Last week, I defended President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act, on the grounds that the administration has concluded that it is unconstitutional. Although I disagree with some of the administration’s specific legal arguments in this case, I think the president’s duty to defend the Constitution supersedes his […]
Archive | Constitutional Theory
Do Presidents Have a Duty to Defend the Constitutionality of Laws they Believe to be Unconstitutional?
By Ilya Somin on February 23, 2011 11:45 pm in Constitutional Law, Constitutional Theory, DOMA, Executive Branch, Gay Marriage
The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that […]
More on DOMA
AG Holder’s memo explaining why Justice is declining to defend DOMA begins, “After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally […]
Foot Voting, Political Ignorance, and Constitutional Design
By Ilya Somin on January 20, 2011 10:30 am in Constitutional Theory, Federalism, Political Ignorance
My new article “Foot Voting, Political Ignorance, and Constitutional Design,” was recently published as part of a symposium on “What Should Constitutions Do?” in Social Philosophy and Policy, a journal published by Cambridge University Press. The article is available here. Here is the abstract: The strengths and weaknesses of federalism have been debated for centuries. […]
Constitutional Doctrine and the Constitutionality of Health Care Reform
I’ve been following the debate both at the VC and elsewhere, and find myself somewhat amused at the law professor conceit that the constitutionality of the individual mandate will be determined based on whether the “best” interpretation of USSC precedent supports it or not. Here’s my take: What the opponents of the individual mandate had […]
Orin’s Post on Normative and Descriptive Readings of Constitutional Law
Orin writes, We can all agree that there are two different questions: (1) How courts actually have interpreted a provision of the Constitution (and thus how a good lower-court judge would apply it) and (2) How courts should have interpreted that provision based on whatever theory of constitutional interpretation a person adopts. Those are indeed […]
Distinguishing Descriptive From Normative Readings of Constitutional Law
In a recent comment thread, commenter Leo Marvin asked an interesting question on why it is so common to blend together interpretations of what constitutional law “is” with what constitutional law “should be.” That is, why is it so common for people to infuse their readings of the current state of constitutional law with their […]
Assessing the Very Limited Impact of McDonald and Heller on Gun Regulations
By Ilya Somin on December 6, 2010 6:36 pm in Constitutional Theory, Guns, McDonald v. City of Chicago
When the Supreme Court for the first time recognized the existence of an individual right to bear arms in District of Columbia v. Heller in 2008, I warned that the decision might well end up giving gun owners very little new protection against regulation: The Supreme Court may have endorsed an individual right under the […]
What Did James Madison Think about Blogs?
By Jonathan H. Adler on November 22, 2010 10:18 am in Blogosphere, Constitutional Law, Constitutional Theory, Originalism
Are bloggers the 21st century equivalent of political pamphleteers? Would James Madison have had one? I don’t know. But I do know that several faculty members at the University of San Diego School of Law’s Center for the Study of Constitutional Originalism have launched “The Originalism Blog.” This blog won’t endeavor to answer the question in this […]
Three Goals of a Constitutional Theory
I wanted to follow up my recent post on Constitutional Theory Debates in a Nutshell by talking about what seems to be the core difficulty with grand constitutional theories — that is, single overarching methodologies to construe the Constitution. In my view, the core difficulty is that constitutional theories must satisfy three competing and often […]
Are Right and Left Changing Where They Stand on Standing?
By Ilya Somin on August 18, 2010 10:00 pm in Conservatism, Constitutional Law, Constitutional Theory, Gay Marriage, Health Care, Standing
Traditionally, conservative scholars and judges have advocated narrow views of constitutional “standing”: the level of “interest” litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view: constitutional rights should not be denied based on […]
Constitutional Theory Debates in a Nutshell (Or a Lot of Them, Anyway)
In Year Zero, a new constitutional provision is enacted that has two provisions, A1 and B1. In Year X, provisions A1 and B1 no longer seem to make as much sense as they did in Year Zero. Soon after, the Supreme Court interprets A1 to mean A2 and B1 to mean B2. A few decades […]
Vermeule on Living Constitutionalism
Adrian Vermeule, who is one of my favorite legal scholars writing today, has this interesting review in The New Republic of new books on constitutional interpretation by David Strauss and the trio of Goodwin Liu, Pam Karlan, and Chris Schroeder. Thanks to Howard for the link.
The Second Treatise of Government, by the Political Philosopher Barbie
H/T Instapundit and Frank Warner. So sayeth Barbie in Toy Story 3, and speaking on behalf of toys: “Authority should derive from the consent of the governed, not from the threat of force!”
Constitutional Rights that Put Lives at Risk
In his dissent in McDonald, signed by three liberal justices, Justice Breyer argues that gun rights deserve little or no judicial protection at least in part because they put lives at risk: Unlike other forms of substantive liberty, the carrying of arms for that purpose [self-defense] often puts others’ lives at risk…. And the use […]