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Constitutional Law

Constitutional Law Prof Blog

News, analysis, and commentary on constitutional law issues in the courts, the administration, Congress, and the states; and commentary and analysis on constitutional law scholarship.
By Steven D. Schwinn, Ruthann Robson, Nareissa L. Smith

Post Frequency: 3.1/day

Last Entry: November 04, 2020 at 10:04:25

The State Sovereignty Movement

Posted on May 16, 2009
A number of states have taken up measures to "assert their sovereignty" under the Tenth Amendment, reports USAToday. The Tenth Amendment Center tracks developments in the movement here. The state sovereignty movement speaks with many voices. At its modest, the...

Senate Judiciary Committee Hearing on Torture and OLC

Posted on May 14, 2009
Former State Department Counselor Philip Zelikow testified yesterday before the Subcommittee on Administrative Oversight and the Courts of the Senate Judiciary Committee in its hearing, What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration? Zelikow...

Secession? Long Island, the Conch Republic, Texas, Vermont and Beyond

Posted on May 14, 2009
Secession is akin to divorce; it indicates that any existing constitutional frameworks are deemed insufficient - - - at least by one party - - - to solve the discord. When secession-talk surfaces, it might be blustery, sardonic, or serious....

Torture Memo Dissenter Zelikow to Testify Before Senate Judiciary Committee

Posted on May 13, 2009
Philip Zelikow, former State Department counselor and author of a memo dissenting from the OLC memos authorizing torture, will testify tomorrow before the Senate Judiciary Committee during its hearing, "What Went Wrong: Torture and the Office of Legal Counsel in...

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What is an "Activist Judge" Anyway?

Posted on May 13, 2009
The title of this post is the question posed by a new article in The Politico by Sidley Austin attorney and former Supreme Court clerk Keenan Kmiec. Shortly into the article, the author bemoans the way this term is used:...

Ninth Circuit Commerce Clause Case

Posted on May 12, 2009
In the off-chance that you've not yet written your exam (or if you are looking for commerce clause fact patterns for next semester), a case issued by the Ninth Circuit - available here- may be exactly what you need. The...

Legalization of Marijuana: A Matter of Substantive Due Process?

Posted on May 11, 2009
The San Francisco Chronicle editorialized about the California Governor's comments: With a rhetorical shoulder-shrug, Gov. Arnold Schwarzenegger said it's time to consider legalizing marijuana. His thoughts were the loose-fit variety: "I think it's time for a debate" and free of...

South African Constitutional Law, Polygamy, and Sexuality

Posted on May 09, 2009
One of the very best volume on South African Constitutional Law remains The Post-Apartheid Constitutions edited by Penelope Andrews and Stephen Ellman, published in 2001. This anthology provides a study of the "processes of negotiation" of the constitutions as well...

Wydra on the Citizenship Clause and Birthright Citizenship of Children of Undocumented Aliens

Posted on May 08, 2009
Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, just published Birthright Citizenship: A Constitutional Guarantee, an American Constitution Society Issue Brief, arguing that the text, history, original understanding and intent, principles, and precedent of the Fourteenth Amendment's Citizenship Clause...

Obama's Constitutional Law Exam and Feedback

Posted on May 08, 2009
Interested in a Constitutional Law III examination and feedback from 1996? What about if the Professor was the now-President Barak Obama? The first question on the exam involves a lesbian seeking to obtain IVF despite a law that the "state...

Ninth Circuit Case on Eleventh Amendment & Section 5 (Fourteenth Amendment)

Posted on May 07, 2009
Great discussion over at Workplace Prof Blog here on the Ninth Circuit's en banc opinion Alaska v. EEOC. Perhaps this would set the stage for SCOTUS to clarify Eleventh Amendment doctrine, as we just discussed here, in the context of...

Constitutional Interpretation, Literary Interpretation, and "torture memos"

Posted on May 06, 2009
In a provocative essay in the Chronicle of Higher Education [subscription required to view], Peter Brooks, the distinguished literary scholar now at Princeton, writes: Literary scholars can be, and are, faulted for their interpretations, which may in any case never...

Lesbian (Gay) Supreme Court Nominee Possibility

Posted on May 05, 2009
?To start with, we need a lesbian on the Supreme Court.? Or so I once said, in an interview: ?It was the summer of 1992, the last summer of the Reagan-Bush regime, although the demise of that era was far...

Michael McConnell Resigns Tenth Circuit to Return to Academia

Posted on May 05, 2009
According to both Wall Street Journal Blog and Wikipedia(!), Michael McConnell is resigning his seat on the Tenth Circuit to direct the Stanford Constitutional Law Center. at Stanford Law School. Appointed to the Circuit by George W Bush is 2002,...

Justice Marshall - Practical Feminist?

Posted on May 05, 2009
The Legal History Blog has a reference to a new article by Maryland Professor Taunya Lovell Banks which examines the role of Justice Thurgood Marshall in advancing women's rights while on the Court. Professor Banks compares his voting record on...

Liu, Karlan, and Schroeder on Constitutional Interpretation

Posted on May 04, 2009
Professors Goodwin Liu (Boalt Hall), Pamela Karlan (Stanford), and Christopher Schroeder (Duke) just published Keeping Faith with the Constitution, a bold challenge to originalism (in all its stripes), on the one hand, and to "living constitutionalism," on the other, and...

The Souter Vacancy and Justice Kennedy as the Key

Posted on May 04, 2009
Last Thursday, I was prepared to blog a bit about this article - a piece from the WSJ law blog about Justice Kennedy. The article briefly mentioned Justice Kennedy's possible role in resolving the Northwest Austin voting rights case and...

Justice Souter's Legacy and the Eleventh Amendment: Saturday Evening Review

Posted on May 02, 2009
Certainly there is - - - and will be - - - much to say about Justice David Souter and his legacy on the United States Supreme Court. One place to start is the book David Hackett Souter by Tinsley...

Executive Policy by Website: Do changes to whitehouse.gov matter? Don't Ask Don't Tell Changes and Changes Again

Posted on May 02, 2009
According to a few progressive websites, whitehouse.gov has been undergoing some changes and these changes are being "tracked." For example, Pro Publica has introduced Change Tracker, which lists all additions, deletions, and changes to whitehouse.gov, available here...

Quick Hit - Quotes from President Obama on the Criteria for SCOTUS Justices

Posted on May 01, 2009
Here, from the Washington Post. NLS

Breaking - What President Obama wants in a Justice

Posted on May 01, 2009
Moments ago, President Obama interrupted Press Secretary Gibbs to make a statement on the Souter vacancy. After thanking Justice Souter, President Obama stated he would prefer to nominate a person "'who understands justice is not just about some abstract legal...

The Teaching Assistant

Posted on May 01, 2009
Dear all: What a week! What with torture memos and 100 days celebrations and critiques and swine flu and Justice Souter . . . there's been a lot going on. But luckily, your trust assistant has been keeping an eye...

Confirmation - Justice Souter IS retiring at the end of this term

Posted on May 01, 2009
I previously blogged that Justice David Souter's failure to hire law clerks for the coming term lead some to speculate that he might be retiring from the Court. Tonight, that speculation ended, as both NPR and the New York Times...

ACLU's Ben Wizner Talks About Mohamed v. Jeppesen, Extraordinary Rendition, and State Secrets

Posted on April 30, 2009
ACLU attorney Ben Wizner, lead counsel in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its role in the CIA's extraordinary rendition program, took time today to talk with me by phone about the case, the...

Today is Equal Pay Day!

Posted on April 29, 2009
This is an issue worth mentioning in a Con Law blog as it definitately has constitutional implications, and may soon inspire Congressional action. First, a few facts: - Equal Pay day is always on a Tuesday because a woman has...

Arlen Specter - Switch In Time Nets Fifty-Nine (Senate Seats)

Posted on April 29, 2009
In case you were wondering about the legal and/or constitutional implications of a party switch by an imcumbent, I recommend James S. Wrona & L. Francis Cissna, "Switching Sides: Is Party Affiliation a Tie that Binds?, 28 Ariz. St. L.J....

Voting Rights Case - ANALYSIS of Oral Argument

Posted on April 29, 2009
The Court held oral argument today in Northwest Austin Municipal Util. District 1 v. Holder, in which one of the two issues is the constitutionality of the Voting Rights Act of 1965: Whether, under the Court's consistent jurisprudence requiring that....

Con Law issues in Education (and Clerkships)

Posted on April 29, 2009
My co-blogger wrote about the recent decision on Women's Studies at Columbia University. There are other stories involving education - particularly legal education - that may have Con Law implications. (Or, are simply interesting to anyone interested in Con Law...

Standing, Feminism, and Women's Studies at Columbia University

Posted on April 29, 2009
The lawsuit by Roy Den Hollander against Columbia University's Institute for Research and Gender at Columbia University has provoked a spate of media coverage including the most recent NYT article reporting on the dismissal of the lawsuit. With a bit...

Second Circuit clears NYC Mayor Bloomberg's run for a Third Term

Posted on April 29, 2009
The Second Circuit has issued its opinion in 09-0331-cv, Molinari v. Bloomberg, affirming the district court's rejection of challenges to Mayor Michael Bloomberg seeking a third term, despite previously approved term limits. As the Second Circuit noted, At issue in...

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