Category Archives: Constitutional Law

The Obergefell Legacy in Constitutional Interpetation

Howard  Slugh had an interesting article in the National Review Online on April 10, entitled “Obergefell’s Toxic Judicial Legacy.”  At the time the case was decided (2015) I wondered whether the language used by Justice Kennedy establishing a right to homosexual marriage might be used to claim other new rights not mentioned in the Constitution and barely even imagined at the time.  I remember that a few others shared my concern.  It now appears my and others’ fears are beginning… Continue Reading ››

The New Executive Order: “Here Comes the Judge”–Again

Once again a Federal district court judge has issued a nationwide Temporary Restraining Order (TRO) prohibiting enforcement of the president’s new executive (EO) order temporarily suspending entry into the United States of non-citizens living outside the United States for a period of 90-120 days, with waivers possible for defined exceptions.  The EO identified six nations as targeted by its provisions.  The reasons stated were the possibility or likelihood that these nations were producing or would produce terrorists.  I have reproduced… Continue Reading ››

Executive Order in the Court

A Federal judge in Washington State today issued an injunction preventing the enforcement of President Trump’s Executive Order (EO)halting immigration and entry programs from seven nations for 90 and 120 days respectively.  I have already written about my own response to the EO as a policy matter and also said something about a Christian response or responses.  Now however, the question has shifted to the legality of the order. Let’s go through what is the very early stages of this… Continue Reading ››

Trump Comes Through for Evangelicals

The most important moment of the 2016 presidential campaign happened on February 13, 2016. There were no primaries or caucuses and no one entered or dropped out of the race. Instead, on that day, the world learned of Justice Antonin Scalia’s death on a ranch in Texas. What was an important election against a historic foe quickly turned into a fight for the future of the Supreme Court. Scalia’s death gave progressives an opportunity to switch the Court ideologically, while… Continue Reading ››

“God save the…Country”: The Courts and Brexit

I just felt the need to make a quick comment on the recent ruling by a Court holding that the Brexit vote was not valid without a vote by Parliament.  This was a very odd ruling for several reasons, the most interesting being that the British government is not at all structured like ours.  Despite the statement by the judge that the Brexit process violated clear constitutional principles.  Well, there is no written constitution for Great Britain (and never has… Continue Reading ››

Buried in Red Tape and Administrative Law

I am just getting around to reading a book I have meant to read for over a year, Is Administrative Law Unlawful? By Philip Hamburger (University of Chicago, 2014).  Besides, this is also a good time to raise the whole issue of administrative rulemaking, regulations and judicial hearings, something that in the last 70 years has become more than just common, but pervasive.  Here in DC of course we are pretty close to it physically, but it affects all citizens… Continue Reading ››

Rule of Man: Addendum

Earlier in the week I wrote a post about the decline of the rule of law and increase in the rule of man in the United States’ governing structure.  I would like to continue that thought as it related to the individual human being.  Question:  Why is the rule of law so important?  Answer:  Because of the nature of man. The Founding Generation of this country understood the threat that the rule of man was.  I refer to the whole… Continue Reading ››

The Progressive Dream: In Reality

In the period from about 1890 to 1920, labeled the Progressive Era, political thinkers, economists (a new profession then) and public intellectuals told Americans and Europeans that the best way to get efficient government that actually worked was to create independent boards, commissions and other similar organizations.  We were told they would be free from “politics,” staffed by experts and would run their area of authority without bias and for the good of all their constituents.  In addition, these commissions… Continue Reading ››

What Happened on the Way to Richard Posner?

Way back in the late 1970s, when the Law and Economics movement was really getting underway, one of the “stars” of that intellectual movement was Richard Posner, a law professor at the time, and one interested in hos economics might be applicable to law.  At the time, I was also developing an interest in economics, at the same time I was preparing for law school.   I read Posner in graduate school.  In fact, I read lots of Posner and others… Continue Reading ››

Some News of the Day/Week

The following is just a little briefing that focuses our attention on some important recent issues (or at least what I think is interesting): Full disclosure: I am not a prolific user of social media, and I sometimes look down (secretly) on those who are—maybe I am really just jealous and I certainly am technologically challenged.  But I do on occasion use Facebook—but I do not tweet, as that seems like I should be chirping.  Still, I read with some… Continue Reading ››