Robert Natelson on Major Questions and Incidental Powers
Michael Ramsey
At Law & Liberty, Robert Natelson: Gorsuch’s Take on the Major Questions Doctrine. From the introduction: Justice Neil Gorsuch’s concurring opinion in the tariff case of Learning Resources v. Trump rightfully has garnered favorable attention. This is largely due to its clear explanation of the Supreme Court’s “major questions doctrine.” As recited by Justice Gorsuch, the major questions […]
The Year in Originalism 2025
Mike Rappaport
This speech was given at the beginning of the Originalism Works in Progress Conference on Feb. 5 (and therefore prior to the tariffs decision in Learning Resources). Each year at the beginning of the conference, I use this time to highlight what I regard as some of the most important events concerning originalism in the […]
Michael Showalter: Why Originalism Requires Robotic Judging
Michael Ramsey
Michael Showalter (independent) has posted “Mere Machines”: Why Originalism Requires Robotic Judging (SMU Law Review, forthcoming) (20 pages) on SSRN. Here is the abstract: In 1776, Thomas Jefferson argued that judges are “mere machines.” This statement captures the founding generation’s conception of the judicial task. From Edward Coke to Montesquieu to William Blackstone to Alexander […]
Originalism, Substantive Due Process, and the Privileges or Immunities Clause
Mike Rappaport
Mirabelli v. Bonta, the case involving the right of parents to control their children’s upbringing, once again raises the question for originalists of the Privileges or Immunities Clause versus Substantive Due Process. If the Court’s originalist justices want to defend originalism, they need to start the process, especially in concurring opinions, of protecting unenumerated rights […]
Joshua Macey et al.: Against General Law Constitutionalism
Michael Ramsey
Joshua Macey (Yale Law School), Brian Richardson (Cornell Law School) & Ketan Ramakrishnan (Yale Law School) have posted Against General Law Constitutionalism (University of Chicago Law Review (forthcoming)) (74 pages) on SSRN. Here is the abstract: This Article considers when and under what circumstances the “general law,” a species of unwritten law grounded in legal […]
William Baude: Youngstown
Michael Ramsey
William Baude (University of Chicago Law School) has posted Youngstown (16 pages) on SSRN. Here is the abstract: In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court addressed a critical constitutional issue: When can the President act in ways that have not been authorized by Congress? The Court’s answer has enduring importance for executive […]
Reva Siegel on the Originalist Argument for Prenatal Personhood
Michael Ramsey
Reva Siegel (Yale Law School) has posted It’s Alive! When the Original Meaning of “Person” Protected by the Fourteenth Amendment Is Not a Fixed, But Living Word (59 U.C. Davis L. Rev., forthcoming 2026) (35 pages) on SSRN. Here is the abstract: This Article examines an originalist argument for prenatal personhood—that life from conception is […]
People Who Thought They Were Citizens But Actually Haven’t Been
Andrew Hyman
In Trump v. Barbara (the birthright citizenship case) pending before the U.S. Supreme Court, a significant concern is what would happen to people who thought they were U.S. citizens but perhaps really weren’t. The best answer is that that is a matter for Congress, which possesses the naturalization power. Some people don’t appreciate how vast […]
Justice Gorsuch on the Founders and Habitual Drunkards
Michael Ramsey
From the Supreme Court oral argument earlier this week in United States v. Hemani (in which the issue is whether a federal law denying gun rights to users of marijuana is analogous to founding-era statutes denying gun rights to “habitual drunkards”): JUSTICE GORSUCH: — [to counsel for the Untied States}… one can ask whether the […]
Akhil & Vikram Amar on Birthright Citizenship and Foundlings [Updated]
Michael Ramsey
At SCOTUSblog, Akhil Amar & VIkram Amar, Birthright citizenship: A note on foundlings and comments on four complementary amicus briefs. From the introduction: Foundlings – babies born of unknown parentage – loomed large in the imagination of mid-19th century Americans, who dutifully read their Bibles and thought about baby Moses in a basket. Americans in […]