As The Constitution: An Introduction goes to press, we have been busy writing articles – frequently based on material from the book – for publication in on-line journals and popular or scholarly websites. Many of these articles take insights from the book and apply them to today’s hot constitutional issues. (It is striking how so many of today’s constitutional disputes mirror or parallel other famous controversies in our nation’s constitutional history.)
A few recent examples:
* In the rather provocatively entitled Abraham Lincoln and Same-Sex Marriage, published at “The Public Discourse,” I drew some parallels between the structure of the constitutional arguments surrounding today’s hottest constitutional controversy and the remarkably similar structure of the constitutional arguments made with respect to slavery a century and a half ago. In both instances, the question was, first, whether a legal “status” created by state law was binding within the sphere of the federal government’s actions; and, second, whether such a status should be extended throughout the nation as a general constitutional right. Obviously, the substance of the two different claimed legal “statuses” and “rights” is different, but the analogy is interesting and instructive.
* In Religious Freedom, Again: Why the Supreme Court Should Take Up the Bronx Household of Faith Case, published at National Review Online, I discuss the surprisingly recurrent question of whether religious groups – specifically, churches – constitutionally can be excluded from eligibility to rent public school building facilities (on weekends) on the same terms and conditions as community groups of any other nature. The constitutionally correct answer is that religious groups must be treated the same as any other such group – as the Supreme Court has held numerous times. (This specific issue is discussed in Chapter Ten of The Constitution: An Introduction. The general question of religious liberty is treated in Chapter Five, concerning the Bill of Rights; and specific religious freedom controversies are also discussed in Chapters Eight and Nine.) But in a case currently under consideration for review by the U.S. Supreme Court, a lower court has reached a different (and shockingly incorrect) conclusion, in a case that has been lingering in different forms for nearly twenty years. Will the U.S. Supreme Court agree to hear the case? I argued that it should. A decision on whether to take the case is pending.
* I also co-authored an article with Princeton Professor Robert P. George, President Obama’s Dishonest and Unconstitutional De-Authorization, published at “The Public Discourse”. We address President Barack Obama’s puzzling – and troubling – proposed authorization for use of military force against ISIS. The issue reprises the perennial questions surrounding the Constitution’s division of war powers between the President and Congress: Where does Congress’s power “to declare War” leave off and the President’s power as “Commander in Chief” begin? (The question of the Constitution’s division of war powers is addressed in detail in Chapter Three of The Constitution: An Introduction, and recurs in later chapters.)
The wrinkle in President Obama’s proposed authorization is that it would in fact purport to grant a lesser legal authority for the President to wage war than already exists. Further, it would purport to restrict the President’s power as Commander in Chief (both President Obama’s and his successor(s)’) to exercise discretion in military strategy, tactics, and objectives. The article argues that the example of a president seeking to reduce presidential war-waging authority and limit the Commander in Chief power is unprecedented in our nation’s history.