Constitutional Law

Dispatches from the Creation Wars

Category archives for Constitutional Law

The Supreme Court heard oral arguments in Gonzales v Oregon a couple days ago, a case where the federal government is asserting that the Controlled Substances Act (CSA) – or at least this administration’s interpretation of it – trumps the Oregon assisted suicide law, which was passed by popular referendum not once but twice (and…

Kuznicki on the Padilla Case

Yet another example of why Jason Kuznicki is one of the truly indispensible writers in the blogosphere. Jason blasts the indefinite detention of an American citizen without charges being filed, a flagrant violation of both the letter and the spirit of the constitution. He also shreds the excuses being made for that policy.

Jon Rowe has an excellent post at Positive Liberty looking at the views of Jack Balkin and Akhil Amar, one a “living constitutionalist” and the other a “liberal originalist”. He makes the important point that rejecting the Bork/Scalia version of originalism does not necessarily make one an advocate of “living constitutionalism”. Liberal originalism (liberal in…

Bad Reporting on the Roberts Case

One really has to wonder why an organization as large as the Associated Press can’t at least get someone with a legal background to write their reports on the confirmation hearings. It would help them avoid simple mistakes like this: Early in his testimony on Wednesday, Roberts’ second day of answering senators’ questions, the nominee…

Jonathan Bunch informs me that Dissent magazine has an interesting debate between three prominent constitutional scholars that they’ve made available on the web for free. Mark Tushnet, a contributor to Jack Balkin’s blog and con law prof at Georgetown, takes the position that judicial review – the authority of the Supreme Court to invalidate laws…

Marty Lederman has an essay on Jack Balkin’s page arguing that the recess appointment of John Bolton as our Ambassador to the UN is unconstitutional, as are almost all such appointments made not just by Bush but by Clinton and most presidents before him. I fully agree with him. Lederman authored several briefs for a…

Sandefur Reviews Barnett

Timothy Sandefur has a review of Randy Barnett’s book Restoring the Lost Constitution available on SSRN. It’s an excellent review that adds some additional background to Barnett’s work and the importance of the presumption of liberty. There are a couple of points I want to highlight from that review. One of the arguments one hears…

I’m on the ReligionLaw listserv moderated by Eugene Volokh, an email list of dozens of law profs around the country with the discussion focused on areas where religion and law intersect. Yesterday a discussion kind of veered off that subject and into the 9th amendment and libertarian legal theory, until Prof. Volokh herded us all…

Eminent Domain Loopholes

Timothy Sandefur has an op-ed piece in the Whittier Daily News pointing out the many loopholes in California law that allows property to be seized for redevelopemnt projects and the dishonesty used to claim that there are adequate safeguards currently. As my consulting firm prepares to put a referendum on the ballot here in Michigan,…

Mark Olson on Bork

Just noticed this very odd response by Mark Olson to my post about Robert Bork’s mythical martyrdom. Much of the rhetoric in Olson’s response would serve as a perfect example of how to execute the strategy known as poisoning the well, as he puts his own unique characterizations on events and pretends that I have…