Sheridan: Con-Law

KOREMATSU

Hoping to prevent loss of the memory of what America did to the AJAs on the West Coast after Pearl Harbor, California has established a day to remember.  This article on Fred Korematsu, in the LA Times, neatly summarizes the story of one case of an American who objected to being interned and saw it go all the way to the Supreme Court, where he was disappointed, based on a fraudulent conviction  The government had argued, based on a representation made by Gen. DeWitt, commanding on the West Coast, that Japanese living in America had committed numerous acts of espionage and sabotage.  The U.S. Attorney deputy handling the case checked with the FBI and other agencies to see whether this was true.  It was a lie.  He wrote a memo.  The case went forward anyway.  In 1981, a researcher who was writing a book, Peter Irons, saw the memo.  The resulting legal action to vacate the conviction succeeded.  The case remains on the books, nevertheless, as a ringing endorsement of the right to round up without probable cause or trial anyone who looks different, so long as we're sufficiently afraid of, or prejudiced against them because they look different.

There's the America of song and story and there's the America of reality.  Sometimes they meet, but sometimes it takes a battle to make it happen.

ANGELIDES REPORT

http://tinyurl.com/4p5u3a3

 

The federal government report into the causes of the financial crash of 2008 appeared today.  NYT has this report, including a link to the commission's 500 page verdict.  It isn't pretty.

KNOW YOUR CONSTITUTION?

It seems that some public officials don't know their Constitution as well as might hope.

It's not surprising.  We tend only to learn what we deal with most and ignore the rest.  I'd hate to be tested on the amendment process, for example, because I have difficulty recalling that it takes 3/4 of something* to amend.  Why the difficulty?  Because the question doesn't come up in discussion all that often, even among professors who discuss constitutional doctrine interminably, and I participate in one of those discussions and have for at least the past five years, almost weekly, if not daily, on a listserv devoted to Conlaw for Conlawprofs.  In other words, I could find myself embarrassed quite easily.

On other stuff that we discuss more commonly, I feel quite comfortable discussing matters.  If any of us goes into uncharted territory it's usually with a self-expressed acknowledgment that we're speaking of what might have been, not what is.

A politician spends all of his or her time dealing with fund-raising, working on getting endorsements, speaking with other politicians about these and political matters, and attending to constituent concerns.  I can't see an active politician taking time out to attend a law class in Conlaw.  There's only 24 hours in a day.

This makes it more important for aspiring pols to have learned the basics, however you define that, before entering the lists.

But, it's still possible to play catch-up, I suppose.  The embarrassment potential is simply that much greater, I suppose as it's not too hard to blunder.

Perhaps they need a Conlawprof on the payroll.

Thanks to John Harris, my Mixologist-in-Chief, for the pointer.  Everyone should have one of those on staff, as well...

Happy new year, Professor.

*  As I wuz sayin,' Article V states:

The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress:  Provided that no amendment which may be made prior to the year One thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the nninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the senate.

Got that?

What does it take to amend the Constitution?  3/4?  2/3?  of what?  Congress?  A  convention?

Already I've forgotten, which is why I'd never get into a discussion of a provision without having the text in front of me.  I purchased a few hundred booklets a few years ago to hand out and to keep handy.

At the Constitutional Convention in Philadelphia, after voting on what they wanted in the Constitution, the delegates sent the hodge-podge to a special Committee on Style, headed by Gouveneer Morris, to fix it up and make it look impressive.  I guess they did a lot of compacting, making it virtually impossible for some of us to keep straight in mind.

Oh, yes, the 1801 proviso prohibiting certain amendments?  What was that about?  It was about slavery.  People like Washington, who'd brought a few slaves to Philadelphia from the plantation at Mt. Vernon, a four day carriage ride away, hope that the peculiar institution would somehow evaporate w/o any effort or cost on their part, in around twenty years or so.  To keep the South cooperative, the North, which opposed slavery, compromised, or caved, as the price of getting ANY sort of constitution governing both sections of the country which otherwise would have died aborning. This condemned about four million people to life as slaves for the foreseeable future.

What a country! 

 

LINDA GREENHOUSE

This made me laugh at the end.

 

JANUARY 12, 2011, 9:30 PM

Problems of Democracy

By LINDA GREENHOUSE

 

Linda Greenhouse on the Supreme Court and the law.

Tags:

Constitution, Justice Antonin Scalia, Miranda warning, Supreme Court

 

 

On the first day of law school, my constitutional law professor gave the class a homework assignment: go home tonight and read the Constitution.

That didn’t take long. Nor that night did the Constitution seem especially complicated, at least compared with the old English cases we were assigned to read in other first-year courses like torts and contracts. Even students who, like me, didn’t know a tort from a contract had been exposed in college and earlier to some formal learning about the Constitution.

My own first exposure came in a high school class known as Problems of Democracy — on reflection, a rather daring name for mid-century cold-war America, with the implicit suggestion that democracy might have problems, might not be perfect. Search the Internet for a course by that name, and you will find that it was a popular part of the country’s civics curriculum into the 1980’s — in the days when there was a civics curriculum. (By the time my daughter was in high school, civics was still required, but it went under the less redolent name of National, State and Local Government — what did they mean, anyway, by listing “national” in front of state and local?)

Did Problems of Democracy also mean to imply that the Constitution itself might not be perfect in every way? If so, that particular message didn’t come through in my public school classroom. If there were problems, Chief Justice Earl Warren was undoubtedly fixing them.

The House’s show of reverence for the written text of the Constitution obscured much of what really matters in our constitutional culture.

 

These memories are, of course, evoked by the public Constitution-reading exercise that the new Republican majority in the House of Representatives led last week on the House floor. It was a sanitized version that the representatives read, skipping that embarrassing business about slaves counting as only three-fifths of a person. The explanation was that this portion of the text of Article I, Section 2 no longer counted, having been repudiated by the post-Civil War amendments.

The Constitution-reading performance has come in for a fair amount of ribbing, on this and other grounds. My own beef is not that the members of Congress chose not to acknowledge inconvenient parts of the document as written, but that their show of reverence for the written text obscured much of what really matters in our constitutional culture.

Call it the unwritten Constitution, as many do; the “Invisible Constitution,” the title of a recent book by Laurence H. Tribe; or the “sedimentary” Constitution of a 1998 article by Barry Friedman and Scott B. Smith, who used a geologic image to convey the notion that today’s Constitution is the product of accumulated layers of historical meaning.

You don’t have to believe in a “living Constitution,” the object of Justice Antonin Scalia’s scorn (“Go back to the good old dead Constitution,” he told NPR in 2008), to recognize that, however labeled, the Constitution is a participant in a continual dialogue between past and present. A reading of the text that ignores that fact is as simplistic and sterile an exercise as my long-ago homework assignment, minus the professor’s ironic goal of forcing the students to see just how little they understood. Of course, we spent the ensuing semester — and, for many, the intervening years — trying to fathom the mysteries of what had seemed so straightforward on that first night.

There is nothing inherently liberal, progressive or even ideological one way or another about acknowledging that the Constitution we have today is the multilayered product of original understanding mediated over time by perceived need. Nor is Justice Scalia himself, his protestations aside, immune from this reality. One of his opinions from the Supreme Court’s last term is my favorite recent example of how even this most original of all originalists sometimes bends toward the practical in his constitutional interpretation.

Last term’s case, Maryland v. Shatzer, concerned the interrogation of a prison inmate who, more than two years earlier, had received his Miranda warnings and declined to answer questions without a lawyer present. When new information about the man’s crime came to light, a detective went back to the prisoner to try again to question him. The detective administered a new set of Miranda warnings. This time, the prisoner waived his rights and submitted to a polygraph examination, which he failed.

A 1981 decision, Edwards v. Arizona, held that once a suspect has been advised of his rights and has refused to talk, the police may not reinitiate questioning unless the suspect either has a lawyer or comes forward spontaneously. In that case, the second interrogation followed the first by one day — too soon, the court concluded then, to remove the coercive impact of a renewed interrogation. In the new case, all nine justices agreed that the Edwards precedent was not controlling when the break in questioning had lasted for more than two years.

But if two years was obviously long enough for the police to wait, what would be the shortest period of time that would permit a new effort at questioning? “It seems to us that period is 14 days,” Justice Scalia said for the court.

Fourteen days? Where did that come from as a constitutional principle? Fourteen days, Justice Scalia explained, provide “plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.” That sounds an awful lot like constitutional policy, not constitutional interpretation.

As a formal matter, a defender of this opinion might point out that in his analysis, Justice Scalia disclaimed reliance on the Constitution itself. The Miranda warnings and the Edwards v. Arizona rule constitute “a set of prophylactic measures,” Justice Scalia wrote, a kind of judge-built fence around the Fifth Amendment itself, intended to reinforce the amendment’s protection against compelled self-incrimination.

Fair enough, but still those 14 days had to come from somewhere, and one would look in vain for them anywhere in the Fifth Amendment’s text. The answer has to be that they came from the collective judgment of the justices who thought 14 days represented a common-sense break point. Justice Clarence Thomas was not persuaded. Why not “zero, 10, or 100 days,” he asked, speaking for himself in a concurring opinion. Indeed. At least the trimesters of pregnancy that the Supreme Court discussed in Roe v. Wade, so harshly criticized by Justices Scalia and Thomas and their allies, are grounded in medical practice and reproductive biology.

Last month, before the new Congress opened for business, Representative Darrell Issa, a California Republican and the soon-to-be chairman of the House Oversight and Government Reform Committee, wrote to 150 companies and trade associations asking them to let him know about any federal regulations that they would like to see removed. Perhaps Mr. Issa was emboldened to send such a letter by the business-friendly vibrations emanating from the Supreme Court these days. It was just last January, in the Citizens United case, that the court granted corporations a robust First Amendment right, as citizens, to spend money in support of or against candidates in federal elections.

House Republicans could read the Constitution every day between now and July 4 without finding a word about corporate citizenship. Funny, but it just doesn’t seem to be there. Call it a problem of democracy.

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WIKILEAKS ASSANGE, ROSENBERG

http://www.rfc.org/blog/article/855  (the late Rosenbergs' son)

http://www.ted.com/talks/julian_assange_why_the_world_needs_wikileaks.html 

Thank you to an observant reader who forwards the above links, the first from Robert Meeropol, a son of Julius and Ethel Rosenberg, the alleged Soviet spies, arrested and executed for allegedly conspiring to pass nuclear secrets, as in the A-bomb.  This was in 1951 when I was in grade school but that doesn't erase at least some of the memories of the great spy trial in New York, published in the New York Daily News, the local tabloid of note.  Of course, as loyal Americans who hated Communism, we were fine with that.  It was only later that we were able to wonder whether this was a really good idea.  Much of what the Rosenbergs were executed for can be found on the web, we're told.  Robert changed his name after the execution of his parents when he was adopted by relatives named Meeropol.

The son says that his mother was executed for typing.  There was contested testimony that she typed up som notes relating to a diagram of a supposed secret.   In those days, nuclear science was young and we all knew that the Manhattan project that resulted in the destruction of Hiroshima and Nagasaki was top secret. Anyone delivering secrets to Stalin deserved execution, right?  Giving the bad guys the A-bomb?  Well, that's what we thought, anyway.

But Rosenberg says that his parents were executed for violating a statute, the Espionage Act of 1917, that makes it traitorous to provide material aid and comfort to the enemy in time of war, if recollection serves.

The crime of conspiracy was created to get at the problem of criminals associating together to commit their crimes.  One criminal acting alone was bad enough, but two or more acting together was that much worse as multiple criminals acting together potentiated their dangerous anti-social effect.  So, you could  not be convicted of conspiracy if you acted alone, or there was just one participant.  But you could both be convicted, even for the acts of the other, if you operated in concert together, like the members of an orchestra, or burglary team.

Conspiracy is described as a vicarious crime, as opposed to a substantive crime, because you can be held responsible for a crime committed by someone else, as long as that crime was committed to further the conspiracy previously agreed upon.  Let's say that you and a friend decide to rob a bank.  In furtherance of that goal, he enters a hardware store to obtain supplies needed to tunnel into the bank vault from next door.  He shoots the store clerk.  Guess what, you can be held liable for the murder of the clerk even though you only wanted to rob the bank, not the hardware store.  Or you sit in the getaway car as your partner enters the bank to rob the teller at gunpoint.  On the way out, your armed partner trips and falls, discharging his handgun, killing a customer waiting in line to make a deposit.  You're sititng outside in the car, planning only to drive away.  Guess what, you can be held liable for your clumsy partner's killing of the customer, even by accident.  He can be  held responsible on a felony-murder theory, which holds that anyone concerned in the commission of a felony who kills someone in the process, is guilty of murder.  This is a form of legal bootstrapping much criticized outside prosecution circles.

Rosenberg's point is that convicting someone for conspiracy to commit treason because the person simple spoke is a violation of the protections of First Amendment.

One curious aspect of this is that I recall my professor of Constitutional Law, Norman Redlich, raising this question in about 1962, when I was a first year law student.  I was always puzzled by what he was getting at.  Rosenberg's article has clarified what I think he was clearly getting at.  Prof. Redlich was raising the question whether expressive activity protected by the First Amendment should be allowed to serve as one of the overt acts required by the law of conspiracy to prove not only the agreement but the essential "step-forward" needed to take the crime out of the purely notional into the world of active physical behavior. This is the reason for the requirement that to prove a conspiracy, one must prove an overt act.

We don't traditionally protect some forms of speech, however:  Defamation, threats, fighting words, immediate incitement to commit riotous acts, obscenity (but not pornography; see Millerl v. California), kiddie porn, are a few that come to mind offhand.  Oh, yes, solicitation to commit a crime, or verbally aiding and abetting someone to commit a crime.  It would be a significant shift to say that having a meeting or even speaking on the telephone, say to communicate an important message, could not serve as the required overt act for conspiracy, or as aiding and abetting in the commission of the resulting substantive crime.

Thank you dear reader.

 

NAVY FIRING OVER VIDEOS

So this top navy guy, a graduate of Annapolis, a former teacher at Top Gun, the aviation school made famous by Tom Cruise in the motion picture of that name, and the commander of the Enterprise, our biggest, or at least oldest, nuclear carrier, has been fired for being a jerk.

Jerkdom is no longer a naval requirement.  There's the right way, the wrong way, the Navy way, and the American way.

Which do you think trumps?

The American way.

In today's America, as a public official, and that includes military officers, not to say enlisted personnel, you cannot profess to protect part of the nation's population while making fun of the people you don't respect for reasons you picked up in grade school and failed to wash out by the time you finished high school, much less college.

Let's see, the people we no longer make fun of include:

Protestants

Catholics

Jews

White people

Black people

Red people

Yellow people 

Brown people

(the above five being what some of us were taught were the "five races of people.")  That was all BS we learned from our grade school colleagues, of course, who knew as little as we did at the time.

I could go on with the list and include gender, sexual  orientation, disability, etc. but if you read this site it's because you can figure out some things for yourself.

The Enterprise commander, Owen Honors, couldn't decipher the American way, the people he was fighting for, so he went down before the ship, which floats, ready to fight another day.  But it was only in fun and to build morale, he might say.  Well, suppose he was making fun of the group you identify with.  He's the captain of a navy ship.  He's got the navy behind him, and the president and Congress, and he's acting like a jerk at the expense of your group.  

I'll tell you what I find odd about the current scandal.  The clips have been around for three years w/o causing a public fuss.   Now they've become public.

The navy had a choice as to which message it wished to endorse: "Boys will be boys," meaning that grade-school, high-school attitudes will prevail in today's navy, the nation's highest expression of power in the service of democratic values, some would say, or, "If we tolerate this, what won't we tolerate?"

It looks as though the good guys won this fight, this time.  It's a tough battle, never entirely won, is it?

I'd like to see an organization formed of officers cashiered for failing to keep current with the American way.  It would be nice to see whether the learned anything or continue in the old mold.  Old molders, we could call 'em.



ORIGINALISM, AGAIN

Happy new year.

In reading Ron Chernow's biography of George Washington, I was struck again by how all over the lot were the founding fathers, aka the framers, of the new government.  First we rebelled, then we succeeded, and then we discovered that the government under the Articles of Confederation wasn't working.  For one thing, we had this debt, you see, incurred in financing the war.  Congress borrowed money, the states borrowed money, and there was little way to pay it back, other than imposing customs duties, i.e. taxes on imports, and selling western land owned by the nation, not the states.  So there was a meeting, first in Annapolis and then, the next year, in Philadelphia, 1787, where we got our constitution.

There was much division and much compromising.  The one thing that was clear was that unanimity of viewpoint on all matters was nonexistent.

What does that have to do with us?

Not much, except that when someone claims superior virtue on the ground that his view represents an 'originalist' view, it is proper to ask, "the originalist view of whom?  When?"  You see, the framers continued to live long past the framing, and changed position with some frequency.  Madison and Jefferson are the two main culprits here.  Hamilton and Adams seem a little more fixed in position, as was Washington himself.  The latter supported the Constitution, as against the anti-Federalists, who didn't, but preferred a "loose interpretation" to permit him to do what needed to be done to run a country out of the gate.  Jefferson pretended to be a "strict constructionist" when it served his purpose but became a most loose constructionist when he was president and needed to make the Louisiana Purchase, territorial acquisition not being something expressly provided for in the Constitution.  

"Well, maybe it's implied," he might have reasoned, the same reasoning used by Treasury Secretary Alexander Hamilton in advising first president George Washington that he had far more power than expressly appearing in the Constitution, and Chief Justice John Marshall in McCulloch v. Maryland (1819) when he ruled that the necessary and proper clause (Art. I. Sec. 8, Cl. 19) was best interpreted loosely to afford the central government the power to do what was needed to help the country function with all of the national powers that any nation enjoyed, subject only to those powers reserved by the states to handle local affairs.  

Yes, this sort of turns the idea of a limited central government inside out, but if the question is whether we want a strong country to deal with the world, who do you want in control, Uncle Sam or North Dakota?

I imagine that among the best arguments against an across-the-board originalist position is the idea that so many of the framers owned slaves, including Washington, Madison, and Jefferson.  If those who claim that they're originalists are to remain consistent, presumably they should favor a return to slavery and the repeal of Amendments 13, 14, and 15, the post Civil War amendments that so revised the Constitution that it would be accurate to call it Constitution Ver. 2.0.

The reason this comes up is because Justice Scalia is reported as saying that the equal protection embodied in the Fourteenth Amendment, ratified 1868, does not include women as a class entitled to equal protection.  Why?  Because the 39th Congress, which proposed and ratified the amendment didn't consider women as a protected class.  Why?  Because Congress was trying to protect the newly freed slaves, men women and children.  Congress wasn't focusing on women as a group needing protection.  For one thing, that would mean recognizing the right of women to vote, something we take for granted today, but was a hard-fought right that took ages to accomplish.

The framers of the Constitution had their hang-ups, the 39th Congress had its own, and we have ours.

Today's news has a navy commander, the captain to be of the nuclear powered aircraft carrier Enterprise relieved of duty for showing films on its closed circuit TV making fun of women and gays, supposedly to improve morale; whose he didn't explain.  As I was saying, we all have our blind spots and some take pride in them.  Others try to live and learn.  Maybe the new commander will have learned.  I doubt that Justice Scalia will.  Too set in his ways.

This is not to condemn Scalia, who I admire for his clear vision, it seems, regarding protecting the First Amendment (see R.A.V. v St. Paul) and the right of confrontation (and against use of hearsay) in criminal prosecutions (see Crawford v. Washington).

I just can't abide his so called originalism, selective though it may be.  I sincerely doubt that he'd favor a return to slavery.  For one thing, he might say, the Constitution was duly amended in 1868, which is the only way that the Framers expressly provided for in the Constitution as a way for the country to get away from originalist views when circumstances changed and the need arose.

I'm not sure of his views on Marbury v. Madison (1803), except to say that the court on which Scalia sits has certainly wielded John Marshall's Big Axe from time to time, meaning that he accepts its acceptance, regardless of how he might have seen its initial validity.

Sometimes you just have to go with the country you've got, not the country you wish you had, as Donald Rumsfeld might have said.  What he did tell a soldier who complained about the lack of proper equipment in Iraq was that you go to war with the army you have, not the one you wished you had.  This might have sounded cold, but there's an element of truth to it which is hard to deny.