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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

Obama's Recess Appointments: 15 announced today including to NLRB

Posted on March 27, 2010
Article II section 2, clause 3 of the Constitution allows the President to make "recess appointments": The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall...

The Response: A Movie About Guantanamo Detainee Trials

Posted on March 26, 2010
The Response, a short film dramatizing detainee Combat Status Review Tribunals at Guantanamo Bay, has been traveling around the country and earning praise and prizes. The film was researched and shot at the University of Maryland School of Law with...

Heyck on Originalism and the Second Amendment

Posted on March 26, 2010
Thomas William Heyck (Northwestern, professor emeritus of history) satirizes originalism as applied to the Second Amendment in an op-ed in today's Chicago Tribune. Heyck argues that Justice Scalia's form of originalism absolutely protects "the right to keep and bear muzzle-loading...

The Independence of Dodd's Bureau of Consumer Protection

Posted on March 25, 2010
Senator Chris Dodd last week introduced his financial reform bill, including his version of a consumer financial protection agency to regulate the financial services industry and "to protect consumers from abusive financial services practices." In contrast to the House version,...

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Supreme Court Nominees: No Presidential Wannabes Need Apply

Posted on March 25, 2010
There is no perfect SCOTUS nominee. One suggestion for Obama has been that he nominate himself. Obama would therefore join the rarified company of a POTUS who became a member of SCOTUS: kudos if you can name that person (pictured...

Shesol's Supreme Power

Posted on March 25, 2010
Jeff Shesol, author of Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, just published Supreme Power: Franklin Roosevelt vs. the Supreme Court. Shesol, a Clinton speechwriter, tells the story of FDR's court-packing plan "with a...

Liu Ninth Circuit Nomination Hearing: Update

Posted on March 24, 2010
According to a just issued press release from Patrick Leahy (D-Vt), Chair, Senate Judiciary Committee, the nomination hearing scheduled for today for Goodwin Liu has been postponed. Liu, (pictured right) is a ConLawProf at UC-Berkeley (Boalt Hall) who has been...

Constitutional Challenge to Health Care Mandate: Complaint

Posted on March 23, 2010
Within ten minutes of President Obama?s signing of the Patient Protection and Affordable Care Act, available as large download here, thirteen states through their state attorney generals filed a complaint in the Northern District of Florida, Pensacola Division, challenging the...

Gender, Equal Protection & Immigration SCOTUS grants cert in Flores-Villar: Analysis

Posted on March 22, 2010
The question is a narrow one: : whether the court's decision in Nguyen v. INS, 533 U.S. 53 (2001), permits gender discrimination that has no biological basis? Recall that the Court in Nguyen upheld 8 U. S. C. � 1409...

Pending Executive Order on Abortion - Text

Posted on March 21, 2010
President Obama's "pending" EO on abortion, just released by The White House, provides: ENSURING ENFORCEMENT AND IMPLEMENTATION OF ABORTION RESTRICTIONS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT By the authority vested in me as President by the Constitution and...

SCOTUS Website: New & Improved

Posted on March 20, 2010
Just in time for Spring, the Supreme Court of the United States has a new, improved, better-looking, and more user-friendly website. RR

Health Care and Education Affordability Act of 2010

Posted on March 18, 2010
The text of the proposed Health Care and Education Affordability Reconciliation Act of 2010 is available here. The text, ?Amendment in the Nature of a Substitute to HR 4872, As Reported,? is downloadable as a 152 page pdf. Also available...

Wash U. Colloquium on Equal Justice

Posted on March 17, 2010
Washington University Law School is hosting its 10th Annual Access to Equal Justice Colloquium on Friday, March 19. The Colloquium, "Challenging Structural Impediments to Substantive Justice," will dedicate its morning session to a keynote by Professor Martin Guggenheim (NYU) titled...

Conferences: SALT Teaching, Fordham Democracy, and CUNY Kinship and Community

Posted on March 16, 2010
A few of the exciting conferences scheduled for the remainder of March include: SALT (Society of American Law Teachers) Conference, "Vulnerable Populations and Economic Realities: an interdisciplinary approach to law teaching" on March 19-20, 2010 at Golden Gate University...

Within Three Years: Justice Stevens' Contemplates Retirement

Posted on March 15, 2010
?You can say I will retire within the next three years. I?m sure of that.? That's the prediction of Justice John Paul Stevens according to the just published profile in the New Yorker by Jeffrey Toobin. Toobin's article joins a...

Justice Thomas' Wife and Tea Party Activism

Posted on March 14, 2010
Virginia (Ginni) Thomas (pictured), the spouse of Supreme Court Justice Clarence Thomas, says she is energized by Obama's "hard-left agenda" and has launched LibertyCentral to "serve the big tent of the conservative movement." As Kathleen Hennessey for the LATimes notes:...

Daylight Savings Time as Unconstitutional?

Posted on March 14, 2010
With all the current discussions of states' rights and federal power, the federally mandated change to "daylight savings time" at 2am this Sunday morning may require a constitutional discussion. Under the Uniform Time Act of 1966, states may exempt themselves...

Quick Quiz: Name the Historical Figure who is NOT a "Founding Father"

Posted on March 13, 2010
Select the person whose writings did NOT inspire the American Revolution: a. St. Thomas Aquinas b. John Calvin c. Thomas Jefferson d. William Blackstone Correct Answer: C Explanation: Thomas Jefferson's notion of "separation of church and state" was rejected by...

Constitutional Rights for Guantanamo Detainees under the Canadian Charter?

Posted on March 13, 2010
The Canadian Charter of Rights and Freedoms, section 7 provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. But...

Granny D, Advocate for Campaign Finance Reform, Obituary

Posted on March 12, 2010
At 100 years of age, Doris Haddock, who walked across the US at age 89 to bring attention to the cause of campaign finance reform, has died. Her NYT obit quotes her on Citizens United, adding her disapproval: The Supreme...

Oklahoma Bill: State Law Enforcement Shall Deny Federal Agencies Access to Records

Posted on March 12, 2010
As amended and passed by the Oklahoma Senate SB1965 seeks to "opt-out" of the recently passed federal hate crimes legislation covering sexual minority and gender identity status (see our discussion of the Matthew Shepard Act here). A portion of the...

Abortion as a Constitutional Right: The Billboard and Health Care Exceptions?

Posted on March 12, 2010
Thoughtful column from Professor of Sociology Carole Joffe (pictured left) author of Dispatches from the Abortion Wars: The Costs of Fanaticism to Doctors, Patients, and the Rest of Us. Joffe, writing from a pro-reproductive rights position, discusses the Atlanta billboard...

A Suspect Class?: Law Profs, Attorneys, Judges . . . or People in Poverty?

Posted on March 09, 2010
Law professors are not exactly popular. In the oral argument of McDonald v. City of Chicago, the incorporation of the Second Amendment case previously discussed here, Justice Scalia implicitly dismissed the privileges or immunities claim by characterizing it as "the...

Torture Case Against Rumsfeld to go Forward

Posted on March 08, 2010
Judge Wayne R. Anderson of the Federal District Court for the Northern District of Illinois on Friday denied former Defense Secretary Donald Rumsfeld's motion to dismiss and allowed the case for authorizing cruel and inhuman treatment to go forward. The...

Virginia AG opines that public universities should be prohibited from including LGBT anti-discrimination policies

Posted on March 05, 2010
"It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ?sexual orientation,? ?gender identity,? ?gender expression,? or like classification as a protected class within its non-discrimination policy absent...

Sachs: The Strange Alchemy of Life and Law

Posted on March 03, 2010
Justice Albie Sachs, original member of the Constitutional Court of South Africa and currently visiting professor of human rights at the University of Chicago, delivered a series of lectures this winter that dovetailed with his summer 2009 book, The Strange...

Oral Arguments in McDonald

Posted on March 02, 2010
The Supreme Court heard oral arguments today in McDonald v. City of Chicago, the case challenging Chicago's handgun ban. As expected, the arguments focused on application of the Second Amendment to the states ("incorporation") and avoided the meaning of the...

CJ Roberts Denies Stay of DC Same-Sex Marriage

Posted on March 02, 2010
Acting as Circuit Justice for the DC Circuit, Chief Justice Roberts refused to grant a stay of DC's Religious Freedom and Civil Marriage Equality Amendment Act which allows same-sex marriage. The brief opinion Jackson v. District of Columbia Board of...

Primer on Second Amendment, Incorporation

Posted on March 01, 2010
The National Law Journal ran four articles today that together make an excellent primer on McDonald v. Chicago, the Second Amendment case to be argued tomorrow at the Supreme Court. Professor Saul Cornell (Fordham, American History) argues that "[g]un-rights advocates...

Lousin and Mirza Rethinking Reapportionment

Posted on February 28, 2010
Professor Ann Lousin (John Marshall) and Professor Leona Mirza (North Park U., Dept. of Mathematics) argued in last week's National Law Journal that the best way to avoid an electoral college winner beating a popular vote winner (as in the...

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