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Constitutional Law After Obamacare

Thursday November 2012

In the wake of the Supreme Court’s landmark constitutional decision in NFIB v. Sebelius—the Obamacare cases—what is the current state of constitutional law, where is it headed, and where should it go? To shed light on these questions, the Manhattan Institute’s Center for Legal Policy has invited four authors who have written on the subject: law professors Richard Epstein, Michael Greve, and Nicholas Quinn Rosenkranz, and attorney and legal commentator Adam Freedman.

Georgetown law professor Rosenkranz’s forthcoming book The Subjects of the Constitution will build on his seminal academic articles that examine the Constitution’s grammatical structures in light of the document’s purpose: for Rosenkranz, the most important question in determining whether a constitutional violation has occurred is to ask who violated the Constitution (e.g., Congress or the executive branch). In his new book The Naked Constitution, Freedman—a contributor to the Manhattan Institute’s web magazine and author of the earlier The Party of the First Part, praised by William Safire as “a lighthearted but lucid explanation of legalese”—tries to look at the original constitution, absent the “clothing” it has acquired in more than two centuries of judicial interpretation.

In contrast, Greve, a long-time scholar at the American Enterprise Institute and a professor at George Mason University law school, criticizes both originalism and the post-New Deal Supreme Court consensus in his new book The Upside-Down Constitution. Finally, Manhattan Institute visiting scholar and NYU law professor Epstein offers the libertarian constitutional scholar’s perspective, which he has developed over decades of writings and multiple books, dating to his influential and much-cited classic, Takings: Private Property and the Power of Eminent Domain.

James Copland, director of the Manhattan Institute’s Center for Legal Policy, moderates what promises to be an interesting exchange of competing constitutional visions.

Nicholas Quinn Rosenkranz, Professor of Law, Georgetown Law
Adam Freedman, Author, The Naked Constitution
Michael Greve, Visiting Scholar, American Enterprise Institute
Richard Epstein, Visiting Scholar, Manhattan Institute
Moderator: James Copland, Director, Center for Legal Policy