Randy Barnett on interpretation vs. construction

Over at the Volokh Conspiracy, with application to Heller.

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Liberal vs. conservative wings of the Court

Prof. Bernstein has some interesting thoughts at Cato Online.

"The Heller dissent presents the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides.

Or perhaps it's not as remarkable as we've been led to think. Consider the Court's First Amendment decisions."

He points out that the "conservative wing" has been more respectful of freedom of expression, assembly, and religion than the "liberal wing," and the same with takings of property under the 5th Amendment.

"There are many ideological differences between the conservative and liberal justices on the Supreme Court. But a consistent, stronger liberal devotion to supporting individual rights and civil liberties against assertions of government power isn't one of them."

Via Instapundit....

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"Fractured decisions"

Happened today in Giles v. California. Scalia wrote for the Court except as to part D(2) of the decision, but only he signed the main opinion. Three Justices concurred in it entirely, and two more concurred as to all but D(2). Which means that while (D)(2) is in the main opinion, it didn't get five votes. Three dissents. The concurrences seem to be full concurrences -- i.e., "I agree with all Scalia said, but just want to add something." The other version is concur in the result -- i.e., "I agree that the decision below should be affirmed or reversed, but do not agree with the main opinion's reasoning. I have a different reason, or maybe a much narrower version of the the main opinion says.

Interesting, too, is the use of history. Souter and Ginsberg's concurrence argues that the result is just, and doesn't look to history: " Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying. Cf. Davis v. Washington, 547 U. S. 813, 833 (2006) .

It is this rationale for the limit on the forfeiture exception rather than a dispositive example from the historical record that persuades me that the Court’s conclusion is the right one in this case. The contrast between the Court’s and Justice Breyer’s careful examinations of the historical record tells me that the early cases on the exception were not calibrated finely enough to answer the narrow question here. The historical record as revealed by the exchange simply does not focus on what should be required for forfeiture when the crime charged occurred in an abusive relationship or was its culminating act; today’s understanding of domestic abuse had no apparent significance at the time of the Framing, and there is noearly example of the forfeiture rule operating in that circumstance."

Breyer's dissent (joined by Kennedy and Stevens) does invoke history, including British pre-1776 cases, American 19th century cases (" An 1856 Georgia case, relying on Lord Morley’s Case, held that a similar “examination should be read” if the witness “was detained by means or procurement of the prisoner.”"), and early 19th century textbooks. It'll be interesting to see how Stevens and Breyer treat history tommorrow.

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Background on interpretation

Just as a background to Armageddon... there are several schools of thought as to how you interpret a constiutional or statuory provision, and we may see them all in play tommorrow. Note that a judge may use one of them, or a mixture, or explain his/her position by saying it's justified under more than one. One approach you'll rarely see is "living constitution." It may be the underlying thought, but to come out and say it is a bit too obvious. Main approaches:

1) Textualism (a favorite of Scalia). The words mean what they say, and unless hopelessly muddled, there is no reason to study the writer's intent. After all, the legislature or the people voted on the words, not on the drafter's intent.

2) Original purpose/understanding (a favorite of Thomas, and well suited to combine with textualism). On a constitutional level this started out as original intent -- what did the constitutional convention, of the First Congress, intend to do? Given limited records, this can be difficult to judge, but we must do our best to carry out their intent. (As Gene Volokh points out, if you want to adjust or repair a machine, you go to the manufacturer's manual to understand how it was meant to work. The Framers created a very good machine for manufacturing laws).
This evolved into original public understanding. After all, it was the people of the US as a whole who gave life to the constitutional provisions, via convention or legislative ratification. Let's look to what they understood things to mean. The records of the constitutional convention and the Framer's private letters weren't available to the people then, and are accordingly less important (except to the extent they, like anyone's letters, suggest what people in general thought). Now we can consider newspaper articles, letters, and even things written after the ratification, so long as it's unlikely that popular views as to meaning had changed.

3) Pragmatism. Don't sit there with a grammar book trying to parse the words. Figure out what the drafters meant to do by it, and construe their words so as to make that outcome more likely. They probably weren't all that careful about word choice anyway. They just said "freedom of speech" and didn't bother to explain what exceptions there are, did they mean the 1776 British idea of it, something much broader, or what?

As one fellow said--you can argue for any of these standards, and maybe the most we can expect is that a judge will stick to one or a fixed combination of them, and not be textualist when it yields a desired result, then switch to pragmatism in a different case because that gives the desired result.

(I leave off other approached, such as Prof. Levinson's argument that we have an unwritten consttution as well as a written one, the unwritten may add to our freedoms but not negate them, since these aren't likely to play a role in Heller).

Personal feelings -- they can play a role in all of this. I suspect at a subsconscious level. You're apt to be enthusiastic about rights you personally value. They play a much bigger role when you get down to what is allowable regulation. How strict is the standard? That's entirely up in the air, with no hard rules. If it's the strictest standard, what is a "compelling" government interest, and does this properly address it? Hard to make that judgment without be affected by your underlying beliefs that gun control is generally nice, or generally stupid policy. If you're on the Court and a porn case comes up, it's going to be hard to decide whether this particular movie is OK or not without being affected by whether you feel porn is sociallly corrupting, or is harmless, and whether you're hard to shock anyway.

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Living Constitution dilemma

According to a recent survey, 64% of Americans believe that a city handgun ban violates the Second Amendment, far outnumbering the 26% who either don't believe in an individual right, or reason that a ban wouldn't violate it. Even among non-gunowners, the 2A prevails by 3/2, or 50% to 35%.

This of course poses problems for the concept of a "living Constitution," at least one that would consider the beliefs of the American people (or the States, or Congress). A concept that ignores all those is all to clearly one of "the Bill of Rights contains only things that a sitting judge likes."

Hat tip to Dan Gifford...

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Modern legal scholarship

Here's a synopsis of an upcoming Villanova L. Rev. article. It isn't often that I can read a synopsis of an article and have not the foggiest what it is saying---

"Engaging with Michael Seidman’s contribution to the symposium, I close the essay in suggesting that when, as in Mark Tushnet’s suggestive orientation to “the Other” just before the end of the essay “Defending Korematsu?,” he sees the Other face to face, he extends an invitation to read in his most recent constitutional law scholarship a resurgence of the orientation to Others that was the ground of his scholarly work, and thus to conclude that one does not have to move from the realm of hermeneutics to that of metaphor, as Seidman suggests is necessary, to identify his commitment to what is paradoxically a certain kind of “thick” constitutionalism, which conceives of it as something more than a bare practice for allocating political power in the nation-state, necessarily implying some ethical engagement between subjects who govern and those who are governed.

That commitment is premised on a “thin constitution” that promises two things. First, that it might shield us and Others from at least the worst excesses of the violence of state tyranny. Second, it encodes what may be cynical rhetoric, aspirational constitutive national text, denial that is admission of the originary national pathology that eats out the nation’s core, or all of these things. That is, a commitment to equality in a nation with a government which Thurgood Marshall called “defective from the start,” founded on chattel slavery and persistently unwilling to address that inheritance from the Founders, a pervasive structural subordination of Others that imbricates its fiber yet."

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Interesting thoughts on Supremes

Article here. Theme is that the Presidential candidates act as if the Court were composed of four minimialist conservatives (McCain's ideal), four empathic liberals (Obama's ideal) and Justice Kennedy moving back and forth, when it's much more complex than that.

"Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees."

Of course the article seeks personal or tactical reasons, rather than the simplest explanation: for some Justices, at least, history and the law are primary motivators, and liberal vs. conservative policy labels only fit in certain cases.

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How you (and the Court) reads a sharply divided decision

An interesting discussion by Prof. Orin Kerr at The Volokh Conspiracy. The question is basically when the Court divides, say,

4 Justices voting for reversal on one ground;
1 concurring in reversal, on a different basis;
1 concurring, on still another basis;
and three voting to affirm...

For what does the ruling stand?

I personally don't think Heller will fragment like this, but the risk is non-zero.

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Sandy Froman on the election and future Supreme Courts

Here's Sandy's latest Townhall column, on that subject. She makes some excellent points.

Update: typo corrected, thanks.

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Opinion on Eagle Act, Religious Freedom Restoration Act, and Indians

Here, in pdf. Altho it construes a statute, it applies a number of constitutional standards. When I was at Interior, I worked with some of these issues. The Eagle Protection Act generally outlaws intentionally killing eagles or using their parts. Certain Indian tribes consider them essential to various religious services. To try to deal with that, Interior puts dead eagles (road kill, mostly) into a repository and rations out feathers, etc.

Problem here was that this tribe maintained that the eagle being offered to the Almighty must be pure, i.e., not road kill. In fact, the stricter adherents maintained the eagle must be captured live by a person. Having seen their claws and beaks, I think I'd contract that job out.

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Supreme Court, voting, and picture ID

The Supreme Court, in a very split decision, has upheld requiring picture ID to vote. Stevens writes the sorta-plurality for himself, Roberts, and Kennedy (quite a combination!), while Scalia concurs with Thomas and Alito, and Souter, Ginsberg and Breyer dissent in two different documents.

Don Kates has expressed concern that Heller might wind up with divisions like this.

The sorta-plurality concludes that (under elections case law, which is sorta strange) the burden of getting picture ID is not a heavy burden, except perhaps for a few (who could bring as-applied suits covering only themselves). Scalia says that even as those, the overall burden is so light that the statute should be upheld (i.e., discouraging as-applied challenges, too). The dissent argues that the burden of getting picture ID may be great for the disabled and those without cars. It adds that there is little evidence of in-person voter fraud, but much more for absentee ballot fraud, which is not affected by the law.

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Amusing and interesting article on originalism

Over at Legal Theory Blog. Just understand that in his story, "Grand Union of Constitutional Theorists" equals academics interested in the Constitution, the "SuperChief" train is the Supreme Court, etc. It's both imaginative, and accurate.

Via Instapundit....

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4th Amendment case

The Supremes just decided Virginia v. Moore. Defendant was caught driving on a suspended license. State law provided that he be given a summons, rather than arrested, for that. Officers instead arrested him, and a search incident to arrest uncovered drugs.

The Court, per Scalia, holds that a violation of such a statute does not a 4th Amendment violation make. Police had probable cause and the arrest was not "unreasonable." Justice Ginsburg concurs, suggesting it is a little closer historical case than the majority opinion suggests.

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Approaches to judging a case

Over at the Volokh Conspiracy Orin Kerr has a link to an interview of a prof. who clerked for Justice Goldberg on the Supreme Court, in the early 60s. One passage caught my eye:

"Working for him was an eye-opening experience. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach. The way I had learned the law at Harvard was that you looked up the answer in a book. The law was composed of “neutral principles” that you could apply to get the proper result..."

I have no problem with a trial judge seeking a just result. Nor with an appellate judge seeking a just result within the law... construing a statute so as to accomplish a fair rule, if only because the legislative body probably intended that. But I do think it questionable to make that the entire purpose, and then working backward to make the law or Constitution conform. My idea of fairness differs from that of everyone else (e.g., having grown up as a construction worker's son, you can guess my idea of fairness in employer/employee relationships), and should not be able to override the Framers, or the legislature's, idea of fairness.

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Supreme Court on firearm mandatory sentencing

Decision in Begay v. US is here. Federal law imposes a 15 year mandatory sentence for a felon in possession of a gun if he has three prior felony convictions of a certain type, i.e., certain drug offenses, or violent felonies (defined in statute). Begay turned out to have had an impressive 12 DUI convictions, and under state law the 4th and all later ones were felonies. The district court and 10th Circuit held that the DUIs were violent felonies within the meaning of the statute, which defines the term to include a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another."

The Supreme Court reverses: the def. of violent felony hinges upon how state law defines the felony, not on the manner in which it happens to be committed. DUI does not require that the driver present a serious potential risk in order to be convicted. If the statute were read that broadly, it would include things like discharging pollution, etc.

Breyer writes, for five Justices. Scalia concurs, saying that he'd construe the "otherwise" clause in light of the felonies which are listed in statute, as applying only to offences at least as dangerous as the least dangerous listed one.

Alito dissents, joined by Thomas and Souter. His approach is textual: the "otherwise" clause is what it says, and this offense fits its definition.

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A bit of First Amendment chilling?

War on Guns has the story.

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The Justices on how they handle a case

Detailed video interviews of eight of the Justices on how they approach a case. From the Volokh Conspiracy.

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An interesting graph...

Over at the Volokh Conspiracy.

Basically, over the period studied of the Rehnquist Court, with the exception of Rehnquist himself, the Justices all cast about the same number of votes to strike down laws as unconstitutional. The total votes ranged from 57 ro 67.

But when they split between Federal and State laws, you see a rather dramatic difference. The liberal wing was much more likely to strike State laws, and the conservative wing to strike Federal ones. Thomas and Scalia voted more often to strike Federal than State laws, whereas Stevens voted 63 times to strike State laws and only 17 times to strike Federal ones.

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speaking of vigilantees....

An article on the situation in a small Arizona town. There are some areas here where it basically is as it was on the frontier -- nearest law enforcement officer 60 miles away, and that's if you're lucky.

As one commenter on the previous thread noted, most of the western vigilanteeism represented a response to chaos. When a person or gang was too powerful to be taken care of by legal process, they were given a warning and unless they were fools, they got out of town, because it was notice that the citizenry were prepared for organized if illegal action against them. The custom was, I recall, 24 hours' written notice. Thus the Earps received notice in Tombstone, and left.

An interesting question springs into mind. Juries are required to be drawn from the vicinage, vicinity, of the offense. This is required, I'd assume, so that jurors know local conditions. Arizona counties are generally huge -- some are larger than Eastern states. In this case, this town is about 80 miles from Phoenix. Its conditions compared to Phoenix (an urban area with about 3 million population and a large police force) are as night and day. But Phoenix is the county seat, and in a trial held there the jury will almost certainly be 100% urban dwellers. Should someone in this town act in self-defense, might there be a case for arguing that the vicinage from which jurors should be taken should be the town, and not Phoenix nor the entire county?

My own county, Pima, has done something like that for misdemeanors. The county seat is Tucson in the east, but there is a JP court and judge out in Ajo, way to the west. It didn't make sense to require people to drive 100+ miles to contest a speeding ticket or misdemeanor or try a small claims case. So in a misdemeanor jury trial there, the jury would be drawn from Ajo, rather than Tucson.

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Boston has a cunning plan

As Balderick says. Story here. The plan is that police will go in groups to houses where they think juveniles might have guns, and seek parents' permission for a consent search. If they do find a gun, they'll seize but not bring charges. If drugs are found, they may or may not file charges. It's based on a St. Louis program where 98% of people consented to the search.

May as well get rid of the 4th Amendment, too, I suppose. Of course my juveniles own guns. Legally. It does strike me as strange -- or maybe this is the way Boston really is -- that a parent whose juvenile owns an illegal gun or drugs has to call in police to take them away.

UPDATE: Yeah, I know consent searches are outside the 4th. I'm referring more to its spirit -- don't search without a good reason, and esp. don't search residences without a very good one.

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Debate on varieties and validity of originalism

It's interesting, if rather technical, over a Legal Theory Blog.

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Article on upcoming Term

In the Washington Post.

Hat tip to reader Marcus Poulin....

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Here's a story that deserves more coverage

From the Arizona Daily Star.

Basically, the Phoenix AZ published an article critical of Sheriff Joe Arpaio, that mentioned his home address -- not out of nastiness, but because the article concerned his realty holdings. No problem. BUT the story was also carried on its webpage, and there is a statute making it a felony to put a law enforcement officer's home address on the internet IF it poses an imminent threat to them.

The Maricopa County Attorney figures he has a conflict of interest, since the alternative paper also criticizes him a lot. He hands the case to another county attorney. But they do nothing (which, I'd suggest , is just what they should do), and so he takes it back (you'd think doing so involves a conflict) and hires a former associate as a special prosecutor.

Whereupon the guy has two executives of the alternative paper arrested and hauled away in handcuffs, convenes a grand jury, and subpeonas all the paper's website internet data, including the last three years' visitors logs (including the websites that each visitor had visited before going to the newspaper).

This is pretty dang shocking to me, and I think it deserves wider coverage (and the officials involved deserve investigation, not to mention un-election if not impeachment).

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Executive power and all that

Instapundit has a post that should be read by anyone concerned about government under law and trifles like that should read. Basically, in 1982 -- that's right, '82 -- a guy is convicted under a statute on exports. The prosecution had a minor problem: the statute had expired before his act took place. This is normally something of a problem in a prosecution.

But, the Ninth Circus, excuse me, Circuit held, that was no worry. President Ford had issued an Exec Order extending the term of the statute, pursuant to a provision in the statue that allowed its extension during a national emergency.

Apart from the constitutional problems I see in Congress allowing the President to extend the duration of one of its laws ... little things like separation of powers and accountability and due process and trifles like that ... President Ford didn't declare a national emergency, he relied on prior declarations by Harry S. Truman relating to the Korean War, and a 1971 declaration by Richard Nixon relating to an international monentary crisis, neither of which had anything to do with the situation at hand.

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Supreme Court argument thru history

I was just reading David C. Frederick's book, "Supreme Court and Appellate Advocacy," which I'd ordered to see if there were any tricks that I'd missed in 30+ years.

He begins with an interesting historical commentary. In the earliest Supreme Court, there were apparently no written briefs. The case was decided upon oral argument, which was sometimes presented over days by a team of attorneys (in one case, six attorneys on one side, who took seven days. 6-7 days was frequently the span. I'd guess teaming up was essential -- try speaking for a solid week, or a solid day, without your voice giving out).

Also in the early days, the docket was flexible. Attorney might have to travel in, so the argument could be held when they all arrive. But in 1830 the Court went with something like a modern docket: the next argument begins when this one ends. That created quite a burden, since you might arrive in DC and wait a week or two for the previous argument to end.

In 1795, the Court ordered counsel to provide a written summary of the "material points" of their case. In 1812, it limited arguing attorneys to two per side. In 1833 it recommended (it didn't order) submission of something closer to the modern brief. Eventually that led to argument being much shorter. Eventually it went to a two-hour per side limitation (its workload increasing from 98 cases in 1810 to 253 cases in 1850), which has now shrunk to a half hour per side..

While there are few records, indications are that in the early court the judges heard argument and didn't ask many questions. In the late 1940s, one experienced advocate counseled that attorneys presenting a one-hour argument should only have 40 minutes of argument, because the Justices asked so many questions. (Today, that'd be more like prepare five minutes of argument, and be thankful if you got it in, in several pieces, between questions). In the Steel Seizure Cases (1952), the Court allotted 3 hours per side, and the first argument got only one question, but the other did get grilled.

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Transcript Supreme Court argument

It's here, in pdf. Argument centers around a treaty requirement that consulates be notified if their nationals are arrested, an important consideration being the power of the International Court of Justice to make a ruling, and how much that ruling obliges US courts to follow it in these circumstances (which I don't understand, but apparently the president did something to make it arguably binding).

As usual, it was less an argument than a grilling. Counsel for the petitioner seems rather underprepared. Watch the dynamics. CJ Roberts pins him on a hypothetical (if the ICJ not only made a finding, but ordered the violators imprisoned, would that also bind US courts?). The hypothetical interests Kennedy, whom Roberts is likely courting as a swing vote. The attorney can't come up with an answer, but Ginsburg tries a "save" by suggesting one. Again he gets stuck, and Breyer tries for a save. Alito comes in, and Kennedy and Roberts go back to tag-teaming him.

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A good day!

I just won a First Amendment case. Actually, it holds a portion of the Arizona Constitution unconstitutional under the 1st & 14th Amendments.

Arizona some years ago went to a "modified open" primary. In it, members of the three parties with regular ballot access (Demo, Repub and Libertarian) have to vote in their own parties' primaries. Independents and members of parties without ballot access (Greens, etc.) however can vote in any major party primary that they pick. The Libertarians objected: they didn't want non-Libs picking their candidates and party officers.

We won in district court. The 9th Circuit upheld it as to letting non-Libs vote for party officers, but reversed and remanded as to voting for candidates. We went back in with more extensive evidence, and now win on that, too. District Court holds that the statute has a major effect on voting rights, which triggers strict scrutiny. Also that the State's interests (which were largely "this encourages more people to vote") were not within the type of "regulatory" standards that the Court allows even under a laxer scrutiny.

UPDATE: a comment blocked by the spam filter for some reason:

Congrats on the win! The "We get to vote in your primary but you can't vote in ours" never seemed fair.

What is the practical effect of the ruling? I presume at the very least, only registered ALP members will get to vote in the ALP primary. Does it also apply to the Republi-'Crat primaries as well?

Answer: it only applies directly, in AZ, and the the ALP. The Repubs and Demos were comfortable with independents, etc. voting in their primaries since (1) they have a big enough registration base to where such votes probably won't change the results and (2) since their object is to win rather than have any ideological theme (I may be dating myself, but I can remember when Ted Kennedy and wild segregationists still considered themselves the same party), they welcome anything that has the chance of drawing more votes.

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Supreme Court case on the way

Watson v. United States, due to be argued October 9. Defendant received a firearm in exchange for drugs, and the issue is whether receiving a gun in payment for drugs constitutes "use" of a firearm in a drug transaction, which results in a greatly increased sentence. The Fifth Circuit said yes.

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Panel on originalism

Legal Theory blog reports a fascinating panel discussion on the nature of originalism. Wish I could have been there.

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Interesting historical find

GunshowOnTheNet has an interesting historical find.

It's a proposal for constitutional amendments that would:

1. Provide for direct election of the President by popular vote;
2. Provide for succession should both President and VP be incapacitated (now covered by Amendment 25 (1967)).
3. Election of Senators by popular vote rather than by State legislatures (now Amendment 17 (1912);
4. Term limits for Federal judges.

What makes this interesting is that the proposal comes in 1868, from the unlamented Pres. Andrew Johnson.

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Debate on originalism

There's an interesting debate (actually, the high points of a debate) on originalism over at the Volokh Conspiracy.

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Prof Paulsen on "The Cal Tillisch High School Chemistry Lab Method of Constitutional Interpretation"

Over at Balkanization.

The joke is that his high school lab partner, Cal Tillisch, used the following approach to an assignment: "First, draw the desired curve. Then, plot the data. If time permits, do the experiment."

He adds: "I used it as a parable about how not to do constitutional interpretation -- and as a description of how some interpreters (courts, law professors, certainly many first year law students) seem actually to do Constitutional Law, at least from time to time: Pick the desired result, choose an interpretive methodology to match, and then, time permitting, do some research to find supporting evidence."

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Supreme Court rules in Wisconsin Rt to Life

Here's the ruling. On a quick read of the syllabus:

Core issue: McCain-Feingold forbid a corporation to spend money for airtime ads that mention a candidate's (literally, make any mention of it) within certain time periods before elections. The Court earlier upheld these limits, as a generality, in the McConnell decision (a 5-4).

Here a nonprofit advocacy group desire to buy airtime, and mention candidates who happened to be incumbents, urging people to call them and ask them to vote to confirm certain judges. The ads had no "express advocacy" of an election type, never said vote for or against the legislator or anything close.

The Court rules that forbidding this is a first amendment violation, but splits pretty widely:

Chief Justice Roberts and Justice Alito don't see a need to question McConnell just now, but do see that the law as applied here is unconstitutional. It burdens political speech, is subject to strict scrutiny. Ads may be reasonably interpreted as something other than election advocacy (note that narrows such advocacy to situations where there seems no other explanation). Statute in this context fails strict scrutiny. Alito's concurrence adds that if it is later shown that the statute chills political speech despite this interpretation, it may be necessary to revisit McConnell and decide whether the statute is unconstitutional on its face.

Justices Scalia, Kennedy, and Thomas, concur on a broader basis: they'd overrule McConnell.

Justices Souter, Ginsburg, Stevens, and Breyer dissent, and would uphold the ban as applied to this ad. They argue that the ads here are indistinguishable from at least one ad involved in McConnell, and say the lead opinion (Roberts + Alito) really does overrule that cast.

Update: I agree with SCOTUSBlog's take on the issue. (1) the Chief Justice and Justice Alito are suggesting that in a later case they will likely join with the concurrences and overrule McConnell, holding the relevant parts of McCain-Feinstein unconstitutional on their face; (2) in the meantime, the statute will only constitutionally apply to advocacy unless it is pretty obviously meant only as "vote for or against this candidate." Since the core idea of the statute was to outlaw (unconstitutionally, in my view) messages that didn't say vote for or against a person (on the argument it was easy to cloak that message with "Sen. Smith is going to gut Social Security, demand that he stop") this means that the core of McCain-Feinstein is largely removed, even if it may take some years before the statute itself is struck down. (3) This approach avoids the criticism that would come from the Court ruling 5-4 in McConnell, having a couple of seats change, and then ruling 5-4 to overrule McConnell.

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An interesting Kozinski opinion

Here, in pdf.

Basically, police had probable cause to search a car, which was being used for drug transport. But they didn't want to tip off the owner just yet. So one officer faked being a drunk driver and bumped his car. Other officers "arrested" him. The driver and girlfriend were asked to come to a squad car to be interviewed, and during that another officer played car thief and "stole" their car. Police went in supposed pursuit, returned to say he'd gotten away. Police then got a warrant, searched it, and found narcotics.

The opinion determines this was a reasonable, if quite novel search. Police could have seized the car without a warrant -- it's a car, and they had probable cause. They carefully bumped his car in the faked accident. They returned all the property they could (claiming the thief had thrown it out the window during the pursuit -- you wonder that the suspect didn't think that a bit strange, was the driver thinking that he'd go faster if he lightened the car by a purse?).

[via the Volokh Conspiracy]

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Supreme Court on death-qualified jurors

The Supreme Court today came down with Uttech v. Brown. The issue was ultimately whether a trial court properly removed a juror in a death-penalty case where there seemed to be some doubt about whether he could vote for the death penalty. (I say seemed to be some doubt because there was a lot of ambiguity: he said he supported the death penalty, and could impose it, esp. if a defendant might get outand but added that he'd just learned that if not sentenced to death the defendant would get life without parole, and that seemed to incline him against it.)

I can see the Court's emphasis that it must depend upon the trial court's assessment of the juror's demeanor. But I can't quite understand why death-qualified juries are still in use. The original rational was that the juror's objection to the death penalty would impermissibly contaminate their decision on guilt -- they'd be reluctant to convict, knowing that the judge might impose the death penalty. But today the jury votes on both issues, so there would be no likely contamination. In this context, holding that the State has a right, not only to jurors who can vote to convict, but who can impose the death penalty, means that a measurable part of the population is excluded from the jury. The result here also indicates that even a juror who supports the death penalty can be excluded, if his support is vague or has limits.

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Interesting papers/articles

The Checks and Balances of Armed Self-Preservation. Synposis says it gives an analysis of the division of armed defensive forces within the modern system of checks and balances in American government. Discussion of possible analogies to be drawn from that division of force for interpreting the Second Amendment and whether it creates an individual right to keep and to bear arms or only a collective right to armaments in organized military units such as the National Guard.

And Randy Barnett's upcoming article The People or the State?: Chisholm v. Georgia and Popular Sovereignty is online. Chisholm was the Supreme Court's first big con law case, and held that States were subject to suit in federal court (notwithstanding the argument, made in the Federalist Papers, that sovereign immunity would block this -- and a result overridden by the 11th Amendment).

Prof. Barnett's article asks why this case is usually overlooked in teaching con law. (If I remember correctly, when I was taught it the case got about 2-3 sentences, this is what it held, and the 11th Amendment resulted).

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Supremes rule on car pursuit

Scott v. Harris, handed down this morning. A high speed chase that ended with the fleeing person rolling the car and being paralyzed, after a police car bumped it from behind to end the chase. Supreme Court sustains summary judgment for the officer.

This was the case that had bench comments during oral argument: plaintiff's version was that he endangered nobody, but the police cruiser had a video running, and it showed an extremely dangerous flight thru the center of town. Some justices essentially asked -- are you saying that for summary judgment we have to accept plaintiff's version, even when we can see on the video that it's bunkum?

Scalia writes the opinion, and as might be expected, it's a little saucy:

"Indeed, reading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test..."

"Justice Stevens hypothesizes that these cars “had already pulled to the side of the road or were driving along the shoulder because they heard the police sirens or saw the flashing lights,” so that “[a] jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance.” Post, at 3. It is not our experience that ambulances and fire engines careen down two-lane roads at 85-plus miles per hour, with an unmarked scout car out in front of them."

Oh, and in a first, the Court puts the videotape exhibit online for all to see, as it notes in Fn. 5:

"Justice Stevens suggests that our reaction to the videotape is somehow idiosyncratic, and seems to believe we are misrepresenting its contents. See post, at 4 (dissenting opinion) (“In sum, the factual statements by the Court of Appeals quoted by the Court … were entirely accurate”). We are happy to allow the videotape to speak for itself. See Record 36, Exh. A, available at http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb and in Clerk of Court’s case file."

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Now this is an interesting aspect of con law!

"Digitus Impudicus: The Middle Finger and the Law."

"This Article argues that, although most convictions are ultimately overturned on appeal, the pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense."

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NY ruling on 5th amendment and DV charge

An interesting ruling from NY. A fellow had an unregistered handgun, a domestic court ruling ordered him to turn in all guns to the police. Altho the story doesn't say so, he apparently did so and was prosecuted. The court apparently ruled that the prosecution violated his right against self incrimination.

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The Bill of Rights is not a list of suggestions

Wish I'd thought of that title.

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§1983 and statutes of limitations

The Supremes today ruled in Wallace v. Kato that the statute of limitations on a §1983 case, arising out of alleged false arrest, begins to run when the plaintiff is detained, not when he is acquitted.

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Supremes rule on punitive damages

The US Supreme Court ruled today in Phillip Morris v. Williams. It was a tobacco suit, and the state court awarded $79 million in punitive damages. The trial court turned down a jury instruction that said the jury should consider only the harms to plaintiff when assessing punitives, and plaintiffs argued to the jury that it should consider harms to everyone in the state who had smoked over the last 40 years. The Supremes ruled that awarding punitives calculated on conduct toward third parties violates the Due Process Clause.

For once, it's a pleasantly short opinion. Curiously, the dissents come from both the liberal and the conservative wing of the Court -- Stevens, Ginsberg, Thomas and Scalia.

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Madison's explanation of the BoR

Gunshowontheweb has the Annals of Congress where Madison explained to the House his rationale for a Bill of Rights.

"I should be unwilling to see a door opened for a reconsideration of the whole structure of the Government--for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door were opened, we should be very likely to stop at that point which would be safe to the Government itself. But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents: such as would be likely to meet with the concurrence of two-thirds of both Houses, and the approbation of three-fourths of the State Legislatures.... I know some respectable characters who opposed this Government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow-citizens think these securities necessary."

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Parker v. DC supplemental designation

The Parker plaintiffs have filed a supplement designation of authority (pdf) (a brief notice of a legal development that occcured past the deadline for briefs). It directs the court's attention to a recent Supreme Court ruling indicating that a person who refrains from acting because of a criminal forbidding it may indeed have standing to sue. That would seem pretty logical, but courts have often indicated that such people do not have standing.

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Supreme Court takes another shot at determinate sentencing

Decision here. On quick read, it extends prior caselaw to hold that any provision that allows the judge to up the sentence based on finding of a specific fact, must be determined by the jury.

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Review of "Active Liberty."

The Volokh Conspiracy links to a pdf of Judge Michael McConnell's book review of Justice Breyer's book "Active Liberty." ("Active" liberty is more like non-liberty, Justice Breyer uses it to describe the liberty of the majority to pass laws. A little touch of 1984 here).

I only had time to skim, but it's powerful criticism. I esp. liked the note at the end that Breyer asks that judges pay less attention to constitutional text and history, and more to carrying out the will of the people... but constitutional text and history themselves reflect the will of the people.

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Adolph Hitler on federalism

At the Volokh Conspiracy, Ilya Somin notes that 'Dolph discussed federalism in Mein Kampf. He and the Framers agreed that federalism was a major impediment to a totalitarian state -- their point of disagreement was that he wanted that state and they did not.

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No-knock raids and shootings of civilians

Radley Balko has some interesting thoughts.

"The apologists say that if the warrant is legal, and the police have the right to be there, you're pretty much screwed. If the police storm in and you -- not being a drug dealer and consequently having no reason to think the police might break into your home -- mistake them for criminal intruders and meet them with a gun, you are at fault....

On the other hand, if the police break into your home and they mistake the blue cup, TV remote, the t-shirt you're holding to cover your genitals because they broke in while you were sleeping naked, or the glint off your wristwatch for a gun -- and subsequently shoot you (all of these scenarios have actually happened), well, then no one is to blame. Because, you see, SWAT raids are inherently dangerous and volatile, and it's perfectly understandable..."

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Kozinski ruling on 4th Amendment

Both Instapundit and the Volokh Conspiracy are discussing a recent 9th Circuit opinion, in which Judge Kozinski upheld a judgment involving over $100K in punitives for police 4th Amendment violations. (As my friend Prof. Joe Olson noted, this is one more proof the country NEEDS Kozinski on the Supreme Court. Clue to Repubs: if there is an opening, it'd be hard for Demos to object very forcefully to him).

The facts are pretty eggregious. A guy leaves town, tells neighbor to watch his house. He's in a divorce proceeding, mentioned that he has an order of protection against the wife. Didn't mention that the judgment had just been entered, awarding her the house. She shows up and moves in. Neighbor calls police.

WIthout a warrant, police break thru back door, hold her at gunpoint, handcuff her and two friends, keep her in cuffs for an hour, treat her pretty impolitely, and finally let her go. As Kozinski notes, it would have been simple to ask her what she was doing there, or get the neighbor to call the ex husband to ask if she had a right to be there, or to ask her divorce attorney the same. Failing all that, they could at least have sought a telephonic warrant (and probably been turned down). The jury made the call, and there was nothing wrong with its ruling.

He ends up by suggesting that an appropriate response to the judgment would have been to write a check and send it with a letter of apology. The citizens of the city had spoken thru the jury, and there was no real basis for appeal. He sets it for a hearing on whether to give the lady double her costs as a penalty for a frivolous appeal.

UPDATE: my own take on why he isn't on the Supremes--the conservative movement really has two components, the rules-conservative (the world operates on rules and organizations to enforce them; if left alone things will go to hell) and the libertarian-conservative (rules and organizations are inefficient and abusive: if left alone people will do very nicely). They have relatively little in common except that liberalism hacks them off (I think maybe because liberalism involves essentially no rules as to matters of morality, which offends rules-conservatives, and unlimited rules as to anything else, which offends liberarian-conservatives).

Kozinski is libertarian-conservative, most of the Bush admin. is rules-conservative. It's probably something deeper than reason, pure instinct. They see him as ... well, his heart's in the right place, but a bit of a loose cannon. Better a guy who looks good in a suit, as it were. He might even (shudder) limit part of the war on terror (nevermind that the Supreme Court hardly ever touches that issue, it'd still be the way a non-con-law white house type saw the issue).

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Supreme Court hands down first decision of the Term

At the Volokh Conspiracy, they're discussing the first decision of the current Term -- in which the Supremes opened by reversing the 9th Circus, I mean Circuit. Sounds like they're off to a good start.

It involves a guy sentenced to death in, oh, 1982. Defendant was a burglar who beat a 19 year old woman to death with a dumbell. His argument against the death penalty was that he had become religious during a prior incarceration (it doesn't sound as if the treatment stuck very well). The question presented hinged on the constitutional sufficiency of the jury instructions.

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Upcoming Supreme Court arguments

They've got some fairly interesting issues scheduled for argument early in the Term:

11/8: Whether the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face.

11/7: Whether attempted burglary is a crime of violence within the meaning of the Armed Career Criminal Act (which provides a 15 year mandatory minimum if there are three prior for violent crimes or serious drug offenses). Defendant was convicted of felon in possession of a gun, and had two drug priors and an attempted burglary. I'd bet against it being violent; government argument is that burglary of a dwelling can lead to violence, but I think that's a stretch).

11/6: Guy sues under 42 USC 1983, after he was convicted of murder, appealed, and court rules charges against him based on unlawful arrest and unlawful interogation. Question is when the statute of limitations begins to run. -- whether it begins with the arrest, or with dismissal of the case.

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Originalism as contract theory

Agoraphilia suggests viewing the Constitution as a contract.

There's much to that, altho Randy Barnett has pointed out it's not quite contractual. It binds me, even tho in 1789 my mother's ancestors were in Italy and Austria, and for all I know my father's ancestors objected to it (and in either event, I wasn't alive yet). Barnett finds the basis for originalism in a variant of the view. What, he asks, makes a law morally binding? (As opposed to practically binding -- the consideration that those in power will punish you for not heeding it). His answer is that the law was made pursuant to a system created by our ancestors, and the implied agreement is that if those temporarily in power heed the Constitution, we will heed the laws made pursuant to it. If they could say the Constitution has evolved to let them do what they please, then we could say that, morally, there is no duty to obey the laws they create.

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SCOTUSBLOG on getting cert.

Scotusblog has a podcast on what type of cases the Supreme Court accepts. Gist of it:

A typical Term will have about 7,500 petitions for cert., but most of these a prisoner petitions, of which only a few will have any interest. It really boils down to about 500 serious petitions, of which the Court will take about 75-80. The keys to what it takes to go from one of the 500 to one of the 80 appear to be:

1. It must involve as near as possible a pure question of Federal law. The more heavily the case is dependent upon facts, the worse its odds are.

2. It usually will involve a split between Circuits, or State supreme courts, on that issue. The Court values its function of making federal law uniform.

3. The issue must be ready for the Court. No reason to leave it "percolate" in the lower courts any more, in hopes that they'll discover new angles or approaches.

4. The issue was clearly presented in this case -- it wasn't just a side issue, on which the parties and lower courts might have spent relatively little time and thought.

5. The lower court got it wrong. In theory, this wouldn't be a factor, but since about 75% of Supreme's rulings end in reversal, it obviously is. Note that this is the last criteria. Supremes rarely take a case just because they figured the Court of Appeals ruled incorrectly. But if you meet all of the first four criteria, the Court of Appeals erring helps to make the cut.

As the comments note, there are certain narrow exceptions. When a case can ONLY be brought in the Federal Circuit, there will never be a circuit split. I've also noticed a tendency to take a lot of cases relating to a new Federal statute with lots of regulatory twists. When the Congress wrote or re-wrote the pension laws a few years ago, the Supremes took quite a few cases on them. I'd assume they were figuring to lay out the standards early in the game.

It's noticeable that a Second Amendment case could easily meet all five criteria. It's usually a question of law (tho it would help to focus upon one or a few statutory provisions, not all the provisions of an elaborate gun statute), there's a big circuit split after Emerson, the issue has been percolating in scholarship (and with Emerson and Silveria, in the circuits at great length) for decades, and it's usually presented as the main issue of a case.

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Yale LJ Pocketpart looking for short articles

The Volokh Conspiracy notes that the Yale Law Journal Pocket Part (a manner of supplement to the main journal) is looking for short articles.

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Judge Posner on Justice Douglas

Judge Posner (7th Cir.) has an article reviewing a book on the life and times of Justice Douglas.

Sounds like a scorching book. Although the author apparently rather liked Douglas, he wound up concluding that almost all of Douglas' supposed personal life was fabricated ... down to his Arlington Nat'l Cemetery tombstone, which says he was a veteran of WWI, when he never enlisted (another text, apparently based on an interview, says he didn't let polio stop him from enlisting. He never had polio, either).

One of my classmates clerked for Douglas toward the end of his time on the bench (he was massively disabled by a stroke, didn't want to resign lest Nixon appoint his successor, and wound up being wheeled to the bench in Pampers). Even before then, my classmate suggested that he was not easy to work with, crotchety, ungrateful, impatient, and quite an egotist.

(Via Volokh Conspiracy)

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4th Amendment ruling

The 6th Circuit has ruled (pdf) in a case involving search of a bonded warehouse area used by an FFL who was involved in illegal sales.

As I read it, the core facts are: an ATFE agent got a search warrant for the area. The warrant, in the section where the goods to be seized should be listed, simply said "see affidavit." The affidavit did describe the guns, but it was under court seal. When agents showed up, the owner of the warehouse was shown the warrant and protested that the 4th Amendment requires particular description of the matters to be seized, the warrant says see the affidavit, and the affidavit is under seal.

Afterwards, he bought suit for a Bivens constiutional tort. The trial court dismissed on qualified immunity grounds (you can't win a Bivens case unless the constitutional requirement involved was "clearly established" in law at the time). A panel of the 6th Circuit reinstated the suit, noting that the 4th Amendment requirement of specificity has been around for 200 years. Gov't moved for rehearing en banc, and this decision is the result, with the entire circuit ruling that the dismissal was proper (and the panel wrong). A quick read indicates the basis is (1) the warrant plus affidavit does describe the items, and the judge issuing it thus knew what he was being asked to do (an earlier case involving a warrant that didn't mention the affidavit is distinguished); (2) while showing the warrant to the person being searched is required by rule, that doesn't necessarily mean that the affidavit needs to be (note a bit of a circular argument here); (3) the agents did perform the search in a reasonable manner and took only the described items; (4) even if there was a requirement that the warrant itself describe the items without reference to the affidavit, that particular requirement was not "clearly established" in law.

Two judges concur on basis that this was a Fourth Amendment violation, but the requirement was not clearly established, and four dissent.

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Third Amendment

I've decided to branch out, as this article in the Arizona Daily Star should show. There's so much competition in the Second Amendment field, with Steve Halbrook, Dave Kopel, Richard Gardiner, Don Kates, Chuck Michel, etc. But there's NOBODY doing Third Amendment cases, and my two coauthored pieces are about the only scholarship in the field.

Of course, cases may be a bit hard to find. In the entire 20th century, one occurred, when someone tried to put up National Guardsmen, in town to deal with a prison riot, up at someone's house.

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Busy day for Supreme Court

The Supremes customarily decide the easy cases first and save the tough ones for last. (That's why I was amused when, early in the term, the newspapers were saying that the Roberts Court must be stressing collegiality because it was handing down so many unanimous decisions. The 9-0s always tend to come at the beginning of a term, the 5-4s at the end). Now the term is wrapping up, and the Supremes

1. upheld Arizona's insanity defense, which requires a defendant to prove, by clear and convincing evidence, that he did not appreciate that what he did was wrong. It didn't include the first alternative of the common law M'Naughton test -- that he was so out of it he didn't appreciate what he was doing. Vote is 5-3, with Breyer concurring in part.

2. Ruled in Hamadan v. Rumsfeld that trying accused terrorists by military tribunal violated the Geneva Convention and the Code of Military Justice, and was not authorized by Congress's broad use of force enactment. Vote is split, four Justices in a plurality, Kennedy in a concurrence, and three in dissent, and Roberts abstaining. Just counting who joined in which parts of the plurality or the dissent will give you a headache.
UPDATE: Scotusblog has an interesting take on it. They say the biggest part of the ruling isn't the narrow result (no tribunals) but that the Supremes hold that the Geneva Convention, as a treaty obligation, governs the war against al-Qaeda. That would mean, among other things, that the rougher interogation techniques were a violation of the Convention, and thus are violations of the War Crimes Act. Comments note some complications -- some provisions bind the signatories as to everyone, others only apply to troops of another signatory, but the latter might apply or might not, dependent upon the citizenship of the detainee. The Counterterrorism Blog thinks Congress should act, and predicts that will be a boost to Republican hopes. Clayton Cramer has an excellent post explaining in plain and concise terms the ruling and the dissent's critique of it.

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ACLU and consistency

An interesting issue, pointed out by Jim Beers:

Indianapolis recently enacted an ordinance forbidding convicted sex offenders to come within 1000 ft. of parks, pools, and playgrounds, and the ACLU has sued. "The six plaintiffs, who include child molesters and rapists, are represented by the American Civil Liberties Union of Indiana." ACLU of New Mexico has sued to block sex offender registries.

The Lousiana ACLU has testified against a similar statute: "These laws promote hysteria and suspicion without any evidence of improving public safety. Instead, branding individuals with a scarlet letter prevents them from finding stable residences, or worse drives them underground....Individuals could break this law without even knowing it."

Now, I can see some of the arguments being made. "Sex offender" is sometimes a very broad class that can include some poor cuss who relieved his bladder, was seen by someone else, and took a dive on indecent exposure. And preventing a person from coming within 1000' of a school does prettty much make travel impossible.

But, I have to wonder, where were they when Congress made it a felony for a person, convicted of nothing, to pass near a school with a firearm? What is it that makes convicted sex offenders more appealing than firearm owners?

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Supreme Court case on retaliation against prosecutor

The Supremes just handed down Garcetti v. Ceballos, which gives some insight into prosecution decisionmaking. Plaintiff was a supervisory prosecutor with the LA County Attorney's office. A defense attorney raised a question about statements in a search warrant affidavit. Plaintiff checked it out and found serious problem with veracity (e.g., the affidavit claimed to have followed defendant's tire tracks down a road, and the road surface was one on which no tire tracks would be left).

Plaintiff called up the officer who gave the affidavit and got no satisfactory explanation. The county attorney went ahead with the case anyway. Plaintiff alleged that as a result of his reporting the problems with the affidavit, he was harrassed, transfered, and denied a promotion. He sued for invasion of his civil rights, specifically freedom of speech.

The majority of the Court held that he can't sue, because in raising the issues he was acting as a government employee rather than as a citizen exercising freedom of speech, and when acting as an employee a person is subject to standard employment discipline. (The majority notes that with academics there may be a different case, but no need to decide that here).

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Prof. Barnett on Liberty

Minnesota Public Radio has an hour-long broadcast on liberty, featuring Prof. Randy Barnett. Link via the Volokh Conspiracy here.

Interesting points: Lord Acton maintained that liberty was not a means to higher political ends, but was itself the highest political end. (Interesting contrast to the Court's treatment of the First Amendment, esp. in the election law context, where freedom of expression is balanced against other factors, its weight determined by the political purposes it serves, at least those purposes the Court deems valid). Barnett points out Acton's view was that of the Framers. That liberty promotes socially-desirable ends is a fortunate byproduct, not its purpose.

You need a core notion of rights to begin with -- no one has liberty to kill or rape or steal, precisely because those do not involve "doing what you want with that which you own."

Debate about Patriot Act is (for most of us) not about liberty per se -- the average person can't violate it. Debate is really about limiting gov't power so that it doesn't violate liberty in other ways.

Not unprecedented -- Barnett says his peve is the line "in these troubled times." Only for a few years have we had "untroubled times" in our history. Going back to the founding, there were troubles and the gov't tried to get of control. Alien and Sedition Acts. Got so out of hand that VA and KY state legislatures passed resolutions declaring the federal law unconstitutional. If we take view that things are uniquely bad, going to hell just now, this leads to destructive actions and destructive politics. We are really facing same issues Americans have for two centuries.

Interviewer asks -- is liberty unchanging, or does it change with society. He replies--go back to framers, one of the federalist claims was that liberty was so unbounded that you could never write down all your rights. Iredell said make as long a list of liberties as you want, and I'll come up with twenty that you didn't set down. Illustrates Framers' expansive view of liberty. Liberty changes, usually by expansion, since what we can do with what he have is continually expanding.

Caller agrees these are not unique times -- look at abuses in WWI, WWII. Barnett agrees, jests that doesn't want to depress everyone by listing all of them.

American culture distinctive in that our culture embodies concepts of liberty and of limited government. Appropriate to remember, on Memorial Day, that many thousands of Americans died to protect that. The culture of a nation affects not only domestic but foreign policy -- it's your self-image as a people.

Caller wonders if modern situation isn't different... no longer need pouring over paper to pry into lives, computers can do it. Barnett says lot of truth to that... technology is both liberator and restrainer. Almost impossible to lead an anonymous life today. Taking new job, have to fax new college two forms of ID. Unheard of a century ago, you could pack up and become someone else, and lots did. On other hand, with encryption, technology gives us a way to keep things private. Interesting contrast between Americans' sensitivity to liberty and relative insensitiviy to privacy.

Caller: should we add privacy to constitution? Barnett: we've unfortunately lost the tradition of amending constitution, perhaps because Supreme Court has gotten in habit of unofficially "amending" it. In early republic, Supreme Court held that a person could sue another state over debt. People didn't like that, and immediately adopted 11th Amendment. That was the proper response. That's healthier than expecting the Supreme Court to reconstrue the constitution to suit our desires.
Should privacy be protected? We ought to get specific. Privacy is a generality. The advantage of doing a written amendment is that someone has to put it down in specific words, and then we can have a proper debate over it.
Another prof said life liberty and pursuit of happiness in Declaration was divisive. Barnett-- dunno, know original was life liberty and pursuit of property. Famous trilogy dates back to Locke and to state constitutions. I don't know about negative reactions to original or to the change.

Testy caller: Bush talks of liberty in Iraq, but in US tries to curtail it. Barnett: liberty is not specific. Sometimes used to mean political liberty, voting. Offtimes I think president uses it in that sense in Iraq. I disagree with many of pres. policies, but don't believe he's conspiring to violate liberties. I do think he should be more sensitive to individual liberty... he seems interested in political liberty, but not in expanding individual choice (exception for his Social Security proposal).

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Supreme Court case on vindictive prosecution

The Supreme Court just handed down Hartman v. Moore. A quick read indicates that plaintiff engaged in a powerful lobbying campaign to get Postal Service to adopt a new technology, and was then indicted on kickback allegations. At trial, charges were dismissed for lack of evidence. Plaintiff sued, alleging that the prosecution was a "payback" for its lobbying, which was First Amendment protected.

The Supremes ruling: (1) the prosecutor is absolutely immune and cannot be sued, period (pretty much standard law); (2) where the government retaliation is something other than a criminal prosecution, it is enough to show that the government action would not have occurred except for the constitutionally protected act ("but for" causation); (3) but where the retaliation is a criminal prosecution, plaintiff must show that PLUS lack of probable cause ("strong suspicion" that an illegal act occurred). Since lack of probable cause = ground for suit for false arrest anyway, this makes a retaliation suit in a prosecution context a bit more complicated than false arrest, rather than simpler.

I suppose I can see both sides of the question, but it does illustrate that suing the government, even when it is punishing a first amendment exercise, is rarely a simple thing.

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Thoughts on "an evolving constitution"

I tend toward originalism, and tend to see the idea of "an evolving constitution" or "a living constitution" as a conscious or unconscious exercise in scholarly/judicial will to power (the scholarly and judicial classes expressing a drive toward power that is lacking if the Framers' or the Americans' will is what matters). But in the extended remarks below I'll note a couple of thoughts on how the idea of an evolving constitution is in fact consistent with a vigorous view of an individual right to arms.

Continue reading "Thoughts on "an evolving constitution""

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Interaction of 2d, 9th, and 14th Amendments

The 9th Amendment provides that the enumeration of rights in the first eight amendments shall not be read to disparage or rule out other rights reserved by the people. It was designed to overcome the objection that enumation of a list of rights would be construed to rule out any other rights (which is of course what has happened).

The 14th Amendment forbids the States to deprive anyone of the "privileges and immunities" of national citizenship. As I read the legislative history, that meant the federal Bill of Rights protections (and some others).

The Supreme Court, in the Slaughterhouse Cases and US v. Cruikshank, differed. The reasoning (after the Court's initial proclamation that doing this, and giving federal courts power to enforce it, would be so shocking a violation of federalism as to require the clearest of proof that this was intended -- the "we can't believe they meant to do this" maxim of constitutional interpretation) was roughly: (1) privileges and immunities of US citizenship must be something other than P&I of state citizenship, those rights that would have existed before there was a federal constitution and thus federal citizenship; (2) the rights at issue in those cases (freedom to assemble, to bear arms, etc.) were rights that always existed in any free society, and thus antedated the US Constitution, hence (3) they could not be privileges and immunities of US citizenship.

Now, with the caveat that I've always figured that if you couldn't win on the 2nd Amendment, you sure weren't going to win on the 9th,--

Doesn't the Slaughterhouse/Cruikshank reasoning lead inevitably to the conclusion that the individual right to arms is protected, against federal action, by the 9th Amendment? The Court says the reason it isn't protected against State action by the 14th Amendment, is that it is a right that has always existed, in any free society, existed whether written out or not, and hence pre-existed the Constitution. Doesn't that fall squarely within the 9th Amendment as a right reserved by the people?

It seems to me that there is a dilemma here: a right held inapplicable to the States under the P&I clause must logically be one that binds the U.S. under the 9th Amendment.

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Supreme Court to end unpublished opinions by Circuits

According to Law.com, the Supreme Court has voted to end the practice of unpublished opinions. For those not initiated in legal arcanery, an unpublished decision is one the court says shouldn't be printed in the traditional hardcopy West reports, and should not be cited as precedent. In practice, many such decisions are picked up by legal computer databases. The Supreme Court itself doesn't have unpublished cases.

There's been a big debate over this practice. On the pro side, (1) it lets the Circuits screen out a lot of caselaw that is mundane, of no value ("my sentence was longer than is fair") or on very narrow grounds; (2) the Circuits, if presented with a poorly-briefed case, can acknowledge that they might be on thin ice rather than binding themselves; and (3) since they don't have to worry about crafting these carefully, just reaching a correct result on the facts presented, it saves a lot of time. On the con side, (1) it means courts can reach inconsistent results and thus flies in the face of the core of stare decisis (all cases on identical facts will have identical results); (2) maybe cases involving things like citizens getting locked up ought to have a bit of thought put into them; and (3) it tends to encourage an approach along the lines of "de-publish unless it's really important".

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Squabbles over originalism

The Supreme Court just ruled in Georgia v. Randolph that, where a search is purely after evidence, it cannot be based on consent if both owners/tenants are present, one gives consent and the other refuses it.

What's interesting is that Justice Stevens (the most liberal member) concurs, with an opinion that implicitly takes a swipe at originalism. " In the 18th century, when the Fourth Amendment was adopted, the advice would have been quite different from what is appropriate today. Given the then-prevailing dramatic differences between the property rights of the husband and the far lesser rights of the wife, only the consent of the husband would matter. Whether “the master of the house” consented or objected, his decision would control. Thus if “original understanding” were to govern the outcome of this case, the search was clearly invalid because the husband did not consent." He goes on, of course, to note that things are different today. "In today’s world the only advice that an officer could properly give should make it clear that each of the partners has a constitutional right that he or she may independently assert or waive."

Justice Scalia files a dissent in response: "It is not as clear to me as it is to Justice Stevens that, at the time the Fourth Amendment was adopted, a police officer could enter a married woman’s home over her objection, and could not enter with only her consent. Nor is it clear to me that the answers to these questions depended solely on who owned the house. It is entirely clear, however, that if the matter did depend solely on property rights, a latter-day alteration of property rights would also produce a latter-day alteration of the Fourth Amendment outcome—without altering the Fourth Amendment itself.

Justice Stevens’ attempted critique of originalism confuses the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred. From the date of its ratification until well into the 20th century, violation of the Amendment was tied to common-law trespass.... The issue of who could give such consent generally depended, in turn, on “historical and legal refinements” of property law. United States v. Matlock, 415 U. S. 164 , n. 7 (1974). As property law developed, individuals who previously could not authorize a search might become able to do so, and those who once could grant such consent might no longer have that power. But changes in the law of property to which the Fourth Amendment referred would not alter the Amendment’s meaning: that anyone capable of authorizing a search by a private party could consent to a warrantless search by the police."

He adds "Finally, I must express grave doubt that today’s decision deserves Justice Stevens’ celebration as part of the forward march of women’s equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out? The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes—which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791."

A few days ago, the Court (per Justice Scalia) handed US v. Grubbs, in which Justice Souter's concurrence (joined by Stevens) noted, with regard to anticipatory warrants and Scalia's reference to the 4th amendment's text, " The notation of a starting date was an established feature even of the objectionable 18th-century writs of assistance, see, e.g., Massachusetts Writs of Assistance Bill, 1762, reprinted in M. Smith, The Writs of Assistance Case 567–568 (1978); Writ of Assistance (English) of George III, 1761, reprinted in id., at 524–527. And it is fair to say that the very word “warrant” in the Fourth Amendment means a statement of authority that sets out the time at which (or, in the case of anticipatory warrants, the condition on which) the authorization begins."

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Volokh on international law and rights

Gene Volokh has an interesting post on the dangers of regarding international and foreign law (or custom) as protecting freedom. He cites to the UN Covenant on Civil and Political Rights, which, while acknowledging a right to practice of religion, states it may be restricted as "necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." Also, it may be restricted as necessary "For respect of the rights or reputations of others" It then goes on to mandate -- not allow, but mandate -- "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." Pursuant to those provisions, the UN Commissioner for Human Rights has ordered an investigation of Denmark's position that publishing the cartoons of Mohammed is protected by freedom of speech.

Egad. Those who place such weight on international matters should accept that it's quite the other way around. The international community should be looking to the US since (1) we do a much better job of protecting rights and (2) it's been working for two hundred years.

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Anticipatory search warrants--and a bit of a dig at Justice Scalia?

The Supreme Court just upheld anticipatory search warrants 9-0, further holding that the warrant itself need not contain the contingency (here, that a package of child porn mailed to the defendant by a government sting operation be delivered to his house).

The opinion is by Scalia, and the concurrence by Souter, joined by Ginsburg and Stevens, notes that if a future Court should hold that presenting the warrant to the person being searched is constitutionally required (as it is not now), then an anticipatory warrant that did not contain the condition would presumably be invalid.

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Court's use of foreign law

At the Volokh Conspiracy, Jim Lindgren has a post regarding Justice Ginsburg's references to foreign law, linking to an interesting study on use of foreign law by the Supremes. The gist of the study is that:

1. References to foreign law by the Court go far back into the early republic;
2. The references in constitutional cases have, however, recently escalated.
3. The practice may be justifiable when a constitutional provision refers to reasonableness or its like (cruel and unusual punishment springs to mind) but is hard to justify when construing an express American right or power that lacks such wording. That is, in the great majority of constitutional law cases.
4. In those cases, reference to international standards is suggestive that members of the Court are reaching out to justify illegitimate policy-making, making law and policy rather than construing it.

[Update: Haven't had time to read the study, so I don't know if it counts British common law decisions. The summary refers to an 1820 decision on the definition of piracy. I can readily see use of foreign law in that context, since piracy is an international crime defined largely by international tradition -- that is, a sort of international common law.]

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Justice Ginsburg's use of foreign law and more

Over at the Volokh Conspiracy, David Bernstein has a post noting where Justice Ginsburg refers to citing, not only foreign law, but treaties which the US had declined to ratify, to show how the Michigan affirmative action policy at issue "accords with the international understanding of the [purpose and propriety] of affirmative action.."

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Justice Ginsburg on use of foreign law

Here's a speech she gave in South Africa. Beginning is ... a bunch of framing era references to the fact that when construing international law, courts make reference to ... international law. Followed by a note that on an internet chat room somewhere, someone said that she ought to be offed for having used foreign decisions (heck, I've had the same said about me, for having attacked Mike Moore). And a reference to Dred Scott, which declined to consider foreign law (interesting, but the point being ...? That if you don't refer to foreign law, you're liable to issue racist rulings?)

Personally ... if a Justice wants to stake out a broad understanding of rights and liberties, they shouldn't be reading foreign caselaw. They ought to read the legislative history of our own 14th Amendment.

UPDATE: On the 14th Amendment, I agree that the leg. history shows VERY clearly that the purpose was to incorporate the bill of rights against the states, via the privileges and immunities clause (as opposed to the due process clause, the basis of modern "selective incorporation"). Prof. Michael Kent Curtis' book on the amendment (title slips my memory just now) is a solid demonstration of that. Prof. Amar makes a case for something less than 100% incorporation under this theory--a few bill of rights liberties may have been meant not so much as proclamations of liberty as of restrictions unique to the new government (i.e., civil jury trial for cases over $20 -- hard to see why a right would only begin at $20). The Supreme Court's rejection of P&I incorporation, beginning in the Slaughterhouse Cases, was intellectually dishonest, a word game played without any reference to the leg. history.
What particularly frosts me about that is that the 14th Amendment was meant to annihilate Dred Scott. The first section says that all persons born or naturalized in the US are citizens thereof and of their State. That wipes out Dred Scott's holding that free blacks could never be citizens of a State, and thereby of the U.S. So where did the framers of the 14th get the idea of "privileges and immunities" of a citizen of the US? That exact phrase is used in Dred Scott to describe bill of rights liberties -- to meet on political topics, and to keep and carry arms wherever they went. For the Supreme Court to play a word game and claim that privileges and immunities of US citizens meant something very narrow, and excluding the bill of rights, was the height of judicial dishonesty.

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NJ Assn sues NY port authority over abuse of gunowner

The Association of New Jersey Rifle & Pistol Clubs, Inc. has sued the NY & NJ Port Authority (which administers the airports around there) over the false arrest of a Utah gunowner.

Basically, Gregg Revell was scheduled on a flight from Salt Lake City to Allentown, PA, connecting in Newark, NJ (which is near NYC). He possessed a firearm in conformance with the 1986 Firearm Owners' Protecti