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David Upham Subscribe

David Upham is associate professor of politics at the University of Dallas.

March 28, 2019|Bushrod Washington, Citizenship, Devin Watkins, Incorporation, Jacob Howard, John Bingham, Kurt Lash, Privileges or Immunities Clause, Washington v. Glucksberg

The Fundamental Rights of American Citizenship: Neither “Natural” nor Constitutionally “Enumerated”

by David Upham|

Image: Charles Brutlag / Shutterstock.com
To qualify as a “privilege” or “immunity” of U.S. citizenship, the right must be both fundamental to citizenship and have a long history.

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|

Does this Maryland cross violate our Constitution?  That very question is currently before the Supreme Court.

September 8, 2017|Cicero, Economic Analysis of Law, Harrold Carswell, philosopher-king, Richard Posner

The Judge and the Republic

by David Upham|

Judge Richard Posner

U.S. Senator Roman Hruska, despite his patrician-sounding name, is most famous for his praise of the common man. Hruska, a Nebraska Republican, made the following remark on behalf of Judge Harrold Carswell’s 1970 nomination to the Supreme Court:

Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?

Like Judge Carswell before him, Judge Richard Posner is one of the very few Americans honored with a lifetime appointment to the federal courts of appeal. And like Judge Carswell, Judge Posner is one of the even smaller minority ever considered for (though never appointed to) the Supreme Court.

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March 17, 2015|Constitution, Natural Born Citizens, Naturalization, Ted Cruz

Ted Cruz: A Probable Natural-Born Citizen of the American Republic

by David Upham|

Senate Republicans Speak To The Press After Weekly Policy Meetings

In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States.  Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”

I write to note my disagreement with their certitude, but tentative agreement with their conclusion.

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February 23, 2015|Joshua Matz, Justice Anthony Kennedy, Laurence Tribe

The Predictably Partisan Kennedy Court

by David Upham|

Kennedy

According to our Constitution, the President nominates, and with the consent of the Senate appoints, the judges of the Supreme Court. In only 12 of the last 30 years has a single party controlled the presidency and the Senate; therefore, only during those years has there been (largely) uni-partisan control over the selection of new members of the Supreme Court.

All nine of our justices were appointed during the last three decades. Seven, however, were chosen during those more uni-partisan years. Four were appointed under Democratic dominance: Justices Ginsburg, Breyer, Sotomayor, and Kagan. Three were appointed under Republican dominance: Justices Scalia and Alito, and Chief Justice Roberts.

The other two, Justices Thomas and Kennedy, were chosen by a Republican President and confirmed by a Democratic-controlled Senate. In Justice Thomas’s case, his 52 to 48 confirmation vote was nearly uni-partisan—and bitterly so: a handful of conservative Democrats, including future Republican Richard Shelby of Alabama, joined nearly all Republicans in (barely) consenting to Thomas’s appointment. Justice Kennedy, in contrast, was nominated by President Reagan but then unanimously endorsed by the Democratic majority in the Senate. In this respect, his appointment was peculiarly and distinctively bipartisan.

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October 6, 2014|Andrew Johnson, Corfield v. Coryell, Fourteenth Amendment, Kurt Lash, McDonald v. City of Chicago, Privileges or Immunities Clause, Slaughter-House Cases

Citizenship Has Its Privileges

by David Upham|

The Fourteenth Amendment’s “Privileges or Immunities Clause” prohibits the states from making or enforcing any laws that “abridge the privileges or immunities of citizens of the United States.” Nearly all scholars agree that this Clause has been effectively dormant since the 1870s, when the Supreme Court largely nullified the provision’s original meaning. Yet scholars disagree sharply as to what that lost original meaning was. Partly because of this scholarly discord, the Supreme Court has resisted efforts to revive the Clause. Most notably, four years ago, in McDonald v. City of Chicago, the petitioners asked the Court to invalidate Chicago’s comprehensive ban…

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June 23, 2014|Anthony Kennedy, Fourteenth Amendment, Racial Discrimination, Sonia Sotomayor, Voting Rights Act

An Insular, Discrete, and Disdained Majority

by David Upham|

Sotomayor Senate RolesSome fans of Justice Sonia Sotomayor have recently dubbed her “the people’s justice.” But if her dissent in Schuette v. BAMN is any indication, she doesn’t seem to really like the actual people. And unfortunately for popular government, her colleagues on the bench do not seem very friendly either.

In Schuette, the Supreme Court held that the Constitution did not prohibit the people of Michigan from adopting a constitutional amendment banning governmental racial discrimination, including racial preferences. The Court’s decision overturned a Sixth Circuit decision invalidating the ban.

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January 27, 2014|14th Amendment, Article IV, Civil Rights Act of 1866, Dred Scott, Due Process Clause, Equal Protection Clause, John Bingham, Privileges or Immunities Clause, Section 5 of the 14th Amendment, Slaughterhouse Cases

A New Birth of the Old Freedom

by David Upham|

The seven articles and twenty-seven amendments to our national Constitution contain roughly 8,000 words. Of those, perhaps none have generated so much intense controversy as the fifty-two words placed inconspicuously in the second sentence of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In this sentence’s three prohibitions—the Privileges or Immunities, Due Process, and…

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November 10, 2013|Racial Discrimination, Racial Preferences. Schuette v. Coalition to Defend Affirmative Action, Reconstruction

Historical Nonsense in Schuette

by David Upham|

In a pending case, Schuette v. Coalition to Defend Affirmative Action, the Supreme Court faces the claim that the Fourteenth Amendment prohibits Michigan and every other state from including, within its constitution, a prohibition on any state racial discrimination, even if such discrimination might favor a racial minority. Several briefs, including a brief filed by 76 professional historians, present evidence allegedly supporting this contention.

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June 30, 2013|DOMA, Dred Scott, Due Process, Federalism, Harris v. McRae, Hyde Amendment, Windsor v. United States

DOMA, the Hyde Amendment, and the Missouri Compromise: Windsor as the Reversal of Harris v. McRae and Renewal of Dred-Scott Federalism

by David Upham|

Some conservative commentators have decried the Windsor case as the new Roe v. Wade.  As to legal doctrine, however, the case looks more like a reversal of Harris v. McRae, the Supreme Court decision (barely) upholding the constitutionality of the Hyde Amendment.  Further, the case looks like a vindication of the concurring federalist arguments once offered by Justices Catron and Campbell in Dred Scott.

Both Harris and Windsor involved a constitutional challenge, under the Fifth Amendment, to a federal law that affected a due-process right the Court had recently created: the right to abortion, created in Roe v. Wade, and the right to consensual acts of “intimacy,” created in Lawrence v. Texas.  Both of those cases were the alleged progeny of the prior due-process cases supporting certain unenumerated, non-economic rights: from Meyer v. Nebraska to Pierce v. Society of Sisters to Griswold v. Connecticut.

In both cases, the federal law involved not criminal prohibition but the distribution of federal benefits in a selective manner that arguably disfavored the exercise of these rights.  Moreover, in both cases, the laws were proposed by Republicans, many of whom denied there was any such “right,” for such rights were actually wrongs.  In both cases, then, there was some moral disapprobation involved (though probably far more in the case of the Hyde Amendment, for inflammatory words like “murder” were used).  In both cases, conversely, the laws were signed by Democratic presidents who affirmed the existence of the alleged constitutional rights, but who believed the federal government did not need to subsidize these rights equally with alternatives.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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Recent Posts

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    For some contemporary criminal justice reformers, devotion to ideology leads to illogical conclusions about human nature and character change.
    by Gerard T. Mundy

  • Too Immature to be Punished?

    When I look back on my own life, I think I knew by the age of ten that one should not strangle old ladies in their beds.
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  • A Badge of Discrimination

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    by Theodore Dalrymple

  • A Judicial Takeover of Asylum Policy?

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    by Thomas Ascik

  • The Environmental Uncertainty Principle

    By engaging in such flagrant projection, the Times has highlighted once again the problem with groupthink in the climate discussion.
    by Paul Schwennesen

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