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Full-Text Articles in Jurisprudence
Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum
Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.
These cases raise important questions about …
Deep-State Constitutionalism, Randy E. Barnett
Deep-State Constitutionalism, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …