A Few Thoughts on the Tillman Puzzles
Chris Green
Thought I'd weigh in a bit on the Tillman puzzles, which Mike Ramsey discussed here. On the civil/military and "office under the United States" issues, 14A/3 seems relevant. The oath-denying-Confederate-disqualification provision begins, "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, […]
The Contingency of Plainness
Chris Green
The Supreme Court's decision this morning in Henderson v. US, on the timing of plainness determinations under plain-error review, concerned an issue structurally analogous to one of the important issues in the judicial-restraint literature, and which John McGinnis's paper at the originalism conference last weekend discussed: whether the plainness of an error is to be assessed […]
Originalism and judicial restraint, part VI
Chris Green
(I, II, III, IV, V) My initial comments in part I framing this view of judicial restraint probably made it tolerably clear, but it is worth spelling out, because so many critics of forms of originalism seem not to recognize it, that originalism is not a theory that promises certainty about constitutional law based on the historical materials. Jeffrey […]
Originalism and judicial restraint, part V
Chris Green
(Parts I, II, III, IV) Does judicial restraint necessarily increase legislative and executive flexibility? We might think so; less judicial review seems to leave more room for other branches to operate. But my theory of judicial restraint—limiting judicial assertions about the Constitution to occasions when a court has knowledge, judged by the proper stakes-sensitive standard […]
Originalism and judicial restraint, part IV
Chris Green
(Previous installments: part I, part II, part III.) Part II mentioned Justice Jackson's famous concurrence in Youngstown Sheet and Tube v. Sawyer as an example of inappropriate (activismometer level 5) judicial activism, given the requirement that judicial assertions about the Constitution shouldbe backed with knowledge regarding the critical facts. Courts that are agnostic about those facts should […]
A Reply to Hyman on Equal Protection
Chris Green
Thanks to Andrew for his spirited criticism of my view of the Equal Protection Clause (contained in articles here and here). I am, however, unpersuaded. By way of background, my view is that the clause—"[N]or [shall any State] deny to any person within its jurisdiction the equal protection of the laws"—gives all persons within each […]
Originalism and judicial restraint, part III
Chris Green
The story so far (part I, part II): judicial assertions about the Constitution might be thought to be governed by a norm of knowledge that can be breached in two ways: by deliberate ignorance of relevant considerations (Level 1 on the activismometer, too low, as in O'Gorman & Young v. Hartford Fire Insurance (1931), explained below) […]
Hyman on Equal Protection
Chris Green
Andrew Hyman criticizes my literal-protection-based view of the Equal Protection Clause here. For my original articles, see here and here. I'll respond in due course.
Originalism and judicial restraint, part II
Chris Green
When last we left our hero, we had looked at two ideas from current philosophy of language and epistemology. "Knowledge," the central concern of epistemologists, constrains permissible assertion and supplies the goal of those in a position to speak to issues. Those who speak about the Constitution should stick to what they know, but also […]
Hyman on 27A incorporation
Chris Green
Andrew Hyman comments regarding my 27A post: In a recent blog post titled “27A Incorporation”, Chris Green asked: “If ‘privileges or immunities of citizens of the United States’ in the 14A just means ‘privileges given in the Constitution' … would a state pay increase given to legislators without an intervening election violate the Privileges or Immunities Clause?” […]