Originalism on the Web
Michael Ramsey
At Public Discourse, Gregory J. Sullivan: Originalism and Judicial Restraint (commenting on Judge Wilkinson's treatment of originalism in Cosmic Constitutional Theory). Sullivan's central point: "Originalism must guard against an overconfident reliance on history. Restraint and judicial caution are needed in an age of judicial overreaching."
Frank B. Cross: The Practical Meaning of Originalism
Michael Ramsey
Frank B. Cross (University of Texas) has posted The Practical Meaning of Originalism on Bepress. Here is the abstract: Originalism may be the most commonly accepted practice of constitutional interpretation, and it is certainly the most widely discussed. However, most of the analysis of the method is at a purely theoretical level and largely ignores […]
Geoffrey Schotter: A Remedy for the Court’s Originalist Fixation
Michael Ramsey
Geoffrey Schotter has posted Diachronic Constitutionalism: A Remedy for the Court's Originalist Fixation (Case Western Reserve Law Review, Vol. 60, No. 4, p. 1241, 2010) on SSRN. Here is the abstract: The article focuses on the interpretation of constitutional provisions by judges by the original meaning of the law. It presents the views of professor […]
Wesley J. Campbell: Commandeering and Constitutional Change
Michael Ramsey
Wesley J. Campbell (Stanford Law School JD '11) has posted Commandeering and Constitutional Change on SSRN. Here is the abstract: Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion […]
Originalism in the Blogs: Taney and Originalism
Michael Ramsey
At Legal History Blog, Albert Brophy and Ted White have been discussing Professor White’s classic book The Marshall Court and Cultural Change, 1815-1836 – see here and here. (Thanks to Tomiko Brown-Nagin at Legal History Blog for posting the exchange). In the comments “Shag from Brookline” asks this interesting question: Does the Taney Court's Charles […]
Lee J. Strang: The Most Faithful Originalist?
Michael Ramsey
Lee J. Strang (University of Toledo College of Law) has posted The Most Faithful Originalist?: Justice Thomas, Justice Scalia, and the Future of Originalism (University of Detroit Mercy Law Review, Vol. 88, 2011) on SSRN. Here is the abstract: This Symposium Essay argues that Justice Scalia, not Justice Thomas, is the more faithful originalist. First, […]
Philip Levitz: A Modern Fiduciary Theory of the Necessary & Proper Clause
Michael Ramsey
Philip Levitz (Yale Law School, JD '11) has posted A Modern Fiduciary Theory of the Necessary & Proper Clause on SSRN. Here is the abstract: This Article offers a new originalist account of the Necessary and Proper Clause, with important implications for the Supreme Court’s pending decision on the constitutionality of the Affordable Care Act’s […]
Jeffrey M. Schmitt: An Historical Reassessment of Full Faith and Credit
Michael Ramsey
Jeffrey M. Schmitt (Florida Coastal School of Law) has posted An Historical Reassessment of Full Faith and Credit on SSRN. Here is the abstract: The Defense of Marriage Act (“DOMA”) has generated a great deal of academic debate over Congress’s power under the Full Faith and Credit Clause. Although modern scholars have advanced a range […]
Grant Huscroft: Vagueness, Finiteness, and the Limits of Interpretation and Construction
Michael Ramsey
Grant Huscroft (University of Western Ontario – Faculty of Law) has posted Vagueness, Finiteness, and the Limits of Interpretation and Construction (THE CHALLENGE OF ORIGINALISM: THEORIES OF CONSTITUTIONAL INTERPRETATION, Grant Huscroft, Bradley W. Miller, eds., Cambridge University Press, 2011) on SSRN. Here is the abstract: Vaguely worded/underdeterminate constitutional rights guarantees are a standard problem in […]
Donald A. Dripps: Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment
Michael Ramsey
Donald A. Dripps (University of San Diego School of Law) has posted Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment (Mississippi Law Journal, Vol. 81, No. 3, p. 133, 2011) on SSRN. Here is the abstract: Granting for purposes of argument the general theoretical case for interpreting constitutional […]