Constitutional Text and State Sovereign Immunity
Mike Rappaport
One of the most difficult issues for the originalists on the Supreme Court has been state sovereign immunity. While these originalists usually argue against interpretations that do not derive from the constitutional text, in the area of sovereign immunity they have written and joined opinions that strangely rely on techniques that bring to mind Griswold […]
Jesse Merriam on Legal Conservatism
Michael Ramsey
At Law and Liberty, Jesse Merriam (Loyola University Maryland): Is Legal Conservatism as Accomplished as It Thinks It Is? Here is the introduction (to a long post): The editors of Law & Liberty have kindly put to me the following questions: “Is legal conservatism, in its moment of triumph, as accomplished as it thinks it is? Is […]
Ilya Somin on the Political Question Doctrine
Michael Ramsey
At Volokh Conspiracy, following up on my post on the partisan gerrymandering cases, Ilya Somin: Questioning the Political Question Doctrine. From the introduction: For many decades, the Supreme Court has chosen to avoid addressing some issues by ruling that they are "political questions," and therefore not fit for resolution. Last week, in Rucho v. Common Cause, the Court […]
Lawrence Solum on Lawrence Lessig’s “Fidelity and Constraint”
Michael Ramsey
At Balkinization, Lawrence Solum: Fidelity, Translation, and Originalism: Thoughts on Lessig's "Fidelity and Constraint". Here is the introduction: Lawrence Lessig's Fidelity and Constraint is an important contribution to American constitutional theory. Although Lessig packages his ideas as a form of "originalism," a close reading of his book suggests that his enterprise is better understood as a version […]
Branton Nestor: The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion
Michael Ramsey
Recently published, in the Harvard Journal of Law and Public Policy, Branton J. Nestor: The Original Meaning and Significance of Early State Provisos to the Free Exercise of Religion (42 Harv. J. L. & P. Pol'y 971 (2019)). Here is the introduction (footnotes omitted): The Supreme Court held in Employment Division v. Smith that the […]
Ilya Somin on Precedent
Michael Ramsey
At Volokh Conspiracy, Ilya Somin: The Rights and Wrongs of Overruling Precedent. The core conclusion: The justices' highest legal obligation is not to the Court's past precedents, but the Constitution. If they are convinced that the latter conflicts with the former, they should overrule, if at all possible. There is a good case for adhering […]
Political Gerrymandering and Political Questions
Michael Ramsey
Regular readers know I fundamentally distrust the political question doctrine. So it will not surprise anyone that I have doubts about the Supreme Court's political gerrymandering cases (Rucho v. Common Cause and Lamone v. Benisek, decided yesterday). But I'll express some doubts anyway. The Court, per Chief Justice Roberts, held that the constitutionality of political […]
Aaron Gordon: Justice Thomas and Indian Law
Michael Ramsey
Aaron Gordon (Yale University, Law School, Students) has posted Justice Thomas and Indian Law (58 pages) on SSRN. Here is the abstract: Supreme Court Justice Clarence Thomas is an exceptional jurist in a variety of ways. With the exception of his late colleague Antonin Scalia, perhaps no other figure is more associated with originalism than Justice Thomas. Today, […]
Will Baude on the PROMESA Case
Michael Ramsey
At Volokh Conspiracy, Will Baude discusses the PROMESA case (Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC), in which the Supreme Court recently granted certiorari. From the introduction: Last February I noted that the First Circuit had invalidated the appointments to the Financial Oversight Management Board created by a statute called PROMESA to oversee […]
The Gundy Project
Michael Ramsey
In the Wall Street Journal, David Rivkin and Lee Casey celebrate the possible revival of the nondelegation doctrine in Gundyv. United States: Alito Teases a Judicial Revolution– His concurrence suggests the dissenters will soon prevail in restoring the ‘nondelegation’ doctrine. Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he […]