The Originalism Blog

The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law

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Marco Basile: Old Textualism, New Juristocracy
Michael Ramsey

Marco Basile (Boston College Law School) has posted Old Textualism, New Juristocracy (New York University Law Review, Volume 101, forthcoming 2026) (75 pages) on SSRN.  Here is the abstract: This Article traces the emergence of text-centric theories of legal interpretation in the early nineteenth century amid an increasingly writing-based legal culture. While many scholars and […]

William Baude: Marbury Now
Michael Ramsey

William Baude (University of Chicago Law School) has posted Marbury Now (Liberties, Volume 6, Issue 2, pp. 7-26 (Winter 2026)) (33 pages) on SSRN.  Here is the abstract Consider a showdown between an institutionalist Chief Justice of the United States and an ambitious and opportunistic President of the United States — a showdown in which the Chief […]

Abbe Gluck on the Continuing Importance of Legislative History
Michael Ramsey

At SCOTUSblog, Abbe Gluck: Legislative history lives on – in secret. From the introduction: Rumors of the textualist triumph over legislative history have been greatly exaggerated. A debate has raged among lawyers and judges for decades about the changes the Supreme Court’s textualists have wrought in statutory interpretation. One of textualism’s key moves has been […]

Judge Edith Jones: No Federal Power over Home Distilleries
Michael Ramsey

McNutt v. US Department of Justice, recently decided by a panel of the Fifth Circuit, holds that a federal law imposing fines on home distilleries is beyond the federal taxing power.  From Judge Edith Jones’ opinion for the panel: For more than 150 years, Congress has prohibited home distilleries as an adjunct to the law […]

Ashraf Ahmed: Historical Practice Theories
Michael Ramsey

Ashraf Ahmed (Columbia Law School) has posted Historical Practice Theories (127 Colum. L. Rev. __ (forthcoming 2027)) (55 pages) on SSRN.  Here is the abstract: Contemporary constitutional law and theory is preoccupied with the question of practice. Over the last decade, across a range of issues—from gun rights to elections to school prayer to the […]

Aaron Nielson on Richard Re on Scalia
Michael Ramsey

At Civitas Outlook, Aaron Nielson: Getting Right With Scalia. From the introduction: At SCOTUSBlog, Richard Re offers the provocative take that the Supreme Court is not true to the late Justice Antonin Scalia’s legacy [ed.: noted here]. He acknowledges that Scalia is invoked favorably by all the Justices, and that “[l]egal culture remains transformed by the […]

Laurence Claus: Courts Against Constitutional Capture
Michael Ramsey

Laurence Claus (University of San Diego School of Law) has posted Courts Against Constitutional Capture (20 Vienna Journal on International Constitutional Law (forthcoming, 2026)) (50 pages) on SSRN.  Here is the abstract: How can courts best help keep constitutional democracy alive? When institutions of constitutional democracy are being captured and turned to creating a different […]

Citizenship and Domicile of Smuggled Slaves
Andrew Hyman

During the oral arguments in the birthright citizenship case, Trump v. Barbara, Justice Barrett posed the following interesting question: General, you said in your reply brief that the children of slaves who were brought here unlawfully, you know, in defiance of laws forbidding the slave trade, would, in fact, be citizens….And you can imagine that […]