jackbalkin at yahoo.com
bruce.ackerman at yale.edu
ian.ayres at yale.edu
corey_brettschneider at brown.edu
mary.l.dudziak at emory.edu
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
mgraber at law.umaryland.edu
sgriffin at tulane.edu
jonathan.hafetz at shu.edu
jkessler at law.columbia.edu
akoppelman at law.northwestern.edu
msl46 at law.georgetown.edu
slevinson at law.utexas.edu
david.luban at gmail.com
gmaglioc at iupui.edu
mazzonej at illinois.edu
lmcclain at bu.edu
mikhail at law.georgetown.edu
pasquale.frank at gmail.com
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
dpearlst at yu.edu
rick.pildes at nyu.edu
dpozen at law.columbia.edu
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
alice.ristroph at shu.edu
siegel at law.duke.edu
david.super at law.georgetown.edu
btamanaha at wulaw.wustl.edu
nelson.tebbe at brooklaw.edu
mtushnet at law.harvard.edu
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Why John McCain Needs The Living Constitution
Thursday, May 15, 2008
Why John McCain Needs The Living Constitution
J. Rebekka Bonner
I have read the speech and all I can say is a more unpresidential document would be hard to produce.
The sitting Justice he swipes at is Stevens, hardly a flaming radical in constitutional interpretation. Stevens himself said he voted in Kelo the way he did because his reading of the law required it, not because he wanted to bow to popular sentiment.
McCain also takes a very, very, ill-considered swipe at the 9th Circuit, which has become a kick-ball of sorts for the legal retrenchment community.
Again he raises the golem of an out-of-control Article III judiciary. I hope he realizes that the vast preponderance of that same judiciary were nominated Republican presidents. Republican presidents whose company he wants to join.
You might take a look at Larry Solum's comments on the McCain matter, both on his blog and in his article "Semantic Originalism." They should be of interest.
This is all rather silly, as we know for a fact that McCain isn't going to nominate strict constructionists to the Supreme court: His signature cause, campaign censorship, is starkly unconstitutional by any but living constitution approach. It's absurd to believe that he's going to deliberately nominate justices to strike down his own policy initiatives.
Good points. But the 4th Circuit which McCain mentions in his speech just recently denied a First Amendment-based challenge to the NC election law on nonpartisan judicial contest funding:(North Carolina Right to Life v. Leake 07-1454 to distinguish it from the other same-named case 07-1438.) In other words, they upheld something I take you consider facially unconstitutional: state intervention on election spending.
The 4th is no hotbed of wild-eyed liberals! So maybe McCain is on to something...
But I doubt it.
I think federal regulation of election spending is facially unconstitutional, due to the lack of any enumerated powers basis, AND the First amendment. At the state level there's no enumerated powers issue, and the regulation can be constitutional, though I think it often isn't.
I don't see how federal election spending regulations are per se unconstitutional on Article I grounds, Brett. Certainly, for instance, limitations on money transfers that cross state lines and limitations on money for advertisements disseminated across state lines are within the commerce clause, aren't they?
Personally, I think the contribution/expenditure line in Buckley makes eminent sense (as long as the contribution limits are set high enough) and I think McCain-Feingold's restrictions on coordinated soft money are generally permissible under the First Amendment, while the ad bans are generally unconstitutional.
Dilan, it's true that Congress has the authority to regulate interstate commerce, but I hold a narrower view of what constitutes "commerce", and a wider view of the First amendment's protections, than you. Campaign 'reform' is a pretty clear example of regulating the money in order to regulate the speech. It's the speech that's being regulated,the money is just a handle to get at it. And Congress is specifically forbidden to regulate speech. I'd apply that bar regardless of how Congress attempts to dress up the effort.
You might, at the federal level, justify regulation of direct donations to candidates from people in different states. I can't see justifying anything that's not direct, or has no interstate element.
On a policy rather than constitutional level, campaign regulation strikes me as a conflict of interest of starkly enormous proportions. Giving incumbent pols the chance to regulate what's said and done in an effort to unseat them? Might as well give a klepto the keys to the bank, or a pyromaniac a flame thrower. Fighting the perception of the possibility of corruption is just a pretext, they're busy securing their seats by doing all they can to handicap challengers.
It's a conflict of interest so big, so irresistible, that there's nothing to be gained by the venture that's worth the certain abuses.
Congress has the enumerated power to regulate the "manner" of federal elections and if "interstate commerce" doesn't include the "regulation" (and money makes it irregular in various respects) of national airwaves and such, it is pretty narrow indeed.
This also factors in the regulation of union and corporate speech. Policy and First Amendment concerns are separate, as might be some regulation of local speech, particularly state/local offices.
Voluntary funding regimes also would be separate.
The continuation of the "natural born" citizen requirement for presidents illustrates the great difficulty of amending the constitution. I think that there has long been a consensus that this requirement should be abolished, yet the requirement is still with us.
Barack Obama, who was born in Hawaii, missed by just a few months being born in a US territory instead of a state.
>>>>> In the infamous Dred Scott case, the Court held that this act merely referred to a method of naturalization. <<<<<<
The Dred Scott decision was a joke. For example, it ruled that the Constitution's clause giving Congress jurisdiction over the territories was intended to apply only to territories that existed when the Constitution was first adopted. The Dred Scott decision was a phony piece of originalism and it should have done a lot to discredit originalism.
"Congress has the enumerated power to regulate the "manner" of federal elections"
And campaign 'reform' does not regulate the manner of federal elections, it regulates speech concerning federal elections.
The "manner" of those elections are things like poll location, ballot design, the mechanics of voting.
Hell, even if the commerce clause and "time place and manner" clause COULD be plausibly interpreted as extending to Congress the power to regulate speech and printed matter concerning elections, the First Amendment would have amended that power away.
With respect to comments from Mark, Michael and others on this short article, here's a link to the full-text research paper underlying this short article that may serve to answer your questions. This link will take you to a short overview & to a link for downloading the paper itself:
In the paper, I go into the details of the Founders' English common-law heritage under the "strict constructionist" approach, relevant U.S. statutes for the "living constitution" approach, in case you're curious. The paper also discusses previous presidential candidates who ran into the same problem as McCain is now & discusses the ambiguous status of Native Americans born on reservations under "strict constructionist" approaches, etc. Pretty interesting topic.
J. Rebekka Bonner (author)
Alex Rodriguez,the playerwow goldwho would restore integrity to baseball's homewow goldrunre cord,admittedwow goldMonday towow goldusing performance-enhancingwow goldwow golddrugs himself.
The All-Star thirddofus kamasdofus kamasbaseman said in an interviewkamas dofusacheter dofuswith ESPN that he used steroids with the Texas Rangers for three years,from 2001-03,in an attemptbuy kamasacheter kamasto justify his status as the game's highest-paid player after signing a 10-year.
Back then it wasworld of warcraft golda different culture,Rodriguezcheap wow goldsaid.It waswow orvery loose.I was young.I waswow power levelingstupid.
A birther going by the name of Mikhail Godkin has written a fallacious screed in which he, in my opinion, dishonestly distorts what you've written here as well as making completely baseless accusations regarding your motives for writing this article and your job within the Obama administration. I have posted a comment detailing how he has defamed yourself and others here. His "study" is included in the article on this page as well as literally hundreds of comments which expose his reasoning and understanding as fatally flawed. If you read my comment, I hope you will correct me if I misrepresented you or your work in any way.
HD kaliteli porno izle ve boşal.Post a Comment
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların Bedava Porno ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
2013 Beyaz Eşya modeller
Sizlere Güvenlik Sistemleri ayarliyoruz
Arayin Hırdavat bulun
Samsung Nokia İphone Cep telefonu alin.
Super Led Tv keyfi
Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
The Information Society Project
Syllabi and Exams