In Carson v. Makin the Supreme Court holds that the Free Exercise Clause will not be limited by the a textual concept of "separation."
John O. McGinnis
Reviving the original meaning of the Contract Clause would create a steadier and more prosperous polity in the long run.
The justice does not consider at all how jurisprudence bears on the political appearance of the Supreme Court.
While Fulton's majority opinion did not overrule Smith, two concurrences suggest that Smith is on life support.
Government racial preferences are far from the only source of our divisions, but they may be the one most amenable to legal abolition.
The president's power to act in Court derives from his constitutional duty to carry out the law. He must, therefore, say what he believes the law to be.
Original methods originalism embeds the Constitution in the Anglo-American tradition and militates against the abstractions of the French philosophes.
Public sector unions are exacerbating our criminal justice crisis and making it much harder to educate the next generation during the coronavirus pandemic.
The relative success of the U.S. medical system underscores the dangers of putting it under government control.
The Chief Justice is a former clerk to Rehnquist, so we should look for him to tread lightly in his predecessor’s footsteps.
A recent article points to partisanship as the explanation for several decisions by the Roberts Court, but is unpersuasive and indeed unfair.
The Contract Clause offers the most explicit recognition of the beneficence of private ordering in the entire Constitution. Why can't it be revived?
Goldsmith shows that the government refused to publicly exonerate a sick, old man because it would mean admitting that the FBI botched the case.
The single greatest danger today to the American experiment is that equality seems to be eclipsing liberty as our central goal.
Is California still the state where the frontier spirit best combines with the genius of innovation?
The dissent in Telescope Media Group v. Lucero offers a glimpse at the progressive vision for the future of the First Amendment.
Oliver Wendell Holmes was wounded three times on the battlefield, and his Civil War experiences affected his outlook and Supreme Court jurisprudence.
The Court’s recent gerrymandering decision recognized Reynolds v. Sims as so flawed in its reasoning as not to deserve mention.
In earlier times, they had an interest in stabilizing our institutions and reining in our excessive political passions. Not any more.
The rise of economic restrictions as a tool of American foreign policy is propelled by factors that will continue long after the Trump administration.
It is hard to overemphasize the importance of lower court judges in making the most of what the Court has begun this term.
In our era of elite polarization, these institutions may themselves become the very sources of the instability that they seek to temper.
And in any case, Merriam does not identify a theory that would deliver better results than those delivered by originalism.
Most modern capitalist societies have both independent central banks and independent constitutional courts—and have them for similar reasons.
The most serious vice of this book has one related virtue: it captures the fatal flaw of Stevens' jurisprudence.
These days it takes a medieval fantasy to help us remember why liberal democracy is worth cherishing.
In the Bank debate, the consensus of the Framers coalesced against use of the substantive intent of the Philadelphia convention.
Brian Lamb's heroic failure reminds us that the solution to the dishonesty in government is to limit its reach, not merely increase its transparency.
Originalism was the way Constitutional law was done until the progressive era came up with the idea of the living constitution.
When many of the richest people in France stepped up to donate for the cathedral's rebuilding the reaction was not gratitude but anger.
Justice Kagan often asks just the right question in statutory construction cases, and she should carry her logic over to constitutional questions as well.
Critics of William Barr forget that the Mueller Report contains four kinds of material that must be screened prior to release.
Many denizens of powerful and ideologically-uniform institutions disregard the contribution they themselves make to the polarization they deplore.
The movement for criminal justice reform is morphing into just another group in favor of big government.
The Court is activist when it acts on its own discretion rather than on the basis of a clear dictate of law.
It is well-established that the House acts as a prosecutor in the proceeding to remove an executive officer, and that leaves them wide discretion.
Working to restore liberty is not certain to win the culture war but acquiescing to the big administrative state will surely lose it.
This is the lesson of Brexit Macron has not learned: the drive for more European centralization will arouse nationalist passions that could end the EU.
Issuing this order about free speech will not make it less likely that progressives will continue to misuse executive authority for their own purposes.
A precedent-only jurisprudence will be not driven by the inner logic of the Constitution, but varying coalitions of the justices and politics of the day.
A good constitution thus can cabin the damage that popular movements may do, while still permitting them to shake up complacent elites.
It is not necessarily surprising that students fail to appreciate the hard-won freedoms on which the modern university and our civilization rest.
For all his contributions to the convention, Madison was not put on the Committee on Detail that provided the penultimate draft of our fundamental law.
As Orwell saw, politics is a battle of language, not least because most people think reflexively and not deeply about public policy.
As the parties become polarized, the Presidents become more extreme on the political spectrum.
One often finds more radical views among defenders of tradition these days than the average member of the faculty: who is really defending the status quo?
A good compromise on Brexit would require a party system designed to foster agreement, not the government-and-opposition dynamic of Parliament.
Samuel Moyn's assumptions about the purpose of law schools undermine both the profession and the rule of law.
New York City wants to save the Strand by designating the famous bookstore as an historic landmark, but this is a case where "help" actually hurts.
Justices Gorsuch and Kavanaugh seem to be diverging on essential questions for modern originalism.
At the time, I condemned him, but now I am far more grateful to George H.W. Bush, who did not inflict much harm and did some occasional good.
Liberty is lost in moral panics: we ought to remember this when we ask the federal government to offer rules for handling campus sexual misconduct.
Living among elite academics or in deep blue cities makes it hard to imagine voters who are sincerely motivated by social and religious values.
The New York Times' Katherine Stewart misreads Christian churches' role in American politics: they pursue not nationalism, but a view of the good.
If the Republicans are relegated to running on the President’s slogan, “Make America Great Again,” the Democrats’ implicit slogan is “Make America Europe.”
A feminism of coercion would force men and women into roles they did not choose, and worse still, it would create a world based on lies.
The Supreme Court has wrongly invalidated laws, just as it has upheld unjust ones.
Law is a professional discipline and students should be prepared for the world as it is rather than what their professors fantasize it could be.
Many historians today tell a dismal tale of woe about our Founding, but Wood sees it whole with defects that do not blot out its real virtues.
Law professors talk a lot about the legitimacy of the Supreme Court but they should guard their own legitimacy as well.
A legal world that promoted originalism would generate greater stability.
As with the English Civil War, our own divides will not be resolved intellectually but through politics.
If the Court is as partisan as David Leonhardt thinks, his remedies are useless or counterproductive.
Social media reveals little about democracy that a serious student did not already know, but the inanity is so relentless now that it is hard to ignore.
International agreements are often quite hard to secure, but this is especially true when achieving this requires states to accept losses.
It is a vicious cycle: A more powerful state weakens mediating institutions and weakened mediating institutions empower the state.
Many mediating institutions are in trouble today, beset by scandal from within and harassed by the state from without: but how to help them?
If President Trump is going to break norms, he should at least aim to do it productively.
Republicanism, not democracy, might be a structural principle we can use to guide our interpretation of the Constitution.
Expect to see these questions and lines of attack at Brett Kavanaugh’s confirmation hearing, because senators often use them, regardless of the nominee.
Expect to see these questions and lines of attack at Brett Kavanaugh's confirmation hearing, because senators often use them, regardless of the nominee.
For the first time in almost two hundred years, the greatest statue of George Washington can be viewed again in the United States.
Why shouldn't it matter to the AALS that conservative and libertarian faculty face discrimination?
The Court may seem unbalanced to Yale professors, but that appearance is a function of Yale's ideological bubble.
The question for Fried is whether constitutional law needs to respond to “changed circumstances" — but isn't this the essence of living constitutionalism?
For most journalists and academics to get a Supreme Court that marches both with them and with the people, they need to elect a new people.
Proponents of a universal basic income forget that the bourgeois virtues that sustain our society flow from embracing the value of work.
The stereoscopic view of judging and the court is richer and more accurate, and journalists would do much better to adopt it.
The mandates of diversity continually expand, and the truth will suffer as a result of the desire to prefer it at the cost of expertise.
Mayor De Blasio fails to understand how markets work: his latest idea to raise pay for ridesharing drivers is evidence of this.
In such divided times, we shouldn't be surprised that the Supreme Court embraces passive virtues in order to guard their authority.
Harvard currently faces a lawsuit alleging discrimination against Asian Americans, and the facts reveal the divisiveness of counting by race.
In Sveen v. Malin, Justice Gorsuch argued for a restoration of the Contract Clause: it is unfortunate he could not persuade his colleagues.
The growth of populism in Italy follows logically from the fact the Italians never embraced classically liberal reforms.
Critics often forget that the theorists at the core of American liberty balance liberty and tradition rather than extol pure reason.
History is naturally an important part of public meaning originalism.
Progressives have redefined the sacred and are reviving the concept of blasphemy without realizing it.
Attacks on George Mason University's relationship with donors obscure why it has received so many grants: its scholars have a record of excellence.
Universities should create an atmosphere conducive to free speech, where ideas are welcomed so long as they are backed by reasons.
Banking regulations, as onerous and complicated as they are, often fail in preventing runs.
Justice Gorsuch treated due process as part of the language of the law in Sessions v. Dimaya. It’s evidence that the legal turn continues to gather strength.
The distance between the humanities and sciences has grown wider since C.P. Snow discussed it six decades ago in "The Two Cultures." We need both.
An originalist approach to due process can take several forms, and Justice Gorsuch's "surprise" decision in Dimaya v. Sessions reinforces this.
The Trump Administration is moving to ensure new taxes face a cost-benefit analysis, and this offers a new way to control the administrative state.
The ideas of Justice Scalia remain at the center of constitutional discourse even after his death.
Progressives tend to view arguments about subsidiarity as one more means to push an agenda for egalitarian uniformity.
Democracy is subject to many forms of persuasion, within and without: this should be cause to give central governments less power, not more.
The dematerializing nature of the world can be a boon to the middling classes, and the sharing economy provides an example of this.
Calls for stricter regulation on home rental companies like Airbnb are about protecting the hotel industry, not the consumer or communities.
Daniel Kishi's attack on Robert Bork betrays a startling misunderstanding of the debt antitrust jurisprudence owes to the late judge.
John McGinnis imagines a speech from President Trump on entitlement reform, and how he could win bigly.
Democracies need all the help they can get, including religion, to muster the better angels of ourselves for the sacrifice that sustains decent politics.
Even ardent secularists should recognize the benefits that flow from religion appearing in the public sphere.
Conservatives should focus on creating the legal space for innovation in higher education, not regulate it more.
The President shouldn't remove Robert Mueller, but he is fully within his constitutional rights to do so.
The bureaucracy possesses the power to make law and dictate how its statutes should be interpreted - this flies in the face of the separation of powers.
Imperfect markets don't mean that regulation is the answer; competition often does a better job than bureaucracy at improving outcomes.
Government shutdowns are a kind of hostage-taking, and they'll only stop when we deprive legislators of the ability to shut government down.
Resignations in protest aren't always what they seem, and they mean a lot less when they come from individuals whose terms expire in a few months.
Why has Thomas Jefferson become the progressives' favorite founder?
It is modern liberalism, not classical liberalism, that blurs the distinction between the state and society, and that destroys ordered liberty.
These two organizations seem like mirror images of one another, so what explains their different approaches to debate?
Is the American judiciary subservient to the rule of the majority?
Key Trump policies advanced classical liberalism, but his association with them may damage them in the long run.
And this year the most important technological event was the performance of Alpha Zero, a computer chess program,
Chernow's book argues that Grant was both a great general and very good President.
Bitcoin's market power will grow as it is traded in futures markets.
Subordinating the speech rights of those in commerce to a social movement overlooks the core principle of free speech.
Progressives aim to create centers of constitutionally protected power naturally inhabited by left-liberals and thus resistant to the vagaries of electoral control.
Robert Bork was only the beginning of the case and does not mark the best understanding of originalism today.
Heather Gerken, the Dean of the Yale School, proudly says that national federalism is not “your father’s federalism.” That may be well be true, but neither is it "our Framers' federalism."