Can “explicit” mean “broad”? Or if a law is “broad” is it by definition not explicit? That is, does “explicit” actually mean “specific”? Last week the Wisconsin Supreme Court ruled in a case where the outcome depended upon the answers to these questions. And although the case concerned statutory interpretation, surrounding it were all manner…

Frequently when a court declares that a law is constitutional it says something like “who are we judges to overrule the will of the people?” Judicial review, goes this argument, is an anti-democratic veto of the people’s “will” and judges should only fail to enforce that “will” if the Constitution is crystal clear that such…

Does the government have constitutional rights? That may sound like a snarky question, but it’s one that comes up sometimes, especially in fights between different levels of government, such as states and the United States itself or, similarly, states and their local governments. The answer is usually that the government does not have what we…

Last month the Illinois Supreme Court managed to roll into one opinion the right to a remedy, the rational-basis test, and a loss for the government. The court did a lot of things right along the way, but its choice to employ a rational-basis standard is an unfortunate reminder of the myopic and unimaginatively bipolar…

A question that repeatedly arises in search and seizure cases is whether the police can, without a warrant, search through the garbage you leave at the curb. Would it be like the police coming in and searching your own home? Or have you “abandoned” the trash, and the police, at least as a constitutional matter,…

Does the Constitution permit a large, sprawling federal government that can regulate all matters of our private lives? Does it also allow states to regulate their citizens with very little interference, protecting individual rights in only a handful of exceptions? If you answered “yes” to both of these questions, you’re part of the post-New Deal…

Although the method is verboten at the U.S. Supreme Court, a few states allow their supreme courts to give “advisory opinions” to the state legislature on pending legislation. The idea is, why risk passing important laws that might eventually be ruled unconstitutional if the court can give a “heads up” either way ahead of time?…

Today marks the 50th anniversary of Cohen v. California, which is more commonly known as the “F*** the Draft” case. This case, which seemed trivial at the time due to the immature and sophomoric nature of the language, has become one of the most significant First Amendment decisions of the last half century. Thankfully, Justice…

This week there was big news out of Missouri, where its Supreme Court declared a three dollar fee violated the state constitution. This important ruling on such a seemingly unimportant charge is a reminder of the protections that state constitutions provide to those seeking justice, and the need for judicial engagement in making that justice…

One of the least talked about provisions in the U.S. Constitution’s Bill of Rights is the Vicinage Clause. After guaranteeing a speedy and public trial the Sixth Amendment says that trial shall be “by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously…

This week’s state constitutional law case isn’t strictly speaking about an interpretation of a state constitution, but the state’s fundamental document—and some general principles about property rights—definitely are looming in the background. Most states have an equivalent to the U.S. Constitution’s Takings Clause, which says “nor shall private property be taken for public use, without…

Winds of Change This is the fourth and final post in a series examining the origins and evolution of the rational basis test. The first post explored the origins of the test found in the opinions of Justice Harlan, Justice Holmes, and the writings of James Bradley Thayer. The second examined how the test became…

The murder of George Floyd—during last year’s Memorial Day weekend—focused this country’s attention on a controversial legal doctrine called qualified immunity. This doctrine is used in civil lawsuits to shield government workers, including police, from having to pay damages for violations of constitutional rights. It’s true that much has been said about the doctrine. But…

One of the beauties of state constitutions is that they often contain structural protections against government power that aren’t in the U.S. Constitution. Although the federal version has plenty of guardrails on the Leviathan—such as enumerated powers, separation of powers, advice and consent for executive officials, the veto with a two-thirds override, lifetime tenure for…

I’d like to highlight a case that you’ve almost certainly never heard of, even if you’re interested in the Constitution, judicial engagement, economic liberty, and other things we talk about at the Center for Judicial Engagement. In spite of you not having heard of it, it ranks up there as one of the worse economic…

The Supreme Court recently heard oral argument in Mahanoy Area School District v. B.L., a case about students’ off-campus speech rights. This case all stems from an ill-advised profanity-laced picture sent by a student to some of her friends on the social media platform “Snapchat.” The case addresses whether Tinker v. Des Moines Independent Community…

Any law student knows (well, they ought to at least) that Article III of the U.S. Constitution says “The judicial power of the United States, shall be vested in one Supreme Court” and whatever other courts Congress makes. And, that “judicial power” “shall extend to all cases” of certain kinds and also “to controversies” of…

[This is part of a new series where we examine a recent case interpreting a state constitution.] Last month the Massachusetts Supreme Judicial Court—the highest state court in Massachusetts—decided a case that is a great reminder that these days winning a constitutional challenge all comes down to whether you can convince judges to say two…

This is a third in a series of posts examining the creation and evolution of the rational basis test. The first explored the origins of the test found in the opinions of Justice Harlan, Justice Holmes, and James Bradley Thayer. The second examined how to test became established during the New Deal Era and how…

The Supreme Court gets it (mostly) right! Today, the U.S. Supreme Court decided Carr v. Saul, holding that the individuals in the case did not lose their right to bring a Appointments Clause challenge after not raising the issue before the Social Security Administration’s (SSA) Administrative Law Judges (ALJs). We at IJ filed an amicus…

Today, April 14, 2021, a broad coalition of economic and legal scholars published an open letter asking state legislatures to repeal state laws that bar automakers from selling directly to consumers. These laws, in force to some degree in all 50 states, are transparently anticompetitive measures that protect dealers from competition from their suppliers. A…

Have you ever heard someone say the Second Amendment only applies to flint-lock pistols? Or claim that the First Amendment is not designed for the internet? Or suggest that the police should not need probable cause to search cars because they did not exist in James Madison’s time? Last month the U.S. Supreme Court offered…

Looking Back All constitutional rights are not created equal—at least not in the eyes of the Supreme Court. How closely the Supreme Court will look at a challenged law depends on the rights the government is accused of violating. If a law restricts political speech or treats speech differently based on its content a court…

Aside from a Justice Stephen Breyer question about the constitutionality of inspecting personal spaceships in the not-too-distant future, the questions during Monday’s oral argument in Cedar Point Nursery v. Hassid, an important property rights case, were not too surprising. Most surprising is what was not said: No one – no litigant nor jurist – provided…

How would you like to lose? Earlier this week, the Supreme Court heard oral arguments in Carr v. Saul—an administrative law case that asks whether “issue exhaustion” required individuals to raise their Appointments Clause challenge to the appointment of Social Security Administration (SSA) Administrative Law Judges (ALJs) to the ALJs themselves before raising it in…

Do you have the same interests as the government? Seems like a silly question, right? Whatever you think about what the government—be it a city, a state, or even the United States—is up to, it has all kinds of things to worry about, and prioritizes those things in many different ways. For example, it might…

Imagine a law giving bureaucrats unbridled discretion over your property rights. It would provide no standards. City officials could stop you from using your property—such as putting up a fence or planting a tree—for arbitrary reasons, or, indeed, for no reason at all. And you’d have no one to appeal their decisions to. Now imagine…

If somebody legally wrongs you—that is, not just wrongs you in a moral sense, but does something against the law, like takes your stuff, injuries you or your property, or even imprisons you without cause—what recourse do you have? It’s a pretty basic question, so basic we often forget about it. Of course, your instincts…

Before the Rational Basis Test Constitutional litigation is more complicated than many might think. One could not be faulted for thinking that if a right is protected by the Bill of Rights, including the Ninth Amendment, then the government cannot violate that right. But not all rights are equal—at least not in the eyes of…

Some of the most interesting and difficult questions in First Amendment law arise in the context of public schools. The reason is simple: Public schooling is one of the few situations in which people are forced to spend time in a government-controlled forum. Not surprisingly, students forced to attend public schools want the same freedom…

Today the Arizona Supreme Court went out of its way to not interpret the Arizona Constitution. We’ve discussed on the blog before how state supreme courts should feel no shame—indeed, they should feel pride!—in interpreting their own constitutions differently from the U.S. Constitution, even when the language in question is identical. But the Arizona case,…

We at the Institute for Justice enjoyed a lovely victory the other day, on behalf of our long-time client Dr. Ron Hines. Ron is a Texas veterinarian challenging the state’s ban on giving advice to pet owners without having first seen the pet in-person. He wants to do so over the internet, a communication tool…

As we get ready to offer our thanks in this most thankless year, I wanted to note my thanks for something that often gets missed: that we don’t all agree, or rather that judges don’t all agree. What brought this to mind was a decision of the Colorado Supreme Court on Monday (Nov. 23, 2020),…

In “A Euclid for Civil Liberties,” Harvard Law Professor Adrian Vermeule recently discussed the 1926 case Euclid v. Ambler Realty as an example of what he labels “common good constitutionalism,” and called for similar jurisprudential development in other areas of constitutional law. His discussion was highly revealing of an assumption that legal thinkers often gloss…

The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms the Constitution guarantees. As part of this work, the Institute has long advocated for judicial engagement; that is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and not prejudge a…

The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms the Constitution guarantees. As part of this work, the Institute has long advocated for judicial engagement; that is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and not prejudge a…

The Constitution has never been a friend to big government. Read through its pages and you’ll find all kinds of rules designed to prevent all kinds of laws. The federal government is limited to certain enumerated powers, both houses of Congress must agree before a bill becomes a law, officers must receive Senate confirmation, no…

Earlier this month the U.S. Court of Appeals for the Eleventh Circuit upheld Florida’s slap-dash system of forcing convicted felons to pay outstanding fines and fees before being allowed to vote. The full court voted 6 to 4 that despite many problems, Florida could continue denying voting rights to tens of thousands of former felons…

When you bring up the year 1905 and “Constitution” most of those schooled in constitutional law think of Lochner v. New York. The famous, or infamous, case (depending on who you talk to) declared that a maximum working hours law for bakers violated the Fourteenth Amendment’s Due Process Clause. It stands as the Supreme Court’s…

The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms the Constitution guarantees. As part of this work, the Institute has long advocated for judicial engagement. That is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and not prejudge a…

Last week both the Second and Fourth Circuits issued decisions in cases challenging the Trump Administration’s new definition for “public charge.” Congress has long determined that those likely to become a “public charge” are inadmissible for immigration purposes. But Congress has never defined what “public charge” means. The Trump Administration, through the Department of Homeland…

The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms guaranteed to them by the Constitution. As part of this work, the Institute has long advocated for judicial engagement. That is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and…

The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms guaranteed to them by the Constitution. As part of this work, the Institute has long advocated for judicial engagement. That is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and…

A Good Week for the Free Exercise Clause Can the government exclude a religious group from a government aid program simply because the group is religious? Twenty-five years ago, in Rosenberger v. University of Virginia, the Supreme Court said no. And just last week, the Supreme Court reaffirmed that principle in Espinoza v. Montana, the…

Judicial engagement requires meeting the Constitution head-on. Judges, after all, are duty bound to interpret the law, not avoid it. It is therefore gratifying to see an example of judicial engagement with a constitutional problem where avoiding it (and hoping it would go away) would have been the easy option. That happened on Tuesday in…

It has been a decade since the Supreme Court released its opinion in McDonald v. City of Chicago. In this case the Supreme Court held that states (and localities) had to comply with the requirements of the Second Amendment. This is one of the most consequential decisions of the last decade for obvious reasons. But…

I’ve written before about housing policy and how laws restricting the number of housing units push up the cost of housing. It’s basic economics that if we build more housing units the average cost of housing units will go down. Thus, reforming these policies can lead to more units, which leads to more affordable housing.…

Over the years we at the Center for Judicial Engagement have had a constructive back-and-forth with Georgia State University’s professor Eric Segall (we even had him on Short Circuit Live! earlier this year) on all kinds of issues. We can now add school choice to that list. In a piece at Dorf on Law, Professor…

For over two months Americans have stayed inside their homes on the advice of public health experts, backed by the government, who believe we need drastic measures to protect us from COVID-19. All kinds of activities we used to enjoy with others outside of our own households have become illegal. This even includes outside activities,…

The Supreme Court’s decision in Pierce v. Society of Sisters is a foundational case for the educational choice movement, but it is so much more than just that. Today is the 95th anniversary of the Supreme Court’s decision in Pierce v. Society of Sisters. In Pierce, the Supreme Court recognized that parents have a constitutional…

I live in the suburbs of St. Paul, Minnesota. A couple nights ago there was a rumor on social media that rioters “were coming” to a commercial area only five minutes away. Thankfully it turned out to be just a rumor, or for some reason it didn’t happen. Residents of a neighborhood in Minneapolis where…

Last week, the Pennsylvania Supreme Court issued a landmark decision for the right to earn a living.[i] The decision sparked a heated debate among the justices about the court’s role in deciding constitutional challenges to economic regulations. In this post, I’ll explain what happened and why the court’s chief dissenter, who accused the majority of “legislating,” misses…

A recent article in the Atlantic by Adrian Vermeule, criticizing Originalism in favor of “common-good constitutionalism” has sparked a lot of attention—including a response by the Institute for Justice’s Anthony Sanders. One argument made by Vermeule, that Sanders’s article sets aside for another day, is Originalism’s consistency with libertarianism or classical liberalism. This is a…

Last Friday, a Federal District Court issued a preliminary statewide universal injunction against Kentucky’s prohibition on in-person religious services. The injunction arose from a case in which the Tabernacle Baptist Church challenged the restriction as a violation of their Free Exercise rights. But instead of limiting the injunction to the church that sued, the judge…

Yesterday, the Supreme Court heard oral arguments in two consolidated cases, Trump v. Deutsche Bank and Trump v. Mazars. Each case concerns subpoenas issued by three House Committees seeking information about Donald Trump in his personal capacity, along with information about his companies, and his family members. But the Committees did not request the information…

A Move to Split Up States Article IV, Section III of the U.S. Constitution sets out the requirements for the admission of new states. Congress has not employed this process in over half a century. Alaska and Hawaii were both admitted in 1959 and were the last states admitted. Since then there has been talk…

Yesterday the Supreme Court issued three opinions. In the most discussed decision, Ramos v. Louisiana, Justice Gorsuch penned a well lauded majority opinion. There, Gorsuch wrote glowingly about the importance of judges upholding the original meaning of the Sixth Amendment. He also lambasted the use of extra-judicial considerations, like a cost-benefit analysis, in judicial opinions.…

Judges have a duty to say what the law is. That’s a big part of what judicial engagement is all about. A judge who avoids telling you the law is not really “judging.” Now, there are good reasons why sometimes judges do not judge—such as when a court simply lacks jurisdiction or a party legitimately…

Rent control laws are constitutionally dubious. But even so, in the (thankfully) few states that have them they are generally considered necessary and beyond judicial questioning. One of the most prominent states with vast rent control and stabilization programs is New York. Rent control there is even a small plot point in shows like Friends…

A Curious Quote & A Historical Lesson “We repeat what was stated in Block v. Hirsh, as to the respect due to a declaration of this kind [an emergency] by the Legislature so far as it relates to present facts. But even as to them a Court is not at liberty to shut its eyes…

Like many others, I’ve read Adrian Vermeule’s recent essay at The Atlantic on “common-good constitutionalism.” I thought we at the Center for Judicial Engagement should briefly comment on the ideas he outlines because he (1) asserts that a libertarian view of the Constitution is not in keeping with its original understanding (he’s wrong, but that’s…

In Hernández v. Mesa, the Supreme Court exposed the dangers of ignoring judicial engagement when it closed the courthouse doors to an aggrieved family because the Executive branch did not “want a jury” to expose the Executive to potential “embarrassment.”  Last month, the U.S. Supreme Court held in Hernández v. Mesa that the family of…

Lately I’ve spent a lot of time talking about judicial “deference.” And when I’ve said things like “judges shouldn’t defer to the government in interpreting the Constitution,” a number of people have asked me what exactly does that mean? How does that “deference” work, and how does it happen? I wanted to say just a…

A story reappearing over and over again in recent years is the fraying of community bonds across America. Small towns with factories closed and community groups closing. Urban neighborhoods devoid of hope and full of drugs. Suburbs displaying crumbling streets and half-built homes. In these places, and in many that at first seem fully functional,…

As fans of state constitutions keep pointing out, one wonderful thing about the American constitutional system is that an American has two levels of constitutional protection from state and local government: the U.S. Constitution and the state constitution of the state where he or she resides. In other words, there are two “ways to win”…

“The story of the Fourteenth Amendment is one of the most dramatic stories in American constitutional history. The amendment was born of political desperation. It almost caused a second Civil War. And it was only passed after the impeachment of an American president.” -Kurt Lash, University of Richmond School of Law REGISTER NOW Ratified 150 years ago,…

This year, the Fourteenth Amendment turns 150. The Institute for Justice’s Center for Judicial Engagement (CJE) and the Antonin Scalia Law School’s Liberty & Law Center are pleased to announce a symposium to reflect on the 150th anniversary of the adoption of Fourteenth Amendment. The day-long symposium will be held Friday, September 21, 2018, at the…