Call for Papers: Eleventh Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference in San Diego
Michael Ramsey
The following is posted on behalf of the University of San Diego School of Law Center for the Study of Constitutional Originalism, the Center's Director Mike Rappaport, and the other faculty members of the Center. On February 21-22, 2020, the Center for the Study of Constitutional Originalism at the University of San Diego School of […]
The D.C. Circuit on Sentencing for Acquitted Conduct
Michael Ramsey
In United States v. Bagcho, decided last week, the D.C. Circuit (following circuit precedent) upheld a sentence imposed in part based on conduct for which the defendant had been acquitted. As the majority (per Judge Rogers) explained: Bagcho contends that the district court violated his Fifth and Sixth Amendments rights under the Constitution by calculating […]
Rob Natelson on Treaty Originalism
Michael Ramsey
At the Daily Caller, Rob Natelson (Independence Institute): The Supreme Court Just Applied Originalism to an 1855 Treaty, So Why Not to the Constitution? From the introduction: [Critics of originalism] claim that “originalism” — applying the Constitution as the Founders understood it — is unrealistic or extreme. Some even claim originalism is a new invention, dating only […]
John Vlahoplus: Evaluating Originalism
Michael Ramsey
John Vlahoplus (Independent) has posted Evaluating Originalism: Commerce and Emoluments (St. John's Law Review (2019), forthcoming) (79 pages) on SSRN. Here is the abstract: The debates among originalists and between them and their critics have continued unabated since Paul Brest, H. Jefferson Powell and others rebutted original intent originalism in the nineteen eighties. Scholars on both […]
Is the Hyatt Decision Bad Originalism?
Michael Ramsey
Earlier this week the Supreme Court ruled, in Franchise Tax Board v. Hyatt, that as a constitutional matter states have sovereign immunity in the courts of other states. Justice Thomas wrote the majority opinion (joined by Roberts, Alito, Gorsuch and Kavanaugh), relying on originalist arguments. The decision has been widely criticized on originalist/textualist grounds — for […]
Bill Treanor: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution
Michael Ramsey
Bill Treanor (Georgetown U. Law Center) has posted Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution (118 pages) on SSRN. Here is the abstract: At the end of the proceedings of the federal constitutional convention, the delegates appointed the Committee on Style and Arrangement to bring together the […]
Divesting the President of Power to Prosecute
Andrew Hyman
In February of last year, Mike Ramsey commented negatively here about the following theory of Professors Rebecca Roiphe and Bruce Green: [T]he Department of Justice is independent of the President, and its decisions in individual cases and investigations are largely immune from his interference or direction. This does not result from any explicit constitutional […]
David Schwartz on Eric Lomazoff on the National Bank Controversy
Michael Ramsey
David S. Schwartz (University of Wisconsin Law School) has posted Coin, Currency, and Constitution: Reconsidering the National Bank Precedent, 117 Mich. L. Rev. (2019, forthcoming) (24 pages) on SSRN. Here is the abstract: The constitutional debates surrounding the First and Second Banks of the United States generated the first major precedents regarding the scope of […]
More from Eric Segall on Originalism and Free Speech
Michael Ramsey
At Dorf on Law, Eric Segall: "Free Speech, Free Press. Free Society?" Toward the end of the post, Professor Segall continues his theme of the tension between originalism and a broad view of free speech protections: Here is something else that is true. You can either believe in strong and robust judicially created free speech […]
John McGinnis: The Crisis of Left Jurisprudence (with my comments)
Michael Ramsey
At Law and Liberty, John McGinnis: The Crisis of Left Jurisprudence. From the introduction: The rise of originalism is the most important development in constitutional jurisprudence in the last half century. As a sociological matter, its rise has been almost wholly associated with the Right, including both conservatives and libertarians. But it is also the […]