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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.

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|

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.

May 27, 2014|Establishment Clause, First Amendment, Incorporation, Philip Hamburger, Religious Freedom, Town of Greece v. Galloway

Greece the Establishment Clause: Thomas’s Church-State Originalism

by Ken Masugi|

“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway

“Probably”? As if the May 5, 2014 Town of Greece v. Galloway decision, upholding prayers said at the beginning of legislative meetings, didn’t upset strict separationists enough, Justice Clarence Thomas’s radically originalist concurring opinion was enough to bring on shouts for an exorcism.[1] To the contrary, Thomas’s reasoning about the First Amendment establishment clause is the most rational way to preserve liberty, by recognizing the institutional principle of federalism as well as the individual right of religious free exercise. This becomes clear once we see this opinion in light of his earlier, lengthier establishment opinions.

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August 26, 2013|Establishment Clause, Incorporation, Reverse Incorporation

A Bridge Too Far: Reverse Incorporation

by Mike Rappaport|

Over at Prawfsblog, Kurt Lash has a post on Incorporation of the Establishment Clause.  Kurt did pioneering work on this issue back in the day, work which is rightly esteemed.  In the first part of his post, Kurt argues that people at the time of the 14th Amendment understood the meaning of the Establishment Clause differently than they did at the time of the Bill of Rights.  And he argues that the 14th Amendment should get the meaning in existence at that time.

While I don’t think we really understand the original meaning of the 14th Amendment, I am sympathetic both to incorporation and to a two track approach to incorporation, with the 14th Amendment incorporated Bill having a different meaning than the original Bill.  (As an example, see this paper where I argue that the 1791 Takings Clause does not extend to regulatory takings, but that the 1868 version may.)

But Kurt then takes a further step:

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January 30, 2012|Incorporation, Originalism, Second Amendment

McDonald v. Chicago

by Mike Rappaport|

Recently, I was looking over McDonald v. Chicago, the case that held that the Second Amendment was incorporated against the states.  While I agree with the result, I believe this case was very problematic from an originalist perspective.  Four of the Justices -- Alito joined by Scalia, Roberts, and Kennedy -- relied on the doctrine of substantive due process to incorporate even though it seems clear that the due process clause did not incorporate as an original matter.  It was only Justice Thomas that sought to find incorporation in the more defensible Privileges or Immunities Clause. Justice Alito sought to explain…

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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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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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