The roots of today’s judicial activism stretch back one hundred years to the appointment of controversial Supreme Court Justice Louis Brandeis, a champion of “sociological jurisprudence.”
The truth that human beings possess a natural personhood and natural rights is not incompatible with the idea of corporate personhood and rights that exist not by nature but by convention.
Corporations, and civic associations in general, are necessary bulwarks between governmental power and individual citizens—but they’re not people. Now more than ever, we must recover a clear understanding of what it means to be a human person with inherent dignity and natural rights.
Justice William Brennan’s vision of a living constitution continues to dominate contemporary constitutional interpretation, in spite of its troubling inconsistencies.
The contemporary left’s extreme anti-corporation position is hostile to the traditional legal culture of American liberty, which advances the common good by protecting the rights of both individuals and formally organized groups of people.
In debates over marriage and abortion, we should make arguments based on constitutional texts and judicial precedent. But would it be legitimate also for judges to consider overarching questions of justice and natural law?
To properly understand due process, we must grasp the key distinctions between law and decrees and between law and morality. If judges are authoritative arbiters of the “logic of morals,” we have subjected ourselves to an unelected, life-tenured legal elite whose reach exceeds our grasp.
Which Justice Sotomayor will show up in the next landmark family-law case: the Sotomayor who affirms the “precious” rights and duties of biological parents? Or the Sotomayor who insists on full "marriage equality"?
History clearly demonstrates that the legislative branch can legitimately act to counter the rulings of the judicial branch. This is as true for marriage as it was for slavery.
The Eighth Circuit Court has created the opportunity for religious freedom to win again in the Supreme Court. But it is Judge Daniel Manion of the Seventh Circuit Court who supplies the arguments that should triumph, for everyone’s freedom.
A look back at the disintegration of republicanism in the Roman Empire yields important lessons for contemporary American government. Will we demand actual liberty—including the authority truly to govern ourselves—or be content with its image?
If enacted, the deceptively titled Equality Act would punish dissenters, giving no quarter to Americans who continue to believe that marriage and sexual relations are reserved to the union of one man and one woman.
The opinions of the Supreme Court’s most recent term indicate that the court’s conservative justices are rethinking the scope and power of the administrative state.
When voters and legislators act on religiously informed moral convictions in making the law, it may entail a blending of religion and politics that is disquieting to the secular liberal mind, but it closes no gap in the “separation of church and state.”
228 years ago today, the Framers at the Constitutional Convention decided the power to declare war would be reserved to Congress, and the power to conduct war and make peace would be reserved to the president. Presidents and congresses have not always followed the Constitution in matters of war, but that doesn’t mean the Constitution has changed.
The Free Exercise Clause creates a unique type of constitutional liberty—a substantive freedom that limits the extent to which government can interfere with religious freedom.
Decisions of the Supreme Court that go beyond power delegated to the judicial branch or are contrary to the Constitution are null and void. To protect our constitutional republic, citizens, states, and the other branches of the federal government must resist any such decision.
A true republic respects religious speech. Such speech represents a different authority from governing power and affirms its limited nature.
The Supreme Court’s ruling is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of a man and a woman. Will the right of Americans to speak and act in accord with the truth of marriage be tolerated?
As a legal opinion, Obergefell is an utter failure, relying as it does on a tenuous and historically ungrounded jurisprudence of “dignity.” The debate over same-sex marriage is not over. A constitutional ruling so shoddily reasoned, so completely and easily dismantled by the dissents, must paper over a cause that cannot ultimately win in an open debate.
If good morals are essential for a free republic to endure, and if a certain group of institutions successfully promote those morals, then it follows that a well-governed state may be friendly to those institutions—even if they are churches.
There are some problems in the reasoning of Justice Scalia’s opinion in the 1990 religious freedom case. But in its holding, and in its rejection of a quarter century of jurisprudence that could not be squared with the First Amendment, the judgment was correct.
Whether or not Locke would approve of it, there is a fundamental marriage right. It is ancient, not recent, and it secures the integrity of the natural family. In fact, nothing is more fundamental to our legal edifice than the ancient liberty of the natural family.
It’s easy to confuse fundamental rights with intensely-desired goods—and thus to wrongly invest the latter with the moral urgency and primacy of the former.
“Constitutional law” is not the exclusive domain of the courts, or even of government officials. Faithful interpretation is the duty and responsibility of faithful citizens.
Reading and understanding the Constitution is not an especially complicated intellectual exercise. It takes lawyers, judges, and law professors to turn it into something difficult and convoluted.
Although there were many good arguments and questions at the Supreme Court last week, there were also some significant errors.
For the Court to strike down laws defining marriage as the conjugal union of husband and wife would be to abolish the idea that men and women matter—equally—in the lives of the children they create. And it would be both a judicial usurpation of legislative authority and a federal intrusion into a matter left by the Constitution in the hands of the states.
Rather than rush to a fifty-state “solution” on marriage policy for the entire country, the Supreme Court should allow the laboratories of democracy the time and space to see how redefining marriage will impact society as a whole.
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.
Those suing to overturn state marriage laws are not merely asking the Court to recognize a new right. They are asking the Court to declare that the Constitution removes this issue from democratic deliberation.
Fewer than 9 percent of the countries belonging to the United Nations have redefined marriage to include same-sex relationships—and only one of those did so via its judiciary. A judicial redefinition of marriage would make the United States an extreme outlier on the global stage.
More than fifty million people have, by their votes, demonstrated that they continue to understand the profound importance of marriage. They deserve better than to have the decision to protect or redefine marriage taken out of their hands by the Supreme Court.
Antonin Scalia is one of the most brilliant, principled, sound, and thoughtful jurists ever to sit on the Supreme Court. But twenty-five years ago today, his legal skills utterly failed him.
A group of distinguished conservative public servants, policy makers, and political operatives has signed an amicus brief saying the US Constitution requires the states to redefine marriage. They argue that this is the truly conservative position—but it takes quite a bit of logical contortion to accept their argument.
The metamorphosis of marriage from a gendered to a genderless institution would send the message that society no longer needs men to bond to women to form well-functioning families or to raise happy, well-adjusted children. That would be bad news for children of heterosexuals on the margins: the poor, the relatively uneducated, the irreligious, and others who are susceptible to cultural messages promoting casual or uncommitted sex.
Why should a federal judge expect citizens, lawyers, and officials to obey her orders when she ignores the cases before her, and when she holds facts, law, and reason in such obvious contempt?
Judge Callie Granade ignored the case in front of her, then decided a hypothetical case involving facts that she made up, many of which directly contradicted the undisputed facts in the actual case before her.
The US Supreme Court has set a precedent upholding the right of states to define marriage as the union of husband and wife. All federal and state judges—including those in Alabama—are bound by that precedent.
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.
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?
The constitutional crisis now unfolding in Alabama is a direct and foreseeable result of Judge Callie S. Granade’s orders.
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.
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.
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.
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.
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.
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.
Responses to the Hobby Lobby case demonstrate the importance of conservatives and libertarians working toward common goals.
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.