Originalism and the Future of Religious Freedom

fourteenth amendment

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 governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.

Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship.

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Oliver Ellsworth: A Young Puritan in the New Republic

  Far too many jurists and scholars treat the American Founding as if it began and ended with the words and deeds of only a few prominent men. There are a host of problems with this tendency to simplify, not the least of which is that it leaves by the wayside some interesting individuals who had a profound influence on key documents even though their accomplishments were not sufficient to warrant their elevation to the status of “famous Founder.” Oliver Ellsworth, coauthor of the Connecticut Compromise, architect of the Judiciary Act of 1789, and James Madison’s senatorial counterpart on the conference…

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Our Postmodern Bill of Rights

WE THE PEOPLE written in vintage letterpress type

Last week, John McGinnis had a characteristically insightful post on Our Two Supreme Courts. One is the political court—an aristocratic institution that restrains public passions. On that court, the justices vote their preferences on God, guns, and gays. The other is the legal court, which takes care of boring jurisdictional and CivPro-ey stuff and where the justices, acting as the good lawyers they are, often reach unanimous decisions. The only way to reunite the courts, John writes, is for the justices to bring the legal rigor that’s on display in ERISA or bankruptcy cases to bear on the high-falutin’ ConLaw issues.

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The Bill of Rights

December 15 was Bill of Rights Day.  People have different reactions to the Bill.  For some, it is the most important feature of the Constitution, indicating and protecting the rights that people enjoy.  The rest of the Constitution may be a good one, but it is these rights that are essential.  For others, the Bill of Rights is a regrettable feature that gave the Court the opportunity to govern the country in many areas in whatever it desires.

My view is somewhere in between.  I believe that the structural features of the Constitution – the separation of powers and federalism – are key features for preserving liberty and good government.  But I also believe that the individual rights are an important part of the constitutional mix, protecting substantial interests against government intrusion.  Significantly, the Bill of Rights is primarily enforced through a feature of the separation of powers – judicial review.

It is often forgotten that the Bill was initially applied only to the federal government, not to the states.  In many ways, it was a federalism provision, preventing the distant federal government from infringing on the rights of people.  It was not that people believed that the states should be able to violate those rights.  Instead, they believed that many of those rights were already protected by state bills of rights and that the state governments could be better trusted to protect those rights.

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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…

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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…

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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…

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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.

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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.”

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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.

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