Category Archives: Constitutional Law


by on April 22nd, 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.

by on July 22nd, 2013

The process that killed Prop 8 in California should concern anyone who cares about democracy and the rule of law. The cheaters won.

by on July 17th, 2013

When Justice Anthony Kennedy writes a majority opinion for the Supreme Court, he is famous for baffling his fellow justices (particularly Justice Antonin Scalia) as well as lower court judges.

by on July 9th, 2013

There is nothing in the text, history, or tradition of the U.S. Constitution that precludes extending the most basic protections of the law to twenty week-old (or older) unborn children who are capable of experiencing pain. Adapted from testimony delivered on July 8th before the Texas State Senate Committee on Health and Human Services.

by on July 3rd, 2013

What future does democratic self-government have in our country if same-sex marriage supporters are willing to undermine it through the courts?

by on July 1st, 2013

Just as Lincoln rejected the Supreme Court’s reasoning in the Dred Scott decision, so too conservative leaders need to reject the Court’s faulty reasoning about DOMA. Anti-democratic judicial activism has become habitual only because our elected leaders have declined to respond to it with Lincoln’s clarity and firmness.

by on May 13th, 2013

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.

by on May 10th, 2013

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.

by on May 7th, 2013

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

by on May 2nd, 2013

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.

by on April 25th, 2013

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

by on April 4th, 2013

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.

by on April 3rd, 2013

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.

by on March 22nd, 2013

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.

by on March 21st, 2013

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.

by and on March 13th, 2013

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

by on March 11th, 2013

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.

by on February 7th, 2013

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.

by on February 5th, 2013

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

by on January 15th, 2013

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.

by on January 3rd, 2013

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.

by on December 10th, 2012

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.

by on November 20th, 2012

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.

by on November 15th, 2012

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?"

by on November 2nd, 2012

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.

by on November 1st, 2012

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.

by on October 23rd, 2012

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.

by on October 16th, 2012

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

Featured


by Ryan T. Anderson on October 13th, 2008
An introductory letter from the founder and editor of Public Discourse.
by Mark Regnerus on December 20th, 2012
Young adult men’s support for redefining marriage may not be entirely the product of ideals about expansive freedoms, rights, liberties, and fairness. It may be, in part, a byproduct of regular exposure to diverse and graphic sex acts.
by Ryan T. Anderson on December 18th, 2012
How successful can a “new conversation on marriage” be when its leaders can’t even say what marriage is?
by Sherif Girgis on February 15th, 2013
Marriage as a human good, not marriage law, has an objective core whose norms the state has an interest in tracking and supporting—in a way that respects everyone’s freedom.
by Robert Oscar Lopez on February 11th, 2013
Whatever same-sex marriage is, that’s not what gays are after. They are after a symbolic vehicle that can make them equal to people who can do something they cannot—procreate.
by Patrick Fagan on February 6th, 2013
Family, church, and school are the three basic people-forming institutions, and it is no wonder that they produce the best results—including economic and political ones—when they cooperate.

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