Robert Natelson on the Meaning of “High … Misdemeanors”
Michael Ramsey
In the Federalist Society Review, Robert G. Natelson (Independence Institute): Impeachment: The Constitution’s Fiduciary Meaning of “High . . . Misdemeanors”. Here is the introduction (footnotes omitted): The Constitution provides expressly for three methods by which federal government officials can be removed from office: (1) elected officials may be defeated for re-election, (2) members of Congress […]
The Original Meaning and The Exclusionary Rule
Mike Rappaport
In his recent concurrence in Collins v. Virginia, Justice Clarence Thomas argues that the exclusionary rule for Fourth Amendment violations should not be applied against the states. He states that even the Supreme Court has acknowledged that the rule is not a constitutional rule. And he argues further that at the time of the Constitution, […]
Saul Cornell on Originalism and History
Michael Ramsey
At Take Care Blog, Sual Cornell (Fordham, History): Originalist Critiques of Anti-Originalism: Still Don’t Know About History (commenting on my post on the recent law professors' letter regarding fiduciary limits on executive power). It begins: To understand the exalted views of presidential power associated with the Trump administration one must appreciate the role that originalism and its theory of the unitary […]
Lynn Uzzell Replies to John McGinnis and Michael Rappaport
Michael Ramsey
At Liberty Law Blog, Lynn Uzzell: The Polylingual Constitution (replying to posts by John McGinnis and Michael Rappaport commenting on her earlier posts on originalism and history). From the introduction: In a pair of posts for Law and Liberty, I argued that public meaning originalists are not doing a good job of communicating with those beyond their narrow circle—neither the public at […]
More Supreme Court Originalism (Part 2)
Michael Ramsey
In addition to Carpenter v. United States, discussed in my prior post, two other Supreme Court cases from yesterday had extensive originalist discussions. First, in Ortiz v. United States, the Court held that it had jurisdiction to hear appeals from non-Article III military courts. Ortiz was convicted by a military court and appealed, but an […]
More Supreme Court Originalism (and Non-Originalism): Carpenter v. United States
Michael Ramsey
Yesterday's decisions from the Supreme Court contain some discussions of interest to originalist scholars. First, in Carpenter v. United States (the cell phone data case). Chief Justice Roberts opens his majority opinion (for five Justices: himself, Breyer, Ginsburg, Sotomakor and Kagan) with a nod to the Founding era: The Fourth Amendment protects “[t]he right of […]
Two Sort-Of Originalist Outcomes
Michael Ramsey
Yesterday the Supreme Court decided, among other cases, Lucia v. SEC and South Dakota v. Wayfair, Inc. Neither majority opinion (by Justices Kagan and Kennedy, respectively) is originalist. But arguably the results are. In Lucia, the Court held that the Securities and Exchange Commission's Administrative Law Judges are officers of the United States and thus […]
Gorsuch and the Sense-Reference Distinction
Chris Green
Justice Gorsuch's opinion for the Court today in Wisconsin Central Ltd. v. United States has a nice little passage at the end distinguishing between meaning and application: This hardly leaves us, as the dissent worries, “trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930’s.” … While […]
Epstein on Self Pardons
Mike Rappaport
Note: I posted this on the Liberty Law Blog about 10 days ago, before much of the subsequent commentary here and elsewhere on the issue, but I thought I would post here anyway. In the Wall Street Journal, eminent law professor Richard Epstein, who is certainly not a Trump partisan, argues that the President can […]
Timbs v. Indiana
Andrew Hyman
Co-blogger Chris Green is correct that substantive due process is not a valid basis for incorporating the Excessive Fines Clause against the states, and he is also correct that using the Privileges or Immunities Clause (PIC) would be a valid way to do it. But getting judges to use PIC instead of substantive due process would […]