Glenn Chappell: The Historical Case for Constitutional ‘Concepts’
Michael Ramsey
Glenn Chappell (Law Clerk, United States Court of Appeals for the Eleventh Circuit; Duke JD '17) has posted The Historical Case for Constitutional 'Concepts' on SSRN. Here is the abstract: The concepts/conceptions dichotomy is prominent in both communication theory and the field of constitutional interpretation. It is most prominently illustrated by the provisions in the […]
Unconstitutional Constitutional Amendments
Mike Rappaport
Throughout the world, constitutional courts have asserted ever increasing powers. One of the most significant areas involves the claimed judicial power to declare otherwise perfectly constitutional amendments to be unconstitutional, because the judges believe they are not in accord with constitutional norms. This recent article describes the issue: Courts around the world—from Bangladesh to Belize, […]
Evan Bernick: Envisioning Administrative Procedure Act Originalism
Michael Ramsey
Evan D. Bernick (Georgetown University Law Center) has posted Envisioning Administrative Procedure Act Originalism (Administrative Law Review, Vol. 70, No. 4, 2018) on SSRN. Here is the abstract: Much of our administrative law is governed by judicially-created “common law” doctrines that seem untethered to either the text or the history of the Administrative Procedure Act of […]
Timbs and the Privileges or Immunities Clause
Chris Green
Yesterday the Supreme Court granted certiorari in Timbs v. Indiana, a case asking "[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment." Unlike the Court's last incorporation case, McDonald v. Chicago, the petitioners did not separate out the Fourteenth Amendment's clauses in the question presented, so the Court's […]
Michael Dorf on Originalism’s Bait and Switch
Michael Ramsey
As Justia, Michael Dorf: Originalism, the Contracts Clause, and the Sveen Case. It begins: On Monday evening, I had the pleasure to debate Georgetown Law Professor Randy Barnett on the question whether “the U.S. Constitution should be interpreted and applied according to the original meaning communicated to the public by the words of the text.” Professor Barnett said yes; I […]
Even More on Presidential Self-Pardons (Update: with Comments by David Weisberg)
Michael Ramsey
At The Faculty Lounge, Eric Muller responds to this Originalism Blog guest post by Michael McConnell. Professor Muller begins: Not long ago I put up a post here noting the extreme rarity of the reflexive use of the verb "to grant," both in the 18th century and now. (This in the context of whether the president can "grant" […]
Daniel Martin: The Duty to Appropriate
Michael Ramsey
Recently published, in the California Law Review, Daniel Martin (Berkeley JD '17): The Duty to Appropriate: Why Congress Has a Constitutional Obligation to Fund Criminal Law Enforcement (106 Cal. L. Rev. 511 (2018)). Here is the abstract: In the Federalist Papers, James Madison famously called the power of the purse “the most complete and effectual […]
A Response to Professor McConnell on Presidential Self-Pardons
Brian Kalt
[Ed.: Continuing our discussion of presidential self-pardons, we welcome this guest post from Brian Kalt, Professor of Law & Harold Norris Faculty Scholar, Michigan State University College of Law. He is the author of Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, 106 Yale Law Journal 779 (1996). Thanks again to Andrew Hyman for facilitating […]
Further Thoughts on the President’s Self-Pardon Power
Michael McConnell
[Ed: For this post we welcome Michael W. McConnell, the Richard & Frances Mallery Professor of Law, Stanford Law School, Director of the Stanford Constitutional Law Center and Senior Fellow, Hoover Institution. Thanks to Andrew Hyman for arranging this contribution.] There have been two serious substantive responses to my Washington Post op-ed on whether the President can […]
John McGinnis on Originalism and Alternatives
Michael Ramsey
At City Journal, John McGinnis: A Philosophy of Expedience. From the introduction: Judicial appointments have proved the most successful aspect of the Trump presidency. Neil Gorsuch has begun where Antonin Scalia left off—as a committed originalist and eloquent textualist. Twenty-one appellate justices have been confirmed, a record at this point in a modern President’s term. And, like Gorsuch, […]