Monday, April 23, 2018
The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order
Robert Barnes in the Washington Post states, quite accurately, that the central issue before the Supreme Court later this week, when it considers the constitutionality of the Trump Administration's travel bans, is whether Trump will be viewed as just another president, with the typical deference that one assigns to holders of that office, or a dangerous exception to the assumptions we make about our presidents that he in fact is. As it happens, Mark Graber and I have almost literally just published an article in the Chapman Law Review, in a symposium on executive power, that argues that Donald Trump is a decidedly "non-Publian" president who is entitled to little or no deference. More to the point, we are extremely critical of those of our colleagues who are so wedded to "neutral principles" that they deny the obvious differences between the dangerous and ignorant demagogue who is currently our president and his predecessors. Barnes quotes Josh Blackman, speaking on his own behalf in a phone call sponsored by the Federalist Society, in this regard:
Implications of our “post-subpoena” world
Sunday, April 22, 2018
“Not the Next Korematsu”
On the so-called "Global Injunction" question in the Travel Ban case
Thursday, April 19, 2018
Presidential Impeachment in Partisan Times
Thursday, April 12, 2018
The Trump Amendment
Gerard N. Magliocca
I am currently writing an article about the ongoing effort to revive the proposed Equal Rights Amendment to the Constitution. Last year, Nevada ratified the ERA. Nevada's argument was that although the ratification deadline imposed by Congress for the ERA expired in 1982, Congress can waive that requirement and declare the amendment part of the Constitution if and when 3/4ths of the states ratify. My tentative conclusion is that this argument is correct, though the fact that some states rescinded their ratifications in the 1970s complicates the question of how we will know when three-fourths of the states have ratified.
Saturday, April 07, 2018
The real cost of Masterpiece: It’s personal.
Friday, April 06, 2018
Intermediary Immunity and Discriminatory Designs
Monday, April 02, 2018
Some thoughts after reading two contributions to the Marquette symposium on legal scholarship
The Multiple Uses of Justice Scalia
Sunday, April 01, 2018
Solum on Pedantic Originalism
Friday, March 30, 2018
Noah Feldman, THE THREE LIVES OF JAMES MADISON: GENIUS, PARTISAN, PRESIDENT
I have just finished reading Harvard Prof. Noah Feldman's remarkable book on James Madison. It deserves a wide readership. It is extremely well-written and full of insights. As the title suggests, it focuses on three facets of Madison's career, his role as one of at the chief designers of the U.S. Constitution (the "genius"); an important originator of the American party system (the "partisan"); and then America's first war-time president. The first part is likely to be least surprising to most con law buffs, though it certainly tells the story very well. Madison may have been the "father of the Constitution," but he was a distinctly disappointed parent, given that at that stage of his life he, like Hamilton, really disdained the states and wished an even more "consolidated" government than the one achieved in Philadelphia. And, importantly (and correctly), he despised the allocation of voting power in the United States Senate. Where the book really shines, at least for me, was in the second two-thirds of the book.
Tuesday, March 27, 2018
The Administration is Lying About the Census
The Commerce Department has announced that it is adding a question about citizenship to the 2020 Census, for the first time in seventy years. There has been a lot of speculation about possible political motivations for this action. It is difficult to know exactly what motivates government actors whose deliberations are not public. But it is possible to know one thing: the government’s sole stated reason for adding the question—improving enforcement of Section 2 of the Voting Rights Act (VRA)—is false. It is not the real reason.
The Wrong Section 2
Gerard N. Magliocca
Yesterday the Commerce Department announced that a citizenship question will be included on the next census. Secretary of Commerce Wilbur Ross stated that the addition of this question would generate data that would be helpful "for determining violations of Section 2 of the Voting Rights Act," which "protects minority population voting rights." The Commerce Secretary also concluded that the concern that fewer non-citizens will respond to a census that includes a citizenship question were unfounded. Several states are considering a challenge to this proposed change. Presumably, they will argue that the decision to add a citizenship question reflects a discriminatory intent that violates the Fourteenth Amendment.
Wednesday, March 21, 2018
Mark Zuckerberg Announces that Facebook is an Information Fiduciary
Today in response to the Cambridge Analytica scandal, Facebook founder Mark Zuckerberg announced what I have long contended-- that Facebook is an information fiduciary. Indeed, along with Google, it is one of the most important information fiduciaries in our present age.
Tuesday, March 20, 2018
"A First Amendment for All? Free Expression in an Age of Inequality"