Some constitutional scholars want lawmakers to try anyway.
Let’s imagine someone in the White House talks to an actual lawyer.
I envy my current students. For the first time in four decades, they can look forward to a Supreme Court that will once again protect those rights that are truly fundamental to our society.
In the end, judicial engagement is a modest proposal for those who believe that our Constitution is a good Constitution and
The American Constitution has been called "the most wonderful work ever struck off at a given time by the brain and purpose of man." It was authored by men who had surpassing confidence in the human mind--men who were convinced that people were capable of "establishing good government from reflection and choice," to the end that self-evident truths about human nature, discernible through reason, would be honored in social life.
The author of the Court's opinion in Beach Communications? Justice Clarence Thomas. The call for judicial engagement is ultimately
Against Narrow and Hidebound Originalism: On Peruta v. San Diego and the Right to Armed Self-Defense
The Ninth Circuit's opinion in Peruta discloses the perils of relying upon original expected applications in evaluating the
According to many observers, the Supreme Court is struggling to do its job. It is "diminished," "hobbled," perhaps even "crippled."
We must thoroughly understand the rule of law, we must rehabilitate areas of our jurisprudence that deprive us of lawful rule and we must insist that judges are duty-bound to ensure that the reason in our law is not trumped by mere will.
In my reply to Weiner, I pointed out that proponents of judicial engagement can demonstrate that Tushnet's approach as institutionally
Last month, the Supreme Court heard oral arguments in United States v. Texas, a lawsuit brought by 26 states challenging President Obama's immigration policies. The case deals specifically with the constitutionality of the President's 2014 Deferred Action for Parents of Americans (DAPA) program.
Calls for judges to be constrained by the Constitution's original meaning are entirely proper--and important.
Yes, the First Amendment Protects Panhandling: A Defense of the Supreme Court's 'Free Speech Absolutism'
Americans should not have to beg government officials' permission to speak peacefully to others. Reed ensures that they need not do so. If this be free-speech absolutism, make the most of it.
Bad Faith or Bad Principle? On Chief Justice Roberts, the Affordable Care Act and Judicial Restraint
Judges who draw their power from Article III have a duty to exercise independent judgment in interpreting the meaning of the Constitution and the meaning of subordinate enactments.
It is hardly unusual to find government power in the hands of regulators who have the opportunity and the incentive to use that power solely to benefit themselves. But that doesn't mean that judges should rubber-stamp such arrangements when their constitutionality is challenged in court.
What the Court does in speech cases -- namely, engage in a genuine effort to identify government officials' true ends and assess their propriety -- it can and should do in all constitutional settings.