Memoir of Justice Stevens
Justice Stevens is publishing a memoir in April. According to a New York Times article on the book, the Justice provides some behind-the-scenes discussion of at least one decision (Heller) from his...
View ArticleThe Status of the Bill of Rights
Today’s oral argument in Times v. Indiana strongly suggest that the Supreme Court will incorporate the Excessive Fines Clause of the Eighth Amendment. On the eve of Bill of Rights Day, the comments...
View ArticleTotal Incorporation and Small Claims
I was thinking the other day about the consequences of incorporating the remainder of the Bill of Rights. Take the Seventh Amendment, which remains unincorporated. If that is applied to the states,...
View ArticleCuriosities From the OLC Opinions
Lately I’ve been reading old OLC opinions as a research exercise. One that I came across raises a fascinating question: Can Congress make attempted presidential assassination a capital crime? Attempted...
View ArticleSmall Claims Court
I think that my earlier post about incorporating the Seventh Amendment was wrong. I’m not sure that any state forces people to go into small claims court and therefore receive no jury trial in a civil...
View ArticleCan Congress Pardon the President?
Here’s another interesting tidbit from the old OLC opinions. If you think that that the President cannot pardon himself, then can Congress pardon the President. The claim here is that a congressional...
View ArticleGamble and Guido
Tomorrow the Supreme Court will bear argument in Gamble v. United States, in which the Justices are being asked to overrule their 1958 decision in Bartkus v. Illinois. I’ll have more to say about the...
View ArticleWinston Churchill and Legislative Chambers
I’ve been doing some research on Winston Churchill. He had many penetrating insights on constitutional law and practice. One of them was that the British House of Commons (and many modeled on that...
View ArticleTotal Incorporation of What?
Suppose you take seriously the comments by Justices Gorsuch and Kavanaugh in Timbs that the entire Bill of Rights applies to the States. Does that not mean that the Tenth Amendment is not part of the...
View ArticleGrand Jury Incorporation
I would be interested to hear from attorneys or scholars in criminal law about the following: Is there any policy argument in favor of using a grand jury indictment instead of an information to charge...
View ArticleIs a National Lottery Constitutional?
Here’s another interesting nugget from the old OLC memos. Can Congress create a national lottery?The OLC (in the 1980s) took the position that no enumerated power could sustain a lottery. I’m not sure...
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Churchill on Prohibition
As I mentioned in a prior post, Winston Churchill made many interesting observations about our Constitution. One came in a 1929 op-ed (written for a British newspaper) in which he sharply criticized...
View ArticleThe End of CoOp
We have decided that Concurring Opinions will come to a close at the end of the month. There will be some final farewell posts, but starting on January 1 the site will be dormant while we figure out...
View ArticleWinston Churchill and Federalist #10
One point of interest during my research on Winston Churchill is that he quoted Federalist #10 in his discussion of the Constitution in A History of the English Speaking Peoples. Moreover, he seems to...
View ArticleThe Joys of Writing
I came across this 1908 speech from Churchill that wonderfully expresses why I love what I do: ”The fortunate people in the world—the only really fortunate people in the world, in my mind—are those...
View ArticleChurchill and the Declaration of Independence
At the end of her terrific book on the Declaration of Independence, Pauline Maier marveled that by 1943 Archibald MacLeish was calling that text “is a part of the British inheritance as it is of ours.”...
View ArticleChurchill on Democracy
One of Churchill’s most famous quotes is that democracy is the worst form of government except all others (though he said something different and was quoting someone else). In a delightful 1954 speech...
View ArticleThe Severability Mess
I’m not concerned about Judge O’Connor’s opinion invalidating the Affordable Care Act. Appellate courts exist to correct erroneous trial court rulings. I am concerned, though, about the state of...
View ArticleSir Humphrey on the End of CoOp
I will probably retire this meme for future blogging, but I thought I’d close my CoOp posts with one last quote from Sir Humphrey Appleby: “Minister, I have some very grave news.” “Yes, Humphrey?” “The...
View ArticleOne Final Note
The Concurring Opinions website will now go dormant. The links for old posts will remain active. I’m not sure how long they will stay active, as winding up everything here will take time. There could...
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