Justice Alito versus Justices Gorsuch and Sotomayor on Original Meaning and Restitution
Michael Ramsey
On Monday the Supreme Court denied review in Hester v. United States, which posed the question: Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable […]
The Border Wall and Presidential Emergency Powers (Updated)
Michael Ramsey
At Balkinization, John Fabian Witt (Yale) (guest blogging): National Emergencies, Then and Now. From the introduction: As most readers of this blog will have seen, President Trump said on Friday that he was considering declaring a national emergency to build a wall on the southern border, despite congressional refusal to fund such a wall. On Sunday, […]
Seth Barrett Tillman on Chief Judge Eckerstrom on the Senate’s Duty to Consider Supreme Court Nominees
Michael Ramsey
Seth Barrett Tillman (National University of Ireland, Maynooth – Faculty of Law) has posted On the Senate’s Purported Constitutional Duty to Meaningfully Consider Presidential Nominees to the Supreme Court of the United States: A Response to Chief Judge Peter J. Eckerstrom on SSRN. Here is the abstract: In a recent issue of the University of Pennsylvania […]
Washington Post Magazine Article on the Federalist Society
Michael Ramsey
In the Washington Post Magazine, reporter David Montgomery has this long (and relatively balanced) article about the Federalist Society and its influence on the courts in the Trump administration: Conquerors of the Courts — Forget Trump’s Supreme Court picks. The Federalist Society’s impact on the law goes much deeper. From the discussion: But having allies […]
Congress’s Power to Define “Natural Born” (Final Version)
Michael Ramsey
The final version of my essay Congress’s Power to Define “Natural Born”: A Response to Professor Lee (68 Am. U. L. Rev. F. 23 (2018)) is now available. Here is the abstract: Professor Thomas Lee and I independently wrote recent Articles on the original meaning of the Constitution’s “natural born Citizen” clause, reaching somewhat different […]
Michael Dorf, Precedent, and the Original Meaning
Mike Rappaport
Recently, Michael Dorf wrote an interesting post about originalism and precedent. Dorf’s post raises some significant points about this crucial area for originalists. Here I would like to explore and answer some of Dorf’s questions while explaining my own theory of precedent. My theory, which John McGinnis and I developed in our book Originalism and […]
Elliot Mincberg on the Maryland Cross Litigation
Michael Ramsey
At The Hill, Elliot Mincberg (People for the American Way): Conservative Supreme Court could reverse decades of First Amendment law. From the introduction: The American Legion and its supporters recently filed initial briefs in The American Legion v. American Humanist Association, a Supreme Court case to be argued in February concerning the constitutionality of a four-foot, […]
James Phillips & John Yoo on Originalism and Free Speech
Michael Ramsey
At NRO, John Yoo and James C. Phillips: ‘Free Speech’ Means Just That. From the introduction: Earlier this year, the Defense Department limited the right of the transgendered to serve in the military. Three federal courts blocked the policy for infringing the constitutional rights of the transgender individuals. One of the judges relied on the […]
Seth Barrett Tillman on Richard Fallon
Michael Ramsey
Recently published, from Seth Barrett Tillman: Canonical Cases and Other Quodlibets: A Response to Professor Fallon, 97 Tex. L. Rev. Online 13 (2018). Here is an excerpt (pp. 16-20): Professor Fallon states: The Lincoln Administration denied the court’s jurisdiction in Ex parte Merryman, but its position was debatable at best, tendentious at worst. A federal court had […]
Joel Goldstein: Talking Trump and the Twenty-Fifth Amendment
Michael Ramsey
Joel K. Goldstein (Saint Louis University – School of Law) has posted Talking Trump and the Twenty-Fifth Amendment: Correcting the Record on Section 4 (Journal of Constitutional Law, Vol. 21, No.1, 2018) on SSRN. Here is the abstract: The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth […]