I’m pleased to report that this past week the brilliant Justice Clarence Thomas cited my work on the Necessary and Proper Clause in his concurring opinion in Town of Greece v. Galloway, an Establishment Clause case that received wide publicity. This was the thirteenth citation in the third Supreme Court case in the past 11 months.Details
Michael Perry writes:
I share your originalist misgivings about the plurality and Thomas opinions in McCutcheon. However, a reader of your most recent post on the mattermight conclude that you have bought into the “expected applications” version of originalism, and I doubt you mean to do that! So, you might want to say something further about the version of originalism you are bringing to bear in expressing your misgivings about the McCutcheon opinions.
Trying to solve these questions by judicial reasoning rather than historical inquiry converts them from questions about what the framers wrote to questions about what the judge thinks is best.Details
When the feds tell you they want to protect your rights, watch out! In all likelihood, that means they plan to strip some of your rights away and expand their own power.
Case in point, a “shield law” for journalists currently the subject of congressional debate. The political class wants to protect journalists from requirements to reveal sources or documents. S.987 would “maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”
Sound good, right?
But consider this: in the process, Congress gets to define a “journalist.”Details
The firestorm commenced by the revelation of the execution of a search warrant on the personal email server of my Fox News colleague James Rosen continues to rage, and the conflagration engulfing the First Amendment continues to burn; and it is the Department of Justice itself that is fanning the flames.
As we know from recent headlines, in the spring of 2010, the DOJ submitted an affidavit to a federal judge in Washington, D.C., in which an FBI agent swore under oath that Rosen was involved in a criminal conspiracy to release classified materials, and in the course of that conspiracy, he aided and abetted a State Department vendor in actually releasing them. The precise behavior that the FBI and the DOJ claimed was criminal was Rosen’s use of “flattery” and his appeals to the “vanity” of Stephen Wen-Ho Kim, the vendor who had a security clearance. The affidavit persuaded the judge to issue a search warrant for Rosen’s personal email accounts that the feds had sought.
The government’s theory of the case was that the wording of Rosen’s questions to Kim facilitated Kim’s release of classified materials, and Rosen therefore bore some of the criminal liability for Kim’s answers to Rosen’s questions. Kim has since been indicted for the release of classified information (presumably to Rosen), a charge that he vigorously denies. Rosen has not been charged, and the DOJ has said it does not intend to do so.Details