Robert Natelson: More News on Powers Reserved Exclusively to the States
Michael Ramsey
Recently published, in the Federalist Society Review, Robert Natelson (Independence Institute): More News on Powers Reserved Exclusively to the States (20 Fed. Soc. Rev. 92 (2019)). Here is the introduction (footnotes omitted): This essay updates and supplements an article published last in the Federalist Society Review entitled The Founders Interpret the Constitution: The Division of […]
The President and Withdrawal from Treaties
Michael Ramsey
Last week the United States withdrew from the Intermediate Range Nuclear Forces (INF) Agreement with Russia, pursuant to the Treaty's six-month notification period for withdrawal (the notification was sent in February). The President directed the notification and withdrawal on his own independent constitutional authority. I have not seen any substantial constitutional objection to this action […]
Thomas Bettge: Evaluating Originalism in the Light of Judicial Review’s Uncertain Origins
Michael Ramsey
Thomas Bettge (independent) has posted Marbury in the Vanishing Cabinet: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins (Willamette Law Review, Vol. 55, No. 1, 2018) (45 pages) on SSRN. Here is the abstract: Although originalism has occasioned substantial rethinking of many facets of our constitutional law, the doctrine of judicial review articulated in Marbury […]
Andrew Jordan: The (Ir)relevance of Positivist Arguments for Originalism
Michael Ramsey
Andrew Jordan (Judicial Attorney, Ohio Supreme Court) has posted The (Ir)relevance of Positivist Arguments for Originalism (37 pages) on SSRN. Here is the abstract: In a series of recent Articles William Baude and Stephen Sachs argue that as a matter of positive law — that is, as a matter of our convergent social practices — a form […]
David Rivkin and Andrew Grossman on Originalism and Libel
Michael Ramsey
In the Wall Street Journal, David B. Rivkin Jr. & Andrew M. Grossman: An Originalist Libel Defense. From the introduction: Mr. Trump said in 2016 that he wanted to “open up” libel laws, and in February Justice Thomas wrote a solo opinion arguing that [New York Times v.] Sullivan departs from the Constitution’s original meaning. […]
Josh Blackman and Seth Barrett Tillman on Equity and Causes of Action in Some Prominent Recent Cases
Michael Ramsey
At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman: What is the Plaintiffs' Cause of Action in the Wall Litigation? From the introduction: On Friday, the Supreme Court stayed the District Court's decision in Trump v. Sierra Club, which had halted the administration's plan to construct a border fence. The Court's short entry on the "shadow docket" offered […]
Eric Segall on Originalism and Legal Realism [Updated]
Michael Ramsey
Ar Dorf on Law, Eric Segall: Original Intent, Original Meaning, or Let's Call the Whole Thing Off. From the introduction: Michael Rappaport and John O. McGinnis, two of our country's leading academic originalists, recently stated in an essay for a Northwestern University Law Review Originalism symposium that "the debate over original intent and original public meaning has […]
Lino Graglia: Creative Constitutional Interpretation as Justification for Rule by the Supreme Court
Michael Ramsey
Recently published, in the Arizona State Law Journal, Lino A. Graglia (University of Texas Law School): Creative Constitutional Interpretation as Justification for Rule by the Supreme Court (51 Ariz. St. L.J. 109 (2019)). Here is the abstract: Contemporary constitutional scholarship presents the puzzling phenomenon of scholars endlessly writing and debating methods of constitutional interpretation […]
Saul Cornell on Originalism and History (Again)
Michael Ramsey
In the Law and History Review, Saul Cornell: Reading the Constitution, 1787–91: History, Originalism, and Constitutional Meaning (Law and History Review, August 2019). From the introduction (footnotes omitted): Recent originalist scholarship presents a case study in the problem of interdisciplinary inquiry in contemporary law. Borrowing insights from outside of the law without fully engaging with […]
Ingrid Wuerth: The Due Process and Other Constitutional Rights of Foreign Nations
Michael Ramsey
Ingrid B. Wuerth (Vanderbilt University – Law School) has posted The Due Process and other Constitutional Rights of Foreign Nations (Fordham Law Review, forthcoming 2019) (57 pages) on SSRN. Here is the abstract: The rights of foreign states under the U.S. Constitution are becoming more important because the actions of foreign states and foreign state-owned enterprises […]