Vanderbilt law professor Suzanna Sherry recently posted an interesting article on “Why We Need More Judicial Activism”, which led to a symposium at The Green Bag, and a critique by co-blogger Orin Kerr. I agree with Sherry’s main point: that we need more judicial review, not less, and that historically federal courts have erred more […]
Archive | Constitutional Law
My Forthcoming Book Chapter on “The Impact of Judicial Review on American Federalism”
My forthcoming book chapter, “The Impact of Judicial Review on American Federalism: Promoting Centralization More than State Autonomy,” is now available on SSRN. It will be published in Nicholas and Aroney and John Kincaid, eds., Courts in Federal Countries: Federalists or Unitarists? (Oxford University Press, forthcoming). This book examines the effects of judicial review on […]
Wall Street Journal Op-Ed: Two Presidents, Two Suspensions
By Nick Rosenkranz on August 17, 2013 8:48 am in Constitutional Law, Executive Branch, Habeas, Health Care, Obama, Presidency, Separation of Powers
My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different. The op-ed is […]
The Fiduciary Foundations of Federal Equal Protection
By David Kopel on August 4, 2013 3:46 pm in Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, Education, Equal Protection, Fifth Amendment, Fourteenth Amendment, Originalism, Supreme Court
Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of […]
NY appellate court rules 5-0 against Bloomberg soda ban
By David Kopel on July 30, 2013 2:02 pm in "Bullying" Bans, Administrative Law, Constitutional Law, Executive Branch, Food and Drink, Growth of Government, Health Care, New Class, Paternalism, Separation of Powers
The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic […]
Former Bush Attorney General Alberto Gonzales Responds to my USA Today Op Ed on Unanimous Supreme Court Decisions and Executive Overreach
By Ilya Somin on July 29, 2013 5:07 pm in Constitutional Law, Executive Branch, National Security, Supreme Court, War on Terror
Former Bush Administration attorney general and White House counsel Alberto Gonzales has written a response to my USA Today op ed on unanimous Supreme Court opinions and executive overreach. Gonzales largely agrees with my assessment of the Obama administration’s record, but – not surprisingly – he takes issue with my argument that Obama’s overreach was […]
The Jerusalem Passport Case – Separation of Powers and Standing
By Eugene Kontorovich on July 23, 2013 12:31 pm in Constitutional Law, Israel, Separation of Powers, Standing
The D.C. Circuit has held the Jerusalem passport law unconstitutional for impermissibly intruding into the Executive’s foreign relations powers. The law requiring the State Department to record “Israel” as the country of birth for those born in Jerusalem. The D.C. Circuit, through extensive and lucid analysis, concluded that recognition was an exclusively executive function, on […]
My USA Today Op ed on the Troubling Implications of Cases where the Administration Loses 9-0 Decisions in the Supreme Court
USA Today has just posted my op ed on the troubling implications of cases where the executive branch loses unanimous Supreme Court decisions: Those of us who follow Supreme Court decisions spend most of our time debating the contentious issues that divide justices 5-4 along predictable ideological lines…. But we might do well to pay […]
John Stuart Mill on Slavery, the Confederacy, and the American Civil War
A reader reminded me that many of the same defenses of the Confederacy advanced by its modern apologists (including some of the libertarian ones discussed in my last post) were also advocated by wartime British sympathizers with the Confederates, and effectively rebutted by John Stuart Mill in his 1862 essay, “The Contest in America.” I […]
Successes in Colorado Sheriffs’ Second Amendment case
By David Kopel on July 15, 2013 6:20 pm in Civil Rights, Constitutional Law, Guns, Legal Terms, Self-Defense
This post provides an update on last week’s developments in Cooke et al. v. Hickenlooper. This is a lawsuit filed May 17 in federal District Court in Denver, challenging two gun laws enacted by the state legislature in March. In the case, I represent 55 of Colorado’s 62 elected Sheriffs, plus one retired police officer. Other […]
Koppelman’s Two Gun Minimum
By Eugene Kontorovich on July 10, 2013 10:40 pm in Constitutional Law, Constitutional Theory, Criminal Law, Guns, Seventh Circuit
At Balkinization, Andy Koppelman has witty – and wise – rejoinder to the discussion Nick and I have had here about the plural of “Arms“: If this strict textualism is to be followed, there is an interesting implication: perhaps there is only a right to bear “arms” – plural – but not to bear a […]
Response to Prof. Rosenkranz: ArmS & the Man – or Arms & the People
By Eugene Kontorovich on July 9, 2013 2:33 pm in Constitutional Amendments, Constitutional Law, Constitutional Theory, Fourth Amendment, Guns, Originalism, Right to carry, Self-Defense
Nick takes issue with my suggestion that the Second Amendment on its face bars laws restricting people to one gun, such as that currently proposed by Gov. Quinn in Illinois. My (first) argument is not an originalist or purposivist one, but rather a purely textual one. The primary meaning of “arms” is plural. Nick argues […]
Is the Right to Bear Arms Plural?
By Eugene Kontorovich on July 8, 2013 10:04 am in Constitutional Amendments, Constitutional Law, Guns, Militia, Originalism, Right to carry, Seventh Circuit, Uncategorized
Tomorrow, Illinois’ concealed carry laws will become ineffective, having been held unconstitutional by the Seventh Circuit several months ago. The Court kept the unconstitutional law on life support for a few months to give the legislature time to craft a replacement measure. Springfield responded, but now that bill has been vetoed by Governor Quinn. If […]
Indian Commerce Clause in the Supreme Court
By David Kopel on July 1, 2013 7:43 pm in Child Protection, Commerce Clause, Constitutional History, Constitutional Law, Federalism, Racial Discrimination, Supreme Court
Among the cases decided during final week of the Supreme Court term was Adoptive Couple v. Baby Girl (Scotusblog summary here.) Justice Alito’s opinion for a 5-4 majority begins: This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified […]
Ice-T, Volokh, and Kopel: Together at last in a feature film
By David Kopel on June 23, 2013 3:12 pm in Constitutional History, Constitutional Law, Guns, History, McDonald v. City of Chicago, Popular Culture, Registration, Self-Defense, Terrorism
The film is Assaulted: Civil Rights under Fire. It opened Friday in a limited theatrical release. Assaulted tells the modern and historic story of the Second Amendment, with a particular focus on civil rights. The events include Reconstruction, the Deacons for Defense, the Battle of Athens, the post-Katrina gun confiscations, and much more. The narrator is Ice-T. […]