My final substantive Balkinization guest-blogging post about Democracy and Political Ignorance focuses on the implications of widespread political ignorance for judicial review and the “countermajoritarian difficulty.” For those who may be interested, I addressed the related question of the implications of political ignorance for originalism, in this article.
Archive | Constitutional Theory
Justice Scalia Repudiates “Fainthearted” Originalism
In a 1989 article, Justice Antonin Scalia famously described himself as a “fainthearted originalist,” By which he meant that he would sometimes vote against the outcome dictated by the original meaning of the Constitution if strong precedential, moral, or other considerations cut the other way. Co-blogger Randy Barnett wrote an interesting 2006 article taking Scalia […]
Erwin Chemerinsky on Originalism
UC Irvine Law School Dean Erwin Chemerinsky, one of the nation’s leading constitutional law scholars, recently posted a critique of originalism on the ACS Blog. Unfortunately, the points he makes are uncharacteristically weak. University of San Diego law professors Michael Ramsey and Michael Rappaport do a good job of explaining why. Chemerinsky’s most dubious point […]
Michael Dorf on the Social Practice of Originalism
Michael Dorf has an interesting blog post recounting some of his Constitution Day remarks: Suppose that Americans decided tomorrow to abandon the Constitution and to organize our legal and political systems in some other way. . . . [N]o one disputes that it would be possible — as a matter of brute fact — for […]
The Biggest Democracy’s Bigger Death Penalty
By Eugene Kontorovich on September 13, 2013 6:42 am in Constitutional Law, Constitutional Theory, Criminal Law, Foreign and Religious Law in American Courts, International Law
India has just sentenced four men to death in the infamous Delhi rape/murder case. India has apparently ended an eight-year moratorium on executions last year, greatly altering the global capital punishment map. At the same time, it also passed a new rape law, which would allow for execution in aggravated cases (not necessarily involving minors) […]
What Kind of a Theory is Originalism?
Mike Rappaport has an interesting post about how to justify originalism. In particular, Rappaport writes about what kind of a theory originalism is. Is it a “normative” theory (what kind of theory would produce good policy), an “interpretive” theory (what kind of theory actually assesses the meaning of the document) or what I’d called a […]
Suzanna Sherry on “Universally Condemned” Supreme Court Decisions
By Ilya Somin on August 25, 2013 8:55 pm in Constitutional History, Constitutional Law, Constitutional Theory
In her latest rejoinder in our debate about “judicial activism,” Prof. Suzanna Sherry helpfully clarifies her view on what qualifies as a “universally condemned” Supreme Court decision. This is important, because Sherry claims that we have more reason to fear excessive judicial passivity than excessive “activism” (which she defines as striking down laws or official […]
Rejoinder to Suzanna Sherry on the Case for “Judicial Activism”
Vanderbilt law professor Suzanna Sherry has written a thoughtful response to my and Orin Kerr’s critiques of her article “Why We Need More Judicial Activism.” To briefly recap, Suzanna contends that courts should err on the side of excessive “activism” (defined simply as striking down laws or other official actions) rather than excessive restraint, because […]
Suzanna Sherry on the Case for “Judicial Activism”
By Ilya Somin on August 20, 2013 7:50 pm in Constitutional History, Constitutional Law, Constitutional Theory
Vanderbilt law professor Suzanna Sherry recently posted an interesting article on “Why We Need More Judicial Activism”, which led to a symposium at The Green Bag, and a critique by co-blogger Orin Kerr. I agree with Sherry’s main point: that we need more judicial review, not less, and that historically federal courts have erred more […]
Can Lawyers Ascertain the Meaning of the Living Constitution?
By Ilya Somin on August 19, 2013 6:11 pm in Constitutional Theory, Originalism, Representation-Reinforcement
I agree with most of what co-blogger Randy Barnett says in his recent post responding to critics who claim that lawyers and judges cannot determine the original meaning of the Constitution. But I think we should also pay attention to the opposite question of whether lawyers can figure out the meaning of the living Constitution. […]
The Fiduciary Foundations of Federal Equal Protection
By David Kopel on August 4, 2013 3:46 pm in Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, Education, Equal Protection, Fifth Amendment, Fourteenth Amendment, Originalism, Supreme Court
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 […]
Koppelman’s Two Gun Minimum
By Eugene Kontorovich on July 10, 2013 10:40 pm in Constitutional Law, Constitutional Theory, Criminal Law, Guns, Seventh Circuit
At Balkinization, Andy Koppelman has witty – and wise – rejoinder to the discussion Nick and I have had here about the plural of “Arms“: If this strict textualism is to be followed, there is an interesting implication: perhaps there is only a right to bear “arms” – plural – but not to bear a […]
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 […]
Video of the Huffington Post Live Discussion on Democracy and Constitutionalism in Egypt
A video of the Huffington Post Live panel discussion on constitutionalism, democracy, and the situation in Egypt is now available here. I was one of four participants. The others were Prof. Stanley Katz of Princeton, Zaid Al-Ali – an expert on constitutional design in the Arab world, and Daniel Landsberg-Rodriguez. I tried to emphasize two […]
“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 […]