The Slaughter-House Cases was a shocking reactionary retreat from what had been accomplished with the ratification of the Fourteenth Amendment. But it was not the first such case. Three years earlier, the California Supreme Court decided a similar case called People v. Brady, in which it declared that if the Justices thought the Amendment had been designed […]
Archive | Constitutional History
Jeremiah Black And The Wrecking of The Fourteenth Amendment
The first Supreme Court case to interpret the Fourteenth Amendment was the 1873 Slaughter-House Cases, in which a group of Louisiana butchers challenged the constitutionality of a state law requiring that all slaughtering be done at a single, privately-owned abattoir. They argued that this law deprived them of the right to earn a living without […]
The Recess Appointments clause: Amicus brief on original meaning based on State practices
By David Kopel on December 15, 2013 7:19 pm in Constitutional History, Constitutional Law, Originalism, Presidency
As VC readers know, an all-star cast of constitutional legal scholars, including three Volokhians, submitted an amicus brief in NLRB v. Noel Canning. Blog posts about that brief are here (pro forma sessions), here (“recess” and “session”) and here (“happen”). That brief focuses mainly on the text of the Constitution and interpretive practice, especially early […]
New Book: Toward an American Conservatism: Constitutional Conservatism during the Progressive Era
I contributed one chapter to this collection of essays. Not surprisingly, I wrote about Lochner and liberty of contract jurisprudence, and its uneasy relationship to constitutional conservatism. It’s an excellent book on an understudied topic. The one major impression I get from studying this general topic is that while the Progressives knew to a large […]
Knives and the Second Amendment
By David Kopel on November 23, 2013 6:14 pm in Constitutional History, Constitutional Law, Criminal Law, History, Militia, Non-Firearms Arms, Right to carry, Self-Defense
The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives. Now at the printer is the first […]
Ian Millhiser on Conservatism and the Judiciary
Over at ThinkProgress, Ian Millhiser has a piece on conservative and the judiciary that ranges over many decades and many topics. Unfortunately, much of it is very tendentious and sometimes just wrong. It’s too much to do a detailed critique, so I’ll be brief and limit myself to his general historical perspective. [DB: Sentences in […]
Posner on Lochner (UPDATED: Posner versus Posner?)
By David Bernstein on November 6, 2013 8:25 am in Constitutional History, Constitutional Theory, Rehabilitating Lochner
While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example. Posner writes in the California Law Review: The majority opinion in Lochner is […]
Richard Posner on the Rise and Fall of Judicial Deference
At the JOTWELL site, Emory law professor Charles Shanor reviews an important article by Judge Richard Posner on the rise and fall of “Thayerian” judicial deference to legislatures. Posner traces the history of James Bradley Thayer’s famous argument (first developed in the 1890s) that judges should only strike down a statute if its unconstitutionality is […]
More on African Americans Voting with Their Feet
By David Bernstein on October 28, 2013 1:45 pm in Constitutional History, Unions, Voting With Your Feet
Below, Ilya discusses the Great Migration of African Americans from the South to the North in the 1940s and 50s as an example of poor people “voting with their feet.” It’s that, though it’s a bit more complicated than that, too, because federal New Deal policies set out to limit acreage farmed in the South […]
Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?
By David Kopel on October 21, 2013 10:55 pm in Anonymity, Constitutional History, Constitutional Law, First Amendment, Originalism, Restrictions on Campaign Contrbs. and Expenses
My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right […]
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 […]
Curious Cases at the Supreme Court
That’s the title of my magazine-length article for the Phi Kappa Phi Forum. It begins: Every first-year law student learns that the United States Supreme Court only presides over real “cases” and “controversies,” according to the Constitution in Article III, Section 2. No matter how pressing the concern, the Supreme Court must wait for a […]
Brief Review of “The Great Dissent” by Thomas Healy (UPDATED)
I’ve just finished reading “The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America” by law professor Thomas Healy. The book has received sterling views, and happens to be directly related to something I’m writing about now, so I was looking forward to reading it. On the […]
Originalism and the Constitutionality of Military Intervention in Syria
By Ilya Somin on August 29, 2013 6:58 pm in Constitutional History, Constitutional Law, Originalism, War and Armed Conflict
At the Originalism Blog, Prof. Michael Ramsey, a leading academic expert on constitutional war powers, has an excellent post on the implications of the original meaning for the constitutionality of an attack on Syria without congressional authorization (quoting, in part, from a 2011 post he wrote during the debate over the Libya conflict): Every major […]
Suzanna Sherry on “Universally Condemned” Supreme Court Decisions
By Ilya Somin on August 25, 2013 8:55 pm in Constitutional History, Constitutional Law, Constitutional Theory
In her latest rejoinder in our debate about “judicial activism,” Prof. Suzanna Sherry helpfully clarifies her view on what qualifies as a “universally condemned” Supreme Court decision. This is important, because Sherry claims that we have more reason to fear excessive judicial passivity than excessive “activism” (which she defines as striking down laws or official […]