This week Scotusblog is running a series of essays, “The Constitutionality of the Affordable Care Act.” Contributors so far are Dawn Johnson (Indiana U.), Bradley Joondeph (Santa Clara U., and manager of a very useful blog on the ACA litigation), Bob Levy (Cato), Charles Fried (Harvard), and me. There are many more essays still to […]
Archive | Constitutional Law
Michael McConnell on Larry Tribe and the Debt Ceiling
Michael McConnell, a leading First Amendment scholar (who is now at Stanford) and former Tenth Circuit judge (2002-2009), praises Larry Tribe’s stand on the constitutionality of the debt ceiling (see, for instance, this guest post). An excerpt from Prof. McConnell’s post at Advancing a Free Society: A week ago Washington was abuzz with the seemingly […]
Bloggingheads TV Dialogue with Glenn Greenwald
I recently did a Bloggingheads TV dialogue with Glenn Greenwald, a prominent liberal legal blogger. We focused on several ongoing legal controversies, including the debate over legality of the Libya war, the constitutional controversy over the debt limit, and recent developments in the War on Drugs. It turns out that there was a high degree […]
Cert. grant in Millender v. LA: Qualified immunity for an unconstitutional general warrant to seize firearms?
By David Kopel on July 10, 2011 6:00 pm in Constitutional Law, Fourth Amendment, Guns, Qualified Immunity, Sovereign Immunity
The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen’s 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 […]
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 […]
Brown v. EMA casts doubt on the “weapons effect” justification for gun control
By David Kopel on June 27, 2011 9:38 pm in Child Protection, Constitutional Law, Expert Evidence, First Amendment, Freedom of Speech, Guns, Supreme Court
The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They […]
Claeys on Obamacare and the Limits of Judicial Conservatism
By David Bernstein on June 27, 2011 7:08 pm in Constitutional Law, Constitutional Theory, Health Care
My colleague Eric Claeys has a very interesting piece in National Affairs. The hook is the future USSC decsion on Obamacare, but the meat of the piece is an explanation of the divergent strands of modern constitutional conservatism: To understand contemporary “judicial conservatism” and its ambiguities, it is helpful to describe it as a series […]
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 […]
Breyer’s Dissent in Sorrell and Carolene Products
By David Bernstein on June 24, 2011 7:27 am in Commercial Speech, Constitutional Law, Rehabilitating Lochner
In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” […]
Breyer Violates Godwin’s Bernstein’s Law
By David Bernstein on June 23, 2011 4:33 pm in Constitutional Law, Freedom of Speech, Rehabilitating Lochner
Back in April, I wrote, “We need a Godwin’s Law for constitutional litigation: the first side to raise Lochner, especially in a case not involving the Due Process Clause, automatically loses.” Let’s call it “Bernstein’s Law.” If Bernstein’s law was a criminal law, Justice Stephen Breyer would be going to jail for loooong time, given […]
Obama, the OLC, and the Libya Intervention
President Obama recently decided to continue the Libya intervention without congressional authorization, despite the advice of his own Office of Legal Counsel that this decision violated the War Powers Act. Commentators such as Bruce Ackerman and Jack Balkin condemned this decision, comparing it to similar actions by the Bush Administration. Balkin even dubs the president […]
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 […]
The Seventh and Thirteenth Amendments, and Ambiguous Constitutional Text
“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” — Oliver Wendell Holmes Many commenters on the Thirteenth Amendment, the draft, jury service, and compulsory road work […]
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, […]