Hope, as they say, springs eternal. Lately, those of us who believe in the rule of law and an objective interpretation of the Constitution according to the original understanding of those who framed it (and the people’s representatives who ratified it) have been dealt some cruel blows. The two most prominent are the Supreme Court’s...
Author: Stephen B. Presser (Stephen B. Presser)
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After Obergefell: What Now?
I have previously suggested in these pages that the Supreme Court’s recent decision in Obergefell v. Hodges—the five-to-four decision which declared that two Americans of the same sex have a constitutionally guaranteed right to marry each other—may be the worst in the history of the Court. First, there was no adequate legal or constitutional basis...
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The Worst Decision
Law professors like to debate among themselves which of the U.S. Supreme Court’s many opinions is the very worst. There has been a general consensus that the most loathsome is the one in Dred Scott v. Sandford (1857), in which the Court decided that the right to hold slaves in the territories was a “fundamental...
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Government-Managed Business
“The business of America is business,” said Calvin Coolidge, a few years before the Great Depression. In the worst economic downturn since then, Barack Obama won the White House after a campaign in which he made it clear, to what might be described as populist delight, that he was not a friend to corporations. In...
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Reviewing Judicial Review: A Government of Justices
In the most famous defense of the U.S. Supreme Court’s power to declare acts of the federal and state legislatures unconstitutional, Alexander Hamilton argued that it was the Court’s job only to implement the will of the people as expressed in the Constitution. If the Court went beyond that—interpreting the document to include things that...
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Strippers to the Rescue
“Courts of justice cautiously abstain from deciding more than what the immediate point submitted to their consideration requires.” —Mr. Justice Nicholl In what was probably the most laudable achievement of his administration, President George W. Bush placed on the Supreme Court two justices, Chief Justice John Roberts and Associate Justice Samuel Alito, who believe...
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How Posner Thinks
“The law is good, if a man use it lawfully.” —1 Timothy 1:8 Richard Posner is one of the greatest judges never to have sat on the Supreme Court of the United States. A distinguished professor at the University of Chicago, a judge on the U.S. Court of Appeals for the 7th Circuit for 25...
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Guantanamo Supreme
Do suspected Al Qaeda terrorists captured in Afghanistan and taken to the U.S.-operated prison at our naval base at Guantanamo Bay, Cuba, have a right guaranteed by the U.S. Constitution to contest their detention in the U.S. civilian courts? According to five members of the U.S. Supreme Court, who agreed with an opinion by Justice...
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Two American Lives
“Whatsoever thy hand findeth to do, do it with thy might.” —Ecclesiastes 9:10 The Gilded Age still exerts a strange pull on the American imagination. It was a time of larger-than-life people and larger-than-life business entities. It featured conspicuous consumption—including palatial mansions, yachts, international travel, and international scandal—that seems almost to exceed anything we have...
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A 60-Year-Old Error
Since the days of Earl Warren, the U.S. Supreme Court has engaged in a lot of freewheeling jurisprudence: the decision granting Washington the power to dictate when and how police may apprehend criminal suspects; the declaration that the racial integration of America’s public schools is a matter of federal, rather than state, law; the ukase...
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The Guantanamo Question
Who should determine whether alien enemy combatants captured in Iraq and Afghanistan are properly in the custody of the U.S. government at the U.S. Naval Station at Guantanamo Bay? The President and Congress have set up special military tribunals to make such determinations, but some federal judges and some critics of President George W. Bush...
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No Longer a Constitution?
What is the relationship between the U.S. Constitution and the current struggle against the perpetrators of jihad against the West? Should the masterminds of, and participants in, the suicide bombings of September 11 and other terrorist acts be protected by the Bill of Rights and the Geneva Conventions? In several important decisions by the U.S....
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Who Pays the “Tort Tax”?
The United States, of all Western legal systems, is probably the harshest on manufacturers, at least insofar as they can be held liable for millions or even billions of dollars in damages for unanticipated defects in their products. Until about the middle of the 20th century, liability standards in this country were not significantly different...
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Judging for the People
For just about the last half-century, since Earl Warren became chief justice of the U.S. Supreme Court, the American legal academy has pondered something usually referred to as the “legitimacy problem.” Law-school professors have believed that there is a difficulty inherent in the fact that an unelected, isolated body of nine jurists working in a...
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Does the Federal Government Protect Private Property?
Thirteen of the British colonies in North America declared their independence in 1776 as the only means of preserving the life, liberty, and property of what was then declared to be the American people. It was generally understood, in light of John Locke’s 1690 Second Treatise on Civil Government (widely recognized in the late-18th century...
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Did the Supreme Court Destroy Property Rights in the Kelo Case?
In one of the most closely watched cases from the last Supreme Court term, Kelo v. New London, the U.S. Supreme Court, by a 5-to-4 majority, ruled that the city of New London could exercise its “eminent domain” power to condemn several private residences in order to raze them as part of an effort to...
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Crying “Halt!”
A federal judge whom I know lamented that the Supreme Court term that ended last June was the worst in recent memory. That judge loves the Constitution but could find few signs that this term’s key decisions were based on that document. A Court that can rule that medical marijuana grown for home use substantially...
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A Lawyer’s Lawyer
Judge John Roberts of the U.S. Court of Appeals for the District of Columbia Circuit, whom President George W. Bush has nominated to take the place of retiring Associate Justice Sandra Day O’Connor, is what we used to call a “lawyer’s lawyer.” He comes from Harvard College, Harvard Law School, the Harvard Law Review, a...
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Guantanamo Bay
Guantanamo Bay is the subject of continuous debate. Can the United States detain indefinitely members of the Taliban captured in Afghanistan, or Al Qaeda insurgents captured in Iraq, at our military base in Cuba? What sort of interrogation measures are permissible by international law in order to obtain information to protect Americans from the continuing...
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My Favorite Justice
“Every virtue is included in the idea of justice, and every just man is good.” —Theognis John Paul Stevens is the only U.S. Supreme Court justice to have graduated from the law school where I teach; Steven Breyer was one of my law-school teachers; David Souter may be the most adept at arcane constitutional-law doctrine;...
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A Hard Case
Terri Shiavo’s tragic struggle is a hard case, and hard cases, we are taught, make bad law. Her husband, Michael, believes she is in a permanent vegetative state and that she would not have wanted to be kept alive artificially. Her parents, however, believe that she stands a chance of recovery and, further, that, as...
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Sacred Texts ’98
As readers of this delightfully passionate work will infer, the U.S. Department of Education is unconstitutional. Nevertheless, before it does the country a great service by abolishing itself, the department ought to issue a mandate requiring every secondary school in the nation to adopt the next edition of Reclaiming the American Revolution as required reading. ...
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A Living Library of the Law Revived
“It is best that laws should be so constructed as to leave as little as possible to the decision of those who judge.” —Aristotle Here Lies Edward Coke, Knight of Gold, of Imperishable Fame, Spirit, Interpreter, and Inerrant Oracle of the Law, Discloser of its Secrets—Concealer of its Mysteries, Thanks Almost Alone to Whose Good...
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Champion of American Believers
Carole Keeton Strayhorn, the Texas state comptroller, has become the new champion of American believers. Her office is charged with determining what groups qualify for exemption from state taxation (including sales taxes, property taxes, and other state levies) as religious organizations. My ancient Concise Oxford Dictionary defines “religious” as “Imbued with religion, pious, god-fearing, devout...
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Erosion of Democracy
Brown v. Board of Education (1954), the famous decision of the Warren Court which held that racial segregation in the state public schools violated the 14th Amendment’s guarantee of the “equal protection” of the laws, turns 50 on May 17, 2004. The inevitable celebrations of the decision in the nation’s law reviews and popular media...
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Marriage and the Law
The Massachusetts Supreme Judicial Court’s 4-3 ruling, in Goodridge v. Department of Public Health, that the Massachusetts constitution—if not the federal Constitution—requires the state to allow same-sex marriages has thrown nearly everyone into a good old-fashioned tizzy. The Massachusetts court somehow discovered that it was “arbitrary” and “capricious” and therefore legally impermissible to limit the...
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The Unbearable Illegitimacy of American Law
For some time now, American law and lawyers have had a legitimacy problem. Most Americans must wonder how it is that unelected federal judges have the power to declare that no state government can punish consensual homosexual relations, prohibit abortion, or permit prayer in the schools (to mention just a few of the striking things...
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Supreme Court Chaos
Nietzsche got it wrong. God is not dead, but that other mainstay of popular sovereignty and constitutional government in this country, the rule of law, is either finished or on life support. For decades the finest minds in the law schools and on the bench have argued that several hundred years of legal tradition, in...
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Delayed Decision
Homosexual couples in the Bay State are awaiting the unexpectedly delayed decision of the Massachusetts Supreme Judicial Court as to whether they have a constitutional right to be married. This question may not have occurred to the Pilgrims at Plymouth Rock, but, as this issue goes to press, it is anybody’s guess how the court...
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What Would Jefferson Do?
Are the Dixie Chicks traitors? Lead singer Natalie Maines boldly announced at a concert in London, just before the beginning of our recent armed incursion into Iraq, “Just so you know, we’re ashamed that the President of the United States is from Texas.” The firestorm that ensued involved coordinated radio boycotts of the Chicks’ music...
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The Rights of Aliens
One way of telling the story of American culture and politics in the second half of the 20th century is to present it as a revolt against the group of white Anglo-Saxon Protestant males who dominated the country from the time of William Bradford to that of Dwight David Eisenhower. This narrative helps to explain...
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The Federal Courts, a Menorah, and the Ten Commandments
A recent phenomenon in the United States is that no one knows any longer to what extent the country, our states, or our municipalities can participate in the display of such traditional religious symbols as crèches, crosses, menorahs, or even the Ten Commandments. Until the last half of the 20th century, no one seemed too concerned...
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Metaphors Have Consequences
“The adulterous connection of church and state.” —Thomas Paine Is “separation of Church and State” a bedrock principle of the U.S. Constitution? Should it be? The answers of constitutional historians Daniel L. Dreisbach and Philip Hamburger fly in the face of conventional wisdom, embodied in such cases as Santa Fe Independent School District v. Doe...
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A Bad Man’s View of the Law
Law professors rarely write books. When they write at all, they typically produce incomprehensible and heavily footnoted articles (usually unread) for obscure law reviews. It is even rarer to find a law professor who can write with flair about something of more than ephemeral interest. And it is rarest of all to find a law...
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Appointing Supreme Court Justices
Michael McConnell, to use the overworked metaphor, is the “poster boy” for the Senate Democrats’ attempts to frustrate President Bush’s promise to appoint more Supreme Court justices like Antonin Scalia and Clarence Thomas. Scalia and Thomas are the two current justices who have most closely embraced a jurisprudence faithful to the understanding of the Framers,...
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“Outside the Box, but Never Outside of the Constitution”
Is the Ashcroft Justice Department busily engaged in shredding the Constitution under the cover of September 11? We are, the President tells us, at war, and in war, we are often told, the first casualty is civil liberties. Some feared that this was the case when Attorney General John Ashcroft, in July, unveiled his TIPS...
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Taking God Out of School
The Pledge of Allegiance, as this issue goes to press, is illegal for children in the public schools of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state to recite, because it contains the words “under God.” Two out of three judges on a panel of the U.S. Court of Appeals for the...
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A Dissenting Voice
Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit is, for believers in the rule of law, a hero. Judge Boggs, in an extraordinary dissenting opinion published in May, revealed profound problems with the majority of his court’s approach to law in an affirmative-action case and pointed out that his chief...
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Jefferson’s Cousin
There are probably more judicial biographies of Supreme Court Chief Justice John Marshall than of all the rest of the Supreme Court justices combined, so why another one? R. Kent Newmyer, historian and law professor at the University of Connecticut School of Law, undertook to write a work that would not mirror the standard hagiographical...
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The Habitation of Justice
Judge Roy Moore, chief justice of the Alabama Supreme Court, is in big trouble again. Judge Moore’s first 15 minutes of fame happened when, as a lower-court judge, he refused to remove a plaque containing the Ten Commandments from the wall of his courtroom. The plaque, it was said, amounted to an impermissible establishment of...
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Interpretative Gymnastics
The Federal government’s freestyle interpretive gymnastics did not end when the man who was uncertain regarding the meaning of “is” left office. On January 13, 2000, President Clinton appointed Victoria Wilson to fill a vacancy on the U.S. Civil Rights Commission, a roving band of allegedly independent and bipartisan officials tasked with the job of...
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What Makes for Real Prosperity?
Supreme Court Justice Rufus Peckham put it best, in the Trans-Missouri Freight Association decision in 1897. Broadly interpreting the Sherman Antitrust Act as a means to reign in large economic organizations that had spun out of control, Peckham acknowledged that bigger businesses, because of economies of scale, could occasionally reduce prices to consumers. He went...
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Some Dare Call It Justice
“Justice is a contract of expediency, entered upon to prevent men harming or being harmed.“ —Epicurus, Aphorisms According to leading members of the American law professoriate, the U.S. Supreme Court’s decision, on December 12, 2000, in Bush v. Gore was “lawless and unprecedented,” “not worthy of ‘respect,'” featured “sickening hypocrisy and...
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Ideology in Judicial Selection?
President Bush, many of us believed, was preparing to appoint a set of jurists committed to the rule of law to the federal bench, but this has been thrown into doubt by Senator Jeffords leaving the Republican party. One of the immediate results of that move, which threw committee control of the Senate to the...
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“Borking”
“Borking” is back. The eponymous activity first perpetrated on Judge Robert Bork when he was nominated for a seat on the United States Supreme Court is the practice of painting a proposed judicial appointee as consciously demonic, in order to excite particular interest groups to oppose his appointment. Some might oppose Borkees because of honest...
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“We Hold These Truths”
Is the Declaration of Independence part of the federal Constitution? The short answer, of course, is “no.” For the Declaration to be part of the Constitution, it would have to have been included in the original document ratified by at least nine of the conventions held in the original 13 states between 1787 and 1789,...
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No Big News
The Bush administration finishes its first four months in office, the big legal news is that there is no big news. There have been some hopeful signs: the appointment of John Ashcroft as attorney general; the appointment of Theodore Olson as solicitor general. Both are distinguished conservatives, the former associated with the Burkean wing of...
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The Virtues of Property
Somewhere deep in their bones, Americans recognize that property is the paramount civil right—perhaps the paramount human right. Anyone who seriously studies American history, particularly that of the late 18th century, will discover that property, along with virtue, provided the foundation for American government. Indeed, the preservation of properly is arguably the chief reason we...
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A Presidential Pardon
The Presidential Pardon of Marc Rich, the Belgian-born, naturalized American billionaire financier and fugitive who has renounced his U.S. citizenship and fled to Switzerland to avoid multi-million-dollar tax liability, evoked incredulous responses from many. Said New York’s Mayor Rudy Guiliani, “When I first heard about it, my— my reaction was, quite honestly, no. No. It’s...
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Don’t Fix It Restoring
The Electoral College, as we used to learn and as readers of this journal will still be aware, was supposed to be a device for removing the choice of the president from the people. Rather than direct elections, which could lead to the nation’s chief executive being the best demagogue, we were supposed to have...