Hello, Conspiracy! This week, I will be guest-blogging about a new model of constitutional review. The first two installments — The Subjects of the Constitution and The Objects of the Constitution — were recently published in the Stanford Law Review, and the comprehensive version is forthcoming next year as a book by Oxford University Press. […]
Archive | Constitutional Theory
Should We Support the “Whole Constitution”?
By Ilya Somin on September 18, 2011 10:53 am in Constitutional Amendments, Constitutional Law, Constitutional Theory
Co-bloggers Eugene Volokh and Jonathan Adler have made some powerful criticisms of the “Whole Constitution Pledge”put together by various liberal organizations. As Jonathan points out, there are some parts of the Constitution that most liberals prefer to underenforce, if not completely repudiate. I would go further than that and note that at least a few […]
Does requiring the people of a state to vote on tax increases violate the Republican Form of Government guarantee?
By David Kopel on September 8, 2011 8:32 pm in Congress, Constitutional History, Constitutional Law, Constitutional Theory, Democracy, Election Law, Supreme Court
That’s the question raised by a lawsuit in Colorado’s federal district court, in the case of Kerr v. Hickenlooper. In an amicus brief, I suggest that the answer is “no.” The brief relies heavily on the scholarship of my Independence Institute colleague Rob Natelson, who happens to be the leading scholarly expert on the Guarantee […]
Claeys on Obamacare and the Limits of Judicial Conservatism
By David Bernstein on June 27, 2011 7:08 pm in Constitutional Law, Constitutional Theory, Health Care
My colleague Eric Claeys has a very interesting piece in National Affairs. The hook is the future USSC decsion on Obamacare, but the meat of the piece is an explanation of the divergent strands of modern constitutional conservatism: To understand contemporary “judicial conservatism” and its ambiguities, it is helpful to describe it as a series […]
More on the Thirteenth Amendment and the Definition of Involuntary Servitude
By Ilya Somin on June 21, 2011 6:40 pm in Constitutional History, Constitutional Law, Constitutional Theory
In a recent post, co-blogger Eugene Volokh reasserts the view that the text of the of the Thirteenth Amendment’s ban on “involuntary servitude” does not cover traditional state-imposed “duties of citizenship” such as mandatory military service and possibly even mandatory road work. I think matters are not so simple as that. Eugene’s argument and others […]
The Seventh and Thirteenth Amendments, and Ambiguous Constitutional Text
“A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” — Oliver Wendell Holmes Many commenters on the Thirteenth Amendment, the draft, jury service, and compulsory road work […]
How Much Good Could a Good Leader Do?
By Ilya Somin on June 1, 2011 3:30 pm in Constitutional Theory, Democracy, Libertarianism, War on Drugs
Libertarians, economists, and my fellow constitutional theorists are all known for arguing that the conventional wisdom overstates the importance of individual political leaders. Instead, we emphasize the the constraining impact of institutions, public opinion, and political incentives. The structure of the system matters a lot more than the individual leader. Libertarian economist Bryan Caplan, however, […]
The Tea Party Movement and Popular Constitutionalism
By Ilya Somin on May 31, 2011 10:30 am in Conservatism, Constitutional Law, Constitutional Theory, Democracy, Libertarianism, Political Ignorance
My article, “The Tea Party Movement and Popular Constitutionalism,” is now available on SSRN. It is part of a recent Northwestern University Law Review Colloquy symposium on the Constitutional Politics of the Tea Party Movement. Here is the abstract: The rise of the Tea Party movement follows a period during which many scholars have focused […]
Fourth Circuit Sideshow
The individual mandate challenge in the Fourth Circuit drew three judges appointed by Democrats, two by President Obama. Since James McReynolds retired from the Supreme Court in 1940, I believe that no judge appointed by a Democratic president has recognized any identifiable judicially-enforceable limits to Congress’s power to regulate interstate commerce [I wrote that in […]
Northwestern University Law Review Colloquy Symposium on the Constitutional Politics of the Tea Party Movement
By Ilya Somin on April 23, 2011 12:27 am in Constitutional Law, Constitutional Theory, Democracy, Political Ignorance
The Northwestern University Law Review Colloquy has posted a symposium on “The Constitutional Politics of the Tea Party Movement.” The symposium was organized by Richard Albert of Boston College, who arranged a panel on the subject at this year’s AALS conference and wrote an introduction available here. The symposium includes contributions by well-known constitutional law […]
The One and Only Substantive Due Process Clause
By David Bernstein on March 23, 2011 7:48 pm in Constitutional History, Constitutional Law, Constitutional Theory, Originalism, Rehabilitating Lochner
Attorney Ryan Williams recently published an article in the Yale Law Journal called “The One and Only Substantive Due Process Clause.” It’s pathbreaking. Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, […]
Obama Administration Claims that the Libya Intervention is Constitutional Because it is Not a “War”
By Ilya Somin on March 23, 2011 12:02 am in Constitutional Law, Constitutional Theory, War and Armed Conflict
Charlie Savage of the New York Times reports that the Obama Administration is arguing that the Constitution does not require congressional authorization for the Libya intervention because it is not a “war,” but merely some smaller scale of military action: “The president does not have power under the Constitution to unilaterally authorize a military attack […]
Jack Goldsmith on the Constitutionality of the Libya Intervention
By Ilya Somin on March 22, 2011 5:17 pm in Constitutional Law, Constitutional Theory, War and Armed Conflict
Harvard law professor Jack Goldsmith, a leading constitutional law and international law scholar, has an article in Slate defending the constitutionality of President Obama’s use of force against Libya without congressional authorization. I am a big fan of Goldsmith and his academic work. He’s one of the leading scholars in his field. In this case, […]
Does US Military Action Against Gaddafi Require Congressional Authorization?
By Ilya Somin on March 20, 2011 5:36 pm in Constitutional Law, Constitutional Theory, Separation of Powers, War and Armed Conflict
Several liberal Democratic members of Congress are claiming that President Obama’s decision to use force against Libyan dictator Muammar Gaddafi requires congressional authorization: A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on […]
Capitol Hill Panel on President Obama’s Decision Not to Defend DOMA
By Ilya Somin on March 15, 2011 10:05 pm in Constitutional Law, Constitutional Theory, Executive Branch, Gay Marriage
This Thursday, I will be taking part in a Federalist Society panel on President Obama’s decision not to defend DOMA in Court. Edward Whelan, President of the Ethics and Public Policy Center and prominent legal blogger for National Review, will be on the panel with me, and my colleague Neomi Rao will moderate. The panel […]