Scholarly Articles

Prayer and the Meaning of the Establishment Clause: A Debate on Greece v. Galloway, AKRON JOURNAL OF CONSTITUTIONAL LAW & POLICY (invited article)(2014).

Government Power, Rather Than Individual Autonomy, as the Focus of the Bill of Rights, LAW AND LIBERTY (invited feature article).

Aspirations as a Basis of Law: Competing Approaches, JOURNAL OF LAW & INTERDISCIPLINARY STUDIES (invited symposium article)

The Hard Look Doctrine and the Inherent Contradictions in Views About Judicial Review of Administrative Agencies, WASHBURN LAW REVIEW (invited symposium piece).

A Constitutional History of the 1889 South Dakota Constitution, SOUTH DAKOTA LAW REVIEW (invited article)(co-author).

The Growing Importance of State Constitutional Law in the U.S. Legal System, SOUTH DAKOTA LAW REVIEW (invited article)(lead article).

The Debates of the 1885 and 1889 South Dakota Constitutional Conventions, SOUTH DAKOTA LAW REVIEW (invited article)(co-author).

An Equal Protection View of the First Amendment, 28 QUINNIPIAC LAW REVIEW 787 (2010) (lead article).

Assessing the Constitutional Autonomy of Such Non-State Institutions as the Press and Acadamia, 2010 UTAH LAW REVIEW 141 (2010) (invited Symposium article).

Liberty Through Limits: The Bill of Rights as Limited Government Provisions, 62 SMU LAW REVIEW (1745)  2009.

Re-evaluating Media Regulation in a Media Environment of Nearly Unlimited Entertainment Programming and Ample Alternative Channels of Communication. 22 REGENT LAW REVIEW 347 (2010) (invited symposium articles).

The Internet and the Captive Audience Doctrine, 2007 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 1595 (2008) (invited symposium article) (listed as an SSRN Top-Ten downloaded article in relevant category) (reprinted in Online Child Protection (ICFAI Law Books) and in Internet Pornography – Legal Issues (Amicus Books)).

Diversity as a Compelling Interest for Racial Preferences in Higher Education, 35 PEPPERDINE LAW REVIEW 649 (2008) (invited symposium article).

The First Amendment and Non-Political Speech: Exploring a Constitutional Model That Focuses on the Existence of Alternative Channels of Communication, 72 MISSOURI LAW REVIEW 477 (2007).

Accommodating the Administrative State:  The Interrelationship Between the Chevron and Nondelegation Doctrines, 38 ARIZONA STATE LAW JOURNAL 921 (2007).

The Constitutional Relevance of the Employer-Sovereign Distinction: Examining the Due Process Rights of Government Employees in Light of Recent Developments in the Public Sector Speech Doctrine, 81 ST. JOHN’S LAW REVIEW 797 (2007), reprinted in Due Process-Legal Dynamics (Amicus Books, 2008).

The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities, 59 MERCER LAW REVIEW 595 (2008).

Coordinating the Exercise and Establishment Clauses: A Constitutional Test for Government Funding of Prisoner Rehabilitation Services by Non-secular Providers, 5 AVE MARIA LAW REVIEW 387 (2007) (invited symposium article) (reprinted in Prison Reforms: A Legal Perspective (Amicus Law Books)).

A Different Model for the Constitutional Right to Privacy:  The Political Question Doctrine as a Substitute for Substantive Due Process, 61 UNIV. OF MIAMI LAW REVIEW 169 (2006) (reprinted in Anita Allen, Privacy Law and Society (Thomson/West), and in Due Process of Law – An Overview (Amicus Books)).

Liberty From On High: The Growing Reliance on a Centralized Judiciary to Protect Individual Liberty, 95 KENTUCKY LAW JOURNAL 385 (2006) (listed in SSRN Top-Ten Downloaded articles).

The Unannounced Revolution: How the Court Has Indirectly Effected a Shift in the Separation of Powers, 57 ALABAMA LAW REVIEW 689 (2006).

Judicial Review and the Hard Look Doctrine, 7 NEVADA LAW REVIEW 151 (2007).

Where Speech Loses Its Lustre: Campaign Finance Laws and the Downgrading of Political Speech in Comparison with Indecent Speech, 12 NEXUS LAW JOURNAL 83 (2007) (invited symposium article).

The Constitutional Lynchpin of Liberty In an Age of New Federalism:  Replacing Substantive Due Process with the Right to Travel, 45 BRANDEIS LAW JOURNAL 469 (2006).

A Congressional Attempt to Alleviate the Uncertainty of the Court’s Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 CUMBERLAND LAW REVIEW 1 (2006).

A One-Sided Federalism Revolution: The Unaddressed Constitutional Compromise on Federalism and Individual Rights, 36 SETON HALL LAW REVIEW 851 (2006).

Conservatives of the 1960s, MODERN AGE: A QUARTERLY REVIEW (Winter, 2007) (listed and abstracted in INTERNATIONAL POLITICAL SCIENCE ABSTRACTS).

Federalism’s Battle with History: The Inaccurate Associations With Unpopular Politics, 74 UMKC LAW REVIEW 365 (2006).

Anonymous Sources, Libel Law and the First Amendment, 78 TEMPLE LAW REVIEW 579 (2005) (reprinted in Defamation (ICFAI Books)) (listed as an SSRN Top-Ten Downloaded article).

Law and Religion in Modern Culture, MODERN AGE: A QUARTERLY REVIEW (Summer 2005).

Religious Freedom Demands More Than Neutrality: The Constitutional Argument for Nonpreferential Aid to Religion, 57 FLORIDA LAW REVIEW 1 (2005) (lead article) (reprinted in Freedom of Religion and Secularism (ICFAI Law Books, forthcoming) (featured on University of Montana’s The Scholarship of the Original Understanding of the Constitution) (listed as an SSRN Top-Ten Downloaded article).

An Inequality Among Equals: Disparities in the Judicial Treatment of Free Speech and Religious Exercise Claims, 39 WAKE FOREST LAW REVIEW 361 (2004).

The Institutional Side of Religious Liberty: A New Model of the Establishment Clause, 2004 UTAH LAW REVIEW 1155 (Vol. 2004).

The Right to Reject: The First Amendment in a Media-Drenched Society, 42 SAN DIEGO LAW REVIEW 129 (2005).

The Distorted Uses of the First Amendment, 10 NEXUS LAW JOURNAL 83 (2005) (invited symposium article).

Confronting the Changed Circumstances of Free Speech in a Media Society, 33 CAPITAL UNIVERSITY LAW REVIEW 551 (2005).

The Next Step in the Diversity Rationale, 82 DENVER UNIVERSITY LAW REVIEW 1 (2005).

The Myth of Separation: Church-State Relations in the U.S., 33 HOFSTRA LAW REVIEW 475 (2005) (listed as an SSRN Top-Ten Downloaded article).

The Flip Side of the First Amendment: A Freedom to Filter, 2004 MICHIGAN STATE UNIV. LAW REVIEW 57 (2004).

The First Amendment in a Time of Media Proliferation, 65 UNIV. OF PITTSBURGH LAW REVIEW 183 (2004).

Defining Speech in an Information Age: The Case of First Amendment Protection for Video Games, 57 SOUTHERN METHODIST UNIV. LAW REVIEW 139 (2004).

Censorship by the Free-Speech Generation, NATIONAL FORUM (Spring 1995) (invited article)