Tag: posts

Critics of originalism sometimes claim that originalists focus only on the original 1787 Constitution, while ignoring the Reconstruction amendments, which transformed the Constitution after the Civil War. Sometimes, this criticism is combined with the argument that the neglect of the Reconstruction Amendments is intended to privilege white men over blacks and other racial minorities, whose rights those amendments were enacted to secure. Such arguments have gotten renewed prominence in the wake of the controversial nomination of Amy Coney Barrett to the Supreme Court—thanks in part to a New York Times op ed by Janelle Bouie, arguing that originalists ignore the fact that “[t]he Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country.” He concludes that “The Reconstruction Constitution is a fundamentally different document than the Constitution of 1787. Yet our conversations around ‘original meaning’ rarely take account of this change.”

A recent op ed by MSNBC contributor Hayes Brown similarly accuses originalists of ignoring “the fundamental constitutional shift that occurred after the passage of the 13th, 14th and 15th amendments.” Such claims are not new. But they are badly wrong. Those who accuse originalists of ignoring the significance of the Reconstruction amendments are themselves of guilty of ignoring a vast originalist literature devoted to that very subject.

In reality, numerous prominent originalist legal scholars have written extensively about the Reconstruction amendments and their significance. Michael McConnell (a well-known originalist who was, for a time, also a federal judge) has authored prominent articles on the original meaning of the Fourteenth Amendment with respect to both racial discrimination and the meaning of due process of law. Steve Calabresi (another prominent originalist legal scholar, and co-founder of the Federalist Society), has coauthored prominent articles arguing that the original meaning of the Fourteenth Amendment provides broad protection against both racial discrimination and sex discrimination. Christina Mulligan has an important article outlining how we can and should take account of diverse perspectives (including those of women and racial minorities) in understanding the original meaning of the Constitution. Her work is of obvious relevance to interpretation of the Reconstruction amendments.

Co-blogger Randy Barnett ,Evan Bernick, and Kurt Lash, are among a number of originalist legal scholars who have written major works on the meaning of the Privileges or Immunities Clause, in some cases arguing that it provides broad protection for a wide range of rights—far beyond what is protected by the courts today. Bernick also has a pathbreaking new article arguing for a broader interpretation of the Equal Protection Clause, contending that its original meaning imposes an affirmative duty of protection on the state, not merely a duty to avoid racial discrimination. Michael Rappaport, another leading originalist constitutional theorist, has written notable articles exploring the implications of the original meaning of the Fourteenth Amendment for affirmative action programs, and for regulatory takings.

In my book The Grasping Hand, I discuss the impact of the Fourteenth Amendment’s “incorporation” of the Bill of Rights against state governments for “public use” constraints on government power to take private property. I argue that the Reconstruction-era understanding of public use—as revealed in contemporary court decisions,  debates over the abolition of slavery, and the framers’ goal of protecting blacks and white Unionists against state governments —provides a stronger basis for enforcing tight limits on government’s power to take private property than is evident in the original 1791 meaning of the Fifth Amendment.

Nor is originalist interest in the Reconstruction Amendments just a product of recent years. McConnell’s work on race discrimination dates back to the 1990s. As far back as 1980, Bernard Siegan published Economic Liberties and the Constitution, which argues that the original meaning of the Fourteenth Amendment provides much broader protection for economic liberties than modern judicial doctrine is willing to recognize. Prominent early originalists such as Robert Bork and Raoul Berger also wrote about the original meaning of the Fourteenth Amendment in the 1960s and 70s, though most modern originalists (myself included) would today argue that Bork and Berger got many things wrong.

It’s also worth noting that pretty much all of the above writers recognize that the Reconstruction amendments made major changes to the existing constitutional order. Few if any originalists claim that the original 1787 Constitution somehow remains in force with few or no significant changes.

There has been much less originalist analysis of the meanings of the Thirteenth and Fifteenth Amendments. But that is in large part because there is less controversy about these amendments than the Fourteenth. Nonetheless, there is a growing originalist literature on these amendments, as well. Notre Dame law Professor Jennifer Mason McAward, for example, has done important work pushing back on the newly popular idea that the Thirteenth Amendment gives Congress broad power to legislate against any injustices than can in some way be indirectly linked to slavery, though she also emphasizes that it does give broad power to suppress slavery and “involuntary servitude” themselves.

With the exception of Raoul Berger (an idiosyncratic liberal who was often associated with conservatives), the above-listed works are all by conservative or libertarian originalists. It is they who most often get accused of ignoring the Reconstruction amendments. But it is important to recognize that liberal originalists have also written major works on the Reconstruction Amendments. Akhil Amar, for example, has literally written the book on how those amendments should change interpretation of the Bill of Rights.

The works mentioned above are just a sample of the vast outpouring of writings on the Reconstruction Amendments produced by originalists over the last several decades. For reasons of space, I have had to omit a great many important books and articles on numerous issues.

It is fair to argue that prominent originalist judges haven’t focused on the original meaning of the Reconstruction amendments nearly as much as academics have (though that is not true of several, like McConnell, who are—or have been—both scholars and judges). Still, originalist judges are far from simply ignoring those Amendments.

Clarence Thomas, for example, has written a well-known opinion arguing that the original meaning of the Fourteenth Amendment strengthens the case for “incorporating” the Second Amendment right to bear arms against the states. The drafters of the Amendment, he points out, believed this to be an important safeguard for blacks’ rights against oppression by racist state and local governments. As far back as 1973, Justice William Rehnquist’s dissent in Roe v. Wade was based in large part on arguments drawn from the original meaning of the Fourteenth Amendment. And these are far from the only examples of originalist judges grappling with the Reconstruction Amendments on a variety of issues.

Originalist judges can and should do a much better job of including the original meaning of the Reconstruction amendments in their jurisprudence than many have done so far. But it is wrong to claim that they have simply ignored the issue, or that they somehow] believe that the Constitution remains largely unchanged since 1787.

I do not expect columnists and other non-experts to be familiar with all of these writings. Indeed, the literature has grown so large that even most constitutional law scholars (myself included!) can’t keep track of all of it. But, while it would be unreasonable to expect lay pundits and commentators, to study this literature in detail, they should at least consult relevant specialists before making sweeping claims about originalism.

Ironically, critics who claim originalists have ignored the Recontruction amendments are at odds with academic critics who argue that originalists take an overly optimistic view of their meaning (as Stephen Griffin contends in an important recent article), or that they disagree among themselves about that meaning so much, that the disagreement proves that originalism is indeterminate. I criticized the latter argument here. Such critiques of originalism would make little sense if originalists really had largely ignored the Reconstruction amendments.

None of the above proves that originalists have found the “right” possible interpretation of the Reconstruction amendments, or that originalism is superior to alternatives such as living constitutionalism. There are plenty of legitimate criticisms of both originalist takes on the Reconstruction amendments, and originalism as a more general theory of constitutional interpretation.

I myself have reservations about many versions of originalism, and defend the theory only on contingent “instrumental” grounds. I remain open to the possibility that some other approach to constitutional interpretation (perhaps one not yet fully developed) might turn out to be superior. But the public debate over originalism and constitutional theory is not advanced by false claims that its exponents have ignored the significance of a set of amendments on which they have actually written extensively.

from Latest – Reason.com https://ift.tt/37kdt04
via IFTTT

With 29 judges in active service, the U.S. Court of Appeals for the Ninth Circuit is already the nations largest federal appellate court. The court is so large that it does not sit as a full court when sitting en banc. Instead, en banc panels consist of the Chief Judge and ten other judges selected at random.

The Judicial Conference of the United States is recommending the addition of five additional seats to the Ninth Circuit, in addition to 73 district court judgeships around the country (eight of which are temporary judgeships that would be made permanent). These recommendations are based upon the Judicial Conference’s assessment of court caseloads and administrative needs, and were the subject of a Senate Judiciary Committee hearing earlier this year.

The Conference is likely correct that the Ninth Circuit needs more judges to handle the volume of cases within the circuit. The same goes for their district court recommendations. The last time Congress significantly expanded the federal courts was in 1990, and court caseloads have increased substantially since then, particularly in federal district courts. Expanding lower courts to handle the nation’s legal needs is overdue.

While I accept the Judicial Conference’s claim that the nation needs more federal judges, I confess some reluctance to make the Ninth Circuit any larger. It is already an unwieldy court, far larger than any other circuit. While the Judicial Conference is recommending that the Ninth Circuit have over thirty judges, no other circuit court even has twenty—and no other circuit has adopted the Ninth Circuit’s non-banc en banc process.

When Congress gets around to responding to the Judicial Conference’s request, I hope it also gives consideration to splitting the Ninth Circuit into two, more normal-sized courts. In the past, such proposals have foundered on political concerns, such as that California’s influence would overwhelm that of any other states in a newly constituted court. The alternatives of spitting California between two circuits or having a California-only circuit are also less-then desirable. Perhaps so, but it seems to me that a 30-plus judge circuit court is worse. Creating two circuit courts—a California-only court and another consisting of the remainder of the current Ninth—with 18 judges each, would satisfy the need for more judges and cut the current Ninth down to size.

from Latest – Reason.com https://ift.tt/37hLzla
via IFTTT

On Friday, in EMW Women’s Surgical Center, et al. v. Friedlander, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated a permanent injunction against Kentucky’s requirement that abortion provides have transfer agreements with local hospitals. The opinion, by Judge Joan Larsen joined by Judge Chad Readler, concluded the district court was wrong to conclude enforcement of the rules would leave Kentucky without a licensed abortion provider. In the majority’s view, the plaintiffs could not show that Kentucky’s requirements would impose an “undue burden” on the right of a woman to obtain an abortion Judge Eric Clay dissented.

Of particular interest is Judge Larsen’s discussion of how to understand the “undue burden” standard in light of the Supreme Court’s decision in June Medical Services v. Russo, in which the Court invalidated Louisiana’s admitting privilege requirement for abortion providers, but without a controlling majority opinion. In June Medical Services, the Court split 4-1-4, with the Chief Justice providing the fifth vote to invalidate the Louisiana regulations while also rejecting the interpretation of “undue burden” adopted by the Court in Whole Women’s Health v. Hellerstedt. 

Here is how Judge Larsen evaluated how lower courts should apply June Medical Services.

Because no opinion in June Medical Services garnered a majority, we, as a lower court, have the “vexing task” of deciding which opinion controls. . . . In this situation, the Supreme Court has instructed us to treat the “position taken by [the Justice or Justices] who concurred in the judgment[] on the narrowest grounds” as “the holding of the Court.” Marks v. United States, 430 U.S. 188, 193 (1977). . . . We therefore “must follow the reasoning of the concurring opinion with the narrowest line of reasoning” that is “capable of supporting the Court’s judgment in that case.” Grutter v. Bollinger, 288 F.3d 732, 741 n.6 (6th Cir. 2002) (en banc), aff’d, 539 U.S. 306 (2003). “[T]he rationales supporting the Court’s judgment need not overlap on essential points in order to provide a holding that binds lower courts. Indeed, if the Justices agreed on essential points, the Marks analysis would be unnecessary.” Id. at 740. Instead, we are to look to the “results” that the rationales of the concurring opinions “will . . . produce” when applied in future cases. . . .

In a fractured decision where two opinions concur in the judgment, an opinion will be the narrowest under Marks if the instances in which it would reach the same result in future cases form “a logical subset” of the instances in which the other opinion would reach the same result. . . . This is so because in that subset of cases, a majority of the Court which issued the fractured decision would necessarily agree with the result. . . . In a fractured decision upholding the constitutionality of a law, that means the narrowest opinion is the one whose rationale would uphold the fewest laws going forward. . . .

Conversely, when a fractured decision strikes down a law as unconstitutional, the narrowest opinion is the one whose rationale would invalidate the fewest laws going forward. Memoirs v. Massachusetts, 383 U.S. 413 (1966), for instance, “revers[ed] the Massachusetts Supreme Court’s holding that a book depicting a prostitute’s life was suppressible obscenity.” Grutter, 288 F.3d at 739. “Justices Brennan and Fortas and the Chief Justice found the book was not suppressible obscenity because it was not ‘utterly without redeeming social value,'” whereas “Justices Black and Douglas did not reach the issue of whether the book was suppressible obscenity because they believed the First Amendment provides an absolute shield against government regulation of expression.” Id. (citations omitted). Anytime Justice Brennan’s opinion would conclude that a writing was not suppressible obscenity, Justices Black and Douglas would agree, but the reverse is not true. The Supreme Court thus held in Marks that Justice Brennan’s opinion controlled because it “provided the most limited First Amendment protection.” Id. at 739–40; see Marks, 430 U.S. at 194.

Turning now to June Medical Services, because the Court invalidated the Louisiana
statute at issue, the narrowest opinion concurring in the judgment is the one that would strike down the fewest laws regulating abortion in future cases. The Chief Justice read the rule laid down in the Court’s precedents to say that laws not “reasonably related” to a “legitimate purpose” or that impose a “substantial obstacle” are unconstitutional. . . . All other laws regulating abortion, however, “are valid.” . . . Like the Chief Justice, the plurality would invalidate any law with “the effect of placing a substantial obstacle in the path of a woman’s choice” to obtain a previability abortion. . . . But the plurality would also invalidate any law where “the balance” between the law’s benefits and its burdens “tipped against the statute’s constitutionality.” Presumably, this would include some laws that are reasonably related to a legitimate purpose and that do not impose a substantial obstacle, so long as the law’s burdens sufficiently outweighed its benefits.

Because all laws invalid under the Chief Justice’s rationale are invalid under the plurality’s, but not all laws invalid under the plurality’s rationale are invalid under the Chief Justice’s, the Chief Justice’s position is the narrowest under Marks. His concurrence therefore “constitutes [June Medical Services‘] holding and provides the governing standard here.” Grutter, 288 F.3d at 741; see also Hopkins v. Jegley, 968 F.3d 912, 916 (8th Cir. 2020) (per curiam) (holding that “Chief Justice Roberts’s separate opinion in June Medical . . . is controlling”). “While ‘there is some awkwardness in attributing precedential value to an opinion of one Supreme Court justice to which no other justice adhered, it is the usual practice when that is the determinative opinion.'” Triplett Grille, 40 F.3d at 134  . . .

Under the Chief Justice’s controlling opinion, a law regulating abortion is valid if it satisfies two requirements. First, it must be “‘reasonably related’ to a legitimate state interest.” June Med. Servs., 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 878 (joint opinion)). Because we are to apply “the ‘traditional rule'” of deference to the state’s “medical and scientific” judgments, id. at 2136 (quoting Gonzales, 550 U.S. at 163), this requirement is met whenever a state has “a rational basis to . . . use its regulatory power,” Gonzales, 550 U.S. at 158. Second, the law must not “ha[ve] the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.'” June Med. Servs., 140 S. Ct. at 2138 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 877 (joint opinion)). Under the law of our circuit, a woman faces a substantial obstacle when she is “deterred from procuring an abortion as surely as if the [government] has outlawed abortion in all cases.” Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 370 (6th Cir. 2006) (alteration in original) (quoting Casey, 505 U.S. at 894). Even if a law regulating abortion is unconstitutional in some applications, the law remains facially valid so long as it does not impose an undue burden “in a large fraction of the cases in which [the regulation] is relevant.” Casey, 505 U.S. at 895; accord Cincinnati Women’s Servs., 468 F.3d at 369. . .

The dissent faults us for treating “the entirety of Chief Justice Roberts’ concurring opinion” as authoritative and argues that we should instead look only to the reasoning that was “necessary to his vote to concur.” Dissenting Op. at 46–47. If this were the Marks rule, applying Marks would be pointless. The way we distinguish the “narrower” concurring opinion in a fractured decision from the “broader” one is by identifying differences in their reasoning. But because the narrower and broader opinions both concur in the judgment, the narrower opinion’s points of disagreement with the broader one—i.e. the very feature of the opinion that makes it “narrower”—are by definition not necessary to its ultimate conclusion that the judgment is correct. Thus, in any case where it matters which opinion has the narrower view, the dissent’s approach would have us set aside the narrower opinion’s points of disagreement as dictum, and the application of Marks would fail to provide a governing rule of law. Yet “[t]he principal objective of this Marks rule . . . requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases.” Triplett Grille, 40 F.3d at 133 (citation omitted). It comes as no surprise, then, that binding precedent forecloses the dissent’s approach. . . .

Because the controlling opinion in June Medical Services clarified that the undue burden standard is not a balancing test, the district court erred in attempting to weigh the benefits of KRS § 216B.0435 and 902 KAR 20:360 § 10 against their burdens. In our review of the challenged provisions, we need only consider whether they are reasonably related to a legitimate state interest and whether they impose a substantial obstacle.

Whatever one thinks of the current state of abortion jurisprudence (or the Marks doctrine), it seems to me that Judge Larsen correctly applies Marks to June Medical Services. The U.S. Court of Appeals for the Eighth Circuit has adopted a similar interpretation of June Medical as well.

Given the composition of the Sixth Circuit, I doubt a petition for rehearing en banc will go anywhere. I also doubt they will seek certiorari, though time will tell.

from Latest – Reason.com https://ift.tt/3m4QdY5
via IFTTT

10/18/1960: Gomillion v. Lightfoot argued.

from Latest – Reason.com https://ift.tt/37cBeae
via IFTTT

Break It Up: Secession, Division, and the Secret History of America’s Imperfect Union, by Richard Kreitner, Little, Brown and Co., 496 pages, $30

The late Thomas Naylor, gentle godfather of the modern Vermont independence movement, used to sign off with “God bless the Disunited States of America.”

Naylor attracted a stalwart and colorful band to his project, ranging from the diplomat George Kennan (the author of the Cold War “containment” policy had come to view the United States as overly confining) to a delightful mélange of populist “woodchucks” (native Vermonters), organic-farming greens, Ethan Allen impersonators, and more. Naylor’s Second Vermont Republic had a merry, slap-happy, larkish feel, but Naylor, who died in 2012, was dead serious. And now, barely two decades since secession talk first scented the Green Mountain air, the entire country is getting an invigorating whiff.

Break It Up—a book about America’s episodic secessionist flare-ups, by Nation contributor Richard Kreitner—may well be a firebell in the night, to borrow Thomas Jefferson’s phrase. Secession, after all, is our heritage and our probable future. It is as American as applejack, runaway slaves, and prison baseball. His fellow progressives, says Kreitner, “too hastily dismiss one of America’s founding principles—the right to alter or abolish a destructive form of government—as irreparably sullied by association with slaveholders.”

Kreitner argues that disunion “is a hidden thread through our entire history, from the colonial era to the early republic and the Civil War and beyond,” and he backs up that claim with a vigorous account that takes in everything from the fractious colonies of the 17th century to the irrepressible Aaron Burr’s separatist hijinks to the bloodbath of 1861–65 all the way up through secessionist feints and spasms in recent years by Black Panthers, Lone Star patriots, and people pissed off by the election of Donald Trump. (If history is a reliable guide, this last-named band will turn coat the day after the next Democrat is elected president, while Trumpian nationalists will experience sudden secessionist epiphanies.)

Kreitner takes a clear-eyed view of the Philadelphia Convention of 1787 and the subsequent ratification of the Constitution, seeing it as a coup in which the well-born, the articulate, and the merchant class of the coasts threw out the decentralist Articles of Confederation and fastened upon the 13 states a consolidated national government that would lead, as opponents such as Maryland’s Luther Martin warned, to empire and oligarchy.

Rightly observing that the campaign for the Constitution in the state ratifying conventions was marked by “deceit, censorship, and force,” Kreitner commends the localist vision of the Anti-Federalists, the original unheeded prophets of American history.

The Founders understood union as a strategic necessity, not a moral imperative. Join or die, as the Revolutionaries preached, is practical advice, not holy writ. Should union prove an obstacle to the enjoyment of life, liberty, and the pursuit of happiness, then to hell with it. When in the course of human events, and all that….

“New Englanders had been the original disunionists,” Kreitner notes. Some kicked at the Louisiana Purchase, seeing in expansion the seeds of corruption. The choleric Federalist Timothy Pickering, secretary of state under George Washington and John Adams, asked despairingly, “How many Indian wars, excited by the avidity of the Western and Southern States for Indian land, shall we have to encounter” before New England would cut the rest of the continent adrift?

The War of 1812 convinced many Northeasterners that the slavocracy held the whip hand and that the free states had better get out while the gettin’ was good. At the Hartford Convention of December 1814, New England delegates walked up to the precipice of secession and blinked, proposing instead a set of mostly praiseworthy constitutional amendments, including ones requiring a two-thirds vote to declare offensive war, admit new states, and impose embargoes. (These proposals are still on the floor, waiting to be picked up.)

Antebellum Northerners defiantly asserted the rights of the states by passing “personal liberty laws,” which nullified the Fugitive Slave Act. If the price of union included sending escaped bondsmen back to servitude, that price was too high. Ralph Waldo Emerson wrote: “Union is a delectable thing, and so is wealth, and so is life, but they may all cost too much, if they cost honour.”

The United States had simply grown too large for meaningful representative government. The scale had become inhuman. Yet expansionists had their greedy, beady eyes on Texas, California, and Oregon. Both parties were guilty: The Democrats wanted Cuba as lebensraum for slavery, while Republicans such as Charles Sumner, Thaddeus Stevens, and William Seward dreamed of a North American empire.

The interregnum between Lincoln’s election and his assumption of the presidency featured not only hot language (and acts) of secession by Southern fire-eaters but also a significant “good riddance” attitude among Northerners. Novelist Nathaniel Hawthorne, something of a Peace Democrat, said, “Whatever happens next, I must say that I rejoice that the old Union is smashed. We never were one people, and never really had a country.”

And the war came, as Lincoln said. And some of the most vocal advocates of disunion screeched for young men to go trampling out the vintage where the grapes of wrath were stored.

Abolitionist William Lloyd Garrison, who once had called the Constitution an “unholy alliance with slavery,” now whooped for war and became, as one biographer wrote, a “super-patriot who discovered traitors and treason everywhere.” The smell of gunpowder drove many an abolitionist, even the Christian pacifists, into the rooting section for Mars—though there were noted exceptions, such as Adin Ballou. Pretty political principles are usually the first casualty of war. It is so easy and cost-free to mouth Christian or humanist strictures against mass murder, but so hard to stand against the blood-lusting mob as it bears down on you.

Seven hundred thousand men died in an abattoir that, while it had the salutary effect of ending the wicked institution of slavery, was declared and fought, at first, for an abstraction called “Union.” The men who conceived this Union four score years earlier would scarce have believed it.

One always has quibbles with a book of engaged and eristic history. In his account of the anti-war Copperheads of the North, I wish that Kreitner had relied more on the work of Frank Klement, a pro–Bill of Rights University of Wisconsin progressive who cast doubt upon the lurid conspiracy tales spun by the Republican press. Kreitner largely ignores the most serious and historically justified contemporary secession movements, those of the Cold War states of Alaska and Hawaii, whose annexation disrupted the contiguous integrity of the Old 48. In the final chapters, when Kreitner brings the story up to date, the author uncharacteristically lapses into Yeah Team Blue/Boo Team Red caricature. Traditional Southern whites, he says, are distinguished by “barely disguised racism,” while “blue-collar voters in the heartland”—the people in hollowed-out and forgotten communities whose sons die in forever wars—are consumed by “a gnawing paranoia.”

But these cavils do not detract from the value of Richard Kreitner’s book. It is richly informative. And hey, the political margins are always the most interesting places. (The aspiring state of Franklin, now the eastern rim of Tennessee, proposed to make brandy legal tender and ban lawyers from public office. These issues, too, await their modern champion.)

Would a President Biden or a President Trump order a federal invasion of a breakaway state? Dropping the 82nd Airborne into the Green Mountains to put down Vermont’s peaceable disunionists seems preposterous, though in other instances one can easily imagine the corporate media preparing the ground for a Biden-ordered assault.

If, say, a libertarian-tinged state of the Rocky Mountain West should seek to leave the Union, the rebels surely would be smeared as meth-manufacturing, child-abusing white supremacists Or if Portland, Oregon, taking a cue from Fernando Wood, the Civil War–era mayor of New York City who proposed making Gotham a free and independent city-state, should declare an independent Portlandia, President Trump might well introduce those angry-faced white girls throwing Molotov cocktails and hissy fits to the M1 Abrams Tank.

Unlike in 1861, there is no sectional fault line along which the union could cleave. A likelier scenario is the fissioning of states, as mammoth entities such as California and New York, whose rural and small-city populations are powerless outlanders, fracture into more comprehensible units. Lose the Last Frontier and the Aloha State, gain Alta California and Upstate New York. You don’t even need to redesign the flag.

I hope Richard Kreitner’s book gains a wide readership, especially on the thoughtful left. A loose federation of states, as existed under the Articles of Confederation—or even a continent of smallish republics—would be preferable to the current madness.

Walt Whitman, a laissez-faire Democrat before the War, wrote in Leaves of Grass: “To the States or any one of them, or any city of the states, Resist much, obey little.” Resist much. Obey little. You can’t get much more American than that.

from Latest – Reason.com https://ift.tt/35846O9
via IFTTT

Justice Dirk Sandefur’s majority opinion (jointed by Justices Laurie McKinnon, Beth Baker, and Ingrid Gustafson) in State v. Pelletier, decided Oct. 6 but just posted on Westlaw, involved a classic he-said/she-said dispute in a rape case. Both the defendant and the alleged victim agreed that they had sex, but disagreed about consent. In the process, defendant claimed that he wasn’t the kind of man who would have sex with a woman without her consent:

At trial, Pelletier testified … that M.V. was fully conscious throughout their sexual encounter and that it was completely consensual. Upon acknowledging to defense counsel that some of the details he gave to police in his post-arrest interrogation were not entirely accurate or consistent with his trial testimony, Pelletier explained: “I think—because of being surrounded at my house unexpectedly by the U.S. Marshals, … I know it was because of being slandered and charged with this charge because it’s … one of the worst things that a man can get charged with. And I’m just not that kind of guy. I would never do that to a female. So it was kind of … disturbing.”

On the record outside the presence of the jury, the State subsequently stated its intent to cross-examine Pelletier regarding the fact that a 14-year-old female acquaintance alleged to police in 2003 that the 15-year-old Pelletier subjected her to sexual intercourse without consent. The SIWC [sexual intercourse without consent] allegedly occurred after the two had engaged in consensual sexual foreplay and Pelletier ignored her command to go no further.

The State asserted that the mere fact of the 2003 allegation was relevant to rebut his testimony on direct that he was not the kind of person who would engage in non-consensual sexual intercourse and “would never do that to a female.” The State reasoned: “He put his character at issue and said that he was not the kind of person that would engage in this kind of offense. It is basically the whole defense. So it’s absolutely probative of the issue.”

Over Pelletier’s relevance and prejudice objections, the District Court ruled his testimony that he was “not that kind of guy” and “would never do that to a female” put his good character at issue, thereby opening the door under M. R. Evid. 404(a)(1) to cross-examination regarding the 2003 allegation for the purpose of rebutting his good character testimony….

The majority concluded this evidence shouldn’t have been admitted. The evidence here was “character evidence”—”[e]vidence regarding [a] [person]’s general personality traits or propensities, [whether] of a praiseworthy or blameworthy nature; evidence of a person’s moral standing in a community.” Such evidence is generally inadmissible “for the purpose of proving that the person acted in ‘conform[ance] therewith on a particular occasion,'” but is admissible when a defendant claims “a pertinent good character trait inconsistent with the alleged offense.” “However, by doing so, the defendant thereby ‘opens the door’ for the State to present otherwise inadmissible cross-examination or extrinsic evidence regarding specific instances of prior conduct relevant to impeach or rebut the subject good character testimony.”

Here, the court agreed that the defendant had opened the door for the evidence about the 2003 allegation—but concluded that, under the circumstances, its relevance was very slight, and substantially outweighed by the possibility of unfair prejudice:

[T]he unsubstantiated 2003 SIWC allegation would arguably have had at least some probative value to rebut Pelletier’s self-serving good character testimony under the particular circumstances in this case if in fact true. However, the truth of the 15-year-old allegation was not ascertainable without conducting a distracting mini-trial for that purpose within the larger trial of the charged offense…. [T]he unsubstantiated 2003 allegation thus had no non-speculative probative value for the offered purpose of rebutting his asserted good character.

Further, while generally going only to the weight of evidence rather than its admissibility, remoteness in time may nonetheless, depending on the nature of the evidence and purpose offered, diminish the probative value of other acts evidence on Rule 403 balancing. Here, taking the 2003 allegation as true, arguendo, the prior incident occurred when Pelletier was a 15-year-old adolescent rather than the mature 30-year-old adult he was at the time of the charged incident in 2018. The significant difference in maturity level between a 15-year-old adolescent and a 30-year-old adult at least significantly diminished any probative value that the 2003 allegation might otherwise have had, if taken as true, as propensity evidence of Pelletier’s character in 2018….

On the other side of the Rule 403 balance, prior bad acts evidence is highly prejudicial by nature due to the great risk that it will emotionally provoke the jury to desire to punish the defendant for prior bad conduct or, at least, give the prior bad acts evidence undue weight over the actual case-specific evidence of guilt or innocence centrally at issue. Here, the inherent danger that the jury would give the prior bad acts evidence undue weight over the actual case-specific evidence of guilt or innocence was particularly acute due to the largely, if not exclusively, he-said/she-said nature of the evidence and the fact that the ultimate determination of Pelletier’s guilt or innocence thus depended on jury assessment of the relative credibility of the principals’ starkly conflicting accounts of the disputed events.

Justice James Rice disagreed:

A defendant should not be able to proclaim his virtuous character is being slandered by the charges with impunity, in the face of appropriate evidence to the contrary. Here, the Court permits Pelletier on re-trial to freely pontificate about his being “slandered” by the charges because he would “never” commit such an act, knowing he is insulated from the State’s rebuttal of his testimony by reference to the prior investigation into past similar conduct.

As for the potential for a “mini-trial,” while perhaps not preferable, it is not barred as a matter of law, and a district court will well understand that potential when determining to admit the evidence. Pelletier elected to pursue a character defense, and had multiple options in response to the State’s question: he could have objected to the sufficiency of the foundation; elected not to answer the question under Rule 608 (character testimony by the accused “does not operate as a waiver of the witness’ privilege against self-incrimination”); contested the validity of the report; or emphasized that he had been cleared in the investigation.

All of these, including the time necessary to contest the validity of the prior bad act, are superior to permitting a litigant to offer a character defense that is shielded from relevant rebuttal evidence.

For those who are interested, here are more details on the facts of the criminal case (not the 2003 incident):

By Information filed August 23, 2017, the State charged Pelletier with subjecting a 20-year-old female (M.V.) to SIWC in his downtown Missoula apartment on July 6, 2017. Prior to the alleged offense, M.V., her boyfriend, a girlfriend, and a female cousin were drinking “Fireball” whiskey from a bottle at Caras Park in Missoula around 11:00 at night. Extremely intoxicated following several “giant swigs” of whiskey, M.V. walked with her girlfriend down to the bank of the Clark Fork River to put their feet in the water. Fully clothed, M.V. waded out further and later came out soaking wet from head to toe. When the group started back to the tent area of the park, M.V. ran ahead and was not present when the others arrived. After searching for several hours in downtown Missoula, they were unable to locate her.

At some point around or after midnight, Pelletier was on the sidewalk outside his downtown apartment when he heard somebody vomiting in the city parking garage across the street. He later found M.V. vomiting in the parking garage stairwell and asked if she needed assistance. He recalled that she declined his initial offer of assistance but ultimately accepted a subsequent offer to come over to his apartment for some food and water to help sober up. After walking over to Pelletier’s apartment, M.V. showered and, according to his account, drank some water and had something to eat. The accounts of M.V. and Pelletier varied sharply from there, but both agree that sexual intercourse eventually occurred.

At trial, M.V. testified that she had little or no recollection of what happened after she left the park. She said that her next recollection was waking up confused in a strange apartment with an unknown man on top of her with his penis in her vagina. She testified that she then passed out and had no further recollection until the next morning when she was sitting on a bed in her panties and bra, with a naked man standing in front of her trying to put his penis in her mouth. She testified that she immediately pushed him away and that he became “flustered” and “panicked.” She said she then asked who he was, where she was, how she got there, and where her clothes were. She testified that Pelletier told her that he found her in the parking garage covered in vomit and that he walked her to his apartment to help. She said that he then retrieved her clothes and she found her pants to be soaking wet and her sweater covered in vomit.

M.V. testified that, at that point, she was still confused, scared, without her cell phone, and told Pelletier she needed to leave to go to work. She said that he offered to walk her to the bus station and that she consented because she was afraid to say no. She then walked with him to the nearby station where he wrote his telephone number on her arm and bent in to hug her goodbye. She recalled not wanting him to touch her, but politely reciprocating with one arm. She further explained: “I was confused at the time, and I didn’t know what was going on and so I thought what had happened, like, was my fault, and that I wanted it to happen.”

She said she just wanted to go home and got on the bus with the feeling that she was in “a bad dream.” Upon arriving at her apartment, M.V. told her roommate that she had just been raped. At 8:33 a.m., she sent a text message to the girlfriend who was with her at Caras Park the night before. The text stated that she was raped, could not recall what happened, and asked the friend what happened.

Later that day at her apartment, M.V. discussed the events of the night before with her boyfriend and the friend who was with them. At her boyfriend’s urging, she accompanied him to the police station around 5:00 p.m. to report the alleged rape. After taking her report, a police officer took M.V. to a third-party sexual assault examiner. At trial, the examiner reported observing tenderness and redness about M.V.’s vulva—conditions often indicative of forced penetration, but not necessarily inconsistent with consensual intercourse. Subsequent DNA analysis of a vaginal swab taken from M.V., and a saliva swab later obtained from Pelletier, confirmed the presence of his semen in her vagina the day after the incident.

Upon subsequent police inquiry, Pelletier admitted that he had sexual intercourse with M.V. but asserted that it was consensual. He initially asserted that she initiated the sex by kissing him and that he sought and obtained her consent before engaging in intercourse. Later in the interview, however, he inconsistently stated that he awoke in the night with M.V. on top of him engaged in intercourse. At trial he testified that, after having something to eat and drink at his apartment, M.V. was “flirting” with him before laying-down on his bed in her bra and panties and passing out. He said that he covered her with a comforter and got into bed with her and went to sleep. He testified that, after waking in the morning, they briefly spoke which led to kissing and then consensual intercourse. He said he later walked her to the bus station “to be a gentleman” and wrote his number on her arm, but did not hear from her….

 

from Latest – Reason.com https://ift.tt/37mHQ65
via IFTTT