New Supreme Court Cases of Possible Originalist Interest
Michael Ramsey
This week the Supreme Court granted certiorari in two cases that may lead to originalist analysis. In Ramos v. Louisiana, the issue is whether the rule of unanimous criminal juries under the Sixth Amendment applies to the states. In Kahler v. Kansas, the issue is whether the Eighth Amendment or the Due Process Clause requires […]
Second Amendment Originalism from Judge Amy Coney Barrett
Michael Ramsey
From Ed Whelan at NRO Bench Memos: Rickey I. Kanter pleaded guilty to one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. Both federal law and Wisconsin law bar a convicted felon from possessing a firearm. On Friday, a Seventh […]
Proposals to Stay a SCOTUS Decision Out of Respect for Reliance Interests
Andrew Hyman
In an essay published this winter, Ed Whelan asked: “[W]hat if the Court said, ‘We believe this is the best reading of the Constitution. We recognize that it will be disruptive, and we’re going to give the political branches X years to work through an amendment to address this if they see fit’?” Whelan’s idea […]
Calvin Johnson and Kennerly Davis on the Constitution and the Wealth Tax
Michael Ramsey
The constitutional debate over the wealth tax continues– At Balkinization, Calvin Johnson (Texas), guest blogging: A Wealth Tax is Constitutional. From the introduction: [Senator] Warren’s wealth tax would be constitutional. The defining characteristic of a “direct tax,” according to the Founders, is that it is the kind of tax in which apportionment among the states by […]
Tyler Broker: Church And State Originalism
Michael Ramsey
Tyler Broker (Privacy and Free Expression Fellow, University of Arizona James E. Rogers College of Law) has posted Church And State Originalism (University of Memphis Law Review, forthcoming) (34 pages) on SSRN. Here is the abstract: This work focuses on the religious separation clauses contained within the First Amendment and offers both a descriptive claim that […]
Robert Nagel: Conservatism and Constitutionalism in the United States
Michael Ramsey
Robert F. Nagel (University of Colorado Law School) has posted Conservatism and Constitutionalism in the United States (22 pages) on SSRN. Here is the abstract: This paper inquires whether conservative political philosophy provides intellectual resources that might be expected to prevent judges from yielding to the temptation to impose their own strong moral beliefs about how […]
Stephen Presser on Jonathan Gienapp’s “The Second Creation”
Michael Ramsey
At the Federalist Society Blog, Stephen Presser reviews The Second Creation: Fixing the American Constitution in the Founding Era, by Jonathan Gienapp: The Tenacity of Transformation Theory, and Why Constitutional History Deserves Better. From the introduction: Jonathan Gienapp, author of The Second Creation: Fixing the American Constitution in the Founding Era, is a junior colleague […]
Tara Leigh Grove: Presidential Laws and the Missing Interpretive Theory
Michael Ramsey
Tara Leigh Grove (William & Mary Law School) has posted Presidential Laws and the Missing Interpretive Theory (University of Pennsylvania Law Review, Vol. 168 (2020, forthcoming)) (48 pages) on SSRN. Here is the abstract: There is something missing in interpretive theory. Recent controversies—involving, for example, the first travel ban and funding for sanctuary cities—demonstrate that presidential […]
Eric Segall on Unenumerated Rights
Michael Ramsey
At Dorf on Law, Eric Segall: The Case Against Unenumerated Fundamental Rights. Here is the introduction: Next week I have the privilege of participating in a symposium at the University of Nevada at Las Vegas on substantive due process. I plan to use my time to argue that the Court should not only repudiate that anti-textual, anti-historical […]
Ed Whelan on the Presumption of Constitutionality
Michael Ramsey
At NRO's Bench Memo, Ed Whelan: In Defense of a Presumption of Constitutionality (pointing to his essay in the The Harvard Journal of Law & Public Policy titled The Presumption of Constitutionality). I noted the publication of this issue of the HJLPP here, but this essay is worth its own post. Here is the introduction: A […]