Illinois v. Moore

The Illinois Supreme Court has upheld the state’s ban on carrying loaded and accessible firearms. This conflicts with the Seventh Circuit’s decision striking down the same statute, but state prosecutors apparently plan to follow the state decision, not the federal one. That is certainly their right for now, though I predict a cert grant in the near future, if the Seventh Circuit doesn’t take this en banc.

But I am troubled by one alternate ground of reasoning in the state’s opinion:

Moreover, defendant’s constitutional challenge additionally suffers because of his status as a felon. Neither Heller, McDonald, nor Moore has suggested the second amendment right to keep and bear arms guarantees a felon’s ability to own and possess a firearm. See Heller, 554 U.S. at 626 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”); McDonald, 561 U.S. at ___, 130 S. Ct. at 3047 (repeating Heller’s “reassurances” regarding felons); Moore, 702 F. 3d at 940 (finding bans limited to felons do not fall within second amendment protection). Accordingly, we reject defendant’s constitutional claim and affirm his convictions under the AUUW statute.

As I understand it, it’s not as if Illinois actually has a ban “limited to felons.” The Court is just suggesting that even a ban that has nothing to do with a defendant’s felony can never be challenged by a felon. I’m not at all convinced that a defendant’s prior conviction can save a criminal conviction that in no way depended on a defendant’s being a felon.

It’s constitutionally permissible for the state to have an arson statute that forbids burning flags in public. But if you’re charged under an impermissible flag-burning statute, you’re permitted to challenge the conviction, and it’s no answer that you could could have been convicted under a different statute that would have been constitutional.

These kinds of overbreadth/as-applied problems are a little perplexing, and I’m not sure I’m right about how to resolve them. But I am sure that the Illinois Supreme Court is driving through them much too fast.

Mammas don’t let your babies grow up to be tax lawyers

The most-emailed story on the New York Times webpage right now is this column from The Ethicist, discussing the ethics of being a tax lawyer:

I am a tax lawyer. Is advising wealthy companies of ways to reduce their tax bills through sophisticated legal structures ethically permissible? The structures take advantage of legal loopholes in the tax legislation.

The ethics of specific professions create unique realms of responsibility. In the same way that a defense attorney is ethically obligated to give his client the best possible defense — even if he’s convinced of the individual’s guilt — your principal responsibilities lie with the company hiring you. You need to do your job to the best of your abilities, within the existing rules. You should, however, voice your moral apprehension about the use of such loopholes to the company you represent.

I have to say, I find this answer odd. I think The Ethicist is actually on to something when he generalizes from the case of providing legal assistance to wealthy companies to the case of providing legal assistance to the indigent facing prison time. But then he adds that you “should” (ethically, I gather?) exhort your clients not to take advantage of the legal options you just advised them about.

Would anybody say that to a criminal defense attorney? Would anybody say that you “need to do your job to the best of your abilities” to defend your client zealously before trial, at trial, and at sentencing, but that you “should, however, voice your moral apprehension” about your client’s conduct and tell them that the honorable thing to do is confess and go to prison? Surely not. At least, I hope not.

In the criminal defense context, I think we all manage to understand that passing moral judgment on one’s clients (and telling them so!) is simply not the lawyer’s job, let alone the lawyer’s ethical obligation. Yet in other contexts, we seem inconsistent about this. Think, for example, of the many arguments that Gabriella Blum takes on in this superb essay about legal ethics and the war on terror, where she argues that critics “have missed a fundamental point about the attorney-client relationship. It is the client–in this case, the government–who is ultimately responsible for making policy decisions, not the attorney.”

Just so. We ought to distinguish more between the task of providing advice about the law and the task of providing advice about the right thing to do.

“I’m not a cop … I’m her father.”

An episode of Castle I watched last night (“Target”) perplexed me slightly. Normally I don’t think it’s fair to subject fictional procedurals to the actual details of American constitutional law, but the last time I researched a point of procedure relevant to an episode of Castle (the law of juvenile interrogations) I was surprised to learn that the episode had gotten it exactly right. This time, I’m not so sure.

The scene: Richard Castle has a personal stake in finding a missing person, but the (wounded) suspect refuses to talk. While still at the crime scene, Castle convinces his partner to leave him alone with the suspect. When the suspect insists again that he knows his Miranda rights and is invoking them, Castle forebodingly points out that he is not a police officer, just a private citizen who’s a father of the victim. Offscreen, Castle basically goes “Dirty Harry” on the suspect (we hear screams, Castles emerges with the information).

So one reaction is that Castle’s claim not to be a state actor is highly questionable. Can the police really circumvent the 5th and 6th Amendments by bringing the victims’ families along, then putting them in a room with the suspects they wish to interrogate? The practice seems obviously suspect on its own.

But my bigger problem is with the inconsistency this would create. Let’s suppose that it’s true that Castle acts as a private citizen in these encounters where he accompanies the police. Even if that’s so, then doesn’t his presence in this warrant-execution, and nearly every home search in the show, violate the Court’s ruling in Wilson v. Layne? Wilson held “that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.” If Castle’s presence is in aid of the police conduct (plausible), then he is almost certainly subject to the limits on police interrogations; if it is not, then he is almost certainly in violation of Wilson.

Of course, there are presumably state laws against hurting people in order to extract information from them, so maybe the answer is just that Castle is a lawbreaker and doesn’t care. (“If you touch me I’ll press charges” // “I don’t care.”) The interrogation was unlawful but they’re counting on the victim not to sue and pressing charges only in French courts.

A World Without Gideon

How many Supreme Court decisions can you name that are both thoroughly entrenched (i.e., virtually nobody wants them to be overturned, and indeed many people would be upset if they were overturned) and plainly inconsistent with originalism (i.e., even originalists don’t have a plausible defense of the decisions– not something like the air force or Brown, where non-originalists are the ones who insist on the inconsistency)? Gideon v. Wainwright, now fifty years old, is the best candidate I can think of.

The blogosphere and journals are full of celebrations of Gideon— and of course one can see why it is celebrated. But would a world without Gideon really be so bad? Kent Scheidegger notes that even before Gideon, some governments provided appointed counsel. And Doug Berman speculates that Gideon actually made it easier to enact punitive drug laws that burden the poor. Moreover, we shouldn’t forget how low the funding and quality are for some of the legal representation that exists only because of Gideon. Nor should we forget that (at least under the current system) pro se defendants often do better than represented ones.

Finally, I think we should ask what kinds of non-governmental organizations would exist in a world without Gideon. I understand from folks who have tried that it is very very hard to raise money or political action for criminal defendants, especially poor ones. But I wonder if that would still be true in a world where that was the only way to fund basic defense counsel– might the folks who currently poor money and resources into (say) fighting the death penalty poor it into a group of lawyers to defend the indigent accused of more mundane crimes? Maybe not, or maybe not enough. But in my more pessimistic days I wonder if the results would really be worse than what we’ve got.

Necessity and Propriety

I assume that every budding academic has a system for keeping track of paper ideas, since it takes far more time to execute papers than it does to conceive them.  Mine is a giant, disorganized text file of half-eaten outlines and mysterious questions and citations.  Even the text itself is a mess at this point, having been converted frequently and badly between various PC text readers and the excellent if uncooperative iOS Plaintext App.  I can’t even figure out whether to keep pouring ideas into the document (which I can’t read half the time) or start over.

If I were starting over, the next two things I’d include are two articles on the Necessary and Proper Clause, something I’ve been thinking about increasingly as I finish my forthcoming article, Rethinking The Federal Eminent Domain Power.  One article, “(Groping) Toward A Theory of The Necessary and Proper Clause,” would try to explain why the time is increasingly ripe for something like my historically-inflected theory of the Necessary and Proper Clause, and would try to provide the basic framework for operationalizing that theory.  The other, “Necessary and Proper Step Zero” would address the anterior question of when a claimed federal authority requires the implied powers of the Necessary and Proper Clause at all, and when it is part of the explicitly enumerated powers– a question that seems to be the crux of the disagreement between Ernie Young and his critics.

The Classics

A friend of Crescat 2.0 notes this observation by Tyler Cowen, with broader applicability than just finance: “Go back and read the classics, and hang your heads in despair.” (Tyler is referring to the lack of progress in intellectual consensus.)

Yet this observation by Frank Easterbrook is also apt:

Most mutations in thought, as well as in genes, are neutral or harmful– but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure of most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain.

The fact that we have the classics to go back to gives us a high vantage point, even if most of us fall from it rather than rise above it.

The Not-So-Obvious Constitutionality of the Voting Rights Act

I do not have strong feelings about how the Court ought to rule in Shelby County v. Holder. The case seems to me to present several genuinely hard empirical, historical, and legal questions. That said, I have heard several claims in defense of the Act that seem unproven.

1: The text and history of the 14th and 15th Amendment obviously support the constitutionality of the Act.

Maybe. The amendments protect against some measure of voting discrimination, and then give Congress the power to “enforce” those provisions through “appropriate” legislation. There is also some reason to believe that “appropriate” was understood somewhat broadly, parallel to the Congressional discretion authorized by McCulloch v. Maryland. But that doesn’t really answer the question. One might have to figure out what rights are actually protected by Section One of the Fifteenth Amendment, to what extent Congress has discretion to define that category of rights more broadly than the Court has, to what degree “enforce[ment]” of those rights allows Congress to suspend or forbid laws that do not themselves violate Section One, and what kinds of legislation, if any, would be in”appropriate” even under the McCulloch standard.

On the third of these questions, the meaning of “enforce,” Justice Scalia has written:

One does not, within any normal meaning of the term, ‘enforce’ a prohibition by issuing a still broader prohibition directed to the same end. One does not, for example, ‘enforce’ a 55-mile-per-hour speed limit by imposing a 45-mile-per-hour speed limit–even though that is indeed directed to the same end of automotive safety and will undoubtedly result in many fewer violations of the 55-mile-per-hour limit. … Nothing in §5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or ‘remedy’ conduct that does not itself violate any provision of the Fourteenth Amendment. So-called ‘prophylactic legislation’ is reinforcement rather than enforcement.

It may well be that upon careful examination, the best reading of the text and original history do justify the Act. But the relevant terms are not self-defining, and the (true) proposition that Congress’s authority was broad does not tell us how broad.

2: The Civil War and Reconstruction justify the Act.

One characteristically forceful and creative version of this argument comes from Akhil Amar, who argues that Section 5’s preclearance requirement is legitimate because the former Confederate states were subjected to a form of preclearance during Reconstruction. Indeed, the rebelling states were forced to ratify the 14th Amendment before they were readmitted to full representation in Congress. (Those who’ve read Amar’s newest book will recognize this as an argument from the Unwritten “Enacted Constitution.”)

I think this is a good explanation for South Carolina v. Katzenbach, which upheld the original 1965 Voting Rights Act. (Indeed, this helps to explain why the repeated invocations of Founding-era history in Hugo Black’s Katzenbach dissent sound so off.) But skeptics of the 2006 extension of the Act could also make use of the Reconstruction analogy. Suppose that Reconstruction had taken place in the wrong states, or that Reconstruction had continued for fifty years, and it was now hotly debated whether there was any continuing need for it. Skeptics of the Act might well suggest that at that point, the original Reconstruction power would provide only slim support for continued federal supervision.

3: It’s Congress’s job to decide who is covered.

Again, that may well be. But one must figure out what degree of deference is due (absolute?). In any case, I see a tension between the proposition, “Congress has more expertise and legitimacy than the Court does in deciding which states ought to be covered,” and the proposition, “a decision invalidating only the coverage formula is functionally the end of the VRA because Congress will never be able to agree on a new one.”

Now it may well be that the best and most lawful course is for the Court to uphold the Act out of deference to Congress, even if some members of the Court have concerns about whether the coverage formula has been taken seriously. (It may also be that those concerns ultimately lack merit.) But I do wonder what John Hart Ely would say if he were here.