John Dossett on Originalism and Indian Law
Michael Ramsey
Following up on this post on originalism and Indian law, here is some important recent scholarship in the field by John Dossett (Lewis & Clark): Indian Country and the Territory Clause: Washington's Promise at the Framing (68 Am. U. L. Rev. 205 (2018)); abstract: This article explores the Territory Clause, Article IV, Section 3 as […]
Eric Segall Asks: Are Court Decisions Law?
Michael Ramsey
At Dorf on Law, Eric Segall: Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law. From the introduction: I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris […]
Calvin TerBeek on Ed Meese on Incorporation
Michael Ramsey
An interesting find by Calvin TerBeek at House Divided: The Untold Story of How Conservatives Embraced the Bill of Rights and Incorporation. Here is the introduction: The new conservative majority of the Supreme Court has begun the second phase of its constitutional rights project of providing increased protection to Second Amendment rights vis-a-vis state gun control […]
Parchment Barriers and the Determinateness of Constitutional Text
Mike Rappaport
Recently, Jonathan Gienapp, a Stanford historian, has published what is likely to be a widely read book on constitutional interpretation. Second Creation: Fixing the Constitution’s Meaning in the Founding Era argues that there was no agreement on how to interpret the Constitution at the time of the Constitution’s enactment and that standard interpretive positions only emerged […]
Allen Mendenhall on a New Book on Justice Scalia
Michael Ramsey
At Law & Liberty, Allen Mendenhall (Faulkner): A (Mostly) Misbegotten Attempt to Take Scalia’s Measure (reviewing The Conservative Revolution of Antonin Scalia (David A. Schultz & Howard Schweber, eds., Lexington 2018))). From the discussion: No consensus view emerges from these wide-ranging essays on everything from Scalia’s contributions to administrative law to his Senate confirmation hearings. […]
Why Supreme Court Judging Is Not Necessarily Partisan
Mike Rappaport
I recently came upon this review of Richard Brookhiser’s new biography of Chief Justice John Marshall by Yale Professor John Fabian Witt. The review criticizes Brookhiser’s take on Marshall as a justice who furthered the law and originalism rather than politics. Instead, Witt believes that Marshall’s judicial career was defined by the goal of advancing […]
Larry Solum’s Legal Theory Lexicon on the Construction Zone
Michael Ramsey
At Legal Theory Blog, Larry Solum's Legal Theory lexicon has this new entry: The Construction Zone. From the introduction: The idea of a "construction zone" is based on the interpretation-construction distinction. The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities: Interpretation is the activity that aims to recover the meaning of a legal […]
The Constitution and Wealth Taxes
Michael Ramsey
At Dorf on Law, Neil Buchanan: What Kind of Constitutional Mess Might a Wealth Tax Create?, and also at Justia: Can We Tax Wealth? Yes, and Even if Not, Still Yes. From the latter: Direct and Indirect Taxes Where are the strictly legal issues hiding? The Constitution distinguishes between two types of taxes, direct and […]
Jeremy Telman: Five Meta-Interpretive IssuesMichael Ramsey
D.A. Jeremy Telman (Valparaiso University Law School) has posted All That Is Liquidated Melts into Air: Five Meta-Interpretive Issues (Barry Law Review, forthcoming) (26 pages) on SSRN. Here is the abstract: The promise of originalism is that it helps us to fix constitutional meaning and constrain constitutional decision-makers. There are significant constitutional questions that originalism can help resolve, at least […]
Steven Calabresi & Gary Lawson: Why Robert Mueller’s Appointment As Special Counsel Was Unlawful
Michael Ramsey
Steven G. Calabresi (Northwestern University – Pritzker School of Law) and Gary Lawson (Boston University School of Law) have posted Why Robert Mueller’s Appointment As Special Counsel Was Unlawful (88 pages) on SSRN. Here is the abstract: Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has […]