Judge Eric Murphy on Denying Equal Protection
Michael Ramsey
Judge Eric Murphy, concurring in the recent Sixth Circuit case Estate of Romain v. City of Grosse Pointe Farms, argues that claims that the police failed to give adequate protection should be understood as equal protection claims, not substantive due process claims (and citing, among other authorities, originalist scholars John Harrison and Christopher Green): At […]
Legal Theory Lexicon: Originalism
Michael Ramsey
At Legal Theory Blog, Larry Solum has updated his entry in the "Legal Theory Lexicon" for "Originalism." Here are some excerpts. From the introduction: There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism." Originalism is actually a family of constitutional theories, but two ideas […]
John McGinnis on Silent Originalism
Michael Ramsey
At Law and Liberty, John McGinnis: Silent Originalism and the Reweighting of Precedent. From the introduction: The most important practical question of originalism is how to deal with the huge number of non-originalist precedents. In its June decision in Rucho v. Common Cause, the Supreme Court showed one way: Refuse to give a flagrantly non-originalist precedent […]
Josh Blackman on Originalism in the Fifth Circult
Michael Ramsey
At Volokh Conspiracy, Josh Blackman: The Fifth Circuit Divides on Qualified Immunity, and Originalism. From the introduction: Today the Fifth Circuit issued a divided en banc decision in Cole v. Hunter. The case considered whether two police officers who shot the Plaintiff were not entitled to qualified immunity. Nine out the sixteen active judges on the en banc […]
Matthew Steilen: The Constitutional Convention and Constitutional Change
Michael Ramsey
Matthew J. Steilen (State University of New York (SUNY) at Buffalo, Law School) has posted The Constitutional Convention and Constitutional Change: A Revisionist History (Lewis & Clark Law Review, forthcoming) (65 pages) on SSRN. Here is the abstract: How do we change the federal Constitution? Article V tells us that we can amend the Constitution by […]
Corpus Linguistics and 2nd Amendment
David Weisberg
I agree completely with Neil Goldfarb’s conclusion that Heller was wrongly decided. (My own reasoning is set forth in a paper, “A Unique, Stand-Alone Second Amendment Implies That Both Heller and McDonald Were Wrongly Decided,” available here on SSRN.) Nevertheless, I just as strongly disagree with his interpretation, based on corpus linguistics (“CL”), of the meaning of the […]
Nelson Lund: The Destructive Legacy of McCulloch v. Maryland
Michael Ramsey
Nelson Lund (George Mason University School of Law) has posted The Destructive Legacy of McCulloch v. Maryland (McCulloch v. Maryland at 200, Gary J. Schmitt, ed. (forthcoming)) (36 pages). Here is the abstract: McCulloch v. Maryland is probably the Supreme Court’s single most influential opinion, and certainly one of its most celebrated. As countless commentators have […]
The Original Meaning of Section I of Amendment XIV All in One Blog Post
Andrew Hyman
A primary purpose of Section One of the Fourteenth Amendment was to entrench, or establish a firmer constitutional basis for, various provisions in the Civil Rights Act of 1866. The Citizenship Clause of the Fourteenth Amendment was modeled after the citizenship clause in the Civil Rights Act of 1866. The framers of that statutory citizenship clause had […]
Charles Barzun: Constructing Originalism (with Comments from Will Foster)
Michael Ramsey
I was going to give the Baude/Sachs thesis a rest for a while, but… Charles L. Barzun (University of Virginia School of Law) has posted Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin (19 pages) on SSRN. Here is the abstract: This Essay responds to Professors William […]
Jack Balkin: Translating the Constitution
Michael Ramsey
Jack M. Balkin (Yale University – Law School) has posted Translating the Constitution (43 pages) on SSRN. Here is the abstract: Lawrence Lessig's recent book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019), restates and expands his important and influential theory of interpretive fidelity as translation. This book […]