Bound By Oath by IJ

In 2005, in the case of Kelo v. New London, the Supreme Court allowed officials to seize and raze an entire neighborhood of well-maintained homes and businesses in the hopes that someone else could build fancier homes and businesses. According to the dissenters, the majority's opinion effectively deleted the provision of the U.S. Constitution requiring that takings be for a "public use." On this episode, we ask: what, if anything, is left of the prohibition on using eminent domain to take property from Person A merely to give it to Person B? And we look at some current litigation that can restore traditional limits on the government's power of eminent domain.



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Kelo v. New London



Hawai'i Housing Authority v. Midkiff

On this episode: Berman v. Parker, the Supreme Court's decision in 1954 to abandon previous constitutional limits on the government's power to take property from Person A to give it to Person B. The decision greenlit the era of urban renewal, which saw over a thousand cities across the country seize and bulldoze entire neighborhoods en masse.



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Berman v. Parker



Schneider v. D.C.

On this episode, we take a break from case law and go way back to the beginning to examine the origins and justifications of private property.



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Tyler v. Hennepin County

On this episode we return to the subject of zoning. With the doors to federal courthouses barred shut, advocates for reforming zoning have turned to state courts and state constitutions. Most famously, in 1975, the New Jersey Supreme Court took a look at a zoning ordinance that made it illegal to build low- and moderate-income housing in the township of Mount Laurel and said in no uncertain terms: enough. But the story of the Mount Laurel doctrine, which calls for municipalities to do their fair share to meet the regional demand for affordable housing, is not all milk and honey. Additionally, we take a look at some current efforts in other states to protect property rights under state constitutions.



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Mount Laurel I (1975) and Mount Laurel II (1983)



Warth v. Seldin



Belle Terre v. Boraas

In 1926, in the case of Euclid v. Ambler, the Supreme Court upheld zoning, giving elected officials and city planners vast, new, and largely unchecked power to tell people what they can and cannot do with their own private property. On this episode: the story of the lawsuit that changed everything for American property rights plus the personalities who made it happen.



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Euclid v. Ambler (Supreme Court opinion)



Ambler v. Euclid (district court opinion)



Nectow v. Cambridge

On Episode 3, we journey back to a lost world: the world before zoning. And we take a look at a trio of historic property rights cases. In In re Lee Sing, San Francisco officials tried to wipe Chinatown off the map. In Buchanan v. Warley, Louisville, Ky. officials mapped out where in the city residents were allowed to live based on their race. And in Hadacheck v. Sebastian, a Los Angeles city councilman sought to use the police power to protect his real estate investments.



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In 1922, Scranton, Pennsylvania was said to be on the verge of collapsing into the vast coal mines beneath the city; residents, buildings, and streets alike were being swallowed up by “suddenly yawning chasms.” State legislators responded by unanimously passing a law meant to save the region, where about a million people lived, from total desolation. But when the law reached the Supreme Court, the justices struck it down, ruling that it would be an unconstitutional “regulatory taking” to force coal companies to leave their coal in the ground. On this episode, we go to nearby Pittston, Pennsylvania to find out what happened to the house at the center of the case. Did it—or Scranton—fall into the pits? After that, we trace the major developments in regulatory takings doctrine, which protect against regulations that go “too far.” But we wind up in a bit of a fog. Plus! This episode will have an unsolved murder—and some Supreme Court trivia: did you know a future Supreme Court justice argued the case on behalf of Scranton (at least in state court)?



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Pennsylvania Coal v. Mahon



Penn Central v. New York City

In 1984, the Supreme Court ruled that the Fourth Amendment's protections against warrantless searches do not apply to "open fields." Which means that government agents can jump over fences, ignore No Trespassing signs, and roam private land at will. There are no limits. On this episode, we talk to Richard and Linda Thornton, whose property in rural Maine was at the center of the case. And we ask: Can the Founders really have thought the Constitution did not protect private woods, fields, farms, and more from warrantless invasions?



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Oliver v. United States 



Hester v. United States

Season 3 of Bound By Oath is coming soon!



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On this episode, we take stock of developments in the courts and in Congress since this season began. There's an update on the first case we talked about this season, Brownback v. King. We talk about exciting new cases that the Supreme Court is being asked to take up. Plus, some recent decisions in the lower courts that mean that federal officials are functionally—if not by name—entitled to absolute immunity from constitutional claims in D.C., Texas, Louisiana, Mississippi, Arkansas, Minnesota, Missouri, Iowa, North Dakota, and South Dakota.

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Section 1983 says that "every person" acting under color of state law shall be liable for violating the Constitution. But in 1951, the Supreme Court began to rule that some officials weren't "persons" within the meaning of Section 1983 and that those officials thus enjoy absolute immunity—no matter how malicious, corrupt, or unconstitutional their conduct may be. On Episode 8, we examine absolute immunity for legislators and judges.

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In 1978, the Supreme Court held that individuals can sue local governments for constitutional violations in federal court. Indeed, the Court held that Congress had always intended for such suits to be available — ever since it passed the Ku Klux Klan Act of 1871. However, the standard that the Court says plaintiffs must meet to get their municipal liability claims before a jury is exceedingly high, and getting higher.

On Part 2 of our episode on municipal liability under Section 1983, we find out if Sylvia Perkins mustered enough evidence of dysfunction at the Little Rock Police Department to get her day in court against the city.

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Please click here to learn more about friend-of-the-podcast Coleman Watson's stroke and recovery.

In 2012, Little Rock police officer Josh Hastings shot and killed 15-year-old Bobby Moore and lied about how it happened. Hastings had a long history of untruthfulness and so did many of the officers who trained him and supervised him. And the Little Rock Police Department had a history of turning a blind eye to excessive force by its officers. So when Bobby's mother sued over his death, she didn't just sue Josh Hastings. She also sued the City of Little Rock. But could she? On this episode, the first half of a two-part exploration into municipal liability under Section 1983.

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From the IJ Clinic on Entrepreneurship: Shop in Place Chicago and Yohance Lacour.

In 1967, the Supreme Court invented qualified immunity. And in 1982, the Court transformed the doctrine into the one we have today. On this episode, we trace the development of the doctrine, and push back against the idea that immunities for executive branch officials, like the police, are deeply rooted in this country's legal tradition.

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In Chicago in 1958, over a dozen police officers barged into the home of a sleeping family with guns drawn. They didn't have a warrant, and it turned out they didn't have the right man. When the family's civil rights claim reached the Supreme Court, it resulted in the landmark case of of Monroe v. Pape, which finally — 90 years after Congress authorized such suits — opened the doors of federal courthouses to victims of unconstitutional misconduct by state and local officials. On this episode, we hear about the raid from people who experienced it firsthand. 

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Section 1983 is one of the most important civil rights laws on the books; tens of thousands of plaintiffs file Section 1983 cases each year seeking to hold state and local officials to account for unconstitutional conduct ranging from excessive force and false arrest, to violations of free speech rights and much else. But where does the law come from? In this episode, we explore the origins of Section 1983, or, as it was originally called, Section One of the Ku Klux Klan Act 1871.

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By any measure, the conditions that Lee Saunders endured in the psych unit at the Brevard County jail in Florida were shockingly inhumane. But when he sued over the overcrowding, abusive treatment, and denial of basic sanitation, the courts ruled that the officer in charge was immune from suit. On this episode, we explore the state of qualified immunity doctrine today and whether the Supreme Court’s justifications for its policy of shielding officials from suit—even when they have violated the Constitution—hold water.

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For victims of government misconduct, whether you can sue the officials who violated your constitutional rights often depends on whether the officials are federal, state, or local government employees. On Episode 2, we look at federal officials. We'll head out to Wyoming where a rancher subjected to a 12-year campaign of harassment found out the hard way that all too often the Constitution simply isn't enforceable against federal officials.

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In 2014, two members of a joint state-federal fugitive task force beat up an innocent college student, James King, after mistaking him for a suspect who looked nothing like him. The officers had James prosecuted for resisting arrest, which a jury quickly threw out. Then, in 2015, he sued the officers for violating his rights. In 2020, James' suit reached the U.S. Supreme Court, where the question the Court faced was a narrow one: Can he even sue the officers in the first place?

On Season 2 of Bound By Oath, we'll explore why it is so hard to sue government officials who violate the Constitution.

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Why is it so hard to sue officials who violate the Constitution? Season 2 of Bound By Oath is coming soon.

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Prohibitions on excessive fines date back at least as far as Magna Carta in 1215, and the U.S. Constitution has barred excessive fines since 1791. But the Supreme Court has only recently begun to interpret what the Excessive Fines Clause means, and it wasn't until 2019 that the Court said the Clause applies to the states.

On this episode: the story of how the Supreme Court finally began to incorporate the Bill of Rights rights against the states and the history of excessive fines.

On January 22, 2020, the U.S. Supreme Court will hear oral argument in an IJ case, Espinoza v. Montana Dept. of Revenue. At issue is a Montana school choice program that allowed families to send their children to private schools, including religious ones. The Montana Supreme Court said the program violated the state’s Blaine Amendment, a relic of 19th-century anti-Catholic hysteria that lives on today in 37 states constitutions, and struck the program down in 2018. The U.S. Supreme Court, however, will consider whether discriminating against religious options violates the First Amendment. On this podcast, we take a look at the history of Blaine Amendments, school choice, and one-size-fits-all schooling.

If the government is going to take away life, liberty, or property, the due process of law requires it to follow fair procedures. But, according to the Supreme Court, that’s not all that due process requires. The government also must have a good reason to take life, liberty, or property. On this episode, we head to Akron, Ohio where city officials have shut down a privately run homeless community—without a good reason.

In 1842, the city of New Orleans prosecuted Father Bernard Permoli, a Catholic priest, for conducting an open casket funeral. A violation of the Free Exercise Clause of the First Amendment? The Supreme Court said no: The protections in the Bill of Rights did not bind state and local governments.

Then in 1868, the Fourteenth Amendment is ratified, and it incorporated the Bill of Rights against the states–or did it? On this episode, the failure of incorporation after Reconstruction.

Before the government can take away your life, liberty, or property, it must first give you due process: fair and meaningful procedure. On this episode, we trace the history of due process from 1215 to today. And we head to Harris County, Texas, which operates the the third-largest jail in the country, to see why federal courts say its system of money bail violated that ancient guarantee.

After the Civil War, what many Americans needed most was protection from violence. That’s what the Equal Protection Clause was meant to guarantee, but today the Clause does entirely different work. On this episode: a tour of the history and meaning of the Clause and how African-style hair braiders use it today to protect their right to earn an honest living.

In 1873, the Supreme Court said that the Privileges or Immunities Clause protects a right to “use the navigable waters of the United States”—and not much else. But in the nearly 150 years since, the Court has never examined what the right to use the navigable waters means in practice. On this episode: a pair of brothers from Stehekin, Washington, try to change that.

The Privileges or Immunities Clause was meant to be one of the key liberty-protecting provisions of the Fourteenth Amendment. The Clause says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” That sounds like a big deal, right? It’s not. The Clause has been virtually read out of the Constitution, and for people trying to vindicate their civil rights in court, it’s been of little practical use. That story—the near redaction of the Clause—begins with the Slaughterhouse Cases, which the U.S. Supreme Court decided in 1873.

At the close of the Civil War, some 4 million slaves became free. But almost immediately after hostilities ceased, leaders in the ex-Confederate states began to impose a series of laws, the Black Codes, that re-instituted slavery in all but name. Just as swiftly, a wave of terrorist violence swept across the South, targeting blacks seeking education, economic independence, and a voice in civic and political life—and also whites with Union sympathies. In Washington, D.C., Republican leaders grappled with another problem: When the Southern states rejoined the Union, they would do so with more political power than they'd enjoyed prior to secession—the consequence of each African-American now counting as five-fifths, rather than three-fifths, of a person.

Name just about any modern constitutional controversy—abortion, civil forfeiture, gun rights, immigration, etc.—and chances are that the Fourteenth Amendment is playing a big part. After all, if you are suing a state or local government under the federal constitution, you’re usually making a claim under the Fourteenth Amendment. But you can’t fully appreciate the Amendment’s modern significance without delving into its origins. In Episode One, we do just that, but by way of a story you’ve probably never heard before—through the story of a little known American hero named John Rock:

It’s February 1, 1865. President Lincoln has just signed the Thirteenth Amendment abolishing slavery. But a crowd of reporters and onlookers have gathered instead at the Supreme Court to witness John Rock, a Boston attorney, sworn in to the Supreme Court bar. The moment was as dramatic and historic as they come; John Rock was the first African-American admitted to argue cases before the Court, and he was sworn in before some of the very same justices who had ruled just a few years earlier in Dred Scott that blacks could never be citizens.

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With the doors to federal court closing on civil rights claims, this final episode of Season 2 heads to new terrain: state court.



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In 1983, in the case of Briscoe v. LaHue, the Supreme Court ruled that government employees who commit perjury at trial are absolutely immune from civil liability. On Part 2 of Episode 10, we dig into the Court’s reasoning and the backstory behind Briscoe. We also discuss a special category of officials whom the Supreme…

In 2005, Charles Rehberg annoyed some politically powerful people in his community of Albany, Georgia, and found himself facing serious criminal charges—charges that were completely made up by a rogue prosecutor and could only be sustained because an investigator committed perjury. In Episode 10, we explore the case of Rehberg v. Paulk, which reached the…