Constitutional Law

Dispatches from the Creation Wars

Category archives for Constitutional Law

Newsweek commissioned retired Justice Sandra Day O’Connor to interview recently retired Justice John Paul Stevens. While the whole relatively short interview is interesting, as an ex-Republican it made my gut twinge to confront one more example of how the recent domination of the Republican party by conservatives cannibalizes the party’s best legacies, from President’s Lincoln’s…

To What Extent the Appeal?

- guest-blogged y W. Kevin Vicklund The 9th Circuit Court of Appeals just heard arguments on the Prop 8 trial, i.e. Perry v. “da Guvernator.” The DoJ keeps appealing challenges to Bush-era laws. What do these have in common? The issue of how far the executive branch is obligated to go in order to uphold…

The Failure of Frothingham

- guest-bogged by W. Kevin Vicklund Standing is a concept that has been much-maligned on Dispatches. All too often it seems to be used as an excuse for a court to dodge a prickly situation. But does it serve a valid purpose? Is it merely being abused, or should it be scrapped entirely?

The Supreme Court Friday granted certiorari to a school district in the case of a 13 year old girl who was strip-searched by school officials looking for contraband ibuprofen. The school has a zero-tolerance policy on all medication, whether over-the-counter or prescription, without prior written permission. The girl was stripped after another student was caught…

This case will probably never be a staple of the law texts, but it’s substantively important and, I believe, correctly decided. The case is Chambers v. United States. From the syllabus of the opinion. The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory prison term on a felon unlawfully in possession of a firearm…

Federalist Blog on the Dover Ruling

In looking for reactions to yesterday’s ruling from legal scholars, I found this post on a Federalist Society blog by someone named P.A. Madison. The arguments, which run the gamut from the false to the downright silly, would make a great exam answer for my buddy Dan Ray to grade. I can almost see him…

Pentagon Spies on Gay Rights Groups

I got into a conversation the other day with someone who doesn’t understand what the big deal is when it comes to the NSA spying on Americans. He gave what I’m sure is a common response from Americans, which is essentially that he trusts the government not to abuse such power. He said, “Do you…

Noah Graubart has an excellent essay on the varieties of judicial conservatives, particularly in respect to the Alito nomination. Unlike most commentators, he recognizes that there are different varieties rather than casually lumping Scalia and Thomas together. That alone is refreshing to read. He writes: Of course Bush has selected a nominee who is hostile…

Balkin on Big Business and Regulation

Jack Balkin has an interesting post picking up on David Bernstein’s comments on Samuel Alito and originalism. There are many different issues jumbled together in the post, some of which I don’t agree with, but I want to point out one statement that I think will come as a surprise to many people, especially many…

Conservative Originalism in Crisis?

David Bernstein and Randy Barnett have interesting posts up at Volokh about the growing split among conservative originalists. Barnett’s post came first and he notes that when conservatives today invoke the idea of “judicial restraint” in opposition to judges “legislating from the bench”, they are in fact buying in to a New Deal era concept…