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 […]
Archive | Constitutional Theory
Turning Federalism Right-Side Up – My Review of Michael Greve’s The Upside-Down Constitution
By Ilya Somin on December 11, 2012 10:45 am in Commerce Clause, Constitutional Law, Constitutional Theory, Federalism, Necessary and Proper, Taxing and Spending Clause
My review of Michael Greve’s important new book, The Upside-Down Constitution is about to be published in Constitutional Commentary, and is now available on SSRN. Here is the abstract: Michael Greve’s The Upside-Down Constitution is one of the most important works on constitutional federalism in years. It is the best exposition to date of the […]
Does any government have the legitimate power to ban medical marijuana?
By David Kopel on December 10, 2012 10:25 pm in Constitutional History, Constitutional Law, Constitutional Theory, Criminal Law, Growth of Government, Paternalism
Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, […]
Do You Have to Be a Lawyer to Understand the Constitution?
Co-blogger Orin Kerr quotes Herbert Hoover’s statement that you don’t have to be a lawyer to understand the Constitution. Interestingly, the Supreme Court agrees. As Justice Owen Roberts put it in a unanimous 1931 decision, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and […]
Constitutional Law After ObamaCare
By Nick Rosenkranz on November 25, 2012 7:00 pm in Constitutional Law, Constitutional Theory, Continuing Legal Education
The Manhattan Institute will be hosting a promising conference on this topic at the Century Club in New York City on Thursday evening, November 29th. I have been asked to speak about The Subjects of the Constitution and The Objects of the Constitution. Other speakers are Prof. Michael Greve of George Mason Law School; Prof. […]
Secession, Family Law, and Political Science
By Eugene Kontorovich on November 23, 2012 11:53 am in Constitutional Theory, International Law, Uncategorized
Discussions of secession in the U.S. are weighed down with the baggage of the Civil War. This legacy may not just burden American’s view of secession as a domestic issue, but also the general concept. The U.S. has opposed secessionist tendencies abroad, even when they were obviously salutary, such as the break-up of the USSR […]
The Significance of West Coast Hotel v. Parrish: Originalism vs. Living Constitutionalism?
By David Bernstein on October 10, 2012 3:48 pm in Constitutional History, Constitutional Law, Constitutional Theory, Rehabilitating Lochner
In West Coast Hotel v. Parrish (1937), the Supreme Court upheld a minimum wage law for women, reversing two earlier contrary precedents. West Coast Hotel is often seen as the end of the so-called “Lochner era.” Some conservatives celebrate West Coast Hotel, not simply as a victory against “judicial activism,” but because the Court purportedly […]
Political Norms and the Unwritten Constitution
In a post commenting on recent guest-blogger Akhil Amar’s book The Unwritten Constitution, Gerard Magliocca suggests that the scope of the unwritten Constitution is broader than the book states: [M]y main criticism of the book is that I don’t like Amar’s definition of the unwritten Constitution. What do I mean by that? I mean that […]
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 […]
Larry Solum on the Countermajoritarian Difficulty
By Ilya Somin on September 10, 2012 11:20 am in Constitutional Theory, Democracy, Representation-Reinforcement
Georgetown law professor Larry Solum has an excellent post summarizing the ongoing debate over the “countermajoritarian difficulty,” one of the most common criticisms of judicial review. Solum summarizes the “difficulty” as follows: The counter-majoritarian difficulty may be the best known problem in constitutional theory… The counter-majoritarian difficulty states a problem with the legitimacy of the […]
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 […]
Echoes of Robert Hale
By David Bernstein on September 4, 2012 5:00 pm in Constitutional History, Constitutional Law, Constitutional Theory, Rehabilitating Lochner
Dale’s post below on Robert Delahunty’s claim that the end of slavery came at the cost of slaveholders’ freedom, and that likewise legally recognized same-sex marriage would come at the expense of the freedom of those who want to live in a society without such things, reminds me of the great Progressive legal and economic […]
Ed Whelan’s Critique of Posner’s Critique of Scalia
Well-known legal commentator and former Scalia clerk Ed Whelan has an interesting critique of Judge Richard Posner’s very negative review of Justice Scalia’s recent book on legal interpretation (coauthored with Bryan Garner).
The Top Ten Libertarian Supreme Court Decisions
By Ilya Somin on August 2, 2012 6:17 pm in Constitutional History, Constitutional Law, Constitutional Theory, Libertarianism
Damon Root of Reason has an interesting article giving his list of the “Top Ten Libertarian Supreme Court Decisions”: It’s no secret the U.S. Supreme Court has often been a disappointment to libertarians…. But that doesn’t mean the High Court always gets it wrong. Here, in no particular order, are 10 Supreme Court decisions still […]
Left, Right, and Judicial Review
By Ilya Somin on July 12, 2012 5:43 pm in Conservatism, Constitutional History, Constitutional Theory, Federalism, Health Care, Individual Mandate, Originalism
Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests […]