The Supreme Court has long channeled the views of a very particular sort of religious and elite class interest in its Establishment Clause jurisprudence concerning religious displays. Cases like American Legion v. American Humanist Association suggest that it is—gradually and haltingly, but nevertheless steadily—withdrawing from this field of cultural combat.
The right to the pursuit of happiness is coherent only in the full theological context of the Declaration of Independence.
Kansas’s Supreme Court randomly festooned its recent decision on abortion with impressive terms, without making the slightest effort to learn the terms’ meanings. The court identifies “common law” with judicial opinions and thus shoehorns innovative judicial decisions into its discussion of “natural rights.”
In the wake of last month’s decision, the only remedy left to the people of Kansas is to pass a constitutional amendment to declare that there is no “fundamental right to abortion” in the state’s constitution and to allow the legislature to make reasonable laws about abortion.
All people should be protected from harassment and harm, no matter how they identify. But we as a society must be allowed to reasonably act on the basis of sex when medical treatment, privacy, and safety are at stake. If “gender identity” becomes a protected class, women and children are the ones who will suffer most.
To faithfully apply the original public meaning of liberty protected by the Constitution—that is to say, to be a faithful originalist—one must acknowledge that both a contractarian view of individual liberty and a Whig view of the liberty to make laws were held by the founding generation.
This Friday, the Court will decide whether to review a case about an Indiana law that prohibits abortions performed solely because the unborn child has Down Syndrome or another disability. Regardless of our nation’s polarized views on the policy and politics of abortion, it is clear that our Constitution does not include a right to abort children merely because of disfavored characteristics.
Perhaps the real source of liberal anxiety is not simply that a conservative-dominated Supreme Court will become activist in the opposite direction. Rather, a more far-reaching consequence for the American left would be a repositioning of the judicial branch as equal—not superior—to the legislative branch.
Understood as an expression of the common law commitments on which it was built, our Constitution still supplies common terms in which we might re-transform our civic discourse into something rational and productive. The second in a two-part series.
Justice is something we must establish every day—in the way we live with others, in the way we speak humbly and attend to all the facts patiently, in deference to reality and the truth of things.
Our Constitution is not just positive law, stipulated and contingent on political will. American constitutions do incorporate pre-positive law, often expressly. And that law is neither mere text, nor axioms, nor political ideals. The first in a two-part series.
Though Legislated Rights is primarily written for legal philosophers, it bears important lessons for all who work to secure human rights in law. It challenges conventional views about the supremacy of courts in specifying and vindicating rights, arguing that legislatures can best accomplish this task.
Virtue ethics can help originalism maintain its integrity.
We might call Neil Gorsuch a natural law originalist: a jurist who believes that the content, motivation, form, and impact of the Constitution that he’s called upon to uphold and of the laws he must fairly interpret are—for the most part—sound expressions of the account of human good and human dignity to which he subscribes.
We can’t undo the past, but we can avoid repeating its mistakes. Here’s how.
As the late Justice Scalia was fond of pointing out, the views of individual lawmakers in the midst of debate are not themselves the law we must interpret. Neither are the votes taken in a deliberative body rightly viewed as votes on anyone’s interpretation of the text under discussion. The text that they passed, not what they said about what they passed, is the law.
The majority’s refusal to address the free speech issue in Masterpiece explains the intractability of debates over the scope of its free exercise ruling because, surprisingly, the two issues are linked. Two concurrences implicitly address the free speech issue. There the conservatives’ case is stronger, and supported explicitly by Justices Ginsburg and Sotomayor in dissent. In light of it, the Court’s Masterpiece ruling should provide robust protection for other creative professionals.
The pardon power is the most significant and strongest power of the president, and the Constitution places almost no limits on it. In using it, the president can unilaterally nullify the legitimate authority of the legislative and judicial branches.
State officials and judges cannot comply with the Supreme Court’s ruling in Masterpiece simply by articulating facially neutral reasons for decisions that punish people for acting on the understanding that marriage is a man-woman union.
In drawing on the older teaching of the courts, Hadley Arkes argues that it is far more tenable for the Court to teach again the difference between epithets and arguments.
Same-sex parenting advocates are calling on states’ rights to define the legal relationship between parent and child. What they seek is the power to write the record of a child’s origins and to determine a fundamental aspect of a child’s identity.
Originalism is the commonsense, traditional American approach to constitutional interpretation, not a contemporary conservative invention.
Should we determine whether a person is fit to be a judge based on his or her religious beliefs or opinions on contemporary policy debates? Or should the Senate approve judges based on their reputation for fairness, their ability to follow and apply law, and their record of judicial wisdom?
Pregnancy care centers are being targeted by the state of California for respecting the intrinsic worth and dignity of women and children, even when it is unprofitable to do so.
On some rights—such as the right to life—there is no room for compromise. But assault weapons seem an appropriate point of compromise for proponents of a right to bear arms.