Mark Pulliam

Mark Pulliam is a contributing editor of Law and Liberty.

Whining About Article III

The latest tract by Erwin Chemerinsky, liberal law professor and dean of the University of California at Irvine School of Law, is depressingly familiar. Like his Enhancing Government: Federalism for the 21st Century (2008), The Conservative Assault on the Constitution (2011), and The Case Against the Supreme Court (2014), his new book is a diatribe masquerading as legal scholarship. The usual villains—conservative Supreme Court justices, malevolent government officials, rapacious corporations, racist police officers—are pitted against the wrongly accused, helpless consumers, and oppressed victims of discrimination. Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable presents one-sided vignettes drawn from actual…

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Implementing Obergefell: An Addendum

The March 1 oral argument was an astounding anti-climax to a manufactured drama

In a prior post, I discussed the Pidgeon v. Turner case, now pending before the Texas Supreme Court, involving a taxpayer challenge to same-sex spousal benefits.  Oral argument was held on March 1.  The taxpayers challenging the city of Houston’s policy of granting same-sex spousal benefits to city employees were represented at oral argument by Jonathan Mitchell, a former Scalia clerk, former Texas solicitor general, and now a visiting professor at Stanford law school.  The city of Houston was represented by Douglas Alexander, a leading appellate practitioner in an Austin law firm whose partners include former Texas Chief Justice Wallace Jefferson.  The oral argument was superb, and both counsel fielded numerous questions from the fully-engaged justices.

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Judicial Tyranny’s Final Frontier

Law and justice concept. Scales of justice, gavel, paragraphs, brown wooden background, place for text

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

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American Legal Thought in a Nutshell

dictionary in library

At first blush, Northwestern University law professor Stephen B. Presser’s just-released survey of legal education, Law Professors: Three Centuries of Shaping American Law, seems to lack a clearly defined mission. Presser, a self-described paleoconservative who says he was influenced by the journal Chronicles, where he has long served as legal affairs editor, has produced a treatise-length book (with 473 pages of text and nearly 1,400 footnotes) on a subject—legal academia—that many people regard as a bastion of left-wing ideology. Published by a scholarly press (West Academic) at a relatively hefty ($48) cover price, the book is aimed, at least in part, at a lay audience: “the general American public.”

Equal parts legal history, biography, and primer on jurisprudence, Law Professors defies categorization. Is it a text book, a reference work, a tutorial for pre-law students, a compilation of biographical profiles, a cautionary tale about the modern legal culture, or a synthesis of all the foregoing? The author calls it “a love letter to the teaching of law,” his vocation for over 40 years.

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Reclaiming the Federal Judiciary: Start with the Fifth Circuit

Lawyer And The Law

The widely publicized judicial resistance to President Donald Trump’s executive order temporarily limiting entry into the United States by foreign nationals from certain countries has focused public attention as never before on the enormous power wielded by activist judges. Many people who do not generally follow the doings of the judiciary were alarmed by the ruling of Seattle-based Judge James L. Robart enjoining the so-called travel ban, despite the dubious “standing” of the two states challenging it (Washington and Minnesota). Many laypeople also listened in dismay to the oral argument before the Ninth Circuit, and have read extensive criticisms of both the temporary restraining order issued by Judge Robart and the unsigned Ninth Circuit decision refusing to stay the TRO, neither of which cited the statute expressly authorizing President Trump to take the disputed action.[1]

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Implementing Obergefell: Who Decides the Scope of a Newly Minted Right?

The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick,[1] in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.

Under that document’s Supremacy Clause,[2] all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.

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Will a Tiny, Blind, Subterranean Bug Be the Undoing of the Federal Leviathan?

The mighty Bone Cave Harvestman

In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.

Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.

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History’s Fickle Judgment

herbert hoover

Why is Herbert Hoover so reviled?

How should history rate Herbert Hoover, the nation’s 31st President? By today’s standards, Hoover was an anomaly. He rose, in Horatio Alger fashion, from being orphaned at age nine to the pinnacle of self-made success in business and finance. Although he was a Quaker, Hoover’s martial adventures in China’s Boxer Rebellion in 1900—at one point leading a detachment of U.S. Marines against Chinese rebels—rival the fictional exploits of Indiana Jones. In an era before ghost writers, Hoover was an accomplished author; his 1922 book, American Individualism, cemented the fame he had earned as a global mining engineer and international humanitarian relief administrator.

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Prospects for Constitutionalism

The Assembly Room in Independence Hall

What are the prospects for constitutionalism and the rule of law under President Donald Trump? 

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Looking at Trump from Outside the Bubble

Donald Trump Hotel Letter T Luggage Cart Wagon Closeup Detail No

Everyone seems to be sharing their reflections on the election of Donald Trump as President (for example, here, here, and here), prompting me to weigh in with some of my own.

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