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Why McCulloch v. Maryland – now 200 years old – is not a “big government”...
This year marks the 200th anniversary of the Supreme Court’s ruling in McCulloch v. Maryland. In that case, Chief Justice John Marshall upheld Congress’s power to charter a national bank—a distant...
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Originalism, the Fourth Amendment, and New Technology
One of the important issues for originalism is whether it can be applied to new circumstances that were not envisioned at the time of the original Constitution. Perhaps this issue is encountered most...
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Federal Appeals Court: Warrantless Data Collection Is Constitutional
The Second Circuit Court of Appeals issued an opinion that domestic data gobbled up by the National Security Agency (NSA) under Section 702 of the Foreign Intelligence Surveillance Act (FISA) and PRISM...
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Clearing up the confusion about Marbury v. Madison
It is true that the Constitution does not expressly say that the federal courts have the power to strike down acts of Congress which are unconstitutional. What Article VI of the Constitution does say,...
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A Defense of the Electoral College
My career shows an interesting pattern: Although law journals at “prestige” law schools—which are overwhelmingly liberal and anti-originalist—usually refuse to publish my scholarship, they frequently...
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Recess Appointments and Presidential Adjournments
At Volokh Conspiracy, Josh Blackman comments on President Trump’s suggestion that he might adjourn Congress as a way of filing vacancies for which the Senate has not confirmed a nominee. President...
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Another Case Shows the Supreme Court Doesn’t Protect Liberty
The Supreme Court handed down another opinion eroding the Fourth Amendment in a case that should have never gone to the federal court. Kansas v. Glover revolves around a traffic stop by Douglas County...
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The Incorporation Doctrine and the Bill of Rights
In a previous Constitution 101 post, I established that the Bill of Rights was not originally intended to apply to the states. But lawyers and other supporters of federal courts policing rights at the...
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The Supreme Court’s Dereliction of Duty on Qualified Immunity
by Jay Schweikert, CATO Institute Monday morning, the Supreme Court denied all of the major cert petitions raising the question of whether qualified immunity should be reconsidered. This is, to put it...
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Three Supreme Court Cases that Twisted the Commerce Clause
Despite the words that make up the commerce clause and necessary and proper clause remaining constant over the past two centuries, the Supreme Court’s interpretation of their meaning and reach has not....
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Federal Judge Blasts Qualified Immunity then Grants it Anyway
Another local cop got away with abusing an individual’s rights thanks to qualified immunity and the incorporation doctrine. U.S. District Court Judge Carlton W. Reeves wrote a stinging rebuke of the...
View ArticleCan the Government Force Us to Eat Broccoli?
With President Donald Trump’s nomination of Judge Amy Coney Barrett to the Supreme Court, the Affordable Care Act — Obamacare — is back in the news. Barrett expressed constitutional misgivings about...
View ArticleFederal Courts Fail Again in Washington Gun Case
Conservatives and libertarians often turn to the federal courts to “protect their rights” through an application of the Bill of Rights to the states. This is a bad strategy. Most of the time it fails,...
View ArticleHow One Landmark Case Shaped the Commerce Clause
In some ways, John Marshall’s opinion in Gibbons v. Ogden expanded federal power using expansive definitions of various words in the Commerce Clause. But future courts ignored an important limiting...
View ArticleFederalism Gets the Bird for Thanksgiving
In what many consider a Thanksgiving gift for religious liberty, the United States Supreme Court struck down occupancy limits for church gatherings in New York. The restrictions were implemented by...
View ArticleThe Myths of Cooper v. Aaron
In his paper, “The Irrepressible Myth of Cooper v. Aaron” published by the Georgetown Law Journal, Josh Blackman writes, “Despite its constitutional provenance and majestic grandeur, the Supreme Court...
View ArticleThe Legacy of Lochner
The Lochner case may be one of the most remarkable cases in the whole of Constitutional law — remarkable for its influence in the development of “substantive due process.” It’s also remarkable for its...
View ArticleThe Supreme Court Used to Consider the Minimum Wage Unconstitutional
I wonder how many Americans realize that the U.S. Supreme Court once declared the minimum wage to be in violation of U.S. Constitution. This occurred in 1923 in a case entitled Adkins v. Children’s...
View ArticleTorture Enters the Courtroom
For the first time in American history, a federal judge last week authorized the government to admit as evidence in a criminal case in a public courtroom words uttered by the defendant that were...
View ArticleSupreme Court: Property Rights vs Labor Unions
As the Supreme Court’s recent Obamacare case illustrates, the justices no longer enforce most of the Constitution’s limits on the federal government. But a new property rights decision demonstrates how...
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