Analysis and Commentary on Constitutional Law
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.

What the First Guilty Plea in Trump’s Georgia Prosecution Tells Us About DA Willis’s Strategy

Former federal prosecutor Dennis Aftergut discusses Fulton County District Attorney Fani Willis’s legal strategy in her case against Donald Trump and various co-defendants for an alleged conspiracy to overturn the 2020 election. Mr. Aftergut observes that Willis seems to be focusing on securing guilty pleas from less central co-conspirators to strengthen her case against major defendants like Trump, Rudolph Giuliani, and Sidney Powell, while potentially offering lesser charges to those willing to cooperate and testify, thereby avoiding the risk of revealing too much of her case before a full trial.

Partisan Gerrymandering Case Under the New Mexico Constitution Nears Critical Point

UC Davis Law professor Vikram David Amar discusses the ongoing legal battle over congressional redistricting in New Mexico, where Republicans have filed a lawsuit claiming that new district maps favor Democrats and violate the state constitution. Professor Amar emphasizes the importance for the New Mexico state courts to clearly base their rulings on the state constitution rather than the federal Constitution, and to justify their decisions more explicitly so as to demonstrate greater legitimacy.

Mr. Menendez is Presumed Innocent. Senator Menendez is Not.

Cornell Law professor Michael C. Dorf discusses the indictment against New Jersey Democratic Senator Robert Menendez, who is accused of accepting bribes to influence foreign relations and other matters. Professor Dorf acknowledges the legal presumption of innocence in a criminal trial setting but argues that due to the ethical responsibility Senators have towards their constituents and the country, they are not entitled to the same presumption in their role, and the weight of the allegations and evidence against Menendez should prompt his resignation or expulsion from the Senate.

2023 Has Brought Mixed News for Death Penalty Abolitionists

Amherst professor Austin Sarat observes that the push for death penalty abolition in the United States faced a year of mixed outcomes in 2023, marked by a rise in executions but also legislative progress in some states like Washington. Professor Sarat observes that states like Alabama and South Carolina are making efforts to proceed with executions using new methods or secured drug supplies, Ohio and Tennessee have shown more cautious or progressive stances, signaling an incremental and complex journey toward abolition.

Texas Re-Fights the Civil War

Cornell Law professor Michael C. Dorf discusses a recent legal battle over Texas’s placement of buoys and barriers in the Rio Grande River to deter migrants, a move ruled likely unlawful by Federal District Judge David Ezra. Professor Dorf criticizes Texas’s subsequent emergency stay appeal, argues that the state’s legal justifications are implausible and undermine federal supremacy, and suggests that the state is improperly attempting to sidestep federal authority on issues of national security and immigration.

Does Diversity Have a Future?

Cornell Law professor Michael C. Dorf argues that while the recent departure of Stanford’s associate dean for Diversity, Equity, and Inclusion (DEI) is noteworthy, the broader issue is the legal status of diversity initiatives following the recent Supreme Court ruling in Students for Fair Admissions v. President and Fellows of Harvard College. Professor Dorf contends that despite the Court’s skepticism towards race-based affirmative action, DEI offices still have a legitimate role, albeit one that may need to adjust its approaches to promoting diversity and inclusion.

Georgia Defendant Kenneth Chesebro Got His Speedy Trial Date; He May Soon Lament Not Being Careful About What He Wished For

Former federal prosecutor Dennis Aftergut comments on the Fulton County indictment process involving Donald Trump and 18 others, including Kenneth Chesebro, who allegedly created the “fake elector” scheme. Mr. Aftergut explains the possible strategies by the prosecutor and defense, focusing on how Chesebro’s now-severed trial could pave the way for other prosecutions in the case, and provides insights into the evidence against him, emphasizing that a conviction in his trial could offer momentum for cases against Trump and other defendants.

Idaho Judge Opens the Door for an Exploration of the Psychological Cruelty of Capital Punishment

erst professor Austin Sarat comments on the case of Gerald Pizzuto, whom the state of Idaho has sought to execute by lethal injection five times since his 1986 conviction for first-degree murder. Professor Sarat points out that U.S. District Court Judge B. Lynn Winmill, who ruled in Pizzuto’s case, recognized the inherent psychological cruelty of capital punishment, particularly when it involves repeated rescheduling of execution dates.

Justice Alito is Wrong: Congress Can and Does Regulate the Supreme Court

Cornell Law professor Michael C. Dorf responds to a recent Wall Street Journal “puff piece” on U.S. Supreme Court Justice Samuel Alito, arguing that, contrary to the op-ed authors’ assertion, Justice Alito’s purported commitment to textualism is disingenuous and that he finds ways (atextually, if needed) to vote consistently for ideologically conservative outcomes. Professor Dorf refutes Justice Alito’s claim that Congress lacks the authority to impose ethical standards on the Supreme Court, pointing out Congress’s historical role in shaping the Court and the existing ethics regulations that apply to the Justices.

Doubts About Mitch McConnell’s Health Implicate Important Questions Under the Seventeenth Amendment

In light of recent questions regarding the health of U.S. Senate minority leader Mitch McConnell (R-KY), UC Davis law professor Vikram David Amar examines Kentucky’s 2021 statute on filling Senate vacancies, which restricts the governor’s appointment power by requiring a choice from a list provided by the departing senator’s political party. Professor Amar expresses doubt about the law’s constitutionality in light of the Seventeenth Amendment and the historical intent to reduce political party influence in Senate appointments.

Some (Very) Preliminary Musings on the Loper Bright Case Next Term Involving the So-Called Chevron Deference Doctrine

UC Davis Law professor Vikram David Amar comments on the Loper Bright case the U.S. Supreme Court will be hearing next term, which provides the opportunity for the Court to revisit (and potentially eliminate) the Chevron deference doctrine. Professor Amar points out and analyzes some of the constitutional issues raised by the doctrine.

The Department of Justice Cannot Cure What Ails Memphis

Cornell professor Joseph Margulies comments on the U.S. Department of Justice’s investigation into the City of Memphis and its police department following the fatal beating of Tyre Nichols, which exposed a culture of violence and indifference within the department. While Professor Margulies welcomes this investigation as a step in the right direction, he argues that the Department of Justice lacks the tools and authority to address systemic issues related to policing and public safety in Memphis; ultimately, the solution must come from local initiatives and collaboration within the community.

The Dangerous Allure of Seemingly Inescapable Facts

Cornell professor Joseph Margulies comments on the U.S. Supreme Court’s decision in 303 Creative v. Elenis, in which the Court ostensibly held that a Colorado public accommodations law was unconstitutional as applied to website designer Lorie Smith because it compelled her to create artistic content in violation of her religious beliefs. Professor Margulies argues that the decision has potentially far-reaching implications that could return us to the days of Jim Crow—all because the stipulated facts in that case seemed (to some Justices) to lead to an inescapable result.

Huzzah for the Court in Moore v. Harper

Illinois Law dean Vikram David Amar comments on the U.S. Supreme Court’s decision in Moore v. Harper, in which the Court forcefully repudiated the essence of the so-called “Independent State Legislature” (ISL) theory. Dean Amar describes the apparent evolution of several Justices’ views on ISL theory and explains how that evolution led to the Court’s sound rejection of the theory.

Another Free-Speech Dustup Arising from A Student-Invited-Speaker Event, This One at Pitt, Highlights Recurring Problems at Universities, and in Free Speech Doctrine

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on another free-speech controversy related to a student-invited speaker at the University of Pittsburgh. Dean Amar and Professor Mazzone describe the demand letter sent to Pitt officials by the Alliance Defending Freedom and explain why some of their arguments are on solid legal ground while one is tenuous at best.

Do Convicted Felons Have a Constitutional Right to Bear Arms?

University of Chicago law professor emeritus Albert W. Alschuler comments on the split between the Third and Eighth Circuits on the question whether some convicted felons have a constitutional right to bear arms. Professor Alschuler describes the two courts’ decisions, as well as the contradictory language from the U.S. Supreme Court, and suggests that the Court is likely to resolve the question in the coming Term.

Fourth Circuit High School Case from Virginia Offers Controversial, and Seemingly Dubious, Definition of “Disparate Impact” in Equal Protection Challenges

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on a recent decision by the U.S. Court of Appeals for the Fourth Circuit involving the admissions policy at a school in Virginia. Dean Amar and Professor Mazzone argue that while it’s not clear whether the U.S. Supreme Court will review this case, the issue the case raises is likely to be one the Court takes up soon.

The Misguided Unitary Executive Theory Gains Ground

Cornell Law professor Michael C. Dorf comments on the so-called “unitary executive theory” and explains why it seems to form the basis for the extreme positions of conservative Justices on the U.S. Supreme Court. Professor Dorf argues that the conservative Justices may prefer to pursue their ideological goal of undercutting regulation via the dubious unitary executive theory rather than originalism, further undercutting the administrative state.

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 the Dwight D. Opperman Professor, Director, Center for Labor and Employment... 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