Lawmakers in Tennessee have passed a Livestock Cruelty Protection Act and sent it on to the state’s governor, Bill Haslam, to sign or veto. The measure is similar to laws in at least nine states.

Haslam asked state attorney general Robert Cooper for an opinion on the act’s constitutionality, and Cooper’s 10-page report raises some broad issues.

The law would compel anyone shooting video of alleged animal cruelty to give a copy of it to law enforcement within 48 hours, or face a misdemeanor charge and a possible fine.

Supporters of Tennessee’s proposed law say it will help officials fight against animal cruelty; protect public safety; and aide investigators as they try to determine when the incidents happened—and if video released by organizations or news gatherers is outdated or edited.

The bill passed by a 50-43 margin in the state House, and a 22-9 margin in the state Senate.

Opponents have labeled it an “Ag-Gag” law and an attempt to curb the activities of animal rights groups (who are undertaking prolonged investigations) and advance the interests of livestock owners. Celebrity Carrie Underwood is among the opponents of the law.

Attorney General Cooper’s opinion from Thursday was that the bill is “constitutionally suspect” on at least three grounds. In addition, Cooper has fears that the law could violate a person’s Fifth Amendment right to protection against self-incrimination.

One of the three grounds listed by Cooper has broad implications: “[The] reporting requirement could be found to constitute an unconstitutional burden on news gathering.”

Cooper points out that the First Amendment protects against burdens on news gathering and “while this principle has been recognized primarily in the context of the press, it has also been acknowledged that the concept of news gathering is very broad and can encompass a wide scope of activity outside what is recognized as the traditional press.”

Supporters of the bills say the crux of their argument is that the law should protect a right to privacy.

While journalists have a right to shoot video, they also are restricted by state laws as to where they can record, especially in areas where the public doesn’t normally have access.

Related Link: Learn more about privacy and consent laws

“At the end of the day it’s about personal property rights or the individual right to privacy,” said Bill Meierling, a spokesman for the American Legislative Exchange Council, in a statement to the Huffington Post. “You wouldn’t want me coming into your home with a hidden camera.”

Others argue that act poses First Amendment problems for journalists, assuming they’ve obtained video under the consent and privacy laws in their states.

“The First Amendment protects an independent press because the Founders understood that freedom of the press is a logical extension of the basic freedom of speech and is vital to keeping government power in check,” said Knoxville News Sentinel editor Jack McElroy in an April editorial.

“Freedom of the press means anyone can be ‘the press.’ In this era of websites, blogs and tweets, there are no practical barriers to self-publication, either,” says McElroy.

And in a USA Today editorial, Ken Paulson from the First Amendment Center wonders how Upton Sinclair, the famous muckraking journalist who covered the meat packing industry in his novel The Jungle, would deal with the laws.

But he also makes an important point about state laws already on the books that should protect livestock owners from unwanted intrusions by photographers.

“State laws bar trespassing, so farm owners already have a means to keep activists off the premises. And if any videos are used to actually libel a business—meaning that the video is untrue or significantly misleading—there are other recourses in the courts,” he says.

However, whether citizen journalists understand state privacy and consent laws is another matter.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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Ernesto Miranda arrest photo, 1963.

Currently, there is a big debate about the Miranda warning and Boston terror suspect Dzhokhar Tsarnaev. Federal investigators said after Tsarnaev’s detention that he wouldn’t be read his Miranda rights under something called the “public safety exemption.”

Under the exemption, police can interrogate a suspect without advising him or her of Miranda rights if they believe the suspect could have information about an imminent threat to public safety.

That exemption allowed investigators to interrogate Tsarnaev while in custody, without informing Tsarnaev of his rights to a lawyer and his right to stay silent.

According to an AP report, after 16 hours of questioning, a representative of the United States Attorney’s office read Tsarnaev his Miranda warning, and the suspect stopped talking to investigators.

Related Story: Constitution Check: Are there limits on questioning a bombing suspect?

The “Miranda” in the Miranda warning was Ernesto Miranda. He was arrested in March 1963 in Phoenix and confessed while in police custody to kidnapping and rape charges. His lawyers sought to overturn his conviction after they learned during a cross-examination that Miranda wasn’t told he had the right to a lawyer and had the right to remain silent. (Miranda had signed a confession that acknowledged that he understood his legal rights.)

The Supreme Court overturned Miranda’s conviction in 1966 in its ruling for Miranda v. Arizona, which established guidelines for how detained suspects are informed of their constitutional rights.

The Miranda warning actually includes elements of the Fifth Amendment (protection against self-incrimination), the Sixth Amendment (a right to counsel) and the 14th Amendment (application of the ruling to all 50 states).

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First, there isn’t one official Miranda warning that is read to a suspect by a police officer. Each state determines how their law enforcement officers issue the warning. The Supreme Court requires that person is told about their right to silence, their right to a lawyer (including a public defender), their ability to waive their Miranda rights, and that what they tell investigators under questioning, after their detention, can be used in court.

The Miranda warning is only used by law enforcement when a person is in police custody (and usually under arrest) and about to be questioned. Anything you say to an investigator or police officer before you’re taken into custody—and read your Miranda rights—can be used in a court of law, which includes interviews where a person is free to leave the premises and conversations at the scene of an alleged crime.

In fact, Ernesto Miranda came into a Phoenix police station voluntarily to answer questions in 1963 and also took place in a police lineup.

The police can ask you questions about identification, including your name and address, without a Miranda warning. And they can use any spontaneous expressions made by you as evidence—for example, if you say something without the prompting of police before you’re taken into custody.

Of course, you’re still protected by your Miranda rights—after you’re detained—even if you waive them after an arrest. At any time, during an interrogation, you can stop answering questions and ask for a lawyer.

In the case of Dzhokhar Tsarnaev, investigators probably felt they had enough evidence to charge him and win a case in court without any of the information Tsarnaev volunteered before he was read his rights.

As for Ernesto Miranda, though his original conviction was set aside by the Supreme Court ruling, he was retried and convicted, and was in jail until 1972–then in and out of jail several more times until 1976. After being released in 1976, he was fatally stabbed during a bar fight. His suspected killer was read his Miranda rights and didn’t answer questions from police. There was never a conviction in Miranda’s death.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

It’s not news that The Daily Show is criticizing Fox News, but this week one segment took a distinctly constitutional turn.

In the segment, titled “Weak Constitution,” Stewart criticizes Fox News analysts for some of their reactions to the handling of Boston bombing suspect Dzhokhar Tsarnaev.

Many were upset about the idea of Tsarnaev being read his Miranda rights (a Fifth Amendment issue Constitution Daily explored here and here), and some, including Sean Hannity and Ann Coulter, wanted him to be treated as an enemy combatant instead of in a civil court (which would concern the Sixth Amendment, which guarantees the right to a fair, speedy trial). Fox contributors Eric Bolling and Brian Kilmeade also suggested wiretapping Muslim mosques.

Stewart poked fun at Fox News for “jettison[ing] constitutional amendments like Han Solo dumping his cargo at the first sign of an Imperial cruiser.” Except, of course, when it comes to the Second Amendment, of which Hannity said, “No ambiguity here.”

What do you think of Stewart’s criticism? Whatever your view, the segment offers an entertaining reflection on how we turn to the Constitution for answers to today’s toughest questions–but we often disagree on which side it supports.

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Senator Richard Durbin, an Obama supporter (on issues other than drones), chaired the subcommittee hearing on Tuesday.

Durbin was openly disappointed that the Obama administration didn’t send a witness to talk about the secretive program.

“I do want to note for the record, my disappointment that the administration declined to provide a witness to testify at today’s hearings. I hope that in future hearings we’ll have an opportunity to work with the administration more closely,” he said.

Durbin also said he hoped the administration understood its newfound technological killing power “is still grounded in words written more than 200 years ago.”

Related Link: Read the complete testimonies

Political opponents Ted Cruz and Al Franken agreed with Durbin that the scope of the executive branch’s power was under question.

The administration says it has the power to undertake the drone tactics per a 2001 congressional resolution in the wake of the 9/11 attacks.

The Subcommittee on the Constitution, Civil Rights and Human Rights has released the official testimony of the six witnesses, which show a cross-section of concerns and justifications about the program. here’s a brief look at what they said.

General James Cartwright

The retired general, a former vice chairman of the Joint Chiefs of Staff, explained that drones are cheap, at an average cost of $4 million to $5 million, compared with a conventional jet fighter, at $150 million. They are also cheap to fly and have advanced optics.

“[They’re] not hard to see why military operations are significantly improved by this technology. Drones offer many advantages over other conventional forces in counterterrorism,” he said.

“Legitimate questions remain about the use, authorities, and oversight of armed drone activities outside an area of declared hostility,” he acknowledged. “While I believe based on my experience all parties involved in this activity have acted in the best interests of the country, as with other new technologies, adaptation of policy and law tends to lag implementation of the capability.”

Farea Al-Muslimi

Al-Muslimi, a Yemini activist who was partly educated in the United States,  told the committee how drone attacks hurt the reputation of the United States in his country.

“Just six days ago, my village was struck by a drone, in an attack that terrified thousands of simple poor farmers. The drone strike and its impact tore my heart much as the tragic bombings in Boston last week tore your hearts and also mine,” he said.

Al-Muslimi said the drone attacks, especially those that killed innocent civilians, made his job as an advocate for America in Yemen “almost impossible.”

“Even when drone strikes target and kill the right people, it is at the expense of creating the many strategic problems I have discussed today,” he added.

Al-Muslimi also believes the United States should compensate the families of civilians killed or injured in the attacks.

Peter Bergen

The former CNN national security analyst is now at New America Foundation, a Washington think tank on security issues.

He testified that based on his foundation’s estimates, between 2,003 and 3,321 people were killed by drone strikes in Pakistan between 2004 and April 2013, with most of the fatal attacks undertaken by the Obama administration.

Many of those attacks, he said, were on low-level militants. There were differing estimates for civilian casualties.

Bergen also said much of the information about drones is out in public after years of questions.

“As of early 2013, the drone campaign was no longer Washington’s worst kept secret; it was, for all intents and purposes, out in the open. This new openness is a good thing. As U.S. Supreme Court Justice Louis Brandeis observed a century ago, ‘Sunlight is the best disinfectant.’”

Rosa Brooks

A Georgetown professor and senior fellow at the New America Foundation, Brooks said the United States needs to address legal and procedural issues.

“I believe that the president and Congress can and should take action to place U.S. targeted killing policy on firmer legal ground,” she said.

“In particular, we need to address the rule of law implications of U.S. targeted killing policy. Every individual detained, targeted, and killed by the U.S. government may well deserve his fate. But when a government claims for itself the unreviewable power to kill anyone, anywhere on earth, at any time, based on secret criteria and secret information discussed in a secret process by largely unnamed individuals, it undermines the rule of law.”

Colonel Martha McSally

Retired Air Force Colonel Martha McSally served for 22 years and is familiar with the tactics involved in drone attacks.

McSally said the use of drones can help due process in some ways: “You actually have the lawyers sitting side by side with you” as a drone remains in position, unlike conventional aircraft. “You can wait until the moment you have positive identification and all the criteria have been met,” she said.

“For targeted strikes of fleeting targets in low air defense threat environments, an RPA [remotely piloted aircraft] is the best platform to choose to ensure precision, persistence, flexibility, and minimize civilian casualties,” she said.

McSally also quoted Air Force Lieutenant General David Deptula, the first general responsible for overseeing drones, about the advantages of using the aircraft.

“Adversary falsehoods regarding inaccuracy and collateral damage divert attention from the fact that the massive intentional damage, intentional killing of civilians, and intentional violations of international law are being conducted by Al Qaeda and the Taliban–not U.S. ‘drones,” said Deptula, in a passage used by McSally in her remarks.

Ilya Somin

The law professor from George Mason University said that “serious constitutional and other problems arise if the U.S. government fails to take proper care to ensure that the use of drones is strictly limited to legitimate terrorist targets.”

Somin doesn’t have an issue with the Obama administration targeting senior terrorist leaders who are American citizens.

“Given the existence of a state of war, I believe that the Obama administration was correct to conclude in its recently released white paper that it is legal for the government to target U.S. citizens who are ‘senior operational leader[s] of al Qa’ida or an associated force,’” he said.

Somin said the “procedural safeguards” need to be established.

“What we can hope to achieve is an oversight system that greatly diminishes the risk of serious abuse: targeted killings that are undertaken recklessly or worse still–for the deliberate purpose of eliminating people who do not pose any genuine threat, but are merely attacked because they are critics of the government, or otherwise attracted the wrath of policymakers.”

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1. Miranda warnings

At the forefront is the debate about the living suspect, Dzhokhar Tsarnaev, and his Fifth Amendment right to receive a Miranda warning before questioning from federal investigators.

Constitution Daily contributor Lyle Denniston put the debate in context with his analysis for us today.

“From all that officials involved in the investigation in Boston have said, it may well be that they have such overwhelming evidence to support prosecution that they have little need to get Tsarnaev to confess and can focus, instead, on finding out what he may know–if anything–about other threats or accomplices,” Denniston says.

Related Story: Constitution Check: Are there limits on questioning a bombing suspect?

The investigators are using something known as the public safety exemption to avoid, at least at the moment, reading Tsarnaev his constitutional rights in the form of a Miranda warning.

Tsarnaev was reportedly conversing with investigators in writing, since his injuries allegedly prevent him from speaking.

The Miranda debate was heated over the weekend, given that Tsarnaev is a naturalized citizen.

2. The death penalty

Another issue that came up almost immediately after Tsarnaev’s capture was if he would be eligible for the death penalty if federal prosecutors decide to seek it in the case.

Massachusetts doesn’t have the death penalty, but Tsarnaev will be tried in a federal court.

In a statement, the Justice Department said Tsarnaev will be charged with use of a weapon of mass destruction and malicious destruction of property resulting in death. The department said the death penalty is one option on the table.

In reality, the Tsarnaev case could be years away from a trial, so the death penalty debate will probably take a back seat as more facts are revealed about the case.

3. Unregistered guns

There were also reports on Monday that Tsarnaev and his brother, Tamerlan, were using unregistered guns in their fatal assault on an MIT police officer and other law enforcement members.

The brothers reportedly had a stockpile of ammunition and exchanged hundreds of rounds of fire with police officers.

Massachusetts already has one of the strictest sets of gun laws in the country—in fact, the Brady Campaign ranks the state as the fourth-strictest when it comes to gun laws in America.

4. Immigration

The Tsarnaev brothers’ immigration status is crossing over into the debate about immigration currently in Congress.

Iowa Senator Chuck Grassley is arguing the Boston Marathon case will bolster the argument for immigration reform, while Senator Marco Rubio says the incident has no bearing on the immigration debate.

Dzhokhar Tsaraev became a U.S. citizen last year. But Tamerlan Tsaraev’s citizenship, as reported in The New York Times, was delayed when Homeland Security investigators found out he had been interviewed by the FBI in 2011 at the request of the Russian government.

5. Privacy

The issue of privacy has come up in several facets of the investigation. The suspects were identified through federal and local investigators examining extensive video and still-image footage obtained from private security cameras.

Law enforcement also used thermal-imaging technology from a helicopter to see Dzhokhar Tsarnaev inside a boat parked in a driveway.

The issue of using thermal imaging devices has been before the Supreme Court in relation to drug cases, and the court has found that it is a Fourth Amendment violation to look inside a home without a warrant using a thermal-imaging device.

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The statements at issue:

“The police can interrogate a suspect without offering him the benefit of Miranda [warnings] if he could have information that’s of urgent concern for public safety. That may or may not be the case with Dzhokhar Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario.”

– Emily Bazelon, a columnist for Slate.com, in an article on April 19, “Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?” 

“[As of Saturday night] Authorities have not read him his Miranda rights, which include the right to remain silent and the right to an attorney. Federal law enforcement officials said they plan to use a public safety exception, outlined in a 1984 Supreme Court decision, ‘in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.’”

– Washington Post story on April 21, by reporters Joel Achenbach and Robert Barnes, “Authorities seek answers in Boston Marathon bombing.”

We checked the Constitution, and…

Some three decades ago, the Supreme Court for the first time gave police and federal agents the authority to avoid giving criminal suspects Miranda warnings about their constitutional rights, when the public safety justified that suspension. That authority, given in the 1984 decision of New York v. Quarles, has since been expanded by lower courts so that, even if a suspect has claimed the right to remain silent or the right to a lawyer, the questioning can go on if the public safety threat remains.

How long such questioning can continue, and what kinds of questions can be asked, is now the source of considerable uncertainty, as officials have developed interrogation policies they think are necessary in dealing with terrorist incidents. But one thing does remain certain: the Constitution still requires that the police not use outright coercion in order to get answers even to the most pressing questions. If authorities want to use the evidence that they gain by such questioning, that evidence must have been given voluntarily.

In the case of the 19-year-old suspected of bombing the Boston Marathon and other crimes after that, Dzhokhar Tsarnaev, there is no doubt that he has some protection under the Constitution’s Fifth Amendment against being forced to implicate himself. He is a U.S. citizen, so he has the legal shield of the Constitution. (On April 2, we discussed the rights during terrorism investigations of suspects who are not U.S. citizens; those rights may differ.)

The night that Tsarnaev was captured in Watertown, Massachusetts, the chief U.S. prosecutor, Carmen Ortiz, told the news media that the suspect would not be given Miranda warnings immediately when questioning began, and she cited the “public safety exception.”

Last year, in a bulletin to law enforcement officers across the nation, the FBI cautioned that this exception applied only to questions “directed at neutralizing an imminent threat.” It added that “once the questions turn from those designed to resolve the concern for safety to questions designed solely to elicit incriminating statements, the questioning falls outside the scope of the exception and within the traditional rules of Miranda.”

Related Story: Constitution Check: Why would a terrorism suspect be given Miranda warnings?

However, under the terms of a 2010 Justice Department legal memo (criticized by Slate.com’s Emily Bazelon in her column), questioning of a terrorism suspect who has not been told of his rights may also continue even beyond concerns for the moment, in order to potentially get significant intelligence information “not related to any immediate threat.” The memo cautions that the officers conducting the interrogation should get approval from their superiors to go further into intelligence-gathering.

None of these issues that are specifically related to terrorism investigations have yet reached the Supreme Court, so federal agents and police use this added authority without knowing what the legal risks are.

There is some risk that, if the public safety exception and the 2010 Justice Department memo are pressed too far by officers in the field, they could put in jeopardy their chances of using at later trials the evidence of crime that has been gathered. The calculation thus has to be made whether to run that risk. That involves a balancing of the needs of trial prosecutors with the needs of finding out about potential future threats.

What investigators are generally expected to understand is that the whole purpose of the Miranda warnings–which are mandated by the Supreme Court’s decision in the 1966 case  Miranda v. Arizona–is to make sure that any incriminating evidence that results from questioning is available for use at trial, and the warnings are designed to help assure that whatever the suspect has said that gets him into trouble was said voluntarily.

If the threat of terrorism rises to the level that intelligence is more important than criminal evidence, then official policy, as outlined in the 2010 Justice Department memo, for example, will give it a higher priority.

That, however, is a judgment call that has to be made one case at a time, as in the case of the Boston bombing suspect. From all that officials involved in the investigation in Boston have said, it may well be that they have such overwhelming evidence to support prosecution that they have little need to get Tsarnaev to confess and can focus, instead, on finding out what he may know–if anything–about other threats or accomplices.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Amanda Knox leaves prison. Source: Wikimedia Commons.

One person who thinks so is attorney Joey Jackson, who told HLN today that Knox wouldn’t serve time twice for same crime, even if the trial is in Italy, because it would be very problematic for the U.S. to honor an extradition request from Italy for Knox. The former exchange student left Italy immediately after her 2011 acquittal.

“We have principles that are well-founded within our Constitution, one of which is double jeopardy,” Jackson said. “So as a result of that, I think it would be highly objectionable for the United States to surrender someone to another country for which justice has already been administered and meted out. So I don’t think or anticipate that that would happen.”

To be clear, the Double Jeopardy Clause of the Fifth Amendment protects people in the United States from being tried twice for the same crime.

Italy doesn’t have a ban on double jeopardy in its legal system, and Tuesday’s decision reopens the acquittal of Knox and Raffaele Sollecito in the 2007 murder of Knox’s roommate, Meredith Kercher. The acquittal came in an appeals court in 2011, after a 2009 conviction.

Knox would benefit from the language of the extradition treaty between the U.S. and Italy.

In 2010, the Congressional Research Service said in a report that “most modern extradition treaties also identify various classes of offenses for which extradition may or must be denied” and that double jeopardy was usually on the list of provisions.

“Although the U.S. Constitution’s prohibition against successive prosecutions for the same offense does not extend to prosecutions by different sovereigns, it is common for extradition treaties to contain clauses proscribing extradition when the transferee would face double punishment and/or double jeopardy (also known as non bis in idem),” the report said.

The most recent extradition treaty between the United States and Italy is from the Reagan era. Within the treaty language is a clause about double jeopardy.

“Article 6 provides that extradition shall be denied when the person sought has been in jeopardy in the requested State for the same offense,” the document says.

But would Knox, in the opinion of the Italian legal expert, really face a second trial in the case, if she and Sollecito are back in court?

USA Today spoke with Giorgio Spangher, the head of the law school at Rome’s Sapienza University, who said that technically, the Italian court annulled Knox’s not guilty verdict, which was won in appeals court, and that Knox would be retried in the same appeals court.

Spangher said the Knox couldn’t be forced to return to Italy for another trial, but if she were found guilty in absentia, the Italian government could ask the U.S. for Knox’s extradition.

That extradition process would need to go through the Department of State and the Justice Department, via diplomatic channels. Italy could also ask for Knox’s arrest if it considers her a flight risk.

Knox, 25, is currently a college student at the University in Washington, and spent four years in jail in Italy during her initial trial and conviction.

Her attorneys said on Tuesday that it was doubtful that Knox would leave the Seattle area to go to Italy.

“No matter what happens, my family and I will face this continuing legal battle as we always have, confident in the truth and with our heads held high in the face of wrongful accusations and unreasonable adversity,” she said in a statement.

The publicity over the Knox case isn’t expected to slow down. Her version of the case in book form, Waiting to Be Heard, is coming out in April from HarperCollins.

Knox is also the subject of an exclusive interview with ABC’s Diane Sawyer to be aired on April 30.

Her latest trial in Italy, if it does happen, wouldn’t start until 2014.

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The statements at issue:

“The Senate has the power to restrain the executive branch–and my filibuster was the beginning of the fight to restore a healthy balance of powers. The president still needs to definitively say that the United States will not kill American non-combatants. The Constitution’s Fifth Amendment applies to all Americans; there are no exceptions. … I hope my efforts help spur a national debate about the limits of executive power.”

 – Senator Rand Paul, Kentucky Republican, in an opinion article in the Washington Post on March 10, discussing his goals in a nearly 13-hour speaking marathon March 6 and 7 on the Senate floor over the Obama administration’s policy on lethal drone strikes.

“Dear Senator Paul: It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.”

– Attorney General Eric H. Holder, Jr., in a letter on the morning of March 7.

“The president has not and would not use drone strikes against American citizens on American soil. On the broader question, the legal authorities that exist to use lethal force are bound by and constrained by the law and the Constitution. The issue here isn’t the technology. The method does not change the law. … Whether the lethal force in question is a drone strike or a gun shot, the law and the Constitution apply in the same way.”

– White House Press Secretary Jay Carney, in his daily briefing for news reporters on the afternoon of March 7.

We checked the Constitution, and…

On August 17, 1787, at the Constitution Convention, the delegates were debating a draft of the founding document that would have given Congress the power “to make war.” At a critical point, according to James Madison’s notes, he and Elbridge Gerry “moved to insert ‘declare,’ striking out ‘make’ war, leaving to the executive the power to repel sudden attacks.” Moments later, that motion passed, 7 to 2.

The sentiment seemed to be that speed in mounting a response was essential if America were to be suddenly attacked, and Congress would be too slow.  So war powers were split, with Congress gaining the authority to commit the nation to a war against another nation, and the president holding the authority to act speedily in response to an invasion.

It is no surprise, then, that presidents ever since have assumed emergency powers in the face of a grave, immediate threat to national security. Abraham Lincoln, Franklin Roosevelt, Harry Truman, George H.W. Bush, George W. Bush, and Barack Obama–all have provided examples.

But, from time to time, that authority has been challenged, as Senator Paul did at length last week, because of the perceived need to restore some constitutional balance to war-making.

The constitutional reality is that White House Press Secretary Carney was right, in saying that the particular technology used to respond to a major threat does not change what is legally allowed or not. But the question for today’s policymakers is just what does the Constitution allow and, when it comes to the policy on the use of “weaponized drones,” the policymakers seem very far from consensus.

Much of the debate in Washington in recent weeks over the use of drones to kill individuals believed to be plotting terrorist acts against the U.S. has been focused on targeting of American citizens overseas. But Senator Paul, and the small, bipartisan group of senators who supported his filibuster, sought to shift the focus drones inside the U.S.

It is not absolutely clear that these senators actually expected the government to use such deadly devices against Americans on American soil, especially if they were not immediately plotting acts of terrorism. But bringing the issue to the homeland had a way of crystallizing the overall debate.

The filibuster put a very visible focus upon the constitutional notion of “due process,” and whether that guarantee under the Fifth Amendment will operate as a restraint upon the executive branch’s profoundly controversial decision to kill an identified individual–especially a U.S citizen–without even bringing criminal charges, let alone getting a guilty verdict and a court-imposed sentence of death.

Complicating the debate, of course, is that the administration claims that those who are actively preparing to attack the U.S. homeland are, legally, like enemy soldiers in a combat zone, and–under the accepted laws of war–they may be killed without legal process. Does that same logic apply to a suspected terrorist, an American, plotting terrorism inside the U.S.?

Although Senator Paul spent much of his debate focusing on possible drone strikes against “American non-combatants,” the hard question is whether drones could be used constitutionally inside this country when the targeted American was, in fact, suspected of being a plotting terrorist.

The attorney general answered the question, though, as Senator Paul asked it–that is, whether a drone would be used against an American “not engaged in combat on American soil.” That, of course, was a question to which a “no” answer was easy and obvious.

The White House press secretary, while citing the attorney general’s letter, actually went further, and declared without qualification that “the president has not and would not use drone strikes against American citizens on American soil.” And, in elaborating on that theme, Carney seemed to be saying that this is what the law and the Constitution require.

These exchanges, though, very likely are only the beginning, not the conclusion, of the debate over constitutional limits on drone strikes. It may be, as time and the debate go on, that there will emerge more clarity. If so, that is the kind of constitutional discussion that can enrich public discourse.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Private drones. Source: Creative Commons

Under limited circumstances, the FAA has approved the use, starting in 2015, of drones owned and operated by citizens. Some will be used for commercial purposes; others will used for recreational purposes.

The FAA Modernization and Reform Act of 2012 was approved by Congress and the president. It tasks the Federal Aviation Administration with setting policies for the commercial drone business by September 2015.

The act is mostly focused on air safety issues, but the implications of drones, with photo and infrared cameras, flying over personal air spaces is fraught with privacy issues.

Then there are the implications for commercial drones, news gathering and the First Amendment. Television stations spend millions of dollars on helicopters, which can show live video from a distance. Drones are the fraction of a helicopter’s cost, but they can’t fly as high as a helicopter under normal circumstances.

So what happens if a drone is hovering over your house as journalists gather news? Or what if it is drone owned by a police department? Or a news entertainment show like TMZ?

The Congressional Research Service prepared a detailed analysis of these conflicting issues in January 2013, and its conclusions were that until the civilian drones are tested and in service, the legal problems probably won’t be resolved.

“The legal issues discussed in this report will likely remain unresolved until the civilian use of drones becomes more widespread,” the Congressional Research Service said. “Once these regulations are tested and promulgated, the unique legal challenges that could arise based on the operational differences between drones and already ubiquitous fixed-wing aircraft and helicopters may come into sharper focus.”

In the end, the FAA will be the first government agency to set commercial drones use policies, under its powers to regulate national airspace. Congress will also get involved, at some point.

One immediate issue is the definition of a commercial drone, compared with a “model aircraft.” The operator of a commercial drone needs a special test certificate from the FAA to operate its flying vehicle. Larger models can’t fly near airports and over schools and churches.

Private, noncommercial drones are considered as recreational models.

The Congressional Research Service says smaller drones are exempt from FAA rules that apply to larger recreational drones.

“This prohibition [from FAA rules] applies if the model aircraft is less than 55 pounds, does not interfere with any manned aircraft, and is flown in accordance with a community-based set of safety guidelines,” says the report.

The novelty of commercial and recreation drones poses other legal issues. One Supreme Court case that set standards for ownership rights for the airspace over your house dates back in 1946.

In United States v. Causby, the Supreme Court dealt with a case where low-flying military planes flew over a chicken farm, causing chaos among the birds that resulted in damage to the property owner (i.e., lots of dead chickens).

Modern drones are silent (their noise won’t kill chickens), but they will most likely fly at lower altitudes, potentially putting them airspace that the courts may consider to be the controlled by the owner of the property below it.

Privacy concerns are even more problematic. As any journalist can tell you, the press has a right to photograph or videotape what can be seen from a public location, with some exceptions.

But what point in its flight is a drone above the airspace controlled by a homeowner? And can a drone operator use a thermal imaging camera to video record your house?

The Congressional Research Service rattles off other privacy scenarios: Can homeowners harm a drone if they deem it to be a trespassing threat? What about stalkers, Peeping Toms and wire tappers? Some drones can record sounds from 100 yards away from a source.

Part of the solution to these problems could come from Congress, which can pass laws to better define drone etiquette.

A lot depends on testing and recommendations that needs to come from the FAA in the next three years.

So far, the FAA is selecting six unmanned aircraft systems (UAS) test sites as mandated by Congress. The sites will function as test drone airports, with the purpose of figuring out how to safely manage flights.

But smaller, commercial drones are already being used for various purposes. A recent story from NBC News outlined how operators are widely using drones to capture video and images, by literally flying under the FAA’s radar.

One photographer interviewed by NBC said he has shot 60 hours of high-quality video using a 48-inch-sized drone, with no FAA issues.

Balancing the safety and privacy concerns over commercial and private drones is the useful news of drones for many purposes. They can help farmers manage their lands, realtors sell property, and they can be used to fight fires.

One estimate puts the global value of the commercial and private drone industry at $90 billion in the next 10 years, which will also create jobs.

The FAA also estimates that 10,000 commercial drones could be in use after September 2015, if the various problems are worked out with air traffic controls, licensing and logistics.

The legal matters could take much longer to resolve when it comes to privacy and other Constitutional issues. So you may need to encounter a drone flying over your backyard to claim damages and prove a legal point.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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Did President Obama, in his ABC interview, endorse a Constitutional right to same-sex marriage? Constitutional expert Lyle Denniston looks at four ways the president could endorse the legal right of same-sex couples to enter civil marriage that could be created and apply to all states – if he chose to do so.

The statement at issue:

“I think same-sex couples should be able to get married….I have to tell you that part of my hesitation on this has…been I didn’t want to nationalize the issue….I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

– President Obama, in an interview May 9 with ABC-TV News correspondent Robin Roberts.  The full transcript of the interview, on same-sex marriage and other topics, can be read here.

We checked the Constitution, and…

As a starting point, nothing in the Constitution – as now written and as presently understood – deals with the issue of same-sex marriage. Whether it should, of course, is now in active dispute in the courts.   It might be argued that, because no power is given to the national government to deal with gay marriage, that it is an issue left to the states.  But that does not settle whether it might, someday, be given a national character, as interracial marriage has been since the Supreme Court’s Loving v. Virginia decision in 1967.

There are four ways that a legal right of same-sex couples to enter civil marriage could be created and apply to all states – two methods under the Constitution, and two by act of Congress.  President Obama, if taken at his word, has not endorsed any one of the four.

Previous Analysis On This Topic

Constitution Check: Do gay couples now have a constitutional right to get married?
After New York: where same-sex marriage is headed
Is the Defense of Marriage Act constitutional?

On close examination of the president’s entire interview with ABC-TV, it probably is only fair to conclude that he personally favors giving a legal right to homosexuals and lesbians to marry but that he believes (for now, at least) that it should come by action in the state legislatures.  He did not say that explicitly, and he did seem to want it to be available nationwide, but he discussed the issue so often in terms of state vs. national choice that his meaning appeared to be quite clear.

If same-sex marriage were to become a national right for gay couples, here are the four possible routes and explanations of why the president should not be understood to have endorsed any of them:

First, the most definitive route: a constitutional amendment, perhaps worded this way: “The right to enter civil marriage shall be equal and shall not be infringed on account of gender, notwithstanding any laws to the contrary.”

The president’s repeated reference to marriage as a matter for state action and his opposition to those who support a constitutional amendment to ban gay marriage across the country probably indicates that his views would have to “evolve’ further before he would embrace this route.

Second, equally effective as an amendment though probably more controversial: a decision by the Supreme Court striking down a state law that banned same-sex marriage, with the decision based either on the concept of “equal protection of the laws” or “due process” – both guaranteed in the Fourteenth Amendment.

The president was asked explicitly in the interview whether he would ask the Justice Department “to join in the litigation in fighting states that are banning same-sex marriage.”  He did not answer the question directly, instead pointing out that the Justice Department, at his prompting, has argued against the constitutionality of the 1966 federal Defense of Marriage Act (or DOMA).  He said he agreed that the Act’s definition of marriage as between a man and a woman only (Section 3 of the Act) violates the right to “equal protection.”

But a decision in the courts to strike down DOMA would come under the Fifth Amendment Due Process Clause (interpreted to guarantee equal legal protection) and not under the 14th Amendment, and would not necessarily mean that a state ban – like California’s Proposition 8 – would have to fall.  And 10th Amendment considerations would enter in that analysis.

Moreover, the Obama Administration, even while challenging DOMA’s ban, has taken no part in the court fight over Proposition 8, and it has clearly had the option to do so.  It still could, if that case moved on to the Supreme Court, but nothing the president said hinted at such a role.

Third, and not likely to occur any time soon, a law passed by Congress to declare that marriage is a “privilege or immunity” of national citizenship, and may not be denied by any state law.  Based upon the Constitution’s Supremacy Clause in Article VI and Congress’s power to enforce the 14th Amendment under that Amendment’s Section 5, such a measure would encounter stiff opposition under the 10th Amendment, and might not survive such a challenge.

The president said nothing to suggest that he would favor nationalization of civil marriage as a way to make it available to gay couples in all states.

Finally, and also not likely to occur any time soon, an act of Congress to declare that, under the power granted by Article IV’s Full Faith and Credit Clause, every state is required to accept the legality of every same-sex marriage performed in any state that allowed it.  (Congress used that power to achieve the opposite result when it declared, in the Defense of Marriage Act’s Section 2, that no state would have to respect gay marriages performed in other states.)

Again the president said nothing to suggest that he would support this legislative approach, either.  If he is not now actually opposed to national legislation on marriage, he certainly has yet to embrace it.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.