Mark Greenberg: Beyond Textualism
Michael Ramsey
Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted Beyond Textualism (20 pages) on SSRN. Here is the abstract: This paper was the basis for my Fordham University Natural Law Colloquium lecture in September 2019. More than 20 years ago, Justice Scalia wrote of “the great degree of confusion that prevails” in […]
It’s Not Bad Textualism, It’s Much Worse: It’s Bad English
David E. Weisberg
This note concerns the Sexual-Orientation-Gender-Identity (SOGI) Title VII cases recently argued before the Supreme Court, and specifically Prof. Richard Primus’ article in Politico: "The Supreme Court Case Testing the Limits of Gorsuch’s Textualism," which has also been commented on by Prof. Ramsey here. Title VII prohibits employment discrimination “because of [an] individual’s … sex”. Prof. Primus asserts: “The logic is pretty […]
Burlette Carter: Can a Sitting President Be Federally Prosecuted? The Founders’ Answer
Michael Ramsey
W. Burlette Carter (George Washington University Law School) has posted Can a Sitting President Be Federally Prosecuted? The Founders' Answer (62 Howard Law Journal 331 (2019)) (69 pages) on SSRN. Here is the abstract: Can a sitting U.S. President be federally indicted or prosecuted? Exploring the history of impeachment and prosecution in (1) England and Great […]
Rafi Reznik: The Rise of American Conservatism in Israel
Michael Ramsey
Rafi Reznik (SJD candidate, Georgetown University Law Center) has posted The Rise of American Conservatism in Israel (8 Penn State Journal of Law and International Affairs (2020)) (forthcoming) (63 pages) on SSRN. Here is the abstract: In the United States, the link between interpretive methodology and political ideology has generated a massive yet largely idiosyncratic […]
Bad Textualism (Again) [Updated]
Michael Ramsey
At Balkinization, Richard Primus argues that, under a textualist interpretation, the President could be impeached for matters in addition to high crimes and misdemeanors: It Doesn’t Say “Only”: A Textual Point About Impeachment. He argues: Article II, Section 4 of the Constitution reads as follows: “The President, Vice President and all civil Officers of the […]
Cert Granted in CFPB Removal Case
Michael Ramsey
The Supreme Court has granted cert in Seila Law LLC v. Consumer Financial Protection Bureau. The issue is: Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers. The Court also asked the parties to brief whether the removal […]
John McGinnis on the Contracts Clause
Michael Ramsey
At Law & Liberty, John O. McGinnis: Reviving the Contract Clause: An Acid Test for Originalism. From the introduction: Whether the Contract Clause will be restored as a protection for private property rights provides an important benchmark for the success of originalism. The Clause was the most litigated provision of the Federal Constitution in the […]
Textualism and Sexual Orientation Discrimination
Michael Ramsey
Academic commentators having been arguing that a commitment to textualism should impel Justice Gorsuch to support the plaintiffs in the Title VII sexual orientation discrimination cases. Richard Primus (Michigan) makes the argument in Politico: The Supreme Court Case Testing the Limits of Gorsuch’s Textualism (with the subhead "If the justice rules against LGBTQ protections, he’ll […]
The Speech of Jacob Howard, the Prevalent Rights Theory, and the Decision in Brown v. Board of Education
Earl Maltz
[Ed.: For this guest post we welcome Earl M. Maltz, Professor of Law at Rutgers Law School.] In a recent post, Andrew Hyman disputes the claim that originalists should adopt what Michael Rappaport describes as the prevalent rights theory of the Privileges or Immunities Clause of the Fourteenth Amendment. However, Hyman fails to cite the […]
Is Puerto Rico Unconstitutional?
Michael Ramsey
Today the Supreme Court hears oral argument in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, a case of potential originalist interest. It presents the seemingly uninspiring question "[W]hether the appointments clause governs the appointment of members of the Financial Oversight and Management Board for Puerto Rico." But it might suggest that […]