Originalism in the Blogs
Michael Ramsey
At Lawfare, Benjamin Kleinerman (Michigan State) reviews Eric Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic, with special attention to James Madison’s views on separation of powers. Posner and Vermeule are notable in that they are non-originalists (indeed, anti-originalists) whose views are more aligned with the political right than the political left. […]
Crosskey, Modern Originalism, and the Meese Justice Department
Mike Rappaport
Ken Kersch has some interesting posts on William Crosskey and his effects on modern originalism. See here and here. Crosskey is an extremely interesting scholar. For what it is worth, I believe his methodology represented a form of modern original public meaning analysis — employed far before anyone else usually associated with modern originalism was […]
Randy Barnett: Jack Balkin’s Interactive Theory of “Commerce”
Michael Ramsey
Randy E. Barnett (Georgetown University Law Center) has posted a revised version of Jack Balkin's Interaction Theory of "Commerce" (University of Illinois Law Review, forthcoming) on SSRN. Professor Barnett discusses the revisions and the broader issue the paper addresses at Volokh Conspiracy here. Here is the abstract: In his book, Living Originalism, Jack Balkin proposes what he calls […]
Originalism and Birthright Citizenship (Part 3)
Michael Ramsey
In previous posts (here and here) I argued that the Fourteenth Amendment guarantees birthright citizenship to children born in the United States of alien parents (except those having diplomatic immunity or otherwise beyond the legislative power of the United States). This conclusion follows from the Amendment’s text, which grants citizenship to all people “born … […]
Originalism on the Web
Mike Rappaport
Scalia and Thomas Disagree about Children and Free Speech. The article includes references to this blog, to Mike Ramsey, and to me.
Originalism and Birthright Citizenship (Part Two)
Michael Ramsey
Last week I outlined an originalist argument for the citizenship of children born in the United States to alien parents. This post considers leading arguments for the opposing view. (These can be found, among other places, in the writings of outstanding academic commentators such as John Eastman, Edward Erler and Matthew Spalding). I’ll address them […]
Originalism in the Blogs: Questioning the Public Debt
Michael Ramsey
Balkinization bloggers Jack Balkin (here), Gerard Magliocca (here) and Mark Tushnet (here and here) consider the emerging argument that Congress' possible refusal to raise the debt ceiling would violate the Constitution's public debt clause (section 4 of the Fourteenth Amendment). Garrett Epps launched the Section 4 argument here. Since there's not much case law on point, […]
More on That Poll
Mike Rappaport
Mike links to a poll purporting to get people's views about originalism versus the living Constitution approach. But as with all polls, it depends on how you ask the question. It seems (although I cannot confirm it) that the poll asked the following question: Should the Supreme Court base its rulings on what the Constitution […]
More on Thomas and Violent Video Games
Mike Rappaport
I agree with Mike Ramsey that Justice Thomas's dissent is not terribly persuasive in Brown v. Entertainment Merchants Association. But I have a different reason for my opinion. Justice Thomas does spend some time describing the legal regime at the time as to parental control over children (but not as to speech to children). But […]
Originalism at the Supreme Court: Violent Video Games and the First Amendment Rights of Minors
Michael Ramsey
Yesterday’s opinion in Brown v. Entertainment Merchants Association, with Justice Scalia writing for the majority and Justice Thomas in dissent, invalidated on First Amendment grounds California’s restrictions on selling or renting violent video games to minors without a parent’s permission. (SCOTUSblog’s analysis is here). Scalia’s opinion, though it has the snappiest lines, focuses mostly on […]