The Hon. Alex Kozinski gave the annual B. Kenneth Simon lecture at Cato’s Constitution Day conference on September 15, 2011. He spoke about changing cultural expectations of privacy regarding new technologies and how judicial applications of the Fourth Amendment have changed over time to reflect these expectations. Judge Kozinski is the Chief Judge on the U.S. Court of Appeals for the Ninth Circuit.

A lost episode of Jerry Springer found its way into the Supreme Court’s 2010-11 term in the case of United States v. Bond. Mrs. Bond, upset by the pregnancy that resulted from an affair between her husband and her erstwhile best friend, decided to take revenge. A trained microbiologist working at a chemical manufacturer, Mrs. Bond tried to poison her husband’s mistress by dusting her door knobs, mailbox, and car handles with dangerous, possibly lethal chemicals.

Upon being caught by (federal) postal inspectors, Mrs. Bond was charged with violating the law Congress passed to implement an international chemical weapons treaty. (There are no generally applicable federal attempted murder statutes, so prosecutors had to get creative to remain in federal court.)

But if general criminal statutes are beyond Congress’s powers, as even the most ardent federal-power activist must acknowledge, how did Congress have the power to pass the law that ensnared Mrs. Bond? — who, whatever her character flaws, was not selling chemical weapons to terrorists (the treaty’s target). Mrs. Bond thus hoped to challenge her conviction by arguing that Congress did not have the power to pass the law in question.

The Third Circuit, however, ruled that she did not have standing — a legal doctrine defining who has the right to bring a claim — to challenge the law on federalism grounds. Cato filed a Supreme Court brief supporting Mrs. Bond’s position and arguing that it makes no sense to deny standing to someone challenging a law under which she is being prosecuted. The Court unanimously agreed and remanded the case back to the Third Circuit, to finally hear arguments over whether the statute is beyond congressional power.

Cato has now reentered the fray, in a brief authored by Georgetown law professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence. We again support Mrs. Bond’s claim that the law under which she was charged is beyond Congress’s enumerated powers. The main obstacle to this argument is the 1920 case Missouri v. Holland, a short and not completely clear opinion by Justice Oliver Wendell Holmes that has been interpreted to mean that Congress can expand its enumerated powers via the Treaty Clause.

In other words, even though Congress does not have the power to pass, for example, general criminal statutes, if Congress ratifies a treaty calling for such statutes, its power increases beyond constitutional limits. We argue that this is an astounding manner in which to interpret a Constitution that creates a federal government of limited powers. Not only would this mean that the Executive has the ability to expand congressional power by signing a treaty, but it would mean that foreign governments could change congressional power by abrogating a previously valid treaty — thus removing the constitutional authority from certain laws. We also point out how the most influential argument supporting Missouri v. Holland is based on a clear misreading of constitutional history and that the ruling is in deep tension with other cases.

On the treaty power, we’re in a constitutional quagmire that can only be escaped by limiting or overturning Missouri v. Holland. The Third Circuit can’t itself overturn a Supreme Court decision, of course, but it follows our brief, it can at least limit its damage.

As Pat Kossan reports in the Arizona Republic, the state of Arizona has averted a threatened civil-rights lawsuit from Washington by agreeing to stop monitoring teachers’ English fluency and pronunciation in the classroom. “In November, federal officials told Arizona that its fluency monitoring may violate the Civil Rights Act of 1964 by discriminating against teachers who are Hispanic and others who are not native English speakers.”

Does this strike you as perhaps a bit crazy? If so, it’s craziness with quite a pedigree. It was way back in the first Bush administration that the Equal Employment Opportunity Commission (EEOC) began filing lawsuits against employers for “discriminating” against employees with difficult-to-understand or heavily accented speech, the theory being that this served as an improper proxy for discrimination based on national origin. The scope for allowable exceptions was exceedingly narrow, too narrow to cover most teaching positions, as I wrote quite a while back when the issue had just come over the horizon in a Massachusetts case. Indeed, the National Education Association (I pointed out) had been prevailed on to pass a resolution “decrying disparate treatment on the basis of ‘pronunciation’ — quite a switch from the old days when teachers used to be demons for correctness on that topic.”

Don’t assume you can escape by choosing one of your local private schools. Their employment of teachers falls under the EEOC’s jurisdiction too.

Given America’s at best mixed record on free speech, I am usually reluctant to point fingers at other countries, but Thursday’s fining of two French women for wearing a full face veil was a little over the top. Don’t get me wrong, I’m no fan of the burqa — as it leaves far too much to the imagination for my tastes — but I am a fan of tolerance and religious freedom.

I’m still trying to decide which is more absurd, that the law in question allows an exemption for clown masks (more rulings like this should take care of that need) or that in addition to a fine, the two women will be required to take lessons on “tolerance”. It seems to me the whole experience has already provided them a pretty clear lesson on French tolerance.

In much better news, Saudi Arabia announced “that the nation’s women will gain the right to vote and run as candidates in local elections to be held in 2015.” While such a change is obviously long over-due, and one can reasonable ask why wait until 2015, it is a positive change and should be celebrated.

In large part because of social media and consumer-level video technology, two Fullteron, Calif. police officers likely involved in the death of Kelly Thomas have now been charged with murder, manslaughter and excessive use of force. Reason.tv’s Paul Detrick has produced an excellent video detailing the events that led to the charges. Be warned: Some of the images presented here are quite disturbing.

Still many jurisdictions claim that they can arrest and charge individuals when they use video technology to document police engaged in their public duties, even when those people are documenting police abuse. Further, police agencies are often reluctant to use video documentation to show what happens in high-stakes police encounters like SWAT raids. Cato’s “Cops on Camera” video last year provides some context about how technology can be used by individuals and should be used by police to help document how police do their jobs.

So you want to know how the case of Good v. Evil ends up at the Supreme Court, providing fodder for all us legal pundits to digest and expound upon? The Institute for Justice has come out with an entertaining video going through the basics of trial and appellate procedure—essentially a “How a Bill Becomes a Law” for the legal practice set.

It’s really the best way to procrastinate on a rainy Friday afternoon:

Look for the volume of the Cato Supreme Court Review that appears briefly as the narrator describes the various materials attorneys have to read to get a good grasp on their case.

Nearly a year ago, I had an engaging debate at Berkeley Law School regarding “judicial activism.” Of course, as I clarified, the phrase is really just an epithet hurled by someone to describe a legal ruling with which he disagrees. The whole argument about whether a certain judge is “activist,” “restrained,” or anything else is irrelevant: fidelity to the Constitution should be the sole evaluative criterion—and point of debate—regardless of whether that means striking down a law or upholding it, deferring to the legislature or not.

As I said during this debate (which was against a young law professor named Fred Smith),

The purveyors of conventional punditry all miss the larger point. The role of the judiciary in terms of constitutional interpretation is to fully interpret and apply the Constitution, period. So, if that means upholding a law, fine. If that means striking it down, fine. Activism is doing something that is not supposed to be the judicial role or not being faithful to the Constitution, which is no small task in part because of the doctrinal mess the Supreme Court has made. Again, whether a particular statute stands or falls is of no moment. Fidelity to the founding document should be the touchstone, not a circular debate over the virtues of judicial restraint or—as John Roberts put it at his confirmation hearing—modesty: just calling balls and strikes, just being in a kind of modest judicial role. Again, where you stand on those sorts of debates depends on where you sit.

I can quote this debate because a transcript has been published in the Federalist Society’s journal, Engage. The current volume has plenty of other interesting articles, including some authored by various Cato-affiliated or ‑friendly folks.