Tag: Constitutional Law

The Bush and Obama Administrations’ Invocation of the State Secret Privilege in National

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The launch of the Global War on Terrorism occasioned a new challenge to the Rule of Law. This challenge manifested itself in a series of legal memoranda and ensuing positions adopted by the George W. Bush administration in response to the capture and imprisonment of those suspected of carrying out the September 11, 2001 terrorist attacks. Many of the political policy formulations adopted by the Bush administration generated intensive debate over their merits, legality, and political viability. Among the most controversial policies are waterboarding and other “enhanced interrogation” techniques applied against foreign nationals detained abroad and at Guantanamo Bay; the practice of “extraordinary rendition”; the National Security Agency eavesdropping program without prior court approval; the self- proclaimed right to unilaterally launch pre-emptive war; enactment of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001; the usage of signing statements to evade congressional intent… Read More …

The Constitution and the American Federal System

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The American federal system as we know it today was not planned. We did not adopt a Constitution at the time of Independence or at any time thereafter establishing the structure of a federal system and allocating power between the federal government and the states. Rather the structure of the American federal system has evolved over a period of time as a result of the Supreme Court’s interpretation of the provisions of the Constitution dealing with federal and state power and the Court’s development of constitutional policy with respect to the nature and operation of the American federal system. Read More …

Elevating Form Over Substance: Why Circuit Courts Must Modify Their Procedural Approach to Juries’ Use of the Bible in the Sentencing Phase of a Capital Case

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In the New Testament, St. Paul speaks of the moral authority God gives local governments; authority which includes the power to “execute wrath” upon evil-doers for the greater good. In America, where more than eight-in-ten citizens self-identifies as a Christian, more than a few people agree with Paul. Many others likely do not, believing instead that the totality of the New Testament encourages an abolitionist position on capital punishment. Read More …

Free Speech and Establishment Clause Rights at Public School Graduation Ceremonies: A Disclaimer: The Preceding Speech Was Government Censored and Does Not Represent the Views of the Valedictorian

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It’s a quintessential American scene, repeated each spring in hundreds of cities and towns across the land. Brittany McComb appears behind a large microphone to give her valedictory address at the 2006 graduation exercises of Foothill High School in Henderson, Nevada. She is wearing a golden-colored graduation gown and mortar board, the bright tassel playfully dancing back and forth as she trips rapidly over her words and phrases. As it happens, Ms. McComb has more on her mind than the task of addressing her teachers, classmates, parents and friends in the cavernous hall. She had, as required, submitted her speech to the principal of the school, who was advised by legal counsel that the speech contained sectarian and proselytizing elements likely to provoke litigation based on the Establishment Clause. The principal advised Ms. McComb to remove these elements. At first she agreed, but she changed her mind and finally resolved to give her original speech. School administrators told her to cut her speech, or they would cut her microphone. Read More …

Distinguished Lecture: Surveillance and the Constitution

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Today I want to talk about the extent of this surveillance and why it is so easy for the government to carry it out. I will also talk about why government surveillance should be more heavily regulated. Finally, I will briefly discuss what a new regulatory regime might look like. My focus will be on the extent to which the Constitution limits government surveillance activities. The details of regulation should be statutory, but the basis for that statutory regulation must be founded on constitutional principles to ensure that it cannot be legislatively nullified during the next moral panic, the next terrorist attack, or not to put too fine a point on it, the next time a Dick Cheney comes into power. Read More …