Originalism
88 Problems for Kurt Lash
Evan Bernick's first in a series of guest-blogging post: Part I of a critique of an important defense of the constitutionality of Donald Trump's executive order on birthright citizenship.
Is and Ought in Constitutional Law
A response to Joel Alicea on whether originalism needs a moral defense.
Perils of Unitary Executive Theory
The originalist case for a unitary executive falls apart in an era when many of the powers wielded by the executive branch were not originally supposed to be federal powers in the first place.
Is the Jones Act Unconstitutional?
The law is wasteful and protectionist. Now, a new lawsuit argues that it is unconstitutional too.
Randy Barnett: How Legal Is Trump's Agenda?
Georgetown constitutional law professor Randy Barnett discusses the legality of DOGE, Trump's executive orders, and birthright citizenship.
Debating Birthright Citizenship (Again) [UPDATED]
The arguments are not new. The willingness of an Administration to act on them are.
The Meese Revolution: The Making of a Constitutional Moment (2024)
by Steven Gow Calabresi and Gary Lawson.
In Praise of Ignoring Facts: A Review of Jack Balkin's "Memory and Authority"
Why constitutional theory needs more theory.
Review: A Radical Libertarian Lawyer Charts His Evolution
Randy Barnett developed an influential form of constitutional originalism.
Randy Barnett: Originalism, Obamacare, and the Libertarian Movement
Libertarian legal giant Randy Barnett on his epic Supreme Court battles, the Federalist Society, and watching movies with Murray Rothbard.
Thoughts on the Trump Immunity Decision
The Supreme Court's flawed decision largely ignores text and original meaning, and fails to resolve crucial issues.
The Supreme Court's Dubious Use of History in Department of State v. Munoz
Justice Amy Coney Barrett's majority opinion includes significant errors, and violates some of her own precepts against excessive reliance on questionable history.
Constitutional Interpretation in The Collective-Action Constitution
Third in a seris of guest-blogging posts.
Dobbs and the Originalists
Why originalist criticisms of Dobbs often misfire, and why criticisms *of* Dobbs's originalism often misfire too.
Pioneer Institute Hubwonk Podcast on Exclusionary Zoning and the Takings Clause
In interview with Joe Selvaggi of the Pioneer Institute, I explain the harm caused by exclusionary zoning, and why it violates the Takings Clause of the Fifth Amendment.
The Traditionalist Supreme Court
Professor Marc De Girolami's assessment of the Roberts Court.
Michael Rappaport on "the Originalist Disaster" of the Supreme Court's Ruling in Trump v. Colorado
A leading originalist legal scholar explains what the Court got wrong.
New Article on "The Constitutional Case Against Exclusionary Zoning"
Coauthor Josh Braver and I argue exclusionary zoning violates the Takings Clause of the Fifth Amendment.
According to Law
A keynote address to the Symposium on Common Good Constitutionalism.
Who Decides Whether Trump Can Run, and What Sort of Evidence Suffices?
Letting state officials determine whether a candidate has "engaged in insurrection" opens a huge can of worms.
How Originalist Is the Supreme Court?
More than you might think—and it’s getting better all the time.
Why President Trump is an "Officer" who Can be Disqualified From Holding Public Office Under Section 3 of the 14th Amendment [Updated]
The opposing view is contrary to the original meaning, and leads to absurd conclusions.
Frederick Douglass as Natural Rights Originalist
A fascinating new exploration of Frederick Douglass' constitutional thought.
More on Federal Power Over Immigration and James Madison's Report of 1800
My response to Rob Natelson's argument that Madison's Report is largely irrelevant to the constitutional debate over immigration.
Justice Scalia's Unpublished Dissent in Kelo v. City of New London
Its existence was revealed when Justice John Paul Stevens' papers were made public earlier this week.
Ketanji Brown Jackson and the Future of Progressive Originalism
The liberal justice seems ready to fight legal conservatives on their own ground.
Is Justice Jackson the "De Facto Leader" of Progressive Originalists?
Originalist scholar Larry Solum suggests KBJ could be the Left's Antonin Scalia.
The original meaning of the Indian Commerce Clause
Professor Natelson versus Professor Ablavsky
Originalism and the "Major Questions" Doctrine
Originalist legal scholars Mike Ramsey and Mike Rappaport debate whether the major questions doctrine - an important theory underlying several recent Supreme Court decisions - can be squared with originalism or not.
Sunstein Challenges Originalists on Bolling v. Sharpe (Updated)
If the Supreme Court was correct in Dobbs, was it wrong in Bolling?
What Law Professors Think About Legal Issues - and Why it Matters
A new study sheds interesting light on these questions.
Samuel Alito Thinks It's Obviously Absurd To Suggest That Drug Prohibition Violates the Constitution
The justice overlooks the long American tradition of pharmacological freedom and the dubious constitutional basis for federal bans.
Originalism, Common Goodism, and Conservative Constitutionalism
Adrian Vermeule responds to Judge Bill Pryor, and others comment on "Common Good Constitutionalism"
My NBC Article on the Confirmation of Supreme Court Nominee Ketanji Brown Jackson
It explains why many of the reasons GOP senators gave for opposing Jackson were ridiculous, but also that there is nothing inherently wrong in opposing a qualified "mainstream" nominee based on differences over judicial philosophy.
Judge Bill Pryor Challenges Common-Good Constitutionalism
A recent lecture defends Originalist judging against its upstart conservative rival.
My Appearance on Prof. Eric Segall's "Supreme Myths" Podcast
We discussed my book "Free to Move," the state of originalism, and other issues.
How to Win a Prize for Writing About Originalism
The new Eaton Award from the University of Chicago Federalist Society: This year's topic is "Does originalism still work?"
Originalism and the Result in Dobbs
Would the outcome in Dobbs put originalism in doubt?
Kelo, Originalism, and Public Use
A response to Jonathan Adler's attempt at an originalist defense of Kelo v. City of New London.
Should an Originalist Justice Support Overruling Kelo v. New London?
The general assumption that the Fifth Amendment bars takings for economic development purposes rests on shaky ground.
