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August 30, 2013

The Fourth Amendment protects all of us from the unreasonable, warrantless searches of our “houses, papers, and effects.”  Today, in the age of the smart phone, almost all of us carry around some of our most private “papers and effects” everywhere we go.  At any given time, we carry in our pockets our family photos, our calendars, and our private communications, both professional and personal.  It’s difficult to imagine modern life without the smart phone and all of the conveniences it offers, and we reasonably assume that the private information on our phones will stay private as long as we want it to.  But recent court cases may put that assumption in jeopardy...

August 5, 2013

In the years before his retirement from the Supreme Court, Justice John Paul Stevens emerged as Justice Antonin Scalia’s primary antagonist in debates surrounding the Constitution’s original meaning. In a series of cases over the course of his last decade on the bench, Justice Stevens authored lengthy, passionate, originalist responses to Justice Scalia’s account on a broad range of significant legal issues, most notably on the First Amendment in Citizens United v. Federal Elections Commission and the second Amendment in District of Columbia v. Heller.  Upon Justice Stevens’s retirement in June 2010, many wondered who among the Court’s liberal faction might assume his role and continue to challenge Justice Scalia with text-and-history-based counter-arguments. After blockbuster cases on health care and voting rights, it’s become clear that Justice Ruth Bader Ginsburg has taken over that originalist mantle.

August 1, 2013

In a recent post about McCutcheon v. FEC, the upcoming sequel to Citizens United, Brad Smith suggests that somehow our amicus brief, filed on behalf of Harvard Law Professor Lawrence Lessig, which is originalist to the core, reveals us to be “living constitutionalists.”   Pot, meet kettle. 

Smith -- like the conservative majority in Citizens United -- asserts that the only kind of corruption that counts is quid pro quo corruption of individual officeholders.  He treats us to a lengthy exegesis of Supreme Court rulings, which, he says, demand this conclusion.  While he claims to favor “historical or textual approaches” to the Constitution, he offers none in support of his view of corruption. 

August 1, 2013

This morning, by a strictly party-line vote of 10-8, the Senate Judiciary Committee approved the nomination of Patricia Millett to the D.C. Circuit, sending it on to the full Senate for consideration after the recess.  No Republican Senator voiced any concern whatsoever with Ms. Millett’s qualifications to be a federal judge.  To the contrary, Senator Orrin Hatch (R-UT) specifically said, “I have no objection to her personally...I think she’s probably well qualified.”  This echoed the praise that Senator Ted Cruz (R-TX) had already lavished on Ms. Millett at her July 10 confirmation hearing.