The Rehnquist Revolution

[Excerpt] When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a constraint on federal power

The Templeton Debates: God and Government

Debate with Erwin Chemerinsky

Challenging Direct Democracy

I want to argue today that direct democracy is undesirable and unconstitutional. I want to argue to you that the Supreme Court should find that the Michigan Civil Rights Initiative is unconstitutional, and strike it down. So I want to make two points. First, I am going to argue that direct democracy is undesirable. This is a normative argument; it’s not an argument about constitutional doctrine. Second, I want to argue that direct democracy is unconstitutional, and make a series of different arguments as to why

The Roberts Court and Freedom of Speech

This is an edited version of a speech delivered on December 16, 2010 in Washington, D.C., as part of the Federal Communications Bar Association\u27s Distinguished Speaker Series. This speech was given by Dean Erwin Chemerinsky in December 2010 as part of the FCBA\u27s Distinguished Speaker Series. In the speech, Dean Chemerinsky offers his perspectives on and analysis of the Supreme Court\u27s position on freedom of speech in recent years. He highlights important recent freedom of speech decisions made by the Roberts Court, and gives some projections as to where the court is heading in the years to come, given its current makeup. Dean Chemerinsky observes the frequency with which Justice Kennedy-the Justice whose vote determines the majority in numerous decisions-sides with the conservatively minded Justices. Given that frequency, Dean Chemerinsky expects the Court to continue to take a relatively conservative stance on freedom of speech in the near future

02. UCI Rehires Law Dean

Erwin Chemerinsky\u27s hiring, firing, and rehiring made national headlines

The Poverty of Academic Rhetoric

Erwin Chemerinsky puts forth the unlikely proposition that now is the time to develop a revitalized argument for a constitutional right to subsistence- level entitlements. While not detailing the actual content of such an argument, he outlines what he believes to be the necessary steps of the argument, leaving for another day the task of actually defining and defending those steps. In Chemerinsky\u27s view, the argument would entail recognition that (i) [p]overty and the plight of the poor are serious social problems; (ii) the government has a responsibility to provide individuals with the essentials that are necessary for survival; (iii) the government can successfully provide people with what is needed for subsistence; (iv) voluntary government programs will be inherently inadequate; (v) the Constitution creates affirmative government duties; (vi) food, shelter, and medical care are among those duties which government is obligated to provide; and (vii) it is the judicial role to declare and enforce such rights. Chemerinsky\u27s paper is difficult for me to respond to because I endorse his goal of alleviating the desperate situation of poor people in the United States. Nevertheless, I am troubled by the manner in which he purports to go about the task he has set. How one describes the poor and their situation, and constructs solutions to that situation, inevitably privileges certain conceptions of the world over others, and I am not sure that Chemerinsky\u27s conceptions are ones that I want to live with. Chemerinsky argues that, despite the antipathy of the current Supreme Court to individual rights claims, legal scholars ought to be elaborating the empirical and theoretical premises for a constitutional argument for minimum entitlements in millennial anticipation of a more compassionate (read liberal) Supreme Court.8 This bothers me in several respects. First, it puts legal scholarship at center stage in the battle to improve the social situation of poor people, which may not be to their advantage. Second, Chemerinsky\u27s argument threatens to eclipse the very people he proposes to help, abstracting them and their humanity out of existence. Finally, Chemerinsky\u27s argument betrays a deep disconnection between legal academics and the lives of other Americans

Keynote Address

Featuring Erwin Chemerinsky, Dean, UC Berkeley School of La

The Uneasy Case for the Affordable Care Act

The constitutionality of the Affordable Care Act is sometimes said to be an easy question, with the Act\u27s opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won\u27t be easy, and the arguments against it sound in law rather than politics. Written to accompany and respond to Erwin Chemerinsky\u27s essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations -- walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones. Because the mandate\u27s opponents can find some support in existing doctrines, a decision striking down the mandate needn\u27t be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress\u27s powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right -- reasons having more to do with constitutional theory than political preference