Natural Law, Natural Rights, and American Constitutionalism
“Constitutionalism is descriptive of a complicated concept, deeply embedded in historical experience, which subjects the officials who exercise governmental powers to the limitations of a higher law. Constitutionalism proclaims the desirability of the rule of law as opposed to rule by the arbitrary judgment or mere fiat of public officials … Throughout the literature dealing with modern public law and the foundations of statecraft the central element of the concept of constitutionalism is that in political society government officials are not free to do anything they please in any manner they choose; they are bound to observe both the limitations on power and the procedures which are set out in the supreme, constitutional law of the community. It may therefore be said that the touchstone of constitutionalism is the concept of limited government under a higher law.”
David Fellman, Constitutionalism
Classical and Medieval Sources of Natural Law
Platonic Philosophy and Natural Law
Aristotle, Natural Law, and The Founders
Cicero and the Natural Law
Aquinas’s Theory of Natural Law
Late Medieval Transformations
The Protestant Reformers and Natural Law
Richard Hooker and Natural Law
Early Modern Roots of Natural Law
Hobbes: Natural Law to Natural Rights
Locke and the Natural Rights Tradition
Natural Law and the Law of the Nations
Montesquieu: Natural Law and Natural Right
Common Law and the Law of Reason
English Radical Whigs: Natural Law and Natural Rights
American Founding and Constitutionalism
Colonial Roots of American Constitutionalism
The Declaration of Independence
The Influence of the Scottish Enlightenment
Constitution-Making in the Founding Era
The Bill of Rights and Natural Rights
Lincoln and the Natural Law Tradition
The Post-Civil War Amendments
Natural Law and the Supreme Court
American Civil Rights Movements
Contemporary Theories of Natural Law
New Natural Law Theory
Critics of the Natural Law Tradition
Machiavelli, Guicciardini, and Reason of State
Enlightenment Critics of Natural Law
Social Darwinsim and Natural Law
Oliver Wendell Holmes, Jr.
Natural Law and Legal Positivism
Supreme Court Sides With Church In A Funding Battle
The Supreme Court appears to side with a church in a funding battle; the case is a reminder of how hard it can be to draw a line between church and state.
NEIL GORSUCH sat silently through much of his first oral argument on April 19th in a constitutional case, a church-state battle over funding for pre-school playgrounds in Missouri. But a string of questions he posed to the state’s lawyer just before the end of the hour-long hearing suggests the 113th justice is sympathetic to Trinity Lutheran Church’s claim that its rights were violated when, in 2012, Missouri rejected its bid for a grant to resurface its day-care centre’s playground with used tire scraps. As our preview of the case noted, Trinity Lutheran’s application for the programme was denied, despite being highly rated, because Missouri’s constitution bars state funds from flowing, directly or indirectly, “in aid of any church, sect or denomination of religion”.
America’s separation of church and state has never been a cinch to define. In Everson v Board of Education, the 1947 case first interpreting the First Amendment rule that “Congress shall make no law respecting an establishment of religion”, a 5-4 majority saw no constitutional problem with a New Jersey law reimbursing parents for transporting their children to school, including Catholic schools. But Everson also cited James Madison and Thomas Jefferson in declaring that the establishment clause means that “[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called”. In tandem with that somewhat mixed message are 39 state constitutions, including Missouri’s, containing explicit bans on funding for religious institutions. The core question in Trinity Lutheran Church v Comer is whether Missouri’s stricter-than-thou separation of church and state goes so far that it violates the other religion clause of the First Amendment: the ban on prohibiting the free exercise of religion.
4 Big Questions About Supreme Court’s New Seperation of Church and State Case
Missouri’s new governor introduced a fresh dynamic into what was set to be the leading religious freedom case argued before the Supreme Court this year, and the first major case that new Justice Neil Gorsuch will hear.
The Supreme Court will hear arguments Wednesday in the case of Trinity Lutheran Church v. Pauley that could determine to what lengths the government may ban public funding for religious affiliated organizations in a state that has one of the most sweeping restrictions.
In a surprise move Thursday, Gov. Eric Greitens, a former Navy SEAL who took office in January, announced that religious organizations can qualify after all for state funds. In doing so, the Republican governor made an indirect reference to the case before the high court this week.
Judicial Tyranny Stolen Sovereignty
Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic. Horowitz is a columnist for Mark Levin’s Conservative Review who writes frequently about constitutional issues. In Stolen Sovereignty he decries “a runaway judicial oligarchy and an unaccountable bureaucratic state.” He is concerned that the Left “has irrevocably co-opted [the courts and bureaucracy] into serving as conduits for their radical and revolutionary ideas—to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.” These words may have seemed like hyperbole at the time, but the federal courts’ implacable opposition to President Trump’s executive orders on immigration suggest that they were on the mark. In a recent post, I expressed dismay at the judicial resistance to the President’s first executive order on immigration (E.O. 13769). Unelected federal judges blocked the President from fulfilling a campaign promise to the American electorate—without even citing the federal statute that expressly authorizes his action. Some commentators saw the Ninth Circuit’s ludicrous decision as nothing short of a judicial coup d’état. Rather than challenge it in the deadlocked U.S. Supreme Court, on March 6 President Trump issued a revised executive order (E.O. 13780), attempting to correct the alleged defects. Incredibly, the revised order has met with even stronger judicial resistance, spurring multiple lawsuits and injunctions: a limited temporary restraining order issued by Judge William Conley of the Western District of Wisconsin, a partial injunction issued by Judge Theodore Chuang in Maryland, and a nationwide injunction issued by Judge Derrick Watson in Hawaii. (All three were appointed by President Obama.)
Is the U.S. Supreme Court a court?
On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate. Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules. Let’s unpack that a bit. The modern Supreme Court’s job is to take “hard cases.” Hard cases, in this sense, are those in which there are no clear legal answers. And they are inevitable. There will always be some legal questions for which the answers are unclear, and some difficult legal disputes that push the boundaries of established legal understandings. Some legal theorists think that judges effectively depart from their usual role of interpreters of the law in such circumstances and simply exercise discretion. The legal philosopher Ronald Dworkin famously argued that even in those hard cases, there was a right answer that could be determined by properly investigating the content and implications of the principles embedded in the law. What is striking about the Supreme Court is that it specializes in hard cases. This is why political scientists love the Supreme Court. Given a steady diet of hard cases, the justices display lots of behavior that looks like the exercise of policy-driven discretion. (Of course, the justices also benefit from occupying the court of last resort in the United States, which means that even apparently easy cases can be made hard by rendering the established legal rules no longer operative.) –
Department Of Education Sued Over Cover Up Of Increasing Student Loan Failure
Washington, DC) – Judicial Watch announced that it today filed a Freedom of Information (FOIA) lawsuit in the U.S. District Court for the District of Columbia against the U.S. Department of Education seeking records relating to then Obama administration’s “coding error” that resulted in masking that most borrowers are failing to pay down their federally-subsidized student loans (Judicial Watch v. U.S. Department of Education (No. 1:17-cv-00501)). The Obama administration’s Obamacare legislation also included provisions that resulted in the federal takeover of the student loan industry, which radically increased taxpayer subsidies of higher education loans. The Education Department acknowledged in early January that the coding error resulted in wildly inaccurate College Scorecard repayment rates. The significance is substantial, according to The Wall Street Journal: The department played down the mistake, but the new average three-year repayment rate has declined by 20 percentage points to 46%. This is huge. It means that fewer than half of undergraduate borrowers at the average college are paying down their debt. *** Last month the Government Accountability Office (GAO) projected that loan forgiveness for borrowers enrolled in the plans could cost upward of $108 billion. GAO rapped the department for underestimating the costs due to “insufficient quality controls” and “unreasonable assumptions.” It’s possible the putative “coding error” is connected to this ill-management. As the Journal notes, “The other scandal is that the Obama Administration used the inflated Scorecard repayment data as a pretext to single out for-profit colleges for punitive regulation.” Judicial Watch filed today’s lawsuit after the department failed to respond to a January 29, 2017, FOIA request for:
IRS Gives “After School Satan Club” Tax Exemption Status
While the Internal Revenue Service (IRS) makes conservative groups wait years for tax-exempt status an “After School Satan Club” launched to hinder Christian-based counterparts got its nonprofit ranking in just ten days, records obtained by Judicial Watch show. The classification is offered to charitable, religious and educational organizations that operate as nonprofits. Under the Obama administration IRS political appointees illegally targeted conservative groups, either making them wait up to seven years for tax-exempt status or denying their application altogether. Judicial Watch uncovered that scandal and has obtained piles of government records showing how the IRS illegally colluded with another federal agency to single out groups with conservative-sounding terms such as patriot and Tea Party in their titles when applying for tax-exempt status. In the meantime, leftist groups like the Satan club got fast tracked. The principle goal of establishing the Satan clubs in public schools throughout Washington State appears to be to counter existing enterprises operated by a Christian-based group. Documents obtained by Judicial Watch include the process of establishing an after-school Satan club at Point Defiance Elementary in Tacoma. The entity behind the club is a nonprofit called Reason Alliance, which is based in Somerville, Massachusetts, and operates in Washington State as the Satanic Temple of Seattle. Its director, Lilith X. Starr, established the Point Defiance Elementary Satanic club, the records show. In its application the club states that its purpose is “character development” and that adult instructors are vetted by the Satanic Temple’s “Executive Ministry.” Children ages 5-12 will develop basic critical reasoning, character qualities, problem solving and creative expression, according to the Satanic Temple filings included in the documents. The club logo is a pencil with devil’s horns. Records obtained by Judicial Watch from the Treasury Department show that the Satanic cult applied for tax-exempt status on October 21, 2014 and received it on October 31, 2014.