; rather, it merely removed the impediment Pollock had introduced. This original meaning of the Amendment was communicated clearly at that time both in Congress and in the press. Thus, to understand the power the Sixteenth Amendment authorized, we should look at the practice and experience of income taxation at that time. Our examination shows that federal (and state) income taxes explicitly included many items of “unrealized” income, such as shareholders’ shares of undistributed corporate earnings (the issue in Moore). We also show—for the first time in the modern literature—that the federal corporate income tax law at the time of the Sixteenth Amendment’s ratification incorporated elements of “mark-to-market” taxation—treating unrealized gain from the appreciation of assets as gross income for tax purposes. This historical review thus reveals that Congress’s power to tax income is broad and should not be limited by appeals to constrained definitions of “income” isolated from the historical context.

Download the article from SSRN at the link.

Brooks and Gamage on Moore v. United States and the Original Meaning of Income @davidsgamage @FordhamLawNYC @IUMaurerLaw

John R. Brooks, Fordham University School of Law, and David Gamage, Indiana University Maurer School of Law, have published Moore v. United States and the Original Meaning of Income. Here is the abstract.

In the upcoming Supreme Court case of Moore v. United States the taxpayers are challenging whether unrepatriated earnings of a foreign corporation can be “income” of a shareholder under the Sixteenth Amendment. The case therefore raises a question that the Court has rarely had to address in the last 100 years—what is the meaning of "income" under the Sixteenth Amendment? And furthermore, is realization required before the gain from property ownership can be treated as income? Central to answering those question is another question: What is the original meaning of income at the time of the Sixteenth Amendment’s ratification? The taxpayers in Moore (and the Ninth Circuit judges who dissented from the denial of rehearing en banc) argue that some concept of realization is necessarily a part of the original meaning of income—i.e., that there must be some act of separation or conversion of property into cash or other property in order for there to be income. In this essay, we highlight some of the major errors and omissions of the taxpayers, amici, and Ninth Circuit dissenters related to the question of original meaning. We show that contemporary definitions of income did not incorporate—and could not have incorporated—the contemporaneous definition of realization, and that they in fact incorporated unrealized gain. Furthermore, we show that pre-ratification and contemporaneous federal tax law explicitly included undistributed corporate earnings in shareholders’ income. We also show—we believe for the first time in the literature—that the federal corporate income tax law at the time of the Sixteenth Amendment’s ratification explicitly included unrealized gain from the appreciation of assets as gross income for tax purposes. Given this evidence, it is clear that realization could not have been a necessary and required element of the original meaning of income.

Download the article from SSRN at the link.

Rosenthal on Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller to Bruen @Chapman_Law @AmULRev

Lawrence Rosenthal, Chapman University School of Law, is publishing Nonoriginalist Laws in an Originalist World: Litigating Original Meaning from Heller To Bruen in volume 73 of the American University Law Review. Here is the abstract.

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the Second Amendment, in District of Columbia v. Heller. Last Term, the Court, in New York State Rifle & Pistol Association v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Bruen. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had also managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” These errors seriously distorted the Court’s purportedly originalist analysis. Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it, Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation. Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

Download the article from SSRN at the link.

Eyer on Disentangling Textualism and Originalism @katie_eyer @RutgersLaw

Katie R. Eyer, Rutgers University Law School, has published Disentangling Textualism and Originalism. Here is the abstract.

Textualism and originalism are not the same interpretive theory. Textualism commands adherence to the text. Originalism, in contrast, commands adherence to history. It should be self-evident that these are not—put simply—the same thing. While textualism and originalism may in some circumstances be harnessed to work in tandem—or may in some circumstances lead to the same result—they are different inquiries, and command fidelity to different ultimate guiding principles. Why should this common-sense observation warrant academic commentary? Because both textualists and originalists—and even those who eschew such methodologies—are surprisingly inclined to conflate the two. Indeed, it is common (though not universal) today for textualists/originalists to treat textualism and originalism as a single inseparable package (adjudicated under the moniker of “original public meaning”), and to decline to rigorously delineate them in both theorizing and analysis. In this Essay, I argue that disentangling textualism and originalism is critical to the future vibrancy and legitimacy of textualism as an interpretive methodology. When conflated with originalism, textualism holds almost endless opportunities for partisan manipulation of precisely the kind that textualism’s critics have decried. Moreover, many types of originalist inquiry can lead judges to results inconsistent with text—and thus textualism. In short, for an adjudicator to have genuine fidelity to any interpretive theory, it is critical for the adjudicator to know to which theory, in cases of conflict, the adjudicator ultimately subscribes.

Download the essay from SSRN at the link.

Koppelman on Justice Alito, Originalism, and the Aztecs @NorthwesternLaw @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, has published Justice Alito, Originalism, and the Aztecs as Northwestern Public Law Research Paper No. 22-02. Here is the abstract.

Justice Samuel Alito is anachronistically mistaken when he claims, in his Fulton v. Philadelphia concurrence, that the original meaning of the Free Exercise Clause of the First Amendment is a judicially enforceable right to exemption from generally applicable laws. The doctrines and practices of strict scrutiny, narrow tailoring, and compelling interests came into existence in the 1960s. Alito’s evidence for his originalist claims misreads his evidence and has extravagant implications. If judicially crafted exemptions are to be defended, this case must be made on nonoriginalist grounds.

Download the paper from SSRN at the link.

Blake on A Positivist Baseball-Centric Critique of Originalism

William Blake, University of Maryland Baltimore County (UMBC), Department of Political Science, has published A Positivist, Baseball-Centric Critique of Originalism. Here is the abstract.

Some scholars have argued that respect for the Constitution compels judges to adopt originalism. This paper evaluates the claim of “compelled originalism” by comparing the language of the baseball rulebook to that of the U.S. and other constitutions. First, I describe how different rules of our national pastime align with originalism, while others invite umpires to use a living Constitution approach. I then leverage H.LA. Hart’s philosophy of legal positivism to evaluate baseball and constitutional rules. Hart claims public officials must accept the most fundamental rules of their legal system, which would include any guidance about how to interpret the Constitution. Because compelled originalism is rooted in respect for the Constitution’s legitimacy and supremacy, one would assume the text would instruct judges to be originalists. Of course, the Constitution says no such thing. By contrast, the baseball rulebook sometimes provides specific instructions to umpires about how to adjudicate certain rule violations. I conclude by demonstrating how originalists have managed to turn the debate over constitutional legitimacy on its head. If the goal of originalism is to prevent judges from reading provisions into the Constitution, originalists must take seriously that no requirement to use original public meaning exists in the constitutional text.

Download the article from SSRN at the link.

Baude and Sachs on Originalism and the Law of the Past @WilliamBaude @StephenESachs

William Baude, University of Chicago Law School, and Stephen E. Sachs, Duke University School of Law, are publishing Originalism and the Law of the Past in volume 37 of the Law and History Review (2019). Here is the abstract.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law—which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught—and no more so—than applying Founding-era legal doctrines.

Download the article from SSRN at the link.

Mikhail on James Wilson, Early American Land Companies, and the Original Meaning of "Ex Post Facto Laws" @_John_Mikhail

John Mikhail, Georgetown University Law Center, is publishing James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws' in volume 17 of the Georgetown Journal of Law & Public Policy (2019). Here is the abstract.

Many commentators have questioned whether the interpretation of the term “ex post facto laws” in Calder v. Bull, which restricted that term to retroactive criminal laws, is historically accurate. Most prominently, over seventy years ago Professor William Winslow Crosskey argued not only that this “criminal-only” reading of “ex post facto laws” departed from the original understanding, but also that Justices Chase, Iredell, and Paterson adopted that erroneous interpretation in order to assist James Wilson, who by 1798 had fled from his creditors and needed retroactive bankruptcy protection. Drawing on new evidence related to legal disputes involving three land companies with which Wilson was associated, which eventually gave rise to Hollingsworth v. Virginia, Fletcher v. Peck, and Johnson v. M’Intosh, this Article contends that Crosskey was likely correct about the original meaning of “ex post facto laws,” but likely mistaken about the Justices’ motivations in Calder. In fact, Wilson’s land speculation, conflicts of interest, and aggressive pursuit of his companies’ interests were probably a source of embarrassment to his fellow Justices. Nonetheless, there is a clear discrepancy between the construal of “ex post facto laws” in Calder and how that term was widely used in the founding era, which merits further investigation. A better historical understanding of these land disputes also raises new doubts about the reliability of the discussion of ex post facto laws in James Madison’s Notes of the Debates in the Federal Convention. The Article is my contribution to a symposium on James Wilson that was hosted by the Georgetown Center for the Constitution and was held at Georgetown Law in December, 2017.

Download the article from SSRN at the link.