John McGinnis on Originalism, Stare Decisis and Justice Kavanaugh
Michael Ramsey
At Liberty Law Blog, John McGinnis: Is Justice Kavanaugh Grievously Wrong on Stare Decisis? It begins: Yesterday the Supreme Court heard an important case, Gamble v. United States, on the Double Jeopardy Clause. The question presented is whether successive prosecutions by state and federal governments for the same offense violate the Clause. The decision will be […]
Aaron Rappaport: An Unappreciated Constraint on the President’s Pardon Power
Michael Ramsey
Aaron J. Rappaport (University of California Hastings College of the Law) has posted An Unappreciated Constraint on the President's Pardon Power on SSRN. Here is the abstract: Most commentators assume that, except for the few textual limitations mentioned in the U.S. Constitution, the President’s pardon power is effectively unlimited. This paper suggests that this common view […]
The End of the Separate Sovereigns Doctrine? (Updated)
Michael Ramsey
Today is the oral argument in Gamble v. United States, in which the question presented is "Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause." At Volokh Conspiracy, Paul Cassell has this post: Dual Sovereign Doctrine Under Attack in the Supreme Court: Strong originalist arguments exist for overruling the dual […]
Was the Monroe Doctrine Unconstitutional?
Michael Ramsey
At Lawfare , Matthew Waxman notes The Anniversary of the Monroe Doctrine (announced December 2, 1823) and questions its constitutionality: Monroe’s proclamation is a momentous example of the president’s vast constitutional power to set and communicate U.S. foreign policy. This was not just any kind of diplomatic policy, however. This was drawing a red line—with an […]
Timbs and Substantive Due Process
Andrew Hyman
The issue of substantive due process is now again before SCOTUS in Timbs v. Indiana. That case involves incorporation of the Eighth Amendment’s Excessive Fines Clause against the states. The last time SCOTUS incorporated a substantive provision of the Bill of Rights against the states was when it incorporated the Second Amendment in 2010. […]
Lawrence Solum on Statutory Interpretation
Michael Ramsey
At Legal Theory Blog, the Legal Theory Lexicon addresses Theories of Statutory Interpretation and Construction. From the introduction: Although the first year of law school is weighted towards the study of common law subjects (contracts, common law crimes, property, and torts) with perhaps some civil procedure and constitutional law, most modern law involves statutes and regulations. […]
Debating Original Methods Originalism
Mike Rappaport
Recently, Jack Balkin wrote a critique of Original Methods Originalism, the interpretive approach to original meaning that John McGinnis and I have developed. His approach was based on the new book by Jonathan Gienapp, The Second Creation, which argues that it took some time after the Constitution’s ratification for the interpretive rules governing the Constitution […]
Some Further Thoughts on Janus and Precedent
Will Foster
[Editor's note: This guest post is by Will Foster (Walter Payton College Prep, Chicago), whose earlier essay on the Janus case we noted here]. In “Why Janus Is Indefensible on Neutral Principles,” previously featured on this blog, I argued that the Supreme Court’s 5-4 decision in the Janus v. AFSCME union fees case last June was […]
Thomas Ascik on Timbs v. Indiana
Michael Ramsey
At Liberty Law Blog, Thomas Ascik has a counterpoint on Timbs v. Indiana: Asset Forfeiture, Incorporation, and the Fourteenth Amendment. Here is the conclusion: Overall, it seems that with the hostility bordering on sarcasm that Indiana’s counsel experienced and after the Austin case making federal forfeitures subject to the Excessive Fines Clause and the McDonald case incorporating the Second […]
Christopher Yoo: James Wilson as the Architect of the American Presidency
Michael Ramsey
Christopher S. Yoo (University of Pennsylvania Law School) has posted James Wilson as the Architect of the American Presidency (Georgetown Journal of Law & Public Policy, forthcoming) on SSRN. Here is the abstract: For decades, James Wilson has been something of a “forgotten founder.” The area where commentators generally recognize Wilson’s influence at the Convention is […]