Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: Starting from classical negative liberty, this paper shows how a civil regime of private property under liberty must assure to each individual the opportunity to provide a socially decent standard of living through work as measured by current societal norms. The paper then shows how contemporary economic and social policies of the United States, expending more than $1 trillion annually, relate to and logicaly grow out of this concept of liberty.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: How different are the 50 state declarations of rights and liberties? This paper introduces both a newly constructed database and a unique method to search, track, and analyze constitutional innovation in historical state constitutions. The State Civil Liberties Database (SCLD) contains the complete and exhaustive historical record for all state declarations of rights and liberties for the years 1776-2008. The digital catalogue therefore contains every version of the document, as well as, any and all changes (amendment, revision, or repeal). While there are multiple ways of harvesting this database, the MPSA paper introduces a unique tool for dealing with this complexity: computational forensic linguistics. Since the Spring of 2008, the SCLD was utilized in beta testing to develop a unique software program specifically tailored for the analysis of legal documents. This software technology, originally designed to detect student plagiarism, allows researches to search for the germination of specific language, compare the degree of similarity between states (on the clause, sentence, or document level), trace adaptations over time, and produce a metric for regional variability at any time period.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: Abstract: This paper discusses the rights afforded American citizens, particularly minority citizens and alien residents during times of war, national emergency and international crises. Specifically, I address the following questions: what restrictions on civil liberties are necessary to preserve domestic peace? How does a nation at war balance domestic safety with the principles of freedom, justice and democracy?
To answer these questions, this paper engages in the pragmatic legal analysis of two cases- one historical, the other contemporary. The first explores the internment of Japanese American citizens following the bombing of Pearl Harbor Naval Base in Hawaii, December 1941, and the United States Supreme Court decisions that resulted from citizen challenges to internment. The second analysis examines the detention of American citizens (and foreign nationals) at the United States Naval base in Guantanamo Bay, Cuba and the Supreme Court cases that have addressed this contemporary example of government sanctioned imprisonment of political dissidents based solely upon executive mandate. By considering these cases together, and subjecting their legacies to pragmatic legal analysis, this paper sheds light on the historical trajectory of civil rights and liberties in times of war and terror.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: In several recent Supreme Court cases Justice Clarence Thomas has sought to link his interpretation of church-state relations to the Court’s states’ rights interpretation of federalism. Briefly, Justice Thomas argues that the 1st amendment Establishment Clause should be interpreted as a federalism provision that allows states and local communities to determine how religion and politics interact at the subnational level.

Justice Thomas’s argument is not new, however, and has been articulated by many constitutional scholars over the past 30 years. In this paper I detail the intellectual development of this argument and show how Justice Thomas’s view of religious liberty is an extension of the high court’s decade-long focus on federalism in general. Using current federalism scholarship that focuses on the structure and constituencies of American federalism, I assess “establishment clause federalism” in the context of the structure and constituencies of religious liberty in the United States. Using interest group litigation strategies, public opinion polls, and national and subnational responses to religious liberty issues, I argue that the main constituents of religious liberty doctrine tend to use and prefer federal courts, congress, and federal agencies to resolve disputes over religious liberty instead of local and state institutions. Thus, I argue that establishment clause federalism has no supporting constituency outside of the Supreme Court and a select group of legal scholars, and is unlikely to cause a significant shift in church-state relations.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: The theory of moral sentiment that emerges from Hume’s Treatise addresses a dilemma of human action that is manifest most potently in politics. The moral enthusiasm that frequently animates principled political action is a powerful engine of human agency, and its forcefulness in this regard was for Hume quite sinister. He worried about the destabilizing effects of moral enthusiasm in politics and wanted very much to moderate political agency. Paradoxically, however, Hume’s reflections in the History tell a different story. As an historical matter, Hume shows, it was not only predictability and moderation but the frenzied zeal of religiously inspired revolutionaries that was key to establishing political liberty in England. The sense of purpose that animated their action involved a reference to higher authority and an aspiration to ends more noble than common sentiments. Yet the aspirational dimensions of agency are compromised by the moral theory offered in Hume’s Treatise, which shows the sources of our ostensibly lofty ideals to be all too human. If our principles of moral and political right ultimately are reducible to nothing more noble than common sentiments, how inspirational can these principles be? Can they animate great acts of courage and sacrifice? The fact that Hume grounds moral action in sentiments is good for political moderation, then, but it may also undercut the sense of higher purpose that can be a valuable engine of political action, including the civil resistance that Hume himself regarded as having been instrumental to the establishment of political liberty in England.