Articles Posted in Constitutional Law

Amherst professor Austin Sarat discusses Pennsylvania’s anomalous status as the only Northeastern state retaining the death penalty despite a de facto execution moratorium, examining the system’s documented flaws—wrongful convictions, racial disparities, geographic inconsistency, and inadequate indigent defense—alongside Governor Josh Shapiro’s public shift toward abolition. Professor Sarat argues that Pennsylvania should abolish capital punishment and that Shapiro, having already refused to sign execution warrants, should use his remaining time in office to press the legislature toward abolition and pursue commutations for those on death row, despite the steep procedural and political obstacles to both paths.

Cornell Law professor Michael C. Dorf discusses Chief Justice John Roberts’s characterization of citizenship as “the right to have rights” in his Trump v. Barbara opinion, tracing this formulation’s origins through Chief Justice Earl Warren’s 1958 opinions back to Hannah Arendt. Professor Dorf argues that Roberts’s claim is correct despite non-citizens holding many constitutional rights, because citizenship uniquely secures the right to remain in the United States and to avoid the harms of statelessness—making the phrase especially apt given the Trump administration’s attempts to strip birthright citizenship and its aggressive termination of protections like Temporary Protected Status.

UC Davis Law professor Vikram David Amar discusses three unexpected aspects of the Supreme Court’s end-of-term decisions from its 2025-26 term, focusing on the late-arriving ballots ruling in Watson v. Republican National Committee, the Court's departure from constitutional avoidance in three separate cases, and its mootness ruling in Little v. Hecox. Professor Amar argues that the Watson outcome was correctly decided despite media mispredictions based on oral argument, that bypassing narrower statutory grounds was justified in the birthright citizenship and Federal Reserve cases given their pressing national importance, but that the Court’s refusal to dismiss Hecox as moot—despite the plaintiff's dismissal with prejudice—was legally unjustified and appeared driven by suspicion of strategic litigant behavior rather than sound doctrine.

Amherst professor Austin Sarat discusses the contrasting positions of Pope Leo XIV and President Donald Trump on capital punishment, set against the backdrop of the Justice Department’s April 2026 announcement to restart and expand federal executions. Professor Sarat argues that the Pope’s moral condemnation of the death penalty as an affront to human dignity—offered without anger or political calculation—exposes the cruelty underlying the Trump administration’s embrace of capital punishment and should reinvigorate the abolition movement in the United States.

Cornell Law professor Michael C. Dorf examines the Supreme Court’s 6-3 ruling in Landor v. Louisiana, which held that individual prison officials cannot be sued for damages under RLUIPA even after knowingly violating a Rastafarian prisoner’s religious freedom rights. Professor Dorf argues the majority opinion is constitutionally flawed and urges future litigants to plead the Commerce Clause as an independent basis for RLUIPA and similar Spending Clause statutes.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone examine the federal district court’s rulings on Judge James R. Brown’s lawsuit against Illinois Supreme Court Justices who terminated his recall appointment allegedly in retaliation for partisan public statements. While Professors Amar and Mazzone find the court’s bottom-line decisions to abstain and deny a preliminary injunction defensible, they argue the court’s reasoning was seriously flawed—particularly its cursory abstention analysis, its logically inverted First Amendment irreparable-harm rationale, and its mistaken treatment of a stay as functionally equivalent to a dismissal on qualified immunity grounds.

Igor De Lazari, a PhD candidate at Federal University of Rio de Janeiro and a state judge; and Antonio G. Sepulveda, professor of law at Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, discuss the U.S. Supreme Court’s decision in Mirabelli v. Bonta regarding parental rights in public education, drawing extensive structural and substantive parallels to recent constitutional jurisprudence from the Brazilian Supreme Federal Court. The authors argue that both the American emergency docket and Brazilian monocratic decisions exhibit a distinct procedural malfunction where expedited, unilateral judicial actions improperly displace the considered, multi-voice institutional judgments required to legitimize judicial authority.

University of Pennsylvania professor Marci A. Hamilton discusses the breakdown of productive religious discourse in American public life, arguing that the religious right has seized control of the conversation through strategic framing, the appropriation of the undifferentiated label “Christian,” and the suppression of inconvenient facts. Professor Hamilton proposes three corrective rules: insist on factual accuracy in policy debates rather than deferring to religious framing, recognize Christianity as a diverse category rather than a monolith, and embrace open theological disagreement among believers as a legitimate and necessary form of public discourse.

UC Davis Law professor emeritus Alan Brownstein and professor Vikram David Amar survey recent examples of overt government religious speech—at both the federal and state levels—to examine the constitutional principles underlying Establishment Clause limits on such speech. Professors Brownstein and Amar argue that government religious speech is constitutionally impermissible because it usurps individuals’ authority over their own faith, coerces religious conformity, favors some religions over others, and distorts the marketplace of ideas in ways only a robust Establishment Clause can offset.

Amherst professor Austin Sarat examines two recent Trump administration actions—the $1.776 billion Anti-Weaponization Fund and a DOJ settlement granting the president and his family immunity from tax enforcement—arguing that both are unconstitutional and morally indefensible. Professor Sarat argues that the tax immunity arrangement amounts to an unconstitutional self-pardon by proxy, while the Anti-Weaponization Fund violates the First Amendment, equal protection, separation of powers, and the Fourteenth Amendment’s explicit prohibition on compensating insurrectionists. He further argues that courts and the public must resist both actions before Trump normalizes using governmental power for personal benefit.

Touro University, Jacob D. Fuchsberg Law Center professor Rodger D. Citron discusses the civil rights history of New York Times v. Sullivan with legal historian Samantha Barbas in a podcast conversation regarding her book, Actual Malice. Professor Citron highlights Barbas’s findings that Alabama officials weaponized libel law to suppress coverage of the civil rights movement and emphasizes that this racial context remains essential to understanding the case’s legal legacy.

University of Pennsylvania professor Marci A. Hamilton discusses Donald Trump’s dual strategy for institutionalizing White Christian Nationalism by installing a conservative Supreme Court majority and empowering the religious right’s political agenda. Professor Hamilton argues that these efforts subvert the separation of church and state by promoting a false historical narrative and prioritizing the specific theological demands of a minority over the rule of law and civil liberties.

Cornell Law professor Michael C. Dorf discusses the settlement of a lawsuit between Donald Trump and the Department of Justice, which established a $1.776 billion “Anti-Weaponization Fund” and granted the Trump family permanent immunity from various tax claims. Professor Dorf argues that this arrangement constitutes a corrupt exploitation of the Federal Judgment Fund and urges Congress to implement structural reforms to prevent future presidents from bypassing the constitutional power of the purse through collusive litigation.

Amherst professor Austin Sarat discusses the Department of Justice’s decision to seek the death penalty for Elias Rodriguez following his 2025 antisemitic murders at the Capital Jewish Museum. Professor Sarat argues that American Jews should oppose the execution because capital punishment contradicts the Jewish values of “repairing the world,” violates long-standing rabbinical skepticism toward state-sanctioned killing, and denies the fundamental human right to make moral amends.

UC Davis Law professor Vikram David Amar discusses the Virginia Attorney General’s emergency application for the U.S. Supreme Court to stay a state supreme court ruling that invalidated a redistricting-related constitutional amendment. Professor Amar argues that the challenge will fail because the state court’s decision rests on an independent interpretation of the Virginia Constitution and constitutes a routine exercise of judicial review that warrants deference under Moore v. Harper.

Cornell Law professor Michael C. Dorf discusses the Supreme Court’s role in enabling racial gerrymandering under the guise of partisan strategy and the resulting limitations of current legislative remedies like the Voting Rights Act. Professor Dorf argues that Congress should use its constitutional authority to mandate independent redistricting commissions or, more effectively, adopt a system of statewide proportional representation to ensure fair minority voice without using the specific racial classifications the current Court finds objectionable.

Amherst professor Austin Sarat discusses the historical prominence and systemic flaws of capital punishment in Texas as the state nears its 600th execution since 1977. Professor Sarat argues that Texas’s continued practice of executing intellectually disabled and mentally ill individuals defies constitutional standards and highlights an urgent need for political leaders to abolish the death penalty.

Amherst professor Austin Sarat examines the case of Tony Carruthers, a Tennessee death row inmate scheduled for execution despite significant evidence of innocence and severe procedural failures at trial. Professor Sarat argues that Governor Bill Lee should exercise his clemency power to spare Carruthers’ life, contending that the case exemplifies the systemic failings that make executive clemency a critical but underused safeguard against miscarriages of justice.

Cornell professor Joseph Margulies discusses the moral implications of the wrongful conviction movement and contrasts it with his own focus on humanizing those who have been rightfully convicted of serious crimes. Professor Margulies argues that society’s preoccupation with innocence inadvertently reinforces the dehumanization of the guilty, asserting that we must recognize the shared humanity of all incarcerated individuals rather than dismissing them as monsters.

Cornell Law professor Michael C. Dorf discusses the Fifth Circuit’s decision in Nathan v. Alamo Heights Indep. School District, which disregarded Supreme Court precedent regarding the Establishment Clause. Professor Dorf argues that the Fifth Circuit improperly bypassed the Supreme Court’s exclusive authority to overrule its own precedents by unilaterally declaring Stone v. Graham dead.