Rick has offered several articulate criticisms of the argument in my treaty article, and I will respond to his specific criticisms in a subsequent post. For now, though, I would just point out that these criticisms seem to put the cart before the horse. Rick has not yet offered any textual basis for his claim […]
Archive | Constitutional History
The Framers Gave Congress a Robust List of Powers; They Did Not Provide That These Legislative Powers Can Be Increased By Treaty
By Nick Rosenkranz on January 16, 2013 8:57 am in Constitutional History, Constitutional Law, Treaties
Rick Pildes has posted useful historical background for our debate about whether treaties can increase the legislative power of Congress. I agree with almost everything that he has said. Under the Articles of Confederation, Congress lacked the power to enforce the Treaty of Peace with Great Britain in 1782, and that defect in the Articles […]
Does Congress have the Power to Enforce Treaties? Part I
By Prof. Rick Pildes (NYU), guest-blogging on January 14, 2013 6:58 am in Constitutional History, Constitutional Law, Constitutional Theory, International Law, Treaties
I want to thank Eugene and Nick for graciously inviting me to guest blog here. One of the longstanding conundrums in American constitutional history, theory, and doctrine is how the treaty power relates to Congress’ Art. I enumerated powers. This question is also pending before the Supreme Court in Bond v. United States, in which […]
Why Louis Michael Seidman should not ignore the Constitution
Rob Natelson explains in this essay, which points of some of Seidman’s major historical errors about the Founding Era and constitutional history.
What if Robert Bork Had Been Nominated in 1986 Instead of Scalia?
At his Balkinization blog, Yale law professor Jack Balkin has a fascinating post on the ways in which legal history might have changed if Robert Bork had been nominated to the Supreme Court in 1986 rather than 1987: Robert Bork’s passing reminds us of how much the development of constitutional doctrine depends on contingencies. Had […]
Does any government have the legitimate power to ban medical marijuana?
By David Kopel on December 10, 2012 10:25 pm in Constitutional History, Constitutional Law, Constitutional Theory, Criminal Law, Growth of Government, Paternalism
Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, […]
The Significance of West Coast Hotel v. Parrish: Originalism vs. Living Constitutionalism?
By David Bernstein on October 10, 2012 3:48 pm in Constitutional History, Constitutional Law, Constitutional Theory, Rehabilitating Lochner
In West Coast Hotel v. Parrish (1937), the Supreme Court upheld a minimum wage law for women, reversing two earlier contrary precedents. West Coast Hotel is often seen as the end of the so-called “Lochner era.” Some conservatives celebrate West Coast Hotel, not simply as a victory against “judicial activism,” but because the Court purportedly […]
Louisiana amendment to strengthen right to arms, on November ballot
By David Kopel on October 3, 2012 7:04 pm in Constitutional Amendments, Constitutional History, Constitutional Law, Elections, Guns, Militia, Popular Constitutionalism, Right to carry, State Constitutional Law
In state elections, the most important vote this November will be in Louisiana. A referendum there would significantly strengthen protection of the right to keep and bear arms in the state, and would set a very significant national precedent. Before the Civil War, the Louisiana Constitution did not mention a right to arms. The Louisiana […]
What Did Clarence Thomas Actually Say About Whether African-Americans Were Part of “We the People” at the Time of the Founding?
In this recent post, I took issue with Justice Clarence Thomas’ apparent recent statement that African-Americans were not considered part of the “we the People” referred to in the Preamble of the Constitution. In conveying what Thomas said, I relied on a report in the Washington Post, which was echoed by many other media sources. […]
Were African-Americans Part of “We the People” at the Time of the Founding?
In a recent public forum, Supreme Court Justice Clarence Thomas made news by conceding that blacks were not part of “We the People” at the time of the Founding in the 1780s: It is true, Justice Clarence Thomas acknowledged the other night, that the “we the people” extolled in the Constitution 225 years ago did […]
The Heritage Foundation’s Guide to the Constitution
If you want to mark Constitution Day today — the 225th anniversary of the Convention’s presenting the Constitution for ratification — you might have a look at The Heritage Guide to the Constitution, which includes essays on the original meaning and current interpretation of each provision of the Constitution. (One of the essays, on the […]
Quick Response to Amar
I’m busy today teaching two classes, but I can’t resist a quick response to Akhil’s rejoinder. First, while I have a great deal of respect for Jed Rubenfeld and Laurence Tribe, I don’t find their adoption of the “Lochner as redistribution” thesis terribly compelling. Professor Tribe’s 1972 article adopts a surprisingly sophisticated understanding of Lochner–surprising […]
Amar on Lochner
By David Bernstein on September 12, 2012 3:04 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
Let me start by expressing my delight that Professor Amar is guest-blogging here at the VC. Akhil is clearly one of the great constitutional scholars of our time, and I have learned a great deal from his work over the years. It’s therefore with some trepidation that I engage in this blog dialogue with him. […]
Echoes of Robert Hale
By David Bernstein on September 4, 2012 5:00 pm in Constitutional History, Constitutional Law, Constitutional Theory, Rehabilitating Lochner
Dale’s post below on Robert Delahunty’s claim that the end of slavery came at the cost of slaveholders’ freedom, and that likewise legally recognized same-sex marriage would come at the expense of the freedom of those who want to live in a society without such things, reminds me of the great Progressive legal and economic […]
The Originalist Case for UT in the Fisher Case Falls Short
By David Bernstein on August 21, 2012 10:34 pm in Affirmative Action, Constitutional History, Fisher v. University of Texas
The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici. The brief tries to exploit a weakness in conservative Justices’ affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the […]