Amicus Brief in Tuaua v. United States

Last week I joined a group of distinguished scholars on this amicus brief filed in support of plaintiffs/appellants in Tuaua v. United States, the Samoan citizenship case now at the D.C. Circuit.  As I’ve discussed before, the issue is whether the Constitution allows the United States to treat inhabitants of American Samoa (a U.S. territory) as something less than American citizens (they are called “non-citizen nationals”).

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Some Responses on McCutcheon and Campaign Finance Legislation

Michael Perry writes:

I share your originalist misgivings about the plurality and Thomas opinions in McCutcheon. However, a reader of your most recent post on the mattermight conclude that you have bought into the “expected applications” version of originalism, and I doubt you mean to do that!  So, you might want to say something further about the version of originalism you are bringing to bear in expressing your misgivings about the McCutcheon opinions.

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The Worst Post on Recess Appointments?

I think it is not surprising that the leading current commentaries supporting the President — including the four mentioned above — focus on modern needs or on practice long after ratification. The founding-era meaning is clear and straightforward. Cecere’s weak attempt to show otherwise actually confirms it.

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Thomas Colby: Originalism and the Ratification of the Fourteenth Amendment

The Amendment can therefore claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people.

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