Damon Root of Reason has an interesting article giving his list of the “Top Ten Libertarian Supreme Court Decisions”: It’s no secret the U.S. Supreme Court has often been a disappointment to libertarians…. But that doesn’t mean the High Court always gets it wrong. Here, in no particular order, are 10 Supreme Court decisions still […]
Archive | Constitutional History
Left, Right, and Judicial Review
By Ilya Somin on July 12, 2012 5:43 pm in Conservatism, Constitutional History, Constitutional Theory, Federalism, Health Care, Individual Mandate, Originalism
Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests […]
Chief Justice Roberts and the window tax
By David Kopel on July 9, 2012 2:27 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Originalism, Taxes, Taxing and Spending Clause
In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.” Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
Is the individual mandate a “tax” according to the original meaning?
By David Kopel on June 29, 2012 6:30 pm in Constitutional History, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.
NFIB as Marbury
By David Kopel on June 29, 2012 6:25 pm in Constitutional History, Constitutional Law, Federalism, Individual Mandate, Politics, Spending Clause, Supreme Court, Taxing and Spending Clause, Unconstitutional Conditions
My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that […]
Necessary and Proper Clause returned to the Original Understanding. Podcast with Ilya Somin, and more
By David Kopel on June 29, 2012 5:46 pm in Constitutional History, Constitutional Law, Necessary and Proper, Originalism
Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on iVoices.org. As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from […]
Scalia and Wickard: Not Unexpected
By David Bernstein on June 18, 2012 8:51 pm in Constitutional History, Constitutional Law, Constitutional Theory
With regard to Jonathan’s post on Justice Scalia’s harsh words for Wickard, I’m not really surprised. Back in 1992, I surveyed the (admittedly relatively limited) literature on the commerce clause from conservative and libertarian scholars and concluded: There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the […]
How Did this Get Past The New Yorker’s Fact-Checkers?
The current issue of The New Yorker has an article by Jill Lepore on the history of the Supreme Court’s struggle for independence. The article talks too much about the varying quality for the Court’s chambers over the years, but is otherwise a good introduction to the topic, albeit from an implicitly liberal perspective. The […]
Podcast on the creation of the Second Amendment
By David Kopel on June 8, 2012 5:55 pm in Constitutional History, Constitutional Law, Guns, Militia, Originalism
For my co-authored textbook Firearms Law and the Second Amendment, I’ve been doing a series of podcasts on each chapter. Now available is the podcast for Chapter 4, which covers the Philadelphia Convention, the ratification debates, the creation of Bill of Rights, and St. George Tucker’s contemporaneous exposition of the original meaning of the Second […]
On Whiggish Constitutional History and the History of Women’s Constitutional Equality
Attorney Rob Weiner has a guest post over at Balkinization decrying challenges to the ACA. Weiner claims that the challenges reflect nostalgia for a bygone era and discredited doctrines. I disagree for reasons that have been repeated many times on this blog (essentially, the challengers are attacking a broad new and novel expansion of federal […]
The Great Gun Control War of the 20th Century — And its Lessons for Gun Laws Today
By David Kopel on May 31, 2012 2:37 pm in Constitutional History, Constitutional Law, Fourteenth Amendment, Guns, History, McDonald v. City of Chicago, Politics, Popular Constitutionalism, Registration, Right to carry, Supreme Court
This is the subject of my article in a forthcoming symposium issue of the Fordham Urban Law Journal. The article details the political, cultural, social, and legal battles over gun control from the 1920s to the early 21st century. Here’s the abstract: A movement to ban handguns began in the 1920s in the Northeast, led […]
How Four Jewish Butchers Brought Down the New Deal
An interesting article by Steve Horwitz, written for laypeople, on the Schechter Poultry case.
No, the Supreme Court is Not Poised to Adopt a Radical Libertarian Agenda, and Certain Commentators Should be Embarrassed for Suggesting Otherwise
Consider each of the following arguments in its historical context: (1) It’s the 1930s. The Scottsboro Boys are represented by a known Communist Party front, beholden to the agenda Josef Stalin and his minions have dictated to the the C.P., including the creation of a separate country for American blacks in the “Black Belt.” The […]
Reducing the Drug War’s Damage to Government Budgets
By David Kopel on May 14, 2012 4:29 pm in Constitutional History, Criminal Law, Federalism, Proposed Legislation, Supreme Court, Tenth Amendment, War on Drugs
That’s the title of an article that I have co-authored with the Cato Institute’s Trevor Burrus, in a symposium issue of the Harvard Journal of Law & Public Policy. The symposium is “Law in an Age of Austerity,” and includes contributions from Charles Cooper (Treasury Dept.’s authority to index capital gains for inflation), John Eastman (state […]