Sebelius v. Hobby Lobby Stores, Parts II and III: Dissenting and Concurring Opinion

Tim Kowal agrees the Greens have individual standing, but suggests the corporation is the appropriate party to assert their claims.

Holder Says State Attorneys General Don’t Have to Enforce Obamacare

[Original NYT on which the parody below is based.] Washington — Attorney General Eric H. Holder Jr. said Monday that state attorneys general who believe that laws in their states enforcing the Affordable Care Act are violative of the Constitution’s First Amendment and Origination Clause are not obligated to defend them. Mr. Holder was careful…

Book Report 2013

Still not a lot of uninterrupted non-manic toddler time for writing, but she does enjoy some political non-fiction before bed. Among my favorites this year were the latest installments from Robert George and Mary Eberstadt, along with Jay Cost’s 2012 work on the Democratic party and Lewis Gould’s on the GOP, which Cost was good…


It’s Time to Unbundle Health Insurance and Health Care

John C. Goodman in his book Priceless: Curing the Healthcare Crisis argues that Obamacare will not make health care better or more affordable because it doubles down on the same genetic defects as before–the ill-conceived bundling of health care and health insurance. Reformers opposed to Obamacare will be unable to propose a real solution until they see the problem.

The Democrats Have a “Principled” Contingent, Too

Ever since “The One” was elected, the Democrats have seemed to represent a relatively coherent ideology. Its New Left contingent was quiescent with the express and implied promises of a decisive leftward move. And the Establishment was proud of itself for having elected the first black president.  As a result, Democrats have been able to…

“Picking the man and then searching the law books”

Two weeks ago, the Justice Department issued a public notice inviting applicants “‘to refer anyone who had any information’ that might build a case against [George] Zimmerman for either a civil rights violation or a hate crime.”  It reminded me of something in Justice Antonin Scalia’s dissent in Morrison v. Olson, 487 U.S. 654 (1988),…

A leisurely Sunday afternoon riot

After we returned from an early dinner with friends late Sunday afternoon, we began to hear the reports of disturbances a few blocks away from where we live in downtown Huntington Beach.  The annual eight-day-long and well-attended US Open competition had just concluded around 5:00.  The neighborhood had been packed with attendees all weekend, and…

Human life is not too controversial

The rhetorical case for protecting the unborn has succeeded. The debate is over.  It would be, that is, had the Supreme Court not issued – in Justice Ruth Bader Ginsburg’s own words – a “difficult to justify,” “heavy-handed judicial intervention” in Roe v. Wade 40 years ago.  Today, nearly two-thirds of Americans support making abortion generally illegal after the first three months of pregnancy.  A staggering four-fifths support bans in the last three months.  So if the pro-choice movement is […]

Prop 8 stands?

Consider this: 1.  The Supreme Court today ruled in its opinion holding DOMA unconstitutional that the states are entitled to decide their own marriage laws.  Assume this is not a meaningless statement – a “bald, unreasoned disclaimer,” as Justice Scalia called it.  (This may be asking much of those who recall the majority opinion author’s prior work in Lawrence and Romer, rich with such disclaimers.) 2.  President Obama also acknowledged today that Americans’ views on marriage are based on “deeply […]

The NSA and Privacy: Why Conservatives Should Not Be Sanguine

Defending the NSA’s program that collects information about the American public’s phone calls and emails, President Obama offered this bit of doublespeak: Well, in the end, and what I’ve said, and I continue to believe, is that we don’t have to sacrifice our freedom in order to achieve security. That’s a false choice. That doesn’t mean that there are not tradeoffs involved in any given program, in any given action that we take. So all of us make a decision […]

The NSA and Privacy: Why Conservatives Should Not Be Sanguine

Defending the NSA’s program that collects information about the American public’s phone calls and emails, President Obama offered this bit of doublespeak: Well, in the end, and what I’ve said, and I continue to believe, is that we don’t have to sacrifice our freedom in order to achieve security. That’s a false choice. That doesn’t…

How do you interpret a constitution?

The biggest cause of confusion faced by Originalists—the folks who think the Constitution means what it originally did in the late 1700s—isn’t the one you’d probably guess at first.  You’d probably guess it has to do with how we can know what 18th century Americans were thinking.  And how can anyone know what Americans more than two and a quarter centuries ago thought “due process” was, or what a “reasonable search and seizure” was?  We can hardly get consensus on […]

“You don’t ‘seize’ the center, you create the center”

When I learned it, I thought the motion for this month’s Intelligence Squared U.S. debate – “The GOP Must Seize the Center or Die” – was simply dreadful.  How could the opposing case possibly be made without fighting a losing battle with the proposition itself?  Of course the GOP needs to win more votes from the center; of course they’ve been successfully characterized as out-of-touch with centrists.  And indeed, the pre-debate poll showed a staggering 65% in favor of the […]

Irregular Constitutional Order

I’ve seldom agreed with Hugh Hewitt so strongly—and readers know I agree with him a lot—as I do on repealing the medical device tax through regular constitutional order and not the usual rendering of pig lips and cow parts.  Hewitt has a post today on the issue at his blog.  Here’s a key exchange from Hewitt’s interview yesterday with Rep. Kevin Brady, chairman of the Ways and Means health subcommittee, who agrees with Ways and Means chairman Dave Camp on […]

The judge as moral philosopher

Reviewing Supreme Court Justice Antonin Scalia and Bryan A. Garner’s Reading Law: The Interpretation of Legal Texts in the Claremont Review of Books, David Forte exposes Justice Scalia’s famous legal positivism as moral philosophy by another name.  “They call false,” Forte writes of Scalia and Garner, “the ‘notion that the quest in statutory interpretation is to do justice,’” and they, like Alexander Hamilton, prefer judges to be “‘bound down by strict rules and precedents.”  But judging, Forte pushes back, is […]

Gosnell and our inadequate public discourse on abortion

Tim Carney wrote yesterday that when Obama was a state senator, he “repeatedly voted against legislation requiring hospitals to care for babies born during abortions” because “[s]uch laws might somehow be used in the future to infringe on abortion’s legality.”  Carney argues that “Gosnell’s method for aborting babies wasn’t substantially different from a procedure Obama enthusiastically defends.”  Today, the White House has no comment on Gosnell, noting that it concerns on an ongoing legal matter.  A totally valid response—is what […]

The Doomsday Provision

Note: This post is part of our League Symposium on Guns In America. You can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here. Why do we have the Second Amendment?  Wait, let’s back up.  Why do we have the First Amendment? …

American Process and Its “Occasional Services to Liberalism”

Liberals endure much teasing for their inability to articulate just what liberalism means.  Even their best and brightest flounder at the task.  “[T]here is something deep within liberalism,” Michael Tomasky attempts, “that prevents it from degenerating into fascism, and that is its explicit recognition that the state must serve both common purposes and individual liberty.” …

Waxing Un-American

Conor Williams is exasperated and disappointed with the response to his criticism of conservatives criticizing Progressivism.  I’ll excuse his missing my comments, set forth below, which answer his criticism directly.  But on re-reading Conor’s post, I see that he actually had his finger on the answer—that Progressivism subverts process, and process is the thing, if…

Liberal Democracy Is Not Too Big to Fail

Note: This post is part of our League Symposium on Democracy. You can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here. Three months after the infamous Kelo v. New London opinion was issued in June 2005, Professor Thomas W. Merrill testified to the…

“College is not for everybody”

A caller on NPR’s Talk of the Nation offered a very interesting story about whether a college degree is a sound investment.  Note the reflexive defense from Kathleen Shea Smith, a student counselor who advocates in her earlier comments on the program that “it’s worth the investment” to get that bachelor’s degree: ABRAHAM: Yeah, well,…

Presuppositional Constitutionalism

Does the Constitution assume certain presuppositions on the part of those it means to govern?  If so, what are those presuppositions? I submit the answer to the first question is yes, and explain the presuppositions that by necessity must be true for our Constitution to be intelligible. In light of the project begun here recently…

Stimulus first, austerity later

Via Alex Tabarrok, a recent study by Richard Evans, Laurence Kotiloff, and Kerk Philips at VoxEU examines the effects of long-term large-scale redistribution of young Americans’ savings to the elderly: [T]he young, because they have longer remaining lifespans than the old, have much lower propensities to consume out of their remaining lifetime resources. This prediction…

New ADA Guidelines Expose Pool Operators to Private Lawsuits

The Washington Examiner reports that, according to a DOJ guideline issued January 31 interpreting a provision of the ADA, all operators of publicly accessible swimming pools—including cities, HOAs, hotels, spas, and gyms—must install a permanent fixed lift at a cost of $8,000 to $20,000 each.  If the facility has a separate pool and spa, lifts…

Pondering Positive Rights

In light of some of the responses to the League’s constitutional convention, I’ve been doing some thinking on the subject of so-called positive rights and want to take the pulse of readers here.  To those of you who believe there is or ought to be a constitutional right to health care, do you believe this…

Our Unlovable Constitution

A new study by David S. Law and Mila Versteeg concludes that the world’s democracies are no longer emulating the U.S. Constitution, and are instead resorting to other templates that guarantee more “generic building blocks of global rights constitutionalism,” including “women’s rights,” “the right to social security, the right to health care, and the right…

No, Americans are not “operationally liberal”

Responding to my demurrer to “the old saw that Americans are ideologically conservative but operationally liberal,” Yeggmen sticks up for the saw:  what researchers have (repeatedly) done is get a bunch of people together and have them fill out a long and comprehensive political questionnaire. They ask them to choose an ideological label, vague questions…