What is Originalism? Is it a Good Idea?
Chris Green
My debate last week with Eric Segall is now on Youtube, in a much better format than we've had available for the last week. Let us know if you'd like us to present the same show in your town! My handout is here–I'd also be happy to debate anyone else who would like to offer […]
Katie Eyer: Statutory Originalism and LGBT Rights
Michael Ramsey
Katie R. Eyer (Rutgers, The State University of New Jersey – Rutgers Law School) has posted Statutory Originalism and LGBT Rights (Wake Forest Law Review, forthcoming) on SSRN. Here is the abstract: In the wake of marriage equality, LGBT claims to employment rights have taken center stage in the struggle for LGBT equality. Raising claims under federal […]
Protecting Traditional Rights with the Ninth and Fourteenth Amendments
Mike Rappaport
In my last post, I explored in what way Hayek might be thought of as an originalist. I wrote that Hayek relied to a significant extent on the 9th Amendment and the Privileges and Immunities Clause for his claim that the Constitution was intended to protect traditional principles that were not textually listed. In this […]
Congress’ Power to Define ‘Natural Born’: A Reply to Professor Lee
Michael Ramsey
I have posted a new short essay on SSRN: Congress’ Power to Define 'Natural Born': A Reply to Professor Lee (American University Law Review Forum. vol 68, 2018, forthcoming). As the name indicates, it is a reply to Professor Thomas H. Lee's outstanding article “Natural Born Citizen,” 67 Am. U. L. Rev. 327 (2017) (SSRN version […]
Jeremy Telman: Originalism as Fable
Michael Ramsey
D.A. Jeremy Telman (Valparaiso University Law School) has posted Originalism as Fable (Reviewing Eric Segall, Originalism as Faith) on SSRN. Here is the abstract: Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall’s main argument: as originalism has […]
William Baude & Stephen Sachs on Inter-State Sovereign Immunity
Michael Ramsey
Via Volokh Conspiracy, William Baude and Stephen Sachs have filed an amicus brief in Franchise Tax Board v. Hyatt. As Professor Baude explains: Over the past few decades, the Supreme Court has generally recognized that state governments cannot be sued without their consent under the doctrine of sovereign immunity, and that the federal government has little […]
Mary Sarah Bilder: The Constitution to “The Constitution”
Michael Ramsey
Mary Sarah Bilder (Boston College) has posted The Constitution to The Constitution at the Boston College Digital Library. (This is an excerpt from a longer piece, The Ordeal and the Constitution, The New England Quarterly 91, no.1 (2018): 129-146.) Here is the introduction: The Ideological Origins won the Bancroft and the Pulitzer prizes, but when I see Bernard Bailyn, we don’t talk […]
David Golove & Daniel Hulsebosch: The Law of Nations and the Constitution
Michael Ramsey
David M. Golove (New York University School of Law) and Daniel J. Hulsebosch (New York University School of Law) have posted The Law of Nations and the Constitution: An Early Modern Perspective (Georgetown Law Journal, Vol. 106, p. 1593, 2018) on SSRN. Here is the abstract: Many American scholars, lawyers, and judges born in the latter half […]
The Law of Nations as of 1789 Forbade Immigration Without Permission, Contra Professor Somin [Updated]
Andrew Hyman
The Constitution gives Congress power “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” In a September 12 essay titled "Does the Constitution Give the Federal Government Power Over Immigration?”, Ilya Somin writes (incorrectly) that Congress has no general power under this clause to restrict […]
Frank Bowman: British Impeachments (1376 – 1787) & the Present American Constitutional Crisis
Michael Ramsey
Frank O. Bowman III (University of Missouri School of Law) has posted British Impeachments (1376 – 1787) & the Present American Constitutional Crisis on SSRN. Here is the abstract: Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach […]