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 […]
Archive | Originalism
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 […]
“A Good Musket” and Bearing Arms
By Eugene Kontorovich on July 8, 2013 11:37 am in Constitutional Amendments, Constitutional Theory, Guns, Militia, Originalism, Right to carry
I’ve been discussing whether the right to bear arms is infringed by laws limiting people to bearing only one “arm”, as a proposal by Illinois Gov. Quinn seeks to do. Perhaps the best evidence for a singular reading of “arms” is the Second Militia Act of 1792, section 1, which provides, in part, that a […]
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 […]
Jack Balkin on Fisher
By Ilya Somin on June 24, 2013 9:22 pm in Affirmative Action, Constitutional Theory, Originalism, Racial Discrimination
Yale law professor Jack Balkin – a leading constitutional law scholar generally sympathetic to affirmative action – has an interesting post on Fisher v. University of Texas. Like me, Balkin believes that the decision will make it more difficult for universities to defend racial preferences in court: Fisher distinguishes between two questions. The first is […]
Profile of Judge Ed Korman
By Nick Rosenkranz on June 16, 2013 11:05 pm in Constitutional Law, Constitutional Theory, Health Care, Originalism, Politicizing Science
The New York Times has a nice profile of Judge Ed Korman, the judge who faced down HHS in the Plan B case. See Jonathan Adler’s posts, here, here, here, and here. Whatever one thinks of the merits, it takes great fortitude for a district judge to stand up to a recalcitrant administration. As for […]
New Scholarship on Originalism and Discrimination
By Ilya Somin on April 12, 2013 6:30 pm in Affirmative Action, Constitutional Theory, Originalism, Racial Discrimination, Sex Discrimination
For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as […]
How to Figure Out When Laws Banning Same-Sex Marriage Became Unconstitutional and Why the Precise Date May Not Matter
By Ilya Somin on March 26, 2013 11:44 pm in Constitutional Theory, Gay Marriage, Gay Rights, Originalism, Sex Discrimination
At today’s Proposition 8 oral argument, Justice Scalia asked Ted Olson, the lawyer for the plaintiffs, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” The intuition behind Scalia’s question is that if a law would not have been unconstitutional on the day the Fourteenth […]
Drone Strikes and Due Process
Mike Ramsey has a nice post over at the Originalism Blog.
Penn Symposium — Back to the Basics: Originalism and Textualism in Constitutional Interpretation Today
By Nick Rosenkranz on January 21, 2013 11:44 am in Constitutional Law, Constitutional Theory, Originalism
The University of Pennsylvania Journal of Constitutional Law is hosting a very promising symposium on Friday, January 25. My colleague and co-blogger Randy Barnett will be on the first panel. I will be giving the keynote address. And the second half of the symposium is largely dedicated to (eviscerating) my work!
The Trillion Dollar Coin and the Problem of Circulation
By Eugene Kontorovich on January 9, 2013 5:51 pm in Congress, Constitutional Law, Finance, Originalism, Separation of Powers, Uncategorized
“Everyone loves money. That is why they call it MONEY.” – David Mamet. The trillion-dollar coin is a proposal to avoid the debt ceiling through a loophole in a federal statute that authorizes the U.S. Mint to coin platinum in any denomination. Platinum is reserved for commemorative issues, and the obscure statutory provision was certainly […]
Robert Bork, RIP
National Review has posted an on-line symposium in honor of Judge Robert Bork, the great legal scholar and jurist who passed away today. Here is an excerpt from my contribution: Judge Robert Bork was an outstanding legal scholar and jurist. It is often forgotten that he first became prominent thanks to his path-breaking work on […]
Rejoinder to Akhil Amar on the Application of the Fourteenth Amendment to the Federal Government
By Ilya Somin on September 13, 2012 6:23 pm in Constitutional Theory, Originalism, Racial Discrimination
I am grateful that Akhil Amar has taken the time to respond to my post criticizing his theory that the original meaning of the Fourteenth Amendment bans racial discrimination by the federal government as well as the states. Akhil makes some good points, but I think he continues to fall short on the central point […]
Akhil Amar on the Application of the Fourteenth Amendment to the Federal Government
I am grateful to Akhil Amar for his comment on my post challenging claims that the original meaning of the Fourteenth Amendment allows affirmative action because Congress, in the 1860s and 70s adopted programs that gave “racial preferences” to recently freed African-American slaves. In my earlier post, I pointed out that these were federal government […]
Originalism and Affirmative Action
By Ilya Somin on September 7, 2012 11:20 am in Affirmative Action, Constitutional Theory, Fisher v. University of Texas, Originalism
In this recent SCOTUSblog post on the upcoming Supreme Court case of Fisher v. University of Texas, David Gans and UCLA law professor Adam Winkler take conservative originalist opponents of affirmative action to task for ignoring originalism in their arguments against the constitutionality of racial preferences for minorities. They particularly single out Supreme Court Justices […]