Judge’s Opinions

"If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned." — Justice George Sutherland (1862-1942)
In his 2008 book "Taking Rights Seriously," the late professor Ronald Dworkin explored the origins and governmental treatment of human liberty. He argued that Thomas Jefferson — who wrote the Declaration of Independence — and James Madison — the scrivener at the Constitutional Convention and the author of the Bill of Rights — were clear in their articulations that the premise of America at its birth. . .

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." — Benjamin Franklin (1706-1790)
One of my Fox colleagues recently sent me an email attachment of a painting of the framers signing the Constitution of the United States. Except in this version, George Washington — who presided at the Constitutional Convention — looks at James Madison — who was the scrivener at the Convention — and says, "None of this counts if people get sick, right?"
In these days of state governors issuing daily decrees purporting to. . .

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances." — Ex parte Milligan, U.S. Supreme Court (1866)
During the Civil War, when President Abraham Lincoln thought it expedient to silence those in the northern states who challenged his wartime decisions by incarcerating them in military prisons in the name of public safety, he was rebuked by a unanimous Supreme Court. The essence of the rebuke is that no. . .

The issue of whether government in America can quarantine persons against their will, ostensibly for their own health and that of others with whom they may come in contact, requires a dual analysis — one of the powers of the federal government and the other of the powers of the states. For constitutional analysis purposes, since local and regional governments derive their powers from the states in which they are located, the analysis of state powers pertains to them as well.
We begin our analysis with the observation of the truism that freedom is the default position. The language of. . .

I have been writing for years about the dangers to human freedom that come from government mass surveillance. The United States was born in a defiant reaction to government surveillance. In the decade preceding the signing of the Declaration of Independence, the villains were the Stamp Act and the Writs of Assistance Act. Today, the villain is the Patriot Act.
Here is the backstory.
In 1765, when the British government was looking for creative ways to tax the colonists, Parliament enacted the Stamp Act. That law required all persons in the colonies to purchase stamps from a British government vendor. . .

"Congress shall make no law... abridging the freedom of speech." — First Amendment to the U.S. Constitution

In the oral argument of the famous U.S. Supreme Court cases known collectively as the Pentagon Papers Case, the late Justice William O. Douglas asked a government lawyer if the Department of Justice views the "no law" language in the First Amendment to mean literally no law. The setting was an appeal of the Nixon administration's temporarily successful efforts to bar The New York Times and The Washington Post from publishing documents stolen from the Department of Defense by a. . .

Roger Stone is a gifted political consultant known for going the distance for his clients. He has worked for such marquee names as Richard Nixon, Ronald Reagan, Tom Kean and Donald Trump. His expertise is the lawful destruction of the opposition candidacy — what is known in the trade as opposition research. In that process, he has made enemies, some of whom have sought to destroy him.
That process of destruction began a year ago, when he was ordered out of the bedroom that he shared with his wife, and out of their home at 5:30 in the morning. . .

"The Framers ... conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men." — Justice Louis Brandeis (1856-1941)
While we were all consumed by impeachment, a pernicious piece of legislation was slowly and silently making its way through Congress. It is a renewal of Section 215 of the Patriot Act.
The Patriot Act of 2001 has three sections that are scheduled to expire on March 15. One of those sections is the infamous 215, which authorizes the federal government to capture without a. . .

"The party told you to reject the evidence of your eyes and ears. It was their final, most essential command." — George Orwell, "1984"
The Senate trial of President Donald Trump ended not with a bang but a whimper. What different outcome could one expect from a trial without so much as a single witness, a single document, any cross-examination or a defendant respectful enough to show up?
Law students are taught early on that a trial is not a grudge match or an ordeal; it is a search for the truth. Trial lawyers know. . .

The president of the United States is on trial in the Senate. It is an impeachment trial and, thus far, has consisted of remarks made by impeachment managers from the House of Representatives, who have argued that the president should be removed from office for abuse of power and contempt of Congress, and the president's lawyers, who have argued that he did not abuse power or behave contemptuously, and even if he did, those are not impeachable offenses.
These arguments often rely on differing views of the relationship between the three branches of the federal government. That relationship. . .