Fourteenth Amendment

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|23 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

Shutterstock.com

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|12 Comments

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.

Preaching the American Gospel

by Glenn A. Moots

The author demonstrates the consequences of progressive social thought for mainline Protestantism: ecumenical denominations faded, evangelicals flourished.

European Law and the “Myth of English Exceptionalism”

by Michael I. Krauss

A primer on the intertwined history of civil codes and the common law.