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”).Details
the power at stake here – to receive ambassadors – is expressly given to the President in what appear to be mandatory terms (he “shall” receive ambassadors).Details
I like that McGinnis and Rappaport frame the core question of constitutional adjudication as a choice among (a) originalism, (b) a “living constitution,” or, as they frequently call it, “judicial updating”, or (c) judicial deference to political branches.Details
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.
Trying to solve these questions by judicial reasoning rather than historical inquiry converts them from questions about what the framers wrote to questions about what the judge thinks is best.Details
Via Derek Muller at Excess of Democracy, last week the Tenth Circuit found a guarantee clause claim justiciable. Here is the opinion in Kerr v. Hickenlooper, which is challenge to Colorado’s constitutional limits on the legislature’s power to tax.Details
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.Details