On “Of the Laws” and Gay Marriage
Chris Green
Andrew offers some interesting thoughts about the Equal Protection Clause and gay marriage. He and I had an exchange about a year ago about the Equal Protection Clause in general. That exchange was pretty detailed, and I won't rehash it in full. Suffice it to say that on my view of the Equal Protection Clause, […]
A Possible Anti-Daisy-Chain Purpose of an Inter-Session-Only Limitation on Recess Appointments
Chris Green
Justice Alito on Monday pressed an important question about the rationale for an inter-session limitation on the II/2/3 recess-appointment power: if the Framers had known that there would be lengthy intra-session breaks, wouldn't they have wanted the President to be able to fill vacancies then as well? [D]oes your argument depend on the fact that–on […]
More on Beard and Originalism
Chris Green
Via the Legal History Blog, I see that Adrian Vermeule is not the only one writing about the relationship of Charles Beard to originalism: so is R.B. Bernstein, who contributes "Charles A. Beard: Foe of Originalism" to a Beard symposium issue of American Political Thought. Alas, the article is behind a JSTOR paywall, and one I […]
More on the living tree
Chris Green
For more on the "Persons Case" and the "living tree" metaphor in Canadian constitutional law (discussed by Mike Ramsey just below and Linda Greenhouse here), see this chapter on the case by Bradley Miller, making a lot of kindred points to the ones Mike makes.
Linguistic Evolution of “He”
Chris Green
I thought I'd add a brief addendum to one of Mike Ramsey's responses to Erwin Chemerinsky, who claims that the use of "he" in the Constitution would limit the presidency to men if the Constitution's original meaning were binding. As Mike explains just below, historically male pronouns were used to refer to both men and […]
Peters on Constitutional Authority
Chris Green
Via Larry Solum, who calls the article "an important critique of the New Originalism," is a new article by Christopher J. Peters, What Lies Beneath: Interpretive Methodology, Constitutional Authority, and the Case of Originalism. The abstract: It is a remarkable fact of American constitutional practice that we cannot agree on a methodology of constitutional interpretation. What […]
Loyal Denominatorism and the Fourteenth Amendment
Chris Green
I've posted a new draft on SSRN defending a neglected view of the legitimacy of the Fourteenth Amendment: the idea that only loyal states represented in Congress should be included in the Article V denominator. Here's my abstract: The exclusion of Southern representatives from Congress from December 1865 to the summer of 1868 raises two problems for […]
Kurt Lash on Originalism and the Privileges or Immunities Clause
Chris Green
Kurt Lash comments here on the relevance of 1868 history for the interpretation of the Privileges or Immunities Clause. Kurt argues, If one takes an originalist approach to Fourteenth Amendment incorporation, the principle of non-establishment as a privilege or immunity of citizens of the United States emerged at the time of Reconstruction and was entrenched through […]
Is Clark v. Board of Directors Good Evidence of the Meaning of the Privileges or Immunities Clause?
Chris Green
Yesterday's Fisher v. University of Texas was a disappointment to those, like me, who hoped to see clash among the justices over the original history of the Fourteenth Amendment. Justice Thomas added a concurrence reaffirming his view that the Constitution requires colorblind admissions policies, but without engaging directly with critics who have pointed to congressional […]
Justice Scalia on Article VI
Chris Green
The very end of Justice Scalia's dissent this morning in AID v. Alliance for Open Society makes an interesting observation about the Constitution's claim of authority in Article VI. The Constitution does not demand that citizens in general accept its status as supreme law, but only office holders–those "assisting in the government's work." Citizens themselves […]