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Wednesday, July 15, 2009

 
Randy Barnett Has Sound Advice For Judicial Confirmation Hearings

Ask about the Constitution, not about individual cases:

Supreme Court confirmation hearings do not have to be about either results or nothing. They could be about clauses, not cases. Instead of asking nominees how they would decide particular cases, ask them to explain what they think the various clauses of the Constitution mean. Does the Second Amendment protect an individual right to arms? What was the original meaning of the Privileges or Immunities Clause of the 14th Amendment? (Hint: It included an individual right to arms.) Does the 14th Amendment "incorporate" the Bill of Rights and, if so, how and why? Does the Ninth Amendment protect judicially enforceable unenumerated rights? Does the Necessary and Proper Clause delegate unlimited discretion to Congress? Where in the text of the Constitution is the so-called Spending Power (by which Congress claims the power to spend tax revenue on anything it wants) and does it have any enforceable limits?

Read the whole thing.

Here's a constitutional query that just popped into my mind: does the 14th Amendment's Equal Protection clause prohibit the practice of setting different tax rates for different socioeconomic strata? Or (with regard to the 1040 tax tables) for different types of households?

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