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Constitutional Law

Why Constitutional Conservatives Should Embrace Judicial Engagement

Evan Bernick | Posted 02.11.2016 | Politics
Evan Bernick

Senator Rand Paul has departed from the Republican presidential race--but not before offering a much-needed challenge to conservative orthodoxy concerning the Constitution and the proper role of the courts in enforcing it.

Justice Ginsburg at the Centennial of Justice Brandeis' nomination to the Supreme Court: the Notorious RBG meets the Notorious LDB

Frederick M. Lawrence | Posted 02.11.2016 | Education
Frederick M. Lawrence

For any one of these aspects of the life of Louis Brandeis -- lawyer, scholar, justice -- we would remember him today as a figure of insight, brilliance, creativity, and moral courage. The combination renders him an extraordinary figure in the practice of law, legal scholarship, judicial craftsmanship and jurisprudence, and civic activism on both a national and international scale.

Justice Thomas Hasn't Uttered A Word From The Bench In 10 Years

The Huffington Post | Cristian Farias | Posted 02.02.2016 | Politics

Justice Clarence Thomas will soon celebrate 10 years of not speaking during oral arguments at the Supreme Court, The New York Times reported on ...

America Inc?

Jeffrey P. Colin | Posted 01.29.2016 | Politics
Jeffrey P. Colin

For some time now, there has been a constant stream of nonsensical assertions about the nature of and proposed course for America's future, from people in political and business "spheres of influence."

Justice Breyer Is Dying For A Case That Will Kill The Death Penalty For Good

The Huffington Post | Cristian Farias | Posted 01.22.2016 | Politics

The U.S. Supreme Court gets last-minute death penalty appeals all the time, even when it's on summer recess. It seldom grants them. It refused two re...

The Supreme Court Appears Set To Issue Crippling Blow To Public Employee Unions

The Huffington Post | Cristian Farias | Posted 01.11.2016 | Politics

WASHINGTON -- A conservative majority on the U.S. Supreme Court gave every indication on Monday that it is ready and willing to invalidate public uni...

More Than 100 Lawyers Tell The Supreme Court Why Their Abortions Mattered

The Huffington Post | Cristian Farias | Posted 01.06.2016 | Politics

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Dred Scott, Substantive Due Process, and the Logic of Natural Rights: A Further Reply to Matthew Franck

Evan Bernick | Posted 12.21.2015 | Politics
Evan Bernick

Perhaps nothing has damaged the reputation of "substantive due process" more than that doctrine's association with Dred Scott v. Sandford (1857) -- the infamous decision holding that Congress lacked the power to ban slavery in federal territories and blacks had no rights under the Constitution that whites were bound to respect.

Politics Dominated The Supreme Court This Week. That's Not Good.

The Huffington Post | Cristian Farias | Posted 12.09.2015 | Politics

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How A Long-Lost Footnote Could Save The Supreme Court From Itself

The Huffington Post | Cristian Farias | Posted 12.08.2015 | Politics

WASHINGTON -- Some 50 years ago, a Supreme Court footnote disappeared from the annals of history. It wasn't a big deal then and it isn't today. Footn...

Fallible But Final: Why Justice Scalia is Wrong About the Supreme Court's Authority

Evan Bernick | Posted 11.18.2015 | Politics
Evan Bernick

The very cases that Scalia invokes disclose the need for an independent judiciary to serve as a final check against abuses of government power. If that check is to be effective, the highest court in the nation must have the authority Scalia would deny it.

Defining 'One Person, One Vote': SCOTUS Returns To The Political Thicket

Evan Bernick | Posted 11.06.2015 | Politics
Evan Bernick

Evenwel represents a valuable opportunity for the Court to not only clarify its case law concerning reapportionment but also affirm a vital principle central to our law: the Constitution protects citizens against arbitrary action by government in every field.

Wanted: Supreme Court Justices With Grit

Evan Bernick | Posted 11.03.2015 | Politics
Evan Bernick

As we look towards the very real possibility that the next President of the United States will have an opportunity to nominate several Supreme Court justices, it is critically important to focus attention on a judicial virtue that has been neglected of late: Grit, that is, firmness of mind in the face of adversity.

Objecting to Judicial Restraint: Against the Presumption of Constitutionality

Evan Bernick | Posted 10.28.2015 | Politics
Evan Bernick

Should Americans have to justify their freedom to the government, or should the government have to justify its restrictions on freedom to Americans? That question lies at the core of an ongoing debate amongst supporters of limited government about role of the courts in enforcing the Constitution.

Justice Holmes' Big Lie(s): Why His Lochner Dissent is Wrong, and Judicial Engagement Is Right

Evan Bernick | Posted 10.25.2015 | Politics
Evan Bernick

Unpacking Holmes' three biggest lies in Lochner discloses the weakness of Segall's case against judicial engagement and reveals why his Holmesian approach to judicial review should not be embraced.

Answering the Supreme Court's Critics: The Court Should Do More, Not Less, to Enforce the Constitution

Evan Bernick | Posted 10.23.2015 | Politics
Evan Bernick

The Supreme Court is under attack. The Court is less popular that it has been in decades. Politicians have called for curbing the Court, proposing measures to strip the Court's jurisdiction and subject justices to periodic retention elections.

Conscientious Objection and Religious Freedom

Joseph B. Kadane | Posted 10.19.2015 | Politics
Joseph B. Kadane

Ms. Davis has every right to her religious principles. As an elected official, she has every right to hold her office. However, gay couples also now have the right to obtain marriage licenses in Rowan County. As a result, Ms. Davis has several choices.

Yes, Judicial Engagement IS Winning Over Conservatives: A Response to Professor Ramsey

Evan Bernick | Posted 10.06.2015 | Politics
Evan Bernick

Are conservatives truly revisiting their longstanding commitment to judicial restraint, or are liberals merely flogging a narrative of right-wing radicalism to advance their own ends?

No, Chief Justice Roberts' Judicial Restraint Isn't Admirable

Evan Bernick | Posted 09.23.2015 | Politics
Evan Bernick

In a word, no. The judiciary is not an exceptional, deviant institution in an otherwise pure democracy. The Constitution is pervasively countermajoritarian. It protects Americans against majority tyranny by providing that the government may act only when it has the authority to do so and by explicitly protecting individual rights.

Kim Davis And The Freedom of Religion

Geoffrey R. Stone | Posted 09.08.2015 | Politics
Geoffrey R. Stone

The Kim Davis situation raises interesting questions about the meaning and practical effect of the freedom of religion. Although, for reasons that I will explain, the issue today is one of public policy, rather than constitutional law, the evolution of constitutional principles in this realm is illuminating.

Bernie Sanders' Gun Control Affair: It's Complicated

Anhvinh Doanvo | Posted 08.24.2015 | Politics
Anhvinh Doanvo

Bernie Sanders' position on gun control is far more complex than these headlines suggest, however, even if his nuances lack a reasonable basis. Both Sanders' supporters and detractors need to be aware of these nuances before blindly praising or criticizing his politics.

It's Time to End Prosecutorial Immunity

Evan Bernick | Posted 08.12.2015 | Politics
Evan Bernick

Prosecutorial misconduct is a reality. So is the lack of any meaningful legal recourse for its victims. It is time to abolish a rule that stands as an affront, not only to the letter of federal law, but to our aspirations towards a just legal order.

Federal Court: Yes, Naked Economic Protectionism is Constitutional

Evan Bernick | Posted 07.27.2015 | Politics
Evan Bernick

Could the government prohibit LeBron James from playing professional basketball simply to put more money in the pockets of less talented athletes? Absolutely, said the Second Circuit Court of Appeals, in a surprising -- and appalling -- decision last week.

Do We Have an Amoral Constitution? A Second Reply to Kurt Lash

Evan Bernick | Posted 07.20.2015 | Politics
Evan Bernick

Lash's Constitution is amoral -- it would allow myriad individual rights that are central to human flourishing to be voted up or down. He is free, of course, to argue for that view -- but it is one that the Founders rejected, the Framers of the Reconstruction Amendments rejected.

The Latest Gerrymander: Voters Instead of People

Alan B. Morrison | Posted 07.15.2015 | Politics
Alan B. Morrison

The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.