Mark Kende: Constitutional Pragmatism, the Supreme Court, and Democratic Revolution
Michael Ramsey
Mark Kende (Drake University Law School) has posted "Constitutional Pragmatism, the Supreme Court, and Democratic Revolution" (University of Denver Law Review, forthcoming) on SSRN. Here is the abstract: Constitutional pragmatism is under-theorized and frequently misconceived. Most constitutional interpretation discussions focus on originalism or some form of “living constitutionalism.” The irony is that the U.S. Supreme Court’s […]
Two Reviews of Adam Freedman’s The Naked Constitution
Michael Ramsey
In Stripping the Constitution, Justin Dyer (University of Missouri — Political Science) reviews Adam Freedman's The Naked Constitution: What the Founders Said and Why It Still Matters (Broadside Books, 2012). From the review: Freedman’s case for originalism is straightforward, and it rests on three premises: The Constitution is law, the law should be followed, and the meaning of the […]
Joseph R. Stromberg: The Fourth Amendment and Faulty Originalism
Mike Rappaport
Joseph R. Stromberg has posted an article titled "The Fourth Amendment and Faulty Originalism" on the Freeman's website. Find the article here.
Miguel Schor: Contextualizing the Debate between Originalism and the Living Constitution
Michael Ramsey
Miguel Schor (Drake University Law School) has posted "Foreword: Contextualizing the Debate between Originalism and the Living Constitution" (Drake Law Review, Vol. 59, pp. 961-72 (2011)) on SSRN. Here is the abstract: One of the most important contemporary constitutional debates is whether the meaning of the Constitution may evolve in light of current circumstances, or whether […]
Timothy J. Tracey: The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights
Michael Ramsey
Timothy J. Tracey (Ave Maria School of Law) has posted The Demise of Equal Access and a Return to the Early-American Understanding of Student Rights (University of Memphis Law Review, forthcoming) on SSRN. Here is the abstract: The U.S. Supreme Court killed off equal access in Christian Legal Society v. Martinez. A religious student group, said […]
Jeffrey Kaplan: Unfaithful to Textualism
Michael Ramsey
Jeffrey P. Kaplan (San Diego State University — Linguistics) has posted Unfaithful to Textualism on SSRN. Here is the abstract: Linguistic analysis is applied to the Second Amendment to the U.S. Constitution. This one-sentence amendment has a syntactic structure comprising an “absolute” (a non-tensed propositional modifier of a main clause) which conditions the speech act embodied in […]
Cass Sunstein: Does the Constitution Echo Republican Views?
Michael Ramsey
Cass R. Sunstein (Harvard Law School) has posted Does the Constitution Echo Republican Views? on Bloomberg.com's Opinion site. On affirmative action: Last week, the Supreme Court heard oral arguments involving the constitutionality of an affirmative-action policy at the University of Texas. Here is the great paradox: None of the conservative justices asked a single question […]
Josh Blackman: Five Lessons from the Health Care Cases
Michael Ramsey
Josh Blackman (South Texas College of Law) has posted "Five Lessons from the Health Care Cases" (Chapman Law Review, Vol. 16, 2013) on SSRN. Here is the abstract: In the blink of the jurisprudential eye, the Affordable Care Act went to the brink of unconstitutionality and back. Along that rapid journey, lawyers and scholars from […]
Adam White: Bork Won; Hadley Arkes: No He Didn’t
Michael Ramsey
For Commentary magazine, Adam J. White writes: Bork Won (on the 25th anniversary of Judge Bork's defeat by the Senate). At NRO, Ammon Simon asks Did Bork Win?, with a link in turn to Hadley Arkes: The Loss of Robert Bork. Professor Arkes writes in part: Other nominees to the Court have been defeated for confirmation, but none has […]
Adam Winkler: In Affirmative-Action Case, History of 14th Amendment Is Inconvenient
Michael Ramsey
At the Daily Beast, Adam Winkler: In Affirmative-Action Case, History of 14th Amendment Is Inconvenient (subtitled: "Justices Scalia and Thomas trumpet the values of constitutional originalism, but only when it suits their preferred outcome"). RELATED: At Forbes, Rick Ungar: The Supreme Court Is the Supremely Wrong Place To Address Affirmative Action.