Julian Davis Mortenson: The Executive Power Clause
Michael Ramsey
Julian Davis Mortenson (University of Michigan Law School) has posted The Executive Power Clause (University of Pennsylvania Law Review, Vol. 119) (93 pages) on SSRN. Here is the abstract: Article II of the Constitution vests “the executive power” in the President. Advocates of presidential power have long claimed that this phrase was originally understood as a […]
Why the Full Faith and Credit Clause Supports the Supreme Court’s Decision in Hyatt
Andrew Hyman
In the recent case of California v. Hyatt, the U.S. Supreme Court said that one state must respect the sovereign immunity of another. That decision has been criticized for not relying upon any particular text of the Constitution. I commented on May 26 at this blog that the decision in Hyatt could have and probably should have […]
Michael Dorf on Originalism in Gamble v. United States
Michael Ramsey
At Dorf on Law, Michael Dorf highlights a small but interesting issue of originalist methodology in the Supreme Court's recent opinion in Gamble v. United States (the double jeopardy case). He writes: Justice Alito [in the majority opinion] notes that the petitioner's argument based on original understanding relies extensively on a single 1677 case involving […]
A Small Step Forward in Knick
Michael Ramsey
After criticizing the Supreme Court for allowing several constitutional messes to persist on Thursday, I should congratulate the Justices (or rather 5 of them) for cleaning up a small mess on Friday in Knick v. Township of Scott. Ilya Somin, who filed an excellent amicus brief, celebrates at Volokh Conspiracy: Supreme Court Overrules Precedent that […]
A Disappointing Day at the Supreme Court
Michael Ramsey
I'm guessing most people were disappointed by the major opinions yesterday from the Supreme Court (Gundy v. United States on non-delegation and American Legion on establishment). Neither resolved much of anything. The silver lining, I suppose, is that originalist progress may still be possible. (A) In the American Legion case, pretty much everyone seems to […]
Adam White Reviews Myron Magnet’s “Clarence Thomas and the Lost Constitution”
Michael Ramsey
At Commentary, Adam J. White: Lest Ye Be Judged — Review of 'Clarence Thomas and the Lost Constitution' By Myron Magnet. From the introduction: In nearly two and a half centuries of American constitutionalism, from 1776 to today, the words that are most difficult to understand yet crucial to our republic are found in Abraham […]
Jesse Snyder: How Textualism Has Changed the Conversation in the Supreme Court
Michael Ramsey
Jesse Snyder (independent) has posted How Textualism Has Changed the Conversation in the Supreme Court (University of Baltimore Law Review, Vol. 48, No. 3, 2019) (23 pages) on SSRN. Here is the abstract: This paper argues that Mount Lemmon Fire Dist. v. Guido, 139 S. Ct. 22 (2018) is a sleeper decision that should receive […]
George Will and the Ninth Amendment
Andrew Hyman
I agree with Mark Pulliam that George Will has adopted an erroneous interpretation of the Ninth Amendment "hook, line, and sinker," in Will’s new book The Conservative Sensibility. As I understand Mr. Will, he thinks the Ninth Amendment means this: The Constitution shall not be construed to deny or disparage natural rights of the […]
Dueling Originalists (and Justice Thomas on Stare Decisis) in Gamble v. United States
Michael Ramsey
The Supreme Court's decision Monday in Gamble v. United States confirms the validity of the "dual sovereigns" doctrine: that successive prosecutions in state and federal court for the same conduct do not violate the Constitution's double jeopardy clause because the clause only bars successive prosecutions by the same government. The majority, by Justice Alito, and […]
Ken Kersch Responds to Symposium Commentary on “Conservatives and the Constitution”
Michael Ramsey
At Balkinization, Ken Kersch has several responses to the symposium on his book Conservatives and the Constitution: The Other Side of the Mountain: Restoration, Redemption, and Originalism Ayn Rand, Gary Lawson, and the Supreme Court From the introduction to the latter: Gary Lawson has contributed two provocative, engaging, and very interesting posts for the symposium […]