Emily Sherwin: The Importance of The Gap
Michael Ramsey
Emily L. Sherwin (Cornell University – Law School) has posted The Importance of The Gap on SSRN. Here is the abstract: One of the central dilemmas of law is what Larry Alexander has called "the gap:" general, determinate rules have significant benefits from the forward-looking perspective of a lawmaker, but generate outcomes that […]
Baude on Tillman on the Constitution’s Provisions Regarding Officers
Mike Rappaport
One of Justice Scalia's primary influences on constitutional law and theory has been the growth of originalist textualism – the view that takes close textual readings of the Constitution seriously and draws important consequences for constitutional law from the text rather than someone’s view of what is normatively desirable. One of the people who has […]
Toobin on Justice Thomas’s Alleged Arrogance
Mike Rappaport
While I was on vacation, Jeffrey Toobin published a hit piece on Clarence Thomas in the New Yorker entitled “Clarence Thomas Has His Own Constitution.” Sadly, the piece is filled with problematic criticisms of the justice. Happily, the piece starts with a bit of a defense of Thomas against criticisms. While many people criticize Thomas as […]
North Carolina Law Review Symposium on Magna Carta
Michael Ramsey
The North Carolina Law Review has published papers from this symposium: Celebrating 800 Years of Magna Carta. They are: Magna Carta: The First Eight Hundred Years, by Alfred Brophy, William P. Marhsal & John V. Orth (94 N.C. L. Rev. 1409 (2016)) Charter Constitutionalism: The Myth of Edward Coke and the Virginia Charter, by Mary Sarah […]
Other Advisory Acts That Are Constitutional: The Legislative Veto and the White House Staff
Mike Rappaport
In a previous post, I argued that a national referendum on some important issue, such as whether the U.S. should withdraw from NATO or the UN, would probably be constitutional so long as it was nonbinding. That it was technically nonbinding would not prevent the relevant decisionmaker — say the President — from choosing to follow […]
The Improper Comments of Ruth Bader Ginsburg
Mike Rappaport
Supreme Court Justice Ruth Bader Ginsburg is now 83 years old. One often hears it said that she ought to step down. By now, Ginsburg has a set response to this criticism: She says that she is not the only old justice. She notes that Kennedy is about to turn 80 and Breyer is going […]
Josh Blackman on Judge Posner and the Constitution
Michael Ramsey
Josh Blackman: Judge Posner Apologizes For Statements He Made Many Times Before About Constitution. He notes: Last week, Judge Posner caused quite an uproar with his Slate column suggesting that studying the Constitution was a pointless exercise. … In a follow-up column, Posner offers this apology: Some of my contributions this year have drawn an unusual […]
National Referenda and the U.S. Constitution
Mike Rappaport
One interesting aspect of the Brexit decision was that it involved a legally nonbinding referendum. The UK Parliament was not legally bound to follow the result, but nearly everyone accepts the result, with a statement like, the people have spoken and we have to follow it. I think part of the reason for this is […]
Evan Bernick on Concealed Carry and Originalism
Michael Ramsey
At Huffington Post, Evan Bernick has an outstanding and insightful addition to the conversation on Peruta v. San Diego, originalism, and concealed carry: Against Narrow and Hidebound Originalism: On Peruta v. San Diego and the Right to Armed Self-Defense. An excerpt: Conservative and libertarian originalists might be inclined to praise the majority’s methodology, even if they […]
Originalism and the Second Amendment
Mike Rappaport
I thought I would weigh in on the dispute between Mike Ramsey and Chris Green on originalist theory and the Second Amendment. Ramsey writes: "Suppose that it's right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right. Is Professor Dorf suggesting that they nonetheless could […]