Constitutional Law

Notwithstanding the Right to Strike:
A Canadian Province Defies the Constitution — And Workers Strike Back

November 28, 2022

The “Notwithstanding Clause,” the common name for section 33 of Canada’s Charter of Rights and Freedoms—the country’s constitutional bill of rights—authorizes time-bound legislation that violates the Charter. Recently, in Bill 28, the province of Ontario used the Notwithstanding Clause to override the Charter’s protection of the right to strike. The “draconian” legislation unilaterally imposed a contract on educational workers and…

Prison Gates at the State Line

March 28, 2022

A spate of illiberal legislation has recently emerged in state legislatures. A dangerous form of law with a dark past lurks among the troubling proposals: the criminalization of movement. In Missouri and Idaho, legislators have proposed draconian laws that would burden or criminalize residents who leave the state for purposes the state deems immoral. These…

Recent Case: Terkel v. Centers for Disease Control and Prevention

April 9, 2021

In America, the people are sovereign and straightjacketed. Faced with a problem — passing, like a pandemic, or persistent, like poverty — they can call on their government to answer it. But, when they act, courts can tell them they’ve overstepped their Constitution’s grant of powers. Recently, several federal district courts, faced with a novel national…

“Lineal Descendant” Analysis in Second Amendment Litigation

April 7, 2021

Second Amendment doctrine—perhaps more than any other constitutional right save the Seventh Amendment civil jury—has become intensely preoccupied with genealogy. Ever since Chief Justice John Roberts in District of Columbia v. Heller remarked during oral argument (almost to himself) that, just as there appears to be “lineal descendants” of colonial-era weaponry, there could be “lineal descendants”…

States of Emergencies: Part II

April 20, 2020

Introduction In our earlier post, we described how the legal bases for countries’ coronavirus responses typically fall into three broad categories. First, some countries have declared a state of emergency under their constitutions, which allow them to take special measures, including restrictions of civil liberties, for the duration of the emergency. Second, some countries have…

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States of Emergencies: Part I

April 17, 2020

 Introduction The fight against COVID-19 has led many countries, including liberal democracies, to take extraordinary measures that would undoubtedly be constitutionally problematic in normal times. Around the world, we have witnessed entire countries being locked-down, with mass surveillance of cellphones, suspended religious services, restricted travel, and military-enforced curfews. While these measures are widely supported by…

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COVID-19 Reinforces the Argument for “Regular” Judicial Review—Not Suspension of Civil Liberties—In Times of Crisis

April 9, 2020

Not surprisingly, local and state government orders aimed at mitigating the spread of novel coronavirus have already provoked a series of objections grounded in civil liberties. Just as quickly, courts entertaining challenges to these orders have stumbled into the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended…

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Inequality During a Pandemic, Part I: Shared Suffering and Self-Quarantine

As governors and mayors rush to stem the spread of COVID-19 throughout the country, and as healthcare workers make difficult resource allocation decisions, they are often treating some people differently from others. “Essential” businesses or establishments are permitted to stay open and fight for economic survival, while “non-essential” ones are forced to close, perhaps forever….

Contagion and the Right to Travel

March 27, 2020

Not since 1918 has the United States faced the kind of wide-scale public health crisis that Americans face today. The novel coronavirus pandemic of 2020 jeopardizes multiple millions of Americans’ lives, especially the elderly and immunocompromised. It also stands to cripple the American economy with the real prospect of the nation plunging into a depression….

Jones v. DeSantis

March 2, 2020

In 2018, Florida voters ratified Amendment 4, a state ballot initiative granting the right to vote to most formerly incarcerated people in the state “upon completion of all terms of sentence.”  Initially, many thought the amendment would re-enfranchise more citizens than any law passed in at least the last 50 — and possibly the last…

What’s Really at Stake in the Supreme Court’s Religious School Vouchers Case?

February 4, 2020

The Supreme Court has just heard oral argument in Espinoza v. Montana Department of Revenue, a high-profile case involving a Montana private school voucher program that a number of families used to enroll their children in religious schools.  The Montana Supreme Court struck down the program, ruling that it violates a Montana constitutional provision that forbids any public funding to be…

The Dershowitz Attack on the Trump Articles of Impeachment is Weakened, Perhaps Fatally, by the Possibility That “Misdemeanors” Could Mean “Misconduct”

January 29, 2020

On Monday night, Alan Dershowitz addressed the Senate on behalf of President Donald Trump. At one point, Dershowitz asserted that “the key point in this impeachment case . . . is that purely non-criminal conduct, including abuse of power and obstruction of Congress, are outside the range of impeachable offenses.” However, elsewhere in his presentation…

Recent Case: Collins v. Thurmond

November 26, 2019

Discriminatory school discipline practices have been the subject of much controversy in recent years. In December 2018, the U.S. Department of Education, led by Secretary Betsy DeVos, rolled back Obama-era guidance aimed at reducing racial disparities in school discipline. The move drew opposition from both state attorneys general and civil rights leaders, who worried about…

Recent Case: The Modern Sportsman v. United States

November 24, 2019

On October 1, 2017, a man opened fire at the Route 91 Harvest Music Festival in Las Vegas. Fifty-eight people were killed and over 500 injured as Stephen Paddock fired more than a thousand rounds into the crowd. Paddock was able to fire so many rounds because his guns were equipped with “bump stocks,” devices…

The President’s Tax Returns, Baseball Umpires, and the Rule of Law

November 21, 2019

The President of the United States is pulling out every legal stop he can to prevent both the United States House of Representatives and the New York State District Attorney from requiring his accounting firm to hand over his tax returns and other personal financial information. The House Committee, among other things, is investigating whether…

Recent Case: New York v. Department of Health and Human Services

November 18, 2019

For decades, “conscience clauses” in statutes governing health care have protected the rights of employees from acting against their religious and moral beliefs.  Critics of these provisions insist that there is a greater risk of discrimination against patients than discrimination against employees.  Recently, in New York v. Department of Human and Health Services, Judge Engelmayer…

The Supreme Court is Poised to Blow A Giant Hole in Gun Control. Here’s How the Liberal Justices Can Intervene.

October 21, 2019

Lost in the shuffle of a busy October at the Supreme Court—one filled with high profile developments concerning the right to abortion and the treatment of LGBT workers—was a single, ominous sentence buried away on page eleven of the Court’s first orders list of the Term: “The Respondents’ Suggestion of Mootness is denied.”  Despite its opacity, this single sentence is…

Recent Case: Speech First v. Schlissel

October 7, 2019

Campus speech wars have been flaring up over the issue of offensive speech and the appropriateness of schools’ responses to it. Recently, the Sixth Circuit weighed in on the First Amendment implications of the matter. The specific battle had already ended by the time the court found itself in the speech wars’ trenches. But the…

Prorogation, Prerogative, and the Supreme Court

October 3, 2019

When times are good for constitutional lawyers, they are bad for everyone else.  Boris Johnson, the Prime Minister of the United Kingdom and Leader of the Conservative Party, is in an almost unprecedented position.  He has lost his majority in the House of Commons, but is unable to bring about an election.  The majority of…

Female Breasts, Gender Equality, and Originalism

September 26, 2019

All across the country cities and towns seem hell bent on preventing women from showing their breasts in public while placing no such limitation on men. To stop this discrimination based on gender, an organization called “Free the Nipple” has filed lawsuits (or amicus briefs in cases brought by others) challenging these ordinances, and with…

Knowledge Institutions in Constitutional Democracies: of Objectivity and Decentralization

August 29, 2019

“Knowledge institutions” are fundamental components of successful constitutional democracies.  As recent scholarship suggests (see Ginsburg & Huq (2018); Graber et al. (2018)), threats against the press, against institutions of higher learning, and against NGOs often accompany threats to independent judiciaries, to government watchdog offices, and to genuinely free, fair and open elections in countries with…

Habeas Corpus in Wartime and Larger Lessons for Constitutional Law

April 15, 2019

This past year, I published the product of years of historical research in Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (Oxford University Press 2017).  In the months since, I have been asked two questions more than any others: first, why I wrote the book, and second, what, if anything, modern…

Recent Case: Planned Parenthood v. Hodges

April 3, 2019

The state of Ohio does not want women to have abortions.  This much is clear from the state legislature’s recent support for bills that would effectively ban abortion at six weeks.  In 2016, arguably as part of the state’s policy disapproving of abortion, Ohio enacted House Bill 294, which prohibits the Ohio Department of Health…

Recent Case: Gaylor v. Mnuchin

Can tax benefits “establish” a religion? Perhaps, but as long as they show neutrality, meaning “no preference” for religion, they can pass muster.  The Internal Revenue Code establishes numerous income tax exemptions, one genre of which falls under the “convenience-of-the employer” doctrine. This doctrine is primarily codified in 26 U.S.C. §119(a)(2), which exempts employer-provided meals…

The Danger of the National Popular Vote Compact

March 13, 2019

This past week, Colorado joined a growing list of states that have signed on to the National Popular Vote Compact (NPVC). The NPVC is a proposed interstate compact in which the signatory states agree that they will appoint their presidential electors in accordance with the national popular vote rather than their own state electorate’s vote….

Recent Case: Adams v. Governor of Delaware

March 12, 2019

Talk of Supreme Court reform is in fashion. With the increased trend toward overt politicization of judicial nominations and the dread of an enduring conservative majority on the Supreme Court, discussion of court packing now knocks at the door of mainstream politics. At least one presidential candidate has proposed how such packing might be accomplished,…

Will the Supreme Court Replace the Lemon Test?

March 11, 2019

The Supreme Court recently heard oral argument in American Legion v. American Humanist Association, which involves an Establishment Clause challenge to a 94-year-old cross on government property memorializing World War I veterans. The argument suggests that the Court wants to take its Establishment Clause jurisprudence in a different direction, but it might not be sure…

Corpus Linguistics and the Second Amendment

August 7, 2018

Big Data rekindles the debate over the original meaning of the Second Amendment The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller, the dissenting Justices contended that…

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A Shadow Across Our Democracy

July 24, 2018

The fate of our democracy may very well hang on the vote of Justice Kennedy’s replacement. If a newly constituted Supreme Court were to overrule (or limit to a vanishing point) Roe v. Wade, it would only matter if state legislatures restricted abortion rights. Undocumented men and women brought to this country as children and…

Lucia and the Future of Administrative Adjudication

July 13, 2018

What is to become of administrative adjudication and adjudicators? As the never-ending assault on the administrative state marches on, administrative adjudication is in the cross-hairs of reformers. The latest chapter in the ongoing controversy over the proper role of adjudication within administrative agencies is the Supreme Court’s recent decision in Lucia v. SEC, that SEC…

Not Conservative

July 3, 2018

The press and the rest of the commentariat have fallen into the habit of referring to the work of Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch as “conservative.” That is wrong. In several of the most controverted areas that the Court has entered and in which its decisions have had a profound effect…

Janus and the Law of Opt-Out Rights

July 2, 2018

A great deal of time will be spent scrutinizing the core holding in Janus v. AFSCME, Council 31, that the First Amendment forbids public employers to require workers to financially support a union’s costs of collective bargaining.  Still more time will be spent debating state legislative approaches to soften Janus’s blow or neutralize it altogether.  What I…

Statements and Standards in Trump v. Hawaii

June 28, 2018

On Tuesday, the Supreme Court sided with the Trump Administration in Trump v. Hawaii, the challenge to the third iteration of the President’s travel ban. President Trump quickly characterized the decision as “a tremendous victory,” and in the Manichaean world the President seems to inhabit, it’s definitely a win. But the opinion itself—which leaves the…

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…

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…

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…

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…

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?…

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…

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…

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…

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…

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…