Finding The Law
Mike Rappaport
At the time of the Constitution’s framing, the common law was understood as something that judges discovered. Judges were not making law, they were finding it. But with the advent of legal realism and other modern movements, this understanding came to be rejected as untrue and unsophisticated. Instead, judges were thought to be engaged in […]
Stephen Sachs: The Law and Morals of Interpretation
Michael Ramsey
Stephen E. Sachs (Duke University School of Law) has posted The Law and Morals of Interpretation (Duke Journal of Constitutional Law & Public Policy, Vol. 13, No. 2, pp.103-114, 2018) on SSRN. Here is the abstract: Andrew Coan offers a fresh and forthright response to the long disagreement over constitutional interpretation. Instead of entering the debate […]
Aaron Nielson & Christopher Walker: A Qualified Defense of Qualified Immunity
Michael Ramsey
Aaron Nielson (Brigham Young University – J. Reuben Clark Law School) and Christopher J. Walker (Ohio State University – Michael E. Moritz College of Law) have posted A Qualified Defense of Qualified Immunity (Notre Dame Law Review, 2018 forthcoming) on SSRN. Here is the abstract: In recent years, we have seen a growing call in the legal academy to revisit qualified immunity—the doctrine that […]
Mark Pulliam on Good Faith Judging [Updated with my Comment]
Michael Ramsey
At his new blog Misrule of Law, Mark Pulliam: The Delusion of Good Faith Judging. It begins: The concept of written legal rules—of the law itself—assumes that their content is fixed and ascertainable. The rule of law likewise depends on citizens having advance notice of what they can and cannot do, pursuant to clear, knowable directives. Legal scholars […]
Lee Strang on Construction and the Bank Debate
Michael Ramsey
Lee J. Strang (University of Toledo College of Law) has posted An Evaluation of Historical Evidence for Constitutional Construction From the First Congress’ Debate Over the Constitutionality of the First Bank of the United States (14 University of St. Thomas Law Journal, 193, 2018) on SSRN. Here is the abstract: In this Essay, I review a modest […]
Eric Segall Asks: Is Originalism Theory Mostly Normative or Descriptive?
Michael Ramsey
At Dorf on Law, Eric Segall: Mending Fences With a Question: Is Originalism Theory Mostly Normative or Descriptive? From the introduction: In what I think is Randy [Barnett]’s most recent work, he and Professor Evan Bernick have tried to set forth guidelines for judges to use in the construction zone to help them remain true to original […]
A Response to Neal Goldfarb on the Second Amendment [Updated]
David Weisberg
This is a response to Neal Goldfarb’s post critiquing my comment on Heller and the 2nd Amendment. Goldfarb reveals that, just a few months ago, the OED revised its definition of “arm” as a noun to include the phrase “to bear arms,” which is defined as: “(a) To serve as a soldier; to fight (for a country, cause, etc.).” This usage, according to […]
More on the Second Amendment and Corpus Linguistics
Michael Ramsey
At Language Log, Neal Goldfarb: Corpora and the Second Amendment: Responding to Weisberg on the meaning of "bear arms". It begins: The Originalism Blog has a guest post, by David Weisberg, taking issue with the conclusion in Dennis Baron's Washington Post op-ed that newly available evidence of historical usage shows that in District of Columbia v. Heller, Justice Scalia […]
Justice Thomas versus the Exclusionary Rule and Federal Common Law in Collins v. Virginia
Michael Ramsey
In Collins v. Virginia, decided yesterday, the Supreme Court held that a warrantless search of a motorcycle parked on private property violated the Fourth Amendment, and thus that evidence found in the search should be excluded in the prosecution of Collins. Justice Thomas concurred but objected on originalist grounds to the imposition of the exclusionary […]
A Response to Dennis Baron on Heller
David Weisberg
[Ed.: For this guest post we welcome occasional commentator and originalism critic David Weisberg.] Dennis Baron’s recent op-ed in the Washington Post [Ed.: noted here] argues that Justice Scalia’s opinion for the majority in D.C. v. Heller is incorrect. I agree. (I’ve set forth my argument in “A Unique, Stand-alone Second Amendment Implies that both Heller and McDonald Were […]