Amendments 4-10

Criminal Justice & Federalism

Topics


4th Amendment: Searches and Seizures, Privacy

See also Terrorism Policy; Digital Economy

Bloomberg's X-ray. NYC develops gun detectors to conduct secret warrantless searches. America's 1st Freedom. May 2012.

Cert. grant in Millender v. LA: Qualified immunity for an unconstitutional general warrant to seize firearms? Volokh Conspiracy. July 20, 2011.

Accounting for Privacy Lost. Bill would infringe on accountant-client privilege. Mar. 7, 2003. With Frank Zaveral.

Kopel discusses facial recognition at Harvard Law School. RealPlayer webcast. Apr. 20, 2002. You need the Real player. (Kopel speaks about 40 minutes after the program begins, following Marc Rotenberg of EPIC and former L.A. District Attorney Gil Garcetti. After the four panelist speak, there is a half-hour question and answer session with the audience.)

Face the Facts: Facial recognition technology's troubled past -- and troubling future. Reason. Oct. 2002. With Mike Krause. Reprinted in in James D. Toor, ed. Homeland Security. At Issue (Greenhaven Pr., 2004).

The Prohibitionist’s Burden.Congress has repealed the Fourth Amendment for everyone on a ship. National Review Online. July 14, 2001. With Mike Krause. Coast Guard and the drug war. In italiano.

Back at Ya, Strom. Rebutting Sen. Thurmond on the Fugitive Protection Act. National Review Online. Oct. 20, 2000.

Sneaking In the Secret Search. No person's liberty is safe in the last week of Congress. National Review Online. Oct. 10, 2000.

No Firearms Exception to the Fourth Amendment. From the "Cultural Revolutions" sections of Chroniclesmagazine. August 2000, pp. 7-8.

Kopel testifies to Congress against increased wiretapping. House Subcommittee on Crime, July 13, 2000.

Unanimous Supreme Court rules: No "firearms exception" to the Fourth Amendment. Read the amicus brief filed by the Independence Institute and the National Rifle Association, in one of the strongest Fourth Amendment victories before the Supreme Court in years! The html version of the brief also contains links to the full text of the Supreme Court decision, and to Legal Timesarticles about the case which quote Dave Kopel.

Colorado Supreme Court Paved Way for Mena Killing. Denver Post. With Ari Armstrong.

Drug Testing: Shaky Science May Nullify Good Intentions. Independence Institute Issue Paper. 1990.

Red Meat Encryption. Decoding the FBI's Carnivore Program. National Review Online. Aug. 23, 2000. With Tim Daneliuk.

When You Call, Who is Listening? Communications Assistance to Law Enforcement Act (CALEA)--the law that the FBI is trying to turn into a tool for warrantless surveillance of the American people. Cato Institute.

Starr Chamber.Kenneth Starr's alleged unethical actions have direct parallels in actions implemented by White House or the Clinton Department of Justice. National Review.May 4, 1998.

Government Eavesdropping Via E-Mail.Rocky Mountain News. July 4, 1994. With Duane Thompson.

It's an Assault on Our Privacy. Drug testing. Colorado Statesman, Sept. 15. 1989.

blog: Drive a Hybrid, Get Pulled Over by the Virginia Police,11/4/05.


5th Amendment: Due Process, Forfeiture, Self-Incrimination

Joel Esquenzi and Carlos Rodriguez v. United States of America. Washington Legal Foundation and the Independence Institute amicus brief in support of petitioners. United States Court of Appeals for the Eleventh Circuit. Sept. 11, 2014.

Asset Forfeiture Reform is Overdue.Issue Backgrounder. Apr. 18, 2002.Discusses Colorado and Denver confiscation laws.

Virtue in Equivocation. Happy Guy Fawkes Day. National Review Online. Nov. 5, 2001.

Redefining Justice. Houston journalist Vanessa Leggett is jailed by the FBI. National Review Online. Aug. 27, 2001.

One Trigger-Happy Attorney. Prosecution of dance clubs in New Orleans. National Review Online. April 30 , 2001. With Glenn Harlan Reynolds.

Forfeiture Laws Harm Crime Victims. May 17, 2000. By Jerry Kopel.

Denver Property Confiscation Law May Meet its Match.By Jerry Kopel.

The Intelligent Man's Guide to Lying Under Oath . A discussion of Bill Clinton, the persecution of Catholics in 17th century England, the Treatise of Equivocation , and jury independence. Liberty. March 1999.

Denver's Property Confiscation Ordinances: Good Targets for HB 1305. Independence Institute Issue Backgrounder. 1999-N. Feb. 10, 1999.

Just Say Nothing. What to do if you are questioned about a victimless crime. 1998.

The Dangers of Driving Through Denver. Property confiscation. August 5, 1998.

blog: Easier Forfeiture of Property: The New Federal Rules of Civil Procedure, 3/23/06.


6th Amendment: Jury Rights, Right to Counsel

All sides support jury rights idea. Dailies say 'conservative groups' behind concept, but ranks of supporters diverse. Rocky Mountain News/Denver Post. Oct. 11, 2003.

The Rules. John Ashcroft’s John Walker Lindh comments were inappropriate. National Review Online. Feb. 19, 2002.

Miranda's Not the Problem. Police deception does more harm to law enforcement. National Review Online. June 28, 2000.

I, The Jury. Book review of Jury Nullification: The Evolution of a Doctrine, by Clay S. Conrad. The American Enterprise, May/June 1999.

Fully Informed Juries.


8th Amendment. Death Penalty, Right to Bail

Press conference against proposition 102. Initiative to eliminate alternatives to bail bonds. Sept. 20, 2010.

Photo illustrating story clouds issue. Brown cloud not the result of CO2 emissions. Rocky Mountain News/Denver Post, Oct. 6, 2007. Plus more global warming coverage, the Coors-Miller merger, the Udall-Schaffer race, and public opinion on the death penalty.

blog: Tookie Williams and Clemency, 11/28/05.

Nobel Peace Prize Nominees, 11/29/05.

Anniversary of Rosenberg Execution, 6/19/04.


10th Amendment: Federalism

Amicus brief in support of petitions for a writ of certiorari from the Supreme Court in Pleau v. United States and Chafee v. United States. Sept. 2012.

Does the Supremacy Clause mean that the federal government always wins? Volokh.com. Oct. 2, 2012. About the Pleau brief.

Hiding Behind State's Rights. Anti-gunners are hiding behind the false claim that right-to-carry reciprocity violates states' rights.  America's 1st Freedom. Mar. 2012.

Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate. 121 Yale Law Journal Online 267 (2011). With Gary Lawson. HTML. PDF.

Affordable Care Act pushes limits of constitutionality. Explains the four major Obamacare cases currently before the federal Circuit Courts of Appeal. Solutions (Colorado news site on health care issues.) June 21, 2011.

Republican presidential candidates pledge to appoint judges to overturn the unconstitutional anti-abortion law they will sign. Candidates pledge to appoint judges who will adhere to the original meaning of the Constitution, but they promise to sign a federal law using the "interstate commerce" power to control what doctors tell abortion patients. Volokh Conspiracy. June 18, 2011.

Health Laws of Every Description”: John Marshall’s Ruling on a Federal Health Care Law. 12 Engage (no. 1, June 2011): 49-54. With Robert G. Natelson.

Health insurance is not 'commerce'. A single erroneous Supreme Court precedent from 1944, South-Eastern Underwriters, should be overturned. National Law Journal. March 28, 2011. With Rob Natelson.

Cert. Grant in 10th Amendment Case. Bond v. United States. Volokh.com. October 12, 2010.

DOMA case and the Tenth Amendment. Volokh.com. July 9, 2010.

The Push for States' Rights. KUER public radio, Salt Lake City. Apr. 7, 2010. Hour-long program. Kopel appears beginning at 12:54.

Interview with Colorado Attorney General John Suthers. About Colorado's participation in the suit against Obamacare. 23 minutes. Mar. 30, 2010. MP3.

NPR on Alito and Machine Guns: The November 11, 2005, edition of NPR's "All Things Considered" features a segment on Judge Alito's decision in Rybar, in which Alito followed the Supreme Court's Lopezprecedent to write that a federal ban on machine gun possession was not a valid exercise of the federal power to regulate interstate commerce. Guests on the program were Eugene Volokh, Kristin Rand of the Violence Policy Center, Erwin Chemerinsky of Duke Law School, and Kopel.

blog: Other Federal Appellate Judges on Machine Guns, 11/1/05.

Feel Like Dancing?Beware of Tom Daschle. Daschle's omnibus crime bill attacks RAVEs and dance parties by classifying them as "crack houses." National Review Online. Jan. 30, 2003. With Glenn Reynolds.

Wasted. Can’t the DEA or Congress find a better way to use the DEA’s resources? Medical marijuana raids in California. National Review Online, Nov. 19, 2001. With Mike Krause.

Redefining Justice. Houston journalist Vanessa Leggett is jailed by the FBI.National Review Online. Aug. 27, 2001. With Paul H. Blackman.

The Brady Bill Comes Due: The PrintzCase and State Autonomy. 9 George Mason University Civil Rights Law Journal189 (1999).

Sex and the Interstate Commerce Clause. Why the Fourth Circuit Court of Appeals was right to declare the federal Violence Against Women Act unconstitutional. Cato Institute. March 13, 1999. With Glenn Harlan Reynolds.

The Expanding Federal Police Power. Chapter in the 2001 Cato Handbook for Congress. PDF format.

Taking Federalism Seriously: Lopez and the Partial Birth Abortion Ban Act. 30 Connecticut Law Review 59 (1997). With Glenn H. Reynolds.

blog: Roberts on the Interstate Commerce Power, 9/16/05.


Colorado and local laws

Spriggs is Sprung: New U.S. Attorney is Bad News. April 4, 2001.

Refining Colorado's Criminal Code. Lengthy Issue Paper on fixing Colorado's criminal code to remove unconstitutional or oppressive provisions.

Attorney General's Office Doesn't Control Violent Crime.Denver Post, Oct. 9, 1994.


Federal Legislation

Joel Esquenzi and Carlos Rodriguez v. United States of America. Washington Legal Foundation and the Independence Institute amicus brief in support of petitioners. United States Court of Appeals for the Eleventh Circuit. Sept. 11, 2014.

Unfair and Unconstitutional: The New Federal Gun Control and Juvenile Crime Proposals. By Dave Kopel and James Winchester. Covers the heavily-discussed issues from 1999's Senate Bill 254 (gun shows, juvenile gun possession) and many unknown provisions (including wiretapping expansion, forfeiture expansion, and others).

The Hill's Hidden Crime Agenda. Post-Columbine legislation. June 15, 1999.

Gun Control Bill Defeated For Wrong Reasons.By William Ruefle and J. Mitchell Miller.

Dave Kopel's April 1997 testimony before the Senate Judiciary Committee on Criminal Street Gangs. Includes material about gun control, RICO, bullet-resistant vests, conspiracy statues, federalization of criminal law, and more.

Victims' Rights Amendment is All Wrong.By David Kopel and Elisabeth Semel.

The Crime Bill's Defeat Helped the Constitution. Aug. 1994. Flaws in the Clinton crime bill.

On the Firing Line: Clinton's Crime Bill. Heritage Lecture no. 476, delivered by Dave Kopel at the Heritage Foundation, Washington, D.C., Sept. 1993.


Drug Policy

See also: Fourth Amendment; Sentencing

Does any government have the legitimate power to ban medical marijuana? Volokh.com. Dec. 10, 2012.

Reducing the Drug War's Damage to Government Budgets. 35 Harvard Journal of Law & Public Policy 543 (2012). With Trevor Burrus.

Mexico, drug prohibition, and gun control. Gun Rights Policy Conference. St. Louis. Sept. 27, 2009. 8 minutes. YouTube.

News out of joint on marijuana. Slang misuse, failure to check assertions hurts its coverage. Rocky Mountain News/Denver Post,Nov. 4, 2006.

The Drug War on Human Rights and Civil Liberties. Occasional Paper # 8 from the Liberal Institute of the Friederich Naumann Foundation in Potsdam, Germany. English full text. Synopsis, in German. Summary and e-mail link for full-text German print order. September 2004 Symposium and pictures, in German.

"A Foreign Policy Disaster," in The New Prohibition: Voices of Dissent Challenge the Drug War(Accurate Press, 2004). With Mike Krause.

Feel Like Dancing?Beware of Tom Daschle. National Review Online. Jan. 30, 2003. With Glenn Reynolds. Daschle's omnibus crime bill attacks RAVEs and dance parties by classifying them as "crack houses."

"Smash-up Policing: When Law Enforcement Goes Military” in Busted: Stone Cowboys, Narco-Lords and Washington's War on Drugs(New York: Thunder’s Mouth Press/Nation Books, 2002). Mike Bray, editor.

Meth lab video fearmongering. TV program pits neighbors against each other in government's crackdown on illicit drug factories. Rocky Mountain News/Denver Post, June 2, 2002.

Losing the War on Terrorism in Peru. The U.S. government has undermined the war on terrorism in Peru. National Review Online, Mar. 22, 2001. With Mike Krause.

Rumors: Quash one, fuel one. While debunking Harry Potter author's Satanist 'quotes,' News promotes drug's 'role' in deaths. Rocky Mountain News/Denver Post, Dec. 2, 2001.

Wasted. Can’t the DEA or Congress find a better way to use the DEA’s resources? Medical marijuana raids in California. National Review Online, Nov. 19, 2001. With Mike Krause.

License to Kill.The (drug) war on civilians in Peru. National Review Online. Aug. 16, 2001. With Mike Krause.

Out of Colombia. The drug-certification mandate and the international drug war are making America more like Colombia.National Review Online. Apr. 12, 2001. With Mike Krause.

One Trigger-Happy Attorney. Prosecution of dance clubs in New Orleans. National Review Online. April 30 , 2001. With Glenn Harlan Reynolds.

Make Policy, Not War. Confusing drug policy with “war” is dangerous. National Review Online. Feb. 21, 2001.

Colorado Supreme Court Paved Way for Mena Killing. Denver Post. With Ari Armstrong.

Militarized Law Enforcement: The Drug War's Deadly Fruit. Chapter by Kopel in the Cato Institute book After Prohibition: An Adult Approach to Drug Policies in the 21st Century , edited by Timothy Lynch (November, 2000).

Dave Kopel spoke at the Cato Institute's forum, "After Prohibition: An Adult Approach to Drug Policies in the 21st Century." You can watch a RealVideo of Kopel's presentation on how the Drug War has led to the militarization of law enforcement, and to the deaths of many innocent people who do not use drugs.

Extreme Drug Law Tramples Bill of Rights. Flaws Seen in Uniform Controlled Substances Act.Independence Institute Issue Paper. 1992.

Marijuana Jail Terms: Costly and Hasty. Independence Institute Issue Paper. 1991.

Drug Testing: Shaky Science May Nullify Good Intentions.Independence Institute Issue Paper. 1990. Street Junkies are the Real Enemy.Phony drug war statistics. Colorado Statesman. May 18, 1990.

It's an Assault on Our Privacy. Drug testing. Colorado Statesman, Sept. 15. 1989.

War on Drugs versus War on Terrorists. 8/23/06.

Lawsuit over Denial of Federal Financial Aid to College Students with Drug Convictions, 3/20/06.

Dem. candidates' views on medical marijuana, 8/24/03.

RAVE Act & Feeney Amendment, 4/7/03.

DOJ abuse in California medical marijuana prosecution, 1/30/03

DARE program eliminated in its original host city, 5/13/02.


Police and Police Violence/Militarism

See also: Waco; Terrorism.

Moose Bull. The "D.C. Sniper" police chief's version of history in his book Three Weeks in October. National Review Online. Dec. 11, 2003. With Paul Blackman.

License to Kill.The (drug) war on civilians in Peru. National Review Online. Aug. 16, 2001. With Mike Krause.

Officer Politics. Recent police department scandals are a result of increased federal involvement and racial hiring practices. American Outlook. May/June 2001. By Dave Kopel and Mike Krause. Español.

Police Shootings Need More Scrutiny. Rocky Mountain News/Denver Post. July 29, 2001.

Militarized Law Enforcement: The Drug War's Deadly Fruit. Chapter by Kopel in the Cato Institute book After Prohibition: An Adult Approach to Drug Policies in the 21st Century, edited by Timothy Lynch (November, 2000).

Dave Kopel spoke at the Cato Institute's forum, "After Prohibition: An Adult Approach to Drug Policies in the 21st Century." You can watch a RealVideo of Kopel's presentation on how the Drug War has led to the militarization of law enforcement, and to the deaths of many innocent people who do not use drugs.

Smash-up Policing: When Law Enforcement Goes Military. National Review, print edition, May 22, 2000. Reprinted in Busted: Stone Cowboys, Narco-Lords and Washington's War on Drugs (New York: Thunder’s Mouth Press/Nation Books, 2002). Mike Bray, editor.

Dirty Cops and Wrongful Convictions. May 17, 2000. A Cato policy forum featuring Washington Police Chief Charles M. Ramsey, NYU Law Professor. Jerome Skolnick, and David B. Kopel. The Los Angeles Police Department is currently engulfed in the worst corruption scandal in its history. Police corruption scandals have also erupted in Chicago, Cleveland, and New York. This forum was a discussion about the extent of this problem-and what might be done about it. Kopel is the third of the three speakers. Watch a replay of the event on RealVideo.

Violent home invasions by police lead to imitation by criminals claiming to be police, 4/2/02.

Posse Comitatus

The Posse Comitatus Act: Venerable Safeguard—Or Old Hat? Cato Institute Policy Forum. Oct. 16, 2002. Dave Kopel, Stephen Halbrook, and Paul Schott Stevens. Moderated by Rep. Bob Barr. Available in RealVideo and RealAudio.

Bush's Terrible Idea (weakening Posse Comitatus Act), 9/28/05.

Biden's attack on Posse Comitatus, 7/22/02.


Sentencing, Mandatory Minimums

Prison Blues: How America's Foolish Sentencing Policies Endanger Public Safety. Cato Institute Policy Analysis. 1994.

Restore Flexibility to U.S. Sentences. National Law Journal op-ed by Senator Paul Simon and David Kopel. Dec. 1996.

Let's Repeal Mandatory Minimums. National Law Journal. 1993.

Marijuana Jail Terms: Costly and Hasty. Independence Institute Issue Paper. 1991.


Other Topics

You’ve Got Identity. Why a national ID is a bad idea. National Review Online. Feb. 6, 2002. With Linda Gorman. Español

ID Nation. The wrong way to go. National Review Online. Oct. 2, 2001. 

The Evolving Police Power: Some Observations for a New Century, with Glenn Harlan Reynolds. 27 Hastings Constitutional Law Quarterly 511 (2000). Analyzes recent state court decisions striking down anti-sodomy laws, and suggests that courts in the 21st century—like courts in the 19th century—may increasingly recognize that the police power is not infinite. Also available in Word format.

Make Crime Pay. National Review Online. Feb. 28, 2001. With Linda Gorman.

Violent Misinformation Campaign.Don't look to the government and the media to explain drops in violent crime. National Review Online. Sept. 15, 2000. With Drs. Paul Gallant & Joanne Eisen.

Fatherlessness: The Root Cause. National Review Online, May 2, 2000.

The Marriage-Crime Connection.The American Enterprise. June 1996.

Repressing Civil Liberties Isn't the Answer. To diffuse the militia movement, acknowledge increasing federal lawlessness. Los Angeles Times, May 1, 1995.

Crime: The Inner City Crisis. The crime disaster in urban America, and how politicians use gun control to evade the difficulties of addressing the causes of poverty, alienation, and hopelessness.

How States Aid Murderers, Junk Mailers. Pueblo Chieftain.Feb. 10, 1991.

Freedom: A Bargain at Any Price. The harms caused by constitutional freedoms--and the much greater benefits.

Notorious Cases

Ireland v. United Kingdom and the prosecution of Bush officials, 4/27/09.

The Case against Impeaching Rod Blagojevich, 1/28/09.

Abuse of Power. Jailing journalists, and the Vanessa Leggett case. National Review Online. Jan. 22, 2002. With Paul Blackman.

Redefining Justice. Houston journalist Vanessa Leggett is jailed by the FBI. National Review Online. Aug. 27, 2001.

Bigotry of Low Expectations. Andrea Yates case. National Review Online. Aug. 28, 2001.

New Trial for Andrea Yates, 11/9/05. 

Vanessa Leggett

Abuse of Power. Jailing journalists, and the Vanessa Leggett case. National Review Online. Jan. 22, 2002. With Paul Blackman.

Redefining Justice. Houston journalist Vanessa Leggett is jailed by the FBI. National Review Online. Aug. 27, 2001.

Elian Gonzalez Kidnapping

Is Miami another Waco? National Review Online. Apr. 26, 2000. With Paul Blackman.

Mr. President, You're No JFK. The Elian Gonzalez kidnapping. National Review Online. Apr. 24, 2000.

Let My People Go: Elián and the Exodus. National Review Online, Apr. 17, 2000.

Judiciary and Judges

Attempt to abolish legal privilege of confidentiality for penitential confessions, 1/10/03.

A Need for More Activism on the Bench. Rocky Mountain News. Aug. 11, 1997.

Blackmun's Justice: Retiring Jurist Followed Conscience Instead of Constitution. Rocky Mountain News. May 1, 1994.

A Tribute to Justice William Brennan. July 1990.

The Self-Defense Cases: How the United States Supreme Court Confronted a Hanging Judge in the Nineteenth Century and Taught Some Lessons for Jurisprudence in the Twenty-first. 27 American Journal of Criminal Law 293 (2000).

Hate Crimes

FBI hate-crime stats in Mayor Hickenlooper’s Denver. WhoSaidYouSaid.com, Nov. 1, 2010.

911 Is a Joke... or Is It? Let's Find Out. Tech Central Station. Jan. 5, 2005. With Paul Gallant & Joanne Eisen.

Hate Crime Laws: Dangerous and Divisive. Independence Institute Issue Paper no. 1-2003. Jan. 13, 2003. PDF version.

Other nations censor speech critical of homosexuality as "hate speech," 8/5/03.

Media goes all fuzzy on protest. Lack of specifics, perspective on figures used by Auraria students hurts coverage. Rocky Mountain News/Denver Post, March 13, 2004. Plus Nelson Rockefeller's divorce, dubious statistics about "hate crimes" against homosexuals, and attacks on George Bush's campaign advertisements.

 

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