Constitutional Liberties Research Articles

Palmerston and The Times: Foreign Policy, the Press and Public Opinion in Mid-Victorian Britain, by Laurence Fenton

Two of the major historical developments in British politics from the 1830s were the construction and manipulation of ‘public opinion’ by prominent politicians and the expansion and growing influence of the metropolitan and provincial press. As foreign secretary after 1822, George Canning defined a patriotic, Protestant and liberty-loving ‘public opinion’—bolstering his diplomatic aims of championing liberal progress against repression and promoting British commercial interests around the world. From the 1830s, Palmerston self-consciously took up Canning’s mantle, serving as foreign secretary (1830–4, 1835–41 and 1846–51) and prime minister (1855–8 and 1859–65). A genial affability, diplomatic expertise, and the celebration of the nation’s liberal political values giving Britain a moral sway in the world, were combined with a subtle cultivation of the press. The expansion of the press, meanwhile, gave further force to ‘public opinion’. Debate ensued about the extent to which the press (the ‘fourth estate’, as Macaulay described it in 1828) educated, expressed or directed ‘public opinion’. But there existed a consensus that the comparative freedom of the British press, in contrast to parts of Continental Europe, was evidence of a constitutional liberty by which the political public were moralised and improved.

David Hume: Historical Thinker, Historical Writer, edited by Mark G. Spencer

David Hume: Historical Thinker, Historical Writer, edited by Mark G. Spencer. University Park, Pennsylvania State University Press, 2013. xii, 282 pp. $69.95 US (cloth). This book is a fine collection of essays addressing an under-explored topic, namely relation between Hume philosopher and Hume historian. Mark G. Spencer notes in introduction that apart from scattered remarks on history in Hume's philosophical treatises and essays, and general comments on development of English constitution in his History of England, philosophical content in Hume's historical writings and historical content of his philosophy are not fully apparent. And while Hume's History of England was widely read in his day, his historical work tended to be neglected thereafter relative to his philosophical texts. Although some of claims made by authors in this volume may be questioned, in terms of their various attempts to unify philosophical and historical sides of David Hume, collection as a whole represents a significant contribution to growing scholarship on this important aspect of Hume's thought. The essays employ a diversity of approaches. Roger L. Emerson argues that Hume was potentially interested in writing an ecclesiastical history (as did his successor Gibbon), given often rich accounts of ecclesiastical affairs in The History of England. His hesitance arose from not wanting his peace disturbed by both offended religious authorities and radical Enlightenment philosophes. In contrast, Jennifer A. Herdt is critical of Hume's distinction between natural moral sentiments, and artificial lives as influenced by superstition and enthusiasm. In fact, she argues, a sympathetic understanding of religious belief and practice underpins Hume's writing; Hume's own historiography can be interpreted as endorsing a kind of providentialism (of human progress). The following chapters focus on Hume's History of England. Philip Hick nicely traces development of concepts of from Machiavelli to Bolingbroke. He argues that Hume broke from republican and Whig views on freedom in his analysis of its entanglements with religious fanaticism, and need to balance with authority. Nevertheless Hume's employment of rhetoric of the spirit of liberty helped fuel revolutionary politics of late eighteenth-century America. Mark Towsey turns to eighteenth-century Scottish readership of The History of England. He shows that despite misgivings over Hume's religious skepticism, and complicated and controversial political learnings, work nevertheless enjoyed great success in his homeland. David Allan looks southward to ascertain who Hume's English readers might have been, and how they discussed and obtained copies of his History--again despite or because of its controversial content. In his examination of medieval volumes of History, Jeffrey M. Suderman explores Hume's nuanced reflections on English kings of Middle Ages. For Hume greatest monarchs were those who transcended barbarism of their times, thus reinforcing not only superiority of modem civility but also surprising role of powerful monarchs in making of modem English constitutional liberty. …

The Drug War Against Civil Liberty and Human Rights

The war on drugs has caused a cancerous growth of predatory misgovernment at the federal, state and local levels. The war has resulted in terrible violations of America’s founding principles of individual liberty, limited government, and federalism.Today in America the drug war is fought by both the military and by militarized police units. The drug warriors are well armed and funded, supported by extensive human and electronic intelligence gathering and surveillance, and by aggressive government propaganda. The casualties in the drug war are innocent Americans and American constitutional liberties.

Brief of Amici Curiae Professors Laurence H. Tribe and Michael C. Dorf in Support of Petitioners: Obergefell v. Hodges; DeBoer v. Snyder

Brief of Amici Curiae Professors Laurence H. Tribe and Michael C. Dorf in Support of Petitioners: Obergefell v. Hodges; DeBoer v. Snyder

Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer

This article provides the first legal biography of lawyer and Senator Lyman Trumbull, one of the most important lawyers and politicians of the nineteenth century. Early in his career, as the leading anti-slavery lawyer in Illinois in the 1830s, he won the cases constricting and then abolishing slavery in that state; six decades later, Trumbull represented imprisoned labor leader Eugene Debs in the Supreme Court, and wrote the Populist Party platform. In-between, Trumbull helped found the Republican party, and served three U.S. Senate terms, chairing the judiciary committee.One of the greatest leaders of America’s “Second Founding,” Trumbull wrote the Thirteenth Amendment, the Civil Rights Act, and the Freedmen’s Bureau Act. The latter two were expressly intended to protect the Second Amendment rights of the former slaves. Another Trumbull law, the Second Confiscation Act, was the first federal statute to providing for arming the freedmen. After leaving the Senate, Trumbull continued his fight for arms rights for working men, bringing Presser v. Illinois to the U.S. Supreme Court in 1886, and Dunne v. Illinois to the state Supreme Court in 1879. His 1894 Populist Party platform was a fiery affirmation of Second Amendment principles. In the decades following the end of President James Madison’s administration in 1817, no American lawyer or legislator did as much as Trumbull in defense of Second Amendment. Yet Lyman Trumbull had little personal interest in firearms, and never considered the Second Amendment to be one of his major issues. So did Lyman Trumbull become the leading Second Amendment lawyer of the time? His lifelong cause was “the poor who toil for a living in this world.” When Trumbull examined America in the nineteenth century, he saw that the rights of the toilers could always be trampled, unless they had the right to arms, individually and collectively. The story of Lyman Trumbull’s career begins in the Age of Jackson and ends with Trumbull’s protege, William Jennings Bryan, winning the Democratic presidential nomination in 1896. It is a story of a man who changed political parties five times, while holding fast to his fundamental principle of free labor. Even today, “The Grand Old Man of America” continues to shape our understanding of constitutional liberty.

Obraza uczuć religijnych a wolność sztuki i ekspresji artystycznej

The offense against religious feelings expressed in the text of Art. 196 of PC is strongly embedded in the constitutional liberties and freedoms and human rights of both the Council of Europe and the European Union. Freedom of conscience and religion, which originated in the wording of Art. 196 of PC remains in antinomy to other constitutional values protected by both international acts such as freedom of expression, freedom of artistic expression, the freedom to teach and freedom to enjoy cultural heritage. This requires balancing the content of these freedoms. At present stage there is yet no way to resolve the alleged doctrine of countertype of art.

Daniel G. Donalson. The Espionage and Sedition Acts of World War I: Using Wartime Loyalty Laws for Revenge and Profit.

The notion that the draconian sedition laws of World War I were used by individuals to exact revenge or extract profit at the expense of unfortunate victims is a commonsense conclusion. Plenty of other punitive laws in American history, dating back to at least the Alien and Sedition Acts and forward to at least the Patriot Act, have provided the same pretext for those bent on personal gain of one sort or another. It is a truism that criminal and civil law are routinely abused in multiple ways for personal reasons. U.S. laws and procedures have this possibility “baked into” them, to use a modern idiom. That is why safeguards exist, whether it is the threat of prosecution for perjury or the elaborate rules of testimonial evidence. Still, when the justice system is stressed to the breaking point, or passions are aroused, not even these safeguards are enough. Daniel G. Donalson's thesis is not that personal perversion of these laws for the sake of retribution was unique, but rather that the widespread practice of abuse (encouraged by the laws themselves), the legal machinery charged with enforcing it, the Wilson administration's zeal to stifle dissent, and the insidious climate of fear and hysteria combined to spawn “ a serious threat not only to individual freedom but Constitutional liberties for all Americans” (p. 26).

언론사 내부에 있어서의 언론의 자유 침해와 정치파업의 문제 : MBC파업사태와 징계무효판결과 관련하여

In 2012, the court ruled in favor of the MBC labors’ union over their strike demanding resignation of Jae-Chul Kim, a former president. Therefore all of the disciplinary measures gainst the strikers were annulled. In 15th century, messpublication became possible thanks to the invention of printing. Church exercise rigid censorship on printed matters against church. Strikes against the pre-screening were organized by then, and people’s constitution alfreedom of speech was secured by the new-richcitizens with the influence of Enlightenment from Great Britainin 17th, 18th century.BR The value of liberty of speech is to organize and deliver free thoughts and it is a fundamental prerequisite of democracy in any constitutional states. However, the problem lies on the internal screening on the purpose of management, and on the fact that if necessary, the company can dismiss their own journalists. Since it is not about a private company, it could be said that freedom of speech can be violated. From the point of view of civil liberties, the company and the media are considered to be the same, and they are judged as in a private company’s case. BR But in the modern society, the liberty of press is not necessarily violated only by the government but as I mentioned earlier, screening and infringement within the company can be a matter.BR If the discharges to the employees in the media company are treated like the ones in private companies, this paralyzes one of the media’s most important roles that is conveying people’s right to know.BR At the same time, we cannot ignore the possibility of information control by the media companies. It means that violations within the media companies are violation of constitutional liberty of speech. In addition, in case discharged journalists organize strikes and demand the resignation of CEO, we need to figure out if it is economical or political strike; I compared related constitutional issue with another country’s theory.BR MBC strike is unique because it has both economical and political meanings. If the most valuable role of the press is to conveying the truth while protecting public interests, the court’s rule on the strike can have the same meaning.

The Current State of American Air Travel: Checking Your Baggage and Dignity at the Gates

Although hijackers and other forms of domestic terrorism have always found their way into American aviation systems, the panic and hysteria surrounding such threats have never been so apparent than in the wake of events of September 11, 2001. From the foundation of the Transportation Security Administration in November of 2001 to the awesome power and authority it wields today, Americans have voluntarily traded many of their most fundamental constitutional liberties and freedoms all for a facade of safety from terrorism. Amongst those forfeited liberties and freedoms lay a few remaining shrouds of the Fourth Amendments rights that dictate for all Americans what constitutes an “unreasonable search or seizure.” Armed with the greatest war ever sold, the TSA continues to fight “The War on Terror,” all while leaving many Americans’ Fourth Amendment rights trounced in its path. When asked for justifications or explanations, like The Great Oz, the TSA routinely increases the breadth and depth of its intrusion into American air-travelers’ privacy rights, all while justifying its efforts under the smokescreen of combating terrorism. While freedom may always come at a cost, that cost should never be so great as to deny an honest discussion of the reward gained by the price paid. In routinely refusing to discuss its standard operating procedures and security checkpoint investigation methods, the TSA conceals a culture of abuse by not divulging the level at which its own discretion affects such investigations. This abuse can only checked by an honest discussion for the need and reasoning justifying such methods. The time for such a discussion has come. Without such a discussion, how will Americans assess the current state of domestic air-travel and determine conclusively if the costs have finally outweighed the reward?

The Corporate Conscience: A Historical Review of Religious Freedom

The Patient Protection and Affordable Care Act mandates that certain employers provide insurance coverage for all FDA-approved contraceptive methods and sterilization procedures. The religious convictions of several for-profit corporations forbade them from providing contraceptives in their health insurance plans. Under the Act, noncompliance can lead to substantial financial penalties. A flood of lawsuits resulted from this moral conflict as corporations with religious underpinnings sought injunctions against the Department of Health and Human Services from enforcing the mandate. In reviewing these claims, federal circuit courts have split on whether for-profit corporations may assert free exercise rights under the First Amendment. In the past, courts have focused on the “historic function” of a constitutional liberty to determine whether it was “purely personal” or could be exercised by a corporation. But this analysis has largely been absent in a recent challenge to the health care law, where the emphasis has instead been placed on the technicalities of the corporate form, rather than an examination of religious liberty. Because the development of the First Amendment informs our understanding of its modern expression, greater attention should be given to the historic function of the Free Exercise Clause.

Ill-Suited to the Digital Age: Problems with Emerging Judicial Perspectives on Warrantless Searches of Cell Site Location Information

For the average user, a cell phone represents a form of communications technology. For a rapidly increasing number of law enforcement officials, a cell phone functions as a tracking device, used to monitor the location of persons of interest on a minute-by-minute basis. This new surveillance capability has evolved largely without public notice, and unfortunately without judicial oversight in many cases.A plurality among Federal and State courts that have addressed the practice of tracking cell phone users through the signal of their phones has concluded that the Fourth Amendment does not require a search warrant for this type of surveillance. Those courts have reasoned that because no expectation of privacy exists in an individual’s public location, no warrant is required to track that information through surveillance technology. This article critiques that plurality view. The history of the Fourth Amendment’s relationship to surveillance technology suggests that the Supreme Court did not intend to permit widespread surveillance of American citizens without any judicial oversight. Furthermore, the plurality view draws an unmanageable distinction between monitoring public and private locations; at the time law enforcement officers use surveillance technology to determine a citizen’s location, they have no way to know if it will be in a public or private area. Consequently, the plurality view incentivizes, rather than deters, surveillance that might encroach on historically private locations such as the home. Finally, pervasive surveillance of American citizens has a chilling effect on the exercise of constitutional liberties.

Federalism and Phantom Economic Rights in NFIB v. Sebelius

Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. Chief Justice Roberts and the four joint dissenters endorsed the novel limiting principle advanced by the Act’s challengers, distinguishing between economic “activity,” which Congress can regulate, and “inactivity,” which it cannot. Because the commerce power extends only to “existing commercial activity,” and because the uninsured were “inactive” in the market for health care, they reasoned, the MCP was not a regulation of commerce within the meaning of the Constitution. Critically, supporters of the activity/inactivity distinction insisted that it was an intrinsic constraint on congressional authority anchored in the text of Article I and the structural principle of federalism, rather than an “affirmative” prohibition rooted in a constitutional liberty interest. This Article argues that the neat dichotomy drawn by the Chief Justice and joint dissenters between intrinsic and rights-based constraints on legislative authority is illusory, and that it obscures both the underlying logic and broader implications of the activity/inactivity distinction. In fact, that distinction is rooted less in the constitutional enumeration of powers or federalism than in a concern about individual liberty. Even in the absence of a formal constitutional “right” to serve as a doctrinal vehicle, the Justices’ defense of economic liberty operates analogously to the substantive due process right to “liberty of contract” during the Lochner era — as a trigger for heightened scrutiny of legislative means and ends. Current scholarship addressing the role of individual liberty in NFIB v. Sebelius tends to deploy Lochner as a convenient rhetorical touchstone, to lend an air of illicitness or subterfuge to the majority’s Commerce Clause analysis. This Article argues that the Lochner-era substantive due process cases are both more nuanced and more instructive than judges and many scholars have realized. They illustrate, in particular, that constraints on legislative authority that are rooted in individual liberty and constraints on legislative authority that are rooted in enumerated powers and federalism can and do operate in dynamic relationship to one another. Reading NFIB v. Sebelius through this historical lens better equips us to interrogate the role that economic liberty plays in the majority’s Commerce Clause analysis, and provides an important alternative analytical framework to the structure/rights dichotomy advanced by the Chief Justice and joint dissenters. The activity/inactivity distinction not only portends a constitutionally dim future for federal purchase mandates, but may also herald more far-reaching restrictions on congressional interference with economic liberty, in which individual sovereignty assumes a place alongside state sovereignty in the Court’s federalism.

Tolerance and Liberty: Answering the Academic Left's Challenge to Homeschooling Freedom

Millions of children in the United States are educated in the home. Millions more receive their education from private institutions. For parents, a common reason for seeking alternatives to public education is the desire to ensure that they receive instruction in accord with their religious beliefs. In many cases, these beliefs include exclusive claims about the nature of God, salvation, or morality. Recently, several scholars have argued that, to achieve a diverse and tolerant society, homeschooling and private education should be abolished or severely limited. They have contended that “a liberal multicultural education,” which will expose children to different ideas and perspectives, is necessary for the preservation of democratic values. Homeschooling, they claim, leads to close-mindedness and intolerance because children are taught to affirm certain beliefs which imply that not all other traditions are equally valid. The argument that homeschooling should be banned or severely restricted, however, relies on illiberal and intolerant premises that have already been discredited as inconsistent with our constitutional liberties. Although tolerance may be a valuable objective, it cannot be forcibly imposed by using the state's power to create philosophical homogeneity. True tolerance and diversity require a constitutional commitment to liberty for all, not a “constitutional norm” of silencing the “intolerant.”

‘Friends of moderate opinions’: Italian political thought in 1859 in a British Liberal mirror

This comment on Romani (above) emphasizes the degree to which British reactions to events in Italy in 1859 were widely conditioned by the similarities leading Liberals identified with the Glorious Revolution of 1688. These included an emphasis on monarchy, despite a distrust of Piedmont’s dynastic and military alliance with Napoleon III, and on the leading part of an enlightened aristocracy, promoting constitutional liberty as an alternative to both revolution and absolutism. In this perspective, the Italian moderates were widely appraised as true ‘sons of England’.

Sorrell v. IMS Health: issues and opportunities for informaticians

In 2011, the US Supreme Court decided Sorrell v. IMS Health, Inc., a case that addressed the mining of large aggregated databases and the sale of prescriber data for marketing prescription drugs. The court struck down a Vermont law that required data mining companies to obtain permission from individual providers before selling prescription records that included identifiable physician prescription information to pharmaceutical companies for drug marketing. The decision was based on constitutional free speech protections rather than data sharing considerations. Sorrell illustrates challenges at the intersection of biomedical informatics, public health, constitutional liberties, and ethics. As states, courts, regulatory agencies, and federal bodies respond to Sorrell, informaticians' expertise can contribute to more informed, ethical, and appropriate policies.

Netherworld of War: The Dominion System and the Contours of Federal Occupation in Kentucky

Netherworld of War:The Dominion System and the Contours of Federal Occupation in Kentucky Christopher Phillips (bio) From his home in Jefferson City in August 1861, Missouri attorney general J. Proctor Knott, grumbled to his mother at home in Lebanon, Kentucky, a more-than-rhetorical question. He wondered whether "Kentucky and Missouri [would] become parts of the great centralized despotism to which our government is so rapidly drifting, or whether they be destined to remain the cherished homes of Constitutional liberty after the present ravaging storm shall have passed by." Knott, well-versed in the law in both states and watching it suffer in each, in fact perceived the rapid wartime erosion of civil liberties that impinged upon residents of these loyal slave states and which resembled, even preceded, similar such intrusions on the populations of the occupied parts of the seceded states. Within months, he found himself removed from his position, disbarred, and imprisoned briefly for refusing to take the newly mandated oath of allegiance to the Missouri convention government. Two years later, he returned to his old Kentucky home, paroled by Federal officials, unemployed, and outraged.1 [End Page 327] What Knott saw in Missouri and Kentucky were measures by the Federal military that sharply categorized a deeply divided populace. Around him, he saw developing a dominion system of sorts, a knot of counterinsurgency measures initiated, although never routinized, by both state and Federal governments and implemented by low-level, often volunteer, post commanders. Together, they sought to establish control of a "chaos of incendiary elements," as Henry W. Halleck referred to the local, often-armed populations in border slave states whose true loyalties were often uncertain and ephemeral. Largely with Lincoln's assent, military leaders there often tolerated the subversion of civil liberties at the local level as part of the broader prosecution of the war. The official neutrality of Kentucky allowed secessionism to exist alongside Unionism, a situation made worse by there being no mechanisms for precise measurement of either. Federal commanders recognized almost immediately that their greatest challenge, as department commander Jeremiah T. Boyle put it, was to "sift" the mass of residents around their commands, determining their allegiances, and pressuring or punishing those who supported the Confederacy. If the price of liberty is eternal vigilance, the price of neutrality was even steeper. The calculus of loyalty and disloyalty would soon drive both armies and state governments beyond simply keeping the peace. It would require in these states "a stronger hand," as Halleck wrote—a hostile occupation of an ostensibly loyal state.2 With its purpose being the need to distinguish loyal from disloyal residents, the dominion system rested on six pillars. First, military districting at once focused and diffused military command, trying to [End Page 328] regularize the myriad of orders and regulations that soon blanketed district commanders' offices while at once affording them latitude to implement policies. Each district would contain a series of garrisoned towns, occupied by squads of Federal troops, generally cavalry, who were themselves supported by the local Home Guards or state militia. Second, unconditional Unionist informants provided these Federal, state, and Home Guard commanders with names and often lists of known or suspected secessionists, compiled evidence against them, and led them to their homes, often miles from the towns through, in, or on woods, hills, and ridges, for investigation, questioning, or arrest. Third, provost marshals, generally civilians with and without military rank but not technically subordinate to the local garrison commander, had a wide range of powers and responsibilities by which to maintain order within the localities in which they served, including policing their town and its environs, issuing travel passes and various permits, fielding complaints and arbitrating disputes, and acting as liaison between the post and the municipal government. Fourth, oaths of allegiance and surety bonds, which provost marshals administered and cataloged, required civilians to attest both in writing and viva voce before witnesses that their loyalty either always had been or hitherto was to the state and Federal governments. If they refused, they were levied for guerrillas' damages to Unionists' property and deaths or banished to the Confederacy, their property often confiscated. Fifth, the Federal authorities assumed...

Freedom's Orator: Mario Savio and the Radical Legacy of the 1960s (review)

Reviewed by: Freedom's Orator: Mario Savio and the Radical Legacy of the 1960s Blake Slonecker Freedom's Orator: Mario Savio and the Radical Legacy of the 1960s Robert Cohen New York: Oxford University Press, 2009; 512 pages. $34.95, ISBN 9780195182934 When Mario Savio first encountered Marx's maxim, "From each according to his ability, to each according to his needs," he was struck not by its radical economic implications, but by how easily the line might have been culled from Christ's Sermon on the Mount. For a man who never embraced Marxism and who spent much of his adult life rejecting his childhood Catholicism, Savio's entwinement of Marx and Christ is surprising. But it is precisely that pastiche of disparate ideologies that formed Savio's independent radicalism. Savio's aversion to dogmatism—whether religious or secular—forms the dominant theme of Robert Cohen's exhaustive biography of the avatar of Berkeley's Free Speech Movement (FSM). Sandwiching a lengthy treatment of the FSM between shorter sections about Savio's pre-1964 radicalization and post-1965 struggles, Freedom's Orator filters the FSM through Savio's "passionate yet logical, accessible, democratic, and at times poetic oratory" (3). Cohen reveals a man who reluctantly accepted fame because it promised to empower others. Although Freedom's Orator belongs on a short shelf of essential FSM histories, Savio's later obscurity disarms Cohen's attempt to explore "the radical legacy of the 1960s." Savio had already been walking the path of radical democracy when the FSM forever changed his life. By 1964, he had developed a "secularized liberation theology" influenced by the Catholic left, assisted the poor in Taxco, Mexico, and participated in Oakland's Sheraton Palace sit-in (6). Savio's experience as a Freedom Summer volunteer in Mississippi only reinforced his inchoate belief in the power of community organizing and nonviolent civil disobedience. Also in Mississippi, Bob Moses provided Savio with a leadership model that highlighted moral action and community empowerment. Savio enlisted those forces when he returned to Berkeley and discovered that the University of California administration had eliminated the free speech area on the Bancroft strip. Because the FSM hinged on constitutional liberties, the movement matched Savio's distinctive intellect. Savio studied physics, read philosophy, understood American intellectual history, and maintained [End Page 142] an eclectic religious literacy. Such influences were sometimes explicit—he waxed poetic about Herodotus from atop a police car. But more oft en his intellectual undergirding remained implicit. Observers have identified hints of Thoreau, Whitman, Gandhi, Tolstoy, Chaplin, King, Marcuse, Mills, and Camus in his legendary "Bodies Upon the Gears" speech, despite Savio mentioning none of them (179). But Cohen argues that intellectualism always remained secondary to Savio, who aspired to an egalitarian relationship with the audience. Such "hyperdemocracy" represented Savio's political ideal, which became especially apparent at the nadir of FSM protest. When Savio stepped to the microphone near Sproul Hall midway through that chaotic autumn, FSM leaders remained divided about the wisdom of a planned sit-in. With police descending on campus, Savio and other FSM leaders debated the merits of the sit-in before a confused crowd. Drawing on the Freedom Summer leadership of Bob Moses, Savio saw honest debate as the only moral method of confronting students with the violent implications of a police bust. That sit-in failed, but it represented the democratic apex of a wildly successful movement. Nevertheless, the FSM became entwined with the identity of its leader. That fact roiled Savio, who shrank from such attention and worried that his publicity distracted from the FSM's democratic reality. The consequences of fame partially accounted for Savio's descent from FSM leadership and lack of activism after 1965. But Cohen—like Savio himself—struggles to explain these developments. As early as 1965, Cohen indicates, Savio became "uncomfortable with the ‘abstract quality' of the movement's increasingly Marxified discourse" (244). The specter of fringe Marxist-inspired violence looms over Cohen's final chapters. But Savio's worries about Marxist dogma shrouded the fact that widespread Marxist radicalization remained at least two years away. That makes Savio's descent from New Left leadership even more baffling...

Constitutional Liberty Against Monopoly and the Healthcare Mandate: The Road not Taken

Constitutional debate about the health insurance mandate (part of the Patient Protection and Affordable Care Act) has been not only widespread, but particularly passionate. One of the main reasons is that our constitutional thought has appeared incapable of grappling with what’s really bothering people. Put simply, people are worried that liberty interests are implicated by the requirement to purchase health insurance, even if they can’t always express them via the well-traveled channels of our constitutional jurisprudence. The result has been the proposed imposition of restraints on Congress’ enumerated powers which fail to consider the liberty interest at stake. There is a need, if only an academic one, for a constitutional framework in which to analyze the liberty interest implicated by the mandate. Aside from the infamy of substantive due process, it is not obvious how even that doctrine might account for the liberty interest. While some have acknowledged that is at stake, we are still no nearer to identifying what that interest is. The best answer requires a trip into the weeds. Certainly it is obvious that the interest implicated by the mandate has to do with the liberty of an individual to not spend one’s money on health insurance. Yet this cannot be the end of the story, since we know that the government can take people’s money in the form of taxation or penalization. It is not just having resources appropriated by the government that matters, but who the money is going to that is paramount. But to broach the subject we must travel outside of constitutional law proper, and consider what has been called the quasi-constitutional law of antitrust. Protection from government supported monopoly has historical roots due process liberty. But in American constitutional jurisprudence the two became separated. Yet the purposes of antitrust law have long reflected liberty considerations of constitutional significance in all but name. By synthesis of these strains of economic liberty protection from substantive due process and antitrust law, a framework is created which can take constitutional cognizance of the liberty not to be forced to purchase health insurance from a private business. Part I introduces the constitutional debate about the health care mandate. Part II argues that despite the constitutional problems the mandate faces as an exercise of the taxing power, it is clear from the applicable jurisprudence that provisions with an equally significant implication for liberty interests could be enacted under the Tax Clause, and that no limitative principle suggests itself. Part III makes a similar case about the commerce power, arguing that, although a liberty based constraint has been approved by two courts, the Commerce Clause jurisprudential limitations are based on protecting federalism, not liberty.2 Part IV traces through substantive due process and antitrust law a strand of protection of economic liberties which, and applies it to the mandate issue.

CONSTITUTIONAL DEVELOPMENTS AND HUMAN RIGHTS IN FRANCE: ONE STEP FORWARD, TWO STEPS BACK

A major constitutional reform has occurred in France. On 1 March 2010, by virtue of the Constitutional Act of 10 December 20091 (itself pursuant to the constitutional reform of 23 July 2008)2 a new form of constitutional review came into force,3 with the blessing of the Conseil constitutionnel (the Constitutional council).4 The changes are considerable: the role of the Conseil constitutionnel has undergone a revolution which will have implications for ordinary courts as well as for citizens' rights. Arguably, the reform transforms the Conseil constitutionnel—so far a council with limited powers of review—into a true Constitutional court, and as discussed below, opens up constitutional issues in ordinary litigation, enhancing the protection of citizens' human rights. Owing to the reform, ‘Constitutional rights and liberties guaranteed by the Constitution’ can now be invoked against legislation in the course of litigation. This is a true revolution in France because, up until now, no individual was allowed to invoke the jurisdiction of the Conseil constitutionnel,5 nor were they authorized to invoke a constitutional principle in litigation, as this would have been asking ordinary judges to assess a piece of legislation against the Constitution, a task which exclusively belongs to the Conseil constitutionnel.6 Constitutional rights and liberties will now (as is further discussed below) play a key part in ordinary litigation.

Predicting the Loss of Constitutional Rights and Civil Liberties in the Name of National Security

The purpose of the study is to explore the relationship between the increased need for national security standards and the negative impact on constitutional rights and civil liberties of U.S. citizens. Balance of Power Theory and Balance of Threat Theory as well as the LAMP technique were employed to develop a method for studying the relationship and for deriving results. Through the Lockwood Analytical Method for Prediction (LAMP) technique, the study determines likely futures based on three scenarios: the U.S. faces a massive terrorist attack, the U.S. faces numerous small-scale attacks, and the U.S. faces no terrorist attack. After developing permutations for all three scenarios, the likely alternate futures support the notion that the U.S. courts, U.S. population, and U.S. national security community would not prevent alterations to current laws and Acts granting citizens constitutional rights and civil liberties if the threat of attack was imminent. The study concludes by supporting the hypothesis that national security standards will impinge on constitutional rights and civil liberties.