Tag Archives: Tenth Amendment

That Said, Why Did Conventional Wisdom Fail?

Let’s assume that Tuesday’s argument on the individual mandate wasn’t what any reasonable proponent should’ve expected, and that the Justice’s questions are cause for alarm. Why was every serious legal academician wrong? Two reasons. First, this is a Supreme Court that’s defied convention again and again, making them the most “activist” and conservative Court in recent memory. Neither […]

ObamaCare: the Value of Narrative in Appellate Advocacy

Today begins oral argument in No. 11-398, U.S. Dep’t of Health & Human Services v. Florida, the “ObamaCare” case.  By most counts, this is a case Republicans should expect to lose, probably by a lot. The Supreme Court has never limited congressional power to regulate strictly economic conduct, not even at the high point of Chief Justice Rehnquist’s […]

The Eleventh Circuit on “ObamaCare”: How the Tea Party Actually Lost

See others’ take on the same. Set aside the Court’s holding that the individual mandate represents an inappropriate expansion of the Commerce Clause — to which this is a proper rejoinder.  Instead, when reading the monolithic opinion (pdf), take note of Section III.B, which begins on page 55, and rejects the Plaintiffs’ attempt to read […]

Theocratic Constitutionalism & the Hollowness of Republican “Freedom”

How disconcerting to have one’s Christian name used as a Twitter tag to describe the aspirations of seven men and one woman, none of whom will ever be President. Still, yesterday’s debate gave a fairly good idea of what each candidate means when they use words like “liberty” or “freedom,” and expressions like “states’ rights.” […]

Newt Gingrich Takes Courageous Stand Against Medicare, Civil Rights

In a Constitution explicitly premised on limited powers, the Tenth Amendment reservation of unallocated rights to the people or the states is essentially a “truism” — a restatement of a result that was already obvious to any careful reader. Put another way, the Tenth Amendment “added nothing to the [Constitution] as originally ratified.” United States v. Sprague, 282 U.S. 716, […]

Reconciling the Right’s Cognitive Dissonance on Marriage

Texas Governor and perpetually undecided presidential candidate Rick Perry explains his stance on gay marriage. It’s a state decision, through and through. Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their […]

Cracks in the Veneer: the Tea Party Case for Gay Marriage

Beating Boies & Olson and likely Judge Walker (N.D. Cal.) to the punch, yesterday, Judge Tauro (D. Mass), a Nixon appointee, in a set of two cases, invalidated the critical § 3 of the Defense of Marriage Act (DoMA) as violative of the federal Equal Protection Clause, and, wait for it — the Tenth Amendment. […]

Make No Mistake: Nullification Effects Disunion

RedState is advertising and otherwise boosting a new book by Thomas Woods: “Nullification: How to Resist Federal Tyranny in the 21st Century.” In the wake of the Fourth of July, it’s only proper to ask: what pale spectre of patriotism is this, that (here and otherwise) dishonors the legacy of our Founders by perpetuating a […]

Calhoun’s Revenge: Frivolous “Sovereignty” Litigation

One of the criticisms regularly leveled against progressives, especially progressives fighting for social change, is that we treat the judicial branch as a third political branch, using it to litigate victories that we couldn’t win in the court of public opinion. That’s actually true, to the extent that those victories turn upon legal rights. We […]

Texas Governor’s Debate: Two Secessionists, and Kay Bailey Hutchinson

If you’ve been watching the Texas governor’s race, you’ll know that the Republican primary is, essentially, a clash between a respected stateswoman, and an embarrassing incumbent with “tea party” sympathies. What you may not know — I’m embarrassed to say I didn’t — is that there’s another candidate in the race. Meet Debra Medina: Activist […]