That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA […]
Archive | Constitutional Theory
Why Same-Sex Marriage Bans Qualify as Sex Discrimination
By Ilya Somin on February 7, 2012 8:35 pm in Constitutional Law, Constitutional Theory, Gay Marriage, Gay Rights, Originalism, Same-Sex Marriage, Sex Discrimination
Today’s Ninth Circuit decision striking down California’s Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal “rational basis” scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition […]
Constitutional Cliffhangers
By Prof. Brian Kalt, guest-blogging on January 24, 2012 8:18 am in Constitutional History, Constitutional Law, Constitutional Theory, Presidency
Hello Volokh Conspiracy readers! I’d like to thank Eugene for this opportunity to guest blog here about my new book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. Today I’ll have one post with a brief introduction, and another with an excerpt/discussion from one chapter. I’ll discuss a couple more chapters tomorrow and […]
Occupy Wall Street and Popular Constitutionalism
By Ilya Somin on January 20, 2012 3:44 pm in Constitutional Law, Constitutional Theory, First Amendment, Freedom of Speech, Popular Constitutionalism
The Occupy Wall Street movement is often seen as a left-wing counterpart to the Tea Party movement. Until recently, however, OWS has differed from the Tea Party in so far as it paid little attention to constitutional issues. By contrast, constitutional issues are a central focus of the Tea Party, which claims that the courts […]
Independence Institute brief on Medicaid mandate
By David Kopel on January 19, 2012 2:30 pm in Constitutional History, Constitutional Law, Constitutional Theory, Health Care, Spending Clause, Tenth Amendment
On behalf of the Independence Institute, Rob Natelson and I wrote an amicus brief on the Medicaid mandate currently before the Supreme Court. (The ACA requirement that states must drastically expand Medicaid eligibility, or lose all their federal matching funds for Medicaid.) Here’s the Summary of Argument: By imposing the Medicaid mandates in the Affordable […]
George Will on Newt Gingrich
I was thinking of writing a post on Newt Gingrich’s ill-advised attack on the judiciary. However, most of what I would have wanted to say is covered in this George Will column: When discussing his amazingness, Newt Gingrich sometimes exaggerates somewhat, as when…. he said, “People like me are what stand between us and Auschwitz”…… […]
Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination
By Jonathan H. Adler on December 14, 2011 4:18 pm in Constitutional Theory, Originalism, Sex Discrimination
Earlier this month, I posted on Steven Calabresi and Julia Rickert’s new paper, “Originalism and Sex Discrimination.” Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional. This is an important article, which has already received notice from Lawrence Solum […]
Whelan v. Calabresi & Rickert on Originalism and Sex Discrimination
By Jonathan H. Adler on December 3, 2011 9:15 am in Constitutional Theory, Originalism, Sex Discrimination
Last week, I noted the important new article by Stephen Calabresi and Julia Rickert making an originalist case for the unconstitutionality of sex discrimination. In short, they argue that the 14th Amendment is best understood as prohibiting caste legislation, not just racial discrimination, and that it must be read in light of subsequent amendments, the […]
An Originalist Argument for the Unconstitutionality of Sex Discrimination
By Jonathan H. Adler on November 27, 2011 11:30 am in Constitutional Theory, Originalism, Sex Discrimination
It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment. Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination […]
Bleg: The American Revolution as a guide to modern law
The American Revolution took place because of various abuses of the rights of Americans by the British government. So when we seek to understand the rights of citizens in the nation that was created by that Revolution, one useful guide is looking at the negative example of what the Americans were revolting against. For example, […]
The Subjects of the Constitution — Final Thoughts
By Nick Rosenkranz on September 24, 2011 1:02 am in Constitutional Amendments, Constitutional Law, Constitutional Theory
This week, I have argued that the great overlooked question in constitutional law is the who question: who is bound by each clause and so who may violate it? These posts have attempted to answer this question for many of the most important clauses. They have also attempted to sketch some of the implications of […]
The Objects of the Fourteenth Amendment
By Nick Rosenkranz on September 23, 2011 11:55 pm in Constitutional Amendments, Constitutional Law, Constitutional Theory
This week, I have argued that the great overlooked question in constitutional law is the who question: who has allegedly violated the Constitution? The question is important, first, for simple reasons of constitutional accountability: if you care about the Constitution, you should care about who is violating it. But it is also important because it […]
The “Whole Constitution Pledge” Revisited
By Ilya Somin on September 23, 2011 10:05 pm in Constitutional Amendments, Constitutional Law, Constitutional Theory
David Gans of the Constitutional Accountability Center, the liberal organization that originated the “Whole Constitution Pledge” has a post commenting on various criticisms of the Pledge, including those by Eugene Volokh, Jonathan Adler, and myself: To take back America’s charter from the Tea Party, Constitutional Progressives – an initiative launched by the Constitutional Accountability Center […]
The Objects of the Constitution
On Monday, I pointed out a euphemism of constitutional discourse. We are in the habit of saying “this statute violates the Constitution” (either “facially” or “as-applied”), when what we mean is that some government actor violated the Constitution — Congress, the President, a federal court, a state official. The euphemism is bad, I argued, because […]
The Subject of the Commerce Clause
In light of some of the comments and questions on my prior posts, it might be helpful to take a step back and explain exactly what puzzle I started out trying to solve. For this discussion, we will use an example near and dear to the Conspiracy’s heart: the scope of the Commerce Clause, and […]