Constitution

Patriots and Protesters Should Take a Knee for the Constitution

by John W. Whitehead September 28, 2017

“Seems like in the past 15 years or so the idea of patriotism has changed some. More polarized, more tied to political or ideological views. I’ve never seen patriotism or the flag connected to either; I see the flag more as the symbol of a nation that allows the freedom to express those ideas. That alone ...

The Supreme Court’s Destruction of Liberty of Contract

by David S. D'Amato September 1, 2017

Found in Article I, Section 10, of the Constitution, the Contract Clause is a failed attempt to prevent the government from taking actions that would compromise the integrity of contractual obligations — failed, in large part, because of the 1934 Supreme Court case Home Building & Loan Association v. Blaisdell. Blaisdell is arguably the centerpiece of the Supreme Court’s ...

The Supreme Court, Federalism, and Limited Government

by Laurence M. Vance November 2, 2016

The Supreme Court has agreed to hear the case of whether a biological female who identifies as a male can use the boys’ restroom in a Virginia high school. Parties who are not satisfied with the decision of a U.S. Court of Appeals (or a state supreme court if it is deemed a constitutional issue) can ...

‘We the Prisoners’: The Demise of the Fourth Amendment

by John W. Whitehead June 29, 2016

“Our carceral state banishes American citizens to a gray wasteland far beyond the promises and protections the government grants its other citizens… When the doors finally close and one finds oneself facing banishment to the carceral state—the years, the walls, the rules, the guards, the inmates—reactions vary. Some experience an intense sickening feeling. Others, a strong desire ...

Economic Liberty and The Slaughterhouse Cases

by David S. D'Amato June 1, 2016

Are economic rights and liberties among the “privileges or immunities” of citizenship protected by the Constitution’s Fourteenth Amendment? That was the simple question before the Supreme Court in the Slaughterhouse Cases, the opinion which is today almost uniformly denounced in the legal academy. Scholars of all political and interpretive commitments have come to reject Slaughterhouse as among the Court’s ...

It’s Not Just the Unborn Being Denied Rights Under the Constitution

by John W. Whitehead April 8, 2016

“The unborn person doesn’t have constitutional rights.”—Hillary Clinton, Meet the Press (April 3, 2016) When presidential candidate Hillary Clinton declares that unborn babies do not have constitutional rights, she’s not just spouting partisan rhetoric in the heated national debate over abortion. She’s providing us with a glimpse into an increasingly troubling mindset among government officials who ...

The Battle for the Supreme Court

by George Leef April 1, 2016

Overruled: The Long War for Control of the U.S. Supreme Court by Damon Root (Palgrave Macmillan, 2014), 274 pages. Every case that comes before the U.S. Supreme Court has its unique factual setting and contentious legal issues, but in a large percentage of them, the decision ultimately comes down to this: Should the Court defer to the legislative ...

The Landmark Case That Destroyed Economic Liberty

by David S. D'Amato March 1, 2016

If the Supreme Court’s 1905 holding in Lochner v. New York is the widely reviled embodiment of the constitutional right to freedom of contract, then West Coast Hotel Co. v. Parrish is its celebrated antithesis. The New Deal era case has been identified with the beginning of a “Constitutional Revolution” that freed progressive social policy to march triumphantly onward. ...

Securing the Blessings of Liberty

by David S. D'Amato February 1, 2016

The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty by Timothy Sandefur (Cato Institute, 2014), 200 pages. In his book The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, Timothy Sandefur, an attorney at the Pacific Legal Foundation and a Cato Institute adjunct scholar, argues that “the primacy ...

The Resurgence of Lochner

by David S. D'Amato December 1, 2015

Rehabilitating Lochner: Defending Individual Rights against Progressive Reform by David E. Bernstein (University of Chicago Press, 2012), 208 pages. David Bernstein begins his short book, Rehabilitating Lochner, by noting that “Lochner is likely the most disreputable case in modern constitutional discourse.” If you want to raise eyebrows in legal circles, he says, simply embark on ...

Supreme Demolition for the Raisin Racket

by James Bovard September 1, 2015

The December 2013 Future of Freedom contained my article “A Supreme Rebuff for USDA’s Ruinous Raisin Regime.” The legal case surrounding that controversy kept percolating in the courts for another 18 months. The Obama administration won a big victory in federal appeals court last year before getting squashed by the Supreme Court this past June. The Supremes put an ...

When the Supreme Court Stopped Economic Fascism in America

by Richard M. Ebeling July 1, 2015

There was a time when the Supreme Court of the United States defended and upheld the constitutional protections for economic liberty in America. This year marks the 80th anniversary of one of the Supreme Court’s finest hours, when it overturned Franklin Roosevelt’s agenda for economic fascism in the United States. The trend towards bigger and ever-more-intrusive government, unfortunately, was not ...