A Commentary on Holmes’s Lochner Dissent: Part II
Mike Rappaport
In the first part of this post, I started my commentary on Holmes’s Lochner dissent. Here I continue it. As before, Holmes's dissent is in italics, my commentary is in normal print. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. [Holmes here lists various other decisions.] Some of […]
Kevin Toh: Some Reflections on Musical and Legal Interpretation
Michael Ramsey
Kevin Toh (University College London) has posted Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation (forthcoming, Lisa Crawford, Patrick Emerton, & Dale Smith (eds.), Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Oxford: Hart Publishing)) on SSRN. Here is the abstract: This paper is an attempt to exploit a […]
A Commentary on Holmes’s Lochner Dissent: Part I
Mike Rappaport
Oliver Wendell Holmes’s Lochner dissent is perhaps the most famous dissent in all of constitutional law. Some people regard it as great, either because it criticizes the majority decision in Lochner or because it defends a certain restraint-oriented jurisprudence. Others regard is as awful, sometimes for the same reasons. It is only two paragraphs in […]
District Court Finds Hotel Stays Are Emoluments, Principally Based on Originalist Analysis
Michael Ramsey
Yesterday the District Court in the Maryland emoluments litigation (District of Columbia and Maryland v. Trump) denied the President's motion to dismiss, ruling that state and foreign government officials paying for stays at the Trump Hotel are "emoluments" barred by the Constitution. The analysis is mostly originalist on the key point — the eighteenth-century definition of […]
Ninth Circuit Finds Right to Carry Arms in Public, Principally Based on Originalist Analysis
Michael Ramsey
In Young v. Hawaii, decided yesterday, a panel of the Ninth Circuit (O'Scannlain, joined by Ikuta; Clifton dissenting) found a constitutional right to carry firearms in public. As one would anticipate from Judge O'Scannlain, the analysis is heavily textualist and originalist. Two highlights: The court relies in part on the existence of textually separate rights […]
Birthright Citizenship: What the Meaning of “in” is
Andrew Hyman
This is a brief followup to Mike Ramsey’s recent post about birthright citizenship for babies born to people who have immigrated illegally to the United States. The Citizenship Clause says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State […]
A Response on Birthright Citizenship
Devin Watkins
[Ed.: For this guest post we welcome Devin Watkins, a frequent writer on constitutional law issues from an originalist perspective]. Concerning the topic of birthright citizenship, I wish to play devil’s advocate for a moment. I support granting birthright citizenship as a policy—which I believe Congress clearly has the power to do—but I have […]
Birthright Citizenship and the Conservative Living Constitution (Updated)
Michael Ramsey
In last week's Washington Post, former presidential advisor Michael Anton argues that the Fourteenth Amendment's guarantee of U.S. citizenship to persons born in the United States should not extend to children of aliens not lawfully present (and perhaps not to persons only transitorally present in the US): Citizenship shouldn’t be a birthright. Gerard Magliocca (Balkinization) and […]
There Are Not Supposed to Be Any Unwritten Judge-Made Exceptions to the Speech and Press Clause
Andrew Hyman
The Speech and Press Clause in the First Amendment says, “Congress shall make no law… abridging the freedom of speech, or of the press….” Ever since it was ratified in 1791, speakers and writers have been asking: what exactly does that clause mean, and what (if any) are the exceptions? In 2017, Judge Brett Kavanaugh […]
John Mikhail: A Tale of Two Sweeping Clauses
Michael Ramsey
John Mikhail (Georgetown University Law Center) has posted The Declaration of Independence and the Constitution: A Tale of Two Sweeping Clauses (Harvard Journal of Law & Public Policy, forthcoming) on SSRN. Here is the abstract: Whenever the relationship between the Declaration of Independence and the Constitution gets discussed, most of the attention naturally gravitates toward the […]