Author Archive | Randy Barnett

Here is the video of the press conference I mentioned last week announcing the introduction into the House and Senate of the Repeal Amendment.

Orin worries that the Supreme Court will need to grapple with Congress pushing up to the line if it finds the regulation of “inactivity” beyond its powers. He need not worry. Since Congress has never imposed economic mandates on the people before, it will be easy for it to avoid doing so in the future. […]

Ed Whalen has an excellent post today on Bench Memos about Jeffrey Toobin’s chiding of Larry Tribe’s op-ed in which Tribe appeared to be cautioning the conservative justices to rule his way or be considered by him to be partisan hacks. Here is what Toobin said: Larry Tribe wrote an op-ed piece about the constitutionality […]

I just returned from a press conference announcing the introduction today in both the House and the Senate of the “Repeal Amendment,” a proposed amendment to the Constitution that reads: “Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the […]

In light of Orin’s post this morning I have four additional observations to add to my post of yesterday. First, Attorney General Katyal did not question the meaningfulness of the activity-inactivity distinction. Instead, he argued that the statute regulated activity. That is a different claim than Orin has been making. In none of its briefs […]

As one of the lawyers now representing the National Federation of Independent Business in the Eleventh Circuit, I was at yesterday’s oral arguments in Richmond. I had a somewhat different take on the discussion of the activity-inactivity distinction. Lyle Dennison’s account of the opening minutes is generally accurate, but there are two important qualifications. One […]

Larry Solum has uploaded his new paper, What is Originalism? The Evolution of Contemporary Originalist Theory. It will appear as a chapter in a forthcoming book from Cambridge University Press entitled, The Challenge of Originalism: Essays in Constitutional Theory (Grant Huscroft and Bradley W. Miller eds., Cambridge University Press, forthcoming 2011). It is a very […]

On Friday and Saturday, I will be participating in a symposium on Jack Balkin’s new book, Living Originalism. In my conference paper, Jack Balkin’s Interaction Theory of ‘Commerce’, I criticize his originalist analysis of “commerce” in the Commerce Clause. My paper is now uploaded to SSRN and can be downloaded here. Here is the abstract: […]

Tomorrow (Thursday, April 7th) I will be speaking on the unconstitutionality of the individual insurance mandate at the Northwestern University School of Law at Noon in room MC 195 (Strawn Hall) in the McCormick building of the law school. On Friday (April 8th) at Noon in Room D, I will be speaking on “Was Lochner […]

In addition to the new article by Jim Lindgren blogged about below, Larry Solum has the scoop today on new articles by Michael Dorf (Cornell) on A Theory of the Constitution, Mark Tushnet (Harvard Law School) on Taking the Law Away from the Courts, Benjamin Wittes (Brookings Institution) on Defamation and Treason in the Early […]

Today seems to be an unusually heavy news day.

Although some have accounted for the imbalance between left-leaning and right-leaning law professors on the bases of self-selection, others have maintained that conservatives are simply less intelligent than progressives. For this reason, it is suggested, conservatives (especially social conservatives, but also libertarians) either avoid academia in favor of less demanding positions in the business world, […]

You have to hand it to Josh Blackman, and the Harlan Institute for its new project that is sure to appeal to Americans. A theme park based on the Constitution. Constitution Land, a planned theme park from the Harlan Institute, will immerse “we the people” in the Constitution of the United States. Through virtual reality […]

The deadline to apply for the Institute for Humane Studies Summer Seminars is fast approaching this Thursday, March 31st. If you, or someone you know, are a student with an interest in liberty, take advantage of these wonderful seminars. When I was a prosecutor in the Cook County States Attorney’s office, I took vacation time […]

In the next few days I will be speaking on the “Turning Citizens into Subjects: Why the Individual Insurance Mandate is Unconstitutional” at three schools: Tomorrow, Thursday (3/3) at Claremont McKenna College in Pomona Claremont, California. The event will be held at 4:15pm in Roberts North 15. Monday (3/7) UNLV Boyd School of Law. The […]