Head conspirator Eugene Volokh and I will be on a panel today at the Heritage Foundation at 12:30pm discussing the constitutionality of the proposed individual health insurance mandate. Senator Orrin Hatch will deliver opening remarks. I will question the constitutionality of such a mandate; I expect Eugene to be skeptical that a constitutional challenge would […]
Archive | Constitutional Theory
Cato brief in McDonald v. Chicago
By David Kopel on November 23, 2009 2:02 am in Civil Rights, Constitutional History, Constitutional Theory, Fifth Amendment, Fourteenth Amendment
Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the […]
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 […]
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 […]
Robert Tsai on ‘Eloquence and Reason’
By Kenneth Anderson on November 15, 2009 2:20 pm in Academia, Constitutional History, Constitutional Theory, Freedom of Speech, Supreme Court
A couple of weeks ago I mentioned a new book on constitutional interpretation and language by my colleague, Washington College of Law professor Robert Tsai – Eloquence and Reason: Creating a First Amendment Culture. Constitutional rhetoric and interpretation are not my areas, but I started reading the book and have found it to be a […]
He-Man on Executive Power
By Ilya Somin on November 10, 2009 10:27 pm in Constitutional Theory, Executive Branch, Uncategorized
In one of my recent Constitutional Law classes, I had occasion to quote a much-neglected legal authority: He-Man. Like many presidents, especially in wartime, He-Man claims that he has “fabulous secret powers” and even summarizes his legal position with the immortal words “I have the power.” It’s the best short summary of the late Bush […]
Congratulations to Robert Tsai on ‘Eloquence and Reason: Creating a First Amendment Culture’
By Kenneth Anderson on November 6, 2009 10:57 am in Academia, Constitutional History, Constitutional Theory, Freedom of Speech, Language
This is coming more than a little late, as the book has been out for a few months, but I wanted belatedly to congratulate my Washington College of Law colleague, Robert Tsai, on his book Eloquence and Reason: Creating a First Amendment Culture. I have it on my shelf for night reading, but unfortunately even […]
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 Ten Best Supreme Court Decisions
By Ilya Somin on October 6, 2009 11:12 am in Constitutional History, Constitutional Theory, Libertarianism, Supreme Court
It’s easy to make lists of the worst Supreme Court decisions of all time, and libertarians are constantly criticizing the Court for not doing enough to protect constitutional liberties. But now, libertarian lawprof Brad Smith asks for a list of the ten best Supreme Court decisions from a libertarian point of view. As I see […]
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 […]
My Talk at the Constitution in 2020 Conference
For those who are at Yale or in the New Haven area, tommorrow I will be speaking on the “Localism and Democracy” panel at the Constitution in 2020 conference. The organizers were kind enough to invite me to provide a measure of ideological balance to a conference that is – quite understandably – primarily devoted […]
Globally Managing American Speech?
By Kenneth Anderson on October 2, 2009 10:19 am in Constitutional Theory, Freedom of Speech, International Law, Politics, Religion and the Law
I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later.
This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning. Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.
Even to “engage” in the process, as a consequence, leads to tears no matter where it goes. A compromise on the issue will inevitably mean that the first amendment is weakened in its substantive American understanding. If the US engages in the process, however, but then does not accept the result, then it is understandably accused of negotiating in bad faith.
But that’s the consequence of a policy of “always, or nearly always, engage” with the UN or with international institutions. There are certain institutions in which the US should always engage; the Security Council is one of them. There are certain institutions or processes with which it should never engage and actively seek to undermine; Durban I and II come to mind. The HRC is another institution with which engagement is a mistake, and an obvious one. The decision to engage or not engage is one that by itself is an exercise in political capital. I admit to finding unpersuasive the position of some (HRW made these arguments around Durban, but it is a fairly common trope) that
(a) the US should always engage with UN institutions because engagement is an important symbolic act that shows US commitment to international institutions and
(b) the US should not be concerned about always engaging with institutions or processes at the UN, because these are “merely” symbolic processes and one can always walk out, because as a realist matter no one can “make” the US do anything it doesn’t want.
This is looking to have it both ways. Which is it to be? Does symbolic engagement matter or doesn’t it?
Two Images of the Constitution
On his new blog, Josh Blackman compares the covers of two books on the Constitution.
How Important is the Uniformity of Federal Law?
My co-blogger Ken Anderson recently linked to my friend Amanda Frost’s provocative article, Overvaluing Uniformity, in which Amanda makes the case that the federal courts should not be overly concerned with whether federal law is uniform. I disagree, and I think the source of my disagreement is mostly on the question of whether and how […]