Analysis and Commentary on Constitutional Law

Should Congress Save the Post Office?

Justia columnist and Cornell law professor Michael Dorf comments on the ongoing controversy over the fate of the U.S. Post Office. Dorf describes the causes of the Post Office’s troubled state; considers the pros and cons of a possible plan by which Congress would subsidize the Post Office; describes what such a plan could look like in practice; and notes the virtues of opting for a stopgap solution now in light of the reality that long-term forecasts show that the end of the Post Office is ultimately inevitable.

Can Teachers and Their Students Be Banned from Becoming Facebook Friends? The Missouri Legislature Says Yes, But a Missouri Court Suggests the Answer Is No

Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent controversy in Missouri, concerning a law that would have banned teachers from becoming the “friends” of their under-18 students on Facebook and other social networking sites that allow private messaging. As Ramasastry explains, the law’s apparent concern was to ensure that teachers would not become sexual predators preying on students, but the effect of the law, if enforced, would have been to cut off positive—and even vital—student/teacher communication as well, ranging from students’ seeking homework help, to students’ seeking counsel and support while contemplating suicide. Ramasastry describes the law and the court battle over it, and considers the Missouri legislature’s and the ACLU’s new proposals for regulation in the state in this area.

A Decade of 9/11

Justia columnist and Hunter Human Rights Program Director Joanne Mariner suggests an answer to the following question: Ten years after the terrorist attacks that were said to have “changed everything,” what has actually changed in the protection of human rights, and how did these changes take place? Mariner isolates five distinct periods of government policy, as it has evolved over the post-9/11 years: (1) the directly post-9/11 era of unchecked abuses (especially by the CIA), which was sparked by the post-9/11 Bush Administration claim that the U.S. was waging a war on terror; (2) the era of retrenchment and reassertion, when the Bush Administration was put on the defensive; (3) the attempt, during the last years of the Bush Administration, to establish a legal foundation for its “war on terror” actions; (4) the initial, but short-lived, Obama Administration push to reverse the Bush Administration's approaches; and (5) the current Obama Administration policy era—when, Mariner contends, because President Obama has a more liberal image and generally more liberal politics, he can not only adopt certain abusive policies, but he can also normalize them in a way that President Bush never could have done.

Reflections on the 9/11 Attacks’ Lasting Impact on America, and American Law

Justia columnist and former counsel to the president John W. Dean comments on the tenth anniversary of the 9/11 attacks, with a special emphasis on the legacy of the attacks for American law. Dean begins by assessing how foreign media sources—whose perspectives, he explains, may be somewhat more detached than Americans’, yet who often interviewed Americans as sources—see the anniversary of 9/11. In addition, Dean contends that, where American law is concerned, the legacy of 9/11 is a baleful one. In support of his claim, Dean points to a post-9/11 proliferation of laws (some with sunset provisions, some without) that, he contends, go beyond all previous limits of constitutional propriety. Dean focuses in particular on the Patriot Act, and the infamous torture memo. All told, Dean concludes, the fallout of the 9/11 attacks has had a highly negative impact on American law.

The Tenth Anniversaries of 9/11 and of the Revelations of Catholic Bishops’ Cover-up of Child Sex Abuse: Two Developments That Profoundly Changed America

Justia columnist and Cardozo law professor Marci Hamilton looks back to a more innocent time, ten years ago, before the 9/11 attacks shocked and horrified America, and before clergy child-sex-abuse scandals rocked first the Catholic Church and its believers, and then other religious institutions and believers as well. Hamilton contends that the key lessons of these devastating events are that we can never assume that a person’s belief in God, in itself, renders him or her godly; and that faith can too easily provide a pretext for terrible crimes.

The U.S. Supreme Court Considers the Constitutionality of Unreliable Eyewitness Identifications: Does a Lack of Police Misconduct Rule Out a Due Process Claim?

Justia columnist and Cornell law professor Sherry Colb comments on a fascinating criminal procedure case that the U.S. Supreme Court will resolve during this coming term. The case, Perry v. New Hampshire, will answer the following question: If an eyewitness first identifies a perpetrator under highly suggestive circumstances that seriously compromise the reliability of the identification, but the police did not orchestrate those circumstances, should a court then exclude the identification evidence? Or, stated differently, is police misconduct necessary to the successful due process exclusion of unduly suggestive eyewitness identification evidence? Colb explains the reasons why we might—and might not—require police misconduct before this type of constitutional claim may be made, and notes that the issue here is of great importance, as empirical research has now exposed the central role of mistaken eyewitness identifications in wrongful convictions. Colb also makes a case that, in the end, the best resolution here may be to inform jurors of the problems with suggestive identifications, and then simply have them evaluate such identifications accordingly, as they do with other unreliable evidence.

A Growing Debate Over the Rights of Posthumously Conceived Children: Part One in a Two-Part Series of Columns

Justia columnist and Hofstra law professor Joanna Grossman discusses a decision from the U.S. Court of Appeals for the Eighth Circuit, which raises a fascinating question stemming from modern reproductive technology: Is a child deemed to be legally related to her biological father if she was conceived after he died? The question proves to be crucial when it comes to Social Security and inheritance benefits. Grossman sets forth the facts of the Eighth Circuit case, which involved Social Security benefits; covers some new complications in the law of parentage; and explains why the Eighth Circuit, in the case before it, ultimately ruled against the child and her mother.

An Affirmative Action Case That May Illustrate Justice Kennedy’s Power on the Supreme Court and Reshape the Law of Race-Based Admissions Programs

Justia columnist and U.C. Davis law professor Vikram David Amar comments on an affirmative action decision from the U.S. Court of Appeals for the Fifth Circuit in which the Supreme Court may well grant review. Amar explains why, if the High Court does indeed take the case, its decision may substantially alter constitutional law relating to affirmative action in the context of educational admissions. In addition, Amar notes that this case, if taken up by the Court, may illustrate the very considerable power that Justice Anthony Kennedy now wields. Amar also provides thorough background to allow the reader to put this case, and the issues it raises, in the context of prior precedents relating to affirmative action in admissions, such as Bakke, Hopwood, Grutter, and Gratz.

A Closer Look At The Defamation Lawsuits Against Eliot Spitzer: Why They Seem Quite Weak

Justia columnist and former counsel to the president John W. Dean discusses a set of interesting defamation lawsuits that were filed, earlier this month, in New York federal and state courts, against former New York Attorney General (and, later, New York Governor) Eliot Spitzer. The suits are based on an opinion piece that Spitzer wrote for, about a year ago, which concerned past criminal charges that had been brought against employees of insurance/finance powerhouse Marsh & McLennan. Dean covers the background law on public-figure defamation suits; explains why the plaintiffs in the suits against Spitzer may have trouble meeting the basic defamation-law requirement that the statements at issue must be “of and concerning” them; and notes that if New York had a stronger anti-SLAPP statute, Spitzer might have been able to file a countersuit against the two plaintiffs who are suing him.

Assessing Former U.S. Senator Rick Santorum as a 2012 Presidential Candidate: Part Two in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton continues her series of columns on the 2012 presidential candidates’ views on religion, with an analysis of the views of Rick Santorum, a former U.S. Senator from Pennsylvania. Hamilton critiques Santorum for failing to respect the Constitution’s separation of church and state, and for expressing support for states’ rights while also endorsing federal legislation that would displace state power, when it comes to certain policies he favors.

The Supreme Court Agrees to Review the Constitutionality of Strip Searching All Arrestees Who Enter a Jail

Justia columnist and Cornell law professor Sherry Colb discusses the constitutional issues raised by government strip searches, and the relevant Supreme Court precedents. She focuses, as well, on a Supreme Court case that will be decided during this coming Term, Florence v. Board of Chosen Freeholders. There, the Court will—for the first time since 1979—consider whether officials in a jail may strip search inmates in the absence of any individualized suspicion. Colb notes that the case will raise a key question for the Court to consider: Does the Constitution extend any protection for privacy to the people who reside in a detention facility?

Why the Seventh Circuit Allowed U.S. Citizens to Sue Former Secretary of Defense Rumsfeld for Torture

Guest columnist and Justia editor David S. Kemp comments on a recent decision from the U.S. Court of Appeals for the Seventh Circuit, which permitted two American citizens to sue several U.S. military officials and former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. In that case, the plaintiffs alleged that Rumsfeld authorized the officials to detain and torture them for several months in Iraq, and that they were subsequently released without being charged with any crime. Kemp covers the three essential questions that had to be answered before the suit could proceed; explains the nature of Bivens claims, through which a plaintiff can bring suit against federal officials (such as, here, Rumsfeld) by proceeding directly under a particular constitutional provision; and describes the two-part test federal courts use to decide whether a Bivens claim will be recognized.

An Indiana Federal District Judge Holds That Teens Have a First Amendment Right Not to Be Punished by Their School for Posting Saucy Photos Online

Justia columnist and attorney Julie Hilden comments on a recent decision by the Chief Judge of the U.S. District Court of the Northern District of Indiana, concerning students’ First Amendment rights. The case arose after two public-high-school students were suspended based on lascivious (but not nude) photos that they had taken of each other during a series of slumber parties, and posted for their Facebook and MySpace “friends” and for password-holders on a photo website. Their school argued that the girls had violated school policy, but the judge held that they had a right to take and post the photos at home. Important in the judge’s analysis was that the girls themselves did not bring the photos to school; a parent made a copy and brought the copy in. Hilden argues that the case—while rightly decided—underlines the need for Supreme Court clarification in this muddy area of law.

Assessing the Reasoning of the Eleventh Circuit Opinion Striking Down Obamacare

Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.

David Hicks’s Guantanamo Memoir

Justia columnist Joanne Mariner, an attorney and the head of Hunter College’s Human Rights Program, comments on the memoir of David Hicks, an Australian who was incarcerated at the United States’ Guantanamo Bay detention facility for five-and-a-half years. Mariner notes that Hicks’s Guantanamo memoir is now one of many such works that detail interrogation practices and detention conditions at the facility. She also points out the book has recently made headlines due to the Australian government’s attempt to confiscate the royalties Hicks earned from his publisher, citing Australia’s Proceeds of Crime Act. Mariner notes the parallel between that Act and the United States’ “Son of Sam” laws, which the U.S. Supreme Court has occasionally held to be in violation of the First Amendment, and she explains other troubling aspects of the attempt to apply Australia’s Act to Hicks.

Can Public School Students Constitutionally Be Punished for Their Off-Campus Comments on Social-Networking Sites or Blogs?

Justia columnist and attorney Julie Hilden comments on a case in which a young woman, Avery Doninger, sued her former high school for punishing her when she was a student there based on derogatory comments about school administrators that she posted while at home, on her home computer, after school hours, on a publicly accessible blog. Hilden notes that Doninger is now seeking Supreme Court review, based on a split among the federal circuit courts regarding cases similar to her own. Hilden explains two key Supreme Court precedents on school speech, and contends that the Court would have to truly make new First Amendment law if it were to allow schools to punish students for online comments that, like Doninger’s, were made after school hours, at home, on home computers—even if the subject of the comments relates to other students or to school administrators.

What Obama Should Say to the Nation

Justia columnist and Cornell law professor Michael Dorf notes that many Americans have expressed disappointment in President Obama’s recent speeches. But, of course, it’s easy to criticize, and much harder to detail what the President actually should be saying. That’s exactly what Dorf does in this column—even going so far as to offer his own hypothetical stump speech for President Obama to deliver—a speech addressing tough issues like tax cuts; how, exactly, to put Americans back to work; and one key policy and legal point that Republicans and Democrats alike ought to agree upon.

Assessing Texas Governor Rick Perry as a 2012 Presidential Candidate: Part One in an Ongoing Series on the Likely Candidates and Their Views on Religion

Justia columnist and Cardozo law professor Marci Hamilton begins her series on likely 2012 presidential candidates and their views on religion. Here, Hamilton assesses the views of Texas Governor Rick Perry. She expresses concern, in particular, with Perry’s lack of belief in the separation of church and state, as exemplified by his speeches; finds in Perry’s record a belief that religion should drive politics; and questions Perry’s claimed beliefs in small government and in federalism.

Armed and Crazy: Should Mentally Ill People Be Permitted to Own Firearms?

Justia columnist and Cornell law professor Sherry Colb contends that laws broadly preventing certain mentally ill persons from possessing firearms may not be as obviously a good idea as they might seem at first glance. Currently, Colb explains, there is a federal law—passed in the wake of the Virginia Tech shootings—to simplify the identification and tracking of persons who have previously been committed to a mental hospital, and who have therefore been divested of their right to possess firearms; those rights, though, can later be restored. Interestingly, though, Colb notes that in other contexts, members of certain groups (such as men) may be statistically far more likely than their counterparts (such as women) to commit gun violence, and yet, are allowed to carry guns nonetheless. Colb also points out that certain types of mental illness, which might lead to commitment to a mental hospital, are not connected to gun violence at all, yet still are swept in by the law.

“Respect” or “Defend” Marriage? The Senate Considers a Bill to Repeal the Defense of Marriage Act of 1996 (DOMA): Part Two in a Two-Part Series of Columns

Justia columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns critiquing the Defense of Marriage Act (DOMA)—which was recently the subject of Senate Judiciary Committee hearings. As Grossman notes, a bill is now pending that would reverse DOMA to the extent that DOMA defines marriage, for federal law purposes, as a union between one man and one woman. She describes the varied, pending litigation related to DOMA, and considers some of the reasons DOMA has garnered complaint and opposition: Critics say it imposes unfair disadvantages on married gay couples, and many have observed that DOMA has spawned a bureaucratic nightmare.

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 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. 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 one of the country’s leading church-state scholars and the Fox Professor of Pra... 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... more

Lesley Wexler
Lesley Wexler

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