This Response addresses Professors Joseph Fishkin and David Pozen’s Asymmetric Constitutional Hardball. Fishkin and Pozen argue that Republicans have engaged in “asymmetric constitutional hardball” since 1993. This Response accepts the authors’ contention that Republicans have increasingly engaged in constitutional hardball but casts doubt on the purported asymmetry.
Part I questions whether one of the authors’ primary examples...
Free speech cannot be progressive. At least it cannot be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern American free speech right. That is not to say that the right to free speech does not deserve protection. It might serve as an important side constraint on the pursuit of progressive goals and might even protect progressives...
The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review...
Over the past four decades, the political economy of the First Amendment has undergone a significant shift. If in the early twentieth century winners in First Amendment cases tended to be representatives of the marginalized and the disenfranchised, these days, they are much more likely to be corporations and other powerful actors. This Essay excavates the causes of that change and suggests how it might be remedied. It argues that the shift in...
Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation—generating widespread accusations that the Court has created a “new Lochner.” This introduction to the Columbia Law Review’s...
Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left. The practice of constitutional hardball, this Essay argues, has followed a similar—and causally related—trajectory. Since at least the mid-1990s, Republican officeholders have been more likely...
Shortly after John Wilkes Booth assassinated Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theatre. Johnson’s decision implicated a fundamental constitutional question that was heatedly debated throughout the Civil War: When, if ever, may the federal...
Section 3(c) of the Voting Rights Act of 1965 provides a seldom-used path to federal preclearance of changes to state and local voting practices. It allows a federal judge, upon finding that a jurisdiction violated the Fourteenth or Fifteenth Amendment, to require that jurisdiction to submit for preapproval any “voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting.” Originally intended...
Introduction In 1961, James Meredith applied for admission to the University of Mississippi. Although he was eminently qualified, he was rejected. The University had never admitted a black student, and Meredith was black. Represented by Constance Baker Motley and the NAACP Legal Defense and Educational Fund (LDF), Meredith brought suit in the United States District […]
This Note examines the constitutionality of age-based handgun-purchase restrictions in the wake of the Supreme Court’s decision in District of Columbia v. Heller (Heller I). Part I explores Second Amendment jurisprudence since the Founding and provides an overview of current federal and state firearms restrictions. It also reviews current challenges in the courts to federal prohibitions on firearms purchases and possession by classes...