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, […]
Archive | Constitutional Law
My Appearance on C*SPAN’s Washington Journal
By Randy Barnett on December 19, 2010 4:47 pm in Commerce Clause, Constitutional Law, Health Care, Uncategorized
Here is my discussion of the constitutionality of the individual mandate with Simon Lazarus on C*SPAN’s Washington Journal this morning: I was a little frustrated with the format. Lazarus, who is a perfectly nice man, was able to make long speech-like points, but because the host then moved to a phone call or tweet without […]
Podcast on Virginia v. Sebelius
And on the other Obamacare cases in federal district courts. Rob Natelson and I discuss the various issues. 25 minutes, MP3 from iVoices.org.
What Did James Madison Think about Blogs?
By Jonathan H. Adler on November 22, 2010 10:18 am in Blogosphere, Constitutional Law, Constitutional Theory, Originalism
Are bloggers the 21st century equivalent of political pamphleteers? Would James Madison have had one? I don’t know. But I do know that several faculty members at the University of San Diego School of Law’s Center for the Study of Constitutional Originalism have launched “The Originalism Blog.” This blog won’t endeavor to answer the question in this […]
Kill Calder v. Jones!
By David Post on November 19, 2010 12:25 pm in Constitutional Law, Cyberspace Law, Internet, Judicial Power
It sounds like a good Civ Pro 101 (or, perhaps, Cyberlaw 101) exam hypothetical : “Your client, Scott Roberts, a Virginia resident, purchased a Pontiac engine block from Kauffman Racing Equipment, L.L.C., an Ohio-based company that builds automotive equipment and sells it to the public. Roberts purchased the engine block after viewing it on Kauffman’s […]
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 […]
Kopel comment on states’ victory on health control lawsuit.
By David Kopel on October 14, 2010 5:06 pm in Commerce Clause, Congress, Constitutional Law, Health Care, Individual Mandate, Spending Clause, Standing, Taxes, Taxing and Spending Clause, Tenth Amendment
My comment on today’s decision, granting the motion to dismiss on some counts, and while allowing other counts to proceed. Like Randy’s comment, my comment is posted on the blog of the site Health Care Lawsuits, which is hosted by the Independent Women’s Forum. The court entirely rejected the administration’s claim that the penalty for disobeying […]
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 […]
Constitution Day Conference at the Cato Institute
Tomorrow the Cato Institute will have a Constitution Day conference at which various experts will discuss last term’s Supreme Court decisions. I will be speaking on the panel at from 1 PM to 2:15, on United States v. Comstock, which I previously wrote about here.
Origins of Obama’s Ideology
Dinesh D’Souza’s and Newt Gingrich’s claims that Obama’s ideology and policies are rooted in his father’s “Kenyan anti-colonialism” have attracted a lot of controversy. I don’t think that these claims necessarily amount to racist “bigotry.” But I also see little if any evidence to support them. It’s hard to point to any Obama positions that […]
Deference and the Constitutionality of Health Care Reform
As constitutional challenges to the new health care law work their way up the courts, proponents of the the law’s constitutionality will inevitably argue that the Supreme Court should defer to Congress’s understanding of its own constitutional powers, especially when it comes to such significant legislation. As early as 1922, the Supreme Court wrote, “Whatever […]
The Case Against Restrictive Constitutional Standing Requirements
In my last post, I explained why conservatives and liberals may be changing their traditional positions on standing. In this one, I briefly explain my view that “constitutional” standing requirements are both a bad idea and not required by the Constitution. Right from the start, I should emphasize that my argument only applies against claims […]
Are Right and Left Changing Where They Stand on Standing?
By Ilya Somin on August 18, 2010 10:00 pm in Conservatism, Constitutional Law, Constitutional Theory, Gay Marriage, Health Care, Standing
Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view: constitutional rights should not be denied based on […]
More on Standing to Defend Prop. 8
There are quite a few interesting posts on the standing issues in Perry v. Schwarzenegger, including pieces by the following: Lyle Denniston (SCOTUSBlog) Vikram Amar (Writ) Howard Wasserman (Prawfsblawg) Michael Dorf (Dorf on Law) Emily Bazelon (Slate) Having thought about the question a little bit more, I think that the defenders of Proposition 8 do […]
Standing to Defend Prop. 8
On Thursday, Judge Vaughn Walker denied gay marraige opponents’ motion for a stay of his ruling in Perry v. Schwarzenegger declaring Proposition 8 to be unconstitutional. One of the reasons offered by Judge Walker was that he doubts whether Prop. 8’s defenders have standing to appeal his ruling. Although Judge Walker allowed them to intervene […]