Segall on the Meaning-Application Distinction
Chris Green
Eric Segall at Dorf on Law presents again an argument he has run many times before: the idea that acknowledging the distinction between meaning and application (or sense and reference, as I would put it) opens the door to exactly the same considerations that living constitutionalism would allow. He writes: Originalism may be part of […]
Tribes, Nations, States: Our Three Commerce Powers
Chris Green
I have posted Tribes, Nations, States: Our Three Commerce Powers to SSRN. The abstract: This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but […]
Congressional Self-Delegation in FOMB
Chris Green
The PROMESA case from last month, Financial Oversight and Management Board v. Aurelius Investment, unanimously turned back an Appointments Clause challenge to the composition of the board governing Puerto Rico’s bankruptcy. I mentioned earlier that Justice Breyer treated subsequent history in a much more originalism-friendly way than he had for the Court in Noel Canning. […]
Financial Oversight and Management Board v. Noel Canning
Chris Green
Justice Breyer’s opinion yesterday for the Court in Financial Oversight and Management Board v. Aurelius Investment, finding that certain bankruptcy-related officers in Puerto Rico are not “officers of the United States” under the Appointments Clause, made a few comments about the interpretive relevance of subsequent practice that strike a much more originalist tone than Breyer’s […]
The Oath Argument at Sea
Evan Bernick and Chris Green
Charles Barzun, famous in constitutional-theory circles for his attack on Baude-Sachs original-law originalism, takes aim in a post on Balkinization at the oath argument for originalism that one of us posted last week. That argument depends on our jointly-authored draft for its first part. There, we use contemporary and contingent social facts concerning constitutional practice—rather than the general nature of writtenness or “what […]
Is the Oath Argument for Originalism Circular?
Chris Green
Recently Josh Hammer and John Ehrett have responded to long-time non-originalist Adrian Vermeule’s Beyond Originalism by invoking the Article VI oath to support “this Constitution.” I have made such an argument myself (see here and here, and here, with Evan Bernick), as have Randy Barnett and Evan Bernick (see here), Justice Scalia’s teaching partner John […]
Delegation, Wilson, and Madison
Chris Green
Professors Julian Davis Mortenson and Nicholas Bagley recently made a big splash (over 1000 downloads in 2 weeks!) with their attack on the originalist merits of nondelegation doctrine, Delegation at the Founding. Ilan Wurman has given an initial response to some aspects of the paper, as has Will Foster just below, and there has been […]
Seven Problems with Antidiscrimination Due Process
Chris Green
I've posted Seven Problems with Antidiscrimination Due Process to SSRN. Here is the abstract: I explain seven problems with the view, suggested by Akhil Amar, Kurt Lash, and Ryan Williams, that the Fifth and Fourteenth Amendments’ ban on “depriv[ing] any person of life, liberty, or property without due process of law” entails freedom from the […]
What is Originalism? Is it a Good Idea?
Chris Green
My debate last week with Eric Segall is now on Youtube, in a much better format than we've had available for the last week. Let us know if you'd like us to present the same show in your town! My handout is here–I'd also be happy to debate anyone else who would like to offer […]
Our Bipartisan Due Process Clause
Chris Green
I have posted to SSRN Our Bipartisan Due Process Clause, prepared as part of the big IJ/Law & Liberty Center Fourteenth Amendment symposium at Scalia/Mason this Friday. Here is the abstract: What it meant to “deprive any person of life, liberty, or property without due process of law” was very well-known to the men who […]