Nelson Lund on Judge Wilkinson’s Judicial Restraint (Updated)
Michael Ramsey
Nelson Lund (George Mason University School of Law) has posted The Cosmic Mystery of Judicial Restraint: J. Harvie Wilkinson's Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Right to Self-Governance on SSRN. Here is the abstract: Judge Wilkinson’s new book attacks four prominent theories of constitutional adjudication on the ground that they have undermined the […]
Can the Federal Government Take State Property?
Mike Rappaport
Recently, Mike Ramsey had an interesting post on the Supreme Court case (Arkansas Game and Fish Commission v. United States) holding that a temporary flooding of land can be a taking. The case also stated that state government property can be private property under the Takings Clause. The Court based this conclusion on a 1893 precedent. Mike argues […]
More on Hollingsworth Standing
Chris Green (Guest Blogging)
As with standing in the Windsor case, I agree with much of what Mike Ramsey has to say about Hollingsworth, but again disagree with his ultimate conclusion, and for very similar reasons that I disagree with his ultimate conclusion about BLAG. Merely qua individuals who oppose gay marriage, initiative sponsors lack a personal interest sufficient […]
More On Windsor Standing
Chris Green (Guest Blogging)
I agree with much of what Mike Ramsey says about BLAG’s standing. Qua representative of Congress, it lacks authority to defend the interests of the United States. But the specific context of the Windsor litigation supplies reason to think that BLAG has been delegated authority to make arguments in favor of the constitutionality of DOMA […]
Standing, Originalism, and the Gay Marriage Cases
Mike Rappaport
The standing issues in the gay marriage cases have received some attention from Mike Ramsey, Neil Devins and Tara Grove, and Linda Greenhouse. Mike writes mainly from an originalist perspective, whereas the other authors adopt more eclectic approaches. While I haven’t studied the gay marriage cases closely, let me here give some preliminary thoughts from […]
Lincoln’s Signing of the 13th Amendment
Mike Rappaport
On Facebook, someone criticized the Lincoln movie for inaccuracy on the ground that the President said he wanted to sign the 13th Amendment, but presidents don't sign amendments. But the movie is correct: Lincoln signed the 13th Amendment. The interesting question is why? I can imagine various reasons. Here are three possibilities: First, Lincoln didn’t want to take […]
Lincoln: The Movie
Mike Rappaport
I caught Lincoln over the weekend, which I greatly enjoyed. Spielberg's directing, Kushner's writing, and a first rate cast make it a truly enjoyable movie. One test I have for a movie is how many times I look at my watch. I have to admit, in a two and a half hour movie, I never […]
The Effects of Replacing a Nonliberal Justice with a Liberal Justice
Mike Rappaport
Wilson Huhn has posted an article discussing in detail the likely effects if President Obama were to have the chance to replace any of the five nonliberals on the Supreme Court. Huhn argues that a large number of cases would be likely to be overturned. He basically divides up the cases into those that he […]
What Libertarians Think About the U.S. Constitution Part III: Shay’s Rebellion, Liberty, and a Stronger National Government
Mike Rappaport
This will be my third and final post on Jason’s Brennan post entitled What Do Libertarians Think about the U.S. Constitution (based on his new book). In my previous post, I argued that Jason ignored the significant possibility that a stronger federal government would further liberty because it would promote both peace and competition between the states. Here […]
Robert Pushaw: ObamaCare and the Original Meaning of the Commerce Clause
Michael Ramsey
The University of Illinois Law Review has published ObamaCare and the Original Meaning of the Commerce Clause: Identifying Historical Limits on Congress's Powers (2012 U. Ill. L. Rev. 1703 (2012)), by Robert J. Pushaw (Pepperdine University Law School). Here is the abstract: Article I of the Constitution authorizes Congress “to regulate Commerce among the several […]