Why originalism is a flawed, incoherent, and dangerously ideological method of constitutional interpretation   “Chemerinsky . . . offers a concise, point-by-point refutation of the theory [of originalism]. He argues that it cannot deliver what it promises—and if it could, no one would want what it is selling.�—David Cole, New York Review of Books   Originalism, the view that the meaning of a constitutional provision is fixed when it is adopted, was once the fringe theory of a few extremely conservative legal scholars but is now a well-accepted mode of constitutional interpretation. Three of the Supreme Court’s nine justices explicitly embrace the originalist approach, as do increasing numbers of judges in the lower courts.   Noted legal scholar Erwin Chemerinsky gives a comprehensive analysis of the problems that make originalism unworkable as a method of constitutional interpretation. He argues that the framers themselves never intended constitutional interpretation to be inflexible and shows how it is often impossible to know what the “original intent� of any particular provision was. Perhaps worst of all, though its supporters tout it as a politically neutral and objective method, originalist interpretation tends to disappear when its results fail to conform to modern conservative ideology.

Throughout American history, views on the proper relationship between the state and religion have been deeply divided. And, with recent changes in the composition of the Supreme Court, First Amendment law concerning religion is likely to change dramatically in the years ahead. In The Religion Clauses, Erwin Chemerinsky and Howard Gillman, two of America's leading constitutional scholars, begin by explaining how freedom of religion is enshrined in the First Amendment through two provisions. They defend a robust view of both clauses and work from the premise that that the establishment clause is best understood, in the words of Thomas Jefferson, as creating a wall separating church and state. After examining all the major approaches to the meaning of the Constitution's religion clauses, they contend that the best approaches are for the government to be strictly secular and for there to be no special exemptions for religious people from neutral and general laws that others must obey. In an America that is only becoming more diverse with respect to religion, this is not only the fairest approach, but the one most in tune with what the First Amendment actually prescribes. Both a pithy primer on the meaning of the religion clauses and a broad-ranging indictment of the Court's misinterpretation of them in recent years, The Religion Clauses shows how a separationist approach is most consistent with the concerns of the founders who drafted the Constitution and with the needs of a religiously pluralistic society in the 21st century.

Federalism-the division of power between national and state governments-has been a divisive issue throughout American history. Conservatives argued in support of federalism and states' rights to oppose the end of slavery, the New Deal, and desegregation. In the 1990s, the Rehnquist Court used federalism to strike down numerous laws of public good, including federal statutes requiring the clean up of nuclear waste and background checks for gun ownership. Now the Roberts Court appears poised to use federalism and states' rights to limit federal power even further. In this book, Erwin Chemerinsky passionately argues for a different vision: federalism as empowerment. He analyzes and criticizes the Supreme Court's recent conservative trend, and lays out his own challenge to the Court to approach their decisions with the aim of advancing liberty and enhancing effective governance. While the traditional approach has been about limiting federal power, an alternative conception would empower every level of government to deal with social problems. In Chemerinsky's view, federal power should address national problems like environmental protection and violations of civil rights, while state power can be strengthened in areas such as consumer privacy and employee protection. The challenge for the 21st century is to reinvent American government so that it can effectively deal with enduring social ills and growing threats to personal freedom and civil liberties. Increasing the chains on government-as the Court and Congress are now doing in the name of federalism-is exactly the wrong way to enter the new century. But, an empowered federalism, as Chemerinsky shows, will profoundly alter the capabilities and promise of U.S. government and society.

The ACLU was involved in excess of 1,190 cases in the US Supreme Court as a party, counsel of record/ACLU attorney, or as the filer of an amicus (friend of the court) brief, during ninety-four of its first one hundred years, ending in January 19, 2020. This handbook summarizes all the facts and statistics from its companion three-volume set of over 1,190 cases (from June 8, 1925, Gitlow v. New York), and contains three examples of the cases found in the three-volume set.

Follow a trial lawyer's career through the demanding, often controversial, and suspenseful world of jury trials, tension-filled appeals and the different worlds of courtrooms, jail cells, corporate boardrooms, and law firms. Each of the cases in the nineteen chapters were selected from a total of his 150 jury trials to reflect issues of current importance, including refugees on the Mexican border, gargantuan gender battles inside one of the largest corporations in the world, sexual taboos on national television, accusations of terrorism, government agents who cheat, innocent prisoners in our jails, the constitutional right to speak and print the truth, bringing law to a war zone, poverty and murder on Native American Reservations, current problems of hunger in America, and more.

Over the last few decades, the Supreme Court and the federal appellate courts have undergone a dramatic shift to the right, the result of a determined effort by right-wing lawmakers and presidents to reinterpret the Constitution by reshaping the judiciary. Conservative activist justices have narrowed the scope of the Constitution, denying its protections to millions of Americans, exactly as the lawmakers who appointed and confirmed these jurists intended. Basic long-standing principles of constitutional law have been overturned by the Rehnquist and Roberts courts. As distinguished law professor and constitutional expert Erwin Chemerinsky demonstrates in this invaluable book, these changes affect the lives of every American.
As a result of political pressure from conservatives and a series of Supreme Court decisions, our public schools are increasingly separate and unequal, to the great disadvantage of poor and minority students. Right-wing politicians and justices are dismantling the wall separating church and state, allowing ever greater government support for religion. With the blessing of the Supreme Court, absurdly harsh sentences are being handed down to criminal defendants, such as life sentences for shoplifting and other petty offenses. Even in death penalty cases, defendants are being denied the right to competent counsel at trial, and as a result innocent people have been convicted and sentenced to death. Right-wing politicians complain that government is too big and intrusive while at the same time they are only too happy to insert the government into the most intimate aspects of the private lives of citizens when doing so conforms to conservative morality. Conservative activist judges say that the Constitution gives people an inherent right to own firearms but not to make their own medical decisions. In some states it is easier to buy an assault rifle than to obtain an abortion.
Nowhere has the conservative assault on the Constitution been more visible or more successful than in redefining the role of the president. From Richard Nixon to George W. Bush, conservatives have sought to significantly increase presidential power. The result in recent years has been unprecedented abuses, including indefinite detentions, illegal surveillance, and torture of innocent people.
Finally, access to the courts is being restricted by new rulings that deny legal protections to ordinary Americans. Fewer lawsuits alleging discrimination in employment are heard; fewer people are able to sue corporations or governments for injuries they have suffered; and even when these cases do go to trial, new restrictions limit damages that plaintiffs can collect.
The first step in reclaiming the protections of the Constitution, says Chemerinsky, is to recognize that right-wing justices are imposing their personal prejudices, not making neutral decisions about the scope of the Constitution, as they claim, or following the "original meaning" of the Constitution. Only then do we stand a chance of reclaiming our constitutional liberties from a rigid ideological campaign that has transformed our courts and our laws. Only then can we return to a constitutional law that advances freedom and equality.

Jose Padilla short-shackled and wearing blackened goggles and earmuffs to block out all light and sound on his way to the dentist. Fifteen-year-old Omar Khadr crying out to an American soldier, 'Kill me!' Hunger strikers at Guantanamo being restrained and force-fed through tubes up their nostrils. John Walker Lindh lying naked and blindfolded in a metal container, bound by his hands and feet, in the freezing Afghan winter night. This is the story of the Bush administration's response to the attacks of September 11, 2001 - and of how we have been led down a path of executive abuses, human tragedies, abandonment of the Constitution, and the erosion of due process and liberty. In this vitally important book, Peter Jan Honigsberg chronicles the black hole of the American judicial system from 2001 to the present, providing an incisive analysis of exactly what we have lost over the past seven years and where we are now headed.

Traditionally, the university or college is thought to be the ultimate location for the discovery and sharing of knowledge. After all, on these campuses are some of the great minds across all fields, as well as students who are not only eager to learn, but who often contribute to our shared wisdom. For those ideals to be achieved, however, ideas require access to some kind of virtual marketplace from which people can sample and consider them, discuss and debate them. Restricting the expression of those ideas for whatever reason is the enemy of not only this process, but also of knowledge discovery. Speech freedom on our college and university campuses, like everywhere else, is fragile. There are those who wish to suppress it, more often than not when the words express ideas, opinions, and even facts that conflict with their beliefs. Why is this effort, so completely at odds with the foundational values of this country, made? This topic explored in Speech Freedom on Campus: Past, Present and Future is multi-layered, and its analysis is best accomplished through multiple perspectives. Joseph Russomanno's edited collection does precisely that, utilizing 10 different scholars to examine various aspects and issues related to speech freedom on campus.

Traditionally, the university or college is thought to be the ultimate location for the discovery and sharing of knowledge. After all, on these campuses are some of the great minds across all fields, as well as students who are not only eager to learn, but who often contribute to our shared wisdom. For those ideals to be achieved, however, ideas require access to some kind of virtual marketplace from which people can sample and consider them, discuss and debate them. Restricting the expression of those ideas for whatever reason is the enemy of not only this process, but also of knowledge discovery. Speech freedom on our college and university campuses, like everywhere else, is fragile. There are those who wish to suppress it, more often than not when the words express ideas, opinions, and even facts that conflict with their beliefs. Why does an effort so completely at odds with the foundational values of this country happen? This topic explored in Speech Freedom on Campus: Past, Present and Future is multi-layered, and its analysis is best accomplished through multiple perspectives. Joseph Russomanno's edited collection does precisely that, utilizing 10 different scholars to examine various aspects and issues related to speech freedom on campus.

Federalism--the division of power between national and state governments--has been a divisive issue throughout American history. Conservatives argued in support of federalism and states' rights to oppose the end of slavery, the New Deal, and desegregation. In the 1990s, the Rehnquist Court used federalism to strike down numerous laws of public good, including federal statutes requiring the clean up of nuclear waste and background checks for gun ownership. Now the Roberts Court appears poised to use federalism and states' rights to limit federal power even further.
In this book, Erwin Chemerinsky passionately argues for a different vision: federalism as empowerment. He analyzes and criticizes the Supreme Court's recent conservative trend, and lays out his own challenge to the Court to approach their decisions with the aim of advancing liberty and enhancing effective governance. While the traditional approach has been about limiting federal power, an alternative conception would empower every level of government to deal with social problems. In Chemerinsky's view, federal power should address national problems like environmental protection and violations of civil rights, while state power can be strengthened in areas such as consumer privacy and employee protection.
The challenge for the 21st century is to reinvent American government so that it can effectively deal with enduring social ills and growing threats to personal freedom and civil liberties. Increasing the chains on government--as the Court and Congress are now doing in the name of federalism--is exactly the wrong way to enter the new century. But, an empowered federalism, as Chemerinsky shows, will profoundly alter thecapabilities and promise of U.S. government and society.

The application of the Political Question Doctrine is at a crucial crossroads as the Supreme Court continues to test new 'War on Terrorism' initiatives. Historically, the political question doctrine has held the courts from resolving constitutional issues that are better left to other departments of government, as a way of maintaining the system of checks and balances. However, the doctrine's many ambiguities have allowed a roughly defined juxtaposition of the branches of government during previous years when the Republic was concerned with both international matters and those within its continental confines. The Political Question Doctrine and the Supreme Court of the United States discusses the gradual changes in the parameters of the doctrine, including its current position dealing with increasingly extraterritorial concerns. Nada Mourtada-Sabbah and Bruce E. Cain bring together critical essays that examine the broad issues of judicial involvement in politics and the future of the doctrine. With a wide range of historical and theoretical perspectives, this book will stimulate debate among those interested in political science and legal studies.

The application of the Political Question Doctrine is at a crucial crossroads as the Supreme Court continues to test new "War on Terrorism" initiatives. Historically, the political question doctrine has held the courts from resolving constitutional issues that are better left to other departments of government, as a way of maintaining the system of checks and balances. However, the doctrine's many ambiguities have allowed a roughly defined juxtaposition of the branches of government during previous years when the Republic was concerned with both international matters and those within its continental confines. The Political Question Doctrine and the Supreme Court of the United States discusses the gradual changes in the parameters of the doctrine, including its current position dealing with increasingly extraterritorial concerns. Nada Mourtada-Sabbah and Bruce E. Cain bring together critical essays that examine the broad issues of judicial involvement in politics and the future of the doctrine. With a wide range of historical and theoretical perspectives, this book will stimulate debate among those interested in political science and legal studies.

Religion as a Public Good: Jews and Other Americans on Religion in the Public Square explores the often controversial topic of how religion ought to relate to American public life. The sixteen distinguished contributors, both Jewish and Christian, reflect on the topic out of their own disciplines-social ethics, political theory, philosophy, law, history, theology, and sociology. and take a stand based on their religious convictions and political beliefs. The volume is at once scholarly and committed, polemic and civil, reflective and activist. Written in the shadow of 9/11, it invites a new consideration of how religion enhances democratic public life with full awareness of the dangers that religion can sometimes pose. The volume is polemical, as befits the topic, but also civil, as befits a dialogue about an issue of profound significance for democratic citizenship.

Religion as a Public Good: Jews and Other Americans on Religion in the Public Square explores the often controversial topic of how religion ought to relate to American public life. The sixteen distinguished contributors, both Jewish and Christian, reflect on the topic out of their own disciplines-social ethics, political theory, philosophy, law, history, theology, and sociology. and take a stand based on their religious convictions and political beliefs. The volume is at once scholarly and committed, polemic and civil, reflective and activist. Written in the shadow of 9/11, it invites a new consideration of how religion enhances democratic public life with full awareness of the dangers that religion can sometimes pose. The volume is polemical, as befits the topic, but also civil, as befits a dialogue about an issue of profound significance for democratic citizenship.

"Interpreting The Constitution" doesn't fit neatly into the extensive literature on judicial review and constitutional interpretation that reconciles judicial review with democracy defined as majority rule. Indeed, Chemerinsky criticizes this method of interpretation and contends that the Constitution exists to protect political minorities and fundamental rights from majority rule. Chapter by chapter, he keenly defends this unique method of interpretation, challenges the general approach, and offers thorough, expert coverage.

A leading legal scholar explores how the constitutional right to seek justice has been restricted by the Supreme Court The Supreme Court's decisions on constitutional rights are well known and much talked about. But individuals who want to defend those rights need something else as well: access to courts that can rule on their complaints. And on matters of access, the Court's record over the past generation has been almost uniformly hostile to the enforcement of individual citizens' constitutional rights. The Court has restricted who has standing to sue, expanded the immunity of governments and government workers, limited the kinds of cases the federal courts can hear, and restricted the right of habeas corpus. Closing the Courthouse Door, by the distinguished legal scholar Erwin Chemerinsky, is the first book to show the effect of these decisions: taken together, they add up to a growing limitation on citizens' ability to defend their rights under the Constitution. Using many stories of people whose rights have been trampled yet who had no legal recourse, Chemerinsky argues that enforcing the Constitution should be the federal courts' primary purpose, and they should not be barred from considering any constitutional question.

The Professional Responsibility audio lecture explains regulation of attorneys, bar admission, unauthorized practice, competency, discipline, judgment, layer-client relationship, representation, and withdrawal. It also discusses conflicts, disqualification, clients, client interests, successive and effective representation, integrity, candor, confidences, secrets, and past and future crimes. Other topics include perjury, communications, witnesses, jurors, the court, the press, trial tactics, prosecutors, market, solicitation, advertising, law firms, fees, client property, conduct, and political activity.