Over on Pileus Stanford law professor–and new blogger–Marcus Cole provides his measured take on Elena Kagan’s nomination. You should read the whole thing, but here is his bottom line: What does distinguish Kagan, however, is her track record as Dean at Harvard Law School, particularly with respect to the recruitment of conservative faculty. Contrary to […]
Author Archive | Randy Barnett
The Subjects of the Constitution
Legal Theory Blog guru Larry Solum just named The Subjects of the Constitution the Download of the Week, and I concur. Written by my Georgetown colleague Nick Rosenkranz and just published in the Stanford Law Review, this article is a stunner. It is one of those rare pieces that hits you between the eyes and […]
Advice to Rand Paul re: Civil Rights Act of 1964
By Randy Barnett on May 21, 2010 2:24 pm in Civil Rights, Constitutional History, Fourteenth Amendment, Originalism
Read David Bernstein’s excellent blog post. Unfortunately, because the title of David’s post referred to Bruce Bartlett and not Rand Paul, some seeking a “libertarian” take on this issue may overlook his analysis. To David’s libertarian analysis I would add the following considerations pertaining to the original meaning of the Constitution: (1) The problem of […]
Preliminary Thoughts on Comstock
I just finished reading the opinions in Comstock. While I disagree strongly with the majority’s analysis, and am disappointed that Chief Justice Roberts joined Justice Breyer’s opinion, the case has little or no import for the constitutional challenges to the individual health insurance mandate. The reason for this is simple. Comstock involved whether ample connection […]
Constitutionally Defenseless?
Has thirty years of political conservatives pushing “judicial restraint” left us constitutionally defenseless against an unprecedented claim of Congressional power? Judicial restraint was a judicial philosophy devised by Progressives to overcome Supreme Court resistance to the then-unprecedented growth of federal and state power during the so-called Progressive Era. After the Warren Court deviated from this […]
My talk at the National Press Club on the health insurance mandate
Here are the first two of several YouTube videos of my talk on Tuesday at the National Press Club on the constitutionality of the individual health insurance mandate. I shared the program with Congressman James Sensenbrenner, and my remarks begin at the 7:05 mark on this recording and continue onto the next one.
Elana Kagan: This Video Has Nothing to Do With
But it is amazing.
Speaking at Stanford on Monday
On Monday, May 3d, I will be speaking on Why the Individual Health Insurance Mandate is Unprecedented and Unconstitutional at Stanford Law School. The talk is from 12:45-2:00pm in room 190. The event is open to the public and details are here. Of course, a portion of my speech will concern the analysis I presented […]
Speaking at Columbia on Thursday
I will be speaking on “Was Lochner Right? Economic Liberties and the Fourteenth Amendment” at Columbia law school on Thursday (tomorrow) at noon. The location is Jerome Greene Hall room 102; Jerome Greene Hall is located at 435 W. 116th Street, NYC, NY 10027. Lunch will be provided by the Columbia Federalist Society. If you […]
Interview on the Healthcare Channel
Here are 2 YouTube videos of my recent interview for the Healthcare Channel. In the first, I discuss the unconstitutionality of the individual health insurance mandate under the Commerce Clause and the tax power. Those who want a close examination of how the mandate runs afoul of current Commerce Clause doctrine should look at my […]
In What Sense is the Personal Health Insurance Mandate “Unconstitutional”?
When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. Because of my well-known view that […]
Upcoming Talks
I usually forget to post information about upcoming talks, but not this time. Here are some of the programs in which I’ll be participating over the next few weeks. Ohio Northern University Claude Pettit College of Law – A debate with Professor Bradford Mank of the University of Cincinnati on “Environmental Protection: Government Regulation vs. […]
This is what courts defer to?
So let me explain again how the “judicial restraint” approach to the Constitution is supposed to work. The Supreme Court is supposed to defer to Congress and uphold any law it enacts so long as the justices can imagine a possible reason why Congress might have enacted a law. If the Supreme Court does anything […]
You Must Check Out Legal Theory Blog
You really must check out the new articles and abstracts posted on today’s Legal Theory Blog by Laura Rosenbury, Larry Alexander, Akhil Amar, Jack Balkin, and Ted Eisenberg and Michael Heise. Some truly incredible stuff worth well checking out.
Friday Speech on “Was Lochner Right?” in Richmond
In the press of affairs, I neglected to blog about my speech today at the University of Virginia School of Law. Tomorrow, Friday April 2nd, I will be speaking at the University of Richmond , T.C. Williams Law School. The speech will be at noon in Room 114. My topic: “Was Lochner Right? Natural Rights […]