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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

Civil Rights Chief: State Courts Must Provide Access

Posted on August 18, 2010
Assistant Attorney General Tom Perez this week reminded state court chief justices and administrators of their obligation to provide "meaningful access" for individuals with limited English language proficiency. The obligation comes from the conditional spending measures in Title VI of...

Federal Judges' Treatment of Coerced Statements in Gitmo Cases

Posted on August 18, 2010
Federal district court judges have ruled against the government in 8 of 15 Guantanamo detainees' habeas cases because of interrogations of detainees and witnesses under "questionable circumstances," ProPublica reports in its latest installment in its ongoing investigation of detention at...

Stolen Valor Act Unconstitutional: Ninth Circuit's Opinion in Alvarez

Posted on August 17, 2010
In an lengthy opinion, over an equally lengthy dissent by Judge Jay Bybee, a panel of the Ninth Circuit has held the Stolen Valor Act unconstitutional. The Act, codified at 18 U.S.C. § 704(b), criminalizes false representations, verbal or written,...

Ninth Circuit STAYS Perry v. Schwarzenegger, Proposition 8's Unconstituionality

Posted on August 16, 2010
A panel of the Ninth Circuit. has stayed Judge Walker's decision finding Proposition 8 unconstitutional, thus vacating Walker's decision lifting the district judge's own stay. In other words, Proposition 8, prohibiting same-sex marriages, is again the law of California...

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Congressional Process: The Infographic

Posted on August 16, 2010
Mike Wirth, "designer, educator, and artist," has a great graphic illustrating the federal legislative process. It's more detailed than the usual illustrations and could make a handy webcourse graphic. A section is below, the full graphic is available here...

The New Politics of Judicial Elections

Posted on August 16, 2010
The Brennan Center today released the fifth edition of The New Politics of Judicial Elections, covering the corrosive effects of campaigning on state judiciaries between 2000 and 2009. From the Executive Summary: By tallying the numbers and "connecting the dots"...

State Department IG Clears Embassy Officials in Kenyan Abortion Debate

Posted on August 15, 2010
The State Department Office of Inspector General this week cleared U.S. embassy officials in Nairobi of any wrongdoing in relation to their alleged advocacy of the abortion provision in the recently adopted Kenyan Constitution. The OIG report came in response...

Trial Court Issues TRO in Second Round of Doe v. Reed

Posted on August 15, 2010
Judge Benjamin Settle (W.D. Wa.) last week issued a temporary restraining order to prevent the Washington Secretary of State from releasing names and addresses of supporters of R-71, the referendum measure to overturn Washington's domestic partnership law, until the court...

Renaming, Amending, and "Wiki-ing" the Constitution

Posted on August 14, 2010
The Constitution is the subject of humorous treatment from John Hodgman and Jon Stewart on The Daily Show. The skit starts with "birthright citizenship" under the Fourteenth Amendment, then hits on Originalism and interpretation, the Second Amendment, judicial review, the...

Social Security: Questions about its Constitutionality on its Diamond Anniversary

Posted on August 14, 2010
The Social Security Act of 1935, spear-headed by Franklin Delano Roosevelt, turns seventy-five today. [image: President Roosevelt signing the Social Security Act, via]. But as Justice Cardozo said in 1937: The Social Security Act (Act of August 14, 1935, c...

Constitutional Law Position at Brooklyn College, CUNY

Posted on August 13, 2010
Position Announcement: Herb Kurz Endowed Chair in Constitutional Law and Civil Liberties at Brooklyn College, City University of New York (pictured left). Brooklyn College invites applications for the Herb Kurz Endowed Chair in Constitutional Law and Civil Liberties...

Nicaragua's Looming Constitutional Crisis

Posted on August 12, 2010
Nicaraguan Supreme Court justices today purported to select replacements for protesting justices who have boycotted court sessions for the last ten months, according to an AP story reported in the New York Times. The boycotting justices, supporters of the conservative...

Perry v. Schwarzenegger, Proposition 8, the Stay, and Standing to Appeal

Posted on August 12, 2010
Judge Walker has lifted the stay of Perry v. Schwarzenegger finding Proposition 8 unconstitutional, or, more precisely, in an Order issued today, he has ordered that the previous "judgment shall be STAYED until August 18, 2010 at 5 PM PDT...

Should I Tell You If I Think This Salad is Unhealthy?: Food Disparagement Laws and Chilled Speech

Posted on August 12, 2010
Another packaged salad has been recalled by Fresh Express. This may not seem as if it presents a constitutional issue, but perhaps it does. Suppose I think three recalls in four months is pretty extreme and I start saying things...

FBI Lifts Gag on National Security Letter Recipient

Posted on August 12, 2010
The FBI this week lifted its gag order on Nick Merrill, the operator of an internet service provider and the recipient of a 2004 National Security Letter (redacted version) ordering him to turn over records for one of his company's...

ABA Resolves that States Adopts Same-Sex Marriage

Posted on August 11, 2010
The ABA overwhelmingly adopted a resolution urging state (as well as territorial and tribal) governments to permit same-sex marriage: RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil...

Vladeck on Article III Trials for Alleged Terrorists

Posted on August 10, 2010
Professor Stephen Vladeck (American U., WCL) last week released an American Constitution Society Issue Brief, Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali, arguing that Article III courts can handle the trials of...

Khadr's Military Commission Trial Begins Today

Posted on August 10, 2010
Guantanamo detainee Omar Khar's military commission trial--the first contested military commission trial in the Obama administration--begins today, after the Supreme Court on Friday denied Khadr's application for a stay. We most recently posted on Khadr's case here...

Bring Back O'Connor, Souter, and Stevens?

Posted on August 10, 2010
One solution to the "recusal" problem, at least on the United States Supreme Court, is to utilize the so-called "back bench." As the Washington Post reports: Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) is pondering whether a change is...

"Our Constitution works"

Posted on August 09, 2010
" My fellow Americans, our long national nightmare is over. Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule." So said Gerald Ford, on assuming the office of President of...

India Debates Fundamental Right to Food

Posted on August 09, 2010
The governing Indian National Congress Party is split on a proposal to create a new constitutional right to food, the New York Times reports today. The Indian Constitution includes several sweeping positive socio-economic rights, including one that imposes some obligation...

Dworkin on Kagan

Posted on August 08, 2010
Ronald Dworkin's article, "The Temptation of Elena Kagan," is still worth a read now that Kagan has been sworn in as the newest Supreme Court Justice. [image: Constitutional Oath, August 7, 2010, via] Reflecting on the criticisms of the confirmation....

Groups Get License to Sue for Government-Ordered Extrajudicial Killing

Posted on August 07, 2010
The Center for Constitutional Rights and the ACLU this week received a license from the Treasury Department's Office of Foreign Assets Control to represent Specially Designated Global Terrorist and target of a government-ordered extra-judicial killing Nassar al-Aulaqi...

Senate Confirms Kagan

Posted on August 06, 2010
The U.S. Senate voted Thursday 63-37 to confirm Elena Kagan to the Supreme Court. The vote split largely along party lines, but five Republicans (Susan Collins, Lindsey Graham, Judd Gregg, Richard Lugar, and Olympia Snowe) voted yes and one Democrat....

Kenyans Approve New Constitution

Posted on August 06, 2010
Kenyans voted overwhelmingly (67 percent in favor, with 72 percent turnout) this week to adopt a new Constitution, touted aggressively by nearly everyone from Kenyan President Mwai Kibaki to President Obama. (The "nearly" is important; see below.) By reports, the...

Missourians Nullify Federal Health Insurance Mandate

Posted on August 04, 2010
Missourians overwhelmingly voted to nullify the federal health insurance mandate by adopting state law, effective immediately, that allows Missourians not to purchase health insurance in violation of the federal mandate. This was the first of at least three state referenda...

District Judge Finds Proposition 8 Unconstitutional: Opinion and Brief Analysis

Posted on August 04, 2010
The anticipated Proposition 8 opinion has just been issued: Judge Vaughn Walker has concluded that Proposition 8 as enacted is unconstitutional under the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment in a 138 page opinion here...

Federal Judge Allows Virginia's Health Care Case To Proceed

Posted on August 03, 2010
Judge Henry E. Hudson (E.D. Va.) on Monday denied the federal government's motion to dismiss the State of Virginia's case challenging the federal health insurance mandate, enacted this spring as part of the federal health care reform bill. The ruling--the...

Birthright Citizenship, Fourteenth Amendment, and Constitutional Interpretations

Posted on August 03, 2010
The Fourteenth Amendment begins, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Some Senators want Congress to ?reconsider? this provision...

Groups Sue to Represent Government-Designated Terrorist

Posted on August 03, 2010
The Center for Constitutional Rights and the ACLU filed suit today against the federal government to be able to provide uncompensated legal representation to Nassar al-Aulaqi, a U.S. citizen labeled a "Specially Designated Global Terrorist" (SDGT) and listed on the...

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