Fourteenth Amendment

November 29, 2019|Clarence Thomas, Fourteenth Amendment, Religious Establishment

Incorporating the Establishment Clause, Wrongly

Former Georgia Gov. Sonny Perdue, left, chats with Justice Clarence Thomas following Purdue’s swearing-in as the 31st U.S. Secretary of Agriculture at the Supreme Court, April 25, 2017. (USDA Photo / Alamy Stock Photo).

The structural guarantee of the Establishment Clause can be preserved even with protections that prevent restricting individuals' religious liberty.

August 30, 2019|Battle of Ball's Bluff, Civil War, Common Law, Fourteenth Amendment, Francis Bowen, Lochner v. New York, Oliver Wendell Holmes: A Life in War Law and Ideas, Stephen Budiansky, Unitarianism

Holmes: An Uncommon Common Lawyer, but No Constitutionalist

by John O. McGinnis|5 Comments

Oliver Wendell Holmes, Jr. (image: Library of Congress)

Oliver Wendell Holmes was wounded three times on the battlefield, and his Civil War experiences affected his outlook and Supreme Court jurisprudence.

August 22, 2019|Equal Protection Clause, Fifteenth Amendment, Fourteenth Amendment, Gerrymandering, Justice John Marshall Harlan II, Nonoriginalism, Originalism, Reynolds v. Sims, Rucho v. Common Cause, voting rights

Silent Originalism and the Reweighting of Precedent

by John O. McGinnis|24 Comments

Justice John Marshall Harlan II (image: National Portrait Gallery, Smithsonian Institution)

The Court’s recent gerrymandering decision recognized Reynolds v. Sims as so flawed in its reasoning as not to deserve mention.

April 9, 2019|Fourteenth Amendment, New Originalism, Originalism, Privileges or Immunities Clause, Raoul Berger, Robert Bork, Slaughter-House Cases

Still Searching for the Judicial “Holy Grail”

by Mark Pulliam|12 Comments

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The eternal quest for the missing constitutional clause that will provide the answers the academy wants.

March 21, 2019|Fourteenth Amendment, John Bingham, Ninth Amendment, Privileges or Immunities Clause, Slaughterhouse Cases, Tenth Amendment, unenumerated rights

The Privileges or Immunities Clause and Unenumerated Rights

by Kurt T. Lash|29 Comments

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The majority in Slaughterhouse correctly rejected the idea that the Privileges or Immunities Clause protects unenumerated absolute rights.

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|13 Comments

From left, Democratic presidential candidates businessman Tom Steyer, Sen. Elizabeth Warren, D-Mass., former Vice President Joe Biden, Sen. Bernie Sanders, I-Vt., former South Bend Mayor Pete Buttigieg, and Sen. Amy Klobuchar, D-Minn., stand on stage, Tuesday, Jan. 14, 2020, before a Democratic presidential primary debate hosted by CNN and the Des Moines Register in Des Moines, Iowa. (AP Photo/Charlie Neibergall)

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