I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract: This Article chronologically reviews the British gun control which precipitated the American Revolution: the […]
Archive | Constitutional History
Seventy Years after the New Deal Revolution, Child Labor is Still Legal
In some previous posts, I’ve made two basic points about child labor and the Constitution in response to liberal commentators who can’t resist raising the issue of child labor any time anyone hints that there may be some constitutional limits to government regulatory authority. First, no one has ever seriously questioned the constitutionality of state […]
Child Labor and the Supreme Court, One More Time
It seems that liberal commenters on constitutional law just can’t resist bringing of the issue of child labor, regardless of whether what they’re saying is historically accurate. The latest offender is Dahlia Lithwick. In criticizing Judge Janice Brown’s call for a return to pre-New Deal, Lochnerish concern for economic rights Lithwick writes, “Let’s put aside […]
Post-argument debate on the constitutionality of Obamacare
By David Kopel on April 18, 2012 12:00 am in Commerce Clause, Constitutional History, Constitutional Law, Federalism, Health Care, Individual Mandate, Necessary and Proper, Taxing and Spending Clause
Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.
The Lochner Awards
Despite my pre-oral argument warning that Lochner v. New York really has nothing to do with the constitutionality of the individual mandate, Lochner has consistently arisen. Most prominently, of course, the President mentioned Lochner (and in a dubious context), but only after the Solicitor General raised it at oral argument, CJ Roberts parried, and Justice […]
Correcting Jonathan Cohn on the New Deal Cases
Cohn in TNR: I’ve tried to make the case previously for why a decision striking down even part of the Affordable Care Act would be so brazen and unjustified… It’d be a five-to-four vote, along party lines, overturning a sweeping legislative initiative on what would be, at best, shaky constitutional arguments. That hasn’t happened since […]
The Washington Post on Lochner and The ACA
By David Bernstein on April 9, 2012 7:54 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
Supreme Court reporter Robert Barnes has a piece today about the role of Lochner v. New York in the ACA litigation. The Solicitor General told the Court at oral argument that invalidating the ACA would bring back Lochner, and last week President Obama said, “A law that was passed by Congress on an economic issue, […]
Ridiculous Supreme Court Pronouncements
All the talk from the left about how absurd it would be for the Supreme Court to invalidate the ACA on commerce clause grounds has made me think about ridiculous Supreme Court reasoning. And when I say ridiculous reasoning, I mean just that; not that I necessarily even object to the outcome of the case, […]
More on Koppelman on Federalism
Andy Koppelman has another essay, this time in the New Republic, analogizing the litigation over the ACA to the Child Labor Cases. Of course, this is a tried and true rhetorical technique: find a case that is widely despised (Dred Scott, Lochner, Plessy), and analogize current litigation to that despised case. Just a few points: […]
Obama on Lochner v. New York
President Obama said the following today when asked about the constitutional litigation over the ACA: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — […]
President Obama versus the Constitution
By David Kopel on April 2, 2012 11:54 pm in Congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, Federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, Obama, Presidency, Public Opinion, Supreme Court, Uncategorized, War on Terror
President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was […]
Koppelman on Health Care and Child Labor
By David Bernstein on April 2, 2012 1:49 am in Constitutional History, Constitutional Law, Health Care
My friend and sometimes intellectual sparring partner, Andrew Koppelman, writes: The obsessive worry about an overbearing federal government suggests another historical parallel. In 1916, Congress banned the interstate shipment of the products of child labor. The rhetoric was as hysterical then as it is now: The Court declared that if Congress could do this, “all […]
The Individual Mandate Litigation: What’s Lochner got to do with It?
By David Bernstein on March 21, 2012 9:24 pm in Academia, Constitutional History, Constitutional Law, Health Care
I have an op-ed up at Jurist Forum. Here’s how it starts: With the US Supreme Court poised to decide whether the Affordable Care Act’s (ACA) individual mandate is unconstitutional, the ghost of the notorious 1905 Supreme Court decision in Lochner v. New York hovers over the case. Invalidate the mandate and you are resurrecting […]
ConText: Crowd-Sourcing James Madison’s Notes of the Convention
Most blogosphericos know Benjamin Wittes as a founding editor of the premiere national security law blogsite, Lawfare (for which I serve as His Serenity, the Book Review Editor). However, he has a broader role at the Brookings Institution, where he is a senior fellow in Governance Studies. Most recently, this has led to an exciting […]
Review of Flagrant Conduct in the New York Review of Books
By Dale Carpenter on March 16, 2012 10:01 am in Civil Rights, Constitutional History, Constitutional Law, Flagrant Conduct: Lawrence v. Texas, Gay Marriage, Gay Rights, Sexual Orientation
Georgetown Law Professor David Cole has a terrific review of my new book, Flagrant Conduct: The Story of Lawrence v. Texas (Norton) in the April 5 issue of the NYRB. Cole presents the basic background, including what likely happened the night John Lawrence and Tyron Garner were arrested for the crime of “Homosexual Conduct,” a Texas law that forbade […]