Constitution

When Is Judicial Behavior Political?

(Flickr / s_falkow)

The debates about Chief Justice Roberts’s motivations for his health-care opinion rage on with new leaks appearing almost every day. Randy Barnett responds to Jonathan Adler’s attempt at showing that Roberts’s opinion is quite consistent with his past judgments:

But this does not [make] his bending himself into a pretzel to uphold a law when the screws were put to him any less political. [..] 8 justices acted on principle:  4 on good principles and 4 on bad principles.

The Constitution: A Love Story

It's time for liberals to reclaim our founding document from fanatics who worship its name but not its meaning.

When the 112th House of Representatives opened this past January with a reading of the United States Constitution, the intended political message was clear—the Republican Party was back to rescue the Constitution.

Less clear was what Constitution Republicans were vowing to save. The version they ordered read was, in fact, stripped of language the leadership considered “superseded by amendment,” even though those measures are still in the text. Some are embarrassing. The provisions protecting slavery, for example, call into question the infallibility of the Founding Fathers. Since one of the standard conservative talking points is that the “original intent” of the framers is an infallible guide to wisdom, the fallible parts were better left unmentioned.

Cain Hated "The Separation Of Church And State" Before He Loved It

Herman Cain has been unironically arguing that "[o]ur Constitution guarantees the separation of church and state," in support of discriminating against American Muslims, but Nick Sementelli points out that he wasn't always such a fan of the concept, at least not in 2006:

Vinson Holds Entire Health-Care Law Unconstitutional.

U.S. District Court Judge Roger Vinson has ruled that a provision of the Affordable Care Act is unconstitutional. Unlike the previous ruling, however, Vinson held that the individual mandate could not be "severed" from the rest of the ACA and therefore ruled that the entire act was unconstitutional. This ruling, in other words, raises the stakes.

"We're Not Married to Judicial Activism, But We Are Engaged!"

In his decimation of Bush v. Gore -- decided 10 years ago next week -- Jeff Rosen said that there was a silver lining: "Conservatives have lectured us for more than 30 years about the activism of the Warren and Burger Courts.

The Anti-Democratic Strain in Tea Party Conservatism.

Apparently, you're not a "real" conservative unless you want to amend the Constitution in order to settle scores with your political enemies:

Michael Stokes Paulsen, a professor at the University of St. Thomas Law School in Minnesota, said he was there to deliver bad news. "Washington, D.C., remains in substantial part enemy-occupied territory for those who favor any serious meaningful, permanent reforms that would effectively limit national government," he said.

He thinks the federal government has so stretched its constitutional limits that the only way to snap it back into shape is with a constitutional convention called by the states.

Shock and Awe.

Maybe I'm wrong to laugh at naked prejudice, but I found this Washington Times op-ed to be completely hilarious:

The Hawkeye State's judicial elections rarely generate much controversy or interest, with most judges generally enjoying approval levels of around 75 percent. That changed with the high court's unanimous 2009 decision discovering a right to homosexual "marriage" in the state constitution—a view that would have shocked those who drafted the document long before homosexuality was the subject of polite conversation, let alone political debate.

Why Obama Needn't Defend the Constitutionality of DADT.

To follow up on Gabriel's post below, White House adviser Valerie Jarret has claimed that the Obama administration's decision to defend the constitutionality of DADT is something the Department of Justice is "required" to do.

Our Common-Law Constitution.

Lawrence M. Friedman examines how people approve of an evolving Constitution mainly when it evolves in the direction they want it to go.

Everybody knows the Supreme Court is powerful and important, but why should it be? The nine justices on the Court are not elected to their positions, are not accountable to the public, and can keep on serving and making decisions long after the president who appointed them has retired. What explains the role of the Court in our society, and what justifies its power?

The Constitutional Law Professor.

This comment from Sarah Palin at a Tea Party rally in Nevada got a lot of snickers over the weekend:

In these volatile times when we are a nation at war, now more than ever is when we need a commander-in-chief, not a constitutional law professor lecturing us from a lectern.

Paulites, Progressives, Health Reform...and the U.S. Constitution.

The United States Constitution has taken on major significance in the health reform debate, with grassroots "teabaggers" calling universal health care -- and indeed, much social spending -- unconstitutional. In a piece for the Daily Beast, I reported on how this Constitutional originalism is borrowed from the Ron Paul campaign. (Ironically, many Paulites and teabaggers, while complaining that the Constitution doesn't explicitly provide for a universal health care system, would like to amend it to ban abortion. They can't seem to decide if the document ought to be interpreted strictly or loosely.)