Fourteenth Amendment Original Meaning in Skrmetti
Chris Green
I have posted an article to SSRN, Equal Citizenship Yes, Intermediate Scrutiny No, a companion to my amicus brief filed this morning at the Supreme Court. Here is the abstract: United States v. Skrmetti, a constitutional challenge to Tennessee’s limits on children’s use of cross-sex hormones, offers the Supreme Court the chance to rethink its […]
Are Cases That Get Original Meaning Wrong “Anti-Originalist”?
Chris Green
Jed Shugerman has recently described the Supreme Court's presidential-immunity opinion in Trump v. United States as "anti-originalist because the historical evidence is overwhelmingly on the other side." While there is certainly a lot to be said in favor of limiting or overruling Nixon v. Fitzgerald on the basis of the original meaning of "executive power" […]
Trump v. Anderson and Federalist 68
Chris Green
The Supreme Court's opinion in Trump v. Anderson, as many expected, focused on the chaos that the justices thought would ensue if every state made its own decisions about its presidential elections. Both the per curiam majority and the concurrence in the judgment stressed the fact that a "state-by-state resolution of the question whether Section […]
The Original Understanding on Section Three Self-Execution: Some Direct Evidence
Chris Green
While I have not had the chance to review the history of Section Three in detail, I came across a few very interesting pieces of evidence from June 1868 about whether Section Three's enforcement requires congressional action. (As it turns out, after checking the briefs to see if anyone else had found it, I discovered […]
Turning Vermeule’s Argument for Redefining Originalism on its Head
Chris Green
In his response at the end of a conference at Harvard on common-good constitutionalism, Adrian Vermeule once again (see here) claims that he is not an originalist, despite embracing the claim, long considered by many to be definitive of originalism, that the meaning expressed by constitutional text in its original context is binding. He explains: […]
Is the Burden of Proof for Judicial Review a Precept of Natural Law?
Chris Green
In a recent discussion of natural law and interpretation, Lee Strang and Joel Alicea noted that some originalists—John McGinnis and me—have argued that there is a clarity requirement for judicial review. Even if a bare preponderance of the evidence suggests that a statute is unconstitutional, unless that evidence is clear and convincing, courts should refrain […]
The Dobbs Draft and Stare Decisis: An Epistemic Approach to Integrating the Factors
Chris Green
The Dobbs draft opinion circulated at the Supreme Court in February and leaked to the press in April reads at many points like a shell intended for supplementation in response to concurrences and dissents. One place is footnote 22, in which the opinion very briefly confronts the Privileges or Immunities Clause, claiming that Corfield v. […]
Vermeule and the Sense-Reference Distinction, Yet Again
Chris Green
Adrian Vermeule and a co-author, Conor Casey, have responded quite quickly to Judge William Pryor’s Against Living Common Goodism with an essay forthcoming in the Harvard Journal of Law and Public Policy’s Per Curiam supplement. The essay invents, for the purposes of criticism, a new view that blurs meaning and application: “thick originalism,” or “originalism […]
Problems With Vermeule, Part 8: Vermeule’s Neglect of Intermediate Positions
Chris Green
(For parts 1, 2, 3, 4, 5, 6, and 7, see here and here and here and here and here and here and here.) Vermeule claims categorically at page 2 that “all attempts to combine originalism with the classical view of law are ultimately incoherent, an attempt to mix oil and water.” But the book never makes […]
Problems With Vermeule, Part 7: Meaning, Application, and Euclid
Chris Green
(For parts 1, 2, 3, 4, 5, and 6, see here and here and here and here and here and here.) I have noted before, in response to an online essay reprinted with relatively little change in his book at pages 124-28, that Vermeule’s praise of the 1926 case Euclid v. Ambler Realty is flatly inconsistent […]