James Phillips & John Yoo on Originalism and Common Law Constitutionalism
Michael Ramsey
At NRO, John Yoo and James C. Phillips: A Clash of Judicial Visions. From the core of the discussion: These two visions of the courts have given birth to two distinct approaches to judging. The first view mistakenly appeals to the way state judges decide the cases that most Americans encounter: criminal trials, contract and property […]
John C. Harrison: The Constitution and the Law of Nations
Michael Ramsey
John C. Harrison (University of Virginia School of Law) has posted The Constitution and the Law of Nations (Georgetown Law Journal, Vol. 106, No. 6, 2018) on SSRN. Here is the abstract. Under the original understanding of the Constitution, customary international law features in the U.S. legal system as general law. It is not law of […]
New Book: The Second Creation by Jonathan Gienapp
Michael Ramsey
Recently published, by Jonathan Gienapp (Stanford history): The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press 2018). Here is the book description from Amazon: A stunning revision of our founding document’s evolving history that forces us to confront anew the question that animated the founders so long ago: What is our Constitution? […]
Two Videos (Sessions and Roberts)
Andrew Hyman
Here are two very recent videos that both touch upon originalism, from the perspectives of the executive and judicial branches respectively: https://www.youtube.com/watch?v=XzcqmEcTPoA#action=share "Attorney General Jeff Sessions Delivers Remarks at The Heritage Foundation President's Club Meeting" (Oct. 15, 2018) https://www.c-span.org/video/?451977-1/chief-justice-roberts-remarks-university-minnesota-law-school "Chief Justice Roberts Remarks at University of Minnesota Law School" (Oct. 16, 2018) […]
John McGinnis and Eric Segall on Law Students and Originalism [Update: and Tushnet]
Michael Ramsey
At Liberty Law Blog, John McGinnis: Why Law Students Need to Learn More about Originalism. It begins: It would be educational malpractice not to teach antitrust law without explaining the consumer welfare model that generates most modern decisions in American competition law. Even if as a scholar you believed that the model was misguided, this would […]
William Haun: The Virtues of Judicial Self-Restraint
Michael Ramsey
In the current issue of National Affairs, William Haun: The Virtues of Judicial Self-Restraint. Here is the introduction: The modern conservative legal movement began with a principal focus on judicial self-restraint. Decades of a burgeoning federal criminal code, expanded delegation and deference to administrative agencies, and an increasingly prominent libertarianism within the conservative legal movement, however, […]
Larry Solum on New Originalism
Michael Ramsey
At Legal Theory Blog, Larry Solum has this entry in his "Legal Theory Lexicon": The New Originalism. From the introduction: The phrase “New Originalism” was first used Evan Nadel in 1996, but the phrase was popularized by Randy Barnett and Keith Whittington a few years later. Of course, this phrase is just a name that […]
Josh Blackman: The Power to Exclude
Michael Ramsey
Josh Blackman (South Texas College of Law Houston) has posted The Power to Exclude on SSRN. Here is the abstract: Under modern doctrine, the federal government has an inherent authority to exclude aliens from entering the United States. In contrast, states lack any power to exclude aliens from entering their own borders. Though well settled, this […]
Barry McDonald on Judicial Restraint
Michael Ramsey
In The New York Times, Barry McDonald (Pepperdine): Should the Supreme Court Matter So Much? From the introduction: If you paused during the heated battle over Brett Kavanaugh’s Supreme Court nomination to ask yourself whether it made any sense for the appointment of one individual to one position in our government to matter so much, […]
Elizabeth Reese: Popular Sovereignty and the Power to Choose a Government
Michael Ramsey
Elizabeth Reese (U.S. Court of Appeals for the Seventh Circuit) has posted Or to the People: Popular Sovereignty and the Power to Choose a Government (39 Cardozo L. Rev. 2051 (2018)) on SSRN. Here is the abstract: To protect state sovereignty, contemporary textualism has reinvigorated the Tenth Amendment as a judicially enforceable limit on federal powers. […]