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Search Results for: originalism – Page 2

Clarence Thomas

A Constitution for Everyone

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Originalism is a theory of interpretation, but like any form of legal interpretation, it means little unless applied to facts. And facts are wrapped up in stories. Judge Thapar’s book is a reminder not to forget this.
torn American flag

Sociology in the Age of Trump: The Clash of Deep Stories on the Left and Right

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If the stories can change, it stands to reason that they can improve—or deteriorate. Responsible cultural elites of the Left and Right alike would do well to consider not only what claims they make explicitly, but what kinds of stories underlie those claims, and whether these are the right stories to tell.
Constitution

Getting Authority Right: The Common Good and “Popular Sovereignty”

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Alicea repeats often and correctly the age-old insight that responsibility to care for the common good belongs to each member of the political community. But an equal sharing of authority does not follow from that shared responsibility, and no account of the Constitution’s moral authority will succeed if it presumes otherwise. 
written and unwritten constitutions

Written and Unwritten Constitutions

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The analogy between individual and political constitutions illustrates the fact that no legal order can be fully encompassed by written instruments, and so it must be elaborated by reference to its underlying historical and philosophic dimensions.
US Constitution

How to Lose Sight of the Constitution

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Such a substantial proportion of this book is devoted to textualism, originalism, and traditionalism that it is hard to escape the sense that Sunstein protests too much by repeatedly claiming that his moral-philosophizing “reflective equilibrium” is “the only game in town.” And in truth, he leaves his own preferred approach woefully underdeveloped.
Founding

Is the American Founding Christian, Secular—Or Something Else?

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In The Classical and Christian Origins of American Politics, Kody Cooper and Justin Dyer successfully refute the still (somehow) influential interpretation of the American Founding as a secular-not-Christian project. However, they do so without successfully establishing their preferred alternative, the Christian-not-secular interpretation. There is a vast middle between these two extremes whose existence slips through the authors’ fingers again and again like a well-greased elephant.
Jean-Francois-Millet-the-angelus

How Should Conservatives Respond to Revolution?

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We are attempting a struggle against a dehumanizing revolution—but we are all attempting to overcome the same common threat. City building isn’t pretty, and it isn’t all that calm. At the same time, in our efforts against revolution, we should not respond with our own revolution.
Harvard_Law_School_Library_in_Langdell_Hall_at_night

James Bradley Thayer, Legal Realist?

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James Bradley Thayer sternly taught an iron discipline in constitutional judging of holding one’s own views—even one’s conviction that one understood the Constitution better than the legislature did—firmly in check. And he taught this because he believed it was the only approach consistent with the Constitution’s text, purposes, structure, and traditional interpretation.
Painting of James Madison

Before Critiquing the American Founding, We Should First Understand It

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According to Steven Smith, it’s meaningless to speak of our inherent natural rights. He dismisses the Founders without properly understanding them. A return to the Founders’ natural rights constitutionalism may not offer the best alternative to protect religious liberty today. But we cannot even entertain the possibility that it might if we do not understand the principles of justice or the practical meaning of the philosophy that originally animated the Constitution.
Photo of William F. Buckley

Where Does National Review Stand Today? A Conversation with Ramesh Ponnuru and Matt Franck

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National Review midwifed and nurtured the modern conservative movement into being. Conservatism today is in a very different situation from the one that Bill Buckley confronted in 1955. There is this vast conservative enterprise now; it’s kind of hydra-headed. But the basic need is, first, to think about the circumstances in which we find ourselves and how to apply conservative principles to them—or a conservative disposition, if one prefers—and second, how to build a coalition that is large enough to take these ideas off of the shelf.
Protest outside Supreme Court

Does Dobbs v. Jackson Threaten The Supreme Court’s Legitimacy?

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The only way that we can really meaningfully grapple with the Supreme Court's legitimacy is to ask: what was it actually built to do? Roe was wrong. It had become the political equivalent of a black hole, totally devoid of substance, but with such immense gravity that it distorts everything around it. Abortion, of course, isn’t going away as a political issue. The difference now will be that instead of having debates about Roe, we’ll debate about abortion.
flag, constitution

Calvinball Constitutionalism

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Adrian Vermeule’s new book, an attempt to rescue American constitutional law by recurring to the “classical legal tradition,” is undone by the author’s unreasonable attack on originalism and his inattention to the Constitution and its history.
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.