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Full-Text Articles in Law
The Sacrifice Of The New Originalism, Thomas Colby
The Sacrifice Of The New Originalism, Thomas Colby
GW Law Faculty Publications & Other Works
This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a …
Federalism, Lochner, And The Individual Mandate, Peter J. Smith
Federalism, Lochner, And The Individual Mandate, Peter J. Smith
GW Law Faculty Publications & Other Works
The individual mandate provision in the Affordable Care Act requires individuals to obtain minimum essential health insurance coverage. This provision has been the focus of legal attacks on the Act. Opponents of the mandate have contended that Congress lacks power to compel individuals to engage in a private, commercial transaction. These claims are most sensibly understood as libertarian objections - that is, objections to government attempts to regulate certain personal decisions or actions, on the ground that those decisions or actions are for the individual, and only the individual, to make or take. As such, as a doctrinal matter this …