Dorf on Law

It is universally recognized by legal academics that originalism is not a single theory but rather a family of different approaches for judges to employ to interpret the United States Constitution. One clear example of this diversity of thought is that originalist judges and scholars who believe in "original meaning originalism" do not even agree on what is the appropriate target of their interpretive questions. Should judges be looking to what reasonable lay people thought was the original public meaning of the text when it was ratified or is it a search for what a hypothetical reasonable person would have thought the text meant? In cases where the text is legalistic, should originalists ask what legal experts in particular at the time thought the text meant, and if so, how legalistic does the text have to be to require that kind of search? There are strong disagreements among originalists on all these questions. There are many other examples of intramural disputes among ev...

[Note to readers: I am taking a day off from immersing myself in the ongoing insanity of US politics.  Instead, I decided to write about an issue that has somewhat less political valence than most topics.  As the first half of the column below demonstrates, however, "somewhat" is not even close to "none."]   As they were settling into their seats for our first class meeting after the Super Bowl last month, I asked my students at the University of Toronto what they thought about the halftime show.  This would normally be even more of a digression than I usually am willing to indulge in class, but in this case, the specific reason to ask the question had to do with what is now known around the world as The Kendrick-Drake Beef, a feud between rappers Kendrick Lamar and Drake. OK, but why would that be relevant to a bunch of Canadian law students enrolled in "US Tax Law for Canadian Lawyers"?  As almost everyone -- but not literally everyone -- reading this ...

The blizzard of recent news includes one disturbing development that might at first seem not to have anything to do with Donald Trump, even though it has everything to do with Donald Trump.  With Washington Post owner Jeff Bezos becoming ever more eager to steer his newspaper in a pro-Trump direction, the news (that is, non-editorial) side of The New York Times reported that Bezos on February 26th decreed that henceforth his chew toy's op-ed pages would become a one-sided advocacy organization, publishing only pieces that promote "personal liberties and free markets" while refusing to publish anything deemed to be in opposition to Bezos's view. Bezos fired the first shot in his pro-Trump war on journalism back in September of 2024, nixing a planned endorsement of Kamala Harris by The Post 's editorial board.  By a stroke of bad luck, that announcement shook the political world immediately before an op-ed that I had co-authored with Professors Dorf and Tribe wa...

In my essay earlier this week  (which was  republished in The Chronicle of Higher Education ) about the illegal $400 million funding cutoff to Columbia, I offered some speculation about why Columbia appears to be attempting to appease rather than sue the Trump administration. In describing Columbia’s approach as "appeasement," I intended to invoke the specter of Neville Chamberlain, but some readers might wonder why I think appeasement won't work in this instance. After all, Trump is vulnerable to manipulative flattery. Indeed, world leaders like Emmanuel Macron and Keir Starmer clearly understand the need to play to Trump's ego. Even leaders at odds with Trump play to his ego a bit. Thus, in his otherwise strongly worded response to Trump's tariffs, Justin Trudeau began by saying to "Donald" that he is "a smart guy," which, despite Trump's  ability to recognize a cartoon elephant  as such, is pretty clearly not something Trudeau (who actua...

What happens when a person's entire personal self image is based on something that they claim to hate?  I continue to be fascinated by the tension between conservative pundits' unearned professional prestige and their claims to being committed to "merit" as the sole basis upon which career success should be built.  Do they live in denial?  Do they double down?  Do they internalize self-hatred?  It seems that all of the above are possible. This is not, by the way, a problem only for the right-wing punditocracy but for the right in general.  I pointed out in a column on February 27 , for example, that JD Vance is an especially obvious example of this conflict: the chest-thumping "I did it all myself" ethos versus the simple fact that Vance is a classic beneficiary of diversity-aware admissions.  I cited a New York Times op-ed from last summer in which Lydia Polgreen noted that people like Vance get a huge leg up in the admissions processes of elite uni...

Over the last decade, President Trump has produced a more conservative U.S. Supreme Court by his appointments. The Court has abolished the right to abortion and affirmative action in university admissions. But I have always thought that three lesser known cases decided around 1970 have been central to the Court’s conservatism: Dandridge , Milliken , and Davis . Starting in the late 1960s, several celebrated academics, such as Harvard Law School’s Frank Michelman, authored scholarship on equal protection and due process that supported fundamental socio-economic rights for poor people. Ah the 1960s. It seems like centuries ago. Yet the U.S. Supreme Court, when it got around to considering these issues in the 1970s, generally disagreed with scholars like Michelman. The Court rejected Michelman’s views in Dandridge v. Williams (1970), which upheld a Maryland cap on welfare benefits, regardless of a family’s size. This decision lacked humanity. The Court also said that socio-economic issue...

On Friday of last week, the Trump administration announced that it was canceling $400 million in grants to and contracts with Columbia University in response to the university's allegedly having ignored "relentless violence, intimidation, and anti-Semitic harassment on" its campus. The announcement came from an administration Joint Task Force to Combat Anti-Semitism and bears the logo of four government agencies: The Justice Department; the Department of Health and Human Services; the Department of Education (DOE); and the General Services Administration. Friday's announcement states further that Columbia did not respond to a March 3 notice from the task force "that it would conduct a comprehensive review of the university’s federal contracts and grants in light of ongoing investigations under Title VI of the Civil Rights Act." Friday was March 7. Friday's announcement that four days was too long for Columbia to take before doing or saying something in ...

When did it become standard practice for Republicans not even to care about being called on their lies and hypocrisy?  The least worrisome current example of this is the fake outrage on the right after Canadian Prime Minister Justin Trudeau made a statement in which he spoke directly to "Donald," after which the same crowd that loved Trump's snide "Governor Trudeau" cracks shrieked in horror about Trudeau's purported failure to respect a foreign leader. The problem, of course, is that there are countless examples of much more damaging and dangerous lies that Trump and his entire side of the American political scene repeat endlessly, with a special emphasis on lies about the world's most discrete and insular minorities -- the weaker the minority, the more gleeful the Trumpists' attacks.  Sadly, these lies soon become Big Lies, at which point cowardly or calculating Democrats feel forced to make decisions about whether "this is the hill to die on...

Co-Authored by Eric Segall & Anthony Michel Kreis The Affordable Care Act is a thousand-page federal law regulating virtually all material aspects of the trillion-dollar health insurance/health care industry. Congress has the authority to regulate "commerce among the states." There can be no debate that the regulation of a one-trillion dollar industry that affects the commerce of every state is a regulation of "commerce among states." Nevertheless, shortly after the statute was passed, Federalist Society law professors along with the conservative media questioned whether the federal government had the authority to require people to buy health insurance.  The gist of their argument was that if Congress can require you to buy health insurance, it could also require you to buy broccoli, and that amounts to a federal government that is out of control. The problem with this argument, however, is that although the federal Constitution limits how the government may re...