Bench Memos

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Tall Tales at Slate


In a commentary at Slate, Erwin Chemerinsky damages the reputation of Duke law school (and, gulp, the political science department there too) by coming out in defense of Judge Taylors risible ruling on NSA surveillance.  Enough has appeared by others here at NRO (see here, here, and here) that readers dont need me to add fuel to the bonfire of inanities that is all thats left of Taylors opinion.  But is it too much to ask a legal commentator to state the view he opposes without resorting to fiction?  Here are just two whole-cloth inventions by Chemerinsky:


  • The president’s claim of executive authority to ignore the Fourth Amendment and violate federal laws in the name of protecting national security has no apparent limits.
  • [N]o administration in memory, and perhaps none ever in American history, has so frequently claimed that it can ignore the Constitution, as well as federal statutes and ratified treaties, to pursue important goals.


These would alarming things indeed, if the administration had made arguments remotely resembling these descriptions.  As Chemerinsky ought to know perfectly well, its arguments have been about what the Constitution means, requires, and forbids, and ditto for relevant federal statutes and treaties.  When Professor Chemerinsky can learn not to deceive his readers about what is argued by those who disagree with him, he will deserve a substantive rebuttal.

Tags: Franck


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