Josh Blackman on the Special Counsel and the Take Care Clause
Michael Ramsey

At Lawfare, Josh Blackman: The Special Counsel’s Constitutional Analysis: Corrupt Intent and the Take Care Clause.  From the introduction: Special Counsel Robert Mueller’s report found that the federal obstruction of justice statutes can apply to the president, even though the statutes do not state this expressly. … [Mueller] concluded the obstruction statutes can generally apply to the president […]

Original Original Intent
Mike Rappaport

One of the great scholars of the American Constitution from a historical perspective was David Currie.  Here is a short excerpt from the Green Bag and the University of Chicago Law School Record about Currie's views on originalism.   PAUL A. CLARK:      You have said that in the early nineteenth century everyone agreed that “the Constitution […]

Stephen Sachs: Finding Law
Michael Ramsey

Recently published, in the California Law Review, Stephen E. Sachs: Finding Law (107 Cal. L. Rev. 527 (2019)).  Here is the abstract:  That the judge’s task is to find the law, not to make it, was once a commonplace of our legal culture. Today, decades after Erie, the idea of a common law discovered by […]

The Ninth Amendment and the Federalist Interpretation
Mike Rappaport

Andrew Hyman writes a response to my post that the Ninth Amendment refers to natural rights, although it does not protect them as constitutional rights. Hyman offers a different interpretation of the Ninth Amendment, one I call the Federalist interpretation (which I referred to in my earlier post). Hyman argues that the: Amendment means the […]

The President and Obstruction, Specifically
Michael Ramsey

I had not intended to write anything specific about the Mueller investigation beyond my general sketch of the constitutional aspects of the President and obstruction of justice.  But I think some important commentary is misunderstanding – or glossing over – a fundamental point about the President’s role (e.g., here from Quinta Jurecic at Lawfare).  So […]

John McGinnis on the Flexible Constitution
Michael Ramsey

At Law & Liberty, John McGinnis:  Originalism Protects the Timelessness of the Constitution (responding to this post by Michael Greve).  From the core of the argument:  … [W]hat is most striking about [Professor Greve's] position is that he seems at times to adopt the progressive view of an evolutionary rather than a timeless Constitution. Michael […]

How Old is Originalism?
Mike Rappaport

Michael Greve recently published a piece entitled Originalism as Ideology which criticizes originalism and argues that it may have “run its course.”  Greve’s essay covers a lot of ground, but I thought it might be useful to discuss one key aspect of it that is of wider concern: how old is originalism? According to Greve, […]

What an “Inalienable Natural Right” Originally Meant (Updated)
Andrew Hyman

In Kansas, the first section of the state constitution’s bill of rights says this:   1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.   In a widely-reported April 26 opinion, the Kansas Supreme Court asked:  “Is this declaration of rights more […]

William Baude: Adjudication Outside Article III
Michael Ramsey

William Baude (University of Chicago – Law School) has posted Adjudication Outside Article III (133 Harvard Law Review (forthcoming)) (61 pages) on SSRN.  Here is the abstract:  Article III requires federal courts that exercise federal jurisdiction to be given life tenure and undiminished compensation, limiting Congress’s ability to influence the judiciary. But from the beginning, we […]

Michael Greve: Originalism as Ideology
Michael Ramsey

At Law and Liberty, Michael Greve: Originalism as Ideology.  From the introduction:  I propose to explore originalism as ideology. What I mean by “ideology” is not partisan commitment but the original, Hegelian meaning: an idea whose progenitors deny, or cannot bring themselves to reflect upon the contingent conditions of that idea’s origin or creation—a thought […]