Central High School, Little Rock, AR, where National Guardsmen escorted students to integrated classrooms.Why Scalia’s Originalism Trumps “Original Intent”
Getting to the Essence of the 1787 Document
Gary Lawson and Guy Seidman’s important new book, “A Great Power of Attorney”: Understanding the Fiduciary Constitution, seeks to explain what the Constitution of the United States is. While that might appear to be a goal that could only be achieved with a massive tome (or perhaps several of them), the book runs about 200 pages and is focused narrowly on the question of what kind of document “We the People” ratified in 1788. The Constitution has been called a contract, a compact, a covenant, a charter, and (by one of the coauthors in a previous writing) a recipe—all of which…
Bolling v. Sharpe and Originalism
Mike Ramsey reports on the posting of a new article by Gregory Dolin that attempts to justify the case of Bolling v. Sharpe, which held that a Fourteenth Amendment equality requirement applies to the federal government. This is a difficult argument to make, since the two provisions which are most likely to apply an equality requirement — the Privileges or Immunities Clause and the Equal Protection Clause — apply only against the states, not the federal government. There is some evidence that the Due Process Clause of the Fourteenth Amendment applies an equality requirement, but that Clause applies only to the states. There is not much evidence that the Fifth Amendment Due Process Clause, which applies to the federal government, contains such a requirement.
Dolin argues that an equality requirement derives from the Citizenship Clause of the Amendment, which provides that “All persons born or naturalized in the United States . . . are citizens of the United States.” While I have not read Dolin’s paper, this is a common argument these days, most recently defended by Ryan Williams in the Virginia Law Review.
