Mike Rappaport updates his original post on the interpretation and construction distinction with this: What is clear is that the four constructionists emphasize different things, appear to be motivated by different concerns, and describe their positions differently. That is what I meant by saying that the different scholars “had different conceptions of construction.” Larry [Solum] […]
Archive | Originalism
Amar v. Natelson on the constitutionality of Obamacare
By David Kopel on January 27, 2010 1:29 am in Commerce Clause, Constitutional History, Health Care, Originalism
Rob Natelson (U. Montana; Independence Institute) addresses Akhil Amar’s claims that Obamacare is consistent with the original meaning of the Constitution.
Whence Comes Section One? (Second Notice)
By Randy Barnett on January 26, 2010 2:42 pm in Civil Rights, Constitutional Theory, Fourteenth Amendment, History, Originalism
Last week, when I posted a link to my new article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I received several messages telling me that SSRN was inaccessible. Presumably, it is working now, so if you were unable to download it, you should try again. Here is the link, and here […]
Constitutionality of the “Nebraska Compromise”
By David Kopel on December 23, 2009 2:02 pm in Congress, Constitutional History, Necessary and Proper, Originalism, Supreme Court
The original “Nebraska Compromise” (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill […]
New Institute for Justice Economic Liberties Case
By Ilya Somin on December 17, 2009 5:35 pm in Economic LIberties, Originalism, Public Interest Law, Regulation
The Institute for Justice has recently filed a new case challenging an especially egregious infringement on economic liberties under the Constitution: A civil liberties law firm has filed suit against the state of Texas on behalf of eight eyebrow-threading entrepreneurs, several of whom are based in San Antonio. The Institute for Justice, Texas Chapter, is […]
Originalism and the Sixth Amendment Right “to have the Assistance of Counsel”
The briefs filed in McDonald v. City of Chicago have raised a lot of questions here about the role of originalism versus stare decisis in constitutional interpretation. Some have argued that stare decisis must give way to correctness on these issues as a matter of constitutional purity: We should always follow the original public meaning […]
Predicting McDonald
By Randy Barnett on November 18, 2009 9:52 am in Civil Rights, Constitutional History, Constitutional Theory, Guns, Originalism, Property Rights, Supreme Court, Uncategorized
Below, my colleague Orin offers his predictions as to whether the Supreme Court will restore the “lost” Privileges or Immunities Clause to constitutional law. He may well be correct in predicting but a single vote for that proposition, but I remember when many predicted Angel Raich would get 0-1 votes for her Commerce Clause challenge […]
How Many Votes To Overrule The Slaughterhouse Cases?
As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause. The obvious question is, how many Justices will agree? My guess: only one. In this […]
NRA brief in McDonald v. Chicago
By David Kopel on November 17, 2009 7:59 pm in Constitutional Theory, Guns, Originalism, Supreme Court
Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly asks the Court […]
Georgetown Panel on McDonald & the Privileges or Immunities Clause:
By Randy Barnett on November 6, 2009 9:16 am in Constitutional Theory, Guns, Originalism, Uncategorized
As many readers probably know, McDonald v. Chicago involves a constitutional challenge to the Chicago handgun ban, which raises the issue of whether the individual right to keep and bear arms, which was recognized by the Supreme Court in DC v. Heller also applies to the states. Somewhat amazingly, the Court announced that this was […]
The State of Constitutional Theory on the Left and the Right
Participating in the Constitution in 2020 conference at Yale this weekend gave me a chance to consider the state of constitutional theory on the left. The contributors to the Constitution in 2020 book and many of the participants in the conference are well-known liberal constitutional scholars. My dominant impression is that there is a great […]