The Obama citizenship “debate” has surprisingly brought former president Chester A. Arthur (1829-1886) back into the pages of American newspapers, which is no small feat.  Unlike President Obama, who is clearly eligible to hold the nation’s highest office, Arthur, the twenty-first president (1881-84), may well have been an “unconstitutional” president.
Although Arthur is frequently seen as Millard [...]

The tragic case of  Kara Neumann highlights one of the problems with robust protection for the free exercise of religion. Kara died of untreated diabetes because her parents chose to pray rather than take her to the doctor. Both have been convicted of second degree reckless homicide. How does their prosecution square with robust protection [...]

Alex Reinert (Cardozo) has posted on SSRN his forthcoming article in the Stanford Law Review: Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model.
Here’s the abstract:
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution [...]

Ed Fallone’s post last week on finding negative space in the Constitution got me to thinking about the uses – and dangers – of metaphors in legal thinking. What does it mean for there to be “negative space” in the Constitution. We could think of it, as Ed does, like the open areas in a [...]

The campaign to prove that Barack Obama is not eligible to serve as president of the United States, carried out by certain opponents who have become known as “Birthers,” has succeeded in establishing (1) that Obama is in fact eligible to be president and (2) that Article II, Section 1 of the United States Constitution, [...]

Some people dislike the game of soccer.  They observe the players running around on the field and it all seems like random chaos.  Soccer aficionados, however, are not focusing on the players.  They are watching the spaces in between the players.  These empty spaces ebb and flow, like waves in the ocean, creating momentary opportunities [...]

On September 17, I participated in the Constitution Day program at the Law School.  All of the presenters were asked to discuss one part of the United States Constitution that is often overlooked.  My choice was the “republican form of government” clause, Article IV Section 4, which reads as follows: “The United States shall guarantee [...]

Constitution Day

Posted by: Chad M. Oldfather | September 11, 2009 | 1 Comment

Some portions of the Constitution are the subject of frequent discussion. Concepts like “due process,” “equal protection,” “freedom of speech,” and the like are headline-grabbers. Phrases like “Commerce … among the several States” do not resonate quite as much with the general public, but are certainly familiar to lawyers.
A glance at the Constitution [...]

Catholics on the Court

Posted by: Edward A. Fallone | August 31, 2009 | 6 Comments

Three recent events have added a new wrinkle to a debate that has been taking place among legal scholars: what, if anything, does it mean to be both a Catholic and a Supreme Court Justice?
First, the confirmation of Justice Sonia Sotomayor has added a sixth practicing Catholic to the Supreme Court.  As a proportion of the [...]

As Professor Esenberg has just posted about, earlier this week, the Wisconsin Supreme Court handed down a very important decision, Coulee Catholic Schools v. LIRC (2009 WI 88). Although some describe the holding as “a dramatic change” in Wisconsin employment law, I think the case is more important for its constitutional discussion. On the actual question [...]

Wednesday, in a case called Coulee Catholic Schools v. Labor and Industry Review Commission, the Wisconsin Supreme Court held that the “ministerial exception” to state laws prohibiting employment discrimination applied to a teacher in a Catholic grade school. As a result, the teacher’s claim against the school for age discrimination must be dismissed.
There a few [...]

As the Senate hearings addressing the nomination of Judge Sonia Sotomayor to the United States Supreme Court proceed through the thickets of legal concerns, one issue that appears to be rather arcane to the average American may be among the most significant. Indeed, it reflects a philosophical dispute that underlies many of the questions at [...]

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