Are we at war—or not? For if we are at war, why is Khalid Sheikh Mohammed headed for trial in federal court in the Southern District of New York? Why is he entitled to a presumption of innocence and all of the constitutional protections of a U.S. citizen? Is it possible we have done an injustice to this man by keeping … [Read More]

When openly gay college student Matthew Shepard was targeted, tortured and murdered in 1998 the story made national headlines. Soon after, MTV sent a camera crew down to Charleston, South Carolina searching for a redneck or two who might offer some insensitive remarks about homosexuals for their “True Life” series. They found one. Me. I was a student at the College … [Read More]

Authors of serious books seldom have cause to celebrate, but Larry Stratton and I have two reasons to open the champagne. Crown Publishing, a division of Random House, has announced a second printing of the second edition of The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice, and the noted civil … [Read More]

[Editor’s note: see also rounds 1-4 of Takimag’s increasingly acrimonious debate on originalism, interpretation, and whether the Constitution actually means anything at all. Austin Bramwell, “Original Sins”; Kevin R. C. Gutzman, “The Genuine Article”; Bramwell, “Best of Intentions”; Gutzman, “They Really Meant It”] There isn’t much to say in response to Kevin Gutzman’s latest.  He’s had two chances already but still … [Read More]

[Editor’s note: see also rounds 1-3 of our debate on originalism, interpretation, and whether the Constitution actually means anything. Austin Bramwell, “Original Sins”; Kevin R. C. Gutzman, “The Genuine Article”; and Bramwell, “Best of Intentions.”] Austin Bramwell began his first attack on me by saying that he had read my books. In his second, he quotes at length from Lysander Spooner, … [Read More]

I’m sorry, but Kevin Gutzman is still totally wrong about the Constitution. His response to my article sends up a flurry of errors and misconceptions but leaves my critique of his work not only undisturbed but unaddressed. I am glad to set him straight point by point. 1. “[P]roducts of law school miseducation like Bramwell,” are “subjected to reading in ‘constitutional … [Read More]

Austin Bramwell says that I argue, “the Constitution grants the Federal government [sic] a handful of limited powers, but leaves the states free to govern as they like.” He adds that I assert, “nobody who actually reads the Constitution could possibly conclude otherwise.” According to Bramwell, I make this claim in my books and in “many online articles.” If, as he … [Read More]

I’m sorry, but Kevin Gutzman is totally wrong about the Constitution. In his books and many online articles, Gutzman argues that the Constitution grants the Federal government a handful of limited powers, but leaves the states free to govern as they like. Hence, almost the entire apparatus of the Federal government is unconstitutional. What’s more, says Gutzman, with no little vehemence, … [Read More]

Since the days of Ronald Reagan and Edmund Meese, the Republican Party’s position has been that judges should be bound by the people’s understanding of a particular constitutional provision at the time they ratified it.  This notion goes under the name “originalism.”  Recent events, including the Republican response to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court, reveal … [Read More]

When Republicans were warned not to give Sonia Sotomayor the drubbing Democrats gave Robert Bork and Sam Alito—lest they be perceived as sexist and racist by women and Hispanics—the threat was credible, for it underscored a new reality in American politics. The Supreme Court, far from being the last redoubt of the White Anglo-Saxon Protestant in America, reflects the collapse of … [Read More]