Free Republic

Once Associate Justice Stephen Breyer was successfully hounded into announcing his retirement (and we all wonder if the full story of that announcement will ever be told), Joe Biden announced that he would only be considering black females for the appointment. Mr. Biden chose a tumultuous week to announce that name – a week in which Russia invaded Ukraine, energy prices hit new records, the stock market tumbled, and the news was finally starting to circulate that indictments were finally coming on the Obama-Clinton era “Russian collusion” hoax against President Trump. When the Biden-Harris regime most needed a distraction from...

The U.S. Constitution is the sacred text of American government and civic life. But it's time to face facts: The document, written in 1787, isn't working. The signs are all around us. Just 38 percent of Americans in a recent Gallup poll expressed either a "great deal" or "quite a lot" of confidence in the presidency, down from 48 percent in 2001. Congress, never high in the public's estimation to begin with, fell from 26 percent to a mere 12 percent. The Supreme Court has also taken a hit, down from 50 percent to 36 percent during the same period....

When a federal court issues an order against enforcement of a government policy, the ruling traditionally applies only to the plaintiff in that case. Over the past several decades, however, some lower court federal judges have increasingly resorted to a procedural device—the “nationwide injunction”—to prevent the government from enforcing a policy against anyone in the country. Shrewd lawyers have learned to “shop” for a sympathetic judge willing to issue such an injunction. These days, virtually every significant congressional or presidential initiative is enjoined—often within hours—threatening our democratic system and undermining the rule of law. During the eight years of the...

VANITY I watched the very long video in which Scalia spoke of interpreting the U.S. Constitution (Constitution) These are my notes: The due process clause in the Constitution provides that no person shall be deprived of life, liberty or property without “due process”. It does not mean rights are absolute. A fundamental right used to be one that is rooted in the traditions of the American people. Ultimately “fundamental rights” no longer have to be “rooted in tradition”. For example, “abortion” which is now considered to be a fundamental right was not only not rooted in tradition but it was...

Consider a few facts: Donald Trump is in the White House, despite winning almost three million fewer votes than Hillary Clinton. The Senate, the country’s most powerful legislative chamber, grants the same representation to Wyoming’s 579,315 residents as it does to 39,536,653 Californians. Key voting rights are denied to citizens in the District of Columbia, Puerto Rico and other United States territories. The American government is structured by an 18th-century text that is almost impossible to change. These ills didn’t come about by accident; the subversion of democracy was the explicit intent of the Constitution’s framers. For James Madison, writing...

[snip] I wish the Supreme Court were less important. But right now, it's one of the only institutions preserving constitutional order. And that's why the left is about to go nuts again.

Has it? In case you didn't notice, Representative Bill Foster believes in word substitution and the living and breathing constitutional doctrine. He said: It always has been up for reinterpretation. The technology changes, and the weapons thought to be too dangerous to be in private hands change. A civil war cannon is frankly much less dangerous than weapons we are allowed to carry on the streets in many of the states and cities in our country today. This is something where technology changes and public attitude changes and both are important in each of the generations. Of course, if one...

This is fully conjecture, but I'm convinced that the answer is yes. During the time in which Wilson was inventing the concept of the "living and breathing constitution", Wilson made the following observations: (Constitutional Government, page 55) The government of the United States was constructed upon the Whig theory of political dynamics, which was a sort of unconscious copy of the Newtonian theory of the universe [see: Newtonian government]. In our own day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously or unconsciously follow Darwin; but before Darwin, they followed Newton....

Specifically, the science that progressives are rejecting is Newtonian in nature. I'll explain: In the book Constitutional Government in the United States, Woodrow Wilson wrote the following:(page 57) Living political constitutions must be Darwinian in structure and in practice. Fortunately, the definitions and prescriptions of our constitutional law, though conceived in the Newtonian spirit and upon the Newtonian principle, are sufficiently broad and elastic to allow for the play of life and circumstance. To be even more specific, what Woodrow Wilson is doing as he is actively inventing the concept of the "living constitution", is holding up Darwinian science over...

Judicial Interpretation of Constitutional ProvisionsBy Frank Johnson Goodnow, October 26, 1912 WHEN the constitution of the United States was adopted at the end of the eighteenth century, the conditions to which it was intended to apply were marked by three distinguishing characteristics. The first was geographical in its nature; the second was economic; the third intellectual. In the first place, the United States for which the constitution was framed, consisted of a series of communities, lying along the Atlantic seaboard of North America, largely engaged in agricultural pursuits and occupying sparsely populated districts which as compared with their population were...

Editor's Note: Column was coauthored by Ken Klukowski. Justice John Paul Stevens doesn’t believe anyone has the right to own a gun, and admits that you would need to rewrite the Constitution to make his preference a legal reality. And that’s exactly what he thinks should happen. Throughout his 35-year tenure on the Supreme Court, Justice Stevens was a lion of the Legal Left. He was an unapologetic advocate of the “Living Constitution”— that judges should continually reinterpret the words of the Constitution in accordance with what they, and other elite members of society, decide is the evolving enlightenment of...

Based upon Justice Sotomayor’s bizarre dissenting opinion in the recent Michigan affirmative action case, it seems she believes that government decisions made on the basis of race, something the Constitution expressly bars, are mandatory. Someone has been emanating her penumbras because, to use the legal term of art, that’s Constitutional Crazy Talk. Years ago, the liberals came up with the Political Process Doctrine. It’s the idea that if some small element of a state or local government – like a city council or a university board – is implementing policies liberals like, the people can’t use the ballot box to...

What happened to so many once-Christian colleges in the United States? Two fine books describe the decline. George Marsden's 462-page The Soul of the American University shows how once-Protestant universities became secular look-alikes. James Burtchaell's The Dying of the Light: The Disengagement of Colleges and Universities from Their Christian Churches uses 868 pages to show not only how schools moved from liberal theism to secularism but how, before that, they moved from theologically conservative to liberal I'll try to give the high points of 1,330 pages in fewer than 1,330 words: Three central messages are (1) Follow the money, (2)...

Alive or dead? Today, the 213th anniversary of the United States Constitution, that question looms large. This is especially so as the document is wielded like a sword, cleaving libertarian from progressive philosophies. Understanding the nature of the Constitution — neither underestimating its genius nor overstating its authority as inerrant — is critical. Supreme Court Justice Antonin Scalia once said, “The Constitution that I interpret and apply is not living, but dead.” That view has been embraced by many in the tea party movement. These opponents of President Barack Obama’s agend, who thrust the federal government into many areas of...

I have a big problem. It shadows me daily and I think I might need help. It seems that I can’t ever walk away from a debate, specifically on a political issue that I believe strongly in… and those are numerous. One debate that particularly continues to get under my skin happens when a liberal gets backed into the corner and is forced to confront his belief against the Constitution and all that it covers and he immediately reverts to the old line, “Well, the Constitution is a living document and is meant to grow with the times.” Yet, I’ve...

Federal Bench: Yet another judicial nominee seeks to impose the "empathy" standard on the courts. He thinks judges should base rulings on a plaintiff's status, legislate from the bench and amend the Constitution. Indiana federal judge David Hamilton stands poised to be confirmed by the U.S. Senate to assume a seat on the 7th Circuit Court of Appeals serving Illinois, Indiana and Wisconsin. He's a former fundraiser for Acorn and a former leader of the Indiana chapter of the American Civil Liberties Union. He is also another in a series of activist judges who believe the U.S. Constitution is not...

Judiciary: The nominee for a California federal district court is an ACLU activist and another advocate for the empathy standard of jurisprudence. He also has a problem with "America the Beautiful." The nomination of Edward Chen is the latest in a series of nominations of people who have no particular fondness for the traditions of law and justice. These nominees see racism everywhere, and believe the courts should be used as instruments of social justice and not to discern the intent of the Founding Fathers who wrote the U.S. Constitution. They believe their "life experience" should be the final arbiter...

Health Care Reform: Failure to buy health insurance in the just-passed health care bill could get you five years in jail with a $250,000 fine. How can violating a law that's unconstitutional be a felony? The passage last Saturday night of the House health care measure by a fragile 220-215 margin may well prove to be a Pyrrhic victory. In polls, townhall meetings and tea parties, Americans have shown they don't want a "reform" that costs a staggering $1.2 trillion yet fails to meet the left's desire of insuring all the uninsured. And they certainly don't want a bill that...

Health Reform: House Majority Leader Steny Hoyer says it's constitutional to mandate insurance coverage. Congress, he insists, has "broad authority" to make us buy things to provide for the "general welfare." Democrats' Alice In Wonderland interpretation of what they consider to be a "living Constitution," where words mean what they say they mean based on political considerations, gets more bizarre by the minute. (snip) We've been down this road before. In 1994, Hillary Clinton's secretive health care task force was trying to nationalize health care. "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of...