The Continuity of the Fourteenth Amendment with the Founding
At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the...
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Originalism and the Future of Religious Freedom
For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of...
View ArticleWas Hayek an Originalist?
Two of my academic interests – one might even call them obsessions – have been Friedrich Hayek and Originalism. So, it is natural that I have long thought of writing about whether Hayek was an...
View ArticleMark Pulliam and the Old Originalism
Mark Pulliam, who is a frequent contributor to our site, has written a new essay at American Greatness, entitled “The Pernicious Notion of ‘Unenumerated Rights,’” that attacks judicial activism from...
View ArticleThe Privileges or Immunities Clause and Unenumerated Rights
In a recent essay at American Greatness, Mark Pulliam took the Supreme Court and libertarian constitutional scholars to task for supporting the doctrine of substantive due process and the concept of...
View ArticleThe Unenumerated Rights of the Privileges or Immunities Clause
Does the Fourteenth Amendment’s Privileges or Immunities Clause include unenumerated rights, like the right to earn an honest living or make contracts? Professor Kurt Lash argued in a recent article...
View ArticleThe Fundamental Rights of American Citizenship: Neither “Natural” nor...
What are the “privileges and immunities of citizens of the United States”? In the last week, this blog has featured two originalist answers to this question. According to an “enumerated rights”...
View ArticleThe Unbearable Wrongness of Slaughterhouse
In my last few posts, I have been arguing that it is problematic to continue to apply the Slaughterhouse Cases, because the majority decision is so wrong. It belongs in the worst category of Supreme...
View ArticleStill Searching for the Judicial “Holy Grail”
When I studied Constitutional Law some 40 years ago, the Slaughter-House Cases (1873) warranted scarcely a footnote. The scholarly consensus—including Raoul Berger’s Government by Judiciary...
View ArticleThe Contested Legacy of the Fourteenth Amendment
The Fourteenth Amendment has proven to be one of the most difficult parts of the Constitution to interpret. For over a century, controversy has swirled over how exactly the Due Process, Privileges or...
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