Articles Posted in Constitutional Law

UC Davis Law professor Vikram David Amar analyzes Judge Aileen Cannon’s decision to dismiss the Mar-a-Lago document handling indictment against former President Donald Trump, focusing on the judge’s reasoning regarding Special Counsel Jack Smith’s appointment. Professor Amar argues that Judge Cannon’s ruling is flawed due to her failure to respect the proper role of a district court judge in relation to higher court precedents, particularly the Supreme Court’s Nixon tapes case, and her misunderstanding of the larger constitutional context surrounding special counsel appointments.

Criminal defense attorney Jon May examines Project 2025, a plan developed by conservative organizations to overhaul the Executive Branch, with a focus on its potential impact on the Department of Justice under a second Trump administration. Mr. May argues that Project 2025 is a roadmap for subverting the rule of law and transforming the DOJ into an instrument of political oppression, warning that its implementation would lead to authoritarian control, the politicization of law enforcement, and a threat to democratic principles.

Amherst professor Austin Sarat discusses the recent U.S. Supreme Court decision granting presidential immunity from prosecution for official acts and proposes a constitutional amendment as a response. Professor Sarat argues that pursuing a constitutional amendment to overturn this decision is the best way to engage the American people in defending democracy, reaffirming commitment to constitutional governance, and resisting judicial supremacy.

University of Pennsylvania professor Marci A. Hamilton examines the current U.S. presidential candidates, Donald Trump and Joe Biden, through the lens of the Founding Fathers’ constitutional principles and concerns about tyranny and abuse of power. Professor Hamilton argues that neither candidate is suitable for the presidency based on the Framers’ ideals, with Biden potentially leading to an ineffective government due to age-related issues and Trump posing a threat to democracy through his authoritarian tendencies, ultimately suggesting that voters should reject both options.

Amherst professor Austin Sarat discusses the recent Supreme Court decision in Trump v. United States and its implications for presidential immunity and the rule of law in America. Professor Sarat argues that the decision “will live in infamy” and marks a dangerous shift towards authoritarianism by effectively placing the President above the law, contradicting fundamental constitutional principles and previous statements made by the Justices themselves.

University of Chicago law professor emeritus Albert W. Alschuler discusses the Supreme Court’s recent rulings in United States v. Rahimi and New York State Pistol and Rifle Association v. Bruen, focusing on their approach to interpreting the Second Amendment through historical analogues. Professor Alschuler argues that the Court’s reliance on irrelevant historical examples while disregarding relevant history is flawed, and that the Bruen standard is neither originalist nor workable, predicting that it will eventually be abandoned in favor of a more flexible approach that allows for some degree of interest balancing in Second Amendment cases.

Cornell Law professor Michael C. Dorf discusses key cases from the U.S. Supreme Court’s 2023 Term, focusing on cases where the Court made non-merits decisions and cases with high stakes beyond their precedential value. Professor Dorf argues that the Court’s procedural dismissals in significant cases like those involving social media content moderation and abortion access led to public confusion and missed opportunities to clarify important legal questions, while its rulings in high-stakes cases such as those involving former President Donald Trump had immediate and far-reaching consequences that sometimes overshadowed their legal precedents.

UC Davis Law professor Vikram David Amar discusses the media's coverage of Supreme Court decisions, particularly focusing on the end-of-term rulings and their interpretation by journalists. Professor Amar argues that many prominent media organizations consistently misrepresent the Court’s actions by drawing incorrect conclusions from decisions not to review cases or dismissals, misinterpreting jurisdictional rulings as judgments on the merits, and making unfounded predictions about case outcomes, thus failing to meet basic standards of accuracy in legal reporting.

Amherst professor Austin Sarat discusses the Supreme Court’s recent decision in City of Grants Pass v. Johnson and its broader approach to Eighth Amendment cases, particularly those involving cruel and unusual punishment. Professor Sarat argues that the Court’s conservative majority, led by Justices Neil Gorsuch and Clarence Thomas, is systematically weakening Eighth Amendment protections by adhering to a narrow originalist interpretation, ignoring evolving standards of decency, and showing indifference to vulnerable populations like the homeless.

Amherst professor Austin Sarat discusses the current state of political violence in the United States, focusing on recent polls, statements from political leaders, and the impact on public officials. Professor Sarat argues that there is an alarming asymmetry in the acceptance of political violence, with MAGA Republicans more likely to endorse it; he calls for addressing this issue through education, electoral efforts, and legal accountability, while urging presidential debate moderators to question candidates on this critical topic.

Amherst professor Austin Sarat discusses a legal and political controversy in Arizona surrounding the execution of death row inmate Aaron Gunches, involving various state officials including the county attorney, attorney general, and governor. Professor Sarat criticizes Maricopa County Attorney Rachel Mitchell’s unprecedented and allegedly illegal attempt to seek a death warrant, portraying it as a politically motivated move that undermines the established legal process and threatens to create chaos in Arizona's death penalty system.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone examine the current term of the U.S. Supreme Court, addressing common criticisms that the Court has become a partisan, far-right institution aggressively pushing a conservative agenda. Professors Amar and Mazzone argue that, contrary to these criticisms, the Court’s decisions in the 2023-24 term have not been consistently conservative or partisan, and that many of the high-profile cases were essentially thrust upon the Court rather than actively sought out, suggesting a more nuanced and less ideologically driven approach than critics claim.

UC Davis Law professor Vikram David Amar and researcher Ethan Yan discuss North Dakota’s recently passed Initiated Measure 1, which prohibits anyone over the age of 81 from serving in or being on the ballot for the U.S. House or Senate. Professor Amar and Mr. Yan argue that Measure 1 violates the Twenty-Sixth Amendment’s prohibition on age discrimination in voting rights, which they contend includes the right to be voted for and hold office, making the measure unconstitutional even if the Supreme Court were to overturn its precedent barring states from adding congressional qualifications beyond those in the Constitution.

Cornell Law professor Michael C. Dorf discusses the U.S. Supreme Court’s recent 6-3 decision in Garland v. Cargill, which invalidated a federal regulation banning bump stocks by finding that they do not fall under the statutory definition of a machinegun. Professor Dorf argues that the Justices’ ideological views on gun control, rather than principled differences in interpretive methodology, best explain the divided outcome in this case and many other closely contested Supreme Court cases.

UC Davis Law professor Vikram David Amar discusses a recent Illinois state court ruling in Colazzo v. Illinois State Board of Elections, which dealt with the complex issue of ballot access and the application of a new state law that would have prevented certain Republican candidates from appearing on the November 2024 general election ballot. Professor Amar argues that while the court reached the correct result in this case, the reasoning behind the decision raises interesting questions about the independence of state law grounds, the constraints on altering election rules close to an election, and the need to balance fairness and notice concerns with the importance of each election in maintaining democratic integrity.

Amherst professor Austin Sarat discusses the reactions of former President Trump and his allies to his conviction in the New York hush money trial, including their claims that the prosecutions against him are politically motivated and their threats to retaliate with prosecutions against Democrats if Trump is re-elected. Professor Sarat argues that these false allegations and threats represent a dangerous escalation in the MAGA campaign to discredit the rule of law and turn criminal prosecution into a tool of political combat, which would undermine fundamental freedoms and allow future presidents to target individuals based on their political views rather than actual crimes committed.

UC Davis Law professor Vikram David Amar discusses how California’s Rule of Court 2.1008, which allows individuals aged 70 and older to be excused from jury service due to disability without requiring documentation, may violate the Twenty-Sixth Amendment’s prohibition on age discrimination in voting rights. Professor Amar argues that since jury service is a form of political participation akin to voting, singling out those 70 and older in a way that reduces their jury participation based on assumptions about age and disability is constitutionally problematic, just as it would be to excuse women from juries based on assumptions about their domestic responsibilities.

Former federal prosecutor Dennis Aftergut discusses Supreme Court Justice Samuel Alito’s refusal to recuse himself from a case involving Donald Trump’s claim of immunity related to the January 6th Capitol riot, despite flags associated with the insurrection being flown at Alito’s properties. Mr. Aftergut argues that Alito’s non-denial denials and failure to condemn the violence on January 6th raise serious questions about the appearance of impropriety and the Court’s legitimacy, suggesting that Alito should recuse himself to maintain public trust in the institution.

UC Davis Law professor Vikram David Amar discusses the U.S. Supreme Court’s recent decision in Consumer Financial Protection Bureau (CFPB) v. Community Financial Services Association of America, Ltd., which upheld the constitutionality of the CFPB’s funding scheme, and examines the role of “history and tradition” in the Court’s constitutional jurisprudence. Professor Amar argues that while relying on post-enactment traditions to interpret the Constitution raises complex questions, especially in the context of originalism, such traditions may be more defensible when determining the scope of individual rights as opposed to structural provisions like separation of powers and federalism.

Amherst professor Austin Sarat discusses former President Donald Trump’s recent attacks on the legal system and Congress, highlighting how his rhetoric exploits and exacerbates the American public's growing mistrust and disillusionment with these institutions. Professor Sarat argues that even if Trump is defeated in the upcoming election, the U.S. must address the underlying issues causing this vulnerability in order to restore public confidence and ensure the survival of American democracy in the face of Trumpism.