How elastic can the Constitution be?

By William C. Duncan With serendipitous timing, this week the online journal Public Discourse published an excellent article by Professor Steven Smith, a law professor at the University of San Diego. In the article, Professor Smith notes that while during the middle period of the Roman Empire, “the outward forms of the ancient republican constitution were largely preserved … these forms were a mere façade.” He quoted Edward Gibbon’s observation that what was left was the “image of liberty.” The timing of the article is striking because this week a…

The Mero Moment: Kim Davis — September 17, 2015

By now you’ve probably heard of Kim Davis, the county clerk from Kentucky who was sent to jail for not issuing marriage licenses to same-sex couples. And, by now, you, like most Americans, are a little confused about the case. On the one hand, it feels an awful lot like a religious bigot defying justice and acting the martyr. And, on the other hand, it feels an awful lot like political correctness run amok in the life of an otherwise innocent person. I can tell you that it’s probably more…

On Constitution Day 2015, Hatch Speaks on Responsible Governing [UPH Wire]

On Constitution Day 2015, Hatch Speaks on Responsible Governing Washington, D.C.—In honor of the 227th anniversary of the signing of the Constitution, Senator Hatch took to the Senate floor to discuss the vital role the Constitution plays in responsible governing. Hatch has spoken several times about the need to restore function to the Senate to ensure that the institution lives up to its constitutional duties. (Via  YouTube) In his remarks, Hatch quoted James Madison, widely considered the” Father of the Constitution.”                    James Madison called the…

Impale Me Now: The problem with the defeatist position on same-sex marriage

Since the announcement of the most recent Supreme Court decision regarding same-sex marriage, I have encountered innumerable end-time attitudes and statements generated mostly by my LDS family members and friends. For the most part these have included variations around a common theme; they could be epitomized by a recent piece by Paul Mero: “The Samuel Principle and Same-sex Marriage.” Mero writes: It’s time for my pro-marriage friends to invoke the biblical “Samuel Principle.” It’s time to give Americans the “king” they want – even if it means their ruin. The…

The Mero Moment: The Samuel Principle and Same-sex Marriage. July 16, 2015

In the short aftermath of the Supreme Court’s same-sex marriage decision there has emerged three schools of thought about where we go from here. My dear pro-marriage colleagues are reluctant to change anything. They see the Court’s decision as they did the decades-earlier abortion decision. They see the marriage debate as a protracted legal conflict with much left for which to fight. Libertarian ideologues, as they always have, Court or no Court, want government out of marriage – the Court’s decision is just one more opportunity to display their incoherent…

Some Thoughts on Why King v. Burwell Is Wrong, But Also, Maybe, Right

Occasionally, I’ll be sitting in church, and I’ll hear someone start dissecting the Bible like a piece of legislation: “Well, if Jesus meant ___, he wouldn’t have said ___, because then ___ would be superfluous.”  Or some similar thing. As a lawyer, I understand this impulse — and do my very best to resist it.  I think there is very little, if any, good that comes of trying to interpret scripture according to formalistic rules — rules that I can pretty guarantee that none of Moses, Isaiah, Jesus, Peter, or Paul…

Supreme Court chooses rule of power over rule of law

The U.S. Supreme Court had an opportunity today to reinforce that America is a nation governed by laws, not by powerful men and women. Sadly, it chose to abdicate that principle in favor of legal sophistry. In the court’s other major ruling on the ACA, NFIB v. Sebelius, the court stated clearly it does not have the expertise to make judgments regarding public policy – but the King v. Burwell ruling relies wholly on judgments regarding public policy to justify its conclusion that the plain language of Obamacare cannot mean…

What Could Happen with Same Sex Marriage at the Court?

The Supreme Court will likely render its opinion in Obergefell v. Hodges on Monday, June 29. The Court will answer two questions, commonly referred to as the marriage question and the recognition question: (1) does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and (2) does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? There are a few possible outcomes (remember, the Sixth…

Midday Commentary on hours-old News — June 25, 2015

Pretty big news out of SCOTUS this morning as they perform some pretty amazing linguistic gymnastics (and we know all about linguistic gymnastics around here) to come up with a 6-3 ruling in favor of the ACA allowing the funding of a federally run exchange. Which, of course, flies in the face of a plain reading of the law, but who reads plain language anymore, really? Justice Scalia, who can be a bit of a — what’s the technical term … dill hole? — still knows how to write a wicked…

In-depth analysis of Tuesday’s oral arguments at the Supreme Court

By William C. Duncan What did we learn from Tuesday’s U.S. Supreme Court oral arguments in the same-sex marriage cases? A caveat is necessary before answering that question. The answer most people are looking for when they listen to or read the arguments is: What will the court do? When the justices release their decision will they either (1) allow the states to retain the virtually universal understanding of marriage as a union of husband and wife which protects children’s entitlement to a married mother and father or (2) order…