RL: Modern conservative constitutionalists, meanwhile, though dissenters in some ways from the orthodox interpretation of American constitutional history, also want to see themselves as part of a seamless jurisprudential tradition, and they venerate some of the same Progressive heroes as their liberal adversaries do…. In this tale, the good guys are Holmes, Frankfurter, and other […]
Archive | Constitutional History
Speaking Engagements for Flagrant Conduct: The Story of Lawrence v. Texas
By Dale Carpenter on March 13, 2012 6:49 pm in Civil Rights, Constitutional History, Constitutional Law, Flagrant Conduct: Lawrence v. Texas, Gay Rights, Sexual Orientation
Over the next couple of months I will be on an active speaking tour for my new book, Flagrant Conduct: The Story of Lawrence v. Texas, which has just been published by W.W. Norton & Co. Of perhaps greatest interest to readers of this blog are a couple of events coming up soon. This Friday, March 16, […]
Substantive Due Process News
By David Bernstein on February 22, 2012 4:06 pm in Constitutional History, Constitutional Law, Constitutional Theory, Originalism
(1) Discussion of SDP continues over at Cato Unbound. Too many interesting posts there to pick out one, so just start from Tim Sandefur’s lead essay and keep reading. (2) Professor Michael McConnell and Nathan Chapman have posted an article on SSRN, Due Process as Separation of Powers. The article cautions against “resorts to originalism […]
Constitutional Cliffhangers
By Prof. Brian Kalt, guest-blogging on January 24, 2012 8:18 am in Constitutional History, Constitutional Law, Constitutional Theory, Presidency
Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and […]
Independence Institute brief on Medicaid mandate
By David Kopel on January 19, 2012 2:30 pm in Constitutional History, Constitutional Law, Constitutional Theory, Health Care, Spending Clause, Tenth Amendment
On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument: By imposing the Medicaid mandates in the Affordable […]
Claremont Review of Books Discussion of Lochner
Two issues ago, the Claremont Review of Books published Richard Epstein’s review of my book, Rehabilitating Lochner. In the next issue, two conservative readers criticized Epstein’s review for endorsing Lochner. Claremont asked Epstein and me to respond. Claremont has now posted the letters to the editor and the responses here. My response focuses not on […]
Laws about gun ownership in early America
By David Kopel on December 9, 2011 2:23 am in Constitutional History, Election Law, Guns, History, Militia, Political Ignorance, Religion and the Law, Right to carry
Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from […]
How the British Gun Control Program Precipitated the American Revolution
That’s the title of my new law review article, currently in the editing process at the Charleston Law Review. A draft is available at SSRN, and comments are welcome. The final part of the article suggests how the history might inform our modern understanding of Second Amendment rights.
The original meaning of the 14th Amendment regarding interracial marriage
By David Kopel on December 5, 2011 5:38 pm in Anti-Semitism, Congress, Constitutional History, Constitutional Law, Federalism, First Amendment, Fourteenth Amendment, History, Racism, Supreme Court
Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, “Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument […]
Supreme Court: “Obviously, direct control of medical practice in the states is beyond the power of the federal government.”
By David Kopel on December 1, 2011 5:54 pm in Constitutional History, Constitutional Law, Health Care, Taxing and Spending Clause, Tenth Amendment
So said the unanimous Supreme Court in United States v. Linder, 268 U.S. 5 (1925). The opinion was written by McReynolds, and joined by the progressive Justices Brandeis and Holmes, along with the rest of the Court. At issue was the federal Harrison Anti-Narcotic Law, which taxed opium and coca leaves, and their derivatives. Ostensibly […]
Myths of the Brandeis Brief
My latest article in the Green Bag (link will open seven-page PDF file): (1) First, social reform was not in nearly as much danger from Lochner as the standard story suggests…. (2) The supposed simple-minded formalism of late nineteenth and early twentieth century judges has been called into serious question by recent scholarship…. (3) Brandeis’s […]
Will the Necessary & Proper clause save Obamacare? Not if the Court follows McCulloch v. Maryland
By David Kopel on November 17, 2011 4:33 pm in Constitutional History, Constitutional Law, Health Care, Necessary and Proper
Gary Lawson and I explain why, in an article published last week by Yale Law Journal Online. In short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain […]
Dialogue with Victoria Nourse on Lochner
University of Wisconsin Professor (and Seventh Circuit nominee) Victoria Nourse and I discussed Lochner v. New York for the Federalist Society’s Madison chapter. Wisconsin Eye (Wisconsin’s version of C-Span) was there, and posted this video of the event. In other Rehabilitating Lochner news, attorney Thomas Bowden’s review in the George Mason Law Review can be […]
NYU Law School Talk on the Tea Party and Popular Constitutionalism
By Ilya Somin on October 3, 2011 12:38 pm in Conservatism, Constitutional History, Constitutional Law
This Wednesday, I will be giving a talk at NYU Law School on the Tea Party Movement and Popular Constitutionalism. The talk will be at 11 AM in Vanderbilt Hall, Room 202. NYU Professor Roderick Hills will comment on my presentation, and there will also be questions from the audience until around 12:30 or so. […]
Vladimir Putin and the 22nd Amendment
By Ilya Somin on September 30, 2011 1:14 am in Constitutional Amendments, Constitutional History, Constitutional Law, Russia
Vladimir Putin’s recent announcement that he intends to return to the presidency after the 2012 election has been rightly denounced as a deepening of authoritarianism in Russia. Having effectively repressed Russia’s opposition parties and media, Putin is now consolidating his position as a dictator. Barring some sort of sudden collapse of his regime (which is […]