Following Monday’s ruling on the Colorado ballot case, the Supreme Court is likely to only hear cases that can be resolved with the support of the liberal justices, while avoiding those that expose the Court’s the political divisions.
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Master of Your Domain
With the U.S. Supreme Court’s June decision in Kelo v. New London, the truth of this column’s conceit—that Rockford, Illinois, is a microcosm of America—has never been more clear. One of the running themes of this column since shortly after it began in 2001 as a “Letter From Rockford” has been the abuse of the...
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Judicial Taxation: The States Respond
The Madison Forum was founded in 1993 by Missouri State Senator Walt Mueller and me for three reasons. First, we wanted to respond to the Supreme Court’s claim in Missouri v. Jenkins (1990) that the federal judiciary’ has the authority to levy or increase taxes. We believe this constitutionally baseless assertion by the Court poses...
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Alito 5 Must Stay the Course
In February, five Supreme Court Justices voted in camera to overturn Roe v. Wade and send the issue of abortion back to the states, where it resided until 1973. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett had all signed on to the majority opinion overturning Roe that had been drafted by...
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Quebec Secession
Quebec Secession was the subject of an historic judgment handed down by the supreme court of Canada on August 20, 1998. This question reached the court by a “reference” or “renvoi” initiated by the governor general, in effect a request by the Prime Minister and his cabinet for an advisory opinion. The judgment is not...
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SCOTUS: What to Watch in 2016
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...
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Dare to Be a Daniela
In early July, the United States Supreme Court, acting on a plea brought by two unidentified families, one Mormon and one Roman Catholic, ruled the practice of prayer at high-school football games unconstitutional (Santa Fe School District v. Jane Doe). Although the prayer was delivered by a girl designated by her fellow students, Justice John...
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After SCOTUS: Welcoming Apocalypse
Here are my initial thoughts on today’s SCOTUS opinion in Obergefell v. Hodges and three other cases, which effectively makes “same-sex marriage” the law of the land. Nothing substantial has changed. The Supreme Court did not suddenly create more homosexuals or instill a new desire in the hearts of sodomites to flout nature. That was...
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Roberts Is No Warren
In light of the Obamacare ruling today from the Supreme Court, in his post below Mr. Richert not only compares Chief Justice Roberts to Chief Justice Warren but compares Warren favorably to Roberts! I have no doubt Warren would have joined in Justice Ginsburg’s concurring/dissenting opinion and held that Obamacare passes Constitutional muster under any of...
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Will the Conservative Momentum at the Supreme Court Continue This Term?
Impending Supreme Court cases give good reason for conservatives and constitutionalists to be cautiously optimistic. Significant conservative victories could be coming soon.
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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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Just One More Justice . . .
At the polls last November, conservatives and libertarians who vote according to conscience had two options: Bob Barr (Libertarian Party) and Chuck Baldwin (Constitution Party). Combined, these two garnered only 719,655 votes—a paltry amount compared with John McCain’s 59,082,002. For those who believe in smaller government, fiscal responsibility, and individual liberty, the 2008 election was...
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A 28th Amendment
How different this country would be if we had a 28th Amendment which read: “An amendment approved by the legislatures of three-fourths of the States shall be valid to all intents and purposes as part of this Constitution.” Three-fourths of the states, if they desired, would then be able to change the Constitution without the...
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A Watershed for the Left
During the week of December 6, the Ninth Circuit Court of Appeals will hear arguments in Perry v. Schwarzenegger. In the original decision, U.S. District Judge Vaughn R. Walker held that California’s Proposition 8, which amended the state constitution to define marriage as a union between a man and a woman, violated the Due Process...
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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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On Checking the Court
Stephen B. Presser correctly complains about the unconstitutional decisions of the central government’s Supreme Court in his article “Supreme Court Chaos” (American Proscenium, October). However, he fails to place the blame where it belongs, which is on the current Republican Congress. The Constitution, in Article III, Section 2, clearly gives Congress the authority to limit...
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The Antietam of the Culture War
It took Joe Biden’s public embrace of same-sex marriage to smoke him out. But after Joe told David Gregory of Meet the Press he was “absolutely comfortable” with homosexuals marrying, Barack Obama could not maintain his credibility with the cultural elite if he stuck with the biblical view that God ordained marriage as solely between a...
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Trump Must Break Judicial Power
“Disheartening and demoralizing,” wailed Judge Neil Gorsuch of President Trump’s comments about the judges seeking to overturn his 90-day ban on travel to the U.S. from the Greater Middle East war zones. What a wimp. Did our future justice break down crying like Sen. Chuck Schumer? Sorry, this is not Antonin Scalia. And just what...
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DOMA
President Bush, in his State of the Union Address, repeated a campaign promise: “Because marriage is a sacred institution and the foundation of society, it should not be re-defined by activist judges. For the good of families, children, and society, I support a Constitutional Amendment to protect the institution of marriage.” The President must know,...
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The Soldier’s Soldier
At 9:40 p.m. on Friday, October 23, 1942, the night sky on the Egyptian coast west of Alexandria was suddenly lit by three red flares, followed, a moment later, by the unearthly screech of 882 phosphorus-shell launchers and other heavy-artillery pieces coming to life. The guns lined up virtually wheel to wheel, one every seven...
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Economic Science and Catholic Social Teaching
Even among otherwise orthodox Catholics in the United States there is generally little knowledge of or interest in Catholic social doctrine, that body of Catholic teachings which concerns man in society, especially with reference to the political and economic orders. Since Leo XIII began vigorously to develop and apply this teaching to the changing conditions...
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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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Mr. Bush and the Mexican Murderer
When he was governor of Texas, President George W. Bush presided over the execution of 152 murderers. Yet today, as if to turn the phrase “Don’t mess with Texas” on its head, El Presidente wants to stop the Lone Star State from giving the hot shot to a Mexican murderer and rapist. As disturbing as...
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Impeachable Offenses
Back in March, Republican Majority Whip Tom DcLay took lunch at the Washington Times and started jabbering about how he and his party were going to impeach “activist judges” who handed down improper rulings. I know something about how those luncheons at the Times work, so I was not as impressed as some people. First,...
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Do We Want a Federal Police Force?
Probably the last thing that would have occurred to New York Gov. Eliot Spitzer on his way to meet “Kristen” in Room 870 of D.C.’s Mayflower Hotel was that both he and the Emperor’s Club VIP were under FBI surveillance for federal crimes—prostitution and a financial crime called “structuring.” Traditionally, the enforcement of criminal law...
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Why Autocrats Are Replacing Democrats
“If you look at Trump in America and Bolsonaro in Brazil, you see that people want politicians that do what they promise,” said Spanish businessman Juan Carlos Perez Carreno. The Spaniard was explaining to The New York Times what lay behind the rise of Vox, which the Times calls “Spain’s first far-right party since the...
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Just One More Justice
At the polls last November, conservatives and libertarians who vote according to conscience had two options: Bob Barr (Libertarian Party) and Chuck Baldwin (Constitution Party). Combined, these two garnered only 719,655 votes—a paltry amount compared with John McCain’s 59,082,002. For those who believe in smaller government, fiscal responsibility, and individual liberty, the 2008 election was...
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How Thomas Jefferson’s “Wall of Separation” Redefined Church-State Law and Policy
No metaphor in American letters has had a greater influence on law and policy than Thomas Jefferson’s “wall of separation between Church and State.” Many Americans accept it as a pithy description of the constitutionally prescribed Church-State arrangement, and it has become the locus classicus of the notion that the First Amendment separated religion and...
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The Supreme Court and the Due Process Clause
In addition to endorsing the overturning of Roe, Justice Thomas's concurring opinion on Dobbs threatens other due-process legal precedents, such as those that have guaranteed a fundamental right to homosexual behavior and gay marriage.
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The Duopolists
The two major parties, as Judge Richard Posner writes, “exert virtually complete control over American government.” They are what economists call a duopoly. Does the duopoly do a reasonable job of presenting candidates the people want? Is there any hope of electing a candidate favored by a majority of the American people? To find out...
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Jefferson’s Cousin
From the June 2002 issue of Chronicles. 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...
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Speaking the Naked Truth
Connoisseurs of the odd byways of law rarely find rich materials in the U.S. Supreme Court, where the deliberations usually proceed with dignity and common sense. For truly asinine judicial misbehavior, we normally have to look at state courts. Yet this past March, the Supreme Court had before it a case that delighted the late-night...
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GOP Nuclear Plan
Some republicans object to using the term nuclear option to describe their plan to end filibusters on the Senate floor during confirmation hearings, but the image of total war is a fitting one for the possible direction of the “upper chamber” these days. The 11th-hour compromise between the squishes in both parties will only serve...
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Antiquities of the Republic
“The United States shall guarantee to every state in this Union a republican form of government.” —Constitution of the United States, Article IV Until the triumph of the civil-rights movement at the end of the 1960’s, probably the most disruptive and recurrent conflict in American politics came from the struggle between...
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The Supreme Court, Globalization, and the Teaching of Religion
Public figures talk about globalization as if it were the Rapture. We are told that, unlike Marco Polo and Christopher Columbus, we live in an era of international trade; so these days, we must worry more about what the world thinks and does. ...
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The Court’s Own Critic
The Essential Scalia: On the Constitution, the Courts, and the Rule of Law; By Antonin Scalia; Edited by Jeffrey S. Sutton and Edward Whelan; Foreword by Justice Elena Kagan; Crown Forum; 368 pp., $35.00 Steven Calabresi, one of the founders of the Federalist Society for Law and Public Policy Studies, maintains that Antonin Scalia was the greatest justice ever...
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Charlie Brown’s Christmas Message to America
Parents and children across America breathed a sigh of relief when it was announced that “A Charlie Brown Christmas” would air on public television after all. This classic favorite seemed ready to disappear like everything else in 2020 when Apple TV obtained the rights and planned to air the program on its streaming service, instead of...
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Why Roy Moore Matters
Why would Christian conservatives in good conscience go to the polls Dec. 12 and vote for Judge Roy Moore, despite the charges of sexual misconduct with teenagers leveled against him? Answer: That Alabama Senate race could determine whether Roe v. Wade is overturned. The lives of millions of unborn may be the stakes. Republicans now...
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A Man for His Time
Charles Hamilton Houston, dean of the Howard Law School, taught his students to view law as an instrument of social engineering, and Thurgood Marshall, one of Houston’s top students in the early 1950’s, never forgot this basic lesson. As a leading advocate in the nation, Marshall served as a catalyst for social change as he...
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Remembering Learned Hand
The name Learned Hand may not leap readily off the tongue if one were asked to list the conservative luminaries of the 20th century. Few people today outside the legal profession have any idea just how profound his influence as a jurist was and continues to be more than half a century after his death. His...
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The Donald & The La Raza Judge
Before the lynching of The Donald proceeds, what exactly was it he said about that Hispanic judge? Stated succinctly, Donald Trump said U.S. District Judge Gonzalo Curiel, who is presiding over a class-action suit against Trump University, is sticking it to him. And the judge’s bias is likely rooted in the fact that he is...
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A Quota Queen for the Court
If the U.S. Senate rejects race-based justice, Sonia Sotomayor will never sit on the Supreme Court. Because that is what Sonia is all about. As the New York Times reported Saturday, the salient cause of her career has been advancing persons of color, over whites, based on race and national origin. “Judge Sotomayor, whose parents...
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Chaos and Community
I tune the radio to WLS, and the insistent voice of Tony Brown breaks me out of my trance. It’s Saturday, December 9, the day after a bitterly divided Florida Supreme Court stretched (and possibly broke) Florida law in order to allow a statewide recount of undervotes in the presidential election. My family and I...
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A Perpetual Censor
When Supreme Court Justice Byron White announced his retirement from public life in March of this year, a shudder rippled down the spines of Washington conservatives. Previously, when one or another of the Court’s Nameless Nine had declared his intention to quit the pleasures of wrecking the laws and customs of local communities he had...
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Conspiracies Against the Nation
The Reagan Administration’s Baby Doe policy is finally being tested in the Supreme Court. Supporters see the law as a necessary guarantee of the rights of handicapped infants whose lives are threatened by selfish parents and amoral physicians. The Federal government has a positive obligation, they insist, to send investigation teams—Baby Doe Squads, as they...
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Judging Judge Gorsuch
A guide to the Neil Gorsuch nomination uproar: If you want the federal government to exercise greater and greater power over daily life in America, with minimum backtalk from us, the people, you deplore the prospective elevation of Neil Gorsuch to the U.S. Supreme Court. If, by contrast, you regard the expansion or contraction...
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All the Chips Are on the Table Now
“As everyone knows, I made it clear that my first choice for the Supreme Court will make history as the first African American woman justice.” So Joe Biden promised. Since the death of Justice Ruth Bader Ginsburg, however, Biden has refused to produce a list of Black female judges and scholars whom he would consider...
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The Necrosis of Limited Government
The words “general welfare” have had the greatest significance in modern American life of any in the Constitution. Originally regarded by its 18th century Federalist creators as a restraint on federal power, the brake of general welfare has been transformed, retooled by the U.S. Supreme Court into a huge turbine, a supercharger that drives today’s...
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Leftists Bury Another Norm: Protesters Target Homes of SCOTUS Justices
Threatening protests outside the homes of conservative Supreme Court justices are the latest example of the left deciding to attack rather than persuade those who disagree.
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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...