Articles Posted in Constitutional Law

Criminal defense attorney Jon May critiques Professor Alan Dershowitz’s defense of the Department of Justice’s decision to dismiss criminal charges against New York Mayor Eric Adams and argues that the deal is unlike typical plea bargains in federal criminal cases. Mr. May contends that Adams’s agreement, which involves no criminal penalty, dangerously expands the scope of prosecutorial discretion and could lead to a system where defendants barter extrajudicial favors to avoid prosecution, undermining principles of justice.

Amherst professor Austin Sarat discusses how several state legislatures, particularly Alabama, are passing laws allowing the death penalty for child rape despite a 2008 Supreme Court ruling, Kennedy v. Louisiana, that declared such punishment unconstitutional. Professor Sarat argues that this strategic legislative defiance represents a dangerous trend that threatens constitutional order, as lawmakers are deliberately passing unconstitutional laws hoping the current conservative-majority Supreme Court will overturn precedent, similar to the strategy that led to Roe v. Wade being overturned.

Hofstra Law professor James Sample examines President Donald Trump’s conduct that facilitates corruption, particularly the launch of a cryptocurrency scheme and the broader erosion of anti-corruption safeguards, including weakened bribery laws, de-prioritized enforcement of foreign influence regulations, and the dismissal of government watchdogs. Professor Sample argues that these actions, along with Supreme Court rulings limiting bribery prosecutions, have systemically undermined the rule of law, fostering an environment where public officials can engage in transactional governance that threatens democracy itself.

Cornell Law professor Michael C. Dorf discusses a recent symposium on constitutional law casebooks, highlighting the challenges of teaching constitutional law at a time when the Trump administration and the Supreme Court are reshaping legal precedents. Professor Dorf argues that while these changes present difficulties, it remains essential to teach established legal principles and encourage students to critically engage with unresolved legal questions, including, in some cases, through the use of rhetorical questions in casebooks.

Amherst professor Austin Sarat examines Montana’s death penalty status, noting that capital punishment is legally permitted but rarely used in the deeply Republican state, with only three executions since 1976 and recent legislative rejection of a proposal to facilitate more executions. Professor Sarat argues that even as a symbolic punishment, maintaining capital punishment on the books causes harm to both the abolitionist cause and the entire country by making extreme prison sentences seem more humane by comparison, contributing to America’s high incarceration rates.

UC Davis Law professor Vikram David Amar examines the U.S. Department of Justice’s decision to dismiss federal corruption charges against New York Mayor Eric Adams and the legal and ethical implications of potentially using criminal charges as leverage to influence local government policy decisions. Professor Amar argues that if the DOJ dismissed charges as part of a quid pro quo to gain Adams’s cooperation with federal immigration policies, this would constitute an unconstitutional violation of federalism principles by improperly pressuring local officials to act against their constituents’ interests, similar to prohibited practices outlined in Supreme Court cases like New York v. United States and Spallone v. United States.

Amherst professor Austin Sarat discusses Ohio Governor Mike DeWine’s ongoing de facto moratorium on executions and the broader implications for the future of the death penalty in both Ohio and the United States. Professor Sarat argues that Ohio’s inability to procure lethal injection drugs, combined with public opposition, racial disparities, financial inefficiencies, and declining crime rates, demonstrates that the state—and potentially the nation—can function without capital punishment, signaling a possible shift toward abolition.

UC Davis Law professor Vikram David Amar discusses the surge in federal lawsuits challenging the new Trump administration’s extensive assertions of executive power. Emphasizing the critical role of the judiciary in these times, Professor Amar explains the significance of court rulings, particularly preliminary injunctions, as temporarily halting executive actions to prevent irreparable harm while the legal merits are fully adjudicated, and he highlights the immense pressure on judges to navigate these complex and politically charged constitutional issues.

Amherst professor Austin Sarat discusses the recent execution of Marion Bowman in South Carolina, focusing on his case and the broader cruelties inherent in the American capital punishment system. Professor Sarat argues that Bowman’s case exemplifies multiple systemic issues in death penalty cases, including the treatment of those claiming innocence, the coercive nature of plea deals, inadequate legal defense, and the psychological torture of death row conditions, particularly during the final months before execution.

Amherst professor Austin Sarat explores the paradoxical status of the death penalty in California, highlighting its high number of death row inmates and new sentences despite a moratorium on executions and a progressive stance. Professor Sarat contrasts this with Texas’s declining death penalty numbers, emphasizing the complex political landscape in California where local prosecutors and public opinion continue to support capital punishment, creating challenges for abolitionists trying to effect change.

UC Davis Law professor Vikram David Amar examines Idaho’s proposed legislative “Memorial” rejecting the Supreme Court’s Obergefell v. Hodges decision on same-sex marriage, using it as a lens to explore broader questions about states’ rights to challenge federal authority and Supreme Court decisions. Professor Amar argues that while states have the constitutional right to declare their disagreement with federal actions, attempts to enforce laws contradicting Supreme Court precedent are permissible when the argument for overturning is not frivolous (as with Obergefell), but would be impermissible when such arguments are completely frivolous (as with trying to overturn Brown v. Board of Education).

Cornell Law professor Michael C. Dorf discusses President Biden’s recent recognition of the Equal Rights Amendment (ERA) as the 28th Amendment to the Constitution and examines its potential legal implications across various contexts, including abortion rights, transgender rights, and broader sex discrimination cases. While Professor Dorf argues that the ERA’s inclusion in the Constitution may not significantly affect abortion rights due to existing Supreme Court precedent, he contends it could meaningfully influence transgender rights cases, serve as a safeguard against future rollbacks of sex discrimination protections, and hold important symbolic value in repudiating historical patriarchal assumptions in the Constitution.

Touro Law professor Rodger D. Citron examines five different aspects of presidential pardon power in the context of recent actions by Presidents Joe Biden and Donald Trump, including traditional uses (family pardons, crony pardons, and criminal justice policy) as well as two novel developments: Trump’s campaign-related pardons for January 6 defendants and Biden’s preemptive pardons to protect individuals from potential political retribution. Professor Citron argues that Trump’s use of pardons as campaign promises and Biden’s responsive use of preemptive pardons represent significant departures from historical norms, highlighting how the pardon power has become increasingly weaponized in contemporary politics.

Amherst professor Austin Sarat discusses President Joe Biden’s issuance of preemptive pardons to various public figures including January 6 Committee members, General Mark Milley, and Dr. Anthony Fauci in anticipation of potential persecution under Donald Trump’s incoming administration. Professor Sarat argues that while these pardons are unprecedented in being used as protection against a successor president, they are legally sound and represent a justified response to genuine threats of political persecution rather than, as some critics suggest, an undermining of democratic norms.

Cornell Law professor Michael C. Dorf examines two influential articles by recently deceased Columbia Law professor Henry P. Monaghan, focusing on Monaghan’s work regarding constitutional precedent versus originalism and his critique of viewing the Constitution as “perfect.” Professor Dorf argues that while today’s conservative Supreme Court supermajority might appear to align with Monaghan’s views, they actually contradict his core principles by selectively overturning precedents and finding constitutional justification for their preferred policies, demonstrating precisely the kind of constitutional interpretation that Monaghan criticized.

Amherst professor Austin Sarat examines recent death penalty statistics and trends in the United States, drawing from the Death Penalty Information Center’s 2024 Annual Report and Death Penalty Census, as well as academic research spanning several decades. Professor Sarat argues that capital punishment should be abolished nationwide, citing the dramatic decline in death sentences since the 1990s, the extremely low rate of sentences actually resulting in executions (15.7%), and the high rate of reversals due to serious errors, all of which suggest the system is ineffective and not worth maintaining.

Amherst professor Austin Sarat discusses various contenders for the “worst legal decision of 2024,” including Supreme Court rulings on presidential immunity and controversial death penalty cases, before ultimately focusing on Trump’s nomination of Matt Gaetz for Attorney General. Professor Sarat argues that the Gaetz nomination was the year’s worst legal decision because it demonstrated Trump’s contempt for the rule of law and signaled his intention to transform the Justice Department into a personal defense operation based on loyalty rather than legal principles, even after Gaetz’s withdrawal and replacement by Pam Bondi.

Amherst professor Austin Sarat examines the evolving stance on capital punishment in the United States, specifically critiquing President Joe Biden’s decision to commute the sentences of some federal death row inmates but exclude high-profile offenders like Dylann Roof, Dzhokhar Tsarnaev, and Robert Bowers. Professor Sarat argues that this exclusion missed an opportunity to catalyze a national conversation on abolishing the death penalty entirely, asserting that current societal and legal trends make it feasible to advocate for clemency even in extreme cases without jeopardizing abolitionist progress.

University of Chicago Law School professor emeritus Albert W. Alschuler examines President Joe Biden’s pardon of his son Hunter Biden, analyzing three aspects of the pardon: preventing future prosecution, setting aside convictions, and eliminating potential prison sentences. Professor Alschuler argues that while blocking future prosecution was justified given the threat of political persecution, and limiting Hunter’s sentence could be defended despite breaking a promise, completely erasing his convictions was unjustifiable.

Amherst professor Austin Sarat discusses the upcoming execution of Joseph Corcoran in Indiana, who has voluntarily dropped his appeals, and examines the broader phenomenon of death row “volunteers” in the American justice system. Professor Sarat argues that courts should never allow inmates to volunteer for execution, not only due to questions of mental competency but also because it violates fundamental principles of natural law and inalienable rights as recognized in the Declaration of Independence, making it fundamentally un-American.