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31 posts from January 2022


The Year in Review: Originalism Articles of 2021 (Part 3)
Michael Ramsey

My final post in this series is entirely subjective: I picked 22 originalism-oriented articles from 2021 (that weren't on my other 2 lists, see here and here), that were featured on the Originalism Blog, and that I thought were especially interesting.  (Here is my similar post from last year.) But probably I forgot some.  Here they are:

Gregory Ablavsky (Stanford), Getting Public Rights Wrong: The Lost History of the Private Land Claims

Jud Campbell (Richmond), The Emergence of Neutrality

Christine Kexel Chabot (Loyola Chicago), Interring the Unitary Executive

Saul Cornell (Fordham), The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America

James Fox (Stetson), The Constitution of Black Abolitionism: Re-Framing the Second Founding

Josh Hammer (Edmund Burke Foundation; Newsweek), Common Good Originalism: Our Tradition and Our Path Forward 

Jean Galbraith, The Runaway Presidential Power over Diplomacy

Anita Krishnakumar (Georgetown), Statutory History

Kurt Lash (Richmond), Re-Speaking the Bill of Rights: A New Doctrine of Incorporation 

Kurt Lash (Richmond), The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists)

Gary Lawson (Boston University) & Guy Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law), Are People in Federal Territories Part of “We the People of the United States”?

Thomas H. Lee (Fordham), Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787 – 1792 

Ethan Leib (Fordham), Are the Federal Rules of Evidence Unconstitutional? 

Michael Mannheimer (Northern Kentucky), Fugitives from Slavery and the Lost History of the Fourth Amendment

James Pfander (Northwestern) & Andrew Borrasso (J.D. Northwestern '20), Public Rights and Article III: Judicial Oversight of Agency Action

James Pfander (Northwestern) & Elena Joffroy (J.D., Northwestern '20), Equal Footing and the States "Now Existing": Slavery and State Equality Over Time

Elizabeth Pollman (Penn), Corporate Personhood and Limited Sovereignty 

Saikrishna Prakash (Virginia) & William Hall (Virginia JD ’19), The Constitution’s First Declared War: The Northwestern Confederacy War of 1790-95

David Schwartz (Wisconsin) & John Mikhail (Georgetown), The Other Madison Problem

Holden Tanner (Yale J.D. ‘21), Constitutional Norms in Originalist Adjudication 

Franita Tolson (USC), 'In Whom is the Right of Suffrage?': The Reconstruction Acts as Sources of Constitutional Meaning 

Lael Weis (Melbourne), Originalism and Constitutional Amendment


Eric Claeys on Dobbs and Precedent
Michael Ramsey

Eric Claeys (George Mason - Scalia) is guest-blogging at Volokh Conspiracy about his article Dobbs and the Holdings of Roe and Casey (Georgetown Journal of Law & Public Policy, Vol. 20, No. 1, 2022, forthcoming).  Here are his initial posts:

Dobbs and the Holdings of Roe and Casey: Roe and Casey—reaffirming, overruling … and rewriting

Dobbs and the Holdings of Roe and Casey: Roe, its judgment, and its reasons for decision

And here is the abstract of the article from SSRN:

The U.S. Supreme Court is currently considering the case Dobbs v. Jackson Women’s Health Organization. In Dobbs, the State of Mississippi has asked the Court to overrule Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). At oral argument, many of the Justices seemed to agree that Dobbs fairly presents the question whether Roe and Casey should be reaffirmed or overruled. At argument, however, Chief Justice John Roberts explored an alternative theory. In this exploratory theory, Roe and Casey entitle women only to a fair or meaningful opportunity to obtain abortions during pregnancy. Neither Roe nor Casey entitles women to obtain abortions, the theory suggests, up to the time when their fetuses are likely to be viable after birth.

This Article studies that exploratory theory with the two most relevant sets of legal doctrines. Because the theory raises questions about what Roe, Casey, and other previous abortion cases held, the Article summarizes general legal principles about precedents and judicial authority. Courts rely on these principles when they identify the holdings, reasons for decision, and obiter dicta from earlier decisions. Because Roe, Casey, and the other relevant decisions all considered overbreadth challenges to state abortion restrictions, the Article also summarizes the legal rules federal courts follow when they consider facial overbreadth challenges. The Article applies those two sets of doctrines to Roe, Casey, and 11 other subsequent cases in which the Court declared unconstitutional state pre-viability restrictions on abortion. In all of those cases, necessary to a judgment was this proposition of law: A state restriction on abortion violates the Fourteenth Amendment Due Process Clause if it restricts a substantial number of pre-viability abortions without justification. Neither Roe, nor Casey, nor any of the other 11 post-Roe and -Casey decisions invalidating pre-viability abortion restrictions can be interpreted as narrowly as they would need to be for the theory explored at oral argument in Dobbs to be convincing or faithful to the Court’s case law.

This Article helps make clear the choices presented in Dobbs. Justices may reaffirm Roe and Casey, and they may overrule those cases. Unless they depart drastically from standard legal rules about judgments and overbreadth, however, they cannot avoid that choice.

Though not directly concerned with originalism, the article and the situation in Dobbs pose important questions about the way originalism interacts with precedent.


Mitchell Berman Responds to Stephen Sachs' Article "Originalism: Standard and Procedure"
Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Keeping Our Distinctions Straight: A Response to “Originalism: Standard and Procedure” (Harvard Law Review Forum (forthcoming 2022)) (17 pages) on SSRN.  Here is the abstract:

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees that the basic distinction Sachs highlights is important, but argues that it’s already well understood in the constitutional theory literature under different labels, such as the familiar distinction between theories of legal content and of adjudication, and the less familiar distinction between “constitutive” and “prescriptive” theories of constitutional interpretation. It argues further that, nomenclature aside, the distinction does not lend originalism the support that Sachs claims for it because we remain without good reason to believe that originalism is our constitutional standard.

Professor Sachs' article Originalism: Standard and Procedure, one of the most downloaded originalism articles of 2021, was published in the current issue of the Harvard Law Review (135 Harv. L. Rev. 777 (2022)).

I agree with Professor Berman's comment that we need "good reason to believe that originalism is [or, I would say, should be] our constitutional standard" but I think there are some good reasons.


The Year in Review: Originalism Articles of 2021 (Part 2) – The Top 25 Most Downloaded New Papers
Michael Ramsey

This post continues the retrospective on originalism scholarship in 2021 -- see here (books)and here (articles part 1) for the first two posts.  These are the 25 most downloaded originalism/textualism-oriented new papers posted on SSRN in 2021, as featured on the Originalism Blog.  (Here is the list for 2020).

Of course this measure has substantial limitations, including that it favors papers posted early in the year; that not all important papers are posted on SSRN; and that number of downloads does not really prove anything about a paper except how many times it was downloaded.  But with those caveats, here's the list:

1. Gerard Magliocca (Indiana -- McKinney), Amnesty and Section Three of the Fourteenth Amendment

2. Stephen Sachs (Harvard), Originalism: Standard and Procedure

3. Kevin Tobia (Georgetown), Brian Slocum (McGeorge) & Victoria Nourse (Georgetown), Statutory Interpretation from the Outside

4.  David Pozen (Columbia) & Thomas Schmidt (Columbia), The Puzzles and Possibilities of Article V

5.  Mitchell Berman (Penn) & Guha Krishnamurthi (Oklahoma), Bostock was Bogus: Textualism, Pluralism, and Title VII

6.  Orin Kerr (Berkeley), Katz as Originalism

7.  Judge Andrew Oldham (U.S. Court of Appeals, Fifth Circuit), Official Immunity at the Founding

8.  Evan Bernick (Northern Illinois), Eliminating Constitutional Law

9.  James Cleith Phillips (Chapman) & Josh Blackman (South Texas), Corpus Linguistics and Heller

10.  Aaron Tang (Davis), The Originalist Case for an Abortion Middle Ground

11.  Matthew Seligman (Yale), The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes

12.  Samuel Bray (Notre Dame) & Paul Miller (Notre Dame), Getting Into Equity

13.  Seth Barrett Tillman (NUI Maynooth), Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Very Short Response to Professor Cass Sunstein (and Others)

14.  Jed Handelsman Shugerman (Fordham), 'Vesting': Text, Context, Dictionaries, and Unitary Problems

15.  Frederick Schauer (Virginia), Unoriginal Textualism

16.  Matthew Schafer (Fordham), In Defense: New York Times v. Sullivan

17.  Seth Barrett Tillman (NUI Maynooth) & Josh Blackman (South Texas), Offices and Officers of the Constitution, Part I: An Introduction

18.  Jack Beermann (Boston University) & Gary Lawson (Boston), The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes

19.  (tie) Aaron Nielson (BYU) and Christopher Walker (Ohio State), Congress's Anti-Removal Power

19.  (tie) Laurent Sacharoff (Arkansas), The Broken Fourth Amendment Oath

21.  Evan Bernick (Northern Illinois), Constitutional Hedging

22.  Eliza Sweren-Becker (Brennan Center) & Michael Waldman (Brennan Center), The Meaning, History, and Importance of the Elections Clause

23.  Joseph Blocher (Duke) & Mitu Gulati (Virginia), Navassa: Property, Sovereignty, and the Law of the Territories

24.  David Kopel (Independence Institute) & George Mocsary (Wyoming), Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii

25.  Joel Alicea (Catholic), Liberalism and Disagreement in American Constitutional Theory


Peter Wallison on the Supreme Court and the Administrative State
Michael Ramsey

At Law & Liberty, Peter Wallison (AEI): The Supreme Court Confronts the Administrative State. From the introduction:

It could be a coincidence—or it could foretell an historic Supreme Court term. The Court has now accepted two cases for this term that could threaten the essential legal underpinnings of the federal administrative state.

The first is American Hospital Association v. Becerra, in which the plaintiff questions the Chevron doctrine—a rule fashioned by the Supreme Court itself in 1984 that requires lower federal courts to defer to administrative agencies’ interpretation of their delegated authorities, where the statute is ambiguous and the agency’s decision is “reasonable.” Under this rubric, lower federal courts have given administrative agencies wide leeway to interpret the scope of their authority. 

The second case, which has received less attention, is West Virginia v. Environmental Protection Agency, in which the state is challenging EPA’s authority to impose restrictions on the emission of greenhouse gases under the Clean Air Act. West Virginia has a number of objections to the EPA’s actions, but one of them raises a constitutional issue known as the nondelegation doctrine, which was last invoked by the Supreme Court in 1935. This holds that under the Constitution’s separation of powers, Congress may not delegate any of its legislative authority to agencies of the executive branch. Accordingly, if Congress gave so much discretion to the EPA in the Clean Air Act that the agency could create what was in effect a new law—without congressional authorization—the Act would violate the nondelegation doctrine.

Thus, while Chevron has largely been used to expand the authorities of administrative agencies over time—with the courts providing generous readings for agencies’ claims of authority under ambiguous laws—the nondelegation doctrine has the potential to narrow the range of administrative activity by requiring Congress to enact more tightly drawn legislation. If the Court should weaken or eliminate Chevron, and re-invigorate the nondelegation doctrine, it would mean—in a single term—a significant narrowing of administrative state authority and an historic shift in the Court’s jurisprudence away from precedents initially established in and after the New Deal.

Prior cases have laid the groundwork for changing the Court’s view of both doctrines. ...

Adding to this, of course, are the vaccine mandate cases argued at the Supreme Court on Friday.

Although often described, especially by right-leaning commentators, as a problem of the administrative state, I see these issues as centrally concerned with executive power.  Recently there has been much academic writing about constraints on executive power, in particular constraints on the President's ability to remove executive officers.  But that is largely a sideshow (albeit an interesting one to me).  The modern President's power is not materially limited by having a handful of agency heads protected from at-will removal, nor is that power greatly enhanced by the Court finding some of these protections unconstitutional.  The modern President's great power stems largely from (a) Congress' broad delegations of policymaking authority to executive agencies and (b) Presidents' willingness to read these delegations extremely aggressively (and courts' acquiescence in these broad readings).

Both of these factors can be seen in the two cases mentioned in the linked essay, as well as the vaccine cases.  None of them involves (as Justice Black famously put it in the Youngstown case) the President "direct[ing] that a congressional policy be executed in a manner prescribed by Congress."  All of them involve instead (again in Black's words) the President "direct[ing} that a presidential policy be executed in a manner prescribed by the President."  The latter, Black said in Youngstown, is unconstitutional:  "The Constitution limits [the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." But the modern President (with an assist from Congress and the courts) routinely circumvents Youngstown by pointing to a vague statute arguably conveying almost unlimited policymaking discretion.

How much the Constitution's original meaning can be deployed to address this situation is a different question, and (as the essay says) an important one for this year at the Court.


Seth Barrett Tillman on Impeaching Prosecutors for Non-Prosecution
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Impeaching Prosecutors Who Fail To Prosecute.  From the introduction:

With the election of the Soros-funded prosecutors, and radical policy innovations in prosecutorial discretion, and changed incidence (including increased incidence) in crime, those who (politically) oppose such policies will naturally look to push back against these prosecutors and their policy changes. Some will suggest impeachment as a valid route. I would not support that approach. This is why. 

My discussion is limited to federal impeachment rules—applicable to federal officeholders—which limit impeachment to “high crimes and misdemeanors.” Some states have impeachment rules akin to the federal model, and such states’ impeachment rules will apply to their state officeholders. By contrast, under New York law, which lacks any “high crimes and misdemeanors” language regarding impeachment in its state constitution, the scope of the state legislature’s impeachment power may be considerably wider than Congress’ power under the United States Constitution. And, under the California state constitution, certain county and municipal offices are not subject to impeachment by the state legislature. Thus, elected California county prosecutors may be beyond the power of the California state legislature to impeach. 

Again, impeachment under the federal model is limited to “high crimes and misdemeanors.” Differences of opinion in regard to best policy, and after-the-fact investigations of the real world consequences which flow from such differences of opinion regarding policy, standing alone, cannot meet the “high crimes and misdemeanors” standard. This is particularly true where the alleged wrongdoer, i.e., the officeholder-defendant, announced his policy positions prior to his appointment or election. 

So, in what circumstances can a prosecutor be impeached under the federal model? There are primarily three situations where impeachment would be appropriate. ...

Most significantly, this point (with which I think some people might disagree):

But even discretion has limits. A prosecutor has limited resources and can choose priorities. A prosecutor can choose to prosecute a crime in particular circumstances—e.g., where the evidence is particularly strong, or where the societal harm caused by the crime is particularly great. But if a prosecutor establishes a policy for his office, e.g., that his office will never bring a prosecution in regard to a particular class or type of crime, then that policy choice would entirely  nullify or suspend a statute. The President cannot do that, i.e., entirely nullify or suspend a statute, and, a  fortiori,  neither can his prosecutors and other appointees. An elected or appointed officeholder’s knowingly embracing such a policy choice—i.e., one entirely nullifying or suspending a statute—would meet the high crimes and misdemeanors standard. Why? A prosecutor cannot make legal what the legislature has determined to be a crime. 

I agree that "prosecutor cannot make legal what the legislature has determined to be a crime." But it does not necessarily follow that a prosecutor cannot refuse to prosecute a particular type of crime (even in its entirety) because the prosecutor thinks resources are best spent elsewhere.  That does not make the criminalized action legal; it just means that (for the moment anyway) there won't be any punishment.  Nor do I see why the Constitution necessarily draws the line between refusing the prosecute a type of crime in its entirely and refusing to prosecute a very substantial proportion of a type of crime.

As Professor Tillman says later in the post, the key question is the interaction between the President's duty to take care that the laws be faithfully executed and the President's executive power of prosecutorial discretion.  It's not clear at all to me how these two should be understood to interact.

Perhaps the answer is that it's up to the House and Senate to decide how much non-enforcement is too much (so, it's a political question).


The Year in Review: Originalism Articles of 2021 (Part 1)
Michael Ramsey

Continuing my 2021 originalism retrospective (see here for the first post on books), I turn to originalism-oriented articles featured on the blog in the past year.  I plan to highlight some of the most important articles (in my view), but to avoid conflicts of interest, I'll first note originalism-oriented articles from my Originalism Blog and USD Originalism Center colleagues, either published or posted on SSRN in 2021.  Here are 10:

Larry Alexander, Formalist Textualism and the Cernauskas Problem (J. of Contemp. Legal Issues)

Larry Alexander, Connecting the Rule of Recognition and Intentionalist Interpretation: An Essay in Honor of Richard Kay (Connecticut L. Rev.)

Laurence Claus, Separation, Enumeration, and the Implied Bill of Rights (J. of Law & Politics)

Laurence Claus, Authority and Meaning (Connecticut L. Rev.)

Christopher R. Green, Originalism as Faithfulness (Univ. of Chicago L. Rev. Online)

Michael B. Rappaport, Presidential Polarization (Ohio State L.J.) (with John O. McGinnis)

Michael B. Rappaport, The Power of Interpretation: Minimizing the Construction Zone (Notre Dame L. Rev.) (with John O. McGinnis)

Steven D. Smith, Book Review: Post-Liberal Religious Liberty: Forming Communities of Charity, by Joel Harrison (J. of Law & Religion)

John Vlahoplus, Early Delegations of Federal Powers (G. Washington L. Rev. Arguendo)

John Vlahoplus, Apportionment, Allegiance, and Birthright Citizenship (British J. of American Legal Studies)


Professor Akhil Amar on Congressional Power to Establish Fundamental Rights that Both States and Private Citizens Must Respect 
Andrew Hyman

Last month, as Mike Ramsey has noted, Yale Law Professor Akhil Amar had National Review pundit Ed Whelan as a guest on Amar’s podcast.  It was an interesting discussion, covering many issues, but I’d just like to focus here on one bit of it.  Toward the end of the podcast, Amar said this:  
I think Congress has broad power to protect women’s rights under the plain language of the first sentence of the Fourteenth Amendment and the last sentence of the Fourteenth Amendment, but you see precedent is a stumbling block for me but again if you’re a constitutional fundamentalist your allegiance is to the Constitution and not the precedents.
I’ll give Professor Amar an A+ on the last part, but not on the first part.  In context, Amar was speaking about Congress protecting women’s unenumerated rights against violation by states, because women are U.S. citizens.  I agree entirely that Congress has power to protect women’s rights from violation by states, insofar as Congress is acting under its enumerated powers, or is enforcing enumerated constitutional rights, but Amar is saying much more.  His argument is that the first and last sentences of the Fourteenth Amendment are sufficient to empower Congress to make state actors as well as many private actors respect whatever rights of citizens that Congress deems in good faith to be fundamental, and I disagree with Professor Amar on that point. Here are the first and last sections of the 14th Amendment, with the Citizenship Clause and the Enforcement Clause in bold: 
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws....The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
As I understand Professor Amar, the two bolded sentences are enough to give Congress power to override state laws (and many private parties too) that infringe upon whatever rights that Congress honestly thinks should be considered fundamental, so long as the beneficiary of those rights is a U.S. citizen.  There are some major problems with that interpretation, though, and it asks the Citizenship Clause to do way too much.  Professor Amar has written that ordinary Americans in 1866-1868 “understood Taney’s opinion [in Dred Scott] as the paradigm case of what this sentence aimed to repudiate,” but it’s much more likely that ordinary Americans viewed several sentences collectively in the Thirteenth and Fourteenth Amendments that way.  For example, the sentence banning slavery, and the sentence guaranteeing the equal protection of the laws, come to mind as very wonderful repudiations of Dred Scott as well. 
The Citizenship Clause lacks anything like the “no state shall” language later in the Fourteenth Amendment.  More than that, it lacks any prohibitory language at all, and is best understood as definitional; it is very different from the Thirteenth Amendment which prohibits quite a lot, so Professor Amar’s assertions (in a 1998 article) that Congress can broadly guarantee “the badges and incidents of ... citizenship” under the Fourteenth Amendment rest upon a tenuous analogy to the Thirteenth.  The Constitution gives various rights to citizens, and the Citizenship Clause just defines who those citizens are.  
Professor Amar has argued that the lack of “no state shall” language means the Citizenship Clause can be construed as a ban not just on fundamentally harmful state action, but also on lots of fundamentally harmful nongovernmental action, and as a ban on fundamentally harmful congressional action too.  It’s as though the Constitution included a clause that says “all nastiness to citizens is forbidden." I cannot see any textual distinction that could, as Amar suggests, immunize some nongovernmental behavior from the Citizenship Clause because it’s consensual and very private, but even if such a distinction is valid then Congress would still take over vast areas of criminal law that are currently dealt with locally, and thus responsively to the citizenry.
In the aforelinked 1998 article, Professor Amar acknowledged that, under the Fourteenth Amendment, “Congress can legislate rights against states, not private persons….”  Indeed, private persons unconnected to government are outside the scope of the first paragraph of the Fourteenth Amendment.  The first draft of that Amendment was voted down in Congress for exactly that reason.  And that’s the same reason why Professor Amar’s interpretation of the Citizenship Clause does not work: it would inevitably get Congress and the courts into the business of regulating nongovernmental behavior directly, given that it includes no state action requirement.  Professor Amar assures us (in a 2000 article) that the Citizenship Clause cannot authorize regulation of “truly private consensual relations that were outside the ambit of citizenship -- but could regulate larger nongovernmental systems of exclusion in places such as hotels, theaters, and trains.”  I am not assured by this assurance even if it is accurate, because control of lots of nonconsensual misconduct toward citizens would quickly become federalized, e.g. child abuse, murder, kidnapping, theft, and lots more behavior involving citizens who have not reached the age of consent.
The podcast that prompted this blog post was devoted largely to the issue of abortion.  Professor Amar was suggesting that Congress could establish a fundamental right to get an abortion even if the courts take a neutral position.  But, if Professor Amar's constitutional theory is correct, then Congress could instead naturalize the unborn child and give it a fundamental legal right to life.  In the aforelinked 1998 article, Professor Amar wrote the following:
[T]he most sensible reading of the Fourteenth Amendment would involve both courts and Congress in the task of protecting truly fundamental rights against states, with states generally held to whichever standard was stricter -- more protective of fundamental freedoms -- in any given instance.
But alleged fundamental rights often conflict with each other.  For instance, perhaps Congress might be pro-life while the courts are pro-choice.  Then who decides which is more protective of fundamental freedoms?  Anyway, the point is moot, because it’s widely and correctly recognized that “The Thirteenth Amendment is the only amendment that limits both individual and governmental actions.”  Ergo the Citizenship Clause doesn’t, which means the Citizenship Clause must be definitional only (given that it does not distinguish state action from other action).
I thank Professor Amar for pointing me to several books and articles via email.  I found them very thought-provoking, despite my criticisms here.


The Year in Review: Top 10 Originalism-Oriented Books of 2021
Michael Ramsey

Continuing an Originalism Blog tradition, here are 10 of last year's leading books of originalist interest, as featured on this blog (my subjective assessment).  (See here for the 2020 list).

Akhil Reed Amar (Yale), The Words That Made Us: America's Constitutional Conversation, 1760-1840 (Basic Books)

Stuart Banner (UCLA), The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (Oxford University Press)

Randy E. Barnett (Georgetown) & Evan Bernick (Northern Illinois), The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Harvard University Press)

Donald L. Drakeman (Notre Dame), The Hollow Core of Constitutional Theory: Why We Need the Framers (Cambridge University Press)

Jamal Greene (Columbia), How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart (Mariner Books)

Kurt T. Lash (Richmond), ed., The Reconstruction Amendments: The Essential Documents (2 vols.) (University of Chicago Press)

Kate Masur (Northwestern), "Until Justice Be Done": America's First Civil Rights Movement, from the Revolution to Reconstruction (W.W. Norton)

James E. Pfander (Northwestern), Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press)

Robert J. Steinfield (Buffalo), “To Save the People from Themselves”: The Emergence of American Judicial Review and the Transformation of Constitutions (Cambridge University Press)

Gordon S. Wood (Brown), Power and Liberty: Constitutionalism in the American Revolution (Oxford University Press)

 I'm sure I've missed some important candidates, so I invite reader nominations.

ADDED:  At City Journal, Stone Washington: The New Old Originalism?: A legal scholar argues for resuscitating the search for original intent (reviewing the book noted above by Donald Drakeman).


University of Chicago Originalism Essay Contest
Michael Ramsey

An announcement from the University of Chicago Federalist Society:

University of Chicago Federalist Society

Announcing the Eaton Award:

The University of Chicago Federalist Society is excited to announce the Eaton Award, a writing prize made possible by the generosity of Professor Philip Eaton. The award is designed to encourage new scholarship in the area of Constitutional Law and to develop young Constitutional Law scholars. The winner of the 2021-2022 award will receive an amount in excess of $2000 (to be finalized later) as well as recognition for them and their work.

This year's topic and the rules for submission are below.

Prompt: Does originalism still work?

Justice Scalia defined originalism as interpreting the Constitution according to "what it meant when it was adopted" instead of "what current society, much less the Court, thinks it ought to mean." At the time, these claims were controversial, but in the next generation many legal thinkers followed Justice Scalia's approach. There are now at least four, and as many as six, self-identified originalists on the Supreme Court.

Originalism's animating principles are well-known. Originalism promotes consistency by pointing judges to something outside themselves and their policy preferences. Originalism protects democracy by preserving the will of the people as articulated in the Constitution and its many amendments. Originalism is faithful to the nature of the Constitution and its text. Originalism is part of our law and promotes the rule of law.

Much has changed since the defining days of originalism. Faith in our institutions is treacherously low. The COVID-19 pandemic has upended society. Political division has driven our nation to the brink of constitutional crisis. And many conservatives believe originalism is no longer delivering what it promised. As we sit here today, are the justifications for originalism still convincing? Or should those who believe in freedom, the separation of powers, and the rule of law develop a new approach to constitutional interpretation? Does originalism still work?

Rules for submission:

This essay competition is open to members of the Federalist Society anywhere in the country who do not have an extensive history of academic publication. The essay should be no longer than 50 pages, though we welcome shorter (or even much shorter) submissions. The essay may be of any style, but it must be original and previously unpublished at the time of submission. The author is welcome and encouraged to publish it later. (If you are unsure if your essay is eligible, please submit it!)

The winner will be judged by a committee made up of members of the University of Chicago Federalist Society chapter plus two outside experts in constitutional law (including one faculty member at the University of Chicago Law School).

Please submit your essay by email to Conley Hurst, ckhurst@uchicago.edu, by March 15, 2022.

The winner will receive a cash prize in excess of $2000, be recognized at an appropriate ceremony by the University of Chicago Federalist Society Chapter, and will have their essay promoted and circulated to other members of the Federalist Society by the Chapter.

(Via Will Baude at Volokh Conspiracy.)