Was Hammer v. Dagenhart Wrongly Decided?
Michael Ramsey
As usual, I find Kurt Lash persuasive – in this case, his recent guest post (responding to John Mikhail) on the Tenth Amendment. But I think Professor Mikhail may still be right that Hammer v. Dagenhart was wrongly decided. Hammer was the pre-New Deal commerce clause case that invalidated a federal statute banning the sale […]
Peter Shane: Prosecutors at the Periphery
Michael Ramsey
Peter M. Shane (Ohio State University (OSU) – Michael E. Moritz College of Law) has posted Prosecutors at the Periphery (Chicago-Kent Law Review, Vol. 94, No. 2, 2019) (27 pages) on SSRN. Here is the abstract: Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, […]
On the Omission of the Term “Expressly” from the Tenth Amendment
Kurt Lash
[Ed.: For this guest post we welcome again Professor Kurt T. Lash, the E. Claiborne Robins Distinguished Chair in Law at the University of Richmond School of Law. Professor Lash responds to Professor John Mikhail's recent post, noted here.] In his recent review of Lawrence Lessig’s new book, “Fidelity and Constraint,” Georgetown law professor John […]
George Will on Using the Declaration of Independence to Construe the Constitution
Andrew Hyman
George Will had a column in the Washington Post (and elsewhere) last week, urging that we look to the Declaration of Independence to construe the Constitution. In particular, Mr. Will wants to use the Declaration of Independence to interpret the word “liberty” in the Constitution. Mr. Will favorably quotes Timothy Sandefur who says that that […]
Mohamed Abdelaal on Obergefell v. Hodges and Justice Scalia’s Originalism
Michael Ramsey
Mohamed Abdelaal (Alexandria University – Faculty of Law) has posted Obergefell v. Hodges: Rethinking Justice Scalia's Originalism (16 Dartmouth Law Journal 73 (2018)) on SSRN. Here is the abstract: Since Ronald Reagan appointed Justice Antonin Scalia to the U.S. Supreme Court in 1986, Scalia’s jurisprudence and judicial activity have been the subject of significant scholarly attention. […]
John Mikhail on Lawrence Lessig, Originalism and the New Deal
Michael Ramsey
At Balkinization, John Mikhail: Lessig's Defensive Crouch Constitutionalism. From the introduction: Fidelity & Constraint [by Lawrence Lessig] is a deeply interesting and insightful book. I recommend it to anyone who is interested in the theory and history of American constitutional law. In this post, I will focus on one thread of Professor Lessig’s rich narrative—his account of […]
James McGoldrick: Why Does Justice Thomas Hate the Commerce Clause?
Michael Ramsey
James M. McGoldrick (Pepperdine University – School of Law) has posted Why Does Justice Thomas Hate the Commerce Clause? (Loyola Law Review, New Orleans, forthcoming) (56 pages) on SSRN. Here is the abstract: This paper tries to answer the question why Justice Thomas hates the Commerce Clause as interpreted by the United States Supreme Court. First, […]
Aaron Gordon: A Cure for Lochner-phobia
Michael Ramsey
Aaron Gordon (Yale University, Law School, Students) has posted A Cure for Lochner-phobia (82 pages) on SSRN. Here is the abstract: Lochner v. New York is widely considered one of the worst Supreme Court decisions in American history. The basis for much of this vitriol is a widespread belief that economic liberties of the sort protected […]
Clutching Defeat from the Jaws of Victory: Gundy and the Prohibition on Delegation
Mike Rappaport
The prohibition on the delegation of legislative power to the executive is one of the key structural features of the Constitution’s original meaning. The prohibition prevents the legislature from passing a law that authorizes the executive (instead of the legislature) to make the basic policy decisions in an area. The prohibition thus makes it harder […]
George Will versus Mark Pulliam on the Declaration and the Constitution
Michael Ramsey
For the Fourth, George Will in the Washington Post devotes an entire column to attacking Mark Pulliam: To construe the Constitution, look to the Declaration. Here is the introduction: On this 243rd anniversary of the beginning of the best thing that ever happened — “The Great Republic” was Winston Churchill’s tribute — many of today’s […]