Vol. 138 No. 4 This Article explores Founding-era views about the grounding of constitutional rights and how those rights obtained determinate legal content. Today, we typically view constitutional rights as textually grounded, gaining their force through ratification, and we treat the task of determining their content as a question of law — that is, a question for judges to decide using legal criteria.
Vol. 138 No. 3 One of textualism’s organizing principles is its rejection of “intent” or “purpose” derived from legislative history. But originalism’s organizing principle is its embrace of...
Vol. 138 No. 3 Introduction For more than forty years, I have served as a federal judge — about fourteen years on a court of appeals, and twenty-eight years as...
Vol. 138 No. 1 Guns, abortion, religious establishments, presidential power: While today’s Supreme Court identifies as originalist, it has settled constitutional questions on these and many other issues...
Vol. 138 No. 1 The Appropriations Clause provides that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” In CFPB v....
On June 21, the Supreme Court decided United States v. Rahimi, overturning the Fifth Circuit’s application of the newly minted test for evaluating the...
Tradition. It’s the talk of the town — especially in originalist circles. But what role should it play in constitutional argument? Even fellow originalists...
Response to Community Financial Services and the Intramural Debate over Novelty and Tradition
My colleague, Thomas E. Nielsen, just published a thought-provoking post detailing some of the methodological approaches at play in CFPB v. Community Financial Services...
