Peter Bayer: Deontological Originalism
Michael Ramsey
Peter Bayer (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process' on SSRN. Here is an excerpt from the abstract: This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, […]
Was Justice Scalia an Old Originalist?
Mike Rappaport
One of the standard distinctions these days is between the old originalism and new originalism. While different people define the distinction a little bit differently, I define the old originalism as having two essential characteristics: using “original intent” to determine the original meaning of a provision and a belief that significantly constraining judges is essential […]
Justice Scalia and the Nondelegation Doctrine
Mike Rappaport
This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine. While I have only skimmed the piece, it appears to tell a story similar to the one that I would. Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s […]
The Legislative History of the Fourth Amendment: Unreasonable Searches and General Warrants
Mike Rappaport
The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause): The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, […]
Jeffrey M. Schmitt: A Historical Reassessment of Congress’s ‘Power to Dispose of’ the Public Lands
Michael Ramsey
Jeffrey M. Schmitt (University of Dayton – School of Law) has posted A Historical Reassessment of Congress's 'Power to Dispose of' the Public Lands (Harvard Environmental Law Review, forthcoming 2018) on SSRN. Here is the abstract: The Property Clause of the Constitution grants Congress the “Power to Dispose” of federal land. Congress uses this Clause […]
Carissa Byrne Hessick on Corpus Linguistics
Michael Ramsey
At Prawfsblawg, Carissa Byrne Hessick (UNC): Corpus Linguistics and Criminal Law. From the introduction: In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference. The panel promoted a new method for statutory interpretation: corpus linguistics. Among the panelists was Thomas Lee, a former law professor at BYU who now […]
The Original Meaning of the Fourth Amendment: What Does “the Place to Be Searched” Mean?
Mike Rappaport
Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject. The text of the Fourth Amendment is filled with significant interpretive questions. Let me start with an issue that grows out of the language of the second portion of the Amendment: The right of […]
Dorf and Solum on the Determinacy of Originalism
Mike Rappaport
Originalism continues to be debated among scholars. Serious work occurs in the academic journals but also in the blogs. If one is not reading the blogs, one simply misses a lot of what is important. Consider the following example. Recently, Michael Dorf, a thoughtful commentator on originalism, wrote a post that criticized originalism. The post […]
Joel Trachtman: Terminating Trade Agreements
Michael Ramsey
Joel P. Trachtman (Tufts University – The Fletcher School of Law and Diplomacy) has posted Terminating Trade Agreements: The Presidential Dormant Commerce Clause versus a Constitutional Gloss Half Empty on SSRN. Here is the abstract: The U.S. Constitution does not explicitly allocate authority to terminate treaties made pursuant to the Treaty Clause or as congressional-executive […]
Tyler Broker: Free Speech Originalism
Michael Ramsey
Tyler Broker (University of Arizona – James E. Rogers College of Law, JD) has posted Free Speech Originalism on SSRN. Here is the abstract: The “originalist” view of constitutional law is the view that in determining how constitutional language is applied, the judiciary functions best when adhering, without significant deviation, from the “original” meaning of […]