Has the United States Constitution become outdated and obsolete? Constitutional attorney David Rivkin debates Constitutional Law Professor Louis Michael Seidman on whether or not it’s time to ditch the Constitution.
January 5, 2013
To uphold the individual mandate as an exercise of the taxing power, the majority overlooked the natural meaning of the statutory text.
By David B. Rivkin Jr. and Lee A. Casey
The Supreme Court’s ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress’s power to regulate interstate commerce cannot support federal requirements imposed on Americans simply because they exist. The court also ruled that there are limits to Congress’s ability to use federal spending to force the states to adopt its preferred policies.
However, in upholding ObamaCare’s mandate that all Americans buy health insurance as a kind of “tax,” the court itself engaged in a quintessentially legislative activity—redrafting the law’s unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a new ObamaCare of its own making.
July 10, 2012
In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.
(published in The Wall Street Journal, August 29, 2012)
By DAVID B. RIVKIN JR.
For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.
Like the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.
July 10, 2012
Constitutional Attorney David Rivkin to debate Harvard Law Professor at Texas Bar Association Meeting
The final word on the Obama administration’s signature health care law has yet to be spoken. As the Supreme Court decision on the constitutionality of the Patient Protection and Affordable Care Act (aka ObamaCare) looms, organizations throughout the nation are lining up speakers and events to present their opinions—whether a pre-decision debate that might sway an undecided justice, or a post-mortem discussion on how the justices got it right or wrong. Regardless of when the Supreme Court decision is handed down, the June 15 Texas Bar Association debate on the topic, the interchange promises to be both lively and substantive.
David Rivkin, an appellate attorney whom the Wall Street Journal credits with initiating the question of ObamaCare’s constitutionality and who represented the 26 states in the Florida health care lawsuit, will debate Harvard Law professor Einer Elhauge, who has filed amicus briefs asserting the legality of ObamaCare’s individual mandate. The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.
June 1, 2012
(Part I of II) David Rivkin goes live on the second hour on Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.
Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next. Follow David Rivkin on Twitter, @DavidRivkin, for the latest news.
March 30, 2012
(Part II of II) David Rivkin goes live on Hour 2 of Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.
Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next. Follow David Rivkin on Twitter, @DavidRivkin, for the latest news.
March 30, 2012