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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Every Neighbor a Litigant
Goethe taught us that true happiness comes from being engaged with others in productive projects, and we have known since Plato and Aristotle that man is a social animal, but we would be hard put to reach these conclusions if our only guide were the current state of American law. Far too often the American...
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Politicians in Robes Destroy the Court
Supreme Court Justice Stephen Breyer’s recent rejection of packing the Supreme Court is another welcome addition to the debate, muted in recent months, of whether additional seats should be added to America’s highest court in order to dilute the power of its conservative majority. It also appears to have jogged President Biden’s memory of the...
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Marbury v. Madison
The impact of judicial review has been profound and often detrimental to the rule of law in America. Judicial review is the power of the courts to void federal, state, and local laws and ordinances that they have determined to be incompatible with the U.S. Constitution. Certainly, national and state legislatures have passed laws that...
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Raiching the Constitution Over the Coals
The Supreme Court is often described as the final redoubt of states’ rights. In the last decade, we have heard much about the Court’s “New Federalism” jurisprudence. The Court, we have been warned, is seeking to return the Constitution to the horse-and-buggy days of yesteryear. Legal oracles such as the New York Times’ Linda Greenhouse...
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Donald Trump, the Court, and the Law
Is Donald Trump a Burkean? Would Russell Kirk vote for him for president? Can a paleoconservative legal scholar imagine any benefit to a Trump presidency? Of course, the neoconservatives are piling on Trump. Most notable was National Review’s January 21 issue, “Against Trump.” “Trump,” say the editors, “is a philosophically unmoored political opportunist who would...
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Our Judicial Dictatorship
Do the states have the right to outlaw same-sex marriage? Not long ago the question would have been seen as absurd. For every state regarded homosexual acts as crimes. Moreover, the laws prohibiting same-sex marriage had all been enacted democratically, by statewide referenda, like Proposition 8 in California, or by Congress or elected state legislatures....
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Supreme Court Usurpation, UK-Style
The Founding Fathers of the United States, in their Ur-wisdom, laid it down that the Supreme Court should consist of 6 Justices. Britain, in its belated imitation of the United States, created in 2009 a Supreme Court of 11. That meant in the first place jobs for the boys, and girls. There are 3 female justices,...
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Think Locally, Act Locally
The reaction to the U.S. Supreme Court’s decision last June in Kelo v. City of New London has largely been edifying. Most commentators, and even many politicians, have greeted with horror the news that local and state governments are free to take property from one private owner to give it to another, as long as...
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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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Constitutional Disorder
The Supreme Court, as Stephen Presser laments, has wandered far off course; increasingly its Justices have taken to reading their own preferences and prejudices into the Constitution, thereby abandoning their solemn obligation to act as its guardians by interpreting its provisions in accordance with the basic values and intentions of the Framers. What is more,...
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Put Not Your Faith in Judges
Are there Bush judges and Obama judges? “No!” said the Chief Justice of the United States Supreme Court, John Roberts. Judges, he explained during his Senate confirmation hearings, are simply umpires, objectively attempting to follow the rules and call balls and strikes. The chief, let us say, was not being candid. Since 1881, when Oliver Wendell...
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Considering Judge Barrett
In one of the most important acts of his Presidency, on Sept. 26, 2020, Donald J. Trump announced his pick to fill the United States Supreme Court vacancy created by the death of Ruth Bader Ginsburg: Amy Coney Barrett. The Supreme Court has recently been divided 4-4 in terms of judicial philosophy, with Justices Ginsburg, Stephen...
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How a Court Can Derail a Culture
Daniel Patrick Moynihan and others have written volumes about how the Great Society destroyed the American family. But the pivotal role played by Republican appointees on the U.S. Supreme Court, in nullifying laws intended to encourage the formation of two-parent families, has gone largely unremarked. The lightning rod for change was a Connecticut statute which...
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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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The Court’s Current “Conservative” Bloc
The U.S. Supreme Court ended its October 1998 term on June 23, the earliest closing date in 30 years. Anthony Lewis, writing in the New York Times, declared that the term “showed us a phenomenon that this country has not seen for more than 60 years: a band of radical judicial activists determined to impose...
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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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Israel’s Judicial Reform ‘Controversy’ Is Much Ado About Nothing
If the proposed Israeli judicial reforms are passed, the State of Israel would be more democratic than it presently is, not less.
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Birthright Citizenship
The Romans took citizenship very seriously. Only citizens had the right to vote, marry, make legal contracts, and have a trial and appeal the decision of the lower court. Americans, on the other hand, are in the process of getting rid of the concept of citizenship altogether. We are not controlling the border or making...
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Government by Judiciary
The two most prominent newspaper journalists covering the U.S. Supreme Court have written biographies of two of the most prominent justices of our time. Predictably, Linda Greenhouse of the New York Times, who has written Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, and Joan Biskupic of USA Today, who recently published Sandra Day O’Connor:...
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Stand Your Ground
Bodie, July 1881—The early morning hours found deputy constables Richard O’Malley and James Monahan patrolling the streets of the mining town of more than 5,000 residents in mountains immediately east of the Sierra. Bob Watson and George Center happened by. A young miner, Center was “quiet when sober,” said the Daily Free Press, “but when...
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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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Legal Hysteria Spreads as the Court Revisits Roe
It is hard to keep a straight face while reading the hysteria over the United States Supreme Court agreeing to hear Dobson v. Jackson Women’s Health Organization, the Mississippi case challenging the state statute prohibiting nearly all abortions after the 15th week of pregnancy. For those in the legal establishment, the greatest fear seems to be that this...
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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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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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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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On Strippers
I concur with William J. Quirk in his discussion of the jurisdiction of federal courts (Cultural Revolutions, January). However, he missed a related strategic point. In truth, the judiciary is no “final arbiter” of what the Constitution means. If it were, one branch of government would be supreme rather than coequal. So-called judicial supremacy is...
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Supreme Court’s Trump Ruling Highlights Divisions Between Justices
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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Law and Liberty
Let’s say that a state passed a statute proscribing teachers from teaching reading in a language other than English until the student had passed the eighth grade. Violation of the statute was a misdemeanor. The state’s rationale was to assure that immigrant children learned English and assimilated. In fact, the state declared that teaching immigrant...
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The Impotent American Voter
Our great-great-grandfathers, if they were American voters, enjoyed greater opportunity to change policy with their votes than we do today. It is a paradox that as the number of Americans permitted to vote has increased over the past century, the power of those votes has diminished. Many legislators and judges, in their hearts, do not...
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Turning Rights into Wrongs
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...
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American Citizens or Tribal Members of Sovereign Nations?
American Indians compose a nation within a nation. They enjoy American rights and privileges, but also tribal rights and privileges.
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Impractical Solutions
Mark Levin, in his best-selling book The Liberty Amendments, is absolutely right about two things: First, the Courts, president, and Congress are not playing the roles assigned to them by the Constitution. The Court is deciding the country’s social and cultural issues; the president freely amends laws and drops Tomahawk missiles on people without going...
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Mexico’s Supreme Court Changes Provide a Warning for America
There seems to be a new trend that when a new leftist government is elected it attempts to change or undermine its country’s court system to remove it as a barrier to consolidating power. During the U.S. election cycle, there was much talk of how an incoming Democratic administration might reshape the Supreme Court. Thus...
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Republicans and DoMA
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...
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The Supreme Court Leaks Common Sense: Justice Alito’s Splendid Opinion
If Justice Alito’s mysteriously leaked draft opinion on the Dobbs case becomes official, it will overrule a whole line of dubiously reasoned federal abortion cases and will be the greatest victory for sensible jurisprudence in at least five decades.
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Arbitrary Nature of the Supreme Court
Pro-abortion and pro-centralization forces have won another victory in the battle over partial-birth abortion. As I detailed in this space last month, a three judge panel of the Seventh Circuit Court of Appeals, breaking with other federal courts, upheld Wisconsin’s and Illinois’ laws against the procedure in October 1999. Planned Parenthood, the misnamed Hope Clinic...
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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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Reclaiming Civil Rights
Making America great again will require making civil rights honest again.
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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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Alabama Supreme Court’s Embryo Ruling Embodies America’s Legal Heritage
Many on the left have denounced the Alabama Supreme Court’s ruling in a fertility clinic case as an imperious act of “theocracy” or “Christian nationalism.” Nothing could be further from the truth.
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Federalizing Tort Reform
On May 20, 1996, the United States Supreme Court engaged in its own version of tort reform by striking down the punitive damages award of two million dollars in the BMW of North America v. Gore case. Unfortunately, this case represents an example of two of the worst trends in public policy: expansion of the...
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How the Fourteenth Amendment Repealed the Constitution
“It is easier to make certain things legal than to make them legitimate.” —Chomfort The evisceration of the federal system by the Supreme Court during the last few decades—indeed, most of the modem malfeasance of that august body—has been accomplished largely through the instrumentality of the Fourteenth Amendment. This sorry tale, from the adoption of...
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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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Refusing to Do Something New
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...
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Trading Liberty for Security
Attacks on constitutional liberties, including the erosion of due-process protections for the rights to life, liberty, and property, tend to soar in wartime. The most egregious assaults have occurred during the Civil War, the two world wars, and, most recently, in the so-called War on Terror. Courageous individuals spoke out against the abuses during and...
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Democrats’ Assault on ‘Our Democracy’
The Left's crocodile tears about the fate of "our democracy" can be easily explained by the fact that when Democrats and left-wing activists speak of "democracy," they really mean "progressivism."
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Five Votes
“Much law, but little justice.” —Thomas Fuller With five votes around here you can do anything,” Justice William Brennan told his law clerks, thus summarizing the quintessence of Brennanism. That constitutional law is not something derived from the text, structure, and history of the various provisions of the Constitution but rather a creation of the...
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The Fruits of Fraud
The worst thing about the U.S. Supreme Court’s 1973 legalization of abortion in all 50 states and U.S. territories has not been the 55 million—and counting—dead babies, as horrible as that has been, but the damage it has caused to the rule of law, specifically the U.S. Constitution. In his dissent, Justice Byron White branded...
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Roberts Helps Congress Evade the Constitution
Chief Justice John Roberts left U.S. Supreme Court watchers dumbfounded. Before the release of the opinion in National Federation of Independent Business v. Sebelius, pundits expected the healthcare case to turn on the Commerce Clause and for Justice Anthony Kennedy to be the usual swing vote. If Kennedy sided with the conservatives (Roberts, Scalia, Thomas,...