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Search Results for: originalism – Page 2

Statue in front of Supreme Court

The Supreme Court and the Price of Diversity

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The question is not whether diversity is desirable or undesirable. Most of us can appreciate that there is value in diversity. The real question concerns what price we are willing to pay for it.
Supreme Court building

Supreme Court Nominations: A Primer to President Biden

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Public Discourse has hosted arguments about the Court since the publication’s inception. Here, from our archives, are some essays which remain timely, and which might provide some needed perspective on the role of the Court, originalism, and the role of morality and natural law in the Court.
Robert George

From the Archives: Can We Still Reason Together? A Conversation with Robert P. George

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Where there is a mutual commitment to truth and truth-seeking, relationships can be built between religious believers and secularists, and they can indeed reason together. The minimum condition is this: interlocutors, however wide and deep their substantive philosophical or other differences, need to share the conviction that business between them is to be conducted in the proper currency of intellectual discourse—namely, reasons, evidence, and arguments.
Sleeping baby in mom's arms

Casey v. Casey

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Let Casey stand, and its abortion license fall.
Daniel Burns and Ross Douthat

What Happens If Roe Falls? An Interview with Ross Douthat

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The day you pass pro-life legislation, if you’re trying to win people over, should also be the day that you are passing new spending bills to support adoption, to support pregnant mothers—to support, not just crisis pregnancy centers, but crisis first-two-years-of-life centers! And that doesn’t have to mean bureaucratic welfare-state spending. But it means some kind of spending, in a way that I think many people active in the pro-life movement are comfortable with. Many people in the Republican Party institutionally are obviously not.

The Natural Law Thirty Years Later: Clarence Thomas’s Constitutionalism

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A functioning constitutionalism that protects the people’s rights and fosters good governance requires a sound political theory behind it. Times have changed since the American Founding, but Thomas is right that the natural law teaching in the Founders’ political theory remains as sound and useful as ever.
Supreme Court building

Reclaiming the Judging in Judgment: A Response to Christopher Wolfe

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To say that the Supreme Court exercises “mere judgment” belies the gravity of its power and the weight of its opinions. Judgment requires more than a mechanical application of the law. It requires, as Sherbert recognized but Smithignored, that judges determine whether a state’s particular interest is more or less compelling than an individual’s particular right.
Religious symbols

Don’t Rain on Fulton’s Parade: Religious Freedom Is Winning at the Supreme Court

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Defenders of the free exercise of religion need to accept that we are playing a long game. Religious freedom is winning, even if the Court’s religious freedom jurisprudence develops over the span of more than one term.
Robert George

Can We Still Reason Together? A Conversation with Robert P. George

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Where there is a mutual commitment to truth and truth-seeking, relationships can be built between religious believers and secularists, and they can indeed reason together. The minimum condition is this: interlocutors, however wide and deep their substantive philosophical or other differences, need to share the conviction that business between them is to be conducted in the proper currency of intellectual discourse—namely, reasons, evidence, and arguments.
Stack of books with laptop on wooden table

The Bookshelf: In Praise of University Presses—and of One in Particular

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What libraries do on the demand side—acquiring the books and other materials that their faculty and students need to do their research—the university presses do on the supply side, bringing important research into print. Unfortunately, one of the best university presses in the country now faces the threat of closure.
US Flag in front of Capitol

Isolation Bookshelf: The “Borking” of Supreme Court Nominees

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There never was a golden age when low politics didn’t enter into the process of Supreme Court nominations, but the furies unleashed by Roe v. Wade have driven the politics lower and lower. Perhaps one day the end of Roe will mean the end of “Borking” too. So we may fervently pray.
Supreme Court

Textual Literalism and Legal Positivism: On Bostock and the Western Legal Tradition

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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.
Public Discourse

Was It All for This? The Failure of the Conservative Legal Movement

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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?
Supreme Court

Moral Truth and Constitutional Conservatism

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The Constitution itself directs us to use metaphysical and moral truths that lie beyond it in its interpretation. Indeed, a contemporary judge can be faithful to the Founders only by relying on these truths.
Mic

Loose Talk on Free Speech

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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.
gerrymander

Politics as Usual

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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.

The Kansas Supreme Court Has Declared a “Natural Right” to Abortion

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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.

The Virtues of Judicial Self-Restraint

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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.

Who Wants to Limit the Power of the Courts?

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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.

Politics & Law: The Way of Public Discourse

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For ten years, Public Discourse has drawn on the insights of academics and scholars, political and legal advocates, and men and women of letters to offer the reading public thought-provoking reflections on the timeliest issues and the most timeless dilemmas of our public life.

The Thousands-Year Old Constitution

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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.

How to Avoid Another Souter. . . or Stevens. . . or O’Connor. . . or Kennedy

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We can’t undo the past, but we can avoid repeating its mistakes. Here’s how.

Antonin Scalia, Republican Schoolmaster

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Love of country and love of the Constitution—a simple and pure patriotism matched with a sophisticated historical sensibility—run through a new collection of Justice Antonin Scalia’s speeches.

The Urgency of Restoring the Biblical Values of America’s Founders

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Our nation was founded on biblical principles as a haven for devoutly religious dissidents. We forget our Judeo-Christian origins and the founders’ commitment to freedom of religion at our peril.
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