John McGinnis on Justice Thomas and Precedent
Michael Ramsey
At Law and Liberty, John McGinnis: Why Justice Thomas Is Wrong about Precedent. From the introduction: This term Justice Clarence Thomas wrote an important concurring opinion on stare decisis in Gamble v. United States, the case on the scope of double jeopardy. There Thomas rejects stare decisis for both constitutional and statutory cases except in cases […]
Richard Primus on Locke and Justice Gorsuch
Michael Ramsey
At Balkinization, Richard Primus: John Locke, Justice Gorsuch, and Gundy v. United States. From the core of the argument: In Part II [of his dissent in Gundy v. United States], Gorsuch builds his theory about nondelegation from the fundamentals of constitutional argument, going back to the text and the Founding. In the third paragraph of his […]
Josh Blackman: Originalism and Stare Decisis in the Lower Courts
Michael Ramsey
Josh Blackman (South Texas College of Law Houston) has posted Originalism and Stare Decisis in the Lower Courts (14 pages) on SSRN. Here is the abstract: The tension between originalism and stare decisis is well known. Many of the Supreme Court’s most significant constitutional decisions are completely unmoored from the original public understanding of the Constitution. […]
John Harrison: Executive Power
Michael Ramsey
John C. Harrison (University of Virginia School of Law) has posted Executive Power (53 pages) on SSRN. Here is the abstract: This article presents a new conceptualization of the executive power conferred by Article II of the Constitution. That conceptualization is a more detailed version of the Whig understanding of executive power, which was common among […]
Further Responses to Jesse Merriam on Originalism and Legal Conservatism
Michael Ramsey
At Law and Liberty, two further responses to Jesse Merriam's essay Is Legal Conservatism as Accomplished as It Thinks It Is?: Michael O'Shea (Oklahoma City): Normative Foundations of Originalism. Here is the introduction: Law & Liberty has become a major source of analysis of the future of legal conservatism and its signature doctrines. Back in April, […]
Rick Hills on Baude & Sachs on Originalism
Michael Ramsey
At Prawfsblawg, Rick Hills (NYU): What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past. Here is the introduction: I am alternately puzzled and exasperated by originalist scholars’ attitude towards eighteenth century history. On one hand, they flyspeck old documents unrelated to specific constitutional texts to figure out what those […]
Lawrence Solum on Positive and Normative Legal Theory
Michael Ramsey
From Legal Theory Blog's Legal Theory Theory Lexicon: Positive and Normative Legal Theory. From the conclusion: The distinction between positive and normative legal theories is fundamental, but once you have the terminology down, it is usually easy to apply. The tricky part comes when you are confronted with theories like Dworkin's that blur the lines […]
Jack Balkin: Why Liberals and Conservatives Flipped on Judicial Restraint
Michael Ramsey
Jack M. Balkin (Yale University – Law School) has posted Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time (66 pages) on SSRN. Here is the abstract: Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have […]
Marc DeGirolami on Originalism and Conservatism
Michael Ramsey
At Law & Liberty, Marc O. DeGirolami (St. Johns): Notes on a New Fusionism (responding to Jesse Merriam, Is Legal Conservatism as Accomplished as It Thinks It Is?). From the introduction: In his Liberty Forum essay, Professor Jesse Merriam identifies an important asymmetry between political and legal conservatism in America. Postwar political conservatism adopted a true fusionist […]
More from Neal Goldfarb on Corpus Linguistics and the Second Amendment
Michael Ramsey
At LAWnLinguistics, Neal Goldfarb: Corpora and the Second Amendment: “the right (of the people) to … bear arms”. From the introduction: Having dealt in my last post with how bear arms was ordinarily used and understood in 18th-century America, I’ll turn in this post to the question of how it was used in the Second Amendment. I’ll begin by considering how the […]