Law & Society Blog

Suzanne Spaulding has written an excellent article in today’s Washington Post, discussing (among other things) the administration’s key legal arguments as to why the president was not bound by FISA in authorizing large scale domestic NSA surveillance. She finds:

That the AUMF of September 18, 2001 fails to provide the president with statutory authority to circumvent […]

This note proceeds from the assumptions that most, if not all, constitutional guarantees are, in fact, optimization principles as explained by Dworkin and Alexy; andthat balancing, while it may ultimately involve an existential, pre-rational commitment, can at least approximate a satisfactory level of discursive rationality.The case of MacWade v. Kelly may serve as an example of where the court weighed the intrusion imposed upon subway riders against the government interest in preventing a terrorist attack…. Any change that will result in a bundle of rights (P1/P2) below the indifference curve will almost always be unacceptable and therefore unconstitutional.For example, in my analysis of the subway case, I (somewhat charitably) assume a relatively high degree of privacy in the subway system and a low degree of safety.

In MacWade v. Kelly, the subway bag search case, the court found that the bag search program “is an effective measure to help deter and detect a terrorist attack against New York City’s subway system,” even though searches are pre-announced and anyone who doesn’t like to have their bag searched (a subset of passengers that […]