Progressive constitutional doctrine underwent some interesting changes in the middle of the twentieth century. One was the return of liberty-based concerns in jurisprudence, and the repudiation of some of the more extreme Progressive democracy-based legal decisions. This is most notable in West Virginia Bd. of Ed. v. Barnette, which held that school children could not […]
Archive | Constitutional Theory
How Rational Basis (D)evolved Into A Get Out Of The Constitution Free Card
I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I […]
Holmes Helps Americans Go To Hell
The clash between the classical liberalism of the Constitution—which holds that individual rights are primary, and democracy is secondary, and limited by individual rights—and the “wolf’s view” of politics—which holds the power of the majority as primary, and sees rights as privileges given to the individual by the majority—persisted into the twentieth century. Although the […]
The Liberty Constitution, Or, What About Slavery?
In my first post, I said that the basic premise of the Constitution is that people are fundamentally free, and that political institutions are created through that freedom, and are legitimate only insofar as they respect that freedom. The central value of the Constitution, I argue, is the liberty that the Declaration of Independence proclaims as […]
The Wolf Amendment
Prof. Kerr asks a good question, one that touches on a point that differentiates my argument from that of some of my allies, and one that gives rise to another point that I think strengthens my view. How should a judge act if the American people were to ratify a constitutional amendment that explicitly adopted […]
The Conscience of The Constitution: An Introduction
It’s great to be back guest-blogging at The Volokh Conspiracy. And it’s well-timed, because just the other day , Prof. Volokh quoted one of my favorite passages from Lincoln, one I use on the first page of The Conscience of The Constitution. The theme of my book is that the clash of these two conceptions […]
Welcome John McGinnis and Michael Rappaport!
I am very glad to see that John McGinnis and Michael Rappaport are going to be guest-blogging here about their excellent new book, Originalism and the Good Constitution. I have some disagreements with their analysis. But it is nonetheless one of the best defenses of originalism in a long time. I reviewed the book in […]
Is Originalism the Law?
One question that quite fascinates me is whether the original meaning of the Constitution is “the law” — in the sense that it describes the positive law of the United States. Mike Rappaport has a pair of posts exploring this question: here’s the first, here’s the second. Ultimately, he concludes that originalism is not against […]
My New Article on “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy”
By Ilya Somin on December 20, 2013 11:15 am in Constitutional Theory, Democracy, Originalism, Representation-Reinforcement
My new article, “The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy,” part of a University of Chicago Law Review symposium on the work of Judge Robert Bork, is now available on SSRN. Here is the abstract: As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy […]
University of Chicago Law Review Symposium on the Work of Judge Robert Bork
By Ilya Somin on December 18, 2013 11:10 am in Conservatism, Constitutional Theory, Democracy, Originalism
The University of Chicago Law Review recently posted its online symposium on the work of Judge Robert Bork, who passed away last year. The symposium includes essays by several prominent legal scholars, including Steven Calabresi, Bradford Clark, Richard Epstein, John Harrison, Kurt Lash, John McGinnis, and John Yoo. My own contribution, “The Borkean Dilemma: Robert […]
Posner on Lochner (UPDATED: Posner versus Posner?)
By David Bernstein on November 6, 2013 8:25 am in Constitutional History, Constitutional Theory, Rehabilitating Lochner
While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example. Posner writes in the California Law Review: The majority opinion in Lochner is […]
Richard Posner on the Rise and Fall of Judicial Deference
At the JOTWELL site, Emory law professor Charles Shanor reviews an important article by Judge Richard Posner on the rise and fall of “Thayerian” judicial deference to legislatures. Posner traces the history of James Bradley Thayer’s famous argument (first developed in the 1890s) that judges should only strike down a statute if its unconstitutionality is […]
A Market for State Borders
By Eugene Kontorovich on October 17, 2013 7:39 am in Constitutional Law, Constitutional Theory, Federalism, Legal Scholarship, Secession
Following up on my earlier post on parts of a state seceding to join another state, I’d like to call attention to a neat article by Joseph Blocher, coming out in the University of Pennsylvania Law Review, entitled “Selling State Borders.” It suggests such political redrawing can be accomplished through sales between states, and shows […]
Three Important New Books on Constitutional Law
By Ilya Somin on October 13, 2013 11:45 am in Affirmative Action, Constitutional Law, Constitutional Theory, Originalism
In this post, I briefly review three important new books on constitutional law that are likely to interest many of our readers. Here goes: I. John McGinnis and Michael Rappaport, Originalism and the Good Constitution. This book is a fascinating and innovative defense of originalism. Unlike some other originalists, who defend the theory because they […]
How Best to Secede from a State
By Eugene Kontorovich on October 11, 2013 5:52 am in Constitutional Law, Constitutional Theory, Elections, Federalism, Originalism, Secession, Uncategorized
Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to […]