Andrew McCarthy versus Rand Paul on Executive Detention
Michael Ramsey
At NRO, Andy McCarthy goes after Senator Rand Paul, to some extent on originalist grounds, on the constitutionality of the National Defense Authorization Act (NDAA) recently passed by the Senate. Senator Paul responds here, and comes off best, in my view. The issue is the President’s ability to detain without trial U.S. citizens suspected of supporting […]
Religious Originalism
Mike Rappaport
The ever interesting Ken Kersch has a post on the originalism of Straussians, evangelical Christians, and natural law Catholics. He is right — most originalist law professors probably don't know much about this. Of course, it is not entirely clear whether these versions represent originalism in the way that most law professor originalists understand it.
Andrew Koppelman and the “Crisis” of Originalism
Mike Rappaport
Andy Koppelman has an interesting post on originalism. Here is an excerpt: Originalists do not think that their field is in crisis. They should. They are now fragmented on multiple methodological questions. Is the object of inquiry the original intentions of the drafters of the Constitution, the original semantic meaning of the language, or its […]
Balkin’s Living Originalism
Mike Rappaport
Jack Balkin has announced on his blog that his new book, Living Originalism, from Harvard University Press, is now out. Jack's book is an incredible accomplishment. Jack develops an originalist theory of constitutional interpretation that he then attempts to reconcile with living constitutionalism. It is hard to square a circle, but Jack does an admirable […]
More from Ed Whelan on Originalism and Sex Discrimination
Michael Ramsey
At NRO, Ed Whelen continues his detailed and thoughtful commentary on Originalism and Sex Discrimination by Steven Calabresi and Julia Rickert (parts 3 and 4 here and here).
Originalism and the Confrontation Clause
Mike Rappaport
David Savage discusses Justice Scalia's views on the original meaning of the Sixth Amendment, which have led the Court to be more protective of the rights of criminal defendants. This is another example of how originalism does not have a uniform political valence. It can support conservative, liberal, or libertarian results. The same is true […]
Public Pensions and the Contract Clause
Mike Rappaport
Mike posts on this immediately below. Here is an issue where conservative and libertarian living constitutionalists might weigh in. Given the corrupt bargains made between the politicians and the public employee labor unions, one might conclude that these bargains should not be respected. (One extreme example is the large retroactive pension increases that Gray Davis […]
Structural Protections for Federalism
Mike Rappaport
Mike Ramsey argues that, without structural protections, federalism is unlikely to be an important force and that the Supreme Court cannot be relied upon to generally enforce federalism. I agree. He writes: The difficulty for federalism is the Constitution's lack of corresponding structural protections for the states. The enumerated powers design and the Tenth Amendment […]
The Original Meaning of the Equal Protection Clause
Mike Rappaport
As noted by Mike Ramsey, David Gans blogs about a new paper he has written that appears to offer an interpretation of the original meaning of the Equal Protection Clause. While I have only skimmed the paper, I don't believe it can be satisfactory as it is. In recent years, a different understanding of the […]
Originalism in the Harvard Law Review
Michael Ramsey
Thanks to Michael Perry for this pointer: In his extremely interesting Foreword to the Supreme Court issue (November) of the Harvard Law Review [avaliable here], Dan Kahan has some things to say about originalism (at 51-57). But I recommend that you not read those pages in isolation from the entire piece–which, again, is extremely interesting.