Posts Tagged ‘constitutional law’

“Magna Carta and the Rule of Law around the World”

King and government do not exercise absolute power but are themselves bound by law: the Magna Carta’s 800th anniversary is today. Marking the sealing of the “Great Charter of Liberties” agreed to by King John, the Cato Institute held a panel discussion June 4 featuring Richard Helmholz (U. Chicago), Roger Pilon (Cato), Tom Palmer (Atlas Network, Cato), Richard Pipes (Harvard), Swaminathan Aiyar (Cato), and Juan Carlos Botero (World Justice Project), moderated by Ilya Shapiro and Ian Vasquez (Cato).

More: Carrie-Ann Biondi, The Objective Standard (“a profound development on the road to a civilized, rights-based society… toward properly limited government.”), Sheldon Richman (a study in unintended consequences and spontaneous social evolution), Roger Pilon (“We’re back in the fields of Runnymede, importuning our government for relief from its assumption of plenary power.”), Deepak Lal (India and Hong Kong have benefited enormously from it; mainland China, Egypt, and Russia feel its lack). [Slightly edited to add new introduction.]

Filed under: constitutional law, United Kingdom

New books roundup

Widely discussed new Charles Murray book, By the People: Rebuilding Liberty without Permission, includes extensive discussion of failures of law and litigation system [Carlos Lozada WaPo review, Cato’s Letter, podcast and related post, J.D. Tuccille/Reason]
Rare and welcome book-length work on state attorneys general, Paul Nolette’s Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America, I’ll have more to say about it in due course [Liberty and Law, discussion with author]
The Libertarian Mind: A Manifesto for Freedom by my Cato colleague David Boaz, a revised and updated edition of his earlier Libertarianism: A Primer, includes chapter on law and the constitution as well as much related discussion; boasts blurbs from John Mackey, Peter Thiel, and Richard Epstein;
Arnold Kling on Political Realism, new free e-book from Jonathan Rauch; also, Kling reviews a recent talk at Cato by Michael Shermer on his book The Moral Arc: How Science and Reason Lead Humanity toward Truth, Justice, and Freedom;
“We will fight for a fair contract!” proclaimed then-N.J. Gov. Jon Corzine to government workers, neat trick if you accept assumption that he was on opposite side of negotiating table from them [Michael Toth on new Daniel DiSalvo book on public sector unionism, Government Against Itself: Public Union Power and Its Consequences]
In the mail: Akhil Amar, The Law of the Land: A Grand Tour of Our Constitutional Republic, on how the idiosyncrasies of particular states, regions, and localities have shaped our understanding of the U.S. Constitution;
And: Jay Cost, A Republic No More: Big Government and the Rise of American Political Corruption [related Cato event]
And: Diana Furchtgott-Roth and Jared Meyer, Disinherited: How Washington Is Betraying America’s Young;
And: Jack C. Fisher, Silicone on Trial: Breast Implants and the Politics of Risk [Sager Group]

Filed under: attorneys general, Cato Institute, constitutional law, New Jersey, public employment, silicone breast implants

Supreme Court and constitutional law roundup

Polls, not chancy politics of Justice-watching, represent surest hope for gay-marriage supporters [me in New York Daily News]
“A reasonably good week for the Fourth Amendment” [Jonathan Blanks, Cato on Rodriguez v. U.S. on prolonged traffic stops, 6-3 SCOTUS, and from the D.C. Circuit, Janice Rogers Brown’s concurrence in Gross v. U.S., on rationale for D.C.’s gun sweeps]
David Bernstein, who has done so much to enrich our understanding of Lochner v. New York, hears from Mr. Lochner’s great-granddaughter [Volokh Conspiracy]
Armstrong v. Exceptional Child Center: Supremacy Clause doesn’t provide implied private right of action [William Baude, SCOTUSBlog; James Beck (implication for product liability); from the losing side, Steve Vladeck/Prawfs]
Please, SCOTUS, kill off for good the awful Calder v. Jones “effects” test for personal jurisdiction [David Post] “We’re Not in Kansas: No General Jurisdiction After Bauman” [Steven Boranian, Drug and Device Law]
Noah Feldman, for one, isn’t buying Toobin’s latest sanctimonious swipe at Scalia [Bloomberg View]
Usage of commas in famous first line of Pride and Prejudice can shed light on how to read Constitutional guarantee of right to keep and bear arms [Eugene Volokh]

Filed under: constitutional law, Fourth Amendment, guns, preemption, procedure, same-sex marriage, Supreme Court

CPS vs. free-range parents: are there Constitutional issues?

Per Ilya Somin, there might be: “In two landmark cases in the 1920s, Meyer v. Nebraska and Pierce v. Society of Sisters, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment protects parents’ and guardians ‘to direct the upbringing and education of children under their control.'” Meyer struck down a ban on instruction of students in foreign languages before eighth grade, while Pierce struck down a ban on private and religious school education. While authorities presumably have wider leeway to regulate pedestrian activity on public streets than instruction that may take place within private homes, churches, or schools, a degree of regulation that forcibly substitutes the state’s judgment for parents’ on debatable issues of child-rearing might cross a line.

The idea of a Constitutional right of parental autonomy appears to be alive and well on both conservative and liberal sides of the Court, but some may be surprised at which current Justice has written most critically of the idea: Antonin Scalia, because of his dislike for “substantive due process” theory and in general its protection of individual rights not enumerated in the Constitution. In a 2011 article I haven’t had a chance to read, David Wagner traced the Scalia-Thomas conflict and apparently also looked at whether Scalia continues to count as a holdout given what might be a softening of his views on the issue.

Related: Lenore Skenazy on Scotland’s scary Named Person child advocacy scheme [earlier on which], and interviewed by Joel Mathis at Philadelphia Magazine. Earlier on Child Protective Services.

Filed under: Child Protective Services, constitutional law, Scotland

April 14 roundup

Please, someone: you can’t just donate money to the Tulsa police and get full deputy powers, can you? [Tulsa World via @RayDowns]
Illinois bench-‘n’-bar buzz angrily at Gov. Rauner who broke rule re: not mentioning lawyers’ campaign cash to judges [Chicago Daily Law Bulletin]
“New York’s Asbestos Court Mulls Changes After Sheldon Silver Scandal” [Daniel Fisher] “‘Judicial malpractice’ not to probe court tied to Silver: Judge” [New York Post]
Let’s all panic about arsenic in wine, or maybe let’s all not [Nick Farr, Abnormal Use (“The highest arsenic levels cited in the lawsuit are less than half of the limits set by other countries such as Canada”), and more on class action lawsuit]
“Tennessee Sacrifices Property Rights On The Altar Of ‘Gun Rights'” [Doug Mataconis, Outside the Beltway; earlier here, here, and here]
Odd that while we make wedding cake bakers and florists common carriers, the old “cab-rank” (any paying client) rule for lawyers has come to seem almost unthinkable [Adam Liptak, NYT on big law firms’ avoidance of representing clients on the unpopular side of major gay rights cases] Similarly: Paul Karl Lukacs, L.A. Daily Journal. Related: “maelstrom of criticism” directed at Harvard lawprof Laurence Tribe over his Supreme Court representation of coal company against EPA [Orin Kerr]
Just for fun: the preamble to the U.S. Constitution, in license plates [my post at Cato at Liberty]

Filed under: asbestos, constitutional law, guns, Illinois, Oklahoma, police, Tennessee

Culture War tomorrow, comity tonight: when one state boycotts another

Boycotts by one state directed against another seem to me to be a tactic best reserved for impending scenarios of civil war, although who knows, if my social media stream is any indication, perhaps the United States is soon to reach that point. Gerard Magliocca, who teaches law at Indiana, wonders whether the Constitution would provide any legal remedies if, for example, one state closed its public university system to applicants from another state to show disapproval for that second state’s policies. (For those who came in late, Governors Dannel Malloy of Connecticut and Andrew Cuomo of New York issued orders, now rescinded, barring travel by “non-essential” state employees to Indiana during the several-day furor over that state’s Religious Freedom Restoration Act (RFRA).)

Filed under: constitutional law, federalism, Indiana

Supreme Court roundup

Very Cato-centric this time:

Perez v. Mortgage Bankers: yes, agencies can dodge notice and comment requirements of Administrative Procedures Act by couching action as other than making new rule [SCOTUSBlog and more links, earlier; Michael Greve and followup; Daniel Fisher on concurrence by Justices Scalia, Thomas, and Alito and related on Thomas, Alito concurrences in Amtrak case]
New Jersey high court is unreasonably hostile to arbitration clauses, which raises issues worthy of review [Shapiro on Cato cert petition]
“When Wisconsin Officials Badger Their Political Opponents, It’s a Federal Case” [Ilya Shapiro, earlier here, here, etc.]
Richard Epstein on King v. Burwell oral argument [Hoover, earlier]
With Profs. Bill Eskridge and Steve Calabresi, Cato files probably its last same-sex marriage brief before SCOTUS [Shapiro; Timothy Kincaid, Box Turtle Bulletin]
On Abercrombie (religious headscarf) case, Jon Hyman sees an edge for plaintiff at supposedly pro-business Court [Ohio Employer Law Blog, earlier]
A different view on Fourth Amendment challenge to cops’ warrantless access to hotel guest registries [James Copland on Nicholas Quinn Rosenkranz brief; earlier Cato amicus]
“Why the Court Should Strike Down the Armed Career Criminal Act as Unconstitutionally Vague” [Trevor Burrus]

Filed under: administrative law, arbitration, Cato Institute, constitutional law, Fourth Amendment, New Jersey, Supreme Court, Wisconsin

More on that wacky New Mexico environmental ordinance

We ran a post recently on how Mora County, New Mexico, had somehow passed an ordinance purporting to enact various fringy environmental theories (legal rights for natural landscape features like wetlands, a ban on oil and gas extraction by incorporated businesses, declaring all water a public trust) while stripping away a variety of currently recognized constitutional rights, both for businesses and others. A judge proceeded to strike the ordinance down, but several of our readers wondered how such a law could ever have made it past the review of lawyers in the first place, assuming the county was advised by such. Now Joseph Bottum, at the Weekly Standard, digs much deeper into the back story of the ordinance with exactly such questions in mind. He also explores the secessionist/insurrectionist tendencies implicit in the ordinance’s rejection of the supremacy or even authority of higher levels of government. It’s quite a story.

Filed under: constitutional law, environment, New Mexico

Supreme Court and constitutional law roundup

Should a sock used to hold pills count as “drug paraphernalia?” [NPR via Jeffrey Miron on Supreme Court case]
Michael Greve: on Medicaid spending-forcing suits, behold the Obama administration taking the correct stance, U.S. Chamber the wrong [Liberty and Law, more]
No, the justices don’t just use religious freedom cases to advance their own beliefs [Eugene Volokh]
Can/should the courts correct misconduct by the EEOC in dealings with employers during the “conciliation” phase before litigation? [Robert Barnes/Washington Post, Julie Goldscheid/SCOTUSBlog, Michael Greve on oral argument in Mach Mining v. EEOC]
Decision in Dart Cherokee case rejects presumption against removal of class actions [Richard Samp and M.C. Sungaila, WLF]
When if ever may the President properly sign legislation he believes to be in part unconstitutional? [Will Baude]
Most Justices have had little practical exposure to criminal law which can leave it a blind spot for them [Radley Balko]

Filed under: constitutional law, EEOC, religious liberty, Supreme Court

Marking Bill of Rights Day

Today is the commemoration of Bill of Rights Day. My colleague Tim Lynch says the Third Amendment safeguard against troop-quartering “is one of the few that is in fine shape.”

Filed under: constitutional law