Posts

Broccoli, Birthright Citzenship, and How to Confront Terrible Constitutional Arguments

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In the Spring of 2012, the most publicly discussed constitutional law question of the day was whether the Supreme Court would strike down the Affordable Care Act. The justices had scheduled three days of oral argument--an unprecedented event in modern times. There were numerous issues in the case but almost all the attention was focused on whether Congress had the power to require Americans to buy health insurance under its Article I authority to regulate “commerce among the states.” Virtually every liberal law professor to discuss the issue publicly thought the answer was easy: health care and health insurance were trillion-dollar industries affecting the commerce of every state and among the states. Moreover, there is not a syllable in the Constitution prohibiting Congress from using economic mandates to regulate commerce. Most pundits agreed. The wonderful Dahlia Lithwick told me that she would publicly eat my book Supreme Myths if the Court said the law was beyond Congress’ com...
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President Trump’s Birthright Citizenship Executive Order: Too Much Detail, Too Little Authority -- Guest Post by Scott Titshaw and Stephen Yale-Loehr

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There are three categories of birthright citizenship recognized around the world. Two of these, citizenship based on place of birth and citizenship inherited from parents at birth, have roots dating back hundreds of years . The third category, hybrid citizenship rules, evolved in the twentieth century.  The United States recognizes inherited citizenship for children born abroad to U.S. citizens , but it has always relied primarily on birthplace citizenship. For over a century, the Fourteenth Amendment of the U.S. Constitution has, with limited exceptions, granted citizenship to everyone born in the United States . Congress assumed this simple birthright citizenship rule when it enacted and later amended the Immigration and Nationality Act (INA). That assumption now permeates our immigration and citizenship statutes . This reliance on birthplace citizenship is now being questioned. On the first day of his second term, President Trump issued an Executive Order that would overturn...
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Examining the Urge Among Insecure Men (and Some Women) to Inflict Pain on the Weak and Defenseless

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In recent months, I have again become obsessed with (and depressed by) the phenomenon of self-styled manly men exulting in acts of cruelty.  As the Trump immigration crackdowns spiraled out of control, one of the most notable aspects of right-wing propagandists' response was their vulgar desire to ridicule and dehumanize their victims, all the while delighting in the spectacle of the ugly meanness of it all. Kristi Noem (aka "ICE Barbie") may be gone, but the image of Noem standing in front of caged prisoners in El Salvador -- prisoners who had received no due process, meaning that she (and we) could not possibly know whether they were guilty even of immigration violations (which are civil, not criminal , absent additional facts) -- is permanently etched into my mind as an example of how toxic masculinity can metastasize and be embraced even by non-men.  Worse still, rather than claiming that what was happening in that photo was somehow not terrible, Noem's social me...
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What's Wrong With The Trump Administration's Lawsuit Against Harvard

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Last week, the Department of Justice filed suit against Harvard University, alleging that Harvard is violating Title VI by failing adequately to respond to antisemitism and by itself intentionally discriminating against Jews and Israelis on the basis of race and national origin, respectively. The complaint  alleges, in addition to the claims under Title VI, that Harvard is in breach of the contracts for its federal grants because, as part of those contracts, Harvard provided assurances that it was in compliance with Title VI. The government seeks declaratory and injunctive relief, including a declaration that Harvard is not entitled to future payments on existing grants and must repay past grant awards for the period of alleged violation. The lawsuit is problematic in multiple respects. This story in the Harvard Crimson   (in which I'm quoted a number of times) does a nice job of explaining some of them. I'll focus attention on three of the issues here.  (1) As readers ma...
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No Such Thing As Virtue? (a retitled Dorf on Law Classic)

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Note to readers: Due to extenuating circumstances, I’m unable to post a new column today.  Because I plan to write again  about toxic masculinity  at least once in the near future, I am republishing here  a column  on that sadly timely subject  that I first published just short of three years ago.   More to come. - Neil H. Buchanan Complaints About "Virtue Signaling" Amount to Claims that There Is No Such Thing as Virtue By  Neil H. Buchanan   - March 30, 2023   One of the most obvious strategies that Donald Trump uses is to accuse other people of doing or being exactly what he is doing or being.  He tries to cheat people, so he accuses everyone of trying to cheat him.  He will stop at nothing, so he claims that his opponents will stop at nothing.  He is a racist, so he calls Democrats -- even (especially) non-White Democrats -- racists.  He peddles hatred of all kinds, so he says that everyone else hates him and...
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Afroman Is The Free Speech Hero We Need

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After Timothée Chalamet's beef with opera and ballet, the best relatively harmless recent story to divert us from more serious news has to be the triumph of Joseph Foreman, better known as Afroman, in his defense against a civil lawsuit. Readers unfamiliar with the tale could do worse than to watch Jordan Klepper's Daily Show segment on the case. For those of you who don't have the time to watch the video just linked, I'll start with a synopsis. Afroman is best known for his 2000 hit song and music video  Because I Got High   (featuring Jay and Silent Bob of  Clerks  fame). In 2022, heavily armed officers in combat fatigues from the Sherriff's office of Adams County, Ohio raided and searched Afroman's home. They didn't find evidence of anything but they caused some damage and were caught on video surveillance in a number of unprofessional positions, including one officer who looked longingly at a lemon pound cake in Afroman's kitchen. Afroman, understan...
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Does Bruen Insanity Violate the Tenth Amendment?

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Since the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen in 2022, I have written numerous blog posts and essays criticizing the opinion’s “insanity.” In Bruen , the Supreme Court invalidated a 1911 New York gun law on history and tradition grounds. More important than the specific result in the case, however, was the Court’s announcement of a brand new test to establish the validity of modern gun laws.  In an opinion written by Justice Clarence Thomas, the Court decided that contemporary gun legislation can only be upheld by judges if the government points to similar laws passed either in 1791 or 1868. The Court rejected the traditional and historically justified balancing approach the Court uses to decide most constitutional law cases, whereby the justices weigh the importance of the asserted right against the government’s justifications for the law. I have described this new framework as follows: The Court’s decision in Bruen is not steep...
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Oh Good Gravy! College Presidents Are Now Directly Firing Professors

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I drafted this column's headline more than six months ago, but I never actually wrote the column to go with it.  Although the content of today's column covers more than the specific problem noted, I still like the headline enough to stick with it.  A more boring, accurate headline might be: "Republicans Continue to Prove That They Never Cared About Intellectual Diversity," or something like that. In any event, the news story that inspired today's headline was " Texas Professor Fired After Accusations of Teaching 'Gender Ideology,' " with the subheadline "Two administrators also lost their posts at Texas A&M, an example of how Republican policies meant to curb liberal ideas are reaching into university classrooms," which  The New York Times  published on September 10, 2025.  That article reported that Texas A&M University swiftly fired a lecturer and removed two administrators after a student filmed herself arguing with the ...
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Meanness, Cruelty, and Unmanly Men

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California Governor Gavin Newsom has dyslexia.  Most people might imagine that that would count as a very small news item, if indeed it counts as news at all.  Donald Trump, however, always leaps on any opportunity to demean people, especially when it involves something that a 9-year-old would use to bully other kids.  Trump thus said this , while speaking in the Oval Office the other day: Honestly, I’m all for people with learning disabilities, but not for my president.  I don’t want... I think a president should not have learning disabilities, OK?  I know it’s highly controversial to say such a horrible thing. The president of the United States, Gavin Newscum, admitted that he has learning disabilities, dyslexia... ah... everything about him is dumb. Leaving aside the fact that Trump's fake name for Newsom is simply pathetic (like almost all of Trump's insults, "Li'l Marco" being the only exception ), the obvious story here is that Trump once again showed...
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