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Geither: Defaulting on Debt Unconstitutional


The Obama administration is arguing the 14th Amendment renders the debt ceiling moot.

The Unconstitutional Constitution


While the Constitutionality of the War Powers Act is indeed dubious, the fact that it was passed over Nixon’s veto isn’t the reason.

Ron Paul Says He Would Have Voted Against The 1964 Civil Rights Act


Thanks to an appearance on Hardball we’ve got another story about a 47 year old law.

Alabama Sharia Law Ban


An Alabama legislator wants to ban the use of Islamic law in the state’s courts — just in case Muslims take over.

Jerry Seinfeld Can Mock Missy Chase Lapine

Jerry Seinfeld appearing on the "Late Show with David Letterman"  (Photo: John Paul Filo, CBS/Associated Press)

A New York judge has sided with comedian Jerry Seinfeld in a bizarre lawsuit by a crazy woman who writes cookbooks.

Obama Administration Will No Longer Defend DOMA In Court


Huge news in the marriage equality debate today as the Obama Administration has decided not to defend the Defense of Marriage Act in court anymore.

I Get Emails About History


I received an email today, one of the many PR emails I get per day as a consequence of being an OTB author. This one is for a book about what the Founders would think about modern governance, and begins with this paragraph: Washington, Jefferson and Madison knew exactly what they were doing when they […]

Arizona Hates The Constitution, Loves Nullification


Arizona looks to be the latest state to try to revive the discredited doctrine of nullification.

In (Partial) Defense of Ezra Klein

Ezra Klein

I don’t like it when things my allies say are misquoted and attacked; it’s no better when my allies do it.

Repeal the 17th Amendment?


Why would returning to the system of allowing state legislatures to choose Senators improve representation?

Jefferson and Venerating the Constitution


Given that a frequent topic of discussion is the Constitution, the Founding Fathers, and the issue of original intent. As such, a few observations for discussion. First, here’s Jefferson in a letter to Samuel Kercheval on July 12, 1816: Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the […]

Obama Wants Line-Item Veto

schoolhouse rock bill2

President Obama joins his recent predecessors in wanting a line-item veto and has plans to get around the fact that it’s blatantly unconstitutional. As part of what the White House called a campaign to crack down on wasteful government spending, President Obama on Monday asked Congress to grant him new powers to slice lawmakers’ pet […]

Set Irony To Maximum


The Supreme Court handed down two rulings today which, from almost any other institution, one would be forced to conclude were intended as some sort of philosophical meta-joke. First, in Graham v. Florida, Kennedy rules for a 6-3 Court that, unless there’s a murder involved, it violates the Eighth Amendment to sentence a juvenile to […]

3 Memes That Annoy Me


I marked all of the following in my feed reader this morning, intending to post on them individually.  But, really, they’re all examples of common tropes that annoy the bejeezus out of me. 1.  Have you read it? Lots of folks, including Glenn Reynolds, are chortling over about Attorney General Eric Holder’s admission that he […]

Organization Kids


In his most recent column, David Brooks laments the rise of Organization Kids, of whom he suggests Elena Kagan is an archetype: Kagan has many friends along the Acela corridor, thanks to her time at Hunter College High School, Princeton, Harvard and in Democratic administrations. So far, I haven’t met anybody who is not an […]

Elena Kagan and Military Recruiting


As Doug Mataconis predicted yesterday, the opening gambit of conservatives seeking a reason to deny Elena Kagan confirmation to the Supreme Court is to charge that she’s hostile to the military, as demonstrated by her decision as dean of Harvard Law School to deny military recruiters the right to officially visit the campus because the […]

Elena Kagan Changes Mind on Supreme Court Confirmation Candor


People are having fun with reports that Elena Kagan, who argued as an advisor during the Ruth Bader Ginsburg confirmation that Supreme Court nominees should be required to give very detailed answers to policy questions, has changed her position now that the shoe is on the other foot. Kagan wrote in 1995 that the confirmation […]

Elena Kagan is Not Obama’s Harriet Miers


A meme is emerging that Elena Kagan is Obama’s Harriet Miers.  A good example of this line of thinking is Monica Crowley’s piece at Big Government, “Kagan: THIS Harriet Miers Will Get Confirmed.” I was an early critic of the Miers pick (as was James).  It was impossible to look at her resume and think […]

Supreme Court Term Limits


Continuing a theme of late here at OTB (see here and here), the Kagan discussion reminds me of another reform to the US constitution that I would love to see:  changing the term of office of Justices of the Supreme Court.  Specifically I would eliminate lifetime tenure and instead institute a single term that would […]

The self-annihilation of a man of the arts


“As some leftie website put it, “Defending freedom of speech for jerks means defending jerks.” Well, yes. But, in this case, not defending the jerks means not defending freedom of speech for yourself. It’s not a left/right thing; it’s a free/unfree thing.” — Mark Steyn You’d think a professional writer and man of the arts […]

The Terrorist Expatriation Act


This is ultimately a non-starter (I think), but still worthy of comment: The Terrorist Expatriation Act, co-sponsored by Senators Joseph I. Lieberman, independent of Connecticut, and Scott Brown, Republican of Massachusetts, would allow the State Department to revoke the citizenship of people who provide support to terrorist groups like Al Qaeda or who attack the […]

Mirandize Shahzad? Of Course!


Two prominent Republican Congressmen have come out against reading Miranda rights to American citizens suspected of terrorism. Congressional Republicans want to know whether the Pakistani-born American arrested in the Times Square car bombing plot was read his Miranda rights, with Sen. John McCain saying it would be a “serious mistake” if the suspect was reminded […]

Blatant Unconstitutionality in the Shadow of Framers


For a whole variety of reasons, I’m a strong believer in the adherence to the plain meaning of the U.S. Constitution and believe that it should be amended rather than circumvented when the realities of today conflict with those of 1789.   Still, there are those who make a fetish of the wisdom of the Framers […]

All History A Palimpsest


A left-liberal meme I’ve been seeing a lot lately has been pushback against “conservative judicial activism.” The talking point, which I have seen repeated numerous times in various forums over the past several weeks, is to try to pin one of its own frequent complaints on the right. Now even President Obama getting in on […]

Why ‘Washington, DC’?


Most of us who live in the area call the nation’s capitol “DC” or “the District” or, less often, “Washington.”   But, officially, of course, it’s “Washington, District of Columbia” or “Washington, DC” for short.  The Constitutional origins of the “District” part are well known and the “Columbia” part isn’t all that interesting; they had to […]

Racist Vanity Plates and the Law


For whatever reason, my home state of Virginia leads the nation in vanity plates.    Heck, I’ve got one that says “OTB.”   But, apparently, the DMV frowns on tags that spout racist messages, even exceedingly cryptic ones. Brigid Schulte for WaPo: The owner of a Ford truck bearing the license plate 14CV88 will have to find […]

DC House Vote Dies Again


Yesterday, Steny Hoyer announced that Democrats had failed to achieve consensus on a bill that would give the District of Columbia a House seat.  Again. Apparently, it failed, not over the fact that it’s prima facie unconstitutional but rather because “The price” — a repeal of DC’s unconstitutional gun laws — “was too high.” Jonathan […]

Terry Lakin: Court Martial for Birther Colonel


Terry Lakin, the army lieutenant colonel who refuses to deploy to Afghanistan on account of President Obama not really being an American and thus not authorized to make him will instead be deployed to Fort Leavenworth as a private. U.S. military officials tell NBC News that the U.S. Army will court martial a lieutenant colonel […]

Police Tasering Pregnant Woman ‘Justified’

Taser Stun Gun

The 9th Circuit ruled yesterday that police can Taser pregnant women posing no risk so long as judges can concoct an implausible risk years later. Three Seattle police officers were justified when they used a stun gun on a pregnant mother who refused to sign a traffic ticket, a federal appeals court ruled Friday in […]

Repealing Health Care Reform by Constitutional Amendment


Georgetown lawprof Randy Barnett wants to repeal the just-passed health care reform act by an Amendment to the United States Constitution: THE FEDERALISM RESTORATION AMENDMENT The legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the private health insurance of any person; nor shall the power of Congress to […]

OTB Radio — Tonight at 5:30 Eastern

After a brief hiatus, the next episode of OTB Radio, our BlogTalkRadio program, will record and air live from 5:30-6:30 Eastern. Dave Schuler and I will be joined by a special guest, Dr. Steven Taylor of PoliBlog to talk about ObamaCare:   How big an F’ing deal is it, really?  Is it Constitutional?  What will be […]

Health Care Reform Unconstitutional?


Now that health care reform has been revived from its near death experience, it appears that it will face a series of Constitutional challenges.  My home state of Virginia has fired the opening shot. Via Twitter, no less. To emphasize how ready Virginia is to take the health care overhaul to court, take a look […]

U.S. Senate The World’s Greatest Deliberative Body

Mr Smith Goes Washington Filibuster Photo

My friend and former colleague Steven Taylor offers what he terms “An Extremely Modest Proposal in Regards to the Senate.”  Rather than filibusters and holds, How about if a Senator has a reason to object to a given nominee that said Senator would, oh I don’t know, maybe take the floor and try to, well, […]

Alito: Not True


In last night’s State of the Union speech, President Obama called out the Supreme Court’s decision overturning corporate and union spending limits, saying it “reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” Associate Justice Samuel Alito shook his head […]

Supreme Court Overturns Corporate Advertising Ban


In a landmark decision, the Supreme Court today ruled that the right of corporations to engage in political speech, including campaign and issue advertising,  is protected by the First Amendment. AP, “Justices Block Key Part of Campaign Law” The Supreme Court threw out a 63-year-old law designed to restrain the influence of big business and […]

Scalia Invokes Foreign Law


In what some are viewing with irony, Antonin Scalia yesterday referenced decisions of courts in other nations in discussing how the Supreme Court should interpret an international treaty. Supreme Court Justice Antonin Scalia practically hisses when his colleagues consult foreign law to help interpret the U.S. Constitution. But on Tuesday, Scalia found himself looking approvingly […]

We All Want What’s Best


Ezra Klein surveys the political landscape and offers a bold assessment: At this point, structural reform of the legislative system should, I think, be the main priority for people left, right, and center who want to see action on the problems facing the country. It’s all well and good to try to get the best […]

Senators ‘Holding Health Care Hostage’


In response to the growing refrains from the Left about Joe Lieberman “holding health care hostage,” Steven Taylor observes that, “Either the votes can be mustered or they can’t. It is the way of legislating.” Or of any close decision-making process, for that matter. Sandra Day O’Connor used to “hold the Constitution hostage.”   Now, Anthony […]

Did Texas Ban Marriage?


Barbara Ann Radnofsky, a Democratic candidate for Texas attorney general, claims a 2005 constitutional amendment designed to ban gay marriages actually bans all marriages. The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the […]

National Debt Hits $12 Trillion, Will Double By 2019


Barack Obama has been president for just under 10 months but he’s added two trillion to the national debt and will double it by the end of the decade.  CBS’ Mark Knoller: This latest milestone in the ever-rising journey of the National Debt comes less than eight months after it hit $11 trillion for the […]

Obama’s Nobel Unconstitutional?

noble peace prize

Ron Rotunda and Peter Pham argue in today’s WaPo that it would violate the Constitution for President Obama to accept the Nobel Peace Prize while in office. Article I, Section 9, of the Constitution, the emolument clause, clearly stipulates: “And no Person holding any Office of Profit or Trust under them, shall, without the Consent […]

Killing Presidents

7 Days in May

Related controversies roiling the blogosphere today point to the dark side of American politics. First, NewsMax ran an article by a John L. Perry titled “Obama Risks a Domestic Military ‘Intervention.’” It has apparently been removed from the site (it’s now directing to the home page and isn’t showing along with the author’s other pieces) […]

77% Oklahoma High School Students Can’t Name 1st President?

george washington gilbert stuart painting

A recent survey of Oklahoma public high school students found that the overwhelming majority can’t answer even simple questions about U.S. government and history. A thousand students were given 10 questions drawn from the U.S. Citizenship and Immigration Services item bank. Candidates for U.S. citizenship must answer six questions correctly in order to become citizens. […]

Sotomayor: Overturn Corporate Personhood


It appears that Sonia Sotomayor will be an activist judge after all. During arguments in a campaign-finance case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled. But Justice Sotomayor suggested the majority might have it all wrong […]

Supreme Court May Overturn Campaign Finance Laws

alito and roberts

Tomorrow, the Supreme Court is hearing a case that could overturn two recent precedents allowing the restriction of political speech by corporations for the purpose of curbing the appearance of undue influence.  There’s an excellent chance they will do so. That raises ageless questions about the role of stare decisis — the court’s custom of […]

Innocent Person’s Right Not to Be Executed


Though I follow a number of lawblogs, I missed a rather interesting Supreme Court decision until reading about it on the blog of entrepreneur Mark Cuban. For reasons understandable to those who follow Cuban, he has a Google alert for “prosecutorial misconduct,” which yields more results than one would like. It led him to Michael […]

Hal Turner and the Limits of Free Speech

Hal Turner Photo

How far does the 1st Amendment go?  Hal Turner is about to find out. Internet radio host Hal Turner disliked how three federal judges rejected the National Rifle Association’s attempt to overturn a pair of handgun bans. “Let me be the first to say this plainly: These Judges deserve to be killed,” Turner wrote on […]

Is the Filibuster Unconstitutional?


Matt Yglesias cites a 15-year-old essay by Hendrick Hertzberg arguing that the filibuster is unconstitutional: It’s true that the framers did not specify that the Senate would do its normal business by simple majority vote, but that’s because it didn’t occur to them that they had to specify it, any more than it occurred to […]

Congressional Revolution Needed?


Ezra Klein and Steve Benen are recirculating this somewhat interesting chart on political polarization in America by political scientists Nolan McCarty, Keith T. Poole, and Howard Rosenthal. Ezra argues that “this level of polarization makes it virtually impossible to govern in a system that is designed to foil majorities and require a constant three-fifths consensus. […]

Ideological Wind Tunnels


Glenn Greenwald rebuts those who think his strident attacks on Presidents Bush and Obama for abusing their power make his blog “an ideological wind tunnel” and that he is “oblivious to the practical considerations policymakers must contend with.” By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, […]

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