Lawrence B. Solum: The Interpretation-Construction Distinction
Michael Ramsey
Lawrence B. Solum (Georgetown Law) has posted The Interpretation-Construction Distinction (Constitutional Commentary, Vol. 27, pp. 95-118, 2010 ) on SSRN. Although not strictly speaking about originalism, this is a hugely important article for originalist theory, not to be missed. Here is the abstract: The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, […]
More on Originalism and Stern v. Marshall
Mike Rappaport
I agree with Mike Ramsey's analysis of the Stern case below. I would go further. Chief Justice Robert's approach was the same one he applied in the Free Enterprise Fund case. In both cases, he starts the analysis with the original meaning. He then carefully discusses precedents that conflict with that meaning. But he doesn't […]
Originalism at the Supreme Court: Today’s Opinion in Stern v. Marshall
Michael Ramsey
Today’s opinion in Stern v. Marshall (opinion here, analysis from Lyle Denniston at SCOTUSblog here) is important not just for bankruptcy lawyers and followers of the long-running legal saga of the now-deceased topless dancer Anna Nicole Smith. The Court, per Chief Justice Roberts, declined an invitation to wander further from the basic constitutional principle that […]
Originalism on the Web
Michael Ramsey
Zach Weissmueller: All the President’s Wars - How Foreign Policy Became One Man’s Prerogative. Self-promotion alert: this reason.tv production includes interviews with Gene Healy of the Cato Institute and me on (among other things) the original understanding of war power.
Originalism and Birthright Citizenship
Michael Ramsey
Last week I promised a longer discussion of originalism and birthright citizenship. Here's the first part. Do children born in the United States to non-citizen parents have an automatic right to U.S. citizenship? That’s the current practice, but it’s becoming a matter of controversy. Bills now pending in Congress would deny birthright citizenship unless […]
More on Congress’ Power to Implement Treaties
Michael Ramsey
Last week I noted the Supreme Court’s decision in Bond v. United States, which appeared to clear the way for a federalism-based challenge to Congress’ power to implement treaties. Today a new filing a different case, Golan v. Holder, puts that issue in front of the Supreme Court for the 2011 Term. Golan, which the […]
The Supreme Court on Federalism and the Treaty Power
Michael Ramsey
Over at Opinio Juris, Peter Spiro notes that the Court’s decision Thursday in Bond v. United States may clear the way for revisiting Missouri v. Holland. Holland is the 1920 case that held Congress could legislate to implement a treaty even with respect to subjects not directly included within Congress’ Article I, Section 8 powers. […]
Comment: Tim Pawlenty on Birthright Citizenship
Michael Ramsey
Among the many subjects covered at the Republican presidential debate on Monday, the following from former Minnesota governor Tim Pawlenty caught my originalist ear: PAWLENTY: … And, by the way, this issue of birthright citizenship again brings up the importance of appointing conservative justices. That result is because a U.S. Supreme Court determined that that […]
Note to Readers: Transition
Michael Ramsey
At the invitation of Professor Rappaport, I’ll be managing our daily posts for a while. Professor Rappaport will be shifting his focus to developing other aspects of the blog. As an introduction, like Professor Rappaport I’m a law professor at the University of San Diego Law School with an interest in originalist scholarship, and I’m […]
Discipline and Method
Mike Rappaport
Barry Friedman (New York University School of Law) has posted Discipline and Method: The Making of the Will of the People on SSRN. Here is the abstract: Despite the oft-noted move toward multi-disciplinarity, it remains the case that scholars tend to defend their own methodological turf. This can be unfortunate; no particular discipline or methodology […]