• Law & Justice •
June 27, 2005
June 27, 2005
When the U.S. Supreme Court ruled last week that local governments could use economic development as a cause for taking property, most Americans seemed to think that the case had little to do with a threat to their own property–or the property of their churches.
The power of eminent domain allows governments [or governmentally-approved agencies] to take private property for the cause of the common good. Generally, these purposes have been limited to causes like roads, utilities, and similar projects. Now, based on the Court’s decision in the case Kelo et. al. v. City of New London, governments may target private property for taking, claiming, for example, that the government needs additional tax revenue.
This news story explains why the threat may put churches at special risk. “Because all houses of worship are tax-exempt, they will continue to be attractive targets for seizure by revenue-hungry local governments,” said Jared Leland, media and legal counsel of the Becket Fund for Religious Liberty. In any event, the decision also represents a significant expansion of government power.
June 8, 2005
Yesterday marked the fortieth anniversary of the U.S. Supreme Court’s decision in the case, Griswold v. Connecticut, striking down laws prohibiting the sale or use of contraceptives. The Griswold decision set the stage for the court’s disastrous 1973 abortion decision, Roe v. Wade. The most significant problem with the decision was its legal reasoning.
Writing for the majority, Justice William O. Douglas invented a new constitutional theory in his written opinion. He agreed that the Constitution makes no reference to contraceptives, but argued that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Penumbras formed by emanations? Is this legal reasoning or astronomy?
Mark R. Levin, author of Men in Black: How the Supreme Court is Destroying America, explains: “Don’t be embarrassed if you don’t know what emanations from penumbras are. Young lawyers across America had to pull out their dictionaries when reading Griswold for the first time. A penumbra is an astronomical term describing the partial shadow in an eclipse or the edge of a sunspot — and it is another way to describe something unclear or uncertain. ‘Emanation’ is a scientific term for gas made from radioactive decay — it also means ‘an emission.”” So, Justice Douglas found a right to privacy — and thus a constitutionally-protected right to contraceptives — in a penumbra from an emanation from the Fourteenth Amendment. The courts have been finding penumbras ever since, and constitutional interpretation has been turned into legal divination — the equivalent of legal palm reading. Justices determined to find new ‘rights’ within the Constitution simply invent a penumbra from an emanation and, presto, a new constitutional ‘right’ is the law of the land. June 7, 2005 marked four decades of legal disaster. Recovery will not come easily.
LINKS EMANATING FROM THE WEB: Text of the Griswold v. Connecticut decision; text of the Roe v. Wade decision; Mark R. Levin’s article, Death by Privacy, published in National Review . Senate Miniority Leader Harry Reid [D-NV] issued a statement celebrating the decision.
May 24, 2005
May 24, 2005
A group of 14 senators announced a brokered deal on Monday night, effectively taking the so-called “nuclear option” off the table–at least for now. At this point, it is hard to evaluate the “bipartisan agreement” fully, but it is already apparent that this is not good news for most of President Bush’s judicial nominees, and it spells trouble for any nomination to the Supreme Court. According to the agreement [see text], the 14 senators agreed to bring nominees William Pryor, Janice Rogers Brown, and Priscilla Owen to the floor for a vote.
May 21, 2005
Graduation ceremonies for four Brevard County, Florida high schools became the focus of both controversy and court action this past week as a small group of students and parents objected to the site for the ceremonies–a local church facility.
May 4, 2005
The argument is being made today that Christian morality ought to be shut out of the public discourse. As Christians, we must face the fact that we enter a public square which many expect to be purely secular. So what should we do? Dr. Mohler offers five theses for understanding the relationship of Christian morality to public law.
May 3, 2005
Yesterday, Dr. Albert Mohler described three positions held by those who believe there should be no relationship at all between Christian morality and public law. Today, he exposes the three myths upon which all those positions ultimately depend.
April 27, 2005
Associate Justice Ruth Bader Ginsburg of the U.S. Supreme Court delivered an address to The American Society of International Law earlier this month, and it shows just how she, and some of her colleagues, are now willing to use selected foreign court decisions and laws in determining deciding issues of constitutional interpretation in the U.S. She said, “Before taking up the diversity of opinions on this matter, I will state and endeavor to explain my view, which is simply this: If U. S. experience and decisions can be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so we can learn from others now engaged in measuring ordinary laws and executive actions against charters securing basic rights.” Her wording is both instructive and scary. She argues that the U.S. Supreme Court, assigned the task of interpreting the U.S. Constitution, should take into account the decisions and interpretations of foreign courts “engaged in measuring ordinary laws and executive actions against charters securing basic rights.” Her language means that she will give deference to courts in liberal Europe, where “the measuring [of] ordinary laws” has been influenced by treaties, charters, and cultural factors that have nothing to do with the U.S. Constitution. Just consider her argument that, since judges can consult any authorities they may choose, they can consult foreign courts. In her words: “If we can consult those writings, why not the analysis of a question similar to the one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?” We are in big, big trouble. A good response to Justice Ginsburg’s speech is offered by M. Edward Whelan III of the Ethics and Public Policy Center.
April 26, 2005
Unsurprisingly, The Courier-Journal missed the point again. Of course, it wasn’t by accident. There is no way that anyone smart enough to write their lead editorial could be so completely unable to follow a logical argument. In truth, once again they have demonstrated their lack of journalistic integrity. Take this, for example, from today’s editorial page: “Worst of all was the demagoguery of R. Albert Mohler Jr., president of Southern Baptist Theological Seminary. He said that putting more evangelicals in judgeships will lead to more rulings consistent with ‘Christian citizenship.’ ‘We are not asking for persons merely to be moral,’ he said. ‘We want them to be believers in the Lord Jesus Christ.’ It would be hard to articulate a more succinct definition of a theocracy, and that is precisely what this country is not.” Come again? I never even addressed a need for more “evangelical judges” and I did not say that we wanted judges to be believers in the Lord Jesus Christ. I prefaced my remarks by reminding the church that our mission is a Gospel mission, and that we want to see all persons come to know the Lord Jesus Christ. I had not even mentioned judges at that point. Furthermore, I did not suggest that adding more evangelical judges [a phrase I never mentioned] would lead to rulings consistent with Christian citizenship. I did say that Christians should exercise their Christian citizenship in becoming educated and engaged in the judicial confirmation process. A simple look at a transcript of the event will set the record straight.