Richard Posner, a judge of the U.S. Seventh Circuit Court of Appeals, in a New York Times op-ed co-authored December 2 with Law Professor Eric Segall, takes Supreme Court Justice Antonin Scalia to task for threatening America with a “majoritarian theocracy” because of his repeated . . . . Continue Reading »
In what sense are all men created equal? America’s Declaration of Independence calls it a self-evident truth. But to look around the world, nothing could seem to be less the case, empirically speaking. Some of us are born to wealthy parents, others into poverty; some of us with 170 IQs, others a little slow on the uptake. The genetic lottery, as some call it, does not distribute prizes equally.
In late January, the Supreme Court granted review in Glossip v. Gross, a case involving a constitutional challenge to a drug protocol used in the imposition of capital punishment by lethal injection. Under current practice, lethal injection works by way of three drugs: the first sedates the person . . . . Continue Reading »
A political system, along with such supportive traditions as the rule of law and loyal opposition, is supposed to be a durable fixture on the political landscape and ought not to be changed lightly. It should be amended only when a favorable consensus can be achieved, and if that consensus is not forthcoming, then the constitution remains as it is. Continue Reading »
Millions of Americans (or thousands of journalists, wonks, and wags) are sitting on pins and needles right now, waiting for the Court’s determination: Will the world’s only superpower decree that same-sex marriage is a constitutional right? Other decrees came down this week—ranging from . . . . Continue Reading »
The U.S. Supreme Court has heard oral arguments on the gay marriage cases, and it now seems poised to impose a national marriage policy on America. This new national policy will likely restrict popular choice on a key cultural issue by preventing states from democratically preserving the traditional notion of marriage as being solely between one man one woman. Some will view this development as an illegitimate alteration of the Constitution through judicial fiat, while others will surely herald it as the proper understanding of the Constitution’s “aspirations.” The Supreme Court’s majority opinion will no doubt argue that the Constitution requires this decision, and it will do so in spite of overwhelming evidence that nobody who wrote or ratified one word of the Constitution ever contemplated a national gay marriage policy. Continue Reading »
The Evangelical Origins of the Living Constitution by john w. compton harvard, 272 pages, $45 The Constitution has become something different than what it once was. It used to be an actual document, something written on paper, solid and unchanging. Now, according to American constitutional . . . . Continue Reading »
The single most important event of constitutional interpretation in American history was the Civil War. The war was, of course, so much more than simply an act of constitutional interpretation. Fought from 1861 to 1865, it was the most devastating war in America’s history, resulting in the deaths . . . . Continue Reading »
In a parallel universe, the United States of America is somewhere still governed under the Articles of Confederation. Here’s what happened in this other United States: To the dismay of Federalists (called “nationalists” or conservatives at the time) the proposed constitution of 1787, which would have replaced the Articles of 1781, was defeated in four crucial state conventions and never became the framework of the American union.The hard political battle pitted radicals (called anti-Federalists) against conservatives and the radicals won, barely. The “United States, assembled in Congress”, remained the political subordinate of the states. Continue Reading »
Mary Ann Glendon wrote nearly a quarter century ago that “a new form of rights talk has come into being” in contemporary America, in which rights are “presented as absolute, individual, and independent of any necessary relation to our responsibilities. Continue Reading »
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