Making online ‘trolling’ illegal?

New Zealand has passed a law that would punish “harmful digital communication”–harassing, bullying, or indecent internet postings–by up to two years in prison, plus a $50,000 (NZ) fine.  It’s being described as a law against trolling.  It passed parliament by a margin of 116 to 5. [Read more…]

The “free exercise” of religion

Justice Kennedy, in his opinion establishing gay marriage, did affirm the right of religious people to disagree with same sex unions.  But the dissenting justices warned that this ruling could cause conflicts with religious liberty.  The Constitution protects not just religious beliefs privately held, they observe, but the “free exercise” of religion.  That is, what religious people do because of their religion.

The words of these opinions are likely to be parsed closely in the days to come, and the nature of religious liberty in this country is likely to be determined by legal wrangles about what the words “free exercise” mean.  [Read more…]

Gay marriage & civil liberties in Canada

Gay marriage won’t affect anyone else but the same-sex couples who now can get married, we are told.  It certainly won’t have an impact on anyone’s civil liberties.  Well, it has in Canada.  So says Dawn Stefanowicz, writing for the Witherspoon Institute. [Read more…]

Supreme Court can’t tell what “legislature” means

Lost in the tumultuous week of Supreme Court rulings over Obamacare and gay marriage was another odd ruling.  To combat gerrymandering, the people of Arizona passed a referendum that would take away the state legislature’s power to draw electoral boundaries and give it instead to a non-partisan commission.  That sounds like a good outcome, since gerrymandering–drawing districts to protect the incumbents–is a plague on democracy.  The problem is, the Constitution explicitly, in so many words, gives that power to the “legislature.”

But not wanting the Constitution to get in the way of their favored policies, the court ruled in favor of the commission.  George Will tells the tale and recounts Chief Justice Robert’s vigorous–if surprising, given his Obamacare ruling–dissent on the necessity of attending to the language of the Constitution. [Read more…]

The right to dignity

To find a right to abortion in the Constitution, the Supreme Court justices in Roe v. Wade construed from the text a “right to privacy.”  To find a right to gay marriage in the Constitution, Justice Kennedy, with the concurrence of the majority, has construed a “right to dignity.”

Law professor Jonathan Turley, who supports gay marriage, said that the judges could very well have ruled to that effect by invoking the equal protection clause of the 14th Amendment, as lower courts have done.  But instead it invokes the section on “due process” and asserts this new right to “dignity.”  Prof. Turley, who shows how Justice Kennedy has been building up to this notion in a number of his other rulings, is worried about this new legal doctrine, saying that it opens up all kinds of legal and civil liberty cans of worms. [Read more…]

The Declaration of Independence and natural law

Legal scholar Randy Barnett offer a fascinating section by section reading of the Declaration of Independence, which he says succinctly states the political theory of the American founding.  He summarizes it this way:

  • The rights of individuals do not originate with any government, but pre-exist its formation.
  • The protection of these rights is both the purpose and first duty of government.
  • Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition.
  • At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.

But I’d like to draw your attention to his exposition of the first paragraph and his explanation of “The Laws of Nature and of Nature’s God.”  In quoting a clergyman of the time, he gives a helpful explanation of what we mean by that much-misunderstood concept of “natural law,” as well as showing how that was a fundamental assumption of the American founders. [Read more…]