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Constitutional Law

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.

Texas License Plates, the Confederate Flag and the Supreme Court

Geoffrey R. Stone | Posted 06.20.2015 | Politics
Geoffrey R. Stone

Why are people willing to pay for the right to put their message on a license plate, rather than just put it on a bumper sticker? Justice Breyer suggests that it is because they want the state's endorsement of their message. The problem, though, is that this is about the state discriminating among private speakers based on whether it approves or disapproves of the message. This, the First Amendment does not permit.

The Secret Messages Behind the SCOTUS Same-Sex Marriage Oral Arguments

Laurie Israel | Posted 06.02.2015 | Gay Voices
Laurie Israel

It is ironic and telling that the people of Ireland on May 22 voted to enshrine same-sex marriage rights into its constitution by an almost two-to-one margin. They seemed to have no problem in riding above complicated and esoteric legal arguments, as well as the proscriptions of the Church.

False Cries of "Activism": In Same-Sex Marriage Case, There's No Harm in Meaningful Judicial Review

Evan Bernick | Posted 05.08.2015 | Politics
Evan Bernick

Anderson's preoccupation with activism leads him to miss out on a crucial point that all defenders of limited government should be able to agree upon: The Court should make an independent determination of the constitutionality of the challenged marriage laws, rather than reflexively deferring to the political branches.

Rosen: Liberals Should Worry That Supreme Court Will Protect Too Much Liberty

Evan Bernick | Posted 05.04.2015 | Politics
Evan Bernick

Everyone who believes that Americans are entitled to the full measure of freedom that the Constitution guarantees should resist this case for reflexive judicial restraint, which is profoundly hostile to liberty.

A Constitutional Challenge to NYC's Ban on Dancing

Sonja West | Posted 06.30.2015 | New York
Sonja West

For almost 90 years, the city of New York has prohibited social dancing in most restaurants and bars unless the venue has first obtained a special cabaret license.

Getting to Same-Sex Marriage

Geoffrey R. Stone | Posted 06.25.2015 | Politics
Geoffrey R. Stone

Gays and lesbians have been subjected to a long history of invidious discrimination, sexual orientation is not a matter of choice, gays and lesbians have consistently had their interests dismissed and overridden in the political process, and sexual orientation has nothing to do with an individual's ability to perform in society.

Give All Americans a Mandatory Civics Exam

Steven Kurlander | Posted 03.23.2015 | Impact
Steven Kurlander

Think about it. We rarely discuss or even ponder what it means to be an American in our daily lives. When was the last time you sat down and said to yourself, or thought for a moment, or even said in a prayer: "Thank God that I am American"?

The SCOTUS Should Stop Overprotecting the Rich and the Powerful: They Don't Need the Help

Eric Segall | Posted 10.12.2014 | Politics
Eric Segall

The biggest winner in the Supreme Court over the last few years has been the United States Chamber of Commerce. The Roberts Court is simply carrying on a long and sorry tradition of the Justices favoring the rich and the powerful against the poor and the weak.

Lawsuit Filed to Void Debt Ceiling: Is Jack Lew a "Default Denier"?

Victor Williams | Posted 07.26.2014 | Politics
Victor Williams

Over Memorial Day Weekend, America honors those who sacrificed to defend our nation and its honor. I paid tribute by revealing my lawsuit to void the...

Do We Need the Supreme Court?

Geoffrey R. Stone | Posted 07.22.2014 | Politics
Geoffrey R. Stone

The existence of judicial review matters only when the courts hold a law unconstitutional. A central question in evaluating this element of our constitutional structure is whether courts have exercised this authority wisely.

Crime and True Punishment: A Botched Execution or Dead-on Justice?

Steven Kurlander | Posted 07.08.2014 | Crime
Steven Kurlander

in this quest to reduce the "cruel and inhuman" nature of the death penalty, society also reduces the pain, loss of freedom and even loss of life that some say should be imposed for the kind of violence the unrepentant Lockett committed.

The National Review, Justice Sonia Sotomayor, and Affirmative Action

Geoffrey R. Stone | Posted 06.24.2014 | Politics
Geoffrey R. Stone

Of course, the National Review has every right under the First Amendment to say all of these things, and I would defend to the death, in Voltaire's words, its right to say them. But that does not make them any less offensive -- or ignorant of the law.

Politics, the Constitution and the Roberts Court

Geoffrey R. Stone | Posted 06.19.2014 | Politics
Geoffrey R. Stone

The "conservative" justices on the Roberts Court are often passionately restrained in their interpretation of the Constitution in precisely the cases in which a more muscular form of judicial review is most appropriate -- those involving discrimination against African Americans, women, Hispanics, religious dissenters, gays and lesbians, persons accused of crime, and denial of the right to vote to minorities and the poor. In these cases, our contemporary "conservative" justices often err on the side of upholding laws that even Philip Kurland would have found unconstitutional. This is, in my view, a sad state of affairs.

Teach Law Outside of Law Schools

Michael Shammas | Posted 06.04.2014 | College
Michael Shammas

What if I told you that the most pertinent social science subject -- one that affects every single one of us every single day -- is taught to only a select few? That would be absurd, right? Well, unfortunately this is no fiction. It is the state of legal knowledge in America, and it is profoundly troubling.

A Bone to Pick About Animal Protection Legislation

Abigail Perdue | Posted 05.20.2014 | Crime
Abigail Perdue

On March 14, 2014, South Dakota became the 50th state to enact a felony provision for animal cruelty. Although the enactment of new anti-cruelty measures in South Dakota is a step in the right direction, more remains to be done.

Celebrating Sullivan: The Central Meaning of the First Amendment

Geoffrey R. Stone | Posted 05.09.2014 | Politics
Geoffrey R. Stone

This week marks the 50th anniversary of the Supreme Court's decision in New York Times v. Sullivan, perhaps the most important First Amendment case in American history. In the words of the great First Amendment scholar Alexander Meiklejohn, the decision was "an occasion for dancing in the streets." Why was Sullivan so important?

Praying Away the School Day in Alabama

Lester & Charlie | Posted 04.15.2014 | Comedy
Lester & Charlie

What's one way to counter the recent news that American kids find school too boring? Take away their lunches! That oughta amp up the excitement level.