Section Three, Originalism, and Interpretive Alternatives

William Baude and Michael Stokes Paulsen have written a recent article, "The Sweep and Force of Section Three," in which they argue that Section Three of the Fourteenth Amendment is a self-executing provision that renders Donald Trump ineligible for the presidency as a result of his role in attempting to overthrow the results of the 2020 election.

The article has been the talk of both legal academia and the wider public in recent weeks, drawing a great deal of attention and drawing support and criticism from various scholars and commentators. While this post adds to the commentary, let me emphasize at the outset that I do not dig into the weeds of the historical claims or evidence that Baude and Paulsen amass. Indeed, this post isn't so much a response to the article, but instead derives primarily from how Baude and Paulsen have described and defended their claims in follow-up discussions (particularly in recent episodes of "Amarica's Constitution," which Baude highlights here), and have only reviewed portions of the article that get into the interpretive issues I focus on here.

This was initially meant to be a response to a brief comment Michael Ramsey's post at The Originalism Blog, which highlighted some recent coverage of Baude and Paulsen's article. Ramsey closes his post with this comment:

There's a lot of originalism in these debates and in commentary on the Section 3 issues generally. It's worth noting that the nonoriginalist alternative is that judges decide whether Trump should be disqualified based on their intuitive assessment of what's best in light of modern needs and circumstances.

This characterization of the options for interpreting Section Three is an oversimplification. And it's an oversimplification worth highlighting because of its frequent occurrence in debates between originalists and nonoriginalists--including in Baude and Paulsen's defense of their claims against certain critiques.

Contrary to Ramsey's claim, there are a number of nonoriginalist means by which one may interpret Section Three before resorting to mere intuitive assessments. A judge might interpret the text by reference to its present meaning and understanding, as well as how it fits in with the structure of the Fourteenth Amendment and the rest of the Constitution, without looking to the historical debates over the Fourteenth Amendment's meaning and place in the Constitution. Alternatively, a judge may look to how Section Three has been interpreted in subsequent cases and rely on meaning developed over time through common law reasoning to determine how that language should be applied in a present case. And while "intuitive assessment" of modern needs suggests little more than going with one's gut, or shooting from the hip based on initial impressions, considerations of modern needs and circumstances--albeit through thorough consideration of consequences and careful reasoning--may also play a role, as those espousing pragmatist theories of interpretation argue at length.

And even the method that Ramsey highlights is one worth noting. As concerning as "intuitive assessment" might sound, considering modern needs and circumstances probably ought to play at least some role in the decisionmaking process--even if those considerations factor in on a level beyond interpretation. Even if there's a strong originalist argument in favor of disqualification, one shouldn't lose sight of the broader context. Indeed, another originalist, Michael McConnell, urges a narrow reading of Section Three out of concern for the consequences of a broad reading:

Putting together my friends' broad definitions of "insurrection" and "engage," and lack of concern about enforcement procedure, I worry that this approach could empower partisans to seek disqualification every time a politician supports or speaks in support of the objectives of a political riot. Imagine how bad actors will use this theory. If that is what Section 3 necessarily means, we have to live with it. But in my opinion, we should seek the narrowest, most precise, least susceptible to abuse, definition that is consistent with history and precedent. In the absence of actual engagement in actual insurrection, judged as such by competent authorities, we should allow the American people to vote for the candidates of their choice.

Baude and Paulsen respond by arguing that this is an inappropriate way to interpret the Constitution (both in the initial link and in this second episode as well). They argue that concerns over misapplication of a particular interpretation do not invalidate the criticized interpretation, and analogize McConnell's concerns over consequences to a judge's first selecting a preferred result and then structuring an interpretive method that ensures the result. Instead, they argue, one should engage in principled interpretation to figure out what the Constitution truly means, and follow that meaning from there, even if it might lead to unexpected or undesirable consequences.

Baude and Paulsen take this position in their article as well. Here's an example of this point from their article, in which they critique Chief Justice (or, in this case, Circuit Justice) Chase's opinion in In re Griffin:

Chase’s construe-to-avoid-the-force-of-constitutional-language-whose-policy-consequences-you-dislike approach to constitutional interpretation is simply wrong. Judges do not get to rewrite constitutional provisions they find objectionable on policy grounds. Relatedly, judges do not get to make up new provisions of law in order to devise policy “solutions” to texts they don’t like. Chase’s opinion imposed, as a solution to textual literalism and its real and imagined policy inconveniences, a different kind of constitutional provision, one more like the Impeachment Clause and the Treason Clause. Put bluntly, Chase made up law that was not there in order to change law that was there but that he did not like. (p. 40)

As Baude and Paulsen advance this argument--both in the excerpt above, and in responding to McConnell's critique--they tend to treat concern over consequences as something distinct from a theory of interpretation. This, at least, is the impression I get when they claim to be following the Constitution's meaning wherever it will lead, rather than letting consequences dictate how the Constitution ought to be given effect. In particular, they argue that originalist interpretation--looking to the original public meaning of the Constitution--is the way to go, and pragmatic considerations are something other than interpretation entirely. Ramsey's characterization of "intuitive assessments" of modern needs suggests this as well--this isn't "interpretation," it's "intuition."

As foreshadowed above, all of builds from the assumption that originalism is the way to interpret the Constitution. If this is the case, than consideration of consequences does indeed seem to go beyond the interpretive process and lead to false conclusions. But as discussed earlier, this is not the case. It isn't originalism or nothing. And it isn't originalism or "intuition." Rather, there are multiple potential approaches to choose from. And, as it turns out, judges often employ multiple approaches, both across cases and within cases, when interpreting the Constitution--a method broadly labeled as "pluralist" interpretation. Baude and Paulsen seem to avoid this underlying debate over methodology, asserting an originalist approach from the outset and proceeding from there. (see, e.g., pp. 8-9). But the possibilities of alternate methodologies should at least qualify assertions that considerations beyond original meaning are "simply wrong."

One might object to my highlighting debate over alternate theories of constitutional interpretation by arguing that the majority of Supreme Court Justices are originalists, and that it therefore makes sense to take as given that the Court will employ an originalist method in interpreting Section Three (should the issue make its way to them). Paulsen, at least, seems to express such a view in his first interview with Amar, going so far as to suggest that the Court may side 9-0 in favor of Trump's in eligibility (with the originalist justices following the article, and the three liberal justices taking an approach more in line with Ramsey's "intuitive assessment" approach). 

I'm not as convinced. The Court's approach to originalism tends to be inconsistent at best, including in recent cases that many commentators mistakenly describe as originalist decisions. I suspect that some of the more conservative justices may be at least tempted to give in to political leanings. I also suspect that these leanings may join in a coalition with institutional concerns that prompt the Court to avoid ruling that Trump is disqualified out of a fear of political backlash. All of this should give pause to assumptions that the Court will embrace interpretive principles above politics.

But say we set aside the meta-theoretical debate and accept an originalist approach to interpretation. Even then, consequences of that method still may play a role in the overall interpretive process. Considerations beyond the text frequently play a role in interpretation when the text to be interpreted is broad, undefined, or otherwise capable of multiple meanings. In choosing how to give effect to that text--say, in selecting one of multiple potential meanings, including original meanings--judges may opt for an interpretation that has better consequences or, if the case involves invalidating a law, leaving the law in place out of deference to the democratic process. 

We can make the description of the process a bit more precise by distinguishing between linguistic meaning and legal meaning. Lawrence Solum does so in distinguishing the initial step of "interpretation" (deriving the linguistic meaning of a provision) from "construction" (giving legal effect to that meaning). Perhaps Baude and Paulsen have a stronger argument that consequences don't play a role in that first step of interpretation. But even then, I'm not sure if this is right, or if it matters. The possibility remains that a theory of interpretation (that does not account for consequences) may lead to multiple meanings, including broader and narrower interpretations in the Section Three context. Sure, we may be able to narrow things down to a smaller range of potential meanings using interpretation. But the entire debate may still center around which of those meanings ought to be accepted by actors tasked with putting interpretation into effect.

And that's the debate that Baude and Paulsen have chosen to enter. For one, their argument quoted above critiques how Chase "construe[d]" Section Three--strongly suggesting they're talking about how the language is constructed. But more fundamentally, they cannot simply dismiss the process in which semantic meaning translates to legal action through government action (whether by state secretaries of states or judges). After all, they've written an article that expresses conclusions regarding what Section Three requires of modern actors, and they therefore must take all considerations into account--both at the initial stage of determining the meaning of words on a page, to the next stage of how those meanings ought to be put into effect by legal actors.

I suspect the response to this is that the original semantic meaning of Section Three is so determinate (or, "thick,") that there's no need for construction. As noted at the outset, I'm not here to argue against Baude and Paulsen on their historical points, and they've done a great deal of legwork to set forth their argument. In making this argument, I assume that Baude and Paulsen have done a thorough job of canvassing the history, amassing the argument, and providing support for their conclusions.

Even so, proving a semantic meaning that is so thick that consequentialist arguments may simply be swept beside is a tall order. Remember, construction may be required where there are multiple potential original meanings. These multiple meanings may result from the inquiry originalism requires, which involves surveying a wide range of detailed, sometimes contradictory historical accounts. It may not be certain what the original meaning was from such an investigation. Alternatively, multiple meanings may be what the interpretive inquiry turns up. A thorough examination of the historical evidence may reveal that, at the time of ratification, people held different beliefs about the meaning of Section Three. 

To be sure, one may decide to go with what appears to be the most common meaning, or to avoid meanings that only seemed to exist in certain camps (say, critics of the Fourteenth Amendment, or only people with certain expertise). But this move of selecting between alternate meanings is itself a form of construction. And the question then becomes: why allow this form of construction, while dismissing alternative forms of construction that take into account the consequences of one interpretation over another?

Baude and Paulsen must address this question as critics continue to raise concerns over the practical implications of their arguments. Thus far, their move seems to be to distinguish their interpretive arguments from consequential considerations--considerations that they claim are irrelevant to the core interpretive inquiry. The discussion above, though, suggests why this may not be the case even if Baude and Paulsen have made a strong originalist showing.

As a final note in this already lengthy post, I do not rule out the possibility of other interpretive methods reaching the same conclusion as Baude and Paulsen. McConnell raises consequentialist concerns in one direction, but the consequences of a minimal reading of Section Three in the face of such flagrant misconduct by Trump may undermine fundamental qualifications for office in the short and long term that may outweigh potential abuse of the provision. And interpretive methods beyond originalism or pragmatism may also get to the same result. I confess that my political preferences align me with Baude and Paulsen's conclusions about disqualification, as I think that Trump's conduct is reprehensible and should dissuade any reasonable voter from supporting him. But it's still worth delving into the assumptions underlying the constitutional interpretation dimension of the debate, even if doing so might cast doubt on conclusions I find agreeable.

The Opaque, Incomplete Corpus Linguistics Analysis in the Mask Mandate Ruling

As virtually all news outlets have reported, Judge Kathryn Kimball Mizelle of the United States District Court, Middle District of Florida, recently struck down the CDC's requirement that people wear masks in certain settings, including plains, train stations, busses, and other public transit settings. The ruling is here. The case is Health Freedom Defense Fund, Inc. v. Biden.

Reaction to the ruling has been swift. Most of the commentary is an early phase, with initial reactions widespread on Twitter. For some initial, detailed discussion, Ilya Somin writes about the opinion here, suggesting that it is more defensible than critics claim, but that it may still be vulnerable to being overturned on appeal. The Wall Street Journal's editorial page writes favorably of the ruling here. The Washington Post has dueling takes for and against the ruling. 

More undoubtedly will be written as the days go on and as commentators parse the 59-page decision. Initial reactions suggest that the textualist methodology employed by the court is lacking. (See, e.g., here and here). I want to focus on one portion of the analysis: the court's use of corpus linguistics methodology in support of its conclusion.

I won't delve into the intricacies of the dispute and all of the arguments made by the parties and addressed in the ruling. In brief, the court addressed whether 42 U.S.C. § 264(a) was a sufficient basis for the CDC's mask requirement. The court concluded it was not, finding, among other things, that section 264(a)'s grant of power to provide for "sanitation" did not apply to requiring masks.

In reaching this conclusion, one method the court employed was corpus linguistics--a method in which databases of documents and texts are searched for instances in which words and phrases are used. In theory, one trying to determine the meaning of a word or phrase can type that word or phrase into a corpus linguistics database and examine the instances in which that word or phrase is used across a wide variety of texts. In doing so, patterns may emerge demonstrating multiple usages, common trends in meaning, and other information that may aid in determining the definition (or definitions) of a term. This method of interpretation has gained steam in recent years, particularly in originalists circles where it is hailed as a groundbreaking method for determining the original public meaning of constitutional provisions. (See articles by Lawrence Solum and Thomas Lee and James Phillips advocating the use of corpus linguistics in the originalist context). As I've noted in recent work coauthored with Alexander Hiland, this methodology raises a fair share of concerns, including a lack of transparency as to how a judge undertook the corpus linguistics analysis. The corpus linguistics analysis in Judge Mizelle's opinion demonstrates that this concern is well-founded.

Here's the excerpt of the ruling addressing corpus linguistics (from pages 17-18 of the ruling):

Customary usage at the time agrees. One method to assess the ordinary meaning of a term is to search a database of naturally occurring language. A search returns the desired word as well as its context and, with a sufficient sample size, search results permit inferences on how a word was used. This method is known as corpus linguistics.[FN 2] The Court here searched the Corpus of Historical American English (COHA) [FN 3] to find uses of "sanitation" between 1930 and 1944. Of the 507 results, the most frequent usage of sanitation fit the primary sense described above: a positive act to make a thing or place clean. Common examples referred to sanitation in the context of garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object. In contrast, by far the least common usage-hovering around 5% of the data set-was of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean. And so, the COHA search results are consistent with the contextual clues of the active words surrounding sanitation in § 264(a).

[FN 2]: "Corpus linguistics is an empirical approach to the study of language that uses large, electronic databases" of language gathered from sources such as books, magazines, and newspapers. Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. 788, 828 (2018) (footnote omitted) (describing this tool).

[FN 3]: The COHA corpus is publicly available. See CORPUS OF HISTORICAL AMERICAN ENGLISH, https://www.english-corpora.org/coha/ (last visited Apr. 12, 2022). It is "the largest structured corpus of historical English." Id. Because Congress enacted the PHSA in 1944, the Court searched for uses of the word "sanitation" and variants like "sanitary'' and "sanitize" between 1930 and 1944. The search returned 507 hits, or "concordance lines."

This description of the analysis that the court undertook and the conclusions drawn from the analysis lack transparency and raise a number of questions.

To start, it is unclear what search (or searches) the court undertook. In footnote 3, the court indicates that it searched for the word "sanitation," and also "variants like 'sanitary' and 'sanitize'." The court does not specify how many variants of "sanitation" it searched for--only providing two examples of such variants. It appears that the court conducted a single search, although this is unclear as well, given the acknowledgment that the court searched for variations on "sanitation." This suggests that there was a single search for "sanitation," along with some of its variants (say: "sanitation OR sanitary OR sanitize"). The court's failure to specify the precise terms of its search, however, leave the reader to speculate as to how the court conducted its search of the database.

The court's analysis also lacks transparency regarding how it coded the results of its search. The court gives two apparent examples of its coding: results reflecting the meaning, "a positive act to make a thing or place clean" and results reflecting "a measure to maintain a status of cleanliness, or as a barrier to keep something clean." The court does not specify whether its search uncovered alternate meanings, and the percentage of results that fell into these meanings. Indeed, the only percentage specified in the opinion is that five percent of results were consistent with the "measure to maintain a status of cleanliness" meaning. The court is silent as to the percentage of results that fell into the other meaning it identifies, stating only that the "most frequent usage of sanitation" fit that sense. It is unclear whether sanitation as "a positive act to make a thing or place clean" was a majority of the results or a plurality of the results. Even if this sense was a majority of the results, there is still room for the possibility of a frequently used, third meaning that the court does not identify here. Without a breakdown of how results were coded and the frequency of hits for each definition that was code one cannot know how the court reached its decision or evaluate the significance of its conclusions regarding the frequency of definitions.

The court also fails to list sufficient examples detailing how it decided to categorize the search results. The court notes that it one of its definitions was "a positive act to make a thing or place clean," but goes on to provide purported "examples" that list little more than characterizations of the context of the terms. Some of these terms are likely loaded: "sewage" and "garbage disposal," for instance, suggest that some of these results may have been uses of the term, "sanitation," in a specialized sense to describe a "Department of Sanitation." The court does not specify how it classified search results like this, or whether it treated such results differently from the use of "sanitation" in non-departmental contexts. Departments of Sanitation likely carry out a variety of activities, including taking positive actions to make places clean and to maintain a state of cleanliness. Accordingly, it is likely that the court's analysis included hits that, themselves, could have been interpreted in multiple ways. The court does not specify whether, in these cases, it selected one of the alternate definitions, whether it discounted the result from its analysis, or whether it coded the result as including multiple definitions.

Additionally, this analysis illustrates an overall issue with corpus linguistics analysis: the methodology does not contain a basis for selecting among multiple meanings that a search of the relevant corpus uncovers, or whether choosing a single meaning is appropriate. Here, the court notes that the results of its analysis indicated that there were at least two potential meanings of "sanitation." The court ultimately concludes that it should use the variation that appears most frequently, but does not state why the most frequent usage is the only usage that should be employed (for a critique of this assumption, see Donald Drakeman's essay on corpus linguistics; although see Neal Goldfarb's arguments to the contrary). Moreover, selecting a particular meaning of "sanitation" is, itself, a judgment call as to how broadly to read the statute. If one takes a wide view of the CDC's power, one may be inclined to read "sanitation" to cover all of its potential meanings, so as to allow the CDC to take a broad range of actions. Limiting the reading of "sanitation" to only one of its alternate definitions is, itself, a judgment call as to the appropriate breadth of the agency's power--yet no basis or justification for this assumption is set forth.

Advocates of corpus linguistics claim that it can bring a level of empirical rigor to legal interpretation. But as the court's ruling in this case demonstrates, corpus linguistics can backfire and lead to conclusions based on methodology that is impossible to examine or verify. Advocates of corpus linguistics will undoubtedly argue that misapplications of the methodology should not count against the method itself. But in a world where attorneys may increasingly seek to use corpus linguistics in a one-sided manner to convince judges that their position is correct, or where judges themselves employ corpus linguistics without the necessary transparency, the costs of this method to judicial transparency may outweigh the benefits. A judge or attorney may abuse dictionary definitions by selecting a particular dictionary or one particular definition among alternate, plausible definitions. But these abuses can be identified and critiqued. This is not the case with incomplete corpus linguistics analysis, in which a failure to disclose search terms, coding methods, and percentages of coded results makes it impossible to evaluate the interpretive methods employed. The court's decision in Health Freedom Defense Fund illustrates how this opaque, incomplete methodology can impact the lives of millions.

Originalism and Selective Historic Reference Points

A little over a week ago, Michael Dorf wrote an article in Verdict regarding oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen. This is the Supreme Court's most significant Second Amendment case since McDonald v. City of Chicago, in which the Court incorporated the Second Amendment, holding that it applies against state restrictions on the right to keep and bear arms. The Supreme Court's prior opinion in District of Columbia v. Heller, two years before, had only held that the Second Amendment applied to federal restrictions. 

New York State Rifle & Pistol Association, like McDonald, involves a non-federal restriction on firearms. Most rights included in the Bill of Rights have been incorporated to apply against state and local governments--with the Supreme Court basing this incorporation in the Fourteenth Amendment's Due Process Clause. Justice Thomas has previously argued for an alternate approach to incorporation, arguing that the Privileges or Immunities Clause of the Fourteenth Amendment is the basis to apply the Second Amendment (and other rights enshrined in the Bill of Rights) against the states.

Dorf focuses on a question that Justice Thomas asked during oral argument:

Attorney Paul Clement argued the case for the plaintiffs. He contended that “history and tradition” supported his position. Justice Thomas, who, more than any of his colleagues, espouses originalism, understood Clement’s invocation of history to imply that the Court should look at what the constitutional text meant to the People who ratified it. But that then raised a question. Justice Thomas asked: “should we look at the founding, or should we look at the time of the adoption of the Fourteenth Amendment, which then, of course, applies it to the states?”

Clement, a former Solicitor General of the United States, is an excellent lawyer, so he gave the answer that best served his clients: it doesn’t matter. Whether you look at the original public meaning in 1791, when the Second Amendment was ratified, or at the original public meaning in 1868, you will find the same answer: a right of generally law-abiding citizens to carry firearms in public.

Is that right? As I discussed in an article published in the Northwestern University Law Review earlier this year, there is reason to believe (and sources cited in footnote 37 of my article conclude) that the People who ratified the Second Amendment understood its language to prevent the federal government from disarming state militias but not to have many implications for individual firearms possession, while the People who ratified the Fourteenth Amendment in 1868 understood at least some kind of individual right to keep and bear arms to be among the privileges and immunities that the provision secured against state interference. (emphasis added).

Dorf notes that the Court, both historically and now, has refused to find that constitutional amendments incorporated through the Fourteenth Amendment offer differing limits on the power of state governments compared to the federal government:

Most of the cases incorporating provisions of the Bill of Rights against the states arose during the 1960s. During that era, the Justices debated whether the Fourteenth Amendment incorporates Bill of Rights provisions against the states in exactly the way they apply to the federal government—a position sometimes called “jot-for-jot” incorporation—or whether in some instances the incorporated right might have different implications for the states.

We have already encountered one reason why a right might be different as applied to the federal government and the states: perhaps by the time the People ratified the Fourteenth Amendment in 1868, their understanding of the right had changed from the views that prevailed when the original Bill of Rights was ratified in 1791. Federalism provides another explanation: within broad bounds, each of the fifty states might be permitted some leeway in light of distinctive traditions and variations in their legal systems.

Despite the appeal of history and federalism, the Court eventually settled on jot-for-jot incorporation. Indeed, just last year, in Ramos v. Louisiana, Justice Neil Gorsuch, writing for the majority, decisively “rejected the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights” (citations and internal quotation marks omitted). In Ramos, the Court held that the Fourteenth Amendment’s incorporation of the Sixth Amendment’s right to jury trial in criminal cases precludes conviction based on a non-unanimous jury decision in state court, just as in federal court.

Dorf notes that Thomas, as well as other justices who've authored or signed opinions regarding the scope of incorporated amendments (including Justice Gorsuch in Ramos) claim to be originalists. I've written about originalism before, both here and in longer work. Most modern versions of originalism hold that the meaning of the Constitution and its amendments are fixed at the time of ratification, and that the original public meaning of those provisions at the time of enactment is the same meaning that should be applied today. That notion of fixed meaning (sometimes described as the "fixation thesis") is accepted by most modern academic originalists.

But if meaning is fixed at the time of ratification, then most of the amendments in the Bill of Rights likely apply differently against state and local law than they do against federal laws. That's because these amendments don't apply directly to state laws. Instead, they apply to states via the Fourteenth Amendment, which was ratified 1868--many years after the amendments were originally enacted at the end of the 1700s. During those years, the public's understanding of the often broad, abstract, and value-charged language of these amendments likely changed to some degree. And yet, self-proclaimed originalists on the Court pay little mind to this--indeed some have explicitly rejected it. Take McDonald, the case that incorporated the Second Amendment against the states. There, Justice Scalia--recognized as the highest profile originalist to sit on the court--joined in the portion of Justice Alito's opinion that explicitly rejected the notion that the Fourteenth Amendment may provide a different level of protection to the right to bear arms:

[Justice Stevens] would hold that "[t]he rights protected against state infringement by the Fourteenth Amendment's Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights." Post, at 3093.

As we have explained, the Court, for the past half century, has moved away from the two-track approach. If we were now to accept Justice STEVENS' theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents.

Justice Thomas, it should be noted, did not join in this portion of the opinion.

Alito's view is hardly without historic support. The Court has long refused to recognize differing levels of protection by the Fourteenth Amendment, warning against a potential dilution of protection against state law enforcement compared with federal law enforcement and raising the specter of incongruous enforcement of constitutional rights against different government actors. Take Justice Brennan's opinion for the Court in Malloy v. Hogan:

The Court thus has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights," Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (dissenting opinion). If Cohen v. Hurley, 366 U. S. 117, and Adamson v. California, supra, suggest such an application of the privilege against self-incrimination, that suggestion cannot survive recognition of the degree to which the Twining view of the privilege has been eroded. What is accorded is a privilege of refusing to incriminate one's self, and the feared prosecution may be by either federal or state authorities. Murphy v. Waterfront Comm'n, post, p. 52. It would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in a state or federal court. Therefore, the same standards must determine whether an accused's silence in either a federal or state proceeding is justified. (emphasis added).

Incongruous as such a legal regime would be, it would at least be an originalist one. Refusing to apply two different standards rejects the fixation thesis in favor of the broader goal of a consistent set of rules governing the scope of constitutional amendments. This goal may be sensible, but it isn't consistent with originalism. And this ignorance of basic originalist principles may not always be in the service of such noble goals, as Dorf argues:

To be sure, in Ramos, as in McDonald, Justice Thomas concurred separately to insist that the Privileges or Immunities Clause, rather than the Due Process Clause, does the work of incorporation. But for him as well as his colleagues, originalism—which allows for changed meanings between 1791 and 1868—stood as no obstacle to full incorporation, which they favored on what pretty clearly appeared to be policy grounds.

In that respect, the irrelevance of Justice Thomas’s question—1791 or 1868?—jibes with everything else we know about originalism. In the most hotly contested cases that come before the Supreme Court, arguments rooted in original meaning typically serve a rhetorical function. Justices invoke them to justify decisions taken on other, ideological, grounds.

What are the implications of all of this? 

First, it suggests that as much as originalist scholars may argue in favor of originalism, these arguments seem to have little impact on the Court's actual practice, which consistently ignores (and is based in a history of ignoring) the notion that constitutional provisions' meanings are fixed at the time of enactment. Originalists may respond that failures to appropriately apply originalism should not count against the theory itself. Indeed, some argue that the recognition of such failures by the professoriate turns out to be a point in favor of originalism. Leaving a thorough response to that peculiar defense for another day, I will note for now that if the Court continues to consistently misapply originalism (and reach decisions based on the foundation of jot-for-jot case law), there ought to come a point where originalists should ask themselves whether everything they are working for is really worth it. 

Second, the longstanding failure of the Court to recognize that the meaning of constitutional provisions are fixed at the time of reenactment in the Fourteenth Amendment context threatens a recent trend in originalist scholarship arguing for a positivist take on the theory. This "positivist turn" in originalist theory (very broadly and briefly summarized), argues that originalism is our law, and that it should be followed because judges promise to follow the law. If the Court's history of failing to apply the original public meaning of the Fourteenth Amendment forms the basis for a great deal of constitutional law, the thesis that originalism is, in fact, our law is significantly undermined.

Third, the issue of whether to interpret early Amendments based on their meaning at the time of the founding or at the time of the Fourteenth Amendment's ratification represents a subsection of a debate over when the Constitution's meaning should be fixed. For the most part, this debate is sadly limited--originalists argue for fixation at the time of ratification, a few people (and I) argue that provisions should be read based on present public meaning, and the Court apparently favors fixation at the time of the founding, 1868 be damned. But there are more options. Why should we consider the meaning of the Constitution as fixed at any point before the Fifteenth Amendment barred the United States and the states from denying the right to vote based on race in 1870? Why shouldn't the meaning of the Constitution be fixed in 1920 when the 19th Amendment's ratification guaranteed women the right to vote? Some may argue that the Constitution has mechanisms for amendments built in, and that this "potential sovereignty" somehow ameliorates the failure of earlier iterations of the Constitution to accommodate the democratic input of those it governs and protects. But this doesn't account for the fact that determinations of original public meaning tend to focus on the voices of those who played a role in the drafting, adoption, and ratification of constitutional provisions, and that the voices of women and African Americans were absent from these contexts for centuries. Those historically excluded from voting may not want to completely do away with the Constitution and amendments as they're worded, but they ought to have some sort of a say in the meaning of these provisions if we're going to claim with a straight face that the Constitution represents the popular will of a supermajority of Americans.

While I have dozens of depositions and hundreds of other projects and emergencies to worry about over the next few months, I'm sure I'll find the time to write more on these issues. In the meantime, we'll see if any of the Justices make an effort to differentiate between or justify particular historic reference points for their constitutional interpretations when the opinion in New York State Rifle & Pistol Association is eventually issued.

Does Quartering Troops in Hotels Implicate the Third Amendment?

With protests sweeping the nation, various cities have called on the National Guard to provide support for law enforcement officers. The District of Columbia is one such city, and among the soldiers sent to DC were National Guard Soldiers from Utah. An NPR report quotes a National Guard spokesperson, who stated that the National Guard soldiers had been quartered at the hotel and paid "government rates" for the housing.

Fast forward to today, where continued protests and criticism of the presence of troops has started to take a toll. The Salt Lake Tribune reports:

Utah National Guard soldiers and other forces from states deployed to the nation’s capital were forced out of their hotels on Friday morning in what Sen. Mike Lee called an eviction by an “ungrateful mayor.”

The mayor of the District of Columbia, Muriel Bowser, said this week that she wanted National Guard troops out of the district, which has seen days of protests — some of which have been violent — over racial injustice and the death of black Americans at police hands.

Utah’s 200 soldiers in the nation’s capital had been staying at a Marriott hotel near downtown Washington since they’re activation on Monday but were checking out Friday after being deployed to various parts of the capital city until the early morning hours.

The Utah Guard had until noon Eastern Time to depart their hotel and lodging and other accommodations were “still up in the air for this evening,” said Lee's spokesman Conn Carroll.

 Lee voiced his complaint on Twitter in the following tweets:

Just heard that Mayor Bowser is kicking the Utah National Guard out of all DC hotels tomorrow. More than 1200 troops from 10 states are being evicted. This is unacceptable. 1/2

— Mike Lee (@SenMikeLee) June 5, 2020

These brave men and women have risked their lives protecting DC for three days. Rioting, looting, arson, and vandalism have all disappeared bc these soldiers served. And now they are being kicked to the curb by an ungrateful mayor. This must be stopped. 2/2 pic.twitter.com/YYyctKvUqN

— Mike Lee (@SenMikeLee) June 5, 2020

People on Twitter were quick to respond by arguing that Lee was calling for the quartering of soldiers in hotels--a position they argued was inconsistent with the Third Amendment, which states:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

The Salt Lake Tribune noted this response from Lee's spokesperson to the Third Amendment issue:

Carroll said the issue has nothing to do with the Constitution’s 3rd Amendment — which prohibits forcing a homeowner to quarter troops without the owner’s consent — but a political move by Bowser.

Twitter is abuzz with debate over the issue, with some people claiming that the Third Amendment will finally get some attention, and others arguing that this sentiment is overblown. There seems to be an assumption that the officers were removed as a result of the Third Amendment being invoked by Mayor Bowser, but I have seen nothing suggesting that this is the case.

A lot of this talk is off the cuff, and bereft of case law and authority. Maybe these commentators don't realize that at least one court has addressed Third Amendment claims before. Maybe they are fair weather Third Amendment enthusiasts (unlike myself, and the National Anti-Quartering Society). Whatever the explanation may be, here is the in-depth analysis of the Third Amendment questions you were undoubtedly waiting for.

Has President Trump Already Pardoned Roger Stone?

There are a lot of people out there who generally express reasonable opinions and seem normal, but who nevertheless are willing to entertain the odd outlandish belief. You may get through your workday without incident while believing that the world is flat, that we are living in a computer simulation, or that the spelling of "The Berenstain Bears" is evidence of a parallel universe. Indeed, you may believe all of these things and still get along just fine with your friends and coworkers.

I'm not here to judge you. Instead, desperate for distraction from quarantine and curfews, I've cooked up my own wild theory--a theory that I may have fooled myself into believing is true. Maybe I'm right. Or maybe I've just been stuck inside for too long.

News outlets have reported for some time, with renewed interest today, that President Trump may be about to pardon Roger Stone, who was sentenced to three years in prison back in February after being convicted of lying to authorities, obstructing a congressional investigation, and witness intimidation. My wild theory is that Stone has already been pardoned as a result of Trump's tweets.

From Politico, earlier today:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe. 

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer. 

“This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!” 

Trump went on to share the tweet Thursday morning, writing in his own accompanying message: “No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night!”

Here is the tweet:

No. Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history. He can sleep well at night! https://t.co/HHg24tcZrx

— Donald J. Trump (@realDonaldTrump) June 4, 2020

This is not the first time Trump has tweeted something like this. Kirk wrote a similar tweet criticizing Stone's conviction back in April, which also prompted a response from Trump:

This is a disgraceful situation! https://t.co/s2qZSrGw6U

— Donald J. Trump (@realDonaldTrump) April 18, 2020

Politico and other outlets are reporting that Trump's tweet today appears to be a promise by Trump to pardon Roger Stone, as his suggestion that Stone "can sleep well at night" strongly suggests that Stone will not end up spending the night in prison (because he will be pardoned).

I'll go a step further and suggest that there's an argument to be made that this tweet itself (and his April tweet) constitute a pardon of Roger Stone. 

Kansas Man Demands Trial By Combat in Iowa Court

From the conversations, texts, emails, and messages of dozens of friends, coworkers, and former classmates (all of whom are dead-on when it comes to pinpointing my legal interests), I learned about this story of a Kansas man who demanded trial by combat in an Iowa divorce case.  The story was first reported a few days ago, but I've been busy.

Those who know me, who have read this blog, or who have read papers that I have co-authored should not be surprised that this case is right up my alley. 

The Des Moines register reports:

A Kansas man has asked an Iowa court to grant his motion for trial by combat so he can meet his ex-wife and her attorney "on the field of battle where (he) will rend their souls from their corporal bodies." 

David Ostrom, 40, of Paola, Kansas, claims in court documents that his ex-wife, Bridgette Ostrom, 38, of Harlan, has "destroyed (him) legally." 

He asked the Iowa District Court in Shelby County to give him 12 weeks "lead time" in order to source or forge katana and wakizashi swords, as first reported by the Carroll Times Herald. 

"To this day, trial by combat has never been explicitly banned or restricted as a right in these United States," Ostrom argues in court records, adding that it was used "as recently as 1818 in British Court."

When reached by phone Monday, Ostrom told the Des Moines Register that he got the idea after learning about a 2016 case in which New York Supreme Court Justice Philip Minardo acknowledged that duels had not been abolished.

The story has been widely reported, but most of the other articles rehash the same points. Kevin Underhill at Lowering the Bar provides good legal coverage here, including a discussion of the relevant case law that Iowa's court would likely cite to reject Ostrom's request.

Here's a report on the story from KCTV5 News. It includes a video of an interview with Ostrom, who claims that "I'm not interested in physically causing harm to anyone." This is something of a shift in tone from the goal of rending souls from "corporal bodies" expressed in his moving papers.

(Ostrom later admitted that his demand contained a spelling error and that he had intended to write "corporeal bodies.")

If you want a copy of Ostrom's papers, or the response filed by his ex-wife's attorney, you're out of luck because none of the news outlets that are reporting and re-reporting this story have deigned them worthy to include for download in their stories. As far as I can tell, they cannot be obtained online. I'm hesitant to ask my firm's messenger service to send a runner to Shelby County, Iowa to obtain a copy of the papers, but I have not ruled the option out.

But back to the case. Unsurprisingly, Ostrom never had much of a chance of success in his motion. Indeed, the judge refused to consider his filing, or the response filed by his ex-wife's attorney in light of both parties' failure to abide by procedural requirements. Just because a form of dispute resolution is not specifically banned does not mean that a party can simply demand it once the case is being litigated in court.

Of course, if two parties are negotiating a dispute resolution provision in a private contract, this might be different. An arbitration by combat provision has been included in at least one contract of which I am aware. This 2016 New York Times article describes the contract behind the ownership of Zuffa, the promotion company that operates UFC:

The two brothers have equal stakes in Zuffa. And while there is no hint of tension between them, a lawyer insisted that their contract needed a dispute-resolution mechanism in case they ever differed over corporate strategy. Lorenzo had an idea: They would fight.

“A sport jujitsu match, three five-minute rounds,” he said. “Dana would be the referee. Whoever won got to vote the other guy’s shares.”

It has never come close to blows, the brothers say. But privately, each says that if combat were required, the other would win. “Frank’s getting ornery in his old age,” Lorenzo said. “Just kidding.”

To my knowledge, no court has litigated whether such a provision would be enforceable.

In the past, Ostrom would have faced the prospect of being barred from public office for engaging in trial by combat, as courts would likely view his proposed sword-fighting approach as a duel. But no longer, as Iowa in 1992 repealed Iowa's constitutional provision that prohibited those who had participated in duels from being eligible to hold public office. Good for them.

The court noted that it would take no action "[u]ntil the proper procedural steps to initiate a court proceeding are followed." For now, it appears that Ostrom's quest to bring swords to the courtroom has failed.

In any event, trial by combat has had yet another moment in the sun. The concept will likely now fade away for another several years until the next go-getter tries, and fails, to resolve a dispute with a legally sanctioned fight to the death. This is the way.

Defendant Victorious After 90-Day Jaywalking Trial

The South China Morning Post reports on the conclusion of a 90-day (!) trial for jaywalking in Hong Kong:

A woman charged with jaywalking has been acquitted at the end of a 21-month-long trial which was slammed by a city judge for bringing Hong Kong’s courts into disrepute.

Kamala Thapa denied one count of negligently endangering her own safety, after she was hit by a taxi while crossing Tai Tam Road outside the American Club in Stanley on April 25, 2016.

Her trial at Eastern Court over a traffic summons, which would have cost her a fine of no more than HK$500 (US$64) if convicted, had sparked three judicial reviews, one civil claim and what appeared to be the city’s first arrest warrant issued to a lawyer by a court.

The reason for the disproportionate length of the trial appears to be the result of "extravagant" proceedings in the jaywalking case before the magistrate, along with multiple instances where these proceedings were reviewed by higher-level judges. Here is an example of one some of those instances:

Her trial was punctuated by a dramatic episode. Presiding deputy special magistrate Ho Lai-ming – in what appeared to be a first for the city’s courts – issued an arrest warrant for Thapa’s lawyer Kelvin Leung after comments he made which she deemed offensive. Leung denied the accusations. 

After subsequently changing her barrister, Thapa’s trial hit another wall when a defence witness she had called decided to withdraw halfway through giving evidence. 

But Ho ordered the defence to fulfil its duty by calling the witness back, a decision that prompted Thapa and her lawyers, including Leung, to lodge a judicial challenge.

The South China Morning Post reports that the arrest warrant for Leung has not yet been executed.

After the protracted trial, Thapa prevailed. Both Thapa and the prosecutor unsurprisingly claim that they have incurred substantial fees, and the South China Morning Post reports that Thapa has filed a civil claim against the magistrate judge "for damages in excess of HK$1.7 million [over US$216,000] for loss of liberty and injured feelings."

A 59-Line Breyer Question

Following up on my prior monitoring of the length of Breyer questions, yesterday's oral argument in Lamone v. Benisek prompted the following question/hypothetical from Justice Breyer:

This 59-line Breyer "question," or "Breyer Page" appears to be a new record, as the last record I've been able to locate was a 57-line Breyer Page in Gill v. Texas that Josh Blackman flagged back in 2017. Audio of the argument is not yet available, so I do not know yet if this is the longest Breyer Question ever asked in terms of length of time.

The Supreme Court Will Hear the First Major Second Amendment Case in Nearly a Decade

On Tuesday, the Supreme Court granted certiorari in a case challenging the constitutionality of New York City's regulations that restrict the carrying of firearms outside the home. The New York Times and Wall Street Journal have more reporting on the background of the case. From the New York Times:

The Supreme Court said on Tuesday that it would review a New York City gun law that limits residents from transporting their guns outside their homes, its first Second Amendment case in nearly a decade and a test of the court’s approach to gun rights after the arrival of Justice Brett M. Kavanaugh in October. 

Justice Kavanaugh, who replaced the more moderate Justice Anthony M. Kennedy and created a reliable five-member conservative majority, has an expansive view of gun rights. His presence most likely means that the Supreme Court will start exploring and perhaps expanding the scope of the Second Amendment.

The case is New York State Rifle & Pistol Association, Inc. v. City of New York, and the petitioners challenging New York's rule are an organization and several individual gun owners. The Second Circuit opinion that is being appealed is here.

New York Penal Law section 400.00(2)(a) and (f) provide for "premises" licenses and "carry" licenses for handguns. New York City's Rule regarding premises licenses states:

(a) Premises License – Residence or Business. This is a restricted handgun license, issued for a specific business or residence location. The handgun shall be safeguarded at the specific address indicated on the license. This license permits the transporting of an unloaded handgun directly to and from an authorized small arms range/shooting club, secured unloaded in a locked container. Ammunition shall be carried separately. (38 RCNY § 5-01(a)

This rule contains a number of restrictions, including that handguns be transported unloaded in a locked container, that ammunition be carried separately, and that handguns may be transported to "authorized" shooting ranges. The City acknowledges that there are seven authorized ranges in New York City. Holders of premises licenses are restricted from transporting firearms to shooting ranges outside of the city or to second homes, even if they are within the city (as this destination is not "an authorized small arms range/shooting club."

The Court has refused to take up Second Amendment cases since its 2010 ruling in McDonald v. City of Chicago in which it held that the Second Amendment's protections apply to the states. The Court had previously held in its 2008 ruling in District of Columbia v. Heller that the Second Amendment creates an individual right and that its core protection was of the possession of firearms for self-defense in the home. Since then, lower courts have applied a variety of approaches to the Second Amendment, as many of the cases they have confronted have involved rules or restrictions affecting the possession or carrying of firearms outside of the home. Noting Heller's statement limiting the core possession to self-defense in the home, and also noting language stating that the case should not cast doubt on other, "longstanding" restrictions on firearms, lower courts have typically restricted the scope of the Second Amendment. The Supreme Court has consistently refused to review these decisions -- including cases involving the carrying of firearms.

This is now likely to change, as there are now four conservative justices with expansive views of Second Amendment protections. These four justices create a block of four votes required to grant review of lower courts' decisions.

Justice Thomas, in particular, has consistently dissented from the Court's prior refusals to take up Second Amendment cases. He has been joined in these prior dissents by Justice Gorsuch (in this case involving California's restrictions on the carrying of firearms). Justice Alito likely shares Thomas's views, as reflected in his concurring-in-the-judgment opinion in Caetano v. Massachusetts, in which Alito (joined by Thomas) criticized the reasoning of the lower court opinion and argued that the Second Amendment's protection encompasses the possession of weapons commonly used today for self-defense. (As an aside, commentators will likely point to Alito's 1996 dissent from a case upholding a ban on machine guns, but that dissent is not particularly useful, as his analysis focuses on the Commerce Clause of the Constitution, and not on the Second Amendment). Justice Kavanaugh is likely to join Thomas, Gorsuch, and Alito in seeking a broad ruling on Second Amendment protections, as he has previously ruled that prohibitions on semi-automatic firearms are unconstitutional. (See page 46 of this opinion for the start of Kavanaugh's dissenting opinion while he was still on the DC Circuit).

Some commentators argue that the Supreme Court will likely overturn the Second Circuit's opinion and broaden the scope of Second Amendment protections. Mark Joseph Stern argues this in this Slate article and Garrett Epps makes a similar point over at The Atlantic. Both articles have exaggerated titles (Stern's claims that the Court will make all states' laws like Texas' laws and Epps' title raises the notion of "Supersizing" the Second Amendment). But the tone of each article suggests that these goofy titles are likely the choice of editors rather than the authors.

Stern writes:

The case thus marks an effort to inch the Supreme Court toward establishing a right to public carry without forcing the justices to tear down hundreds of laws in a single, sweeping ruling. For a decade, gun advocates have been stymied by the language in Heller and McDonald expressly limiting the Second Amendment to firearms “in the home.” The conservative justices, however, will probably use New York State Rifle to blur that line.

 And Epps notes:

The Rifle & Pistol case begins, then, with four virtually certain votes against the New York law—the two newcomers, Thomas, and Alito. Chief Justice John Roberts voted for the gun owners in Heller and McDonald. He may have been trying to keep the Court out of the Second Amendment area for institutional reasons since then, but that’s not likely to make him go back on his earlier votes when the time comes to throw down. 

“The impact of this case could be huge,” [Law Professor Adam] Winkler told me, because the Court may decide that the right to gun possession extends outside the home. The Court could undermine long-standing restrictions on concealed carry in America’s major cities, leading to hundreds of thousands more guns on the streets of Los Angeles, New York, and Washington, D.C.

Like Stern and Epps, I think that it's likely that the Court will overturn the Second Circuit opinion and strike down the New York City rule. The question then becomes how broad the Court's opinion will be. The New York City rule has several levels on which the justices may rule. A narrow ruling would overturn the rule based on its destination restriction, which prohibits premises license holders from taking their handguns anywhere other than an authorized shooting range. A broader ruling could strike down the law because it prohibits these license holders from carrying the handguns in a locked container separate from the ammunition. Such a broad ruling may be complicated by New York's alternate permit schemes -- which include concealed carry permits -- but there may be ways around this, such as a ruling striking down the locked container portion of the requirement only, while leaving the separate ammunition component intact.

There is also the question of how a broad determination of the Second Amendment's protection can make its way into the opinion. My first instinct, from looking at the layout of the Court and -- in particular -- Chief Justice Roberts's likely goal to avoid large changes in the law, is that there will likely be a majority opinion of Roberts, Alito, Gorsuch, Thomas, and Kavanaugh that overturns the law for its destination restriction, and a concurring opinion of the latter four justices that argues that the locked-case / no ammunition restriction is also impermissible.

A less-likely alternative is that Roberts will author an opinion that includes dicta that lays the foundation for a broader Second Amendment protection scheme. This would be similar to the paragraph in the Heller opinion that stated that "longstanding" restrictions on firearms (such as restrictions of criminals' possession of guns and prohibiting firearms in government buildings) were not cast into doubt by the opinion -- a paragraph that was reportedly added to gain Justice Kennedy's vote -- and which formed the basis of many restrictive lower court opinions in subsequent years. I think that an approach with language that leans in the opposite direction and calls for more Second Amendment protections is unlikely, as the most conservative justices will still join in the narrower majority opinion even if they write their own concurrence.

However the outcome may look in the end, it is likely that the Court will overrule the lower decision and, in doing so, hold that the Second Amendment provides at least some level of protection to the carrying of firearms beyond the home. However narrow the opinion is framed, this opinion would significantly broaden the scope of Second Amendment protections, and would likely lead to much more successful litigation against states and localities with strict restrictions on the carrying of firearms.

The Tort of "Outrage"

CNN reports that, rather than prudently disappear, failed Senate candidate and former Constitution-ignoring Alabama Chief Justice Roy Moore has filed a lawsuit:

Failed Alabama Senate candidate Roy Moore says the women who accused him of sexual assault were part of a political conspiracy, according to a lawsuit filed Monday. 

The suit was jointly filed with his wife, Kayla, about an hour before the two held a news conference. It was Moore's first public appearance since election night in December, when Moore, a Republican, was upset by Democrat Doug Jones.

I'm pleasantly surprised to see that CNN links to a copy of the Complaint.

I'm not going to delve into the merits of the litigation, although Moore's theory -- that it's curious that allegations against him were not raised earlier -- strikes me as flimsy. I'm sure the merits of his lawsuit have been and will be analyzed by others in far greater depth. Instead, I want to focus on Moore's sixth cause of action for "Outrage." The pertinent allegation under that cause of action states:

66. At the aforesaid times and places, Defendants—with the intent to cause severe damage to the Plaintiffs’ reputation and standing in the community—intentionally or recklessly engaged in extreme and outrageous conduct that caused emotional distress so severe that no reasonable person could be expected to endure it. Fully aware of the probable emotional impact their actions would have on the Plaintiffs, the Defendants nonetheless recklessly and willfully disregarded the consequences of their actions.

I've never heard of a cause of action for outrage, but after a bit of research it appears that Alabama courts recognize this cause of action as an alternate name for the cause of action for intentional infliction of emotional distress. The Alabama Supreme Court provides some background on this in Thomas v. BSE Indus. Contractors, Inc.:

This Court first recognized the tort of outrage, or intentional infliction of emotional distress, in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1981). In Inmon, the Court held that to present a jury question the plaintiff must present sufficient evidence that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. The Court defined the second element of the tort of outrage as follows: "By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as 1044*1044 atrocious and utterly intolerable in a civilized society." Inmon, 394 So.2d at 365 (quoting Restatement (Second) of Torts, § 46 cmt. d, at 72 (1948)).

This makes sense when you compare Moore's cause of action for outrage with the allegation underlying his cause of action for intentional infliction of emotional distress:

64. At the aforesaid times and places, and for some time prior Defendants, with the intent to cause damage to the Plaintiffs, did intentionally utter, produce, and disseminate spoken and written communications to harm the reputation and character of Roy Moore. The aforesaid outrageous and shocking acts were done with the intent of causing emotional distress and injury to Roy Moore and Kayla Moore and were a proximate cause of the Plaintiffs’ injuries as described above, herein.

Why does Moore allege two causes of action that are essentially the same? One possibility is that, until recently, Alabama courts appear to have taken a notably narrow approach to the tort of outrage.  A relatively recent opinion by the Alabama Supreme Court in Wilson v. University of Alabama Health Services Foundation held that it was error to apply too narrow of an approach to the tort:

This Court has previously recognized the tort of outrage in three circumstances:

"The tort of outrage is an extremely limited cause of action. It is so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala. 1989). See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed. 1996)."

Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000). However, as Wilson notes in her brief, this Court has not held that the tort of outrage can exist in only those three circumstances: 

"That is not to say, however, that the tort of outrage is viable in only the three circumstances noted in Potts. Recently, this Court affirmed a judgment on a tort-of-outrage claim asserted against a family physician who, when asked by a teenage boy's mother to counsel the boy concerning his stress over his parents' divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy's drug addiction. See O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011). It is clear, however, that the tort of outrage is viable only when the conduct is `"so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society."' Horne v. TGM Assocs., L.P., 56 So. 3d 615, 631 (Ala. 2010) (quoting [American Road Service Co. v.] Inmon, 394 So. 2d [361, 365 (Ala. 1980)])." 

Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011) (emphasis added).

The Court went on to overturn the trial court's holding that the cause of action for outrage is only limited to "three situations." With restrictive case law like Potts on the book, however, and with the Wilson decision only being published in December 2017, it's not surprising that a plaintiff who might not be aware of the recent Wilson decision might also want to assert a cause of action for intentional infliction of emotional distress to get around the restrictive-sounding precedent.

Additionally, the extra cause of action makes the Complaint look all the more impressive without much risk. After all, the Alabama Supreme Court in Birmingham Railway & Electric Co. v. Baylor (a case that is very old and which does not appear in full on Google Scholar and which I am not going to devote resources or time towards cite-checking),  notes that "mere redundancy will not vitiate a complaint." (at p. 494).

Moore likely won't lose anything by adding in what is essentially a restatement of his cause of action for intentional infliction of emotional distress, and will gain what appears to be an additional cause of action -- a cause of action for "Outrage," no less!

Bacongate: Did Senator Leahy Read My Confirmation Hearing Outline for Justice Willett?

Business Insider reports on a ridiculous exchange between Senator Patrick Leahy (D-VT), and Fifth Circuit Court of Appeals Judicial Nominee, Texas Supreme Court Justice Don Willett, a video of which is below:



Back when Justice Willet was being considered as a potential Supreme Court nominee, I wrote this post highlighting questions that could be asked at Willett's confirmation hearing based on his prior tweets. From that post, here is one of my potential questions (and the accompanying tweet):

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6

— Justice Don Willett (@JusticeWillett) April 30, 2015

In a fascinating display of either: (1) failing to understand simple humor; or (2) extreme partisan interpretation, Leahy lambasted Willet's tweet as an attack on gay marriage and the Supreme Court's decision legalizing gay marriage. From Business Insider:

"I don't think one would see that as praising the Supreme Court decisions," Leahy said of the tweet.

While I am happy that I was able to predict at least one of the tweets that would come up in Willett's confirmation hearing, Leahy taking the tweet in this direction made a farce of his line of questioning. Senators with concerns about Willett taking conservative stances on legal issues certainly have plenty to work with, but this exchange is just (to use some legal terminology) goofy.

All of this aside, I will assume without evidence that Senator Leahy got the idea to ask about that tweet by reading my blog, and I thank the good Senator for his attention to my work.

Court Denies Sheriff Joe Arpaio's Request to Vacate All Orders and Dismiss Case Following Pardon

NPR reports:

U.S. District Judge Susan Ritchie Bolton says that President Trump's pardon of former Maricopa County Sheriff Joe Arpaio does not "revise the historical facts" of his case — and that she will not vacate her ruling that found Arpaio guilty of criminal contempt.

On Thursday, Bolton quoted Black's Law Dictionary to say that a pardon "releases the wrongdoer from punishment and restores the offender's civil rights without qualification." But she then added a further interpretation in her own words: "It does not erase a judgment of conviction, or its underlying legal and factual findings."

The NPR story contains a copy of the Order, but a complete copy of the Order can be found here. Additional coverage of this most recent development can be found here and here. Arpaio's attorneys have filed a notice of appeal of the ruling. My own discussion of the Arpaio pardon can be found here.

I do not have a time to do my own research on the law of pardons in the Ninth Circuit, but from the court's focus on the law of other circuits it appears that there does not seem to be any clean, controlling precedent in the Ninth Circuit. The court was not persuaded by Arpaio's reliance on U.S. v. Schaffer in which the DC Circuit vacated all orders following a pardon. The judge noted that due to the procedural background of Schaffer, the only issue pending was the court's grant of a new trial to Schaffer, which left Schaffer in a position "as if no trial had ever taken place." Accordingly, the seemingly broad order in Schaffer had a limited effect, which distinguished the ruling in Schaffer from Arpaio's broader request.

When this Order is appealed, I expect that the quick discussion in footnote one of the Order will be expanded upon. Here is the text of that footnote (with hyperlinks to the text of the cited cases added):

The United States Supreme Court originally signaled in dicta that a presidential pardon may have an expunging effect. See Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866) ("A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence."). The Court later rejected this view. See Burdick v. United States, 236 U.S. 79, 94 (1915) ("[A pardon] carries an imputation of guilt; acceptance a confession of it."). Other courts have followed suit. See, e.g., In re North, 62 F.3d 1434, 1436-37 (D.C. Cir. 1994) (finding Garland dicta not controlling); United States v. Noonan, 906 F.2d 952, 958-59 (3d Cir. 1990) (same); Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975) (same).

As the case works its way up through appeals, I suspect that discussion of the Supreme Court precedents and their interactions will move from the footnotes to the text of whatever opinions result. And if the law in the Ninth Circuit addressing this pardon issue is as absent as it seems from Judge Bolton's order, it will be interesting to see how the Ninth Circuit addresses the issue. In the end, I suspect that the ruling will not be favorable to Arpaio, but if the Ninth Circuit takes a thorough approach to the analysis (see, e.g., the approach in Noonan), the decision could be a notable contribution to this rarely-litigated area of law.

Trump to Nominate Justice Don Willett for Fifth Circuit

So reports San Antonio Express-News:

President Trump on Thursday will nominate two conservatives from Texas with compelling personal stories to the 5th U.S. Circuit Court of Appeals, according to a senior administrative official.

Texas Supreme Court Justice Don Willett was cited by Trump as a potential U.S. Supreme court pick during his presidential campaign. Dallas appellate lawyer James Ho is a former Texas solicitor general who has argued cases before state and federal courts.

Willett -- a prolific Twitter user whose wit with more than 96,000 followers and the title of Texas “Tweeter Laureate” --had gently mocked Trump in some tweets during the campaign for the White House.

The article has a collection of some of Justice Willett's "gently mock[ing]" tweets.

I had previously blogged about Justice Willett back in the heyday of speculation as to who Trump would nominate to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia. At the time, Justice Willett was on Trump's list of potential nominees, although Trump ultimately nominated now-Justice Neil Gorsuch to the Court.

It will be interesting to see whether Justice Willett faces heightened scrutiny in his confirmation hearing given his prior inclusion on Trump's list of potential Supreme Court nominees. Justice Willett also may have a wider public profile than some of Trump's other nominees in light of his active, and often humorous, Twitter account. This, coupled with existing dissatisfaction by Democrats on the Senate Judiciary Committee may lead to some interesting exchanges whenever the hearings end up taking place.

Talking in Public: A Cautionary Tale for Lawyers

Kenneth Vogel of The New York Times has this remarkable story that should serve as a cautionary tale for all attorneys who may feel tempted to speak about their cases and clients outside of the office. Vogel reports that he was getting lunch with a source in a Washington DC restaurant, when he noticed Ty Cobb, the attorney retained by the White House to assist in responding to various Russia investigations, having a conversation with John Dowd, Trump's "lead outside counsel in the Russia investigations."

Mr. Cobb was not difficult to notice, on account of his incredible moustache:

Mr. Cobb chose to discuss his work in representing the White House in the Russia investigations, and apparently talked loudly and extensively enough about his work to give rise to this story detailing the conflict among Trump's attorneys over the proper level of cooperation in the Russia investigations.

From Vogel's article describing how he got the scoop:

I ordered yet another iced tea, and continued typing away, as Mr. Cobb and Mr. Dowd delved deeper, not paying me any mind.

They discussed presidential privilege and its effect on document production, tensions on the legal team and their colleagues. Mr. Cobb suggested one colleague was not on the president’s good side, but added, “I’m trying to get the president not to pick a fight with her.”

Finally, after more than 45 minutes of my assiduously listening to their conversation by myself, Mr. Cobb picked up the check and announced to Mr. Dowd, “All right, boss, I got to roll back to my little hole. I’ve got like a seven and a half foot ceiling ... Wilt Chamberlain couldn’t stand up in it.”

Attorneys are often warned during training or in law firm policies to avoid discussing matters related to their work in public settings. Whether it is in a restaurant, on the sidewalk, or in the elevator, attorneys should avoid discussing clients and cases, as any information communicated to lawyers is privileged, and attorneys' strategies and theories are protected by the work product doctrine. Speaking up about privileged information in a public setting is a very easy way for an attorney to run into serious problems.

Warnings against public discussion of work are often confined to the hypothetical elevator or restaurant. But Vogel's article gives a spectacular real-world example of what attorneys everywhere should avoid doing.