Should the government jail people for putting on a drag show or eating a pot brownie? Bill Glod says no. Criticizing “legal moralism” in a July 29 essay for Lib​er​tar​i​an​ism​.org, Glod rejected enacting laws based on “controversial conceptions of the good … that not all people have good reason to endorse.” Less than a week later, Andrew T. Walker published a Daily Wire piece taking, in effect, the opposite position and attacking “drag queen conservatism.” These are recent rounds in a years-long fight on the political right about “postliberalism.” 

Both equate the government taking a moral side with coercion. They’re missing a key distinction offered by the medieval theologian St. Thomas Aquinas—a likely inspiration for Walker and a boogeyman for Glod. For Aquinas, as for Walker, the law exists to further the common good. But Aquinas believed, as Glod, that the law should leave most private vice unpunished.

When Hamed Kian was charged in Florida with five counts of practicing chiropractic medicine with a suspended license—a felony carrying up to five years in prison—he was tried before a six-person jury. Convicted on all counts by this truncated panel, Mr. Kian appealed, arguing that Florida’s six-person jury rule deprived him of his right to a trial by a twelve-person jury as required by the Sixth and Fourteenth Amendments. The Florida appellate court affirmed his conviction without a written opinion, and Mr. Kian asked the US Supreme Court to review his case.

In trying felony cases before six-person juries, Florida’s reliance on the Supreme Court’s 1970 decision in Williams v. Florida breaks from centuries of tradition. The Framers incorporated the common-law criminal jury into Article III and the Sixth Amendment as a vital structural check against government overreach, overzealous prosecution, and judicial bias. While the Constitution’s text does not explicitly specify a numerical requirement, the Court’s recent originalist jurisprudence—most notably in Ramos v. Louisiana—reaffirms that the Sixth Amendment protects the fundamental attributes the criminal jury possessed at common law. Historically, the requirement that a criminal petit jury consist of precisely twelve members remained undisputed in English and American law for hundreds of years until Williams improperly abandoned that historical scope.

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In an essay in The Atlantic titled “In Defense of Flock,” the Manhattan Institute’s Charles Fain Lehman rightly recognizes a foundational principle of criminology: The certainty of apprehension serves as a potent crime deterrent. Yet, in framing automated surveillance as a technological panacea, Lehman ignores the critical trade-off at the heart of a free society. As Benjamin Franklin famously warned: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

To test Lehman’s thesis, one need only apply his logic to his own doorstep. Imagine if the local police department installed a high-resolution pole camera directed squarely at his front door. By his own logic, Lehman should be elated: The camera would deter prospective burglars and, should an intruder ignore it, capture their every movement in crisp detail to ensure swift apprehension.

Cleveland police officers Bailey Gannon and Jennifer Kilnapp responded to a 911 report of a disturbed man with a firearm. Entering a boarding house, they were told by the caller that the man was in a bathroom on the second floor. Gannon opened the bathroom door and, upon seeing the man, fled and blindly fired. One of Gannon’s shots tore through Kilnapp’s arm and lodged in her back, causing lasting physical and psychological damage that ended her police career.

Kilnapp sued Gannon, alleging excessive force. The district court denied Gannon’s motion for judgment on the pleadings based on qualified immunity and a Sixth Circuit panel affirmed. However, a later Sixth Circuit panel vacated and remanded the district court’s denial of summary judgment to Gannon based on qualified immunity. The court held that Gannon seized Kilnapp when he “fired his weapon in circumstances that objectively manifested an intent to restrain” the man in the bathroom. However, the court described this holding as only “largely established” by Supreme Court decisions from 1989 and 2007—but not “crystallized” until a 2021 decision issued after Gannon shot Kilnapp. The court thus held that Gannon was entitled to qualified immunity.

Cato filed an amicus brief asking the Supreme Court to review and reverse this decision. A legal principle can always be “crystallized” further—but the law was clearly established that shooting someone other than the target is a seizure. The mere contingency of a later decision recognizing that a plaintiff like Kilnapp could seek relief did not make Gannon’s decision to blindly open fire reasonable.

In April, the US Department of Justice brought an indictment against the Southern Poverty Law Center, a prominent left-of-center nonprofit, charging it with offenses including making false statements to a federally insured bank and wire fraud at the expense of its donors. On Friday, August 7, federal judge Emily Marks of the Middle District of Alabama denied a defense motion to dismiss the indictment as vindictive, saying the defense had not met the (substantial) burden of showing that the charges were improperly motivated by retaliation against protected speech.

Leaving aside the question of how courts are to distinguish vindictive prosecutions from the regular kind at a time when the president of the United States openly instructs the Department of Justice to go after his political opponents, the merits of the complaint are likely to emerge into sharper focus.

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The unitary executive theory of the Constitution is, more or less, that the president has absolute authority over the executive branch of the federal government. This understanding of presidential power was once quite controversial; in the wake of recent Supreme Court decisions, it has gained wider acceptance. In this post, I want to consider a problem of unitary executive theory that has received little attention. Namely, unitary executive theory may grant the president authority over federal departments, but exercising that power in individual criminal prosecutions constitutes poor public management that destroys, e.g., the Department of Justice’s institutional authority. 

Sometimes it is imprudent and unwise (and even dangerous) for the president to exercise his authority over federal departments. In contrast, the president who respects the moral norm that encourages him to keep his hands off the rest of the federal government is probably making a wise choice.

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When the Framers devised our Constitution, they envisioned a federal government of finite, enumerated powers, expressly reserving all remaining authority to the states under the Tenth Amendment. Over the decades, however, aggressive expansions of the Commerce Clause have steadily eroded this division, drawing local matters into the net of federal law enforcement. To understand how a localized issue like staged auto fraud ends up as a federal crime, one must go to the historic Hemingway Home and Museum in Key West.

For nearly a century, six-toed cats, rumored to be descendants of Ernest Hemingway’s polydactyl cat Snowball, have roamed the grounds as local icons. But in 2003, the US Department of Agriculture claimed that pursuant to the Animal Welfare Act—a law meant to regulate traveling circuses and zoos—the Hemingway Home is essentially a zoo, and the cats are functionally an exhibit. Applying an expansive view of the Commerce Clause, the US Court of Appeals for the Eleventh Circuit held that because the museum sells cat-themed merchandise and advertises to tourists online, the cats substantially affect interstate commerce, authorizing the federal government to regulate their living conditions. That ruling established a precedent where virtually any local activity could be regulated by Washington.

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