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Jenna Fiscus
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In the current online issue of the Harvard Law Review Forum, Saikrishna Prakash (Virginia): A Fool for the Original Constitution (130 Harv. L. Rev. F. 24 (2016) (responding to Jamal Green, The Age of Scalia) (noted here). Here is the introduction (footnotes omitted): I confess that Justice Antonin Scalia was... Continue reading
Posted Nov 13, 2016 at The Originalism Blog
In the current issue of the Harvard Law Review, Jamal Greene (Columbia): The Age of Scalia (130 Harv. L. Rev. 144 (2016). Here is the introduction (footnotes omitted): How does an originalist and a textualist, dropped in the middle of a Kulturkampf, branded a sophist and a bigot by his... Continue reading
Posted Nov 12, 2016 at The Originalism Blog
Richard Primus (University of Michigan Law School) has posted The Constitutional Constant (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract: According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work.... Continue reading
Posted Oct 29, 2016 at The Originalism Blog
Neil Siegel (Duke University School of Law) has posted The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent (Yale Law Journal Forum, Vol. 126, p.164 (2016) ) on SSRN. Here is the abstract: Justice Samuel Alito is regarded by both his champions... Continue reading
Posted Oct 26, 2016 at The Originalism Blog
William Baude (University of Chicago Law School) and Stephen Sachs (Duke University School of Law) have posted Originalism’s Bite (forthcoming, Green Bag 2d) on SSRN. Here is the abstract: Is originalism toothless? Richard Posner seems to think so. He writes that repeated theorizing by "intelligent originalists," one of us happily... Continue reading
Posted Oct 19, 2016 at The Originalism Blog
Stephanos Bibas (University of Pennsylvania Law School) has posted Justice Scalia’s Originalism and Formalism: The Rule of Criminal Law as a Law of Rules on SSRN. Here is the abstract: Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees... Continue reading
Posted Sep 7, 2016 at The Originalism Blog
Jeremy Christiansen (independent) has posted Originalism: The Primary Canon of State Constitutional Interpretation (Georgetown Journal of Law & and Public Policy, forthcoming) on SSRN. Here is the abstract: Given the reach of federal constitutional law and the attention the topic garners in law reviews, law schools, and general popular discourse,... Continue reading
Posted Aug 30, 2016 at The Originalism Blog
David Bernstein (George Mason University - Antonin Scalia Law School) has posted The Courts and Tradition: A Begrudging Respect on SSRN. Here is the abstract: This essay discusses the role of tradition in American common law and constitutional law. With regard to common law, the essay argues that American common... Continue reading
Posted Aug 29, 2016 at The Originalism Blog
Ian Bartrum (University of Nevada School of Law) has posted Wittgenstein's Poker: Contested Constitutionalism and the Limits of Public Meaning Originalism on SSRN. Here is the abstract: The last two decades have seen an explosion in scholarship exploring the intersection between linguistic indeterminacy (usually vagueness), as analyzed within the philosophy... Continue reading
Posted Aug 24, 2016 at The Originalism Blog
Amy Coney Barrett (Notre Dame Law School) and John Copeland Nagle (Notre Dame Law School) have posted Congressional Originalism (University of Pennsylvania Journal of Constitutional Law, forthcoming 2016) on SSRN. Here is the abstract: Precedent poses a notoriously difficult problem for originalists. Some decisions – so-called super precedents -- are... Continue reading
Posted Aug 20, 2016 at The Originalism Blog
Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted The Foundations of Constitutional Theory on SSRN. Here is the abstract: Normative constitutional theory asks at least two distinct questions: How should judges and other officials approach constitutional decision-making? And what counts as a good reason —... Continue reading
Posted Aug 19, 2016 at The Originalism Blog
Randy Barnett (Georgetown University Law Center) and Josh Blackman (Houston College of Law) have posted Restoring the Lost Confirmation (University of Chicago Law Review Online) on SSRN. Here is the abstract: There is a silver lining to the stormy cloud brewing over Justice Antonin Scalia’s crepe-covered seat. During his speech... Continue reading
Posted Aug 15, 2016 at The Originalism Blog
Daniel Francis (JSD candidate, NYU School of Law) has posted The Decline of the Dormant Commerce Clause (Denver Law Review, Vol. 94, No. 2, forthcoming) on SSRN. Here is the abstract: A profound transformation has been worked in the law of the dormant Commerce Clause. Much contemporary scholarship and many... Continue reading
Posted Aug 14, 2016 at The Originalism Blog
Mark Graber (University of Maryland - Francis King Carey School of Law) has posted State Constitutions as National Constitutions (Arkansas Law Review, forthcoming) on SSRN. Here is the abstract: Practice trumped theory on the precise status of newly independent states when Americans drafted and ratified early state constitutional documents. General... Continue reading
Posted Aug 8, 2016 at The Originalism Blog
In the current issue of the Boston University Law Review, Corey Yung (University of Kansas School of Law): Constitutional Communication (96 B.U. L. Rev. 303 (2016)). Here is the abstract: Scholars advocating various normative and positive theories endorse the notion that the Constitution is communicative of its meaning. However, there... Continue reading
Posted Aug 5, 2016 at The Originalism Blog
Nelson Lund (George Mason University, Antonin Scalia Law School) has posted The Right to Arms and the American Philosophy of Freedom (Heritage Foundation, First Principles [Forthcoming]) on SSRN. Here is the abstract: The right to keep and bear arms is a vital element of our liberal order, but its philosophic... Continue reading
Posted Aug 2, 2016 at The Originalism Blog
In the current issue of the Yale Law Journal, Daniel Hessel (Yale Law School J.D. '16): Founding-Era Jus Ad Bellum and the Domestic Law of Treaty Withdrawal (125 Yale Law Journal 2394 (2016)). Here is the abstract: The Constitution provides no textual guidance for how, as a matter of domestic... Continue reading
Posted Aug 1, 2016 at The Originalism Blog
Cass Sunstein (Harvard Law School) has posted Formalism in Constitutional Theory (Constitutional Commentary, forthcoming) (responding to this essay by Richard Ekins) on SSRN. Here is the abstract: In law – and in many other social activities, including music, art, and literature – reasonable people can and do argue over the... Continue reading
Posted Jul 31, 2016 at The Originalism Blog
Steven Begakis (independent) has posted Rediscovering Liberty of Contract: The Unnoticed Economic Right Contained in the Freedom of Speech (Loyola of Los Angeles Law Review, forthcoming) on SSRN. Here is the abstract: The Free Speech Clause of the First Amendment protects — and therefore, the U.S. Supreme Court should recognize... Continue reading
Posted Jul 30, 2016 at The Originalism Blog
Richard Primus (University of Michigan Law School) has posted The Cost of Text (Cornell Law Review, forthcoming) on SSRN (commenting on Christopher Serkin & Nelson Tebbe’s article Is the Constitution Special?). Here is the abstract: Prominent scholars have suggested that the major reason why constitutional decision making departs from the... Continue reading
Posted Jul 29, 2016 at The Originalism Blog
Alex Loomis (Harvard Law School JD '17) has posted The Power to Define Offences Against the Law of Nations on SSRN. Here is the abstract: Congress has the power to “define and punish...Offences against the Law of Nations.” Everyone agrees this clause empowers Congress to punish universally recognized offences under... Continue reading
Posted Jul 26, 2016 at The Originalism Blog
Renée Lettow Lerner (George Washington University Law School) has posted The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury (Magna Carta and its Modern Legacy 77-98 (Robert Hazell and James Melton eds., Cambridge University Press 2015)) on SSRN. Here is the abstract: Many Americans insisted on their... Continue reading
Posted Jul 23, 2016 at The Originalism Blog
Mark Anthony Frassetto (Counsel, Everytown for Gun Safety) has posted The Law and Politics of Firearms Regulation in Reconstruction Texas (4 Texas A&M L. Rev. __ (2016)) on SSRN. Here is the abstract: In District of Columbia v. Heller, Justice Scalia instructed that the historical understanding of the right to... Continue reading
Posted Jul 21, 2016 at The Originalism Blog
Aaron-Andrew Bruhl (William & Mary Law School) has posted The Jurisdiction Canon (Vanderbilt Law Review, forthcoming) on SSRN. Here is the abstract: This Article concerns the interpretation of jurisdictional statutes. The fundamental postulate of the law of the federal courts is that the federal courts are courts of limited subject‐matter... Continue reading
Posted Jul 20, 2016 at The Originalism Blog
In the Yale Law Review's online forum, Lawrence Solan: Can Corpus Linguistics Help Make Originalism Scientific? (126 Yale L.J. F. 57 (2016)). Here is the introduction (footnotes omitted): James Phillips, Daniel Ortner, and Thomas Lee begin their engaging essay, Corpus Linguistics & Original Public Meaning: A New Tool To Make... Continue reading
Posted Jul 19, 2016 at The Originalism Blog