Dorf on Law

Twenty-eight years ago, I wrote an article summarizing a pair of essays written in 1900 by Arthur Machen, Jr., in the Harvard Law Review. Machen was the first person to use the phrase the "living Constitution" in a legal essay. He framed the issue as follows (please forgive the long quote): As the period of the formation of the American Union becomes more and more remote, it becomes constantly more important to inquire to what extent the decision of a question of federal constitutional law may properly be affected by the many changes in language, customs, morals, and in individual and national environment which have taken place since the adoption of our fundamental law. . . . Political opinions have changed: the doctrine of national unity has almost completely demolished its once mighty antagonist--the theory of state sovereignty. Commerce, instead of being conducted by stagecoaches and sail-boats, is carried on by railways, telegraphs, and ocean liners. Ideas of morality ha...

Maya Angelou's famous warning is in serious danger of becoming stale: "When someone shows you who they are, believe them the first time."  I risk adding to its overuse here because it so perfectly fits the big political story coming out of the State of Maine, where a man won the Democratic Party's nomination for US Senate in last month's statewide primary.  His name is Graham Platner, and we should have believed him the first time. Platner's cakewalk in the primary (taking 71.9 percent of the vote) set him up to face the incumbent Republican Susan Collins, who is infamously "concerned" at all times about her party's extremism -- but never quite so concerned that she does anything about it.  Collins is an embarrassment, and the Democrats' extremely slim hopes of retaking control of the US Senate cannot possibly go anywhere without taking that seat.  Maine is a blue state, and it should not be difficult for Democrats there to win a seat against...

Last week, the Supreme Court issued its first major Fourth Amendment case in six years: Chatrie v. United States . Chatrie is a massive victory for digital privacy. It holds that geofence searches, which use cellphone data to track all cellphone users in a certain area at a certain time, are Fourth Amendment searches requiring probable cause and a warrant. It sharply limits the “third-party doctrine,” which held that data disclosed to a third party service provider lost all Fourth Amendment protection and could be obtained by the government without a warrant or cause. More than that, Chatrie definitively establishes that Fourth Amendment law in the digital era will be appropriate to that era, and not anchored to traditional property concepts or distant analogies to non-digital contexts. The future of Fourth Amendment law has never been brighter. The Chatrie case involved the investigation of a bank robbery. On May 20, 2019, a man wearing a fisherman’s hat and a traffic vest robbed a...

With the most recent Supreme Court term now behind us, we here at Dorf on Law will soon be moving on from the case-specific analyses penned by our constitutional law scholars -- including, just this past week, the rulings on independent federal agencies  (plus a guest scholar's analysis of the same case),  anti-transgender laws, and  birthright citizenship -- to writing summary analyses of the term, a term that was defined by the six Republican-appointed justices' increasingly blatant (and depressingly predictable) choice to be part of the Trumpian assault on democracy and the rule of law. I will write one such summary soon, but because today is the last weekday before the Fourth of July holiday, I am offering here some thoughts about the distressing spectacle that is my country at age 250.  In 2005, a bit more than a year before Dorf on Law was founded, I published a short guest piece about the Declaration of Independence on someone else's blog.  (Tha...

If you had asked me a year and a half ago what the prospects were for President Trump's executive order limiting birthright citizenship if and when the issue made it to the Supreme Court, I would have said the Court would reject the order either 9-0 or 8-1, with 7-2 being my upper limit on dissents. The two dissenters I would have predicted, obviously, would have been Justices Thomas and Alito. Professor Buchanan, who is, depending on one's view, either more cynical or less naive than I am about the Supreme Court, thought that the Court would likely uphold the order--even though, as he made very very clear in his February 2025 blog post , he believed the argument for doing so extraordinarily weak. But he noted how, with support from motivated legal scholars, off-the-wall ideas can become on the wall (in Professor Jack Balkin's memorable phrasing). I never quite got all the way to Professor Buchanan's view, but my prediction grew closer to his a year ago, after the Supre...

Justice Kavanaugh's opinion for the Court in  West Virginia v. B.P.J.   is a culture warriors' mixed bag. In addition to making clear how important he thinks girls' and women's participation in competitive sports is, he includes some trans-inclusive language at the end of his opinion. At the same time, however, he repeatedly uses the term "biological male" when referring to transgender girls and women, and not just when it's relevant to parsing the challenged policies. In so doing, the lead opinion sides with the ongoing national anti-trans panic. That said, I prefer the tone of Kavanaugh's majority to the gratuitously and vehemently anti-trans concurrence of Justice Thomas. I suppose the best thing that can be said about that concurrence is that Justice Alito didn't join it. What about the substance? Let's start with the Title IX claim, which was at issue in  B.P.J.  but not the companion case of  Little v. Hecox  (which, as the dissent conten...

The Supreme Court's long expected decision in  Trump v. Slaughter  is ostrich-like in the majority Justices' notable refusal to examine how its decision might empower a president with distinctly autocratic tendencies . (The ostrich comparison is not originally mine; Justice Jackson called the majority in  Students for Fair Admissions v. Harvard   "ostrich-like" in its "hope that preventing consideration of race will end racism.")  As most commentators expected, the Court in  Slaughter overruled Humphrey's Executor v. United States   and held unconstitutional for-cause removal protection for FTC Commissioners (and, by extension, most other independent agencies' leadership). Chief Justice Roberts' opinion relies heavily on founding-era materials to conclude that the framers created a "unitary and accountable executive." I happen to believe that the Court places too much weight on founding-era history and also that its reading of that his...