Jack Balkin: How Liberals Can Reclaim the Constitution

I’m all for using originalism to reach liberal results — I think that’s the best way to defend originalism from the charge that it’s no more than cover for a conservative agenda.

But Balkin seems to go to the opposite extreme, and find that (his version of) originalism always (or almost always) leads to liberal results.

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Can the House Sue the President (More Seriously this Time)?

I can accept, as an original matter, the general proposition that the “Case or Controversy” language means at minimum that everyone can’t sue everyone for everything. How modern standing law derives its particular intricacies from this basic proposition is a mystery to me. But that doesn’t matter in this case, which seems fundamentally about an abstract injury common to everyone.

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NLRB v. Noel Canning and Originalism

First, congratulations to co-blogger Mike Rappaport for having two of his articles cited multiple times in yesterday’s recess appointments decision, NLRB v. Noel Canning. Second, my quick takeaway is that the case is a win for originalism.  True, the majority opinion (Breyer, writing for Kennedy, Ginsburg, Sotomayor and Kagan) is an ugly bit of non-originalism.  But…

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The President Does Not Have the Constitutional Power to Order Air Strikes in Iraq

The answer, in my view, depends on whether the U.S. can be “at war” with a non-state actor such as the Sunni rebel force in Iraq.  Here’s my analysis: (1) The President has executive power and commander-in-chief power, and thus can direct the military and conduct foreign relations, so long as he does not do…

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A Partial Defense of the Majority Opinion in Bond v. United States

Chief Justice Roberts’ majority opinion in Bond v. United States has been sharply criticized (see here and here), so I’ll say few words partially in its favor. The case has seemed odd from the beginning because the federal statute at issue implements the Chemical Weapons Convention and (as the majority says) the local misuse of household chemicals does not seem the type of activity that is likely to implicate an international treaty. 

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