In this recent post, I took issue with Justice Clarence Thomas’ apparent recent statement that African-Americans were not considered part of the “we the People” referred to in the Preamble of the Constitution. In conveying what Thomas said, I relied on a report in the Washington Post, which was echoed by many other media sources. […]
Archive | September, 2012
Using Eminent Domain to Take Property For Universities
The Chronicle of Higher Education has an interesting article on the use of eminent domain to forcibly acquire land for universities. It quotes various scholars and commentators on the subject, including yours truly: At a time when public university leaders regularly point to the advantages that private institutions have enjoyed over them in recent years […]
The Scalian Logic for Same-Sex Marriage
This week SCOTUSblog is hosting an online symposium about the Supreme Court’s consideration of litigation challenging the federal Defense of Marriage Act and California’s Proposition 8. My contribution begins: Constitutional law makes strange bedfellows. It can even unite supporters and opponents of same-sex marriage. Consider this: If Justice Scalia’s aggressive reading of Lawrence v. Texas (2003) […]
CBO: Six Million People to Pay Individual Mandate Penalty Tax in 2016
The Congressional Budget Office has just released new estimates of the number of people who will be subject to the individual mandate penalty tax for failing to obtain qualifying health insurance in 2016. According to CBO’s new analysis, the penalty tax will be paid by six million people. The penalty tax will generate an estimated […]
Cato Institute Constitution Day Symposium
The Cato Institute held its annual symposium yesterday to introduce the latest issue of the Cato Supreme Court Review and to celebrate Constitution Day. This year’s line-up is available here, and it includes four Conspirators: Randy, Ilya, Jonathan, and John. Randy was on the first panel, on the health care cases; Jonathan and Ilya were […]
Thoughts on Romney’s Remarks on “the 47 Percent” Who Will Vote for Obama “No Matter What”
Much cyber-ink has already been spilled over Mitt Romney’s May fundraiser statement dismissing the “47 percent of the people who will vote for the president no matter what” because they don’t pay income taxes and depend on government benefits. In my view, Romney’s statement reflects a crude and and largely inaccurate view of voter motivation. […]
Cybersecurity, retribution, and empowering the private sector
In upcoming testimony before the House Homeland Security Committee, I’ll be assessing the Department of Homeland Security, with particular focus on cybersecurity. Probably the most important point I’ll be making is a simple one: We will never defend our way out of the current cybersecurity crisis. That’s because putting all the burden of preventing crime on the […]
Panel on Government Surveillance of the Internet (And Other High-Tech Criminal Investigations)
Last month, I was fortunate to be on a terrific panel about government surveillance and computer-related criminal investigations at the Ninth Circuit’s judicial conference. My colleague Jeffrey Rosen moderated the panel, and we were joined by Tino Cuellar of Stanford Law School and Marcia Hofmann of the Electronic Frontier Foundation. In the video, Judge Bybee […]
Offend Anyone and Everyone But Me
Ken at Popehat makes a good point: If the state has no business policing YouTube videos that are offensive to specific religious groups, why would is be okay to prohibit burning an American flag? Many Republicans have been quick to condemn the Obama Administration for its failure to defend First Amendment principle in the wake […]
Judge Stays Injunction Against Indefinite Detention Law
Last night, Judge Raymond Lohier of the U.S. Court of Appeals for the Second Circuit issued a temporary stay blocking a lower court’s injunction against a law authorizing the indefinite detention of terrorist suspects, pending appellate review later this month. Last week, a federal district court judge had issued a permanent injunction against the law. […]
Were African-Americans Part of “We the People” at the Time of the Founding?
In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s: It is true, Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did […]
Political Parties’ Right to Endorse Candidates for Judicial Office
A Ninth Circuit panel has just struck down the Montana ban on political parties’ endorsing candidates for judicial office. Sanders County Republican Central Committee v. Bullock (9th Cir. Sept. 17, 2012); one judge dissented. This strikes me as quite right: If a state has an election, it can’t suppress speech about the election, whether by […]
The Heritage Foundation’s Guide to the Constitution
If you want to mark Constitution Day today — the 225th anniversary of the Convention’s presenting the Constitution for ratification — you might have a look at The Heritage Guide to the Constitution, which includes essays on the original meaning and current interpretation of each provision of the Constitution. (One of the essays, on the […]
Government-Linked Iranian Foundation Raises Reward for Murder of Salman Rushdie
NBC News reports: “I am adding another $500,000 to the reward for killing Salman Rushdie, and anyone who carries out this sentence will receive the whole amount immediately,” said Hassan Sanei, the foundation’s head, in a statement carried by the Iranian Students’ News Agency (ISNA). The reward offered by the state-linked foundation now stands at […]
Obama’s Lead in the Polls is Not a Historical Anomaly
Ever since Obama established a narrow but clear edge in the polls after the Democratic Convention, conservative commentators such as Niall Ferguson, Andrew McCarthy, John Hinderaker, and Peter Robinson have claimed that this is an unusual historical anomaly explicable only by Romney’s poor campaign strategy or lack of personal appeal, or by some sort of […]