Chemerinsky on Originalism and Bradwell
Chris Green
Erwin Chemerinsky’s review of Judge Wilkinson’s book, which Mike Ramsey notes below, makes a lot of useful points, but I did want to point out a couple of infelicities. He gives a hybrid definition of originalism, both in terms of the nature of constitutional meaning—unchanging—but also in terms of our access to that meaning—that decisions […]
Intellectual humility from Justice Scalia
Chris Green
Justice Scalia's short concurrence in the human-gene-patentability case this morning strikes an amusing note of humilty about the Justice's ability to understand "the fine details of molecular biology" in the Court's opinion, saying of them, "I am unable to affirm those details on my own knowledge or even my own belief." While some have mocked […]
More on Weiner on Restraint and Originalism
Chris Green
Mike notes below Greg Weiner's argument that originalism is in tension with judicial restraint. But as I explain here, I don't think that's the right picture. Originalism is a theory about what the Constitution is–to wit, that it is unchanging and fixed, as to important attributes, at the time constitutional provisions are adopted. But restraint […]
More on McBurney and Article IV
Chris Green
I had a couple of notes on McBurney v. Young, from the Supreme Court yesterday, which Mike mentions below. I did a short podcast on the case here; for my reaction to the argument, see here. The Supreme Court in McBurney at page 6 saw FOIA rights as political rights: "The state FOIA essentially […]
Originalism and judicial competence
Chris Green
Interesting exchange this morning between Josh Blackman and Paul Horwitz over whether originalism compels judges to decide questions about which they are incompetent. Josh compares historical-meaning questions to biochemistry, and Paul responds that there are methods of deferring to experts in the biochemistry case but not that of original meaning. I pipe in on Paul's […]
A couple of reactions to the Windsor and Hollingsworth oral arguments
Chris Green
I had a couple of Thursday-afternoon-quarterbacking reactions on the gay-marriage cases this week. First, some of the justices expressed skepticism yesterday at the Windsor oral argument about the coherence of enforce-but-don't-defend policies. Justice Scalia said at 21, "I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's […]
Upham on the history of racial-endogamy laws
Chris Green
New scholarship from David Upham: Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause. From the abstract: On March 26, 2013, on the first day of oral argument in Hollingsworth v. Perry, Justice Scalia challenged attorney Theodore Olson as to precisely when it became "unconstitutional to exclude homosexual couples from marriage?" Olson responded by […]
More on Eric Posner on Recess Appointments
Chris Green
Thought I'd chime in on Eric Posner's criticism of Noel Canning, which Mike Rappaport discusses below. A couple of thoughts related to my Originalism and Knowledge paper come to mind. First, Posner thinks, along with lots of early courts (see my paper at pp. 30-36), that courts should only invalidate other branches' actions on constitutional grounds […]
Originalism and Knowledge
Chris Green
I've gathered significantly longer versions of my serialized thoughts on originalism and judicial restraint (I, II, III, IV, V, VI) into an article on SSRN, now titled Originalism and Knowledge: How to Think About Indeterminacy, Activism, Vagueness, Executive Review, and Precedent. Here's the abstract: Constitutional theory is bedeviled by five persistent controversies: (1) what to do when historical evidence is difficult to […]
Upham on “Privileges and Immunities of Citizens” between 1857 and 1861
Chris Green
New scholarship from David Upham on the Article IV background to the Fourteenth Amendment: The Meanings of the 'Privileges and Immunities of Citizens' on the Eve of the Civil War. From the abstract: This article presents important, largely-overlooked evidence concerning the antebellum understanding of the Privileges and Immunities Clause of Article IV, with an eye toward […]