Eric Segall: Is Originalism a Theory?
Michael Ramsey
At Dorf on Law, Eric Segall: Is Originalism a Theory? Here is a key part of the argument: As I've been giving talks at various law schools discussing my new book "Originalism as Faith," one common reaction is great surprise that Originalism today refers to many different theories of constitutional interpretation that have very little in […]
Old English Law Indicates that “Six Months” is the Maximum Necessary and Proper Constitutional Limit on Tenure of Acting Cabinet Secretaries
Andrew Hyman
My co-bloggers Michael Ramsey and Michael Rappaport both say that the following act violated the Constitution's original meaning. On February 13, 1795 Congress passed this law titled, "An Act to Amend the Act, entitled 'An Act Making Alterations in the Treasury and War Departments'" (emphasis added): [I]n case of vacancy in the office of secretary of […]
Kevin Tobia: Testing Original Public Meaning
Michael Ramsey
Kevin P. Tobia (Yale University; ETH Zurich) has posted Testing Original Public Meaning on SSRN. Here is the abstract: Various interpretive theories recommend using dictionaries or corpus linguistics to provide evidence about the “original public meaning” of legal texts. Such an interpretive inquiry is typically understood as an empirical one, aiming to discover a fact about […]
Counterpoint: The Whitaker Appointment Is Unconstitutional under the Constitution’s Original Meaning
Michael Ramsey
In the matter of the appointment of Matthew Whitaker as Acting Attorney General, my co-bloggers are divided: Andrew Hyman argues here that the appointment is constitutional under the Constitution's original meaning, while Mike Rappaport argues here (relying on his earlier law review article) that it is not, because Mr. Whitaker does not hold a Senate-confirmed […]
Acting Appointments and the Constitution’s Original Meaning
Mike Rappaport
There has been much controversy over the naming of Matthew Whitaker, the Chief of Staff of former Attorney General Sessions, to be Acting Attorney General. Whitaker was not serving in a position that required the advice and consent of the Senate. So the question is whether Whitaker can be named as Acting Attorney General when […]
Christopher Schmidt: Originalism and Congressional Power to Enforce the Fourteenth Amendment
Michael Ramsey
Christopher W. Schmidt (Chicago-Kent College of Law; American Bar Foundation) has posted Originalism and Congressional Power to Enforce the Fourteenth Amendment (74 Washington and Lee Law Review Online 33 (2018)) on SSRN. Here is the abstract: In this Essay I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power […]
More on Birthright Citizenship: Nonoriginalism Allows the Denial of Birthright Citizenship but Originalism Does Not
Mike Rappaport
The debate on birthright citizenship continues. But I find it frustrating in two ways. First, nonoriginalists continue to ignore that there is a very reasonable case to be made that nonoriginalism denies birthright citizenship. Second, some critics of birthright citizenship, who purport to write from an originalist perspective, continue to argue that the original meaning […]
Why the Whitaker Appointment Complies With the Original Meaning of the Constitution
Andrew Hyman
A few days ago, Jeff Sessions resigned as Attorney General, and Matthew Whitaker was appointed Acting Attorney General pending the nomination and confirmation of a permanent replacement for Sessions. Several lawyers have been claiming the Whitaker appointment violates the Constitution, including George Conway and Neal Katyal writing in the New York Times. Others disagree with […]
Birthright Citizenship: Originalism and Nonoriginalism
Mike Rappaport
President Trump has put the Fourteenth Amendment’s Citizenship Clause in the news. The question is whether the language in the Amendment—“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”—provides citizenship to the children of illegal or undocumented aliens who are born in the United […]
Anthony Bellia & Bradford Clark: Why Federal Courts Apply the Law of Nations Even Though It Is Not the Supreme Law of the Land
Michael Ramsey
Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted Why Federal Courts Apply the Law of Nations Even Though It Is Not the Supreme Law of the Land (106 Georgetown Law Journal 1915 (2018)) on SSRN. Here is the abstract: We are grateful to the judges […]