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 […]
Archive | Constitutional History
Bruce Bartlett’s Attack on Libertarianism
Bruce Bartlett, an economist whose work I’ve enjoyed reading over the years, and author of a book on the history of the Democratic Party and race, uses the occasion of Rand Paul’s controversial remarks about the Civil Rights Act of 1964 to launch a weirdly ahistorical attack on libertarianism: As we know from history, the […]
State court standards of review for the right to arms
Forthcoming in a symposium issue of the Santa Clara Law Review, final version here. This 108-page article, which I wrote with Clayton Cramer, surveys the leading state constitution right to arms cases, from the Early Republic to the present. The article examines the various standards of review that state courts have used in examining gun […]
Debate on constitutionality of Obamacare
By David Kopel on April 30, 2010 1:03 am in Congress, Constitutional History, Economic LIberties, Federalism, Health Care, Supreme Court
Held on April 28 at the University of Colorado law school, under the sponsorship of the American Civil Liberties Union of Colorado. Arguing in favor of constitutionality was Jean Dubofsky, former Justice of the Colorado Supreme Court. Arguing the other side was me. The video is here. (Video and audio are often out of sync […]
The Democratic Strategist misdescribes some legal issues
By David Kopel on April 13, 2010 12:44 am in Constitutional History, Health Care, Politics, Religion and the Law, Religious Freedom, Supreme Court
The Democratic Strategist (co-edited by William Galston, Stan Greenberg, and Ruy Teixeira) aims to provide “serious, data-based discussion of Democratic political strategy.” Today, a special “Urgent” issue was published, regarding the Supreme Court and warning about the “covert extremist agenda” of the Republican right. The report raises an alarm about the legal agenda currently promoted […]
Public radio program on the modern states’ rights movement
By David Kopel on April 8, 2010 12:22 am in Constitutional History, Constitutional Theory, Federalism
Today KUER, Salt Lake City, devoted an hour to discussion of the current surge of interest in states’ rights. The four participants each appear in a different quarter of the program. The guests were Utah State Representative Ken Sumsion, me, Chip Ward (who claims that the state’s rights advocates are not sincere) and Alison LaCroix of the University […]
An Act for the Relief of Sick and Disabled Seamen
This 1798 statute (5 Cong. Ch. 77, July 16, 1798, 1 Stat. 605) is currently making the blogospheric rounds as purported proof that the 2010 congressional mandate to purchase health insurance from a private company is based on long-established practice. Incorrect. Sections 1 and 2 of the act impose a 20 cent per month tax […]
Destroying the Constitution’s Structure is not Constitutional
By David Kopel on April 2, 2010 3:38 am in Constitutional History, Constitutional Theory, Federalism, Fourteenth Amendment, Health Care, Militia, Taxes
Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which […]
A Citable Version of Hamburger’s Privileges or Immunities Article Now Online
In the discussion of the McDonald case a few weeks ago, I posted a link to Philip Hamburger’s manuscript, Privileges or Immunities. His forthcoming article, which will be published by the Northwestern Univ. Law Review, is now online in a version that may be cited and quoted.
Is the tax power infinite?
By David Kopel on March 22, 2010 8:05 pm in Commerce Clause, Congress, Constitutional History, Economic LIberties, Federalism, Guns, Health Care, Necessary and Proper, Politics, Supreme Court, Taxes
One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce among the several states does not include the power to compel people to engage in commerce. Jack […]
Lochner v. New York as a Test Case
Many of the most important cases in American constitutional law have not involved true cases or controversies. Instead, they involved individuals or organizations who intentionally set up a test case to challenge a law they disliked. Prominent examples include Plessy v. Ferguson and Griswold v. Connecticut. I think we can add Lochner v. New York […]
Chief Justice Taney on the Privileges or Immunities of Citizens of the United States
How might the Republicans in the 39th Congress have gotten the idea that the Privileges or Immunities of Citizens of the United States included the personal guarantees included in the Bill of Rights? All concede that the Fourteenth Amendment was, among other things, designed to reverse Dred Scott. Here is how Chief Justice Taney described […]
Jacob Howard Explains Privileges or Immunties
This morning Professor Philip Hamburger graciously responds to my blog post reacting to his new paper on Privileges or Immunities. In an email, he also gave me permission to quote his paper. I should mention that Philip and I have been friends for many years, and I have always considered him to be both a […]
Philip Hamburger Responds on the Original Meaning of the Privileges or Immunities Clause
I asked Philip Hamburger if he wished to respond to Friday’s blog posts here at the VC about his new draft article, Privileges or Immunities. He graciously agreed to respond. I have reposted his response below: *************** I am grateful to Jim for linking my paper, to Orin for starting the conversation, and to Randy […]
Hamburger’s “Rough Draft” on Privileges or Immunities
By Randy Barnett on February 27, 2010 1:52 am in Constitutional History, Fourteenth Amendment, McDonald v. City of Chicago, Supreme Court, Uncategorized
As Jim Lindgren has noted, on the eve of the argument in McDonald v. Chicago, Philip Hamburger has posted on SSRN what is labeled a “rough draft” of a new paper entitled, Privileges or Immunities. This timing is unfortunate. Given that this is a serious work of scholarship by a serious scholar, it demands serious […]