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Recent Items
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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." |
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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. |
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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. |
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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. |
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Claremont Institute Center for Constitutional Jurisprudence Supreme Court Brief on Proposition 8 by John Eastman
The Center for Constitutional Jurisprudence filed a "friend of the court" brief in the Supreme Court, defending Proposition 8, the initiative approved in 2008 by more than 7 million Californians that restored the definition of marriage as an institution of one man and one woman. The Center focused on the right of the initiative's proponents to defend the initiative when the Attorney General of the State refused to do so, highlighting the important principle that the people are the ultimate sovereign. It also argued that the Supreme Court's prior recognition that marriage is a fundamental right was rooted in the obviously biological fact that it furthers, for the benefit of society, the procreation and rearing of children and is therefore, as the Court noted, "fundamental to our very existence and survival." The brief, authored by the Center's Chairman, John Eastman, and joined by former U.S. Attorney General Edwin Meese, III,
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Natural Law and Constitutional Law: The Rosenkranz Debate at the Federalist Society - Hadley Arkes and Alex Kozinski
The annual Lawyers' Meeting of the Federalist Society in Washington features a debate at lunch on Saturday (this year, November 17th). The event this year featured a debate/conversation on natural law with Hadley Arkes and Chief Judge Alex Kozinski of the Ninth federal circuit. It was a spirited and engaging exchange between friends, and it ended up drawing a larger audience than the audience drawn the year before to hear Laurence Tribe debating Paul Clement over Obamacare. But we were taken with the remarkably warm reception as Arkes made the case anew for natural law in an audience not exactly primed to be sympathetic to it. We were pleased then by the reports of people who were hearing that case for the first time and coming away with an interest in hearing more. In attendance at the meeting were several young lawyers who had been John Marshall Fellows this past summer, in seminars with Professors Arkes, Uhlmann and Eastman under the Claremont Instit |
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Hadley Arkes and John McGinnis Respond to James Stoner's Essay "Why You Can't Understand the Constitution Without the Common Law."
James Stoner has written a fine essay on the Common Law for the Library of Law & Liberty (“Why You Can’t Understand the Constitution Without the Common Law”). Hadley Arkes was asked to do a commentary. The Common Law is often venerated and cited with the authority of tradition (“whereof the memory of man runneth not to the contrary”). But Hadley Arkes draws out more sharply, with Stoner, the grounding of the Common Law in the Natural Law. Some writs, once venerable, have disappeared, and Arkes urges us to consider anew that the Common Law claims its strength with us still, not because its principles are “traditional” but because they may be compellingly true. (“Peeling Back the Commo |
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Is Religious Freedom A "Natural Right"?
The recent, growing crisis over the mandates from HHS has sparked the most acute sense of danger over “religious freedom.” But on the main moral questions, on abortion, contraception, and the “life issues,” the Catholic Church has cast its argument with the moral reasoning of natural law; it has not appealed to revelation and faith. That sets up a problem not widely noticed: if the government rejects the moral reasoning of the Church, how is it denying “religious freedom”? Hadley Arkes explores the problem of conceiving religious freedom as “natural right.” And as we venture further into the problem, we run up against the question that people seem anxious to avoid: whether judges can explain any longer just how they identify the “religious,” and whether they can avoid casting judgments on the claims to religion that are legitimate or illegitimate, plausible o |
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"Ironies of Compelled Speech: On the Advertising of Cigarettes—and Abortions."
We are waiting, along with everyone else, for the presidential campaign to start touching the issues that run to the core of things. We have been convinced, along with many others, that the current election marks a real turning point for the character of the regime in America, and we have argued in these postings that the question of Obamacare marks the strategic center of that problem. The extension of political control over medicine will bring, among other things, a scheme of rationing that will bar many people from the medical treatment they think necessary to preserve their own lives. In the political economy of Obama, the extension of regulations over business generates a powerful incentive for businesses to buy waivers from the rules by making their contributions, and establishing their connections, to the party in power.&nb |
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Hadley Arkes Talks With Richard Reinsch About Right Reason and Constitutional Law
In a recent interview with Richard Reinsch at the Law and Liberty Forum blog, Hadley Arkes discussed interpreting the Constitution in light of the natural law. Listen and download it here. |
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