Prevalent Rights Theory
Andrew Hyman
Professor Michael Rappaport posted here on October 10 in favor of the view that the Privileges or Immunities (PI) Clause protects “rights that are prevalent throughout the United States at a particular time. To determine what those rights are, one must look at what rights the states . . . protect.” Mike goes on to […]
February Originalism Works-in-Progress Conference in San Diego: Papers Announced
Michael Ramsey
The Center for the Study of Constitutional Originalism at the University of San Diego Law School has announced the papers and commentators for the Eleventh Annual Originalism Works-in-Progress Conference in February 2020. Here they are: Stephanie Barclay (Brigham Young), Evolving Constitutional Remedies and Religious Exemptions Commentator: John Harrison (Virginia) Will Baude (Chicago) & Stephen […]
Eric Segall: The Concession that Dooms Originalism
Michael Ramsey
Eric Segall (Georgia State University College of Law) has posted The Concession that Dooms Originalism: A Response to Professor Lawrence Solum (George Washington University Law Review On-Line, forthcoming) (17 pages). Here is the abstract: This essay responds to a recent article by Professor Lawrence Solum in the Northwestern University Law Review which describes alleged differences between […]
Calvin TerBeek on Justice Gorsuch and Lee Strang on Originalism
Michael Ramsey
At The New Rambler, Calvin TerBeek: Originalist Scholarship and Conservative Politics (reviewing A Republic, If You Can Keep It, by Neil Gorsuch (Crown Forum 2019), and Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge University Press 2019), by Lee J. Strang). Here is the introduction: Neil Gorsuch is an ideological entrepreneur. His new book—pointedly […]
Haoshan Ren et al.: The Original Meaning of ‘Cases’ in Article III of the Constitution
Michael Ramsey
Haoshan Ren (Georgia State University), Margaret Wood (Northern Arizona University), Clark D. Cunningham (Georgia State University College of Law), Noor Abbady (Savannah College of Art and Design), Ute Römer (Georgia State University), Heather Kuhn (independent) and Jesse Egbert (Northern Arizona University) have posted ‘Questions Involving National Peace and Harmony’ or ‘Injured Plaintiff Litigation’? The Original Meaning of ‘Cases’ in Article […]
Does the Constitution’s Original Meaning Prohibit a State from Abolishing the Insanity Defense?
Mike Rappaport
Mike Ramsey recently posted on the Kahler v. Kansas case, which raises the issue whether a state can eliminate the insanity defense. Mike concluded that the original meaning does not protect against eliminating the insanity defense under the Eight Amendment or the Due Process Clause: After considering this question a bit more, it seems to […]
Title VII and Sexual Orientation Discrimination
Andrew Hyman
This week, the U.S. Supreme Court heard oral arguments in Bostock v. Clayton County and Harris Funeral Homes v. EEOC. SCOTUSBlog has a summary of those arguments, and the transcript is here. The cases revolve around Title VII of the Civil Rights Act of 1964, which bars employment discrimination “against any individual with respect to his […]
Scott Gerber: Law and the Holy Experiment in Colonial Pennsylvania
Michael Ramsey
Scott D. Gerber (Ohio Northern University – Pettit College of Law) has posted Law and the Holy Experiment in Colonial Pennsylvania (NYU Journal of Law & Liberty, Vol. 12, No. 3, 2019, pp. 618-717) (100 pages) on SSRN. Here is the abstract: Religious liberty is a core component of America’s legal culture. William Penn, the […]
Faithful Execution and “For Cause” Directors
Michael Ramsey
In the New York Times, Jed Shugerman and Ethen Leib argue that the Faithful Execution Clause allows Congress to limit the President's ability to remove agency directors (as in the CFPB and FHFA cases now pending for cert). But their argument has a serious flaw that even they are forced to acknowledge and largely can't […]
Does the Supreme Court Have Mandatory Original Jurisdiction?
Michael Ramsey
Article III, Section 2 says that "[i]n all Cases … in which a State shall be a Party, the supreme Court shall have original Jurisdiction." But does that mean it has mandatory original jurisdiction? In a pending case, a group of states, led by Dave Yost and Benjamin Flowers (respectively, the Attorney General and Solicitor General […]