Below is a round-up of the latest from the Battle for the Constitution: a special project on the constitutional debates in American life, in partnership with The Atlantic.
Why Tribes Should Have the Power to Enforce Strict Coronavirus Policies
By Matthew L.M. Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center, Michigan State University College of Law
Matthew L.M. Fletcher argues that Indian tribes should have the ability to regulate actions of nonmembers on their land in terms of COVID-19 orders because not being able to do so could threaten their survival.
The Court Got the Trump Subpoena Cases Exactly Backwards
By Robert Black, Writer and Legal Scholar
Robert Black looks at the Supreme Court’s decisions in the Trump subpoena cases—Trump v. Vance and Trump v. Mazars—and says that the Court got it wrong by giving state grand juries more power to investigate the president than Congress has—and that we should want Congress to wield extensive power in examining potential misdeeds by the commander-in-chief.
The 14th Amendment Was Meant to Be a Protection Against State Violence
By David H. Gans, Director of the Human Rights, Civil Rights, & Citizenship Program, Constitutional Accountability Center
David H. Gans writes that the Supreme Court, by continually giving police more power and protection while restricting the ability of those abused to sue, has undone a core promise of the 14th Amendment—that all people, no matter their race, cannot be subject to arbitrary violence by the state.
The United States Needs a Third Reconstruction
By Wilfred Codrington III, Assistant Professor of Law, Brooklyn Law School and Fellow, Brennan Center for Justice
Wilfred Codrington III examines the first two Reconstructions and calls for a Third Reconstruction that substantively inquires into past and present racial discrimination while also redeeming the promise of the first two Reconstructions.
SCOTUS Doesn’t Trust Congress—And That’s a Problem for American Government
By Jonathan S. Gould, Assistant Professor of Law, UC Berkeley School of Law and Olatunde C. A. Johnson, Jerome B. Sherman Professor of Law, Columbia Law School
Jonathan S. Gould and Olatunde C. A. Johnson say that the Roberts Court has a worrying trend of distrusting Congress that misunderstands our constitutional system and could imperil critical legislation needed to fight the US’ most pressing issues.
Justice Gorsuch’s Legal Philosophy Has a Precedent Problem
By Josh Blackman, Associate Professor of Law, South Texas College of Law
Josh Blackman contends that Justice Neil Gorsuch’s textualist approach in the recent cases of Bostock v. Clayton County (applying Title VII’s ban on sex discrimination in employment to sexual orientation and gender identity) and McGirt v. Oklahoma (recognizing nearly half of Oklahoma as “Indian Country,” at least in terms of criminal justice) relied on precedents that did not adhere to textualism or established new rules—and should have at least acknowledged this disconnect with pure textualism.
