Jack Balkin: The Roots of the Living Constitution
Michael Ramsey
Jack M. Balkin (Yale Law School) has posted The Roots of the Living Constitution (Boston Univ. Law Review, forthcoming) on SSRN. Here is the abstract: This essay discusses David Strauss's The Living Constitution (2010), comparing his theory of common law constitutionalism with the account of living constitutionalism featured in my 2011 book, Living Originalism. Strauss’s short […]
Correcting “Plenary Power” Misconceptions in Arizona v. United States—The Founding Generation’s and Federal-State Immigration Powers
Patrick Charles
In response to the posts on immigration by Mike Ramsey and myself (Mike Rappaport), Patrick Charles is submitting a guest post. Some of Patrick's other works are available here. In two posts on Arizona v. United States, Michael Ramsey and Michael Rappaport provided some interesting commentary on federal-state immigration powers. Ramsey, who posted first, […]
Is There a Power to Regulate Immigration? Some Preliminary Thoughts
Mike Rappaport
Mike Ramsey has a post discussing Congress power to regulate immigration under the original meaning of the Constitution. I largely agree with Mike, but would like to develop the argument a bit more. I should note that my argument here is not based on extensive research. Instead, it is my sense of the original meaning […]
The Greater Originalist: Scalia, Thomas, and the Legitimacy of Precedent
Mike Rappaport
As Mike Ramsey indicated, Tim Sandefur had a post up recently claiming that Justice Thomas is the greater originalist, not Justice Scalia (as Lee Strang had claimed). I don't necessarily disagree with Sandefur — I think that both Scalia and Thomas have their virtues. But I do strongly disagree with one aspect of Sandefur's post […]
Greve on Originalism and Chief Justice Marshall
Mike Rappaport
Over at the Liberty Law Blog, my co-blogger, Michael Greve, has criticized Mike Ramsey’s and Clarence Thomas’s view of preemption. (Given the numerous people named Michael in this post, I will refer to people by their last names.) Ramsey has respond on his own here. But Greve has also criticized the Originalism Blog, saying: […]
Originalism and Generational Change
Mike Rappaport
Recently, we have linked to a number of legal thinkers who might be described as conservative nonoriginalists — Charles Fried, Harvie Wilkinson, and perhaps Justice Sam Alito. They appear to have differing philosophical viewpoints — a certain kind of deontology, pragmatism, and Burkianism — but all seem to reject originalism as the primary basis for […]
Motivated Reasoning and Originalism
Mike Rappaport
Over at the Legal Theory Blog, Larry Solum links to this new paper by Stephen Siegel. The article argues that the original meaning of Article III, Section 2 of the Constitution, which mandates that “[t]he trial of all crimes, except in cases of impeachment, shall be by jury,” does not permit defendants to waive their […]
Einer Elhauge on Early Examples of “Mandates” (and, Why Everyone Should Read Blogs)
Michael Ramsey
In The New Republic, Professor Einer Elhauge (Harvard Law School) argues that the mandate that all persons buy health insurance has precedents from the founding era: a 1790 requirement that ship owners buy medical insurance for their seamen, a 1792 requirement that all able-bodied men buy firearms, and a requirement that "seamen buy hospital insurance […]
The Priority of the Constitution over Federal Statutes
Mike Rappaport
In my prior post, I described Jonathan Mitchell’s analysis of precedent, which he attempts to derive from the text of the Supremacy Clause. Here, I want to draw out one implication of his analysis: one that concerns whether the Constitution takes priority over federal statutes. A key premise for Mitchell is that neither the Supremacy […]
Jonathan Mitchell on Stare Decisis and Constitutional Text
Mike Rappaport
Jonathan Mitchell’s recent article on Stare Decisis and Constitutional Text has received some attention. See here for the article’s abstract and here for a short post on it. While I have not studied the article carefully, I have digested its basic argument. Mitchell argues that the Supremacy Clause only establishes that the Constitution, federal statutes, […]