John Yoo & James Phillips on Originalism and the Religion Clauses
Michael Ramsey
At NRO, John Yoo & James C. Phillips: Religion and the New Supreme Court. In the wake of the confirmation of Justice Brett Kavanaugh to the Supreme Court, religion will probably present the first test of the new Roberts Court’s commitment to the original meaning of the Bill of Rights. … Even though the main […]
Timbs Oral Argument Followup
Michael Ramsey
At Volokh Conspiracy, Ilya Somin: Today's Supreme Court Oral Argument in Timbs v. Indiana Suggests Justices are Likely to Apply Excessive Fines Clause to State Asset Forfeitures. [Oral argument in the Timbs case] makes clear that the Court will almost certainly rule that the Excessive Fines Clause does indeed apply to the states. The justices also […]
Thomas Berry on the Whitaker Appointment
Michael Ramsey (With Update by Andrew Hyman)
At the Notice and Comment blog, Thomas Berry (Pacific Legal Foundation): Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies Acts. The post discounts the main theory advanced by the Justice Department — that the Acting Attorney General in an inferior officer — and instead considers that perhaps he is not an officer […]
Timbs Tomorrow
Michael Ramsey
Tomorrow the Supreme Court will hear oral argument in Timbs v. Indiana, a case of likely originalist interest. Here is the SCOTUSblog preview: [T]he Supreme Court will hear oral argument in the case of Tyson Timbs, an Indiana man who lost his Land Rover after his conviction on state drug charges. A state trial court […]
John McGinnis on Originalists in Congress
Michael Ramsey
At Liberty Law Blog, John McGinnis: Meet the Federalist Society Caucus. It begins: Much has been written about the rise of judges who were nurtured in the Federalist Society. They are likely to continue a revolution of formalism in both statutory and constitutional interpretation. But almost nothing has been said about the rise of U.S. Senators […]
More from Will Foster on Janus v. AFSCME
Michael Ramsey
Will Foster (whose article I noted in this post), writes: On August 3, 2018, I posted my paper "Why Janus Is Indefensible on Neutral Principles" on SSRN. My paper was subsequently featured on the Originalism Blog on August 9. In both the SSRN abstract and the blog post, I clearly identified myself as a high […]
Daniel Birk: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent
Michael Ramsey
Daniel D. Birk (Chicago-Kent College of Law) has posted The Common-Law Exceptions Clause: Congressional Control of Supreme Court Appellate Jurisdiction in Light of British Precedent (Villanova Law Review, Vol. 63, No. 2, 2018) on SSRN. Here is the abstract: Jurists and scholars widely acknowledge that the institutions, practices, and decisions of the British common-law court system […]
Evan Bernick: Substantive Due Process Justice Thomas Could Love
Michael Ramsey
Evan D. Bernick (Georgetown University Law Center) has posted Optimizing the Oxymoron: Substantive Due Process Justice Thomas Could Love (George Mason Law Review, forthcoming) on SSRN. Here is the abstract: Originalists generally reject the proposition that the Due Process of Law Clauses of the Fifth and Fourteenth Amendments not only require that certain procedures be followed […]
Two Views of History and Nationwide Injunctions
Michael Ramsey
In the Seventh Circuit sanctuary city case, now called City of Chicago v. Whitaker, an impressive group of prominent legal historians has filed this amicus brief in support of the nationwide injunction. Here is the brief's summary of argument: Nationwide injunctions against the federal government were not issued in 1789. But that is the result […]
Craig Green: Deconstructing the Administrative State
Michael Ramsey
Craig Green (Temple University – James E. Beasley School of Law) has posted Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law on SSRN. Here is the abstract: In 2018, Justice Kennedy wrote that the Supreme Court should “reconsider the premises” of Chevron v. NRDC based on “separation-of-powers principles.” In 2015, […]