Stephen B. Presser

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The Rights of Aliens
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The Rights of Aliens

One way of telling the story of American culture and politics in the second half of the 20th century is to present it as a revolt against the group of white Anglo-Saxon Protestant males who dominated the country from the

Metaphors Have Consequences
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Metaphors Have Consequences

“The adulterous connection of church and state.”

—Thomas Paine

Is “separation of Church and State” a bedrock principle of the U.S. Constitution?  Should it be?  The answers of constitutional historians Daniel L. Dreisbach and Philip Hamburger fly in the face

A Bad Man’s View of the Law
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A Bad Man’s View of the Law

Law professors rarely write books.  When they write at all, they typically produce incomprehensible and heavily footnoted articles (usually unread) for obscure law reviews.  It is even rarer to find a law professor who can write with flair about something

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Appointing Supreme Court Justices

Michael McConnell, to use the overworked metaphor, is the “poster boy” for the Senate Democrats’ attempts to frustrate President Bush’s promise to appoint more Supreme Court justices like Antonin Scalia and Clarence Thomas.  Scalia and Thomas are the two current

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Taking God Out of School

The Pledge of Allegiance, as this issue goes to press, is illegal for children in the public schools of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state to recite, because it contains the words “under God.”  Two

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A Dissenting Voice

Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit is, for believers in the rule of law, a hero.  Judge Boggs, in an extraordinary dissenting opinion published in May, revealed profound problems with the majority of

Jefferson’s Cousin
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Jefferson’s Cousin

There are probably more judicial biographies of Supreme Court Chief Justice John Marshall than of all the rest of the Supreme Court justices combined, so why another one?  R. Kent Newmyer, historian and law professor at the University of Connecticut

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The Habitation of Justice

Judge Roy Moore, chief justice of the Alabama Supreme Court, is in big trouble again.  Judge Moore’s first 15 minutes of fame happened when, as a lower-court judge, he refused to remove a plaque containing the Ten Commandments from the

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Interpretative Gymnastics

The Federal government’s freestyle interpretive gymnastics did not end when the man who was uncertain regarding the meaning of “is” left office.  On January 13, 2000, President Clinton appointed Victoria Wilson to fill a vacancy on the U.S. Civil Rights

What Makes for Real Prosperity?
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What Makes for Real Prosperity?

Supreme Court Justice Rufus Peckham put it best, in the Trans-Missouri Freight Association decision in 1897.  Broadly interpreting the Sherman Antitrust Act as a means to reign in large economic organizations that had spun out of control, Peckham acknowledged that

Some Dare Call It Justice
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Some Dare Call It Justice

Justice is a contract of expediency, entered upon to prevent men harming or being harmed.

        —Epicurus, Aphorisms

According to leading members of the American law professoriate, the U.S. Supreme Court’s decision, on December 12, 2000, in Bush v.

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“Borking”

“Borking” is back. The eponymous activity first perpetrated on Judge Robert Bork when he was nominated for a seat on the United States Supreme Court is the practice of painting a proposed judicial appointee as consciously demonic, in order to

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“We Hold These Truths”

Is the Declaration of Independence part of the federal Constitution? The short answer, of course, is “no.” For the Declaration to be part of the Constitution, it would have to have been included in the original document ratified by at

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No Big News

The Bush administration finishes its first four months in office, the big legal news is that there is no big news. There have been some hopeful signs: the appointment of John Ashcroft as attorney general; the appointment of Theodore Olson

The Virtues of Property
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The Virtues of Property

Somewhere deep in their bones, Americans recognize that property is the paramount civil right—perhaps the paramount human right. Anyone who seriously studies American history, particularly that of the late 18th century, will discover that property, along with virtue, provided the

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A Presidential Pardon

The Presidential Pardon of Marc Rich, the Belgian-born, naturalized American billionaire financier and fugitive who has renounced his U.S. citizenship and fled to Switzerland to avoid multi-million-dollar tax liability, evoked incredulous responses from many. Said New York’s Mayor Rudy Guiliani,

Don’t Fix It Restoring
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Don’t Fix It Restoring

The Electoral College, as we used to learn and as readers of this journal will still be aware, was supposed to be a device for removing the choice of the president from the people. Rather than direct elections, which could

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The Twilight Zone

The U.S. Supreme Court has put an end to five weeks of uncertainty. In the early days of December, in the twilight between the certification of George W. Bush as the winner of Florida’s electoral votes and the decision of

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Law, Morality, and Religion

A paleoconservative thinks about the law the way Edmund Burke did. The basis of all law is the will of God or, to use the term employed by Blackstone (another hero of paleoconservatives), “natural law.” According to natural law as

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Can American Legal Education Be Fixed?

Something has gone radically awry with legal education and maybe even legal practice. For about a decade now, the loudest wailing over the state of affairs has come from Chief Judge Harry Edwards of the United States Court of Appeals

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Raoul Berger, R.I.P.

On September 23, we lost one of the great jurisprudential fighters for Truth, Justice, and the American Way. Berger, late Charles Warren Senior Fellow at Harvard University, former professor of law at the University of California’s Boalt Hall, one-time second

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Unexpected Effect

Joseph Lieberman’s selection as the first Orthodox Jew to run for vice president may have the unexpected effect of making it respectable again to maintain that the United States is a Christian country. Picking Lieberman as his running mate was

Commercial Speech and the First Amendment
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Commercial Speech and the First Amendment

For sheer incoherence, incomprehensibility, and outrageousness, nothing beats the United States Supreme Court’s First Amendment jurisprudence. The First Amendment is a fairly simple piece of constitutional law: It forbids the federal legislature from restricting freedom of speech, freedom of the

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A Closely Watched Term

The Supreme Court’s closely watched October 1999 term came to an end on June 28, and its themes finally became clear: inconsistency, incoherence, and arbitrariness. On that last day, the Court released important decisions on abortion, aid to religious schools,

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The Clinton Scandals

The Clinton scandals continue to gurgle below the surface of American politics and law, occasionally throwing up a polluted geyser. Kenneth Starr’s successor as independent counsel, Robert Ray, is still considering indicting the President when he leaves office; disbarment proceedings

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Clarifying Constitutional Law

The U.S. Supreme Court, many had hoped, would use this term to clarify constitutional law and move jurisprudence somewhat closer to the original understanding of the Constitution. The Court has yet to issue important opinions regarding school vouchers, partial-birth abortion,

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Dodging A Bullet

The U.S. Supreme Court, late in January, dodged a bullet by refusing to decide whether Maryland’s decision to close its public schools on Good Friday violated the First Amendment’s Establishment Clause. State and local Good Friday closing laws have been

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Voucher Plan

School vouchers violate the First Amendment of the Constitution—or so ruled federal District Judge Solomon Oliver, Jr., in early December. Cleveland’s voucher plan, authorized under state legislation, was nondenominational and permitted students, selected by lot, to choose a school participating

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Arbitrary Nature of the Supreme Court

Pro-abortion and pro-centralization forces have won another victory in the battle over partial-birth abortion. As I detailed in this space last month, a three judge panel of the Seventh Circuit Court of Appeals, breaking with other federal courts, upheld Wisconsin’s

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Back in the News

Partial-birth abortion is back in the news, and for the first time, there appears to be some hope for the pro-life side. Of all the extraordinary things that the United States Supreme Court has done in the past few decades,

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Our Constitution and Theirs

We here at Chronicles are Constitutional Fundamentalists. We swear allegiance to the Constitution of Hamilton, Madison, and Jay, and not the Constitution of Warren, Brennan, and Souter. We do not believe that the Constitution is a “living document” that must

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The Teaching Evolution

The teaching evolution is back in the news, in a case that the media—with their usual sensationalism—are comparing to the Scopes trial of 75 years ago. On August 10, Steven Green, legal director of the Washington-based Americans United for Separation

Every Neighbor a Litigant
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Every Neighbor a Litigant

Goethe taught us that true happiness comes from being engaged with others in productive projects, and we have known since Plato and Aristotle that man is a social animal, but we would be hard put to reach these conclusions if

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L’Affaire Lewinsky

L’Affaire Lewinsky, most of us thought, ended with the escape of our President in the United States Senate. As a particularly sweltering July turned to August, though, “all Monica all the time” junkies got their best fix in months. First,

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Storytelling

Constitutional lawyers like to tell the story (probably apocryphal, since it’s too good to be true) that, sometime in the 1960’s, when the Warren Court was engaged in its effort to rewrite the Constitution, one crusty old Harvard Law professor,

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“Visual Politics”

“Visual politics” seems an apt description of our current regime. Since most Americans acquire their news by television, those making news or seeking to communicate it must do so visually. Since television has not really formulated its own vocabulary, however,

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Politics Make Strange Bedfellows

Politics, they say, makes strange bedfellows, but that’s nothing compared to constitutional amendment. A few weeks ago, I found myself testifying before the Constitution Subcommittee of the House Judiciary Committee, and on the panel with me, testifying in favor of

Sisyphus and States’ Rights
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Sisyphus and States’ Rights

Can a ten-year-old girl successfully sue a local school board for failing to prevent the sexual harassment of the young lady by an elementary-school classmate? Should an Alabama state court judge be able to display his hand-carved copy of the

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An Extraordinary Suggestion

The impeachment proceedings were the subject of an extraordinary suggestion made by Pat Caddell, a former pollster for the Democratic Party, at the “Dark Ages” retreat for members of the “conservative movement” over New Years’ weekend. Caddell told the gathering

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Is There Hope for the Federal Courts?

In a radio address last year, President Clinton railed against congressional Republicans who were stalling on his nominees to the federal bench and had even threatened some sitting judges with impeachment. Their actions, he claimed, had endangered our tradition of

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Recapturing the Constitution

In a landmark five-to-four decision last spring, in United States v. Lopez, the Supreme Court announced—for the first time in almost 50 years—that Congress had exceeded its interstate commerce powers. At issue was a federal statute—the Gun Free School