Day: January 18, 2013


A cool new article in the Harvard JLPP titled “Pre-‘Originalism’” by some good friends, Lorianne Updike Toller, J. Carl Cecere, and Justice Don Willett. Here is the abstract: The ongoing debate over Originalism begs the question of historical legitimacy. All sides have tried to claim that their preferred method of analysis has a stronger historical pedigree by attempting to show that their theory has been adopted by the ultimate constitutional arbiter — the United States Supreme Court. Yet scholarship on this topic has largely been selective and episodic, focusing narrowly on a few specific examples from a few famous Supreme Court cases. Furthermore, those who have studied anecdotal evidence have largely taken Justices’ claims at face value, without discovering whether the justices’ claimed and practiced methodology actually aligned. And research is all-too-often overtly biased, ignoring any evidence that might contradict, or at least complicate, the analysis. This article seeks to overhaul this debate, by analyzing the historical pedigree for various modes of constitutional interpretation using a systematized, quantitative and qualitative analysis of the Supreme Court’s cases of “constitutional first impression” — those occasions on which the Court has approached individual parts of the Constitution for the very first time. In hopes of compiling unbiased, randomized, and controllable data to help answer this question, we performed a quantitative, data-driven review of these 96 cases of constitutional first impression, which span...

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What questions does Justice Kagan have about Missouri v. Holland?

The Court just granted cert in United States v. Bond. Last year, Justice Kagan presided over a moot court at George Washington Law where she considered whether Congress can expand its own powers via a treaty (it focused on a First Amendment issue via Missouri v. Holland). Kagan’s first question off the bat was whether the Court should overrule Missouri v. Holland. Here is the summary of the facts: Prentice v. Pitel Petitioner Graham Detroit Prentice is a political activist who seeks to protect the integrity of the Constitution through a non-profit that Petitioner founded. Following September 11, 2001, Petitioner became increasingly concerned with Islamic extremism and began focusing his organization’s efforts on protesting against it. Petitioner had little success until 2004, when several members of Petitioner’s organization burned an image of an Islamic holy site during a protest in Washington, DC. Petitioner used the consequent media attention to establish his and his organization’s name and message, began organizing such extreme protests as a matter of course, and initiated what he claims is a successful “Sharia Prevention Campaign” in 2006. Two years later, the United States and 41 other nations entered into the Convention on Religious Tolerance. This treaty was a response to a series of terrorist attacks in retaliation for offensive protests outside of Islamic holy sites, which threatened to lead to more protests and even more violence. The...

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We Have The Audio: What Did Justice Thomas Say?

Here is the world-famous colloquy where Justice Thomas finally spoke. Listen for 0:30 for the fun stuff. Listen earlier for context. Thomas speaks at 0:45. “Well, he did not.” So what did he say? It seems that Justice Sotomayor attempted to talk at the same time as Justice Thomas. All I could make out was “Well, he did not.” JUSTICE SCALIA: She was a graduate of Yale law school, wasn’t she? MS. SIGLER: She’s a very impressive attorney. JUSTICE SCALIA: And another of his counsel, Mr. Singer — of the three that he had — he was a graduate of Harvard law school, wasn’t he? MS. SIGLER: Yes, Your Honor. JUSTICE SCALIA: Son of a gun. JUSTICE THOMAS: Well — he did not -­ (Laughter.) MS. SIGLER: I would refute that, Justice Thomas. JUSTICE SOTOMAYOR: Counsel, do you want to define constitutionally adequate counsel? Is it anybody who’s graduated from Harvard and Yale? (Laughter.) JUSTICE SOTOMAYOR: Or even just passed the Bar? MS. SIGLER: Or LSU law. After Thomas spoke there was uncontrollable laughter from throughout the Court. I don’t think they were laughing at Sotomayor’s “serious question.” I think I heard Kagan matter, or Harvard somewhere in there. Share...

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Constitutional Money

I knew that Salmon Chase, the former Secretary of the Treasury, and Chief Justice of the United States was on a $10,000 bill. But I did not know that Chief Justice Marshall was on a $500 bill! The back of the Marshall note shows De Soto’s discovering the Mississippi River. Well, the Mississippi River was certainly “discovered” before, but in terms of Johnson v. M’Intosh, that is accurate. While we are on the topic of constitutional money, at one point James Madison was on the $5,000 bill. The back of the Madison note shows the resignation of General Washington at Annapolis. And, while we are on the topic, the flip-side of the $2 bill is the signing of the Declaration of Independence. Interestingly, an earlier version of the $2 Bill had Monticello on the back. The other non-Presidents on currency are Franklin ($100) and Hamilton ($10). Photographs from Wikipedia. Share...

Read More Sells Out Barclays Center?

WordPress generates funny reports to put traffic in perspective: 19,000 people fit into the new Barclays Center to see Jay-Z perform. This blog was viewed about 110,000times in 2012. If it were a concert at the Barclays Center, it would take about 6 sold-out performances for that many people to see it. And perhaps fittingly, here are the keywords people used to find my blog. Some visitors came searching, mostly for seaside heights hurricane sandy,seaside heights before and after,abigail fisher, and josh blackman.   Share...

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Lance Armstrong Pulls A Scalia, Looks Cheating Up In Dictionary, Finds Favorable Definition

Who knew Lance was a textualist! Winfrey then asked, “Did you feel in any way that you were cheating?” He said, no, “That’s the scariest,” and went on to explain that he had even looked up the word cheat in the dictionary once to find out the exact meaning. He found it to be, “gaining an advantage on a rival or foe,” and convinced himself that he was not cheating because he considered cycling to be a level playing field back then, with all the top riders using drugs. A quick Google search did not find that definition in any dictionary. Share...

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Josh Blackman

Josh is an Associate Professor of Law at the Houston College of Law who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. Josh is the author of the critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013) and Unraveled: Obamacare, Religious Liberty, and Executive Power (Cambridge University Press, 2016).

Unraveled: Obamacare, Religious Liberty, and Executive Power

Unprecedented: The Constitutional Challenge to Obamacare

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