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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.

July 14, 2017|Abortion, Employment Division v. Smith, PIerce v. Society of Sisters, RFRA, Roe v. Wade, Washington v. Glucksberg

Can Oregon Compel Its Citizens to Pay for Killing Others?

by Mark David Hall|

Oregon House of Representatives

Oregon’s Governor has said she will sign legislation that will require insurance companies (with one exception) to provide their beneficiaries, at no cost, and for any reason, abortions and contraceptive drugs that can be abortifacients. California has a similar law. Unlike California’s law, churches and religious organizations that object to abortion and/or contraception are exempt, but there is no protection for business owners who desire to use any insurance company other than Providence Health Plans (the one faith-based insurance company that was exempted). The Oregon legislation also expands state funding to pay for abortions for citizens and non-citizens who do not have private insurance.

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October 9, 2016|Hillary Clinton, Obergefell v. Hodges, Roe v. Wade, Substantive Due Process, Washington v. Glucksberg

Substantive Due Process Is Ready for Takeoff

by John O. McGinnis|

Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution.  Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage.  More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.

Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the  right to assisted suicide could be found in the Constitution.  The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter,  because laws against the practice had long existed.

But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either.  In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had  itself not met the Glucksberg test. But the right of  abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process.

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August 8, 2016|

The Courts and Tradition: A Begrudging Respect

by David Bernstein|

In response to: The Unforgettable Fire: Tradition and the Shape of the Law

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts, torts, property, and more. On the other hand, it strikes me that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries. Years ago, I had…

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More Responses

American Tradition in Theory and Practice

by Sanford Levinson

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…

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Legal Realism, Legal Revolution

by James Stoner

In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…

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August 2, 2016|

The Unforgettable Fire: Tradition and the Shape of the Law

by Marc DeGirolami|

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is wildly unfashionable—even disreputable. When tradition’s influence on law is considered, responses ordinarily fall somewhere along a predictably confined range—from dismissal and disdain to something like revulsion. A fairly recent Slate article on Khloé Kardashian’s checkered and rather perplexing spiritual practices concisely sums up the general view:…

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Responses

The Courts and Tradition: A Begrudging Respect

by David Bernstein

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts,…

Read More

American Tradition in Theory and Practice

by Sanford Levinson

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…

Read More

Legal Realism, Legal Revolution

by James Stoner

In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…

Read More

January 15, 2016|Lord Acton, NLRB v. Noel Canning, Town of Greece v. Galloway, Washington v. Glucksberg

Locating Traditionalism in Jurisprudence

by Marc DeGirolami|

How might we distinguish the traditionalist judicial decision?

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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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