Ratifying the Constitution and the Bill of Rights Was More Peculiar Than Most People Realize
Mike Rappaport
Note: While most readers of this blog are likely to know this story, I thought I would post it just in case. Most people know that there were 13 original states that declared independence from Great Britain. But the Constitution changed things and that caused significant actions in our early constitutional history to occur with […]
Randy Barnett on Judge Kavanaugh and Judicial Philosophy
Michael Ramsey
At Volokh Conspiracy, Randy Barnett: The Case for Kavanaugh: How "judicial philosophy" figures into the decision to support or oppose a nominee (making an argument "without regard to the questions raised after the close of his Senate Judiciary Committee hearing"). From the core of the argument: I agree with Joe Biden who, as Senate Judicial Committee chair, insisted […]
Amanda Tyler and the Original Meaning of the Habeas Corpus Suspension Clause
Mike Rappaport
While the original Constitution certainly had some defects — especially that it allowed slavery — it was in many ways an amazingly protective document. It was a classical liberal document that strongly defended many individual rights. This fact is often obscured by today’s debates. Take gay marriage. The normal take — which may be wrong […]
Gundy and Nondelegation, Today
Michael Ramsey
Today the Supreme Court hears oral argument in Gundy v. United States, a nondelegation challenge to rules issued by the Attorney General under the Sex Offender Registration and Notification Act (SORNA). At SCOTUSblog, my colleague Mila Sohoni has a preview. On the key points of the case, she writes: Gundy’s petition raised four questions, but the Supreme […]
Thomas H. Lee: The Law of Nations and the Judicial Branch
Michael Ramsey
Thomas H. Lee (Fordham University School of Law) has posted The Law of Nations and the Judicial Branch (Georgetown Law Journal, Vol. 106, p. 1707, 2018) on SSRN. Here is the abstract: This Article explains what the law of nations meant at the time the United States was established and how it interacted with the original […]
John McGinnis on Originalism and Precedent
Michael Ramsey
At Liberty Law Blog, John McGinnis has this series of posts on originalism and precedent: How Originalism Integrates Precedent, Part I How Originalism Integrates Precedent, Part 2 Originalist Rules of Precedent From the introduction to the first post: [P]recedent does not directly seek evidence as of the meaning of a provision at the time it […]
Calvin TerBeek on Judge Kavanaugh’s Originalism
Michael Ramsey
At the new blog A House Divided, Calvin TerBeek: The Kavanaugh Nomination & Originalism as "Counterrevolutionary". From the introduction: Before the nomination of Brett Kavanaugh to the Supreme Court turned to allegations of sexual assault (and alleged sexual misbehavior), the focus was on originalism as Kavanaugh’s judicial philosophy. Peek at the pages of National Review and one […]
W.B. Allen on Jack Rakove on Madison
Michael Ramsey
At Liberty Law Blog, W.B. Allen (visiting scholar, University of Colorado Boulder): Madison: Pragmatist, Idealist . . . and Game Theorist? (reviewing Jack Rakove, A Politician Thinking: The Creative Mind of James Madison [Univ of Okla. Press 2017]). From the introduction: It may surprise students of the life and thought of James Madison to see him described as a […]
Gerard Magliocca: Rediscovering Corfield v. Coryell
Michael Ramsey
Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted Rediscovering Corfield v. Coryell on SSRN. Here is the abstract: This Article presents new information on Justice Bushrod Washington's circuit opinion in Corfield v. Coryell. My findings are based on the discovery of Justice Washington's original notes on Corfield, which are held by […]
Preview: Originalism and the Supreme Court’s October 2018 Term
Michael Ramsey
Looking at the cases granted review so far for the the Supreme Court's upcoming term, it does not appear that this year will rival last year in terms of high-profile cases. Nonetheless, there are several of originalist interest. (A full list of granted cases is available from SCOTUSblog here). Here are four worth watching: Gundy […]