Posts tagged as:

constitutional law

“Our Constitution Is Out of Step with the Rest of the World”

by Walter Olson on February 8, 2012

And thank goodness for that, observes my Cato colleague Roger Pilon. Promising more while in practice delivering less, other countries’ constitutions tend to be less careful in enumerating and limiting government powers, even as they promise all manner of (often unsustainable) entitlements. More: Mike Rappaport and relatedly, on the academic left, Mark Tushnet (among his colleagues “debate has ended over whether constitutions should include …rights” of the social/economic sort that depart from U.S. constitutional practice).

Tagged as: constitutional law

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“Never let law profs near the Oval Office”

by Walter Olson on February 7, 2012

My Cato colleague Gene Healy points out that President Obama is the fourth chief executive who also taught constitutional law, joining William Howard Taft, Woodrow Wilson and Bill Clinton. “Taft did comparatively little damage, but the rest hardly inspire confidence that familiarity with constitutional scholarship encourages fidelity to the national charter.” [Washington Examiner] He lets me have a parting shot:

My Cato Institute colleague Walter Olson, author of “Schools for Misrule: Legal Academia and an Overlawyered America”, explains that “legal academia rewards cleverness in coming up with strained arguments for ideologically favored (or just expedient) positions; marginalizes as eccentric thinkers who favor original understanding as a guide” to the Constitution and often reduces law to “politics by other means.”

Unfortunately, that training has served Obama well.

Tagged as: Barack Obama, Bill Clinton, constitutional law, law schools

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Citizens United, two years out

by Walter Olson on January 23, 2012

In the Washington Post, Boston College lawprof Kent Greenfield clears up some misconceptions:

Citizens United did not hold corporations to be persons, and the court has never said corporations deserve all the constitutional rights of humans. The Fifth Amendment’s right to be free from self-incrimination, for example, does not extend to corporations. … Humans gather themselves in groups, for public and private ends, and sometimes it makes constitutional sense to protect the group as distinct from its constituent humans.

The question in any given case is whether protecting the association, group or, yes, corporation serves to protect the rights of actual people. Read fairly, Citizens United merely says that banning certain kinds of corporate expenditures infringes the constitutional interests of human beings. The court may have gotten the answer wrong, but it asked the right question.

Another reason to protect corporate rights is to guard against the arbitrary and deleterious exercise of government power. If, for example, the Fifth Amendment’s ban on government “takings” did not extend to corporations, the nationalization of entire industries would be constitutionally possible. The Fourth Amendment prohibits the FBI from barging into the offices of Google without a warrant and seizing the Internet history of its users. A freedom of the press that protected only “natural persons” would allow the Pentagon to, say, order the New York Times and CNN to cease reporting civilian deaths in Afghanistan.

The actual Citizens United case, as distinct from the later caricature, was over whether the government had a constitutional right to punish private actors for distributing a video critical of a prominent politician (Hillary Clinton) before an election, which helps explain why the ACLU and many other civil libertarians took the pro-free-speech side. More: Caleb Brown at Cato.

Tagged as: campaign regulation, constitutional law, free speech

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Constitutionality of class actions

by Walter Olson on January 13, 2012

Northwestern U. lawprof Martin Redish, a well respected academic, has marshaled a careful argument that important elements of the modern American class action lawsuit are unconstitutional. So why, Mark Herrmann wants to know, have defense lawyers not yet taken the opportunity to bring Redish’s theories to judges’ attention in an actual case?

Tagged as: class actions, constitutional law

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New Liberty Fund law site — and an interview

by Walter Olson on January 12, 2012

The great people at Liberty Fund have just launched a new website called Library of Law and Liberty that promises to be of much interest. Among its debut features: a substantial audio interview in which Richard Reinsch, editor of the site, asks me about my book Schools for Misrule and law schools’ role in reform movements since the Progressive Era. Outstanding legal scholars Michael Greve (AEI) and Mike Rappoport (University of San Diego) will be blogging for the site. Other front-page attractions include Michael Greve discussing his new book The Upside Down Constitution, my Cato colleague John Samples reviewing Eric Posner and Adrian Vermeule’s new book on executive power, Ilya Somin on federalism and individual freedom, and Philip Hamburger and commenters on judicial review.

You can listen to my audio interview on Schools for Misrule at this link.

Tagged as: constitutional law, legal blogs, Schools for Misrule

Religious liberty wins 9-0 at SCOTUS in “ministerial exception” case

by Walter Olson on January 11, 2012

And I do a little happy dance at Cato at Liberty (earlier)(& Damon Root/Reason, Allahpundit; my background piece in October).

More: Hans Bader points out, regarding the Obama DoJ’s “let them rely on free association” argument, that “free-association defenses, unlike religious-freedom defenses, are generally losers, as the Supreme Court’s Hishon, Jaycees, and New York State Club Association decisions illustrate.” And: “The extreme position taken by the Obama Justice Department in the Hosanna-Tabor case is a reflection of ideologically-based hiring.”

Tagged as: churches, constitutional law

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“If Senator Santorum is a ’strong supporter of the 10th amendment’…”

by Walter Olson on January 6, 2012

“… he might want to read it.” [Jonathan Adler, Volokh Conspiracy]

Tagged as: constitutional law, same-sex marriage

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Newt’s “two out of three” notion

by Walter Olson on December 31, 2011

Some of Newt Gingrich’s curious ideas about the role of the judiciary are nowhere to be found in the constitution, observes my Cato colleague Roger Pilon [Philadelphia Inquirer] Related, Damon Root: “The Left-Wing Origins of Newt Gingrich’s Attack on the Courts” [Reason]

Tagged as: constitutional law, Newt Gingrich

“So what if corporations aren’t people?”

by Walter Olson on December 29, 2011

“Rights-bearing individuals do not forfeit those rights when they associate in groups” argue my Cato colleagues Ilya Shapiro and Caitlyn McCarthy in the John Marshall Law Review [SSRN via Cato at Liberty]:

Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. … This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

Meanwhile, Virginia blogger/attorney Doug Mataconis [via the much missed Larry Ribstein] analyzes a constitutional amendment advanced by a number of Democratic representatives and Sen. Bernie Sanders (I-Vt.) which would, among other provisions, propose to abolish the constitutional rights of incorporated businesses, with the possible exception of rights held by “the press.” The measure would also impose a constitutional prohibition on (not just authorize official regulation of) such businesses’ engagement in “expenditures,” such as buying newspaper ads expressing their views, during initiative and referendum campaigns as well as elections for office.

Along with abolishing incorporated businesses’ rights, the Sanders proposal contains a further provision of high importance (flagged by Eugene Volokh) that would abolish the constitutional rights of any and all non-profits and similar private entities that are “established … to promote business interests,” and would impose on them the same constitutionally mandated silence during initiatives, referenda and the like. Note the results of this language, which we must presume are intentional: in, say, a fight over a ballot measure that would increase some business tax, the citizens’ committee organized to agitate against the tax would be forbidden to expend money upon a determination that it had been “established … to promote business interests.” Such a private group would also be deemed to have no constitutional rights of any other sort — rights against, say, having its meetings stormed and broken up by police. Meanwhile, the citizens’ committee organized to agitate for the tax would retain not only its rights to speak and to spend money on behalf of its views but also all its other constitutional rights. Rarely do politicians, in this country at least, make it so clear in advance that their intent is to silence their opponents.

Who are the lawmakers who would propose such a measure? The House version was introduced by Rep. Theodore Deutch [FL] and its co-sponsors are Reps. Steve Cohen [TN], John Conyers, Jr. [MI], Peter DeFazio [OR], Keith Ellison [MN], Sam Farr [CA], Barney Frank [MA], Marcia Fudge [OH], Raul Grijalva [AZ], Alcee Hastings [FL], Sheila Jackson Lee [TX], “Hank” Johnson, Jr. [GA], Rick Larsen [WA], John Larson [CT], Barbara Lee [CA], Carolyn Maloney [NY], Jim McDermott [WA], Frank Pallone, Jr. [NJ], Chellie Pingree [ME], Charles Rangel [NY], Betty Sutton [OH], Chris Van Hollen [MD], and Peter Welch [VT].

Tagged as: constitutional law, free speech, U.S. House of Representatives

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“Gingrich, the anti-conservative”

by Walter Olson on December 22, 2011

George Will blasts candidate Newt Gingrich’s fevered plans for a constitutional showdown between legislature and judiciary [WaPo]. Roger Pilon has more at Cato here and here. Andrew McCarthy and Ted Frank urge us to consider that Gingrich’s overall challenge to judicial activism may, like the curate’s egg, be good in parts.

Tagged as: constitutional law, judicial system, Newt Gingrich

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December 19 roundup

by Walter Olson on December 19, 2011

Too much of a stretch: US nixes copyright in yoga exercises [Bloomberg, earlier]
“Know your rights dealing with cops” material construed as probative of criminality [Popehat] Is Justice Scalia really an “unlikely” champion of defendants’ Constitutional rights? [LATimes, Adler] “Overcriminalization: The Legislative Side of the Problem” [Larkin/Heritage, related Meese] When feds spring false-statements trap, it won’t matter whether you committed underlying offense being investigated [Popehat] “‘Clean Up Government Act’ sparks overcriminalization concerns” [PoL]
Former Attorney General Mukasey on ObamaCare recusal flap [Adler]
American Antitrust Institute proposals might be discounted given group’s longstanding pro-plaintiff bias [Thom Lambert]
NYC: “The tour guide said that the way to get rich is to be a zoning lawyer.” [Arnold Kling]
“Obama’s Top Ten Constitutional Violations” [Ilya Shapiro, Daily Caller] In at least two major areas, “Obama has broken with precedent to curtail religious freedom” [Steve Chapman]
Ted Frank-Shirley Svorny med mal debate wraps up [PoL, Bader]

Tagged as: antitrust, Barack Obama, constitutional law, crime and punishment, land use and zoning, medical malpractice, police, recusals, Ted Frank