judicial activism

The Sexual Revolution Turns Ugly

How many intellectuals have come to the revolutionary party via the path of moral indignation, only to connive ultimately at terror and autocracy? ∼ Raymond Aron The Sexual Revolution is now out of control. Initially promising freedom, like all revolutions, it has entered something like its Reign of Terror phase and is devouring its own children. As with [...]

Can Religious Symbols Be Tolerated on Public Lands?

Is a long-standing commemorative cross on public land socially divisive and a governmental endorsement of religion? Or, to the contrary, is a constitutional challenge to that cross an act of gratuitous social divisiveness? Last week, in American Humanist Association v. Maryland, the federal Fourth Circuit Court of Appeals reversed a ruling of the federal district court of [...]

The Many Assaults on the Rule of Law

A central principle of the American Founding—in fact, one that great thinkers have held as central for any democratic republic—is the rule of law. We often hear the phrase that we are a nation in which “the rule of law and not of men” prevails. This is another way of saying that law—applicable equally to [...]

Sex, Sanity, and Beliefs that ‘Live Loudly’ Within Us

“I do not know any country where, in general, less independence of mind and genuine freedom of discussion reign than in America.”  ∼ Tocqueville, Democracy in America Alexis de Tocqueville was the great French chronicler of the early United States.  Nearly 200 years ago, he spotted a basic tension in our national character. It’s this:  Americans place [...]

Senate Democrats Show Intolerance for Catholic Judges

Just two months after Sen. Bernie Sanders (I-VT) declared a nominee to federal office to be unfit for daring to hold the personal belief that Jesus Christ is necessary to salvation (which was discussed at Crisis by your faithful correspondent here), a fresh controversy has arisen in the hearing chambers of the capitol. This time, [...]

The Charlie Gard Case Portends a Frightening Future

The case of Charlie Gard, the British baby afflicted with the rare mitochondrial DNA depletion syndrome who a London hospital would not discharge to his parents so they could take him to the U.S. for experimental treatment, brought together a number of increasingly portentous trends and realities that have come to define our age. The [...]

Liberal Myths Have Consequences

“Contemporary liberalism is less a political philosophy than a façade for undermining extant social and legal mores.”   ∼ John Safranek, The Myth of Liberalism, 2015. When I first looked into this insightful book of John Safranek titled The Myth of Liberalism, I was struck by the introductory sentence that he cited from Hegel’s Philosophy of Right. [...]

Obergefell and the Apotheosis of Judicial Will

With the confirmation of Neil Gorsuch to the U.S. Supreme Court, many social conservatives breathed a sigh of relief. From what we know of his record, Justice Gorsuch does seem to be a worthy successor to Justice Antonin Scalia. Even if Gorsuch is somewhat less distinguished as a legal mind than Scalia, he is clearly [...]

How to Avoid Judicial Tyranny

The Founding Fathers envisioned the Supreme Court of the United States as an apolitical branch of government, co-equal to the others but devoid of any partisanship or politicking. Alexander Hamilton wrote that judges in the new American system would have “neither force nor will, but merely judgment.” The question of confirming a justice to the [...]

Does California Have a Case Against David Daleiden?

Last week, California brought fifteen criminal counts against our client David Daleiden. Counts one through eight deal with the 2014 National Abortion Federation Annual Meeting. Counts nine through eleven deal with the two restaurant visits with Planned Parenthood personnel in the Los Angeles area (the videos that reveal "crush above, crush below," and "I want [...]

When Policy Preferences Masquerade as Rights

Recently, I took my son swimming at a local rec center. Entering the men’s locker room, we encountered a sign: “Children over 6 must use the appropriate locker room.” For a moment, I was tempted to speed dial the ACLU and Human Rights Watch to roust some federal judge that Sunday morning who could save [...]

The Judiciary’s Lawless Response to Trump’s Executive Order

The imperial American judiciary has struck again. This time it has taken upon itself the prerogative to enter a domain that historically it shied away from: national security. A few weeks ago, a federal judge in Washington State stopped the implementation of President Trump’s executive order temporarily halting entry into the U.S. from seven Islamic-majority [...]

How to Curtail Judicial Activism

I hear frequently in this year’s election campaign that Supreme Court appointments should be the key consideration in the choice between the presidential candidates. That’s certainly understandable, and perhaps true. It reflects, however, an unfortunate attitude—widespread and deeply ingrained in the American psyche—that the Court is somehow the ultimate, sovereign institution in the United States. [...]

Rule of Law Prevails in Absurd Texas Abortion Case

The first and last sentences of a Texas Criminal Court’s ruling from earlier this week state: “Defendant David Robert Daleiden’s motion to quash the indictment is pending before this Court ... Cause No. 2071353 is ORDERED DISMISSED for want of jurisdiction.” Those sentences reveal what we at Freedom of Conscience Defense Fund (FCDF) have been [...]

Liberalism: An Established Religion

Governments have often minimized religious conflict by establishing one religion and granting it privileges even where others are tolerated. The First Amendment to the United States Constitution left such power to the states, saying only that “Congress shall make no law respecting an establishment of religion....” Following the enactment of the Fourteenth Amendment, however, the [...]

Are We Still A Nation of Laws?

Recent weeks have seen a sudden slew of bureaucratic and judicial action on the question of public accommodation of self-identified transgendered individuals. In one of the latest moves, a decision from the Fourth Federal Circuit struck down a Virginia school board ruling that children must use the bathroom corresponding to their biological sex. As Hadley [...]

The Left Replaces Rule of Law with Rule of Politics

A review in Washington Lawyer magazine of U.S. Supreme Court justice Stephen Breyer’s recent book, The Court and the World: American Law and the New Global Realities declared that he “makes a ringing defense of the rule of law.” That was a curious conclusion, in light of how Breyer—one of the most preeminent leftists in [...]

Pro-Abortion Judges Neuter “Sunshine” Laws in Maryland

Do you believe in ghosts? A particularly apt word to describe ghosts is “ephemeral”—gaseous, not substantial. That’s why when kids are afraid of ghosts, we reassure them that nothing out there will harm them. But is it true? A particularly evil spirit seems to inhabit the judiciary, one quite capable of doing substantial harm, and [...]

How Scalia Inspired a Generation to Defend the Constitution

The death of U.S. Supreme Court Justice Antonin Scalia at age 79 of natural causes Saturday in Texas is an ideal occasion to reflect on the profound influence he had on the legal profession and, by extension, the nation. Astute observers of academic life in America know that the law professoriate has long been dominated [...]

The Requirements of the Law

As a full-time parish priest and an armchair theologian, it gives me great pleasure to rub shoulders—from time to time—with real theologians, and to plagiarize some of their ideas. One of them observed, “The Church teaches doctrine, not theology.” The thought was provocative enough to open many intellectual doors for me as I began to [...]

First Steps Toward Protecting Parental Authority

In a recent article on the Obama Administration's incremental assault on parental moral authority, Caleb Henry observes that the Supreme Court’s Obergefell decision portends the government’s imposition of a progressive “moral reeducation program” against private schools and families. Pointing to increasingly explicit public school interjection into morality traditionally entrusted to the family and church, Henry asks, [...]

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