The Fallacy of Cheap Rights

There is currently a fashionable idea that a right extends only to the point where it becomes a minor inconvenience and no farther. You see this type of thinking quite a bit these days.  But here’s an example, taken from a piece written by Prof. Gedicks (of BYU Law School, no less): The First Amendment’s establishment clause prevents the government from requiring people to bear the burden of religions to which they do not belong and whose teachings they do not practice. To be sure, the U.S. government should accommodate religious beliefs…

Should We Amend the Constitution to Guarantee a Right to Vote?

Breathe a collective sigh of relief, America. We’ve made it through another election season, and, somehow our little-d democracy (or constitutional compound republic, depending on your perspective) remains intact despite rampant warnings of voter fraud and voter suppression. We survived. And we did it even though our Constitution doesn’t even contain a right to vote. Wait . . . what? Yes, you read that right — the United States Constitution doesn’t expressly guarantee the right to vote. Now, before you get too up in arms, realized that the Constitution does have provisions dealing…

Has the Supreme Court Failed America?

Erwin Chemerinsky, one of America’s leading commentators on constitutional law, recently put out an Op-Ed piece in which he concluded, reluctantly, that the US Supreme Court had failed America: It’s time to say it: The Supreme Court has largely failed throughout American history at its most important tasks and at the most important times. [. . .] The Supreme Court exists, above all, to enforce the Constitution against the will of the majority. The very existence of the Constitution, a document made intentionally quite difficult to change, reflects the desire…

Judicial Retention: Utah’s Forgotten Elections

Folks, for those of you (like me) who haven’t yet voted, either because you want to stick it out to the bitter end or you just like going to the polls on election day, let me raise an important issue that gets almost no publicity — judicial retention. In Utah, our judges are appointed to their positions.  But to remain in their positions, they must be re-elected in periodic, unopposed retention elections. It’s in the Utah Constitution: Article VIII, Section 9.   [Judicial retention elections.] Each appointee to a court of record…

Amendment 3 and the Legal Competency Police

These days it seems like a small army of political commentators puts an inordinate amount of effort into trolling the Utah District Court and Tenth Circuit Court of Appeals filings looking for more evidence supporting a predetermined conclusion — that the Utah Attorney General’s Office is incompetent and has a bad Amendment 3 case. This is fine.  Everyone’s entitled to assess the arguments.  And this is an issue with wide reaching effects. But an assessment of the arguments doesn’t seem to really be what this group is looking for. Each time the…

An Analysis of the Libertas Common Core Lawsuit

Lawsuits should never be a first resort. Unfortunately, all too often lawsuits are the only way policy makers listen. Whether it’s civil rights, healthcare, the environment, or education standards, lawsuits are a part of our national political system, turning to courts to address issues that we have been unable to resolve by political action. Enter the Libertas Institute, a local libertarian leaning non-profit, which just last week filed a lawsuit challenging the process by which Common Core educational standards were adopted by the Utah State Board of Education (USBE) in…

What to Make of All the Obamacare Litigation?

If Helen of Troy’s was the face that launched 1000 ships, is Obamacare the law that launches 1000 lawsuits? Thus far we’ve seen litigation over the constitutionality of the individual mandate, mandatory Medicaid expansion, birth control coverage requirements, and now the legality of subsidies provided to people who purchased insurance through Healthcare.gov — the federally-operated exchange.  And, if John Boehner can be believed, we’re likely about to see further litigation on the issue of selective executive enforcement. For lawyers, it’s the gift that keeps on giving! All kidding aside, the…

Hobby Lobby Ruling was Limited Common Sense [Hub Debate]

From a macro perspective, the Hobby Lobby ruling doesn’t do much. The Supreme Court made the decision narrow enough that it only impacts: “Closely held” corporations (while not clearly defined, I would suggest this means private companies – publicly traded companies need not apply). The Affordable Care Act, specifically the contraceptive mandate that was made law therein. The Supreme Court could have gone much further and applied that personhood applies to larger companies with more shareholders, or that religious objections could apply to other things like gay marriage, blood transfusions,…

Uninequality: 10th Circuit Ruling on Same Sex Marriage

The 10th Circuit has sustained the Federal District Court’s overturning of Utah’s same-sex marriage ban.  Here’s a link to the court’s written opinion. In the Court’s words: We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

Failed USBOE Candidate’s Viewpoint Discrimination Claim Fails the Ron Swanson Test

Breck England is complaining about viewpoint discrimination, and he is completely right…and totally wrong.   In the latest strange development in Utah’s political litigation industry, Breck England, an unsuccessful candidate for the Utah State Board of Education (USBOE), has sued the members of the USBOE nominating committee, Governor Herbert, and Lt. Governor Cox for allegedly engaging in discrimination in violation of his constitutional rights (a copy of the complaint is embedded below). The basis for England’s claim is that, during vetting process of state school board candidates, some candidates are favored…