Trying Dzhokhar Tsarnaev

May 7, 2013

It seems clear that Dzhokhar Tsarnaev exploded bombs at the Boston Marathon. Although some wanted him tried as an enemy combatant outside of the requirements of the Constitution, the Obama Administration has brought charges in the federal courts.

It’s fascinating how some Americans treat our Constitution. On the one hand, many people make a fetish about what the Founders thought and did in the eighteenth century, and on the other many, often the same people, argue that the Constitution is simply irrelevant, doesn’t apply, can safely be ignored or forgotten.

Let’s get past that one quickly. Although the evidence so far does not fit the definition, the Constitution has a very clear notion of what to call Americans who adhere to our enemies – “traitors.” Read the rest of this entry »


We Will Not Comply

March 5, 2013

Did you hear the demonstrators against New York’s new gun law chanting in unison “We will not comply!”

That’s the problem. Guns allow some of their owners to think that they can define right and wrong and everybody else has to comply. In the hands of some of their owners, guns puff up their sense of self-importance, their sense that laws are written for everybody else but that they are above the law. Read the rest of this entry »


Assassination by presidential decree – disclosure needed

January 29, 2013

David McCraw, vice-president of the New York Times and a graduate of Albany Law, has been involved in a lawsuit for documents showing how the Administration decided which Americans to assassinate who were on foreign soil but not in war zones. United States District Judge Colleen MacMahon decided that the government did not have “to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States.”

But she added, “The Alice-in-Wonderland nature of this pronouncement is not lost on me” and she called it “a veritable Catch-22.” Read the rest of this entry »


What’s Wrong with Spying?

May 1, 2012

The AP recently revealed a spying operation by the New York City police on Muslims and Muslim institutions. What should we think about that? Read the rest of this entry »


Due process & targeted assassination

April 24, 2012

Tasked with helping draft a constitution for India after World War II, B. N. Rau traveled abroad speaking to jurists. In Washington, Supreme Court Justice Frankfurter advised Rau not to include a due process clause in the Indian Constitution. Instead India should have a clause simply requiring that no one be charged with a crime but by the law of the land. That was the meaning of the Magna Carta in 1215 which said:

 No freemen shall be taken or imprisoned … or in any way destroyed … except by the lawful judgment of his peers or by the law of the land.

 That meant Parliamentary supremacy. Whatever crimes and procedures the legislature defined were kosher. But there was no check on the legislature. Read the rest of this entry »


Toxic Taxes and Health Insurance

March 27, 2012

Yesterday the Supreme Court heard argument about whether the health insurance mandate is or is not a “tax”. If it were a “tax” then this legal challenge might be three years premature. If it were a “tax” we would be talking about the taxing power in addition to the commerce power. If it were a “tax”, it would be much harder to attack this law. So why isn’t it a “tax”? Read the rest of this entry »


Cheers for David Soares

November 22, 2011

I should begin by making clear that many of the people involved in the dispute I’m about to discuss are graduates of Albany Law where I teach, including the Governor, the District Attorney and some of the Occupiers, and I know some of them, including the District Attorney.

In this dispute about the handling of the Occupy Albany movement, I have nothing but praise for David Soares, District Attorney for Albany County. Soares has refused to prosecute people for participating in Occupy Albany and making plain their objection to government policies and massive inequality. Clearly Soares has better things to do. Read the rest of this entry »


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