Recently in Constitution Category

The U.S. Supreme Court occasionally issues summary reversals of lower court decisions.  That is, it sometimes reverses just on the certiorari petition, without new briefing on the merits or oral argument.  These reversals are particularly common in Ninth and Sixth Circuit habeas cases, where those courts repeatedly do exactly what Congress told them not to do.

Much more rare is a summary affirmance, but a case about to be filed may call for it.

Charlie Savage has this story in the NYT:

Adam Freedman has this article in the City Journal:

With the passing of Judge Robert Bork at 85, America has lost one of its most influential legal scholars. Though media obituaries tend to focus on Bork's unsuccessful nomination to the Supreme Court in 1987, Bork's legacy is one, not of failure, but of enormous success.

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No Supreme Court nominee today dares disavow originalism or declare his or her sympathy with a "living Constitution" philosophy. When Elena Kagan faced Senate confirmation for the Supreme Court in 2010, she went out of her way to praise originalism as an interpretive method. As the future justice explained: "Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists."

Indeed we are. And for that, we should thank Robert Bork.

In constitutional criminal procedure, the Supreme Court has largely embraced originalism in its interpretation of the Confrontation Clause.  If we can extend that to Fourth Amendment remedies (not including exclusion of evidence) and to the Witness Against Himself Clause, we can make some real progress.

Notice I did not say "Self-Incrimination Clause."  There is no such clause in the Fifth Amendment.

Bill noted earlier today the passing of Robert Bork.  As an advocate of judicial restraint, Bork has an important place in American jurisprudential thought.  Courts have, in fact, exercised will instead of judgment, substituting their pleasure for that of the legislative body.  (Cf. Federalist No. 78.)  The Supreme Court has done that from Dred Scott v. Sandford (1857) to United States v. Alvarez (2012) and many times in between.

I did not agree with Bork on everything, though.  To this day, I shake my head when I read his words from 1971, "Constitutional protection should be accorded only to speech that is explictily political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic."  Porn is one thing, but to say that Congress could declare an official dogma on, e.g., global warming and forbid expression of a dissenting view is more than one bridge too far.

That said, Bork was an important force moving constitutional jurisprudence in the direction it needed to move.  Judicial activism was and remains a far greater danger than its opposite, which for want of a better term I call judicial refractivism.  Excessive deference to the legislative authority -- upholding acts that really are contrary to the Constitution as originally understood -- does happen, but it is far less common than judicial activism, striking down a constitutional law because the judge disagrees with it.  Judicial activism remains the principal danger, and we lost a strong voice against it today.

Seven score and seven years ago, our forefathers fixed the number one problem in the Constitution bequeathed to them by their forefathers.

The Constitution is indeed a "living document," in the sense that it changes.  The process by which it legitimately changes is set forth in Article V.  Let us raise a glass today to the most important of those changes.

Is an insanity defense, as such, constitutionally required?  Idaho has decided no, although it still allows a defense of a mental condition which negates an element of the offense.  Today the U.S. Supreme Court declined to review a claim that this is unconstitutional.  Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented from the decision not to take the case up (not necessarily with the merits of the state court's decision).  The case is Delling v. Idaho, 11-1515.

Which provision of the Constitution of the United States removes this decision from the legislatures of the states and assigns it to the federal judiciary?  Justice Breyer "would grant the petition for certiorari to consider whether Idaho's modification of the insanity defense is consistent with the Fourteenth Amendment's Due Process Clause."  Once again, the oxymoron of "substantive due process" rears its ugly head.  All the way back to Dred Scott, the term "due process," which quite obviously refers to process and not substantive law, has been used for the Court's most illegitimate decisions.  It's good that they passed on this one.

Erik Eckholm reports in the NYT:

Samuel Mullet Sr., the domineering leader of a renegade Amish sect, and 15 of his followers were convicted on Thursday in Cleveland of federal conspiracy and hate crimes for a series of bizarre beard- and hair-cutting attacks last fall that spread fear through the Amish of eastern Ohio.

A TV report from WKYC is here.

These assaults are certainly crimes, and given the religious significance of the beards the injury to the victims goes well beyond any physical injury, but why is this a federal case?

Person-on-person crime is generally a state-law matter.  The feds necessarily get involved when there is state action in violation of the Fourteenth Amendment.  Criminal organizations that operate in multiple states and across international boundaries also warrant federal involvement, but there is none of that here.

Conspiracies to violate civil rights were made a federal crime in the Ku Klux Klan Act during Reconstruction.  The law was certainly necessary at that time, and it was necessary in the 1960s in some places where state and local governments dismally failed to provide the equal protection of the laws that the Fourteenth Amendment requires.

But in 2012 Ohio?  Against Amish defendants?  Do the Amish have local officials so cowed as to make local prosecution an inadequate remedy, as the Klan did in the Deep South 50 years ago?  Of course not.

Whether application of these laws in this case is constitutional or not, as a matter of policy it should have been left to the locals.

Today is the 225th anniversary of the signing of the proposed Constitution of the United States in Philadelphia.  (It didn't actually become the Constitution until ratified, of course.) Robert Barnes has this article in the WaPo on Justice Thomas's appearance at Yale Law School yesterday.

The headline above the article (probably written by an editor, not Barnes) reads, "Thomas concedes that 'we the people' didn't include blacks."

Concedes? As I have said here before, the second thing we should do is kill all the headline writers.  Where does that word "concedes" come from?

The word "concedes" implies that one is admitting a point that weighs against one's own argument or yielding on a point previously disputed.

I suspect the headline writer thinks that the fact that the original Constitution was a compromise that permitted slavery is somehow a point against the jurisprudence of original understanding, which Justice Thomas supports.  It is not.  Politics is the art of the possible, and the original Constitution necessarily had to include many compromises in order to achieve ratification.  This was one of them, and it took a Civil War and three amendments to fix it, several generations later.  But it was fixed by amendment and not by judicial activism, the latter being part of the problem rather than part of the solution.

There is no concession here.

For the record, the Flag Protection Act of 1989 passed the House by a vote of 380-38 and the Senate by a vote of 91-9.  The Supreme Court declared it unconstitutional in United States v. Eichmann, 496 U.S. 310 (1990).

"Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," President Obama said.  Whatever else may be said on this topic, "unprecedented" is preposterous.

This is not about criminal law, but it is central to the question some of us thought had been resolved in 1803:  Does the judicial branch or the executive branch have the final say over the constitutionality of statutes?  President Obama, a former lecturer in Constitutional Law at the prestigious University of Chicago Law School  --  and now perpetually on the campaign trail  --  said the other day that it would be "unprecedented" for the courts to nullify the Affordable Care Act. 

Off topic but interesting -- it's always good to see a snarky commentator brought down.

Newt Gingrich has been raising a lot of hackles lately with his statements about judges and the separation of powers.  In typical Gingrich fashion, he begins with a genuine problem, throws in some real history, and then proceeds to run off the rails.

Joe Palazzolo at WSJ Law Blog has this post, with some excerpts from the last Republican debate.

The basic complaint about "activist judges" is quite valid.  Federal judges generally, and the Supreme Court in particular, have often misused the power of judicial review to strike down statutes they disagree with as a matter of policy, even though neither the text nor the history of the Constitution justifies the decision.  For example, the notion that the Constitution forbids the people of the states from deciding, on a uniform statewide basis, what factors will be considered mitigating in capital cases is utterly unjustifiable as a matter of constitutional law, whatever one thinks of the policy.

It is true that the elected branches are often too deferential to the judiciary.  It is true that Jefferson, Jackson, Lincoln, and FDR had major disputes with the Supreme Court.  Within constitutional limits, the President and Congress should give more attention to reining in overreaching courts.

The First Congress, fulfilling an agreement made to secure ratification, proposed twelve amendments to the Constitution on September 25, 1789.  (See here and here.)  Ten of them (originally numbered III to XII) were ratified 220 years ago today.  These ten are known as the Bill of Rights.

The Bill of Rights was not, of course, intended to be a "detailed code of criminal procedure," as Judge Friendly noted the Supreme Court had made it by 1970.  There is nothing in it about letting the murderer go free because the constable blunders.  It most certainly does not forbid a police officer to ask an arrestee if he wants to talk about a crime merely because he has previously asked for a lawyer for an unrelated crime.

So today let us raise a glass to the real Bill of Rights and renew our resolve to scrape the barnacles from the hull.

The Constitution vests in Congress alone the power to declare war, and makes the President alone the commander-in-chief.  If it accords any war-making decisions  to the judicial branch, this fact has been well hidden for two hundred years or so.

Thus I congratulate the administration's attorneys for correctly concluding that (1) American citizens who have taken up arms against the country may be targeted in a time of war, and (2) the targeting decision belongs to the President, not the judiciary.  The Associated Press has the story.

Candidate Obama, speaking with equal measures of gusto and gleeful irresponsibility, demagogued this and similar points to a fare-thee-well.  I am grateful, and relieved, that President Obama has come to his senses.

This does not mean that Obama or any other President unfailingly is going to get these decisions right  --  but neither are the courts, and the President has both superior capabilities, and the Constitutional portfolio, to make the call.

Yesterday, the House passed H.R. 822, the National Right-to-Carry Reciprocity Act of 2011.  This bill would allow a person licensed to carry a concealed firearm in one state to do so in another state, notwithstanding the laws of the other state.

As an all-weather federalist, I have to disagree with some of my gun-toting friends here.*  Concealed carry is an issue that each state should decide for itself.

When the Supreme Court decided that the right to bear arms extended to individuals, not just organized militias, in the Heller case in 2008, many people on the defense side were excited that they could use this to argue against felon-in-possession laws.  The fact that the Heller Court expressly said its decision did not extend to invalidate those laws strangely failed to dampen their enthusiasm.  A long string of defeats for that argument since Heller followed.

As applied to federal laws regulating who can own what, it always seemed to me that the Court's cautiously narrower view of the Commerce Clause in recent years was the more vulnerable point.

In Scarborough v. United States, 431 U.S. 563 (1977), the Supreme Court said that the mere fact that the gun had at some point moved in interstate commerce was enough.  But is it still enough today, with the changes in Commerce Clause jurisprudence since then?

Conor McEvily, a recent graduate of Georgetown Law, has a student note forthcoming in Georgetown Law Journal considering Scarborough as applied to the federal body armor law.  An advance version is available on SSRN.  The abstract follows the jump.