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 […]
New Book: “Sentencing Discretion and the Constitution” by Donald Dripps
Michael Ramsey
Recently published, by Donald Dripps (University of San Diego): Sentencing Discretion and the Constitution: Due Process of Time (Oxford Univ. Press 2026). Here is the book description from Amazon: The U.S. Supreme Court maintains that prosecutorial discretion to charge different offenses authorized by the penal code is practically limited only by the penal code itself. Because […]
David Gans: Black Conventions and the Second Founding
Michael Ramsey
David Gans (Constitutional Accountability Center) has posted Forgotten Framers: Black Conventions and the Second Founding (79 Stan. L. Rev. (forthcoming 2027)) (64 pages) on SSRN. Here is the abstract: This Article tells the forgotten story of the Black Conventions of the Reconstruction era, examining convenings of Black Americans across the nation during the time when […]
Eric Segall on Originalism and Alternatives
Michael Ramsey
At Dorf on Law, Eric Segall: If It Takes a Theory to Beat a Theory,” Originalism Loses. From the introduction: Justice Antonin Scalia, who died 10 years ago this month, was fond of saying over and over again that “it takes a theory to beat a theory.” He often made this claim when people criticized originalism. Scalia’s […]
Originalist-Oriented Briefs in the Birthright Citizenship Case (and a Counterargument by Elias Neibart))
Michael Ramsey
Respondent-side amicus briefs were due at the Supreme Court Thursday and (as one would expect) quite a few were filed (via SCOTUSblog). A common theme of many is that the President’s executive order limiting birthright citizenship conflicts with the original meaning of the Fourteenth Amendment. Among the most important originalist-oriented briefs : Brief of Professor […]
Gary Lawson: The Written Constitution of Enumeration
Michael Ramsey
Gary Lawson (University of Florida Levin College of Law) has posted The Written Constitution of Enumeration (55 pages) on SSRN. Here is the abstract: While originalists disagree among themselves about many things, most agree that the proper object of constitutional interpretation is the written Constitution and that the Constitution enumerates the powers of federal institutions, […]
New book, “Scalia: The Supreme Court Years” by James Rosen
Michael Ramsey
Recently published, Scalia: Supreme Court Years, 1986 to 2001, by James Rosen (Regnery 2026). Here is the book description from Amazon: A Powerful Voice Brings Change to the Supreme Court In this second installment of James Rosen’s masterful biography—hailed as “monumental,” “ground-breaking,” and “definitive”—Antonin Scalia brings his intellectual genius, literary gifts, and wit to the staid corridors […]
Saikrishna Prakash: Too Unitary
Michael Ramsey
Saikrishna Prakash (University of Virginia School of Law) has posted Too Unitary (135 Yale L.J.F. 533 (2026)) (34 pages) on SSRN. Here is the abstract: President Donald Trump’s Executive Orders embrace the unitary executive. But the peculiar version they embrace ignores the many exceptions and qualifications on the unitariness of our Constitution’s executive branch. The […]
When Common Law Rights are Constitutionalized
Mike Rappaport
Lately, I have been thinking a good deal about how common law rights that have been placed in the Constitution should be interpreted. More on that in the future. Twelve years ago, I wrote a short essay about the subject. I still believe the position I tentatively adopted was the correct one. So I thought […]
Tariffs and Major Questions
Michael Ramsey
In Learning Resources, Inc. v. Trump, decided Friday, the Supreme Court held that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. Chief Justice Robert’s lead opinion (joined by Justices Gorsuch and Barrett) expressly invoked the major questions doctrine in finding that the statute did not clearly convey tariff […]