Eighth Amendment Originalism(?)
David Weisberg

As a citizen, I’m opposed to capital punishment.  As a lawyer, I believe lethal injection does not violate the 8th Amendment and that Bucklew v. Precythe was correctly decided.  As a student of constitutional interpretation, I believe that originalism was entirely irrelevant to the soundness of that decision.  I have argued that one should (rebuttably) assume that every word in […]

Eric Segall: Originalism Off the Ground
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted Originalism Off the Ground: A Response to Professors Baude and Sachs (Constitutional Commentary, forthcoming) (19 pages) on SSRN.  Here is the abstract:  Professors Will Baude and Stephen Sachs are a legal realist’s worst nightmare. In their forthcoming Northwestern Law Review essay “Grounding Originalism,” they continue their […]

Gregory Klass: Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right
Michael Ramsey

Gregory Klass (Georgetown University Law Center) has posted Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right (Georgetown Journal of Law & Public Policy, forthcoming) (39 pages) on SSRN.  Here is the abstract: Interpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth […]

John Stinneford on Eighth Amendment Originalism and Bucklew v. Precythe
Michael Ramsey

At Volokh Conspiracy, John Stinneford (Florida) has this guest post on the Supreme Court's recent decision in Bucklew v. Precythe: What Bucklew Doesn’t Say.  From the introduction:  … The majority opinion is explicitly originalist in its approach to the Cruel and Unusual Punishments Clause, a rare (if not unprecedented) phenomenon in the modern history of […]

The Unbearable Wrongness of Slaughterhouse
Mike Rappaport

In my last few posts, I have been arguing that it is problematic to continue to apply the Slaughterhouse Cases, because the majority decision is so wrong. It belongs in the worst category of Supreme Court cases, cutting the heart out of a key constitutional provision and leading the Court to employ nonoriginalism to compensate […]

Bryan Garner on Textualism
Michael Ramsey

In the ABA Journal, Bryan Garner: Old-fashioned textualism is all about interpretation, not legislating from the bench.  From the introduction: You’ve probably heard recently about the “Gorsuch brief”—a brief that makes closely analyzed textual arguments based on grammars and dictionaries—and about how progressive advocates are relying more and more on Scalia-style textualism. These subjects have […]

Christopher Green: Justice Gorsuch and Moral Reality
Michael Ramsey

Christopher R. Green (University of Mississippi – School of Law) has posted Justice Gorsuch and Moral Reality (70 Alabama Law Review 635 (2019)) (33 pages)  on SSRN.  Here is the abstract: Despite his advanced academic training in ethics, Justice Gorsuch has stoutly, repeatedly, and properly denied that officers today have any power to override the […]

Mark Pulliam’s Defense of Slaughterhouse: A Response
Mike Rappaport

After Mark Pulliam responded to my post, I replied with the post below.  Mark Pulliam has graciously responded to my post on the Slaughterhouse Cases. As readers will remember, Pulliam argued that the Slaughterhouse Cases should continue to be followed out of fear of the mischief that would be produced by overruling it. I argued […]