Articles Posted in Constitutional Law

UC Davis Law professor Vikram David Amar, Illinois Law professor Jason Mazzone, and Illinois Law’s First Amendment Clinic director Lena Shapiro examine the legal intricacies and constitutional debates surrounding a federal district court’s dismissal of the Disney Corporation’s lawsuit against Florida officials, in which Disney alleges retaliatory action for Disney’s criticism of Florida laws by changing the governance of the land regulating Disney World. The authors highlight the complexity of First Amendment issues involved, the precedent set by prior cases, and the broader implications for speech regulation and governmental retaliation, suggesting areas for deeper academic exploration.

Cornell Law professor Michael C. Dorf comments on the Alabama Supreme Court’s decision last week in LePage v. Center for Reproductive Medicine, P.C., in which it equates frozen embryos with “extraeuterine children,” thereby using fetal personhood rhetoric to jeopardize IVF practices. Professor Dorf argues that this reasoning not only undermines prospective parents’ freedoms but also reflects a flawed understanding of rights as zero-sum, contrasting sharply with instances where expanding rights can enhance societal well-being.

Amherst professor Austin Sarat comments on a lawsuit filed by David Phillip Wilson, currently on Alabama’s death row for a 2004 murder, claiming that Alabama’s plan to execute him by nitrogen gas violates the Constitution’s ban on cruel and unusual punishment. Professor Sarat notes the state’s problematic history with gas executions and the recent painful, 22-minute execution of Kenneth Smith by nitrogen gas, and argues that Wilson’s lawsuit makes a compelling case that nitrogen hypoxia presents a substantial risk of severe pain and suffering.

Cornell Law professor Michael C. Dorf comments on last week’s Supreme Court oral arguments in Trump v. Anderson, in which the Justices seemed inclined to overturn the Colorado Supreme Court’s decision that disqualified Donald Trump from the state’s Republican primary under the Fourteenth Amendment for “engaging in insurrection.” Professor Dorf points out that the Justices’ questioning revealed a spectrum of potential rationales, from concerns over political retribution and the historical interpretation of Section 3 of the Fourteenth Amendment to structural arguments about federal versus state authority in determining a candidate’s eligibility for the presidency.

UC Davis Law professor Vikram David Amar expresses concern over the quality of the Supreme Court’s oral argument in Trump v. Anderson, suggesting that the Justices’ questions failed to adequately address the complexities of the case and the constitutional principles at stake, particularly regarding the electoral college and interstate federalism. Professor Amar critiques the Court’s understanding of the electoral college system, arguing that the Justices’ apprehensions about the potential consequences of their decision overlook the inherent flexibility states have in appointing electors—a flexibility underscored by originalist constitutional interpretations and past precedents.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, argues that the U.S. Supreme Court should uphold the decisions of the Colorado and Maine courts that disqualified Donald Trump from running for President under Section 3 of the 14th Amendment based on his role in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy identifies several ways that the Court could rationalize putting Trump back on the ballot and explains the legal and consequential problems with each. In particular, Mr. Falvy criticizes the superficially appealing “let the people decide” line of thought, pointing out that it is actually highly undemocratic and dangerous; indeed, such dictators as Louis-Napoléon Bonaparte in France, Adolf Hitler in Germany, and Hugo Chavez in Venezuela, each launched a failed coup d’état, endured a short stint in jail, and returned to win power through elections.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone comment on a federal lawsuit filed by the Republican National Committee and the Republican Party of Mississippi, among others, challenging Mississippi’s law that counts mail-in ballots postmarked by Election Day but received within five business days thereafter for federal elections. Professors Amar and Mazzone argue that this lawsuit is unlikely to succeed due to the implausibility of its legal theory, highlighting the distinction between the act of voting and the counting of votes, and underscoring the constitutional and statutory framework that grants states broad leeway in election administration, including the acceptance of mail-in ballots.

Cornell Law professor Michael C. Dorf discusses the recent execution of Kenneth Eugene Smith by nitrogen hypoxia in Alabama, questioning the humanity of this method and comparing it unfavorably to other methods like lethal injection and electrocution. Professor Dorf delves into the complexities of the death penalty, including the constitutional implications, the effectiveness of alternative execution methods, and the ethical dilemmas facing death penalty abolitionists and pharmaceutical companies regarding the provision of more humane execution drugs.

Cornell professor Joseph Margulies reflects on the Department of Justice’s recent indictment of four Russian officers for torturing an American in Ukraine, interpreting it as a significant legal and moral statement against torture. Professor Margulies speculates whether this action represents a broader condemnation of torture or a narrower stance against torture when Americans are victims, contrasting it with the U.S.’s own history of torture post-9/11.

Amherst professor Austin Sarat laments the continued occurrence of botched executions in the United States, focusing on the recent introduction of nitrogen hypoxia in Alabama, which resulted in another failed attempt. Professor Sarat describes the disturbing details of Kenneth Smith’s execution, where the promise of a quick and painless death by nitrogen hypoxia was broken, leading to a prolonged and torturous process, thus adding to the history of failed executions with new methods in the United States.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, examines the constitutional and political implications of a Colorado Supreme Court ruling that disqualified Donald Trump from running for president in 2024, based on his involvement in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy discusses the legal and factual issues that the U.S. Supreme Court will have to resolve in the case, and the potential impact of its decision on the country's future.

Amherst professor Austin Sarat argues that the Supreme Court should use the case of Richard Glossip, a death row inmate who claims actual innocence, to declare that the Constitution forbids executing the innocent. Professor Sarat points out the various procedural problems and prosecutorial misconduct in Glossip’s case, as well as the Supreme Court’s precedents on actual innocence claims—which support his argument for addressing this fundamental issue of justice.

Amherst professor Austin Sarat argues that the U.S. Supreme Court should grant review in Warren King’s death penalty case, which epitomizes the persistent racial biases in jury selection, especially in death penalty cases. Professor Sarat emphasizes the significance of the Batson v. Kentucky decision against race-based juror exclusion, critiques its inadequate enforcement, and argues that King’s case, marked by discriminatory jury selection, offers the Court a crucial opportunity to reinforce Batson and address racial prejudice in the legal system.

Cornell Law professor Michael C. Dorf discusses Republicans’ political manipulation of the impeachment process, particularly in the context of Donald Trump’s flawed immunity claims and House Republicans’ baseless impeachment investigations against President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. Professor Dorf emphasizes that impeachment should be grounded in actual high crimes and misdemeanors, not political disagreements or policy choices.

Amherst professor Austin Sarat discusses the movement against life without parole (LWOP) sentences in the United States, highlighting its flaws similar to those in the death penalty system, including racial disparities and the finality of judgment. Professor Sarat commends the Massachusetts Supreme Judicial Court’s recent ruling against LWOP for offenders under 21, signaling a significant step towards reevaluating and potentially ending LWOP sentences, paralleling efforts against capital punishment.

Amherst professor Austin Sarat argues that in Tuesday’s oral argument before the U.S. Court of Appeals for the D.C. Circuit, Donald Trump’s lawyer, John Sauer, contorted the Constitution’s language to claim presidents have absolute immunity from criminal prosecution for official acts, despite Trump’s impeachment lawyers previously stating presidents could face prosecution once leaving office. Professor Sarat points out that the appeals court judges appeared unconvinced by Sauer’s arguments, questioning how his broad immunity claim aligns with constitutional checks on presidential power.

UC Davis Law professor Vikram David Amar comments on the Wisconsin Supreme Court’s recent decision invalidating the state’s legislative district lines based on its finding that they were unconstitutional due to non-contiguous territories, a decision criticized by conservatives as partisan. Professor Amar points out that this ruling, focused only on state legislative districts, does not directly implicate the “Independent State Legislature” theory discussed in the U.S. Supreme Court’s Moore v. Harper case, as it pertains to state, not federal, elections. Furthermore, Professor Amar argues that the decision’s compliance with straightforward state constitutional text suggests federal courts are unlikely to find it violates due process or republican government principles, illustrating the limited role of federal oversight in state court interpretations of state law post-Moore.

Amherst professor Austin Sarat discusses how Special Counsel Jack Smith’s recent filing regarding Donald Trump’s claim of presidential immunity is grounded in arguments previously made by Republican Senator Mitch McConnell. McConnell, on the Senate floor in 2021, recognized Trump’s moral and practical responsibility for the January 6 events, pointed out that impeachment is not the only avenue for accountability, and acknowledged that Trump, as a private citizen, could be subject to criminal and civil litigation for his actions while in office.

Amherst professor Austin Sarat comments on the divergent paths of Florida and Ohio with respect to capital punishment in those states. Professor Sarat argues that it is time for America to make up its mind on the death penalty and either follow Ohio’s path toward a future without capital punishment, bringing this country into line with the community of nations, or else follow Florida’s example by expanding death sentences and executions.

University of Pennsylvania professor Marci A. Hamilton discusses the transformation of religious liberty in the United States into a force that can harm others, critiquing the misuse of the Religious Freedom Restoration Act (RFRA) and the rise of radical religious liberty law. Professor Hamilton argues that while religious liberty includes the absolute right to believe and speak about one's religion, it should not extend to conduct that harms others, warning against the dangerous trend of using religious liberty as a weapon against marginalized groups and advocating for a return to the original principles of the First Amendment.