One of the issues in the McDonald gun rights case before the US Supreme Court is whether the Privileges or Immunities clause of the 14th Amendment was intended to incorporate the Second Amendment. In a new paper available on SSRN, historian Philip Hamburger argues that incorporation was not intended: What was meant by the Fourteenth […]
Archive | Constitutional History
Podcast extravaganza
Five new podcasts from the Independence Institute’s iVoices.org: 1. The University of Montana’s Rob Natelson on the Executive Vesting Clause. Natelson argues that the first clause of Article II grants the President no additional powers–contrary to the theory that the clause gives the President almost all the powers formerly possessed by English Kings. 36 minutes. 2. The […]
Secession or Divestment? Or Both?
Further to Orin’s secession post below. For reasons I won’t try to go into now, I don’t think there is a right to secede as a matter of US Constitutional law; I think Lincoln’s arguments in the First Inaugural are persuasive and, moreover, endorsed in blood by the Civil War, and even if one can […]
Roscoe Pound on the Second Amendment
“In the urban industrial society of today a general right to bear efficient arms so as to be enabled to resist oppression by the government would mean that gangs could exercise an extra-legal rule which would defeat the whole Bill of Rights.” Roscoe Pound, The Development of Constitutional Guarantees of Liberty 91 (1957). Although Pound […]
A (Relatively) Brief Followup/Clarification re Roscoe Pound
[You should probably scroll down and start with Orin’s first post on Glenn Beck if you want to follow this thread] First, thanks to Orin for the nice plug for my Rehabilitating Lochner book, which probably won’t be out until about a year from now. Second, just to clarify, my broader concern in criticizing Roscoe […]
Roscoe Pound, Enemy of American Constitutionalism
Below, Orin expresses amazement/bewilderment that Glenn Beck deems Roscoe Pound an important enemy of American constitutionalism, by which I assume Orin means a proper understanding of the U.S. Constitution. I watched the clip, and I’m not going to vouch for Beck’s bizarre claim that Pound was somehow responsible for American lawyers interpreting the Constitution via […]
Amar v. Natelson on the constitutionality of Obamacare
By David Kopel on January 27, 2010 1:29 am in Commerce Clause, Constitutional History, Health Care, Originalism
Rob Natelson (U. Montana; Independence Institute) addresses Akhil Amar’s claims that Obamacare is consistent with the original meaning of the Constitution.
Happy Birthday Lysander Spooner!
Today is Lysander Spooner’s birthday. Born in 1808, Spooner was a lawyer, abolitionist, entrepreneur, prolific writer and eventually an individualist anarchist. Political science professor and Spooner scholar Helen Knowles offers her birthday tribute on her new blog, Irresistible Clearness, which is named after a passage from United States v. Fisher by Chief Justice John Marshall […]
Constitutional Places
Josh Blackman is assembling a book with photos of locations involved in famous constitutional law cases. He posts a list of those cases here. If you have relevant photos, you may want to send them for inclusion. I think Josh should consider including pictures of some of the feral cats who currently inhabit the property […]
Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform
By David Bernstein on January 11, 2010 10:48 am in Civil Rights, Constitutional History, Economic LIberties
I’ve just posted this article, co-authored with Tim Leonard of the Princeton Economics department, on SSRN. Here’s the abstract: Contrary to their modern reputation as egalitarian liberals, many of the original progressive architects of American labor reform were partisans of human inequality. The labor legislation they pioneered was, in important respects, designed to exclude immigrants, […]
Constitutionality of the “Nebraska Compromise”
By David Kopel on December 23, 2009 2:02 pm in Congress, Constitutional History, Necessary and Proper, Originalism, Supreme Court
The original “Nebraska Compromise” (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill […]
Privileges or Immunities Extravaganza
By David Kopel on December 21, 2009 3:45 pm in Constitutional History, Constitutional Theory, Fourteenth Amendment, Guns, Supreme Court
On March 2, the Supreme Court will hear oral argument in McDonald v. Chicago, a challenge to the handgun bans in Chicago and Oak Park. The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment’s Due Process clause, or under the Privileges or Immunities clause. There’s been […]
The Right to Arms in the Living Constitution
By David Kopel on December 19, 2009 1:55 pm in Congress, Constitutional History, Fourteenth Amendment, Guns, Popular Culture, Registration, Supreme Court
That’s the topic of my new article, for a forthcoming issue of Cardozo Law Review de Novo (the on-line supplement to Cardozo’s printed journal). The article will be part of a symposium issue on McDonald v. Chicago. Here’s the abstract for my Cardozo article: This Article presents a brief history of the Second Amendment as […]
Stephen Halbrook Christmas Special
By David Kopel on December 17, 2009 6:34 pm in Constitutional History, Criminal Law, Fourteenth Amendment, Guns, Supreme Court
A fifty-three minute podcast interview with Stephen Halbrook. Over the last three decades, Halbrook has been the greatest legal champion of Second Amendment rights. As a scholar, as an attorney (with a 3-0 record in the Supreme Court), and as a public advocate, Halbrook has done tremendous work in saving the Second Amendment from nullification, and in putting the […]
New article on the right to arms in early Pennsylvania
The Keystone of the Second Amendment: Quakers, the Pennsylvania Constitution, and the Questionable Scholarship of Nathan Kozuskanich, 19 Widener Law Journal (forthcoming 2010). By Clayton Cramer and me. Abstract: Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in […]