Topic: Law and Civil Liberties

Response to Professor Barron’s Critique of “The Dirty Dozen”

Prior commitments prevented me from participating with Professor David Barron in the Cato / American Constitution Society forum on The Dirty Dozen, which I co-authored with William Mellor.  I’m especially gratified, therefore, to have this second opportunity, which I will use to document seven errors by Professor Barron in his blog postings here and here.  Of course, the best and most complete rebuttal is the book itself, available for the shamefully low price of $17.13 at Amazon.           

Barron #1:  “The crime of the Supreme Court since the 1930s, so says this book, has been its refusal to lock in the laissez faire constitutional philosophy that reigned supreme in the decades leading up to the New Deal.”

Facts:  Laissez faire is never mentioned in the book – not once.  Included among our 12 worst cases are those involving the non-delegation doctrine, campaign finance regulation, gun owners’ rights, civil liberties, civil asset forfeiture, and racial preferences – none of which has anything to do with laissez faire economics.  Yes, we also cover cases relating to property, contract, and other economic liberties; but to suggest that we view the Court’s major crime as not upholding laissez faire is to ignore most of our book. 

Barron #2:  “Number one on The Dirty Dozen’s hit list is Helvering v. Davis … because it upheld Social Security on a broad theory of federal spending and taxing power.”  Moreover, Helvering’s “interpretation of the General Welfare Clause is not inconsistent with original understanding because there was no clear understanding on that point during the Founding.  Madison had one view, Hamilton another.”

Facts:  First, Helvering’s focus on Social Security was incidental to its inclusion.  Helvering is one of The Dirty Dozen because the Court, in favoring Hamilton’s view of the General Welfare Clause, made a mockery of the principle of enumerated powers.  The result: redistributionist schemes – including retirement programs, welfare, hurricane relief, medical care, housing subsidies, farm supports, and grants to the arts – that have no constitutional foundation, even if justified on policy grounds.

Second, we have never argued that a clear and consistent original understanding is required to support a particular constitutional interpretation.  Instead, we note that textualists consult the structure of the Constitution whenever the original understanding is ambiguous.  And we explain (p. 216) that “structure relates, first, to the internal relationship among the various provisions of the Constitution and, second, to the overall design or framework of government that the Constitution establishes.”  No reasonable legal scholar can deny that the Constitution was structured to restrain government and limit its operations to specifically enumerated powers.  By that all-important criterion, Hamilton’s open-ended conception of the General Welfare Clause cannot be defended. 

Barron #3:  The authors “candidly (and admirably) concede that originalism is actually of little help in explaining their hostility to a number of cases on their list.”

Facts:  We make no such concession.  Professor Barron has confused “originalism” (interpreting the Constitution in accordance with the meaning of its words when ratified) with original intent (focusing on the values and objectives of the drafters and ratifiers).  As Justice Scalia has written, “It is the law that governs, not the intent of the lawgiver.”  We recognize (p. 216) that “applying original intent … begs several questions:  Which drafters or ratifiers are authoritative?  How do we know their intent? … How are differing views among the drafters and ratifiers to be resolved?”  But we heartily endorse originalism.  Judges whose decisions are anchored in the words of the Constitution have an objective basis for their views.  Even when the meaning of the words is unclear, it provides a starting point, which can be supplemented by an examination of constitutional structure, purpose, and history. 

Barron #4:  Wickard v. Filburn is included because the Court “sinned by adopting an expansive view of the commerce power. … Wickard was the key precedent for the decision upholding the constitutionality of the 1964 Civil Rights Act…. The Dirty Dozen never faces up to that obvious problem.”

Facts:  Under Wickard v. Filburn, the commerce power is not merely “expansive”; it is incoherent and all-encompassing.  Article I, section 8, of the Constitution authorizes Congress to regulate interstate commerce, not to restrict activities that are neither interstate nor commercial.  Mr. Filburn’s crops were grown within a single state for consumption by his family and farm animals.  He didn’t buy the crops; he didn’t sell the crops; they didn’t cross state lines; and his activities had no perceptible impact on interstate markets.  Yet Congress, with the Court’s approval, brazenly distended the Commerce Clause – unleashing it from the operative word “commerce” and granting to the federal government regulatory authority over virtually all manner of human conduct.

To be sure, the 1964 Civil Rights Act is where the rubber hits the road.  Our position is straightforward:  The Act has no constitutional pedigree.  It addresses private, not state actions; so it cannot be traced to the Fourteenth Amendment.  It has nothing to do with eliminating state impediments to the free flow of interstate trade; so it cannot be shoehorned into the Commerce Clause.  That said, the 1964 Civil Rights Act was an unambiguously good thing; it helped erase an unconscionable assault on human dignity.  We are glad that it happened.  We applaud its aftermath.  And we recognize that the Civil Rights Act is a settled principle of American law, not to be revisited by the courts despite its constitutional infirmities. 

Even if we are wrong about those infirmities, our position is intellectually honest – unlike the position of those who insist that, because the Civil Rights Act is beneficent, it must necessarily be constitutional.  Some activities offend the Constitution – e.g., torture – even if they yield universally acclaimed benefits – e.g., preventing a nuclear attack.  The remedy in such cases is either to amend the Constitution or acknowledge the disconnect.  In this instance, we choose the latter alternative. 

Barron  #5:  “The authors seem to be arguing in simple, consequentialist terms.  A case is badly decided if it has some bad effect in the real world.” 

Facts:  We asked 74 legal scholars to name the post-1933 cases that had the most destructive effect on law and public policy – either by expanding government powers beyond those that are constitutionally authorized, or imperiling individual liberties that are constitutionally protected.  Further, we stipulated (pp. 5-6) that “worst” cases must have led to anti-liberty outcomes and been based on erroneous legal reasoning.  Accordingly, consequentialism played a role; but we did not presume, as Professor Barron asserts, “a case is badly decided if it has some bad effect.”  Not a single case in our book was selected solely because it had a bad effect.  Unless the rationale for the case was legally defective, we did not include the case among The Dirty Dozen.  “Bad effect” and “badly decided” were two separate and distinct criteria.  Each selected case had to qualify on both grounds.  Indeed, the purpose of our book was to dissect each case and demonstrate not only its bad effect, but also how and why it was badly decided. 

Barron #6:  The authors’ criterion for judicial intervention is based on “libertarianism, which does not even begin to address the problem of private power.”

Facts:  This allegation by Professor Barron reflects a profound misunderstanding about the nature and purpose of the Constitution.  The Constitution is not a criminal or civil code that private citizens must obey.  Rather, the Constitution has two primary objectives: to secure individual rights, and to limit the power of government.  It’s not private people or private power that the Constitution constrains.  Instead, it’s government officials and government power.  The Constitution is first and foremost a code of conduct for the legislative, executive, and judicial branches of government.  Our “libertarian” theory of judicial intervention doesn’t speak to private power because the Constitution doesn’t speak to private power. 

Barron #7:  “You still need a sorting theory.  When should judges, while engaging, defer and when should they act?”

Fact:  We have a sorting theory, which we document at some length (pp. 215-24).  Members of the Court must have an allegiance to the text of the Constitution.  If the original meaning of the text is unambiguous, textualists adopt that meaning unless it leads to absurd consequences.  If the meaning is blurred, textualists must interpret the words in accordance with an originalist theory of our founding documents – in particular, a respect for federalism, separation of powers, limited government, and individual rights (both enumerated and unenumerated).  Those were the principles that the Framers applied in crafting the Constitution.  By comparison, members of the Court who subscribe to an anchor-less “living Constitution” will be disposed to use their own preferences and ideology as a basis for their decisions – thereby negating the written documents that have sustained a free society for more than two centuries.

 

Juror Becomes Fly in the Ointment

It was supposed to be just another federal drug prosecution.  The federal prosecutors introduced evidence that the man on trial was involved in the black market drug trade.  The defense attorney said the government agents entrapped his client.  And then the twelve citizen-jurors retired to deliberate the outcome of the case.

But then something unusual happened.  The jury sent a note to the trial judge with the following query: Since the Constitution needed to be amended in 1919 to authorize federal criminal prosecutions for manufacturing and smuggling alcohol, a juror wanted to know from the judge where “is the constitutional grant of authority to ban mere possession of cocaine today?” 

That’s a fair question.  It is a point that has been made in Cato’s publications ( go here (pdf) and here (pdf)) and a point that has been made by Justice Clarence Thomas [pdf], among many others.  Federal District Court Judge William Young was startled.  He says he has been on the bench for 30 years and has never faced a situation where a juror was challenging the legitimacy of a criminal law.  Young tried to assure the jury that the federal drug laws are constitutional because the Supreme Court has interpreted the commerce clause quite expansively.  When the jury sent out more notes about a juror that wasn’t going to sign off on an unconstitutional prosecution, Young halted the proceedings to identify the ”problem juror.”  Once discovered, that juror was replaced with an alternate–over the objections of defense counsel.  Shortly thereafter, the new jury returned with guilty verdicts on several cocaine-related charges.

It is an extraordinary thing for a judge to meddle with the jury in the middle of its deliberations.  So, to justify his removal of the “problem juror,” a man named Thomas Eddlem, Judge Young issued a 40-page memorandum of law (pdf).  I happen to know and respect Judge Young.  I invited him to speak here at Cato about the awful federal sentencing guidelines, but his legal memorandum in this case is remarkably thin.  I will briefly respond to his substantive arguments below.

1.  Court precedents say jurors have no right to nullify.  Well, yes, that is undeniable.   But that’s like someone saying in 1950 that court precedents tell us that  ”separate, but equal” is the law of the land–go read Plessy v. Ferguson. The real question is whether those court rulings are truly consistent with the Constitution.  I would also point out that even though many modern court rulings express hostility toward jury nullification, no court has yet dared try to reverse a not guilty verdict or attempt to punish any juror who cast a not guilty vote in a jury room where the result was deadlock (not an untoward outcome, by the way).  Judges do remove jurors from time to time, but there is no punishment.  At least not yet.

2.  Judge Young writes, “The impropriety of nullification emanates from the notion that ours is ‘a government of laws and not of men,’” and he attributes that proposition to our second president, John Adams, who also authored the Massachusetts Constitution.  The quote is accurate, but Young is mixing up legal principles and does not know Adams well enough.  Like so many of America’s early leaders, John Adams was a strong proponent of jury nullification.  Here’s Adams: “It is not only the juror’s right, but his duty, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  C.F. Adams, “The Works of John Adams,” 253-255 (1856)(emphasis added).

3.  Jury nullification undermines the rule of law.  This is simply another variation of objection #2 above.  There is a logical fallacy to this objection.  Jury nullification is assumed to be improper–so it undermines “the law.”  It is like saying a presidential pardon undermines the “rule of law.”  But if the president has the power to pardon, and he does, he can exercise it (though we may or may not like the result in particular cases).  This is the way in which to understand jury nullification.  The framers of the American Constitution considered it to be part and parcel of what a criminal jury trial was all about.  Some state constitutions, such as Indiana, Maryland and Oregon, explicitly provide that juries have the power to judge the law and the facts in criminal cases.  Judges are the ones that have undermined the “rule of law” by pretending those provisions mean the opposite of what they say.

Judge Young expressed alarm about the recent Time magazine article by David Simon and his The Wire colleagues that calls for jury nullification in drug cases.  But that article has revived a debate that we should all welcome.  For much more on this subject, go here, here, here, and here.

TSA Tracking ID-less Fliers

USA Today reports this morning that the TSA has been making a list of people who fly without ID.

Asked about the program, TSA chief Kip Hawley told USA TODAY in an interview Tuesday that the information helps track potential terrorists who may be “probing the system” by trying to get though checkpoints at various airports.

The report says that TSA changed its policy yesterday and will stop collecting these records, expunging the 16,000+ records collected to date.

The folks at TSA evidently believe fervently that watch-listing is an effective measure against terrorism. When someone behaves inconsistently with their watch-listing program, they take this to be potential terrorism. It’s a mistake.

Let’s say I fervently believed that terrorists were mounting a dengue fever attack on the Capitol Hill area of Washington, D.C., and I placed a perimeter of netting around my house to prevent mosquitoes from getting in. When the mailman or my neighbors opened the netting to come to the front door, I would logically infer (based on my erroneous belief) that they were in league with the terrorists because they were breaching my perimeter. This is the “logic” of the TSA and its suspicion of ID-less travel.

The TSA has set up a system that it wrongly believes to be a security against terrorism, and thinks that evasions or avoidance of its system indicate terrorism. In fact, it’s just people living their lives.

Update on Berwyn Heights Botched Raid

Things are getting worse for Prince George’s County, Md. police officials after last week’s botched no-knock raid (previously chronicled on C@L here). 

Not only did the police not have a warrant to conduct a no-knock raid, but it now appears they were well-aware that a drug ring was delivering large shipments of marijuana to innocent addressees’ homes in the D.C. suburbs. The packages would then be intercepted by other members of the ring, all without the addressees’ knowledge or involvement. Nonetheless, the cops executed their guns-ablazin’ raid on the home of Berwyn Heights mayor Cheye Calvo and his wife Trinity Tomsic, where the cops shot the couple’s black Labs and detained Calvo and his mother-in-law in handcuffs for hours.

The cops have now arrested the delivery truck driver and an accomplice who apparently orchestrated the Berwyn Heights shipment, and P.G. Police Chief Melvin C. High has conceded, “Most likely, [Calvo and Tomsic] were innocent victims.”

Astoundingly, High refuses to admit that police did anything wrong in the raid. He says in today’s Washington Post:

In some quarters, this has been viewed as a flawed police operation and an attack on the mayor, which it is not. This was about an address, this was about a name on a package … and, in fact, our people did not know that this was the home of the mayor and his family until after the fact.

I correct Chief High: When police officers execute a no-knock raid though they have no warrant or cause to do so, when they blast and shoot their way into a home without first learning who lives there, then they’ve carried out a flawed police operation. That’s the case regardless of whether Calvo and Tomsic are guilty of trafficking drugs.

In Prince George’s County, flawed law enforcement isn’t unusual. At least, in this case, the victims of the botched raid may have the social stature to fight back.

UPDATE (8/8): It took a week, but P.G. County police chief Melvin High has finally conceded that Calvo and Tomsic were not involved in drug trafficking.

Unfortunately, Chief High did not issue an apology for the police action or admit that the raid was botched. That raises an interesting question: Is he trying to protect his department, or does he really think the Berwyn Heights incident exemplifies how law enforcement is supposed to act?