Mikolaj Barczentewicz: The Limits of Natural Law Originalism
Michael Ramsey
Mikolaj Barczentewicz (University of Oxford – University College) has posted The Limits of Natural Law Originalism on SSRN. Here is the abstract: In “Enduring Originalism,” Jeffrey Pojanowski and Kevin C. Walsh outline how originalism in constitutional interpretation can be grounded in modern natural law theory as developed by John Finnis. Their argument to that effect is […]
James Allan: Constitutional Interpretation, Democracy and Antonin Scalia
Michael Ramsey
James Allan (The University of Queensland – T.C. Beirne School of Law) has posted One of My Favourite Judges: Constitutional Interpretation, Democracy and Antonin Scalia (Br. J. Am. Leg. Studies 6(1) (2017)) on SSRN. Here is the abstract: This paper sets out why Antonin Scalia was a great judge. It looks at his approach to judging, […]
Andre LeDuc: The New Originalism and Its Critics
Michael Ramsey
Andre LeDuc (independent) has posted Making the Premises about Constitutional Meaning Express: The New Originalism and Its Critics (BYU Journal of Public Law No. 1, page 111, forthcoming) on SSRN. Here is the abstract: Perhaps the hottest front in the half-century-old debate over originalism turns on the introduction of semantics, pragmatics, and other techniques from […]
Peter Smith: Originalism and Level of Generality
Michael Ramsey
Peter J. Smith (George Washington University Law School) has posted Originalism and Level of Generality (Georgia Law Review, Vol. 51. 2017) on SSRN. Here is the abstract: Even if one concedes that the meaning of the Constitution today is its original meaning, at what level of generality should one seek that meaning? In considering whether […]
David Cohen and Eric Segall on Neil Gorsuch as the Court’s first originalist
Michael Ramsey
At Dorf on Law, David S. Cohen and Eric Segall: Will Neil Gorsuch Be the Court’s First Originalist? From the introduction: When claiming that Gorsuch is an originalist, most people liken him to Justice Scalia or Justice Thomas, two Justices who are also widely regarded as originalists. However, if Gorsuch is confirmed and consistently practices originalism […]
Stephen Gottlieb: Democracy Essential to the Legitimacy of Constitutional Interpretation
Michael Ramsey
Stephen E. Gottlieb (Albany Law School) has posted Democracy Essential to the Legitimacy of Constitutional Interpretation on SSRN. Here is the abstract: Contemporary risks to democracy sharpen the question about what use the Court should make about democratic thought, especially empirical thought. By contrast, the argument over originalism has largely eliminated democracy from constitutional interpretation, partly in […]
Harold Anthony Lloyd: Why Originalism Cannot Work
Michael Ramsey
Harold Anthony Lloyd (Wake Forest University School of Law) has posted Why Originalism Cannot Work: Lessons from Logic, Scripture, and Art on SSRN. Here is the abstract: Neil Gorsuch lauds judges who purport to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable […]
David Schwartz: Implied Powers, Capable Federalism, and the Limits of Enumerationism
Michael Ramsey
David S. Schwartz (University of Wisconsin Law School) has posted A Question Perpetually Arising: Implied Powers, Capable Federalism, and the Limits of Enumerationism on SSRN. Here is the abstract: The American constitutional order embodies a tension between two irreconcilable ideas. “Enumerationism” holds that federal powers are limited to those expressly enumerated in the Constitution, plus whatever […]
Caroline Mala Corbin: Justice Scalia, the Establishment Clause, and Christian Privilege
Michael Ramsey
Caroline Mala Corbin (University of Miami School of Law) has posted Justice Scalia, the Establishment Clause, and Christian Privilege (First Amendment Law Review, Vol. 15, 2017) on SSRN. Here is the abstract: Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is […]
Mark Tushnet on President Trump and the 25th Amendment
Michael Ramsey
At Balkinization, Mark Tushnet: The 25th Amendment Option: Law and Politics. On interpreting the 25th Amendment: [The 25th Amendment provides that when] the Vice President and a majority of the Cabinet declare that the President is "unable to discharge the powers and duties of his office," and send that declaration to Congress, the Vice President immediately […]