In comments to some of my recent posts, some commenters have suggested that few people nowadays get especially worked up about Lochner v. New York. Rather, it’s Bush v. Gore, or Korematsu, or Citizens United, that raises hackles, with Lochner seen perhaps as a quaint anachronism with little modern relevance. I agree that over time, […]
Archive | Constitutional History
Some Controversies Addressed by Rehabilitating Lochner
When authors blog about their academic books, they often give what amounts to a very long synopsis, or even a chapter-by-chapter rundown, of the book over many posts. Instead of doing that here, I thought I’d give some “teasers” about my Rehabilitating Lochner book by noting one historical controversy addressed in each chapter. Chapter 1: […]
The individual mandate is neither “necessary” nor “proper”
By David Kopel on May 11, 2011 4:51 pm in Commerce Clause, Constitutional History, Constitutional Law, Individual Mandate, Necessary and Proper
That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument: The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. […]
The One and Only Substantive Due Process Clause
By David Bernstein on March 23, 2011 7:48 pm in Constitutional History, Constitutional Law, Constitutional Theory, Originalism, Rehabilitating Lochner
Attorney Ryan Williams recently published an article in the Yale Law Journal called “The One and Only Substantive Due Process Clause.” It’s pathbreaking. Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, […]
The Progressive-Conservative View of Judicial Restraint
By David Bernstein on February 26, 2011 11:50 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
From the U. Va. Fed-Soc blog on the student conference that took place this past weekend: Professor [Jeffrey] Rosen responded with a call to resist Professor Barnett’s libertarian interpretive approach and look to the traditional conservative model of judicial deference to the political process…. Professor Rosen proposed a framework of three divergent “conservative” approaches to […]
Sandefur v. Amar
By David Bernstein on February 6, 2011 11:45 pm in Constitutional History, Constitutional Law, Health Care
I like and respect Yale Law professor Akhil Amar, but his op-ed on the decision invalidating the Obamacare individual mandate is not exactly his best work. Tim Sandefur has a full critique here, which I generally agree with. But what’s most disappointing about Amar’s piece is its rhetoric, which makes it hard to take his […]
“Health Laws of Every Description”: Obamacare and Original Meaning
By David Kopel on February 4, 2011 6:58 pm in Constitutional History, Constitutional Law, Federalist Society, Health Care, Individual Mandate, Necessary and Proper, Originalism, Supreme Court
Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland. Gibbons is certainly a good foundation for advocates of strong […]
More “Life Imitates ‘Rehabilitating Lochner'”
By David Bernstein on December 27, 2010 9:39 pm in Constitutional History, Constitutional Law, Health Care, Rehabilitating Lochner
In a previous post, I noted that in my forthcoming book, I point out that academics invented the notion of a “Lochner era” in which the U.S. Supreme Court was single-mindedly determined to invalidate all manner of economic regulation. In doing so, they conflated a host of different constitutional provisions–due process, commerce clause, nondelegation doctrine, […]
Life Imitates Rehabilitating Lochner
By David Bernstein on December 13, 2010 9:44 pm in Constitutional History, Health Care, Rehabilitating Lochner
[UPDATE: Not worth responding to a certain obnoxious blogger, but, for those who are interested, feel free to check out the praise for my book from notorious right-wingers (NOT!) Jack Balkin, William Nelson, Mark Tushnet, and G. Edward White.] Rehabilitating Lochner, Conclusion: The longstanding myth of a wildly activist, reactionary Supreme Court imposing a grossly […]
Philadelphia 1787 was not a runaway convention
So explains my Independence Institute colleague Rob Natelson, on his Our American Constitution blog. Forty-eight of the 55 delegates had instructions which allowed them to go beyond amending the Articles of Confederation. Rob’s research into early American history has found that constitutional conventions (for a new constitution, or to amending an existing document) had well-established […]
Lithwick’s History
Lithwick: Traditionally (and what is conservatism if not respect for tradition?) conservatives have railed against “Constitutional tinkering,” while progressives have proposed all manner of amendments—some successful (women’s suffrage), others not (equal rights for women), still others, well, a bit unserious (a ban on “war for any purpose”) Actually, support for women’s suffrage didn’t break down […]
Commerce in the Commerce Clause: A Response to Jack Balkin
By David Kopel on November 4, 2010 6:39 pm in Commerce Clause, Constitutional History, Economy, Originalism
A recent issue of the Michigan Law Review features Jack Balkin’s article Commerce. (109 Mich. L. Rev. 1 [2010].) The article argues that in the original meaning of the Constitution, “commerce” was understood to include a broad variety of social relationships, including relationships that had nothing to do with economic activity. Accordingly, writes Balkin, the original meaning […]
A small correction for Sandefur
By David Kopel on October 17, 2010 4:04 pm in Constitutional History, Constitutional Law, Due Process Clause Property Rights, Property Rights, Supreme Court, Uncategorized
Timothy Sandefur produces important research on economic liberty. I’m pleased that the Independence Institute, where I work, recently hosted an event for him to promote his book. I’m also happy that he has become part of the team of Cato Institute writers, which I have been part of since 1988. As a contributing editor of Liberty, I […]
The First U.S. Supreme Court Case
By David Bernstein on October 13, 2010 10:02 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
to endorse what we would now call a “substantive” interpretation of the Due Process Clause was not, as is commonly held, Dred Scott v. Sanford, but rather Bloomer v. McQuewan several years earlier. Here’s the key language: it can hardly be maintained that Congress could lawfully deprive a citizen of the use of his property […]
The Demise of Progressive Legal History
I’m not one to generally praise law reviews, but the latest issue of the George Washington Law Review contains lots of interesting stuff. I wanted to call particular attention to G. Edward White’s review of Phil Hamburger’s Law and Judicial Duty. White, one of my favorite legal historians, treats readers to an excellent discussion of […]