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NSA spying is not clearly unconstitutional
I’ve been noticing a trend to call the activities of the NSA – as revealed by Edward Snowden – “clearly unconstitutional.” I disagree.
August 2013 / 4 min.
The irony of liberty of contract: normalizing federal intervention
“Liberty of contract” had originally been envisioned as a means of protecting individual rights from government interference, but decisions implementing it ended up justifying federal government intervention.
July 2013 / 2 min.
“I can’t help myself, I’m a man” – rape apologia, circa 1840
Does this rape defense sound familiar to anyone else? “Man is susceptible to the inclinations of the female sex.”
July 2013 / 1 min.
Sidewalk chalk on trial: the Jeff Olson jury acquittal
A prosecutor has to prove every element of a crime beyond a reasonable doubt – and if they don’t, then a jury is expected to acquit.
July 2013 / 6 min.
Kara Swanson on blood banks, commodification, and “de-propertization”
Kara Swanson’s presentation on blood banks highlighted the move to commodify blood first, and then – at least partly in reaction to product liability concerns – to de-commodify it and move to a service-provider, gift-based system.
November 2012 / 4 min.
Nullification and Obamacare: rejection of the rule of law
The idea of nullification – essentially, states telling the federal government that state law outranks federal law – is both seductive and persistent. As philosophically desirable as this may be, 200 years of settled law says this is a dead constitutional theory.
November 2012 / 6 min.
Warrantless wiretaps and the Fourth Amendment: why would a court allow a violation of the Constitution?
In Appeals Court OKs Warrantless Wiretapping, David Kravets summarizes a recent 9th Circuit decision regarding wiretaps by the federal government. How is this possible?
August 2012 / 3 min.
Abortion and constitutional underdetermination
Abortion is a complex and controversial topic. As such, I won’t try to deal with it fully here (nor will I be arguing for or against the legality abortion). I will, however, point out a few issues regarding the subject in Michael J. Nellet’s “How The Left Redefined The Term ‘Rights.’”
July 2012 / 3 min.
Limits of interpretation: critiquing a lay reading of the 14th Amendment
The Fourteenth Amendment to the Constitution of the United States remains arguably one of the most controversial, complex, and challenging pieces of Constitutional text.
July 2012 / 3 min.
Critiquing a lay reading of the Constitution’s “freedom of religion” clauses
In this second part of my series on typical problems in lay readings of the Constitution, I will focus on the question of the freedom of religion in Michael J. Nellet’s “How The Left Redefined The Term ‘Rights.’”
July 2012 / 4 min.