Can the Constitution protect a person's right to choose their gender?

Substantive Due Process: How the Supreme Court accounts for social progress.

Last week’s White House statement disfavoring transgender people prompted today’s post. We want to show you one of the ways that social change can be incorporated into the Constitution.

First, some context:

In 1789 in the Bill of Rights, the American people gained a good set of “substantive” rights, like:

  • Freedom of speech and religion,
  • Right to bear arms,
  • Freedom from unreasonable search and seizure,
  • Freedom from cruel and unusual punishment...

Here are examples of a few more that came later:

  • Freedom from slavery (1865),
  • Right to equal protection under the law (1866),
  • Women's right to vote (1919)
  • Aged 18+'s right to vote (1971)...

Constitutional amendments are difficult to pass. They require approval of 2/3 of each of the House and Senate, in addition to 3/4 of the states. (Caveat: there's a second method that's never been used before).

An alternative for substantive rights?

We want to show you how the Supreme Court has used its power of constitutional interpretation to add new substantive rights -- without constitutional amendment.

See what we mean in this week’s explainer - our first interactive graphic!

Click here to view the interactive graphic.

Your one-page guide to the Establishment Clause

As promised, we are taking you one step deeper into understanding the Travel Ban case.

This week's explainer brings you a graphic look at the Establishment Clause:

  • What does it stand for?
  • How has it been used in the past?
  • How do courts analyze it?
  • How was it analyzed by the 4th Circuit appeals court in this case?

Click here to view the Explainer.

Also coming up in this Travel Ban Case Explainer Series:

  • Principle of deference to the executive branch
  • History of executive power in immigration
  • History of the justices' rulings on these issues

In case you missed the Basic Case Explained, click here.

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The Travel Ban case explained.

If you want to learn the arguments in the Travel Ban case without reading much, you're in the right place.

See the Plaintiffs' and the government's main arguments and the decisions of the lower courts in our newest Case Explainer.

Click here for the infographic.

And don't miss our related reports...

Learn more about the federal court process:

Learn more about immigration law generally:


Affordable Care Act, Title I explained

We are kicking off our Legislative Series with a doozie: the Affordable Care Act. 

In case you haven't ever looked at the actual text of a law, it can be really confusing. To give you an idea, the easy-to-read version of the ACA is 955 pages. 

Why so confusing? For one, it's complex. There are a lot of moving parts to a major law.  But what makes it especially confusing is that Congress places all the various parts of a new law into many different sections of the United States Code.  

The United States Code is the big "book" of all federal laws. When the ACA was enacted, there was already a chapter of the US Code on Public Health. So a bunch of the ACA provisions went into that section. There was already a part on Medicaid, so the Medicaid Expansion went there.

If you want to figure out what the ACA does in its entirety, you will have to trace every one of its provisions into a lot of different sections of the United States Code.

We are doing it for you. And we are displaying it... in a picture, of course!

Click here for our breakdown of Title I of the ACA.

See our Legislative Series main page for more information on the codifying process. 

We will be producing more legislative explainers. Please encourage others who may be interested to sign up for our newsletter!

Data Privacy Graph: how does the government restrain the companies that have our personal information?

This week we turned our report on Data Privacy into a graph. See the legal landscape in a picture.

The graph's legend tells the story. It takes you through the history of government regulation on the telecommunications industry to current regulations on internet providers. Also see who can sue companies for privacy violations.

Click here to access the graph with legends.

Case Explainer Infographic: Trinity Lutheran Church prevails on Free Exercise

We accepted the risk of oversimplifying a Supreme Court case so we could bring you a picture.

In case you didn't hear about this case, a church preschool sued Missouri because Missouri refused to allow it to participate in a state funding program.

Missouri allows schools to apply for grants to help resurface their playgrounds with recycled tires. But it does not allow religious organizations the funds because it wants to keep religion separate from government.

The church said the state's policy violated its right to free exercise of religion.

Here's what happened...

View the infographic.

Introducing Our Graphs Series: because we learn better in pictures.

Today Subscript brings you the first of many cool graphs.

A couple weeks ago we reported on the Contraception Mandate, and now you can see the laws even more concisely. 

What's going on with the Contraception Mandate? Will contraception still be free? That depends.

It's likely that Health and Human Services, guided by President Trump, will change the Contraception Mandate, i.e. no longer require employers to include contraception in health plans. 

But some states make it mandatory on the insurance companies anyway. Beyond that, it would be particular to the employer and plan. 

To help tell the legal story, we have two graph legends on the site. They explain the graph components.

Check out the Graph and Legends here.

And stay tuned for more graphs!

The Contraception Mandate: a religious burden or just governance?

You might have heard about the Supreme Court case involving Hobby Lobby, hailed by religious groups as a major win. The case said companies are allowed to get out of paying for contraception for their employees. You might not have heard that you, as a taxpayer, now pay for those employees’ contraception instead.

This country was founded on the principle that the government should stay out of religious exercise. But that doesn’t mean the government can’t govern. The Supreme Court recognized the limits of the “Free Exercise” clause in 1990 when a member of the Native American Church wanted an exemption from a law prohibiting peyote use. The Court ruled against him, saying an indirect burden on religion is fine when lawmakers want to accomplish a different goal. It’s possible that his non-“mainstream” practice had something to do with the result.

Since that ruling, the government made a law to do what the Free Exercise clause couldn’t. It’s the law the Court used to side with employers in the Hobby Lobby case.

However, some would argue that avoiding burdening religion as the Court did in Hobby Lobby could be a preference for a certain religion. That’s not Trump’s view. He declared recently his intent to secure Christian views on contraception will be free from government burden.

See the legal landscape relating to the Contraception Mandate in our report this week. We are piloting a Quiz segment in this week’s post - hope it helps you follow the report!

View the report here.


Sugar, Standard Oil and Today’s Regulation of Corporate Mergers

In 1895, American Sugar was allowed to monopolize sugar manufacturing. The Supreme Court said manufacturing was out of federal government reach. It wasn’t the type of “commerce” that Congress could regulate.

Sixteen years later, the Court ordered the biggest breakup in corporate history. Rockefeller’s Standard Oil conglomerate of 65 affiliated companies owning 90 percent of the American oil industry had to dissociate with 33 of them. Some of them are names we all know: Exxon, Chevron, Amoco, Mobil. No surprise it was oil that led the Supreme Court to recognize a federal interest in regulating commerce.

From that point, federal regulation grew. And it grew some more, especially through the New Deal. Roosevelt, acting in response to the Great Depression, passed enough legislation to carry with it the modern day label “liberal” for supporters of regulation and social policies.

Today, the federal government has clear authority to control anticompetitive actions. Major federal antitrust laws now have over a century of history, and the federal agencies play a large role in overseeing corporate mergers.

And even after all that history, what goes around comes around. In 1998, the Federal Trade Commission approved the largest merger in world history, allowing Rockefeller’s once-separated offspring, Exxon and Mobil, to again be joined.

This week, we bring you the legal landscape of antitrust regulation related to corporate mergers.

View the report here.