Clarence Thomas makes a typical argument in favor of originalism: Let me put it this way; there are really only two ways to interpret the Constitution — try to discern as best we can what the framers intended or make it up…To be sure, even the most conscientious effort to adhere to the original intent […]
Tag: constitutional interpretation
Adam Liptak has a useful roundup, noting that the Court does not have any “blockbusters” comparable to last year’s Second Amendment, death penalty, and war powers decisions. There ar
Since there seems to be some confusion here, allow me to save time in comments by explaining a basic distinction: 1)Under current law, a woman has a fundamental right to choose an abortion. And if Gri
On the issue of the citation of foreign law in United States Supreme Court opinions, I think this is the key passage in Adam Liptak’s recent article: The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is […]
Richard Posner has an interesting article — essentially an application of his recent HLR Foreword — critiquing the Supreme Court’s decision in Heller, the D.C. gun control case. It&#
There’s something of a curious disconnect between two passages of Scalia’s opinion in Heller: After an exhaustive discussion of the arguments for and against gun control, Justice Breyer ar
Great point by Sandy Levinson: If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective […]
Today’s decision in Kennedy v. Louisiana is a fairly typical Eighth Amendment case. The relevant textual language — “nor cruel and unusual punishments inflicted” — can ev
Given the credible assumption that Scalia will be writing the Court’s likely-to-be-a-landmark 2nd Amendment opinion in Heller, Mike O’Shea claims that this is “great news for those w
Ogged, riffing on Adam Liptak’s article about the United States as a (recent) outlier on free speech: It’s dogma in the US that if you give up a strong commitment to the right of free speech, you’re well on the way to tyranny, but we have now several countries with a softer commitment to it […]
In response to Eugene Volokh, I should say that I’m perhaps making a slightly different argument than the one he’s addressing. My point about the vote in the legislature, as well as the su
In light of the passing of Mildred Loving, it’s useful to return to standard set out by Antonin Scalia to apply the equal protection clause in cases that don’t involve installing a politic