Civil Rights in an Age of Terrorism
If I were running for office, I would give the following stump speech when asked the cliched question: “How do we balance freedom with security?”
I am tired of hearing people say that because we are fighting a borderless “war on terror” we should be willing to surrender our civil rights. Indeed, we should more vigorously exercise our civil rights. Freedom leads to safety.
Exercise your constitutional right to keep and bear arms. Keep a gun (and know how to use it) for emergencies. Train your children and siblings firearm usage and safety. There is no better way to protect yourself than firearm possession. States that recognize this ultimately enact concealed carry laws, which allow law-abiding citizens to carry a firearm for protection. Certainly terrorists, both foreign and domestic, are less likely to attack an armed populace. The thug on the street is less likely to enter your home if he suspects you are armed. The terrorist is less likely to enter the public square with a bomb if he knows you are armed – and watching.
Exercise your civil right to oberve the suspicious acts of others. Whenever flying, I keep alert for suspicious activities. When at a public place I am on the look-out for all types of evildooers, be they drunks or potential terrorists.
Exercise your constitutional right to profile. Although government-sponsored racism is immoral and illegal, keeping private eyes on Arab men between the ages of 18-35 is not only constitutional (as the constitution only prohibits state action), it is prudent. Indeed, I racially profile to the extent that when I see white males in camoflague, I am ready to defend myself and others. Perhaps we have a Tim McVeigh in the group. We do know, after all, that white men in militias are not the most stable group.
Study the martial arts and remain prepared to help members of your community in need. I beat up a neighbor who used to abuse his dogs. I regularly prevent hooligans from cutting in line or bullying the weak.
Exercise your First Amendment right of freedom of thought. Turn off SportsCenter, The O’Reilly Factor, and Rush Limbaugh and pick up a book. Not the stuff of pundits such as Ann Coulter or Al Franken. Study the warrior philosophies of the East and West. Read Sun Tzu’s the Art of War and Von Clausweitz’s On War. Ask yourself if mistreating prisoners of war in Iraq is consistent with the teachings of these two experts.
Study the philosophical classics of Plato, Artistotle, Locke, and Hume. Ask yourself, Are my leaders speaking truth or telling me lies, noble lies, for my own good? Cross-reference Bill Clinton’s taking holy communion with the appropriate advice Machavelli gives politicians in The Prince.
Always ask yourself: Is my government telling me the truth?
If you exercise your civil rights to their fullest, you will find that safety invariable follows. You will be protected from evil that comes from all sources, including the government.
A blog devoted to law, politics, philosophy, & life. Nothing in this blog is to be construed as legal advice.
Tuesday, May 04, 2004
Wednesday, April 21, 2004
Tuesday, April 20, 2004
So maybe the problem isn't with the Intel's intel
Please see this site. I conclude that the only "intelligence" problem we have is with the intelligence of the people reading the FBI's reports.
Please see this site. I conclude that the only "intelligence" problem we have is with the intelligence of the people reading the FBI's reports.
Tuesday, April 13, 2004
Feeney Amendment and ex post facto laws
Ruling it is "procedural rather than substantive," the 2nd U.S. Circuit Court of Appeals has joined other circuits in applying the PROTECT Act's de novo review of federal sentences to appeals that were pending when the act was passed.
(Free registration required).
Pre-Feeney, a judge's decision to grant a downward departure was subject to an abuse of discretion standard of review. (Koon v. United States). The Feeney Amendment provided that sentencing decisions would not be subject to de novo review. The Feeney Amendment applied retroactively.
The legal issue is fascinating. We know that a change in a rule of evidence that makes it easier for the prosecution to prove a defendant's guilt violates the ex post facto clause. It seems to me that a procedural rule that makes a harsher sentence more likely also violates the ex post facto clause.
Ruling it is "procedural rather than substantive," the 2nd U.S. Circuit Court of Appeals has joined other circuits in applying the PROTECT Act's de novo review of federal sentences to appeals that were pending when the act was passed.
(Free registration required).
Pre-Feeney, a judge's decision to grant a downward departure was subject to an abuse of discretion standard of review. (Koon v. United States). The Feeney Amendment provided that sentencing decisions would not be subject to de novo review. The Feeney Amendment applied retroactively.
The legal issue is fascinating. We know that a change in a rule of evidence that makes it easier for the prosecution to prove a defendant's guilt violates the ex post facto clause. It seems to me that a procedural rule that makes a harsher sentence more likely also violates the ex post facto clause.
Half a cup of justice
County Attorney Barbara LaWall hired James Stuehringer to represent Peasley as he fought disbarment for allowing former Tucson Police Department Officer Joseph Godoy to lie on the stand in two capital murder trials.
If these charges are true, then a prosecution must follow.
County Attorney Barbara LaWall hired James Stuehringer to represent Peasley as he fought disbarment for allowing former Tucson Police Department Officer Joseph Godoy to lie on the stand in two capital murder trials.
If these charges are true, then a prosecution must follow.
Tuesday, April 06, 2004
Real rape
The story below shows how disgracefully our criminal justice system treats victims of false accusations of rape. Whoever was falsely accused most likely:
1. Was booked into jail where he faced being raped himself
2. Must disclose in his application for any government job that he was arrested
3. Must disclose to any State Bar he applies to that he was arrested
4. Paid thousands of dollars in legal fees
5. Lived his life in daily fear because, if convicted, he would:
a. have been raped almost daily in prison (sex offenders are the most at-risk prisoners),
b. had to register as a sex offender,
c. had his face posted on the internet for all to see.
The defendant will have his arrest record follow him for the rest of his life. But, acording to the below news report, the woman who sought to ruin his life because she (IMHO) got drunk, had sex, and felt regret...gets probation because she sent her friends to beat the defendant up - NOT because she filed a false report!
Can anyone disagree with Kobe's defense tactics? False accusations of rape happen every day. But women's activist groups seek to shackle the defense. Imagine if the defendant in this case had been convicted? Who is the real victim here?
A 22-year old woman who falsely accused a man of drugging and raping her receives two years probation.
Kristy Holden told police 24-year old David Mills raped her last June.
Friday in a Wake County Courtroom, Holden changed her story and admitted the sex was consensual.
When Holden told one of her friends Mills raped her, a group of men retaliated by beating up Mills.
Seven of the eight attackers are also on probation.
Holden was convicted of conspiracy and being an accessory to the crime.
Story via CrimLaw.
The story below shows how disgracefully our criminal justice system treats victims of false accusations of rape. Whoever was falsely accused most likely:
1. Was booked into jail where he faced being raped himself
2. Must disclose in his application for any government job that he was arrested
3. Must disclose to any State Bar he applies to that he was arrested
4. Paid thousands of dollars in legal fees
5. Lived his life in daily fear because, if convicted, he would:
a. have been raped almost daily in prison (sex offenders are the most at-risk prisoners),
b. had to register as a sex offender,
c. had his face posted on the internet for all to see.
The defendant will have his arrest record follow him for the rest of his life. But, acording to the below news report, the woman who sought to ruin his life because she (IMHO) got drunk, had sex, and felt regret...gets probation because she sent her friends to beat the defendant up - NOT because she filed a false report!
Can anyone disagree with Kobe's defense tactics? False accusations of rape happen every day. But women's activist groups seek to shackle the defense. Imagine if the defendant in this case had been convicted? Who is the real victim here?
A 22-year old woman who falsely accused a man of drugging and raping her receives two years probation.
Kristy Holden told police 24-year old David Mills raped her last June.
Friday in a Wake County Courtroom, Holden changed her story and admitted the sex was consensual.
When Holden told one of her friends Mills raped her, a group of men retaliated by beating up Mills.
Seven of the eight attackers are also on probation.
Holden was convicted of conspiracy and being an accessory to the crime.
Story via CrimLaw.
Bad news...Illinois v. Caballes
It is always bad news when the Supreme Court grants cert. in a Fourth Amendment case where the lower court sided with the private citizen.
Illinois v. Caballes asks whether an officer can detain a private citizen while a police officer uses a drug dog to search his car for contraband.
Via Goldstein & Howe.
It is always bad news when the Supreme Court grants cert. in a Fourth Amendment case where the lower court sided with the private citizen.
Illinois v. Caballes asks whether an officer can detain a private citizen while a police officer uses a drug dog to search his car for contraband.
Via Goldstein & Howe.
Friday, April 02, 2004
If numbers do not change meaning over time, then why must words?
Of course, one counter-argument is that although the meaning of numbers remain fixed, words do not have clear meanings. However, who argues that the Electoral College, Art. II, §1, cl.2 is unconstitutional in today's time. It is argued to be undemocratic when it leads to the election of a President who received 500,000 less votes than the loser. But no one argues that the Electoral College is unconstitutional. It is clearly articled in the text, after all. And yet we say that "nor shall any State deprive any person of life, liberty, or property, without due process of law", Amend. XIV, §1 creates substantive rights. How can this be? The words clearly indicate that the State may deprive us of life, liberty, or property, if it provides due process of law.
Why must some portions of the text be read literally while others must not?
Of course, one counter-argument is that although the meaning of numbers remain fixed, words do not have clear meanings. However, who argues that the Electoral College, Art. II, §1, cl.2 is unconstitutional in today's time. It is argued to be undemocratic when it leads to the election of a President who received 500,000 less votes than the loser. But no one argues that the Electoral College is unconstitutional. It is clearly articled in the text, after all. And yet we say that "nor shall any State deprive any person of life, liberty, or property, without due process of law", Amend. XIV, §1 creates substantive rights. How can this be? The words clearly indicate that the State may deprive us of life, liberty, or property, if it provides due process of law.
Why must some portions of the text be read literally while others must not?
The right to privacy
The pro-abortion forces think they have a monopoly on the term "the right to privacy," which means the right to kill the unborn. Very often some poll will come out showing that a supermajority of Americans support the right to privacy. And although no intelligent person believes that the right to privacy means the right to kill, a book I have been reading offers examples of what Americans traditionally regarded as the right to privacy.
Edward Bennett Williams, the preeminent lawyer of his generation wrote One Man's Freedom (Atheneum 1962). Before his 40th birthday, Mr. Williams represented, among other people, Jimmy Hoffa, Senator Joseph McCarthy, and Representative Adam Clayton Powell, Jr. His law firm remains prominent and stands as testament to his life's work - Williams & Connolly. The Index to this book lists six references to the "privacy, right to" - pp. 88, 91, 96, 97,102, 118.
Among the most notable as these: "We all have a vital stake in the preservation of the right to privacy - the privacy of the home, the privacy of your thoughts and words, the privacy of our conservations, both face to face and telephonic." Id. at 88. And "This [the Fourth Amendment] was the effort of this nation's founding fathers to protect the individual's right to privacy." Id. at 97
Chapter 6 (pp. 88-105) was titled, The Listeners at the Walls and deals with bugs and other surreptitious listening devices. Chapter 7 (pp. 106-121), The Party Line, argues that wire taps should be covered under the Fourth Amendment.
Certainly people may argue that allowing a doctor to cut open the skull of a fetus has to do with privacy (just as the person who commits murder in his own home may seek to do so privately) does not mean that they have the right to stake claim to the English language.
The living Constitution
Justice Kennedy recently said, "Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see laws that once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence v. Texas.
But we don't hear these arguments as to other Constitutional provisions. No one says, Article I §2, cl. 2 ("No Person shall be a Representative who shall not have attained the Age of twenty five Years") really means that a person must have reached a certain level of maturity before reaching office. And that today, people who are 25 aren't nearly as mature as someone of the same age two-hundred years ago - which is clearly true - and therefore the age of qualification must be raised. Or that "the executive Power shall be vested in a President of the United States," Art. II, §1, cl. 1 should change with our times: we maybe need two Presidents instead of one. Finally (but not exhaustively) no one argues that the Seventh Amendment be adjusted for inflation. ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved [ ].")
The pro-abortion forces think they have a monopoly on the term "the right to privacy," which means the right to kill the unborn. Very often some poll will come out showing that a supermajority of Americans support the right to privacy. And although no intelligent person believes that the right to privacy means the right to kill, a book I have been reading offers examples of what Americans traditionally regarded as the right to privacy.
Edward Bennett Williams, the preeminent lawyer of his generation wrote One Man's Freedom (Atheneum 1962). Before his 40th birthday, Mr. Williams represented, among other people, Jimmy Hoffa, Senator Joseph McCarthy, and Representative Adam Clayton Powell, Jr. His law firm remains prominent and stands as testament to his life's work - Williams & Connolly. The Index to this book lists six references to the "privacy, right to" - pp. 88, 91, 96, 97,102, 118.
Among the most notable as these: "We all have a vital stake in the preservation of the right to privacy - the privacy of the home, the privacy of your thoughts and words, the privacy of our conservations, both face to face and telephonic." Id. at 88. And "This [the Fourth Amendment] was the effort of this nation's founding fathers to protect the individual's right to privacy." Id. at 97
Chapter 6 (pp. 88-105) was titled, The Listeners at the Walls and deals with bugs and other surreptitious listening devices. Chapter 7 (pp. 106-121), The Party Line, argues that wire taps should be covered under the Fourth Amendment.
Certainly people may argue that allowing a doctor to cut open the skull of a fetus has to do with privacy (just as the person who commits murder in his own home may seek to do so privately) does not mean that they have the right to stake claim to the English language.
The living Constitution
Justice Kennedy recently said, "Had those who drew and ratified the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see laws that once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom." Lawrence v. Texas.
But we don't hear these arguments as to other Constitutional provisions. No one says, Article I §2, cl. 2 ("No Person shall be a Representative who shall not have attained the Age of twenty five Years") really means that a person must have reached a certain level of maturity before reaching office. And that today, people who are 25 aren't nearly as mature as someone of the same age two-hundred years ago - which is clearly true - and therefore the age of qualification must be raised. Or that "the executive Power shall be vested in a President of the United States," Art. II, §1, cl. 1 should change with our times: we maybe need two Presidents instead of one. Finally (but not exhaustively) no one argues that the Seventh Amendment be adjusted for inflation. ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved [ ].")
Race, One-hundred & twenty-nine years later.
In support of a 1875 bill to "protect all citizens in their civil rights," 18 Stat. 335 (1875), Congressman Butler had this to say:
"There is not a white man [in] the South that would not associate with the negro - all that is required of this bill - if that negro were his servant. He would eat with him, suckle from her, play with her or him as children, be together with them in every way, provided they were slaves. There has never been an objection to such an association. But the moment you elevate this black man to citizenship from a slave, then immediately he becomes offensive." Debate on 1875 Bill, 3 Cong. Rec. 940 (1875).
In support of a 1875 bill to "protect all citizens in their civil rights," 18 Stat. 335 (1875), Congressman Butler had this to say:
"There is not a white man [in] the South that would not associate with the negro - all that is required of this bill - if that negro were his servant. He would eat with him, suckle from her, play with her or him as children, be together with them in every way, provided they were slaves. There has never been an objection to such an association. But the moment you elevate this black man to citizenship from a slave, then immediately he becomes offensive." Debate on 1875 Bill, 3 Cong. Rec. 940 (1875).
Thursday, April 01, 2004
CrimLaw
Since I have been getting some high quality traffic lately, I want to refer the readers of the Greedy Clerk Board and How Appalling to my favorite web log, Crimlaw.
Ken Lammers is a fresh lawyer with a lot of talent. On his blog you can read a writing sample and closing argument from his different cases. Someday when he is big time, we can be proud to say, "We read his blog, when."
Expect more posting tomorrow.
Since I have been getting some high quality traffic lately, I want to refer the readers of the Greedy Clerk Board and How Appalling to my favorite web log, Crimlaw.
Ken Lammers is a fresh lawyer with a lot of talent. On his blog you can read a writing sample and closing argument from his different cases. Someday when he is big time, we can be proud to say, "We read his blog, when."
Expect more posting tomorrow.
Wednesday, March 31, 2004
Leggo my ‘ego
I have been reading with much laughter the How Appalling blog, which parodies How Appealing and the perceived lack of humility of its owner. This discussion here shows we all have a little too much ego in us. Bloggers, in general, have issues. We put sitemeters on our blogs. We Google our blogs. We see who is linking to us so we post that someone is linking to us. We remind ourselves to link to those who link to us (in hopes that they will link back to us).
My nightly to do list includes:
1. Google my full name “in quotes.” Google name without “quotes”; with middle name; with middle initial; without middle initial; with shortened version of my first name.
2. Breath sigh of relief when Overpundit does not show up as a hit with my name. My privacy is safe. Become frustrated when something I posted when I was nineteen (using foul language) is available for the world to see. After all, the world IS watching.
3. Reflect on No. 2. Realize that NO ONE cares who I am. And that those who do don’t care enough to Google me, especially given number of derivatives of my name.
4. Reflect on No. 3. Repudiate No. 3.
5. Look at my sitemeter. Realize that I don’t get very many daily hits.
6. Realize that I have a group of small but dedicated loyal readers. Continue the mission.
7. Reflect on No. 6. Realize I must be like Wittgenstein or Nietzsche. Look at favorable results in cases, acceptance letters from Top 25 law schools, and grades to validate self (because like the philosopher Berkeley, I am afraid that my worth as a person disappears when I turn away from these human accomplishments). Alas, the world doesn’t understand me.
8. Reflect on No. 7. Realize that my IQ barely qualifies me to attend the local tavern. Besides, I am not at MIT or Caltech studying cosmology or astrophysics. Instead, I am at law school. Even Judge Posner admitted, “Law is not the calling of geniuses.”
9. Reflect on No. 8. Repudiate No. 8.
10. Remind myself to repeat Nos. 1-9 first thing in the morning.
UPDATE: As I look at this list, which was meant as a joke, I see some truth in it. It is amazing how much worth we place on material things. I mock people who buy expensive clothes, houses, and cars – must keep up with the Smith’s. Yet don’t I do the same thing? Don’t I say, “Boy, no one I know has had a brief lead to X result. No one scored this high a grade in Y. No one I know has X’s direct phone number or worked with lawyer Z.” It really makes me sad to realize how much weight I place on these things.
Kant said that when you sit in a dark room, alone, only then are you with your true self. Can this be? Can we be – i.e., exist in our own minds – attached from worldly trappings or accomplishments? What about spiritual accomplishments. Don’t we too often turn these into worldly trappings by thinking, “I am enlightened. I understand this scripture or solved this Zen riddle?”
I think that law school turns people into status whores. Before law school I reflected on life, truth, goodness: I now consider those “fluffy” subjects left to people not smart enough for the rigor of law. And yet my mind was sharper pre-law. A good philosophy graduate student would smoke any law professor or lawyer in a debate. I would put my reputation on a Princeton graduate student against Lawrence Tribe, Alan Dershowtiz, Doug Kmiec, Ken Starr, etc. Contrast the journal Mind with the Harvard Law Review. Which is clearer, more persuasive? Contrast a book by Simon Blackburn or Daniel Dennett with any legal thinker, including Posner.
I met Simon Blackburn, Crispin Wright and other luminaries of philosophy. Their egos are microscopic compared to that of the average lawyer or law student. The further up the totem pole, the brighter lawyers think they are. A Yale graduate who now professes law or works at a large law firm is almost intolerable. But could he or she outsmart a Rutgers graduate student in philosophy? Yeah, right.
What is wrong here? Why the huge egos in the law when the real geniuses study theoretical math, cosmology, astrophysics, physics, among other things?
I have been reading with much laughter the How Appalling blog, which parodies How Appealing and the perceived lack of humility of its owner. This discussion here shows we all have a little too much ego in us. Bloggers, in general, have issues. We put sitemeters on our blogs. We Google our blogs. We see who is linking to us so we post that someone is linking to us. We remind ourselves to link to those who link to us (in hopes that they will link back to us).
My nightly to do list includes:
1. Google my full name “in quotes.” Google name without “quotes”; with middle name; with middle initial; without middle initial; with shortened version of my first name.
2. Breath sigh of relief when Overpundit does not show up as a hit with my name. My privacy is safe. Become frustrated when something I posted when I was nineteen (using foul language) is available for the world to see. After all, the world IS watching.
3. Reflect on No. 2. Realize that NO ONE cares who I am. And that those who do don’t care enough to Google me, especially given number of derivatives of my name.
4. Reflect on No. 3. Repudiate No. 3.
5. Look at my sitemeter. Realize that I don’t get very many daily hits.
6. Realize that I have a group of small but dedicated loyal readers. Continue the mission.
7. Reflect on No. 6. Realize I must be like Wittgenstein or Nietzsche. Look at favorable results in cases, acceptance letters from Top 25 law schools, and grades to validate self (because like the philosopher Berkeley, I am afraid that my worth as a person disappears when I turn away from these human accomplishments). Alas, the world doesn’t understand me.
8. Reflect on No. 7. Realize that my IQ barely qualifies me to attend the local tavern. Besides, I am not at MIT or Caltech studying cosmology or astrophysics. Instead, I am at law school. Even Judge Posner admitted, “Law is not the calling of geniuses.”
9. Reflect on No. 8. Repudiate No. 8.
10. Remind myself to repeat Nos. 1-9 first thing in the morning.
UPDATE: As I look at this list, which was meant as a joke, I see some truth in it. It is amazing how much worth we place on material things. I mock people who buy expensive clothes, houses, and cars – must keep up with the Smith’s. Yet don’t I do the same thing? Don’t I say, “Boy, no one I know has had a brief lead to X result. No one scored this high a grade in Y. No one I know has X’s direct phone number or worked with lawyer Z.” It really makes me sad to realize how much weight I place on these things.
Kant said that when you sit in a dark room, alone, only then are you with your true self. Can this be? Can we be – i.e., exist in our own minds – attached from worldly trappings or accomplishments? What about spiritual accomplishments. Don’t we too often turn these into worldly trappings by thinking, “I am enlightened. I understand this scripture or solved this Zen riddle?”
I think that law school turns people into status whores. Before law school I reflected on life, truth, goodness: I now consider those “fluffy” subjects left to people not smart enough for the rigor of law. And yet my mind was sharper pre-law. A good philosophy graduate student would smoke any law professor or lawyer in a debate. I would put my reputation on a Princeton graduate student against Lawrence Tribe, Alan Dershowtiz, Doug Kmiec, Ken Starr, etc. Contrast the journal Mind with the Harvard Law Review. Which is clearer, more persuasive? Contrast a book by Simon Blackburn or Daniel Dennett with any legal thinker, including Posner.
I met Simon Blackburn, Crispin Wright and other luminaries of philosophy. Their egos are microscopic compared to that of the average lawyer or law student. The further up the totem pole, the brighter lawyers think they are. A Yale graduate who now professes law or works at a large law firm is almost intolerable. But could he or she outsmart a Rutgers graduate student in philosophy? Yeah, right.
What is wrong here? Why the huge egos in the law when the real geniuses study theoretical math, cosmology, astrophysics, physics, among other things?
Monday, March 29, 2004
Excepting their way around the Fourth Amendment…
Most of us do not decide to gain thirty pounds, to become intolerably grouchy, or to become immoral. Rome was not built in a day. Nor did Rome crumble in a day. Rather, as C.S. Lewis said, “The road to hell is a gentle slope.” So too is the road to tyranny.
The text of the Fourth Amendment…
The Fourth Amendment provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be infringed, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or thing to be seized.” The Founders could have worded the Fourth Amendment differently. It could have read, “The police can search and seize persons and things whenever it is reasonable.” In other words, it could have omitted the Warrant Clause as well as place the emphasis on law enforcement goals, rather than individual rights.
However, the Fourth Amendment was enacted by former criminals, namely revolutionaries who committed treason against Great Britain when they declared their independence, tax evaders who would not pay tea tax, and smugglers who imported goods without paying duty. Naturally, they had a catch-me-if-you-can attitude. The Fourth Amendment italicized if you can by prohibiting warrantless searches and general search warrants (which the British had used to enter ships looking for evidence of general wrongdoing. Our Constitution requires that the police have probable cause that you are committing a crime, a specific crime. It is not enough for law enforcement to say, “Boys, let’s find something out about Smith”). Thus, narrowly drawn search warrants are favored by the Fourth Amendment.
Because of the conjunctive, “and no Warrants shall issue” the Court originally reasoned that a search without a warrant was presumptively unreasonable. After all, if a search without a warrant was generally reasonable in the eyes of the drafters of the Fourth Amendment, then the Warrant Clause would have been unnecessary verbiage.
Each time a federal court provides that a warrantless search is reasonable, it makes the Warrant Clause so much dicta. Why obtain a warrant (which requires judicial approval and probable cause and limits the scope of a search) when one of a dozen exceptions apply? An exception gives the officer free reign.
Nonetheless, we can all imagine necessary and proper exceptions to the general warrant requirement. For example, if a police officer saw a man running from a bank with bags of money, it would be reasonable – indeed, theoretically required – for him to seize the culprit without a warrant. However, this exception was too narrow for law enforcement. Rarely do crimes solve themselves. Rarely do police have direct evidence of wrongdoing. It takes hard work to solve crimes. Good sleuthing takes time. The Fourth Amendment got in they way: it made the work harder. Something had to be done. The courts were willing to help.
Beginning with Terry v. Ohio, our Fourth Amendment protections were first narrowed, then excepted. In Terry the Supreme Court held that police may seize someone without probable cause: all that was necessary was reasonable suspicion. However, this seizure must be brief. Somehow, the brevity of a seizure exempted it from the Fourth Amendment’s text. The Court then went full force, recognizing at least eight more exceptions to the Warrant Clause. This brings us to United States v. Gould.
United States v. Gould
The police had a tip that Gould was up to no good. By all accounts he was a scoundrel. None of us would like him. If we saw him getting beaten up in a bar, we would cheer.
The police knew that Gould rented a small trailer home (14 by 16 feet). They went to his apartment to talk to find out what he was up to. They did not have a search or arrest warrant. Based on the information the police had, they probably could have obtained a search warrant.
They knocked on the door to the trailer. Gould’s friend answered. The police officer did not know this friend. The police asked if they could come in. The friend said yes. The police asked where Gould was. The friend said, he is in his the bedroom sleeping. The friend said you can go search Gould’s bedroom for him.
Gould’s friend did not own or rent the apartment. Gould’s friend certainly did not own or rent the space where Gould was sleeping. Nevertheless, the police were allowed to search Gould’s private articles because it was “reasonable” for them to think that the friend could consent to this search. The apparent authority exception applied. Why was it reasonable?
Did the police ask if the friend could consent to the search? Did they ask the friend if he rented the apartment or otherwise was in control of it? Did they ask him whether Gould gave him access to Gould’s bedroom?
No. The police need not ask the person consenting to the search if he has the authority to consent. The apparent authority exception still applies. It is reasonable to draw conclusions without facts. It may frustrate law enforcement to find out that the person consenting to the search has no right to do so. The Fourth Amendment must give way to the practicalities of life.
Bedroom eyes…
The police then walked down the hall towards Gould’s bedroom. The door to his bedroom is open. The police can see in plain view that Gould is not sleeping in his bed. They walk in anyhow.
The police decide that their safety requires them to search under his bed and in his closets to see if Gould is hiding. The three armed officers said they feared for their safety. The police found guns in Gould’s closet. Since Gould was a convicted felon, he committed a federal crime by possessing firearms.
Gould was rotten to the core. Nonetheless, the police were in his bedroom without a warrant and without his consent. The search is allowed under the protective sweep exception to the Fourth Amendment. It took two exceptions to the Fourth Amendment, but it’s okay since the police got the goods.
Soundly reasoned…
The problem with Gould is that the reasoning is not overly flawed. It makes a few missteps but is not wholly fallacious. The problem with Gould is that the reasoning is reasonable because we have diverted from the text of the Fourth Amendment. One exception here, one exception there, and before long, the Fourth Amendment does not apply.
This scary language…
“If the fact that Gould was not in his bed or otherwise visible in the bedroom can be taken as signifying a refusal on his part to talk to the officers and in that sense a termination of their consent to be in the mobile home for that purpose, nevertheless that does not mean that the officers could not conduct the sweep.” (footnote omitted) Slip opinion at 30-31. In other words, even if you tell the police to get out of your house, they can search it on their way out.
Reality…
Imagine an acquaintance (re: not a close friend) knocks on your door looking for you. He looks in the bedroom and sees you’re not there. This person then walks into your bedroom and looks through your stuff. Is that reasonable? Would you feel that your right to privacy was violated? Would it matter if your friend said it was okay for the acquaintance to search through your things?
Imagine a complete stranger comes looking for you, and not finding you, looks through your things. Would that be reasonable? May I come over to your house to look through your things? If your friend allows me to, does it matter?
The police are strangers. The power of the government is not to be trusted. The Founders recognized this, which is why we have federalism, separation of powers, and a Bill of Rights. The Reconstruction Era United States recognized that states, like the federal government, are not to be trusted with our liberty. And so they enacted the Fourteenth Amendment, which was intended to incorporate the Bill of Rights to the states.
No apologist…
I am not an idealist or radical civil libertarian who things that even scoundrels have rights. I am not that enlightened (though I wish I were – after all, in God’s eyes we are all equals). But I am selfish about my rights. I do not want the police – or anyone – going into my apartment without a warrant and searching through my things, even though I am quite boring and don’t even own pornographic materials or subversive books like Paine’s Common Sense.
However, I have a near-religious devotion to the Constitution. Thousands of men and women died so that we may be free from the intrusive federal government. Half a million more died so that states would have their power over us limited. The Founders recognized that we the people may decide that the Constitution is no longer a good fit. Consequently, it allows itself to be amended: we the people (by 2/3 votes of each house of Congress and popular vote of 38 States) can correct anything we don’t like. It is for you and me – not unelected federal judges – to decide.
As Benjamin Franklin walked out of the Constitutional Convention, a woman asked, “What have you wrought?” He said, “A Republic, if you can keep it.” It seems that we can’t.
And slowly we decline…
Most of us do not decide to gain thirty pounds, to become intolerably grouchy, or to become immoral. Rome was not built in a day. Nor did Rome crumble in a day. Rather, as C.S. Lewis said, “The road to hell is a gentle slope.” So too is the road to tyranny.
The text of the Fourth Amendment…
The Fourth Amendment provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be infringed, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or thing to be seized.” The Founders could have worded the Fourth Amendment differently. It could have read, “The police can search and seize persons and things whenever it is reasonable.” In other words, it could have omitted the Warrant Clause as well as place the emphasis on law enforcement goals, rather than individual rights.
However, the Fourth Amendment was enacted by former criminals, namely revolutionaries who committed treason against Great Britain when they declared their independence, tax evaders who would not pay tea tax, and smugglers who imported goods without paying duty. Naturally, they had a catch-me-if-you-can attitude. The Fourth Amendment italicized if you can by prohibiting warrantless searches and general search warrants (which the British had used to enter ships looking for evidence of general wrongdoing. Our Constitution requires that the police have probable cause that you are committing a crime, a specific crime. It is not enough for law enforcement to say, “Boys, let’s find something out about Smith”). Thus, narrowly drawn search warrants are favored by the Fourth Amendment.
Because of the conjunctive, “and no Warrants shall issue” the Court originally reasoned that a search without a warrant was presumptively unreasonable. After all, if a search without a warrant was generally reasonable in the eyes of the drafters of the Fourth Amendment, then the Warrant Clause would have been unnecessary verbiage.
Each time a federal court provides that a warrantless search is reasonable, it makes the Warrant Clause so much dicta. Why obtain a warrant (which requires judicial approval and probable cause and limits the scope of a search) when one of a dozen exceptions apply? An exception gives the officer free reign.
Nonetheless, we can all imagine necessary and proper exceptions to the general warrant requirement. For example, if a police officer saw a man running from a bank with bags of money, it would be reasonable – indeed, theoretically required – for him to seize the culprit without a warrant. However, this exception was too narrow for law enforcement. Rarely do crimes solve themselves. Rarely do police have direct evidence of wrongdoing. It takes hard work to solve crimes. Good sleuthing takes time. The Fourth Amendment got in they way: it made the work harder. Something had to be done. The courts were willing to help.
Beginning with Terry v. Ohio, our Fourth Amendment protections were first narrowed, then excepted. In Terry the Supreme Court held that police may seize someone without probable cause: all that was necessary was reasonable suspicion. However, this seizure must be brief. Somehow, the brevity of a seizure exempted it from the Fourth Amendment’s text. The Court then went full force, recognizing at least eight more exceptions to the Warrant Clause. This brings us to United States v. Gould.
United States v. Gould
The police had a tip that Gould was up to no good. By all accounts he was a scoundrel. None of us would like him. If we saw him getting beaten up in a bar, we would cheer.
The police knew that Gould rented a small trailer home (14 by 16 feet). They went to his apartment to talk to find out what he was up to. They did not have a search or arrest warrant. Based on the information the police had, they probably could have obtained a search warrant.
They knocked on the door to the trailer. Gould’s friend answered. The police officer did not know this friend. The police asked if they could come in. The friend said yes. The police asked where Gould was. The friend said, he is in his the bedroom sleeping. The friend said you can go search Gould’s bedroom for him.
Gould’s friend did not own or rent the apartment. Gould’s friend certainly did not own or rent the space where Gould was sleeping. Nevertheless, the police were allowed to search Gould’s private articles because it was “reasonable” for them to think that the friend could consent to this search. The apparent authority exception applied. Why was it reasonable?
Did the police ask if the friend could consent to the search? Did they ask the friend if he rented the apartment or otherwise was in control of it? Did they ask him whether Gould gave him access to Gould’s bedroom?
No. The police need not ask the person consenting to the search if he has the authority to consent. The apparent authority exception still applies. It is reasonable to draw conclusions without facts. It may frustrate law enforcement to find out that the person consenting to the search has no right to do so. The Fourth Amendment must give way to the practicalities of life.
Bedroom eyes…
The police then walked down the hall towards Gould’s bedroom. The door to his bedroom is open. The police can see in plain view that Gould is not sleeping in his bed. They walk in anyhow.
The police decide that their safety requires them to search under his bed and in his closets to see if Gould is hiding. The three armed officers said they feared for their safety. The police found guns in Gould’s closet. Since Gould was a convicted felon, he committed a federal crime by possessing firearms.
Gould was rotten to the core. Nonetheless, the police were in his bedroom without a warrant and without his consent. The search is allowed under the protective sweep exception to the Fourth Amendment. It took two exceptions to the Fourth Amendment, but it’s okay since the police got the goods.
Soundly reasoned…
The problem with Gould is that the reasoning is not overly flawed. It makes a few missteps but is not wholly fallacious. The problem with Gould is that the reasoning is reasonable because we have diverted from the text of the Fourth Amendment. One exception here, one exception there, and before long, the Fourth Amendment does not apply.
This scary language…
“If the fact that Gould was not in his bed or otherwise visible in the bedroom can be taken as signifying a refusal on his part to talk to the officers and in that sense a termination of their consent to be in the mobile home for that purpose, nevertheless that does not mean that the officers could not conduct the sweep.” (footnote omitted) Slip opinion at 30-31. In other words, even if you tell the police to get out of your house, they can search it on their way out.
Reality…
Imagine an acquaintance (re: not a close friend) knocks on your door looking for you. He looks in the bedroom and sees you’re not there. This person then walks into your bedroom and looks through your stuff. Is that reasonable? Would you feel that your right to privacy was violated? Would it matter if your friend said it was okay for the acquaintance to search through your things?
Imagine a complete stranger comes looking for you, and not finding you, looks through your things. Would that be reasonable? May I come over to your house to look through your things? If your friend allows me to, does it matter?
The police are strangers. The power of the government is not to be trusted. The Founders recognized this, which is why we have federalism, separation of powers, and a Bill of Rights. The Reconstruction Era United States recognized that states, like the federal government, are not to be trusted with our liberty. And so they enacted the Fourteenth Amendment, which was intended to incorporate the Bill of Rights to the states.
No apologist…
I am not an idealist or radical civil libertarian who things that even scoundrels have rights. I am not that enlightened (though I wish I were – after all, in God’s eyes we are all equals). But I am selfish about my rights. I do not want the police – or anyone – going into my apartment without a warrant and searching through my things, even though I am quite boring and don’t even own pornographic materials or subversive books like Paine’s Common Sense.
However, I have a near-religious devotion to the Constitution. Thousands of men and women died so that we may be free from the intrusive federal government. Half a million more died so that states would have their power over us limited. The Founders recognized that we the people may decide that the Constitution is no longer a good fit. Consequently, it allows itself to be amended: we the people (by 2/3 votes of each house of Congress and popular vote of 38 States) can correct anything we don’t like. It is for you and me – not unelected federal judges – to decide.
As Benjamin Franklin walked out of the Constitutional Convention, a woman asked, “What have you wrought?” He said, “A Republic, if you can keep it.” It seems that we can’t.
And slowly we decline…
The Fourth Amendment has been re-written
"The right of the police to search and seize shall not be infringed, and no warrant shall be necessary if the police officer believes one is not necessary."
"The right of the police to search and seize shall not be infringed, and no warrant shall be necessary if the police officer believes one is not necessary."
Wednesday, March 24, 2004
Hearsay hearings
In California, as well as many other states, the trial court may rely on hearsay statements for their truth in determining whether a defendant shall be held to answer (re: whether there is probable cause that a crime was committed and that it was committed by the defendant). Preliminary hearings are thus a sham. A police officer takes the stand. The police officer relates to the court what witnesses heard, said, smelled, etc. This testimony is offered for the truth of the matter asserted. Defendants are held to answer without ever having the opportunity to run the testimony of the witness through the crucible.
Does the rule in Crawford v. Washington (No. 02-9410)sweep broadly enough that this practice is no longer constitutional?
In California, as well as many other states, the trial court may rely on hearsay statements for their truth in determining whether a defendant shall be held to answer (re: whether there is probable cause that a crime was committed and that it was committed by the defendant). Preliminary hearings are thus a sham. A police officer takes the stand. The police officer relates to the court what witnesses heard, said, smelled, etc. This testimony is offered for the truth of the matter asserted. Defendants are held to answer without ever having the opportunity to run the testimony of the witness through the crucible.
Does the rule in Crawford v. Washington (No. 02-9410)sweep broadly enough that this practice is no longer constitutional?
Sympathy?
CrimLaw notes an article discussing the recent severity of white collar criminal offenses.
I am not sympathetic to the plight of white collar criminal offenders. For years they have lobbied the state court systems to ensure that petty thieves would suffer severe punishment. For example, in California a person commits felony (grand) theft if he steals an object worth $400 or more. Almost EVERYTHING in California costs $400 or more. But these stiff penalities were lobbied for by the wealthy to protect the wealthy.
Now the wealthy are on the receiving end of overly harsh penalities. It sucks, huh?
CrimLaw notes an article discussing the recent severity of white collar criminal offenses.
I am not sympathetic to the plight of white collar criminal offenders. For years they have lobbied the state court systems to ensure that petty thieves would suffer severe punishment. For example, in California a person commits felony (grand) theft if he steals an object worth $400 or more. Almost EVERYTHING in California costs $400 or more. But these stiff penalities were lobbied for by the wealthy to protect the wealthy.
Now the wealthy are on the receiving end of overly harsh penalities. It sucks, huh?
Standing after Pringle
In Maryland v. Pringle (No. 02-809), the Supreme Court held that a police officer may arrest every occupant of a car if the officer finds illegal drugs in that car and none admit to owning the drugs.
Shouldn't this mean that each occupant of a car now has standing to challenge the lawfulness of a search of the car in which they ride? If each occupant of the car can be held liable for the contents of the car, then can't we fairly say that each occupant has a concomitant privacy interest in a vehicle's contents?
In Maryland v. Pringle (No. 02-809), the Supreme Court held that a police officer may arrest every occupant of a car if the officer finds illegal drugs in that car and none admit to owning the drugs.
Shouldn't this mean that each occupant of a car now has standing to challenge the lawfulness of a search of the car in which they ride? If each occupant of the car can be held liable for the contents of the car, then can't we fairly say that each occupant has a concomitant privacy interest in a vehicle's contents?
Tuesday, March 23, 2004
Monday, March 22, 2004
Oh how the times have changed
The author of a 1982 book about finding a job as a lawyer provides this advice:
"There may be instances in which younger lawyers escorting you to dinner may offer or use marijuana or other narcotics. Even if you normally use marijuana, prudence suggests abstinence during the interviewing process. You simply are unable to gauge the effect of such an action, however innocent or otherwise appropriate, in the interviewing process. The same may be said of opportunities for sexual encounters, particularly with people from the firm you are visiting." Joseph Ryan, Stating Your Case: How to Interview for a Job as a Lawyer at 75 (West 1982).
I can't imagine today's lawyers offering drugs to interviewees, unless maybe you were interviewing with NORML.
The author of a 1982 book about finding a job as a lawyer provides this advice:
"There may be instances in which younger lawyers escorting you to dinner may offer or use marijuana or other narcotics. Even if you normally use marijuana, prudence suggests abstinence during the interviewing process. You simply are unable to gauge the effect of such an action, however innocent or otherwise appropriate, in the interviewing process. The same may be said of opportunities for sexual encounters, particularly with people from the firm you are visiting." Joseph Ryan, Stating Your Case: How to Interview for a Job as a Lawyer at 75 (West 1982).
I can't imagine today's lawyers offering drugs to interviewees, unless maybe you were interviewing with NORML.
Priorities
Which is more important to you as a concerned citizen: 1. Justice Antonin Scalia went duck hunting with several of his long-time friends, including Vice President Cheney; or 2. Senate Democrats delayed the confirmation of at least one federal judge in order to manufacture the result of a pending appellate case?
Chances are that many Americans do not know that special-interest groups sent a memo to Senator Ted Kennedy, asking that he delay the confirmation of any Bush-appointee judges to the Sixth Circuit Court of Appeals. The reason? The Sixth Circuit was going to hear the University of Michigan affirmative actions cases. These special interest groups were afraid that a Bush-appointee would vote to strike down the programs.
Senator Kennedy was pleased to please these groups: No judges were appointed to the Sixth Circuit until after it was too late for them to hear the affirmative action cases.
What is most appalling about the delay in the lack of media coverage on this scandal - Judgegate. Juxtaposed with this media blackout is the coverage of Justice Scalia's duck hunting trip. Although duck hunting with someone who is being sued before the Court shows questionable judgment, delaying the confirmation of an otherwise qualified and non-controversial judge to manufacture the result of a case is outright-criminal.
Which is more important to you as a concerned citizen: 1. Justice Antonin Scalia went duck hunting with several of his long-time friends, including Vice President Cheney; or 2. Senate Democrats delayed the confirmation of at least one federal judge in order to manufacture the result of a pending appellate case?
Chances are that many Americans do not know that special-interest groups sent a memo to Senator Ted Kennedy, asking that he delay the confirmation of any Bush-appointee judges to the Sixth Circuit Court of Appeals. The reason? The Sixth Circuit was going to hear the University of Michigan affirmative actions cases. These special interest groups were afraid that a Bush-appointee would vote to strike down the programs.
Senator Kennedy was pleased to please these groups: No judges were appointed to the Sixth Circuit until after it was too late for them to hear the affirmative action cases.
What is most appalling about the delay in the lack of media coverage on this scandal - Judgegate. Juxtaposed with this media blackout is the coverage of Justice Scalia's duck hunting trip. Although duck hunting with someone who is being sued before the Court shows questionable judgment, delaying the confirmation of an otherwise qualified and non-controversial judge to manufacture the result of a case is outright-criminal.
Friday, March 19, 2004
Sabri v. United States - draft article
This is a draft of an article I am writing. I hope to peddle it to the Champion. Anyhow, it is a work in progress, since I will need the Court's opinion to finish it. If you have any comments, please e-mail them to me.
INTRODUCTION
March, which is tornado season, is said to come "in like a lion, out like a lamb." Expect March to bring a little madness from the Supreme Court. Sabri v. United States (No. 03-44), set for argument on March 4th, has come in like a lamb, but will likely come out like a lion.
Sabri asks, among other questions, whether Congress exceeded its enumerated powers when it enacted the federal program bribery statute, 18 U.S.C. §666(a)(2). The federal program bribery statute makes is a federal offense to offer a bribe of $5,000 to any person whose organization receives over $10,000 a year in federal funds.
The Minnesota District Court rejected the government's argument that Congress had power under the Spending Clause to criminalize these bribes. The Eight Circuit agreed with the District Court but nonetheless upheld the law as valid under the Necessary and Proper Clause. Namely, under the rational basis test, Congress could have concluded that it was necessary and proper to enact the bribery statute in order to protect the money, or to ensure that the money appeared to be untainted.
BACKGROUND
Basim Omar Sabri is a property developer in Minneapolis, Minnesota. Sabri was undertaking a huge property development that would require both extensive regulatory approval and the current property owner's pre-existing structures to be condemned. Allegedly, Sabri enlisted the illicit help of a city councilman and chair of the land use arm of Minneapolis, Brian Herron, to help him achieve these ends.
The Unite States alleges that Sabri offered three separate bribes to a Herron: (1) $5,000 to threaten current property owner's with eminent domain if they would not sell their property to Sabri; (2) $10,000 if Herron would convince the city council to approve Sabri's project; and (3) $80,000 as a 10% kickback to Herron for obtaining $800,000 in grants to Sabri.
The United States thus charged Sabri with three counts of violating the federal program bribery statute, 18 U.S.C. §666(a)(2), which criminalizes bribes of $5,000 or more made to any organization that receives more than $10,000 a year in federal funding. Since Minneapolis receives approximately $28.8mm a year in federal funding, and since the bribes were all $5,000 or more, Sabri found himself under federal jurisdiction.
Sabri's council immediately challenged the facial constitutionality of the federal program bribery statute. They argued, among other things, that the statue did not require the government to prove a nexus between the alleged bribe and the federal funds. Since no showing of a federal interest was required, the law was unconstitutional, since Congress does not have the power to reach bribes that involve truly local dealings. Indeed, the law of property and whether or not Sabir would obtain local regulatory approval, of which Counts 1 & 2 are predicated upon, are truly local matters.
WHERE IS THE FEDERAL INTEREST?
The Constitution created a federal government of enumerated powers. M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961). Lacking among these enumerated powers is the so-called police power, although the Constitution does confer some textual power upon the national government in the criminal arena.
Article I, §8, Cl. 6 gives Congress the power to punish counterfeiting U.S. currency. Article I, §8, Cl. 10 provides that Congress may punish piracies and other felonies committed on the high seas. Finally, Article III, §3, Cl. 2 allows Congress to punish treason. In each of these areas, there is a substantial national interest. Indeed, states attempting to legislate in those areas will find their laws preempted.
Congress also has power to criminalize conduct that substantial affects interstate commerce. United States v. Lopez, 514 U.S. 549 (1995). However, the activity must not merely have a substantial effect on interstate commerce: the conduct must fairly be described national, and not merely local. Thus, mere possession of a firearm is not a national matter even though the illegal use of firearms may result in significant harm to the national economy. Lopez, 514 U.S. 549. Sexual assault is also not a national issue, even though gender motivated violence, in the aggregate, has a national affect. United States v. Morrison, 529 U.S. 598 (2000).
"OUR FEDERALISM" AS A METHOD OF CONSTITUTIONAL INTERPRETATION
It used to be that if Congress had an enumerated power to enact some piece of legislation, then it had the power under the Supremacy Clause to preempt any state action in that area. In order words, Congress either had the power to enact a law, or it did not. However, the modern federalism cases seem to require the Court to, as part of the initial inquiry into the scope of an enumerated power, consider the federalism implications of a broad conferral of power.
In Jones v. United States, the Supreme Court refused to interpret the federal arson statute to extend to the burning of property not involved in interstate commerce. Had the Court interpreted the federal arson statue to cover the burnings of private property not involved in interstate commerce, it would have cast serious doubts on the constitutionality of the statute. This was so even though the home Jones allegedly burned down was worth $87,500, and even though Congress alleged it had Commerce power to criminalize the arson.
In United States v. Lopez, 514 U.S. 549 (1995), the Court struck down the Guns Free School Zone Act, 18 U.S.C. 922(g)(1)(A), as exceeding Congress’ commerce power because if Congress could punish the mere possession of a firearm within 1,000 feet of a school zone, then it would also necessarily follow that Congress could regulate all garden variety crimes, family law, and education. In United States v. Morrison, 120 S.Ct. 1740 (2000) the Court struck down the Violence Against Women Act, 42 U.S.C. 13981, because if Congress had the power to provide a federal private right of action for domestic abuse (a very serious but also very local problem), then it would necessarily follow that there would be no limits on Congressional power. Finally, in Jones v. United States, 120 S.Ct. 1904 (2000) the Court construed the federal arson statute, 18 U.S.C. 844(i), narrowly since it would have had substantial constitutional defects if it extended to the burning of a home that involved in interstate commerce, even though the value of the home was not insubstantial. Collectively, these cases stand for the proposition that under the Constitution, the long arm of Washington can not extend to activities truly local in nature and matters of traditional state concern. Applying a similar analysis, we must ask if Congress has the power to enact Section 666, does it not also have the power to reach all other truly local affairs? The answer to this question is, yes.
As a matter of constitutional interpretation, a limited reading of Congressional power is required lest the Court “obliterate the distinction of what is national and what is local…” Jones & Laughlin Steel, 301 U.S. 1, 37 (1937) (Cardozo, J., concurring). “[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” United States v. Morrison, 529 U.S. 598 (2000) “[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” (internal citations and quotation marks omitted). Concerns for the proper scope of the national government - present during the founding of this great country, present during the days of the great Cardozo, and present today - should have guided the majority’s reading of the Spending Clause.
THE SPENDING CLAUSE
The Spending Clause provides that Congress shall have the “Power To … provide for the … general Welfare.” Art. I, § 8, Cl. 1. In other words, Congress has the power (unremarkable, really) to spend money. This power to spend also “is not limited by the direct grants of legislative power found in the Constitution.” United States v. Butler, 297 U.S. 1, 66 (1936). In other words, Congress may spend money on matters not specifically described in the Constitution.
Congress also has broad power under the Spending Clause to do "indirectly what is may not do directly." Congress may do so by conditioning a State's receipt of federal funds on accepting certain terms attached to that money. And so, in South Dakota v. Dole, Congress was able to persuade, ala the power of the purse, all 50 states to raise their respective drinking ages to 21.
This is a draft of an article I am writing. I hope to peddle it to the Champion. Anyhow, it is a work in progress, since I will need the Court's opinion to finish it. If you have any comments, please e-mail them to me.
INTRODUCTION
March, which is tornado season, is said to come "in like a lion, out like a lamb." Expect March to bring a little madness from the Supreme Court. Sabri v. United States (No. 03-44), set for argument on March 4th, has come in like a lamb, but will likely come out like a lion.
Sabri asks, among other questions, whether Congress exceeded its enumerated powers when it enacted the federal program bribery statute, 18 U.S.C. §666(a)(2). The federal program bribery statute makes is a federal offense to offer a bribe of $5,000 to any person whose organization receives over $10,000 a year in federal funds.
The Minnesota District Court rejected the government's argument that Congress had power under the Spending Clause to criminalize these bribes. The Eight Circuit agreed with the District Court but nonetheless upheld the law as valid under the Necessary and Proper Clause. Namely, under the rational basis test, Congress could have concluded that it was necessary and proper to enact the bribery statute in order to protect the money, or to ensure that the money appeared to be untainted.
BACKGROUND
Basim Omar Sabri is a property developer in Minneapolis, Minnesota. Sabri was undertaking a huge property development that would require both extensive regulatory approval and the current property owner's pre-existing structures to be condemned. Allegedly, Sabri enlisted the illicit help of a city councilman and chair of the land use arm of Minneapolis, Brian Herron, to help him achieve these ends.
The Unite States alleges that Sabri offered three separate bribes to a Herron: (1) $5,000 to threaten current property owner's with eminent domain if they would not sell their property to Sabri; (2) $10,000 if Herron would convince the city council to approve Sabri's project; and (3) $80,000 as a 10% kickback to Herron for obtaining $800,000 in grants to Sabri.
The United States thus charged Sabri with three counts of violating the federal program bribery statute, 18 U.S.C. §666(a)(2), which criminalizes bribes of $5,000 or more made to any organization that receives more than $10,000 a year in federal funding. Since Minneapolis receives approximately $28.8mm a year in federal funding, and since the bribes were all $5,000 or more, Sabri found himself under federal jurisdiction.
Sabri's council immediately challenged the facial constitutionality of the federal program bribery statute. They argued, among other things, that the statue did not require the government to prove a nexus between the alleged bribe and the federal funds. Since no showing of a federal interest was required, the law was unconstitutional, since Congress does not have the power to reach bribes that involve truly local dealings. Indeed, the law of property and whether or not Sabir would obtain local regulatory approval, of which Counts 1 & 2 are predicated upon, are truly local matters.
WHERE IS THE FEDERAL INTEREST?
The Constitution created a federal government of enumerated powers. M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819). “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961). Lacking among these enumerated powers is the so-called police power, although the Constitution does confer some textual power upon the national government in the criminal arena.
Article I, §8, Cl. 6 gives Congress the power to punish counterfeiting U.S. currency. Article I, §8, Cl. 10 provides that Congress may punish piracies and other felonies committed on the high seas. Finally, Article III, §3, Cl. 2 allows Congress to punish treason. In each of these areas, there is a substantial national interest. Indeed, states attempting to legislate in those areas will find their laws preempted.
Congress also has power to criminalize conduct that substantial affects interstate commerce. United States v. Lopez, 514 U.S. 549 (1995). However, the activity must not merely have a substantial effect on interstate commerce: the conduct must fairly be described national, and not merely local. Thus, mere possession of a firearm is not a national matter even though the illegal use of firearms may result in significant harm to the national economy. Lopez, 514 U.S. 549. Sexual assault is also not a national issue, even though gender motivated violence, in the aggregate, has a national affect. United States v. Morrison, 529 U.S. 598 (2000).
"OUR FEDERALISM" AS A METHOD OF CONSTITUTIONAL INTERPRETATION
It used to be that if Congress had an enumerated power to enact some piece of legislation, then it had the power under the Supremacy Clause to preempt any state action in that area. In order words, Congress either had the power to enact a law, or it did not. However, the modern federalism cases seem to require the Court to, as part of the initial inquiry into the scope of an enumerated power, consider the federalism implications of a broad conferral of power.
In Jones v. United States, the Supreme Court refused to interpret the federal arson statute to extend to the burning of property not involved in interstate commerce. Had the Court interpreted the federal arson statue to cover the burnings of private property not involved in interstate commerce, it would have cast serious doubts on the constitutionality of the statute. This was so even though the home Jones allegedly burned down was worth $87,500, and even though Congress alleged it had Commerce power to criminalize the arson.
In United States v. Lopez, 514 U.S. 549 (1995), the Court struck down the Guns Free School Zone Act, 18 U.S.C. 922(g)(1)(A), as exceeding Congress’ commerce power because if Congress could punish the mere possession of a firearm within 1,000 feet of a school zone, then it would also necessarily follow that Congress could regulate all garden variety crimes, family law, and education. In United States v. Morrison, 120 S.Ct. 1740 (2000) the Court struck down the Violence Against Women Act, 42 U.S.C. 13981, because if Congress had the power to provide a federal private right of action for domestic abuse (a very serious but also very local problem), then it would necessarily follow that there would be no limits on Congressional power. Finally, in Jones v. United States, 120 S.Ct. 1904 (2000) the Court construed the federal arson statute, 18 U.S.C. 844(i), narrowly since it would have had substantial constitutional defects if it extended to the burning of a home that involved in interstate commerce, even though the value of the home was not insubstantial. Collectively, these cases stand for the proposition that under the Constitution, the long arm of Washington can not extend to activities truly local in nature and matters of traditional state concern. Applying a similar analysis, we must ask if Congress has the power to enact Section 666, does it not also have the power to reach all other truly local affairs? The answer to this question is, yes.
As a matter of constitutional interpretation, a limited reading of Congressional power is required lest the Court “obliterate the distinction of what is national and what is local…” Jones & Laughlin Steel, 301 U.S. 1, 37 (1937) (Cardozo, J., concurring). “[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” United States v. Morrison, 529 U.S. 598 (2000) “[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” (internal citations and quotation marks omitted). Concerns for the proper scope of the national government - present during the founding of this great country, present during the days of the great Cardozo, and present today - should have guided the majority’s reading of the Spending Clause.
THE SPENDING CLAUSE
The Spending Clause provides that Congress shall have the “Power To … provide for the … general Welfare.” Art. I, § 8, Cl. 1. In other words, Congress has the power (unremarkable, really) to spend money. This power to spend also “is not limited by the direct grants of legislative power found in the Constitution.” United States v. Butler, 297 U.S. 1, 66 (1936). In other words, Congress may spend money on matters not specifically described in the Constitution.
Congress also has broad power under the Spending Clause to do "indirectly what is may not do directly." Congress may do so by conditioning a State's receipt of federal funds on accepting certain terms attached to that money. And so, in South Dakota v. Dole, Congress was able to persuade, ala the power of the purse, all 50 states to raise their respective drinking ages to 21.
Sabri v. United States
The oral argument transcript for Sabri v. United States (No. 03-44) is available here.
Although the case was briefed on Spending Clause and Necessary and Proper Clause grounds, Court watchers and Constitutional Law scholars kept asking "What's the big deal? Isn't the federal program bribery statute constitutional on commerce clause grounds?" See this exchange, for example. However, the advocate for Sabri was totally unprepared to discuss this issue. See the below exchange from the oral argument transcript.
***
QUESTION: Why -- why can't it be constitutional under the Commerce Clause? I know the Government doesn't rely on that, but respondent can be supported here on any -- any ground. Why -- why isn't this a commercial transaction as -- as, you know, our -- our Commerce Clause law is? So long as the transaction is commercial, we will assume it's interstate commerce. We'll accept Congress'
judgment on that. Why isn't a commercial transaction when you bribe somebody? Money for -- for whatever the favor he does.
ANSWER: A couple things, Your Honor.
First of all, there is not a requirement that interstate
commerce nexus be proved in the statute.
QUESTION: That's not necessary. So long as
it's commercial, our cases -- our recent cases, say so
long as it's commercial, we'll accept Congress' judgment
that it's interstate.
ANSWER: Well, if Congress could create
commerce -- Commerce Clause jurisdiction everywhere that
it could spend money, then --
QUESTION: No, no, not everywhere it could spend
money. Everywhere there is a commercial transaction. One
of our cases, for example, held that loan-sharking could
be covered under the Commerce Clause because it was a
commercial transaction, just as illegal as -- as the --
the bribery here, but if that could be covered by the
Commerce Clause, why can't this?
ANSWER: Because without -- without a
showing that in each case there was a connection between
interstate commerce and the transaction --
QUESTION: That's not what our cases require.
QUESTION: Is that true of the drug statutes
too?
ANSWER: I'm sorry, Your Honor?
QUESTION: I mean, is it true whenever the Feds prosecute a person for a drug transaction, a jury has to
determine there was a connection between these drugs and interstate commerce?
I've never heard of that requirement that -- that the -- that the jury would have to determine whatever
facts are necessary for the statute to be constitutional even -- even though that's not an element of the offense. Does that come out of a case or someplace? Where does it come from?
ANSWER: Well, unless -- unless there was an understanding that in every instance there was an
effect on interstate commerce, then --
QUESTION: I mean, there might be instances where there's no effect on interstate commerce, a home --
you know, that -- that will be an issue, homegrown marijuana. So suppose there is some drug somewhere that has no effect. It just didn't. There could be such a thing. We can imagine it. But does that mean in all these other cases that Congress -- that the statute is void because the jury hasn't found -- I'd be repeating myself. You answer.
ANSWER: I -- I think that it is different because the Commerce Clause is -- is a regulatory power
that permits Congress to regulate. The Spending Clause power is -- is a different sort of power. It does not make that --
****
Unfortunately for you and me (who are pseudo-clients when the most significant federalism case of the 21st Century is argued), the advocate was not well-briefed on the Commerce Clause, and the various approaches the Justices take.
This was a FEDERALISM case. It involved the proper distribution of power between the State and Federal governments. The power to criminalize conduct, part of the so-called "police power" was reserved to the States. Congress was not delegated a general police power in the Constitution. When Congress enacts federal criminal law, it is acting at the zenith of its power. When Congress enacts a federal criminal law that punishes state and local actors for their exchanges with private citizens, then Congress is exceeding its power under the Commerce Clause, since the Commerce Clause only gives Congress the power to regulate commerce "among the several States."
The Court has read the Commerce Clause to give Congress the power to regulate wholly instrate commerce, but then only if it substantially affects interstate commerce. To determine if an activity substantially affects interstate commerce, the Court has generally applied the "aggregate effects" test from Wickard v. Filburn. However, both Justice Scalia and Thomas have recently critized the aggragate effects test. Chief Justice Rehnquist, and Justices O'Connor and Kennedy would probably be receptive to narrowing the scope of the aggregate effects test, especially since the federal program bribery statute takes from the States the power to regulate the intrastate activities of its political subdivisions. Remeber that Rehnquist spoke in Garcia about the return of the Tenth Amendment.
The problem is that too many lawyers think that arguing before the Supreme Court is some sort of honor that they deserve after a long career. Also, every lawyer thinks she is good enough to argue before the Supreme Court, maybe because he did Moot Court in law school or is otherwise a self-styled brilliant speaker. I have listened to and read hundreds of hours of oral arguments transcripts at Oyez. Very few lawyers are qualified to aruge in this forum. It is for good reason that Ken Starr, Miguel Estrada, and Lawrence Tribe are - time after time - retained to argue before the Court.
A lawyer who argues before the Court unprepared breaches his ethical obligation to his client. He also dishnors all of us, since the Constitution belongs to you and me, the People. Machiavallei spoke of three levels of intelligence: 1. - those who create ideas; 2. - those who can understand and comprehend those ideas; 3. - those who can do neither. Most of us are "2's." Has society degenerated such that everyone thinks himself a "1"?
The oral argument transcript for Sabri v. United States (No. 03-44) is available here.
Although the case was briefed on Spending Clause and Necessary and Proper Clause grounds, Court watchers and Constitutional Law scholars kept asking "What's the big deal? Isn't the federal program bribery statute constitutional on commerce clause grounds?" See this exchange, for example. However, the advocate for Sabri was totally unprepared to discuss this issue. See the below exchange from the oral argument transcript.
***
QUESTION: Why -- why can't it be constitutional under the Commerce Clause? I know the Government doesn't rely on that, but respondent can be supported here on any -- any ground. Why -- why isn't this a commercial transaction as -- as, you know, our -- our Commerce Clause law is? So long as the transaction is commercial, we will assume it's interstate commerce. We'll accept Congress'
judgment on that. Why isn't a commercial transaction when you bribe somebody? Money for -- for whatever the favor he does.
ANSWER: A couple things, Your Honor.
First of all, there is not a requirement that interstate
commerce nexus be proved in the statute.
QUESTION: That's not necessary. So long as
it's commercial, our cases -- our recent cases, say so
long as it's commercial, we'll accept Congress' judgment
that it's interstate.
ANSWER: Well, if Congress could create
commerce -- Commerce Clause jurisdiction everywhere that
it could spend money, then --
QUESTION: No, no, not everywhere it could spend
money. Everywhere there is a commercial transaction. One
of our cases, for example, held that loan-sharking could
be covered under the Commerce Clause because it was a
commercial transaction, just as illegal as -- as the --
the bribery here, but if that could be covered by the
Commerce Clause, why can't this?
ANSWER: Because without -- without a
showing that in each case there was a connection between
interstate commerce and the transaction --
QUESTION: That's not what our cases require.
QUESTION: Is that true of the drug statutes
too?
ANSWER: I'm sorry, Your Honor?
QUESTION: I mean, is it true whenever the Feds prosecute a person for a drug transaction, a jury has to
determine there was a connection between these drugs and interstate commerce?
I've never heard of that requirement that -- that the -- that the jury would have to determine whatever
facts are necessary for the statute to be constitutional even -- even though that's not an element of the offense. Does that come out of a case or someplace? Where does it come from?
ANSWER: Well, unless -- unless there was an understanding that in every instance there was an
effect on interstate commerce, then --
QUESTION: I mean, there might be instances where there's no effect on interstate commerce, a home --
you know, that -- that will be an issue, homegrown marijuana. So suppose there is some drug somewhere that has no effect. It just didn't. There could be such a thing. We can imagine it. But does that mean in all these other cases that Congress -- that the statute is void because the jury hasn't found -- I'd be repeating myself. You answer.
ANSWER: I -- I think that it is different because the Commerce Clause is -- is a regulatory power
that permits Congress to regulate. The Spending Clause power is -- is a different sort of power. It does not make that --
****
Unfortunately for you and me (who are pseudo-clients when the most significant federalism case of the 21st Century is argued), the advocate was not well-briefed on the Commerce Clause, and the various approaches the Justices take.
This was a FEDERALISM case. It involved the proper distribution of power between the State and Federal governments. The power to criminalize conduct, part of the so-called "police power" was reserved to the States. Congress was not delegated a general police power in the Constitution. When Congress enacts federal criminal law, it is acting at the zenith of its power. When Congress enacts a federal criminal law that punishes state and local actors for their exchanges with private citizens, then Congress is exceeding its power under the Commerce Clause, since the Commerce Clause only gives Congress the power to regulate commerce "among the several States."
The Court has read the Commerce Clause to give Congress the power to regulate wholly instrate commerce, but then only if it substantially affects interstate commerce. To determine if an activity substantially affects interstate commerce, the Court has generally applied the "aggregate effects" test from Wickard v. Filburn. However, both Justice Scalia and Thomas have recently critized the aggragate effects test. Chief Justice Rehnquist, and Justices O'Connor and Kennedy would probably be receptive to narrowing the scope of the aggregate effects test, especially since the federal program bribery statute takes from the States the power to regulate the intrastate activities of its political subdivisions. Remeber that Rehnquist spoke in Garcia about the return of the Tenth Amendment.
The problem is that too many lawyers think that arguing before the Supreme Court is some sort of honor that they deserve after a long career. Also, every lawyer thinks she is good enough to argue before the Supreme Court, maybe because he did Moot Court in law school or is otherwise a self-styled brilliant speaker. I have listened to and read hundreds of hours of oral arguments transcripts at Oyez. Very few lawyers are qualified to aruge in this forum. It is for good reason that Ken Starr, Miguel Estrada, and Lawrence Tribe are - time after time - retained to argue before the Court.
A lawyer who argues before the Court unprepared breaches his ethical obligation to his client. He also dishnors all of us, since the Constitution belongs to you and me, the People. Machiavallei spoke of three levels of intelligence: 1. - those who create ideas; 2. - those who can understand and comprehend those ideas; 3. - those who can do neither. Most of us are "2's." Has society degenerated such that everyone thinks himself a "1"?
Monday, March 15, 2004
Dean Starr?
Ken Starr is one of six people interviewing for the position of Dean of the Pepperdine Law School.
Update: It appears that the link isn't working. You can read the full story by doing a google search with the words: Pepperdine and the Graphic and Ken Starr.
Update: The link is now working. The full story is here.
Ken Starr is one of six people interviewing for the position of Dean of the Pepperdine Law School.
Update: It appears that the link isn't working. You can read the full story by doing a google search with the words: Pepperdine and the Graphic and Ken Starr.
Update: The link is now working. The full story is here.
Bean Counter "philosopher"
Apparently Brian Leiter, a law professor at the University of Texas, has acted out his insecurity on a young law student.
I have always disliked Leiter. First, he is much too old to be studying Nietzsche. Even Zarathustra admonised that "There is no greater insult to a teacher than to forever remain a student." By this standard, Leiter would be spewed from Zarathustra's mouth. The name of my blog comes from my respect for - and enjoyment of - Nietzsche's writings. Overpundit. A pundit is something to be overcome. But, Brian, we all have to move on. We have to grow up. Zarathustra said so. How could you have you studied him your whole life but missed this penultimate truth?
Second, Leiter took pot shots at Professor Doug Kmiec. (Doug Kmiec, [a] right-wing law professor at Pepperdine, whose political prominence outstrips his intellectual achievements by a noticeable margin ..."). Again, Leiter has devoted his life, his very soul to studying someone whose whole philosophy is based on becoming the overman, and thus, having the strength to move on.
Third, any "fame" Lieter has is based almost solely on his numerous rankings. These rankings are a glorified form of bean counting. They could be done by a marginally qualified law student (or, indeed, an intelligent college student).
I am not impressed. Nor am I intimidated. I have not forgotten that, "In the beginning the noble caste was almost always the barbarian caste [who owed their strength] to will."
Apparently Brian Leiter, a law professor at the University of Texas, has acted out his insecurity on a young law student.
I have always disliked Leiter. First, he is much too old to be studying Nietzsche. Even Zarathustra admonised that "There is no greater insult to a teacher than to forever remain a student." By this standard, Leiter would be spewed from Zarathustra's mouth. The name of my blog comes from my respect for - and enjoyment of - Nietzsche's writings. Overpundit. A pundit is something to be overcome. But, Brian, we all have to move on. We have to grow up. Zarathustra said so. How could you have you studied him your whole life but missed this penultimate truth?
Second, Leiter took pot shots at Professor Doug Kmiec. (Doug Kmiec, [a] right-wing law professor at Pepperdine, whose political prominence outstrips his intellectual achievements by a noticeable margin ..."). Again, Leiter has devoted his life, his very soul to studying someone whose whole philosophy is based on becoming the overman, and thus, having the strength to move on.
Third, any "fame" Lieter has is based almost solely on his numerous rankings. These rankings are a glorified form of bean counting. They could be done by a marginally qualified law student (or, indeed, an intelligent college student).
I am not impressed. Nor am I intimidated. I have not forgotten that, "In the beginning the noble caste was almost always the barbarian caste [who owed their strength] to will."
Holy Cross
Given the fabulous opinion of Crawford v. Washington, I thought I would share with you what Edward Bennett Williams described as the first transcript of a cross-examination. It comes from the Thirteenth Chapter of Daniel.
In Babylon there lived a man named Joakim, who married a very beautiful and God-fearing woman, Susanna, the daughter of Hilkiah; her pious parents had trained their daughter according to the law of Moses.
Joakim was very rich; he had a garden near his house, and the Jews had recourse to him often because he was the most respected of them all.
That year, two elders of the people were appointed judges, of whom the Lord said, "Wickedness has come out of Babylon: from the elders who were to govern the people as judges."
These men, to whom all brought their cases, frequented the house of Joakim.
When the people left at noon, Susanna used to enter her husband's garden for a walk.
When the old men saw her enter every day for her walk, they began to lust for her.
They suppressed their consciences; they would not allow their eyes to look to heaven, and did not keep in mind just judgments.
Though both were enamored of her, they did not tell each other their trouble, for they were ashamed to reveal their lustful desire to have her.
Day by day they watched eagerly for her.
One day they said to each other, "Let us be off for home, it is time for lunch." So they went out and parted; but both turned back, and when they met again, they asked each other the reason. They admitted their lust, and then they agreed to look for an occasion when they could meet her alone.
One day, while they were waiting for the right moment, she entered the garden as usual, with two maids only. She decided to bathe, for the weather was warm.
Nobody else was there except the two elders, who had hidden themselves and were watching her.
"Bring me oil and soap," she said to the maids, "and shut the garden doors while I bathe."
They did as she said; they shut the garden doors and left by the side gate to fetch what she had ordered, unaware that the elders were hidden inside.
As soon as the maids had left, the two old men got up and hurried to her.
"Look," they said, "the garden doors are shut, and no one can see us; give in to our desire, and lie with us.
If you refuse, we will testify against you that you dismissed your maids because a young man was here with you."
"I am completely trapped," Susanna groaned. "If I yield, it will be my death; if I refuse, I cannot escape your power.
Yet it is better for me to fall into your power without guilt than to sin before the Lord."
Then Susanna shrieked, and the old men also shouted at her, as one of them ran to open the garden doors.
When the people in the house heard the cries from the garden, they rushed in by the side gate to see what had happened to her.
At the accusations by the old men, the servants felt very much ashamed, for never had any such thing been said about Susanna.
When the people came to her husband Joakim the next day, the two wicked elders also came, fully determined to put Susanna to death. Before all the people they ordered:
"Send for Susanna, the daughter of Hilkiah, the wife of Joakim." When she was sent for, she came with her parents, children and all her relatives.
Susanna, very delicate and beautiful, was veiled; but those wicked men ordered her to uncover her face so as to sate themselves with her beauty.
All her relatives and the onlookers were weeping.
In the midst of the people the two elders rose up and laid their hands on her head.
Through her tears she looked up to heaven, for she trusted in the Lord wholeheartedly.
The elders made this accusation: "As we were walking in the garden alone, this woman entered with two girls and shut the doors of the garden, dismissing the girls.
A young man, who was hidden there, came and lay with her.
When we, in a corner of the garden, saw this crime, we ran toward them.
We saw them lying together, but the man we could not hold, because he was stronger than we; he opened the doors and ran off.
Then we seized this one and asked who the young man was, but she refused to tell us. We testify to this." The assembly believed them, since they were elders and judges of the people, and they condemned her to death.
But Susanna cried aloud: "O eternal God, you know what is hidden and are aware of all things before they come to be: you know that they have testified falsely against me. Here I am about to die, though I have done none of the things with which these wicked men have charged me."
The Lord heard her prayer.
[Enter the Cross-Examiner] As she was being led to execution, God stirred up the holy spirit of a young boy named Daniel, and he cried aloud: "I will have no part in the death of this woman."
All the people turned and asked him, "What is this you are saying?"
He stood in their midst and continued, "Are you such fools, O Israelites! To condemn a woman of Israel without examination and without clear evidence?
Return to court, for they have testified falsely against her."
Then all the people returned in haste. To Daniel the elders said, "Come, sit with us and inform us, since God has given you the prestige of old age."
[Enter the Crucible of Cross-Examination]
But he replied, "Separate these two far from one another that I may examine them."
After they were separated one from the other, he called one of them and said: "How you have grown evil with age! Now have your past sins come to term:
passing unjust sentences, condemning the innocent, and freeing the guilty, although the Lord says, "The innocent and the just you shall not put to death.'
Now, then, if you were a witness, tell me under what tree you saw them together."
"Under a mastic tree," he answered. "Your fine lie has cost you your head," said Daniel; "for the angel of God shall receive the sentence from him and split you in two."
Putting him to one side, he ordered the other one to be brought. "Offspring of Canaan, not of Judah," Daniel said to him, "beauty has seduced you, lust has subverted your conscience.
This is how you acted with the daughters of Israel, and in their fear they yielded to you; but a daughter of Judah did not tolerate your wickedness.
Now, then, tell me under what tree you surprised them together."
"Under an oak," he said. "Your fine lie has cost you also your head," said Daniel; "for the angel of God waits with a sword to cut you in two so as to make an end of you both."
The whole assembly cried aloud, blessing God who saves those that hope in him.
They rose up against the two elders, for by their own words Daniel had convicted them of perjury. According to the law of Moses, they inflicted on them the penalty they had plotted to impose on their neighbor: they put them to death. Thus was innocent blood spared that day.
Hilkiah and his wife praised God for their daughter Susanna, as did Joakim her husband and all her relatives, because she was found innocent of any shameful deed.
And from that day onward Daniel was greatly esteemed by the people.
Given the fabulous opinion of Crawford v. Washington, I thought I would share with you what Edward Bennett Williams described as the first transcript of a cross-examination. It comes from the Thirteenth Chapter of Daniel.
In Babylon there lived a man named Joakim, who married a very beautiful and God-fearing woman, Susanna, the daughter of Hilkiah; her pious parents had trained their daughter according to the law of Moses.
Joakim was very rich; he had a garden near his house, and the Jews had recourse to him often because he was the most respected of them all.
That year, two elders of the people were appointed judges, of whom the Lord said, "Wickedness has come out of Babylon: from the elders who were to govern the people as judges."
These men, to whom all brought their cases, frequented the house of Joakim.
When the people left at noon, Susanna used to enter her husband's garden for a walk.
When the old men saw her enter every day for her walk, they began to lust for her.
They suppressed their consciences; they would not allow their eyes to look to heaven, and did not keep in mind just judgments.
Though both were enamored of her, they did not tell each other their trouble, for they were ashamed to reveal their lustful desire to have her.
Day by day they watched eagerly for her.
One day they said to each other, "Let us be off for home, it is time for lunch." So they went out and parted; but both turned back, and when they met again, they asked each other the reason. They admitted their lust, and then they agreed to look for an occasion when they could meet her alone.
One day, while they were waiting for the right moment, she entered the garden as usual, with two maids only. She decided to bathe, for the weather was warm.
Nobody else was there except the two elders, who had hidden themselves and were watching her.
"Bring me oil and soap," she said to the maids, "and shut the garden doors while I bathe."
They did as she said; they shut the garden doors and left by the side gate to fetch what she had ordered, unaware that the elders were hidden inside.
As soon as the maids had left, the two old men got up and hurried to her.
"Look," they said, "the garden doors are shut, and no one can see us; give in to our desire, and lie with us.
If you refuse, we will testify against you that you dismissed your maids because a young man was here with you."
"I am completely trapped," Susanna groaned. "If I yield, it will be my death; if I refuse, I cannot escape your power.
Yet it is better for me to fall into your power without guilt than to sin before the Lord."
Then Susanna shrieked, and the old men also shouted at her, as one of them ran to open the garden doors.
When the people in the house heard the cries from the garden, they rushed in by the side gate to see what had happened to her.
At the accusations by the old men, the servants felt very much ashamed, for never had any such thing been said about Susanna.
When the people came to her husband Joakim the next day, the two wicked elders also came, fully determined to put Susanna to death. Before all the people they ordered:
"Send for Susanna, the daughter of Hilkiah, the wife of Joakim." When she was sent for, she came with her parents, children and all her relatives.
Susanna, very delicate and beautiful, was veiled; but those wicked men ordered her to uncover her face so as to sate themselves with her beauty.
All her relatives and the onlookers were weeping.
In the midst of the people the two elders rose up and laid their hands on her head.
Through her tears she looked up to heaven, for she trusted in the Lord wholeheartedly.
The elders made this accusation: "As we were walking in the garden alone, this woman entered with two girls and shut the doors of the garden, dismissing the girls.
A young man, who was hidden there, came and lay with her.
When we, in a corner of the garden, saw this crime, we ran toward them.
We saw them lying together, but the man we could not hold, because he was stronger than we; he opened the doors and ran off.
Then we seized this one and asked who the young man was, but she refused to tell us. We testify to this." The assembly believed them, since they were elders and judges of the people, and they condemned her to death.
But Susanna cried aloud: "O eternal God, you know what is hidden and are aware of all things before they come to be: you know that they have testified falsely against me. Here I am about to die, though I have done none of the things with which these wicked men have charged me."
The Lord heard her prayer.
[Enter the Cross-Examiner] As she was being led to execution, God stirred up the holy spirit of a young boy named Daniel, and he cried aloud: "I will have no part in the death of this woman."
All the people turned and asked him, "What is this you are saying?"
He stood in their midst and continued, "Are you such fools, O Israelites! To condemn a woman of Israel without examination and without clear evidence?
Return to court, for they have testified falsely against her."
Then all the people returned in haste. To Daniel the elders said, "Come, sit with us and inform us, since God has given you the prestige of old age."
[Enter the Crucible of Cross-Examination]
But he replied, "Separate these two far from one another that I may examine them."
After they were separated one from the other, he called one of them and said: "How you have grown evil with age! Now have your past sins come to term:
passing unjust sentences, condemning the innocent, and freeing the guilty, although the Lord says, "The innocent and the just you shall not put to death.'
Now, then, if you were a witness, tell me under what tree you saw them together."
"Under a mastic tree," he answered. "Your fine lie has cost you your head," said Daniel; "for the angel of God shall receive the sentence from him and split you in two."
Putting him to one side, he ordered the other one to be brought. "Offspring of Canaan, not of Judah," Daniel said to him, "beauty has seduced you, lust has subverted your conscience.
This is how you acted with the daughters of Israel, and in their fear they yielded to you; but a daughter of Judah did not tolerate your wickedness.
Now, then, tell me under what tree you surprised them together."
"Under an oak," he said. "Your fine lie has cost you also your head," said Daniel; "for the angel of God waits with a sword to cut you in two so as to make an end of you both."
The whole assembly cried aloud, blessing God who saves those that hope in him.
They rose up against the two elders, for by their own words Daniel had convicted them of perjury. According to the law of Moses, they inflicted on them the penalty they had plotted to impose on their neighbor: they put them to death. Thus was innocent blood spared that day.
Hilkiah and his wife praised God for their daughter Susanna, as did Joakim her husband and all her relatives, because she was found innocent of any shameful deed.
And from that day onward Daniel was greatly esteemed by the people.
Wednesday, March 03, 2004
Death penalty stuff
A year ago I counted heads in over 75 Supreme Court death penalty cases. I compiled this information into an Excel sheet to track whether and when a particular now-serving justice voted for death. If anyone wants it, email me (overpundit at yahoo dot com).
Also, I have the "final meal requests" of all inmates executed in Texas. This information was available online until the Texas DOC withdrew it as "tasteless."
A year ago I counted heads in over 75 Supreme Court death penalty cases. I compiled this information into an Excel sheet to track whether and when a particular now-serving justice voted for death. If anyone wants it, email me (overpundit at yahoo dot com).
Also, I have the "final meal requests" of all inmates executed in Texas. This information was available online until the Texas DOC withdrew it as "tasteless."
Special annoucement from John Edwards today at 4
I recevied the below message in my email today:
"Senator John and Elizabeth Edwards will return home to share a special announcement with their family, friends and supporters in Raleigh, NC today. Tune in at 4:00pm EST for live cable coverage of the event."
Hmm...
I recevied the below message in my email today:
"Senator John and Elizabeth Edwards will return home to share a special announcement with their family, friends and supporters in Raleigh, NC today. Tune in at 4:00pm EST for live cable coverage of the event."
Hmm...
Tuesday, March 02, 2004
BREAKING NEWS West to face criminal charges for gay marriages
New Paltz village Mayor Jason West will be charged with numerous misdemeanor counts for the gay marriages he performed Friday under a media spotlight and without standard paperwork.
New Paltz village Mayor Jason West will be charged with numerous misdemeanor counts for the gay marriages he performed Friday under a media spotlight and without standard paperwork.
Monday, March 01, 2004
Jeremy Blachman hits 100,000
Jeremy asks a favor:
"If you like something you read here, tell someone about it. If you really like it, tell two people. If you really really like it, tell that guy you know who works for that magazine, or that girl who works for that literary agency, or Jon Stewart's personal assistant."
I like it.
Jeremy asks a favor:
"If you like something you read here, tell someone about it. If you really like it, tell two people. If you really really like it, tell that guy you know who works for that magazine, or that girl who works for that literary agency, or Jon Stewart's personal assistant."
I like it.
Fourth Amendment summary on exceptions to the warrant requirement.
This story (via CrimLaw) reminded me of this language:
"[T]he Court has vacillated between imposing a categorical warrant requirement and applying a general
reasonableness standard. Compare Thompson v. Louisiana, 469 U. S. 17, 20 (1984) (per curiam), with United
States v. Rabinowitz, 339 U. S. 56, 65 (1950). The Court has most frequently held that warrantless searches are
presumptively unreasonable, see, e.g., Katz v. United States, 389 U. S. 347, 357 (1967); Payton v. New York, 445
U. S. 573, 583 (1980), but has also found a plethora of exceptions to presumptive unreasonableness, see, e.g.,
Chimel v. California, 395 U. S. 752, 762–763 (1969) (searches incident to arrest); United States v. Ross, 456
U. S. 798, 800 (1982) (automobile searches); United States v. Biswell, 406 U. S. 311, 315–317 (1972) (searches of
“pervasively regulated” businesses); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523,
534–539 (1967) (administrative searches); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 298 (1967) (exigent
circumstances); California v. Carney, 471 U. S. 386, 390–394 (1985) (mobile home searches); Illinois v. Lafayette,
462 U. S. 640, 648 (1983) (inventory searches); Almeida-Sanchez v. United States, 413 U. S. 266, 272 (1973)
(border searches). That is, our cases stand for the illuminating proposition that warrantless searches are per se
unreasonable, except, of course, when they are not."
Groh v. Ramirez (Thomas, J. dissenting).
Justice Thomas failed to mention the good faith exception, which in practice is yet another exception to the Fourth Amendment Warrant Clause. Massachusetts v. Sheppard, 468 U.S. 981 (1984).
This story (via CrimLaw) reminded me of this language:
"[T]he Court has vacillated between imposing a categorical warrant requirement and applying a general
reasonableness standard. Compare Thompson v. Louisiana, 469 U. S. 17, 20 (1984) (per curiam), with United
States v. Rabinowitz, 339 U. S. 56, 65 (1950). The Court has most frequently held that warrantless searches are
presumptively unreasonable, see, e.g., Katz v. United States, 389 U. S. 347, 357 (1967); Payton v. New York, 445
U. S. 573, 583 (1980), but has also found a plethora of exceptions to presumptive unreasonableness, see, e.g.,
Chimel v. California, 395 U. S. 752, 762–763 (1969) (searches incident to arrest); United States v. Ross, 456
U. S. 798, 800 (1982) (automobile searches); United States v. Biswell, 406 U. S. 311, 315–317 (1972) (searches of
“pervasively regulated” businesses); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523,
534–539 (1967) (administrative searches); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 298 (1967) (exigent
circumstances); California v. Carney, 471 U. S. 386, 390–394 (1985) (mobile home searches); Illinois v. Lafayette,
462 U. S. 640, 648 (1983) (inventory searches); Almeida-Sanchez v. United States, 413 U. S. 266, 272 (1973)
(border searches). That is, our cases stand for the illuminating proposition that warrantless searches are per se
unreasonable, except, of course, when they are not."
Groh v. Ramirez (Thomas, J. dissenting).
Justice Thomas failed to mention the good faith exception, which in practice is yet another exception to the Fourth Amendment Warrant Clause. Massachusetts v. Sheppard, 468 U.S. 981 (1984).
In good company when making mistakes...
"Every lawyer and every judge can recite examples of documents that they wrote, checked, and doublechecked, but that still contained glaring errors."
That goodie is contained in Justice Kennedy's dissent in Groh v. Ramirez (02-811), on pp. 3-4 in the slip opinion.
"Every lawyer and every judge can recite examples of documents that they wrote, checked, and doublechecked, but that still contained glaring errors."
That goodie is contained in Justice Kennedy's dissent in Groh v. Ramirez (02-811), on pp. 3-4 in the slip opinion.
Wednesday, February 25, 2004
No one ever gets framed, really...
High School principal (with the "pal" at the end) attemted to frame a high school student, saying, "I know this isn't or wasn't ethical," but since "we both know he is dealing drugs, [ ] I wanted to catch him so I put drugs in the locker."
High School principal (with the "pal" at the end) attemted to frame a high school student, saying, "I know this isn't or wasn't ethical," but since "we both know he is dealing drugs, [ ] I wanted to catch him so I put drugs in the locker."
On children and puppies
At Crescat Sententia, a debate over whether to have children rages. (Well, "rages" isn't the right word).
My wife used to want to have children. Then we bought a puppy. Having to wake up early and stay up late (based on the whim of the puppy and how much he naps during the day), having to take the dog out 10 or 15 times a day (when we're lucky enough to catch him before he goes on the carpet), and having to be ready to jump up at a moment's notice to ensure the puppy does not destroy anything else has changed her mind. If having a puppy is this much stress, imagine what having a child would be like.
At Crescat Sententia, a debate over whether to have children rages. (Well, "rages" isn't the right word).
My wife used to want to have children. Then we bought a puppy. Having to wake up early and stay up late (based on the whim of the puppy and how much he naps during the day), having to take the dog out 10 or 15 times a day (when we're lucky enough to catch him before he goes on the carpet), and having to be ready to jump up at a moment's notice to ensure the puppy does not destroy anything else has changed her mind. If having a puppy is this much stress, imagine what having a child would be like.
Kid 'n Play
The Lock v. Davey decision is now available. It is a 7-2 decision written by C.J. Rehnquist. Rather than rely on the text of the Constitution, Rehnquist applies the "play in the joints doctrine." The doctrine "play in the joints" seeks to answer this question: Is it true that every time a funding decision would not violate the Establishment Clause then States must fund religious and non-religious groups equally or else violate the Free Exercise Clause? In other words, if a "faith-based" initiative would not violate the Establishment Clause, then must the State and Federal governments fund these initiatives because the Free Exercise Clause requires non-discriminatory funding?
Incidentally, this is not the first time "play in the joints" has been risent. See Groh v. Ramirez (No. 02-811), a Fourth Amendment case. Oral Argument Transcript at 40, Lines 20-24.
(Rehnquist asks: "Of course, that's really not what the Fourth Amendment says, is it? It just - it doesn't say you need - you need - I mean, surely there's some play in the joints, isn't there? It's - it categorically
prohibits unreasonable searches and seizures, right?")
The Lock v. Davey decision is now available. It is a 7-2 decision written by C.J. Rehnquist. Rather than rely on the text of the Constitution, Rehnquist applies the "play in the joints doctrine." The doctrine "play in the joints" seeks to answer this question: Is it true that every time a funding decision would not violate the Establishment Clause then States must fund religious and non-religious groups equally or else violate the Free Exercise Clause? In other words, if a "faith-based" initiative would not violate the Establishment Clause, then must the State and Federal governments fund these initiatives because the Free Exercise Clause requires non-discriminatory funding?
Incidentally, this is not the first time "play in the joints" has been risent. See Groh v. Ramirez (No. 02-811), a Fourth Amendment case. Oral Argument Transcript at 40, Lines 20-24.
(Rehnquist asks: "Of course, that's really not what the Fourth Amendment says, is it? It just - it doesn't say you need - you need - I mean, surely there's some play in the joints, isn't there? It's - it categorically
prohibits unreasonable searches and seizures, right?")
Heck v. Humphrey & Section 1983
Muhammad v. Close makes clear that the Heck v. Humphrey bar against Section 1983 claims applies only where the action attacks the underlying conviction or determination of actual confinement time. (Slip Opinion at 4-5)("His §1983 suit challenging this action could not therefore be construed as seeking a judgment at odds with his conviction or with the State’s calculation of time to be served in accordance with the underlying sentence. That is, he raised no claim on which habeas relief could have been granted on any recognized theory, with the consequence that Heck’s favorable termination requirement was inapplicable.")
Muhammad v. Close makes clear that the Heck v. Humphrey bar against Section 1983 claims applies only where the action attacks the underlying conviction or determination of actual confinement time. (Slip Opinion at 4-5)("His §1983 suit challenging this action could not therefore be construed as seeking a judgment at odds with his conviction or with the State’s calculation of time to be served in accordance with the underlying sentence. That is, he raised no claim on which habeas relief could have been granted on any recognized theory, with the consequence that Heck’s favorable termination requirement was inapplicable.")
Lawyer loses $150 an hour for poor writing.
In a civil rights case (where the prevailing plaintiff is awarded attorney's fees), the lawyer was compensated $300 per hour for his trial work. But this rate was cut in half for his written work because of its poor quality.
In a civil rights case (where the prevailing plaintiff is awarded attorney's fees), the lawyer was compensated $300 per hour for his trial work. But this rate was cut in half for his written work because of its poor quality.
Saturday, February 21, 2004
No meal reimbursement for work on Christmas Day
This exchange is so sad, for so many different reasons.
This exchange is so sad, for so many different reasons.
Friday, February 20, 2004
Capitalism meets Christ
I am a Christian and I am a capitalist. But this makes me sick:
"Replicas of the nails used to hang Jesus on the cross have become the red-hot official merchandise linked to Mel Gibson's controversial new movie, "The Passion of the Christ."
Pendants made from the pewter, 2 1/2-inch nails - selling for $16.99 - all but flew out of the Christian Publications Bookstore on West 43rd Street as soon as they were put on display.
"Hundreds of stores across the country will be selling licensed items tied to the movie, a graphically violent depiction of the last 12 hours of Christ's life, which opens next week on Ash Wednesday.
"The souvenirs include a book, pins, key chains, coffee mugs and T-shirts.
Instead donating more money to one of the many deserving charities, these consumers are wasting money on trikets, junk, and other possessions of this world.
I am a Christian and I am a capitalist. But this makes me sick:
"Replicas of the nails used to hang Jesus on the cross have become the red-hot official merchandise linked to Mel Gibson's controversial new movie, "The Passion of the Christ."
Pendants made from the pewter, 2 1/2-inch nails - selling for $16.99 - all but flew out of the Christian Publications Bookstore on West 43rd Street as soon as they were put on display.
"Hundreds of stores across the country will be selling licensed items tied to the movie, a graphically violent depiction of the last 12 hours of Christ's life, which opens next week on Ash Wednesday.
"The souvenirs include a book, pins, key chains, coffee mugs and T-shirts.
Instead donating more money to one of the many deserving charities, these consumers are wasting money on trikets, junk, and other possessions of this world.
"Getting More from Google"
If you are a googlephile, you will enjoy this article. (Requires free registration to the MIT Technology Review. With a smart-sounding title like that, who wouldn't register).
If you are a googlephile, you will enjoy this article. (Requires free registration to the MIT Technology Review. With a smart-sounding title like that, who wouldn't register).
Ex Enron CEO indicted
here.Jeff Skilling's lawyer is Daniel M. Petrocelli, a highly respected civil litigator. Petrocelli was lead council in the Simpson civil trial. I read his closing argument in that trial. His closing argument was among the best I have ever seen. The government has their hands full. One more reason to never be charged with a crime until you are very, very wealthy.
here.Jeff Skilling's lawyer is Daniel M. Petrocelli, a highly respected civil litigator. Petrocelli was lead council in the Simpson civil trial. I read his closing argument in that trial. His closing argument was among the best I have ever seen. The government has their hands full. One more reason to never be charged with a crime until you are very, very wealthy.
Breath out, start up.
CrimLaw links to an article discussing the New Mexico legislature's attempt to require all cars to have a device that requires the driver to blow into a breatalyzer before the ignition would start.
My hunch is this law would be invalid under the Dormant Commerce Clause as a undue burden on interstate commerce. I also think it would be invalid under a theory of field preemption due to the extensive involvement of the federal government.
CrimLaw links to an article discussing the New Mexico legislature's attempt to require all cars to have a device that requires the driver to blow into a breatalyzer before the ignition would start.
My hunch is this law would be invalid under the Dormant Commerce Clause as a undue burden on interstate commerce. I also think it would be invalid under a theory of field preemption due to the extensive involvement of the federal government.
Wednesday, February 18, 2004
The New Federalism?
ALAFAIR BURKE has a Findlaw column examining Sabri v. United States.
The United States surprised her (and me) when it argued that Congress had the power to enact the federal program bribery statute (18 U.S.C. 666(a)(2)) under the Necessary and Proper Clause.
ALAFAIR BURKE has a Findlaw column examining Sabri v. United States.
The United States surprised her (and me) when it argued that Congress had the power to enact the federal program bribery statute (18 U.S.C. 666(a)(2)) under the Necessary and Proper Clause.
Tuesday, February 17, 2004
Political advocacy in action - the filibuster that never was
I imagine someone could write an interesting human-interest piece about the Democrat filibusters of conservative nominees. What was it like for Miguel Estrada to be denied an up-or-down vote? How did his family feel seeing his integrity questioned? Did he grow stronger or weaker as a result of the experience? Is he cynical?
And what about Doug Kmiec? An article on him would have to be called: "The Filibuster that Never Was."
***December 9, 2002***
A balloon is thrown...
Legal Scholar Is Considered for Court
"President Bush is considering naming Douglas W. Kmiec, the dean of the law school at Catholic University and a prominent social conservative scholar, to the federal appeals court based in Washington, administration officials said today."
***DECEMBER 10, 2002***
The special interest groups attack...
Alliance for Justice Statement on Douglas Kmiec
Statement of Nan Aron, President of the Alliance for Justice, Regarding Possible Kmiec Nomination to Court of Appeals
"Washington, DC — The Alliance for Justice expressed grave concerns over reports that the White House is considering Professor Douglas Kmiec for a seat on the U.S. Court of Appeals for the District of Columbia. Alliance for Justice President Nan Aron noted: "Kmiec's record reflects an ultra-conservative philosophy opposing a woman's right to choose, bipartisan civil rights legislation and regulations on property. He would be a very poor, divisive choice for the D.C. Circuit."
The D.C. Circuit, widely viewed as the second most-important court in the country because of its unique jurisdiction and location in the nation's capital, is currently made up of four Democrat and four Republican appointees, with four vacancies. President Bush has previously nominated D.C. lawyers John Roberts and Miguel Estrada to the court. Battles over vacancies on the D.C. Circuit during the Clinton years were heated, with some Senate Republicans arguing that the workload of the court was such that the 11th and 12th vacancies did not need to be filled. On September 24, 2002, Senator Jeff Sessions reiterated his opposition to filling more than ten seats on the D.C. Circuit. Nonetheless, the White House is reportedly considering nominations, including Kmiec's, to fill the 11th and 12th seat.
Kmiec has stated that the Civil Rights Act of 1991 was likely to create racial quotas and should be declared unconstitutional. He has submitted Congressional testimony that "Abortion is more than the killing, it is also the coarsening of the American heart . . . . [A]bortion undermines all life." Kmiec has also written that many property regulations are unconstitutional unless they provide compensation to the property owners-a view that calls into question key environmental laws such as the Clean Air Act and the Clean Water Act.
Responding to rumors of Kmiec's nomination, Aron said, "not only would Kmiec's nomination fly in the face of Senate Republicans' own assertions that an 11th judge on the court was not necessary, it would make a mockery of administration pledges of conciliation and cooperation and of President Bush's claims to be a `uniter not a divider.' It would be further evidence that this administration is intent on packing the courts with ultraconservatives, in direct contravention of the interests and will of the American people."
***DECEMBER 12, 2002***
The "mainstream" media begins throwing mud. [Do we really care if the guy put D.C. plates on his car within 30-days of his moving from California to D.C.? Even I don't care, and I am pretty intolerant of inconsistencies.]
Judge Scofflaw?
"After the New York Times claimed Tuesday that Catholic University Law School Dean Douglas W. Kmiec is on President Bush's short list for a coveted seat on the Washington federal appeals court, one of Kmiec's Northwest D.C. neighbors helpfully pointed out to us that he keeps California plates on his cars."
***DECEMBER 19, 2002***
The "mainstream" media coincidentally argues that maybe we don't need any new judges on the D.C. Circuit. [Do a survey. Ask any federal judge you know if he or she is "underworked".]
How Many Judges?
Thursday, December 19, 2002; Page A40
"YOU MIGHT NOT expect that the question of how many judges a court needs would become a festering political problem. But how to staff the U.S. Court of Appeals for the D.C. Circuit is threatening to become just that -- again. The court, which is one of the most important in the country, has 12 authorized judgeships. But during the Clinton administration, Republican senators blocked qualified nominees to its 11th and 12th seats; its declining workload made additional judges unnecessary, they said. Now President Bush, poised to win confirmation of nominees John G. Roberts and Miguel A. Estrada to the vacant ninth and 10th seats on the court, wants to fill the additional slots as well. An ugly fight could await the nominees, whoever they turn out to be."
***DECEMBER 19, 2002***
In the Wall Street Journal, Kmiec asks in vain that you...
Judge Me By My Work, Not By My Faith
"Last week, the New York Times reported that President Bush was considering
nominating me to the U.S. Court of Appeals for the District of Columbia
Circuit. While many friends from my days in the Justice Department, former
students now practicing at law firms across the country, and sitting judges
wrote or called to encourage this development, a stark, inside-the- Beltway
question emerged from the report: Can an avowedly pro-life Catholic actually
serve on such court?"
[NOTE: I have the full-text of these articles. I do not know enough about Copyright to know if I can post them.]
I imagine someone could write an interesting human-interest piece about the Democrat filibusters of conservative nominees. What was it like for Miguel Estrada to be denied an up-or-down vote? How did his family feel seeing his integrity questioned? Did he grow stronger or weaker as a result of the experience? Is he cynical?
And what about Doug Kmiec? An article on him would have to be called: "The Filibuster that Never Was."
***December 9, 2002***
A balloon is thrown...
Legal Scholar Is Considered for Court
"President Bush is considering naming Douglas W. Kmiec, the dean of the law school at Catholic University and a prominent social conservative scholar, to the federal appeals court based in Washington, administration officials said today."
***DECEMBER 10, 2002***
The special interest groups attack...
Alliance for Justice Statement on Douglas Kmiec
Statement of Nan Aron, President of the Alliance for Justice, Regarding Possible Kmiec Nomination to Court of Appeals
"Washington, DC — The Alliance for Justice expressed grave concerns over reports that the White House is considering Professor Douglas Kmiec for a seat on the U.S. Court of Appeals for the District of Columbia. Alliance for Justice President Nan Aron noted: "Kmiec's record reflects an ultra-conservative philosophy opposing a woman's right to choose, bipartisan civil rights legislation and regulations on property. He would be a very poor, divisive choice for the D.C. Circuit."
The D.C. Circuit, widely viewed as the second most-important court in the country because of its unique jurisdiction and location in the nation's capital, is currently made up of four Democrat and four Republican appointees, with four vacancies. President Bush has previously nominated D.C. lawyers John Roberts and Miguel Estrada to the court. Battles over vacancies on the D.C. Circuit during the Clinton years were heated, with some Senate Republicans arguing that the workload of the court was such that the 11th and 12th vacancies did not need to be filled. On September 24, 2002, Senator Jeff Sessions reiterated his opposition to filling more than ten seats on the D.C. Circuit. Nonetheless, the White House is reportedly considering nominations, including Kmiec's, to fill the 11th and 12th seat.
Kmiec has stated that the Civil Rights Act of 1991 was likely to create racial quotas and should be declared unconstitutional. He has submitted Congressional testimony that "Abortion is more than the killing, it is also the coarsening of the American heart . . . . [A]bortion undermines all life." Kmiec has also written that many property regulations are unconstitutional unless they provide compensation to the property owners-a view that calls into question key environmental laws such as the Clean Air Act and the Clean Water Act.
Responding to rumors of Kmiec's nomination, Aron said, "not only would Kmiec's nomination fly in the face of Senate Republicans' own assertions that an 11th judge on the court was not necessary, it would make a mockery of administration pledges of conciliation and cooperation and of President Bush's claims to be a `uniter not a divider.' It would be further evidence that this administration is intent on packing the courts with ultraconservatives, in direct contravention of the interests and will of the American people."
***DECEMBER 12, 2002***
The "mainstream" media begins throwing mud. [Do we really care if the guy put D.C. plates on his car within 30-days of his moving from California to D.C.? Even I don't care, and I am pretty intolerant of inconsistencies.]
Judge Scofflaw?
"After the New York Times claimed Tuesday that Catholic University Law School Dean Douglas W. Kmiec is on President Bush's short list for a coveted seat on the Washington federal appeals court, one of Kmiec's Northwest D.C. neighbors helpfully pointed out to us that he keeps California plates on his cars."
***DECEMBER 19, 2002***
The "mainstream" media coincidentally argues that maybe we don't need any new judges on the D.C. Circuit. [Do a survey. Ask any federal judge you know if he or she is "underworked".]
How Many Judges?
Thursday, December 19, 2002; Page A40
"YOU MIGHT NOT expect that the question of how many judges a court needs would become a festering political problem. But how to staff the U.S. Court of Appeals for the D.C. Circuit is threatening to become just that -- again. The court, which is one of the most important in the country, has 12 authorized judgeships. But during the Clinton administration, Republican senators blocked qualified nominees to its 11th and 12th seats; its declining workload made additional judges unnecessary, they said. Now President Bush, poised to win confirmation of nominees John G. Roberts and Miguel A. Estrada to the vacant ninth and 10th seats on the court, wants to fill the additional slots as well. An ugly fight could await the nominees, whoever they turn out to be."
***DECEMBER 19, 2002***
In the Wall Street Journal, Kmiec asks in vain that you...
Judge Me By My Work, Not By My Faith
"Last week, the New York Times reported that President Bush was considering
nominating me to the U.S. Court of Appeals for the District of Columbia
Circuit. While many friends from my days in the Justice Department, former
students now practicing at law firms across the country, and sitting judges
wrote or called to encourage this development, a stark, inside-the- Beltway
question emerged from the report: Can an avowedly pro-life Catholic actually
serve on such court?"
[NOTE: I have the full-text of these articles. I do not know enough about Copyright to know if I can post them.]
Man serves 4-hour detention for daughter.
"On the morning of Friday January 30, Hatton said he decided it was too cold for his children to go to school that day. But the Lovington High School Handbook does not list "parental concern for a child's safety" as one of six excused absences in their handbook."
***
"Lovington High School Principal Kevin Van Meter said the Hatton's 16 year old daughter's absence was unexcused, and punished her with five days detention. He based the punishment on a provision in the Lovington High School Handbook which states, “The student will be considered truant for all unexcused absences. The student will make up all time for unexcused absences unless the administrator deems the absence to be unavoidable.”
The principal sentenced the daughter to a 4-hour detention. Her father is serving the sentence instead.
Can you see why so many of us hate(d) school?
"On the morning of Friday January 30, Hatton said he decided it was too cold for his children to go to school that day. But the Lovington High School Handbook does not list "parental concern for a child's safety" as one of six excused absences in their handbook."
***
"Lovington High School Principal Kevin Van Meter said the Hatton's 16 year old daughter's absence was unexcused, and punished her with five days detention. He based the punishment on a provision in the Lovington High School Handbook which states, “The student will be considered truant for all unexcused absences. The student will make up all time for unexcused absences unless the administrator deems the absence to be unavoidable.”
The principal sentenced the daughter to a 4-hour detention. Her father is serving the sentence instead.
Can you see why so many of us hate(d) school?
I can't seem to spot the issue...
"Private sector lawyers are joining forces with the San Francisco city attorney's office to defend the city's move last week to issue same-sex marriage licenses."
The licenses were issues in violation of state law.
A political subdivision is subordinate to the state. Local officials may not violate state law. When the municipal employees issued marriage licenses, they violated the law. Period.
I am sympathetic to civil disobediance, especially when the protester willinlyg suffers the consequences of em's actions, as Thoreau did when he sat in a jail cell rather than pay his taxes.
It creates a different problem when city officials begin breaking the law. I spent last summer in San Francisco. I paid over $200 in parking tickets. (I recieved a $100 ticket for not having a front license plate on my car). I obeyed the law and paid my fine. Had I refuse to pay, the city would have placed a "boot" on my car.
Why must I follow the law when city officials themselves disregard the law? I am to the city what the city is to the state, namely, bound by the law.
By the way, has anyone else noted how this situation parallels former-Judge Roy Moore's putting up the Ten Commandments monument? Why has the illegal conduct of local officials not causes a similar media outcry?
"Private sector lawyers are joining forces with the San Francisco city attorney's office to defend the city's move last week to issue same-sex marriage licenses."
The licenses were issues in violation of state law.
A political subdivision is subordinate to the state. Local officials may not violate state law. When the municipal employees issued marriage licenses, they violated the law. Period.
I am sympathetic to civil disobediance, especially when the protester willinlyg suffers the consequences of em's actions, as Thoreau did when he sat in a jail cell rather than pay his taxes.
It creates a different problem when city officials begin breaking the law. I spent last summer in San Francisco. I paid over $200 in parking tickets. (I recieved a $100 ticket for not having a front license plate on my car). I obeyed the law and paid my fine. Had I refuse to pay, the city would have placed a "boot" on my car.
Why must I follow the law when city officials themselves disregard the law? I am to the city what the city is to the state, namely, bound by the law.
By the way, has anyone else noted how this situation parallels former-Judge Roy Moore's putting up the Ten Commandments monument? Why has the illegal conduct of local officials not causes a similar media outcry?
Eugene wonders...
..about this story (where it seems a fellow was either wearing face paint to rob a house or face paint to make fun of dark-skinned people), "[I]ts suggestion that the real explanation (burglary) is less serious than the apparent one (blackface), strikes me as out of place, unless I'm picking up a subtext that isn't really there."
Could be the burglary was going to be a college prank. The facts say that the person wearing the face paint was a new inductee in a fraternity. Maybe he was going to "rob" another frat house.
..about this story (where it seems a fellow was either wearing face paint to rob a house or face paint to make fun of dark-skinned people), "[I]ts suggestion that the real explanation (burglary) is less serious than the apparent one (blackface), strikes me as out of place, unless I'm picking up a subtext that isn't really there."
Could be the burglary was going to be a college prank. The facts say that the person wearing the face paint was a new inductee in a fraternity. Maybe he was going to "rob" another frat house.
Section 1983 case
"The appeals court found that while the Supreme Court has established a right under the 14th Amendment of mentally competent individuals to decline life-sustaining measures, that does not apply to patients like Pouliot who were never able to express their wishes."
What is most amazing is that the Second Circuit denied the AG's claim of absolute immunity for their acts. See page 12 of the slip opinion for an excellent discussion of the immunity doctrines in Section 1983 cases.
The case is Blouin v. Spitzer (02-7997) and it was decided on 02/02/04.
"The appeals court found that while the Supreme Court has established a right under the 14th Amendment of mentally competent individuals to decline life-sustaining measures, that does not apply to patients like Pouliot who were never able to express their wishes."
What is most amazing is that the Second Circuit denied the AG's claim of absolute immunity for their acts. See page 12 of the slip opinion for an excellent discussion of the immunity doctrines in Section 1983 cases.
The case is Blouin v. Spitzer (02-7997) and it was decided on 02/02/04.
DOJ Reading Room
I am not sure if I posted this yet. Anyhow, here is a link to the DOJ reading room, where it's top-notch AUSA manauls are available for public study.
I am not sure if I posted this yet. Anyhow, here is a link to the DOJ reading room, where it's top-notch AUSA manauls are available for public study.
Martha stewart and phone logs
See the Smoking Gun for another reason to remember: it is almost always easier to explain the truth, than to explain why you lied about the truth.
See the Smoking Gun for another reason to remember: it is almost always easier to explain the truth, than to explain why you lied about the truth.
In a job market where many students can't find jobs...
...law firms are having an overly difficult a time enticing the top students. The solution?
"After fielding complaints from a number of large law firms, a task force at the National Association for Law Placement has recommended shortening the time in which law students have to respond to employment offers."
I'll file this under "Reasons for hating the arrogance of those in the law profession" file.
...law firms are having an overly difficult a time enticing the top students. The solution?
"After fielding complaints from a number of large law firms, a task force at the National Association for Law Placement has recommended shortening the time in which law students have to respond to employment offers."
I'll file this under "Reasons for hating the arrogance of those in the law profession" file.
Monday, February 16, 2004
Handy dandy federalism quotes
"[T]he constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in the cases enumerated. This principle, which distinguishes the national from the State governments, is derived from the nature of the constitution itself, as being a delegation of power, and not a restriction of power previously possessed; and from the express stipulation in the 10th amendment, that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature. Gibbons v. Ogden, 22 U.S. 1, 33 (1824).
(footnotes omitted)
***
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961).
***
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).
***
“[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” (internal citations and quotation marks omitted). United States v. Morrison, 529 U.S. 598 (2000).
***
“Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance between federal and state power lies at the heart of liberty.” Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991).
***
I have dozens more if you care to see them.
"[T]he constitution of the United States is one of limited and expressly delegated powers, which can only be exercised as granted, or in the cases enumerated. This principle, which distinguishes the national from the State governments, is derived from the nature of the constitution itself, as being a delegation of power, and not a restriction of power previously possessed; and from the express stipulation in the 10th amendment, that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The national constitution must, therefore, be construed strictly, as regards the powers expressly granted, and the objects to which those powers are to be applied. As it is a grant of power in derogation of State sovereignty, every portion of power, not granted, must remain in the State Legislature. Gibbons v. Ogden, 22 U.S. 1, 33 (1824).
(footnotes omitted)
***
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, p. 292-293 (C. Rossiter ed. 1961).
***
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.” The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).
***
“[T]he scope of the interstate commerce power must be considered in the light of our dual system of government [because to do otherwise] would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” (internal citations and quotation marks omitted). United States v. Morrison, 529 U.S. 598 (2000).
***
“Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance between federal and state power lies at the heart of liberty.” Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991).
***
I have dozens more if you care to see them.
The Feeney Amendment. Part I. Sex Crimes.
Below please find some of my notes on the Feeney Amendment. If you have any other questions, I can e-mail you a draft of a paper that, by the way, will be included in the CLE materials of a national bar association. I am not yet sure who will hold the copyright. And so I refrain from posting the entire document online. Indeed, what follows are notes taken from the paper using different language and syntax than in the draft for publication.
There is no express or implied warranty of habitabiliy. This is also not legal advice.
Sex Crimes
In all cases brought under 18 U.S.C. §1201 involving minors, and all offenses committed under §1591 or Chapters 71, 109A, or 117, of Title 18, several changes apply.
A judge may not issue a downward departure (Ed Note: I don't care about upward depatures.) based on an unenumerated circumstance. U.S.S.G. §5K2.0(b)(1). An unenumerated circumstance is one that has not been "affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines." Id. and Application Note. Departures are proper only if based on factors articulated in Chapter 5, Part K. U.S.S.G. §2G2.2(b)(5)(A)-(D).
There are several factors that the sentencing court may no longer rely upon. Age may be used as a factor to downward depart only to the extent that age may be used under 5H1.1. An extraordinary physical impairment is relevant for a downward departure only to the extent that physical condition may be relied upon under 5H1.4. Aberrant behavior is no longer a proper reason for a downward departure. Family ties and responsibilities are never a reason for a downward departure. United States v. Galante, 111 F.3d 1029, 1035 (2d Cir. 1997) is therefore overruled. This amends 5H1.6, which provides that family ties are not ordinarily relevant. Gambling dependence is no longer a factor a court may consider as a for a departure. 5H1.4.
Chapter 4, Part B1.5, Application Note 4(b)(i) changes the definition of pattern of sex crimes: now two or more sex acts with the same minor is a pattern of sexual misconduct. Previously, two separate offenses against two separate victims were required to qualify the defendant for a 4B1.5 base level increase.
The defendant will be subject to a 4 level enhancement if convicted with material depicting minors engaged in sadistic or masochistic acts. 2G2.2(b)(3)
There is now a sliding scale for a base level increase in cases involving multiple pornographic images. U. S.S.G. §2G2.2(b)(6)(A)-(D). Ten to 150 images will subject the defendant to a 2 level base increase. U.S.S.G. §2G2.2(b)(6)(A). From 150 to 300 images will subject the defendant to a base level increase of 3. U.S.S.G. §2G2.2(b)(6)(B). From 300 to 600 will subject the defendant to a 4 level increase. U.S.S.G. §2G2.2(b)(6)(C). A defendant found with 600 or more images will have his base level increased by 5 levels. U.S.S.G. §2G2.2(b)(6)(D).
The Post-Feeney Guidelines are available here.
Below please find some of my notes on the Feeney Amendment. If you have any other questions, I can e-mail you a draft of a paper that, by the way, will be included in the CLE materials of a national bar association. I am not yet sure who will hold the copyright. And so I refrain from posting the entire document online. Indeed, what follows are notes taken from the paper using different language and syntax than in the draft for publication.
There is no express or implied warranty of habitabiliy. This is also not legal advice.
Sex Crimes
In all cases brought under 18 U.S.C. §1201 involving minors, and all offenses committed under §1591 or Chapters 71, 109A, or 117, of Title 18, several changes apply.
A judge may not issue a downward departure (Ed Note: I don't care about upward depatures.) based on an unenumerated circumstance. U.S.S.G. §5K2.0(b)(1). An unenumerated circumstance is one that has not been "affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines." Id. and Application Note. Departures are proper only if based on factors articulated in Chapter 5, Part K. U.S.S.G. §2G2.2(b)(5)(A)-(D).
There are several factors that the sentencing court may no longer rely upon. Age may be used as a factor to downward depart only to the extent that age may be used under 5H1.1. An extraordinary physical impairment is relevant for a downward departure only to the extent that physical condition may be relied upon under 5H1.4. Aberrant behavior is no longer a proper reason for a downward departure. Family ties and responsibilities are never a reason for a downward departure. United States v. Galante, 111 F.3d 1029, 1035 (2d Cir. 1997) is therefore overruled. This amends 5H1.6, which provides that family ties are not ordinarily relevant. Gambling dependence is no longer a factor a court may consider as a for a departure. 5H1.4.
Chapter 4, Part B1.5, Application Note 4(b)(i) changes the definition of pattern of sex crimes: now two or more sex acts with the same minor is a pattern of sexual misconduct. Previously, two separate offenses against two separate victims were required to qualify the defendant for a 4B1.5 base level increase.
The defendant will be subject to a 4 level enhancement if convicted with material depicting minors engaged in sadistic or masochistic acts. 2G2.2(b)(3)
There is now a sliding scale for a base level increase in cases involving multiple pornographic images. U. S.S.G. §2G2.2(b)(6)(A)-(D). Ten to 150 images will subject the defendant to a 2 level base increase. U.S.S.G. §2G2.2(b)(6)(A). From 150 to 300 images will subject the defendant to a base level increase of 3. U.S.S.G. §2G2.2(b)(6)(B). From 300 to 600 will subject the defendant to a 4 level increase. U.S.S.G. §2G2.2(b)(6)(C). A defendant found with 600 or more images will have his base level increased by 5 levels. U.S.S.G. §2G2.2(b)(6)(D).
The Post-Feeney Guidelines are available here.
McNab v. United States, or: Why I like it when rich people get charged with crimes.
How Appealing posts links to McNab briefs here.
Miguel Estrada is council for petitioner. Seth Waxman (Solicitor General during the Clinton administration) is amicus in support of petitioner.
Whatever the Supreme Court decides to do in this case, at least we can sleep well knowing that it was handled by the best.
How Appealing posts links to McNab briefs here.
Miguel Estrada is council for petitioner. Seth Waxman (Solicitor General during the Clinton administration) is amicus in support of petitioner.
Whatever the Supreme Court decides to do in this case, at least we can sleep well knowing that it was handled by the best.
Friday, February 13, 2004
Maybe there is a reason the parents don't want you around?
"The [Michigan] state Senate on Wednesday unanimously approved a bill intended to protect grandparent visitation that would change a state law recently ruled unconstitutional."
"The [Michigan] state Senate on Wednesday unanimously approved a bill intended to protect grandparent visitation that would change a state law recently ruled unconstitutional."
The Sixth Amendment means free representation...
"The Minnesota Supreme Court on Thursday struck down mandatory fees the Legislature imposed last year on defendants who use public defenders."
"The Minnesota Supreme Court on Thursday struck down mandatory fees the Legislature imposed last year on defendants who use public defenders."
More proof that it's the lawyer that counts
Criminal defendant gives medical records to his lawyer. Lawyer turns over these medical records to the D.A. D.A. uses the information in these records to put nails in the defendant's coffin.
Criminal defendant gives medical records to his lawyer. Lawyer turns over these medical records to the D.A. D.A. uses the information in these records to put nails in the defendant's coffin.
Thursday, February 12, 2004
The law of marriage in California
California Family Code Section 308.5 defines marriage: "Only marriage between a man and a woman is valid or recognized in California."
California Family Code Section 308.5 defines marriage: "Only marriage between a man and a woman is valid or recognized in California."
Criminal Law & the Supreme Court, an Update
For your convenience, I am going to provide links to the briefs, oral arguments, and opinions in criminal and Section 1983 cases heard before the United States Supreme Court. I hope that Tom Goldstein will do something similar, since he would have the time and resources to do a better job. At his blog, they timely post documents. However, they do not arrange the relevant material by case.
Also, case summaries will follow as time allows.
Fellers v. United States (02-6230) (Sixth Amendment): opinion, oral argument, briefs
Maryland v. Pringle (02-809) (Fourth Amendment): opinion, oral argument, briefs
Illinois v. Lidster (02-1060) (Fourth Amendment): opinion, oral argument, briefs
United States v. Banks (02-473) (Fourth Amendment): opinion, oral argument, briefs
Mitchell v. Esparza (02-1369) (habeas): opinion
Yarborough v. Gentry (02-1597) (habeas): opinion
[Mitchell & Yarborough were summary dispositions]
For your convenience, I am going to provide links to the briefs, oral arguments, and opinions in criminal and Section 1983 cases heard before the United States Supreme Court. I hope that Tom Goldstein will do something similar, since he would have the time and resources to do a better job. At his blog, they timely post documents. However, they do not arrange the relevant material by case.
Also, case summaries will follow as time allows.
Fellers v. United States (02-6230) (Sixth Amendment): opinion, oral argument, briefs
Maryland v. Pringle (02-809) (Fourth Amendment): opinion, oral argument, briefs
Illinois v. Lidster (02-1060) (Fourth Amendment): opinion, oral argument, briefs
United States v. Banks (02-473) (Fourth Amendment): opinion, oral argument, briefs
Mitchell v. Esparza (02-1369) (habeas): opinion
Yarborough v. Gentry (02-1597) (habeas): opinion
[Mitchell & Yarborough were summary dispositions]
Wednesday, February 11, 2004
How can I not support Bush's amnesty plan?
"The Mexican crowd hooted 'The Star-Spangled Banner.' It booed U.S. goals. It chanted 'Osama! Osama! Osama!' as U.S. players left the field with a 2-0 victory."
Via Legal Fiction
"The Mexican crowd hooted 'The Star-Spangled Banner.' It booed U.S. goals. It chanted 'Osama! Osama! Osama!' as U.S. players left the field with a 2-0 victory."
Via Legal Fiction
McNab v. United States
A superb discussion of the send 'em to jail for undersized lobster tails case is here.
What frustrates me the most is that the United States wants to send to prison for 5-10 years people who contribute hundreds of thousands of dollars a year in income and corporate taxes.
A superb discussion of the send 'em to jail for undersized lobster tails case is here.
What frustrates me the most is that the United States wants to send to prison for 5-10 years people who contribute hundreds of thousands of dollars a year in income and corporate taxes.
I was irony my BDU's today
Here is someone else criticizing John Kerry for making anti-war statements.
As a young man John Kerry faced combat in Vietnam. His boat came under heavy fire and his squad member fell into the river. Kerry dived into the river to save his friend.
Kerry is anti-war.
All able-bodied males under 35 years old are eligible to fight in the Iraq War. Many of these young men remain at home, living in luxury, where they vociferously proclaim their "support" for the war.
I think that's ironic.
Please click here to show true support for the troops.
Here is someone else criticizing John Kerry for making anti-war statements.
As a young man John Kerry faced combat in Vietnam. His boat came under heavy fire and his squad member fell into the river. Kerry dived into the river to save his friend.
Kerry is anti-war.
All able-bodied males under 35 years old are eligible to fight in the Iraq War. Many of these young men remain at home, living in luxury, where they vociferously proclaim their "support" for the war.
I think that's ironic.
Please click here to show true support for the troops.
What would Patton do?
Peter Kirsanow, a member of the U.S. Commission on Civil Rights, provides this analysis on General Patton and affirmative action.
Peter Kirsanow, a member of the U.S. Commission on Civil Rights, provides this analysis on General Patton and affirmative action.
Subscribe to:
Posts (Atom)
Followers
Blog Archive
-
▼
2004
(138)
- ► 04/18 - 04/25 (2)
- ► 04/11 - 04/18 (2)
- ► 04/04 - 04/11 (4)
-
►
03/28 - 04/04
(8)
- If numbers do not change meaning over time, then w...
- The right to privacy The pro-abortion forces thin...
- Race, One-hundred & twenty-nine years later. In s...
- CrimLaw Since I have been getting some high quali...
- Leggo my ‘ego I have been reading with much laugh...
- A new blog This new blog, Crime & Federalism, loo...
- Excepting their way around the Fourth Amendment… ...
- The Fourth Amendment has been re-written "The rig...
-
►
03/21 - 03/28
(6)
- Hearsay hearings In California, as well as many o...
- Sympathy? CrimLaw notes an article discussing the...
- Standing after Pringle In Maryland v. Pringle (No...
- Not out to save your soul... The confession of a ...
- Oh how the times have changed The author of a 198...
- Priorities Which is more important to you as a co...
- ► 03/14 - 03/21 (5)
-
►
02/29 - 03/07
(7)
- Death penalty stuff A year ago I counted heads in...
- Special annoucement from John Edwards today at 4 ...
- BREAKING NEWS West to face criminal charges for ga...
- Jeremy Blachman hits 100,000 Jeremy asks a favor:...
- Doug Kmiec on Locke v. Davey... ...can be found h...
- Fourth Amendment summary on exceptions to the warr...
- In good company when making mistakes... "Every la...
-
►
02/22 - 02/29
(7)
- No one ever gets framed, really... High School pr...
- Sabri Reply Brief ...is available here. Note tha...
- On children and puppies At Crescat Sententia, a d...
- Pleasure reading You can't go wrong reading Ken S...
- Kid 'n Play The Lock v. Davey decision is now ava...
- Heck v. Humphrey & Section 1983 Muhammad v. Close...
- Lawyer loses $150 an hour for poor writing. In a ...
-
►
02/15 - 02/22
(22)
- No meal reimbursement for work on Christmas Day T...
- Legal writing in Rush Limbaugh case... Thanks to ...
- Capitalism meets Christ I am a Christian and I am...
- "Getting More from Google" If you are a googlephi...
- Dead, but not forgotten See this post at Legal Fi...
- A new blog From what I can tell, Criminal Appeal ...
- Ex Enron CEO indicted here.Jeff Skilling's lawyer...
- Breath out, start up. CrimLaw links to an article...
- The New Federalism? ALAFAIR BURKE has a Findlaw c...
- Political advocacy in action - the filibuster that...
- Unauthorized practice of law in California Ouch.
- Commercial speech and Do-Not-Call ...case upholdi...
- Man serves 4-hour detention for daughter. "On the...
- I can't seem to spot the issue... "Private sector...
- Eugene wonders... ..about this story (where it se...
- Section 1983 case "The appeals court found that w...
- DOJ Reading Room I am not sure if I posted this y...
- Martha stewart and phone logs See the Smoking Gun...
- In a job market where many students can't find job...
- Handy dandy federalism quotes "[T]he constitution...
- The Feeney Amendment. Part I. Sex Crimes. Below...
- McNab v. United States, or: Why I like it when ric...
-
►
02/08 - 02/15
(21)
- Maybe there is a reason the parents don't want you...
- The Sixth Amendment means free representation... ...
- More proof that it's the lawyer that counts Crimi...
- Pre-law? File a lawsuit! "Three white applicants...
- The law of marriage in California California Fami...
- Above the law "In an open challenge to California...
- Criminal Law & the Supreme Court, an Update For y...
- How can I not support Bush's amnesty plan? "The M...
- McNab v. United States A superb discussion of the...
- Wesley Clark drops out of campaign. Breaking news...
- Howard "How Appealing" Bashman on becoming an appe...
- I was irony my BDU's today Here is someone else c...
- What would Patton do? Peter Kirsanow, a member of...
- ► 02/01 - 02/08 (17)
- ► 01/25 - 02/01 (23)
- ► 01/18 - 01/25 (5)
- ► 01/11 - 01/18 (1)
- ► 01/04 - 01/11 (7)
-
►
2003
(14)
- ► 12/28 - 01/04 (6)
- ► 12/21 - 12/28 (8)