Archive for the 'Constitutional Law' Category

Okay, this is definitely “old news” at this point, but I got to thinking about the fact that President Obama re-took the oath of office after switching some of the words around at his inauguration. The report linked concludes with this quote from White House counsel Greg Craig:

We believe that the oath of office was administered effectively and that the president was sworn in appropriately yesterday. But the oath appears in the Constitution itself . . . [a]nd out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time.

Because Democratic liberalism tends to eschew inconvenient constitutional boundaries (such as the actual words of the Constitution), it seems almost ironic that President Obama would be so concerned about the precise order of the words in the Constitution that he would re-take the oath the next day, just to make sure he got it right. Nonetheless, I think this will probably be one of the president’s only homages to textual originalism. The ever-increasing talk of vacancies on the Supreme Court have me concerned that four years from now, the Court will contain one or two more constitutional mavericks.

Today the California Supreme Court is hearing arguments about the contitutionality of the controversial Proposition 8 that was passed in November, amending the California constitution to prohibit homosexual marriage. Based on the things I have read and heard, it seems that many people are having a hard time understanding that the actual issue before the court is not the merits of such an amendment, but whether an amendment of this kind can be made by a simple majority vote. In other words, the California Supreme Court will not (I should say “should not”) be deciding whether or not homosexual marriage is a good thing, but whether the state constitution allows such amendments to be made the way Proposition 8 was. In short, this is a civil procedure case.

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Roe v. Wade and its progeny represent some of the most controversial Constitutional case law in American history. Recently, the Supreme Court has indicated a slight retreat from its virtual “abortion on demand” precedent over the past thirty five years, drawing accusations of judicial activism or legislation from the bench. Whether these accusations are true or not is irrelevant; if the Court is guilty of legislating from the bench, no case is a clearer example of such behavior than Roe itself.

The Roe majority based its holding on several morally bankrupt positions: the rejection of prenatal personhood, the ignoring of any interests of the unborn, and the arbitrary dictate that an individual’s bodily autonomy is a superior interest to a state’s interest in protecting innocent life.

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Students of Constitutional law spend a great deal of time learning about “levels of review” when studying the Supreme Court’s substantive due process jurisprudence. Particularly in the context of the Fourteenth and Fifth Amendments, the Court applies this hierarchy of levels when balancing state interests against individual liberties. However, a cursory review of what these “levels” are and how they are used indicates that the entire system is merely a tool to facilitate the Court’s long-held results-oriented approach to deciding social issues.

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There is a principle in internet discussion called “Godwin’s Law.” It states: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.” Sometimes, however, it doesn’t even take that long.

The 2nd Appellate Court in Los Angeles recently handed down a decision that required the home-schooled children in at least one family to be enrolled in a government school or a government-approved private school. Of course, the reasons are fairly transparent. The only reason for government to become this involved in education is to have a say in what children are taught. WorldNetDaily points out that the court’s ruling sounds similar to education officials in Germany, whose mandatory government education laws have been on the books since Hitler put them there in 1938 in order to indoctrinate Germany’s children with Nazi ideals.

In this case, the indoctrination taking place isn’t as simple as Nazism; it’s the new liberal fascism. California Senate Bill 777 was passed by the legislature several months ago and it requires government schools to offer only positive portrayals of homosexuality, bisexuality, transsexuality, and such-like. This makes California the most “progressive” state to date, mandating that in government schools, any opinion is acceptable as long as it isn’t biblical Christianity.

Against this backdrop, the court’s reasoning behind the ruling that homeschool children must be given a government-provided or government-regulated education is particularly startling:

[K]eeping the children at home deprived them of situations where (1) they could interact with people outside the family, (2) there are people who could provide help if something is amiss in the children’s lives, and (3) they could develop emotionally in a broader world than the parents’ ‘cloistered’ setting.

Point #1 is clearly a red herring since it is well established that homeschool children generally are more socially mature than their government schooled counterparts. Point #2 is also curious and I would like to see the full opinion to see what the court was talking about. But point #3 really strikes at the heart of the issue.

“[T]hey could develop emotionally in a broader world than the parents’ ‘cloistered’ setting.” The language implies that children should develop emotionally in a setting other than what their parents are providing. Given the backdrop of SB777, the fact that the children’s father said, “I don’t want to put my children in a public school system that teaches ideologies I don’t believe in,” and the fact that the court held that “sincerely held religious beliefs” don’t extend the 1st Amendment to cover the education of children, it’s pretty clear what the court wants the children to learn.