The Heritage Foundation’s Guide to the Constitution
Mike Rappaport
Today is Constitution Day, the 225th anniversary of the Philadelphia Convention's signing of the draft Constitution. The Constitution was then sent to the people of the states for ratification. (It is an interesting question whether the signing date should be the one that is celebrated as opposed to the day the 9th state ratified the […]
Amar on Freedom of Speech
Mike Rappaport
Over at the Volokh Conspiracy, Akhil Amar recently had a long post on freedom of speech. Akhil takes issue with the post by Richard Posner that had criticized Scalia and Garner for not following the narrow Blackstonian understanding of freedom of the press as the original meaning. Readers will remember that I had criticized Posner […]
Posner on Scalia and Garner’s Reading Law III: Are Judges up to the Job of History?
Mike Rappaport
While Judge Posner’s review of the Scalia/Garner book has received a great deal of attention, my posts have focused on issues different than other posts have. So I plan to continue this series for a little while longer. Posner next criticizes originalism based on the problems that arise from relying on history: The decisive objection […]
Randy Barnett: The Mirage of Progressive Originalism (UPDATED)
Michael Ramsey
In the Wall Street Journal, Randy Barnett reviews Akhil Amar's new book America's Unwritten Constitution: The Precedents and Principles We Live By, under the title The Mirage of Progressive Originalism: A new theory tries — and fails — to unite leftist politics with constitutional fidelity. UPDATE: At Volokh Conspiracy, Akhil Amar will be guest-blogging about […]
Ed Whelan is Relentless
Michael Ramsey
Ed Whelan has two further posts (here and here) criticizing Judge Posner's review of the new Scalia/Garner book (among other things calling the review "laughably incompetent"). His series of five posts are collected together here. UPDATE: At Concurring Opinions, Kyle Graham reveals Recent Unsent E-Mails from Antonin Scalia to Richard Posner, as Retrieved from Justice […]
David Gans & Adam Winkler on Fisher v. University of Texas
Michael Ramsey
SCOTUSBlog is hosting a symposium on Fisher v. University of Texas, the affirmative action case coming to the Supreme Court next term; most of the contributions so far have little to say about original meaning, with this exception — David Gans & Adam Winkler: Affirmative Action Is Consistent with Original Meaning. UPDATE: Ilya Somin comments […]
Ronald Dworkin on the Supreme Court’s Health Care Decision
Mike Rappaport
Ronald Dworkin has published a New York Review of Book Essay on the Supreme Court’s health care decision. The essay has all of the characteristics of the typical Dworkin NY Review essay: it stakes out the liberal position, argues for it with power and verve, but in the end is often to me unpersuasive. Dworkin spends some […]
Posner on Scalia and Garner’s Reading Law II: Originalism and Freedom of Speech
Mike Rappaport
Continuing my commentary on Judge Posner's critique of Scalia and Garner, I now move to Posner’s discussion of Scalia, originalism, and freedom of speech: So, in a preemptive defense against accusations that textual originalism is political, the book gives examples of liberal decisions that Scalia has written or joined . . . In United States […]
Posner on Scalia and Garner’s Reading Law I: Textualism and Conservatism
Mike Rappaport
Richard Posner’s review of Antonin Scalia and Bryan Garner’s new book is peculiar. There is no other way to see it as other than a hatchet job – an attempt to attack the book, without balance, from every possible direction. As with most hatchet jobs, it reflects as poorly on its author as on its […]
Miller v. Alabama: Justice Thomas’s Originalist Dissent
Mike Rappaport
In my last post on Miller v. Alabama, I discussed the majority opinion’s use of a common law constitutionalism approach to implementing the cruel and unusual requirement. The approach seems constrained on its face, but in fact turns out not to be. In this post, I want to explore Justice Thomas’s originalist dissent and his use of […]