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 […]

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 […]

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 […]