Balkinization
an unanticipated consequence of
Jack M. Balkin
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu
Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Recent Posts
Definition of "Audacity"
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Monday, December 19, 2005
Definition of "Audacity"
Marty Lederman
Noun: Bold or insolent heedlessness of restraints, as of those imposed by prudence, propriety, or convention.
As I explain below, the Administration's principal justification for its stark violation of FISA is the claim that Congress authorized the surveillance in question -- the circumvention of FISA's finely wrought scheme -- when, on September 18, 2004, it enacted the AUMF authorizing the President to take "necessary and appropriate force" against those reponsible for the 9/11 attacks. I suggested that this didn't pass the laugh test -- that it is simply inconceviable that any member of Congress, let alone a majority, intended by voting for the AUMF to allow circumvention of the FISA-court approval mechanism as to the wiretapping of communications involving U.S. persons. (If the AUMF had authorized such interceptions, why did the Administration seek and receive amendments to FISA in the PATRIOT Act? Why, in 2003, did the Justice Department draft further amendments to FISA -- including to section 1802 in particular -- without mentioned the surgery that had been performed by the AUMF, and why in that draft is the "U.S. person" limitation accurately described as if it had not been amended?)
But the Attorney General's press conference today makes it clear that that's their story, and they're sticking to it. The odd thing, of course, is that the Administration specifically went to Congress with a package of statutory authorities -- many related to wiretaps and surveillance -- that it thought were necessary to fight the battle against Al Qaeda. It was called the PATRIOT Act. Therefore, it's understandable that two reporters at today's conference asked the AG why they didn't simply ask Congress for a simple amendment to FISA, if this eavesdropping authority was as critical as the Administration now claims.
First, Gonzales is asked why, if this authority is so important, they didn't just "address that issue and fix it," i.e., through statutory amendment, rather than taking the "backdoor approach" [of pretending that it had already been authorized]. Here's his response:
"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."
Did you catch that? It's a two-part answer: (1) Congress has authorized the circumvention of FISA (in the AUMF); and (ii) We didn't ask Congress for an amendment to FISA because we were informed they would have denied it.
And then there's this exchange, in which the answers are inverted (1. We couldn't have gotten congressional authorization; 2. In any event, we got congressional authorization):
Q If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?
ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.
The interesting question now, of course, is whether Congress will permit itself to be treated with such contempt.
Posted
2:59 PM
by Marty Lederman [link]
Comments:
Marty,
I agree that the Administration's arguments here are pretty weak, though not novel (the inherent powers argument has found support, bafflingly to my mind, for quite some time).
But I find it funny that people who don't mind finding all kinds of liberal goodies in the Constitution, which never did and never would get there by any Democratic process, think those are worth fighting tooth and nail for. On the other hand, when John Yoo finds what Lincoln found there, he's "lawless."
Actually, he is, as was Lincoln's suspension of the writ, as was Roe, as was Roper. I'm against ALL the lawlessness. Who knows, maybe Bush's playfulness with written laws will make textualists of all the purposivists out there...there is, after all, a reason to write things down and to insist that words have meanings that can be understood: the rule of law.
T.
I agree that the Administration's arguments here are pretty weak, though not novel (the inherent powers argument has found support, bafflingly to my mind, for quite some time).
But I find it funny that people who don't mind finding all kinds of liberal goodies in the Constitution, which never did and never would get there by any Democratic process, think those are worth fighting tooth and nail for. On the other hand, when John Yoo finds what Lincoln found there, he's "lawless."
Actually, he is, as was Lincoln's suspension of the writ, as was Roe, as was Roper. I'm against ALL the lawlessness. Who knows, maybe Bush's playfulness with written laws will make textualists of all the purposivists out there...there is, after all, a reason to write things down and to insist that words have meanings that can be understood: the rule of law.
T.
The AUMF argument only makes sense in relation to the (far stronger) Article II claim. We need to take a step back and think here: does the administration have the right to intercept messages from an organization we have declared war on to residents of the US without judicial oversite? If we were talking about Goebbels sending letters to German immigrants i imagine it would pass the laugh test. Its the wiretapping that is freaking us out. If it was a letter or morse code or smoke signals no-one would think twice about the governments ability to intercept it when its transmitted from an overseas combatant.
Actually, Mark, your points are fair as to the substance of things. But law is not just about results. I'm not so bothered by wiretaps--I think the internet and Visa have pretty much eliminated privacy, a right we tend to fetishize in modernity anyway. So I might be perfectly comfortable with giving this power to the executive.
What I am not comfortable with is the prospect of a lawless executive claiming to be the sole interpreter of its own unwritten inherent powers. This surveillance program, if it is necessary for our security, could be accomplished legislatively, and I would not be bothered.
What I am not comfortable with is the prospect of a lawless executive claiming to be the sole interpreter of its own unwritten inherent powers. This surveillance program, if it is necessary for our security, could be accomplished legislatively, and I would not be bothered.
The best discussion of Lincoln's constitutional thought I've seen is "Lincoln's Constitution," by Daniel Farber. My impression from that book is that Lincoln was a good deal more respectful of constitutional and Congressional authority than Bush/Gonzales are. Far from overriding settled law when it was inconvenient, Lincoln acknowledged that ultimately Congressional authority was required for constitutionally controversial emergency actions.
My other impression is that the Civil War was a far more existential threat to the United States than the current perma-yellow-alert emergency is.
As to Goebbels and German immigrants: if there had been settled law against wiretaps of this sort, that should have been serious back then too. I seem to recall other actions against Americans of foreign extraction back then that most Americans are ashamed of today.
My other impression is that the Civil War was a far more existential threat to the United States than the current perma-yellow-alert emergency is.
As to Goebbels and German immigrants: if there had been settled law against wiretaps of this sort, that should have been serious back then too. I seem to recall other actions against Americans of foreign extraction back then that most Americans are ashamed of today.
"What I am not comfortable with is the prospect of a lawless executive claiming to be the sole interpreter of its own unwritten inherent powers."
If that were truly the case he would hardly be briefing Congressional leaders. Assumedly there was aquessance in their silence.
This is where the AUMF has an impact. We arent talking simply about a president eavesdropping on offshore groups he personally deems dangerous to the US (although he certainly has that discretion if they arent communicating with anyone on US soil). Gonzalez rightly (if ineptly) points out that this organization is a specific enemy, specifically declared an enemy by Congress.
I pointed to this example on VC: if during a 'conventional' war, an enemy submarine was comminicating with a commando team already on US soil, would the administration require a warrant intercept? Or would that not clearly fall under his Article II purview? So obviously there is a line here, the question becomes where is it drawn? In in that context the AUMF is certainly germaine.
If that were truly the case he would hardly be briefing Congressional leaders. Assumedly there was aquessance in their silence.
This is where the AUMF has an impact. We arent talking simply about a president eavesdropping on offshore groups he personally deems dangerous to the US (although he certainly has that discretion if they arent communicating with anyone on US soil). Gonzalez rightly (if ineptly) points out that this organization is a specific enemy, specifically declared an enemy by Congress.
I pointed to this example on VC: if during a 'conventional' war, an enemy submarine was comminicating with a commando team already on US soil, would the administration require a warrant intercept? Or would that not clearly fall under his Article II purview? So obviously there is a line here, the question becomes where is it drawn? In in that context the AUMF is certainly germaine.
Assumedly there was aquessance in their silence.
Briefings aren't acquiescence. Say I bind and gag you and then 'brief' you that I'm about to rob your house. Later I tell the court "he didn't object." I guess you'd be pulling your chin saying "hmm, guy's got a point."
I think opposition party congressmen and women can't just run around blabbing about whatever they hear at an intelligence briefing. All they can do -- the few who even hear about the program, that is -- is object directly to the administration. Jay Rockefeller wrote a letter to Cheney doing just that, expressing strong reservations that were anything but acquiescence.
Briefings aren't acquiescence. Say I bind and gag you and then 'brief' you that I'm about to rob your house. Later I tell the court "he didn't object." I guess you'd be pulling your chin saying "hmm, guy's got a point."
I think opposition party congressmen and women can't just run around blabbing about whatever they hear at an intelligence briefing. All they can do -- the few who even hear about the program, that is -- is object directly to the administration. Jay Rockefeller wrote a letter to Cheney doing just that, expressing strong reservations that were anything but acquiescence.
I pointed to this example on VC: if during a 'conventional' war, an enemy submarine was comminicating with a commando team already on US soil, would the administration require a warrant intercept? Or would that not clearly fall under his Article II purview? So obviously there is a line here, the question becomes where is it drawn? In in that context the AUMF is certainly germaine.
But of course, the FISA already provides for this exigency. There is no need to make an end-run around the statute. The administration can wiretap such communications immediately, subject to obtaining a warrant from the FISC within 72 hours.
But of course, the FISA already provides for this exigency. There is no need to make an end-run around the statute. The administration can wiretap such communications immediately, subject to obtaining a warrant from the FISC within 72 hours.
Briefings aren't acquiescence. Say I bind and gag you and then 'brief' you that I'm about to rob your house. Later I tell the court "he didn't object." I guess you'd be pulling your chin saying "hmm, guy's got a point."
The representatives were far from bound and gagged. They definitely had other means of investigation and oversite by means of the Intelligence committees. Those venues are already within a classified realm and can discuss such issues. If they then deemed the presidents activities as illegal, they then could tell him so and take further action as neccessary. Which include court actions if deemed appropriate.
Rockefeller's single letter is far from performing his due diligence in this. He most certainly could have brought this up in committee and forced the issue if he chose to.
And note, other Senators, of both parties, made similar statements and still did nothing. They all should be given a portion of the blame for failure to do anything beyond the most meager of protests.
The representatives were far from bound and gagged. They definitely had other means of investigation and oversite by means of the Intelligence committees. Those venues are already within a classified realm and can discuss such issues. If they then deemed the presidents activities as illegal, they then could tell him so and take further action as neccessary. Which include court actions if deemed appropriate.
Rockefeller's single letter is far from performing his due diligence in this. He most certainly could have brought this up in committee and forced the issue if he chose to.
And note, other Senators, of both parties, made similar statements and still did nothing. They all should be given a portion of the blame for failure to do anything beyond the most meager of protests.
They definitely had other means of investigation and oversite by means of the Intelligence committees.
Yeah, right. Bush has said it was "shameful" to reveal the existence of this unapproved, illegal program. The Senate and the House are both run by party-line partisans who have to shamed (and what an iffy proposition that was) into keeping their own promise to follow up on the pre-war politicization of intelligence. Oops, make that 'promising to keep their own promise.'
You know that you'd be supporting Bush and the Republicans to the hilt if Rockefeller had come out saying anything he was sworn not to.
There wasn't oversight, there was the arm-twisted appearance of oversight. And you know it.
Yeah, right. Bush has said it was "shameful" to reveal the existence of this unapproved, illegal program. The Senate and the House are both run by party-line partisans who have to shamed (and what an iffy proposition that was) into keeping their own promise to follow up on the pre-war politicization of intelligence. Oops, make that 'promising to keep their own promise.'
You know that you'd be supporting Bush and the Republicans to the hilt if Rockefeller had come out saying anything he was sworn not to.
There wasn't oversight, there was the arm-twisted appearance of oversight. And you know it.
From a speech by George W. Bush on April 20, 2004, more than two years after the illegal wiretapping of Americans commenced on his personal say so:
Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
Thanks to Carol Watson for the heads up.
Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
Thanks to Carol Watson for the heads up.
Good point, whig. Pres. Bush also made the same claim last fall during one of the presidential debates. He claimed, in response to a question during the "undecided voters" debate, that all wiretaps required a warrant, knowing as he said so that he had repeatedly authorized warrantless wiretaps. That's called lying.
That speech is interesting too, inasmuch as Bush repeatedly states, "When the President speaks, he better mean it."
I certainly have a problem with the president having carte blanche authority to surveil American's in search of foreign intelligence, but it seems that there is in fact some legal basis this view.
It seems that there are actually quite a few federal cases that say that the President has the "inherent authority" to wiretap without a warrant in order to gain foreign intelligence. In particular, there seems to be a 2002 case, In Re Sealed Case 310 F.3d 717, which explicitly states this. I this case, the Foreign Intelligence Surveillance Court of Review determined that the President had “inherent authority to conduct warrantless searches to obtain foreign intelligence information,” and that so long as the only real use of a FISA warrant is to be later able to use that information in a criminal prosecution. This authority apparently comes from the President’s role as Commander-in-Chief. and therefore Congress had no power to restrict this authority through FISA or any other means short of proposing a Constitutional Amendment.
I am more than willing to have someone tell me that I am wrong here, in fact, I wish someone would, but it seems to me that this was within the law.
It seems that there are actually quite a few federal cases that say that the President has the "inherent authority" to wiretap without a warrant in order to gain foreign intelligence. In particular, there seems to be a 2002 case, In Re Sealed Case 310 F.3d 717, which explicitly states this. I this case, the Foreign Intelligence Surveillance Court of Review determined that the President had “inherent authority to conduct warrantless searches to obtain foreign intelligence information,” and that so long as the only real use of a FISA warrant is to be later able to use that information in a criminal prosecution. This authority apparently comes from the President’s role as Commander-in-Chief. and therefore Congress had no power to restrict this authority through FISA or any other means short of proposing a Constitutional Amendment.
I am more than willing to have someone tell me that I am wrong here, in fact, I wish someone would, but it seems to me that this was within the law.
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Books by Balkinization Bloggers
Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
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Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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