How rational basis (d)evolved into a Get Out Of The Constitution Free Card
I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate.
Read the rest at The Volokh Conspiracy…
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PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›