Analysis and Commentary on Constitutional Law
The Religious Liberty Step Too Far That Could Destroy the Common Good If We Let It

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.

Another Bad Argument Against the Application of Section 3 of the Fourteenth Amendment to President Trump: Part Two of a Two-Part Series

In this second of a series of columns, UC Davis Law professor Vikram David Amar responds to arguments against disqualifying Donald Trump from presidential election ballots under Section 3 of the Fourteenth Amendment, focusing on Ross Douthat’s assertion in a New York Times essay that such disqualification is antidemocratic. Professor Amar argues that enforcing constitutional provisions, including Section 3, is not antidemocratic as it reflects the will of the people, and he emphasizes that the real question is whether the requirements of Section 3 have been met in Trump’s case.

Utah Judge Clears the Way for the First Firing Squad Execution in More Than a Decade

Amherst professor Austin Sarat comments on the case of Ralph Leroy Menzies, who has been on Utah’s death row for 35 years and holds conflicting views on his execution: he insists on being executed by firing squad, yet argues that this method constitutes cruel and unusual punishment under Utah’s constitution. Professor Sarat discusses Utah District Judge Coral Sanchez’s ruling that the state could proceed with the execution by firing squad, dismissing Menzies’s argument and granting the state significant discretion in carrying out the execution, even if it cannot guarantee a painless death.

Bad Arguments Against the Application of Section 3 of the Fourteenth Amendment Against President Trump: Part One of a Two-Part Series

UC Davis Law professor Vikram David Amar points out flaws in Professor Larry Lessig’s argument in Slate regarding the inapplicability of Section 3 of the 14th Amendment to Donald Trump, emphasizing that the presidency is indeed an “office under the United States” and therefore covered by Section 3. Professor Amar highlights Professor Lessig’s failure to address this key point and questions why Professor Lessig’s essay overlooks the fact that federal legislators are not considered officers under the United States, a crucial distinction in constitutional law.

A Holiday Guide to Donald Trump’s Latest Cases at the Supreme Court

Cornell Law professor Michael C. Dorf points out that the U.S. Supreme Court faces critical decisions in two cases involving former President Donald Trump: one regarding his claim of absolute immunity against charges for his role in attempting to overturn the 2020 election, and the other concerning his eligibility for the Presidency under Section 3 of the Fourteenth Amendment. Professor Dorf argues that despite Trump’s legal team arguing for more time due to the complexity of the immunity case, the Court should expedite its review in both cases, given the urgency of presidential primaries and the weak nature of Trump’s claims, especially against the well-founded argument that he is ineligible under the Fourteenth Amendment due to insurrectionist activities.

If and When American Democracy Dies, Young People May Be to Blame

Amherst professor Austin Sarat observes that in the United States, democracy faces assaults from MAGA extremists led by Donald Trump and, to a lesser extent, the illiberalism of the extreme left, with a notable shift in attitudes among young people who are less attached to democracy compared to older generations. Professor Sarat argues that the deepening political divide, along with the disillusionment of young people with democracy’s perceived failures in addressing issues like social justice and racial equality, poses a significant threat to the future of democratic governance in the country.

Alabama Acknowledges Dangers of Nitrogen Hypoxia Executions But Wants to Carry One Out Anyway

Amherst professor Austin Sarat discusses Alabama’s plan to use nitrogen hypoxia for the first time in the execution of Kenneth Smith, raising concerns about its safety and humanity. The method has prompted criticism, including a lawsuit by Reverend Jeff Hood, who argues that Alabama’s requirement for him to maintain distance during the execution infringes on religious liberties and creates a hostile environment for spiritual advisers. Professor Sarat highlights the untested nature of nitrogen hypoxia, its potential for causing seizures and suffocation, and the broader ethical issues surrounding the continued search for a “humane” method of execution.

Bad and Worse Ways for the Government to Lose the SEC SCOTUS Case

Cornell Law professor Michael C. Dorf comments on the pending U.S. Supreme Court case SEC v. Jarkesy, which questions the constitutionality of administrative law judges (ALJs) in the SEC and their role in enforcing securities laws. While Professor Dorf believes the Court should reject all three constitutional challenges presented in the case, he suggests that if the Court does rule against the government, the least disruptive outcome would be based on the removal issue rather than the Seventh Amendment or nondelegation claims.

Supreme Court’s Hands-Off Attitude Contributes to Growing Public Doubts about the Death Penalty

Amherst professor Austin Sarat reflects on the Death Penalty Information Center’s year-end report, which highlights both progress in abolishing capital punishment in the U.S. and the Supreme Court’s reluctance to ensure fairness in death penalty cases. Professor Sarat argues that the Supreme Court’s diminishing role in scrutinizing death penalty cases and its tolerance for injustice in these matters may be contributing to growing public skepticism about the death penalty, evidenced by increasing support among lawmakers and the public for its repeal or limitation.

How Important is the Eighth Circuit’s Recent Ruling that the Voting Rights Act Does Not Contain a Private Right of Action? Section 1983 and Ex Parte Young as Workarounds

UC Davis law professor Vikram David Amar argues that a recent decision by the U.S. Court of Appeals for the Eighth Circuit, holding that Section 2 of the Voting Rights Act does not confer a private right to sue, may not be as catastrophic as some fear, given that there are potential workarounds for victims of Voting Rights Act violations. Professor Amar suggests that plaintiffs could use alternatives like 42 U.S.C. § 1983 or Ex Parte Young to address violations, as these routes do not require an explicit or implied private right of action under the statute being violated.

This Is Why I Have Faith in the Future of the United States Despite the Ill Winds of Fascism and Christian Nationalism

University of Pennsylvania professor Marci A. Hamilton argues that the United States faces two significant threats: Donald Trump, whom she describes as a fascist with dictatorial aspirations, and a right-wing evangelical-fundamentalist Catholic axis intent on a theocratic takeover, both of which undermine democracy and civil rights. Professor Hamilton emphasizes that these threats are bolstered by historical distortions and a disregard for the Constitution, yet she expresses hope in the public’s rejection of this authoritarianism, as evidenced by reactions to the Dobbs v. Jackson Women’s Health Organization decision and the preservation of abortion rights in conservative states.

Thirty-Five Years of the “Citizens’ Constitution” of Brazil: A Review

Carlos Bolonha, professor of law at Federal University of Rio de Janeiro; Igor De Lazari, a PhD student at Federal University of Rio de Janeiro and state judge; and Antonio Sepulveda, professor of law at Getulio Vargas Foundation (FGV) and at the Fluminense Federal University; highlight the Brazilian Constitution’s adaptability and resilience over 35 years, having undergone 131 amendments to address contemporary democratic challenges and maintain stability despite political and economic turmoil. Despite these successes, there remains a significant gap between the constitutional promises and their actual fulfillment among Brazilians, with issues like widespread disinformation, inconsistent legal applications, and a lack of popular constitutional engagement still prevalent.

When Free Speech Isn’t Free

Amherst professor Austin Sarat discusses the complex and often costly nature of exercising free speech, particularly in the wake of controversial statements made by universities and their students about the Hamas terrorist attack in Israel on October 7. Professor Sarat highlights the backlash faced by those who have spoken out, from university donors withdrawing support to law firms rescinding job offers, and he argues that while free speech is a right, it is not without significant repercussions—both socially and professionally.

Originalist Reasons the Tax in Moore v. United States is Constitutional: Lessons from Hylton v. United States (1796)

UC Davis law professor Vikram David Amar discusses the upcoming Supreme Court case, Moore v. United States, which involves a tax issue concerning a husband and wife who are shareholders in a company located in India. Professor Amar argues in this column and in his amicus brief, which he co-authored with Professor Akhil Amar, that the tax in question is constitutional, drawing support largely from the Supreme Court’s 1796 case Hylton v. United States.

Did SCOTUS Finally Wake Up to the Threat of State Nullification of Federal Law?

Cornell Law professor Michael C. Dorf discusses the effect and implications of Texas’s SB8 law and Missouri’s Second Amendment Preservation Act (SAPA) on federal law and the judiciary. Professor Dorf argues that both laws employ a strategy to circumvent federal court review, but suggests there may be growing recognition among Supreme Court Justices of the dangers posed by such laws, which seek to undermine federal authority and judicial review.

How Those Seeking Donald Trump’s Disqualification From Running For President Will Plunge the Election Into Chaos and Hand Trump the Presidency

Criminal defense attorney Jon May critiques an argument by Harvard Professor Emeritus Laurence Tribe and Judge Michael Luttig that Donald Trump is automatically disqualified from running for President again under Section 3 of the 14th Amendment, even without a conviction for insurrection. Mr. May contends that such a reading of Section 3 could lead to political chaos and civil unrest, and argues that the U.S. Supreme Court, which has the ultimate say, may not endorse a self-executing interpretation that could have such far-reaching and divisive consequences.

Future of Affirmative Action in Employment Decisions

NYU Law professor Samuel Estreicher comments on the U.S. Supreme Court’s recent decision striking down the use of racial preferences in college admissions at Harvard and the University of North Carolina, creating uncertainty about the future of affirmative action in both higher education and employment. Professor Estreicher points out that while the Court opposed the “outright racial balancing” used by the universities, it left room for race-based “make whole” remedies in cases of proven intentional discrimination, raising questions about the permissible extent of race-based remediation and its applicability in various contexts, including employment.

Senator Bob Menendez’s Indictment Shines an Interesting Spotlight on New Jersey’s U.S. Senate Vacancy-Filling Procedures

UC Davis Law professor Vikram David Amar and Yale College senior Ethan Yan discuss the complexities and legal questions around a potential U.S. Senate vacancy in New Jersey, focusing on the current political situation surrounding Senator Bob Menendez. Professor Amar and Mr. Yan conclude that while New Jersey law allows Governor Phil Murphy considerable discretion in filling a Senate vacancy, including the possibility of appointing his wife Tammy, such a move would likely be politically damaging, even if constitutionally permissible.

Fox News Host Greg Gutfeld Says the Quiet Part Out Loud: Right-Wingers Prefer Bullets to Ballots

Amherst professor Austin Sarat describes how Fox News personality Greg Gutfeld has escalated right-wing attacks on American democracy by suggesting that elections are futile and calling for civil war as the only solution to the country's problems. Professor Sarat warns that Gutfeld’s rhetoric, unrepudiated by Fox News, poses an urgent threat to democracy and calls on the media and political leadership to educate the public on the dangers of such a mindset.

Maybe the Speaker of the House Must be a Member of Congress

Cornell Law professor Michael C. Dorf analyzes whether the U.S. House of Representatives can choose a Speaker who is not a current member of Congress. While conventional wisdom suggests that a non-member could serve as Speaker due to the lack of explicit qualifications in the Constitution, Professor Dorf argues that this interpretation may be faulty, citing original understanding, historical practice, and functional considerations. Professor Dorf concludes that while the Constitution is unclear on this issue, the absence of explicit language should not be taken as carte blanche to make any choice, and that both liberals and conservatives should be cautious in their assumptions about what the Constitution does or does not allow.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... 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... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

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

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

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