Tag Constitution

Bostock and Originalism

Mark Tushnet— On June 15, 2020, the Supreme Court decided Bostock v. Clayton County. Dividing 5-4, the Court held that the ban on employment discrimination “because of sex” in Title VII of the 1964 Civil Rights Act extended to discrimination against gays, lesbians, and transgender people. Remarkably, both Justice Neil

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Crisis Musings on the Constitutional Revolution

Gary Jeffrey Jacobsohn— Recently a United States Senator, reflecting on the terrible crisis we all now face, recalled an earlier time when the nation confronted an existential threat to its governing institutions. Said Senator Edward Markey of Massachusetts: “I do think there’s an FDR moment.” Presumably what he meant was

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The End of Conservatism

Paul W. Kahn— Project and system are two competing narrative forms that organize the way we imagine the nature of legal order. A project gains its principle of order from the intentional act of a free subject. A system gains its principle of order immanently and spontaneously. To write a

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Selecting the Next President: Majority Rule and the Electoral College

George C. Edwards III— Can the intentions of the framers justify the violation of majority rule in the twenty-first century? Most of the motivations behind the creation of the electoral college are simply irrelevant today and can be easily dismissed. Legislative election is not an option, there is little danger

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The Original Constitution of the United States: Religion, Race, and Gender

Many who declare that Americans in 2018 should stick to the original words of the United States Constitution, ratified in 1788, fail to acknowledge that in reality the nation has been ruled by a substantially different Constitution for the past 150 years.  The Union victory in 1865, and the amendments

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Sense of righteousness

Robert A. Burt— The judicial task is not mechanistic but properly and necessarily involves judgment. In particular, judges must understand themselves as ultimately promoting equal deliberation among conflicting parties rather than imposing their own calculus of equality on the parties. This understanding is not alien to the judicial function; it

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The American Prophet – Louis D. Brandeis

Jeffrey Rosen— Recognizing Brandeis as an American prophet seems more relevant today than ever. Brandeis’s consistent opposition to the curse of bigness made him one of the greatest constitutional philosophers of the twentieth century. He is also the Jeffersonian prophet whose prophecies have been most consistently vindicated. The “people’s lawyer”

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The Federalist Papers: On Impeachment

Sanford Levinson— Federalist 65: The Senate’s Confirmation and Impeachment Powers One of the most important distinction between the Senate and House, with regard to their constitutionally granted powers, concerns the former’s unique role in confirming presidential appointments. It is utterly irrelevant, as a formal matter, what the House thinks about

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Can Presidents Be Prosecuted?

Brian Kalt— President Trump has been nothing if not unconventional. Time and again, he has upended traditions and institutions, blowing past those who say, “You can’t do that!” and replying, “I just did!” But in the process of upsetting so many apple carts, he is also teeing up an object lesson in

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The Substance of the Constitution: Rights, Structures, Conventions

Mark Tushnet— Donald Trump’s election and the first weeks of his presidency show us some of the ways in which the Constitution matters. When trying to understand how our constitutional system works, I like to identify three “parts” of the Constitution: rights, structures, and conventions. It’s easiest to focus our

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