Posts

We Can’t Be Originalists *and* Textualists Now

By Guha Krishnamurthi -
In New York State Rifle & Pistol Association, Inc. v. Bruen , the Supreme Court set forth a new test to determine whether a particular firearms regulation is in accord with the original meaning of the Second Amendment: “history and tradition.” At the critical step of the inquiry, the Court would essentially look to whether the challenged firearms regulation has a historical analogue. This “history and tradition” test is the new rage—it has found footing in Second Amendment jurisprudence, but the Court also employed this type of reasoning in Dobbs (reproductive rights) and Kennedy v. Bremerton (the Establishment Clause). Several scholars have criticized the “history and tradition” inquiry as unworkable and as not appropriately capturing the contours of legislative power . I agree with these criticisms, but I write to make a separate observation—about the relationship between the newest form of originalism and textualism. My claim is that the “history and tradition” inquiry of or...
Read more

Trump's Ban on CNN, Politico, and MS NOW is Plainly Unconstitutional: Is it Also Important?

By -
Image
On Friday of last week, President Trump announced via Truth Social that he was "banning . . . CNN, MS NOW . . . and Politico . . . from the White House" in response to what he regards as their allegedly inaccurate reporting about him and his administration. Needless to say, the ellipses and words outside the quotation marks mask the much more piquant way in which the president expressed himself. To wit: In short order, reporters for the three news organizations found that their "hard passes" granting access to the areas of the White House ordinarily open to properly credentialed journalists with security clearances had been deactivated. Wasting little time, yesterday the three news organizations filed a lawsuit. The complaint is compelling. It sets forth three distinct legal claims: (1) because there is a liberty or property interest in the hard pass, it cannot be canceled without notice and an opportunity to be heard (i.e., procedural due process), both of which w...
Read more

The Abstract and Link to My Forthcoming Article: The Vulnerability of the Press, Academic Freedom, and Zealous Advocacy

By -
I'm pre-writing today's post on Sunday because by the time you read this, it will be Yom Kippur, and I'll be atoning for my various sins. Accordingly, I'll keep it short. I have a new article that addresses two related phenomena: (1) Trump's attacks on three categories of nongovernmental institutions that are essential to democracy (media organizations, universities, and law firms); and (2) the ways in which constitutional case law pays lip service to the importance of such institutions but in practice gives them no distinctive protection. I also explain the dual-edged nature of an institution's size: it to some extent can insulate an institution from attack but it also makes an institution more vulnerable because the larger an institution the more it depends on good-faith interactions with the government. The article concludes with some reform proposals. The article won't be published in final form for nearly a year. Such are the vagaries of law journal pub...
Read more

Lake Ontario, $5K Giveaways, and Bestiality: Are We Being Distracted by Trump's Inconsequential Craziness?

By -
My latest Verdict column was published on Tuesday. It addresses President Trump's proposal to pay every adult U.S. citizen $5,000. To summarize: Trump has no power to do this without congressional authorization; such authorization would be a very bad idea because injecting over a trillion dollars into the economy would fuel inflation that would likely eat up any benefits; the giveaway would be regressive because inflation is felt more by the poor than by the wealthy. The new column follows on the heels of my previous Verdict column , accompanying essay on this blog and then a follow-up essay on the blog on Trump's renaming of Lake Ontario. In the Trump-is-stranger-than-fiction category, my first blog post on the Lake Ontario issue was titled When Will Trump Try to Change "New Mexico" to "New America?" The answer turned out to be six days later . It is no doubt entertaining to ponder the legal and policy questions posed by some of Trump's most outlandi...
Read more

What Fear (or not) of Crossing Borders Says About the United States Today

By -
Not long ago, traveling to the United States for business or academic purposes was a relatively simple matter for non-US citizens.  Perhaps more accurately, despite all of the complexities involved in obtaining the relevant documents, bookings, funding, and so on, there was at least one question that was so basic and obvious that it simply never came up: Will I be turned away at the border, or even detained for days, weeks, or months? Those days are long gone, ending on January 20, 2025.  And although most of the Trump regime's activities are aimed at poor people and people who are not White Christians, there have been notable examples of people who do not fit the profile, including a 35-year-old Canadian actress who was held in detention   for twelve days  after applying for a temporary visa to work in the US.  She had no criminal record. Similarly, a British couple in their sixties were both held in detention for 42 days, with the wife held even though only h...
Read more

Fears of Extinction Events, with and without Plausible Stories to Back Them Up

By -
Are human beings (and maybe all other living things) going to be killed off ... soon?  And if so, what will cause the catastrophe to come about?  My working title for this column was "Constitutional Crises, Debt Crises, and Skynet," but for reasons that will soon become clear, that framing ended up being too narrow.  We humans have spent centuries conjuring up various ways in which the end might arrive, proving ourselves to be quite imaginative in coming up with an impressive range of end-times scenarios. Anyone who has been even casually following the news recently will have seen the sudden wall-to-wall coverage of apocalyptic warnings by various insiders from the world of Artificial Intelligence, or AI.  (That label is still a misnomer, the accurate term being Large Language Models, but I remain unwilling to tilt at that particular windmill.)  Semantics aside, the story that has understandably caught everyone's attention comes from a software engineer who res...
Read more

In the Vote-by-Mail Case, Justice Alito is Back to Victim Blaming and Guerrilla War

By -
Yesterday the Supreme Court issued a one-paragraph order rejecting the Trump administration's application for a stay of the injunction against implementation of the Post Office's new rule that would have likely disenfranchised a great many voters, deterred many others from voting by mail, thrown the midterm elections into chaos, and--in light of asymmetrical use of mail voting by Republicans and Democrats since the pandemic--skewed the midterm election results in favor of Republicans. The decision was welcome news for big-D Democrats but more importantly for small-d democrats, i.e., people who care about preserving what's left of American constitutional democracy. We can breathe a sigh of relief, albeit a small one, given that Trump and the Republicans continue to make further anti-democratic maneuvers . They have already used mid-decade hyper-partisan gerrymandering to tilt the playing field and might send ICE and other federal law enforcement officers to the polls, seize...
Read more

Once More Into the Breach: The Incoherence of the Personal Injury Requirement for Standing

By -
The Supreme Court’s fabricated standing doctrines are not grounded in text, history, tradition, or common sense. Standing case law is so incoherent that finding supporters of it is virtually impossible, and that includes folks on the left, right, and in the middle of the political spectrum. The cause of much of the incoherence of standing doctrine is the requirement that plaintiffs suffer a personal injury (sometimes referred to as "injury-in-fact) separate from the legal violation they allege in their complaint. The Court grounds this requirement in the language in Article III that the federal “judicial power” only extends to “cases” or “controversies.” Pursuant to this key to unlock federal jurisdiction, it is not enough that a plaintiff alleges a violation of a federal statute or the Constitution. Instead, she must show damage to life, liberty, or property or on rare occasions, some other less tangible interest. For example, taxpayers do not have standing to challenge spending ...
Read more

On the 25th Anniversary of 9/11: Thoughts on Collective PTSD

By -
Today is the 25th anniversary of the terrorist attacks of 9/11. On the occasion of the tenth anniversary, I published on this blog two personal remembrances, one by Professor Buchanan on 9/9/2011 and another that I wrote on 9/11/2011. I revisited those recollections and added some more analysis in 2015 in response to a major terrorist attack in France. I won't reproduce any of those essays in full today, but I do want to draw on my 2011 and 2015 pieces to make a few observations about the circumstances in which Americans currently find ourselves as a nation. To draw the linkages I wish to draw, I do need to quote briefly from my 2011 and 2015 essays. I'll take them in reverse order. My 2015 essay warned that following through on the bellicose language from then-President Hollande of France risked repeating the mistakes the U.S. made following 9/11. I wrote: I am not advocating any particular policy path for France or the U.S. I am only saying that as we quite appropriately s...
Read more

Dolly Parton, Gloria Steinem, and the Human Sides of Greatness

By -
Dolly Parton died two weeks ago.  Gloria Steinem's passing came a week later.  Both were admirable, powerful, and unique women who made indelible marks on important civil rights issues.  And if my words seem to massively understate the importance of their lives and work, I can only plead guilty.  Words do sometimes fail us all. Rather than writing general remembrances or half-informed biographies of either of these women, I will use this column today to comment on some notable aspects of their profound social impacts.  And although I am more than a bit uncomfortable doing so, I should note up front that my discussion of Steinem's legacy will include a genuine disagreement with a person with whom I almost never disagreed. First, Dolly Parton.  As many have commented, she somehow lived through one of the most divisive times in American history, when no one is universally liked (or even tolerated), yet everyone loved her.  Genuinely.  She...
Read more