Constitutional law roundup

  • Case reporting, contact tracing, location monitoring: “Disease Surveillance and the Fourth Amendment” [Alan Z. Rozenshtein, Lawfare]
  • Unanimous Supreme Court spanks Ninth Circuit for its attempt to use immigration-law case to bring up (admittedly interesting) issue that neither party had presented and was not necessary to resolve the dispute [Ilya Shapiro and Michael Collins on U.S. v. Sineneng-Smith: “Neither Party Is Right, But the Ninth Circuit Is Wrong”]
  • Judge Thomas Hardiman of the Third Circuit on the history of judicial independence [Cato audio]
  • “While many scholars have studied Erie v. Tompkins, few have studied the facts of the case, and none have questioned Tompkins’s account. This article argues that Tompkins and his witnesses were not telling the truth.” [Brian L. Frye, SSRN 2018]
  • Can procedurally valid constitutional amendments themselves be unconstitutional? [Mike Rappaport and followup post, both 2018]
  • And now for something completely different: “Ayn Rand, Gary Lawson, and the Supreme Court” [Balkinization symposium last summer on Ken Kersch book Conservatives and the Constitution, more; unrelated but also about Lawson]


  • Re: SCOTUS and Ninth Circuit, I made it through law school and 25 years of practice without hearing of the “party presentation rule,” and have seen dozens of trial and appellate courts decide cases because the Court thinks of something the parties didn’t think of, to resolve the case. Dubious of the rationale on that one.

  • Unconstitutional Amendments? (Mike Rappaport’s posts)

    I suggest SCotUS adopt a doctrine of “Disambiguation”: A proposed Constitutional Amendment is invalid if it contains contradictory elements. Congress might ask for an advisory approval of the Supreme Court before sending a proposed amendment to the States, but I am not sure whether such an approval should bind a future SCotUS.

    Reasoning: a contradictory amendment would not reflect a thoughtful consensus of the people.

    A prime example is a progressive proposal to overturn “Citizens United”, the “Democracy for All Amendment”:

    Section 3
    > Nothing in this article shall be construed to
    > grant Congress or the States the power to abridge>
    > the freedom of the press.
    contradicts the first two sections, and under my “disambiguation” proposal should invalidate the entire amendment. If progressives want to curb First Amendment freedom of the press, let them be honest about it, rather than trying to confuse the public with pablum.

    Under a “disambiguation” regime, the “Democracy for All Amendment” could be saved either by
    (a) deleting Section 3, or
    (b) rewriting it to say what is actually intended, eg.
    “Section 3:
    “Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press for commercial news media.”

    But what if someone like Jeff Bezos buys a commercial news medium? Progressives can debate that at their leisure.

  • Re: Erie Railroad v. Tompkins.

    I bet there are interesting stories behind so many of the cases you read in law school. For instance, a law professor told us that Ernesto Miranda of “Miranda rights” was himself killed in a bar fight years later (and yes, his killer was read his “Miranda” rights).

    Kumho Tire is famous for evidentiary reasons, but the family who sued the company looks grossly unsympathetic when you find out the real story — they hadn’t changed the tires is 80 thousand miles or something like that.

    Anyway, it could be worth a book. Fascinating Facts About Famous Cases.