Judges should be unafraid to review government actions

By David B. Rivkin Jr. and Elizabeth Price Foley

For at least half a century, judicial restraint has been the clarion call of the conservative legal movement. After the Warren Court era, Roe v. Wade, and very nearly a “right” to welfare benefits, it was not surprising that conservatives would seek to rein in judicial self-aggrandizement.

The principal conservative response was to promote judicial deference: Judges should resist the temptation to legislate from the bench and “defer” to the political branches. Unfortunately, time has shown that this response was too blunt. Particularly in constitutional cases, judicial deference has led to a steady expansion of government power. This, in turn, has undermined the delicate constitutional architecture, which calls for a federal government of limited and enumerated powers.

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By David B. Rivkin and Lee A. Casey

The unfolding IRS scandal is a symptom, not the disease.For decades, campaign-finance reform zealots have sought to limit core political speech through spending limits and disclosure requirements. More recently, they have claimed that it is wrong and dangerous for tax-exempt entities to engage in political speech.

The Obama administration shares these views, especially when conservative, small-government organizations are involved, and the IRS clearly got the message. While the agency must be investigated and reformed, the ultimate cure for these abuses is to unshackle political speech by all groups, including tax-exempt ones, from arbitrary and unconstitutional government regulation.

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Constitutional attorney David Rivkin challenges ALCU attorney Laura Murphy on the value of Dzhokhar’s designation as an enemy combatant. They also debate the potential legal charges in the case against the alleged Boston Bomber, Dzhokhar Tsarnaev. Not Gwen’s finest moment.

News must often be gathered by confidential sources, or not at all. That confidentiality must be uniformly protected.

By David B. Rivkin Jr. and Lee A. Casey

A Colorado judge’s threatened contempt sanctions against Fox News investigative reporter Jana Winter—who refuses to reveal a confidential news source—has refocused public attention on how journalists operate.

News must often be gathered from confidential sources, or not at all. Given how vital is the freedom of the press in a democracy, that confidentiality must be maintained. It is time that Congress recognize this and enact legislation that enables journalists to protect their confidential sources and newsgathering materials.

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Will the Supreme Court rule that the Defense of Marriage Act is unconstitutional? Bill Bennett’s Morning in America: Constitutional attorney David Rivkin provides an in-depth analysis of the Supreme Court second case on gay marriage. 1,100 federal statutes use the term “marriage” without defining it. At the time the laws were passed, marriage was assumed to mean “between a man and a woman.” Nine states permit unions between members of the same sex. The federal government has an interest in uniformity. Simultaneously, under the principle of federalism, the federal government should not overstep the police powers of the states. The Bennett-Rivkin discussion explains the issues in this case about the Defense of Marriage Act.

Did Supreme Court liberal justices disappoint gay marriage advocates? Constitutional attorney David Rivkin and Morning in America host Bill Bennett provide a cogent discussion about Day 1 of the Supreme Court arguments on gay marriage– specifically about California’s Proposition 8 which was struck down by the California Supreme Court. David Rivkin provides an in-depth analysis of key arguments. Justice Sotomayor’s question about limits on the definition of marriage goes to the heart of the problem.