The Spending Power is Madisonian, not Hamiltonian: Part II (A Defense of the Madisonian Interpretation)
Mike Rappaport
In my first post on the Spending Power, I identified problems with the Hamilton interpretation. In this post, I defend the Madisonian interpretation. 4. If the Hamiltonian interpretation is mistaken, how can we reach the Madisonian interpretation? Michael Greve makes the common argument that the Madisonian interpretation has a serious redundancy. The language “to pay the debts and […]
The Spending Power is Madisonian, not Hamiltonian: Part I (Problems with the Hamiltonian Interpretation)
Mike Rappaport
In a recent post, I criticized Michael Greve's new book for adopting the Hamiltonian interpretation of the Spending Power rather than the Madisonian interpretation. In response, Michael argues that the Madisonian interpretation of the spending power that I recommend is inconsistent with the language of the Constitution. Thus, Michael concludes that we are stuck with the Hamiltonian interpretation […]
Jeremy Leaming: Justice Scalia, the Opportunistic Originalist
Michael Ramsey
At the ACS Blog, Jeremy Leaming: Justice Scalia, the Opportunistic Originalist (commenting on Scalia's apparent change-of-heart regarding Wickard v. Filburn). David Bernstein and Jonathan Adler have related thoughts at Volokh Conspiracy.
Jamal Greene: The Case for Original Intent
Michael Ramsey
Jamal Greene (Columbia University Law School) has posted The Case for Original Intent (George Washington Law Review, forthcoming) on SSRN. Here is the abstract: This essay, written for a symposium celebrating the centennial of Max Farrand's Records of the Federal Convention, seeks to situate the constitutional culture's heavy reliance on the Convention debates within an […]
John David Ohlendorf: Textualism and Obstacle Preemption
Michael Ramsey
John David Ohlendorf (Northwestern University School of Law) has posted Textualism and Obstacle Preemption on SSRN. Here is the abstract: Commentators, both on the bench and in the academy, have perceived an inconsistency between the Supreme Court’s trend, in recent decades, towards an increasingly formalist approach to statutory interpretation and the Court’s continued willingness to […]
Lash, Tushnet, Chapman, and McConnell on Justice Chase’s Opinion in Calder v. Bull
Mike Rappaport
The debate between Kurt Lash and Mark Tushnet involving Nathan Chapman and Michael McConnell’s interpretation of Samuel Chase’s opinion is an interesting one. While I hesitate to get involved, I do want to use this occasion to raise a question about how to interpret the paragraph from Calder v. Bull that Kurt Lash quotes. (I […]
Sandy Levinson and Our Good Constitution
Mike Rappaport
As Mike Ramsey noted, Sandy Levinson has once again written a piece, The Imbecilic Constitution, about how bad the U.S. Constitution is. Since I believe that the goodness of the Constitution is a powerful reason for following it, I strongly disagree. I have critiqued Sandy’s claim’s before. Sandy writes: But if one must choose the worst […]
Michael Franc on Senator Reid and the Origination Clause
Michael Ramsey
At NRO, Michael G. Franc: Is the Constitution a Republican Plot? It's one of the clearest, easiest-to-understand provisions in the Constitution. And Harry Reid's Senate flounts it routinely. The Origination Clause in Article I, Section 7 states: “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur […]
Is the Provision of Health Insurance Interstate Commerce Under the Original Meaning?
Mike Rappaport
A couple of days ago, Mike Ramsey argued that the provision of health insurance is interstate commerce. Ramsey writes: My insurer (in California) is Anthem Blue Cross, which claims to be the largest health insurer in California; it's a subsidiary of WellPoint, Inc., a company headquartered in Indianapolis with health insurance operations in at least 14 states. This […]
More on Insurance and Commerce
Michael Ramsey
In response to my post on Dan Coenen's "The Originalist Case for the Individual Mandate" and Larry Solum's comment that "one of the key questions for originalists [should] be whether insurance contracts constitute 'commerce,'" Brett Bellmore writes: I would have thought that the key question would, instead, be whether insurance contracts, (Let alone the decision […]