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

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

A Tale of Two Courts

This article originally appeared in the July 12, 2021 Concord Monitor. Under the Supremacy Clause, the Supreme Court has the final say when it comes to interpreting the Constitution, meaning that a state cannot undermine federal constitutional rights. But the opposite is not true. Federal rights, both constitutional and [...]

The Supreme Court Term’s Impact Will Linger

For liberals, the Supreme Court term ended its 2020-21 term on a sour note. In two July 1 decisions, each with the same 6-3 division of Justices, the Court demonstrated that it is, indeed, a very conservative court. In Americans for Prosperity Foundation v. Bonta, the Court overturned a [...]

Roe v. Wade and a Jurisprudence of Doubt?

Chief Justice Charles Evans Hughes once said, “The Constitution means what the judges say it means.“ A better way to put it might be, “The Constitution is what a majority of five Justices say it is.” Or even more accurately, “The Constitution means what five Justices say it means [...]

Thomas Jefferson’s Wall of Separation is Shrinking

The First Amendment contains two religion clauses. The first clause prohibits the government from enacting laws “respecting an establishment of religion.” The second forbids the government from interfering with the “the free exercise” of religion. “ In 1802, then-president Thomas Jefferson wrote a letter to the Danbury Baptist Association [...]

New “Anti-Riot” Laws Violate the First Amendment

The First Amendment prohibits the government for interfering with freedom of speech and of the press. It complements the right of free speech by protecting “the right of the people peaceably to assemble.” Civil rights proponents, anti-Vietnam War protesters, and Black Lives Matter supporters have the right to assemble [...]

Did Trump “Cause” the Injuries to Two Capitol Police Officers?

Not long after I got into law school, I decided I should read something about the law. Someone suggested “The Nature of the Judicial Process,” by Judge Benjamin Cardozo. According to that book, judges legislate “interstitially,” meaning that they fill in the gaps. It is how the common law [...]

Lying About the 2020 Election Produces Massive Lawsuits

“A good name is rather to be chosen than great riches” Book of Proverbs Over my 56 years as a trial lawyer, mostly representing parties in civil cases, I have seen the legal system from the inside. Like all human institutions, it is far from perfect. But the courts [...]

The Impeachment Trial and What Trump Failed to Do

This article originally appeared in the February 4, 2021 Concord Monitor. If the forthcoming impeachment trial of Donald Trump were taking place in a courtroom, the prosecutors could invoke the “law of the case” doctrine. What that means, in a real lawsuit, is that the Senate’s decision to allow [...]

The Post-Presidency and Title 18 of the U.S. Code

This article originally appeared in the December 2, 2020 Concord Monitor. I recently heard an interview with Andy Card, who served as Chief of Staff for President George W. Bush and later as president of Franklin Pierce University. In his opinion, soon-to-be president Joe Biden should “respect” his predecessor, [...]

There Are Laws for a Criminal Assault on America

I do not ordinarily begin my monthly column by quoting federal law, but this is not an ordinary month. 18  U.S. Code § 2385, makes it a felony to “advocate, abet, or advise” overthrowing the government. Whoever “helps” or “encourages” anyone to do so, can go to prison for [...]

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