Constitutional law roundup

  • “Asking a Fourth Amendment nerd why the police don’t just get a warrant is like asking an auto mechanic why drivers don’t just buy a new car.” [Orin Kerr on Twitter] “Judge Thapar Can Handle the Truth about the Fourth Amendment and Due Process” [Ilya Shapiro on police-search case of Morgan v. Fairfield County as well as public university due process case of Doe v. Michigan]
  • “Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power” [Gene Healy, Cato white paper and video feature] Michael Stokes Paulsen series at Law and Liberty on impeachment and originalism [introduction, developing a principled constitutional basis for use of the power, digression on Aaron Burr, special considerations of impeaching judges and presidents; on original meaning of “high crimes and misdemeanors” in context of English history and Framers’ debates]
  • “Nonviolent Felons Shouldn’t Lose Their Second Amendment Rights” [Ilya Shapiro and Matthew Larosiere on Cato amicus in Seventh Circuit case of Hatfield v. Sessions]
  • Court strikes down federal law banning female genital mutilation as overstepping constitutional authority [Eugene Volokh, Ilya Somin]
  • Launched decades ago, advocates still hoping to reanimate: “The problem with zombie constitutional amendments” [Keith Whittington, Harvard Law Review on the Equal Rights Amendment (ERA) and others; ABA Journal; related,
    Gerard Magliocca on ratification deadlines]
  • Unenumerated rights of constitutional stature should include familial rights of children as well as parents [Ilya Shapiro and Reilly Stephens on Cato amicus brief in Wisconsin Supreme Court case of Michels v. Lyons]


  • Re: Female Genital Mutilation:

    Babies die and are others are injured in Baptisms. Should we ban them next?


    I personally think that Female Genital procedures for religious reasons are odd, but as a Jewish person who is glad he’s circumcised, I will remain silent on this issue. I don’t want to see the “intactivists” get empowered.

    • @ Robert–

      You play into the hands of “intactivists” by blurring the distinction between male circumcision and female genital mutilation (FGM). As usually practiced, FGM is more like having your male organ cut off (and relying on artificial methods if necessary to impregnate your wife).

      I would not object to a mild form of FGM, a symbolic nick no more debilitating than male circumcision. But the current drastic form is more like the religious rite of human sacrifice, a violation of civil rights subject to Federal authority by the “equal protection” of the Fourteenth Amendment (but *not* by the interstate commerce clause).

      • thought the 14th had a limitation to males in there somewhere…

        understand, that is an attempt at bad humor, not a serious comment.

  • Re: Zombie amendment.
    The 18th amendment, with the 7 year clause written into the body of the amendment shows how to make a debate free time expiration.
    So congress knew what to do if it wanted to have a time limit to the adoption of the equal rights amendment. This clause was used in amendments 20, 21, and 22, but not 19, 23, 24,25, or 26.

    So clearly a deliberative process existed whereby some amendments were deemed to die after 7 years, and others could go on to be eternal zombies. Indeed there are several amendments still kicking around, that could still be ratified after the manner of number 27.

  • More precisely, non-violent felons should not automatically *and* permanently lose their Second Amendment rights. I see nothing wrong with a temporary loss of Second Amendment rights as a normal part of punishment that includes temporary loss of other rights.

    Similarly, long-term bans for mental-health reasons should eventually be subject to reexamination, especially if the encounter with mental-health authorities was voluntarily initiated by the patient, rather than precipitated by anti-social behavior.

    To protect Constitutional Rights (notably the Fourth Amendment against unreasonable searches and seizures by criminals), States should have some broader authority to enroll individuals into their “unorganized militia” in spite of rigid and illogical Federal restrictions.