In My Opinion’s Wake

Burt Likko thinks that Citizens United and McCutcheon were correctly decided. But how can he square that conclusion with his recent Ordinary Court opinion?

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Sebelius v. Hobby Lobby Stores, Parts II and III: Dissenting and Concurring Opinion

Tim Kowal agrees the Greens have individual standing, but suggests the corporation is the appropriate party to assert their claims.

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Sebelius v. Hobby Lobby Stores, Part III: Justiciability of Individual Claims [Updated]

In Part III of the Ordinary Court’s treatment of the Hobby Lobby case, the Ordinary Justices’ voting pattern shifts, with dramatic results.

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Sebelius v. Hobby Lobby Stores, Part II: Justiciability of Corporate Claims

Part II of the opinion, dealing substantively with whether Hobby Lobby can state a claim for relief under the Religious Freedom Restoration Act.

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Sebelius v. Hobby Lobby Stores, Part I: Background and Standards of Law

The first part of the Ordinary Court’s treatment of one of this year’s most-publicized legal cases. To begin, we must understand the factual and legal landscape.

Let the Character Assassinations Begin

It comes with the territory obviously, but its predictability doesn’t make it any less ridiculous or frustrating. Jeffrey Toobin and David Brooks have fired the first shots, outlining the many failings of Edward Snowden because armchair psychologizing about a stranger based on a handful of public information is infinitely more interesting and important to them than…

The Text Is All We Have

Today’s story about the Justice Department obtaining two months’ worth of telephone records from the Associated Press, apparently without a warrant and without any sort of prior notice to the people or entity thus searched, gives me a good platform to respond (as promised) to fellow Ordinary Gentleman Tim Kowal’s cogent argument for “original public…

How do you interpret a constitution?

The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more than two and a quarter centuries ago thought “due process” was, or what a “reasonable search and seizure” was?  We can hardly get consensus on […]

How do you interpret a constitution?

The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more…

The Doomsday Provision

Note: This post is part of our League Symposium on Guns In America. You can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here. Why do we have the Second Amendment?  Wait, let’s back up.  Why do we have the First Amendment? …

Presuppositional Constitutionalism

Does the Constitution assume certain presuppositions on the part of those it means to govern?  If so, what are those presuppositions? I submit the answer to the first question is yes, and explain the presuppositions that by necessity must be true for our Constitution to be intelligible. In light of the project begun here recently…

Hexalogue

A certain kind of religious activist takes it as a given, and as an imperative, that the Decalogue must be displayed prominently on and in public buildings. Gratefully, these folks are rare; sadly, they have influence because few people want to be seen as opposing them. Which is why there are groups like the ACLU and the…

Our Unlovable Constitution

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right…

Can the Occupy Movement Tackle Crony Capitalism?

In a comment on Shawn Gude’s previous post on the main page about the Occupy movement, I asked who the “1%” is and whether Occupy protesters were primarily aggrieved about “Wall Street,” or whether they were aggrieved about “wealth inequality” more generally.  Commenter Michael Drew referred me to this post at Rortybomb entitled “Who are…

Tenthers, Precedent, and the Conflict of Interpretations

by Kyle Cupp Writing at ThinkProgress, Ian Millhiser explained and ridiculed what he and others have taken to calling “tentherism,” the interpretive framework of the “tenthers.” Their label brings to mind birthers, truthers, and possibly scruffy-looking nerf herders. I’d bet a nerf or two these associations are intended. Radley Balko called the label a smear…

Separation of Powers and the Filibuster

I go back and forth on what I think about the propriety of the filibuster for legislative purposes, although I’m inclined towards the view that the filibuster is on the whole a good thing under those circumstances. The announcement by Sen. Ben Nelson that he would not only oppose but filibuster Obama’s nominee for the…

Taxes: Where Political and Constitutional Expediency Collide

I’ve been out of pocket from the political realm for a week and a half, but President Obama’s claim that a health insurance mandate is not a tax strikes me as marginally good politics and absolutely terrible lawyering.  I think Jason Kuznicki (also here) and by extension Will, are absolutely, 100% correct that an individual mandate…

Returning the House (and the President) to the People

In my recently concluded interview with Publius from ObsidianWings on the role of the administrative state, a central question was how citizens can better hold the executive and legislative branches accountable and prevent regulatory capture.  It seems clear to me (although Publius may disagree) that these issues are closely related to the issue of growth…