Original Lobster

I often find myself trying to explain “originalism.”  And in doing so, I find it helpful to build up a repertoire of good examples of linguistic meanings or expected applications that have changed in dramatic and memorable ways from the founding.  A dear friend has just called my attention to an excellent one, via the famous David Foster Wallace essay:

Up until sometime in the 1800s, though, lobster was literally low-class food, eaten only by the poor and institutionalized. Even in the harsh penal environment of early America, some colonies had laws against feeding lobsters to inmates more than once a week because it was thought to be cruel and unusual . . .

Hence, an illustration of originalism and the sense/reference principle: Even those who argue that the Eighth Amendment’s ban on cruel and unusual punishments should be interpreted in originalist fashion would not argue that it’s unconstitutional to serve prisoners lobster on a daily basis.  (Kashrut issues aside.) The Eighth Amendment’s meaning (sense) is unchanged unless it is amended, but the specific applications (references) may well be quite different.

–The Wireless Association

In the recent contretemps at the Volokh Conspiracy about a footnote mocking “CTIA–The Wireless Agency,” Justice Scalia has my sympathy. That’s partly because I, too, dislike legal documents that are filled with acronyms, especially ones that are likely to be unfamiliar to most readers. My brain does not stutter over FBI or NASA; I can get used to DOJ; but even now I am not positive what CTIA stands for. I think the best evidence from this blog post is that it no longer stands for anything. Maybe that’s what really bugged Justice Scalia, who remembers the days when IBM was still “International Business Machines,” and KFC was still “Kentucky Fried Chicken.”

But the discussion so far seems to have missed half of what makes “CTIA–The Wireless Association” such a weird name– that m-dash and subsequent clause. It’s weird because it is cumbersome, but also because the stuff that comes after the dash might reasonably be expected to clarify what comes before it. Is CTIA a wireless association? Is that what A stands for? Or is it wrong to use CTIA as a standalone phrase?

And then there’s the dash. As the sentence is written in Justice Scalia’s opinion for the Court (we’re it not for the footnote) one would think the dash opens up a clause–presumably explaining what CTIA is–that the rest of the sentence will close. But it doesn’t, and the resulting mix of dash and comma really does look like a typo:

In July 2008, CTIA—The Wireless Association, which represents wireless service providers, petitioned the FCC to clarify the meaning of§332(c)(7)(B)(ii)’s requirement that zoning authorities act on siting requests “within a reasonable period of time.”

Indeed, I half suspect that the footnote was included because somebody– a clerk, another Justice, or Scalia himself– looked at the sentence without a footnote and really did think it looked like a misprint. Yes, the clarifying footnote could have been subtler or gentler, but if we’re taking a vote, count me as basically a defender of this footnote.

The Civil War and Constitutional Change

Joey Fishkin has put up “The Dignity of the South,” an elegantly-written essay on the constitutionality of the Voting Rights Act. Fishkin argues, essentially, that the equal-dignity arguments against the Act hark back to the Dunning School’s dim view of Reconstruction, which in turn rely on antebellum notions of state sovereignty that have been extinguished– as a legal matter– by the Civil War and Reconstruction.

I am not sure that there ever was an equal-dignity principle that would apply to the Act. (The Court’s opinion in Northwest Austin, by the way, never uses the word “dignity.”) But if there was one, as a legal matter, I am not so sure that the Civil War and its aftermath should be understood to delete it. The constitutional consequences of the Civil War and Reconstruction are a complicated thing, but at a minimum I think there is serious force to the following view:

[F]or the Civil War’s victors, legal continuity was generally a key part of the narrative of the Civil War and Reconstruction. President Lincoln had
justified the war by arguing that the states had never left the Union. Even the Reconstruction governments preserved a fiction of legal continuity with future and subsequent regimes. To be sure, there were plenty of radicals who argued that secession justified a major break in the legal order, but their views were frequently marginalized in practice, for better or worse. There is thus a case for seeing Civil War-era constitutional change strictly in formal or technical terms.

William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738, 1813 (2013).

Discretion and Taxes

I confess to being a little perplexed by all of this IRS stuff. I dislike discrimination against conservatives and abuses of the federal tax power well more than the next guy; all the same, it’s taken me a while to understand why the allegations against the IRS are so upsetting to such a broad range of folks. Is it really news that powerful federal authorities might use that power for political reasons, or for narrowly partisan advantage?

I take it that there is a specific norm against using the IRS for political or partisan purposes, in part as a reaction to abuses a few decades ago, but again, what’s the source or purpose of that norm? (And why is the norm so powerful that the President rushed to insist that it would be wrong for the IRS to act politically?)

Here’s my theory: The IRS has successfully convinced both legislators and judges that it should be basically immune to the rule of law. Many of the tax laws, like the standard for 501(c)(4) organizations, are incredibly “murky”, making it hard for most taxpayers even to know whether they are in compliance. And the IRS’s own views about these vague standards get broad deference.

What’s more, under the economic substance doctrines, even full compliance with the tax laws (which the IRS often calls “technical”) is not a defense if the IRS deems the transactions to be inconsistent with the spirit of the law. Courts usually defer to the IRS’s views about these transactions too. Tax practice is like practicing in a court of equity where the IRS is the chancellor.

But responsibility is needed to preserve this power. Perhaps the IRS’s basic immunity from judicial supervision only lasts so long as they can convince everybody that this is a narrowly technical area of law where the government agents are unusually neutral and public-minded.