Opinion2017-05-19T20:27:29-04:00

The following articles, except where noted, were originally published in the Keene Sentinel.

The Sometimes Shifting Alliances of the Justices

Supreme Court opinions are sometimes unanimous. But in the important constitutional cases, the Court is almost always divided. Contrary to popular opinion, these split decisions do not always break down according to the Justices’ “liberal” or “conservative” leanings. Some members of the Court are quite predictable, Justice Thomas foremost [...]

Reflections on the End of the Death Penalty in NH

I spent my first year out of law school as a law clerk for Paul C. Reardon, a justice on the Massachusetts Supreme Judicial Court. We had many interesting cases, and I helped Judge Reardon draft opinions in the cases that the Chief Justice assigned to him. One such [...]

The Troubling Case of Julian Assange

In 2006, Julian Assange founded WikiLeaks in order to promote “information transparency,” which has consisted of releasing hundreds of thousands of hacked documents. He has waged an ongoing war against privacy and confidentiality, with notable success. More than a year ago, a federal grand jury in Virginia secretly indicted [...]

Is Impeachment Without Conviction Worth It?

*Published in Concord Monitor April 28, 2019 Nineteen years ago this month, I got a call from Donna Sytek, the Speaker of the House of the New Hampshire legislature. Peter Burling had given her my name, and she invited me to come to Concord to discuss the House-mandated investigation [...]

The Internet is Today’s Wild West of Speech

The Internet is a lot like the Wild West, but with at least one important difference – it is not entirely lawless. Section 230 of the Communications Decency Act of 1996 provides internet service providers (“ISPs”), the companies that connect all of us to the Internet, with protection from [...]

Special Prosecutors and the Appointments Clause

Article II of the Constitution includes the “Appointments Clause,” which says that the President, with the advice and consent of the Senate, shall appoint ambassadors, judges, and “officers of the United States,” while Congress may authorize the “Heads of Departments” to appoint “inferior officers.” With Special Counsel Robert Mueller’s [...]

The Census and a Smorgasbord of Broken Rules

Article One of the Constitution provides that members of Congress shall be apportioned among the states “according to their respective Numbers.” That Article also requires a census every ten years in order to count how many persons reside in each state. Originally, the words “respective Numbers” referred to “free [...]

One Nation Under God and Jefferson’s Wall

During the Civil War a man named George Thatcher Batch wrote the Pledge of Allegiance, and Congress adopted it in 1942 as part of a law called the “Flag Code.” Since that time, it has been changed once, in 1954, with the insertion of the words “under God” between [...]

Chief Justice John Roberts and an Independent Judiciary

We don’t often have a “war of words” between the President and the Chief Justice, but that is what happened just before Thanksgiving. A California federal judge ruled that under federal law, migrants can seek asylum anywhere on U.S. soil, even if they did not enter through an authorized [...]

The President Has No Power to Undo Birthright Citizenship

Dred Scott was born into slavery in 1795 and lived as a slave in Missouri. His owner, a military man named Emerson, took Scott with him when he was transferred first to Illinois and later to the Wisconsin Territory, neither of which had slavery. As a result of several [...]