Posts tagged with: Constitutional law

The U.S. Supreme Court decided today that it is unconstitutional for a state to declare that marriage is only between one man and one woman. There is nothing in the Constitution that requires states to redefine marriage, but the Court decided that the Due Process Clause prohibits defining marriage as it has been defined for millennia just as it found a right to an abortion in the same Due Process Clause over 40 years ago.

The role of the Court is to rule on the merits of a case based on prior case law and the Constitution. The Court is not to legislate or find ways to make something legal that they personally believe is better for society. When the Court removes an issue from the realm of democracy and imposes its will based on what it perceives as the best public policy, there is a natural resentment that occurs from the people and states opposed to the ruling, particularly when such a ruling has no real basis in constitutional law.

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” writes Chief Justice John Roberts in his dissent. “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”


It is commonplace in Christian circles, whether Orthodox, Roman Catholic, or Protestant, to appeal in public discourse to the inviolable good of human dignity.

Today at Ethika Politika, I seek to answer the question, “What does human dignity look like in real life?” It is fine to talk about it in the abstract, but what does it look like on the job or as a parent?

I write,

Real, flesh-and-blood human persons do not evoke our respect as naturally as an abstract treatise on human dignity might imply. I am reminded of one Peanuts comic in which Linus shouts, “I love mankind … it’s people I can’t stand!” People, as a general rule, all tend toward some form of nerdery, some weird little obsession — such as sports, video games, philosophy, music, or literature — or at least some personal (usually minor) neurosis, like an aversion to a certain smell or fear of spiders or always having to have the last word.

And, frankly, Linus is right, even if he overstates his case. It is a common if not essential feature of personhood that any given person, with enough exposure, will grow annoying to our unsanctified hearts.


Royal Coat of Arms of the NetherlandsDrawing on some themes I explore about the role of the church in providing material assistance in Get Your Hands Dirty, today at Political Theology Today I look at the first parliamentary speech of the new Dutch King Willem-Alexander.

In “The Dutch King’s Speech,” I argue that the largely ceremonial and even constitutionally-limited monarchy has something to offer modern democratic polities, in that it provides a forum for public leadership that is not directly dependent on popular electoral support. In the Dutch case, the king broached the largely unpopular subject of fundamentally reforming the social democratic welfare state.

This is in rather sharp contrast to the social witness of the mainline of Dutch church leaders, at least over the last few decades. But the churches, too, have a role in acting as makeweights against democratic majoritarian tyranny.

Writing in Public Discourse, Acton Research Director Samuel Gregg notes that while Constitutional law has often been used to shape economies, there are limits to the law’s ability to influence economic culture:

The Supreme Court’s decision to uphold Obamacare sharply reminds us of constitutional law’s significance for economic life. NFIB v. Sebelius, however, is not the first or even the most controversial effort to use constitutional law to shape economies. Both America and European countries have a decades-long history of doing so.

Throughout America, for instance, amendments to state constitutions have been used to cement right-to-work laws in place. Across the Atlantic, European nations such as Germany and Spain have written public debt limits into their constitutions. In 2010, the Nobel Prize economist James Buchanan called for what he described as the “constitutionalization” of money. Ongoing failures to prevent the politicization of monetary policy meant, Buchanan argued, that America’s constitution required amending to bestow genuine independence upon a monetary authority. In Buchanan’s words: “Something analogous to the independent judiciary, under the Supreme Court, seems required—a monetary authority that is independent of politics, but which remains itself bound by the parameters set out in the constitution itself.”

Read more . . .

Legal scholar Orin Kerr provides excerpts from the concurring opinion today in Hettinga v. United States, in which Judge Janice Rogers Brown (joined by Judge Sentelle) argues that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations: