Originalism holds that the Constitution should be interpreted in accordance with its original meaning. But how does one determine the original meaning? There have been two leading theories about how to do this: original intent and original public meaning. We propose a third theory of how to determine the original meaning (or, put differently, a […]
Archive | 2014
Revisiting Krugman on Reagan and Race Part II
Previously, I pointed out that Paul Krugman got his facts wrong on two of the three examples he used in a much-cited column to allege that Reagan used “tacit race-baiting.” But what of the third example? “During the 1976 campaign Reagan often talked about how upset workers must be to see an able-bodied man using […]
Mockery of the Obamacare Pajama Boy Anti-Semitic?
That’s the claim made by one Jay Michaelson in the Forward: Yes, Virginia, Pajama Boy is a member of the tribe. Look at him. Pale Ashkenazic skin, Jew-fro’d black curls, Woody Allen specs. Even the smart-ass expression on his face screams of the Wise Son from the Passover Seder.Parenthetically, the model himself is one Ethan […]
Video of Today’s Heritage Panel on A Conspiracy Against Obamacare
This is for those of you who like to see and hear your Conspirators rather than just read them:
Revisiting Krugman on Reagan and Race (UPDATED)
Back in 2007, Krugman wrote a much-talked-about column in which he accused Ronald Reagan of exploiting white racism in his quest for the presidency. He gave three specific examples of Reagan using “tacit race-baiting.” One was Reagan’s speech at a County fair in Mississippi where, he says, Reagan “declared his support for states’ rights — […]
NYU Journal of Law and Liberty’s Supreme Court Review-Preview
The newest issue of the NYU Journal of Law and Liberty is available online. It contains their special Supreme Court Review-Preview, which in turn contains my short article, Interstate Recognition of Same-Sex Marriage after Windsor, which I’ve mentioned here before. It begins: Last June, the headlines said that the Supreme Court’s decision in United States […]
Nathan Schachtman on the Elite Defense Bar and Expert Evidence
Posted with permission from the SchachtmanLaw blog. A couple of months ago, Professor David Bernstein posted to the Volokh Conspiracy, a short piece about some of the missteps and mistakes committed by “elite defense counsel” in litigating expert witness issues. Professor Bernstein makes some interesting points about questionable positions taken by “elite defense counsel” (read: […]
Our Normative Argument For Originalism
By Profs. John McGinnis & Michael Rappaport, guest-blogging on January 7, 2014 9:15 am in Originalism and its Critics
There are a number of ways of attempting to justify following the Constitution’s original meaning. Some people believe that originalism constrains judges. Others see the Constitution as the choice of the people under a popular sovereignty view. We seek to justify following both the Constitution and the original meaning based on the normative desirability of […]
Michael Rappaport on the Nonoriginalist Arguments for Broadening the Recess Appointments Clause
Those who have been following the recess appointments litigation are probably aware of the extensive originalist arguments that the Recess Appointments Clause is limited to appointments that arise (“happen”) while the Senate is in recess, and that “recess” means that the Senate is not in session. Those arguments were made by University of San Diego […]
“No Firearm May Be Sold, Acquired or Otherwise Transferred Within [Chicago], Except Through Inheritance”
That’s what Chicago Municipal Code § 8-20-100 provides (with some exceptions for sales to police officers, and loans at shooting ranges). Today’s Illinois Ass’n of Firearms Retailers v. City of Chicago (N.D. Ill. Jan. 6, 2014) holds that this violates the Second Amendment (some paragraph breaks added): [The Second Amendment] right must also include the […]
Proposed California Referendum Initiative Would Make it Even Easier to Declare Property “Blighted” and Condemn it
By Ilya Somin on January 6, 2014 4:58 pm in Blight, Eminent Domain, Post-Kelo Reform, Property Rights
Timothy Sandefur of the Pacific Legal Foundation has a good post outlining the the dangers posed by a California ballot question drafted by local governments interested in expanding their already very broad power to condemn property: [J]ust before Christmas, the law firm of Rutan & Tucker—the leading California law firm for cities that want to […]
“A Conspiracy Against Obamacare” Event Tomorrow to be On C-Span’s Book TV
Tomorrow from noon to 1pm, the Heritage Foundation in Washington, DC, is hosting a panel about the VC’s own book, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case. The one and only John Malcolm will moderate, and the participants will be Randy, Ilya, editor Trevor Burrus, and me. For those who […]
A Shout Out to Josh Blackman
A shout out to GMU Law alum Josh Blackman, one of Forbes’s “Top 30 under 30” for law and policy. Way to go Josh! Except it makes the rest of us feel awfully old…. Josh’s blog is here.
SCOTUS Stays Same-Sex Marriage in Utah
This morning the Supreme Court granted Utah’s application for a stay of the district court’s injunction requiring state officials to recognize same-sex marriage within the state. The stay application was initially submitted to Justice Sonia Sotomayor, who referred it to the entire court. As Lyle Denniston observes, there is no indication that any member of […]
The Project of the Book
By Profs. John McGinnis & Michael Rappaport, guest-blogging on January 6, 2014 10:31 am in Originalism and its Critics
We are very happy to be blogging at the Volokh Conspiracy about our new book, Originalism and the Good Constitution, which has just been published by Harvard University Press. We want to thank both Eugene and the other Conspirators for the opportunity to offer our views on originalism. Our book presents a variety of new, […]