Richard Epstein on the Freedom of Speech
Mike Rappaport
Richard Epstein's new Liberty Forum Essay on the First Amendment is quite interesting and a little bit surprising. Richard, who is one of the most well known libertarians, criticizes two of the Supreme Court's most "libertarian" free speech cases — U.S. v. Stevens and Brown v. Entertainment Merchant Association. Still, Richard makes some strong, principled […]
Seth Barrett Tillman: Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle
Michael Ramsey
Seth Barrett Tillman (National University of Ireland, Maynooth – Faculty of Law) has posted Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle (Northwestern University Law Review Colloquy, Vol. 106, 2012) on SSRN. Here is the abstract: This is my opening statement in a 4-part exchange between Professor Teachout and me. The test of […]
Originalism in the Blogs: Damon Root on Justice Scalia and the Health Care Cases
Michael Ramsey
At Reason.com, Damon Root: Antonin Scalia’s ObamaCare Problem. RELATED: Randy Barnett: Understanding Justice Scalia's Concurring Opinion in Raich.
Bryan Frye: Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98
Mike Rappaport
Brian L. Frye (Hofstra University – School of Law) has posted Justice John Marshall Harlan: Lectures on Constitutional Law, 1897-98 on SSRN. Here is the abstract: A transcription of Justice John Marshall Harlan's lectures on constitutional law, delivered at Columbian University Law School in 1897 and 1898. I had a quick look at the lectures, which […]
Final Words on Tim Sandefur’s Substantive Due Process Paper
Mike Rappaport
Tim Sandefur has responded to my last post on his paper. Since these exchanges can only go on so long, I will keep my reply very brief. Tim draws a distinction between the expected applications of a provision and the principles that the language of a provision appears to incorporate (something like an original public […]
Nathan Chapman & Michael McConnell: Due Process as Separation of Powers
Mike Rappaport
Nathan S. Chapman (Stanford Constitutional Law Center) and Michael McConnell (Stanford Law School) have posted Due Process as Separation of Powers (forthcoming Yale Law Journal) on SSRN. Here is the abstract: From its conceptual origin in Magna Charta, due process of law has required that government can only deprive persons of rights pursuant to a […]
Noah Feldman on the Insanity of Originalism
Mike Rappaport
Mike Ramsey recently linked to Noah Feldman's short essay about the declining influence of the United States Constitution on the rest of the world. Mike noted that Feldman claimed that judicial review was somehow invented by John Marshall in Marbury v. Madison. While Mike criticizes Feldman, I would go further and say that scholars today generally recognize […]
The Tragedy of Nonoriginalism and Substantive Due Process
Mike Rappaport
The principal comments on Tim Sandefur's essay on substantive due process are in. From an originalist perspective, the comments by Ryan Williams and Gary Lawson are particularly instructive. Williams uncovers new evidence of the understandings of substantive due process at the time of the 14th Amendment's framing. Lawson relies on new evidence concerning the powers […]
A Response to Tim Sandefur’s Views on Substantive Due Process
Mike Rappaport
In a previous post, I reviewed Tim Sandefur’s Cato Unbound essay on substantive due process. I wrote: Tim’s piece is interesting, but his interpretation of the Constitution is too abstract for my tastes. I believe that the original meaning requires that one stay close to the original materials and only apply abstract principles if one […]
Two Reports on USD’s Originalism Conference
Mike Rappaport
As I previously noted, USD held its Third Annual Originalism Works in Progress Conference this past weekend. The Conference, funded by the Hugh and Hazel Darling Foundation, was a big success. Stanley Fish, writing on the New York Times webpage, says: Thirty years ago, originalism was dismissed as an outmoded interpretive methodology and stigmatized as […]