Jed Shugerman: The Unitary Theorists’ Appointments Clause Problems
Michael Ramsey
Jed H. Shugerman (Boston University School of Law) has posted The Unitary Theorists’ Appointments Clause Problems (16 pages) on SSRN. Here is the abstract: The unitary executive theorists’ recent retreat to the Appointments Clause as a basis for unconditional presidential removal power is contradicted by the text and by overwhelming originalist evidence. It is a […]
John Mikhail: Birthright Citizenship, Unwritten Constitutionalism, and the Nature of the Union
Michael Ramsey
John Mikhail (Georgetown University Law Center) has posted Birthright Citizenship, Unwritten Constitutionalism, and the Nature of the Union (Yale Journal of Law & the Humanities, Vol. 36:3, 2025) (17 pages) on SSRN. Here is the abstract: Many of Jonathan Gienapp’s core arguments in his outstanding new book, Against Constitutional Originalism, are well-taken, and they represent important challenges to […]
Michael McConnell and Noah Rosenblum Debate Originalism
Michael Ramsey
At the NYU Law School website, Former circuit judge Michael McConnell and Professor Noah Rosenblum debate originalism. (Video; this is from late last year but recently posted online). From the description of the event: The merits and pitfalls of originalist interpretation of the US Constitution were the focus at the November 19 installment of Respectfully Dissent, […]
Wolford v. Lopez Arguments Today [Updated]
Michael Ramsey
The Supreme Court hears oral argument today in Wolford v. Lopez, likely one of the most important originalist/history-and-tradition cases of the term. Here is the question presented: Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders […]
Justice Gorsuch on Originalism and Emergency Assistance
Michael Ramsey
In last week’s decision in Case v. Montana, the Supreme Court held that police officers may enter private homes without a warrant to render emergency aid if supported by an objectively reasonable belief of an emergency. Justice Gorsuch added a brief concurrence on the originalist foundation of that conclusion: Does the Fourth Amendment tolerate this […]
Neuman on Children Born to Temporarily or Unlawfully Present Aliens
John Vlahoplus
Gerald L. Neuman (Harvard Law School) has posted Lessons for Birthright Citizenship from Suspension of Deportation (188 pages) on SSRN. From the abstract: Although much has been written about why Donald Trump’s Executive Order purporting to abolish birthright citizenship for children of unlawfully present or temporarily present parents violates the Citizenship Clause of the Fourteenth […]
Was Elbridge Gerry the “Federal Farmer”?
Rob Natelson
The Letters from the Federal Farmer to the Republican are among the most highly regarded productions of Antifederalist literature. Several of the Farmer’s recommendations were incorporated into the Bill of Rights, such as his prescription for reserving unenumerated federal powers to the states—adopted as the Massachusetts ratifying convention’s first recommended amendment, and eventually evolving into […]
Ilan Wurman: Unconstitutional Conditions and the Doctrine of Public Rights
Michael Ramsey
Ilan Wurman (University of Minnesota Law School) has posted Unconstitutional Conditions and the Doctrine of Public Rights (43 pages) on SSRN. Here is the abstract: The Supreme Court is in the throes of a public rights counterrevolution. The public rights doctrine is an “exception” to the requirements of Article III and the Seventh Amendment that allows […]
Jack Goldsmith & Curtis Bradley: General Law Revivalism and the Problem of 1938 [Updated]
Michael Ramsey
Jack Landman Goldsmith (Harvard Law School) & Curtis Bradley (University of Chicago Law School) have posted General Law Revivalism and the Problem of 1938 (59 pages) on SSRN. Here is the abstract: From the constitutional Founding until Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts routinely applied a body of “general law” to […]
Aaron Tang: Second-Order Constitutional Theory
Michael Ramsey
Aaron Tang (University of California, Davis – School of Law) has posted Second-Order Constitutional Theory (93 U. Chi. L. Rev. __ (forthcoming 2026)) (60 pages) on SSRN. Here is the abstract: A sophisticated legal thinker who wishes to work out a fully developed approach to constitutional adjudication must choose two theories, not one. The first choice […]