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…