There is much to be said, as a matter of policy, about the California initiative. If it is successful, for example, it is likely [...]]]> A proposed ballot measure in California to apportion the state’s electoral votes by congressional district, rather than awarding all of the state’s electoral votes to the candidate who wins the statewide popular vote, has received much-deserved attention recently. Some Republicans—including many supporters of Rudolph Giuliani’s campaign—have supported the ballot initiative because they recognize its potential to confer upon the Republican nominee a windfall of roughly 20 electoral votes in an otherwise solidly Democratic state; Democrats have uniformly opposed the measure, for the same reason. The measure has also renewed debate about the fairness and wisdom of the Electoral College.

There is much to be said, as a matter of policy, about the California initiative. If it is successful, for example, it is likely to lead to similar efforts in other states, driven (as is the California effort) more by partisan aims than by concerns about representative democracy in presidential elections. But the proposal suffers from a much more serious defect: it is very likely unconstitutional.

Article II, section 1, clause 2 of the Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress.” The proposed measure in California will be decided not by the state legislature, but rather by the voters in a statewide ballot initiative. This end-run around the legislature—which, proponents of the measure obviously realize, is controlled by Democrats unwilling to sign away their party’s hopes in the next presidential election—seems flatly inconsistent with the language of Article II.

Until fairly recently, this clause was among the document’s more obscure provisions. But it played a central—even if not dispositive—role in the litigation that followed, and ultimately decided, the 2000 presidential election. Conservatives, outraged at what they viewed as a partisan effort of the Democratic-controlled Supreme Court of Florida to award votes to Al Gore, argued that the Florida courts were impermissibly usurping the power of the Florida legislature to establish rules for the counting of ballots in presidential elections. And in Bush v. Gore, three Justices—Rehnquist, Scalia, and Thomas—ruled for Bush on this very ground. Chief Justice Rehnquist’s opinion argued that the Florida Supreme Court had “infringed upon the legislature’s authority” to determine the manner in which the state’s electoral votes would be awarded.

That view, to be sure, did not command a majority of the Court. But the question for the Court in Bush v. Gore—whether a court’s interpretation of laws that the legislature previously had enacted to govern the allocation of the state’s electoral votes—was substantially more difficult than the question presented by the California ballot initiative. There is no clear line, after all, between judicial “interpretation” of ambiguous statutory language and judicial decision-making that strays so far from the statutory language that it effectively replaces the legislature’s enacted language with the judiciary’s preferred policy. But if a court’s efforts to interpret a statute governing the counting of votes in a presidential election can, under some circumstances, infringe upon a state legislature’s prerogatives under Article II of the Constitution, then surely an effort entirely to exclude the state legislature from creating the rules to govern the award of electoral votes is constitutionally problematic.

Of course, many legal scholars think that Bush v. Gore—and in particular Chief Justice Rehnquist’s opinion—stands on very shaky legal ground. But many of the arguments against his approach in that case are not as compelling when asserted in the context of the California ballot initiative. In addition to arguing that Florida election law presumed the customary interpretive authority of the courts, Gore’s lawyers argued that Article II was not a problem because the Florida legislature had played a decisive role in the enactment of the state constitutional provisions that authorized the courts to interpret the state’s statutes. In contrast, the California state constitution, which authorizes ballot initiatives for certain matters, was adopted in a popular convention, not by a vote of the legislature.

In addition, there are other precedents that seem to confirm that, regardless of the relevance of Article II to the dispute in Bush v. Gore, a state cannot use a ballot initiative to change the state’s process for awarding electoral votes. In a case decided in 1892, the Court observed that a state legislature has “plenary authority to direct the manner of appointment” of electors, and stated that the Constitution “recognizes that the people act through their representatives in the legislature, and it leaves it to the legislature exclusively to define the method of effecting the object.” The Court has also read literally the term “legislature” when used in other parts of the Constitution. Article V of the Constitution, for example, permits amendments to the Constitution after a two-thirds vote in both houses of Congress and ratification by “the Legislatures of three fourths of the several States.” In a 1920 case, the Court upheld a challenge to an Ohio ballot initiative that threatened to reverse the state legislature’s decision to ratify the 18th Amendment. The Court explained that “the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the Legislatures of the states. When they intended that direct action by the people should be had they[,] were no less accurate in the use of apt phraseology to carry out such purpose.”

One thing is certain. If the California ballot initiative succeeds, it will embroil the nation in yet another round of litigation over a presidential election. And this time, those challenging the action of the state will have strong constitutional ground on which to stand.

Hogan, one of the greatest golfers of all time, writes that

What I have learned I have learned by laborious trial and error, watching a good player do something that looked right to [...]]]> I was in the middle of Jeffrey Toobin’s book “The Nine” when a colleague who previously had tolerated playing a round of golf with me gave me a copy of Ben Hogan’s “Five Lessons.” I have read only the introduction of Hogan’s book, but–perhaps because I am in the proces of reading a gossipy but enlightening book about the Justices–I had law on the mind while I was perusing it. I was struck by the similarity between Hogan’s approach to golf and the the approach of the classic common-law judge to law.

Hogan, one of the greatest golfers of all time, writes that

What I have learned I have learned by laborious trial and error, watching a good player do something that looked right to me, stumbling across something that felt right to me, experimenting with that something to see if it helped or hindered, adopting it if it helped, refining it sometimes, discarding it if it didn’t help, sometimes discarding it later if it proved undependable in competition, experimenting continually with new ideas and old ideas and all manner of variations until I arrived at a set of fundamentals that appeared to me to be right because they accomplished a very definite purpose, a set of fundamentals which proved to me they were right becuse they stood up and produced under all kinds of pressure.

In the classic conception — perhaps an unduly rosy view, and one that I am not necessarily defending here — the common-law judge gradually refines the law, cautiously trying out new rules or applying old rules to new circumstances. Sometimes he discards a prior approach because it had proved unworkable in practice. But over time — and again, I am just presenting the common-law view, not attempting to defend it — the judge arrives at a set of fundamental principles that are right precisely because they generally produce good results and because they have stood the test of time.

Of course, it is not clear that this is an accurate statement of what common-law judges do. And even if it is, there is a lot of room to debate the desirability of this approach to the law. (For two very different views, compare Justice Scalia’s account of common-law judging in “A Matter of Interpretation” with Guido Calabresi’s view in “A Common Law for the Age of Statutes.”) But Hogan’s account of his approach to perfecting his golf game got me thinking that there might be a broader appeal to, and a broader application of, this experimentalist, gradualist approach.

As matters currently stand, unfortunately, although I am generally good at least for par at the common-law method, my handicap in golf is significantly higher.

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress’s authority to deprive the federal courts of jurisdiction over certain matters. A [...]]]> I just posted a draft of a paper on SSRN. It is called “Jurisidiction and Textualism,” and it is about the treatment by textualists of jurisdictional statutes, and what that treatment suggests both about textualism and about the broader debate over the relationship between Congress and the courts in crafting a jurisdictional regime. Here is the abstract:

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress’s authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress’s role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges—textualists and non-textualists alike—read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction.

Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that only their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction.

Textualism’s goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority—such as in the general federal-question statute—being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court’s textualists of jurisdictional statutes suggests that the textualists’ urge to constrain judicial power has sometimes trumped the textualists’ demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress’s instructions.

This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts’ authority to decline to exercise jurisdiction that Congress ostensibly has granted.

You can download the paper here. I welcome any comments.