Supreme Court Term Opens with Cases of Potential Originalist Interest [Updated]
Michael Ramsey
The Supreme Court's 2019-2020 Term opens with several cases of potential originalist interest, including on the first day: (1) Kahler v. Kansas (argument today): Whether the Eighth and 14th Amendments permit a state to abolish the insanity defense. The case is likely to raise the originalist questions (a) whether the insanity defense (or rather, what […]
Allen Mendenhall on St. George Tucker
Michael Ramsey
At Law & Liberty, Allen Mendenhall (Faulkner University/Jones School of Law): St. George Tucker’s Jeffersonian Constitution. From the introduction: One could argue that there are two basic visions for America: the Hamiltonian and the Jeffersonian. The former is nationalist, calling for centralized power and an industrial, mercantilist society characterized by banking, commercialism, and a robust […]
The Fixation Thesis
David Weisberg
Prof. Rappaport’s recent post broadly defines “originalism” in accordance with Prof. Larry Solum’s view that that theory encompasses two premises: the fixation thesis and the constraint principle. In this note, I want to focus on the fixation thesis. (A more detailed discussion is available in my paper on SSRN.) In Prof. Solum’s words, the fixation thesis holds that “the linguistic meaning […]
Eric Segall Responds to Mike Rappaport
Michael Ramsey
At Dorf on Law, Eric Segall: The Problem Isn't Naming Originalism: A Response to Professor Rappaport. From the introduction: Professor Michael Rappaport recently wrote an essay for the Originalism Blog (a site that has been quite generous in publishing my critiques of originalism) titled "The Challenge of Naming the Modern Originalist Movement." In this piece, Rappaport concedes […]
Negative Misprisions Are Not Grounds for Impeachment
Andrew Hyman
I am no expert on impeachment, so this week I turned to my favorite online copy of the U.S. Constitution to find out more. Plus I read some recent commentary by reliable constitutional scholars. Michael Ramsey wrote on this blog that, whatever the exact meaning of high crimes and misdemeanors may be, the U.S. Supreme Court […]
Rick Hills on Rick Hills on Strategic Ambiguity and the Constitution
Michael Ramsey
At Prawfsblawg, Rick Hills (NYU) has a long post discussing his recently posted article Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide (noted here): How Should Article VII’s Ultimatum Game Affect Constitutional Interpretation? Here is the introduction: Suppose that you accept the originalists’ premise that 18th […]
Devin Watkins on Korematsu and Substantive Due Process
<Michael Ramsey
Devin Watkins comments on this post by me on the Korematsu case: While I mostly agree with you, your opinion concerning Korematsu is very close to “so-called” substantive due process—which I don’t think is a bad thing. So-called substantive due process, I think has gotten quite a bad reputation, but that is because the name […]
Christine Kexel Chabot: An Originalist Argument for Independent Agencies
Michael Ramsey
Christine Kexel Chabot (Loyola University Chicago School of Law) has posed Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies (46 pages) on SSRN. Here is the abstract: The President’s inability to control the Federal Reserve’s monetary policy decisions raises significant constitutional concerns. The Federal Reserve’s Federal Open Market Committee executes critical statutory mandates […]
Cert Petition in the “For Cause Director” Case
Michael Ramsey
Following up on this post, the challengers have filed a petition for writ of certiorari in Collins v. Mnookin, the case challenging the constitutionality of the Federal Housing Finance Agency (FHFA) on the ground that its director can be removed by the President only for cause. At Volokh Conspiracy, Jonathan Adler explains: Shareholders Challenging FHFA's […]
Marc DeGirolami: First Amendment Traditionalism
Michael Ramsey
Marc O. DeGirolami (St. John's University – School of Law) has posted First Amendment Traditionalism (Washington University Law Review, forthcoming) (28 pages) on SSRN. Here is the abstract: Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and […]