Do the Feds Belong in Indian Adoption Law? (Together with another Natelson citation in the Supreme Court and an acknowledgment of Lisa Morris)
(Note: This is the second of several short commentaries on recent Supreme Court decisions.) There is little more heart-rending than the sorrow of a child. The sorrow of a child—and of her adoptive parents—created one of the Supreme Court’s more compelling cases this term. I was happy to be cited extensively in one of the […]
The Myth of the “Conservative Supreme Court”
Is the current U.S. Supreme Court conservative? No, it is not. And certainly not if you define “conservative” as interpreting the Constitution according to the understanding of the makers. The claim that the Court has a conservative majority is certainly widespread. Googling the phrase “conservative supreme court” turned up over 38 million hits. The more […]
The greatly misunderstood Chief Justice John Marshall
One of the most enduring myths in American constitutional history is that Chief Justice John Marshall was a judicial activist whose decisions are good precedent for the modern federal monster state. Marshall was the fourth chief justice of the U.S. Supreme Court (third, if you don’t count John Rutledge, a recess appointment who was never […]
Supreme Court’s New First Amendment Decision Unrelated to the First Amendment
Commentators and journalists sometimes describe the current U.S. Supreme Court as “conservative.” But that’s not true if your definition of a conservative justice is a traditional or “originalist” jurist—that is, one who applies the Constitution as the American people understood it when they adopted it. Consider, for example, the Court’s latest First Amendment case. The […]
Why United States v. Miller Was So Badly Written
Originally published on Volokh.com Before District of Columbia v. Heller, the 1939 decision United States v. Miller was the Supreme Court’s leading decision on the Second Amendment. Miller was, to put it mildly, obliquely written. As Michael O’Shea has detailed, the opinion seems mainly concerned with whether the gun in question was a militia-type weapon, which […]
Goodwin Liu on the Second Amendment
Originally published on Volokh.com Boalt Hall Associate Dean Goodwin H. Liu has been nominated to serve on the 9th Circuit Court of Appeals. Some readers and Senators may be interested in his viewpoint on Second Amendment and other constitutional issues related to firearms policy. So here’s an excerpt from his article Separation Anxiety: Congress, The Courts, And The […]
McDonald Amicus: Don’t Trust Fairman and Berger
Originally published on Volokh.com Erik S. Jaffe has written a very interesting brief for the CalGuns Foundation. In short, the argument is: “Charles Fairman’s and Raoul Berger’s Work on Fourteenth Amendment Incorporation of the Bill of Rights Is Deeply Flawed, Inaccurate, and Should Not Be Relied Upon by this Court.” To make a long story short, during the […]
Congressional Brief in McDonald v. Chicago
Originally published on Volokh.com Available here. Joined by 58 Senators (including 19 Democrats) and 251 U.S. Representatives (including 78 Democrats, although my count here may not be exact). Counsel of Record is former Solicitor General Paul D. Clement. Much of the brief recapitulates the lengthy historical record of congressional action (including but not limited to Reconstruction) […]
Cato Brief in McDonald v. Chicago
Originally published on Volokh.com Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as […]
NRA Brief in McDonald v. Chicago
Originally published on Volokh.com Last night, Orin noted the filing of the Petitioner’s brief in McDonald v. Chicago, the case that will decide whether the 14th Amendment makes the 2d Amendment applicable to state and local governments. As Orin noted, that brief is almost entirely devoted to incorporation under the Privileges or Immunities clause. It directly […]
Milton Friedman’s Vision in a Time of Crisis
Remarks Prepared for the Milton Friedman Birthday celebration, sponsored by the Friedman Foundation and the Independence Institute.
