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Search Results for: originalism – Page 3

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.

Neil Gorsuch, Natural Law, and the Limits of Judicial Power

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What does natural law say about the power of judges in constitutional systems of government?

Checking the Court: What Can Be Done to Rein in the Supreme Court?

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Michael Stokes Paulsen has identified six courses of action that might effectively curb the Supreme Court’s abuse of judicial authority.

2016 and the Future of the Supreme Court

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What would happen if a justice with the judicial philosophy and record of Justice Ginsburg were to replace Justice Scalia on the Court?

Rendering the Sexed Body Legally Invisible: How Transgender Law Hurts Women

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The gross misappropriation of executive power to utterly remake the meaning of very basic legal terms threatens not only the structure of our government. It threatens the rule of law itself. This distortion of legal language is a particular threat to laws concerning women.

Antonin Scalia, Persistent Champion of Constitutional Republicanism

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The students of Justice Scalia were not merely those who took his classes or served as his clerks. Through his opinions, he taught countless others the importance of the rule of law, republican self-government, and the virtue of courageous persistence in a good cause.
Public Discourse

The Supreme Greatness of Justice Antonin Scalia

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For his immense contributions to constitutional discourse, his sound constitutional vision, his rigorous and vigorous opinions, his fearlessness and peerlessness, Justice Scalia is one of the greatest Supreme Court justices of all time.
Public Discourse

Antonin Scalia: An American Originalist

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With the death of Antonin Gregory Scalia the nation has lost one of its greatest jurists and a man who embodied the principle of fidelity to the Constitution.
Public Discourse

The Living Constitution Revisited

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Justice William Brennan’s vision of a living constitution continues to dominate contemporary constitutional interpretation, in spite of its troubling inconsistencies.
Public Discourse

Professor Paulsen and Justice Scalia: A Qualified Defense of the Smith Decision

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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.
Public Discourse

“Conservative” Judicial Activism for Gay Marriage: With Amici Like These, Who Needs Enemies?

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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.
Public Discourse

Declaration Man: How Justice Clarence Thomas Earned His Enemies

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For Justice Clarence Thomas, the foundation of all our law lies in the self-evident truths of the Declaration of Independence, beginning with human equality.
Public Discourse

Conservatives and the Constitution

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Conservatives must resist the temptation toward “big-government conservatism.” Easy acceptance of extra-constitutional federal powers betrays the philosophical roots of the conservative movement.