The Forgotten Founding Document
32 Pages Posted: 28 Oct 2008
Date Written: October 23, 2008
On the difficult moral issues confronting the judiciary today, a long overlooked bit of guidance is provided in the Declaration of Independence, natural law. This paper discusses the moral foundations of the Constitution and their relation to positive law, primarily addressing "same-sex marriage" in the context of Proposition 8 in California, but broadly applicable to other moral/legal conflicts such as abortion and the display of religious texts on public grounds, such as the Ten Commandments. It also challenges the judicial activism evident in many such cases as a judicial violation of the requirements of substantive due process.
Keywords: same-sex marriage, natural law, Constitution, Declaration of Independence, judicial activism, substantive due process
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