The Supreme Court has now incorporated the Second Amendment against the states. But the impact of that decision may turn out to be fairly limited. In most states, there will be little if any change in the actual extent of gun regulation. The ideologically divided nature of the Court’s decision suggests that the legal status […]
Archive | Constitutional Theory
Why Not the Privileges or Immunities Clause?
By Ilya Somin on June 28, 2010 4:04 pm in Constitutional History, Constitutional Theory, Guns, Originalism
In today’s Supreme Court decision incorporating the Second Amendment against the states, the four justice plurality opinion used the Due Process Clause of the Fourteenth Amendment to justify its ruling rather than the Privileges or Immunities Clause. As various commentators, including co-blogger Randy Barnett, have pointed out, it is strange that four conservative justices supposedly […]
Is Originalism for Progressives?
By Jonathan H. Adler on June 21, 2010 9:01 am in American Constitution Society, Constitutional Theory, Originalism, Uncategorized
In remarks at this weekend’s annual convention, American Constitution Society executive director Caroline Fredrickson reportedly characterized originalism as a “choking weed,” part of a “noxious brew” of ideology promoted by the Federalist Society. Was this remark a categorical rejection of originalism, or simply a rejection of those modes of originalism employed by conservatives? Her reported […]
Public radio program on the modern states’ rights movement
By David Kopel on April 8, 2010 12:22 am in Constitutional History, Constitutional Theory, Federalism
Today KUER, Salt Lake City, devoted an hour to discussion of the current surge of interest in states’ rights. The four participants each appear in a different quarter of the program. The guests were Utah State Representative Ken Sumsion, me, Chip Ward (who claims that the state’s rights advocates are not sincere) and Alison LaCroix of the University […]
Destroying the Constitution’s Structure is not Constitutional
By David Kopel on April 2, 2010 3:38 am in Constitutional History, Constitutional Theory, Federalism, Fourteenth Amendment, Health Care, Militia, Taxes
Thus far, the argument among law professors over the constitutionality of Obamacare has been well represented by scholars who have made pro and con arguments over particular clauses in the constitution, such as the interstate commerce clause, or the tax power. In this post, I would like to examine an insight by Jonathan Turley, which […]
A Message from/to Rick Hills
By Randy Barnett on March 28, 2010 7:18 pm in Commerce Clause, Constitutional Theory, Federalism, Fourteenth Amendment
I thought Volokh readers might enjoy an email exchange I had earlier today with NYU lawprof Roderick Hills earlier: Hi Randy — I thought I’d send along a recent blog post at Prawsblog that gives you, Cato, Ilya, etc some flak in a good-natured way. (Brian Galle also has a post on health care federalism […]
Goodwin Liu on the Second Amendment
By David Kopel on February 25, 2010 8:58 pm in Congress, Constitutional Theory, Fourteenth Amendment, Guns, Judicial Nominations, Legal Professor
Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law […]
Interpretation/Construction Again
Mike Rappaport updates his original post on the interpretation and construction distinction with this: What is clear is that the four constructionists emphasize different things, appear to be motivated by different concerns, and describe their positions differently. That is what I meant by saying that the different scholars “had different conceptions of construction.” Larry [Solum] […]
Whence Comes Section One? (Second Notice)
By Randy Barnett on January 26, 2010 2:42 pm in Civil Rights, Constitutional Theory, Fourteenth Amendment, History, Originalism
Last week, when I posted a link to my new article, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, I received several messages telling me that SSRN was inaccessible. Presumably, it is working now, so if you were unable to download it, you should try again. Here is the link, and here […]
Are there Areas of Consensus Among Constitutional Law Scholars?
Orin’s follow-up to my post arguing that there is no expert consensus on the constitutionality of the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that “you can pretty much always find someone to say a controversial law is unconstitutional.” It is probably true that […]
The Myth of an Expert Consensus on the Constitutionality of Anything
As a minor follow-up to Ilya’s post below on the lack of consensus among constitutional scholars about the constitutionality of the individual mandate, I would ask a question: Is there a consensus among constitutional scholars about the constitutionality of anything? The only thing I can think of is Brown v. Board. Everyone agrees school segregation […]
The Constitutionality of an Individual Mandate — A Reply to Sen. Baucus
By Jonathan H. Adler on December 23, 2009 3:28 pm in Commerce Clause, Congress, Constitutional Theory, Health Care
Yesterday, on the Senate floor, Senator Max Baucus quoted my August 22 VC post on the constitutionality of an individual mandate. Specifically, he quoted the following passage: In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation […]
Privileges or Immunities Extravaganza
By David Kopel on December 21, 2009 3:45 pm in Constitutional History, Constitutional Theory, Fourteenth Amendment, Guns, Supreme Court
On March 2, the Supreme Court will hear oral argument in McDonald v. Chicago, a challenge to the handgun bans in Chicago and Oak Park. The Question Presented by the Court asked if the bans should be considered unconstitutional under the Fourteenth Amendment’s Due Process clause, or under the Privileges or Immunities clause. There’s been […]
Senator Hatch & Stuart Taylor on the Constitutionality of an Individual Health Insurance Mandate
By Randy Barnett on December 14, 2009 10:00 am in Commerce Clause, Constitutional Theory, Health Care, Supreme Court
On Friday, Senator Hatch gave a major speech on the floor of the Senate on the unconstitutionality of a federal health insurance mandate that readers may find very interesting. Although the Senator favorably mentions my Heritage legal memorandum and introduced it into the Congressional record, his presentation of the constitutional problems with a mandate is […]
Video of Heritage Session on Constitutionality of Health Care Mandate
By Randy Barnett on December 9, 2009 6:45 pm in Commerce Clause, Constitutional Theory, Uncategorized
Senator Hatch, Eugene Volokh and me.