Constitutional Comments

The views expressed in this blog are not necessarily those of TCP, its committees, or boards. 

Over the last year, the military has fought hard to shield from public view ongoing hunger strike management practices at Guantanamo Bay.... Read More

Yesterday, the Obama administration sent five long-held Guantanamo detainees to resettlement in Eastern Europe, two to Slovakia and three to Georgia. Four of the men are Yemeni, the first detainees from that country to leave Guantanamo (alive) since 2010. That makes 12 transfers in 2014. More should be on the horizon; according to reports the Pentagon has sent Congress several additional transfer notices.... Read More

In 1994, I proudly served as counsel to Don Edwards (D-CA), House Judiciary Civil and Constitutional Rights Subcommittee Chair. I vividly recall an entire weekend spent in the House majority leader’s office helping negotiate the 1994 omnibus crime bill. Representative Edwards passionately argued that the bill’s “tough on crime” approach would do more harm than good. In so many ways, he was right.... Read More

“Interpreted as it ought to be interpreted,” the abolitionist Frederick Douglass said in 1852, “the Constitution is a glorious liberty document.” In his July 5th speech in Rochester, New York, to the town’s Anti-Slavery Sewing Society, Douglass addressed the meaning of the Fourth of July for slaves.

“This Fourth July is yours, not mine,” Douglass told his white audience. “You may rejoice, I must mourn,” he said at Corinthian Hall, telling the assembled crowd—his “Fellow-citizens”—that “above your national, tumultuous joy, I hear the mournful wail of millions! whose chains, heavy and grievous yesterday, are, to-day, rendered more intolerable by the jubilee shouts that reach them.”... Read More

This past May, The Constitution Project’s Death Penalty Committee released its report “Irreversible Error,” which presents recommendations to correct the injustices in the administration of the capital punishment. While the news cycle is replete with examples of why reforms are imperative, a recent case out of Texas illustrates how errors in death penalty cases are particularly complex and seemingly intractable.... Read More

Since The Constitution Project’s inception, we have consistently called upon decision-makers to address the underlying conditions causing errors in our criminal justice system and to institute needed reforms. As TCP’s Death Penalty Committee’s recently released report on the death penalty, Irreversible Error, explains, “When the criminal justice system fails in its most critical function - convicting the guilty and exonerating the innocent - the government should step in to determine the causes of the failure and identify appropriate reforms.” And we have always been careful to acknowledge that remedying errors in individual cases is paramount – ours is a system of justice, comprised of many working parts. Rarely, is one single individual actor to blame. ... Read More

Media analysis has focused intently on the apparent unanimity that has characterized this year’s Supreme Court decisions. The Court issued 73 opinions this term, 48 of which were 9-0 decisions. Contrary to the cries of the media, however, this number is quite average; as American University Washington College of Law Professor and The Constitution Project’s Supreme Court Fellow Stephen Vladeck noted at TCP’s Semi-Annual Supreme Court Update on July 8, 2014, it is historically common for the Supreme Court to hand down unanimous rulings. Moreover, the media focus on unanimity in this Court is far too simplistic, for it ignores the bitter divisions that lie behind a façade of agreement. While the prominence of 9-0 decisions in this year’s Court seems to suggest a strong level of agreement, the nine judges were often fiercely divided in their reasoning. As Slate Legal Analyst Dahlia Lithwick explained in a June 26 article entitled "Supreme Court Breakfast Table," these decisions are perhaps more accurately described as “faux-nanimous,” and the appearance of unanimity should not overshadow the intense disagreements that pervade this Court, especially since lower courts are less likely to follow the Court’s decisions when they are accompanied by concurrences.... Read More

Daniel Patrick Moynihan famously said, “Everyone is entitled to his own opinion, but not to his own facts.” When it comes to federal law, however, some people with religious beliefs may indeed be entitled to their own facts. The U.S. Supreme Court’s interpretation of the Religious Freedom Restoration Act (RFRA) in Burwell v. Hobby Lobby Stores, Inc. certainly leaves this impression. By allowing the corporations and their owners to determine what counts as a substantial burden on their “exercise of religion,” the five Justices in the majority appear to have removed that question from judicial review. This has serious implications for future claims that RFRA excuses corporations from complying with neutral and generally applicable federal laws.... Read More

As everyone now knows, the U.S. Supreme Court decided for the first time on June 30, 2014, that for-profit corporations can claim a religious exemption from federal laws that conflict with the personal religious beliefs of people who own the corporation. The majority opinion, by Justice Alito (joined by Roberts, Scalia, Thomas, and Kennedy), says “Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But, it is the majority, not Congress, that writes fiction here.... Read More

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