Andrei Marmor: Textualism in Context
Michael Ramsey
Andrei Marmor (USC- Gould School of Law) has posted Textualism in Context on SSRN. Here is the abstract: The main purpose of this essay is to show that the views about linguistic communication that make Textualism a plausible theory of what the law says, show why textualism is not nearly as helpful a theory of […]
The Federalist Society’s SCOTUS Report Blog
Michael Ramsey
Earlier I noted Joel Alicea's post at the Federalist Society's SCOTUS Report blog, but I neglected to mention that this blog is a newly-launched project (for "Supreme Court news and analysis") with very prominent originalist-oriented contributors including (in addition to Alicea) Richard Epstein, Richard Garnett, John McGinnis and Nicholas Rosenkranz (but surprisingly not that much originalist content in […]
Historians and Legal Scholars
Mike Rappaport
I have written various posts about the gulf between historians and legal scholars, especially as it relates to constitutional originalism. A recent piece I wrote allows me to illustrate my general arguments. Earlier in the month, I wrote a short piece for the New York Times Room for Debate feature where I argued that the national convention […]
The Reason Interview with Randy Barnett
Michael Ramsey
Available here.
Was Chief Justice Roberts’s Sebelius Opinion A Principled Exercise of Judicial Restraint or Merely Strategic?
Mike Rappaport
While criticisms of Chief Justice Roberts from the right wing of the legal blogosphere has generally been strong, some have argued that Roberts's decision might be defended as an exercise of judicial restraint. See, e.g. Orin Kerr, Joel Alicea, and Greg Weiner. Of course, that Roberts followed a type of judicial restraint in Sebelius does not make him […]
Room for Debate: Fixing the U.S. Constitution
Mike Rappaport
Over at the New York Times Room for Debate feature, the topic is: If the U.S. Constitution were being written today, what would you omit, add or clarify? My own contribution is to end Congress's monopoly on proposing constitutional amendments by fixing the convention method of amending the Constitution. It currently does not work, because state legislatures fear […]
More on Direct Taxes
Mike Rappaport
While Mike Ramsey links to some work by Jose Alicea, another discussion of whether the tax on not having health insurance is a direct tax is this one by Rob Natelson. Here is an excerpt: My book, The Original Constitution: What It Actually Said and Meant (2d ed., 2011), pp. 159-61, contains what may be […]
Originalism and the Legal Culture
Mike Rappaport
Mike Ramsey makes a strong argument that the legal culture influences the decisions of Supreme Court justices. Had Scalia and Kennedy helped to form a majority in Raich striking down the application of the federal statute to home grown medical marijuana, then the acceptance of significant limits on Congress’s powers would have been stronger and […]
My Posts on the Health Care Decision
Mike Rappaport
Over at the Liberty Law Blog, I have three posts on the Health Care Decision. Since they do not directly address issues of originalism, I have not posted them here. But for those who are interested, here they are: A Disaster of Monumental Proportions John Roberts's Decision Do Liberals Depart from the Party Line? I […]
Preliminary Thoughts on Arizona v. United States
Mike Rappaport
I have not a chance to fully digest the Supreme Court’s new decision in Arizona v. US, which held that three of the four challenged Arizona provisions were preempted by federal law. But I do have some initial reactions. 1. The line up of the justices seems significant. The three conservatives dissented, but Chief […]