Eugene Volokh on Freedom of the Press
Michael Ramsey
At Volokh Conspiracy, Eugene Volokh: Freedom for the Press — Protection for an Industry/Profession, or for All Users of a Technology? And a follow-up: Freedom of the Press as Protecting All Users of Mass Communications Technology — Responding to the Redundancy Objection. Professor Volokh is quite simply the leading modern scholar of the original meaning […]
The New Filibuster Rule
Mike Rappaport
The Democrats have passed a new rule that prevents the filibuster from being used to block confirmation votes for all presidential nominations, except Supreme Court Justices. In passing this rule, the Democrats used the Constitution or Nuclear Option to change the rules. The Senate rules require 67 votes to end a filibuster of a change in the Senate […]
Berman and Toh on the New and Old Originalism: Part I – The New Originalism
Recently, Mitch Berman and Kevin Toh have published an article entitled “On What Distinguishes New Originalism from Old: A Jurisprudential Take.” While I don’t know Toh’s work, Berman is a well respected scholar who is a critic of originalism, having penned a widely read article entitled “Originalism is Bunk.” I like Mitch, but I have serious concerns […]
Kurt Lash: Stare Decisis and the Role of Normative Theory
Michael Ramsey
Kurt T. Lash (University of Illinois College of Law) has posted The Cost of Judicial Error: Stare Decisis and the Role of Normative Theory (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract: Before a justice on the Supreme Court applies stare decisis in a constitutional case, they must first determine whether the […]
The End of Marsh v. Chambers?
Michael Ramsey
At SCOTUSBlog, Lyle Denniston on the oral argument in Town of Greece v. Galloway: Marsh's Demise? Or Its Renewal? From the introduction: If Justice Anthony M. Kennedy was serious that history might not be enough to justify prayers to open government meetings, the Supreme Court will have to set off on a deeply challenging search for a […]
Fordham Law Review Symposium on Originalism
Michael Ramsey
The Fordham Law Review is out with its symposium issue on originalism. We have noted many of these contributions here already, but they are especially impressive presented together. (Thanks to organizer Saul Cornell for the pointer). Editors' Foreword Originalism: A Critical Introduction, by Keith E. Whittington The Gravitational Force of Originalism, by Randy E. Barnett […]
Andrew Hyman on Non-Originalists
Michael Ramsey
Andrew Hyman comments: Per the discussion amongst Mike Rappaport, Ed Whelan, et al. about whether non-originalists are “lying” about the Constitution…. Suppose a judge says that she is applying the Constitution, while openly rejecting the original meaning of an Article V amendment (e.g. the Thirteenth). It then makes sense to ask whether the judge is […]
Gordon Wood on History and Originalism
Mike Rappaport
Will Baude writes about Gordon Wood’s views on originalism. He quotes Wood as stating: [I]t’s impossible for jurists, law professors, and Supreme Court justices — or judges anywhere — to really use history. It simply would not work. Judges have to invent another kind of history: we call it “law office history,” or “history lite.” It’s a necessary fiction, […]
Whelan on McGinnis and Rappaport’s Originalism and the Good Constitution: Part II — Precedent
(This post is written jointly by John McGinnis and Mike Rappaport) Ed Whalen objects to the treatment of precedent in our book Originalism and the Good Constitution. First, he questions our conclusion that Article III’s grant of judicial power provides authority for judges to apply precedent rules in constitutional decisionmaking. While he does not dispute our evidence that at […]
Whelan on McGinnis and Rappaport’s Originalism and the Good Constitution: Part I — The Normative Justification
Mike Rappaport
(This post is written jointly by John McGinnis and Mike Rappaport) Ed Whelan has read our book and is kind enough to describe it as “an impressive work, rich with interesting and intelligent arguments.” And he writes, “Their book will surely play a prominent role in the ongoing debate over originalism.” Ed does, however, offer some criticisms in his […]