How can a free society reconcile the often competing values of democracy, religious liberty and the separation of church and state? This challenge was vividly illustrated by the recent controversy over California's Proposition 8, which forbade same-sex marriage.

In a democracy, the majority of citizens ordinarily may enact whatever laws...

On Sunday, September 21, the New York Times published an editorial ("The Candidates and the Court") predicting that, if elected president, Barack Obama will appoint "moderate" or "centrist" justices, like Stephen Breyer, rather than "all-out liberals, like William Brennan or Thurgood Marshall." The Times argued this is a good...

How does a democracy deal with lies? In the last several national elections, political operatives, exemplified by the Swift Boaters in 2004, have employed a deeply cynical and highly effective strategy to distort and manipulate public discourse. This strategy poses a serious threat to the very foundations of democratic self-governance.

Karl Rove: We need a babe.
John McCain: A what?
KR: A babe. You know, a broad.
George Bush: I been abroad.
KR: Not that kind of "a broad," George.
GB: Oh.
JM: What kind, then? You mean a woman?
KR: Yes, old...

According to various polls, as many as 25% of the voters who say they support Hillary Clinton are unsure whether they will support Barack Obama. Hillary Clinton's speech at the Democratic Convention no doubt persuaded many of those voters to support Obama. But some will continue to equivocate. What can...

In their evangelical extravaganza this week with Pastor Rick Warren, John McCain and Barack Obama both publicly proclaimed their faith in Jesus. McCain eagerly announced that his belief in Jesus means that "I'm saved and forgiven," adding that "our faith encompasses not just the United States of America, but the...

Over the past year, Barack Obama has called emphatically for "change" in the United States, and on a range of issues he has offered (especially on his website) detailed analyses of the specific policies he would pursue as president. But many Americans still need to hear what would be the...

What is it that we Americans stand for? What is it about our nation that makes us most proud? What is it that makes other nations of the world respect and admire and emulate us? It is our unparalleled commitment to personal freedom and to the dignity of the individual....

John McCain's May 6 statement on the role of judges in our constitutional system might very well qualify as one of the most ignorant statements ever made by a presidential candidate on this most important subject.

At one point, McCain complained that sitting judges and justices systematically "abuse" the federal...

Last week, the State of California avoided a possible constitutional confrontation over its requirement that all public employees sign an oath affirming that they will "support and defend" the United States and California Constitutions "against all enemies, foreign and domestic."

A mathematics teacher named Marianne Kearney-Brown, who...

Why is everyone so upset with Bill Clinton? Sure, he made a few stridently negative comments about Barack Obama. Sure, some of those comments were half-truths, or worse. But this is politics. What's the big deal? Doesn't this come with the territory?

Historically, American presidential politics have been riddled...

In 1991, when Barack Obama was a third-year student at the Harvard Law School, I was serving as Dean of the University of Chicago Law School. I had heard through the grapevine that there was an extraordinarily talented African-American student at Harvard who was president of the Harvard Law Review...

Mitt Romney's recent reflections on the role of religion in American politics implicitly called to mind a disturbingly distorted version of history that has become part of the conventional wisdom of American politics in recent years.

That version of history suggests that the Founders intended to create a "Christian Nation,"...

In an op-ed in the New York Times on November 5, ("Uncle Sam on the Line"), former Attorney General John Ashcroft offers a seemingly reasonable case for Congress to grant immunity to the major telecommunications carriers accused of cooperating in allegedly unlawful government surveillance programs. In short, Ashcroft argues...

In previous posts in this "Supreme Imbalance" series, I examined and rejected three "conservative" approaches to constitutional law - judicial passivism, originalism, and conservative activism.

This brings me to the fourth approach I have discussed, which has variously been called "liberalism," or "judicial activism," or "not strict constructionism." In...

In earlier posts in this "Supreme Imbalance" series, I identified four approaches to constitutional interpretation - judicial passivism, originalism, conservative activism, and liberalism. In my last post, I considered and rejected one of those approaches - judicial passivism. In this post, I will evaluate (and reject) originalism and conservative activism.

In three prior "Supreme Imbalance" posts, I identified four distinct approaches to constitutional interpretation -- judicial passivism, originalism, conservative activism, and liberalism. I will next assess the relative wisdom of each of these approaches, beginning in this post with judicial passivism.

Judicial passivism: the approach that says courts should...

In an earlier post ("Supreme Imbalance: Of Liberals and Conservatives"), I argued that there are four types of Justices: liberals, passivists, originalists, and conservative activists. In this piece, I will illustrate more clearly what I mean by "conservative activism."

A good example is the approach adopted by Justices Rehnquist,...

In an earlier post ("Supreme Imbalance"), I explained that we currently have an extraordinarily "conservative" Supreme Court. In this post, I will explain what I mean by "liberal" and "conservative" in the context of the current Court.

When people think of a "liberal" Justice, they are usually thinking of...

We are now several weeks into the Supreme Court's 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconsed, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any...