The Originalism Blog

The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law

Category: Film

My Thoughts on Segall versus Solum
Michael Ramsey

Last week I promised some thoughts on the exchange between Eric Segall and Larry Solum.  Here they are. To oversimplify, Professor Solum argues that sometimes originalism requires interpreters to consider changed facts (or changed understandings of facts) in applying a text's original meaning.  (His example is Bradwell v. Illinois, asking whether a law barring women […]

Daniel Birk: Interrogating the Historical Basis for a Unitary Executive
Michael Ramsey

Daniel D. Birk (Chicago-Kent College of Law) has posted Interrogating the Historical Basis for a Unitary Executive (48 pages) on SSRN.  Here is the abstract: This Article demonstrates that the historical claims about the original meaning of the executive power made by proponents of the "unitary executive" theory of presidential and executive power in the […]

Josh Blackman & Seth Barrett Tillman on Congress Approving Emoluments [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman, Senator Blumenthal's Emoluments Clause brief conflicts with INS v. Chadha.  From the introduction: The Foreign Emoluments Clause provides that "[N]o Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or […]

William Baude & Stephen Sachs: The Misunderstood Eleventh Amendment
Michael Ramsey

William Baude (University of Chicago Law School) and Stephen E. Sachs (Duke University School of Law) have posted The Misunderstood Eleventh Amendment (52 pages) on SSRN.  Here is the abstract: The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines […]

Daniel Rice on Federalism and the Treaty Power
Michael Ramsey

At Just Security, Daniel Rice (Institute for Constitutional Advocacy and Protection): Female Genital Mutilation and the Treaty Power: What Congress Can Do.  From the introduction: Since 1996, the act of female genital mutilation (FGM) has been a federal crime. Federal circuit courts have characterized FGM as “a barbaric practice unbecoming of a civilized society,” “a form of physical torture […]

Ilya Somin on Police Power Takings
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Federal Court Rules there is no Taking if the Police Destroy an Innocent Person's House During a Law Enforcement Operation.  From the introduction: Earlier this week, the US Court of Appeals for the Tenth Circuit ruled [in Lech v. Jackson] that the Takings Clause of the Fifth Amendment does not require the […]

Bruce Frohnen on Originalism and Natural Law
Michael Ramsey

At Law & Liberty, Bruce Frohnen (Ohio Northern): Originalism Is Beside the Point.  From the introduction:  Originalism has gained wide acceptance, at least in the limited sense that most academics and judges feel constrained to signal respect for the original meaning and generalized intentions of the Constitution. Unfortunately, this “acceptance” has done little to slow the […]

Ilan Wurman: In Search of Prerogative
Michel Ramsey

Ilan Wurman (Arizona State University (ASU) – Sandra Day O'Connor College of Law) has posted In Search of Prerogative (70 pages) on SSRN.  Here is the abstract: The standard formalist account of Article II’s executive vesting clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great […]

Does Impeachment Require a Crime?
Michael Ramsey

Popular commentary is suddenly awash with articles claiming that impeachment (and conviction and removal from office) do not require proof of a crime.  Examples include Ezra Klein at Vox (“High Crimes and Misdemeanors,” explained), Elizabeth Drew in USA Today (You don't have to break a law to be impeached. Trump's defenders need a better argument) […]