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Neil Gorsuch? Originalism and the Fall of Icarus

Harold Lloyd | Posted 02.03.2017 | Politics
Harold Lloyd

Well, here we go again. With Neil Gorsuch as the current Supreme Court nominee, once more we hear praises of "originalism" as a judicial interpretive...

Judicial Engagement and its Discontents: A Modest Proposal for Constitutionalists

Evan Bernick | Posted 10.14.2016 | Politics
Evan Bernick

How should the next Supreme Court Justice adjudicate? Last month, I participated in a thought-provoking debate on Cato Unbound concerning that questio...

Against Narrow and Hidebound Originalism: On Peruta v. San Diego and the Right to Armed Self-Defense

Evan Bernick | Posted 06.22.2016 | Politics
Evan Bernick

Predictions of originalism's impending demise may have been premature--at least when it comes to the Second Amendment. What Professor Randy Barnett ha...

The Menace of Arbitrary Power and the Duty of Judicial Engagement: A Further Reply to Greg Weiner

Evan Bernick | Posted 05.27.2016 | Politics
Evan Bernick

There is no question of more pressing and fundamental importance to modern American constitutional law: Is it proper for judges to broadly and systema...

Originalism Isn't Enough: Why Judicial Engagement is Essential to Constitutional Enforcement

Evan Bernick | Posted 05.15.2016 | Politics
Evan Bernick

Calls for judges to be constrained by the Constitution's original meaning are entirely proper--and important.

Supreme Court Strikes Blow for Free Speech -- and Against Arbitrary Government

Evan Bernick | Posted 04.28.2016 | Politics
Evan Bernick

What the Court does in speech cases -- namely, engage in a genuine effort to identify government officials' true ends and assess their propriety -- it can and should do in all constitutional settings.

God Is Living, So Why Does Religion Treat God As Dead?

Omar Naseef | Posted 04.22.2016 | Religion
Omar Naseef

When any religious person claims that a sacred text is "dead" -- in that the understanding of its meaning is fixed forever -- they are directly at odds with their own idea of a living, active God

The Caustic Side Effects of Looking to Supreme Court Justices as Umpires

Allen K. Yu | Posted 02.25.2017 | Impact
Allen K. Yu

According to Chief Justice Roberts, judges are baseball umpires who apply rules impartially to disputes. As neutral actors, judges make everyone play...

Will GOP Leadership Adhere to Scalia's Originalist Theory?

Elizabeth Glass Geltman | Posted 02.25.2017 | Politics
Elizabeth Glass Geltman

GOP leaders who refuse to hold confirmation hearings and attempt to prevent President Obama from making an appointment violate the legacy of the man they seek to replace.

Americans Say Goodbye To Supreme Court Justice Antonin Scalia

The Huffington Post | Cristian Farias | Posted 02.19.2016 | Politics

WASHINGTON -- The remaining eight justices of the U.S. Supreme Court, the president, other government officials and the public convened at the high co...

Justice Scalia's Faux Originalism

Bennett L. Gershman | Posted 02.18.2017 | Politics
Bennett L. Gershman

The adulation by admirers of Justice Antonin Scalia over his alleged role as a conservative constitutional steward who applied neutral, nonpartisan principles, is pure myth. While promoted by conservative ideologues who fawn over Justice Scalia's flamboyant jurisprudence, holding him up as an icon for conservative principles, is simply hard to take.

Justice Scalia, Queen Anne, and the Pragmatics of Interpretation

Harold Lloyd | Posted 02.18.2017 | Politics
Harold Lloyd

Pragmatics recognizes that speaker meaning can differ from (and even contradict) linguistic meaning, including the literal meaning of text.

Death of a Justice

Chris Weigant | Posted 02.15.2017 | Politics
Chris Weigant

With the death of Supreme Court Justice Antonin Scalia, the November election may decide the fate of all three branches of the United States government. That's a pretty unique situation, and it may boost turnout on both sides of the aisle.

The Legacy of Justice Antonin Scalia (1936-2016)

Louis A. Ruprecht, Jr. | Posted 02.15.2017 | Religion
Louis A. Ruprecht, Jr.

Justice Scalia was the proud possessor of a rigorously textual sense of legal reasoning and a decidedly oversized judicial personality. He was known, by friend and foe alike, as the promoter of a novel approach to judicial decision-making known as originalism.

Scalia and Originalism: May They Rest in Peace

Ronald A. Lindsay | Posted 02.15.2017 | Politics
Ronald A. Lindsay

There is no basis for claiming that Scalia's originalist method is more "objective." His method relies on certain suppositions just as much as any rival method of constitutional interpretation and, if anything, the suppositions of the originalist view are more questionable.

'Justice Scalia' Is an Oxymoron

Warren J. Blumenfeld | Posted 02.15.2017 | Queer Voices
Warren J. Blumenfeld

Scalia promoted anything but justice in his opposition to the Voting Rights Act and affirmative action, women's reproductive freedoms, and in particular, the rights and freedoms of lesbian, gay, bisexual, and trans* people.

Supreme Irony: GOP Peddles Denial of Justice!

Martin Lewis | Posted 02.14.2017 | Politics
Martin Lewis

Republicans have shown enormous respect for the Constitution of the United States of America and their hero Associate Justice Antonin Scalia by instantly using his death to demand that President Obama ignore the Constitution for the next 340 DAYS.

Here Comes Da Judge

Glenn C. Altschuler | Posted 01.14.2017 | Books
Glenn C. Altschuler

In Divergent Paths, Richard Posner declares that the emperor (i.e. the modern judiciary) has no clothes.

Do We Have an Amoral Constitution? A Second Reply to Kurt Lash

Evan Bernick | Posted 07.20.2016 | Politics
Evan Bernick

Lash's Constitution is amoral -- it would allow myriad individual rights that are central to human flourishing to be voted up or down. He is free, of course, to argue for that view -- but it is one that the Founders rejected, the Framers of the Reconstruction Amendments rejected.

Yes, The Fourteenth Amendment Protects Unenumerated Rights: A Response to Kurt Lash

Evan Bernick | Posted 07.13.2016 | Politics
Evan Bernick

It is arguably the most important question concerning judicial review today. Should judges require the government to offer an honest, reasoned explanation every time it restricts individual liberty, or just some of the time?

Justice Scalia and Queen Anne

Harold Lloyd | Posted 07.09.2016 | Politics
Harold Lloyd

Of course, Justice Scalia is correct that failure to understand any such contemporaneous meanings of these terms would lead a modern reader to misinterpret what Queen Anne may have said. However, on its face, this example does not apply to the interpretation and application of an ongoing legal rule.

Obergefell v. Hodges and the Meaning of Liberty

Evan Bernick | Posted 07.06.2016 | Politics
Evan Bernick

Fidelity to the Constitution requires fidelity to the law itself, not any particular group of people's subjective understanding of it or expectations about it, whether those people are long dead or still living.

Justice Scalia Versus 'Liberty'

Evan Bernick | Posted 06.17.2016 | Politics
Evan Bernick

Scalia has identified himself as a "faint-hearted originalist." Nowhere is his faint-heartedness more evident than in his refusal to seriously consider whether and to what extent the Constitution protects unenumerated rights.

Lochner Lives! Why Conservatives Are Finally Giving One of the Supreme Court's Most Underrated Decisions the Respect It Deserves

Evan Bernick | Posted 06.23.2015 | Politics
Evan Bernick

It's already one of constitutional law's great comeback stories. For decades, Lochner v. New York (1905) was almost universally held to be one of the worst Supreme Court decisions of all time. Today, it is enjoying newfound respect and even admiration within conservative legal thought.

Denying the Dogma of Judicial Deference: A Reply to Carson Holloway (Part I)

Evan Bernick | Posted 06.09.2015 | Politics
Evan Bernick

In this post, I will argue that Holloway's approach to judicial review is informed by an understanding of rights that is alien to that of the Framers and ignores the express language of the Ninth and Fourteenth Amendments. In a subsequent post, I will trace the tragic consequences of that approach.