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The Bombings and the Claims of Citizenship

Hadley Arkes has a new essay at The Catholic Thing that we've reposted here .

Posted on on April 23, 2013

The Supreme Court Does DOMA

Last Wednesday, the Supreme Court heard the second day of oral arguments on the matter of marriage, this one focused on the Defense of Marriage Act of 1996 (DOMA). The day before, the conservative judges seemed to be tipped to the side of preserving marriage as we know it. But the justices flew into a cloud of all of the abstractions and clichés accumulated over the years. By the end, we found the spectacle of even conservative judges acquiescing in the notion that it was somehow illegitimate for the laws to cast "moral" judgments. The exchanges pointed no clear outcome, but they did reveal a legal discourse in deep disarray. Hadley Arkes tries here to sort out the strands of argument.

Posted on on March 28, 2013

Hadley Arkes Responds to Michael McConnell in the Wall St. Journal

Yesterday, Hadley Arkes responded with a letter to the editor to Michael McConnell's recent editorial in the Wall St. Journal on the Defense of Marriage Act ("The Constitution and Same-Sex Marriage," March 22). Here is the full text.

Posted on on March 27, 2013

Hadley Arkes's Notes on the Argument Today in Hollingsworth v. Perry.

Hadley Arkes was at the Supreme Court today for the oral argument in the first of the two cases on marriage, Hollingsworth v. Perry, on Proposition 8 in California. He reports that the defenders of marriage left the courtroom today "decorously upbeat," with the sense that things were tipped to their side.  Hadley sets down here his impressions and his commentary on some of the arguments made—and missed.

Posted on on March 26, 2013

Flawed Arguments in the Marriage Cases

John C. Eastman responds to Michael McConnell's recent op-ed in the pages of the Wall Street Journal (“The Constitution and Same Sex Marriage," March 22, 2013), in which McConnell claimed that the Court should avoid the tough constitutional questions by rendering judgment on narrow grounds, jurisdictional in the Proposition 8 case, and a clever federalism argument in the DOMA case.

Posted on on March 25, 2013

Waiting for the Court: The Coming Arguments on Marriage

The Supreme Court, next week, will allot two days to the oral arguments in the cases on marriage. In the run-up to those arguments, some conservative writers have offered theories of federalism that work to reject the Defense of Marriage Act (DOMA), at issue in one of the cases. Hadley Arkes, Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence, warns about theories so refined that they sail serenely past the defense of marriage and the importance of marriage in the laws. Arkes was one of the architects of DOMA and led the hearings over the bill in the House Committee on the Judiciary. He seeks to remind readers here of the purpose that brought forth DOMA and the reasoning that supported that Act. In symposium fashion, we have invited responses to this piece from our John Marshall Fellows and will post their pieces as they come in. Professor Arkes will respond to those pieces once they are published.

Posted on on March 24, 2013

DOMA and the Logic of Federalism

Ilan Wurman, a 2012 Claremont Institute John Marshall Fellow, writes on the DOMA case, agreeing in part and dissenting in part from Professor Arkes' "Waiting for the Court: The Coming Arguments on Marriage."

Posted on on March 23, 2013

The Surveillance of Terrorists and their Lawyers: The Supreme Court Does a Trick-of-the-Eye

Just two weeks ago the Supreme Court refused to grant relief to a group of activist lawyers who had come forth to defend men detained as combatants or alleged terrorists. The lawyers sought to fend off the surveillance that could interfere, they claimed, with their freedom to defend their clients. In a narrow decision, in a tightly divided Court, the conservative judges denied that the lawyers had standing to launch the suit. Hadley Arkes thinks the majority got it emphatically right, but pulled off a trick-of-the eye: The reasons that the lawyers were truly at risk, and the reasons that truly justified the judgment of the Court, were left unexpressed.

Posted on on March 18, 2013

Claremont Institute's Center for Constitutional Jurisprudence Files Brief in Defense of Marriage Act Case

Highlighting the unethical conduct by lawyers at the Department of Justice for their deliberate attempts to undermine the defense of the Defense of Marriage Act, the Claremont Institute's Center for Constitutional Jurisprudence filed an important brief with the Supreme Court in the case of United States v. Windsor, strongly supporting the legal ability of the House of Representatives to defend the constitutionality of the statute when the President and Attorney General refused to do so.

Posted on on March 4, 2013

Has Obama Rediscovered Lincoln—on Countering the Courts?

Barack Obama persistently invokes Lincoln, even as he firmly rejects the moral “truth” of the Declaration of Independence, the truth that Lincoln took as the moral ground of his political mission. But now, without quite realizing it, the Obama Administration has backed into Lincoln’s teaching—on limiting the reach of the courts. As it happens the Democrats have been following Lincoln’s teaching for years, while Republicans—ever in high dudgeon over “judicial activism"—profess not to understand Lincoln’s position. What the Republicans regard as unthinkable, the Democrats find not only practicable, but enduringly useful. Hadley Arkes recalls here the understanding Lincoln put forth to limit the holding of the Supreme Court in the Dred Scott case. It is time for the conservatives to learn anew the lessons taught by the first Republican president on the limits that constrain the courts as well as the political branches.

Posted on on February 14, 2013

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