Sheldon Novick: The Uncertain Meaning of ‘Citizen of the United States’
Michael Ramsey
Sheldon Novick (Vermont Law School) has posted Failures of Originalism: The Uncertain Meaning of 'Citizen of the United States' on SSRN. Here is the abstract: Originalist interpretation seeks a definite “public understanding” of Constitutional language at the time of its adoption. The method fails when applied to language that cannot be understood in this way. […]
Originalism in the Blogs
Michael Ramsey
Steve Greene: Plea Bargaining and originalism.
Tara A. Smith: ‘Original’ Meaning is Not Objective
Michael Ramsey
Tara A. Smith (University of Texas at Austin — Department of Philosophy) has posted Originalism's Misplaced Fidelity: 'Original' Meaning is Not Objective (Constitutional Commentary, Vol. 26, p. 1, Fall 2009) on SSRN. Here is the abstract: Public Understanding Originalism has enjoyed resurgent respect in the past few years, increasingly embraced by scholars from across the […]
Ronald K. L. Collins: The Speech & Press Clauses of the First Amendment
Michael Ramsey
Ronald K. L. Collins (University of Washington – School of Law) has posted The Speech & Press Clauses of the First Amendment (Delaware Lawyer, Vol. 29, No. 4, pp. 8-11, Winter 2011/2012) on SSRN. Here is the abstract: Examining the history leading to the adoption of the First Amendment sheds light on the speech and […]
William N. Eskridge Jr.: The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality
Michael Ramsey
William N. Eskridge Jr. (Yale Law School) has posted The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality (Stanford Law Review Online, Vol. 64, pp. 93-98, 2012) on SSRN. Here is the abstract: In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to […]
Joel Alicea on Originalism in Congress
Michael Ramsey
Joel Alicea (Harvard Law School) has posted Stare Decisis in an Originalist Congress (Harvard Journal of Law and Public Policy, Vol. 35, No. 2, 2012) on SSRN. Here is the abstract: With presidential candidates and members of Congress calling upon the political branches to reassert their role as constitutional interpreters, there is an urgent need […]
A Follow-Up on the Health Care Debate
Michael Ramsey
Randy Barnett has this post in response to various commentators' defenses of the health care law, which among other things makes this important point: … Justice Scalia’s concurring opinion in Raich in no way [binds] him to uphold the mandate.… Justice Scalia’s argument concerned only the meaning of the word “necessary” in the Necessary and Proper […]
Jeffrey A. Pojanowski: Statutes in Common Law Courts
Michael Ramsey
Jeffrey A. Pojanowski (Notre Dame Law School) has posted Statutes in Common Law Courts (Notre Dame Legal Studies Paper No. 12-55) on SSRN. Here is the abstract: The Supreme Court teaches that federal courts, unlike their counterparts in the states, are not general common law courts. Nevertheless, a perennial point of contention among federal-law scholars […]
John T. Valauri: Comstock, Originalism and the Necessary and Proper Clause
Michael Ramsey
John T. Valauri (Northern Kentucky University – Salmon P. Chase College of Law) has posted Comstock, Originalism and the Necessary and Proper Clause on SSRN. Here is the abstract: Constitutional law is plagued by meaning conflict at both the doctrinal and the theoretical levels. This article takes up two loci of such conflict and contest […]
Originalism on the Web
Michael Ramsey
Vikram David Amar: Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action. Among other insightful points, Professor Amar writes: Originalism in some form is a very attractive idea. Yet throughout the modern affirmative action cases over the last generation, the most conservative Justices […]