Category Archives: Constitutional Law

Constitutional law news articles, reiews, notes and blog examples.

Trump’s Border Wall Obsession Is a Threat to the Southwest Border Region

To save lives, preserve habitats, and ensure thriving border communities, Congress should stop funding President Trump’s border wall. Given all the false rhetoric and rage that drive President Trump’s fixation on building his border wall, it’s critically important to step back from that noise and think about people and places that would be jeopardized if his wall obsession continues to be funded by Congress.  Take, for instance, Fred Cavazos, a property owner on the Rio Grande in Texas. Mr. Cavazos traces his family’s 77 acres of ranchland in South Texas back to Spanish land grants in the 1760s. As The Washington Post recently reported, he was notified by the federal government that the border wall’s potential path would cut “through the Cavazos family barn, through their rental house, and through a field where they grazed a small herd of longhorn cattle.” The map sent to Mr. Cavazos showed that the wall would sever his property in….. To continue reading this legal news please click Read full information...

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Our Civic Religion

In this age of polarization (exemplified by Judge Kavanaugh's confirmation hearings) is there any constitutional issue that could unite the NAACP Legal Defense Fund, the ACLU, the Chamber of Commerce, the Pacific Legal Foundation, Judicial Watch, the Brennan Center, and the Constitutional Accountability Center (among others)?The answer is yes. These groups have all filed amicus briefs asking the Supreme Court to incorporate the Excessive Fines Clause of the Eighth Amendment. Timbs v. Indiana presents that issue in the next Term in the context of aggressive state and local civil forfeitures of property involved in crimes. This forfeiture power is subject to (and regularly produces) rampant abuse but is largely insulated from the scrutiny of the federal courts. I certainly think that the Excessive Fines Clause should be incorporated and I think there is a good chance that a broad coalition on the Court will agree.There is another point lurking being the widespread….. To continue reading this legal news please click Read full information...

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Abandon all hope: Why I persist

David Super joins most of my family, friends, and colleagues in denouncing the idea of a new constitutional convention.  I persist, and in fact more strongly than ever, in believing that a new convention is a vital necessity.  I won't rehearse all of the arguments that I've made over the years, but I do have a few observations about David's posting.First, I think it's fair to say that we agree that the 1787 Constitution was (indefensibly?) undemocratic in terms of the structures it established, the Senate being the most obvious example, but Article V probably being most telling, when all is said and done.  The fact that it serves to make constitutional amendment, especially about anything truly controversial, basically impossible means not only that we continue to be trapped in what I have sometimes called the "iron cage" of a radically defective Constitution, but also that we as a polity have seemingly lost any capacity to engage in….. To continue reading this legal news please click Read full information...

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Masterpiece Cakeshop, again

Jack Phillips, who recently won his Supreme Court case over whether he could refuse to bake a cake for a same-sex wedding, claims that Colorado is persecuting him, because its Civil Rights Commission has once again found that he is discriminating – this time against a transgender woman.  He is suingthe state, demanding an end to what he regards as its harassment.  His legal claim ought to lose, but he has a legitimate grievance.I explain in a new piece at the American Prospect, here... To continue reading this legal news please click Read full information...

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Marshall’s Method and Why It Might Matter

Jeremy TelmanThe version of originalism popularized in the 1980s viewed itself as a reform movement, responding to the perceived excesses of the Warren and Burger Courts.  It made few claims regarding originalism’s historical pedigree.  Justice Scalia memorably articulated the position in his 1989 essay Originalism: The Lesser Evil:It may surprise the layman, but it will surely not surprise the lawyers here, to learn that originalism is not, and had perhaps never been, the sole method of constitutional exegesis. It would be hard to count on the fingers of both hands and the toes of both feet, yea, even on the hairs of one's youthful head, the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean.Justice Scalia and the New Originalists of the 1990s were not troubled by the notion that they were engaged in law reform.  As….. To continue reading this legal news please click Read full information...

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