Professor Victor Williams and I will debate at the Cato Institute tomorrow. Information here, and live video, Friday at noon, here.
Archive | Constitutional Law
Senator Ted Cruz: Limits On The Treaty Power
By Nick Rosenkranz on January 8, 2014 11:29 pm in Constitutional Law, Federalism, Tenth Amendment, Treaties
Senator Ted Cruz has an excellent essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a taste: The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be […]
Welcome John McGinnis and Michael Rappaport!
I am very glad to see that John McGinnis and Michael Rappaport are going to be guest-blogging here about their excellent new book, Originalism and the Good Constitution. I have some disagreements with their analysis. But it is nonetheless one of the best defenses of originalism in a long time. I reviewed the book in […]
Radiolab: Sex, Ducks, and The Founding Feud
Radiolab just did a nice segment about Bond v. United States, locating the treaty issue within the larger context of sovereignty and federalism. John Bellinger, Joseph Ellis, Duncan Hollis, and I make appearances. Audio here.
Brown v. Buhman and Bestiality
By Eugene Kontorovich on December 16, 2013 4:16 am in Constitutional Law, Religion and the Law, Religious Freedom, Sexual Conduct Restrictions, Sexual Orientation
The Utah polygamy-rights decision is truly a courageous civil rights ruling. Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the […]
The Recess Appointments clause: Amicus brief on original meaning based on State practices
By David Kopel on December 15, 2013 7:19 pm in Constitutional History, Constitutional Law, Originalism, Presidency
As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early […]
House Judiciary Committee Hearing: Take Care Clause
On Tuesday morning at 10:00am, the House Judiciary Committee will hold a hearing about the President’s constitutional duty “to take Care that the Laws be faithfully executed.” Michael Cannon, Simon Lazarus, Jonathan Turley, and I will testify. Video here and possibly on C-SPAN. UPDATE: I will be discussing this with Greta on Fox News, Tuesday, […]
Knives and the Second Amendment
By David Kopel on November 23, 2013 6:14 pm in Constitutional History, Constitutional Law, Criminal Law, History, Militia, Non-Firearms Arms, Right to carry, Self-Defense
The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives. Now at the printer is the first […]
The Obamacare Fix’s Legality, State Law and Standing
By Eugene Kontorovich on November 23, 2013 12:33 pm in Constitutional Law, Federal Jurisdiction, Health Care, Standing, State Constitutional Law
I have a piece in POLITICO discussing the constitutional problems with the ObamaCare fix, which have been previewed here before. One aspect is whether state officials can ignore ObamaCare and instead apply “The Fix.” Regardless of the discretion President Obama has, state officials do not have enforcement discretion over federal law. It is just supreme, […]
The Constitutionality of the ObamaCare “Fix”
By Eugene Kontorovich on November 14, 2013 1:25 pm in Congress, Constitutional Law, Executive Branch, Health Care, Obama, Separation of Powers, Uncategorized
President Obama in his speech on “fixing” the Affordable Care Act today did not specify what statutory authority, if any, he thinks authorizes him to make such dictats. Given the gargantuan length of the ObamaCare statute, he might still be looking. Press reports say the President is claiming a broad “enforcement discretion.” It is true […]
Does The Treaty Power Threaten Our System of Limited Government?
By Nick Rosenkranz on October 29, 2013 3:27 pm in Constitutional Law, Federalism, Tenth Amendment, Treaties
Senator Ted Cruz and I will discuss. Heritage Foundation, Wednesday, October 30th, 11:00am. Details here. Video via Heritage and possibly C-SPAN.
Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?
By David Kopel on October 21, 2013 10:55 pm in Anonymity, Constitutional History, Constitutional Law, First Amendment, Originalism, Restrictions on Campaign Contrbs. and Expenses
My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right […]
A Market for State Borders
By Eugene Kontorovich on October 17, 2013 7:39 am in Constitutional Law, Constitutional Theory, Federalism, Legal Scholarship, Secession
Following up on my earlier post on parts of a state seceding to join another state, I’d like to call attention to a neat article by Joseph Blocher, coming out in the University of Pennsylvania Law Review, entitled “Selling State Borders.” It suggests such political redrawing can be accomplished through sales between states, and shows […]
Three Important New Books on Constitutional Law
By Ilya Somin on October 13, 2013 11:45 am in Affirmative Action, Constitutional Law, Constitutional Theory, Originalism
In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes: I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution. This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they […]
How Best to Secede from a State
By Eugene Kontorovich on October 11, 2013 5:52 am in Constitutional Law, Constitutional Theory, Elections, Federalism, Originalism, Secession, Uncategorized
Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to […]