Topic: Law and Civil Liberties

Theft by Gavel

A judge has decided to “correct” Leona Helmsley’s disposition of assets.

From the New York Times:

Judge Renee R. Roth of Surrogate’s Court in Manhattan will also play a role. She has already demonstrated a willingness to be flexible, cutting the size of Trouble’s trust fund to $2 million, from the $12 million prescribed in Mrs. Helmsley’s will, and ordering that the difference be added to the pending charitable trust.

Judge Roth also agreed to a settlement between the trustees and two of Mrs. Helmsley’s grandchildren who were explicitly left out of her will. The agreement gave those grandchildren $6 million each.

It’s easy to let Helmsley’s interest in dogs distract us from what Judge Roth has done here. But consider this: If this judicial interference can happen to someone who can afford the best law firm in the USA to arrange her estate, what’s to stop some state official from messing with your property? I had to endure a semester of “Trusts and Estates” during law school and I’m sorry to report that what Judge Roth has done is fairly common. Wills can be “adjusted” according to the “flexibility” of the executor and the judge.

Justice Department Bureaucrats May Set Risky Precedent with Extra-Territorial Tax Persecution

Bush Administration appointees involved with issues such as the Iraq war and coercive interrogation of suspected terrorists probably don’t spend much time thinking about international tax policy, but they may rue the day that the Justice Department decided to persecute Swiss banks and Swiss bankers for obeying Swiss law and protecting the financial privacy of customers. What’s the connection? By going after Swiss banks and Swiss bankers in hopes of finding a few Americans who might be hiding money from the IRS, the Justice Department is embracing the notion that governments should not be constrained by national boundaries and national laws. Richard Rahn already has an excellent piece explaining why this is an absurd policy, but let’s consider some of the broader implications.

What if John Yoo or Donald Rumsfeld travel to Europe in the near future for business or personal reasons and some European government decides to throw them in jail for violating “international law”? This may sound fanciful, but German authorities already have moved in this direction by asserting universal jurisdiction, and it doesn’t take much imagination to foresee politically ambitious officials from other nations grabbing the baton. The Wall Street Journal report does not cover these broader implications, but it is a good summary of the Justice Department’s fishing expedition:

The Justice Department, in an unprecedented move against a foreign bank, is seeking to force UBS AG to turn over the names of wealthy U.S. clients who allegedly used the giant Swiss bank to avoid taxes. …U.S. authorities have been holding discussions for several weeks with UBS and Swiss banking authorities to identify the U.S. account holders. People familiar with the talks say UBS officials floated the possibility that the U.S. could obtain the names through a request to Swiss regulators. Monday’s federal court filing instead puts the bank in direct conflict with the U.S. government. …The filing is the first against a non-U.S. bank by the Justice Department using what it calls a “John Doe summons,” a maneuver typically used to investigate tax fraud by people whose identities are unknown. The move could spark a major legal battle because the Justice Department is essentially gambling that courts will bless the move when it’s directed at a company with extensive U.S. operations but that isn’t based in the U.S.

McCain and Our Fundamental Rights

Sen. John McCain issued a ringing endorsement of the Supreme Court’s Heller decision:

Today’s ruling recognizes that gun ownership is a fundamental right – sacred, just as the right to free speech and assembly.

You can’t get much stronger than that. Except …  wait … what was it McCain said about our sacred right to free speech? Oh, right, two years ago on the Don Imus show he said, “I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt.” So when McCain says that our Second Amendment rights are just as fundamental and sacred as our First Amendment rights, maybe he’s pulling a bait-and-switch. Because he’s thoroughly indifferent to the First Amendment.

In his statement on the Heller decision McCain went on to say, “This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms.”

So true.

For His Own Good

It’s not one of the big cases decided by the Supreme Court this term, but Indiana v. Edwards  shows how these justices are all over the map – from a libertarian legal perspective.  The issue was whether a person can choose to represent himself in court in a criminal case.  This corner of the law was in pretty good shape – the rule that courts followed was this: If the defendant knowingly and voluntarily waives the right to counsel, he can proceed to defend himself (so long as he is orderly and follows the judge’s rules as all attorneys must do).  Some liberals object and say he’ll just screw up and the trial will not be fair.  The response has been that the trial judge should warn the defendant about such risks at the outset, but it’s his case, his liberty on the line, and thus his decision.

This term presented the case of a mentally ill defendant who wanted to represent himself.  The trial judge denied his request.  Some persons are found to be mentally incompetent to stand trial – even with an attorney’s help – but that was not the case here.  The defendant was found to be competent to stand trial but, according to the trial judge, incompetent to represent himself.  Counsel was appointed and he was subsequently convicted by a jury.  He appealed his case all the way to the Supreme Court, which affirmed the lower court’s handling of the case.  Interestingly, Justice Scalia filed a dissenting opinion (which Justice Thomas joined). 

Excerpt:

In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury–a specific right long understood as essential to a fair trial. … [T]he loss of ‘dignity’ the right is designed to prevent is not the defendant’s making a fool of himself by presenting an amateurish or even incoherent defense.  Rather, the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State–the dignity of individual choice. …

The facts of this case illustrate this point with the utmost clarity.  Edwards wished to take a self-defense case to the jury.  His counsel preferred a defense that focused on lack of intent.  Having been denied the right to conduct his own defense, Edwards was convicted without having had the opportunity to present to a jury the grounds he believed supported his innocence.  I do not doubt that he likely would have been convicted anyway.  But to hold that a defendant may be deprived of the right to make legal arguments for acquittal simply because a state-selected agent has made a different argument on his behalf is, as Justice Felix Frankfurter wrote, to ‘imprison a man in his privileges and call it the Constitution.’  In singling out mentally ill defendants for this treatment, the Court’s opinion does not even have the questionable virtue of being politically correct.  At a time when all society is trying to mainstream the mentally impaired, the Court permits them to be deprived of a basic constitutional right–for their own good.

Good stuff. 

The liberal votes here are probably driven by their pursuit of a ‘just’ outcome – no matter what the constitutional text says.  Justice Kennedy recently joined the liberals in defense of habeas corpus and the conservatives in defense of the right to keep and bear arms.  One might have expected him to follow the text here as well – but he joined the majority.  Alas, he seems to pursue the ‘just’ outcome just like the liberals.  That Alito and Roberts would part company with Scalia and Thomas in a case like this shows once again their more statist bent.

For the full opinion in this case, Indiana v. Edwards, go here (pdf).

Shall. Not. Be. Infringed.

To echo Tim Lynch’s previous post …

Bob Levy, Alan Gura, Dick Heller, and the other original plaintiffs in District of Columbia v. Heller are to be commended for securing a landmark Supreme Court ruling affirming that the Second Amendment protects the right of law abiding individuals to keep and bear arms.  It’s silly and sad that we needed such a ruling, and we should not forget the uncertainty and the threats to liberty that were made possible by so much constitutional revisionism over the past 40 years.

Levy and Gura deserve special recognition for their foresight and courage in pursuing this ruling despite considerable resistance.  That resistance came from a lot of people, with a lot of knowledge about the Second Amendment and the Supreme Court, a lot of influence, and a lot at stake in the outcome.  They argued this cause shouldn’t be pursued now, and they said it should be pursued by someone else.  Levy and Gura, as it were, stuck to their guns.  They have been vindicated, and we owe them big.

Praise is also due many such as Sanford Levinson, Robert J. Cottrol, and Stephen Halbrook, whose honest, careful scholarship ultimately defeated a very appealing myth.

Indeed, a good week for the Bill of Rights.

Supreme Court Still Split

Those who just days ago were proclaiming a new “era of good feelings” on the Court have been definitively proven wrong. Indeed, the last two weeks have seen more 5-4 divisions than the entire rest of the year to that point. While we have seen more unanimous rulings and fewer narrow splits than last term – when a full third of the cases came out 5-4 – this is clearly a function of the vagaries of the docket and not any shift in ideologies, judicial philosophies, or voting strategies. True, the Court under Chief Justice Roberts’ direction has increased the portion of business cases (typically more technical and therefore less divisive), but still the constitutional cases that catch the public’s eye – relating to social issues, civil rights, and national security – divide the Court on predictable lines. While this is in some senses unfortunate – we would prefer the highest court in the land to speak with one voice in resolving the nation’s deepest disputes – it is better for five justices to hold to their constitutional duty to say what the law is than to have nine produce a lukewarm opinion that either splits the baby or, worse, legislates from the bench. All in all it was a pretty good term for those concerned with upholding constitutional rights and limiting governmental powers (as well as reining in lawsuit abuse), but a sanguine consensus remains a pipe dream.