Constitutional Law

The Problem with Zombie Constitutional Amendments

June 8, 2018

Spurred by a reenergized feminist movement in the wake of Hillary Clinton’s surprising loss in the 2016 presidential election and the #MeToo movement against sexual harassment, the Illinois state legislature reached into the past and attempted to revivify the Equal Rights Amendment (ERA). Observers were quick to declare that a ratification vote by only one…

Keith E. Whittington

Why the Insular Cases Must Become the Next Plessy

March 28, 2018

Americans who call U.S. territories home face unprecedented challenges. Six months after Hurricanes Maria and Irma wreaked havoc on Puerto Rico and the U.S. Virgin Islands, many still lack electricity. Guam continues to sit in the nuclear cross-hairs of North Korea. And the Northern Mariana Islands and American Samoa are experiencing severe economic upheaval following…

Neil Weare

The Second Amendment and Second-Class Rights

March 5, 2018

Advocates for gun rights feel oppressed. It has been a decade since the Supreme Court found in District of Columbia v. Heller that the Second Amendment protects a right to keep and bear arms for personal purposes like self-defense, and in that time Second Amendment champions have gone from euphoric to disgruntled. With some notable…

Darrell A. H. Miller

The President’s Duty to Defend Against Cyber-Attacks

February 22, 2018

Recent developments in the ongoing investigations into Russian meddling in the 2016 elections have raised interesting questions about the obligations of the current President — or any President — in a situation where a foreign government or its agents have interfered with the American political process or used the Internet in other ways to harm…

H. Jefferson Powell

President Trump, #MeToo, and Congressional Power

February 20, 2018

Does Congress have the power to investigate the allegations of sexual misconduct against President Trump, as Senator Kirsten Gillibrand recently demanded? Could Congress impeach the President on those grounds? Answering these difficult questions requires an appreciation of the limits of congressional authority to hold the President accountable for past transgressions. A #MeToo Reckoning for Trump?…

Keith E. Whittington

Judges and Religious Liberty

December 1, 2017

When it comes to debates over jurisprudence, the dividing lines can prove very real. Even when we transcend the typical political fault lines — even when we move to the substance that exists beyond the tired and boilerplate talking points — questions of judicial philosophy tend to divide. Those on the Right, generally speaking, emphasize…

Senator Orrin Hatch

The Meaning of Marriage

Laws banning discrimination on the basis of sexual orientation — like laws banning discrimination on the grounds of race, sex, and other significant statuses — are a moral and social good, properly expressing the intrinsic and radical equality of every human person. Marriage, however, by law and by custom, is not a statement about an…

Helen Alvaré

Déjà Vu “No Cake for You”

Next week’s oral argument in Masterpiece Cakeshop involves a familiar story: Three customers walk into a small business that sells specialty foods. The owner is said to be an “artist” for his unique culinary skills and believes his religious convictions imbue his work. The owner turns the customers away entirely or denies them access to…

John Paul Schnapper-Casteras

Actions to Decrease Gun Violence

November 6, 2017

The carnage from the massacre in Texas, which left at least 26 dead, is just the latest of so many instances of gun violence, following tragedies in places like Las Vegas, Orlando, Sandy Hook, Aurora, Tuscon, and Virginia Tech. They all share one feature in common: a disturbed man with a weapon or an arsenal…

Erwin Chemerinsky

Voting Rights: The Struggle of Our Lifetime

October 17, 2017

When our nation was founded, only a minority of the new country’s people enjoyed the right to vote. Guided by the belief that more Americans participating in our democracy would make our union stronger and more just, our foremothers and fathers fought to expand voting rights to the poor, to women, and to people of…

Eric Holder, Jr.