Category Constitutional Law

On Constitutions and Nature’s God

On this day in 1787, the Constitutional Convention finished its work, and those involved in the creation of the new charter to govern the recently liberated colonies gathered once more to sign the document in order to then take it to the people in the several states for consideration and ratification. Much has changed in […]

Super-Duper Precedent and the Kavanaugh Hearings

[S]tare decisis is neither an inexorable command, nor a mechanical formula of adherence to the latest decision, especially in constitutional cases. If it were, segregation would be legal . . . . —Citizens United v. FEC, 558 U.S. 310, 377 (2010) (Roberts, C.J., concurring) (cleaned up) ************************** The decision was 7-1. In the ensuing decades, it had been […]

Slavery, the Declaration of Independence, and the Massachusetts Declaration of Rights

All we say to America is, “Be true to what you said on paper.” –Dr. Martin Luther King Jr. (April 3, 1968) ***************************** Our nation began with what is and will ever remain one of the most eloquent pronouncements of natural right ever uttered: We hold these truths to be self-evident, that all men are […]

Chevron, Delegation, and Clear Statement Rules

Article I, Section One vests “[a]ll legislative Powers” in Congress.[1] Among other things, this means that “[e]xcept in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature.”[2] Congress cannot delegate the power to make the law to another entity (or, for that […]

“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 […]