Fourteenth Amendment

February 14, 2019|Establishment Clause, Everson v. Board of Education, First Amendment, Fourteenth Amendment, Maryland-National Capital Park and Planning Commission v. American Humanist Association, Permoli doctrine, Slaughter-House Cases

The Court Should Tear Down Everson, Not the Maryland Cross

by David Upham|6 Comments

Maryland Memorial Cross (First Liberty Institute)

Does this Maryland cross violate our Constitution? That very question is currently before the Supreme Court.

December 3, 2018|Abraham Lincoln, Alan Levine, Civil War Amendments, Fourteenth Amendment, James R. Stoner Jr., John Bingham, John Holmes, Reconstruction, Thomas Jefferson, Thomas W. Merrill

Was It a Refounding?

by Sean A. Scott|7 Comments

A new essay collection examines the political thought of the Civil War and Reconstruction.

November 30, 2018|asset forfeiture, Barron v. Baltimore, Federalist 45, Fourteenth Amendment, Gitlow v. New York, Incorporation, Timbs v. Indiana

Asset Forfeiture, Incorporation, and the Fourteenth Amendment

by Thomas Ascik|17 Comments

The U.S. Supreme Court at dusk (Greg Blakeley/Shutterstock.com).

Nothing surpasses the intellectual intoxication and will to power of a federal constitutional lawsuit—democracy be damned.

November 13, 2018|Birthright citizenship, Fourteenth Amendment, Jurisdiction, Michael Rappaport, Richard Epstein, U.S. v. Wong Kim Ark

Jurisdiction, Old Style and New

by Richard Samuelson|5 Comments

Image: Leena Robinson/Shutterstock.com

If we take the Fourteenth Amendment to mean what Michael Rappaport and others argue, some strange consequences follow for resident aliens.

August 23, 2018|Dorma, dormant Commerce Clause, Footnote 4, Fourteenth Amendment, McCullogh, South Carolina State Highway Department v. Barnwell Brothers, United States v. Carolene Products Co

About Those Strange Citations at the End of Footnote 4

by James R. Rogers|Leave a Comment

U.S. Supreme Court (Orhan Cam/Shutterstock.com).

Footnote 4 of Carolene Products and the "counter-majoritarian difficulty."

August 6, 2018|Fourteenth Amendment, Impeachment, Supreme Court, Tom Clark

Congress Has Never Given the Supreme Court a Free Ride

by James R. Rogers|3 Comments

U.S. Supreme Court. Orhan Cam/Shutterstock

The Supreme Court is independent, yes, but Congress has several options for exercising control over the justices.

July 25, 2018|Fourteenth Amendment, Jacobson v. Massachusetts, Lochner v. New York, Oliver Wendell Holmes

A Commentary on Holmes’s Lochner Dissent: Part II

by Mike Rappaport|47 Comments

Adobe Stock Images

Justice Oliver Wendell Holmes's dissent in Lochner draws the wrong implications out of pluralism.

July 11, 2018|Detroit, Fourteenth Amendment, Judge Stephen J. Murphy, literacy, rights talk

Literacy Is a Good, Not a Right

by Greg Weiner|26 Comments

Close-up view of broken pencil sharpener in an abandoned Detroit Public School (Zackry Stetler/Shutterstock.com).

A class action case against the Detroit Public Schools on its way to the Sixth Circuit shows the perils of rights talk: if literacy is a right, what isn't?

May 8, 2018|Burger Court, Clint Bolick, Fourteenth Amendment, judicial activism, Judicial Restraint, Lino Graglia, Originalism, Raoul Berger, Robert Bork, Warren Court

Originalism’s Legal Turn as a Libertarian Turn

by Jesse Merriam|19 Comments

Originalist thought has not just been on a steady legal trajectory over the last 20 years. There is also an important and overlooked political story to tell.

February 27, 2018|dormant Commerce Clause, Fourteenth Amendment