Analysis and Commentary on Constitutional Law

The United States Olympic Committee and the USA Gymnastics NGB Need to Be Dissolved and Reconstituted

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, calls upon Congress to dissolve and reconstitute the United States Olympic Committee and USA Gymnastics due to their inept handling of child sex abuse within those organizations. Hamilton points out that private organizations have boards of directors who shoulder responsibility for correcting actions of their organizations, but Congress must act when the bad actors are within national governmental bodies (NGBs) such as USOC and USA Gymnastics.

About That Op-Ed: Ideological Consensus Trumps Political Demagoguery

Cornell law professor Joseph Margulies explains how the recent anonymous op-ed published in The New York Times underscores the fundamental continuity between the Obama and Trump administrations on issues of national security. As Margulies observes, our approach to national security in the post-9/11 world has achieved hegemonic status, but we should hope that some future president might not share the same hegemonic view of transnational terror and instead may try to set national security on a different course.

How Bad Will Things Become? Part Two

In this second part of a series of columns, GW law professor and economist Neil H. Buchanan considers how the United States, and indeed the world, would shift substantially to the right with a Justice Brett Kavanaugh on the Supreme Court. Buchanan explains not only what might change, but how we can expect that change to come about, as well.

Trump Can Destroy NAFTA Alone But Cannot Replace It Without Congressional Help

Cornell law professor Michael C. Dorf explains why President Trump can unilaterally undermine NAFTA but cannot act to replace it without help from Congress. Dorf distinguishes treaties from “congressional-executive agreements” (NAFTA is an example of the latter), and he points out that any new agreement Trump seeks to enter with Canada and Mexico that differs in any substantial way from NAFTA can only become effective upon the passage of new legislation by Congress.

Judge Kavanaugh on the Second Amendment

Alan Brownstein, an emeritus law professor at UC Davis Law, comments critically on the sole opinion—a dissent—US Supreme Court nominee Brett Kavanaugh has written about the Second Amendment. Brownstein points out two critical fallacies of Judge Kavanaugh’s position with respect to Second Amendment challenges to gun regulations articulated in that dissenting opinion.

The More Things Change: Donald Trump and the National Security State

Cornell law professor Joseph Margulies describes the ways in which the United States has changed (and remained the same) in its approaches to national security, from President George W. Bush to President Barack Obama to President Donald Trump. Margulies refers to a column he wrote in January 2017 predicting the trajectory of national security under President Trump and points out that many of his predictions have come to pass.

Supporting Religion is Not Always Good for Religious Freedom

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

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

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

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

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

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

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

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

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

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

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?

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?

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

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.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in con... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more