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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

Loffredo and Friedman on Qualified Civil Gideon

Posted on April 13, 2009
Stephen Loffredo (CUNY) and Don Friedman (Empire Justice Center at the William Randolph Hearst Public Advocacy Center at Touro) recently published Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings as part of the Touro...

Law and Philosophy Conference in Spain

Posted on April 13, 2009
A "Law and Philosophy" - "Filosophia Y Derecha" conference will be held in Spain next year. The conference will center on the topic "Neutrality and Theory of Law? and will take place the 20th , 21st and 22nd of May...

The Teaching Assistant

Posted on April 11, 2009
Hello! Welcome to this week's edition of the Teaching Assistant! In an eventful week, there are a few stories that may have missed your attention. Here goes . . . Equal Protection The Third Circuit held that female Muslim police...

Involuntary Servitude Theorizing

Posted on April 11, 2009
Both sides of the abortion debate invoke analogies to slavery. Recently, in the National Review Online, Michael Novak's article "Notre Dame Disgrace" criticizes the university for inviting Barak Obama, arguing that "I doubt very much whether the University of Notre...

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LA Times Op-Ed on Caperton v. A.T. Massey Coal Co.

Posted on April 11, 2009
According to an Op-Ed in the LA Times here by David B. Rivkin Jr., partner at Baker & Hostetler who served in the Justice Department and the White House counsel's office in the administrations of Ronald Reagan and George H.W....

CIA Closes Black Sites, Rejects Enhanced Interrogation Techniques

Posted on April 10, 2009
CIA Director Leon Panetta yesterday issued a message stating that the CIA no longer operates its black sites, rejects "enhanced interrogation techniques," and no longer uses contractors to conduct interrogations. Panetta said that while the Agency no longer uses techniques...

Obama Administration Claims Broad State Secrets Privilege (Again)

Posted on April 09, 2009
The Obama administration last Friday filed a motion to dismiss in Jewel v. NSA, the Northern District of California case challenging NSA's "dragnet surveillance" with the cooperation of private telecon operators, asserting sovereign immunity and the State Secrets Privilege...

Government Can Transfer Guantanamo Detainees Without Warning

Posted on April 08, 2009
The D.C. Circuit ruled (2-1) yesterday that the administration can transfer nine Uighurs, the Chinese Muslims held at Guantanamo Bay, without warning to their counsel. (Recall that the D.C. Circuit last spring ordered the administration to release the Uighurs, transfer...

Filubuster Over Release of Torture Memos?

Posted on April 07, 2009
Senate Republicans are threatening to filibuster the appointments of Dawn Johnsen as OLC chief and Harold Koh as State Department legal counsel if President Obama releases three OLC memos from the Bush administration that likely contain additional details and legal...

Justice Kirby in Conversation at Suffolk Law School

Posted on April 07, 2009
Justice Michael Kirby is recently retired as one of the seven Justices of the High Court of Australia, Australia?s Supreme Court. He is Australia?s longest serving jurist, having been first appointed in 1975. On the occasion of his retirement last...

Vermont Legislature overrides veto to legislate same-sex marriage

Posted on April 07, 2009
The story from the Burlington Free Press is here, includes roll calls and extensive coverage, with a permalink here. The New York Times story is here. Recall that this legislative action should replace civil unions, which the legislature had passed...

Criddle on Fiduciary Administration

Posted on April 06, 2009
Professor Evan Criddle (Syracuse) just posted on ssrn his most recent article in a pair on the fiduciary nature of the administrative state, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, also forthcoming in the Texas Law Review...

Debtors' Prisons and the Rights of the Poor

Posted on April 06, 2009
The NYT opined today that states should buck the apparently increasing practice of jailing people because they're poor, calling this both "barbaric and unconstitutional." (Many thanks to Jon Gutek for the tip.) The NYT: In Georgia, poor people who cannot...

On Equality and "Judicial Activism"

Posted on April 06, 2009
On Friday, the Supreme Court of Iowa became the latest state court to rule that preventing same-sex couples from marrying violates the constitution. Of course, there is much blathering about how the "activist court" has deliberately "run roughshod" over the...

Notes on the Court, Part II

Posted on April 06, 2009
Last week, the Legal Times ran a piece that should be of interest to all those who are fascinated by the selection fo judges and the make-up of the Court. The piece focuses on judicial diversity, but not the type...

The Teaching Assistant

Posted on April 05, 2009
Hello! After a brief hiatus to attend the SouthEast/SouthWest People of Color Scholarship Conference (which was amazing - thanks to all of the organizers!), the Teaching Assistant is back with a vengence. Let's take a look at this week's stories....

Who Knew What at Guantanamo?

Posted on April 05, 2009
The Seton Hall Law Center for Policy and Research released report, Torture: Who Knew, last week concluding that top military brass were aware of detainee abuses at Guantanamo Bay and misled Congress about them. The report: A large number of...

Mary Dunlap and the Constitutional Rights of Sexual Minorities: Robson's Saturday Evening Review

Posted on April 04, 2009
[U]nder a system that permits individualized sex identification, the past exercises of the legal power to enforce a male/female order might be discovered to have played a primary role in retarding the progress of creativity and diversity among human beings...

Sebelius(es) on Federal Burdens on States

Posted on April 04, 2009
Kansas Governor Kathleen Sebelius, whose Senate confirmation as HHS Secretary both started and stalled this week, and Georgetown and Kennedy School student Ned Sebelius co-authored an article in the Harvard Law & Policy Review, the official journal of the American...

IOWA Same-Sex Marriage

Posted on April 03, 2009
Although the Iowa Supreme Court website has "crashed" due to traffic, the first "twitter" reports are that the Iowa Supreme Court has declared the state's opposite-sex only marriage law unconstitutional. Updates to follow. RR

Analysis of Iowa Supreme Court ruling on same-sex marriage

Posted on April 03, 2009
The first footnote of the 33 footnotes in the Iowa Supreme Court's opinion in Varum v. Brien (pdf of full opinion in post below) quotes the motto on the state flag: ?Our liberties we prize and our rights we will...

EZ Pass, Dormant Commerce Clause & Equal Protection Right to Travel

Posted on April 02, 2009
As a story in the New York Times reports: An out-of-state driver crossing Narragansett Bay on the Claiborne Pell Newport Bridge must pay $1.75 with an E-ZPass transponder in the car, but Rhode Islanders, under a resident discount program introduced...

Habeas Extends to Bagram, Afghanistan, District Court Judge Rules

Posted on April 02, 2009
U.S. District Court Judge John D. Bates (D.D.C.) ruled today that the privilege of habeas corpus extends to Bagram Airfield in Afghanistan. I most recently posted on the case here. Judge Bates ruled that three foreign nationals, detained outside of...

Fate of the Uighurs at Guantanamo

Posted on April 01, 2009
The NYT reports today that the Obama administration may be accelerating its decision on what to do with the Uighurs, the Chinese Muslims detained at Guantanamo Bay. According to the report, administration officials interviewed the 17 Uighurs to "assess their...

Neglected Supreme Court Justices

Posted on March 31, 2009
Vanderbilt Law Review just published a symposium issue on neglected Supreme Court justices. Articles cover Samuel Chase (1796-1811), William Johnson, Bushrod Washington, John Catron (1837-1865), John McLean (1829-1861), David Brewer (1889-1910), Rufus Peckham (1895-1909), George Sutherland (1922-1938), Pierce Butler (1922-1939),...

Notes on the Court, Part I

Posted on March 30, 2009
Today in Slate Magazine, Dalia Lithwick has an article outlining the ever-popular SCOTUS parlor game "Who's Out First?" As usual, our most likely candidates are Souter, Stevens, and Ginsberg, roughly in that order. The article is also noteworthy because it...

Scalia Speaks Out

Posted on March 30, 2009
Justice Antonin Scalia last week gave a series of wide-ranging interviews with Peter Robinson of the Hoover Institution. Audio is available here, thanks to the Federalist Society. Segment titles include "Why the Constitution 'is not living, but dead,'" "Why originalists...

CFP: Supreme Court Preview

Posted on March 30, 2009
CALL FOR PAPERS The Charleston Law Review, the flagship law review of the Charleston School of Law, invites submissions for its Supreme Court Preview issue. Volume II of the law review had a forward by then - Senator Barak Obama...

Chafetz on Executive Contempt of Congress

Posted on March 29, 2009
As is well known by now, the House Judiciary Committee last spring filed a complaint in federal court against former White House Counsel Harriet Miers and then-Chief of Staff Josh Bolton for contempt for failure to comply with Congressional subpoenas...

Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional?

Posted on March 29, 2009
Yes, according to George Will here. Will provides this hypothetical (worth reading for ConLawProfs contemplating writing exam questions): Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do...

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