Well-known legal commentator and former Scalia clerk Ed Whelan has an interesting critique of Judge Richard Posner’s very negative review of Justice Scalia’s recent book on legal interpretation (coauthored with Bryan Garner).
Archive | Originalism
Left, Right, and Judicial Review
By Ilya Somin on July 12, 2012 5:43 pm in Conservatism, Constitutional History, Constitutional Theory, Federalism, Health Care, Individual Mandate, Originalism
Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests […]
The Bar Review version of NFIB v. Sebelius
By David Kopel on July 10, 2012 2:52 pm in Commerce Clause, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.
Chief Justice Roberts and the window tax
By David Kopel on July 9, 2012 2:27 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Originalism, Taxes, Taxing and Spending Clause
In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.” Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy […]
Is the individual mandate a “tax” according to the original meaning?
By David Kopel on June 29, 2012 6:30 pm in Constitutional History, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.
Necessary and Proper Clause returned to the Original Understanding. Podcast with Ilya Somin, and more
By David Kopel on June 29, 2012 5:46 pm in Constitutional History, Constitutional Law, Necessary and Proper, Originalism
Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on iVoices.org. As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from […]
Podcast on the creation of the Second Amendment
By David Kopel on June 8, 2012 5:55 pm in Constitutional History, Constitutional Law, Guns, Militia, Originalism
For my co-authored textbook Firearms Law and the Second Amendment, I’ve been doing a series of podcasts on each chapter. Now available is the podcast for Chapter 4, which covers the Philadelphia Convention, the ratification debates, the creation of Bill of Rights, and St. George Tucker’s contemporaneous exposition of the original meaning of the Second […]
Larry Solum on Originalism and Political Ignorance
By Ilya Somin on March 6, 2012 6:39 pm in Constitutional Law, Constitutional Theory, Originalism, Political Ignorance
At the Legal Theory Blog, Georgetown law professor Larry Solum – a leading originalist scholar – has the following comments on my new paper, “Originalism and Political Ignorance”: If Somin is correct, his argument provides support for one of the core arguments of “Semantic Originalism,” that the success conditions of constitutional communication can be met […]
Originalism and Political Ignorance
My paper on “Originalism and Political Ignorance,” currently under submission to law journals is now available on SSRN. Here’s the abstract: Original meaning originalism may now be the most popular version of constitutional theory in the legal academy. The methodology has been endorsed by at least two Supreme Court justices and well-known scholars from across […]
Substantive Due Process News
By David Bernstein on February 22, 2012 4:06 pm in Constitutional History, Constitutional Law, Constitutional Theory, Originalism
(1) Discussion of SDP continues over at Cato Unbound. Too many interesting posts there to pick out one, so just start from Tim Sandefur’s lead essay and keep reading. (2) Professor Michael McConnell and Nathan Chapman have posted an article on SSRN, Due Process as Separation of Powers. The article cautions against “resorts to originalism […]
Why Same-Sex Marriage Bans Qualify as Sex Discrimination
By Ilya Somin on February 7, 2012 8:35 pm in Constitutional Law, Constitutional Theory, Gay Marriage, Gay Rights, Originalism, Same-Sex Marriage, Sex Discrimination
Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition […]
Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination
By Jonathan H. Adler on December 14, 2011 4:18 pm in Constitutional Theory, Originalism, Sex Discrimination
Earlier this month, I posted on Steven Calabresi and Julia Rickert’s new paper, “Originalism and Sex Discrimination.” Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional. This is an important article, which has already received notice from Lawrence Solum […]
Whelan v. Calabresi & Rickert on Originalism and Sex Discrimination
By Jonathan H. Adler on December 3, 2011 9:15 am in Constitutional Theory, Originalism, Sex Discrimination
Last week, I noted the important new article by Stephen Calabresi and Julia Rickert making an originalist case for the unconstitutionality of sex discrimination. In short, they argue that the 14th Amendment is best understood as prohibiting caste legislation, not just racial discrimination, and that it must be read in light of subsequent amendments, the […]
An Originalist Argument for the Unconstitutionality of Sex Discrimination
By Jonathan H. Adler on November 27, 2011 11:30 am in Constitutional Theory, Originalism, Sex Discrimination
It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment. Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination […]
Bleg: The American Revolution as a guide to modern law
The American Revolution took place because of various abuses of the rights of Americans by the British government. So when we seek to understand the rights of citizens in the nation that was created by that Revolution, one useful guide is looking at the negative example of what the Americans were revolting against. For example, […]