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Search Results for: originalism – Page 4

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.
Public Discourse

Thanksgiving and the Constitution

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Strict separation of church and state would require us to throw out Thanksgiving as a religious holiday proclaimed by the president. Instead, we should embrace Thanksgiving and throw out strict separationism as a misguided interpretation of the Constitution.
Public Discourse

Stripping the Constitution

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Adam Freedman’s stark proposal in The Naked Constitution that we strip our founding document of its modern and academic glosses shows us that we need to take structural reforms to our Constitution seriously.
Public Discourse

Abortion and the Courts: Judicial Nominations Are Imperfect but Matter

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Criticism that Republican justices have only hurt the pro-life cause is misguided, because Republican presidents from Reagan onward have deliberately tried to advance judicial conservatism through federal court appointees—a commitment that has brought victories both for judicial conservatism and the pro-life cause. The second of a two part series.
Public Discourse

Abortion and the Courts: A Brief Political History of Judicial Conservatism

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Legalized, unrestricted abortion can’t be blamed on conservative judicial policy just because Republican justices voted for it. Judicial conservatism as we now understand it came after Roe. The first of a two-part series.
Public Discourse

Chief Justice Roberts and the Changing Conservative Legal Movement

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The clash between Chief Justice Roberts’ opinion and that of the joint dissenters is best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement.
Public Discourse

Interpreting the Establishment Clause (without an Agenda)

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Judges and legal scholars rarely agree on what was the original meaning, understanding, or intent behind the Establishment Clause. Donald Drakeman’s book Church, State, and Original Intent critiques current views and offers a new approach.
Public Discourse

Defend Our Laws: Justice Matters

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In developing their positions on Supreme Court appointments and the Department of Justice, presidential candidates should 1) welcome the battle over the Supreme Court, 2) determine to fight hard for high-quality justices, 3) frame the argument for why abortion policy should be restored to the democratic processes, 4) support the Defense of Marriage Act, and 5) commit to select senior legal leaders who fully embrace their goals and priorities.
Public Discourse

Scorpions: A Review of FDR’s Supreme Court Justices

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A new book by Noah Feldman explains how Roosevelt’s jurists came to power, and how their constitutional philosophies and disagreements shaped the court.
Public Discourse

Elena Kagan’s Living Constitution

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Kagan’s advocacy for a living constitution should kill her Supreme Court chances.
Public Discourse

The Problem with the Supreme Court Conservatives

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The Supreme Court’s bad ruling in the DC handgun case may soon undergo a drastic and very damaging expansion.
Public Discourse

Same-Sex Marriage and the Civil-Rights Movement: A Problematic Analogy

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Those who see the movement for same-sex marriage as today’s civil-rights struggle are abusing historical reason and our national institutions.
Public Discourse

Constitutional Disorder in the Era of Judicial Supremacy: What Can be Done Now

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If we want to lower the stakes of winner-take-all Supreme Court battles, we must search for justices who reject the notions of judicial activism and judicial supremacy. The second in a two-part series.
Public Discourse

Constitutional Disorder in the Era of Judicial Supremacy: The Founders’ Understanding of the Court

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Judicial supremacy is inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law. The upcoming confirmation hearings for Sonia Sotomayor should force citizens to reconsider the place of the Court in our political life. The first in a two-part series.