James Madison is often referred to as the father of the American Constitution. In a WSJ op-ed, Richard Brookhiser suggests Madison should also be regarded as “the father of American politics as we know it.” His essay concludes: James Madison helped build a republic. He was also an ambitious party activist who counted votes, stumped, […]
Archive | Constitutional History
More on Vermuele on Living Constitutionalism
Like Orin, I recommend Vermuele’s interesting and thoughtful review essay in the New Republic. However, I want to take issue with a couple of Vermuele’s historical claims. (1) The troika do not seriously address this possibility, except to remark that the possibility of “majoritarian abuse” may sometimes require a “robust judicial role.” But we lack […]
Alan Meese and Nate Oman Take on Noah Feldman
and his call for a new progressive constitutionalism, modeled on the old, New Deal-style progressive constitutionalism. I agree wholeheartedly with Meese and Oman. One additional point: Feldman, like other modern liberal writers who yearn for the Progressive days of yore, whitewashes Progressivism, so that it consisted solely of public-spirited regulation of corporations and the labor […]
Federalist 46
By David Kopel on June 30, 2010 5:19 pm in Constitutional History, Federalism, Guns, History, Originalism
“The Influence of the State and Federal Governments Compared,” from the New York Packet, by James Madison. My essay thereon is here, at Constituting America’s series on The Federalist. Bottom line: even taking into account the many changes over the last two and quarter centuries, Madison was generally right.
Discussion of Shelley v. Kraemer
Over at Cato Unbound, Jason Kuznicki, prompted by V.C. commenters, takes up Shelley v. Kraemer, the 1948 decision in which the Supreme Court held that it was unconstitutional for state courts to enforce racially restrictive covenants. I respond, concluding that Shelley was probably correct, but that the Court could have articulated a much clearer and […]
Why Not the Privileges or Immunities Clause?
By Ilya Somin on June 28, 2010 4:04 pm in Constitutional History, Constitutional Theory, Guns, Originalism
In today’s Supreme Court decision incorporating the Second Amendment against the states, the four justice plurality opinion used the Due Process Clause of the Fourteenth Amendment to justify its ruling rather than the Privileges or Immunities Clause. As various commentators, including co-blogger Randy Barnett, have pointed out, it is strange that four conservative justices supposedly […]
A Funny Thing About “Substantive Due Process”
By David Bernstein on June 17, 2010 2:09 pm in Constitutional History, Constitutional Law, Economic LIberties, Originalism, Rehabilitating Lochner
In his Stop the Beach opinion, Justice Scalia writes, “The first problem with using Substantive Due Process to do the work of the Takings Clause is that we have held it cannot be done.” But hold on! The Takings Clause does not apply to the states. The Fourteenth Amendment’s Due Process Clause applies to the […]
So Why Not Roe?
By David Bernstein on June 17, 2010 1:50 pm in Constitutional History, Constitutional Law, Due Process Clause Property Rights, Just Compensation Clause, Property Rights, Rehabilitating Lochner
In today’s Stop the Beach opinion, Justice Scalia (joined by the other three conservatives) criticizes Justice Kennedy for arguing that what Scalia consider “judicial takings” should instead be handled as violation of the Due Process Clause: The second problem is that we have held for many years (logically or not) that the “liberties” protected by […]
Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition
I’m delighted to report that this article, which I blogged about a few weeks ago, will be published in the Iowa Law Review. You can cite it, should you wish to, as Eugene Volokh, Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition, 96 Iowa L. Rev. (forthcoming 2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1626294. […]
First Review of Rehabilitating Lochner
Stumbled across this at goodreads.com. I don’t know who wrote it; only that it’s one of the approximately 50 people who read the book in manuscript form, including colloquium participants at NYU and Georgetown. It’s a nice review, and the good news is that the book has undergone additional revisions/editing since it the review was […]
More on Souter’s Bad History
Jonathan has already pointed to the McGinnnis and Rappaport op-ed taking on Justice Souter’s Harvard commencement address. McGinnis and Rappaport are making a point about originalism. I’m not as convinced that originalism provided an easy answer in Plessy–but then again, I’m not a committed originalist, so that’s easy for me to say. Anyway, I do […]
“Justice Souter’s Bad Constitutional History”
By Jonathan H. Adler on June 14, 2010 8:23 pm in Constitutional History, Constitutional Law, Fourteenth Amendment, Racial Discrimination, Supreme Court
Last month, retired Justice David Souter delivered the commencement address at Harvard. His speech was a veiled challenge to proponents of originalism. Some commentators, such as Washington Post columnist E.J. Dionne, Slate‘s Dahlia Lithwick, and TalkLeft’s Big Tent Democrat were impressed. Others, not so much. In today’s WSJ, Northwestern University’s John McGinnis and USD’s Michael […]
Rufus Peckham KOs Oliver Wendell Holmes
I recently sent the final version of my “Rehabilitating Lochner” manuscript to University of Chicago Press for proofreading, typesetting and so forth. Yay! The book should be out in Spring 2011. At some point, my editor asked me for my conception of the cover. I chose something unrealistic, but that I really liked. And I […]
The Deep Roots of Constitutional Constraints on Speech-Based Civil Liability
I just circulated to the journals this 4-page law review article, and I thought I’d also quote it in this post; to see the footnotes, please see the PDF. Does the First Amendment limit common-law tort liability? New York Times Co. v. Sullivan said yes, but some argue this is a modern innovation. The Court’s […]
The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school
By David Kopel on May 24, 2010 3:56 pm in Academia, Congress, Constitutional History, Counter-Terrorism Policy, Criminal Law, Economic LIberties, Education, Guns, History, Law Schools, Legal Professor, Militia, Rehabilitating Lochner
My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for […]