Tag Archives: Constitutionalism


For Federal Power, Does the Mechanism Matter?

If, come June, the Supreme Court decides to strike down ObamaCare’s individual mandate, they’ll accomplish something almost unique in the Court’s history, but not for the reason you think. We expect the Court to strike down unconstitutional laws; even conservatives agree with that proposition (for now). What we don’t often see is a Supreme Court willing to invalidate a […]


Originalism and Judicial Restraint, Incompatible as Applied

Public Discourse prints a problematic defense of originalism as a mode of constitutional interpretation, occasioned by a recent book by Judge Wilkinson of the Fourth Circuit, who candidly admits to its shortcomings. Per Gregory Sullivan, originalism shares none of the subjectivity of competing constitutional ideologies, and so should be above reproach: Whereas Brennan, Ely, and Posner advance theories that inevitably […]


The Dangers of Constitutional Theology

Rick Santorum’s surprising return to relevance should justify a second look at some of his… crazier beliefs. This The New York Times ably provides, per Molly Worthen, who questions whether his prolonged discussions of “natural law” are anything other than a way to sell Catholic-style theocracy to Tea Party-infused Republicans. I’m more troubled by his […]


The Law of the Constitution

By all accounts, today in Iowa, Speaker Gingrich goes to face a great defeat, with pundits expecting him to lose by something close to double digits to both the ideologically vacant Mitt Romney, and faux-constitutionalist crank Ron Paul. Gingrich’s fading fortunes come as a credit to the intelligence of Iowa caucus voters, but the continued […]

Mississippi Does the Right Thing for Once

Mississippi voted down a constitutional amendment to declare that fetuses are persons as of the moment of conception. Good! Remember, these sorts of things are just all kinds of unconstitutional. Congratulations then to Mississippi’s taxpayers, for avoiding the inevitable, expensive, necessary, but avoidable litigation that would’ve resulted.

Whither the Monarchy

Just when it’s most relevant — with a wedding freshly concluded — Andrew Sullivan, and others, attempt to make a case for the continuance of the British monarchy. The argument is that distinguishing the head of government and the head of state makes it easier to be anti-government, without being anti-state; with reference made to […]

The Danger Behind Republican Constitutional Storytime Moment

Like a middle school sleepover, House Republicans will begin their tenure in the 112th Congress with a good cry and storytime, where members will alternate reading the Constitution aloud to each other. It’s one of the more pathos-laced moments ever planned in modern politics, and concerning for what it says about the national discourse on […]

Ninth Circuit Takes the Path of Least Resistance, or: How the Separation of Powers Saved Gay Rights in California

On appeal from Judge Walker’s lengthy, well-defended decision holding California’s Proposition 8 invalid for unconstitutionally relying exclusively on voter antipathy towards their fellow citizens — seriously, I can’t believe this is a rule we even have to have — the Ninth Circuit punts. Professor Volokh excerpts the relevant parts of the order. In brief, the […]

Regulations are Unconstitutional? Conservative Legal Theories, and Re-Engaging at the Constitutional Level

Apologies for posting delays and failures, all necessitated by the ridiculous steps one must take, and time one must expend, to get into New York City this week. Thomas Sowell, one of the National Review’s favorite legal commentators, comes up with a novel way to oppose the government’s new offer to pay for voluntary end-of-life […]

Repeal Amendments: Experiments in Recidivism

For a sect so committed, in name at least, to the utmost constitutional fidelity, tea party groups seem bizarrely capable of questioning the very most basic tenets of American constitutionalism. And with surprising frequency. The latest example, which I wouldn’t mention except that I’ve had it cited to me several times now, and seen it […]


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