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Do We Have an Amoral Constitution? A Second Reply to Kurt Lash

Evan Bernick | Posted 07.20.2015 | Politics
Evan Bernick

Lash's Constitution is amoral -- it would allow myriad individual rights that are central to human flourishing to be voted up or down. He is free, of course, to argue for that view -- but it is one that the Founders rejected, the Framers of the Reconstruction Amendments rejected.

Yes, The Fourteenth Amendment Protects Unenumerated Rights: A Response to Kurt Lash

Evan Bernick | Posted 07.13.2015 | Politics
Evan Bernick

It is arguably the most important question concerning judicial review today. Should judges require the government to offer an honest, reasoned explanation every time it restricts individual liberty, or just some of the time?

Justice Scalia and Queen Anne

Harold Lloyd | Posted 07.17.2015 | Politics
Harold Lloyd

Of course, Justice Scalia is correct that failure to understand any such contemporaneous meanings of these terms would lead a modern reader to misinterpret what Queen Anne may have said. However, on its face, this example does not apply to the interpretation and application of an ongoing legal rule.

Obergefell v. Hodges and the Meaning of Liberty

Evan Bernick | Posted 07.06.2015 | Politics
Evan Bernick

Fidelity to the Constitution requires fidelity to the law itself, not any particular group of people's subjective understanding of it or expectations about it, whether those people are long dead or still living.

Justice Scalia Versus 'Liberty'

Evan Bernick | Posted 06.17.2015 | Politics
Evan Bernick

Scalia has identified himself as a "faint-hearted originalist." Nowhere is his faint-heartedness more evident than in his refusal to seriously consider whether and to what extent the Constitution protects unenumerated rights.

Lochner Lives! Why Conservatives Are Finally Giving One of the Supreme Court's Most Underrated Decisions the Respect It Deserves

Evan Bernick | Posted 06.23.2015 | Politics
Evan Bernick

It's already one of constitutional law's great comeback stories. For decades, Lochner v. New York (1905) was almost universally held to be one of the worst Supreme Court decisions of all time. Today, it is enjoying newfound respect and even admiration within conservative legal thought.

Denying the Dogma of Judicial Deference: A Reply to Carson Holloway (Part I)

Evan Bernick | Posted 06.09.2015 | Politics
Evan Bernick

In this post, I will argue that Holloway's approach to judicial review is informed by an understanding of rights that is alien to that of the Framers and ignores the express language of the Ninth and Fourteenth Amendments. In a subsequent post, I will trace the tragic consequences of that approach.

John McGinnis and the Originalist Case Against Judicial Restraint

Evan Bernick | Posted 05.31.2015 | Politics
Evan Bernick

Last week, I argued that the judicial restraint long advocated by conservatives has its roots in the Progressive era, drawing upon Professor John McGinnis' recent paper, The Duty of Clarity, in support of my arguments.

Helping Others Think: A Tribute to Edwin M. Yoder, Jr. at 80

Joel K. Goldstein | Posted 09.17.2014 | Media
Joel K. Goldstein

All of these works have enriched my life, and invite rereading, and I commend them to those who have not yet experienced Ed's help in shaping their thinking and the enjoyment that inevitably comes from reading his work.

Punctuation Marks, Antonin Scalia, and the Farce of 'Originalism'

Steven Conn | Posted 09.06.2014 | Politics
Steven Conn

Pretending that reading a document like the Constitution is a simple, transparent and an entirely objective and neutral task is naïve at best, intellectually dishonest at worst.

The NSA, Planned Parenthood and Your Right to Privacy

Steven Conn | Posted 05.02.2014 | Politics
Steven Conn

Not a week seems to go by without more revelations about how the NSA (or recently the UK's GCHQ) monitors our electronic communications. Who knew that all the time I waste watching old movie clips on YouTube was so interesting to the guardians of our national security.

Paul Blumenthal

Elizabeth Warren: 'We Face A Clear Danger' On Campaign Finance | Paul Blumenthal | Posted 09.27.2013 | Politics

WASHINGTON -- Sen. Elizabeth Warren (D-Mass.) warned Thursday that a coming Supreme Court case that could ultimately eliminate certain campaign contri...

Originalism: The Dark Misunderstanding

Deedee Freedberg | Posted 07.29.2013 | Politics
Deedee Freedberg

At the time of his now crucial rejection by the senate, Robert Bork's importance did not fully reach me. I knew him only as Solicitor General, third o...

Guns, Grenades and Graffiti

Alex Glashausser | Posted 07.14.2013 | Politics
Alex Glashausser

Sandblasting the Constitution to restore its actual text reveals that it lacks the absolutes urged by the graffiti artists. There is no right to bear any particular arm.

It's Not a Mystery When State Laws Prohibiting Same-Sex Couples From Marrying "Became Unconstitutional"

Elizabeth B. Wydra | Posted 05.26.2013 | Politics
Elizabeth B. Wydra

It may have taken us 100 years to get it right with respect to race-restrictions on the freedom to marry, but it doesn't mean those laws weren't unconstitutional in 1868. The same is true, nearly 150 years after the ratification of the Fourteenth Amendment, for laws that deny gay and lesbian couples the freedom to marry.

An 18th Century Constitution in a 21st Century World

Dan_Weiss | Posted 03.05.2013 | Politics

Perhaps it is naïve to think we can get all the guns off the street. But it is clear that we can no longer afford to be stifled by originalist thinking when it comes to discussing gun laws and that is exactly what groups like Gun Owners of America would like to do.

The Founding Prophets

Emmett Rensin | Posted 03.04.2013 | Politics
Emmett Rensin

When we allow quoting the Constitution to stand in for a legitimate rebuttal, we diminish our ability to think critically about our nation and its laws.

Justice Scalia, Originalism and the First Amendment

Geoffrey R. Stone | Posted 12.13.2011 | Politics
Geoffrey R. Stone

In a recent conversation at the Aspen Institute's 2011 Washington D.C.'s Ideas Forum, Justice Antonin Scalia offered some interesting observations about his theory of originalism and the meaning of the First Amendment.

Mike Sacks

Two Justices Took Their Show To The Senate | Mike Sacks | Posted 12.05.2011 | Politics

WASHINGTON -- Supreme Court Justices Stephen Breyer and Antonin Scalia took their constitutional law road show to Congress on Wednesday at the invitat...

The Framers' Constitution

Geoffrey R. Stone | Posted 11.12.2011 | Politics
Geoffrey R. Stone

The conservative constitutional narrative is deeply unprincipled and patently wrong, both in its defense of conservative judicial ideology and in its attack on what conservatives deride as a result-oriented "liberal" jurisprudence.

The Demise of "Originalism"

Geoffrey R. Stone | Posted 08.05.2011 | Politics
Geoffrey R. Stone

Judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence.

Obama, War Powers, and Yoo

Robert J. Spitzer | Posted 05.28.2011 | Politics
Robert J. Spitzer

Yoo's chief problem as a constitutional commentator is that his underlying constitutional analysis of presidential power is literally the opposite of what the Founders intended and wrote.

Don't Blame the Tea Party (at Least Not for This... )

Erica Payne | Posted 05.25.2011 | Politics
Erica Payne

As politicians of both parties fall all over themselves denying blame for the shooting of Congresswomen Giffords and decrying the toxic political envi...

Justice Scalia's Constitutional Nostalgia

Andrea Lyon | Posted 05.25.2011 | Politics
Andrea Lyon

Justice Antonin Scalia says the's 14th Amendment doesn't protect women against sex discrimination. Is nostalgia to blame for this inflexible, incorrect view?

Why Michael Gerson Misunderstands Originalism

William P. Marshall | Posted 05.25.2011 | Politics
William P. Marshall

The answer to judicial overreaching is not adherence to a narrow form of originalism that would suggest the Constitution is incompatible with the demands of modern society. The framers themselves had more foresight than that.