Steven D. Smith: America the religious

    Christopher Shea interviews Steven D. Smith, co-director the UCSD Institute on Law and Religion, at the Boston Globe: “IDEAS: How did cases on funding parochial schools—a 1947 case said the direct funding of religious instruction would be improper—and then the school-prayer decisions of the ’60s mess up the American settlement? / SMITH: The Supreme Court, most importantly with the school-prayer decisions, effectively rescinded that settlement, because the school-prayer decisions effectively said that the constitutional position or orthodoxy was the secularist one. If I can make an analogy, that would be the modern counterpart to a decision in the 16th or 17th centuries that of the two contending sides, the Protestant or the Catholic, one was the preferred party of a realm.”

  • Posted: 03/31/2014
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  • Category: Religious Liberty
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Originalism: We the People of the Past, the Present, and the Future

Presidential power case before court hinges on history

Interpreting the Constitution Through Original Methods Originalism

A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case

Our Normative Argument For Originalism | John McGinnis & Michael Rappaport

    John McGinnis & Michael Rappaport at Volokh Conspiracy: We can summarize our argument in three simple propositions. First, stringent supemajority rules provide the best way to make a national constitution. Second, the United States Constitution was enacted mainly under such rules. Third, it is the original meaning that was enacted under those supermajority rules and therefore it is that meaning that should be followed today.

  • Posted: 01/07/2014
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  • Category: Bench & Bar
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Originalism and the Good Constitution

University of Chicago Law Review Symposium on the Work of Judge Robert Bork

Roe v. Wade at 40 | Gerard V. Bradley at Claremont Institute

America’s Moderate Liberalism: Rediscovering Montesquieu, Recovering Balance

2013 National Lawyers Convention: Textualism and the Role of Judges

Expanded the Range of Respectable Opinion in Constitutional Discourse

“The U.S. Needs a New Constitution—Here’s How to Write It” | The Atlantic

    Alex Seitz-Wald at The Atlantic: America, we’ve got some bad news: Our Constitution isn’t going to make it. It’s had 224 years of commendable, often glorious service, but there’s a time for everything, and the government shutdown and permanent-crisis governance signal that it’s time to think about moving on. “No society can make a perpetual constitution,” Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. “The earth belongs always to the living generation and not to the dead .… Every constitution, then, and every law, naturally expires at the end of 19 years.”

  • Posted: 11/04/2013
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  • Category: Bench & Bar
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Justice Kennedy’s Federalism Rationale for Refusing to Perform Marriage Ceremonies

Roe v. Wade Was an “Abuse of Discretion,” Exercise in Raw Judicial Power | Steven Aden at LifeNews

Alan Dershowitz: No Right To Abortion In Constitution

Governor Christie Surrenders; New Jersey Begins Same-sex Marriage | The New American

The Death of Legal Reason in New Jersey | Matthew J. Franck at NRO

McGinnis/Rappaport’s Originalism and the Good Constitution—Part 1 | Ed Whelan at NRO

    Ed Whelan at National Review: As they sum up the argument, “If we are to be faithful to law, we must follow the law’s original meaning.” . . . I find much more appealing the normative argument for originalism that law professor Lawrence B. Solum makes in his long law-review article “Semantic Originalism” (pp. 149-160). That argument, at its essence, is that in a “reasonably just society” like ours, it’s wrong to lie about the meaning of the Constitution.

  • Posted: 10/16/2013
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  • Category: Bench & Bar
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Same-Sex Marriage Makes Liberal Judges Irrational | Matthew J. Frank at Public Discourse

How Activist Is the Supreme Court?

Getting the ‘Story’ Right on the First Amendment

Kennedy: Too Many Disputes Left For Court, Should Not Be in Functioning Democracy

Sen. Mike Lee: Supreme Court ObamaCare Ruling a “Lawless Act”

Windsor and the Problem with Rights of Recognition

Real Judicial Restraint

2013 Supreme Court Roundup | Michael McConnell at First Things

    Michael McConnell at First Things: The United States Supreme Court has two personalities. In the vast majority of cases on its docket, those involving criminal law, business regulation, statutory interpretation, freedom of speech, procedure, jurisdiction, and other technical but important legal questions, the Supreme Court acts like a court of law—a good one. The justices achieve a remarkable degree of consensus and craft opinions that are clear, persuasive, and well grounded in text, history, and precedent. This is true even in hard cases, where there are good arguments on both sides. No one will agree with every decision, but no fair-minded observer could doubt that decisions are based on conscientious legal reasoning.

  • Posted: 09/24/2013
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  • Category: Bench & Bar
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Yemeni Court Imposes Sharia Punishment of Amputation; Rights Group Objects

Justice Antonin Scalia says constitution not meant to answer moral questions

Scalia Chides ‘Activist’ Colleagues on Eve of Constitution Day

Reagan’s Court v. the Libertarians’

    The American Prospect: But it is Ronald Reagan’s ghost that haunts the chief justice’s chambers, much as Franklin Roosevelt’s haunted the chambers of Justices Hugo Black and Felix Frankfurter for decades after his death. Roosevelt and Reagan are the only two 20th-century presidents who consciously pursued a judicial revolution at the Court. Roosevelt’s legal philosophy was based on government as the agent of freedom, equality, and opportunity; Reagan famously declared that “government is the problem,” but he tempered his motto with a willingness to govern, to compromise with political adversaries, and to tax and spend when necessary.

  • Posted: 09/16/2013
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Anti-Muslim Pastor Arrested On Way To Planned 9-11 Qur’an Burning

Senator Lee Criticizes Chief Justice in New E-Book

America’s Declining Commitment to Self-Government | Carson Holloway at Public Discourse

The Last Stand: The Fight of State AGs to Preserve Federalism | Heritage Foundation

Originalism and the Constitutionality of Military Intervention in Syria

Rarely Seen Copy Of Magna Carta Coming To Houston

“Civil Rights Includes Gays 50 Years After March” | AP on CNS

Scalia: Court Shouldn’t ‘invent New Minorities’

The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

Federal judge throws out Oklahoma’s ban on Sharia law

Alito Shrugged: Libertarianism has won over the Supreme Court conservatives

“How Gay Marriage Became Legitimate: A revisionist history of a social revolution” | Richard A. Posner at The New Republic

America’s Rule of Law Sickness | Richard Reinsch at Library of Law and Liberty

When the White House loses cases 9-0, the president is going too far.

In Snowmass, Justice Antonin Scalia says judges should not be policymakers

Calling and Witness, Holiness and Truth | Ryan T. Anderston at First Things

Sharing Truth in Love | Kathryn Jean Lopez at Patheos

A Visual Guide to United States v. Windsor: Doctrinal Origins of Justice Kennedy’s Majority Opinion

“Is Gay Marriage The Product Of Judicial Activism?” | David Davenport at Forbes

Thinking Outside the Box of Judicial Supremacy

DOMA ruling: Echoes of Roe vs. Wade | Maggie Gallagher at Mercury News

Same-sex marriage decisions beg question, should America’s new motto be ‘in polls we trust’? | Cal Thomas at Fox News

Judicial Activism, Defined

Is Congress’s Power Under the “Necessary and Proper” Clause a General Police Power? | Ed Whelan at NRO

DOMA Supreme Court: What Is “Judicial Engagement,” and Why Could It Save Same-Sex Marriage? | PolicyMic

DOMA and the “Living Constitution” | Bradley Abramson at Townhall

Scalia challenges notion of Constitution as “Living”

Marriage, Procreation and Historical Amnesia | Ross Douthat at NY Times

Can The Supreme Court Alter Reality? | Chris Adamo

Originalism and Same-Sex Marriage | Grant R. Darwin at U. of Pa. J. of Law and Social Change

Politico Misses Kagan ’09 Statement on DOMA Story: ‘There Is No Federal Constitutional Right To Same-Sex Marriage’

Married by the Judge | Mark Steyn at NRO

Over the cliff? Science alone should not guide the Justices | Gerard Bradley at SCOTUS Blog

“Partial-Birth Abortion” litigation: An example of the problem of an uncertain role definition for federal trial judges

    Hercules and the Umpire: Turning to the meat of this post, I was the trial judge in both of the Carhart cases that ended up in the Supreme Court. Compare Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998) (Nebraska’s partial-birth abortion statute was unconstitutional), aff’d, 192 F.3d 1142 (8th Cir. 1999), aff’d, Stenberg v. Carhart, 530 U.S. 914 (2000) with Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004) (the federal partial-birth abortion statute was unconstitutional), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005), rev’d, Gonzales v. Carhart, 550 U.S. 124 (2007). Even though there was very little difference in the cases from my perspective, the Court affirmed the first decision but reversed the second. To say that I was perplexed is an understatement. It is that perplexity that prompts this post.

  • Posted: 03/21/2013
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  • Category: Featured
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Sunday Sit-Down: West Virginia Supreme Court Chief Justice Brent Benjamin

A History Lesson From Clarence Thomas: Correcting a liberal smear about the conservative Supreme Court justice.

Diverse High Court Families Mirror Country

Arguments from the Future– A New Modality of Constitutional Argument | Jack Balkin at Balkinization

Marbury v. Madison | Steve Aden at Constituting America