After decades of struggle, the conservative judicial project has finally produced a possible working majority of five originalists on the Supreme Court. There are plenty of reasons to wonder how consistently they will coalesce in practice and how willing they will be to revisit wrong precedent. But trashing Antonin Scalia’s originalism and replacing it with Josh Hammer’s idiosyncratic, results-oriented version isn’t likely to help matters.
Justice John Marshall Harlan the First courageously stood against his learned opponents on the Supreme Court. By his example, we too might muster the courage to be “Great Dissenters” against the intellectual and cultural classes that progressives have come to dominate.
Despite Andrew Koppelman’s good-faith efforts, he has not accurately stated important, fundamental convictions of religious liberty proponents concerning the character of moral reasoning and the nature of law.
Andrew Koppelman surely is correct that a same-sex couple must find it humiliating and embarrassing to be turned away from a wedding vendor. He is also right that the costs of using public law to remedy such indignities are significant, especially for the conscientious owners whose livelihoods are at stake. So, what to do? What we need is an institution that is capable of resolving these fraught disputes on a case-by-case basis. Fortunately, the common law provides such institutions.
The republication of Jacques Necker’s On Executive Power in Great States is an occasion to consider that eternal conundrum: how to empower but also limit the executive branch.
Senator Hawley should turn the tables during confirmation hearings and force Democrats to defend their abortion extremism. What’s more, he should act on precedents stemming from the days of Lincoln down to our own, precedents involving the authority of the political branches to counter at times and limit the holdings of the Supreme Court.
Any effort to seat justices who will overturn Roe needs to take account of the serious political obstacles that stand in the way. We must not surrender in the face of these obstacles. But we must recognize them in order to navigate through them.
Roe v. Wade is no secondary issue. It is not something to be pushed to the side of the nomination process. Roe is central. Roe is a window into the constitutional worldview of a would-be justice. It is a measure of their sense of what a justice should be. That is why I say today that I will vote only for Supreme Court nominees who have explicitly acknowledged that Roe v. Wade was wrongly decided. Adapted from a speech given on the floor of the Senate by Senator Hawley on June 30, 2020.
The religious liberty triumphs of the past several days are important, but they’re not enough. Not nearly so. We need to contend about the truth of the matter. Through legislation and litigation, we need to make it clear that it’s lawful to act on the convictions that we are created male and female and that male and female are created for each other. Privacy and safety at a shelter, equality on an athletic field, and good medicine are at stake for everyone—religious or not.
For centuries, judges, lawyers, and legislators agreed that the object, end or purpose of the law—more precisely, the “mischief” that it was enacted to overcome—is crucial for determining its meaning. Any uncertainties in the meaning of the terms employed by the lawgiver must be resolved in accord with general custom and common usage at the time the law was enacted. Bostock is the most recent example of the Supreme Court violating this foundational principle of the rule of law.
Pro-lifers have waited nearly a half century for the Court to repudiate its entire ill-founded abortion jurisprudence. The state’s interest is not in protecting some esoteric “potentiality of human life,” but in protecting the lives of actual vulnerable, unique, and utterly dependent human children. More still, women’s liberty is not best described by Casey’s paean to nihilism; rather, properly understood, women’s liberty is not in conflict with their unborn children at all.
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 bargain has never been explicitly articulated, but religious conservatives know what it is. The bargain is that you go along with the party establishment, you support their policies and priorities—or at least keep your mouth shut about it—and, in return, the establishment will put some judges on the bench who supposedly will protect your constitutional rights to freedom of worship, to freedom of exercise. How has that worked out for us?
Bradley C. S. Watson’s new book Progressivism: The Strange History of a Radical Idea points scholars in new and productive directions regarding the political thought of the Progressive Era. Watson writes with vigor and verve, making the book of great appeal to anyone trying to take the true measure of the legacy of Progressive political thought in American history.
If you really must attack other conservatives, take the time to figure out what they actually said and why, and interpret them charitably, the way you would wish to be interpreted. You owe this even to your enemies, but other conservatives are not your enemies but your friends. After that, have some definite arguments.
Were the criminal sentencing reforms that began in the 1970s too harsh? Rachel Barkow’s new book says they were. But most Americans would likely call these changes progress: our worst offenders now get something closer to what they should get than in the days when the experts were more in charge of punishment. Perhaps the real question is whether we should ground our criminal law more on justice as retribution.
The Church must exercise its authority over temporal matters in a way consistent with its spiritual mission, of which the exercise of temporal jurisdiction is a betrayal. The human person is drawn by nature to seek out and hold the truth whose fullness is revealed in God’s revelation in Christ, but this vision of human fulfillment implies a human subjectivity whose freedom must be respected as it seeks out the truth which fulfills it.
Debates over judicial review and constitutional interpretation only stand to benefit from deeper reflection on the type of political community the Constitution established. The Political Constitution invites us to take the word republic, and its vision of self-government, seriously.
America’s relations with China should proceed from the recognition that the Chinese government is lawless. China flouts the rule of law, not occasionally or incidentally but characteristically, because the government understands itself as the source of law and unconstrained by it. The problem of China reminds us of the deeper laws that all nations must respect and that determine whether or not our positive laws are legally just.
At stake in the Harris Funeral Homes case is whether the physical reality of sex will be deemed a mere stereotype—whether, for all public and practical purposes, everyone’s “identity” is arbitrarily and accidentally related to his or her body as ghost to machine.
The constitutional framers knew that not everyone would always agree on how other people exercised their fundamental rights, such as property and religious liberty, which was precisely why those rights were enshrined in the Constitution. However, modern progressives have sought to undermine that constitutional consensus.
Activists are asking the Court to rewrite our nation’s civil rights laws in a way that would directly undermine one of their main purposes: protecting the equal rights of girls and women. Congress did not legislate such an outcome, and the Court should not usurp Congress’s authority by imposing such an extreme policy on the nation. Biology is not bigotry, and the Court should not conclude otherwise.
Christians should be wary of the substitution of the nation for the church. Instead, they should seek a vibrant localism allows people to find meaning in their local communities—especially religious communities—and impart that sense of purpose and belonging that nationalists rightly perceive is missing for many citizens.
Can the US Commission on Unalienable Rights help correct the international human rights paradigm? It all depends on how brave the Trump Administration and Secretary Pompeo are in translating the suggestions of the commission into public policy—both for the State Department and the United Nations.
In Rucho v. Common Cause, the Supreme Court’s recent case on gerrymandering, both the majority and the dissenting opinions were heavy on pragmatics and light on constitutional interpretation. The heart of their disagreement is a difference of visions of how the judiciary ought to interact with the electoral process.