When it comes to restraining executive agencies, traditional interpretive canons could do nearly as well as the MQD without departing from originalism.
If a small number of sellers will not provide a service to persons of certain political views, classical liberalism does not rule out regulation.
Embracing originalism is not the only response that progressives might make to conservative nonoriginalism, but there are reasons to think they might.
A proper understanding of the Fourth Amendment can accommodate modern technology, even though that technology was not known at the time.
To determine the content of the common law right in such unclear cases, one must put oneself in the position of a common law judge at the time.
Today the two-thirds provision may be the only thing impeding even more intense partisanship concerning impeachment and removal.
Why is it so hard to define intellectual movements in terms of what unites rather than divides them?
Chief Justice Roberts gets the best of both worlds—the Court narrows Auer, but is not seen as overturning a precedent dear to progressives.
Chevron deference should be replaced with a system that accords weight to both contemporaneous and customary interpretations.
Some conservatives are unhappy with modern originalism; the best path for them is not to abandon it but to promote a more conservative version.
In Gundy v. United States, the Supreme Court wasted the opportunity to restore the Constitution’s prohibition on delegation of legislative power.
Legal interpretive rules are key to discovering the Constitution’s original meaning.
The Federalist Interpretation of the Ninth Amendment has some merit, but the Amendment still protects natural rights.
The Ninth Amendment recognizes natural rights, but does not protect them as constitutional rights.
The new case of Biestek v. Berryhill may suggest that courts should give more deference to administrative agency factfinding.
We have come a long way since Bork looked at the Privileges or Immunities Clause, and Pulliam could benefit from this scholarship.
While people set great store on the Preamble’s “We the People of the United States,” other versions of the Preamble might have had the same effect.
The Preamble to the Constitution has an important but limited function in constitutional interpretation.
Originalist justices need not be understood as deciding cases based on their political party.
Jonathan Gienapp's new book falsely sees the Framers' criticisms of parchment barriers as evidence that the Constitution did not have a fixed meaning.
While people assume private unemployment insurance was not practical, it was government prohibitions that blocked it from being sold prior to the New Deal.
Superior tax treatment for employer-provided health insurance and retirement benefits is pernicious.
Many people defend Chevron as deference for an agency determination of policy, but Chevron actually involves close legal issues.
Checks and Balances raises important questions, but they need to identify the specific problems with Donald Trump.
Can Matthew Whitaker be named as Acting Attorney General when the Attorney General can only be appointed with the advice and consent of the Senate?
Advocates and opponents of birthright citizenship are stuck in a dilemma: originalism binds us to accept it, nonoriginalism offers room to deny it.
There is a strong nonoriginalist argument for reading the 14th Amendment not to confer birthright citizenship, but not much room for originalists to agree.
Although constitutional norms are essential to the functioning of our country, they are under serious attack.
Even assuming that the electoral college is a defect in our democracy, the possibility of third party candidates that spoil elections is a worse problem.
A constitutional obstacle to court packing would be tremendously valuable, but it might have downsides as well.
Objectives in studying the past matter, because there is a difference between the historian's “what the past is telling us” and original meaning.
The Ford-Kavanaugh controversy raises issues at several levels of analysis, and we should be careful in assessing each on its own terms.
Nonoriginalism does not necessarily protect rights better than the alternatives: Amanda Tyler's new book on habeas corpus in wartime offers a corrective.
The history of how the U.S. Constitution and the Biill of Rights were ratified is more complex (and long-lasting) than most people realize.
Michael Rappaport on how Hayek's use of the Ninth and Fourteenth Amendments supports traditional rights - and originalism.
Because Janus vs. AFSCME ended public unions' ability to mandate agency fees, do they have to pay back what they accrued from their non-members?
Justice Ginsburg repeatedly expressed her opinions about President Trump, and under similar circumstances any judge would be forced to recuse themselves.
Critics of originalism typically accuse originalist scholars of deploying "law office history," but a look at the scholarship refutes this.
Congress and the States are better judges of what constitutional amendments should exist than the Court.
Like many of the President's critics, Sam Harris seems to be unable to dispassionately assess the present moment.
Due process requires that every person have their day in court, and because of this a central pillar of the administrative state might be unconstitutional.
While the government may have discretion to act outside of the courts, its officers often will not, allowing due process to play out in the courts.
One path to ending the Adminstration's legal troubles would be to change the special counsel regulation, but this poses challenges.
Sam Harris and others offer podcasts for every interest, and this market offers a growing space for discussion and debate.
Will Baude's recent article provides new reasons to defend sovereign immunity, and he does so on originalist grounds.
Justice Gorsuch treated due process as part of the language of the law in Sessions v. Dimaya. It’s evidence that the legal turn continues to gather strength.
States are responsible for the nature of elections: without a strong historical argument to the contrary, partisan gerrymandering is constitutional.
Professor Ned Foley argues that the Constitution limits congressional gerrymandering. Why is this?
New York Times v. Sullivan made suing for defamation quite difficult, and this creates new challenges in the age of Twitter Mobs.
The Supreme Court’s doctrine of expansive federal power is much weaker than the original meaning of limited government.
The importance of Free Enterprise Fund will be felt for years to come because it heralds the return of separation of powers.
Defenders of liberty need to find new ways to restrain government's regulatory power, and supermajority rules are a path to doing this.
Administrative law judges might be unconstitutional under the separation of powers because they should be subject to presidentially controlled removal.
This weekend the Center for the Study of Constitutional Originalism will be holding its Ninth Annual Originalism Works-in-Progress Conference.
Moderating the power of the administrative state means giving power back to Congress and eliminating judicial deference.
While it would be good to address the government shutdown problem alone, it would be better to do so in a way that promotes less spending.
Interpreting the law with original meaning in mind leaves a range of options for defending Brown v. Board.
Originalists can and do support Brown v. Board, and it's important to understand why.
The ACS has compelling reasons to present a united progressive front, but this comes at a steep cost.
The REINS Act puts separation of powers principles into the administrative state.
Can we instill classical liberal principles in administrative law?
Fourth Amendment rights could be better protected through certain actions by state governments and private agreements.
Striking an agreement with your cell phone company could increase privacy protections for your records.
A new wrinkle on the protection of customer identification and cell phone records.
The Carpenter v. United States case, which was argued before the Supreme Court earlier this week, may turn out to be one of the most important Fourth Amendment cases.
What is the relationship between these documents, especially for interpreting the Constitution?