Reflections on the Gorsuch Hearings, Part II: High-Stakes Answers
Chris Green
Yesterday I noted one of my reactions to the Gorsuch hearings: that Judge Gorsuch is a man who takes promise-keeping and the rule of law very seriously indeed, and that this shows an important error in our forecast in Originalists Against Trump. My second thought about the Gorsuch hearings is (much) more technical: that stakes-sensitive epistemology […]
Reflections on the Gorsuch Hearings, Part I: Originalists Against Trump and Promise Keeping
Chris Green
As many readers will remember, I was among the initial signatories to the Originalists Against Trump statement released last October. In the interests of candor and humility when they are appropriate, it is worth reflecting on one of the statement’s empirical claims about the President: “We also understand the argument that Trump will nominate qualified judicial candidates […]
Why My Daughter Needs Originalism
Chris Green
Yesterday, Senator Amy Klobuchar asked Judge Gorsuch if women could be President, given that the Constitution repeatedly uses the word "he" or "his" to refer to the President. Gorsuch replied somewhat gruffly, "Of course, women can be president of the United States! I'm the father of two daughters and I hope one of them turns out […]
Constitutional Truthmakers & A Defense of the Loyal Denominator
Chris Green
I've just posted two new papers and a revision of an old one to SSRN. The new ones are Constitutional Truthmakers and Loyal Denominatorism and the Fourteenth Amendment: Normative Defense and Implications. The old one is Loyal Denominatorism and the Fourteenth Amendment: Contemporary Debate and Reconstruction History. The abstracts are long, so I'll put them after […]
Posner and Segall’s Evasion of the Sense-Reference Distinction
Chris Green
Judge Posner and Eric Segall have each recently replied (in a 4-page co-authored piece at the end of the collection here, and in a longer solo piece by Segall here) to Will Baude and Stephen Sachs's recent work on originalism (a 6-page co-authored piece in the same collection, Baude alone here, Sachs alone here and here, […]
Duly Convicted: The Thirteenth Amendment as Procedural Due Process
Chris Green
I have just posted a new article on SSRN, Duly Convicted: The Thirteenth Amendment as Procedural Due Process, which was part of Randy Barnett's excellent Chase symposium last fall for the 150th anniversary of the Thirteenth Amendment and will be forthcoming in the Georgetown Journal of Law and Public Policy. Here is the abstract: This paper argues […]
Fact-Sensitivity of the Constitutional Referent
Chris Green
Apropos of Mike Ramsey's post below and Will Baude's request that I call my office, I think I want to take Mike Dorf's side here. It is possible for everyone at the time of the Founding to agree about a constitutional outcome, but nonetheless to be wrong. Everyone at the time the Constitution was drafted (at least, […]
Bingham’s Lack of Precision on Due-Process Cases
Chris Green
Last month I noted how impressed I was by Jacob Howard's (procedural) recapitulation of earlier due-process cases in 1862. I particularly noted the clarity of Howard's explanations relative to those of John Bingham, who attempted in February 1866 to use the Fifth Amendment to support his implausible claim that his proposed amendment would simply enforce the […]
Can the Living Consitution Produce Brown?
Chris Green
Mike Ramsey comments below on Mike Dorf's latest run at the argumentum-ad-non-Brownum attack on originalism. It is not enough, Dorf insists, that originalism include stare decisis, so that it would not, even if adopted, imperil Brown. Originalists must, Dorf says, show how their theory acutally justifies Brown. As Dorf notes, originalists have done this at great […]
State-Constitutional Speaker-of-the-House Provisions
Chris Green
Mike Ramsey recently noted his hunch that state-constitutional analogues to the Speaker-of-the-House provision required that speakers of representative bodies be members. That inspired me to run through the 4562 pages of Thorpe's 1909 compilation of state constitutions (see here, here, here, here, here, here, and here to assemble your own) to see what might turn up. […]