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  We have been covering the features of the new FISA act over at Balkinization (here, here, here, and here), and I won't repeat that analysis here. I continue to think that the new procedures in Title I are far more worrisome than Title II, the immunity for telecom companies. But in this post I want to say a few words about the ...

In conversation Sandy Levinson has impressed on me several curious features of the Second Amendment right of self-defense recently recognized in District of Columbia v. Heller. The more I think about this new right the Court has recognized, the more curious it becomes. continue reading at Balkinization . . .

Many commentators, including my good friends Randy Barnett and Larry Solum, have praised Justice Scalia’s opinion in Heller v. District of Columbia as a sparkling example of original meaning originalism. After having read the opinion closely a number of times, I am not so sure.I do not doubt that Scalia uses original meaning methodology at the ...

David, far be it from me to suggest that elections don't matter a great deal for constitutional development. That they do is the central claim of Sandy Levinson's and my theory of partisan entrenchment. It's nice to know we have a fan. But there is still the question of why Roe v. Wade survived in the face of a series of Republican Supreme Court ...

David raises the interesting question of whether conservative justices ''mak[e] decisions in ways that create political debates sure to help Republicans.'' (And whether liberal justices similarly decide cases in ways that are likely to mobilize Democrats.) If so, then the five-person conservative majority missed a chance in Heller: Deciding for ...

In the Boumediene decision a few weeks back, Justice Scalia argued that the majority's decision giving Guantanamo detainees a right to a judicial hearing would cost American lives. One could probably say the same thing of Justice Scalia's majority opinion in Heller. After all, if you lift the ban on handguns in the District of Columbia, it's ...

Back in 2006, I wrote about the Bush administration's plans to stock the Justice Department with movement conservatives, based on earlier reporting by Charlie Savage. The Inspector General's office has now issued a critical report arguing that the administration systematically and illegally used ideological and political allegiances to decide ...

Emily Bazelon wonders, entirely correctly, why Barack Obama has been missing in action on the FISA compromise bill passed by the House today. Finally, the Obama campaign sent a lukewarm endorsement of the measure: As to the key reforms of FISA, the bill is an acceptable compromise, not perfect but the best one can do under the situation. As to the ...

My op-Ee on Boumediene appears in this week's U.S. News and World Report online. My starting point is John Ashcroft's abortive proposal to suspend habeas corpus shortly after 9/11. The idea was quickly scuttled by Congress, but if we connect the dots between the treatment of Yasser Hamdi, Jose Padilla, and the detainees at Guantanamo, Bagram, and ...

In the Military Commissions Act of 2006, the president and the Republican-controlled Congress said to the court: Stop meddling in the handling of Guantanamo detainees. We do not think that habeas extends to Guantanamo, and even if it does, we've produced a constitutionally adequate substitute.In Boumediene, the court responded:Tto the contrary, ...