With regard to Jonathan’s post on Justice Scalia’s harsh words for Wickard, I’m not really surprised. Back in 1992, I surveyed the (admittedly relatively limited) literature on the commerce clause from conservative and libertarian scholars and concluded: There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the […]
Archive | Constitutional Theory
Should Courts Only Strike Down Laws as Unconstitutional if “People of All Political Persuasions” Agree?
In his most recent article defending the constitutionality of the individual mandate, Jeffrey Rosen claims that “[judicial] restraint requires deference to all laws passed by Congress and the states, regardless of whether they’re favored by liberals or conservatives, unless they violate principles that can be so clearly located in constitutional text and history that people […]
When is it Legitimate for Judges to Base Constitutional Decisions on their Perceived Legitimacy?
By Ilya Somin on May 24, 2012 10:00 am in Constitutional Theory, Health Care, Individual Mandate, Public Opinion
In a previous post, I argued that Supreme Court justices should not decide the individual mandate case based on the decision’s effect on their perceived “legitimacy.” Mark Tushnet asks, why not? [W]hy exactly shouldn’t [Chief Justice John Roberts] worry if he believes that a Court decision — any one, really — will impair the Court’s […]
Nonlegal Arguments for Upholding the Individual Mandate
By Ilya Somin on May 21, 2012 5:57 pm in Commerce Clause, Conservatism, Constitutional Theory, Federalism, Health Care, Individual Mandate, Public Opinion
Both sides in the individual mandate litigation have developed a wide range of legal arguments to support their position. Some defenders of the mandate have also emphasized several nonlegal reasons why they believe the Court should uphold the law. These arguments have gotten more emphasis since the Supreme Court oral argument seemed to go badly […]
The PPACA in Wonderland
By David Kopel on May 18, 2012 11:21 pm in Constitutional Law, Constitutional Theory, Federalism, Health Care, Individual Mandate
That’s the title of a new article by Gary Lawson and me, in Boston University’s American Journal of Law and Medicine, in a symposium issue on the PPACA. Except that unlike Alice, the PPACA neither becomes a Queen, nor wakes up to return to reality. Written before the oral argument, the article provides an overview […]
Constitutional Separation of Powers vs. Parliamentary Government
In this interesting recent op ed in Canada’s National Post , my George Mason colleague Frank Buckley argues that parliamentary systems of government are less likely to become dysfunctional than separation of powers systems such as that of the United States: Before Standard and Poor’s downgraded U.S. public debt, Barack Obama mused that the American […]
The Potential Impact of the People’s Rights Amendment Goes Far Beyond Restricting Freedom of Speech
By Ilya Somin on April 26, 2012 10:22 pm in Constitutional Amendments, Constitutional Law, Constitutional Theory, Freedom of Speech, Restrictions on Campaign Contrbs. and Expenses
Co-blogger Eugene Volokh has an excellent post on how the proposed People’s Rights Amendment threatens freedom of speech. But it’s important to recognize that the proposal goes far beyond denying free speech rights to entities organized as corporations. It would deny them all other constitutional rights as well. Section 1 of the proposed amendment states […]
Berman on the Unconstitutionality of the ACA’s Medicaid Provisions
By David Bernstein on April 13, 2012 7:45 pm in Constitutional Law, Constitutional Theory, Unconstitutional Conditions
Over at Balkinization, University of Texas law professor Mitch Berman has an elegant post explaining why he thinks the Medicaid provisions of the Affordable Care Act are unconstitutional. Put as briefly as possible, he argues that the states are not being compelled to accept and spend the money, but they are being coerced, and this […]
President Obama versus the Constitution
By David Kopel on April 2, 2012 11:54 pm in Congress, Constitutional History, Constitutional Law, Constitutional Theory, Counter-Terrorism Policy, Executive Branch, Federalism, Growth of Government, Habeas, Health Care, History, Individual Mandate, Jefferson, Judicial Power, Obama, Presidency, Public Opinion, Supreme Court, Uncategorized, War on Terror
President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was […]
Andy Koppelman wonders: Are people who disagree with him just stupid, or are are they insane?
By David Kopel on April 1, 2012 4:48 pm in Constitutional Law, Constitutional Theory, Health Care, Individual Mandate, Psychology, Uncategorized
For over the two years, the very intelligent and clever professors at Balkinization have been doing a great job up trying to come up with legal arguments in support of the health control law. Even people who were not persuaded by the arguments can see how they have contributed to the debate. The first item […]
Life Imitates Rehabilitating Lochner, Again
RL: Modern conservative constitutionalists, meanwhile, though dissenters in some ways from the orthodox interpretation of American constitutional history, also want to see themselves as part of a seamless jurisprudential tradition, and they venerate some of the same Progressive heroes as their liberal adversaries do…. In this tale, the good guys are Holmes, Frankfurter, and other […]
Reassessing Our Federal and State Constitutions
By Ilya Somin on March 8, 2012 11:27 pm in Constitutional Amendments, Constitutional Law, Constitutional Theory, Federalism, Voting With Your Feet
In this recent post, University of Texas constitutional law professor Sanford Levinson calls for a reassessment of our federal and state constitutions: [I]nstead of being fixated on what the Constitution means, one instead asks whether the Constitution, given a stipulated meaning that may in fact not be at all difficult to discern, is in fact […]
Larry Solum on Originalism and Political Ignorance
By Ilya Somin on March 6, 2012 6:39 pm in Constitutional Law, Constitutional Theory, Originalism, Political Ignorance
At the Legal Theory Blog, Georgetown law professor Larry Solum – a leading originalist scholar – has the following comments on my new paper, “Originalism and Political Ignorance”: If Somin is correct, his argument provides support for one of the core arguments of “Semantic Originalism,” that the success conditions of constitutional communication can be met […]
Originalism and Political Ignorance
My paper on “Originalism and Political Ignorance,” currently under submission to law journals is now available on SSRN. Here’s the abstract: Original meaning originalism may now be the most popular version of constitutional theory in the legal academy. The methodology has been endorsed by at least two Supreme Court justices and well-known scholars from across […]
Substantive Due Process News
By David Bernstein on February 22, 2012 4:06 pm in Constitutional History, Constitutional Law, Constitutional Theory, Originalism
(1) Discussion of SDP continues over at Cato Unbound. Too many interesting posts there to pick out one, so just start from Tim Sandefur’s lead essay and keep reading. (2) Professor Michael McConnell and Nathan Chapman have posted an article on SSRN, Due Process as Separation of Powers. The article cautions against “resorts to originalism […]