Law: Constitutional Law 
Essential
The Purpose and Limits of Government
"With the aid of experience, this essay will examine the theory behind the Declaration’s universal insights. Its focus will be on the moral order the Declaration sketches and the place of government within that order."
Colonial Origins of the American Constitution: A Documentary History
"A collection of eighty documents which demonstrate how local government in colonial America was the seedbed of American constitutionalism."
Recommended
Questioning Elena Kagan
The confirmation hearings for Supreme Court nominee Elena Kagan begin this week, and Cato's Ilya Shapiro suggests that the process may highlight more than just partisan wind-blowing. "For the first time in decades, the Constitution is a major issue in an election year... Americans are correctly asking: Are there any limits to government power anymore?" Shapiro offers a list of questions to be asked of Ms. Kagan to determine her views on the power and extent of the government's reach. These questions serve to, as Kagan herself wrote in 1995 regarding the nomination process, "gain knowledge and promote public understanding of what the nominee believes the court should do and how she would affect its conduct." Shapiro notes that if Kagan deflects or otherwise subverts senators' questioning, she will have failed her own standard.
Campus Conundrum: Free Speech or Non-Discrimination?
The University of California - Hastings law school will not grant funding to the Christian Legal Society because CLS does not grant membership to those who advocate or engage in sex outside heterosexual marriage. Cato constitutional studies scholar Ilya Shapiro and center for educational freedom scholar Neal McCluskey discuss the case. Legally, CLS wins the case, as protected under the First Amendment. That a government entity could grant funding to some and deny it to others is a form of discrimination in itself; and a group that cannot restrict membership ceases to be a group. Ultimately, though, this is not ideal, as some would be forced to fund (via tax dollars) something to which they object. The only way to prevent government from violating the constitutional rights of its citizens is to get the government out of education.
Courts Won't Hear Free Speech
While there is much value in keeping church and state separate, that cannot be cause for limiting freedom of speech. Cato scholar Nat Hentoff raises this concern as U.S. Courts have opted to remain silent on the issue of students' First Amendment rights being trodded upon by school administrations and policies. Hentoff advises that if the Constitution is going to last, its understanding must be renewed in society. Schools provide a great place to do this, and should not be used instead to undermine the Constitution.
That this debate falls on the inherent conflict of ‘free speech’ and ‘separation of church and state’ is cause to revisit the government monopoly of the education system, which is discussed much by Cato's Neal McCluskey.
Taking Government to a Whole New Level
Cato chairman Robert Levy explains the new role of government that Congress has brought into existence with its expansive policies. Specifically addressing Obamacare legislation, Levy uses analogy to illustrate that the new legislation is an unprecedented advance of government into citizens' lives, and raises serious questions of its constitutionality. Government has never before been afforded authority to mandate the active economic actions of its people, but with Obamacare it does explicitly that. Levy warns, "Beware the new role for government that the political class has put on the table."
Will You Meet This Challenge?
Cato Constitutional Studies scholar Ilya Shapiro sends out a challenge to anyone wanting to debate the constitutionality of the new health care legislation. Shapiro offers to debate anyone - anytime, anywhere. Will you take him up on it?
Healthcare Hoopla
Michael McConnell, law professor at Stanford University and scholar at the Hoover Institution, discusses the revived healthcare debate in light of the Constitution. He says that the current 'reconciliation' process being pursued by House Democrats would "enable Congress to vote on legislation that fixes flaws in the Senate health-care bill without facing a Senate filibuster, and without requiring House members to vote in favor of a Senate bill that is now politically toxic." All niceties aside, however, McConnell notes that such a process explicitly violates the Constitution, and a 1998 Supreme Court decision. Democrats are seeking for a way to enact invasive laws while retaining political anonymity. "The Constitution," McConnell says, "was drafted to prevent that."
Cato scholar Michael Cannon presents several other affronts to liberty by the House healthcare push on the Cato blog here.
Is the Supreme Court Afraid of the Constitution?
Cato fellow and Georgetown law professor Randy Barnett discusses how the Supreme Court recently appeared to intentionally avoid part of the Constitution. The McDonald case, which addresses the application of the Second Amendment on the State level, was heard before the Court on March 2nd. Barnett notes that while it is quite likely that the final ruling of the case will fall in favor of supporting gun rights within the states, the Court appears to be upholding one amendment of the Constitution while ignoring another, the 14th. Addressing the 14th Amendment is viewed by the Court as “opening a can of worms” and was therefore brushed aside, says Barnett, leading him to comment, "When it came to following the written Constitution, a visitor from another planet would not, I suspect, have been very impressed.”
Is Obamacare Unconstitutional?
In an NPR audio clip and article, lawyers and scholars discuss the constitutionality of the Obamacare legislation that mandates individuals to purchase insurance or face fines. Some scholars, including Cato's Randy Barnett, say that there is no precedent for, in essence, taxing people just for living. Barnett states that that such a mandate extends beyond the enumerated powers of the Constitution. Others, in favor of the mandate, say that there is a first time for everything, citing the creation of the Social Security Administration as an example of a broad and monumental new federal program. Scholars on both sides say that this debate may end up before the Supreme Court.
To listen to the 4 minute audio clip of this story, click here.
Obamacare Is Unconstitutional
While the houses of congress have been debating Obamacare for months, one thing that has apparently been left out of the discussion is the Constitution. Gene Healy notes that, sadly, this has been the trend in American politics for some time. Legislators and the Courts often cite the Commerce Clause of the Constitution to support reaching federal hands into individuals' lives, and history bears witness to this. However, Healy contends, that is no excuse for Congress to default on their oath to protect the Constitution.
Google On Trial
Legal disputes have arisen concerning Google’s forthcoming ‘Book Search' utility. Adjunct Cato scholar Timothy Lee discusses this issue in light of a settlement that Google has reached with a group of authors and publishers. Lee claims that the problem is not with Google's stance on the copyright issues, but the expansive powers that the settlement grants. He furthermore cites Librarian of Congress Marybeth Peters, who wrote that "the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress." Judicial approval of the settlement could alter copyright law, and potentially grant Google with certain unchecked power. Lee concludes that the issue at stake is not the Google case alone, but the establishment of a precedent, stating “Congress, not the judicial branch, is responsible for making broad changes to rules of copyright.”
*(Lee wrote a follow-up article based on a discussion with a Google policy analyst, featured here.)
Hillary, Sotomayor to make headlines again in court
August is past, and it's time for political debate and court hearings to resume in Washington. Citizens United v. FEC is one of the first legal issues to be discussed, being argued before the Supreme Court on September 9th. Beyond the case itself lies a issue that the court has already made clear will establish new precedents in both campaign finance and free speech regulation. Mark Sherman, AP, writes that the case "took on greater significance after the justices decided to use the case to consider whether to ease restrictions, established in two earlier decisions now at issue, on how corporations and labor unions may spend money to influence elections." With Hillary, Sotomayor, McCain, and other political celebrities involved, though fall is beginning, Washington may be heating up. Expect to hear more on this issue.
Obamacare: Compulsory Insurance, Unconstitutional?
Taking a look at a bit of legal history, two former White House lawyers review the legality of Obamacare in The Washington Post. They cite that, "The Constitution assigns only limited, enumerated powers to Congress and none... would support a federal mandate requiring anyone who is otherwise without health insurance to buy it." No matter the motivations behind such efforts, Congress is ultimately bound by two factors: the Constitution and the American people. One would require a constitutional amendment, the other a major social shift, which seems unlikely considering recent polls.
Sotomayor Doesn’t Deserve a Supreme Court Seat
Senior Fellow in Constitutional Studies Ilya Shapiro offers his critique after sitting through the Sotomayor confirmation hearings. "Deciding how to vote on this is more than a simple matter of deciding whether she is “qualified” to sit on the Supreme Court," says Shapiro, adding that Sotomayor "leaves me with an abiding concern about the damage she could do to the rule of law in this country."
Sotomayor: A Presidential Power Skeptic?
By Gene Healy: "For all her faults, it's unlikely that Sonia Sotomayor will be a pushover for any wartime president. Constitutionalists and civil libertarians should take comfort in the fact that it could have been worse."
'Thought Crimes' Bill Advances
Cato's new senior fellow, Nat Hentoff, takes a look at the recent passage of the Local Law Enforcement Hate Crimes Prevention Act passed in the House of Representatives on April 29, and notes the bill's various violations of the U.S. Constitution, including the First, Fifth, and Fourteenth Amendments.
Deferred Law Firm Associate Program
Many law firms are asking their incoming first-year associates to defer their start dates (from a few months to a full year) and are offering stipends to these deferred associates to work at public interest organizations. The Cato Institute invites third-year law students and others facing firm deferrals to apply to work at our Center for Constitutional Studies. This is an opportunity to assist projects ranging from Supreme Court amicus briefs to policy papers to the Cato Supreme Court Review.
Kelo v. City of New London
Susette Kelo's legal battle with New London, Conn. brought about one of the most controversial and troubling Supreme Court rulings in many many years. But her fight also spurred a backlash among property owners and state legislatures. Susette Kelo now lives in a town across the river from New London.
January Op-Eds of the Month
Congratulations to Jonathan Slemrod and Charles Johnson for winning the Cato on Campus Op-Eds of the Month! Covering environmentalism and free speech on campus, their op-eds will now be considered for the Op-Ed of the Year and a full scholarship to Cato University.
Roger Pilon: "Is Affirmative Action Compatible with Equal Protection?"
Who: Roger Pilon What: Speech on "Is Affirmative Action Compatible with Equal Protection?" Where: Maquette Law School Host: Marquette Law School Federalist Society
Roger Pilon: "Should Judges Secure Unenumerated Rights? From Lochner to Lawrence"
Who: Roger Pilon What: Speech on "Should Judges Secure Unenumerated Rights? From Lochner to Lawrence" Where: University of North Carolina Law School
Roger Pilon: "Federalism and the Fourteenth Amendment: How Both Liberals and Conservatives Get It Wrong"
Who: Roger Pilon What: Speech on "Federalism and the Fourteenth Amendment: How Both Liberals and Conservatives Get It Wrong" When: February 17, 2009, at 4:00pm Where: Duquesne Law School
Roger Pilon: "Should Judges Secure Unenumerated Rights? From Lochner to Lawrence"
Who: Roger Pilon What: Speech on "Should Judges Secure Unenumerated Rights? From Lochner to Lawrence" Where: University of Pittsburgh Law School
Ilya Shapiro: "Race-Based Government in Paradise? Hawaii v. OHA and the Akaka Bill"
Who: Ilya Shapiro What: Speech on "Race-Based Government in Paradise? Hawaii v. OHA and the Akaka Bill" Where: Bello Mansion Host: Dallas Federalist Society Lawyers Chapter
Ilya Shapiro: "How I spent My Summer Vacation: Rule of Law in Iraq"
Who: Ilya Shapiro What: Speech on "How I spent My Summer Vacation: Rule of Law in Iraq" Where: University of Louisville Law School Host: University of Louisville Law School Federalist Society Chapter
Ilya Shapiro Debate on Race-Based Government
Who: Ilya Shapiro What: Debate on "Race-Based Government in Paradise? Hawaii v. OHA" Where: Manoa Campus, 2515 Dole Street Classroom 2 Host: University of Hawaii Law School Federalist Society Chapter
Ilya Shapiro: "What Can We Expect from the Obama Administration on Judicial Appointments?"
Who: Ilya Shapiro What: Speech on "What Can We Expect from the Obama Administration on Judicial Appointments?" Where: Bannan 236, Santa Clara University Law School Host: Santa Clara University Law School Federalist Society Chapter
Ilya Shapiro: "What Role Should Foreign Law Play in U.S. Constitutional Interpretation?"
Who: Ilya Shapiro What: Speech on "What Role Should Foreign Law Play in U.S. Constitutional Interpretation?" Where: Harrington's (245 Front St.) Host: San Francisco Federalist Society Lawyers Chapter
Ilya Shapiro: "What Role Should Foreign Law Play in U.S. Constitutional Interpretation?"
Who: Ilya Shapiro What: Speech on "What Role Should Foreign Law Play in U.S. Constitutional Interpretation?" Where: Stanford University Law School Host: Stanford University Law School Federalist Society
Robert A. Levy: The Dirty Dozen
Where: McCormick & Schmick's Restaurant, 2000 Main Street, Irvine (949) 756-0505 Host: Orange County Federalist Society Description: Bob Levy presents twelve seminal high court decisions that he warns will allow government to: • interfere in your private contractual agreements • curtail your rights to criticize or support political candidates • arrest and imprison you indefinitely, without filing charges • seize your private property, without compensation, when someone uses the property for criminal activity—even if you don't know about it!
Ilya Shapiro: "What Can We Expect from the Obama Administration on Judicial Appointments?"
Who: Ilya Shapiro What: Speech on "What Can We Expect from the Obama Administration on Judicial Appointments?" When: February 5, 2009 Where: University of San Francisco Law School Host: University of San Francisco Law School Federalist Society
Ilya Shapiro: "Judicial Nominations: What's Gone Wrong and Can It Be Fixed?"
Who: Ilya Shapiro What: Speech on "Judicial nominations: What's Gone Wrong and Can It Be Fixed?" When: February 4, 2009 Where: University of San Diego Law School Host: University of San Diego Law School Federalist Society
Ilya Shapiro: "What Does the Second Amendment Really Mean?"
Who: Ilya Shapiro What: Speech on "What Does the Second Amendment Really Mean?" When: February 3, 2009 Where: Bethesda-Chevy Chase Rotary Club Monthly Lunch
Ilya Shapiro Debate at Georgetown University Law School
Who: Ilya Shapiro What: Debate over "Is Hillary Clinton Unconstitutional?" When: February 27, 2009 Where: Georgetown University Law School Host: Georgetown University Law School Federalist Society
Ask the Expert: Robert A. Levy on the Possibility of an Assault Weapons Ban
Robert A. Levy, chairman of Cato's board of directors and the man who organized the plaintiffs' case in D.C. v. Heller, discusses the political feasibility of an Assault Weapons Ban proposal in Congress and why such a ban may be considered unconstitutional today.
Unsolicited Advice for Obama
By Radley Balko: "I don't agree with Obama on much (I don't agree with the current administration on much, either), so I won't make an appeal with him to compromise with the Republicans on the issues where I agree with them. Instead, here are a few recommendations - some substantive, some symbolic - of moves Obama could make that are consistent with the principles he articulated during the campaign:"
Is it Constitutional?
Richard Rahn, Senior Fellow at the Cato Institute, asks a question about the government's $700 billion bailout that few others are asking: Is it constitutional?
Ask the Expert: Ilya Shapiro
Ilya Shapiro, Senior Fellow of Cato's Center for Constitutional Studies and Editor-in-Chief, Cato Supreme Court Review, answers the question "To promote individual liberty, is a conservative or liberal Supreme Court advantageous?"
Parody Flunks Out
By Harvey Silverglate: "Political humor is no longer welcome in Academia as administrators choke the life out of parody."
What Next for D.C.'s Gun Laws
By Robert A. Levy and David Kopel: "The Supreme Court ruled in June that provisions of Washington, D.C.'s gun laws are unconstitutional. Unfortunately, the city has responded with new regulations that are a flagrant attempt to circumvent the court's decision."
District of Columbia V. Heller: What's Next?
By Robert A. Levy: "Following a victory that some thought impossible, the advocates of the right to bear arms are asking themselves where to go next. None are more qualified to answer that question than Robert A. Levy, co-counsel in District of Columbia v. Heller, the landmark case that has permanently changed the shape of gun rights jurisprudence." - Dr. Jason Kuznicki
The Second Amendment Goes to Court
Alan Gura, Glenn Reynolds, Randy Barnett, Brian Doherty, Sanford Levinson, Jacob Sullum, and Dave Kopel respond to D.C. v. Heller
D.C. Gun Ban Struck Down
"On Thursday, the Court rediscovered the Second Amendment. More than five years after six Washington, D.C. residents challenged the city’s 32-year-old ban on all functional firearms in the home, the Court held in District of Columbia v. Heller that the law is unconstitutional. Heller is merely the opening salvo in a series of litigations that will ultimately resolve what weapons and persons can be regulated and what restrictions are permissible. But because of Thursday’s decision, the prospects for reviving the original meaning of the Second Amendment are now substantially brighter." - Robert A. Levy, Co-counsel to Mr. Heller
In a Class Of Your Own
By Roger Pilon: "When the Supreme Court affirms a decision of the U.S. Court of Appeals for the 9th Circuit, that's news, especially when nearly every other circuit has gone the other way. That's what happened last week in Engquist v. Oregon Department of Agriculture. Unfortunately, the news would be better had the 9th Circuit gotten it right."
Is Real ID Really Going to Happen?
By Matthew Blake: "Little about Real ID has gone as planned. All 50 states, and the District of Columbia, were given extensions by the Dept. of Homeland Security to comply with Real ID. This extension was given despite the fact that 17 states passed resolutions saying they have no intention of ever implementing the program."
Battle Over Eminent Domain Is Another Civil Rights Issue
By David T. Beito and Ilya Somin: "Few policies have done more to destroy community and opportunity for minorities than eminent domain. Some 3 to 4 million Americans, most of them ethnic minorities, have been forcibly displaced from their homes as a result of urban renewal takings since World War II."
Employers Must Pull the Trigger
By Robert A. Levy: "The owner of the property should be able to determine — for good reasons, bad reasons, or no reason at all — whether to admit gun owners, non-gun owners, neither or both. Customers, employees and guests who object may go elsewhere. That's the controlling principle."
The Dance, Dance Revolution Will Be Televised After All
By Julian Sanchez: "The plan had been to celebrate the birth of the author of the Declaration of Independence by congregating, flashmob style, for ten minutes of quiet iPod-fueled dancing, then repair to a pub nearby. Instead, park police brought the party to an abrupt halt, arresting 28-year-old Brooke Oberwetter and leading her away in handcuffs, while chasing the rest of the group off."
FISA Funny Business
By Julian Sanchez: " The terrorist attack had been as devastating as it was unexpected. Convinced that better intelligence was the key to preventing fresh attacks, the president resolved to seek legislation granting the executive branch broad new wiretapping powers. But he had a problem: The opposition party, which controlled Congress, was equally determined to block provisions that they saw as an affront to privacy."
Armed for Liberty
By Alan Gura and Robert A. Levy: "Imagine a right — intended, in part, as a deterrent to oppressive government — that can be exercised only when, where, and in the manner that government directs. "
Limits on Eavesdropping Need to Stay
By Timothy B. Lee and Gene Healy: "Modern computer technology makes the potential for the abuse of unfettered executive power much greater today. Judicial oversight is at least as important in the 21st century as it was in the 20th, and Congress should resist Bush's demand for unchecked spying powers."
No, a President Can't Do as He Pleases
By Edward H. Crane and Robert A. Levy: "For many years, we were at risk of losing important civil liberties through unchecked transgressions by the executive branch. Maybe we are still at risk. But thanks to the media, the courts and — belatedly — an energized opposition in Congress, the administration has finally resigned itself to a semblance of congressional oversight, even if judicial scrutiny remains inadequate."
The Surveillance Scam
By Timothy B. Lee: "In his State of the Union address, President Bush pressed Congress to quickly pass legislation to make permanent the sweeping spying powers that Congress granted last August. Those powers, which include the ability to eavesdrop on foreign-to-domestic communications without meaningful judicial oversight, were due to expire last week. Congress has passed a two-week extension of the law, but that barely gives Congress time to catch its breath before the White House resumes its campaign to make it permanent."
The Whys of Spies
By Jacob Sullum: "Last August, panicked at the prospect of an imminent terrorist attack that could be averted only by granting the executive branch new surveillance powers, Congress passed the Protect America Act. With the law scheduled to expire this month, the Bush administration is trying to scare Congress into making the powers permanent."
Flunking Free Speech: The persistent threat to liberty on college campuses
By Michael C. Moynihan: "According to a dossier compiled by FIRE, incoming freshman were required to undergo "treatment" (the university's word) by residence hall apparatchiks, and forced "to adopt highly specific university-approved views on issues ranging from politics to race, sexuality, sociology, moral philosophy, and environmentalism." These young scholar-scamps in Wilmington are told solemnly that they are, according to the precepts of the university, carriers of racist original sin: '[A] racist is one who is both privileged and socialized on the basis of race by a white supremacist (racist) system. The term applies to all white people (i.e., people of European descent) living in the United States, regardless of class, gender, religion, culture or sexuality.'"
New Handshake, Same Grip
By David Nather: "For the past seven years, George W. Bush has expanded presidential power in ways that no one could have predicted when he took office. He and Vice President Dick Cheney have worn their independence — from oversight by either lawmakers or judges — as a badge of honor, necessary to keep the nation safe from another terrorist attack and restore what they have regarded as a weakened presidency. But the cost has been a poisonous friction with Congress and a growing public perception that they simply weren’t interested in checks and balances."
Restoring Habeas
By Julian Sanchez: "No American would accept the proposition that one of our citizens, having been cleared of wrongdoing by American courts, could be abducted by a foreign power and imprisoned for years, only to have his fate determined by a kangaroo court that flouted the most elementary procedural rights. The Supreme Court should not accept it from our government either."
Bill of Rights Day
By Tim Lynch: "Since today is Bill of Rights Day, it seems like an appropriate time to pause and consider the condition of the safeguards set forth in our fundamental legal charter."
Free to Booze
With Brandon Arnold: "Cheers! Today is the 74th anniversary of the repeal of Prohibition. On December 5, 1933, Utah became the 36th state to ratify the 21st Amendment, thereby repealing the 18th Amendment and ending our 13 years as a dry nation."
Carefully Plotted Course Propels Gun Case to Top
By Adam Liptak: "Robert A. Levy, a rich libertarian lawyer who has never owned a gun, helped create and single-handedly financed the case that may finally resolve the meaning of the Second Amendment."
Supremes to Hear Second Amendment Case
With Robert A. Levy: "For the first time in nearly 70 years, the Supreme Court has agreed to examine the meaning of the Second Amendment. That's good news for all Americans who would like to be able to defend themselves where they live and sleep. And it's especially good news for residents of Washington, D.C., which has been the murder capital of the nation despite an outright ban on all functional firearms since 1976."
National City: Eminent Domain Gone Wild
Reason.tv host Drew Carey visits National City, California, where the local government is taking eminent domain abuse to new lows.
Unholster the 2nd Amendment
By Robert A. Levy: "Later this month, the Supreme Court will decide whether to review the circuit court's blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the 2nd Amendment protects the rights of individuals."
Restoring the Lost Constitution
With Randy Barnett: "The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government."
Funding the REAL ID Act: Improved Homeland Security or More Washington Waste?
Featuring: David Williams, Vice President of Policy, Citizens Against Government Waste; Andrew Moylan, Government Affairs Manager, National Taxpayers Union; and Jim Harper, Director of Information Policy Studies, Cato Institute.
Constitution Day
The Supreme Court: Past and Prologue A Look at the October 2006 and October 2007 Terms
Public Power, Private Gain
This comprehensive report, prepared by the Institute for Justice and senior attorney Dana Berliner, carefully catalogues the extent of the problem of eminent domain abuse. It illustrates how municipal good intention, often for urban redevelopment or economic promise, can be unfairly built upon the rightful ownership of others. When projects are carried out heavy-handedly and unnecessarily, not through voluntary transaction, but coercion, the protection of property is eroded and our bedrock freedom to decide upon our own course is worn away.
Costly Federal Agencies
Your tax dollars aren't necessarily hard at work. Eliminating these costly departments and agencies would save Americans their hard-earned dollars and help return the federal government to its constitutional limits.