The Boundaries of Partisan Gerrymandering

[Excerpt] “In my most recent column, I expressed concern about the effectiveness of the constitutional decision rules that currently govern gerrymandering – the redrawing of electoral districts in a manner that favors the incumbent majority at the expense of those out of power. Briefly, the Constitution has not been interpreted to prohibit redistricting with an eye toward advancing the interests of the political party in power. But it has been interpreted to bar legislators from redistricting on racial grounds – at least in most circumstances. The problem is that voters from certain racial groups tend to vote overwhelmingly for a single party. Thus, one way to gain partisan advantage in racially diverse states is to dilute the voting power of racial groups who tend to vote for the other party. This is accomplished by either “packing” voters from these groups into districts the other party is going to win anyway, or “cracking” them into a number of different legislative districts so that they fall somewhat short of a majority in each one. As matters now stand, redistricting that results in such packing and cracking is constitutional if a court finds that its “predominant purpose” was merely to secure partisan advantage. But it is unconstitutional if a court finds that racial motivations predominated.

Separation of powers, partisanship and impeachment: How can we overcome the partisan propaganda?

[excerpt] Our Constitutional system divides power horizontally, among the three branches of the federal government, and vertically, between the federal government and the states. We refer to the former division as our separation of powers and the latter as our federalism

Textualism and Originalism in Constitutional Interpretation

[Excerpt] In a 2016 lecture at the Case Western Reserve University School of Law, Judge Neil Gorsuch warmly praised former Supreme Court Justice Antonin Scalia\u27s approach to constitutional interpretation. Because President Trump has nominated him to serve on the Supreme Court, it is important to understand the approach Judge Gorsuch favors

Sports betting, federalism and the Constitution

[Excerpt] Justice Sandra Day O\u27Connor has described federalism - how the Constitution divides powers between the federal government and the states - as perhaps our oldest question of constitutional law. This past week, the United States Supreme Court returned to this oldest of constitutional questions to strike down a federal law that had prohibited stats from authorizing betting on competitive sporting events

Difficult Questions for the Senate Minority

This column is the first in a biweekly Constitutional Connections series that will examine the constitutional implications of various topics in the news. The author, John Greabe, teaches constitutional law and related subject at the University of New Hampshire School of Law. He also serves on the board of trustees of the New Hampshire Institute for Civics Education

Domicile, Student Voters and the Constitution

[Excerpt] The wisdom of using the Electoral College to choose our president is a hot topic. For the second time in 16 years (and the fifth time in our history), the winner of the national popular vote lost the presidential election in the Electoral College. To many, this undemocratic outcome seems wrong

The Trump Presidency and the Press

[Excerpt] It is not difficult to understand why presidents frequently voice frustration with the press. Imagine being subjected to critical analysis 24/7 by reporters, bloggers and pundits who often lack complete and accurate information but face competitive pressure to publish quickly

Constitutional Barriers to Congressional Reform

Americans celebrate our Constitution as a beacon that can guide us through difficult situations. And justly so. But at times, the Constitution also has stood as a barrier to necessary reform

Constitutional Remedies & Public Interest Balancing

The conventional account of our remedial tradition recognizes that courts may engage in discretionary public interest balancing to withhold the specific remedies typically administered in equity. But it generally does not acknowledge that courts possess the same power with respect to the substitutionary remedies usually provided at law. The conventional account has things backwards when it comes to constitutional remedies. The modern Supreme Court frequently requires the withholding of substitutionary constitutional relief under doctrines developed to protect the perceived public interest. Yet it has treated specific relief to remedy ongoing or imminent invasions of rights as routine, at least when the underlying claim is justiciable and subject to neither a judicial federalism doctrine nor statutory preclusion. This paper details the reversal of the conventional account of remedial power and advances a two-part hypothesis that the Court’s behavior traces an appropriate con- situational boundary. The hypothesis is as follows. First, substitutionary constitutional remedies, while integral to the proper functioning of our constitutional order, are individually contingent and susceptible of legislative or judicial expansion, contraction, or replacement as the perceived public interest dictates. But second, specific relief must be available for justiciable and meritorious claims of constitutional right to which neither a judicial federalism nor a statutory diversion doctrine applies, and an effective constitutional remedy ultimately must be available even in these exceptional cases

Do Foreign Nationals Really Have Constitutional Rights?

[Excerpt] Last month, President Trump issued an executive order that has become known as the travel ban. Among other things, the ban sought to temporarily exclude from the United States foreign nationals from seven predominantly Muslim countries. Almost immediately, a number of plaintiffs sued and succeeded in obtaining stays preventing the ban from going into effect until the cases can be tried. Courts granted these stays because they found that the ban was likely to violate, among other things, anti-discrimination principles embedded within the First and Fifth Amendments to the United States Constitution