Eric Segall on Discretionary Originalism
Michael Ramsey

Ar Dorf on Law, Eric Segall: Discretionary Originalism: A Short Response to Professor Solum.  From the introduction: Professor Lawrence Solum kindly "recommended" a forthcoming essay of mine in the George Washington On-Line Law Review [Ed.: noted here]. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference […]

Jeremy Telman: John Marshall’s Constitution
Michael Ramsey

D. A. Jeremy Telman (Valparaiso University Law School) has posted John Marshall's Constitution: Methodological Pluralism and Second-Order Ipse Dixit in Constitutional Adjudication (Lewis & Clark Law Review, forthcoming) (98 pages) on SSRN. Here is the abstract: This Article provides a comprehensive treatment of the constitutional jurisprudence of the Marshall Court (1801–1835), addressing its relationship to contemporary originalism. […]

Justice Thomas on Preemption by Agency Policy
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, earlier this week the Supreme Court denied cert in Lipschultz v. Charter Advanced Services, which presented the question whether the Federal Communications Commission's "policy of nonregulation" of Voice over Internet services preempted state regulation.  Justice Thomas, joined by Justice Gorsuch, objected that the policy was not a law, and thus couldn't […]

Calvin TerBeek on Originalism and the Administrative State
Michael Ramsey

At House Divided, Calvin TerBeek: The GOP’s Flip Side of the Same Coin: Party Politics, Constitutional Politics, and the Administrative State.  From the introduction: Easily missed in the tumult last week was the Supreme Court’s decision to review the constitutionality of the Consumer Financial Protection Bureau’s structure. The product of Obama era legislation and a constant source […]

Textualism and Title VII
John Vlahoplus

Although I am not a textualist or an originalist, I find this blog's responses to Richard Primus to be off the mark.  Michael Ramsey's response here relies heavily on the fact "that Congress did not think its text had banned sexual orientation discrimination (nor, so far as I know, did anyone else at the time)."  […]

The President and State Prosecutions
Michael Ramsey

A recent post linked to an article by Burlette Carter on the issue of federal prosecutions of sitting Presidents.  For me this, is a non-issue because (as an original matter) I accept the idea of a unitary executive.    Anyone with federal prosecutorial power must, in this view, serve at the pleasure and direction of […]

Stephen Sachs on Justice Story and Originalism
Michael Ramsey

At Volokh Conspiracy, Stephen Sachs: Justice Story on Originalism and Judicial Independence.  Here is the introduction: A few days ago, looking for something else, I happened across this section of Justice Story's Commentaries on the Constitution. Story defends the independence of the judiciary based on something that sounds surprisingly like originalism. Some particularly interesting passages highlighted: A number […]