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David Upham

David R. Upham, J.D., Ph.D., is Professor of Law at St. Thomas University College of Law (Miami) and Senior Fellow in Politics and Law at the University of Dallas. His research and writing focuses on American constitutional history, and in particular, the history of the Fourteenth Amendment.

family of three

Constitutional Parental Rights: No “Substantive Due Process” Required 

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Indeed, because our Constitution recognizes the right of both mother and father to the custody of their joint offspring, that Constitution surely permits—if not requires—all the states of our Union to publicly favor, once again, the lifelong “union between one man and one woman as husband and wife.” 
Sleeping baby in mom's arms

Casey v. Casey

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Let Casey stand, and its abortion license fall.
Gorsuch

The Blindness of Justice Gorsuch’s Woke Textualism

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Neither the intent nor the letter of the Civil Rights Act, nor the Court’s own jurisprudence, compels sex blindness. The judges who have failed to see this truth are not “woke.” They’re asleep on the job.

The Fourteenth Amendment and Masterpiece Cakeshop: Equal Citizenship, our Inclusive Republic, and Anglo-American Common Law

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The government cannot impose creedal and exclusionary limits on occupational freedom by compelling particular citizens to provide goods and services contrary to their beliefs, unless those citizens have such a monopoly market power as to exclude other citizens from the market.
Public Discourse

Gender-Diverse Marriage Laws Do Not Infringe the Liberty of Gay and Lesbian Americans

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According to a recent amicus brief by scholars of liberty, same-sex marriage is not only counter to the Supreme Court’s long line of personal liberty cases, it may even be prohibited by them.