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The federal government is back in the business of executing prisoners.

Prior to 2020, the last federal death row inmate to be executed was Louis Jones Jr., put to death by lethal injection in 2003. Only three federal prisoners were executed under GOP President George W. Bush, among them Oklahoma City bomber Timothy McVeigh. None were executed under Democratic President Barack Obama.

Seventeen years after Jones’ execution, on July 14, the United States government executed Daniel Lewis Lee. Just two days later, the feds executed Wesley Ira Purkey. The next day, the feds executed Dustin Lee Honken. On August 26, they executed Lezmond Mitchell. The Trump administration has now executed more death row inmates than any president since Dwight Eisenhower.

U.S. Attorney General William Barr announced in July 2019 that he had directed the Bureau of Prisons to resurrect the execution protocols and scheduled Lee, Purkey, Honken, and two other men for lethal injections. The Justice Department selected death row inmates who had been convicted of particularly brutal crimes involving either the elderly or children.

When Barr made his announcement, he said that the Justice Department and the federal government “owe it to their victims and their families to carry forward the sentence imposed by our justice system.”

But in Lee’s case, the family of the victims had opposed his execution for years. Lee was convicted in 1999 after he traveled to Arkansas to rob gun dealer William Mueller as part of a white separatist plot. He ended up killing Mueller, his wife Nancy, and their 8-year-old daughter, Sarah, and dumping their bodies in the Illinois Bayou.

Lee was the accomplice of another man who had masterminded the crimes and had been sentenced to life in prison—the same sentence the victims’ family wanted for Lee.

While the legal fights delayed Lee’s execution, with challenges making it all the way up to the U.S. Supreme Court, the Justice Department was ultimately granted permission to carry out the execution via injection of pentobarbital.

Barr’s move is a significant reversal of a broad trend away from capital punishment. State-level executions have been on the decline since 2000. Since 1973, 170 inmates on death row have been exonerated, according to the Death Penalty Information Center. Three have been freed just this year. There’s a very real possibility that if federal executions continue, Barr will be sending innocent men to their deaths.

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Nicholas Beauchene, a U.S. Postal Service mail carrier in New Jersey, has been charged by with one count of delay, secretion, or detention of mail and one count of obstruction of mail. Prosecutors say Beauchene discarded mail, including 99 absentee ballots on their way to voters.

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Jeff Jacoby has an excellent column on the objections to Gal Gadot being cast as Cleopatra. An excerpt:

Cleopatra VII, the Queen of the Nile, may have been the foremost Egyptian of her day, but she was neither a black African nor an Arab. She was the last of the Ptolemaic Pharaohs, a direct descendant of Ptolemy I, the Macedonian Greek military officer and companion of Alexander the Great who became the ruler of Egypt after Alexander’s death. Though the identity of Cleopatra’s mother has not been definitively established, there is no doubt that Cleopatra regarded herself and was regarded by others as Greek. Egypt today is the most populous Arab country, but there was nothing Arab about Egypt in Cleopatra’s day: The Arab invasion and conquest of North Africa didn’t occur until six centuries after her death….

Applying today’s ethnic labels, Cleopatra would be considered Middle Eastern. Just like Gadot, whose father is a sixth-generation Israeli.

But leave all that aside. Assume for the sake of argument that Cleopatra and Gadot are from two wholly different racial/ethnic categories. Why should that matter? …

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From the Nebraska Supreme Court earlier this month in Dycus v. Dycus, written by Justice John Freudenberg:

In her complaint, Debra alleged there had been a breakdown in the marital relationship of the parties to the extent that the marriage was irretrievably broken. She alleged that efforts by the parties at reconciliation had wholly failed and that further attempts at reconciliation would be fruitless. There are four adult children of the marriage. There are no minor children….

Michael … relies [in arguing against Nebraska’s no-fault divorce law] on the Court’s statements in Obergefell that the liberties protected by the Due Process Clause … include “intimate choices that define personal identity and beliefs” and “certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Michael asserts that he “has defined and expressed his identity as the spouse of [Debra.]” …

Michael fails to acknowledge that by bringing this action, Debra expressed her own intimate choice to identify herself as a person who is not married to Michael. There is nothing in the recent U.S. Supreme Court decisions on the “right to marry” suggesting a liberty interest in forcing a plaintiff to stay in a broken marriage because the defendant was not at “fault.” Nor did the Court suggest that such compulsion would be “within a lawful realm.” To the contrary, the Court in Obergefell pointed out that its holding was limited to “the rights of two consenting adults.”

While the notice and opportunity to be heard must, under procedural due process, be appropriate to both the nature of the proceeding and the character of the rights that might be affected, we find no merit to Michael’s argument that the liberty interests recognized in Obergefell and Windsor require something procedurally different than what is provided under the Nebraska no-fault divorce statutes….

For an earlier “it takes two to tango” case, see this post.

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In considering the nomination of Judge Amy Coney Barrett to the Supreme Court, many have sought to determine how a Justice Barrett would approach existing Supreme Court precedent. Several of then-Professor Barrett’s law review articles focused on stare decisis.

Comparatively little attention has been paid to her work on separation of powers. One paper in particular that has been somewhat overlooked is “Suspension and Delegation,” published in the Cornell Law Review in 2014. In this paper then-Professor Barrett considered Congress’s power to delegate to the President the authority to suspend the writ of habeas corpus. Barrett concluded that many such delegations have been unconstitutional, expressing a degree of skepticism of Presidential emergency powers that is unusual for a Republican judicial nominee—and in the context of national security no less! In the paper she writes:

Congress cannot pass any suspension statute until it concludes that an invasion or a rebellion exists and that the accompanying threat to public safety may require it. Only at that point may it capitalize upon the President’s ability to react quickly by charging him to make the ultimate determination whether and when maintaining security requires the exercise of emergency power.

Although the paper focuses on the suspension of the writ of habeas corpus—a question explicitly addressed by constitutional text—it may have implications for other delegation questions. While I did not see anything in the article that suggests an embrace of the nondelegation doctrine more broadly, I think it suggests a Justice Barrett might be open to certain types of more targeted delegation-based arguments. For instance, if Congress must determine that an emergency exists that could justify the suspension of the writ of habeas corpus, might there also a problem when Congress delegates broad authority to the President to declare emergencies, waive statutory requirements, and take otherwise prohibited actions? Professor Barrett did not really address such questions in her article, but it nonetheless got me thinking.

I recommend the paper for those interested in the broader subject, or who would like an additional window into Judge Barrett’s thought. Here’s the abstract:

A suspension of the writ of habeas corpus empowers the president to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: The writ may be suspended only in cases of “rebellion or invasion” and when “the public safety may require it.” Congress alone may suspend the writ; the executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive legislative authority over suspension, the statutes that Congress has enacted are in tension with it. Each of the suspension statutes has delegated broad authority to the president, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power. Indeed, if all of these prior statutes are constitutional, Congress could today enact a law authorizing the president to suspend the writ in Guantánamo Bay if he decides at some point in the (perhaps distant) future that the constitutional prerequisites are satisfied. Such a broad delegation undermines the structural benefits that allocating the suspension decision to Congress is designed to achieve. This Article explores whether such delegations are constitutionally permissible. It concludes that while the Suspension Clause does not prohibit Congress from giving the president some responsibility for the suspension decision, it does require Congress to decide the most significant constitutional predicates for itself: that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power. Congress made this determination during the Civil War, but it violated the Suspension Clause in every other case by enacting a suspension statute before an invasion or rebellion actually occurred — and in some instances, before one was even on the horizon.

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Critics of originalism sometimes claim that originalists focus only on the original 1787 Constitution, while ignoring the Reconstruction amendments, which transformed the Constitution after the Civil War. Sometimes, this criticism is combined with the argument that the neglect of the Reconstruction Amendments is intended to privilege white men over blacks and other racial minorities, whose rights those amendments were enacted to secure. Such arguments have gotten renewed prominence in the wake of the controversial nomination of Amy Coney Barrett to the Supreme Court—thanks in part to a New York Times op ed by Janelle Bouie, arguing that originalists ignore the fact that “[t]he Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country.” He concludes that “The Reconstruction Constitution is a fundamentally different document than the Constitution of 1787. Yet our conversations around ‘original meaning’ rarely take account of this change.”

A recent op ed by MSNBC contributor Hayes Brown similarly accuses originalists of ignoring “the fundamental constitutional shift that occurred after the passage of the 13th, 14th and 15th amendments.” Such claims are not new. But they are badly wrong. Those who accuse originalists of ignoring the significance of the Reconstruction amendments are themselves of guilty of ignoring a vast originalist literature devoted to that very subject.

In reality, numerous prominent originalist legal scholars have written extensively about the Reconstruction amendments and their significance. Michael McConnell (a well-known originalist who was, for a time, also a federal judge) has authored prominent articles on the original meaning of the Fourteenth Amendment with respect to both racial discrimination and the meaning of due process of law. Steve Calabresi (another prominent originalist legal scholar, and co-founder of the Federalist Society), has coauthored prominent articles arguing that the original meaning of the Fourteenth Amendment provides broad protection against both racial discrimination and sex discrimination. Christina Mulligan has an important article outlining how we can and should take account of diverse perspectives (including those of women and racial minorities) in understanding the original meaning of the Constitution. Her work is of obvious relevance to interpretation of the Reconstruction amendments.

Co-blogger Randy Barnett ,Evan Bernick, and Kurt Lash, are among a number of originalist legal scholars who have written major works on the meaning of the Privileges or Immunities Clause, in some cases arguing that it provides broad protection for a wide range of rights—far beyond what is protected by the courts today. Bernick also has a pathbreaking new article arguing for a broader interpretation of the Equal Protection Clause, contending that its original meaning imposes an affirmative duty of protection on the state, not merely a duty to avoid racial discrimination. Michael Rappaport, another leading originalist constitutional theorist, has written notable articles exploring the implications of the original meaning of the Fourteenth Amendment for affirmative action programs, and for regulatory takings.

In my book The Grasping Hand, I discuss the impact of the Fourteenth Amendment’s “incorporation” of the Bill of Rights against state governments for “public use” constraints on government power to take private property. I argue that the Reconstruction-era understanding of public use—as revealed in contemporary court decisions,  debates over the abolition of slavery, and the framers’ goal of protecting blacks and white Unionists against state governments —provides a stronger basis for enforcing tight limits on government’s power to take private property than is evident in the original 1791 meaning of the Fifth Amendment.

Nor is originalist interest in the Reconstruction Amendments just a product of recent years. McConnell’s work on race discrimination dates back to the 1990s. As far back as 1980, Bernard Siegan published Economic Liberties and the Constitution, which argues that the original meaning of the Fourteenth Amendment provides much broader protection for economic liberties than modern judicial doctrine is willing to recognize. Prominent early originalists such as Robert Bork and Raoul Berger also wrote about the original meaning of the Fourteenth Amendment in the 1960s and 70s, though most modern originalists (myself included) would today argue that Bork and Berger got many things wrong.

It’s also worth noting that pretty much all of the above writers recognize that the Reconstruction amendments made major changes to the existing constitutional order. Few if any originalists claim that the original 1787 Constitution somehow remains in force with few or no significant changes.

There has been much less originalist analysis of the meanings of the Thirteenth and Fifteenth Amendments. But that is in large part because there is less controversy about these amendments than the Fourteenth. Nonetheless, there is a growing originalist literature on these amendments, as well. Notre Dame law Professor Jennifer Mason McAward, for example, has done important work pushing back on the newly popular idea that the Thirteenth Amendment gives Congress broad power to legislate against any injustices than can in some way be indirectly linked to slavery, though she also emphasizes that it does give broad power to suppress slavery and “involuntary servitude” themselves.

With the exception of Raoul Berger (an idiosyncratic liberal who was often associated with conservatives), the above-listed works are all by conservative or libertarian originalists. It is they who most often get accused of ignoring the Reconstruction amendments. But it is important to recognize that liberal originalists have also written major works on the Reconstruction Amendments. Akhil Amar, for example, has literally written the book on how those amendments should change interpretation of the Bill of Rights.

The works mentioned above are just a sample of the vast outpouring of writings on the Reconstruction Amendments produced by originalists over the last several decades. For reasons of space, I have had to omit a great many important books and articles on numerous issues.

It is fair to argue that prominent originalist judges haven’t focused on the original meaning of the Reconstruction amendments nearly as much as academics have (though that is not true of several, like McConnell, who are—or have been—both scholars and judges). Still, originalist judges are far from simply ignoring those Amendments.

Clarence Thomas, for example, has written a well-known opinion arguing that the original meaning of the Fourteenth Amendment strengthens the case for “incorporating” the Second Amendment right to bear arms against the states. The drafters of the Amendment, he points out, believed this to be an important safeguard for blacks’ rights against oppression by racist state and local governments. As far back as 1973, Justice William Rehnquist’s dissent in Roe v. Wade was based in large part on arguments drawn from the original meaning of the Fourteenth Amendment. And these are far from the only examples of originalist judges grappling with the Reconstruction Amendments on a variety of issues.

Originalist judges can and should do a much better job of including the original meaning of the Reconstruction amendments in their jurisprudence than many have done so far. But it is wrong to claim that they have simply ignored the issue, or that they somehow] believe that the Constitution remains largely unchanged since 1787.

I do not expect columnists and other non-experts to be familiar with all of these writings. Indeed, the literature has grown so large that even most constitutional law scholars (myself included!) can’t keep track of all of it. But, while it would be unreasonable to expect lay pundits and commentators, to study this literature in detail, they should at least consult relevant specialists before making sweeping claims about originalism.

Ironically, critics who claim originalists have ignored the Recontruction amendments are at odds with academic critics who argue that originalists take an overly optimistic view of their meaning (as Stephen Griffin contends in an important recent article), or that they disagree among themselves about that meaning so much, that the disagreement proves that originalism is indeterminate. I criticized the latter argument here. Such critiques of originalism would make little sense if originalists really had largely ignored the Reconstruction amendments.

None of the above proves that originalists have found the “right” possible interpretation of the Reconstruction amendments, or that originalism is superior to alternatives such as living constitutionalism. There are plenty of legitimate criticisms of both originalist takes on the Reconstruction amendments, and originalism as a more general theory of constitutional interpretation.

I myself have reservations about many versions of originalism, and defend the theory only on contingent “instrumental” grounds. I remain open to the possibility that some other approach to constitutional interpretation (perhaps one not yet fully developed) might turn out to be superior. But the public debate over originalism and constitutional theory is not advanced by false claims that its exponents have ignored the significance of a set of amendments on which they have actually written extensively.

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