Thomas Colby & Peter Smith: The Return of Lochner
Michael Ramsey
Thomas Colby (George Washington University Law School) and Peter Smith (George Washington University Law School) have posted The Return of Lochner (Cornell Law Review, Vol. 100, No. 527, 2015) on SSRN. Here is the abstract: For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York […]
David Gans on Originalism in the Marriage Equality Cases
Michael Ramsey
At Balkinization, David Gans: Originalism in the Marriage Equality Cases. Here is an excerpt: Jack recently highlighted a pair of dueling amicus briefs in the upcoming marriage equality cases, one filed by the CATO Institute and one by a number of “Scholars of Originalism,” that raise important questions about originalism as a form of constitutional interpretation. […]
Michael Sant’Ambrogio: Standing in the Shadow of Popular Sovereignty
Michael Ramsey
Michael Sant'Ambrogio (Michigan State University – College of Law) has posted Standing in the Shadow of Popular Sovereignty (95 B.U. L. Rev. _ (2015 Forthcoming)) on SSRN. Here is the abstract: Who may speak for a state or the United States in federal court? Recent decisions by executive officials not to defend laws they believe are […]
Jack Balkin and Steven Smith on the Originalist Scholars’ Brief in the Same-Sex Marriage Cases
Michael Ramsey
At Balkinization, Jack Balkin and my colleague Steve Smith have an interesting exchange on two originalist-oriented amicus briefs in the same-sex marriage cases. The briefs are here, on behalf of the Cato Institute, Willliam Eskridge, Steven Calabresi and Ilya Shapiro; and here, on behalf of nine "Scholars of Originalism." Professor Balkin comments in part (it […]
Ilan Wurman: Law Historians’ Fallacies
Michael Ramsey
Ilan Wurman (Winston & Strawn LLP; Stanford Law School '13) has posted Law Historians' Fallacies (North Dakota Law Review, forthcoming) on SSRN. Here is the abstract: A common line of attack against originalists is that lawyers just aren’t good at doing history. But in his famous book Historians’ Fallacies, David Hackett Fischer noted that many historians […]
Gerard Magliocca on John Bingham and “the People”
Michael Ramsey
At Concurring Opinions, Gerard Magliocca: John Bingham on “the People”. The central point: In arguing against the admission of the Oregon Territory as a state, Bingham stated that the Oregon Constitution was invalid because it allowed some legal aliens to vote. He said that this was inconsistent with Article I’s use of the term “the […]
Eric Fish: Constitutional Avoidance as Interpretation and as Remedy
Michael Ramsey
Eric Fish (Candidate, Ph.D. in Law, Yale Law School has posted Constitutional Avoidance as Interpretation and as Remedy on SSRN. Here is the abstract: In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving […]
Brian Sawers: The Implications of Misreading History in Jones
Michael Ramsey
Brian Sawers (Emory University School of Law) has posted Original Misunderstandings: The Implications of Misreading History in Jones (Georgia State University Law Review, Forthcoming) on SSRN. Here is the abstract: This article shines light on a little-noticed but important error in United States v. Jones, the recent Supreme Court Fourth Amendment decision. In Jones, the […]
David Moore: Constitutional Discretion to Violate International Law
Michael Ramsey
David Moore (Brigham Young University – J. Reuben Clark Law School) has posted Constitutional Discretion to Violate International Law (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract. Scholars have long claimed that the Constitution commits the United States to comply with international law. These claims come in various forms. Some find the commitment […]
James Fleming: For Moral Readings and Against Originalisms
Michael Ramsey
James Fleming (Boston University – School of Law) has posted Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms (J. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, Oxford University Press, 2015) on SSRN. Here is the abstract: In recent years, some have asked, “Are we all originalists now?” […]