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Search Results for: judicial supremacy – Page 2

Why the U.S. Commission on Unalienable Rights Should Not Ignore Abortion

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Despite many excellent elements, the Commission’s first report falls short where it matters most. The right to life is the most fundamental right, the one on which all authentic human rights depend. The commission may revise the initial draft of the report following a public comment period. If the foremost experts on human rights in the United States could not agree that international human rights law affords children in the womb any protections at all, how can Secretary of State Mike Pompeo and his team be expected to contradict them in American diplomacy?
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.

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.
parents

The New States’ Rights: Is Parenthood Defined by Biology or Government?

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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.

A Fascist in the White House? Federalism as an Antidote to Authoritarianism

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Any scholar or commentator who truly worries about the prospect of fascism or nationalist tyranny should favor the restoration of a more robust American federalism, with more powers exercised by the states and fewer powers assigned to the national government.

The Constitution Already Prohibits Abortion: An Originalist Case for Prenatal Personhood

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Justice Antonin Scalia, an originalist, famously held that the Constitution neither permits nor prohibits abortion. On the contrary, unborn babies are “persons” within the original public meaning of the Fourteenth Amendment, and they are consequently owed due process and equal protection on constitutional grounds.

The Constitutional Position and Powers of the Presidency: Executing Laws and Interpreting the Constitution

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The framers deliberately gave the president independence, unity, and vast powers. This is only a problem if the office is badly filled.

Stare Decisis for Me, but Not for Thee

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Whenever a Republican president nominates a judge to the Supreme Court, progressives muse loudly about the importance of stare decisis, the principle governing the law of precedents. All they are worried about is the overturning of Roe v. Wade. In fact, stare decisis does not demand blind adherence to poorly reasoned rulings in the mold of Roe.

SCOTUS and Abortion: Three Failures and Opportunities for the Pro-Life Movement

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There comes a time where gross disregard for human life and for our constitutional order should stir us from docile obedience and impel us to resistance.

Stephen Douglas and Donald Trump’s America: Lessons from Lincoln

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Seeing in our contemporary politics the revival of Douglas Democracy in all its anxieties about freedom—and seeing it make such headway in Lincoln’s political party—is disheartening in the extreme. The imperative of learning from Lincoln, as Allen Guelzo’s work brings him to us, has never been stronger.
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

Thanks for Everything, Justice Kennedy

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As a legal opinion, Obergefell is an utter failure, relying as it does on a tenuous and historically ungrounded jurisprudence of “dignity.” The debate over same-sex marriage is not over. A constitutional ruling so shoddily reasoned, so completely and easily dismantled by the dissents, must paper over a cause that cannot ultimately win in an open debate.
Public Discourse

Citizens, Unite! Part Two of Your Constitutional Primer

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“Constitutional law” is not the exclusive domain of the courts, or even of government officials. Faithful interpretation is the duty and responsibility of faithful citizens.
Public Discourse

Federal Court Precedent: A Defense of Judge Roy Moore and the Alabama Supreme Court

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The US Supreme Court has set a precedent upholding the right of states to define marriage as the union of husband and wife. All federal and state judges—including those in Alabama—are bound by that precedent.
Public Discourse

The Death of The Rule of Law in Alabama

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The constitutional crisis now unfolding in Alabama is a direct and foreseeable result of Judge Callie S. Granade’s orders.
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

Casey: Enduring, Entrenched, Intentionally Evil Egregious Error

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Casey is not a sound exposition of the Constitution, and its authority should be repudiated by all other actors in our constitutional system The second in a two-part series on the deadly significance of Planned Parenthood v. Casey
Public Discourse

Planned Parenthood v. Casey at Twenty: The Worst Constitutional Decision of All Time

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In its effects, methodology, substantive doctrine, conception of the judicial role and of judicial authority, and conception of what constitutes the rule of law, Casey is terribly significant and terribly wrong. The first in a two-part series on the deadly significance of Planned Parenthood v. Casey.
Public Discourse

Reflections of a Questioner: The Palmetto Freedom Forum Revisited

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The Judiciary doesn’t have the final word on the meaning of the Constitution, and Congress could step in to protect the 14th Amendment rights of the unborn.
Public Discourse

Obama, DOMA, and Constitutional Responsibility

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President Obama’s decision to refuse to defend DOMA is not an act of executive assertion so much as an expression of deep deference to the courts.
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

Is Originalism Dead?

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In his latest book, law professor David A. Strauss attacks the idea of originalism and champions the “living Constitution.” Matt Franck explains why he’s wrong.
Public Discourse

Politics and Principle

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The recent actions of New Jersey governor Chris Christie have stirred up a political storm, but they are a reminder of the principles that underlie our politics.
American constitutionalism

The Forgotten Foundations of Constitutional Law 

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Long before the separation of powers and judicial review were given written form, Greek philosophy, Roman law, Christian theology, and the medieval doctrine of paired jurisdictions laid the deeper architecture of constitutional government.