Here is an interesting video by The Fund for American Studies explaining the mechanism by which capitalism enriches most everyone, even those in “the middle.” I especially appreciated the point that “the rich” subsidize the welfare of everyone else by paying ridiculously high prices for inferior technology. Were it not for these rich “early adopters,” […]
Author Archive | Randy Barnett
Judge Graham’s Deft Analysis of Economic Activity
In my post yesterday, I did not discuss dissenting Judge Graham’s intriguing treatment of the “class of activities” being regulated by Congress. In it, he makes three moves. First, he rejects the utility of the activity-inactivity line as a constitutional distinction: Much has been made in this litigation of the distinction between activity and inactivity. […]
Republican Senator and Physician Tom Coburn Questions Constitutionality of Federal Malpractice Reform
A few weeks ago, I had this column in the Washington Examiner questioning the “fair-weather federalism” of House Republicans supporting HR-5, which regulates the tort of malpractice by employing a highly expansive reading of the commerce power. I was pleased, therefore, to learn of this statement by Senator Tom Coburn (R-OK), a physician and supporter […]
Eight Things to Know About Yesterday’s Sixth Circuit Decision
Volokh readers will remember when two widely-respected conservative Court of Appeals judges, Judge Easterbrook and Judge Posner were on a unanimous Seventh Circuit panel denying both the Due Process and Privileges or Immunities challenge to Chicago’s hand-gun ban. One year later, the Due Process challenge was upheld 5-4 in McDonald v. Chicago. My friend and […]
Are You Starting Law School in the Fall?
If you are starting law school in the fall, you will have to take Contracts. May I recommend my recent book, Contracts, which is in the new series from Oxford University Press, called The Oxford Introductions to U.S. Law. It was written to provide law students with an accessible overview of contract law principles and […]
The Dangerous Effort to Delegitimate Supreme Court Justices
It has been clear for some time now that activists have moved from impugning the character of conservative Supreme Court nominees to delegitimating them as sitting justices. Curt Levey has an interesting article idescribing these tactics and the possible motives of the attackers: Ganging Up on Justices Thomas, Scalia, and Alito. Here is how the […]
My Article on Abolitionist Constitutionalism
I have blogged about this in the past, but the final published version of my article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment is now uploaded to SSRN. This is the final version as it will appear in the peer-reviewed Journal of Legal Analysis. Because the Journal is migrating from the […]
ACS Panel on ACA
On Saturday, I spoke on a panel on the constitutionality of the Affordable Care Act at the annual convention of the American Constitution Society in DC. Other panelists included Dawn Johnson and Walter Dellinger. I was the only one of the 5 + moderator who took the position that the Act was unconstitutional. You can […]
Luncheon Speech on ACA Tomorrow in DC
I will be speaking tomorrow in DC on the legal challenges to the Affordable Care Act at a luncheon sponsored by the Washington, DC Lawyers Chapter of the Federalist Society. The event will be at noon at Tony Cheng’s Restaurant 619 H Street, N.W. Washington, DC (Gallery Place Metro) The cost is $15 for members […]
Interpretation vs Construction
Much confusion in constitutional discourse on both the left and right stems from blurring together of two types of claims about the Constitution. The first concerns the semantic meaning of the text — the words on the page — and the second concerns the doctrines by which that text is applied to particular facts. For […]
More on Medical Malpractice and Fair Weather Federalism
A couple weeks ago, I had an op-ed in the Washington Examiner on the fair weather federalism of those Republicans who were supporting the federalization of state tort law in HR-5, a bill concerning medical malpractice. Today’s Daily Caller featured a new op-ed by Professor John Baker also criticizing the bill: To justify their efforts […]
Alexander Hamilton Rap
I finally got around to watching Richard Brookhiser’s film on PBS about the life of Alexander Hamilton. Rediscovering Alexander Hamilton is a fascinating effort to dramatize Hamilton’s life in ways I thought were very effective. Filmed in the settings in which Hamilton was born, lived and died, historical images and interviews with historians were mixed […]
Liberty and Enumerated Powers
My Washington Examiner column this morning concludes by briefly addressing an odd objection I hear on occasion. Some law professor defenders of the individual mandate such as Laurence Tribe, Charles Fried, and Walter Dellinger have complained that my Clause Clause objections are not really founded on “federalism,” but are actually founded on “liberty.” But liberty, […]
No Limits? No Mandates.
Much has been made by law professors on the supposed weakness of drawing a constitutional line at the regulation of “inactivity” as opposed to “activity.” For some reason, law professors have been less inclined to examine critically the limits on the power of Congress to impose economic mandates on the people that have been advanced […]
Double Deference and the House GOP’s Fair-weather Federalism
This morning, I have an op-ed in the Washington Examiner entitled, Tort reform and the GOP’s fair-weather federalism. Although I support reforming medical malpractice rules to protect doctors from false accusations and runaway jury awards at the state level, the so-called HEALTH Act now pending in the House violates the GOP’s Pledge to America to […]