Gorsuch and the Sense-Reference Distinction
Chris Green
Justice Gorsuch's opinion for the Court today in Wisconsin Central Ltd. v. United States has a nice little passage at the end distinguishing between meaning and application: This hardly leaves us, as the dissent worries, “trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930’s.” … While […]
Timbs and the Privileges or Immunities Clause
Chris Green
Yesterday the Supreme Court granted certiorari in Timbs v. Indiana, a case asking "[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment." Unlike the Court's last incorporation case, McDonald v. Chicago, the petitioners did not separate out the Fourteenth Amendment's clauses in the question presented, so the Court's […]
The President, the First and Fourteenth Amendments, and the Take-Care Clause
Chris Green
Recent cases at the Supreme Court, the Ninth Circuit, and the Southern District of New York all pose an important issue that could be clarified with more attention to the Take-Care Clause of Article II. Trump v. Hawaii, the travel-ban case argued at the Supreme Court last month, featured an Establishment Clause issue added by […]
Twelve Problems with Substantive Due Process
Chris Green
I have posted Twelve Problems with Substantive Due Process, part of a symposium at Georgetown last spring, to SSRN. Here is the abstract: I present twelve quick problems for the idea that “without due process of law” in the Fifth or Fourteenth Amendments can be tolerably paraphrased as “unreasonably”: (1) Textually, Magna Charta and its […]
The Fourteenth Amendment and Masterpiece Cakeshop
Chris Green
David Upham and I, following up on our amicus brief in the case, have posted an essay at Public Discourse: The Fourteenth Amendment and Masterpiece Cakeshop: Equal Citizenship, our Inclusive Republic, and Anglo-American Common Law. Our summary: "The government cannot impose creedal and exclusionary limits on occupational freedom by compelling particular citizens to provide goods and […]
The Missing Fourteenth Amendment in Trinity Lutheran
Chris Green
It is striking that in Monday's Trinity Lutheran v. Comer, the Court and the concurrences failed even to mention the Amendment at stake: the Fourteenth Amendment, not the First. The Court left out even a nod to Cantwell v. Connecticut, which held that the Fourteenth Amendment's Due Process Clause incorporated the Free Exercise Clause against states, […]
TerBeek, Theories, Movements, and Direction of Fit
Chris Green
Calvin TerBeek's post on the supposed origins of originalism, which, as Mike Ramsey noted yesterday, is "interesting, challenging, and scholarly," included one fascinating side comment that I thought deserved unpacking. After referring to Attorney General Meese's July 9, 1985 speech as the point at which, TerBeek says, "self-conscious originalism [was] unveiled as a theory/movement," TerBeek […]
The Privileges or Immunities Clause and 1523, Part II: Freestanding Stigmatic Injury?
Chris Green
Yesterday I noted how Reconstruction history complicates one of the arguments against Mississippi’s House Bill 1523: the idea that it gives a remedy to only one group of citizens, not everyone. Today I consider another of the arguments against the bill: that because of the context in which the bill was discussed and then passed, […]
The Privileges or Immunities Clause and 1523, Part I: “Nondiscrimination for Me, but not for Thee”?
Chris Green
Rather than the Gorsuch confirmation and Hively opinion from the en banc Seventh Circuit, the big legal news in my home state this week was the Fifth Circuit oral argument in two consolidated cases concerning the constitutional challenges to Mississippi House Bill 1523, which became law a year ago, but has been embroiled in litigation […]
Posner on Originalism, Founders’ Beliefs, and Flag Burning
Chris Green
Judge Posner's separate opinion yesterday in the Hively v. Ivy Tech case at the Seventh Circuit has gotten significant attention for Posner's open embrace of taking some of the "burden of updating old statutes" away from Congress. I wanted to focus instead on two particularly bad mistakes Posner makes in dismissing originalist interpretation. First, Posner mischaracterizes originalism as requiring the adoption […]