Getting Right with the Fourteenth Amendment: A Conversation with Kurt Lash

the 14th

Kurt Lash comes to Liberty Law Talk to discuss his newest book, The Fourteenth Amendment: The Privileges and Immunities of American Citizenship. If you think the Slaughter-House Cases of 1873 gutted the Privileges or Immunities Clause of constitutional meaning and set us on our present course of strangely incorporating the Bill of Rights through the Due Process Clause, then you need to listen to this conversation. Lash argues that the original public meaning of the Fourteenth Amendment's Privileges or Immunities Clause is definite once you understand the context of the debate in the 39th Congress. Rather than emerging from the Comity…

Read More

Friday Roundup, January 24th

Don't miss this month's Liberty Law Forum on the Constitution's structural limitations of power and the Bill of Rights: Contributions from Patrick Garry, Ed Erler, Michael Ramsey, and Kenneth Bowling. How should contemporary defenders of limited government and the rule of law understand and learn from the New Deal's revolutionary movement? The current Liberty Law Talk with Gordon Lloyd, co-author with David Davenport of The New Deal & Modern American Conservatism, discusses this question. Liberty Law Reviews: William Atto on Scott Berg's Wilson:  In 1879 . . . he published his essay “Cabinet Government in the United States,” in the International Review. Clearly…

Read More

Friday Roundup, January 10th

In "Limited Government and Individual Autonomy" Michael Ramsey joins the discussion in the current Liberty Forum on the Constitution as a Bill of Rights. Scott Yenor reviews in our Books feature this week Mark Brandon's States of Union: Family and Change in the American Constitutional Order: Brandon’s description of marriage and family life reflects a notable narrowing of what “constitutional” means. The original constitutional vision reflected a comprehensive system of how to sustain republican self-government in the long term. Government had its tasks, private institutions including the family had their tasks, and the proper functioning of each depended on the other. From…

Read More

Judicial Arrogance, and Ignorance, in Utah

There are stronger constitutional arguments on both sides of same-sex marriage than any disputants are willing to acknowledge. But the particular manner in which U.S. District Judge Robert J. Shelby reached his decision, announced Friday, overturning Utah’s state constitutional amendment defining marriage heterosexually is a tangle of faulty reasoning and judicial arrogance that will disserve the cause he aims to advance.

The first clue that something is amiss is revealed in the stunning—well, maybe not; but still—error of basic civics on the opinion’s seventeenth page: “When the Constitution was first ratified, [citizens’ fundamental rights] were specifically articulated in the Bill of Rights and protected an individual from certain actions of the federal government.”

That claim—coming here from a federal judge—would cost a freshman points on a blue-book exam. Any student of introductory American government knows the Constitution was ratified over explicit objections that it did not contain a Bill of Rights and on its Framers’ specific insistence that including one might weaken the edifice they had constructed.

Read More

The Constitution is a Bill of Rights

My 10-year-old, fruit of my own loins, came home from fifth grade on Constitution Day to announce that his teacher could no longer demand his homework because the Fourth Amendment entitled him to be “secure in his documents.” This, like all sensitive situations, was to be handled with a degree of delicacy: interest in the Constitution to be celebrated, fallacies about it to be clipped before flowering.

“Did you read the Constitution in school?’

“Yeah.” Pause. “Well, we read the Bill of Rights.”

Read More

The Miseducation of Danny Glover

In a January 17  speech to students at Texas A&M University, Danny Glover, the actor from Lethal Weapon etc., attempted to disparage the constitutional right to arms with the critique that “The Second Amendment comes from the right to protect themselves from slave revolts, and from uprisings by Native Americans.”

This is abundantly wrong and I hope the students will not consider Mr. Glover a definitive source on the question.  But I will give him credit for the try.  He attempted to engage the issue by at least skimming one piece of the voluminous scholarship in this area.

His comment seems based on a cursory reading of a 1998 law review article by Professor Carl Bogus.  First, it warms the academic’s heart that a Hollywood actor would sit down and read a law review article, although I acknowledge the possibility that someone just told him about it.

Either way, his education is incomplete (as is true for all of us).  Mr. Glover’s mistake is to have taken one dubious thing and run with it.  That is almost always a mistake and especially so in the gun debate.  But Danny Glover’s mistake is also a teaching tool that illuminates the broader conversation.

Read More

Hadley Arkes’ response to Michael Ramsey’s review of Constitutional Illusions & Anchoring Truths

I’m quite grateful to Michael Ramsey for his engagement with the arguments in my book, Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.  I appreciate, of course, his praise of the parts that alone, he says, would be “worth the purchase price of the book”—the parts on those landmark cases of Near v. Minnesota, the Pentagon Papers and the Snepp case—perhaps with the iconic case of Bob Jones  University thrown in.  But I’d record a special gratitude for a move of his that has become regrettably rare in the review of books:  a willingness to cite extended…

Read More

Patrick Henry: The Anti-Madison

From Michael Klarman's review of Pauline Maier's book Ratification: The People Debate the Constitution, 1787-1788 in the Harvard Law Review: If Madison is the hero of Ratification, then Patrick Henry is the villain. Henry’s early and vociferous opposition to British efforts in the 1760s to assert greater control over the colonies, which put him at risk of a treason prosecution, had made him a revolutionary icon. In 1787–1788, Henry waged war on the Constitution. Widely regarded as the greatest orator of his age (p. 230), Henry dominated the Virginia ratifying convention, holding the floor for as much as one-quarter of the…

Read More