Free Republic

Former Supreme Court Justice Stephen Breyer criticized his colleagues on the high court over their interpretation of the Constitution. The former justice, who retired in 2022, is set to release a book titled Reading the Constitution: Why I Chose Pragmatism, Not Textualism, laying out an argument critiquing the methods used by many Republican-appointed justices to interpret the Constitution. “Recently, major cases have come before the court while several new justices have spent only two or three years at the court,” Breyer said in the book, according to the New York Times. “Major changes take time, and there are many years...

The claim that an undesired pregnancy is slavery implies that our very existence is a form of slavery or imprisonment.Motherhood isn’t slavery. This ought to be obvious, but after the Dobbs decision overturning Roe v. Wade, the left has pushed a variety of bizarre legal theories as they scramble to ensure that elective abortions continue unabated across the country. They just got a federal judge to consider one of the looniest legal theories — the sort of theory that shouldn’t be heard outside of a mediocre law professor’s late-night conversations with her cats after hitting the wine box a bit...

The Fourteenth Amendment protects the rights of “any person” to due process when a state deprives him or her of life, liberty, or property, and to the “equal protection of the laws.” By overruling Roe v. Wade, the Supreme Court eliminated Roe’s deeply flawed holding that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” Since a sound case can be made that interpreting “person” to include all human beings is consistent with the Fourteenth Amendment’s original public meaning, Congress should do so for purposes of its power to enforce the Fourteenth Amendment. KEY TAKEAWAYS...

Federal judges are not historians, but they are increasingly obligated to play them on the bench. In his Bruen decision last June, Justice Clarence Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791, when the Second Amendment was ratified. Ever since, judges have struggled mightily with this task—in part because most have no training in real historical analysis, but also because the record is often spotty and contradictory. In light of Bruen’s maximalist language, they have erred on the side of gun owners, finding a constitutional right to buy a gun...

Former Vice President Mike Pence was heckled with calls of “traitor” at a conservative conference Friday as he continues to draw criticism from members of the Republican base for his role in Congress’s certification of President Biden's Electoral College victory. “It is great to be back with so many patriots dedicated to faith and freedom and the road to the majority,” Pence said to applause at the Faith & Freedom Coalition summit before the heckling began. “I’m a Christian, a conservative and a Republican, in that order,” Pence continued, as the hecklers in the audience began to grow louder, yelling...

Sen. Ed Markey, D-Mass., calling the judicial originalism "racist, sexist, homophobic and a fancy word for discrimination" is “patently irresponsible," said Sen. Mike Lee. The term "originalism" refers to a judicial interpretation of the law based on a literal reading. “Of all the irresponsible and inflammatory statements I’ve heard over the last few weeks, and I’ve heard some doozies, this might well be the worst,” Lee, R-Utah, told “Fox & Friends” on Tuesday. “If you think about what he is really saying there, Sen. Markey has essentially said that our Constitution is racist. And [that] an effort to understand it,...

Originalism is a mode of legal interpretation by which a judge considers a legal document’s original meaning at the time the document was written. Conservative Justice Antonin Scalia, for whom Judge Barrett clerked in the late 1990’s, was considered one of the foremost exponents of this judicial philosophy.

In 1987, Robert Bork was denied confirmation to the Supreme Court because his originalist beliefs were deemed a serious threat to constitutional rights. Originalism is no less dangerous for those rights today, yet Judge Amy Coney Barrett’s repeated statements professing her belief in originalism have been met with little objection. Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as...

Over the past decade, left-leaning opinion makers have been at war against the U.S. Constitution and our Founders. The nomination of originalist judge Amy Coney Barrett to the Supreme Court has provoked renewal of the onslaught. The assault takes several forms, which are discussed below. First, however, let’s see what triggered it.The Constitution limits and distributes political power. American “progressives” almost universally favor a very powerful central government so most do not think highly of the Constitution. Throughout the 20th Century, however, they generally avoided direct criticism. Instead, they contended that the Constitution authorizes, or even mandates, their political agenda.A good...

This decision, and the majority who wrote it, represents the end of something. It represents the end of the conservative legal movement, or the conservative legal project, as we know it. After Bostock, that effort, as it has existed up to now, is over. I say this because if textualism and originalism give you this decision, if you can invoke textualism and originalism in order to reach such a decision—an outcome that fundamentally changes the scope and meaning and application of statutory law—then textualism and originalism and all of those phrases don’t mean much at all. And if those are...

Pundits often speak of the judiciary in terms of liberal or conservative judges issuing liberal or conservative opinions. The reality is far more complicated—and interesting. As the growing divide among "conservative" judges in criminal justice cases makes clear, such labels frequently obscure more than they reveal.

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Many on the left have accused originalism of being nothing but a cover for conservatives’ preferred policy outcomes, but Vermeule’s proposal illustrates how restrained originalists have been. “The Republic” often alarms first-time readers. Not only is Plato’s dialogic style foreign to us, the character of Socrates makes bizarre and even wicked proposals as he outlines a supposed ideal polity, such as a communism not only of property, but also of wives and children. Many readers, including some philosophers, have taken Plato literally and seriously, and therefore condemned him as a proto-totalitarian. Something similar seems to have happened in response to...

With three conservatives and three liberals signing on to the originalist ruling in Ramos v. Louisiana, we see more evidence that the 'living Constitution' school of thought is in decline. The Supreme Court ruled Monday that for defendants to be convicted of crimes, juries must decide their guilt unanimously, not by a simple majority or any other fraction. If that seems obvious, it may be because in the federal judiciary and the courts of 48 states, this is already the law and has been for a long time. Oregon and Louisiana were, until this week, the only outliers. In applying...

Editor's Note: This piece was co-authored by David Feder.Today is the three-year anniversary of Justice Gorsuch’s swearing-in as an Associate Justice of the Supreme Court of the United States. Although still early, Justice Gorsuch has already proven to be a grand slam for anyone who cares about interpreting the Constitution as written; for anyone who cares about the differences between judges and legislators; and for anyone who cares about protecting individual liberty. As a judge on the Tenth Circuit Court of Appeals in Denver, Justice Gorsuch was widely recognized as a leading proponent of the judicial philosophy known as “originalism.”...

With the help of Senate Republicans, Donald Trump spent the first three years of his presidency remaking the federal judiciary in his own image. The president has appointed 133 district court judges, 50 appeals court judges, and two Supreme Court justices—meaning about one-fifth of the nation’s federal trial judges, and one-fourth of its federal appellate judges, are Trump appointees. These jurists are leading a conservative revolution that will upend decades of precedent and enshrine reactionary policies into the law. The transformation has only just begun. But for a glimpse of where the judiciary is heading if Trump wins a second...

In a misguided hit-piece—“Justice Gorsuch is wrong: ‘originalist’ judges make stuff up too”—Kim Wehle renews a discredited objection to originalism. Originalism is a method of interpretation that adheres to the Constitution’s words as understood at the time of adoption. For originalist judges, rights protected by the Constitution at the time of ratification are rights that deserve protection today, since the meaning of the Constitution as ratified by the people cannot change, except through amendment by the people. That is why we have a written constitution in the first place. But, for “living constitutionalists,” the judge is like a king who...

President Donald Trump announced on Monday night his nomination of D.C. Circuit Judge Brett Kavanaugh to succeed Justice Anthony Kennedy on the Supreme Court. Kavanaugh, who was included in The Heritage FoundationÂ’s original list of potential Supreme Court nominees, is a very promising choice.The battle lines were already drawn before Trump made his announcement, with Senate Minority Leader Chuck Schumer, D-N.Y., declaring he would not vote for any of the individuals on TrumpÂ’s short list.Meanwhile, Senate Majority Leader Mitch McConnell, R-Ky., promised the confirmation vote would happen this fall. Now, the Senate Judiciary Committee will begin the process of reviewing...

Timelines are devastating to progressivism. Over the years, progressive historians have done a good job of insulating their ideology from the question of "when did this happen", by taking quotes out of context, using the power of omission, and other trickery, in order to retroactively cook the books and make some things seem older than they actually are. The theory of the living and breathing constitution falls under this umbrella. Yet if you examine the history of progressivism itself, you once again see all of their lies on full display. You needn't look any further than the platform of the...

Full Title: Constitutional Originalism or the "living Constitution": Gorsuch's nomination and a tale of two law profs Judge Neil Gorsuch's nomination has brought to the fore the seemingly dry argument about two competing theories of Constitutional interpretation, Originalism and the "living Constitution." Gorsuch himself is an "originalist" while the Democrat party arrayed against him puts its faith in a "living Constitution."Two recent essays both discuss Originalism and "the living Constitution": Prof. Glenn Reynolds' "Who the People?" in USA Today, and Prof. Mary Bilder's "The Constitution Doesn't Mean What You Think It Means" in the Boston Globe. Dry though the argument...