Original Meaning, Context, and Shifting Reference Points: The Racial Connotations of "Freedmen"

At the Atlantic, Adam Serwer critiques Justice Thomas's analysis of the original meaning of the Fourteenth Amendment's Equal Protection Clause in the Court's Students for Fair Admissions, Inc. v. President and Fellows of Harvard College opinion. Specifically, Serwer takes issue with Thomas's claim that the term "freedmen" was racially neutral. Michael Rappaport, whose work Thomas cites in support of this claim, calls out Serwer, labeling his article as a "screed" rife with mistakes. Rappaport then argues that the term "freedmen" is race-neutral and ought to be read as referring to former slaves rather than Black people.

Below, I set out the arguments, starting with Justice Thomas, moving to Serwer, and concluding with Rappaport. I then demonstrate the flaws in Rappaport's response (and, in turn, Thomas's reasoning)--arguing that his arguments only succeed by sidestepping context necessary to determine original meaning and using shifting definitional reference points to avoid arguments about original meaning.

Setting the Stage

In SFFA v. Harvard, the Court struck down Harvard's and the University of North Carolina's affirmative action programs. In doing so, the Court concluded that the types of programs employed were inconsistent with the Fourteenth Amendment's Equal Protection Clause. While the majority's treatment of the Fourteenth Amendment's history and original meaning was relatively brief, Justice Thomas authored a lengthy concurrence purporting to demonstrate the original meaning of the Equal Protection Clause and why affirmative action programs are inconsistent with the clause.

In doing so, Justice Thomas defends a "colorblind" version of equal protection, drawing repeatedly on Justice Harlan's dissent in Plessy v. Ferguson. Here's one example of how Justice Thomas quotes Harlan:

For Justice Harlan, the Constitution was colorblind and categorically rejected laws designed to protect “a dominant race—a superior class of citizens,” while imposing a “badge of servitude” on others. (p. 17)

For what it's worth, here's how Justice Harlan discussed the Constitution's colorblindness:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.

To very quickly summarize: the colorblind approach to equal protection is important to Justice Thomas (and the majority) because they read the Equal Protection Clause as a blanket ban on any racial distinctions in law. This applies not only to laws that disadvantage or denigrate people on the basis of race, but also laws that are designed to provide benefits to people on the basis of race. A strict, colorblind reading of the Fourteenth Amendment's guarantee of "the equal protection of the laws," therefore prohibits affirmative action programs, which increase the probability of admission for certain applicants on the basis of race.

In arguing that the Fourteenth Amendment's original meaning supports such a reading, one obstacle Thomas confronts is that of laws providing particular benefits and protections to "freedmen," or former slaves, enacted around the time of the Fourteenth Amendment's enactment and ratification. The argument with which Thomas contends is that laws like the 1865 and 1866 Freedmen's Bureau Acts provided benefits to freedmen, and therefore provided benefits on the basis of race. This undermines an originalist reading that the Fourteenth Amendment was meant to be neutral above all else by demonstrating that the same Congress that voted for the Fourteenth Amendment also enacted laws containing racial classifications.

Thomas rejects this reading of the Freedmen's Bureau Acts:

Importantly, however, the Acts applied to freedmen (and refugees), a formally race-neutral category, not blacks writ large. And, because “not all blacks in the United States were former slaves,” “ ‘freedman’ ” was a decidedly underinclusive proxy for race. M. Rappaport, Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71, 98 (2013) (Rappaport). Moreover, the Freedmen’s Bureau served newly freed slaves alongside white refugees. P. Moreno, Racial Classifications and Reconstruction Legislation, 61 J. So. Hist. 271, 276–277 (1995); R. Barnett & E. Bernick, The Original Meaning of the Fourteenth Amendment 119 (2021). And, advocates of the law explicitly disclaimed any view rooted in modern conceptions of antisubordination. To the contrary, they explicitly clarified that the equality sought by the law was not one in which all men shall be “six feet high”; rather, it strove to ensure that freedmen enjoy “equal rights before the law” such that “each man shall have the right to pursue in his own way life, liberty, and happiness.” Cong. Globe, 39th Cong., 1st Sess., at 322, 342.

In his Atlantic article, Serwer rejects this argument:

“Freedmen” cannot be a “formally race-neutral category,” because American slavery was not a formally race-neutral institution. Moreover, an extensive historical record illuminates the intentions of the lawmakers who passed the Freedmen’s Bureau Acts. They certainly did not see the term freedmen as racially neutral, and they intended the bureau to protect the rights of Black people in the South, whether formerly enslaved or not. We know this because they said so; the insistence to the contrary is the result of conservatives projecting their version of “color blindness” backwards through time.

Serwer goes on to argue that ninety percent of Black people were slaves in 1860, citing an email exchange with historian Eric Foner. He also points to evidence that supporters of the Freedmen's Bureau Acts, those who debated them, and Justice Thomas himself use the terms "freedmen" and "blacks" independently. These arguments align with points made by Justice Sotomayor in her dissent (pp. 6-8) where she also notes that "contemporaries understood that the Freedmen's Bureau Act benefited Black people" and that the same congress that passed the Act also passed the Fourteenth Amendment.

At The Originalism Blog, Mike Rappaport takes issue with Serwer, arguing that Serwer manages to "include both the main mistakes historians make about the Freedmen’s Bureau Acts and some of the principal slanders against modern originalism." Rappaport also chides Serwer for failing to read his law review article, "Originalism and the Colorblind Constitution," which Thomas cites in his concurrence (a citation included in the quoted excerpt of Thomas's concurrence).

Rappaport argues that Serwer fails to defeat the originalist case for a race-neutral reading of the Equal Protection Clause, focusing on evidence regarding the Freedmen's Bureau Acts:

If Serwer wants to prove his point, he needs to claim that freedmen meant blacks rather than former slaves. But that is pretty difficult, given that the term “freedmen” pretty clearly indicates someone who used to be a slave and has now been freed. Serwer quotes a couple of historians to claim otherwise but their arguments miss the point. For example, Serwer quotes an Eric Foner email stating “Ninety percent of Blacks were slaves in 1860, and everyone knew whom the Freedom Bureau Act was meant to assist.” But that is not the question. The question is whether "freedmen" referred to people based on their color or based on circumstances.

Serwer’s principal argument is that all freedmen were black. True enough, but irrelevant. The question is whether "freedmen" was a category that selected people based on race. It does not. Not all blacks were freedmen. Some had been born free. (And there were no whites, who were former slaves, who were not treated as freedmen.) The Act identifies a category based on circumstances, not race. 

Is the Original Meaning of "Freedmen" Race-Neutral?

With this extensive stage-setting finally done, it's worth taking a step back to look at what it is Thomas and Rappaport are trying to prove. Both zero in on the textual meaning of "freedmen" to advance their points. But it's worth keeping in mind that the meaning of "freedmen" is secondary--the ultimate goal here is how the term "freedmen" informs the meaning of "equal protection of the laws" in the Fourteenth Amendment.

How does this argument function? Those like Serwer and Sotomayor contend that if "freedmen" is not racially-neutral, then laws that explicitly benefit freedmen are therefore laws that provide a benefit based on race. The Freedmen's Bureau Act doesn't involve the exact same terminology of "Equal Protection," but the implication is that if it is not racially neutral, then it provides context for understanding the meaning of other language approved of by the same enacting body. In short, a strict, race-neutral reading of equal protection doesn't make sense if enacted by a Congress that also enacted race-based benefit schemes.

Rappaport and Thomas zoom in on terms and technical definitions to advance their race-neutral reading. Rappaport's point in his blog is a good distilled version of the arguments he makes in his article, and Thomas's reasoning is an even briefer version of the points. "Freedmen" isn't a racial term because not all Black people were slaves (Rappaport does acknowledge in his article that 89 percent of Black people at the time of the Civil War were slaves, and that, of the remaining 11 percent, "some, of course, were former slaves") (p. 98 n.108).

Through this exchange, it's important to track what reference points the parties are employing in defining the term, "freedmen." Serwer and Sotomayor appear to be arguing from an original intent (and, potentially, a limited original public meaning) approach. The meaning of "freedmen," at least as understood among those debating and enacting the Fourteenth Amendment and Freedmen's Bureau Acts, was not race-neutral. Accordingly, a law providing benefits based on freedmen status is a race-based classification. Rappaport purports to respond to this argument, but does so by employing a different reference point: the dictionary definition of "freedmen" as "formerly enslaved person"--a definition which, in turn, does not apply to all Black people (as a small percentage of Black people had not been enslaved). Rappaport seizes on this definitional to argue that the term is therefore race-neutral. But this is unconvincing. 

First, this argument requires one to look past the sheer proportion of Black people who fit into the "freedman" category and the fact that all people in the "freedmen" category were Black. All of this provides valuable context for what those using "freedmen" at the time of the enactment of the Freedmen's Bureau Acts and the Fourteenth Amendment meant: that "freedmen" was a racialized term used to refer to Black people. This is the point Serwer makes when he notes that those in the 39th Congress, and Justice Thomas himself, use "freedmen" interchangeably with "Blacks" and "negroes."

And context is important when determining original meaning. After all, this entire debate over the meaning of "freedmen" is taking place because the meaning of the Freedmen's Bureau Acts provides contextual evidence for or against a race-neutral reading of "equal protection" in the Fourteenth Amendment. It therefore seems quite strange to admit contextual evidence like the Freedmen's Bureau Acts to determine the meaning of the Fourteenth Amendment, while overlooking contextual evidence of the racial makeup freedmen and the low percentage of Black non-freedmen when attempting to sort out the original meaning of "freedmen."

Second, by changing his reference point, Rappaport does not engage with what Serwer and Sotomayor are discussing: the original understanding of the "freedmen" by those in Congress (and potentially the public). In the context of this debate, and most originalist analysis, it is this type of definition--not strained dictionary manipulation--that is characteristic of the original meaning that ought to be employed in the final analysis. Serwer and Sotomayor argue on this level. Rappaport (and for the most part Thomas) do not.

As a result, Rappaport's response fails to engage with Serwer's argument, which relies on context and the understanding of those enacting the Freedmen's Bureau Acts and the Fourteenth Amendment--context and understanding that, despite "freedmen's" dictionary definition of "freed slave," imbues the term with racial meaning. Instead, Rappaport's response falls back on dictionary definitions and notions of inclusiveness, technical points that he fails to connect with the understanding of those in Congress or the general public at the time the Fourteenth Amendment was enacted.

Rappaport suggests that Serwer failed to consult his law review article, so let's not make that mistake. In his article, it looks like Rappaport comes closer to addressing Serwer's point:

Second, while as a formal matter freedmen is not a racial term, it obviously has a strong connection and overlap with race. Thus, even if one does not treat the term as racial, one would still want to closely examine whether the term was being secretly used for racial purposes. There is, however, no reason to believe that the term freedmen was being used in this manner. There is an obvious reason why the Congress might have passed these Acts that has nothing to do with the race of the former slaves. These slaves had been oppressed in the most extensive way and had not received a basic education or learned the trade skills necessary to live self-sufficiently. Moreover, not only did they lack human capital, they also had acquired no physical capital in the form of land or money. Thus, it made perfect sense to provide them with education, food, shelter, and land in order to allow people who had been uniquely oppressed to enter society as free individuals. Further, even if one did not believe that these goods and services were needed to allow the former slaves to live self-sufficiently, one might argue that the benefits could be justified as a limited form of compensation for the harms these slaves had suffered.

Here, however, Rappaport still fails to engage with original meaning and context. Rappaport's initial recognition of the "strong connection and overlap with race" that the term "freedmen" quickly devolves into an inquiry over whether the term was being "secretly used for racial purposes." At this point, Rappaport has already left the debate. Assuming secrecy and subterfuge also assumes that the term, "freedmen" wasn't generally understood to have racial connotations--the point that Rappaport is supposed to be disproving. There is no secret, as using the term "freedmen" in a law is evidence enough that one is making a race-based classification.

From here, Rappaport's line of argument continues afield. He argues that there were reasons other than race to use the term "freedman." These former slaves hadn't received a basic education, they lacked human capital, they had no money or shelter. It's because of these conditions of slavery--not race, that they deserve special treatment.

This line of argumentation misses the point for two reasons. First, Rappaport's resort to the reasons for why Congress passed acts targeting freedmen fail to delve into why freedmen were enslaved and therefore lacked land, money, education, and other resources. They were enslaved because of their race. Accordingly, these alternative reasons remain inextricably connected with race. 

Second, as flagged above, the notion that there's a "secret" effort to target race begs the question by assuming that "freedmen" is not a racial term. But as Serwer argues, and as Rappaport appears to acknowledge at the beginning of this paragraph, "freedmen" is a racial term. In context--in a nation where slavery had just ended, where all the slaves were Black, and where the vast majority of Black people were former slaves--the term "freedmen" has racial connotations. The definitional parsing and claims of underinclusiveness do not engage with this contextual point. As with the previous line of argumentation, the resort to underinclusiveness claims is an unexplained and unwarranted abandonment of the relevant context and fails to refer back to original meaning.

The overall goal of this post was to lay out why it is that Rappaport's arguments appear unconvincing. His point may seem off at the outset, but without parsing out the different reference points involved in the debate and Rappaport's shift to dictionary definitions while purporting to describe original understanding, it may not be clear why precisely Rappaport's arguments fail to land.

The Implications of "Refugees"

This post is already too long, so why not make it just a bit longer? Both Thomas and Rappaport (in his article, at least) argue that the Freedmen's Bureau Acts also provided benefits for "refugees"--a term that both Rappaport and Thomas suggest mainly referred to white people. Thomas's argument on this point is short and fails to explain the significance of the point: "Moreover, the Freedmen's Bureau served newly freed slaves alongside white refugees." Rappaport's argument is more detailed:

Third, the bulk of the provisions under the Freedmen's Bureau Acts provided benefits to both freedmen and refugees. The term refugees would normally include whites, and once it is recognized that virtually all southern blacks would be freedmen, refugees becomes a term that would appear to have been intended mainly to cover whites. If one were concerned that the use of freedmen was an attempt to provide benefits on racial grounds, then the inclusion of refugees should help to quiet that concern. One question that one must ask about a category that overlaps with race is whether that nonracial category is being used as a subterfuge to benefit or harm a race. If the Acts merely provided benefits to freedmen, even though non-blacks were similarly in need of the same benefits, then one might be suspicious of the omission. By contrast, if the benefit is extended to non-blacks in a similar position, there is far less concern of it being a secretive attempt to provide racial benefits. I am skeptical that refugees really were similarly situated to former slaves, but if one did think so, this would quiet that concern. Moreover, there is evidence in the legislative history that refugees were added in part because of concerns that the proposed legislation was seen by some as race-based.

While Rappaport's treatment of refugee benefits is longer than Thomas's, it's still unclear how this proves the point that benefits provided to freedmen weren't benefits provided on racial grounds. Rappaport appears to acknowledge that this point has no bearing on the racial connotations of "freedmen," now acknowledging that all freedmen are Black and suggesting that benefit provision to refugees therefore applies mainly to white people. At the same time, Rappaport continues to argue as though providing benefits to Black people is being attempted via subterfuge--a tactic that (as noted above) assumes the conclusion that "freedmen" was originally understood to be race-neutral. The most apparent issue is that even if "refugee" is a race-neutral term, it's unclear how what bearing its neutrality has on the separate term, "freedmen."

It appears that Rappaport is arguing that the Freedmen Bureau's Act, by providing benefits to refugees, balances out the allocation of benefits "to non-blacks in a similar position" and therefore balances out the provision of benefits to white people and Black people. His final sentence supports this reading, where he notes that there's evidence that "refugees were added in part because of concerns that the proposed legislation was seen by some as race-based."

But if this is the point Rappaport is making, it only succeeds if one assumes the opposite of what Rappaport is attempting to prove, that providing benefits to "freedmen" is the provision of benefits on the basis of race. If including refugees as a separate category of beneficiaries is necessary to accomplish racial neutrality, then any benefit specifically provided to freedmen is a benefit provided on the basis of race. Indeed, from a racial classification perspective, this seems to be even more problematic for Rappaport's colorblind vision, as this reading characterizes the Act as counteracting one racial classification with a second, separate racial classification. 

Problems arise further to the extent that benefits were allocated differently between refugees and freedmen. Eric Schnapper details this differentiated treatment, highlighting "four race-conscious provisions" in the Freedmen's Bureau Act of 1866, including a different scope of overall aid to be provided to freedmen as opposed to refugees, a limitation of the use of land and buildings for education to freedmen only, and certain land protections for freedmen only." (p. 772-73). 

Ultimately, this point is secondary, and gets fairly short shrift in Thomas's opinion. But it's worth mentioning to the extent that it further demonstrates Rappaport's shifting and lack of clarity regarding definitional reference points.

There is much more to discuss regarding the Court's opinion, Thomas's concurrence, and even the original meaning of freedmen. But this post is now far longer than reason demands, and I will leave it to the reader to seek out commentary on those other points elsewhere. I'm sure, as the weeks and months go on, much more will be said.

"Business as Usual" For Originalism?

I've argued at length elsewhere that three of the highest-profile cases of the Supreme Court's October 2021 term marked a shift away from an originalist approach to constitutional interpretation. In Dobbs v. Jackson Women's Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Kennedy v. Bremerton School District, the Court set forth a "history and tradition" approach to determining the scope of constitutional rights. In doing so, the Court elevated historical practices to a level at which these practices define the scope of constitutional rights. The Court pays lip service to the Constitution's text, but a close reading of these opinions reveals that the text plays no meaningful role in deciding the outcome. It is therefore a mistake to call these opinions originalist, as many have.

Enter Randy Barnett and Lawrence Solum and their recent draft article, "Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition." Barnett and Solum advance what Michael Ramsey at The Originalist Blog describes as "an important antidote to the flood of academic commentary proclaiming that the Court's recent cases aren't originalist."

From the article's abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

Barnett and Solum describe the use of history and tradition tests as "business as usual" for the Supreme Court, and argue that Dobbs, Bruen, and Kennedy "contain scant evidence of the emergence of a new approach to constitutional interpretation that would supplant either Public Meaning Originalism or Constitutional Pluralism." (p. 26). This got my attention, as I've concluded the opposite.

Walking through Barnett and Solum's analysis of Dobbs, Bruen, and Kennedy reveals the lengths one must go to in order to conclude that these cases are consistent with an originalist approach to constitutional interpretation. Despite Barnett and Solum's conclusions about the healthy state of originalism after the October 2021 term, their analysis of each case acknowledges that each opinion strays from typical originalist analysis in varying degrees. While they attempt to account for these deviations and present each case in as originalist a light as possible, they fail to demonstrate that the Court's recent decisions reflect an originalist methodology. And this is important--these were some of the biggest cases of the term, and in recent memory. If originalism isn't how the Court decides these important cases, this casts doubt on originalism's explanatory and predictive value.

Bruen's Historical Tradition Approach and Bans on Gun Possession by 18-to-20-Year-Olds

Yesterday, the United States District Court for the Northern District of Texas issued a ruling on the parties' motions for summary judgment in Firearms Policy Coalition, Inc. v. McCraw. At issue was the constitutionality of Texas's law prohibiting 18-to-20-year-olds from carrying handguns under the Second and Fourteenth Amendments. (I initially learned of this case from Steve Vladek. Jake Charles has some interesting initial analysis of the opinion in a Twitter thread here.)

This case follows on the heels of the Supreme Court's decision in New York Rifle & Pistol Association, Inc. v. Bruen, where the Court overturned New York's handgun licensing scheme and announced a new, "historical tradition" approach to determining the constitutionality of gun restrictions. This approach requires courts to first determine whether restricted activity falls within the scope of the Second Amendment's text. If so, governments may only restrict the activity if it is consistent with a "historical tradition" of analogous restrictions on the activity.

I criticized the Bruen Court's historical tradition approach a couple weeks ago in a blog post, and I go into even greater detail in my criticism in a draft article here. To summarize, the Bruen Court provided virtually no guidance for determining what historical restrictions are analogous to present-day restrictions, or how much historical evidence is sufficient to establish a tradition of analogous restrictions. This allowed the Court to pick and choose what historical evidence it could use, and the Court took advantage of this discretion by applying a restrictive approach to historical evidence and rejecting numerous historic gun restrictions as inapposite. The Court also reached inconsistent conclusion about the number of restrictions necessary to establish a historical tradition--suggesting that three restrictions were insufficient to demonstrate a history of restricting firearm carry, but concluding that two restrictions were likely sufficient to establish a history of restricting guns from "sensitive places."

Bruen's historical tradition approach, while seemingly neutral, allows courts to impose their discretion throughout the analysis by choosing what history is relevant and choosing how much historical evidence is enough to establish a conclusion. We see this discretion on full display in yesterday's Firearms Policy Coalition ruling.

The court begins by determining that the carrying of guns by 18-to-20-year-olds falls within the text of the Second Amendment--concluding that people under the age of 21 fall within "the people," identified in the Second Amendment's, "right of the people to keep and bear arms." I won't go into much detail on this initial part of the analysis, as my focus is on the historical tradition analysis that follows. But the court's analysis appears to support Second Amendment challenges to laws restricting the possession and carrying of firearms by minors. The court notes that constitutional rights "were not generally tied to an age of majority" at the founding, noting that "the First and Fourth Amendments applied to minors at the Founding as they do today." (p. 18, internal quotations omitted). The court concluded that this logic applied to the Second Amendment as well, finding that at the time of the founding "[t]he militia was composed of those that had yet to attain the age of majority." (p. 18). This seems to open the door to constitutional challenges by those under 18 years of age by confirming that they are part of "the people" protected by the Second Amendment. Should other courts follow this logic, governments will need to demonstrate a historical tradition of gun restrictions targeting minors.

As for the historical tradition analysis, the District Court, like the Bruen Court, takes a restrictive approach to Texas's evidence of historical restrictions on the carrying of firearms by 18-to-20-year-olds. The Court rejected examples of founding-era laws that restricted the storage of gun powder, regulated gun use "in the context of militia service," and prohibited the use of firearms "on certain occasions and in certain places." (p. 16 (internal quotes omitted)). These restrictions, the court concluded, were not sufficiently analogous because they did not constitute as absolute of a restriction as the Texas law. The court also rejected historical prohibitions on gun possession by felons and the mentally ill, finding that those restrictions involved individualized determinations that resulted in restrictions on Second Amendment rights.

Most notably, though, the District Court rejected evidence of state laws "at the end of the 19th century" that restricted the purchase or use of firearms by those under the age of 21. (p. 18.) The court noted that the earliest of these restrictions dated back to 1856. The court acknowledged that:

the historical record before the Court establishes (at most) that between 1856 and 1892, approximately twenty jurisdictions (of the then 45 states) enacted laws that restricted the ability of those under 21 to "purchase or use firearms." And by 1923, three more states joined with similar laws. But the record stops short and does not show any "historical analogs" from the Founding Era. (p. 18, internal citations omitted, emphasis added).

The court acknowledged that this raised a question over what history the court should consider. While the Second Amendment was ratified in 1791, the Fourteenth Amendment--the vehicle for incorporating the Second Amendment's protections against the states--was ratified in 1868, well after the first of the under-21 restrictions that the court acknowledges. It therefore seems that if "historical tradition" analysis is to account for the historic context of the Fourteenth Amendment, these 23 restrictions--enacted before, or shortly after the Fourteenth Amendment's ratification--are significant evidence in favor of a historical restriction on gun use or purchase by those under 21 years of age.

The District Court's approach to this issue is mixed. After acknowledging the "ongoing scholarly debate" over whether the Fourteenth Amendment's ratification imbued the Second Amendment with new meaning, the Court quotes language from Bruen (which the Court had quoted from its earlier Heller opinion) suggesting that evidence from the post-Civil War era did not provide insight into the meaning of the Second Amendment. But the language the court quotes is not applicable. To the extent that the Heller Court gave less weight to reconstruction-era evidence, this was because the Heller Court was dealing with a restriction in the District of Columbia, and therefore did not need to consider whether the Fourteenth Amendment incorporated the Second Amendment against the states. The District Court also cited Justice Barrett's concurrence in Bruen, but only to the extent that she stated that the Court had not endorsed "freewheeling reliance on historical practice [from] the mid-to-late 19th century to establish the original meaning of the Bill of Rights." (emphasis added). Again, this quote only bears on interpreting the meaning of the Second Amendment to the extent that it is to be fixed at the time of the founding. While the Bruen Court suggested that the scope of the protection of enumerated rights is fixed at the time of the founding, it explicitly avoided answering this question. 

Perhaps recognizing this uncertainty, the District Court concluded that even if it were to consider Reconstruction-era evidence, Texas still failed to prove a historical tradition of restriction. Here, the Court takes advantage of Bruen's failure to set forth any guidance on how much evidence is sufficient to establish a historical tradition of a restriction on gun rights:

At most, Texas's historical analogs show only that, by 1923, 22 states had laws imposing general restrictions on "the purchase or use of firearms" for those younger than 21. Based on Bruen's guidance, however, the Court concludes these laws cannot sufficiently establish that a prohibition on law-abiding 18-to-20-year-olds carrying a handgun in public for self-defense is consistent with this Nation's historical tradition of firearm regulation. (p. 19).

First, this framing suggests that the restrictions were enacted later than they actually were. As the court notes earlier, 20 states had enacted restrictions on the purchase or use of firearms by those under 21 between 1856 and 1892. By highlighting 1923 only, the court makes it seem like these laws arose later in time than they actually did. Second, it is a mystery why the court emphasizes the words, "prohibition" and "regulation." It does not argue that the difference in terminology is of any relevance to the constitutional analysis.

Most notably, though, the conclusion that 22 restrictions is not enough to establish a historical tradition is an extremely restrictive approach to the historical evidence. Bruen suggested that three examples were insufficient, but this is a far cry from the 22 examples in the Texas case. The District Court's conclusion that no historical tradition existed despite 22 examples of historic restriction places a near-insurmountable burden on governments seeking to demonstrate traditions.

It is also worth noting the Supreme Court's approach in framing historical evidence of abortion restrictions in its Dobbs opinion, where it concluded that historic restrictions on abortion in some circumstances were not evidence of a right to abortion in other circumstances. There, the Court argued that the lack of evidence of restrictions on particular behavior does not imply a historic understanding that the behavior was protected by the Constitution. That logic may be applied to the Texas case. For those states in the Reconstruction Era that did not enact restrictions on gun purchase and use by those under 21 years of age, they may have believed they could have enacted those restrictions and simply have chosen not to do so.

Firearms Policy Coalition, Inc. v. McCraw illustrates Bruen's lack of guidance for lower courts. This lack of guidance leaves courts with a substantial amount of discretion to pick and choose relevant historical evidence and to determine the sufficiency of evidence necessary for governments to meet their burden in seeking to restrict gun use and possession. The court here took full advantage of that discretion in concluding that 22 historic restrictions were not enough to establish a tradition. If such a restrictive approach survives appeal, this case could be the first of many instances invalidating longstanding restrictions on gun purchases and possession. 

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.

Supreme Court Rules That Challenge to New York City Gun Restriction is Moot

Amy Howe at SCOTUSblog writes:

The Supreme Court sent a major Second Amendment case back to the lower courts today, ruling that the challenge to a New York City restriction on the transport of guns is “moot” – that is, no longer a live controversy – because the city changed the rule last year. But some of the court’s more conservative justices signaled that it might not be long before the court takes up another gun rights case.

The case is New York State Rifle & Pistol Assn., Inc. v. City of New York.  I wrote about this case back in January 2019 when the Court granted cert, noting that this was the first major Second Amendment case that the Court had agreed to hear in over a decade. Details on the ordinance at issue and the petitioners' challenge can be found there.

As I noted then, the Court was likely to overturn New York City's restriction in light of Kavanaugh's appointment. But after the Court agreed to review the law, New York City amended its rule so that people could transport firearms to second homes or to shooting ranges outside of the city. In its opinion today, the Court notes that this was the relief that the petitioners had sought.

While the Court's mootness determination avoids engagement with the substance of the Second Amendment challenge, several Justices either disagreed with the decision, or explicitly stated that the Court should take up a Second Amendment case.

Justices Alito, joined by Gorsuch and (for the most part) by Thomas, dissented. The dissent concluded that the case was not moot, and determined that New York City's ordinance violated the Second Amendment.  To quickly summarize the Second Amendment analysis: the dissent found that the New York City ordinance infringed on the right to keep a handgun in the home for self-defense because it restricted people from taking guns out of the home for certain purposes necessary to exercise that right, such as repairing the gun or taking the gun to a range for practice. The dissent found that the ordinance's restriction on taking firearms outside of the city to practice at ranges was impermissible, since gun ranges may not have the same models of firearms available, and because the City could not identify restrictions on taking firearms outside of municipal limits during the founding era. The dissent also took issue with the City's claims that the restriction served a purpose of promoting public safety.

This case originally looked like it would be the next major Supreme Court case to interpret the Second Amendment. With its mootness determination, the Court sidestepped this outcome. But the layout of the opinions gives a preview of the Court's next steps on the Second Amendment. Kavanaugh's concurrence all but confirms that he will join Alito, Gorsuch, and Thomas in voting to grant certiorari to a Second Amendment challenge in the near future, and once that happens this process will begin again.

[Updated 4/28/2020]

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.

Illinois Supreme Court Rejects First Amendment Challenge to "Revenge Porn" Restriction

In Illinois v. Austin, the Illinois Supreme Court addressed a challenge to the State's prohibition on the non-consensual dissemination of private sexual images (also known as "revenge porn"). The law at issue, 720 ILCS 5/11-23.5(b), states:

A person commits non-consensual dissemination of private sexual images when he or she:
(1) intentionally disseminates an image of another person:
(A) who is at least 18 years of age; and
(B) who is identifiable from the image itself or information displayed in connection with the image; and
(C) who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; and
(2) obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and
(3) knows or should have known that the person in the image has not consented to the dissemination.

The Court's opinion has resulted in criticism from some commentators, and praise from others. While some of the criticism is correct, the Austin Court's recognition that the Illinois law targeted lesser-protected speech and therefore warranted an intermediate level of scrutiny appears to be a correct basis for its conclusion. Critics of the Austin opinion have failed to fully recognize this aspect of the decision by either mischaracterizing it or downplaying its basis in Supreme Court precedent. 

I. Summary of the Opinion

In Austin, the defendant and her fiancé shared an iCloud account, which meant that all text messages that the fiancé sent or received were visible on the defendant's iPad. ¶3. The fiancé and a neighbor exchanged several text messages, some of which included nude photographs of the neighbor. ¶4. The defendant and her fiancé then cancelled their wedding plans and broke up. The fiancé began telling people that the relationship ended because the defendant "was crazy and no longer cooked or did household chores." ¶5. The defendant, in turn, wrote a letter that included several nude photos of the neighbor and sent this letter to the fiancé's cousin. ¶6. The fiancé called the police, who interviewed the neighbor. The neighbor told them that while she was aware that the fiance and the defendant shared an iCloud account, she thought the account had been deactivated when she sent the nude photos and had intended that only the fiancé see the photos. ¶7.

The defendant was charged with one count of non consensual dissemination of private sexual images and moved to dismiss the charge, arguing that the statute was a content-based restriction on speech that violated the First Amendment. The lower court agreed with the defendant and held that the law was unconstitutional on its face. ¶10.

The Illinois Supreme Court disagreed with the lower court and held that the statute did not violate the First Amendment. The Court first stated that it rejected the State's request that it recognize that the dissemination of private sexual images as an unprotected category of speech.  ¶¶33-36. While some categories of speech, such as incitement, obscenity, defamation, and fighting words are recognized as falling outside of the category of protected speech, the Court stated that it would not add the dissemination of private sexual images to this list absent the Supreme Court addressing the issue.

While the Court refused to recognize the speech as entirely unprotected, it ended up reaching the significant conclusion that the dissemination of private sexual images was subject to a lesser amount of protection than other speech. The Court recognized that content-based restrictions on speech typically require court's to apply strict scrutiny to the restriction, which, in First Amendment cases, almost always results in the restriction being overturned. Here, however, the Court held that only an intermediate level of scrutiny was required, which meant that the law needed to serve "an important or substantial government interest unrelated to the suppression of free speech" and that the law "not burden substantially more speech than necessary to further that interest."  ¶59.

The Court advanced two justifications for its use of intermediate scrutiny. First, the Court claimed that the restriction was not a content-based restriction. While acknowledging that the law only applied to the dissemination of sexual images, the Court noted that the dissemination of this content was only unlawful if it was done so in a situation where the person sharing the content obtains the image under circumstances where a reasonable person knows or should know that the image is to remain private and that the person has not consented to the image's dissemination. The Court therefore concluded that the illegality of the dissemination was not premised on the content of the image, but rather on the manner of the dissemination. The law was therefore a time, place, or manner restriction, which warrants only intermediate scrutiny.  ¶49.

Separately, the Court noted that the law only restricted the dissemination of information that is of purely private concern.  The Austin Court noted that the Supreme Court in Snyder v. Phelps and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. has recognized that restrictions on speech involving "purely private" matters does not threaten "free and robuse debate of public issues" and is less likely to "pose the risk of 'a reaction of self-censorship' on matters of public import." ¶54. The Court concluded that the defendant's sharing of sexual images did not involve an issue of public concern as they were privately-sent sexual images that did not "relate to any broad issue of interest to society at large." ¶56. The restriction on the dissemination of these issues therefore warranted intermediate, rather than strict, scrutiny.

The Court concluded that the restriction survived intermediate scrutiny, noting that it served a substantial government interest of protecting individual privacy rights and acknowledging that the dissemination of private sexual images causes "unique and significant harm to victims in several respects." ¶66. The Court then concluded that the restriction was tailored narrowly enough to survive a First Amendment challenge, as it defined what body parts or activities needed to be included in the prohibited images, required that the person in the image be identifiable from the image or information displayed with the image, required that the image be obtained under circumstances where a reasonable person would know or understand that it was to remain private, required that the person disseminating the image know that there was no consent to share the image, and also required that the person disseminating the images do so intentionally. ¶¶79-83. The law also included exemptions to the prohibition that included the dissemination of images for purposes of reporting a crime or for a "lawful public purpose."

II. The Court's First, Mistaken Rationale for Applying Intermediate Scrutiny

The Austin Court's first basis for concluding that the Illinois law was not subject to strict scrutiny was that it was a "time, place, or manner" restriction, rather than a content-based restriction on speech. The Court got to this conclusion by stating that the illegality of the dissemination of the sexual images is premised on the manner of how the images are shared. While sharing sexual images with the consent of the person pictured or in circumstances where the image was not expected to be private is permissible, doing so when there is no consent or where a reasonable person would recognize that the image was intended to remain private is prohibited. 

While this is correct, the fact remains that the illegality of sharing the sexual image is also premised on the content of the image. The law is a time, place, and manner restriction on speech, but it also only applies to certain content. Mark Bennett correctly notes that when restrictions have "both content-based and content-neutral elements," they are content-based restrictions that are subject to strict scrutiny. He cites R.A.V. v. City of St. Paul, where the Court addressed a law that prohibited "fighting words" that "insult[ed] or provok[ed] violence on the basis of race, color, creed, religion or gender." R.A.V., at p. 391. While fighting words are an unprotected category of speech, the Supreme Court held that it was unconstitutional to prohibited a content-based subset of that category. Id. at pp. 392, 396.

The approach used in R.A.V. undermines the Austin Court's reasoning. While some elements of the law involve the manner in which sexual images are shared, the law only applies to the sharing of sexual images or images of sexual content -- which is a content-based limitation. The law therefore is content-based, and the Court's attempt to sidestep this is a mistake.

III. The Second Rationale: Lesser Protection for Speech of Purely Private Matters

While the Austin Court's analysis on time, place, or manner restrictions is incorrect, it gave a second, stronger basis for its use of intermediate scrutiny by concluding that the speech at issue was "purely private" speech that was subject to a lower level of scrutiny.

In Dun & Bradstreet, the U.S. Supreme Court upheld a lower court's ruling affirming a jury's award of punitive damages after the defendant credit reporting agency shared a credit report for the plaintiff construction contractor that included false information. Dun & Bradstreet, at pp. 752-53. The Supreme Court noted that while it had previously recognized strong protections for speech on matters of public concern, speech of "purely private concern" warrants "less stringent" protection under the First Amendment. Id. at p. 760. The Court concluded that the credit report was speech of purely private concern, as it was made "solely in the individual interest of the speaker and its specific business audience." Id. at 762. The Court therefore held that permitting recovery of presumed and punitive damages was permitted, even absent a showing of actual malice.  Id. at 762.

The Austin Court uses Dun & Bradstreet and similar language from Snyder v. Phelps to support its conclusion that laws against disseminating private, sexual content are subject to intermediate scrutiny. Scott Greenfield criticizes this move by referring to "purely private speech" as a "non-category category" and accuses the Austin Court of relying solely on dicta from Snyder.  While this criticism is warranted to the extent that Snyder's invocation of lesser protection for purely private speech is dicta, it overlooks the basis for this doctrine in Dun & Bradstreet, which applied that lesser level of protection in upholding presumptive and punitive damages in a defamation case. Admittedly, the context of Dun & Bradstreet was different--as the Supreme Court was not evaluating the constitutionality of a criminal law restricting speech. But the rule set forth in Dun & Bradstreet was broad, and the Court applied that rule favorably in upholding an award of damages in a defamation case. It is neither surprising nor incorrect for a state court to apply this broadly-stated rule to a different set of circumstances, particularly one involving a law that requires the disseminated content to have been initially shared or kept in private circumstances. 

Bennett's criticism is less substantive, as he claims that the Austin Court identifies "speech on purely private matters" as a category of speech that is not subject to the same protection as other speech and that the Supreme Court has never recognized such a category. This misses the mark, as the Supreme Court in both Snyder and Dun & Bradstreet has recognized that speech on matters of purely private concern warrants a lesser level of First Amendment protection. It may not be a category of unprotected speech like defamation, fighting words, or obscenity, but as the Austin opinion demonstrates, the Supreme Court's First Amendment doctrine recognizes that purely private speech is subject to lesser protection, and this reasoning is certain to appear in future cases that involve similar laws against revenge porn. 

Bennett raised this same criticism back in 2014 when Danielle Citron set out proposed language for revenge porn restrictions. At that time, I argued that Bennett's critique of Citron's proposed law was misguided, as it ignored Supreme Court case law on lesser-protected speech of purely private concerns. Bennett dismissed that argument, claiming that the Supreme Court had not considered the "purely private concern" issues in recent cases involving First Amendment challenges to criminal statutes. In light of Austin, it seems that simply dismissing this aspect of First Amendment law is an unwise approach for those who wish to argue that revenge porn laws are unconstitutional. It is also unsurprising that Courts would look to this area of First Amendment law, as revenge porn prohibitions are often drafted to apply only to sexual images and content taken in a private setting and shared in a context where there is an expectation that the images will remain private. (For much more on how technology facilitates invasions of privacy and proposals to address these issues through legal and market efforts, see Citron's article, Sexual Privacy).

As the Cyber Civil Rights Initiative notes, the Illinois law is one of the strongest laws against non-consensual sharing of sexual imagery to survive a First Amendment challenge. Other states are likely to use the reasoning from this case in addressing challenges to their own laws. As other courts address these challenges, they will hopefully use the correct components of Austin's reasoning on lesser-protected speech rather than perpetuate the incorrect analysis on time, place, or manner restrictions.

UPDATE - 10/23/2019

In a measured response here, Bennett takes me to task for not reading extensive briefing that he filed in a separate case in Texas. His post on the Austin case was, after all, simply a "copy-and-paste" version of a brief he filed in the Texas case. My failure to review the briefing on that separate case--which was neither linked to nor referenced in his post on Austin--apparently "annoyed" him.

Bennett's brief from the Texas case, Ex Parte Jones, is included in his response. A link to the Court of Criminal Appeals page for that case where all the briefs can be downloaded is here. I have looked over the brief in Bennett's response and, to his credit, it addresses the private speech issue in far more detail than his original post. Heck, I might even write a separate post in response to those arguments one of these days now that it has been brought to my attention.

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.