Vanderbilt law professor Suzanna Sherry has written a thoughtful response to my and Orin Kerr’s critiques of her article “Why We Need More Judicial Activism.” To briefly recap, Suzanna contends that courts should err on the side of excessive “activism” (defined simply as striking down laws or other official actions) rather than excessive restraint, because […]
Archive | Constitutional History
Suzanna Sherry on the Case for “Judicial Activism”
By Ilya Somin on August 20, 2013 7:50 pm in Constitutional History, Constitutional Law, Constitutional Theory
Vanderbilt law professor Suzanna Sherry recently posted an interesting article on “Why We Need More Judicial Activism”, which led to a symposium at The Green Bag, and a critique by co-blogger Orin Kerr. I agree with Sherry’s main point: that we need more judicial review, not less, and that historically federal courts have erred more […]
My Forthcoming Book Chapter on “The Impact of Judicial Review on American Federalism”
My forthcoming book chapter, “The Impact of Judicial Review on American Federalism: Promoting Centralization More than State Autonomy,” is now available on SSRN. It will be published in Nicholas and Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists? (Oxford University Press, forthcoming). This book examines the effects of judicial review on […]
The Fiduciary Foundations of Federal Equal Protection
By David Kopel on August 4, 2013 3:46 pm in Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, Education, Equal Protection, Fifth Amendment, Fourteenth Amendment, Originalism, Supreme Court
Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of […]
Indian Commerce Clause in the Supreme Court
By David Kopel on July 1, 2013 7:43 pm in Child Protection, Commerce Clause, Constitutional History, Constitutional Law, Federalism, Racial Discrimination, Supreme Court
Among the cases decided during final week of the Supreme Court term was Adoptive Couple v. Baby Girl (Scotusblog summary here.) Justice Alito’s opinion for a 5-4 majority begins: This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified […]
Ice-T, Volokh, and Kopel: Together at last in a feature film
By David Kopel on June 23, 2013 3:12 pm in Constitutional History, Constitutional Law, Guns, History, McDonald v. City of Chicago, Popular Culture, Registration, Self-Defense, Terrorism
The film is Assaulted: Civil Rights under Fire. It opened Friday in a limited theatrical release. Assaulted tells the modern and historic story of the Second Amendment, with a particular focus on civil rights. The events include Reconstruction, the Deacons for Defense, the Battle of Athens, the post-Katrina gun confiscations, and much more. The narrator is Ice-T. […]
Kens on Rehabilitating Lochner
Paul Kens, a professor of political science at Texas State University, is the author of Lochner v. New York: Economic Regulation on Trial. I described the book in 2011 as “The last major scholarly work on Lochner to propound the traditional view of Lochner–that its origins lie in ‘laissez faire Social Darwinism’ and that its […]
Irony Alert: Michael Lind on Lochner
If you are going to accuse a critic of being “astonishingly ignorant of history,” your response to said critic should not include this: State and local licensing rules and trade laws governed economic life in detail, down to the size of spigots in wine casks, in some cases. It was precisely these state and local […]
Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects
By David Kopel on March 16, 2013 4:21 pm in Asset Forfeiture, Constitutional History, Constitutional Law, Criminal Law, Federalism, Guns, Supreme Court, Symposia, Tenth Amendment, War on Drugs
That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction: In this Article we discuss the synergistic […]
Article on Buchanan v. Warley
In 1917, the Supreme Court decided Buchanan v. Warley, holding that it was unconstitutional to ban blacks from buying property on blocks where mostly whites resided, and vice versa. Buchanan was, in my opinion, a very important case, but it has mostly languished in obscurity. Last week, however, Senator Rand Paul talked about Buchanan on […]
Ian Millhiser of Think Progress on Paul and Lochner
Attorney Ian Millhiser of the “liberal” Center for American Progress is quite agitated by Sen Paul’s speech yesterday, and not because he is concerned about potential abuses of executive authority. Rather, it’s because Paul had the temerity to refer favorably to Lochner. This provoked Millhiser’s response (h/t Alex Tabarrok), which is full of disingenuous statements: […]
Rand Paul on Lochner, Buchanan v. Warley, and Oliver Wendell Holmes
Embedding the video isn’t working, so here’s a link to the relevant remarks (courtesy of Breitbart.com). I haven’t had a chance to blog about this, but Sen. Paul and everyone else who complain that defining “due process” for a drone strike as review within the executive branch is completely contrary to what due process has […]
Is citizen control of taxes and spending unconstitutional?
By David Kopel on February 11, 2013 1:40 pm in Constitutional History, Constitutional Law, Judicial Power, Taxes
Colorado’s Constitution (Art. X, sect. 20) is the Taxpayer’s Bill of Rights. Like similar provisions in other states, Colorado’s TABOR requires voter approval for tax increases, and for most spending increases that exceed inflation plus population growth. Several state legislators have filed suit in federal court to have TABOR declared unconstitutional. Allegedly, requiring voter approval […]
Missouri v. Holland: The Intellectual History That Preceded The Holding
By Nick Rosenkranz on January 28, 2013 4:36 pm in Constitutional History, Constitutional Law, Treaties, Uncategorized
Our treaty debate now seems to have several threads running at once. To make things a bit clearer, I plan to separate a few threads out into separate posts. In this post, I hope at least one thread can be put to rest: the intellectual history thread. I have criticized Justice Holmes for concluding — […]
Peace Treaties & the War Power
By Eugene Kontorovich on January 27, 2013 5:19 pm in Constitutional History, Constitutional Law, Federalism, International Law, Treaties
Ilya’s response to Rick, that the Peace Treaty with Britain’s domestically applicable provisions could have been implemented through the foreign commerce power, seems right to me. But there may be another power that would have justified such legislation. Peace is the flip side of war. Thus Congress’s power to decide on war also presumably includes […]