Public Discourse

We don’t need a new resolution from Congress to address the wrongs of clinics like Kermit Gosnell’s—the Born-Alive Infants Protection Act already serves that purpose, and we should restore the civil penalties originally attached to it.

The Gosnell case shows us that a society’s laws teach, and if they teach a lesson of injustice they will corrupt its people over time. Indeed, contemporary abortion jurisprudence undermines the very notion of natural rights and constitutional government.

No-fault divorce hurts women, men, and children. So why is it still legal?

During oral arguments on Prop 8, Justice Kennedy alluded to the views of children of same-sex couples as if their desires and concerns are identical to and uncritical of their parents’ decisions. But the reality is far more complicated.

Proposition 8 does not, contrary to Judge Vaughan Walker’s claims, treat equals unequally.

The oral arguments on Proposition 8 at the Supreme Court suggest that there is very good reason to believe that the declaration of a “right” to same-sex marriage will set us on the path to polygamy.

When we define our terms based on the results we want, rather than on the reality of the thing being defined, all hell breaks loose.

While the state has a role to play in promoting the common good, left unchecked by constitutional strictures the regulatory state will crowd private property out of public life. Without private property, our nation would be impoverished not only materially but also morally. The second in a two-part series.

The Supreme Court’s conflicted rulings on whether the government must compensate property owners for burdening their rights and interests raises questions about the value of private property in American life. The first in a two-part series.

Good public policy can meet the needs of all Americans without redefining marriage.

The Supreme Court first put marriage on its track of decline forty-one years ago, when it ruled that states could not limit the sale of contraceptives to unmarried couples.

In the latest proposed version of the HHS mandate, the government presumes to say which employers get religious freedom and how much they get, but all religious employers are obligated to live out their beliefs and should have the freedom to do so.

The latest proposed amendment to the HHS mandate still draws on empirically unsound data and violates religious freedom.

To its detriment, Howard Ball’s new book on end-of-life law focuses more on the emotions and biases of the law’s defenders than on law’s history and content.

If we are to preserve our First Amendment rights, judges must refrain from telling plaintiffs challenging the HHS mandate that they’ve got their theology wrong.

A recent ruling in the United States District Court in Hawaii reveals a rational basis for the Supreme Court to rule on a morally neutral basis that marriage can be enshrined in law.

Adam Freedman’s stark proposal in The Naked Constitution that we strip our founding document of its modern and academic glosses shows us that we need to take structural reforms to our Constitution seriously.

Preserving marriage as a union of man and woman is bound to fail unless we address the true point of contention in the marriage debate, one completely ignored by even the best legal advocates for redefining marriage: the question “what is marriage?"

Supreme Court Justice Samuel Alito and Judge Robert Bork argue that the First Amendment gives the people greater deference to determine legitimate speech than the courts.

The Anti-Federalists’ early fear about Congress’s taxing power—that it would result in a tax on humans’ very existence—are now realized in the Supreme Court’s upholding of Obamacare.

In a world where the government believes that the First Amendment’s religious freedoms don’t apply to churches, religious organizations, non-profit and for-profit businesses, health-care providers, and anyone outside the four walls of a church building, we are all at risk.

Two incompatible conceptions of rights are at stake in the debate over the HHS mandate.

Religious liberty litigation against the HHS mandate undermines the initial, reason-based arguments of religious objectors. Objectors would do well to refocus the debate on those arguments. The second in a two-part series.

Current lawsuits against the HHS contraceptive mandate may undermine religious liberty in the long run. Not all religious objectors to the mandate are likely to be exempted even if the lawsuits are successful, and judges violate the core meaning of religious liberty when they assess plaintiffs’ religious character. The first in a two-part series.

Applying new governance methods to medicine will undermine physician autonomy and make doctors more liable to malpractice claims. The second in a two-part series.

Obamacare purports to improve medical quality through dynamic processes that involve government-supported private actors, quality benchmarks, and participation by practitioners and patients. The first in a two-part series.

Constitutional law has often been used to shape economies, but there are limits to the law’s ability to influence economic culture, especially when societal priorities no longer accord with constitutional principles.

Slavery was a great evil, but the Constitution was neither its source nor its guarantor.

Criticism that Republican justices have only hurt the pro-life cause is misguided, because Republican presidents from Reagan onward have deliberately tried to advance judicial conservatism through federal court appointees—a commitment that has brought victories both for judicial conservatism and the pro-life cause. The second of a two part series.

Legalized, unrestricted abortion can’t be blamed on conservative judicial policy just because Republican justices voted for it. Judicial conservatism as we now understand it came after Roe. The first of a two-part series.

The Supreme Court’s ruling upholding the Affordable Care Act is constitutionally correct. This doesn’t prevent us from seeing the individual mandate as a tax on freedom—an exercise of Congress’s constitutional power to tax so as to destroy personal and institutional freedom with respect to health insurance.

Though the Supreme Court has long been hostile to tax exemptions for religious reasons, the Religious Freedom Restoration Act and the Establishment Clause should give religious organizations reasons to hope that they won’t be penalized by the Obamacare “tax.”

The Supreme Court should be an apolitical institution dedicated to enforcing the minimal and clear requirements of the Constitution.

The clash between Chief Justice Roberts’ opinion and that of the joint dissenters is best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement.

The lesson of Casey is that the nomination and confirmation of judges with a sound judicial philosophy is an essential foundation stone of a culture of life.

Casey is not a sound exposition of the Constitution, and its authority should be repudiated by all other actors in our constitutional system The second in a two-part series on the deadly significance of Planned Parenthood v. Casey

In its effects, methodology, substantive doctrine, conception of the judicial role and of judicial authority, and conception of what constitutes the rule of law, Casey is terribly significant and terribly wrong. The first in a two-part series on the deadly significance of Planned Parenthood v. Casey.

Same-sex marriage should not come in the back door, via an arguably collusive lawsuit in which no one charged with the responsibility of enforcing the law actually defends it.

The Founders’ nuanced views of religion and politics prevent us from reading modern concerns about the separation of church and state into their words.

Liberals and conservatives alike often complain hypocritically about judicial activism. If we are to avoid letting judicial activism become rule in favor of whatever causes justices approve, then we should make the presumption of constitutionality a basic principle of judicial review.

We should pass Unborn Child Protection Acts and begin the conversation about the pain of the unborn.

The Pain-Capable Unborn Child Protection Act does not deserve the support of the public because it is unconstitutional and represents poor public policy.

Given the legal principles involved in recognizing same-sex relationships as marriages, it’s hard to see any coherence in President Obama’s statement.

President Obama’s recent quips about “judicial activism” do not amount to arguments. They are shallow sloganeering.

Has the Supreme Court rediscovered the institution of property? In a recent unanimous affirmation of property owners’ rights, the Court gives us reason to hope.

Libertarianism offers the best defense of individual rights that government can employ.

Not all discrimination is wrong. While the government should regulate some forms of wrongful discrimination, other forms of discrimination lie beyond the purview of the state.

Originalism must guard against an overconfident reliance on history. Restraint and judicial caution are needed in an age of judicial overreaching.

Vanderbilt University has decided that campus student religious groups may not require that their leaders accept the core beliefs of the religious group they would lead. Ironically, Vanderbilt’s right to do so rests on the same freedom it denies to these groups—a group’s freedom to define what it stands for and the views it expresses.

Recent attacks on marriage threaten not only a foundational public institution but the rule of law itself and the legitimacy of the judicial branch.