What Is Originalism? The Evolution of Contemporary Originalist Theory
Mike Rappaport
Lawrence Solum (Illinois) has posted What is Originalism? The Evolution of Contemporary Originalist Theory on SSRN. Here is the abstract: Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that […]
Living Constitutionalism at the Supreme Court
Mike Rappaport
Eugene Volokh points out that the Supreme Court's web site refers to the Court as engaging in Living Constitutionalism: This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations. While this […]
Declaring War and the Security Council
Mike Ramsey
In previous posts I’ve argued that the U.S. intervention in Libya requires congressional approval under the Constitution’s original meaning and that there’s no longstanding uncontested precedent that would warrant departure from that meaning. Here I’ll consider the significance of UN Security Council Resolutions 1970 and 1973, calling for a cease fire by the Libyan government […]
Declaring War and Libya: A Comment on Past Practice
Mike Ramsey
My previous post argued that the original meaning of the declare war clause requires the President to get Congress’ approval before beginning military conflicts (including the current conflict in Libya). I’ll now turn to two leading counterarguments: first, that Presidents have routinely engaged in low-level conflict without Congress’ approval; and second, that the President’s action […]
The Constitution and Lybia
Mike Ramsey
I appreciate the opportunity to blog on the Constitution and the Libya intervention. In a post at Slate, Jack Goldsmith says that the Constitution’s original meaning in this area is “indeterminate.” I respectfully disagree: I think congressional approval is clearly required. In this post I’ll set out my basic argument, and in the next one […]
Originalism and Congress’s Power to Declare War
Mike Rappaport
President Obama has ordered the U.S. military to attack Libya without congressional authorization. Put aside whether that is consistent with the principles on which Obama campaigned. Is it constitutional? In my view, the original meaning is clear: he has no authority to do this. For the pathbreaking article that explained how the text of the […]
Justice Scalia’s Dissents
Mike Rappaport
Linda Greenhouse criticizes Justice Scalia's dissents, arguing that his strong rhetoric is useless because it does not convince his colleagues. Yet, Greenhouse ignores the other possible reason Scalia is writing his dissents — convincing law students who will be the nation's future lawyers. Orin Kerr makes the case here. To borrow a phrase from […]
Links to Atom and RSS Feeds Added
Mike Rappaport
We've added subscription links to our Atom and RSS feeds to the bottom of the sidebar column. An Atom feed performs the same function as an RSS feed.
Originalism Center Conference
Mike Rappaport
This past weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its second annual Originalism Works-in-Progress Conference. From my perspective, it was a great event. The list of papers and commentators are here, and in the near future, a video of the conference will be available. One of […]
Originalism on the Web
Mike Rappaport
Jill Lepore on The Constitution and Its Worshippers.