Is Antonin Scalia’s originalism—indeed, constitutional self-government itself—passé? The eternal temptation to read one’s own values into the Constitution beguiles even religious conservatives espousing natural law. The U.S. Constitution is the “supreme law of the land,” whose ultimate interpretation is entrusted, by longstanding custom if not by explicit textual direction, to the U.S. Supreme Court. Accordingly,...
Two of the most vilified judges in US history have probably been Judge Robert H. Bork and Chief Justice Roger Taney. Both gained notoriety early in their appointments by demonstrating their willingness to fire opponents of a domineering President’s policy (Taney, when in the Jackson administration, fired directors of the Bank of the United States...
A Dubious Expediency: How Race Preferences Damage Higher Education ed. by Gail Heriot and Maimon Schwarzchild Encounter Books 336 pp., $28.99 Scholars increasingly treat the issue of race with kid gloves. As the cancel culture accelerates, race—always a sensitive topic—has become nearly taboo. Any serious exploration of the correlation of intelligence and race is...
On June 26, 1997, the Supreme Court dodged the constitutional questions surrounding the Line Item Veto Act. In Raines v. Byrd, the Court claimed it had no jurisdiction and dismissed the complaint. Federal courts only have jurisdiction over a dispute if it is a “case” or “controversy.” An element of the case or controversy requirement...
Leftist “opposition researchers” are relentlessly concocting ethics complaints about the Supreme Court’s conservative justices to try to get them to resign or recuse themselves.
Gerald N. Rosenberg, an assistant professor of political science and an instructor in law at the University of Chicago, has some simple advice for activists who think a United States Supreme Court ruling is an end-all: not only are you wrong, but your money is better spent out of court than in court. In The...
President Donald Trump and Senate Majority Leader Mitch McConnell are on the cusp of making history. With Trump having named two justices to the U.S. Supreme Court, Neil Gorsuch and Brett Kavanaugh, they have an opening to elevate a third justice to fill the seat of Ruth Bader Ginsburg, thereby securing the constitutionalism of the...
“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...
The Supreme Court attracts the most attention when it does something new, or does something so old that it seems new. For example, the Court’s decision last May declaring that Congress had no authority to enact the Violence Against Women Act under the guise of regulating interstate commerce received plenty of media attention. And since...
Neat! We know what the Supreme Court debate is all about—the debate, that is to say, over who shall take retiring Justice Anthony Kennedy’s seat. The debate is about abortion. Or so declares Sen. Susan Collins, the Republican moderate from Maine, whose vote could prove essential to confirmation of whatever nominee the White House puts...
American Secession: The Looming Threat of a National Breakup; by F. H. Buckley; Encounter Books; 184 pp., $23.99 When asked whether a state can constitutionally secede from the United States, Supreme Court Justice Antonin Scalia brushed the question aside, saying the matter was settled by the Civil War. He was wrong. A Zogby poll in 2018 found that...
Republicans, including President George W. Bush, may have some explaining to do if the U.S. Supreme Court strikes down the Defense of Marriage Act. Suppose a lot of people were counting on you to accomplish something and there were two ways—one hard and one easy—to do it. Which would you choose? If you picked the...
In every presidential election since 1992, complaints about subpar Republican candidates (George H.W. Bush, Bob Dole, George W. Bush, John McCain, Mitt Romney: The names speak for themselves) have been met with a common refrain: This is the most important election in our lifetime, because of the Supreme Court! Hold your nose and vote for...
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...
Partial-birth abortion is back in the news, and for the first time, there appears to be some hope for the pro-life side. Of all the extraordinary things that the United States Supreme Court has done in the past few decades, none matches its 1973 decision in Roe v. Wade. Justice Blackmun’s majority opinion articulated a...
How Democracies Perish was the subject, as well as the title, of an important book by Jean-Francois Revel. M. Revel is a hardheaded journalist who takes little interest in political theory, but he is a keen observer of the corruption into which the states of the West have fallen. When I had drinks with him...
Pat Buchanan’s new book is another tour de force. Suicide of a Superpower builds on the prophetic warnings first articulated in such earlier books as The Great Betrayal; A Republic, Not an Empire; and, most importantly, Death of the West. The current work exhibits the most famous paleoconservative’s trademark word-crafting verve, encyclopedic knowledge of history...
What if the states started to fight back against federal refusal to protect American borders? What if they started challenging, even nullifying, federal actions that promote illegal aliens coming and staying here? Despite the centralization of America since at least 1865, the 50 states retain a surprising amount of autonomy. And oddly enough, the flood...
In June 2017, the European Union fined Google a record-breaking €2.42 billion for abusing the dominance of its popular search engine while building its online shopping service. Brussels found that Google illegally and artificially endorsed its own price-comparison service in searches. (In plain English, Google’s search results were biased in favor of its own services.) ...
When the Fourth Circuit Court of Appeals affirmed the trial court’s preliminary injunction against President Trump’s executive order restricting immigration from certain countries, it cited Trump’s statements about Islam as its rationale. American Muslims challenging the ban had alleged injury of two types: First, the Muslim plaintiffs felt marginalized by the President’s characterizations; second, they...
Alberto Gonzales, President Bush’s nominee to replace John Ashcroft as attorney general, is, by all accounts, a skilled lawyer who has achieved a great deal since his humble beginnings as the son of Mexican migrant farmworkers. He also has compiled a track record that should trouble all those who wish to limit abortion, immigration, affirmative...
The implosion of the right-wing official opposition Alliance Party under its young evangelical leader Stockwell Day dominates the headlines of most of Canada’s papers and feisty tabloids: Will the “gang of eight” dissident Alliance MPs be hung out to dry? Will Stock get drummed out over some Zionist-sounding remarks that set the tender Canadian sensibilities...
Progressives are worried that if Roe v. Wade is overturned, all their other agenda-driven, court-created rights will fall as well.
The presidency must be destroyed. It is the primary evil we face, and the cause of nearly all our woes. It squanders the national wealth and starts unjust wars against foreign peoples that have never done us am harm. It wrecks our families, tramples on our rights, invades our communities, and spies on our bank...
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....
Brett Kavanaugh’s nomination by President Trump for the blessed vacancy left by retiring justice Anthony Kennedy, author of the civilization-defying Obergefell opinion, supplied the heat necessary to cause the vaunted American melting pot to boil over and reveal its rancid contents. Those contents included the innocent limbs and brains of David Daleiden videos, eagerly devoured...
In 1986, Justice William Brennan delivered an address in which he called for “state courts to step into the breach” left by what he discerned as a federal contraction of rights and remedies. In other words, those who wish to remake American society along radically egalitarian lines could no longer count on a sympathetic federal...
Is there such a thing as the proper size of a political order? Westerners have inherited three visions of political size and scale: the Aristotelian polis; the Christian commonwealth; and the Hobbesian modern state. For Aristotle, the point of political order is the cultivation of human excellence. Since virtue cannot be learned except through apprenticeship...
Civil rights activists called Rev. Jerry Falwell “hysterical” for claiming that the recently passed Civil Rights Restoration Act could require churches to hire a “practicing, active homosexual drug addict with AIDS to be a teacher or youth pastor.” His claim was dismissed as a ploy by a televangelist to squeeze more money out of a...
In February, President Obama directed the Department of Justice to stop defending Section 3 of the Defense of Marriage Act (DOMA). Immediately, many conservatives decried the announcement. Curt Levy of the Committee for Justice described Obama’s decision as “outrageous” and a “power grab that . . . would allow him to undermine any duly enacted...
In modern America, the absurd is forced on everyone with the full coercive powers of an omnipotent state—all in the name of “rights.” Same-sex “marriage” first was “legalized” in 2003 when the Massachusetts Supreme Judicial Court drove matrimony off Chappaquiddick’s Dike Bridge and let it drown. In October 2008, Connecticut’s Supreme Court did the same....
Like Richard A. Epstein’s earlier book Takings, dealing with the defense of property in the Fifth Amendment, his latest one combines legal study and economic analysis with megadoses of political and social theory. Though Epstein explores, for the most part, civil rights legislation aimed at the removal of job discrimination, he devotes the opening section...
A few weeks ago, I was listening to Radio Moscow’s Joe Adamov answering mail-in questions from his North American audience. One query came from somebody in Nova Scotia: How important was Stalin to the Soviet victory in World War II? Adamov’s answer went like this: Stalin’s contribution to the war effort had been nil. Before...
The Supreme Court’s ruling in Lawrence v. Texas has created panic and confusion among conservatives. They want to support the three conservative justices who dissented from the Supreme Court’s ruling that struck down Texas’ sodomy statute, but they don’t quite know why. Justice Scalia, they say, must be wrong in thinking that a rational distinction...
When Republicans ask questions about the integrity of our elections it's insurrection. When Democrats do it, it's just politics.
Tom Piatak’s contrarian view of the Citizens United Supreme Court decision (“Obama Versus the Supreme Court,” Vital Signs, May) is convincing and well stated. It is useful, however, to realize why conservative headline readers, those who probably did not peruse the actual decision or Justice Stevens’ dissent, are likely to think it a good ruling. ...
In the opinion of Marshall DeRosa, one of the contributors to this book, The transition from states’ rights to unitary nationalism, i.e., domestic imperialism, was the most significant development in American politics. This marks one of the worst fears of the framers coming to fruition, tyranny. That is a self-evidently correct judgment. It is also...
American law school faculty is often given to unwise and thoughtless hero worship, to which even Felix Frankfurter occasionally succumbed.
While we await the FBI’s seventh investigation into Judge Brett Kavanaugh’s background, some considerations: All four of Christine Blasey Ford’s witnesses to a party where he allegedly attacked her deny the party ever happened. The first narrative having run its course, the Democratic War Room spun out another dubious claim of sexual assault. The second...
Municipalities can ban homeless encampments from sidewalks, parks and other public areas. Sleeping in the rough is not a constitutionally guaranteed right.
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...
Trump’s critics are angry because multiple politicized attempts to prevent Trump from holding office again have failed and seem likely to continue to fail.
In a case that ought to become a conservative rallying cry in the 1992 election campaign, the five commissioners in tiny Lincoln County, Georgia, went to jail last fall for what they saw as protecting the taxpayers’ money. In dignified single file, broken only by an occasional hug from a supporter and the “Bless You,...
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...
When you think about it, Sonia Sotomayor is the perfect pick for the Supreme Court—in Barack Obama’s America. Like Obama, himself a beneficiary of affirmative action, she thinks “Latina women,” because of their life experience, make better judicial decisions than white men, that discrimination against white men to advance people of color is what America...
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...
“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;...
After serving for more than three decades on the U.S. Supreme Court, Chief Justice William Rehnquist died on Saturday, September 3, at the age of 80, having lost his battle with thyroid cancer. With Justice Sandra Day O’Connor’s recent announcement of her retirement, there are now two vacant seats on the Court. Just over a...
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.
If Mitch McConnell’s Senate can confirm his new nominee for the Supreme Court, President Donald Trump may have completed the capture of all three branches of the U.S. government for the Republican Party. Not bad for a rookie. And the lamentations on the left are surely justified. For liberalism’s great strategic ally and asset of...