Thomas Colby: Originalism and Structural Argument
Michael Rmasey
Thomas Colby (George Washington University Law School) has posted Originalism and Structural Argument (113 Northwestern University Law Review 1297 (2019)) (39 pages) on SSRN. Here is the abstract: The "new originalism" is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and […]
New Ratification Documents Now Available
Rob Natelson
I've written six short postings, available at the Independence Institute website, summarizing the implications for constitutional meaning of documents in the three newly published volumes of the Documentary History of the Ratification of the Constitution. Scholars may find them useful as a sort of guide to the "What's New" in those volumes. The new […]
The President and Obstruction, Briefly
Michael Ramsey
At Lawfare, Josh Blackman has an interesting analysis of the federal obstruction of justice statute as it relates to the Mueller report. I think we have the same basic approach and conclusions although my analysis is a little different. In this brief post I won’t say anything specific about the Mueller report or the current […]
Lawrence Solum: Themes from Fallon on Constitutional Theory
Michael Ramsey
Lawrence B. Solum (Georgetown University Law Center) has posted Themes from Fallon on Constitutional Theory (53 pages) on SSRN. Here is the abstract: Professor Richard Fallon’s Law and Legitimacy in the Supreme Court is a deep, original, and important contribution to constitutional theory. Fallon’s book is extraordinary, ranging across fundamental issues in normative constitutional theory and […]
Terry Stop Originalism
Michael Ramsey
From the SDFL Blog (via How Appealing): Big en banc 4th Amendment opinion comes down 7-5. Originalist Judge William Pryor writing for the majority upholds police seizure of a bullet during a Terry stop without much discussion of originalism. The dissent objects on originalist grounds: [Judge] Jordan dissents and says, what about originalism? Originalism would […]
Jud Campbell: Compelled Subsidies and Original Meaning
Michael Ramsey
Jud Campbell (University of Richmond School of Law) has posted Compelled Subsidies and Original Meaning (17 First Amendment Law Review 249 (2019)) (30 pages) on SSRN. Here is the abstract: The rule against compelled subsidization of speech is at the forefront of modern First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on […]
Mark Pulliam on Harry Jaffa
Michael Ramsey
At Misrule of Law, Mark Pulliam: “Bad Originalism”: Harry Jaffa’s Toxic Constitutional Legacy (commenting — very harshly,m as the title indicates — on the "Claremont school" of originalism associated with the late Harry Jaffa). From the introduction: My recent exchange (here, here, here, here, here, and here) with a disciple of the late Harry V. Jaffa, the vituperative political philosopher […]
A Response to Mike Rappaport on the Ninth Amendment
Andrew Hyman
Professor Rappaport recently wrote on this blog: “The [Ninth] Amendment does not say ‘the rights retained by the people should be protected as constitutional rights.’ Instead, it merely says that they should not be ‘denied or disparaged.’” But does it even say that? I respectfully disagree that the Ninth Amendment means (or says) that the […]
Ilan Wurman: The Origins of Substantive Due Process
Michael Ramsey
Ilan Wurman (Arizona State University – Sandra Day O'Connor College of Law) has posted The Origins of Substantive Due Process (University of Chicago Law Review, forthcoming) on SSRN. Here is the abstract: In the antebellum nineteenth century, courts often voided legislative acts for substantive unreasonableness or for exceeding the scope of legitimate police powers. Contrary […]
Henry Lowenstein & Kathryn Kisska-Schulze: A Historical Examination of the Constitutionality of the Federal Estate Tax
Michael Ramsey
Henry Lowenstein (Coastal Carolina University – Management and Law) and Kathryn Kisska-Schulze (Clemson University College of Business) have posted A Historical Examination of the Constitutionality of the Federal Estate Tax (William & Mary Bill of Rights Journal, Vol. 27, No. 1, 2018) (30 pages) on SSRN. Here is the abstract: During the 2016 presidential debate, […]