Supreme Court Justice Anthony Kennedy recently explained that he does not perform marriages because of concerns about the implications for federalism [HT: Josh Blackman]: Justice Kennedy has written all three of the high court’s landmark opinions respecting gay rights, from Romer v. Evans in 1996– which struck down a Colorado voter initiative that abolished antidiscrimination […]
Archive | Federalism
Does The Treaty Power Threaten Our System of Limited Government?
By Nick Rosenkranz on October 29, 2013 3:27 pm in Constitutional Law, Federalism, Tenth Amendment, Treaties
Senator Ted Cruz and I will discuss. Heritage Foundation, Wednesday, October 30th, 11:00am. Details here. Video via Heritage and possibly C-SPAN.
My Response to Heather Gerken’s Comment on Democracy and Political Ignorance
By Ilya Somin on October 21, 2013 6:03 pm in Democracy and Political Ignorance, Federalism, Political Ignorance, Voting With Your Feet
Cato Unbound has posted my response to Yale Law School Professor Heather Gerken’s thoughtful critique of my book Democracy and Political Ignorance: Why Smaller Government is Smarter. Over the next day or two, they will also post my response to the insightful commentaries by Sean Trende of RealClearPolitics and political theorist Jeffrey Friedman. The conversation […]
A Market for State Borders
By Eugene Kontorovich on October 17, 2013 7:39 am in Constitutional Law, Constitutional Theory, Federalism, Legal Scholarship, Secession
Following up on my earlier post on parts of a state seceding to join another state, I’d like to call attention to a neat article by Joseph Blocher, coming out in the University of Pennsylvania Law Review, entitled “Selling State Borders.” It suggests such political redrawing can be accomplished through sales between states, and shows […]
Duquesne Federalist Society
By Dale Carpenter on October 14, 2013 10:22 am in Beyond DOMA, DOMA, Equal Protection, Federalism, Same-Sex Marriage
Tomorrow I’ll be discussing the Court’s decision in United States v. Windsor with Professor Lynn Wardle of BYU Law School. We’ll be there at the invitation of the Duquesne University Law School student chapter of the Federalist Society. The event begins at Noon.
How Best to Secede from a State
By Eugene Kontorovich on October 11, 2013 5:52 am in Constitutional Law, Constitutional Theory, Elections, Federalism, Originalism, Secession, Uncategorized
Some spirit of secession has spread across the land, with various areas in Maryland, Colorado, Texas, California and elsewhere discussing seceding from their states, because of political alienation arising from significant differences in values and preferences. I don’t take the political prospects of American secession movements too seriously, and assume their principal purpose is to […]
Why the Obamacare Case May not be “Settled Law”
By Ilya Somin on October 4, 2013 11:10 am in Constitutional History, Federalism, Health Care, Individual Mandate
Indiana University law professor Gerard Magliocca has an excellent Washington Post column on why the Supreme Court’s decision largely upholding the constitutionality of Obamacare may not be fully “settled law”: The Affordable Care Act was passed by Congress, signed by President Obama, upheld by the Supreme Court and reconfirmed by the president’s reelection. Many of […]
DOMA and Dignity
By Dale Carpenter on September 26, 2013 9:43 pm in Beyond DOMA, Federalism, Fifth Amendment, Gay Marriage, Same-Sex Marriage, Sexual Orientation
Why is the Defense of Marriage Act unconstitutional? Here are two propositions that United States v. Windsor might be thought to stand for: (1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or (2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex […]
Steven Teles on “Kludgeocracy” and the Role of Government in Society
By Ilya Somin on September 25, 2013 11:15 am in Federalism, Growth of Government, Political Ignorance, Public Opinion, Separation of Powers
In the fall issue of National Affairs, Johns Hopkins political scientist Steven Teles has an interesting article on what he dubs the problem of “kludgeocracy” in American government: In recent decades, American politics has been dominated, at least rhetorically, by a battle over the size of government. But that is not what the next few […]
The Obvious But Underappreciated Point About Federal Power and Equality
Mike Rappaport has a post at the Liberty Law Blog making a seemingly straightforward but surprisingly underappreciated point: There is good reason to think that the Fourteenth Amendment’s equality requirement was not originally meant to apply to the federal government. People frequently try to challenge various originalist views about equality by pointing to the actions […]
Is there a Generational Divide over “Judicial Restraint” Between Reaganites and Libertarians?
By Ilya Somin on September 19, 2013 4:23 pm in Conservatism, Federalism, Health Care, Individual Mandate, Judicial Power, Libertarianism
Various commentators such as Garrett Epps, Mark Tushnet, and recent guest-blogger Josh Blackman argue that there is a generational divide among right of center jurists between Reaganite advocates of “judicial restraint” and later, more libertarian figures who are less willing to defer to legislatures and more eager to strike down laws they consider unconstitutional. They […]
The Rise of Movements Seeking to Create New States Through Secession
Over the last week, secession movements seeking to create new states have made some progress in northern California and rural Colorado. Back in 2011, I wrote about the secession movement in southern California. All three movements are examples of rural jurisdictions seeking to secede from state governments they perceive as dominated by urban interests and […]
My JOTWELL Post on Will Baude’s “Rethinking the Federal Eminent Domain Power”
In my capacity as one of the editors for the constitutional law section of JOTWELL (a sited devoted to reviewing important new legal scholarship), I review an important new constitutional law article every summer. I usually try to pick articles that are 1) within one of my fields of expertise (primarily federalism and property rights), […]
Does Congress Have the Power to Enact A General Ban on the Use of Bugging Devices?
Since 1968, federal law has prohibited the use of bugging devices — secret microphones — to record private conversations. Here’s the relevant text: [A]ny person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any . . . oral . . . communication [is […]
The Relevance of the “Size or Commercial Nature” of a Marijuana Business
I agree with Ilya that DOJ’s new marijuana federalism memo leaves a lot to be desired, but there was point in it that I was pleased (and surprised) to see. The 2011 Cole memo about medical marijuana spoke very disparagingly about large, profitable operations: The Department’s view of the efficient use of limited federal resources […]