I am very glad to see that John McGinnis and Michael Rappaport are going to be guest-blogging here about their excellent new book, Originalism and the Good Constitution. I have some disagreements with their analysis. But it is nonetheless one of the best defenses of originalism in a long time. I reviewed the book in […]
Archive | Originalism
Is Originalism the Law?
One question that quite fascinates me is whether the original meaning of the Constitution is “the law” — in the sense that it describes the positive law of the United States. Mike Rappaport has a pair of posts exploring this question: here’s the first, here’s the second. Ultimately, he concludes that originalism is not against […]
My New Article on “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy”
By Ilya Somin on December 20, 2013 11:15 am in Constitutional Theory, Democracy, Originalism, Representation-Reinforcement
My new article, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” part of a University of Chicago Law Review symposium on the work of Judge Robert Bork, is now available on SSRN. Here is the abstract: As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy […]
University of Chicago Law Review Symposium on the Work of Judge Robert Bork
By Ilya Somin on December 18, 2013 11:10 am in Conservatism, Constitutional Theory, Democracy, Originalism
The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert […]
The Recess Appointments clause: Amicus brief on original meaning based on State practices
By David Kopel on December 15, 2013 7:19 pm in Constitutional History, Constitutional Law, Originalism, Presidency
As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early […]
Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?
By David Kopel on October 21, 2013 10:55 pm in Anonymity, Constitutional History, Constitutional Law, First Amendment, Originalism, Restrictions on Campaign Contrbs. and Expenses
My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right […]
Three Important New Books on Constitutional Law
By Ilya Somin on October 13, 2013 11:45 am in Affirmative Action, Constitutional Law, Constitutional Theory, Originalism
In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes: I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution. This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they […]
How Best to Secede from a State
By Eugene Kontorovich on October 11, 2013 5:52 am in Constitutional Law, Constitutional Theory, Elections, Federalism, Originalism, Secession, Uncategorized
Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to […]
Justice Scalia Repudiates “Fainthearted” Originalism
In a 1989 article, Justice Antonin Scalia famously described himself as a “fainthearted originalist,” By which he meant that he would sometimes vote against the outcome dictated by the original meaning of the Constitution if strong precedential, moral, or other considerations cut the other way. Co-blogger Randy Barnett wrote an interesting 2006 article taking Scalia […]
Erwin Chemerinsky on Originalism
UC Irvine Law School Dean Erwin Chemerinsky, one of the nation’s leading constitutional law scholars, recently posted a critique of originalism on the ACS Blog. Unfortunately, the points he makes are uncharacteristically weak. University of San Diego law professors Michael Ramsey and Michael Rappaport do a good job of explaining why. Chemerinsky’s most dubious point […]
The Obvious But Underappreciated Point About Federal Power and Equality
Mike Rappaport has a post at the Liberty Law Blog making a seemingly straightforward but surprisingly underappreciated point: There is good reason to think that the Fourteenth Amendment’s equality requirement was not originally meant to apply to the federal government. People frequently try to challenge various originalist views about equality by pointing to the actions […]
Michael Dorf on the Social Practice of Originalism
Michael Dorf has an interesting blog post recounting some of his Constitution Day remarks: Suppose that Americans decided tomorrow to abandon the Constitution and to organize our legal and political systems in some other way. . . . [N]o one disputes that it would be possible — as a matter of brute fact — for […]
Originalism and the Constitutionality of Military Intervention in Syria
By Ilya Somin on August 29, 2013 6:58 pm in Constitutional History, Constitutional Law, Originalism, War and Armed Conflict
At the Originalism Blog, Prof. Michael Ramsey, a leading academic expert on constitutional war powers, has an excellent post on the implications of the original meaning for the constitutionality of an attack on Syria without congressional authorization (quoting, in part, from a 2011 post he wrote during the debate over the Libya conflict): Every major […]
What Kind of a Theory is Originalism?
Mike Rappaport has an interesting post about how to justify originalism. In particular, Rappaport writes about what kind of a theory originalism is. Is it a “normative” theory (what kind of theory would produce good policy), an “interpretive” theory (what kind of theory actually assesses the meaning of the document) or what I’d called a […]
Can Lawyers Ascertain the Meaning of the Living Constitution?
By Ilya Somin on August 19, 2013 6:11 pm in Constitutional Theory, Originalism, Representation-Reinforcement
I agree with most of what co-blogger Randy Barnett says in his recent post responding to critics who claim that lawyers and judges cannot determine the original meaning of the Constitution. But I think we should also pay attention to the opposite question of whether lawyers can figure out the meaning of the living Constitution. […]