Article V – Overlawyered

Constitutional law roundup

Walter Olson — Mon, 11 May 2020 10:17:30 +0000

Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
“While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]

Tags: Article V, constitutional law, COVID-19 virus, Fourth Amendment, judges, Ninth Circuit, public health, Supreme Court

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

The Equal Rights Amendment expired. Can it be revived?

Walter Olson — Thu, 30 Jan 2020 10:58:57 +0000

Lawmakers in both houses of the Virginia legislature have approved resolutions endorsing the Equal Rights Amendment, a measure proposed by Congress in 1972. An Associated Press story, in line with proponents’ characterization, describes the actions in Richmond as a “ratification,” as “final,” and as making Virginia “the critical 38th state.” Is that the case?

Virginia legislators, waving coupon that expired more than 30 years ago: I think this is still valid and I want to speak to the manager [@kewhittington] https://t.co/CJ505sLfoq

— Walter Olson (@walterolson) January 17, 2020

The Office of Legal Counsel of the U.S. Department of Justice has issued an opinion concluding that because the requisite number of states did not ratify the Equal Rights Amendment before Congress’s previously imposed deadline, it cannot be adopted now without starting the amendment process over. [Keith Whittington] The ruling binds executive branch agencies including the National Archives, which per AP “said it would abide by that opinion ‘unless otherwise directed by a final court order.'”

Proponents say the time limit written into the original ERA shouldn’t count because it appeared in the measure’s preamble rather than its main text, and argue that some combination of Congress and the courts are free if they like to count as valid all extensions (whether assented to by a supermajority or by a bare majority), revival measures, and ratification votes taking place at later times, while not counting as valid five states’ rescissions of earlier approval. The case of the 27th Amendment, which was proposed with no time limit and did not reach the requisite number of states until more than two centuries later, suggests that contemporaneous “meeting of the minds” is not so intrinsic a feature of the amendment process as many legal scholars once assumed; on the other hand, a 1921 Supreme Court case, Dillon v. Gloss, confirms that Congress did not act unconstitutionally in prescribing a time limit. [more: Michael Stokes Paulsen, Yale Law Journal, 1993]

The result before long could be a face-off in which advocates claim the ERA has been duly adopted as the 28th Amendment to the Constitution, while others say it hasn’t. [Mike Rappaport, Law and Liberty]

More: If you accept some ERA proponents’ theory that time limits don’t apply *and* that states can never rescind, then — surprise! — we may already be over the required number of states to require Congress to call a balanced budget constitutional convention [Josh Blackman]

Tags: Article V, constitutional law, Virginia

The Equal Rights Amendment expired. Can it be revived? is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law roundup

Walter Olson — Fri, 01 Mar 2019 11:01:29 +0000

You don’t need to be a religious believer to think the Supreme Court should uphold the continued display of the Bladensburg war memorial cross [George Will/syndicated, Eugene “Jesse” Nash IV and Victoria Gomes-Boronat, Capital News Service] Cato filed a brief in the case [Ilya Shapiro, Trevor Burrus, Patrick Moran, and Michael Finch on The American Legion v. American Humanist Association]
“The Second Amendment In The New Supreme Court” [Federalist Society conference with Renee Lerner, Stephen Halbrook, Mark W. Smith, and others; Halbrook on the Court’s decision to hear New York State Rifle and Pistol Association Inc. v. City of New York, earlier on which] Map of state changes liberalizing concealed carry law since 1986 [Eugene Volokh]
In the spirit of balance, here’s a more cheerful and positive view of an Article V convention than the one I take [Paul Starobin, American Affairs Journal]
“Bruno Leoni and the Search for Certainty in Law” [Alberto Mingardi, Law and Liberty]
Oregon carbon emission credit system falls more heavily on out-of-state than on in-state suppliers, and the Dormant Commerce Clause has something to say about that [Ilya Shapiro on Cato cert amicus brief in American Fuel & Petroleum Manufacturers v. O’Keeffe]
Would a wealth tax be constitutional? [Richard Epstein, Hoover]

Tags: Article V, constitutional law, guns, Oregon, religious liberty, taxes

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law roundup

Walter Olson — Mon, 03 Dec 2018 10:59:13 +0000

“Asking a Fourth Amendment nerd why the police don’t just get a warrant is like asking an auto mechanic why drivers don’t just buy a new car.” [Orin Kerr on Twitter] “Judge Thapar Can Handle the Truth about the Fourth Amendment and Due Process” [Ilya Shapiro on police-search case of Morgan v. Fairfield County as well as public university due process case of Doe v. Michigan]
“Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power” [Gene Healy, Cato white paper and video feature] Michael Stokes Paulsen series at Law and Liberty on impeachment and originalism [introduction, developing a principled constitutional basis for use of the power, digression on Aaron Burr, special considerations of impeaching judges and presidents; on original meaning of “high crimes and misdemeanors” in context of English history and Framers’ debates]
“Nonviolent Felons Shouldn’t Lose Their Second Amendment Rights” [Ilya Shapiro and Matthew Larosiere on Cato amicus in Seventh Circuit case of Hatfield v. Sessions]
Court strikes down federal law banning female genital mutilation as overstepping constitutional authority [Eugene Volokh, Ilya Somin]
Launched decades ago, advocates still hoping to reanimate: “The problem with zombie constitutional amendments” [Keith Whittington, Harvard Law Review on the Equal Rights Amendment (ERA) and others; ABA Journal; related,
Gerard Magliocca on ratification deadlines]
Unenumerated rights of constitutional stature should include familial rights of children as well as parents [Ilya Shapiro and Reilly Stephens on Cato amicus brief in Wisconsin Supreme Court case of Michels v. Lyons]

Tags: Article V, constitutional law, Fourth Amendment, guns

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law as it shoulda been

Walter Olson — Tue, 23 Oct 2018 10:05:07 +0000

In learning to reason impartially about constitutional law, a valuable exercise is to come up with a list of instances in which the best reading of the Constitution cuts *against* your own view of good policy. Ilya Somin goes first, with examples that include near-total Congressional control over foreign trade; too much use of juries; the extreme difficulty of removing a seriously bad President; the near-indelible status of state lines; and an amendment process that is too hard to use.

Tags: Article V, constitutional law, juries

Constitutional law as it shoulda been is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law roundup

Walter Olson — Mon, 04 Jun 2018 10:01:42 +0000

“Allegation: Maplewood, Mo. officials trap low-income motorists in a repeated cycle of arrests and jailing over traffic violations by requiring them to pay fines and bonds irrespective of their ability to pay. A Fourteenth Amendment violation? The district court did not err, says the Eighth Circuit, in allowing the case to proceed.” [John Kenneth Ross, IJ “Short Circuit” on Webb v. City of Maplewood]
“Does the Excessive Fines Clause Apply to the States? You’d think we’d know that by now — but the Supreme Court hasn’t spoken to this.” [Eugene Volokh]
“SCOTUS Bingo: The Slaughterhouse Cases” [Sheldon Gilbert on Heritage “SCOTUS 101” podcast with Elizabeth Slattery and Tiffany Bates; Eighth Circuit occupational licensure case]
Should committing a crime unrelated to guns or violence lead to lifetime forfeiture of gun rights? [Ilya Shapiro and Matt Larosiere on Cato amicus brief in Kanter v. Sessions, Seventh Circuit]
“A Debt Against the Living: An Introduction to Originalism,” Federalist Society podcast with Michael McConnell and Ilan Wurman discussing Wurman’s new book]
A new and better Article V? [proposal for an “amendment amendment“]

Tags: Article V, constitutional law, guns, occupational licensure, petty fines and fees, Supreme Court

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Constitutional law roundup

Walter Olson — Tue, 12 Sep 2017 09:57:05 +0000

Even if troublesome for other reasons, discussion of nominees’ religious beliefs does not violate the Constitution’s Religious Test Clause [my post at Secular Right]
I’m quoted toward the end of this report: Congress rather than courts likely to get ultimate say on defining “emoluments” [NPR with Peter Overby, audio and related article, earlier]
Convention of the States? Federalist Society panel video with Thomas Brinkman, Jennifer Brunner, David Forte, Matt Huffman, Larry Obhof, Matthew Byrne [earlier on Article V conventions]
Supreme Court opened — and should now close — “dual sovereignty” exception to rule against double jeopardy [Ilya Shapiro, Cato]
Encyclopedia of Libertarianism, 2008, has articles on the U.S. Constitution by David Mayer and on the rule of law by Norman Barry;
Following big First Amendment win in Slants case Matal v. Tam, feds drop effort to void trademark of Washington Redskins [Ilya Shapiro, Eugene Volokh, earlier]

Tags: Article V, constitutional law, double jeopardy, football, rule of law

Constitutional law roundup is a post from Overlawyered - Chronicling the high cost of our legal system

April 19 roundup

Walter Olson — Wed, 19 Apr 2017 04:05:03 +0000

Sen. Lindsey Graham (R-S.C.), key vote on tort reform in upper house, plans Texas visit to raise funds from trial lawyers [Palmetto Business Daily]
“Indeed, most major law schools have fewer conservatives or libertarians on their faculty than can be found on the U.S. Supreme Court.” [Jonathan Adler, Martin Center]
Anti-craft-beer bill, Marilyn Mosby followup, legislature rescinds earlier Article V calls, Baltimore minimum wage in my latest Maryland roundup;
Man given $190 ticket for having pet snake in park off-leash. Off leash? [John Hult, Sioux Falls Argus-Leader]
As victim’s wife looks on, identity thief and 20-time illegal border crosser testifies that he fathered two of victim’s children [Brad Heath on Twitter citing Judge Bea ‘s opinion in U.S. v. Plascencia-Orozco, Ninth Circuit]
Central California: “State and federal legislation take new aim at predatory ADA lawsuits” [Garth Stapley, Modesto Bee]

Tags: ADA filing mills, Article V, California, law schools, Maryland, politics, Senate, South Carolina, South Dakota

April 19 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Civics 101 podcast: “How to Amend the Constitution”

Walter Olson — Thu, 23 Feb 2017 05:05:45 +0000

I joined Virginia Prescott for episode 4 of the interesting Civics 101 podcast series, hosted by New Hampshire Public Radio, this one covering the Article V constitutional amendment process. You can also find it at NPR and AudioBoom. Description:

It’s been 25 years since the last constitutional amendment was ratified. How hard is it to change our most sacred document? We discover that there are not one, but two ways to amend the constitution – and one of them has never been used. Walter Olson, senior fellow of the Cato Institute explains that the founders didn’t exactly spell the process out clearly.

Tags: Article V, constitutional law, on TV and radio

Civics 101 podcast: “How to Amend the Constitution” is a post from Overlawyered - Chronicling the high cost of our legal system

Last week’s debate: Article V convention to propose constitutional amendments

Walter Olson — Tue, 13 Dec 2016 10:50:15 +0000

Last Wednesday I had the pleasure of appearing at the Intelligence Squared debate series before a New York audience on the topic: “Call a Convention to Amend the Constitution.” Under the series rules, whichever side advances its audience approval ahead more from the original baseline wins. Over the course of the debate, our negative side advanced our side by 21 points, compared with 10 for the affirmative of Prof. Larry Lessig and Mark Meckler. The IQ2 hosts congratulated us on a convincing victory (my ally was Prof. David Super). Probably the only time in my life a camera has caught me doing a high five!

The debate page includes a live transcript of the event, research papers and other resources. The IQ2 series also has selected several clips of highlights of the debate including this one on whether small and large states would have the same vote at a convention. The 2012 Mike Rappaport paper for Cato that I refer to in my closing remarks is here, and I’ve covered Article V convention proposals here and here (and more generally.)

On Monday of last week Prof. Larry Lessig and I joined Brian Lehrer’s much-listened-to WNYC radio talk show to discuss the issue. Listen here:

Tags: Article V, live in person, on TV and radio

Last week’s debate: Article V convention to propose constitutional amendments is a post from Overlawyered - Chronicling the high cost of our legal system