John Mikhail: Fixing Implied Constitutional Powers in the Founding Era
Michael Ramsey
John Mikhail (Georgetown University Law Center) has posted Fixing Implied Constitutional Powers in the Founding Era (Constitutional Commentary, forthcoming) (10 pages) on SSRN. Here is the abstract: "The Second Creation" by Jonathan Gienapp is a marvelous study of the earliest debates over constitutional language, meaning, and interpretation. In virtually every aspect, the book is brilliantly […]
David Schwartz on Kurt Lash on McCulloch
Michael Ramsey
Wrapping up the long-running symposium at Balkinization on his book The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David Schwartz responds to an earlier post on the book by Kurt Lash. From Professor Lash's review (which is long and difficult to fairly excerpt): Marshall’s emphasis on what is […]
Michael Greve on Justice Gorsuch’s “A Republic, If You Can Keep It”
Michael Ramsey
At Law & Liberty, Michael Greve: Three Cheers (Very Nearly) for Justice Neil M. Gorsuch. From the introduction: When Richard Reinsch asked me to review Justice Neil M. Gorsuch’s recent book, A Republic, If You Can Keep It, I entertained some doubts: I suspected that I might like it, but know full well that I have […]
Aditya Bamzai: Delegation and Interpretive Discretion
Michael Ramsey
Aditya Bamzai (University of Virginia School of Law) has posted Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law (133 Harvard Law Review 164 (2019)) (37 pages) on SSRN. Here is the abstract: Congress is supposed to write laws. So much seems apparent from the constitutional design, which in no uncertain […]
James Durling & Garrett West: Appointments Without Law
Michael Ramsey
James Durling (Independent) and E. Garrett West (Independent) have posted Appointments Without Law (105 Virginia Law Review 1281 (2019)) (76 pages) on SSRN. Here is the abstract: Debates about the Appointments Clause tend to turn on drawing the right distinctions. This Article argues that the Appointments Clause draws a little-recognized distinction between the officers specifically enumerated by […]
James Rogers on Incorporating the Establishment Clause
Michael Ramsey
At Law & Liberty, James R. Rogers (Texas A & M, Political Science): Incorporating the Establishment Clause, Wrongly. From the introduction: In a supreme irony, the First Amendment’s Establishment Clause, incorporated against state governments by the Supreme Court via the Fourteenth Amendment in 1947, is precisely the type of national usurpation of state government policies […]
Hassan Jabareen on Originalism and Israeli Constitutionalism
Michael Ramsey
Hassan Jabareen (Hebrew University of Jerusalem) has posted The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought (Israel Law Review 52(3) 2019, pp 427–454) (28 pages) on SSRN. Here is the abstract: This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it […]
Saikrishna Prakash on Ratifying the Equal Rights Amendment
Michael Ramsey
In the LA Times, Saikrishna Prakash (Virginia): Sorry, Virginia, you can’t revive the Equal Rights Amendment. In January, when a new Democratic majority takes over in Virginia, the Commonwealth likely will become the 38th state to ratify the Equal Rights Amendment. At that point, the proposal will cross the three-quarters threshold for inclusion in the […]
Justice Kavanaugh Provides Another Sign the Nondelegation Doctrine May be Revived
Mike Rappaport
Last term, the Supreme Court decided Gundy v. United States, which reviewed a large and largely standardless delegation of power to the Attorney General. The Court approved of the delegation in a 5 to 3 vote, with a strong dissent by Justice Gorsuch arguing on originalist grounds in favor of the revival of a more […]
Evan Bernick: Faithful Execution
Michael Ramsey
Evan D. Bernick (Judicial Clerk, Judge Diane Sykes) has posted Faithful Execution: Where Administrative Law Meets the Constitution (Georgetown Law Journal, Vol. 108, No. 1, 2019) (71 p;ages) on SSRN. Here is the abstract: The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than […]