Colfax on the Rights of U.S. Citizens
Andrew Hyman
Schuyler Colfax of Indiana was speaker of the U.S. House of Representatives from 1863 to 1869, and later vice president of the U.S. from 1869 to 1873 during the administration of Ulysses S. Grant. On August 7, 1866, less than two months after the Fourteenth Amendment had been sent to the states for ratification, Colfax […]
Executive Power and the DACA Case
Michael Ramsey
Kevin Fandl (Temple University – Fox School of Business and Management) has posted Presidential Power to Protect Dreamers: Abusive or Proper? (Yale Law & Policy Review, Vol. 36, No. 1, 2018) (17 pages) on SSRN. Here is the abstract: Many young undocumented immigrants brought to the United States as children, affectionately known as “Dreamers,” enjoy substantial […]
A Response to Professor Ramsey on the Paradox of Originalism
David Weisberg
I appreciate Prof. Michael Ramsey’s thoughts responding to my note. My note is a glimpse of a much deeper critique of original-public-meaning originalism, which can be found here and here on SSRN. Prof. Ramsey agrees “as a theoretical matter” with what I call the Paradox of Originalism: If the antiquity of the Constitution justifies the rebuttable presumption that some or all […]
Eric Segall on Barnett and Bernick and the Spirit of the Constitution
Michael Ramsey
At Dorf on Law, Eric Segall: A Unified Theory of Originalism and Living Constitutionalism. From the introduction: A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis […]
Justice Gorsuch is Everywhere
Michael Ramsey
So it seems. Does he have a book coming out? Here are few of his appearances: Time Magazine: Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution (book excerpt). From the introduction: Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with […]
Second Amendment Originalism and Mental Illness
Michael Ramsey
From Michael Buschbacher (Sidley): I wanted to send you a quick note about a Second Amendment case that I and a few of my colleagues recently picked up in connection with Sidley’s Supreme Court Clinic at Northwestern. The case is Beers v. Attorney General, No. 17-3010 (3d Cir.). It presents the same issue as Tyler v. […]
A Reply to David Weisberg on Second Amendment Originalism
Neal Goldfarb
I thank David Weisberg for his comments two weeks ago on my amicus brief in New York State Rifle & Pistol Assn. v. City of New York. I’d like to take this opportunity to respond to what he says about my brief and the analysis that it’s based on. My response will deal with only a small part of Mr. Weisberg’s […]
Matt Ford on Originalism and Qualified Immunity
Michael Ramsey
In the New Republic, Matt Ford: Conservative Judges Are Brawling Over Originalism — The union between the federal judiciary's true believers in the primacy of our founding documents is fraying (discussing the recent Fifth Circuit decision in Cole v. Hunter, noted here). From the introduction: The Fifth Circuit Court of Appeals handed down a notable ruling on […]
Another Missed Opportunity: Kisor v. Wilkie and the Failure to Overturn Auer Deference
Mike Rappaport
In June, the Supreme Court decided the case of Kisor v. Wilkie, which presented the question of whether Auer deference should be eliminated. In another defeat for the movement to restore limits on administrative agency discretion, a majority of the Court refused to overturn Auer v. Robbins and thereby eliminate Auer deference. Auer deference is […]
Michael Perry: Two Constitutional Rights, Two Constitutional Controversies
Michael Ramsey
Michael J. Perry (Emory University School of Law) has posted Two Constitutional Rights, Two Constitutional Controversies (65 pages) on SSRN. Here is the abstract: This article is my contribution to the Festschrift celebrating the distinguished scholarly career of Richard S. Kay, Wallace Stevens Professor Emeritus and Oliver Ellsworth Research Professor, University of Connecticut School of Law. […]