Articles Posted in Constitutional Law

Supporting Religion is Not Always Good for Religious Freedom

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UNLV Boyd School of Law professor Leslie C. Griffin explains why broad support of religion is not necessarily good for religious freedom. Specifically, Griffin looks at the position of Judge Brett Kavanaugh on a number of issues from his time on the bench and before, and predicts that as a justice of the US Supreme Court, he is unlikely to ensure everyone’s constitutional rights are protected, but only those of certain groups.

The Sex Trifecta: United Airlines Sued Over Pilot Who Tormented Flight Attendant with Stalking, Revenge Porn, and Harassment

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SMU Dedman School of Law professor Joanna L. Grossman comments on a lawsuit recently filed by the EEOC against United Airlines alleging that the airline failed to protect a female flight attendant from sexual harassment by a pilot, in violation of its obligations under federal anti-discrimination law. Grossman argues that while United is entitled to its day in court, it will need compelling evidence to refute the allegations in the EEOC's complaint.

“Casing” Brett Kavanaugh: Why Senate Hearings Can and Should Explore His Views on Past Supreme Court Cases, and at the Very Least His Views on Applying Originalism Where It Would Lead to Progressive Results

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Illinois Law dean and professor Vikram David Amar explains why the norm of not asking a Supreme Court nominee about his specific views about specific cases does not make sense and renders the hearing unhelpful in evaluating him as a potential justice. Amar explains the distinction between promising to rule in a certain way and predicting how one might rule, and he debunks some of the reasons often given for the norm of not asking (or answering) these types of questions during the confirmation hearing.

Seeking Forward-Looking Justice for #ChurchToo

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Illinois law professor Lesley Wexler comments on the #ChurchToo movement, a campaign arising from the viral #MeToo movement, that seeks to raise awareness of sexual assault in the specific context of churches. Wexler describes the similarities between the #MeToo and #ChurchToo movements, as well as some key differences, and explains that any meaningful change must come largely from within these communities due to challenges in church doctrine and philosophy, particularly with evangelical churches.

What We Can Learn About Stare Decisis (Respect for Precedent) from the Last Supreme Court Term

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Illinois Law dean and professor Vikram David Amar comments on two decisions from the US Supreme Court’s 2017–18 term in which the Court notably overruled two longstanding constitutional precedents by 5–4 votes. Amar discusses the doctrine of horizontal stare decisis—the Court’s respect for its prior rulings—and focuses on three questions in particular these two cases present.

FDA Plan to Censor “Milk” in Plant-Based Food Names May Violate the First Amendment

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Cornell law professor Michael C. Dorf explains why the FDA’s recent announcement that it intends to restrict the word “milk” on food labels may present First Amendment issues. Dorf points to the US Supreme Court’s decision last year in Matal v. Tam—which rejected the Patent and Trademark Office’s denial of a trademark to a band on the ground that the name was offensive—as evidence of the Court’s skepticism about the government making ideological judgments in the grant or denial of rights to exclusive use of a word.

Children’s Rights Softly Emerge in the Midst of the Trump Administration’s Heartless Separation of Children from their Parents at the Border

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Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on a laudable decision by a federal district court judge in Connecticut that recognizes children as persons with constitutional rights, in the midst of the Trump administration’s separation of children from their parents at the border. Hamilton calls upon the Senate to ratify the Convention for the Rights of the Child, and upon Congress to pass simple legislation that would ban such separations.

Collins v. Virginia: An Innocuous, Fourth Amendment Decision About Curtilage

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Cornell law professor Sherry F. Colb comments on the US Supreme Court’s precedents recognizing, yet not clearly defining, “curtilage”—the area near one’s house that is constitutionally protected against warrantless searches by law enforcement. As Colb explains, the Court’s cases involving curtilage, including its recent decision in Collins v. Virginia leave many Fourth Amendment questions unanswered.

Why the Measure to Split California Into Three Could be Blocked by a Court Before It Appears on the Ballot

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Illinois Law dean and professor Vikram David Amar describes the federal constitutional obstacles facing Cal3—the proposal to split California into three separate states that has qualified to appear on the November ballot. As Amar explains, the Constitution’s requirement of consent by the “Legislatures” of concerned states may be an insurmountable obstacle for the proposal and could even prevent the proposal from appearing on the ballot at all.

Replacing Justice Kennedy: Why Roe Won’t Be (Formally) Overruled, Same-Sex Marriage Rights Won’t Be Undone, and Affirmative Action Won’t Be Terminated, but Electoral Reform Could Suffer Greatly

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Illinois Law dean and professor Vikram David Amar argues that while Justice Anthony Kennedy’s retirement from the US Supreme Court will change the institution, it may not result in a significant shift to the right on some hot-button issues, as many anticipate. Amar explains that the greatest casualty of Justice Kennedy’s retirement might be electoral reform—not reproductive rights, same-sex marriage, or affirmative action.

The Supreme Court and Conservatives’ Right Not to Be Associated in Any Way With Disagreeable Things

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GW Law professor and economist Neil H. Buchanan argues that the pro-business, anti-union expressed during oral argument and in the majority opinion in Janus v. AFSCME, written by Justice Samuel Alito and joined by the other conservative justices including Justice Anthony Kennedy, epitomizes both Kennedy’s right-wing fundamentalism and the direction in which the Court would have continued to move even if he had chosen not to retire. Buchanan points out that the trend among the conservative justices is to insulate conservatives—especially Christian Republicans—from having to be in any way connected to anything with which they disagree, such as collective bargaining, sexual liberation, or provision of contraception.

Can State Supreme Courts Protect Liberal Constitutionalism in the Coming Era of Reactionary SCOTUS Jurisprudence?

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Cornell law professor Michael C. Dorf comments on the suggestion that liberals who are distressed about the impending era of reactionary US Supreme Court jurisprudence should focus efforts on change at the level of state supreme courts. Without discouraging such efforts, Dorf explains why this approach faces significant obstacles, and he argues that anyone concerned about the direction of the Court should not restrict their political activities to judicial elections but engage in organized opposition on multiple fronts.

Is Demonstrated Animus Irrelevant After Trump v. Hawaii?

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Chapman University Fowler School of Law professor Celestine McConville considers whether the US Supreme Court’s decision in Trump v. Hawaii establishes a new equal protection rule regarding when the presence of government animus will invalidate government action. McConville points out that under Trump, a stated nondiscriminatory justification will outweigh demonstrated animus, provided the means are “plausibly related” to that justification—a bar so low, she argues, it does a disservice to the integrity of equal protection doctrine.

A Strong Anti-Choice Signal From the Court

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UNLV Boyd School of Law professor Leslie C. Griffin discusses the US Supreme Court’s recent decision in NIFLA v. Becerra, in which a 5–4 majority of the Court struck down a California law requiring crisis pregnancy centers to inform their pregnant patients about abortion options. Griffin explains why the majority’s decision can only be read as a strong anti-choice signal that will only grow stronger with Justice Kennedy being replaced.

Questioning Justice Kennedy’s Replacement: Pay Attention Not Just to Roe v. Wade but Also the Right to Privacy and Contraception

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Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, explains why the impact of Justice Anthony Kennedy’s retirement from the US Supreme Court touches far more than just the issue of abortion—but the very notion of a constitutional right to privacy. Hamilton argues that if the Federalist Society has its way, the core reasoning of Roe v. Wade will be eviscerated and the constitutional right to privacy—from which the right to access to contraception and the right to engage in consensual sexual relations in private—will be eroded.

Kennedy’s Sadly and Unnecessarily Tainted Legacy

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GW law professor and economist Neil H. Buchanan comments on Justice Anthony Kennedy’s announcement that he is retiring from the Supreme Court and the legacy he leaves. Buchanan laments that Justice Kennedy’s last term on the bench can only be described as tragedy, as he joined the conservative 5–4 majority on critical cases that Buchanan predicts will have a lasting harmful effect on individuals across the country and the world.

Carpenter and the Beginning of the End of Privacy

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Cornell law professor Sherry F. Colb comments on the US Supreme Court’s recent decision in Carpenter v. United States, in which the Court held that the government must have a search warrant to obtain an individual’s cell-site location information (CSLI). Colb describes the Court’s holding and the dissenting opinions, and considers the Court’s minority (but growing) view that only property, and not privacy, is protected under the US Constitution—particularly when privacy rights encompass the right of a woman to obtain an abortion and the right of same-sex couples to engage in private, consensual sexual acts.

Can the Feds Subject “Sanctuary” Jurisdictions to Liability for Crimes Committed by Private Persons Who Are in the US Unlawfully?

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Illinois law dean and professor Vikram David Amar considers whether the federal government can subject so-called sanctuary jurisdictions to liability for crimes committed by private persons who are in the United States unlawfully, as two Republican-backed legislative proposals seek to do. Specifically, Amar discusses whether such liability constitutes unconstitutional commandeering of states under existing Supreme Court precedent.

Justice Kennedy’s Replacement and the Religious Test Awaiting

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Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on this week’s news from the US Supreme Court—its decisions upholding President Trump’s travel ban, striking down a California law affecting so-called crisis pregnancy centers, and the news that Justice Anthony Kennedy will be retiring. Hamilton cautions that the cases portend that, President Trump will, in effect, impose a religious test on candidates for Justice Kennedy’s replacement—a requirement expressly prohibited by the Constitution.

Silver Linings in an Otherwise Disappointing Travel Ban Ruling

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Cornell law professor Michael C. Dorf condemns the Supreme Court’s 5–4 decision upholding President Trump’s travel ban but describes a few silver linings that the ruling contains. Specifically, Dorf points out that the majority left open the possibility of future litigation challenging allegedly unlawful border policies, explicitly overruled its decision in Korematsu v. United States (which upheld the internment of Japanese Americans during World War II), denounced President Trump’s anti-Muslim statements, and served as a clear reminder that We The People can and should hold our elected official accountable for enacting or supporting abominable policies.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variet... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvani... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more