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If "It Takes a Theory to Beat a Theory," Originalism Loses

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Justice Antonin Scalia, who died 10 years ago this month, was fond of saying over and over again that “it takes a theory to beat a theory.” He often made this claim when people criticized originalism. Scalia’s point was that originalism skeptics did not have an alternative theory that was more persuasive. Recently, Professor Josh Blackman repeated this trope, suggesting that neither the political left nor the American Constitution Society (ACS) have come up with an interpretive theory more persuasive than originalism. Professor Blackman argues that all the left and ACS can show for their efforts fighting originalism is anti-Trumpism and anti-conservatism but no positive theory of constitutional interpretation . This argument was ridiculous when Scalia repeatedly yelled it at his many audiences prior to his death, and it is even more ridiculous today when Professor Blackman tries to give it new life. The reality is that originalism is not a theory of constitutional interpretation ...
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Trump's Almost Completely Bonkers Reaction to the Tariff Ruling

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In less than the 72 hours that have elapsed since the Supreme Court by a 6-3 vote rejected the Trump administration's assertion of authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA) in Learning Resources, Inc. v. Trump , the tariffs conversation has already taken numerous turns. First came the characteristically unhinged statements by the president himself . Astoundingly, many of the most insane claims appeared to be part of a text from which Trump was reading. He accused the Republican appointees who voted against him (Chief Justice Roberts and Justices Gorsuch and Barrett) of having been "swayed by foreign interests" and acting as "fools and lap dogs for the RINOs." It's by no means the most important point, but it was amusing to hear a president who has discarded decades of Republican orthodoxy on trade (and much else) accusing others of being Republicans in name only. It was further evidence (though none was needed)...
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My Opening Salvo for the New Knight Institute Initiative on Reconstructing Free Expression After Trump: Supporting and Implementing Truth as a Free Speech Value

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Over the course of the last 13 months, I have frequently found myself relatively clear-eyed when diagnosing the dire condition of our constitutional democracy but with little to offer by way of treatment. Because I believe that no net good comes from unwarranted optimism or obliviousness, I intend to continue to describe the reality as I see it, but, insofar as it's possible, I'd like to try to contribute to ameliorating our condition or even building something better. Towards that end, I am happy to serve as a member of the steering committee of a new initiative at the Knight First Amendment Institute at Columbia University. The  Reconstructing Free Expression  project aims to find ways to protect freedom of expression notwithstanding authoritarianism in the executive branch of the federal government, recognizing that, at least in the medium term, neither Congress nor the courts will likely provide much assistance. The goal is to produce concrete recommendations that can be ...
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A Classic in Honor of the Canada-US Hockey Rivalry

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Note to Dorf on Law readers: Having lived in Canada for two years -- before moving to Ireland, only to return to the US, as I recounted in my column earlier this week -- I found myself conflicted while watching the gold medal game this afternoon between the Canadian and US women's hockey teams. I have always been one to cheer for the underdog (my longstanding Michigan fandom notwithstanding), and I am even more likely to be a contrarian American now that the very word patriotism  is so often associated with the worst that this country has to offer.  On the other hand, it is hardly the case that the women on the US team are all in on the gay bashing and all-purpose bigotry that currently holds sway in their country. In any case, the US won an exciting game in overtime, extending their domination of their northern neighbors (and, if history is any guide , some of their future wives) in one of the most intense rivalries in all of sport. There is nothing in the  Dorf on L...
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What I Plan to Tell the US Civil Rights Commission About Antisemitism on Campus and the Government Response Thus Far

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Tomorrow I will testify at the U.S. Civil Rights Commission's briefing on  Antisemitism on America's College and University Campuses: Current Conditions and the Federal Response . I am one of six panelists during the first session, which runs from 10:15 am - 11:25 am. We have been instructed to speak for no more than 7 minutes in our opening statements, followed by questions from the commissioners. All panels will be live-streamed via the Commission's YouTube channel . Panelists were asked to submit written testimony, which I have done and which I reproduce (minus the footnotes) below. Readers who are interested in a version with footnotes can find my full written statement, as well those of the other panelists, by clicking on "panelist materials" . Having done so myself, I was struck by the general agreement among the four law professors on the panel (Ben Eidelson of Harvard, Genevieve Lakier of the University of Chicago, Eugene Volokh of the Hoover Institution, ...
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Emerald Farewell

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Frequent readers of  Dorf on Law  have been treated to (or, depending on one's tastes, afflicted by) something of an international travelogue over the last few years, as I have reported from various outposts in what has become a rather nomadic existence.  I moved to Toronto and then Dublin after taking early retirement from the University of Florida.  And even before then, there was a too-brief stay in Amsterdam that I originally thought would lead to permanent residence in The Netherlands. All of this was motivated by my sense that the US was going off the rails, which was especially easy for me to notice because, as I put it in a column last summer, Florida had become the "'proof of concept' for what Republicans are now trying to do nationwide."  I was specifically referring there to higher education, but the US state with the maniacally anti-"woke" governor who even went so far as to send out crews to re-paint rainbow crosswalks black and white tr...
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The Court's Next Big Gun Case is not Really a Gun Case at All

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On March 2, the Court will hear oral argument in United States v. Hemani , which raises the question whether a federal statute prohibiting the possession of firearms by any person who “is an unlawful user of or addicted to any controlled substance,” violates the Second Amendment as applied to the defendant in the case. This federal law was one of the charges that formed the  basis  for Hunter Biden's conviction in 2024. The defendant in Hermani  is an admitted drug dealer who uses marijuana about every other day. The FBI obtained a warrant to search his home where the agents found a Glock 9mm pistol, 60 grams of marijuana, and 4.7 grams of cocaine. The prosecution's case rested solely on the defendant's habitual use of marijuana.  The Fifth Circuit Court of Appeals, otherwise known as the Court of Unlimited Gun Rights, summarily affirmed a lower court decision (relying on a previous Fifth Circuit case ) that held that this law can only be constitutionally applied to ...
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The Revolving Door of U.S. Attorneys for the Northern District of New York

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The big news out of the Justice Department on Wednesday was made by Attorney General Pam Bondi, who, testifying in the House of Representatives, proved that she is extremely well qualified to hold the office she does . . . given who the president is. But while Bondi was hissing that Representative Jamie Raskin --who is not only an outstanding lawyer but a former constitutional law professor--is "not even a lawyer," her top deputy, Todd Blanche, was taking on the third branch of the U.S. government. Federal judges in the Northern District of New York had just named Donald Kinsella as US Attorney to fill a vacancy created when the term of the previous acting US Attorney, John Sarcone, expired. Blanche promptly sent Kinsella an email and, with the dignity we have come to expect from this administration, tweeted "Judges don’t pick U.S. Attorneys, @POTUS does. See Article II of our Constitution. You are fired, Donald Kinsella." Can that be right? Not exactly but maybe k...
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