The Bill of Attainder clause was among the topics of my Advanced Constitutional Law class last semester, so while I am not an expert on the clause, I’ll try to provide some guidance. First, there are few Supreme Court cases on the clause. Second, Bill of Attainder controversies in the United States never involve the […]
Archive | Constitutional Law
The Individual Health Care Mandate and Enumerated Powers – Event Audio
By David Kopel on August 7, 2010 6:07 pm in Constitutional Law, Federalism, Health Care, Necessary and Proper, Taxing and Spending Clause, Tenth Amendment
The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale), Gillian Metzger (Columbia), and me (Denver, VC). The moderator was Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran […]
Florida’s brief in health control lawsuit
The brief of Florida and 19 other states, challenging the constitutional of the new health control law, was just filed today. It is a response to the DOJ’s motion to dismiss.
Is Judge Walker’s Opinion Really that Compelling?
By now I’ve read dozens of blog posts and commentaries attesting to the power and persuasiveness of Judge Walker’s opinion striking down California’s Proposition 8 barring gay marriage. But as far as I can tell, everyone I’ve seen take this position was predisposed to accept Judge Walker’s conclusion. Lots of supporters of gay marriage and […]
My Senate briefing on Kagan and the McDonald Case
By David Kopel on August 5, 2010 3:20 pm in Constitutional Law, Guns, Kagan Nomination, McDonald v. City of Chicago
It was delivered in late June to the Second Amendment Task Force, a group of Republican Senate aides. (Unfortunately, the Senate’s protocals of partisanship prevent organizations like this from having aides from both parties.) My presentation is here (22 minutes). The presentation by Hans Von Spakovsky, Senior Research Fellow at The Heritage Foundation, is here. And […]
California Supreme Court Upholds Constitutionality of the California Anti-Race/Sex-Preference Initiative (Prop. 209)
The decision (6-1) is at Coral Construction, Inc. v. City and County of San Francisco; the court agrees with Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), and Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006), which likewise upheld the California initiative and a similar Michigan […]
DOMA case and the Tenth Amendment
By David Kopel on July 9, 2010 12:49 am in Constitutional Law, Federalism, Gay Marriage, Health Care, Tenth Amendment
Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining […]
Opinio Juris’ Peter Spiro on the Arizona Lawsuit
Temple University law professor Peter Spiro, friend and Opinio Juris co-blogger, was interviewed by one of the Wall Street Journal blogs on the likely holdings in the Arizona lawsuit by the federal government. Parts of his WSJ response can be found here at Opinio Juris. Peter expands in a later Opinio Juris post. (I do […]
McDonald, and the Voting Paradox:
Many years ago — 1992 to be precise — Steve Salop and I wrote a quirky little piece on something we called the “voting paradox.” It’s a minor, but very strange, little phenomenon in the law. The basic idea is quite simple. Suppose a 3-judge panel is hearing an appeal. In the appeal, the defendant […]
Foreign Law and the Constitution, Kagan Edition
From the AP account of the Kagan confirmation hearing of the now presumably de rigueur question of candidates … foreign law and interpretation of the US constitution. Supreme Court nominee Elena Kagan says foreign law could be useful “for getting good ideas” when interpreting the Constitution but that justices should not feel bound by it … international law can […]
Non-Unanimous Criminal Juries
If I were a criminal defense lawyer in Oregon or Louisiana, I’d use McDonald as a reason to challenge those states’ practice of allowing non-unanimous criminal juries. In Apodaca v. Oregon (1972), the Supreme Court held that the Sixth Amendment requires unanimity for a verdict — but that the Fourteenth Amendment does not carry this […]
Predicting the Impact of McDonald
The Supreme Court has now incorporated the Second Amendment against the states. But the impact of that decision may turn out to be fairly limited. In most states, there will be little if any change in the actual extent of gun regulation. The ideologically divided nature of the Court’s decision suggests that the legal status […]
Judge Denies TRO in Minneapolis Pride Festival Case, But…
By Dale Carpenter on June 25, 2010 4:18 pm in Constitutional Law, First Amendment, Freedom of Speech
Minnnesota District Judge John Tunheim has denied a temporary restraining order sought by Twin Cities Pride (TCP) to prevent an anti-gay preacher from distributing literature and displaying signs inside the park where TCP has a permit for the annual gay pride festival. (The desision is here. I wrote about some of the basic issues here.). Twin Cities […]
First Amendment Clash Brewing Over Gay Pride Festival in Minneapolis
By Dale Carpenter on June 22, 2010 11:38 am in Constitutional Law, First Amendment, Freedom of Association, Freedom of Speech
Must an expressive association that paid for a permit in a public park to advance its message include someone using the event to convey an opposing message? Specifically, must an anti-gay preacher and others be allowed to condemn homosexuality in signs and literature by roaming the permit grounds of a gay-pride celebration? For more than 30 years, gay-rights organizers have annually paid for […]
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 […]