Earl Maltz: The Coming of the Fifteenth Amendment
Michael Ramsey
Earl Maltz (Rutgers Law School) has posted The Coming of the Fifteenth Amendment: the Republican Party and the Right to Vote in the Early Reconstruction Era on SSRN; Here is the abstract: The year 2019 marks the one hundred fiftieth anniversary of one of the most significant moments in American constitutional history. On February, 25, […]
Calvin TerBeek on Gun Rights and the Conservative Legal Movement
Michael Ramsey
At A House Divided, Calvin TerBeek: Gun Rights as Glue? The Contested (and Uncontested) Legal Policy Terrain of the Conservative Legal Movement. From the introduction: On Tuesday, the Supreme Court reached down to the Second Circuit and agreed to hear New York State Rifle & Pistol Association v. City of New York (Garrett Epps and gun rights advocate David Kopel have useful summaries). It seems apparent now that Justice Kennedy […]
William Thro: Barnett’s & Bernick’s Theory of Constitutional Construction and School Finance Litigation
Michael Ramsey
William E. Thro (General Counsel, University of Kentucky) has posted Barnett’s & Bernick’s Theory of Constitutional Construction and School Finance Litigation (357 Education Law Reporter 464 (2018)) on SSRN. Here is the abstract: Although education is not a fundamental right under the United States Constitution, every State Constitution has a provision mandating, at a minimum, […]
The Very First Appropriations Bill Enacted by Congress
Andrew Hyman
There’s currently a debate about whether statutes and/or the Constitution presently allow (or should allow) the President to sometimes move appropriated funds from one pigeonhole to another, for example by declaring an “emergency.” Mike Ramsey has recently discussed some of the legal ramifications here and here at this blog. Right now, there are over thirty […]
Peter Tzeng on Treaty Interpretation
Michael Ramsey
Peter Tzeng (Foley Hoag LLP) has posted The Principles of Contemporaneous and Evolutionary Interpretation (Book Chapter, in Joseph Klingler, Yuri Parkhomenko & Constantinos Salonidis (eds.), Between the Lines of the Vienna Convention?: Canons of Construction and Other Principles of Interpretation in Public International Law, pp. 387-422 (2019)) on SSRN. Here is the abstract: The principle of […]
Employment Division v. Smith under Attack? (Updated)
Michael Ramsey
Employment Division v. Smith (the Peyote Case) famously held (per Justice Scalia) that neutral laws of general application are constitutional under the free exercise clause even if they prohibit a core practice of a person's religion. As discussed by Eugene Volokh, this conclusion may now be open to challenge: Will the Court Read the Free […]
Twenty-first Amendment Originalism?
Michael Ramsey
Last week's U.S. Supreme Court argument in Tennessee Wine and Spirits Retailers Association v. Blair may indicate an opinion (or opinions) exploring the original meaning of the 21st Amendment (repeal of prohibition). The question presented is "Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail […]
Eric Segall Responds to Ilan Wurman on Originalism
Michael Ramsey
At Dorf on Law, Eric Segall responds to Ilan Wurman's review of his book Originalism as Faith: Originalism and Deference: A response to Ilan Wurman. From the main part of the argument: …[T]the overriding point of Originalism as Faith is that originalists only have two coherent choices. They can use text and history as the main […]
Jeffrey Bellin: Fourth Amendment Textualism
Michael Ramsey
Jeffrey Bellin (William & Mary Law School) has posted Fourth Amendment Textualism on SSRN. Here is the abstract: The Supreme Court’s inability to coherently define the term “search” plagues its Fourth Amendment jurisprudence. Even the Justices know they have a problem. Recent opinions only half-heartedly apply the controlling “reasonable expectation of privacy” test and its reviled […]
The Relevance of Edward Coke’s Original Meaning: A Reply to Evan Bernick
Andrew Hyman
My thanks to Evan Bernick for responding to my earlier post about what Edward Coke originally meant by the term "due process of law." Bernick is “primarily concerned” with how Coke was understood by the generations of Americans who authored the U.S. Constitution, rather than with Coke’s original meaning. I entirely agree with Bernick on this […]