In response to: The Destructive Legacy of McCulloch v. Maryland
In response to: The Legal Turn
A couple weeks back, Mark Pulliam wagered that some of the Originalists Against Trump regretted signing the statement after they realized Donald Trump had won the presidential election. This didn’t sound right to me, but maybe that’s because I was one of the original Originalists Against Trump and I have no regrets. But Josh Blackman has recently reported, with support from Jonathan Adler, that “several signatories have had their regrets.” This surprises me, though it probably shouldn’t. The apparent source of personal regret is the reduced likelihood of receiving an appointment—presumably judicial—from the President. “If only I hadn’t signed that statement,…
I was a bit taken aback recently when I realized just how pervasive the organic metaphors have been and how easily they have come to mind when writing against the idea of a Living Constitution. Am I more of a Living Constitutionalist than I realized?
I fully expect that Donald Trump will put forward an exceptional nominee to fill the Supreme Court vacancy left by Justice Scalia’s death. Given the composition of the Senate and the bench of judicial talent, it should be hard to get this selection of a new Justice wrong.
Randy Barnett recently had a great line on Twitter (link no longer available) accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?
This post answers the question that ended my last one, which is how seriously to take something Justice Kennedy wrote about the Fourteenth Amendment in judicially promulgating a federal constitutional right to same-sex marriage. But the post also does more: it points toward a general framework for thinking about the relationship between the Constitution and constitutional law.