I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should […]
Archive | Constitutional Theory
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 […]
Return of the People’s Rights Amendment
By Ilya Somin on June 20, 2013 3:41 am in Constitutional Amendments, Constitutional Theory, First Amendment, Freedom of Speech, Restrictions on Campaign Contrbs. and Expenses
The Tester-Murphy Amendment, which Eugene Volokh criticizes here. appears to be virtually identical to last year’s People’s Rights Amendment. I outlined some of the dangers posed by the PRA in this post.
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 […]
Audio of My Discussion of the Supreme Court with Prof. Eric Segall on Stand Up! With Pete Dominick
Sirius Satellite Radio has posted the audio of my recentdiscussion of the Supreme Court with George State University Professor Eric Segall on Stand Up! With Pete Dominick. The audio is available here. Much of the discussion focuses on general issues of constitutional theory and the extent to which the Supreme Court is or is not […]
Reassessing the Impact of Pro-Gay Marriage Judicial Decisions
With Rhode Island and Delaware recently becoming the tenth and eleventh states to permit same-sex marriage and Minnesota likely to soon become the twelfth, now is a good time to reconsider the impact of judicial decisions requiring state recognition of gay marriage. The trend towards gay marriage began in 2003, with a Massachusetts Supreme Judicial […]
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 […]
Judicial Nominations and Competing Constitutional “Mainstreams”
By Ilya Somin on March 19, 2013 8:15 pm in Conservatism, Constitutional Law, Constitutional Theory, Judicial Nominations
In a recent column, Harvard Law Professor Cass Sunstein argues that Republican senators who have filibustered some of Barack Obama’s judicial nominees are more to blame than Democrats who previously filibustered GOP nominees because the Democrats only tried to block nominees who were “out of the mainstream,” while the GOP targeted any nominees whom they […]
Except the Bill of Rights: The Selective-Strong Treaty Position
By Eugene Kontorovich on January 21, 2013 9:19 pm in Constitutional Law, Constitutional Theory, Federalism, Global Governance/World Government, Treaties
Generally, the entire Constitution is seen as having equal weight; there are not tiers of authority (unlike in the constitution’s of many other nations, which make certain provisions suspendable). Thus I have always been puzzled by the dominant view, well-articulated by Prof. Pildes, which manages to account for Missouri v. Holland and Reid v. Covert […]
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!
Does Congress have the Power to Enforce Treaties? Part I
By Prof. Rick Pildes (NYU), guest-blogging on January 14, 2013 6:58 am in Constitutional History, Constitutional Law, Constitutional Theory, International Law, Treaties
I want to thank Eugene and Nick for graciously inviting me to guest blog here. One of the longstanding conundrums in American constitutional history, theory, and doctrine is how the treaty power relates to Congress’ Art. I enumerated powers. This question is also pending before the Supreme Court in Bond v. United States, in which […]
Federalist Society Talks in San Francisco on January 14
I will be talking about The Subjects of the Constitution and The Objects of the Constitution on Monday, January 14th. The first talk is for the Boalt Hall (Berkeley) Chapter of the Federalist Society, 12:45-2:00pm. The second is for the San Francisco Lawyers Chapter of the Federalist Society, at Sheppard Mullin, 4 Embarcadero Center, 17th […]
Why Louis Michael Seidman should not ignore the Constitution
Rob Natelson explains in this essay, which points of some of Seidman’s major historical errors about the Founding Era and constitutional history.
Seidman: “Let’s Give Up on [Parts of] the Constitution”
By Jonathan H. Adler on December 31, 2012 9:29 am in Constitutional Amendments, Constitutional Law, Constitutional Theory, Popular Constitutionalism
Georgetown’s Louis Michael Seidman, author of On Constitutional Disobedience has an NYT op-ed (noted in the comments to Orin’s open thread) calling for ignoring the Constitution — or at least those parts that he does not like. As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American […]