Tuan Samahon: Characterizing Power for Separation-of-Powers Purposes
Michael Ramsey
Tuan Samahon (Villanova University – School of Law) has posted Characterizing Power for Separation-of-Powers Purposes (University of Richmond Law Review, Vol. 52, 2018) on SSRN. Here is the abstract: The U.S. Constitution parcels "legislative," "executive," and "judicial" powers among the separate branches of the federal government, but leaves those powers undefined. Accordingly, characterizing exercises of power […]
Saul Cornell’s Unfair Criticism of Originalists and Mike Ramsey
Mike Rappaport
Originalist critic Saul Cornell has written a new blog post attacking originalism. Cornell’s principal claim in this piece is that originalists misunderstand anti-originalist criticisms of originalism and his focus is my friend and colleague, Mike Ramsey. While Ramsey has ably defended himself, I wanted to discuss a couple of claims that Cornell makes: his claim […]
Originalism and Presidential Immigration Power
Michael McConnell
[Editor's note: Michael McConnell writes: I was struck by the post on the Originalism Blog regarding the absence of originalist arguments in Trump v. Hawaii, and especially by the quotation from the estimable Justice Thomas, to the effect that "[T]he President has inherent authority to exclude aliens from the country. See United States ex rel. Knauff v. […]
Michael Dorf on Originalism and NIFLA v. Becerra
Michael Ramsey
At Dorf on Law, Michael Dorf: SCOTUS Crisis Pregnancy Center Case Shows Originalist Justices Are Originalist Except When They're Not. [The Supreme Court's] decision in National Institute of Family Life Advocates (NIFLA) v. Becerra … is telling in at least one other respect. Justice Thomas is often and appropriately held up as the most originalist justice, at least as evaluated by […]
Aditya Bamzai on Ortiz v. United States
Michael Ramsey
At Lawfare, Aditya Bamzai (University of Virginia Law School): Reflections on Ortiz and the Structural Separation of Powers. From the introduction: On [June 22], the Supreme Court released its opinion in Ortiz v. United States, a case in which I participated at oral argument as an amicus curiae in January of this year. In relevant part, Ortiz addressed the question whether the […]
Not Much Originalism this Week from the Supreme Court
Michael Ramsey
In contrast to last week, this week was a disappointing one for Supreme Court originalism. First, in Trump v. Hawaii, Chief Justice Roberts' majority opinion upholding the constitutionality of the President's travel ban relied on the rational basis test. Though it may reach the right result here, the rational basis test is (as various originalist […]
The Problems With Declaring Procedurally Valid Constitutional Amendments to be Unconstitutional
Mike Rappaport
In a recent post, I discussed the movement in much of the world to declare constitutional amendments that are otherwise procedurally valid to be unconstitutional on the ground that they violate implicit or extra constitutional norms. Here I want to discuss why, in the American context and perhaps in other countries, that is such a […]
Mark Pulliam: Unleashing the “Least Dangerous” Branch
Michael Ramsey
In the Texas Review of Law and Politics, Mark Pulliam: Unleashing the "Least Dangerous" BRanch: Quis Custodiet Ipsos Custodes? From the introduction (footnotes omitted): In recent years, a schism has developed on the Right between libertarian and conservative legal scholars regarding the role courts should play in conducting judicial review of laws challenged as unconstitutional. […]
Corpus Linguistics Arrives At the Supreme Court
James A. Heilpern
[Editor's note: For this guest post we welcome James Heilpern, Law & Corpus Linguistics Fellow at the J. Reuben Clark Law School, Brigham Young University.] As Mike Rappaport explained in a previous post, “corpus linguistics is a part of linguistics which uses databases and sophisticated software to study the ‘real life’ use of language.” In 2011, Justice Thomas […]
Richard Primus: Enumerated Powers and the Bank of the United States
Michael Ramsey
Richard Primus (University of Michigan Law School) has posted 'The Essential Characteristic': Enumerated Powers and the Bank of the United States (Michigan Law Review, forthcoming) on SSRN. Here is the abstract: The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally […]