New Book: “Almost Citizens” by Sam Erman
Michael Ramsey
Recently published, by Sam Erman (USC): Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (Cambridge University Press 2018). Here is the book description from Amazon: Almost Citizens lays out the tragic story of how the United States denied Puerto Ricans full citizenship following annexation of the island in 1898. As America became an overseas […]
Adrian Vermeule: The Publius Paradox
Michael Ramsey
Adrian Vermeule (Harvard Law School) has posted The Publius Paradox (forthcoming, Modern Law Review) on SSRN. Here is the abstract: At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued “[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators.” Publius then expands upon […]
Michael Dorf on Originalism and Precedent
Michael Ramsey
At Dorf on Law, Michael Dorf: How Determinate is the Original Understanding of Stare Decisis? From the beginning: … [M]ost jurists who call themselves originalists do accept stare decisis. Scalia argued that doing so did not undermine his general approach because, he said, every interpretive approach must make room for precedent as an add-on. For reasons I've […]
Michael Stokes Paulsen Reviews “To End a Presidency: The Power of Impeachment”
Michael Ramsey
In the current issue of the Harvard Law Review, Michael Stokes Paulsen: To End a (Republican) Presidency (132 Harv. L. Rev. 689 (2018)) (reviewing Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment (Basic Books 2018)). From the introduction: Alexander Hamilton foresaw it perfectly: impeachments of Presidents are by their nature political proceedings, conducted […]
Matthew Waxman Reviews “Presidents of War” by Michael Beschloss
Michael Ramsey
Matthew C. Waxman (Columbia Law School) has posted Presidents and War Powers on SSRN. Here is the abstract: The U.S. Constitution vests the president with “executive power” and provides that “The President shall be Commander in Chief of the Army and Navy,” while it endows Congress with the power “To declare War.” These provisions have given […]
Judge Peter Eckerstrom: The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text
Michael Ramsey
Recently published, in the University of Pennsylvania Journal of Constitutional Law, Judge Peter C. Eckerstrom (Chief Judge, Arizona Court of Appeals): The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text. From the introduction: Academic recourse to historical practice not only failed to provide discernable constitutional boundaries [of the Senate's advise and […]
Incorporating the Grand Jury Right Against the States
Andrew Hyman
Over at Prawfsblawg, Professor Rory Little wrote on December 3: "the respected NACDL (National Association of Criminal Defense Lawyers), which has filed amicus on Timbs’ behalf regarding Excessive Fines, would surely oppose (as would others on all sides of the criminal justice aisle) incorporation of the Grand Jury clause." I am not so sure that […]
What Are the Implications of Originalism for the Separate Sovereigns Doctrine? None Whatsoever
David Weisberg
It has been asserted recently that there are "strong originalist arguments" for abandoning the separate sovereigns doctrine (SSD). E.g., Paul Cassell and Stuart Banner here. I agree that there are strong–indeed, compelling–arguments for rejecting the SSD, but none of them have anything whatsoever to do with original-public-meaning originalism. First of all, there is absolutely no reason […]
What’s Excessive?
Michael Ramsey
If, as seems likely, the Supreme Court rules that the Eighth Amendment's excessive fines clause applies against the states, courts will have much more need to decide what fines are excessive — see this Bloomberg column by Stephen Carter: No One Likes Excessive Fines, But No One Can Define Them, Either. (Of course, courts already […]
An Additional Source on Jurisdiction and Birthright Citizenship
Michael Ramsey
On the meaning of "subject to [U.S.] jurisdiction" in the first sentence of the Fourteenth Amendment, I came across this source via a colleague writing on a different matter. Service of Process on a British Ship-of-War, 1 Op. Atty Gen. 87, 88 (1799) (opinion of Charles Lee): It may be assumed, as a doctrine perfectly and […]