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Supreme Court Notes

National | Common-sense constitutionalism

Issue: "Taking the Bait?," July 12, 1997

With a season of landmark legal decisions nearing its end, WORLD asked Doug Kmiec, a Notre Dame law professor and former assistant attorney general in the Reagan Justice Department, for his take on a few of the standout cases.

Overall, Mr. Kmiec described himself as "moderately pleased with most of the opinions. The CDA decision was probably the most disappointing so far this term." Among the important decisions:

*Church and state (Held that the use of public-school teachers in religious schools to assist low-income, low-achieving students does not violate the establishment clause): "This was an excellent decision. It took a dozen years for the court to realize what the common man understood from the beginning: that sending public-school teachers into Christian schools to teach remedial reading and math is not in any way establishment of religion."

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*Physician-assisted suicide (Upheld the ban): "I'm delighted that it was upheld 9-0, although I'm disappointed that four members of the court think they're medical ethicists or religious theologians who can opine on this subject. Still, overall they held that something treated as a crime for 700 years is not a Constitutional right today. They recognized that there's a difference between refusing help and asking that a doctor affirmatively kill you."

*Paula Jones (Allowed her suit to proceed immediately): "No law student I know would have said the president's arguments had any real seriousness. No matter what your office or station, you are responsible for the alleged wrongs that you do to another citizen. I think anyone would agree that that's an important principle."

In the last two cases especially Mr. Kmiec sees a triumph for what he calls common-sense constitutionalism. "I think it's good that the court gets back to reading the Constitution every now and then in a way that the people can understand. That helps to foster some sense of relevance and connection with our founding document."

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