Articles Posted in Constitutional Law

“Respect” or “Defend” Marriage? The Senate Considers a Bill to Repeal the Defense of Marriage Act of 1996 (DOMA): Part One in a Two-Part Series of Columns

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In the first in a two-part series of columns about the Defense of Marriage Act (“DOMA”), Justia columnist and Hofstra law professor Joanna Grossman comments on the origins of DOMA; the reason DOMA did not have any practical implications until 2004; and why, even now, Section Two of DOMA has had no real effect. In Part Two of the series, Grossman will go on to consider Section Three of DOMA, which has had serious real-life implications, for it says that same-sex marriages cannot be recognized for any federal purpose.

When Do Message-Board Rants Count as Illegal Threats Against a Presidential Candidate? The Issue That Caused a Ninth Circuit Panel to Split, 2-1

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Justia columnist, attorney, and author Julie Hilden comments on a recent, split decision from a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. As Hilden explains, the case involved the “true threats” doctrine, which determines when a statement is an illegal threat, and when it is protected by the First Amendment. The defendant’s message-board postings about then-candidate Obama were ominous, but were they full-fledged threats under the legal test? Hilden explains why two Ninth Circuit judges said no, but one said yes.

The Sixth Circuit’s Big Rulings on Obamacare and Affirmative Action: The Second in a Two-Part Series of Columns

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Justia columnist and U.C. Davis law professor Vikram David Amar completes his two-part series of columns on two key decisions from the U.S. Court of Appeals for the Sixth Circuit. His last column focused on the Circuit’s Obamacare ruling; this one focuses on the Circuit’s ruling on an issue relating to affirmative action. Amar describes two different lines of Supreme Court precedent that offer different ways of analyzing affirmative action cases, and considers the possibility that the Court will take the opportunity—by reviewing this or another lower-court decision—to clean up apparent tensions between these two lines of High Court cases.

Sister Wives: An Illustration of Why Polygamy Is, and Should Be, Illegal

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Justia columnist and Cardozo law professor Marci Hamilton comments on the reality television show Sister Wives and the litigation that is connected to it. The family depicted on Sister Wives—consisting of one man, four “wives,” and 16 children—fled Utah to avoid potential bigamy charges. (Nevada’s bigamy law defines the offense in a less restrictive way than Utah’s does.) Now, the family’s lawyer, Jonathan Turley, is challenging Utah’s law as unconstitutional. Hamilton contends, to the contrary, that the law is perfectly constitutional, and explains the history of the law and the related precedent in support of her argument.

The Constitutionality of Senator McConnell’s “Last-Choice Option” for Averting Default

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Justia columnist and Cornell law professor Michael Dorf weighs in on the debate over whether Senator Mitch McConnell’s plan to prevent the federal government from defaulting on its obligations is constitutional. Dorf explains McConnell’s plan and analyzes three possible constitutional objections to it, concluding that none of these objections is, in the end, persuasive. Indeed, Dorf suggests that the more closely one looks at the plan, the more clear it is that it should be a first choice among possible solutions.

The Reality Show Sister Wives: Will Its Stars Prevail in Their Civil Rights Lawsuit?

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Justia columnist and Hofstra law professor Joanna Grossman covers the bigamy case that may soon arise from the reality TV show Sister Wives. As Grossman explains, the family at issue consists of a man, his four wives (one via legal marriage, and three via “spiritual marriage”) and his sixteen children and stepchildren. The family fled from Utah to Nevada to evade possible bigamy charges from Utah authorities. Grossman contrasts the bigamy laws of the two states, and considers whether the Supreme Court precedent of Lawrence v. Texas—the 2003 case where the Supreme Court held that the constitutional right of privacy includes a right of adults to enter into consensual, intimate relationships without interference from the state—protects bigamists.

Bryant v. Michigan and the Supreme Court’s Failed Approach to the Confrontation Clause

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Justia columnist and Cornell law professor Sherry Colb discusses a Supreme Court case from earlier this year concerning the Constitution's Confrontation Clause, which guarantees the right to confront one's accuser. She also, and more broadly, comments on the ongoing difficulties within the Court's Confrontation Clause jurisprudence as it has evolved over the years—difficulties that she argues call for important doctrinal revisions. Colb notes that the Court has read the confrontation right to confer an entitlement to cross-examine testifying witnesses, and that the right can apply to some out-of-court statements, as well—due to a rule with a rationale rooted in the early, troubling precedent of Sir Walter Raleigh's Case. Colb also makes clear the relationship between confronting one's accuser and the admission of hearsay in court.

The Debt Ceiling Law Is Unconstitutional: A Reply to Professor Tribe

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Justia columnist, George Washington law professor, and economist Neil Buchanan responds to a recent New York Times editorial by Laurence Tribe regarding the constitutionality of the federal government's debt ceiling. Tribe contended that the limit is constitutional; Buchanan contends that it is not. In his column, Buchanan summarizes and responds to Tribe's arguments regarding the key constitutional provision at issue, the Public Debt Clause.

The Sixth Circuit’s Big Rulings on Obamacare and Affirmative Action: The First in a Two-Part Series of Columns

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Justia columnist and U.C., Davis law professor Vikram Amar begins a two-part series on two important recent rulings by the U.S. Court of Appeals for the Sixth Circuit, both of which may end up before the Supreme Court. In this first column, Amar comments on the Sixth Circuit ruling that upheld Obamacare—citing a number of factors that make the decision noteworthy. These factors include a conservative judge's vote to uphold Obamacare; that same judge's use of broad reasoning in doing so; the fact that the dissenter was a district court judge; the decision's timing; and the arguments the two judges in the majority could have made, but declined to make, in support of the statute.

The Debt-Limit Crisis: A Problem That Will Keep Coming Back Unless President Obama Takes a Constitutional Stand Now

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Justia columnist, George Washington University law professor, and economist Neil H. Buchanan comments on the current situation regarding the federal debt limit, considers how it could be resolved, and notes that President Obama could take a constitutional stand in order to resolve the impasse. Buchanan begins by explaining for readers what the debt limit is and why it is important now; explains why the debt-limit law that set the ceiling was never necessary in the first place; describes the potentially very grave consequences of passing the debt-limit ceiling with that law in place, as it is now; and contends that our current game of political “chicken” regarding the debt limit is dangerous indeed. He then describes a possible constitutional solution that President Obama could opt for, based on arguments that the debt limit is illegitimate and void as a matter of constitutional law. Finally, Buchanan explains why, even if the debt limit were to be removed from the picture, an underlying, related problem with the political process would still remain.

Who Could Oppose a Level Playing Field? The Supreme Court, That’s Who

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Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court's recent, 5-4 decision in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. Dorf explains the Arizona campaign finance system at issue, which the Court struck down, and comments generally on the Court's approach to campaign finance, which he argues leaves loopholes that millionaire candidates can easily exploit. Dorf also explains the difference between "leveling up," where less wealthy candidates receive public money, and "leveling down," where wealthier candidates are limited in what they can spend – and notes how the Court has ruled on both approaches to campaign finance.

A Disingenuous Dissent: The U.S. Supreme Court Says a Suspect’s Youth Is Relevant to Miranda Rights

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Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court's recent, 5-4 decision in J.D.B. v. North Carolina. There, the Court held that when police interrogate a suspect under the age of eighteen, the suspect’s youth bears on the question whether he was in “custody” at the time-- and was therefore entitled to hear the Miranda warnings before questioning began. Colb discusses the role of custody and interrogation in Miranda's protections, and explains the arguments that the majority and dissenting Justices marshaled to justify their respective positions. In addition, she contends that the dissenters in the case -- four conservative Justices -- essentially opined as they did due to a fundamental dislike for Miranda itself, rather than due to the wish that they cited for greater certainty and clarity in Miranda's application.

The Supreme Court’s Ruling on “Violent” Video Games: The Majority Opinion, and the Dissents

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Justia columnist, attorney, and author Julie Hilden comments on the Supreme Court's decision yesterday, June 27, in the "violent" video games case. The Court decided, 7-2, to strike down California's law restricting minors' access to such games. Hilden explains the logic behind the opinion of the Court, written by Justice Scalia; contends that California made a mistake in framing its video-game law the way it did; and explains why Justice Breyer saw the case as more about the protection of children than about First Amendment rights, and accordingly dissented.

Same-Sex Marriage is Legal in New York: The In-State and National Ramifications

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Justia columnist and Hofstra law professor Joanna Grossman comments on the New York same-sex marriage law that was passed last Friday, June 24. She explains the details of the statute, and explains the legal context for, and ramifications of, this development -- both in New York State and nationally. Grossman also analyzes the exemptions that the law grants to religious institutions with respect to same-sex marriage, and notes that the provision of the new law that states that if part of the law is invalidated, the whole law is invalidated, makes challenges to the law especially perilous.

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 Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... 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 one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... 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

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Dale E. Fowler School of Law. Before that, he was University Profe... 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