Wendy Kaminer

"Partisanship and ideology" are the enemies of "true representation in Washington," according to Lou Dobbs, who apparently sees himself as the last objective man standing. David Brooks laments that independents (increasing in number) are underrepresented politically and in the media, which offers relatively few commentators who "come from an independent perspective" (he doesn't cite Dobbs as one of them). Media outlets addressing liberals or conservatives simply… More »

"The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people," the U.S. Senate declared in 1980. In 1981, in Rostker v Goldberg, the Supreme Court relied on prohibitions of women in combat when it declined to strike down provisions of the Military Selective Service Act authorizing the mandatory registration of men, and not women. "The fact that Congress and the Executive have decided… More »

Hannah Arendt characterized the "right to marry whoever one wishes" as elementary, locating it among the "inalienable human rights to 'life, liberty and pursuit of happiness proclaimed in the Declaration of Independence.'" She was concerned with miscegenation laws, which in her view "constitut(ed) a much more flagrant breach of the letter and spirit of the Constitution than segregation of schools." She even considered political rights, including the right to vote,… More »

Can someone explain to me why it is a criminal offense to have sex with animals but entirely legal to kill and eat them? Surely laws against bestiality don't reflect concern about the rights of animals, (who would probably opt for sex over death.) I don't mean to denigrate meat eating (I'm a carnivore;) I do mean to point out the absurdities of imprisoning people for "buggery." More »

Stressing the paramount importance of transparency and accountability, the ACLU has been commendably relentless in seeking the release of government documents exposing post 9/11 torture and detention practices. But while ACLU staff attorneys combat government secrecy, ACLU board members promote the secrecy of their own deliberations: a policy proposal now pending before the national board would end the longstanding practice of regularly taping national board,… More »

You have no right to ask someone to commit a murder, obviously, but it's hard to say if the First Amendment protects the right to extol or encourage murder - not just murder in general but the murder of a person, or class of people, in particular. Advocacy of violence is protected speech (prohibitions on advocacy inevitably restrict unpopular political speech, as early and mid 20th century red scares demonstrated.) Conversely, neither incitement to violence nor… More »

It's a bit like awarding the Nobel Prize in Literature to someone who reviews novels, beautifully, but has never written one. Some might even consider that a charitable analogy, considering President Obama's moves to cover or ignore strong evidence of American war crimes or his decisions and indecisions about the war in Afghanistan. There are just and unavoidable wars, but whether or not Afghanistan is one of them does not seem like an argument for the Peace Prize. More »

Tomorrow, October 7th, the Supreme Court will hear arguments in Salazar v. Buono, a case with a complicated litigation history that now poses a simple, potentially devastating challenge to constitutional prohibitions on establishing religion. In Salazar, the Court is being asked to limit dramatically--or virtually eliminate--the right of taxpayers to sue the federal government for maintaining sectarian religious symbols on public property. If the Court seizes the… More »

A brief item buried in the national section of today's New York Times reports that the embezzlement of ACORN funds some 10 days years ago by Dale Rathke, brother of ACORN founder Wade Rathke, may have involved 5 million dollars instead of the nearly one million dollar theft that ACORN leaders covered up. This fact was uncovered inl 2008, when a whistle-blower "forced disclosure," the Times reported, when it broke the embezzlement story last year. (A fuller account… More »

Our inalienable right to happiness and the rhetoric of self-esteem experts notwithstanding, we do not have a right to feel good about ourselves; instead, thanks to the First Amendment, other people have a right to make us feel bad. While we may be subject to legal restrictions on public smoking or taxes on foods that make us fat, we should be spared legal efforts to regulate photo-shopping. Europeans are not so lucky. The New York Times reported this week that… More »

When is thievery not a crime but a personal tragedy? When is lying for personal gain or political expedience a mere error in judgment? The answer is obvious to any partisan. Your political enemies engage in criminal or morally repugnant acts; your allies, friends, and relations make mistakes or bend the rules for the greater good. As Rudolph Giuliani remarked during his presidential campaign, the definition of torture "depends on who does it." Waterboarding was… More »

Do you have a right to indulge in consensual public sex? In Massachusetts, at least, that's not a simple question. The answer depends on whether you "intended public exposure or recklessly disregarded a substantial risk of exposure to one or more persons...," the state's highest court observed in 1981, reversing a conviction for "lascivious" public conduct in a car parked in a deserted lot, at night (deserted except for the police officers who trailed the car.) The… More »

Tea Party Expressers who rallied in the capitol last week to protest big government will have another chance to defend "freedom of the individual in this great nation" next week when the Senate Judiciary Committee considers proposed amendments to federal surveillance laws. The Judicious Use of Surveillance in Counterterrorism Efforts (JUSTICE) Act introduced yesterday by Wisconsin Senator Russ Feingold would limit the virtually unilateral power of law enforcement… More »

Tensions between constitutional guarantees of religious freedom and constitutional prohibitions on religious establishment are great fun to debate, unless you're a public school administrator apt to be sued if you do or sued if you don't allow expressions of religious belief in school. Consider two recent federal cases: in Washington state, District Superintendent Carol Whitehead was sued for barring a student group from playing Ave Maria at a 2006 high school… More »

Right and left, activists in California are organizing against publicly honoring people they don't like: "Assembly Democrats attack children's innocence, parental rights," the headline of a recent press release from SaveCalifornia.com declares, attacking a bill establishing a day of recognition for Harvey Milk and exhorting the governor to veto it (as he did last year.) "The Democrat politicians are telling schoolchildren to honor a sexual predator of teens, a… More »

Should Virginia voters care about the views expressed by gubernatorial candidate Robert McDonnell in his graduate school thesis 20 years ago? Today's headline in the Washington Post implies that voters should ignore McDonnell's thesis, and that ideologically, he is a changed man; the thesis is merely a record of his "past views." Despite his disapproval of wage earning women, his view of feminism as an "enemy" of the family, and his condemnation of homosexuals (he… More »

In 2002, while federal law enforcement agents at the SEC were busy ignoring warnings about Bernie Madoff's massive Ponzi scheme, federal agents at the Justice Department were launching an aggressive investigation into steroid use by major league baseball players. With Barry Bonds identified as a public enemy and Madoff as an honest businessman, the government conducted a wholesale seizure of major league drug testing records, with unsurprising disregard for the… More »

Who cares if American intelligence agents or private contractors tortured terrorism suspects? That is not a rhetorical question. A widely discussed, 2009 Pew Forum poll suggests that the public is evenly divided over the use of torture, with 49% agreeing that it is "often or sometimes justified" and 47% objecting that it is "rarely or never justified." These results may have been skewed by assumptions about torture's effectiveness in extracting information implicit… More »

Just in time for Banned Books Week, the American Library Association's annual celebration of intellectual freedom, the Brooklyn Public Library has removed a 79 year old children's book from its shelves after a patron complained about its racial offensiveness. As the New York Times reported last week, "Tintin au Congo," has been locked up in a "vault-like room" of the library, where it is "available for viewing by appointment only." How does this infringe on the… More »

Driving civil libertarians crazy is probably not a goal of this month's town hall protesters, but it may be one of their signal achievements. Having openly applauded, tacitly supported, or simply ignored the Bush/Cheney national security state and the unprecedented expansion of unaccountable executive power, the right wing now defends freedom against the spectre (and it is only a spectre) of universal health care? If the fury directed at "Obamacare" is partly… More »