Fourteenth Amendment

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

The Most Important Constitutional Doctrine You’ve (Probably) Never Heard of

by James R. Rogers|3 Comments

The dormant commerce clause doctrine has allowed the judiciary, by itself, to create and sustain a nation-wide free trade zone in the U.S.

January 16, 2018|Brown v. Board of Education, Fourteenth Amendment, Michael McConnell, original meaning

Moreno on the Original Meaning and Brown v. Board of Education: Part II

by Mike Rappaport|5 Comments

U.S. Supreme Court. Orhan Cam/Shutterstock

Interpreting the law with original meaning in mind leaves a range of options for defending Brown v. Board.

January 15, 2018|Bolling v. Sharpe, Brown v. Board, Fourteenth Amendment, Justice John Harlan II, Plessy v. Ferguson, race, Supreme Court

The Many Confusions of Brown v. Board

by James R. Rogers|4 Comments

Central High School, Little Rock, AR, where National Guardsmen escorted students to integrated classrooms.

Brown v. Board is one of the most important decisions of the 20th century, but it rests on deeply confused logic.

January 10, 2018|Antonin Scalia, Bolling v. Sharpe, Brown v. Board, Edwin Meese, expected application, Fourteenth Amendment, Original Intent, Originalism, textualism

Why Scalia’s Originalism Trumps “Original Intent”

by James R. Rogers|78 Comments

Textual originalists can disregard original intent - and that's a good thing.

October 5, 2017|Antonin Scalia, Christopher Scalia, Ed Whelan, Equal Protection, Fourteenth Amendment, Originalism

I Heard the Voice of Scalia

by Mark Pulliam|14 Comments

Justice Antonin Scalia.(Photo by Alex Wong/Getty Images)

Fans of the late Justice will treasure a new collection of his speeches.

Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.