Happy America’s 250th! To celebrate, we’re doing things the IJ Way, tying in the events of 1776 to something that emerged a few years later and that we at IJ work with every day today: judicial review. Therefore, although we’re jumping on the bandwagon and doing an “America at 250” episode like everyone else, this one focuses on something most people aren’t talking about for the anniversary—and certainly weren’t discussing in 1776.

But one thing Americans were discussing that year, in addition to how best to fight the British and declare independence, was writing constitutions. That was a new thing at the time, a new way of forming a government. It also lay the seeds for judges declaring laws “unconstitutional,” something that didn’t happen in the Old Country. IJ just held a conference on this subject and as part of that held a mock argument/moot court on a constitutional challenge under Pennsylvania’s constitution from 1776. The question was, is this new thing called “judicial review” actually a thing? Sam Gedge of IJ was part of that “case” and joins us to reflect on what he learned digging into the first principles of judicial review and what Americans in the years just after 1776 may have been thinking as they tried to figure out their new constitutional reality. Then your host shares the outline of a draft article on how American courts have used the shadow of the British parliamentary system when justifying judicial review. They did it a lot for the first century or so of the country’s history but since then not so much. Why is this? And does it have something to do with America becoming “Top Nation” as the sun slowly set on the British Empire? Fans of the ’85 Bears may enjoy an analogy. As might Dan Moreno.

Video of the Mock Argument on Pennsylvania’s 1776 Constitution

Other video from the same conference

Vanhorne’s Lessee v. Dorrance

Draft article “Parliament’s American Shadow”

1066 and all that

The Super Bowl Shuffle, aka The British Empire

If you like the drama of local politics you’ll love this story, told by IJ’s Christian Lansinger, from the Sixth Circuit. A colorful and controversial elected official was accused of not living in the city she represented, leading to an effort to remove her. In response she did prove she “lived” there—although “barely”—and then separately sued for First Amendment retaliation. Part of her claim related back to some comments she made about going together “like cocaine and waffles” before a Confederate flag. She loses her retaliation lawsuit (quite unsurprisingly) but how the court got there could affect other, more sympathetic, retaliation cases in the future. Plus, Christian updates us on the latest on the plaintiff’s situation. Then An Altik of IJ tells us of another Sixth Circuit ruling, this one involving Ohio’s requirement that kids have permission from their parents to use social media. The three judges on the panel can’t agree on much of anything but in the end the law is upheld. The various opinions discuss standing, overbreadth doctrine, content-based restrictions on speech, and vagueness. Plus the (limited?) evidence about social media and its harms to minors.

Amacher v. Tullahoma

NetChoice v. Yost

An old friend rejoins the show, the Horseracing Integrity and Safety Act of 2020. It’s been trotting around the federal courts of appeals for a few years now, truing to outrun the private nondelegation doctrine. The latest showing was at the Fifth Circuit a few weeks ago. Rebecca Furdek of the Wisconsin Institute of Law and Liberty joins us to survey the field and provide the odds on what may end up being a photo finish at the Supreme Court. Then we shift from horses to zombies with IJ’s Marco Vasquez. He takes us to the Fourth Circuit where the Seventh Amendment’s jury trial right ran up against an old and increasingly disfavored Supreme Court precedent. But not disfavored enough to not control the outcome of the case. Is it “zombie precedent”? And will it remain undead for long? We address these questions before turning to the latest in our #12Months12Circuits series with another old friend of the show, the Seventh Circuit.

The Horsemen v. Black

Sligo Creek Ctr v. DHHS

1st HISA episode

Seventh Circuit Judicial Conference episode