Analysis and Commentary on Constitutional Law

Constitutional Lessons from the Senate’s Quick Processing of President-Elect Trump’s Cabinet Picks?

Illinois Law dean and professor Vikram David Amar describes two lessons we should take away from the Senate’s processing of President-elect Trump’s nominees for his Cabinet. First, Amar explains the constitutional difference between executive and judicial appointments. Second, Amar explains the relatively long time between the end of the election and when the president-elect actually takes office, and also proposes a way to reduce this period and ease transition.

Is It “Reasonable” For Police to Kill Dogs in the Homes that they Search?

Cornell University law professor Sherry F. Colb critiques a decision by the U.S. Court of Appeals for the Sixth Circuit holding that it was reasonable for police officers to kill two dogs in a home they searched. Colb first explains the facts behind the case and then argues that the police should have asked the dogs’ owner to subdue the dogs prior to the search, and that not doing so was unreasonable and led to the unnecessary killing of the dogs.

The Republican Fail on Sex Assault and Child Sex Abuse

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how many Republicans are responsible for blocking legislative change that would help victims of sexual assault and child sex abuse find justice. Hamilton argues that the current climate in the United States draws the line at protecting—whether implicitly or explicitly—perpetrators of sexual abuse and child sex abuse.

The North Carolina Legislature’s Power Grab is Unfair and Undemocratic. Is it Also Illegal?

Cornell University law professor Michael C. Dorf discusses the recent actions by the GOP-controlled North Carolina legislature stripping the newly elected Democratic Governor Roy Cooper of much of the power of his office. Dorf explains some of the potential legal challenges to this legislative action and argues that this reckless attitude is a danger to democracy.

This Holiday Weekend, Try Not to Be Penn State

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, points out that for many victims of child sexual abuse, the holiday season is a time of torture of revisiting painful memories, rather than joy. Hamilton calls upon us to address the problem of child sex abuse directly by changing the laws, teaching the adults, reforming the institutions, and supporting the victims.

Trump Should Work With Democrats on an Infrastructure Plan

George Washington law professor and economist Neil H. Buchanan explains why President-elect Donald Trump should work with Democrats to achieve the infrastructure plan he described during his campaign. As Buchanan argues, Trump can benefit politically from an infrastructure spending bill in ways that he would not if he were to focus instead on regressive tax cuts or changing international trade policy.

Ohio’s Six-Week Abortion Ban Bill and the Future of Roe v. Wade

Cornell University law professor Michael C. Dorf explains why a group of legislators in Ohio recently voted to adopt a law that prohibits abortion of any fetus with a “detectable heartbeat”—around six weeks after conception—in clear violation of the U.S. Supreme Court’s 1973 holding in Roe v. Wade. Dorf describes what a “Trump Court” might do (and what it might not do) with respect to this Ohio law and others like it.

How the Conservative Religious Coalition Won the 2016 Election— Part I: Education

In this first of a three-part series of columns, Marci A. Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, explains the U.S. Supreme Court jurisprudence that allowed a conservative religious coalition to implant itself in the American public education system. Hamilton argues that the coup de grâce of this movement is Donald Trump’s appointment of Betsy DeVos to Education Secretary, signaling a focus on ideology over the best interests of children.

California’s Defeated Condom Initiative and the First Amendment

Cornell University professor Sherry F. Colb discusses California’s Proposition 60, a ballot initiative that recently failed in that state that would have required male actors in pornographic movies to wear condoms during performances. Colb considers both a First Amendment challenge to the ballot initiative, as well as a possible response to that challenge, and she argues the law would likely pass muster under the First Amendment.

Why—and How—President-Elect Trump’s Conflicts of Interest Matter

Cornell University law professor Michael C. Dorf explains why President-elect Donald Trump’s conflicts of interests are problematic for the country. Dorf argues that the primary risk is that a Trump administration will pursue policies that further Trump’s business interests at the expense of the national interest. Dorf also points out two other risks posed by Trump’s conflicts of interest: the possibility of unjust enrichment and the cultural shift that corruption at the top could catalyze.

The Many Faces of Backlash

Cornell University law professor Joseph Margulies considers how the politics of quiescence and backlash might manifest itself in the areas of criminal justice and national security. As to national security, Margulies predicts that backlash will be particularly potent, but as to criminal justice, his poor decisions that disproportionately affect poor people of color will unable to generate the same political resonance.

Trump has Unleashed Forces that Put the Vulnerable at Risk, Which Means the Private Sphere Will Have to Step Up to Protect Them

Marci A. Hamilton, a Fox Distinguished Scholar in the Program for Research on Religion at the University of Pennsylvania, describes three individuals named to lead Donald Trump’s presidency who will threaten already-vulnerable communities. Hamilton argues that Mike Pence, Stephen Bannon, and Jeffrey Sessions are likely to reduce or eliminate the rights of gays, women, minorities, and children over the next four years unless the private sector steps up.

Labeling Moderate Muslims As Anti-Muslim Extremists

Chapman University, Fowler School of Law, professor Ronald D. Rotunda discusses the controversial designation of Maajid Nawaz, a practicing Muslim, and Ayaan Hirsi Ali, a Somali-born former Muslim, as “hateful extremists” by the Southern Poverty Law Center (SPLC). Rotunda argues that SPLC should reconsider its criteria for labeling someone an extremist, and he points out ways in which SPLC’s labeling system is inconsistent and misguided.

Liberal Activism in the Age of Trump

Cornell University law professor Michael C. Dorf shares some of the lessons he has learned as a vegan animal rights advocate, and explains how they apply to other policy areas. In particular, Dorf argues that in order to build a world in which presidential candidates do not pander to humanity’s basest otherizing instincts, we should aim to persuade our fellow humans of our point of view, not merely to organize to outvote them.

Raise the Rainbow Flag: Federal Court Rules that Title VII Bans Sexual Orientation Discrimination

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal district court in Pennsylvania holding that Title VII bans sexual orientation discrimination. Grossman describes the gradual recognition of sexual orientation discrimination as a cognizable injury under Title VII and praises the court for coming to the correct conclusion.

Constitutional Lessons From Comey’s Unwise “October Surprise” Decision to Comment on Clinton Investigation Yet Again

Illinois law dean and law professor Vikram David Amar describes three takeaway lessons from FBI Director James Comey’s decision to comment on the ongoing Clinton email investigation a second time. Amar argues that (1) with respect to investigators, sometimes less formal independence means more latitude to act out, (2) the FBI director should not operate outside of DOJ bounds, and (3) the DOJ policy of not commenting on ongoing investigations arises from the Constitution.

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, a Professor of Law at The George Washington Univ... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.  Bef... 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 one of the leading church/state scholars in the United States, a Fox Distinguis... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney, writer, and editor at Justia. He received his B.A. in Psychology from... 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

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more