My thanks again to the VC for lending me the podium this week to talk about The Conscience of The Constitution. I hope you’ll join me—in person or online—on January 30, when I speak about the book at the Cato Institute’s book forum. Then I’ll be participating in February’s Cato Unbound to discuss the debate […]
Author Archive | Timothy Sandefur, guest-blogging
Ninth Circuit to Hear Challenge to Obamacare’s “Platonic Guardians” January 28
I mentioned in a previous post that Progressivism has a curious definition of “democracy” that largely takes the form of unaccountable administrative agencies wielding enormous power to regulate people’s behavior. Perhaps the most extreme example of administrative power—the Independent Payment Advisory Board, or IPAB—is the subject of the latest constitutional challenge to Obamacare to be […]
Kentucky’s War On The Little Guy…And Nevada’s…and Missouri’s…
Sunday at 10pm Eastern, Fox News will be rebroadcasting John Stossel’s special, War On The Little Guy, which includes a segment about my lawsuit on behalf of Kentucky entrepreneur Raleigh Bruner. Some years ago, Raleigh started a moving business in Lexington called Wildcat Moving. What he didn’t know was that if you want to start […]
Conservatives Adopt Progressive Priorities
Progressive constitutional doctrine underwent some interesting changes in the middle of the twentieth century. One was the return of liberty-based concerns in jurisprudence, and the repudiation of some of the more extreme Progressive democracy-based legal decisions. This is most notable in West Virginia Bd. of Ed. v. Barnette, which held that school children could not […]
How Rational Basis (D)evolved Into A Get Out Of The Constitution Free Card
I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I […]
Holmes Helps Americans Go To Hell
The clash between the classical liberalism of the Constitution—which holds that individual rights are primary, and democracy is secondary, and limited by individual rights—and the “wolf’s view” of politics—which holds the power of the majority as primary, and sees rights as privileges given to the individual by the majority—persisted into the twentieth century. Although the […]
A private little Slaughter-House Cases
The Slaughter-House Cases was a shocking reactionary retreat from what had been accomplished with the ratification of the Fourteenth Amendment. But it was not the first such case. Three years earlier, the California Supreme Court decided a similar case called People v. Brady, in which it declared that if the Justices thought the Amendment had been designed […]
Jeremiah Black And The Wrecking of The Fourteenth Amendment
The first Supreme Court case to interpret the Fourteenth Amendment was the 1873 Slaughter-House Cases, in which a group of Louisiana butchers challenged the constitutionality of a state law requiring that all slaughtering be done at a single, privately-owned abattoir. They argued that this law deprived them of the right to earn a living without […]
The Liberty Constitution, Or, What About Slavery?
In my first post, I said that the basic premise of the Constitution is that people are fundamentally free, and that political institutions are created through that freedom, and are legitimate only insofar as they respect that freedom. The central value of the Constitution, I argue, is the liberty that the Declaration of Independence proclaims as […]
The Wolf Amendment
Prof. Kerr asks a good question, one that touches on a point that differentiates my argument from that of some of my allies, and one that gives rise to another point that I think strengthens my view. How should a judge act if the American people were to ratify a constitutional amendment that explicitly adopted […]
The Conscience of The Constitution: An Introduction
It’s great to be back guest-blogging at The Volokh Conspiracy. And it’s well-timed, because just the other day , Prof. Volokh quoted one of my favorite passages from Lincoln, one I use on the first page of The Conscience of The Constitution. The theme of my book is that the clash of these two conceptions […]
Thanks — and Come Visit!
Thank you to The Volokh Conspiracy for allowing me to guest blog this week about economic liberty and the law. Economic freedom is one of the most crucial of human rights, and it is a shame that government violates this right in so many ways today, and with little serious opposition by the courts that are […]
The Poetry of Economic Liberty
There’s a surprising amount of great poetry about economic liberty; perhaps the most famous is Shylock’s comment in The Merchant of Venice, when Antonio recommends that the state confiscate Shylock’s property: “Nay, take my life and all; pardon not that: / You take my house when you do take the prop / That doth sustain […]
Florida District Court Refuses to Dismiss Obamacare Challenge
Judge Roger Vinson of the Northern District of Florida has issued a decision refusing to dismiss the constitutional challenge to the Obama Administration’s health care legislation. You can read the decision here, and more information here. On the Commerce Clause issue, the court said: The individual mandate applies across the board. People have no choice […]
Racial Impacts and Business Regulations
Intrusive business regulations have a disproportionately negative impact on the poor and members of minority groups, who lack the political influence that whereby wealthy corporations and politically well-connected people are able to obtain special government favors. Nobody has done better scholarship on this point than Volokh Conspiracy blogger David Bernstein. The historical examples of the […]