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01/04/2012

Originalism Top Ten of 2011
Michael Ramsey

I meant to post this earlier, but it's not too late to celebrate the New Year with a look back at some of the originalism highlights of 2011.  Here are ten of my personal favorites, in no particular order (and I welcome suggestions about ones I’ve overlooked).

1.  Jack Balkin publishes Living Originalism (Harvard University Press).  The book inspires important conferences at the University of Illinois and Boston University, featuring papers from the top names in originalism (including this one from Randy Barnett, this one from Larry Alexander, this one from John McGinnis and Mike Rappaport, and this one from Gary Lawson).

 2.  Grant Huscroft and Bradley Miller publish The Challenge of Originalism (Cambridge University Press), a collection of essays from leading legal theorists (including University of San Diego Professors Larry Alexander and Steve Smith). 

3.  Larry Solum and Robert Bennett face off in Constitutional Originalism: A Debate (Cornell University Press).  Larry Solum comments here.

4.  Originalism and Sex Discrimination, by Steven Calabresi and Julia Rickert (Texas Law Review), is probably the year’s most talked-about originalist article (including blog comments from, among others, Jack Balkin, Mike Rappaport, and Ed Whelan, with a on-line journal response from Alfred Brophy)

5.  The Interpretation-Construction Distinction (Constitutional Commentary), by Larry Solum, lays out a key development for “new originalist” theory.

6.  The annual works-in-progress conference at the USD Originalism Center features papers by Will Baude, Robert Bennett, John Harrison, Heidi Hurd, Rick Kay, Bernadette Meyler and Michael Paulsen; commentators are Vikram Amar, Larry Solum, Steve Vladek, Stanley Fish, John McGinnis, Sai Prakash and Earl Maltz.   Stanley Fish comments in the New York Times.

7.  Justice Thomas’ dissent in the violent video games case (from a Scalia majority) provokes some skeptical thoughts about his originalist methodology, including here and here.

8.  Jeffrey Toobin’s New Yorker profile of Justice Thomas cements an increasingly conventional revisionist view of the Justice as a major intellectual force on the Court.  Walter Russell Meade has devastating commentary.

9.  The Tea Party, the Republican presidential primary debates, and the Supreme Court’s impending decision on the constitutionality of health care reform put a spotlight on the Constitution’s federalist design.  The Tenth Amendment becomes (perhaps unjustifiably) the most talked about Amendment in some circles.  More justifiably, the scope of the commerce clause gains new attention, including this guest-blogging exchange between Kurt Lash and Neil Siegel at Volokh Conspiracy (based on Kurt Lash's draft article), an online debate between Richard Epstein and Laurence Tribe at SCOTUSblog, comments by George Will, and some history from David Kopel and Gary Lawson.  (Plus some skepticism about judicially enforced federalism here).

10.  President Obama’s Libya intervention brings back into the headlines the longstanding controversy over the original meaning of the declare war clause.  John Yoo and Andy McCarthy debate at NRO, and both get it wrong.

And a bonus #11 (because I listed ten and then remembered this one):

11.  Nicholas Quinn Rosenkranz posts The Objects of the Constitution (Stanford Law Review), a follow-up to his 2010 article the Subjects of the Constitution), and guest blogs about the two articles at Volokh Conspiracy.

So let me know what else deserves to be on the list, and maybe I'll be able to make it a Top 20.  Best wishes for the new year.