At oral argument in Hollingsworth v. Perry, Justice Scalia challenged Theodore Olson as to when it became “unconstitutional to exclude homosexual couples from marriage?”[1] Olson replied first with what he called a “rhetorical question,” viz., “When did it …
Roe v. Wade remains, for us, the most contentious decision of our Supreme Court. Here’s the advice of our Supreme Court: The opponents of Roe should get over it. In its opinion in Planned Parenthood v. Casey (1992), the Court …
Very few contemporary legal thinkers turn to natural law for help in interpreting the Constitution. Among the many reasons for this, one is the belief that natural law supports slavery. Justin Dyer takes on this belief and attempts to rehabilitate …
Recently Justice Clarence Thomas reflected on the American condition and its relation to the Constitution. He focused far less on specific legal issues and more on the enduring love of country “we the people” give it. He described how the …
In this post at Volokh, Ilya Somin challenges Justice Clarence Thomas’ recent remarks that “We the People” in the Preamble of the Constitution did not include African-Americans when it was ratified in 1787. The history is much more complex and …
President Obama is a man of history—that is, he places himself quite deliberately in historical context. His much-derided self-comparisons with Abraham Lincoln come immediately to mind. But those are clearly superficial. More telling is his choice of Osawatomie, Kansas for …
Judicial Monarchs: Court Power and the Case for Restoring Popular Sovereignty in the United States might be placed alongside the recent tome by Justice Stephen Breyer, Making Our Democracy Work, each representing a strand of the two major ways …
On the current podcast at Liberty Law Talk, I discuss with Gordon Lloyd the problem of slavery and the ratification of the Constitution. Much of the interview considers the historical scholarship that argues the Constitution is fundamentally compromised because …
This new conversation in Liberty Law Talk is with Gordon Lloyd, a scholar of the American founding. Lloyd focuses on the debates in the Constitutional Convention of 1787 and the state constitutional ratifying conventions of 1788 in order to better …
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