Constitutional law roundup

  • Does the Constitution allow Arizona to frame a new tax in such a way that de facto, though not de jure, nearly all of it falls on out-of-state residents? [Ilya Shapiro, Cato]
  • Writer and star of one-act play “isn’t a fan of America’s founding charter — which may be why her audiences are such big fans of hers.” [Andrew Ferguson, The Atlantic]
  • Pentagon has lately developed aerial surveillance technology with near-panopticon capabilities. OK to deploy over home territory? [Cato video with Patrick G. Eddington, Arthur Holland Michel, and Jenna McLaughlin on Michel’s book Eyes in the Sky: The Secret Rise of Gorgon Stare and How It Will Watch Us All]
  • Ilya Shapiro discusses New York Rifle and Pistol Association v. the City of New York [National Constitution Center We the People podcast; earlier here, here, and here] “Maryland’s gun permit system is challenged — and it’s probably unconstitutional” [my post at Free State Notes] “3-D Printed Guns & the First Amendment” [Federalist Society Policy Brief video with John Stossel and Josh Blackman]
  • Tradcons are kidding themselves if they imagine they can get a better constitutional deal outside the current legal conservative movement with its commitment to a broadly fusionist originalism, argues John McGinnis [Liberty and Law] “Originalism as ideology” [Michael Greve]
  • “Guam officials seek to hold referendum allowing voters to express their opinion about the future of the relationship between Guam and the United States but will only permit ‘Native Inhabitants of Guam’ to vote. Ninth Circuit: Which means restricting voting based upon race, which is explicitly prohibited by the Fifteenth Amendment.” [Institute for Justice “Short Circuit” on Davis v. Guam]


  • Regarding the Arizona tax—why wouldn’t the state have the right to do this? This is qualitatively different from leveraging in-state activity to tax out-of-state activity. With all due respect to Mr. Somin, his position is completely all wet, unless he is arguing for an extension of existing doctrine.

    • If this is illegal in Arizona, Florida is in trouble too.

      Many counties enact a “bed tax” which taxes those who stay in hotels, motels and short term rentals.

      The money raised generally goes into projects that supports tourism as well as projects that “clean up” areas which are greatly effected by tourists. (Beaches, rivers, etc.)

  • So I guess that native residents of Guam aren’t covered by the Bureau of Indian Affairs and don’t get the same protections or privileges that native Americans get? That does beg the question – why not?

    • To the best of my understanding, they’re just not a federally recognized tribe. Probably should be, but there’s a petitioning process, etc. This has also apparently caused FHA issues and the like, which the tribes would be exempt from if they were federally recognized.

    • It prompts the question. It does not beg the question. ?

  • re: Writer/Star

    I think Ferguson has it wrong. The writer/star is not anti-constitution. She simply does not like the way the constitution is interpreted by 9 people…

    She should join the club. I believe that anyone who has any thoughts about the subject likes and dislikes how the constitution has been interpreted. That does not mean that they dislike the constitution itself.

    Some examples: pro-life people don’t like that the constitution protects abortion; federalists don’t like the enormous power that the federal government has ceded itself; anti-gun activists don’t like that the 2nd amendment applies to individuals; anti-corruptionists don’t think that money is speech; racists don’t like that they cannot discriminate.

    I would submit that, despite their disagreements with interpretation, each of the groups would say they support the constitution.

    • Allan, there’s certainly people who have issues with the Constitution’s content: indirect election of the President and the uniform number of Senators per state are two obvious ones, then there’s the lack of term limits, and apparently there’s some people who have problems with the 1st Amendment these days (I admit, I’d prefer a far more restrictive Establishment Clause). I remember when I was 15 being embarrassed at a restaurant because my grandfather was calling the 19th Amendment a mistake while our waitress was at the table. Nobody likes the 16th Amendment.

      Not sure whether or not that sort of thing counts as disliking the constitution… but unless our current constitution is word-for-word what you’d write if you were in charge of starting over from scratch like Charles DeGaulle got to do for France, then there’s parts you dislike.

    • “The writer/star is not anti-constitution. She simply does not like the way the constitution is interpreted by 9 people… ”

      I don’t think anyone likes the way that it’s interpreted in all cases. But the writer’s problems with it seem to run deeper than that.

      “Today, however, I actually don’t think our Constitution is failing. I think it is doing exactly what it was designed to do from the beginning, which is to protect the interest of a small number of rich white men.”

      That’s not what you say when you’re just disagreeing with interpretations.

      • David,

        Good point. On the other hand, the Warren court’s criminal law decisions and many of the pro new-deal decisions certainly show that the constitution can be interpreted in ways that are not “in the interest of a small number of rich white males.” I would submit that, even if the constitution was written to protect a group of people, it uses broad enough language to fail at its purpose. Consequently, the writer/star is concerned that the constitution is succeeding in what it was intended to do, as opposed to necessarily being anti-constitution.