Cooper v Aaron Court Cases Intelwars Judicial supremacy Judicial Universality Judiciary Supremacy Supreme Court

The Myths of Cooper v. Aaron

In his paper, “The Irrepressible Myth of Cooper v. Aaron” published by the Georgetown Law Journal, Josh Blackman writes,  “Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. Although its judgments bind the parties before the Court, its precedents are not self-executing for nonparties.”

The distinction between the Supreme Court’s judgments and precedents is often conflated due to Cooper v. Aaron. This landmark 1958 decision was spurred by the desegregation crisis in Little Rock, Arkansas. Cooper articulated two concepts under which the Supreme Court’s precedents operate as binding judgments on everyone. First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme Law of the Land.” Second, Cooper asserted a principle this Article calls judicial universality: the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other similarly situated parties in later cases.

Cooper, which was signed by all nine Justices, represented that these two doctrines were “basic” and premised on “settled doctrine.”

Not so.

Blackman argues that these principles were in fact novel assertions of judicial power that were and remain entirely inconsistent with how all courts, including the Supreme Court, operate. Through a careful study of the papers of Justices Black, Brennan, Burton, Clark, Douglas, Frankfurter, Harlan, and Chief Justice Warren, Blackman exposes the constitutional origins of this irrepressible myth.

Cooper arose in a very tumultuous time in American history. Since the New Deal era, the Court had been looking for the right opportunity to undo the ruling in the 1896 anti-canonical case of Plessy v Ferguson that created the “separate but equal” mandate. This opportunity came in what would become one of the most important cases in the entire history of the Republic. Brown v Board of Education (1954).

At the time, nearly two dozen states racially segregated their schools. But Brown only considered the constitutionality of the laws in four of those states: Kansas, South Carolina, Virginia & Delaware. In a unanimous decision, the Warren Court found that segregated public schools violated the equal protection clause of the 14th amendment. However, the Court did not order that all schools nationwide must desegregate immediately. Instead, the Court ordered another round of oral arguments to decide how Brown should be implemented

One year later, in Brown v Board of Education II (1955) –or simply Brown II – the Justices issued an order to the lower courts in Kansas, South Carolina and Virginia: “Enter such orders and decrees as are consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to their cases.” Officials in these three States were now bound by the Supreme Court’s judgment to integrate their schools with “all deliberate speed.” (The Delaware schools had already found that the segregated schools were unlawful.)

But what about other states that were not a party to Brown? Cooper v Aaron (1958) would resolve this question.

In 1955 the Little Rock, Arkansas school board approved a plan for gradual integration. However, the so-called “Massive Resistance” spread to Arkansas. Citizens approved an amendment to the state constitution that opposed Brown and desegregation. Based on that amendment a State Court judge issued an injunction against members of the little rock school board. They were ordered to stop the implementation of the federal court’s integration plan at Central High School.

Very often, when the courts are deciding issues in a tumultuous time, out of necessity, they sometimes reach too far. And in the years since this case, the court has somewhat equilibrated. Certain aspects of that decision they have relied on; certain aspects they haven’t relied on. Blackman’s paper focuses on two particular aspects of the Cooper decision that he refers to as “irrepressible myths.”

He defines two different concepts that are often conflated -the judgment of a court and the courts precedent-

When Smith sues Jones, there is no doubt that the decision binds Smith and Jones. This is the basic legal principle of estoppel procedure. But when Smith sues Jones, Bill cannot be bound by that case, as he was not a party to it. That would violate the basic rules of procedure and fairness. Yet when it comes to the Supreme Court, people flip that on its head. They say “well the Supreme Court has ruled that makes it binding on everyone everywhere.”

That cannot be the case but the Supreme Court’s precedents are controlling for all courts. So when the Little Rock Central High School said ‘I don’t care I’m going to keep segregating my school. I don’t care what the Brown ruling said.’ I can be sued. And a state judge or a district judge can bind you, to enjoin you to comply with Brown. But that additional step of converting a precedent to a judgment is very important, especially in civil rights litigation, though it’s often not very well understood. And the reason many people fail to understand this is because of Cooper v Aaron.

This is due to the two aforementioned concepts that come from Cooper one is judicial supremacythe other -judicial universality- Judicial supremacy holds that with a simple majority vote of the court they can declare, with finality the supreme law of the land.

Judicial universality stems from a paper written by Josh Blackman and Howard Wassermann. This is the notion that the Supreme Court constitutional interpretation obligates not only the parties in a different case but also parties in a similar case. In other words, when Smith sues Jones and there is a final judgment, it also binds Bill. The Court’s unitary opinion in Cooper, signed by all nine justices (which is very rare) says these aspects were basic and relied on settled doctrine. ‘The Irrepressible Myth’ takes the position that this particular aspect of the decision is not correct. These were broad novel and unprecedented assertions of power that are inconsistent with how all courts operate yet five decades later these myths remain.

The phrase irrepressible myths comes from a paper written by John Hart Ely on what he called “The Irrepressible Myth of Erie” in the Harvard law review in 1974; challenging the orthodox interpretation of the Eerie Railroad v Tompkins decision, which seemed to purport as a single command, three distinct standards laid out in the Constitution.

The concept of ‘The Irrepressible Myth’ has since been frequently adopted by Constitutional Scholars to refer to any case, doctrine, or assertion made by the Court that has been factually disproven, but seems to carry on all the same in the collective memory of Constitutional lawyers, scholars and amongst the general public.

Given the continued existence of the myths in Cooper, which still persist five decades later, Blackman sought to bring something new to the discussion in his paper, “The Irrepressible Myth of Cooper v. Aaron.”

After examining the papers of Justices Hugo Black, William Brennan, Harold Burton, Tom Clark, William O. Douglas, Felix Frankfurter John Marshall Harlan and Chief Justice Earl Warren. The only Justice excluded was Charles Whittaker who simply did not have any collection of papers from which to draw from. These papers were important because Cooper was signed by all nine justices. Even though Justice Brennan was the lead draftsman, the others were responsible for writing comments. More often than not, a Justice ignores comments, but here, Brennan had to get everyone on the same page. For the most part, he listened to his brethren and incorporated their notes into the final opinion. Because of this, you can actually look at these documents and develop a red-line mentality and track the changes in their drafts to see how the document evolved.

In his paper, Blackman creates a coherent narrative revealing how the message in Cooper evolved through six distinct drafts as the opinion was prepared in the course of about 10 days or so – it was done very very quickly.

This all came about as part of a battle against the anti-canonical doctrine of Plessy v Ferguson (1896). While challenges to institutionalized racial segregation can be traced back to the Progressive era of the 1920s and 1930s with cases brought by the NAACP that challenged “Separate but Equal” and that laid the foundation for the then proto-doctrine of Substantive Due Process, these early victories spurred the school desegregation cases of the 1950s that, for the first time, sought to take on and overturn Plessy directly.

This is where both Blackman’s paper and the modern story of desegregation officially begin with Brown v Board of Education (1954) and its follow-up case Brown v Board of Education II (1955). Brown II did not purport to desegregate schools immediately. Instead, it ordered desegregation take place “with all deliberate speed.” The idea behind that now famous instruction was to let the local courts craft mandates and injunctions to deal with each situation as it came up. Brown II applied this to North Carolina & Virginia. A similar principle was applied to Washington DC in the companion case Boling v Sharpe (1954) that dealt with school segregation in federal law, which was struck down as a violation of the Fifth Amendment’s Due Process Clause.

That brings us to Little Rock and the Little Rock Independent School district. It was not a party to Brown.

So was the Little Rock school district bound by the decision? The simple answer is no. Recall our earlier example – when Smith sues Jones Bill is not bound.

As it turns out, the Little Rock School Board, which was elected, and at the time made up of mostly segregationists, decided it was not going to go along with this unless they were dragged kicking and screaming.

Ultimately, a federal district court in Little Rock issued a desegregation order to integrate the schools, including Little Rock Central High School. Meanwhile, a state court – the Pulaski County Circuit Court – issued an injunction saying don’t integrate the high school.

In effect, we had two different courts within the same jurisdiction issuing two different orders. The federal court was saying integrate; the state court was saying do not integrate. Now, most would assume that, of course, the federal court prevails. But that’s not the case. And nothing in the supremacy clause of the Constitution states that. State courts and federal courts have equal authortiy to interpret the Constitution.

The conflict though arises when you’re a state official asking yourself “Which court do I listen to?”  If I listen to the federal court the state court might hold me in contempt if I listen to the state court the federal court can hold me in contempt.

Only the U.S. Supreme Court could resolve that kind of tension. This is how the conflict in Little Rock began. Then it got worse as becoming what you might refer to as a game of injunctive whack-a-mole. A district court issued a ruling binding the school board. The governor showed up with the National Guard to block the black children from entering the school. The federal district court issued an injunction against the governor and the National Guard. At that point, the Little Rock Police department, which was not bound by the prior injunction, showed up to keep the black children from entering the school. At this point, we have a crisis because the officials are taking advantage of the distinction between judgment and precedent. If you find yourselves wondering where these Arkansas racists got this quasi-evil tactic from, you may be surprised by the answer… Abraham Lincoln

A lot of the stretches back to the abolitionist movement and Lincoln’s argument that the Dred Scott decision only controlled Dred Scott and Sanford because the U.S. government was not a party to the case. It didn’t even file an amicus brief; it couldn’t be bound by Chief Justice Roger Taney’s now reviled ruling- and so the southern manifesto traces its roots back to Lincoln.

Bizarrely, Brennan’s precedent in Cooper traces back to Steven Douglas. Douglas didn’t have to abide by Dred Scott. The Supreme Court is the keeper of the Constitution so everything is backward, right? The segregationists are siding with Lincoln and the federal court are invoking Douglas.

Ultimately, President Eisenhower sent in troops in a very famous scene where they escort the Little Rock nine up the steps to the classroom. Eisenhower was deliberate and very careful in his wording in the executive order he issued, citing the district court ruling and said that was what he was enforcing. He didn’t mention the Supreme Court. In fact, one of the biggest criticisms held in regard to Eisenhower was he never came out in support of Brown.

Eisenhower remained ambivalent toward Brown and never said much about it. But he said he would enforce the district court rulings. Schools could not disregard them. So at that point, students were escorted into the school, Byt the district court did something that was very much unexpected. It granted a 30-month extension for the integration plan. The judge said that because there was chaos and bedlam and turmoil, he couldn’t allow this integration order to go into effect.

The 8th circuit then reversed that saying that all deliberate speed means now. The 8th circuit stayed its decision then an appeal went to the Supreme Court. We should be careful to remember that with Cooper v Aaron what was at issue were the decisions by the members of the school board. It wasn’t Faubus versus Aaron. (There was another case involving Faubus, this was not it.)

The Supreme Court held that the 30-month extension was not consistent with all deliberate speed. As Chief Justice Warren stated: “Merely having chaos on the ground did not justify two full years of continuing non-integration.” But the Court didn’t stop there; upon review of the opinion of the 8th circuit court, it held that the first 17 pages of the opinion were enough to dispose of this case.

But the Court then moves on to the last two pages of the public opinion, which is almost exclusively the focus of the second part of Blackman’s article. This section answers whether the Arkansas governor was bound to enforce Brown even though he was not a party to that case. And this is where the Court develops the irrepressible myths that Blackman identifies.

First, there is Judicial Supremacy. There is a single sentence in Cooper that sums it up very well. The court says “the interpretation of the 14th amendment enunciated by the court in the Brown case is the supreme law of the land.” That is it’s not just the 14th amendment that’s the supreme law of the land, it’s the Court’s interpretation of that amendment that is itself the supreme law of the land.

The second principle which this article calls Judicial Universality. The best summary for that is found written by Justice Breyer in his book: “Making Democracy Work.”  Breyer wrote: “The court in Cooper actually decided that the constitution obligated other government institutions to follow the Court’s interpretation. Not just in a particular case but in similar cases as well.”

In his article, Blackman asserts that neither of these statements can possibly be true. If a simple majority vote in the Supreme Court could be declared the supreme law of the land and the other majority could not change it absent a constitutional amendment. And under our foundational principle of jurisdiction Smith versus Jones- courts can only bind the parties in any given case. The mere fact that the Supreme Court is supreme doesn’t change these facts. Critically, with respect to Judicial Universality, no court since has ever reached these conclusions. And with respect to both principles, no court before has ever reached these conclusions.

This was very much a product of a serious crisis that this article freely concedes – and I emphatically agree – was above the justices’ power. In fact, the Court’s opinion had virtually no practical effect.

The Little Rock school crisis continued unabated. Immediately after Cooper was decided, the Arkansas governor transferred all the public schools to private charters thereby getting out of the state action doctrine. Private charter schools weren’t bound by the 14th amendment, so for a full year, there were no public schools in Little Rock. What broke this log jam? It wasn’t a court. It was more moderate members being elected to the school board. They then agreed to engage with the reintegration plan.

So despite the Supreme Court’s opinion noble opinion, it had zero effect practical effect.

In the end, the Supreme Court “supremacy” didn’t go very far. In the 5 years after Cooper, districts across the South basically ignored it. Did the Supreme Court Grant Certiorari? Not even once. Despite numerous cert petitions from segregated school districts across the South, the Court wouldn’t take any of those cases. It just looked the other way.

It’s really easy for lawyers in Washington D.C. to sit in their marble palace and issue these opinions. It’s a very different matter putting them into effect.

The third part of Blackman’s article traces the evolution of the doctrines of judicial supremacy and universality throughout the six drafts of the Cooper opinion. While it wasn’t always clear which drafts were which. They were in various justices’ papers with different dates and different red lines on them. But he was ultimately able to identify six distinct drafts of the case.

These papers illustrate the way the justices grappled with how to establish the doctrine of supremacy and universality. The main question is this: could these doctrines be supported by past precedent or does it merely follow from these precedents? At first glance, answering that question might well be mistaken for Judicial Sophistry – But it is much more.

What makes this a very big deal is the Court said these doctrines are basic and well settled. That would imply this issue must have been decided 200 years ago. But what you see with each successive draft is that they move away from these various precedents. Now these precedents confer a rule that we can build upon, one that follows from it. But that’s a very different principle than saying these are well settled.

Among the leading cases are Article VI of The Constitution, which includes the supremacy clause and the oath’s clause, Marbury v Madison (1803), United States v Peters (1809). While Peters is not well known, or oft studied, it was nevertheless a fairly significant case. And a series of cases that have come to be known as the Booth Case – A series of cases beginning with In Re: Booth (1854) out of the Wisconsin Supreme Court and Ableman v Booth (1859) from the U.S. Supreme Court. The Booth case dealt with whether a Wisconsin State Court could issue Habeas to a federal prisoner- that is when someone tried to obstruct the capture of a slave they were thrown in federal custody. Could a state court free a prisoner in Federal court? This was a really important case that no one talks about today. This was Justice Taney’s other major opinion nobody wants to talk about, but is a very big case all the same. The last Is Sterling v Constantin (1932) this is a great Texas case where the governor declares martial law and he basically tries to put limits on the production of oil in his own state. And there was a lawsuit filed in the state in which he stated he was not subject to any Court’s jurisdiction because we were under a state of martial law. It’s a fascinating case –

But none of them stand for the propositions which Cooper cited and the research Blackman did suggests that the judges realize this. With each successive draft, the court relied less and less on these precedents. They more or less said, “Well let’s use these rules and build upon them. These changes acknowledged that the court never before claimed such power of supremacy and universality. It was breaking new ground.

Now, the mere fact that they’re breaking new ground doesn’t mean they’re wrong. Very often, courts make new rulings and we can justify them. But these claims were novel, new, not supported, and have not really been used since. This is why these “principles” can safely be called myths. They existed to deal with this exigency, which was unquestionably awful.

But in hindsight, people have gained a little bit of clarity. And as has been mentioned before, ultimately these judgments had virtually no effect on the school districts that did an end-run around these rulings by transferring the schools from public to private charters. At once, this doctrine was laid bare. No court, no matter how high in stature, can force people to accept a judge’s interpretation of the Constitution. The Supreme Court’s authority is, at best, merely persuasive.

The last part of Blackman’s article focuses on how Cooper has been developed in the last half-century. The court has not shied away from this principle of judicial supremacy. It’s provided in cases such as Powell v McCormack (1969), Baker v Carr (1962), United States v Nixon (1974), to name just a few. But in those cases, there was no meaningful resistance to the court’s interpretation. After the Supreme Court ruled on United States v Nixon, President Nixon turned over the documents and he resigned shortly thereafter.

It was only in slavery and segregation that you found such massive resistance to the Supreme Court’s opinion. Indeed after Cooper was decided people just disregarded it. Despite all best efforts, neither Josh Blackman, during his research into this case, nor me, during my research into his research could find a single example of the Court using Cooper as a precedent for judicial universality. Not even during the Massive Resistance.

So Justice Breyer, who really encapsulates this theory, can’t really peg down where this doctrine is in Cooper. This lends further credence to calling Cooper a myth. It’s not that it actually says this but I think it’s how people have understood it to be said. In fact, there have been some lower court decisions that have said the opinions issued by U.S. Courts of Appeals are binding on everyone. In other words, if the 9th circuit issues a ruling it binds the government everywhere. This was a Reinhardt opinion.  You have a similar decision in the southern district of New York. Those have not gone anywhere.

But at the bottom, the Supreme Court is still a court and follows the usual rules of a court. Its precedent is persuasive to everyone – state courts and federal courts alike. But its judgments are only binding on the named parties. Stating the principles of judicial supremacy and universality in the absence of antagonism is simple enough. When trying to put them to effect, however, they are exposed as mere myths.

Court packing Intelwars Judiciary necessary and proper clause Supreme Court

Is Court Packing Constitutional?

One of the major issues in the run-up to the election was whether Democrats planned to follow-through on threats to pack the Supreme Court in response to President Trump’s appointment of three justices. As Republican control of the Senate appears more and more likely, this issue may become moot for now. But there is certainly no guarantee that it will disappear from the Democrats’ rhetorical playbook. One question about the prospect has not received the attention it deserves: Is court packing even constitutional?

My views on the constitutionality of court packing have evolved. I used to believe that court packing was clearly constitutional under the Constitution’s original meaning, even though it was a pernicious practice that should strongly be resisted. But I have changed my mind. I now believe that it is unclear whether court packing is constitutional under the original meaning. Although my argument does not have a clear conclusion, the possibility that court packing might be unconstitutional is significant because virtually everyone else seems to think it is constitutional.

When I first planned to write on this subject, my position was going to be that originalism allowed court packing, but that it was not clear why nonoriginalists thought it was constitutional. Will Baude, however, beat me to the punch on this one (and I strongly recommend his post). The originalist argument for court packing is pretty straightforward: The Constitution gives Congress the power to increase the number of Supreme Court justices, and it does not appear to restrict the reasons why Congress may increase that number. Thus, Congress may increase the number of Supreme Court justices, even if its purpose is to change how the Supreme Court resolves cases.

While this argument suggests that originalism allows court packing, it is not clear why nonoriginalists also generally seem to accept the constitutionality of court packing. Nonoriginalists often do not feel limited by the text and frequently rely on modern political principles. Until the recent surge in Democratic support for court packing, most constitutional lawyers believed that court packing involved an illegitimate attack on the independence of the Supreme Court. It is not clear why this apparently nontextual political principle is entitled to any less respect from nonoriginalists than many other principles that they do accept, such as “one person, one vote.” As Baude says, it would be good to know what the specific nonoriginalist argument is.  (For some thoughts on this by a nonoriginalist, see here.)

But I have now changed my mind on the originalist analysis of court packing. The Constitution does not simply say that Congress can add additional justices to the Supreme Court. Instead, it gives Congress this power through the Necessary and Proper Clause. Congress has the power to “make all laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution . . . in the Government of the United States, or in any Department or Officer thereof.” Since the Constitution establishes a Supreme Court, Congress can help to carry into execution the Supreme Court’s authority by adding positions to the Court.

While Congress can add positions, it can only do so if its law is “necessary and proper.” And here is where the issue becomes interesting. It is not clear what the original meaning of the necessary and proper authority of Congress is. While Congress would have the authority to court pack under some reasonable interpretations, it would not have that authority under other reasonable interpretations.

In particular, the question is what constraints “necessary and proper” imposes. The “necessary” component is often thought of as involving the means-end connection that Chief Justice Marshall discussed in McCulloch v. Maryland. How strict the means-end connection must be is an important and difficult question, but that is not the key issue here, since it seems obvious that establishing additional offices can help to carry into execution the authority of the Supreme Court.

Rather, it is the meaning of “proper” that is central here. One possibility is that proper does not add anything to necessary. Rather, the two terms should be read together as requiring the means-end scrutiny discussed in McCulloch. That has been the main (but not the only) way the Supreme Court has interpreted the clause in modern times.

But there are other possible interpretations of proper. An important understanding of proper is that it requires that the law Congress is passing not violate the spirit of the Constitution. The idea here is that the “necessary” means-end power can be extremely broad, which would allow the Congress to undermine important constitutional principles, such as federalism and separation of powers. Therefore, the word “proper” was added to require that this “necessary” authority not violate the spirit of the Constitution. In that way, Congress could not use its necessary authority to undermine the Constitution.

Significantly, support for this interpretation comes again from McCulloch, where Chief Justice Marshall summed up the meaning of the necessary and proper authority as follows: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional” (emphasis added). So Marshall himself seemed to recognize that laws inconsistent with the spirit of the Constitution violate the Necessary and Proper Clause.

What, then, is the spirit of the Constitution, and how does it differ from the letter of the Constitution? The letter of the Constitution refers to the constitutional text. The spirit, in contrast, refers to the values underlying the text, as reflected in intent, purpose, or structure. Thus, something violates the spirit, but not the text of the Constitution, when it conflicts with the intent, purpose, or structure of the Constitution.

Court packing—understood as a law expanding the number of justices in order to change how the Court resolves cases—may violate the spirit of the Constitution. Such a law would not exercise the judicial power (and therefore would not violate the letter of the Constitution) because it would merely be adding seats and then allowing appointments to be made to those seats.

But it might violate the spirit of the Constitution. Congress would be exercising its broad authority over the number of seats to control the decisions of the Supreme Court. This would undermine the purpose and structure of the Constitution’s establishment of an independent Supreme Court. If Congress could simply expand the number of seats on the Supreme Court, the Court would not be independent.

By contrast, Congress could expand the number of seats on the Supreme Court in ways that would not violate the spirit of the Constitution. For example, if Congress believed that the existing number of justices could not keep up with the workload or that a larger number would lead to more accurate decisions, expanding the Supreme Court would be entirely constitutional.

This distinction between laws intended to pack the Court and laws intended to regulate its operation was implicitly recognized by the infamous court packing scheme proposed by the Roosevelt administration during the New Deal. The Roosevelt Administration claimed it was expanding the size of the Supreme Court for legitimate reasons—because the older justices could not keep up with the workload—but this justification fooled no one. Everyone understood the real reason was to control the decisions of the Supreme Court.

If these interpretations of the Necessary and Proper Clause and the constitutional spirit are correct, then court packing that is done to control the decisions of the Court violates the Necessary and Proper Clause.

I am not sure that this interpretation of the Necessary and Proper Clause is correct. Nor am I sure it is wrong. I believe it is a quite plausible interpretation. And therefore it is plausible that court packing unconstitutionally violates the Necessary and Proper Clause.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

dianne feinstein Intelwars judges Judiciary Lindsey Graham trump

Feinstein urges Graham to stop processing Trump judicial nominees ‘now that the 2020 election has concluded’

Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) has written a letter to Chairman Lindsey Graham (R-S.C.), urging her colleague to stop processing President Donald Trump’s judicial nominees.

She says the panel should hold off on such business now that the election is over and allow Democratic presidential nominee Joe Biden to make his own picks.

What are the details?

“Now that the 2020 election has concluded, it is clear that the American people have overwhelmingly rejected a second term for President Trump,” Feinstein began, before noting that Biden and his running mate, Democratic vice presidential nominee Sen. Kamala Harris (D-Calif.) “are already implementing their transition plan.”

Although the presidential election is currently being contested in several lawsuits by the Trump campaign, which alleges voting irregularities and fraud, Feinstein pointed out that “the Biden-Harris ticket is on track to receive 306 electoral votes, and has already garnered the votes of more than 77 million Americans.”

“In light of that,” she wrote, “it is imperative that the Judiciary Committee cease to process judicial nominees and allow President-Elect Biden the opportunity to appoint judges following his inauguration on January 20, 2021.”

Feinstein went on to write that there was precedent behind her argument, saying that “although processing judicial nominations is one of the Committee’s principal responsibilities, the Committee’s long and established tradition in presidential election years is to halt consideration of judicial nominees after Election Day.”

California’s senior senator noted that there have only been two exceptions to that since 1984: “Once in 2004, following President George W. Bush’s reelection, and once in 2012, following the reelection of President Obama.”

“Unlike Presidents Bush and Obama,” she wrote, “President Trump has lost his reelection bid.”

Courthouse News pointed out that Graham had already scheduled a nominations hearing for next week, prior to Feinstein’s letter.

Appointing Trump’s judicial nominees has been a priority of his administration and the Republican-controlled Senate.

NBC News reported in June that Senate Majority Leader Mitch McConnell (R-Ky.) had “confirmed 53 Circuit Court judges appointed by Trump in three-and-a-half years,” noting for comparison:

“Obama confirmed 55 in all eight years of his presidency. For all judges, Trump has now confirmed 200. George W. Bush follows with 197 at this point in his presidency, and Bill Clinton with 186.”

Anything else?

Also on Thursday, Graham — a fervent Trump ally — told CNN that Biden should now begin receiving classified intelligence briefings, despite the fact that Trump has not yet conceded.

The outlet reported that “Graham said he has not expressed his thoughts with the White House but said, ‘I hope so,’ when asked if he expects Biden to get the briefings soon.”

Advice and Consent Amy coney barrett Article II CURRENT EVENTS Intelwars Judiciary Nomination Supreme Court

Is the Nomination of Amy Coney Barrett Unconstitutional?

On Oct. 10, Democratic presidential nominee Joe Biden claimed that nominating and potentially approving Amy Coney Barrett for the Supreme Court during election season was “not constitutional.”

You might think Biden knows what he’s talking about. Trained as a lawyer, he served a long tenure in the Senate and eight years as vice president. For eight years as well, he chaired the Senate Judiciary Committee, the Senate committee most involved in constitutional issues. During all this time, the Constitution was the source of Biden’s power and a rule book governing his job.

Keep in mind that the Constitution is not a particularly long document. It’s not too much to expect a member of the Senate, and especially of the Judiciary Committee, to be familiar with it.

On Oct. 15, Sen. Patrick Leahy (D-Vt.) called the Barrett nomination and approval process “illegitimate”—that is, illegal. Leahy is another lawyer who has been in the Senate for many years. He chaired the Judiciary Committee even longer than Biden.

Former Sen. Russ Feingold (D-Wis.), still another lawyer, was likewise a member of the Judiciary Committee. He apparently professes some constitutional expertise, for he now heads the American Constitution Society, an organization of liberal lawyers, professors, and law students. In circular emails Feingold has asserted repeatedly that the Barrett nomination and confirmation process is “illegitimate” and would “steal” a Supreme Court seat.

Buttressing the presumed credibility of these three lawyers is the code of ethics governing them: Lawyers are supposed to tell the truth.

But let’s test the statements of these three men against the Constitution itself.

The relevant sections of the document are simple and straightforward. Article II of the Constitution states: “[The president] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”

Consider this sentence for a moment: The Constitution grants many powers that officials are free to exercise or not, as they wish. But in this grant of power, exercise is mandatory. This sentence is in a grammatical form called the future imperative: “shall nominate” and “shall appoint.” The language is similar to the Constitution’s requirement that the president “shall take Care that the Laws be faithfully executed.” A president who systematically refused to enforce laws—or to nominate judges—during election season would be violating his constitutional duty.

This conclusion is underscored by another sentence in Article II: The president “shall hold his Office during the Term of four Years.” In the case of President Trump, that means from Jan. 20, 2017 until Jan. 20, 2021 (or until Jan. 20, 2025, if he is re-elected).

The fixed four-year term was a flat rejection of the system in countries where the executive stayed in office for life or until an event whose timing was not known in advance. For example, Great Britain divided executive power between the king, who served for life, and the ministry, which held power while it enjoyed a parliamentary majority.

One reason for the fixed-length term was precisely to ensure that the president remained reasonably independent of the legislature and of external events—even pending elections.

In sum, the president not only may nominate Supreme Court justices, but also must do so, irrespective of when vacancies arise.

Once the president has nominated a potential justice, the Senate has the job of “advice and consent.” This means it must give an answer—yes or no—to the nomination. (It does not necessarily mean it must hold hearings.) Like the president, Senators also serve for fixed terms (6 years), and a Senator may not ignore his or her obligation merely because an election campaign occurs during his or her period in office.

A federal law affirms that the president’s duty to nominate and the Senate’s duty to respond do not go away during election season. Title 28, Section 1 of the U.S. Code states that “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices …” [emphasis added]

Presently the Court is in session with only seven associate justices. While the court may legally do this (its quorum is six), federal law contemplates eight associate justices. A president or Senator who refused to respond to a vacancy merely because an election is pending certainly would be violating the spirit of this statute.

Thus, the statements by Biden, Leahy, and Feingold are flatly incorrect. The current proceedings are neither “unconstitutional” nor “illegitimate” nor an attempt to “steal” anything. On the contrary, both the president and the Senate are carrying out their constitutional and legal duties. While many legal conclusions are arguable, this one really is not.

So why did these three supposedly qualified individuals make the statements they did?

Cornelius Tacitus—whose Latin-language writings are widely considered the best historical works produced by ancient Rome—once observed that governments both great and small are afflicted with two common problems. The first is ignorantia recti: ignorance of what is right. I suppose that Biden, Leahy, and/or Feingold might have made their statements out of honest ignorance. As I have pointed out elsewhere, some public officials display astonishing levels of ignorance.

Tacitus identified the other common defect as invidia. This Latin word usually means “envy,” but in this context it’s more accurately translated as “spite” or “ill-will.” A claim motivated by pure spite is not an honest one; it’s often an outright lie.

There’s a third common political problem that’s a blend of the two that Tacitus identified. You might call it willful ignorance. A person is willfully ignorant of important facts if he knows he’s ignorant but just doesn’t care enough to learn the truth.

The reader can decide for himself whether the Biden–Leahy–Feingold allegations flow from simple ignorance, spite, or willful ignorance.

This article first appeared in the October 20, 2020 Epoch Times.

Court packing CURRENT EVENTS Intelwars Judiciary Supreme Court

A Brief History of Court Packing

Since the death of liberal Justice Ruth Bader Ginsburg and the determination of President Donald Trump to fill her Supreme Court seat before Election Day with the traditionalist Judge Amy Coney Barrett, the concept of court packing has reared its head. The phrase “court packing” is a derogatory reference to legislation that alters the number of seats on the Supreme Court to alter its perceived ideological makeup.

The origins of modern court packing are from the depression era when President Franklin Delano Roosevelt sought to expand the court from nine to 15 by adding a new justice for every sitting justice who declined to retire upon reaching his 70th birthday. FDR offered the plan in the spring of 1937, shortly after he was inaugurated to his second term. He had just been reelected in a landslide and was frustrated that much of his legislation had been invalidated by the Supreme Court as beyond the powers of the federal government.

FDR’s stated reasoning was that the court had a “congestion of cases” since its nine justices were, he claimed, slow to address the appeals that came before them, and a larger number of justices would make for a more efficient court. Few believed this subterfuge. If nine were too slow, then 15 would be slower.

FDR really wanted more pro-New Deal justices who would ratify his radical proposals to centralize, plan and control the economy. Nevertheless, his court packing was immensely unpopular and the plan never made it out of the Senate Judiciary Committee.

But historians have debated whether the proposal actually worked, and here is why. Before FDR’s plan died, one of the conservative justices, Owen Roberts, had a change of heart on the constitutional scope of the federal government, and he began voting with the court’s liberal wing to uphold New Deal legislation against constitutional challenges.

Though the case in which Roberts broke ranks involved a Washington state minimum wage law — which the court upheld 5 to 4 with Roberts joining the liberals — the hook on which Roberts hung his constitutional hat was the Commerce Clause. That clause gives Congress the power to regulate commerce among the states.

Prior to the New Deal, congressional power over commerce was generally interpreted as James Madison intended it. Congress can regulate — that is, keep regular — the movement of goods over intestate borders among merchants and bar the states from favoring their own merchants.

After Roberts’ change of heart, a majority of the court began to view the commerce power in a wildly expansive way, nowhere justified by the language of the Constitution or its original understanding. The new — and regrettably, current — view of Congress’ commerce power is that the Constitution empowers Congress to regulate anything that affects interstate commerce, even private personal economic behavior too minuscule to measure, behavior that is not commercial in nature and behavior wholly within one state.

Roberts’ shift, which he never justified publicly, was coined “the switch in time that saved nine.” FDR could not have known that his court packing stunt would have so terrified a conservative justice as to turn him into a big government liberal. But it did.

Soon, retirements of justices allowed FDR to fill five vacancies on the court during his 12 years in office, and the landscape of American constitutional law would never be the same.

The number of justices on the court is fixed by legislation because the Constitution is silent on this. Though FDR’s stunt was a misguided effort to treat the court as if it were a super-legislature, it is constitutionally permissible for Congress to alter the number of sitting justices.

The only time this was done, it was the Republicans who were the scoundrels. The era was Reconstruction, and the unpopular and impeached-but-acquitted President Andrew Johnson was in the White House.

Fearing that Johnson would fill the court with southern sympathizers, the Radical Republicans in Congress “unpacked” the court.

There were two issues that the Republicans feared would bring judicial invalidation of their legislation. One was Reconstruction and the other was legal tender.

Reconstruction placed the Southern states that had joined the Confederacy under a military occupation so draconian that congressional leaders feared the court would invalidate it. Thus they enacted legislation that withdrew the Supreme Court’s jurisdiction over Reconstruction and reduced the number of justices by attrition from the fluctuating nine and sometimes 10 down to a permanent and fixed seven. The latter prevented Johnson from replacing retiring justices unless the court’s membership fell to six.

The legal tender issue involved Civil War-era legislation that declared paper money — unbacked by gold or silver as the Constitution requires, and just printed by the government — to be lawful legal tender. When the nine-member court invalidated paper money for private debts, the Republicans struck with their unpacking.

It worked. After Ulysses S. Grant became president, Congress returned the number of justices to nine, Grant filled the vacancies with his buddies, and the new justices joined the former dissenters in another legal tender case that upheld the use of paper money for private debts.

No matter the outcome on Nov. 3, we will soon have a conservative top-heavy Supreme Court. If Joe Biden wins the presidency and the Democrats control Congress, some will try to pack the court by expanding its number. But history teaches that tinkering with the judiciary for political reasons is dangerous to freedom and to longevity in office.

The court is not a legislature. Its purpose is to restrain — not to unleash — the president, Congress and popular majorities from infringing upon constitutional rights.

Without this anti-democratic structure, who or what will protect us from the tyranny of the majority?

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Abortion rights group joins calls for Sen. Feinstein to be replaced as Judiciary ranking member

Abortion rights group NARAL has released a scathing statement calling for longtime Democratic Sen. Dianne Feinstein (Calif.) to be ousted from her position as ranking member on the Senate Judiciary Committee, criticizing her for giving “credibility” to the hearings considering U.S. Supreme Court nominee Amy Coney Barrett.

What are the details?

Several Democratic operatives made public cries for Feinstein, 87, to step down from her leadership position on Thursday, after the Barrett hearings ended with the Democrat from California complimenting her Republican colleague, Chairman Lindsey Graham (S.C.), for conducting what she called “the best set of hearings that I’ve participated in.”

Feinstein and Graham later embraced in a hug that was published in the media.

On Friday, NARAL jumped on the pile of progressives rallying for Feinstein to be gone, releasing a statement saying:

This nomination is illegitimate and this process is a sham. Tens of millions of Americans have already voted and majorities have said unequivocally that they want to choose the next President who should fill this seat. Amy Barrett and this power grab pose a grave threat to every freedom and right we hold dear and tears the very fabric of our democracy. Americans—whose lives hang in the balance—deserve leadership that underscores how unprecedented, shameful and wrong this process is. The Ranking Member of the Senate Judiciary Committee, Senator Dianne Feinstein, failed to make this clear and in fact offered an appearance of credibility to the proceedings that is wildly out of step with the American people. As such, we believe the committee needs new leadership.”

The Washington Post noted that “the statement was all the more remarkable because Feinstein has been a longtime advocate of abortion rights. That has been recognized by NARAL — every year since 2016, Feinstein had received a 100 percent on the abortion rights group’s congressional scorecard, meaning that she sided with NARAL on its legislative priorities when it comes to reproductive rights.”

Anything else?

Freshman congresswoman and fellow California Democrat Rep. Katie Porter — whom some progressives have suggested would make a good replacement for Feinstein or Democratic vice presidential nominee California Sen. Kamala Harris —also issued a condemnation of Feinstein on Friday, but stopped short of calling outright for the 87-year-old to pulled as Judiciary ranking member.

“I disagree strongly with Sen. Feinstein that that set of hearings was one of the best or was even acceptable,” Porter told HuffPost in an interview. “I think Amy Coney Barrett did not answer basic questions about her beliefs and stonewalled repeatedly. We got many fewer direct answers than we have out of most Supreme Court hearings.”

Porter added, “I thought it was a very poor set of hearings.”

dianne feinstein Intelwars Judiciary Lindsey Graham

Democratic operatives call for Dianne Feinstein to step down as Judiciary Committee ranking member

Democratic California Sen. Dianne Feinstein is facing calls to step down as ranking member of the Senate Judiciary Committee, after she enraged operatives from her own party with her performance on the panel — which ended with her praising Republican Chairman Lindsey Graham.

What are the details?

As the final hearing for U.S. Supreme Court nominee Amy Coney Barrett wrapped up, Feinstein told Graham, “I just want to thank you. This has been one of the best set of hearings that I’ve participated in.” She added, “Thank you so much for your leadership.”

Following the meeting, the two were seen embracing in a hug.

Feinstein, 87, was immediately attacked by high profile Democrats, many of whom declared it was time for her to pass the torch and give up her leadership position on the committee.

Former Hillary Clinton 2016 campaign press secretary Brian Fallon, who now leads the progressive group Demand Justice, issued a statement declaring, “It’s time for Sen. Feinstein to step down from her leadership position on the Senate Judiciary Committee. If she won’t, her colleagues need to intervene.”

“She has undercut Democrats’ position at every step of this process, from undermining calls for filibuster and Court reform straight through to thanking Republicans for the most egregious partisan power grab in the modern history of the Supreme Court,” he continued. “If Senate Democrats are going to get their act together on the courts going forward, they cannot be led by someone who treats Sunrise activists with contempt and the Republican theft of a Supreme Court seat with kid gloves.”

Fallon’s message was echoed by former President Barack Obama’s deputy national security adviser Ben Rhodes, who tweeted, “Someone like Feinstein who is so out of step with the rest of the party should not be the lead Democrat on the Judiciary Committee.”

Likewise, former Obama speechwriter Jon Lovett tweeted in reaction to Feinstein’s praise of Graham, “That she can say this about this ongoing travesty is another sad statement about how poorly represented we are by Dianne Feinstein.”

Feinstein joined her fellow Democrats on the committee in avoiding attacks on Barrett’s Catholic faith during this week’s hearings, after facing criticism for their treatment of the nominee during the 2017 nomination hearings for her current position on the Seventh Circuit appellate court.

Fox News reported that “California Democratic Sen. Dianne Feinstein receive bipartisan backlash when she told Barrett that the ‘dogma lives loudly within’ her during” the 2017 hearings.

Breonna taylor CURRENT EVENTS Incorporation Doctrine Intelwars Judiciary no-knock raid Police Police State qualified immunity

How the Supreme Court and the Incorporation Doctrine Helped Kill Breonna Taylor

There has been plenty of debate surrounding the death of Breonna Taylor in Louisville, Kentucky. But seldom mentioned is the role Supreme Court precedent and the incorporation doctrine played in setting the legal stage for events to unfold ending with the death of a young woman.

Breonna Taylor was in bed with her boyfriend Kenneth Walker in the early-morning hours of March 13 when police broke into her home executing a no-knock warrant issued earlier that day. Walker claims he heard banging on the door but never hear anybody say “police.” When the officers broke down the door, Walker fired a shot, hitting an officer in the leg. Police returned fire, killing Taylor. She suffered at least eight gunshot wounds.

Walker escaped unharmed. After the shooting stopped but before he was taken into custody, Walker called 911 and said, “I don’t know what’s happening. Somebody kicked in the door and shot my girlfriend.”

Officers were ultimately cleared of any criminal wrongdoing in Taylor’s death. A grand jury indicted one officer on reckless endangerment charges for firing into a neighboring apartment.

Under the law, officers were justified in entering the apartment because they had a valid warrant. There is considerable debate about whether or not police announced themselves before entering. Officers and at least one witness said they did. Walker’s 911 call indicates that if they did, he didn’t hear them. Regardless, the police were not required to knock or announce themselves because the warrant was a “no-nock” warrant, meaning officers could legally enter the apartment without any notice.

The grand jury determined that since the police entered the apartment legally, they also had the legal right to defend themselves once Walker fired his weapon. In the eyes of the grand jury, Taylor was collateral damage in a legally justified police self-defense response.

There has been a hot debate about the events that transpired inside Taylor’s home. Were police reckless when they opened fire? Did Walker have a right to shoot? Was it racially motivated? Did police misrepresent facts to obtain the warrant? There is plenty to parse out. But it’s also important to take a step back and look at the legal framework that made the no-knock raid possible to begin with. Without Supreme Court precedent applied to local law enforcement through the incorporation doctrine, police may well have never crashed into Breonna Taylor’s home that morning.

No-Knock Warrants

In the 1995 case Wilson v. Arkansas, the Supreme Court established that police must peacefully knock, announce their presence, and allow time for the occupants to open the door before entering a home to serve a warrant. But the Court allowed for “exigent circumstance” exceptions if police fear violence, if the suspect is a flight risk, or if officers fear the suspect will destroy evidence.

As journalist Radley Balko notes, police utilized this exception to the fullest extent, “simply declaring in search warrant affidavits that all drug dealers are a threat to dispose of evidence, flee or assault the officers at the door.”

The SCOTUS eliminated this blanket exception in Richards v. Wisconsin  (1997) requiring police to show why a specific individual is a threat to dispose of evidence, commit an act of violence or flee from police. But even with the opinion, the bar for obtaining a no-knock warrant remains low.

“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” [Emphasis added]

Reasonable suspicion is an extremely low legal bar to meet.

A third Supreme Court ruling effectively eliminated the consequences for violating the “knock and announce” requirement without a no-knock warrant. In Hudson v. Michigan (2006), the High Court held that evidence seized in violation of knock and announce was not subject to the exclusionary rule. In other words, police could still use the evidence in court even though the technically gathered it illegally.

The Supreme Court has also created a legal environment that provides cops broad authority to shoot armed citizens, even if the police are violating the Constitution. For instance, in County of Los Angeles v. Mendez (2017) the Court effectively held that police can shoot a person in their own home even if the officers are violating the individual’s constitutional rights.

Qualified Immunity and the Incorporation Doctrine

Officers who violate no-knock rules or more broadly infringe on rights protect by the Constitution could still face lawsuits. But the qualified immunity defense creates an almost insurmountable legal barrier for victims of police abuse.

Through a series of Supreme Court opinions, federal courts created a qualified immunity defense out of thin air, making it nearly impossible to hold law enforcement officers responsible for actions taken in the line of duty. In order to move ahead with a suit, the plaintiff must establish that it was “clearly established” that the officer’s action was unconstitutional. The “clearly established” test erects an almost insurmountable hurdle to those trying to prove excessive force or a violation of their rights. As a result, police rarely face consequences for actions taken in the line of duty, no matter how egregious the violation of rights protected by the Constitution.

Significantly, were it not for the dubious “incorporation doctrine” made up by the Supreme Crout based on the 14th Amendment that purportedly empowers the federal government to apply the Bill of Rights to the states, these cases would have never gone to federal court and we wouldn’t have these blanket rules.

A lot of people believe that the Bill of Rights always applied to state governments. This is simply not true. The Bill of Rights was never intended to bind the actions of state governments. The application of the federal Bill of Rights to the states came about through a series of federal court cases based on the 14th Amendment.

Many conservatives and libertarians support the incorporation doctrine because they think federal courts will protect individual rights from getting trampled by tyrannical state and local governments. That sounds good in theory, but it rarely works that way in practice. In most cases, federal courts expand government power and cement it in legal stone, as we’ve seen with no-knock warrants and qualified immunity. And because of the incorporation doctrine, these expansions of power are not limited to the state where the case occurs.

In effect, the Court sets precedents that become universally applied across the U.S. In terms of local policing, the incorporation doctrine and the application of the federal Bill of Rights to state and local governments protect police officers, allow no-knock warrants, and allow cops to shoot individuals with little fear of legal repercussions — in every city, county and state in the U.S. from Honolulu, Hawaii to West Quoddy Head, Maine.

State and local governments can place more strict restrictions on police officers beyond what the SCOTUS legal framework allows. For instance, Louisville banned no-knock warrants after cops shot Taylor to death. But this rarely happens. In a federalized system, most states and localities defer to the legal requirements set forth by the High Court. The centralization of the legal system leads to a centralization of policy.

A decentralized system where cases were heard under state law and state constitutions would undoubtedly have problems. Some states would probably extend almost complete protection to law enforcement officers just like the federalized system. But surely some would be better.

It might be hyperbole to say the Supreme Court and the incorporation doctrine killed Breonna Taylor. But they certainly created the system that made the events leading up to her death possible. And I would argue the system functions just as designed. It empowers government and protects its agents at your expense. If you don’t want outcomes as we saw in Louisville, stop centralizing power in D.C.



Amy coney barrett Coronavirus delay Intelwars Judiciary senate democrats

Senate Dems seek delay in Amy Coney Barrett hearings citing coronavirus risk

Senate Minority Leader Chuck Schumer (D-N.Y.) and Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) issued a joint statement Friday calling on Judiciary Chairman Lindsey Graham (R-S.C.) to hold off on moving forward with hearings on U.S. Supreme Court justice nominee Amy Coney Barrett, citing risks of spreading COVID-19 in light of President Donald Trump and Sen. Mike Lee (R-Utah) testing positive for the virus.

What are the details?

Schumer and Feinstein — who have both been adamantly opposed to President Trump nominating a replacement for recently-deceased Justice Ruth Bader Ginsburg ahead of the Nov. 3 election — wrote that it is “premature” for Graham “to commit to a hearing schedule when we do not know the full extent of potential exposure stemming from the president’s infection and before the White House puts in place a contact tracing plan to prevent further spread of the disease.”

The Democrats also stated that the “infection” of Lee, who also sits on the Judiciary Committee, “makes even more clear that health and safety must guide the schedule for all Senate activities, including hearings.”

According to Schumer and Feinstein, virtual hearings on Barrett’s nomination would not be “an acceptable substitute” given the magnitude of deciding “a lifetime appointment to the federal bench.”

They argued that moving forward would turn “this already illegitimate process” into “a dangerous one.”

A Republican aide called the Democrats’ latest effort to stall Barrett’s nomination hearings “a nakedly partisan ploy,” telling Fox News, “Everyone is concerned about health right now and that comes first, but the business of the Senate and this Supreme Court confirmation process doesn’t stop. That’s why we’ve been at work.”

The outlet reported that Senate Majority Leader Mitch McConnell (R) argued that Senate hearings have already been conducted remotely since the COVID-19 pandemic hit, and suggested virtual proceedings would be the appropriate way to handle the process for Barrett.

McConnell told the “Hugh Hewitt Show,” on Friday, “They’ve been careful already. Members, some of them, have done their interview in previous hearing remotely. This sort of underscores, I think, the need to do that. And I think every precaution needs to be taken because we don’t anticipate any Democratic support at all, either in committee or in the full Senate, and therefore everybody needs to be in an all-hands-on-deck mindset.”

However, the majority leader also signaled that Barrett’s confirmation could come after Election Day, telling Fox News’ Bret Baier, “This Republican Senate was elected for a term that ends in January of next year. The president was elected for a four-year term that ends Jan. 20 of next year.”

Constitution Incorporation Doctrine Intelwars Judiciary Supreme Court

The Incorporation Doctrine Has Given the Supreme Court Nearly Unlimited Power

The latest fight over the next Supreme Court justice and the abject hysteria on display from both sides of the political aisle reveal yet another flaw in the incorporation doctrine. It has vested Supreme Court justices with nearly unlimited power and elevated them to the status of political demi-gods.

The incorporation doctrine is the dubious Supreme Court interpretation of the 14th Amendment that applies the Bill of Rights to the states.

A lot of people believe that the Bill of Rights always applied to state and local governments. This is simply not true. The Bill of Rights was never intended to bind the actions of state governments. In a nutshell, the Supreme Court invented the incorporation doctrine through the 14th Amendment. It relies on a dubious legal principle called “substantive due process,” invented out of thin air by the court more than 50 years after the ratification of the amendment.

In theory, the incorporation sounds like a good idea. It empowers the federal courts to protect our liberties from state and local tyranny turning the federal judiciary into a “liberty enforcement squad.” But in effect, it has centralized even more power in the federal government and turned the Supreme Court into an almost all-powerful body dictating policy at the state and local level. It has also completely wrecked the original constitutional system.

No sane political system would vest this much power into a panel of nine unelected, politically-connected lawyers.

The rhetoric surrounding the selection of the next justice reveals the flaw in this system. In a world where the Supreme Court wields so much power, the appointment of a new judge becomes a matter of the utmost importance. The hyperbole has already risen to the level of “this is life or death.”

The political stakes are certainly high. Armed with its self-proclaimed legal mandate, the High Court has dictated abortion policy, regulated displays in local parks, eroded the right to keep and bear arms, endowed local cops with almost complete immunity, micromanaged local zoning, whittled away the right to privacy, and injected its opinion into countless matters of local concern. Supreme Court justices make decisions on local issues and then impose them across the entire United States by the precedent.

You may approve of some of the Court’s opinions and disapprove of others. Regardless, a small panel of lawyers should not have the authority to dictate state and local policies and the concerns of over 320 million people. In practice, incorporation has created a power monopoly. Monopolies rarely play out well for the average person.

State and local governments certainly enact policies antithetical to liberty. But concentrating power at an even higher level isn’t the solution. In fact, consolidating and centralizing power is the biggest long-term threat to liberty.

This was the prevailing view during the founding of the United States and the reason the Philadelphia Convention didn’t vest the new general government with extensive authority but limited it to a few specifically delegated powers.

The founding generation warned us over and over again about consolidating the states into a single national government. It was the greatest fear voiced by opponents of the Constitution during ratification and was a prime reason for the inclusion of the Bill of Rights.

During the Massachusetts ratifying convention, delegate Fisher Ames asserted that “a consolidation of the States would subvert the new Constitution.” And during the Virginia ratifying convention, Patrick Henry warned, “Consolidation must end in the destruction of our liberties.”

“When he asks my opinion of consolidation, of one power to reign over America with a strong hand, I will tell him I am persuaded of the rectitude of my honorable friend’s opinion, (Mr. Mason,) that one government cannot reign over so extensive a country as this is, without absolute despotism. Compared to such a consolidation, small confederacies are little evils; though they ought to be recurred to but in case of necessity.”

Supporters of the Constitution didn’t defend consolidation. They acknowledged its danger and swore it would never happen. In Federalist #32, Alexander Hamilton wrote:

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

This was born out of practical concern. As Thomas Jefferson opined, the country is too big to be ruled by a single government.

“Our country is too large to have all its affairs directed by a single [federal] government. Public servants at such a distance, and from under the eye of their constituents, must, from the circumstance of distance, be unable to administer and overlook all the details necessary for the good government of the citizens and…will invite the public agents to corruption, plunder, and waste.”

The incorporation doctrine did what Hamilton promised wouldn’t happen. It effectively obliterated state sovereignty and consolidated the states into a single national government.

Even worse, it has vested the most power in the most unaccountable branch of the federal government. Congress and the president are accountable to the people through the ballot box. The Supreme Court is accountable to no one.

This is just another example of the failure of the incorporation doctrine to protect liberty. It sounds good in theory. But in effect, it has centralized even more authority at the federal level and given nine politically connected lawyers far too much power.

Thomas Jefferson warned that this would lead to despotism in a letter to William Charles Jarvis.

 “You seem to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy.” [Emphasis added]

And here we are.

Amy coney barrett Article II Section 2 Intelwars Judiciary Ruth Bader Ginsberg SCOTUS Supreme Court

Supreme Court and Rules of the Game

The United States Constitution’s Article 2, Sec. 2, cl. 2, provides that the president of the United States “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States.” President Donald Trump has nominated Amy Coney Barrett as U.S. Supreme Court justice who will replace the late Ruth Bader Ginsberg. Barrett currently serves as United States Circuit judge of the 7th U.S. Circuit Court of Appeals. The 7th Circuit serves the Midwestern states of Illinois, Indiana and Wisconsin.

It is now the Senate’s job to decide whether to confirm Barrett’s appointment as an associate justice on the Supreme Court. In thinking about the Senate’s criteria for making their decision, we might ask what is the role of a U.S. Supreme Court justice? A reasonable answer is to recognize that our Constitution represents our rules of the game. It dictates what is and is not permissible behavior by government. Therefore, a Supreme Court justice has one job and one job only; namely, that of a referee.

A referee’s job, whether he is a football referee, baseball umpire or a Supreme Court justice, is to know the rules of the game and to ensure that those rules are evenly applied without bias. Do we want a referee or justice to allow empathy to influence their decisions? Let us answer this question using this year’s Super Bowl as an example.

The San Francisco 49ers have played in seven Super Bowls in their franchise history, winning five times. On the other hand, coming into the 2020 game, the Kansas City Chiefs had not won a Super Bowl title in 50 years. In anyone’s book, this is a gross disparity. Should the referees have the empathy to understand what it is like to be a perennial loser, not winning a Super Bowl in five decades? What would you think of a referee whose play calls were guided by empathy or pity? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the San Francisco 49ers and less stringently against the Chiefs. Would you support a referee who refused to make offensive pass interference calls because he thought it was a silly rule? You would probably remind him that it is the league that makes the rules (football law), not referees.

Supreme Court justices should be umpires or referees, enforcing neutral rules. Here is a somewhat trivial example of a neutral rule from my youth; let us call it Mom’s Rule. On occasion, my sister and I would have lunch in my mother’s absence. Either my younger sister or I would have the job of dividing the last piece of cake or pie. Almost always an argument would ensue about the fairness of the cut. Those arguments ended when Mom came up with a rule: Whoever cuts the cake gives the other person the first choice of the piece to take. As if by magic or divine intervention, fairness emerged and arguments ended. No matter who did the cutting, there was an even division.

This is what our society needs — the kind of rules whereby you would be OK even if your worst enemy were in charge. Despite the high stakes of bitterly fought football contests, most games end peaceably, and the winners and losers are civil. It is indeed a miracle of sorts that players with conflicting interests can play a game, agree with the outcome and walk away as good sports. That “miracle” is that it is far easier to reach an understanding about the game’s rules than the game’s outcome. The same conflict-reducing principles should be a part of a civilized society.

Advice and Consent alexander hamilton Appointments Article I Section 3 Article II Section 2 Federalist 69 Intelwars Judiciary Senate Supreme Court Vice-President

Can the Vice President Break a Tie on Appointments?

In the Boston Globe, Laurence Tribe (Harvard) makes an originalist case that the Vice President cannot break ties on appointments votes.  It’s an interesting issue but I am not persuaded. He begins:

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” …

Well, I don’t always take Alexander Hamilton’s word for things either, although Hamilton is persuasive evidence of original meaning when he gives a persuasive account.  Federalist 69, however, doesn’t contain any supporting reasoning on this point, so it’s unclear why Hamilton thought this was so.  Federalist 69 isn’t a description of the Vice President’s powers.  It’s a wide ranging description of the President’s powers, touching on appointments only briefly, and not mentioning the Vice President.  It seems as likely that Hamilton (“writ[ing] like he was running out of time”) simply forgot about the Vice President’s role. I would count this as some evidence, but not at all conclusive.

Professor Tribe next says:

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

Actually I don’t think the facts stated here matter much at all to originalists.  That no Vice President has ever done it proves little; we need to know whether any Vice President ever had the opportunity to do so and declined on constitutional grounds.  (I assume not, or else Professor Tribe would mention it.)  Also, if a Vice President had done so, it would matter a lot to originalists whether it happened early on, or in more recent years.  Originalists don’t generically “emphasize the importance of history when interpreting our Constitution”; they emphasize the importance of immediate post-ratification events as a way of understanding original meaning.

Skipping a bit of modern history clearly not relevant to originalists, we come to:

When it comes to legislation, the vice president’s tiebreaking power affects only half of the lawmaking process: the vice president can break a tie in the Senate, but has zero say in the House of Representatives. Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process, since it is only the Senate that weighs in on such matters. A thumb on part of the scale in the legislative process is hugely different from single-handedly tipping the entire scale when it comes to confirming justices — justices who will sit in judgment over the work of the other two branches, potentially including disputes over the upcoming election itself, in which Pence obviously has the most direct interest imaginable.

True enough, I suppose, but this isn’t an originalist argument — just an argument that there might be some policy reasons to prefer a different design.  That I don’t doubt: the whole Vice-President-as-President-of-the-Senate seems like a dumb idea to me, but there it is.  Propose an amendment if you don’t like it.

(And incidentally, under the original meaning, giving the Vice President a tiebreaking vote wasn’t akin to giving the President a tiebreaking vote, since it wasn’t assumed that the President and Vice President would be allies (as likely, they would be rivals, as with Adams and Jefferson).  This was of course changed by the 12th Amendment, but that change didn’t change the original meaning of the Vice President’s tiebreaking power.)

Then there is this central structural point:

For those who care about the details, Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

I like this argument because it works closely with the text.  But I think it ends up being inconclusive.  Maybe the framers thought about the design this way.  Maybe that’s why Hamilton said in Federalist 69 that a divided Senate would produce no appointment.  But I can’t see it as more than speculation.  It’s a lot of weight to put on a very subtle point about the text’s structure. We can speculate that the founding generation attached this significance to the placement of the tiebreaking power in Article I, but there’s not much evidence that they did.

And it’s not obvious that they would have drafted the Vice President’s power differently if they wanted to state the tiebreaking vote on appointments expressly: maybe they would have put it in Article II as well, but as likely they would have thought the power in Article I carried over to the next article.  Nothing in Article I says its powers and procedures don’t carry over to later articles, and often they do.  For example, when Congress exercises powers that are not granted in Article I (for example, creating lower federal courts [Article III, Sec. 1] or passing regulations for the territories [Article IV]), it follows the same procedures outlined in Article 1, Section 7; and the President has the same veto power in these non-Article I situations as is granted in Article I, Section 7.

Finally, as to drafting history:

[T]he Framers first considered a provision that “Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].” But they rejected that language in favor of the provision that ultimately made its way into our Constitution: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.”

That shift in language matters a lot — but only in the context of a tie. Under the first formulation, a tie favors the president, because the Senate cannot muster a majority to “disagree” with the appointment, while under the second — which became our constitutional law — a tie works against the president, because the Senate cannot muster a majority to “consent” to the appointment, leaving the nominee unconfirmed. But if the vice president is able to cast a tiebreaking vote, the difference is meaningless: The vice president decides whether the appointment goes through regardless of whether the standard is “if not disagreed to” or is “with the … consent.” Surely the Founders would not have spent their time and effort changing this language, which matters only when such votes are tied, if they understood the vice president had the power to break those ties.

I think the change in language matters for a different reason.  Under the original formulation, if the Senate fails to act, the appointment happens.  Under the revised language, if the Senate fails to act, the appointment fails.  That’s a big difference unrelated to ties.  Relatedly, the original draft formulation has the problem of leaving unclear how long the Senate can delay in registering its disagreement before the appointment takes effect; the revision gets rid of this problem by substituting the simple rule of no-action-no-appointment.  So there are multiple reasons to change the language that have nothing to do with a tie.

In sum, it’s an interesting and worthwhile argument, but I think it fails to overcome the simple text.  Article I, Section 3 says that the Vice President, as President of the Senate, “shall have no Vote, unless they [the Senators] be equally divided.”  It does not say that the Vice President has this voting power only as to Article I matters.  Rather, the Vice President has this voting power  whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates — not just as to powers in Article I, but generally.  Professor Tribe’s contrary arguments aren’t nothing (from an originalist perspective), but they aren’t enough.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

CURRENT EVENTS Intelwars Judiciary Rbg Ruth Bader Ginsburg Supreme Court

Bigger Problem Underlies Supreme Court Fight

Ruth Bader Ginsburg passed away last week, opening up a spot on the Supreme Court even as election day looms. The fight over her replacement is already heating up. But there’s a far bigger problem underlying the battle over which politically connected lawyer sits on the Court next.
Regardless, let the political theater begin.

I’m already enjoying watching Republicans do rhetorical gymnastics to explain the difference between blocking Obama’s nominee during an election year and rushing a Trump nomination during this election year.

“This is different!”

Yes. Whatever.

Here’s the thing — it doesn’t really matter.

As I explained recently, you shouldn’t be depending on federal judges to protect your liberty or the Constitution. They aren’t committed to your liberty. They aren’t even committed to the Constitution. They are mostly committed to precedent. And most precedent is unconstitutional.

Nevertheless, we will see significant wailing and gnashing of teeth as this SCOTUS hubbub plays out. To most Americans, there is nothing more politically significant than who sits on the Supreme Court.

And that reveals a big problem.

No sane political system vests so much power in nine politically-connected lawyers.

The American founding generation certainly didn’t. In fact, Alexander Hamilton argued that the Court would be the weakest branch of the federal government. But here we are – living in a world where nine lawyers in black dresses wield almost absolute power.

I kind of think maybe we should rethink this.

I’m reminded of a pretty prescient observation by Littleton Waller Tazwell, who served in the U.S. House and Senate, and as the 26th governor of Virginia.

“For the Judiciary of the United States, I entertain at least as much respect as I do for any other Judiciary. I will not say more; and I cannot say less. With the individual Judges, I have nothing to do. They shall all be, if any one thinks so, what some of them certainly are, ‘like Mansfield wise, and as old Foster just.’ But all must know that the robes of office do not cover angels, but mere men, as prone to err, as any other men of equal intelligence, of equal purity, and of equal constancy.

We all know, too, that some of the supreme Judges of the United States have not thought it unbecoming their high places, to accept Foreign Missions, to present themselves as candidates for other offices, and to enter into newspaper disquisitions upon party topics. I do not mean to blame them for such things, but merely to shew from such facts, that the rights of sovereign States, when assailed by the government of the United States, could not be safely confided to a forum so constituted, even if it was possible that it could take cognizance of the subject.”

The root of the problem is that so many people have embraced this absurd system that empowers judges to run their lives. As a result, many will view this SCOTUS appointment as very nearly a matter of life and death.

I don’t. And I won’t. I refuse to get caught up in D.C. political theater. I think there’s a better way forward.

Court Cases Intelwars Judiciary qualified immunity Supreme Court

The Supreme Court’s Dereliction of Duty on Qualified Immunity

by Jay Schweikert, CATO Institute

Monday morning, the Supreme Court denied all of the major cert petitions raising the question of whether qualified immunity should be reconsidered. This is, to put it bluntly, a shocking dereliction of duty. As Cato has argued for years, qualified immunity is an atextual, ahistorical judicial invention, which shields public officials from liability, even when they break the law. The doctrine not only denies justice to victims whose rights have been violated, but also exacerbates our crisis of confidence in law enforcement. By holding police officers to a far lower standard of accountability than ordinary citizens, qualified immunity deprives the entire law enforcement community of the public trust and credibility they need to do their jobs safely and effectively.

There was simply no excuse for the Court to decline this golden opportunity to begin addressing its mistakes in creating and propagating the doctrine of qualified immunity. The petitions before the Court plainly demonstrated both the moral injustices and practical absurdities of the “clearly established law” standard. In Corbitt v. Vickers, for example, the Supreme Court let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten??year??old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone. And in Baxter v. Bracey, the Court let stand a Sixth Circuit decision which said that a prior case holding it unconstitutional for police to deploy a canine against a suspect who had surrendered by lying on the ground did not “clearly establish” that it was unlawful for police to deploy a canine against a suspect who had surrendered by sitting on the ground with his hands up.

Justice Thomas was the only member of the Court who would have granted any of the petitions. He dissented in the Baxter case, writing that “[b]ecause our § 1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.” It’s especially disappointing that Justice Gorsuch didn’t join this dissent, as he has otherwise demonstrated himself to be a principled advocate of textualism and originalism, and also willing to reconsider misguided precedent. And it’s surprising that Justice Sotomayor had nothing to say regarding these cases, given her previous comments in a dissent (joined by Justice Ginsburg) noting that qualified immunity had become an “absolute shield for law enforcement officers” that has “gutt[ed] the deterrent effect of the Fourth Amendment.” Perhaps one or more of these Justices will agree to hear some future case. But for now, Justice Thomas stands alone.

In the tumultuous wake of George Floyd’s brutal death at the hands of Minneapolis police, this development could not come at a worse time. The senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near??zero accountability for law enforcement. And while this culture has many complex causes, one of the most significant is qualified immunity. By effectively rewriting and undermining the civil rights law that was supposed to be our primary means of holding public officials accountable, the Supreme Court shares a huge portion of the blame for our present crisis.

It’s impossible to know for sure what motivated the Court to deny all of these petitions. But one possibility is that the Justices were looking closely at developments in Congress—where members of both the House and the Senate have introduced bills that would abolish qualified immunity—and decided to duck the question, hoping to pressure Congress to fix the Court’s mess. It is certainly encouraging that so many legislators have finally turned their attention to qualified immunity. But the mere fact that Congress can fix this mess doesn’t absolve the Supreme Court of its obligation to fix what it broke—the Court conjured qualified immunity out of nothing in the first place, and the Justices had both the authority and responsibility to correct their own blunders, no matter what happens in the legislature.

Qualified immunity will go down in history as one of the Supreme Court’s most egregious, costly, and embarrassing mistakes. None of the Justices on the Court today were responsible for creating this doctrine, but they all had a responsibility to fix it—and except for Justice Thomas, they all shirked that responsibility. It is now all the more urgent that Congress move forward on this issue and ensure that all public officials—especially members of law enforcement—are held accountable for their misconduct.

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Court Cases Federalist 78 Federalist 81 Intelwars Judicial Branch Judiciary Marbury v. Madison Supreme Court

Clearing up the confusion about Marbury v. Madison

It is true that the Constitution does not expressly say that the federal courts have the power to strike down acts of Congress which are unconstitutional.

What Article VI of the Constitution does say, however, is that (a) the Constitution is the supreme law of the land and (b) judicial officers (among others) are under Oath to support the Constitution.

So what are the logical implications of the foregoing? That when an act of Congress violates the Constitution, and the issue is brought before a court in a lawsuit, it is the sworn duty of the Court to side with the Constitution and against Congress.

Let me give an illustration: Say Congress passes a law requiring all Jews to wear yellow armbands with the Star of David in black, and requiring all Christians to wear white armbands with the cross in black. And Congress makes it a felony for a Jew or Christian to leave their homes without wearing the arm bands. You – a Jew or Christian – go outside without wearing your armband and are arrested and charged with a felony.

If I am your defense counsel [I got my start as a criminal defense attorney and won almost all of my cases, so you would be in REALLY good hands!], the first thing I will do is to file a motion to dismiss the charge against you on the ground that the statute under which you are charged is unconstitutional as outside the scope of the powers granted to Congress AND as in violation of the First Amendment.

What do you want the Court to do? Do you want them to side with the Constitution? Or do you want them to side with Congress?

In Marbury v. Madison (1803), the Court said when an act of Congress violates the Constitution, the Court must side with the Constitution and against Congress. They were right! That is the Judicial Branch’s “check” on the Legislative Branch.

The Legislative Branch’s “check” on the Judicial Branch is to impeach and remove from office federal judges who violate the Constitution (see e.g., Federalist No. 81 (8th para).

The Executive Branch’s “check” on the Judicial Branch is to refuse to enforce their Orders and Judgments (see e.g., Federalist No. 78 (6th para).

The Executive Branch’s “check” on the Legislative Branch is to refuse to enforce their unconstitutional statutes.  So if Congress passed the armband law, it is the sworn Duty of the President, mindful of his Oath of Office to “preserve, protect and defend the Constitution”, to issue an Executive Order instructing the Attorney General, the United States Attorneys, and the US Department of Justice, that they are NOT TO ENFORCE the armband law. The President doesn’t need a “green light” from the Judicial Branch!  The Executive Branch has its own “check” against unconstitutional acts of Congress.

Our Constitution is an elegant piece of work.  Have you read it?

Intelwars Judiciary Jury jury trial magna carta trial-by-jury

Trial By Jury: A Jewel of Freedom

The Anglo-American protection of a person’s right to have the legitimacy of accusations made against him determined by a jury of his peers is of ancient origin, so ancient in fact, that the date of its first appearance in English law may be hidden in the fog of distant history.

That said, there is a verifiable and influential date of the express reservation of that most inestimable rights

On June 15, 1215, a cohort of twenty-five rebellious barons gathered on the plains of Runnymede on the banks of the River Thames and exacted from King John his signature on a “Great Charter,” a list of rights known to history by its Latin name: Magna Carta.

Paragraph 63 of that the document declares that “men in our kingdom shall have and keep all these previously determined liberties, rights, and concessions, well and in peace, freely and quietly, in their fullness and integrity, for themselves and their heirs, from us and our heirs, in all things and all places for ever, as is previously described here.”

One of the timeless tenets of English liberty endowed with eternal protection by this famous parchment was the trial by jury. The 39th Clause mandates:

“No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any other way harmed. Nor will we [the king] proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.”

Measuring the origin of the right to a trial by jury from its codification in the Magna Carta would make that perpetual protection nearly 900 years old. That might not be accurate, however. Believe it or not, there is evidence that the right to a trial by jury as understood in England (and later in America) is of much older origin, just how the jury selection in seattle wa has noted.

In his History of Trial by Jury, written in 1852, Scottish lawyer and member of Parliament, William Forsyth described the difficulty of determining the genealogy of the trial by jury, as well as a couple of the most prevalent theories on the subject:

“Few subjects have exercised the ingenuity and baffled the research of the historian more than the origin of the jury. No long time has elapsed since the popular opinion was — and perhaps it even now prevails — that it was an institution established by Alfred the Great; and we prided ourselves on the idea that this was one of the legacies of freedom bequeathed to us by our Anglo-Saxon ancestors.”

Forsyth quotes another legal historian who posits, regarding the antiquity of trial by jury, that “in England, it is of a tradition so high that nothing is known of its origin; and of a perfection so absolute that it has remained in unabated rigor from its commencement to the present time.”

Another author, Charles Du Cange, postulated that this principle was practiced by the Normans, who inherited the institution from the Goths.

A survey of the suggested origins of this right reveals that the highly esteemed lawyer and legal theorist Sergeant Stephen, weighs the various theories before declaring his own educated estimate:

“The most probable theory seems to be that we owe the germ of this (as of so many of our institutions) to the Normans, and that it was derived by them from Scandinavian tribunals, where the judicial number of twelve was always held in great veneration,” he writes (a recent academic article on the symbolism of numbers in Old Norse literature reports that among the ancient Norse the number twelve “is lawfully and legendarily the sign of maturity”).

Finally, the most accepted modern attribution of the adoption of the trial by jury in English law was first published in 1898 in The History of English Law before the Time of Edward I co-authored by Frederic William Maitland and Frederick Pollock.

Maitland and Pollock authoritatively assert that “it is not to be denied that the few legal ideas and institutions which we can confidently describe as imported from Normandy, were of decisive importance. This is preeminently true of the transplanted Frankish inquest. It has in it the germ of all that becomes most distinctively English in the English law of the later middle ages, the germ of trial by jury….”

Searching for the precise moment that the first delicate shoot of the great tree of trial by jury broke through the soil of English jurisprudence is captivating and likely to lead the curious down a rabbit hole of research from which it could become impossible to escape!

Of greater value, however, to 21st Century Americans is analyzing why trial by jury is considered a critical facet of the jewel of freedom from government oppression, rather than when it achieved such exalted esteem.


When men form communities they soon come to recognize that the protection of property is the paramount consideration in drafting constitutions. Such legal protection, however, has never proved sufficient deterrent to a man or group of men from expropriating the property of others. This theft is often perpetrated by those elected or appointed to make or enforce the law and historically these legislators will go to great lengths to perpetuate their power and their influence over the property of their compatriots.

In light of this propensity of the powerful to deprive the governed of the full measure of their God-given liberty, the trial was developed as a way of providing those accused by government or by other men of violating the law of the land with a process by which guilt or innocence could be declared by a group of men equal to the accused in legal standing, in other words, a peer.

This equality of legal standing is the root of the word peer, in fact. The English word “peer” descends from the Latin word “par,” meaning “equal.”

Why would the equality of the accused and those tasked with taking the liberty of one of their fellowmen in their hands?

In his paper entitled “An Essay on the Trial by Jury,” Lysander Spooner sets out the necessity of placing a person’s future freedom in the hands of his peers, or political equals:

“To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,) from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government. This is done to prevent the government’s constituting a jury of its own partisans or friends; in other words, to prevent the government’s packing a jury, with a view to maintain its own laws, and accomplish its own purposes.

“It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of “the country” at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor—that is, with the government.”

Throwing in one’s lot with others is an instinct of mankind, apparently. In his book Politics, Aristotle famously proclaimed that “a social instinct is implanted in all men by nature.” The forming of commonwealths is, well, common, and in the earliest civil polities, the citizens were related by blood and by marriage and would live in close enough proximity to permit one man to witness the virtue or vice of his neighbors.

Living in these smaller societies, men would naturally align themselves against the inevitable usurpation of authority into the hands of a “ruling class.” This division is as old as our currently available historical records. In and around Athens, for example, the Men of the Hills (the poor) were constantly being burdened by the Men of the Plains (the generationally wealthy) and the Men of the Coast (merchants made rich by trade), and the power procured by the newly acquired wealth of the tradesmen was resented by the founding families who were accustomed to making and breaking the law as they would.

Herein lies the genius of the jury!

A man living in a community whose constitution protected his liberty from the whim and will of the powerful could count on his countrymen’s fair evaluation of the evidence of his guilt, regardless of the designs of despots or the conspiracies of the covetous. As Forsyth explains of the ancient German approach to trials, “Nearness of neighborhood in such cases was deemed sufficient to qualify a man for being a witness, for he could hardly in those times be ignorant of matters of common repute around him.”

That is the jury. The jury, if it is properly composed of compatriots, would thwart the theft of tyrants; it would prevent the punishment of the innocent; it would blunt the blow of the book of law thrown at one who took a misstep, but whose reputation is held in high regard by his countrymen; and it would be, again, if justly and impartially empaneled, the first and last barricade between a man and those who would abuse the law to make themselves his master.

The jury, composed of, as described above, men of “maturity;” would also be, as the Frankish law demanded, “good men and true;” men who would not, who could not be enticed by designing despots into sacrificing neither his neighbor’s liberty nor his own rectitude and integrity.


As a former attorney, I can testify personally and with great sadness that the traditional and true definition of a jury has been abandoned. Today, lawyers representing the government and those representing the accused purposefully prevent men with even a whiff of familiarity with the defendant from sitting on the jury that will be tasked with weighing the evidence presented at trial.

Remarkably and regrettably, this process of elimination is the exact opposite of the origin and purpose of the paneling of a jury of one’s peers. Today, a jury is not composed of one’s peers, but of strangers without even a scintilla of personal knowledge of the notoriety or virtue of the man whose life, liberty, and property they take into their hands.

When we speak of the threat to the rights protected by the U.S. Constitution, the right to a trial by a jury of one’s peers is rarely included in the discussion. This is not only odd, but it is a great disservice to liberty, to the timeless traditions of our ancestors, and to the hope that no tricks of tyrants and no pressure by the powerful could deny a defendant of the liberty that is his by nature and by gift of God.

For those skeptical of the description of jury selection set out above, consider the following explanation of the jury selection process and the desirable qualities of jurors published by the U.S. Courts on its official website:

“Each district court randomly selects citizens’ names from lists of registered voters and people with drivers licenses who live in that district. The people randomly selected complete a questionnaire to help determine if they are qualified to serve on a jury.

“When a jury is needed for a trial, the group of qualified jurors is taken to the courtroom where the trial will take place. The judge and the attorneys then ask the potential jurors questions to determine their suitability to serve on the jury, a process called voir dire. The purpose of voir dire is to exclude from the jury people who may not be able to decide the case fairly. Members of the panel who know any person involved in the case, who have information about the case, or who may have strong prejudices about the people or issues involved in the case, typically will be excused by the judge. The attorneys also may exclude a certain number of jurors without giving a reason.”

To put an appropriately fine point on the problem, the tyrannical transformation of the United States of America from a confederation of republics into a consolidated nation ruled by black-robed oligarchs has robbed men and women of the United States of not only their right to have their cases considered by their peers, but they have been deprived of even the opportunity of access to such a process! As J. Kendall Few chronicled in his two-volume treatise on trial by jury:

“The opposing concept advocated by the commercial coalition is a form of ‘courthouse aristocracy,’ that is the administration of civil justice by a select few, exclusive of the great mass of the population, on the assumption that the supposedly superior intellect and judgment of those in control will produce more desirable results.”

Could the case be any clearer? Could the goal of a trial by a jury of one’s peers be any more endangered? Has government purposefully prevented Americans from understanding why their ancestors ardently preserved the right to a trial by jury, even against the efforts of tyrants to destroy it? Have juries been judged too likely to prevent the powerful from exerting their will?


Finally, in due deference to the wisdom of our own Founding Fathers regarding the trial by jury as the sine qua non of a free society, I offer the following statements from that august generation on the subject:

South Carolina General Assembly (1751):

“We are firmly of the opinion that any person who shall endeavor to deprive us of so glorious a privilege as trials by juries is an enemy to this province.”

John Adams (1774):

“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”

Thomas Jefferson (1788):

“I consider trial by jury as the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution.”

Patrick Henry (1788):

“Trial by jury is the best appendage of freedom by which our ancestors have secured their lives and property. I hope we shall never be induced to part with that excellent mode of trial.”

John Dickinson (1788):

“Trial by jury is the cornerstone of our liberty. We must guard it with jealous circumspection against those new and arbitrary methods of trials which may imperceptibly undermine it. Trial by jury is our birthright, who in opposition to the genius of United America, shall dare to attempt its subversion?”

Alexander Hamilton (1788):

“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.”

James Madison (1789):

“Trial by jury in civil cases is as essential to secure the liberty of the people as tony one of the pre-existent rights of nature.”