That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee […]
Archive | Constitutional History
George Will on Rehabilitating Lochner
George Will’s latest column is devoted to my book! It starts: Liberal certitudes continue to dissolve, the most recent solvent being a robust new defense of a 1905 Supreme Court decision that liberals have long reviled — and misrepresented. To understand why the court correctly decided Lochner v. New York and why this is relevant […]
The rise and fall of the Second Amendment “collective right”
By David Kopel on September 5, 2011 3:38 pm in Constitutional History, Constitutional Law, Guns, History, Militia, Supreme Court
My recent article for America’s 1st Freedom traces the rise and fall of the theory that the Second Amendment is not an individual right, but instead is a “collective right,” which, like “collective property” in a communist country, supposedly belongs to everyone collectively, but in fact belongs to no-one. The theory was created by a […]
The Tenth Amendment and Sovereignty
Doug Kendall of the Constitutional Accountability Center writes: “The Tenth Amendment, like all other Amendments, is a binding part of the Constitution that should be fully respected…. [But w]hen the states ratified the Constitution, they renounced their status as fully-independent sovereigns and endowed the federal government with enumerated but substantial powers.” Kendall is correct. Anyone, […]
Jews, Labor Laws, and Poland before World War II
Let’s say I wrote a book that had the following thesis: (a) Governments tend to favor those with political power; (b) before World War II, Jews in Poland had little political power; and (c) therefore, various labor regulations enacted in Poland between 1920 and 1938, tended at best not to take the interests of Jews […]
Complements to Rehabilitating Lochner
A reader emailed to say he enjoyed Rehabilitating Lochner, and wonders if I could recommend additional books on the same or closely related topics. Okay. Just note that my recommendation doesn’t necessarily constitute an endorsement of the author’s conclusions. David Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right. Very recent, and covers some of […]
Ezell’s doctrinal rules for the Second Amendment
By David Kopel on July 8, 2011 2:08 am in Constitutional History, Constitutional Law, Guns, Originalism
The Seventh Circuit’s decision in Ezell v. Chicago is a tremendously important case for Second Amendment doctrine. The key rules from Ezell: use originalism from both 1791 and 1868 to determine if an activity is within the scope of the Second Amendment right. If it is, apply First Amendment doctrine, and make the standard of […]
Natelson’s reply to Time magazine’s essay on the Constitution
Time magazine managing editor Richard Stengel has penned a cover essay about the Constitution, One Document, Under Siege. My Independence Institute colleague Rob Natelson wrote a response addressing some of the many illogical or inaccurate claims therein. For example: Stengel: “The framers . . . gave us the idea that a black person was three-fifths […]
Gerber on Bernstein
ONU lawprof (and leading legal historian) Scott Gerber, himself the author of an important new book on the rise of the independent judiciary, reviews Rehabilitating Lochner for Eh.net. The punchline: “Rehabilitating Lochner is intellectual history in its highest form…. Bernstein has done nothing less than explode the myth of Lochner…. This is a book that […]
A Nightmare Justice
Imagine a twentieth century Justice who was a Social Darwinist; who had a self-proclaimed disdain for facts, and who often substituted flip aphorisms for legal analysis; who was the most hostile Justice of the century to the rights of African Americans, dissenting even in cases invalidating peonage laws as violations of the Thirteenth Amendment; who […]
The Incidental Unconstitutionality of the Individual Mandate
By David Kopel on June 24, 2011 7:44 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Necessary and Proper, Originalism
A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011). Gary Lawson (Boston Univ.) and I […]
More on the Thirteenth Amendment and the Definition of Involuntary Servitude
By Ilya Somin on June 21, 2011 6:40 pm in Constitutional History, Constitutional Law, Constitutional Theory
In a recent post, co-blogger Eugene Volokh reasserts the view that the text of the of the Thirteenth Amendment’s ban on “involuntary servitude” does not cover traditional state-imposed “duties of citizenship” such as mandatory military service and possibly even mandatory road work. I think matters are not so simple as that. Eugene’s argument and others […]
Mandatory Road Repair Work and the Thirteenth Amendment Ban on Involuntary Servitude
Co-blogger Eugene Volokh recently cited the 1916 case of Butler v. Perry as an example of the reasoning that allows the Supreme Court to hold that some forms of forced labor do not violate the Thirteenth Amendment’s ban on involuntary servitude. Butler upheld a Florida law that required all adult males between the ages of […]
Republican presidential candidates pledge to appoint judges to overturn the unconstitutional anti-abortion law they will sign
By David Kopel on June 18, 2011 4:42 pm in Abortion, Constitutional History, Constitutional Law, Federalism, Fourteenth Amendment, Health Care, Individual Mandate, Judicial Nominations, Originalism, Supreme Court
At CNN, Politico, National Review Online’s “The Corner” blog, and at the Susan B. Anthony List website, you can read the developing controversy over some Republican presidential candidates’ refusal to sign the SBA Lists’ “2012 Pro-Life Citizen’s Pledge.” Signers thus far are Bachmann, Gingrich, Pawlenty, Paul, and Santorum. The items on the pledge are: FIRST, […]
The Thirteenth Amendment, the Draft, Jury Service, and (Perhaps Surprisingly) Compulsory Road Work
Occasionally some people ask why the draft hasn’t been found to violate the Thirteenth Amendment, which provides that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” (I saw this question asked […]