Category Archives: Constitutional Law


by and on March 2nd, 2015

President Obama’s “authorization” request is designed to curtail existing legal authority to wage war on ISIL and to handcuff future presidents in the exercise of their constitutional authority as commander in chief.

by on February 20th, 2015

The structure and logic of the legal arguments made for nationwide judicial imposition of same-sex marriage are remarkably similar to the arguments made by those who argued for the judicial imposition of slavery nationwide. Will the Republican Party produce another Lincoln to stand against them?

by on February 13th, 2015

The constitutional crisis now unfolding in Alabama is a direct and foreseeable result of Judge Callie S. Granade’s orders.

by on February 9th, 2015

Conservatives should defend the Constitution and the rule of law, but they should not defend judicial supremacy. The Constitution—not the Supreme Court—is our country’s highest authority.

by on January 28th, 2015

In the real world, human goods are often in conflict with one another. This reality forces us to make difficult choices and trade-offs that cannot be eliminated or adjudicated by following simple rules.

by on October 23rd, 2014

Courts heighten scrutiny of policies that classify people by sex and other “suspect” traits. But laws defining marriage as a male-female union are different in structure. The very form of policies based on the male-female pairing—unlike every other classification—demonstrates their connection to the common good. So courts shouldn’t subject them to the special scrutiny applied to other laws that classify by sex.

by on October 21st, 2014

The Supreme Court closely scrutinizes policies involving racial, sexual, and other “suspect” classifications. But unlike almost every other classification imaginable, marriage laws use a criterion necessarily linked to an inherently good social purpose that we didn’t just invent. This criterion isn’t truly suspect and shouldn’t get heightened scrutiny.

by on October 14th, 2014

US religious liberty law is not perfect, but it still deserves our support. Religious exemptions witness to the value of religion as a transcendent good. And nothing in the Supreme Court cases requesting religious liberty exemptions for Muslim citizens undermines that effort.

by on October 9th, 2014

The equality that demands same-sex marriage demands that all social recognition of the distinction between mothers and fathers—of the paternal and the maternal, the masculine and the feminine, and of the sexual identity of everyone as male or female—must be systematically expunged, to be replaced by the lies and seductions of “gender identities” on the ever more blurry rainbow spectrum.

by on October 1st, 2014

Responses to the Hobby Lobby case demonstrate the importance of conservatives and libertarians working toward common goals.

by on August 22nd, 2014

The existence of objective moral truth that is knowable by reason does not imply that people generally, much less particular public officials, will in fact know and embrace that truth. Very often, they won’t, and that is why systematic limits on government power, such as the Religious Freedom Restoration Act, are good laws.

by on August 21st, 2014

Legislators and judges not only can but must gauge the moral justification of every law.

by on August 19th, 2014

When the law limits the courts’ power to inquire into the truth or reasonableness of religious views, this is not because the law is assuming that religious beliefs lack rational foundation. Rather, it’s because allowing courts to exercise this power on a large scale would be too dangerous.

by on August 12th, 2014

Confronted with its legislative weaknesses, defenders of Obamacare are appealing to the law’s intent instead of its text. This is a dangerous approach that the founders clearly rejected.

by on July 11th, 2014

The Court’s decision in the Hobby Lobby case missed an important point. As with churches, the government has no compelling interest in coercing businesses and organizations with religious objections to carry out the HHS mandate.

by on July 10th, 2014

Contra Justice Ginsburg, the Hobby Lobby decision is no cause for alarm. Yet we should acknowledge and address a fear she highlights: the serious obstacles women face today in the realms of sex, marriage, and parenthood.

by on July 8th, 2014

The contradictory reasoning of Justice Sotomayor’s Wheaton dissent exposes a glaring weakness in the legal argument requiring religious non-profits to comply with HHS’s regulatory scheme.

by on July 7th, 2014

The right to religious freedom is for everyone, not just those with the “right” beliefs.

by on July 2nd, 2014

According to the structure of the Court’s logic, all objecting employers should receive the same religious freedom protection given to churches and religious orders.

by on July 1st, 2014

Yesterday’s decision demonstrates that the Supreme Court understands what Congress set out to do when it passed the Religious Freedom Restoration Act. Religious freedom is for all, regardless of the popularity of the belief. Congress, in passing RFRA, has said that if the belief can be accommodated, then it must be.

by on June 30th, 2014

Respect for religious conscience is not an afterthought or luxury, but the very essence of the American political and social compact. Adapted from testimony presented before the House Judiciary Subcommittee on the Constitution and Civil Justice.

by on June 27th, 2014

Common sense can tell us whether particular citizens should be exempt from certain government policies for religious reasons. Codifying such instinctive judgments into formal statutes is more difficult.

by on June 25th, 2014

It’s time to realize that ACOG’s priority is not medical fact but thwarting protection for the unborn.

by on May 29th, 2014

Justice Kennedy’s opinion in Greece v. Galloway is the Court’s best piece of Establishment Clause work in decades—and a happy omen for religious liberty in our country.

by on May 27th, 2014

The new world of civil rights turns the old one on its head.

by on May 15th, 2014

Conservatives must defend marriage for both principled and practical reasons. The Republican Party cannot surrender the cause of marriage without also surrendering the cause of life.

by on May 13th, 2014

Abolitionism provides the example for how to fight for a cause: underscore the humanity of those whose humanity is denied, provide compassionate care for those affected, name the lies that dehumanize and kill, and tirelessly argue for the truth about “who counts.”

by on April 23rd, 2014

In staying out of the legislative fray, the Fifth Circuit humbly recognized the limits of its due process jurisdiction. Now it’s up to the Supreme Court to do the same.

by on March 21st, 2014

A business owner brings his values and his entire self—his faith no less than his race—to his daily work. The government shouldn’t force him to violate his conscience.

by on March 18th, 2014

For Justice Clarence Thomas, the foundation of all our law lies in the self-evident truths of the Declaration of Independence, beginning with human equality.

by on March 4th, 2014

State lawmakers should make it clear that religious and moral reasons are rational and legitimate, and that property owners may act or refrain from action in obedience to conscience.

by on January 31st, 2014

The unchecked progress of sexual liberalism means that we cannot say what kind of moral culture our children will inhabit as adults or, accordingly, what kind of moral culture will form our grandchildren. No responsible person can support such a movement.

by on January 24th, 2014

Conservatives must resist the temptation toward “big-government conservatism.” Easy acceptance of extra-constitutional federal powers betrays the philosophical roots of the conservative movement.

by on January 10th, 2014

The age in which all states were united in understanding marriage as the exclusive union of man and woman for life has passed away. Now, new legislation seeks to protect the right of each state to define marriage for those who reside within its borders.

by on December 16th, 2013

“Informed choice” legislation does not impede a woman’s ability to choose abortion. Such laws enlighten the abortion choice by making clear exactly what it is that is being chosen.

by on December 13th, 2013

In both Dred Scott and Roe, the justices of the Supreme Court had to decide what it means to be a person, whether human beings can be considered property, and what it means to be deprived of liberty. They got it wrong both times.

by on November 26th, 2013

Strict separation of church and state would require us to throw out Thanksgiving as a religious holiday proclaimed by the president. Instead, we should embrace Thanksgiving and throw out strict separationism as a misguided interpretation of the Constitution.

by and on November 21st, 2013

Governor Jerry Brown’s recent veto of a California bill seeking to extend the statute of limitations for certain sex abuse cases reminds us of a basic principle of law: like cases must be treated alike.

by on November 14th, 2013

California and New Jersey’s new laws banning talk therapy to address same-sex attraction in minors violate the rights of parents and children to seek counseling that conforms to their values. They also endanger First Amendment rights.

by on November 6th, 2013

Judicial precedent, historical awareness, and the very nature of prayer all make it clear: legislators have the right to begin their assemblies with a prayer.

by on October 21st, 2013

We have the worst of both worlds: a Prohibitionary State that gives license to all kinds of evil, but that regulates and restricts actions that are not evil, to manage the chaos that results from the license.

by on October 15th, 2013

A New Jersey judge’s contorted and nonsensical decision that the state is responsible for the federal government’s failure to recognize same-sex marriage highlights the irrationality that permeates the campaign for “marriage equality.”

by on October 10th, 2013

Current jurisprudence protecting pornography as “artistic expression” contradicts the Founders’ understanding and the underlying purposes of the First Amendment’s protection of speech, and it fails to protect Americans from the social and personal trauma caused by pornography. The second in a two-part series.

by on September 24th, 2013

Our president’s assumption that he should punish Syria for a moral, but not legal, transgression undermines international law.

by on September 10th, 2013

The president and Congressional supporters of attacking Syria suggest by their actions a strong disregard for public opinion and self-government.

by on September 9th, 2013

Without authorization from Congress, American presidents can only start unconstitutional wars, even if they are motivated by good intentions.

by on July 30th, 2013

Lincoln’s Order of Retaliation—a command to kill Confederate prisoners as punishment for the South’s massacre of black Union soldiers—can help frame our view of presidential military power today.

by on July 26th, 2013

Since our culture has embraced Justice Kennedy’s “mystery of life” philosophy, we lack a coherent framework for making laws that don’t just cater to personal preferences.

by and on July 25th, 2013

The Employment Non-Discrimination Act would equate sexual orientation and gender identity, ambiguous and malleable concepts, with immutable features like race, color, and ethnicity as classes worthy of special legal protection.

by on July 23rd, 2013

For its protection and flourishing, religious freedom needs not only limited government but also a social order that gives plenty of room to civic institutions and associations.

Featured


by Katy Faust on February 2nd, 2015
Take it from the adult child of a loving gay parent: redefining marriage promotes a family structure in which children suffer.
by Jean Lloyd on December 10th, 2014
May I make two requests? Love me, but remember that you cannot be more merciful than God. It isn’t mercy to affirm same-sex acts as good. Don’t compromise truth; help me to live in harmony with it.
by Mark Regnerus on August 11th, 2014
Churchgoing Christians who support same-sex marriage are more likely to think pornography, cohabitation, hook-ups, adultery, polyamory, and abortion are acceptable. And it’s reasonable to expect continued change in more permissive directions.
by Andrew T. Walker, Glenn Stanton on February 4th, 2015
For parents with LGBT children, Christianity offers an alternative to false dilemmas of affirmation or abandonment.
by Alana S. Newman on August 2nd, 2013
Third party reproduction corrupts the parent-child relationship and disrespects the humanity of donor-conceived people.

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