That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction: In this Article we discuss the synergistic […]
Archive | Constitutional Law
The Bourne Implausibility
By Nick Rosenkranz on March 6, 2013 9:40 pm in Constitutional Law, Fifth Amendment, National Security, Popular Culture, Targeted Killing, Uncategorized
I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.” In the movie, it appears that MSNBC believes this to be […]
Congress Has Power To Define The Terms Of Its Own Statutes
Last week, Dale Carpenter blogged about a particular amicus brief filed in U.S. v. Windsor, the Defense of Marriage Act (DOMA) case. In this brief, Dale, as well as co-conspirators Jonathan Adler, Randy Barnett, and Ilya Somin, set forth a “federalism-based” argument against DOMA. With all due respect to my co-conspirators, I agree with Ed […]
A Federalism-Based Equal Protection Argument Against DOMA
By Dale Carpenter on March 1, 2013 2:43 pm in Constitutional Law, Equal Protection, Federalism, Same-Sex Marriage, Supreme Court
Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional. Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy […]
The Scope of Federal Power Under the Thirteenth Amendment
My wife Alison Somin and University of San Diego law professor Gail Heriot have published a short article in Engage criticizing recent claims that the Thirteenth Amendment, which bans “slavery” and “involuntary servitude,” and authorizes Congress to pass “appropriate” enforcement legislation, actually gives Congress broad authority to legislate on a wide range of other issues: […]
Letter to Senator Cruz on constitutional issues in federal gun control proposals
On Tuesday, the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing “Proposals to Reduce Gun Violence: Protecting Our Communities While Respecting the Second Amendment.” Senator Dick Durbin (D-Ill.) is Chair of the Subcommittee, and Senator Ted Cruz (R-Texas) is the Ranking Member. The Subcommittee has solicited letters […]
Is citizen control of taxes and spending unconstitutional?
By David Kopel on February 11, 2013 1:40 pm in Constitutional History, Constitutional Law, Judicial Power, Taxes
Colorado’s Constitution (Art. X, sect. 20) is the Taxpayer’s Bill of Rights. Like similar provisions in other states, Colorado’s TABOR requires voter approval for tax increases, and for most spending increases that exceed inflation plus population growth. Several state legislators have filed suit in federal court to have TABOR declared unconstitutional. Allegedly, requiring voter approval […]
Drone Strikes and Due Process
Mike Ramsey has a nice post over at the Originalism Blog.
Final Post Of The Treaty Debate
This will be my final post of the debate with guest-blogger Rick Pildes about whether a treaty can increase the legislative power of Congress. In this post, I will just make some brief concluding remarks. 1 Rick has been at pains to suggest a fundamental disagreement between Ilya and me. This is tactically clever – […]
The Limits on the Treaty Power
By Prof. Rick Pildes (NYU), guest-blogging on February 2, 2013 4:23 pm in Constitutional Law, Treaties
Hopefully, I will be able to leave the treaty power issue alone for a while after this post, but let me finish elaborating my views in the context of also responding to the series of posts from Nick and others since my last posting. 1. My principal argument has been directed against the specific limit on the […]
Missouri v. Holland vs. Reid v. Covert
My thanks to Rick Pildes and to our commenters for pushing me to reframe the precise issue at stake in Bond and my precise position about it. I think we now have a better understanding of where we part ways. Here is the question: If a non-self-executing treaty promises that Congress will do something that […]
There Is No Basis In Constitutional Text For the Claim That A Treaty Can Increase The Legislative Powers of Congress
Guest-blogger Rick Pildes has now written five long and eloquent posts defending the proposition that a treaty can increase the legislative power of Congress. But I must say that I am struck by how little of his argument has anything to do with the Constitution as written. Rick’s five posts — like the five pages […]
Missouri v. Holland: The Intellectual History That Preceded The Holding
By Nick Rosenkranz on January 28, 2013 4:36 pm in Constitutional History, Constitutional Law, Treaties, Uncategorized
Our treaty debate now seems to have several threads running at once. To make things a bit clearer, I plan to separate a few threads out into separate posts. In this post, I hope at least one thread can be put to rest: the intellectual history thread. I have criticized Justice Holmes for concluding — […]
Peace Treaties & the War Power
By Eugene Kontorovich on January 27, 2013 5:19 pm in Constitutional History, Constitutional Law, Federalism, International Law, Treaties
Ilya’s response to Rick, that the Peace Treaty with Britain’s domestically applicable provisions could have been implemented through the foreign commerce power, seems right to me. But there may be another power that would have justified such legislation. Peace is the flip side of war. Thus Congress’s power to decide on war also presumably includes […]
John Kerry Tries to Distinguish Obama’s Bombing of Libya from Richard Nixon’s Bombing of Cambodia
In this interesting exchange from John Kerry’s confirmation hearings for the position of Secretary of State, Republican Senator Rand Paul presses Kerry on the contradiction between his longstanding view that President Richard Nixon’s bombing of Cambodia during the Vietnam War was unconstitutional because it lacked congressional authorization, and his defense of President Obama’s 2011 bombing […]