Author Archive | Randy Barnett

The Georgetown Supreme Court Institute celebrated the end of its season of moot courts this afternoon with a reception honoring Justice Ruth Bader Ginsburg.  Justice Scalia delivered testimonial remarks for his colleague.  He also credited the Institute for helping to raise the quality of Supreme Court advocacy during the time he has been on the […]

Jonathan posts yet another poll confirming both the unpopularity of the individual insurance mandate and the popular desire and expectation that the Supreme Court will it unconstitutional.  What is interesting to me about this particular poll is that this result obtains despite the fact that it has elements of a push poll.  As supporters of the […]

If you click here, you can order your own Giclee print of the cartoon from the April 9th issue of the New Yorker, which the website describes as follows: “I say it’s government mandated broccoli and the hell with it!” A stubborn child sits with his arms crossed at the dinner table and refuses to eat […]

Einer replies to the two previous posts: The responses by Randy Barnett and Phillip Hamburger to my New Republic article contradict each other in an interesting way.  Barnett argues that the Obamacare challengers’ claim is decidedly not historical because it was never based “on the original meaning of the Constitution,” but instead rests on an […]

Columbia law professor Philip Hamburger passes along this response to the latest New Republic post by Harvard law professor Einer Elhauge: During the past two weeks, Einer Elhauge has attempted to establish the constitutionality of the ACA on the basis of history.  Since then, I and others have pointed out that his historical claim is […]

Einer Elhauge has kindly written to tell me about his new reply in The New Republic on-line to Philip Hamburger’s critique, which appeared here on the Volokh Conspiracy, of his earlier claim that there were historical precedents for the individual insurance mandate: Since I wrote last week about the remarkable eighteenth-century precedents for a health insurance mandate, […]

I have been following the reaction to Judge Janice Rogers Brown and Chief Judge David Sentelle’s concurring opinion in Hettinga v. United States.  It won’t surprise Volokh Conspiracy readers to know that I was very pleased to see their critique of “rational basis” Due Process Clause scrutiny of economic legislation.  Indeed, we have recently seen the […]

I have not been following the John Edwards case closely, and do not have an expert opinion about the merits of his prosecution for violating campaign finance laws.  But this is not the first opinion piece I have read that questioned the legal merits of this case.   The fact that it was an editorial […]

Columbia law professor and legal historian Philip Hamburger passes along the following comment on Einer Elhauge’s use of early maritime acts as historical precedent for the individual insurance mandate:           In defense of the constitutionality of the ACA under the Commerce Clause, Einer Elhauge points to early federal statutes on firearms and seamen.  The relevant […]

The American Constitution Society will be holding its annual student symposium in DC on June 14-16.  Visit the official convention website for an up-to-date schedule, panel topics and confirmed speakers.  It is an impressive list, including Consumer Financial Protection Bureau Director Richard Cordray, U.S. Supreme Court Justice Ruth Bader Ginsburg, U.S. Senator Tom Harkin, California Supreme Court Justice Goodwin […]

On the Atlantic, Larry Lessig has offered a response to this blog post of mine that is both thoughtful and very generous to me personally.  Although I disagree with the substance of his defense of his original claim, I don’t have the time at the moment for a reply.   However, at the end, Larry offers what […]

Well, that is not exactly what he says.  Instead, in Why Scalia Could Uphold Obamacare, Larry Lessig actually says that if the “conservative” Justices do not accept his reading of their prior decisions, his students and other cynics would think the justices were acting politically, and he would be powerless to defend the Court, which would sadden him […]

[This was originally posted last night around midnight as an “update” to this reply of mine to Einer Elhauge’s original column in The New Republic.  Since Eugene posted before he had the chance to read my update but his post appears later, and because this update was so long, I thought it would be less […]