Category Constitutional Law

“Originalism” and the Necessity of Originalism

“[A] court . . . which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty . . . . What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require.”

Textualism is not Strict Constructionism is not Originalism

As President Donald Trump prepares to appoint a second Supreme Court justice, the national dialogue has been saturated with gossip over what judicial philosophy the next nominee might bring to the bench. For legal nerds, SCOTUS nominations are what the World Cup is to soccer fans: the one time everyone else cares about your passion. […]

Justice Blacklock on the Ninth Amendment Right to Family

[T]he interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court. –Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality op.) *********************************** In In the Interest of H.S., a Minor Child, the Texas Supreme Court concluded that anyone in a “parent-like role” […]

Knick v. Township of Scott, Pennsylvania: Renouncing “Treason to the Constitution”

It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. […]

Eminent Domain: Finding Common Ground

Several environmental groups are teaming up with property rights advocates to file suit against the Federal Regulatory Commission (FERC), challenging the Commission’s use of eminent domain in siting pipelines. In October, Mountain Valley Pipeline filed a lawsuit in federal court against Virginia landowners to initiate the acquisition of easements via eminent domain authority through their […]

Cutting Justice Kennedy’s Collapsing Cake

[Editors’ Note: Friend of the blog Justin Burnam got into the oral argument for Masterpiece Cakeshop yesterday. We’re pleased to be able to host him here for his reflections.] The Supreme Court yesterday heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Outside the courthouse, two energetic crowds—each replete with signs, flags, and booming […]

Justice Don Willett’s Uncontroversial Commitment to the Constitution

The 1905 Supreme Court case Lochner v. New York has long been a lightning rod for the claim that unelected judges have no place in our Constitutional system striking down laws purporting to ensure public health and safety. The periled precedent played its part this week as UT Law student Noah Horwitz dutifully deployed it against […]

Taxation Tuesday: Don’t Try to Pass a Wealth Tax

Good morning; let’s talk about tax policy!  One of the ways Senator Bernie Sanders has offered to finance his suggested health care plan is a wealth tax. A wealth tax does what it says on the box: taxes assets, as opposed to our current tax structure, which taxes income. This is far from the first […]

Forcing the Invisible Hand: The “Public Use” Conundrum– Part II

This essay is part II of a series authored by Tanya Abrahamian looking at the expansion of takings following the Supreme Court’s decision in Kelo v. New London. The essays support a reversion to a narrow conception of public use by describing the economic underpinnings of the authority and by countering what it deems to […]

The First Amendment: A Right Against Bared Arms

The past weekend’s white nationalist rally in Charlottesville meant déjà vu all over again regarding the status of “hate speech” under the First Amendment. As a positivist matter this debate is a nonsense: uncountable cases made it quite clear over the past hundred years that bigots are entitled to speak their mind. “Hate speech” is […]