More on the Absurdity Rule: Amar, Scalia and Garner
Mike Rappaport
Over at the Democracy Blog, Akhil Amar reviews Justice Scalia and Bryan Garner’s book on Reading Law. Amar argues that Scalia and Garner adopt too strong a textualism, criticizes them for misreading William Blackstone’s absurdity canon, and argues that the Vice President cannot preside at his own impeachment trial. As readers may remember, I myself have argued […]
Daniel Smyth on the Contraception Mandate
Michael Ramsey
At American Thinker, Daniel Smyth: O Hobby Lobby, Art Thou a Religious Employer? (continuing arguments from this earlier post: Got Religion? The HHS' Mandate and the Founders' "Religious" Employers). (Note: for SCOTUSblog's background on the Hobby Lobby litigation see here and here).
Why a Majority of the Senate Can Change the Filibuster Rule
Mike Rappaport
Recently, Mike Ramsey discussed the letter of a host of distinguished scholars arguing that the Constitution requires that a majority of each house have the power to change its rules (at least on the first day of the legislative session). Therefore, the Constitution requires that a majority of the Senate be able to modify or eliminate the filibuster rule […]
Sean Wilson, The Flexible Constitution
Mike Rappaport
This is a new philosophically oriented book on constitutional interpretation, including a critique of originalism. From the Amazon description: This is an ambitious work on constitutional theory. Influenced by the views of Ludwig Wittgenstein, Sean Wilson tackles the problem of how a judge can obey a document written in ordinary, flexible language. He argues that […]
2013 and the Probable Death of Judicial Restraint
Michael Ramsey
2012 was a good year for judicial restraint. In NFIB v. Sebelius, the Supreme Court declined to invalidate a major piece of federal legislation – in large part, one may speculate, because Chief Justice Roberts hesitated to cast the Court in such an intrusive role. Moreover, in the run-up to the Sebelius decision, an array […]
Louis Michael Seidman’s Judicial Review without the Constitution
Michael Ramsey
In the New York Times, Louis Michael Seidman (Georgetown Law) has a provocative op-ed Let's Give Up on the Constitution. From the introduction: Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what […]
What If Bork had made it to the Supreme Court?
Mike Rappaport
Various commentators have discussed what the constitutional world might look like now if Judge Bork had been confirmed as a Supreme Court Justice. Jack Balkin writes: Despite Bork's defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more. I rarely agree with Thomas's views, […]
The Interpretation-Construction Distinction and Original Methods Originalism
Mike Rappaport
Over at the Legal Theory Blog, Larry Solum has a Legal Theory Lexicon post on The Interpretation-Construction Distinction. The post is an excellent one and Larry has certainly done much to develop this distinction. Larry does not mention, however, that there have been significant criticisms made of the distinction. In this article, which I wrote […]
Judge Robert Bork: Pathbreaker
I was very sad to hear of Judge Bork’s passing. I had not really known the Judge well, meeting him only over a lunch that he bought for me. He taught one class while I was at law school, and it was one of my worst academic mistakes not to take it. That particular class […]
More on Why Lincoln Signed the 13th Amendment
Mike Rappaport
Recently, I speculated on why Abraham Lincoln had signed the 13th Amendment, and asked whether anyone knew the actual reason why. Seth Barrett Tillman writes in to suggest another possibility: that Lincoln was unaware of the Supreme Court's opinion (such as it was) in Hollingworth v Virginia [which appeared to hold that presentment to the President was unnecessary in […]