The Challenge of Naming the Modern Originalist Movement
Mike Rappaport
One sign of the success of an academic movement, like originalism, is that it becomes attractive enough to develop multiple theories that promote the movement in different ways. The existence of these different theories has advantages. The various theories provide multiple perspectives and differing defenses of the movement, making it more likely to prevail in […]
Roderick Hills: Strategic Ambiguity and Article VII’s Two-Stage Ratification Process
Michael Ramsey
Roderick M. Hills, Jr. (New York University School of Law) has posted Strategic Ambiguity and Article VII’s Two-Stage Ratification Process: Why the Framers (Should Have) Decided Not to Decide (74 pages) on SSRN. Here is the abstract: The U.S. Constitution ratified in 1788 contains a lot of apparently ambiguous language — abstract phrases like “executive power,” […]
Joyce Lee Malcolm: The Right to Carry Your Gun Outside
Michael Ramsey
Joyce Lee Malcolm (George Mason University – Antonin Scalia Law School, Faculty) has posted The Right to Carry Your Gun Outside: A Snapshot History (Law and Contemporary Problems, forthcoming) (26 pages) on SSRN. Here is the abstract: The right of self-defense is the core of the Second Amendment right to keep and bear arms as the […]
John Bickers: Greenbacks, Consent, and Unwritten Amendments
Michael Ramsey
John M. Bickers (Northern Kentucky University – Salmon P. Chase College of Law) has posted Greenbacks, Consent, and Unwritten Amendments (33 pages) on SSRN. Here is abstract: “We the people,” the Constitution begins, setting forth the core republican principle that the American government would henceforward be one based upon the consent of the governed. Yet […]
Michael Louis Corrado: Insanity and the Historical Understanding of Mens Rea
Michael Ramsey
Michael Louis Corrado (University of North Carolina School of Law) has posted Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea (23 pages) on SSRN. Here is the abstract: In October of this year, the United States Supreme Court will hear the case of Kahler v. Kansas, and it will have the opportunity to […]
Eric Segall on Justice Gorsuch on Originalism
Michael Ramsey
At Dorf on Law, Eric Segall: Reviewing Justice Gorsuch's New Book: An Originalist Fantasy out of the Old West (reviewing [very harshly] Justice Gorsuch's book A Republic If You Can Keep It). From the introduction: Justice Neil Gorush's new book "A Republic If You Can Keep It," isn't completely awful. Made up mostly of old […]
Mila Sohoni: The Lost History of the ‘Universal’ Injunction
Michael Ramsey
Mila Sohoni (University of San Diego School of Law) has posted The Lost History of the 'Universal' Injunction (133 Harvard Law Review (2020, forthcoming)) (90 pages) on SSRN. Here is the abstract: The issuance of injunctions that reach beyond just the plaintiffs has recently become the subject of a mounting wave of censorious commentary, including by […]
Joel Alicea & John Ohlendorf: Against the Tiers of Constitutional Scrutiny (Updated)
Michael Ramsey
At National Affairs, Joel Alicea & John D. Ohlendorf: Against the Tiers of Constitutional Scrutiny. Here is the introduction: This year, for the first time in nearly a decade, the Supreme Court will return to the subject of the Second Amendment. New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York […]
A Brief Reply to Michael Ramsey Regarding Korematsu (with Further Update)
Andrew Hyman
Mike Ramsey (who edits this excellent blog) writes: “Congress cannot simply conclude (or authorize the President to conclude) that particular persons or a class of persons pose too great a risk to remain free.” I do not think that is necessarily always true if there is compelling proof of risk, which there certainly was not in […]
The Battle of the “For Cause” Directors
Michael Ramsey
It seems somewhat likely (as much as these things can be predicted) that the Supreme Court will take up the question whether Congress can require an agency director to be removable by the President only for cause. At Vox, Ian Millhiser has this post: Trump just asked the Supreme Court to let him fire the […]