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Christopher Green
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A number of observers, notably long-time nonoriginalist Adrian Vermeule, have expressed some puzzlement (or perhaps delight at the opportunity for a reductio ad absurdum) at the idea that Jack Balkin might be an originalist despite arguing that the original meaning of the Fourteenth Amendment is consistent with the result in... Continue reading
Posted Sep 22, 2021 at The Originalism Blog
Last week, long-time non-originalist Adrian Vermeule entered again (see, e.g., here and here) into the constitutional-theory fray with A Euclid for Civil Liberties. Vermeule quotes the beginning of Justice Sutherland's classic 1926 distinction of meaning from application in Euclid v. Ambler Realty: "[W]hile the meaning of constitutional guaranties never varies,... Continue reading
Posted Nov 3, 2020 at The Originalism Blog
I have posted What Has Athens to Do With Philadelphia?, part of a Faulkner Law Review symposium on Lee Strang's Originalism's Promise: A Natural Law Account of the Amertican Constitution, to SSRN. Here is the abstract: Lee Strang’s Originalism’s Promise: A Natural Law Account of the American Constitution gives a... Continue reading
Posted Oct 19, 2020 at The Originalism Blog
Eric Segall at Dorf on Law presents again an argument he has run many times before: the idea that acknowledging the distinction between meaning and application (or sense and reference, as I would put it) opens the door to exactly the same considerations that living constitutionalism would allow. He writes:... Continue reading
Posted Aug 26, 2020 at The Originalism Blog
I have posted Tribes, Nations, States: Our Three Commerce Powers to SSRN. The abstract: This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and... Continue reading
Posted Aug 22, 2020 at The Originalism Blog
The PROMESA case from last month, Financial Oversight and Management Board v. Aurelius Investment, unanimously turned back an Appointments Clause challenge to the composition of the board governing Puerto Rico’s bankruptcy. I mentioned earlier that Justice Breyer treated subsequent history in a much more originalism-friendly way than he had for... Continue reading
Posted Jul 29, 2020 at The Originalism Blog
Justice Breyer’s opinion yesterday for the Court in Financial Oversight and Management Board v. Aurelius Investment, finding that certain bankruptcy-related officers in Puerto Rico are not “officers of the United States” under the Appointments Clause, made a few comments about the interpretive relevance of subsequent practice that strike a much... Continue reading
Posted Jun 2, 2020 at The Originalism Blog
Charles Barzun, famous in constitutional-theory circles for his attack on Baude-Sachs original-law originalism, takes aim in a post on Balkinization at the oath argument for originalism that one of us posted last week. That argument depends on our jointly-authored draft for its first part. There, we use contemporary and contingent... Continue reading
Posted May 21, 2020 at The Originalism Blog
Recently Josh Hammer and John Ehrett have responded to long-time non-originalist Adrian Vermeule’s Beyond Originalism by invoking the Article VI oath to support “this Constitution.” I have made such an argument myself (see here and here, and here, with Evan Bernick), as have Randy Barnett and Evan Bernick (see here),... Continue reading
Posted May 11, 2020 at The Originalism Blog
Professors Julian Davis Mortenson and Nicholas Bagley recently made a big splash (over 1000 downloads in 2 weeks!) with their attack on the originalist merits of nondelegation doctrine, Delegation at the Founding. Ilan Wurman has given an initial response to some aspects of the paper, as has Will Foster just... Continue reading
Posted Jan 14, 2020 at The Originalism Blog
I've posted Seven Problems with Antidiscrimination Due Process to SSRN. Here is the abstract: I explain seven problems with the view, suggested by Akhil Amar, Kurt Lash, and Ryan Williams, that the Fifth and Fourteenth Amendments’ ban on “depriv[ing] any person of life, liberty, or property without due process of... Continue reading
Posted Dec 15, 2019 at The Originalism Blog
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Nov 6, 2019