Constitutional Law

Leroy Rountree Hassell, Chief Justice

Posted on February 09, 2011
Leroy Rountree Hassell, Chief Justice of Virginia, 55, RIP -- a devastating loss to Virginia, and in particular to Regent University School of Law

Scalia, Obamacare, and the Necessary

Posted on February 09, 2011
Scalia, Obamacare, and the Necessary & Proper ClauseRobert Verbruggen has an interesting piece at NRO today arguing: in the Obamacare-a-geddon case that's presumably coming, don't worry about Kennedy, worry about Scalia: he's the one who has accepted, in detail, an expansive interpretation of the Necessary and Proper Clause, a clause that, though not itself an enumerated power of Congress,

Obamacare mandatory-purchase rule

Posted on December 13, 2010
Obamacare mandatory-purchase rule UNCONSTITUTIONAL, says U.S. Dist. Ct. E.D.Va.With nothing worse than a regrettable split infinitive to dampen the news, Judge Hudson finds the Commerce Clause does not authorize Congress to command individuals to make an involuntarily entry into the stream in interstate commerce...

Ed Whelan, at NRO's Bench Memos,

Posted on November 30, 2010
Ed Whelan, at NRO's Bench Memos, explains why Judge Stephen Reinhardt, the archliberal who has drawn a slot on the 9th Circuit's panel to hear the appeal in Perry, the Prop.8/same-sex marriage case, is obligated to recuse himself. And no, it's not just b/c his vote is so predictable (that is no ground for recusal).

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LOLFoundingFatherz!

Posted on November 27, 2010
LOLFoundingFatherz!

Summarizing Adarand: Strict scrutiny

Posted on November 24, 2010
Summarizing Adarand: Strict scrutiny applies to all racial classifications (federal and state/local, openly invidious and apparently benign); but strict scrutiny doesn't mean you're strictly screwed.

Via Above the Law: Justice Scalia's

Posted on November 20, 2010
Via Above the Law: Justice Scalia's remarks at Federalist Society conference dinner

I got a job with a large bank,

Posted on November 07, 2010
I got a job with a large bank, and I never again needed to shovel manure. Corporations use something called PowerPoint instead.-- Scott Adams, in today's Wall Street Journal

George Mason Univ. School of Law

Posted on November 06, 2010
George Mason Univ. School of Law [reverential pause] announces:Professor Neomi Rao and Professor Jeremy Rabkin participated in a panel discussion held in New York on Friday, October 22, as part of the International Law Weekend conference of the American Branch of the International Law Association...

Match wits with the Tribe!Progressives!

Posted on October 28, 2010
Match wits with the Tribe!Progressives! Thanks to Ed Whelan, of NRO and the Ethics and Public Policy Center, you can now compare your pre-Sotomayor, pre-Kagan SCOTUS picks with those of Prof. Larry Tribe! Are you too a master left-activist? Did you make the same picks, or if not, did you make better arguments for other ones?Here's what the master said...

Spent some time today reading briefs

Posted on October 07, 2010
Spent some time today reading briefs and the oral argument transcript in Snyder v. Phelps.Phelps and his "Westboro Baptist Church": that's the group -- believed by some Christians to be a cult, in the no-kidding sense -- that, when not carrying "God Hates Fags" signs, likes to hold protests within sight and hearing of military funerals proclaiming to the bereaved parents how glad they are that

Employment Division v. Smith:Respondents

Posted on September 15, 2010
Employment Division v. Smith:Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

Reynolds v. U.S.:[A]ccording as

Posted on September 13, 2010
Reynolds v. U.S.:[A]ccording as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection

Reynolds v. U.S.:[O]n the 8th of

Posted on September 13, 2010
Reynolds v. U.S.:[O]n the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that "all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,"

Just refreshed blogroll.

Posted on September 13, 2010
Just refreshed blogroll.

Rosenberger v. Rector: It's all

Posted on September 12, 2010
Rosenberger v. Rector: It's all about the NEUTS!

The dissent says that when the

Posted on August 27, 2010
The dissent says that when the Framers ?constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.? That is no doubt true. All the provisions of the Bill of Rights set forth the rights of individual men and women ? not, for example, of trees or polar bears...

The school year has started at

Posted on August 24, 2010
The school year has started at Regent!

Debating the value-of-law-school

Posted on August 21, 2010
Debating the value-of-law-school debateThere's been a lot of journalism lately about -- oh btw, journalism, you know? the profession I left in favor of law b/c I wanted more honesty and integrity in my work? Nothing has occurred in those 22 years to make me think I chose wrong -- about how law school supposedly "ain't worth it...

I've received a question from a

Posted on August 09, 2010
I've received a question from a distinguished reader about my post on Judge Walker's Perry decision. I received similar questions when I posted a link on fb, so evidently it's a question of a real ambiguity in my post, which I'm glad to have the chance to clarify...

"Proposition 8 fails to advance

Posted on August 04, 2010
"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."To paraphrase a famous rebuke by Orwell to a great but formerly reckless gay poet, this could have been written only by a judge to whom marriage is, at most, a word...

Josh Blackman blogs up and comments

Posted on July 24, 2010
Josh Blackman blogs up and comments on Prof. Randy Barnett's interview in the WSJ, on Raich, and the health-care individual mandate.

By way of a break from McDonald

Posted on July 20, 2010
By way of a break from McDonald v. Chicago...Jaffa, Bradford, Codevilla, and R. Stacy "The Other" McCainMy old Washington Times friend Robert Stacy McCain, now a major blogger, has a post at the The American Spectator's blog crediting me (accurately, I guess!) as instigator of a comment-fueled reminiscence about:* Prof...

"Unable to identify the Clause's

Posted on July 13, 2010
"Unable to identify the Clause's full scope"In describing the Court's 14th Am Due Process jurisprudence -- and here it's the Court speaking, not just the plurality -- the Court notes:The Court used different formulations in describing the boundaries of due process...

Back to McDonald v. ChicagoThe

Posted on July 13, 2010
Back to McDonald v. ChicagoThe crucial passage in the plurality section of the opinion (the critical holding -- that the 2nd Amendment applies to the states through the 14th and disallows a ban on personal possession of handguns -- is of course a holding of the Court) dealing with the Privileges or Immunities Clause is, I think, this:[P]etitioners are unable to identify the Clause?s full scope,

Souter's après-CourtA colleague

Posted on July 11, 2010
Souter's après-CourtA colleague sent me this link about the retired Justice's new half-mill spread in New Hampshire. Guess you can really sock away the doubloons as an Associate Justice when you don't have nine kids to put through college.Anyway, this got me thinking about what else he might do...

A declaration on the DeclarationThe

Posted on July 04, 2010
A declaration on the DeclarationThe United States is -- is, is, is: yes I know "states" is plural, but what part of "united" don't you understand? -- the only country I know of that dates its independence from the day it announced it, rather than from the day it won it on the battlefield (for us that would be October 19, 1781), or the day its independence was definitively agreed upon with the

Tomorrow, more about McDonald,

Posted on June 30, 2010
Tomorrow, more about McDonald, the gun case. In the meantime, Prof. Randy Barnett had an excellent op-ed on it in today's WSJ. Unfortunately Rupert Murdoch wants you to pay to read it online, so instead, I'm linking to a shorter version that Randy posted on SCOTUSBlog...

"As an historian, McConnell's a

Posted on June 30, 2010
"As an historian, McConnell's a good lawyer." So once said Prof. Mark Tushnet about Prof. and former Judge Michael McConnell, in regard to his scholarship on the Free Exercise Clause. And as a spin-doctor on the morning after an asteroid-hit, killed-the-dinosaurs Supreme Court loss, McConnell is still a good lawyer...

Welcome to the reader from Vilnius!

Posted on June 30, 2010
Welcome to the reader from Vilnius! When I saw that datapoint on the map, I thought, ah, maybe St. Petersburg, but... ah well, as Varlaam says:????? ??, ???? ??,??? ?????, ??? ?????,??? ??? ?????: ???? ? ????...

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