Constitution
October 24, 2023 — Steven Hayward
I’m finally back from my extended overseas journey—more articles from this to come—and tomorrow I’ll be back on campus hosting the great Hadley Arkes at the law school for a mid-day lecture (12:50 pm – 2 pm, Room 105) based on his new book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution. (Highly recommended by the way. Podcast hopefully to come.) Needless to say, the idea of
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September 6, 2023 — John Hinderaker
The criminal prosecutions that Democrats have brought against Donald Trump are all flimsy to various degrees. But the current effort to bar Trump from the 2024 ballot as an “insurrectionist” is possibly their weakest attempt yet. Nevertheless, it continues to gain traction, as reflected in this news from a few hours ago: BREAKING: A group has filed a lawsuit to bar Donald Trump from the primary ballot in Colorado, arguing
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July 19, 2023 — John Hinderaker
Of course not. The Supreme Court has held that race discrimination in university admissions violates the 14th Amendment and, where it applies, Title VI of the Civil Rights Act of 1964. It isn’t a leap to apply the same principle to faculty hiring and promotion. But that won’t bring an end to racist practices by universities, any more than Brown v. Board of Education automatically ended racist practices in the
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July 13, 2023 — Steven Hayward
Alan Dershowitz struggles mightily yesterday in the Wall Street Journal to persuade us that Earl Warren would have been wholly in favor of the Harvard/UNC decision banning admissions by race based on the equal protection clause of the 14th Amendment. As much as we may welcome Dershowitz’s continuing defection from the left, this article is not persuasive. To the contrary, the mistakes of the Warren Court contributed significantly to the
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July 7, 2023 — Scott Johnson
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and the author of several books including Is Administrative Law Unlawful? (2014). Steve Hayward mentioned the book earlier this week in “Will the Supreme Court dismantle the administrative state?” Professor Hamburger argues that administrative law is unlawful, unconstitutional, and illegitimate. Drawing on English legal history, he contends that the regime of agency government resurrects the
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July 4, 2023 — Scott Johnson
Justice Thomas is the greatest Supreme Court justice of the modern era. His concurrence in SFFA v. Harvard is a kind of capstone, but it represents only one area in which Justice Thomas has sought to rectify and deepen the Court’s constitutional jurisprudence. William Wolfe’s tweet below expresses my feeling perfectly. Thank you, Justice Thomas.
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July 4, 2023 — Scott Johnson
With his glorious concurrence in SFFA v. Harvard, today has become a day to salute Justice Clarence Thomas, or so it seems to me. Here is a man who has thought his own way through to a true understanding of the principle of equality that we celebrate today. Justice Thomas’s concurrence in part smacks down Justice Ketanji Brown Jackson’s dissent. Justice Jackson’s dissent faithfully represents the groupthink denying the equality
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July 3, 2023 — John Hinderaker
As I have written more than once, the government we live under is not the one described in the Constitution. The ubiquitous and powerful arm of our government, found nowhere in the Constitution, is the Fourth Branch, the plethora of federal agencies, the administrative state. The administrative state has assumed much of the power that the Constitution assigns to the legislative and executive branches, a development that has progressed now
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July 1, 2023 — Scott Johnson
After posting my own brief comments on the Supreme Court’s historic decision in the affirmative action cases on Thursday, I wrote Professor Andrew Kull. Professor Kull is Distinguished Senior Lecturer at the University of Texas at Austin School of Law and the author of The Color-Blind Constitution. I told him I had been drawing on CBC for something like 20 years to write about the “affirmative action” regime and that
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June 30, 2023 — Scott Johnson
I thought that President Biden’s claim of authority to wipe out some $430 billion in student debt under the HEROES Act was absurd. As I noted when President Biden exercised his purported authority to confer the giveaway, the issue of standing was key to the outcome of the two cases challenging Biden’s purported authority. Today the Supreme recognized Missouri’s standing and held 6-3 in Nebraska v. Biden that the HEROES
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June 29, 2023 — John Hinderaker
Scott and Steve have already commented on today’s historic Supreme Court decision, finding that both Harvard and the University of North Carolina have engaged in illegal race discrimination through their affirmative action policies. I will add a few observations, which perhaps will be supplemented when I have had time to read all of the opinions. * The Grutter decision has always been an anomaly. It expressed considerable distaste for affirmative
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June 29, 2023 — Scott Johnson
The subject of what goes under the shibboleth of “affirmative action” is both close to my heart and one about which I have frequently written, usually drawing on Andrew Kull’s legal history The Color-Blind Constitution. Published by Harvard University Press in 1998, it remains a terrific book. If Kull updated it to take cases of the past 25 years into account, he would have a story with a somewhat happier
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June 10, 2023 — Steven Hayward
There’s long been reason to believe Gov. Gavin Newsom is nearly as dumb as his “frenemy” Kamala Harris, but this week gives some of the best proof yet: he has departed from Progressive orthodoxy in the dumbest way possible. You may have heard that he has proposed a constitutional amendment to allow for “common sense” gun control, such as background checks, bans on so-called “assault weapons,” and waiting periods for
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May 25, 2023 — Scott Johnson
I covered the Supreme Court oral argument in Geraldine Tyler v. Hennepin County last month in “Geraldine Tyler’s day in court.” The following week I stepped back for a broader view of the case in “Argumentum interruptum — live on FOX News!” In the latter post I wrote (link omitted): Ms. Tyler lost in the district court and on appeal because the courts felt bound to apply the 1956 Supreme
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May 3, 2023 — Steven Hayward
John wrote here Sunday about the “National Vote Compact” (NVC), the proposal of the goo-goo (“good government”) reformers to get around the electoral college by having a majority of states agree to award their electoral votes to the winner of the national popular vote. I agree with John that it is a loopy idea, though I’d love the spectacle of California someday having to cast its electoral votes for a
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May 3, 2023 — Scott Johnson
Yesterday I worked all day preparing for what was to be a three-minute segment with Lawrence Jones on Fox News last night. The segment was to discuss the case of Geraldine Tyler v. Hennepin County that is pending in the United States Supreme Court. The Court held oral argument on April 26. It is likely to decide the case in June. I anticipated that more urgent news would result in
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May 1, 2023 — Scott Johnson
President Biden shares a propensity to transgress legal constraints after declaring that he lacked the authority to do what he subsequently does. “One would think posing as a defender of our system would force Biden to be more fastidious about his own relationship to our institutions and norms, although that doesn’t seem to have occurred to him,” Rich Lowry writes. Say this on Biden’s behalf. There is a lot more
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