by One of the many ways the Constitution’s framers showed their collective wisdom was by embedding the rule of law into the very framework of our system of government. Judicial review of popularly enacted laws keeps the majority accountable to underlying constitutional principles. Of course, one person’s core constitutional safeguard is another’s judicial activism run amok. And so, in a range of hot-button “culture war” cases, lower courts have tried to steer clear of the dreaded “judicial activist” label by shifting their analysis from the constitutional principles themselves to the facts through which the principles may be invoked. At times these days, the rule of law looks more like the rule of facts.
Read the full postAuthor Archive for robertvischer
I was out of town last week, so I just now had the chance to sit down and read Perry v. Schwarzenegger. A few initial reactions: First, what were the Prop 8 proponents’ counsel thinking in only putting on two experts, neither of whom strike me as especially strong under Daubert/Kumho Tire? To be clear, I think David Blankenhorn is a very thoughtful writer and effective advocate, but that doesn’t make him a good choice as a testifying expert witness. More broadly, if constitutional litigation is a battle of public policy arguments (and I’m not saying it should be), this one was no contest.
Read the full postAre atheists obliged to explain the universe’s existence or else retreat to agnosticism?
Read the full postThis October, pro-life and pro-choice scholars will gather at Princeton for a conference designed to facilitate a public discourse of “open hearts, open minds, and fair-minded words.”
Read the full postI was disappointed by today’s ruling in CLS v. Martinez, a case that is an important entry in our legal system’s ongoing struggle to navigate through the tricky waters of associational freedom, government “speech,” and religious/moral pluralism. Four quick points about the reasoning employed by Justices Ginsburg (for the majority) and Stevens (concurring):
Read the full postOur own David Opderbeck has posted his new paper, A Critical Realist Theology of Law, Neurobiology, and the Soul. I have read the paper, and it is a wonderful example of a scholar speaking from within a religious tradition — not speaking at a feigned arms length as though a believer could approach his own faith as if it were some sort of zoological specimen. The double trick for David is doing so in a way that is accessible to those outside his tradition, due in significant part to the fact that he takes the object of inquiry (in this case neurobiology) seriously on its own terms. I’m sure he’d welcome comments.
Read the full postLike Bob, I’ve been neglecting the LRE conversation due to recent travels. One particularly fascinating event was a conference in Loppiano, Italy on “The Charismatic Principle in Economic and Civil Life.” After two days of discussion, it’s still a fairly elusive and malleable concept in my mind, though one helpful way to think about the theme is to distinguish it from our tendency to approach social progress and reform from an institutional perspective.
Read the full postOne consequence of the rise of radical Islamic movements is my own temptation to buy into the notion, often promoted by media coverage, that we are faced with a simple choice: embrace secularism or embrace theocracy. If that’s the choice, I’ll opt for secularism, thank you very much. That might explain my own initial “I’m smiling a little inside even though I know I shouldn’t be” reaction to “Everybody Draw Muhammad Day.” I oppose censorship, and I am concerned that threats of violence are inhibiting free speech. At the same time, I need to remember that respect for religion is not a sign of weakness but an act of strength.
Read the full postMaybe we’re getting the religious composition of the Supreme Court all wrong. Maybe, in terms of a Justice’s approach to religion belief and how it matters to a person’s life, all nine are Protestant.
Read the full postYesterday I participated in a roundtable discussion about conscientious objector status in the military. The discussion was convened by the Seventh Day Adventist Church, and so much of the discussion concerned the development of the Adventist teaching on military service (similar to Catholic discussions, there was some tension surrounding the question of whether the teaching had, in fact, “developed”). One thing that stood out to me, though, was the fact that many Adventists today serve as combatants in the military, while many find it incompatible with their faith. As with other issues in other faith traditions, it seems that a religious believer’s church affiliation tells us less about their own decision-making than it might have in past eras.
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