Constitutional Law

History Offers Warning that Some Crises of Civic Virtue are Overblown

by Bruce Dearstyne

The American Bar Association's Committee on American Citizenship warned in 1922 of a decline in civic awareness that threatened the very survival of the republic. A century later, it offers a lesson that sometimes warnings of democratic peril are self-serving. 

On the Historical Dilettantes Practicing Originalism

by Joshua Zeitz

"The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess."

What Justice Kavanaugh Gets Wrong About "Neutrality" on Abortion

by David Cohen and Maya Manian

Justice Kavanaugh has joined a long line of jurists who have pretended that the Fourteenth Amendement allows the courts to be neutral when fundamental rights are at issue. 

The Two Memos With Enormous Constitutional Consequences

by Kimberly Wehle

"Presidential criminal immunity has no grounding in actual law. It’s not in the Constitution or any federal statute, regulation, or judicial decision. It is not law at all."

Would the Founders Convict Trump and Bar Him From Office?

by Eli Merritt

"Today’s Republican senators must at least be willing to break with their party and disappoint some of their constituents — and, yes, perhaps lose their jobs in coming elections — to serve the larger interest of protecting the nation."

The Constitution Forbids a Post-Presidential Impeachment Trial

by William G. Hyland, Jr.

A biographer of George Mason argues that, by the text and original intent of the Constitutional impeachment power, Donald Trump's exposure to trial ended when he left office and the Senate trial set to start on February 8 is unconstitutional.

What the Founders Would Have Done with Trump

by Frank O. Bowman III

"The impeachment mechanism written into the American Constitution owes its structure to a set of very specific lessons the Framers drew from British and classical history," writes a constitutional law scholar. Those lessons point to the validity of trying Trump in the Senate even after the end of his presidency.

No, the Constitution Does not Allow President Trump to Pardon Himself

by Dale Carpenter

The history of debate over the pardon power in the Constitiution strongly supports the claim that a president's pardon of themselves would be unconstitutional. 

Why Trump Can Be Convicted Even as an Ex-President

by Steven I. Vladeck

The historical record of impeachment trials suggests that they treat removal from office and disqualification from future office as separate questions, meaning that the Senate may still vote to disqualify Trump from office even after his term has ended. 

The 25th Amendment Should Not Be Invoked Lightly

by Brian Kalt

The speed with which presidential power transfers to the Vice President under the 25th Amendment is balanced by the relative ease with which the president can reclaim those powers. Is it an appropriate tool for removing Donald Trump from power (if not from office)? 

The Gonzo Constitutionalism of the American Right

by Corey Robin

"Conservatism has ceased to be a political project capable of creating hegemony through majoritarian means."

The Framers of the Constitution Didn’t Worry about ‘Originalism’

by Jack Rakove

"Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time."

Reflections from "That Further Shore": A Constitutional Lawyer's Immigrant Family History

by John Feerick

John Feerick's work in constitutional law helped create the 25th Amendment, and an unadopted amendment to abolish the Electoral College. His recent family history and memoir shows how his immigrant parents laid a foundation for this success. 

Was Impeachment Designed to Fail? (Review Essay)

The Constitution, by design, stacks the impeachment deck strongly in the president’s favor. And it’s those 233-year-old design choices that dictated the Trump impeachment trial’s eventual outcome. Presidential impeachments are never a fair fight, and they weren’t meant to be.

There’s No Historical Justification for One of the Most Dangerous Ideas in American Law

by Julian Davis Mortenson and Nicholas Bagley

The delegation of regulatory power to federal agencies is the indispensable foundation of modern American governance. And it is under siege.

The Electoral College was Terrible from the Start

by Garrett Epps

Epps doubts that Alexander Hamilton could foresee the consequences of an electoral college.

Trump’s Grotesque Violation of the First Amendment

by Garrett Epps

The people own the streets—not the police, not the military, and not Donald Trump.