Category Archives: Constitutional Law

Jeffs appeals. In his own handwriting.

This is a picture of Warren Jeffs, which was t...

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Had enough of Warren Jeffs, yet?

If you answered ‘no,’ you’re in luck. He’s doing his darnedest to stay in court, filing a pro se motion for a new trial in Texas.

Written in his own hand.

First off, let me just say: I’m reassured to see that someone out there has worse handwriting than myself, if just barely.

Second, and more to the point: Jeffs is arguing that he deserves a new trial on the basis that his First Amendment right to freedom of religion was violated by the original trial. To quote (if I can decipher):

The constitutional protection for religious faith and freedom of practice not being of full protection in previous trial, which constitutional religious protection of religious rights, Freedoms [sic], and religious practice should be upheld and supreme;

[…] This not being upheld, so openly, in previous trial, is legal grounds sufficient to rule in favor of defendant allowed a new trial[.]

Followed by quick Fourth Amendment appeal, almost as an afterthought:

[A]lso the court not allowing a full hearing on the suppression centered around illegal search[.]

Ironically, it’s probably the Fourth Amendment appeal that could help him most, not the First Amendment/Freedom of Religion appeal. Jeffs’ rights to practice his religion stop where they impede on the rights of another person, specifically, in his case, the rights of 15-year old girls to live free from rape or molestation. On the other hand, the evidence, he might argue, was collected by the government illegally.

The whole Texas case against Jeffs’ hinges on evidence collected after an anonymous call from a woman claiming to be 16-year old victim of the FLDS marriage system. Receiving the call, Texas justice snapped into action, raiding the compound and collecting, in addition to upwards of several hundred children, records and recordings that would become evidence of Jeffs’ marriage to underage girls.

However, it turns out that the 16-year old caller had long left her teens…and her twenties, and was actually 33-year old Rozita Swinton in Colorado Springs, Colorado who had never even been a member of the FLDS church.

If the anonymous call wasn’t legitimate, does that mean that evidence collected wasn’t permissible in court, either? Now were getting into classic “search and seizure” territory, and that’s the place that Jeffs should be going, not towards appeal on religious freedom grounds. He’ll find no sympathy in his rights to practice a religion that the rest of America looks at as abusive to teenage girls. On the other hand he may find some traction if he argues that the government inappropriately barged into his home and took evidence against him without a valid warrant.

And finally, for Pete’s sake, get an attorney! If Casey Anthony can incur the wrath of a whole nation of daytime t.v. watchers just because of people like this woman (and some really bad facts, too) and still get off because of a competent defense attorney (this guy), then even Warren Jeffs could do better than representing himself. Because when you go pro se, you don’t get a lesser standard, you don’t get any extra help from the judge, and you don’t get any extra sympathy from the world, either. You just look incompetent, kooky, and arrogant.

Frankly, there is a whole army of defense lawyers out there who would love to make their career fighting for your First and Fourth Amendment rights, no matter how repugnant your lifestyle seems to them (or how many times the judge says, No, you can’t appeal again). You might as well let them. It can’t hurt you. Further, it’s a lot easier to blame your counsel on appeal when it’s another attorney, not yourself.

And, at the very least, they would type the motions, and that would make it easier for the rest of us to read.

[Hat tip to Ben Winslow]

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“One of these two Mormons could be our next president…the other is Jon Huntsman.”

In the arena of both “funny” and “perhaps too true,” The Colbert Report had a segment on Mormons. Click on the picture below to watch it.

A few highlights to watch for:


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“Unconstitutional,” says the 11th Circuit.

Unconstitutional”

The news making its way through the legal blogosphere, and the online news outlets, is that the 11th Circuit has ruled the individual mandate part of the Patient Protection and Affordable Care Act (the “Act”) is unconstitutional.

Let me underscore that: only the individual mandate was found unconstitutional. The rest of the law has been, for now, left untouched.

The Washington Post called it one of the “most significant legal setbacks to the Obama administration’s health-care overhaul.”

If  you’re short on time, read at least the excerpts of the 2-1 decision  (of a very lengthy opinion) over at the Volokh Conspiracy. In short the Act is:

[…] the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional.

Etc, etc…and, here’s the part the right will love:

This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. “

Too bad this didn’t come out yesterday. The Iowa Republican debate would have been that much more juicy with the ruling hanging in the air, even with the Supreme Court still in the Act’s future.

If  you have more time, here are a few more commentaries you might look at:

From Utah Political Summary’s Curt Bentley:

One of the more odd things about the majority opinion — at least in my humble opinion — is its use of an overinclusiveness argument.  Over/underinclusiveness is a consideration in individual rights cases, but, in my opinion, has no real role to play when it comes to evaluating a Congressional action under the Commerce Clause.  The over/underinclusiveness analysis is designed to get at the sincerity of a legislature’s expressed motivations.  For example, if a legislature regulates more broadly (or narrowly) than necessary to solve a particular problem, one can infer that it may be dislike for a certain group, rather than a desire to solve the stated problem, that motivates the legislature action.

Jonathan Turley, expressing concerns about federalism issue the Act affects opined that

I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.

In other words, if the feds can do this, what can’t they do? (And, I would add, what does that mean for the 10th Amendment?

Ilya Somin, also at Volokh, noted that this wasn’t a partisan decision:

Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional.

Jonathan Adler says “Hear, hear!

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“The Constitutional Origins of the American Revolution” by Jack P. Greene

Map of the British colonies in North America, ...

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Time for a segment of “A moment in obscure history.” This time, we’re looking at the constitutional dispute that resulted in the American Revolution.

Since sometime in 2009, the Tea Party movement has lead a revival of interest in the US Constitution.  Senator Mike Lee summed up why the increased interest of late during the release of his new book , The Freedom Agenda: Why a Balanced Budget Amendment is Necessary to Restore Constitutional Governmentmany of our problems today stem from when the “federal government started ignoring those Constitutional boundaries about what Congress is supposed to be doing.”

Suddenly, propelled by Glenn Beck, books like The 5000 Year Leap , a right-wing conservative’s guide to the making of the federal constitution, “leaped” to the Amazon best seller list (it’s now listed at 2,615 overall and the top 100 under “Politics”). While it provides only a simple, somewhat white-washed, and superficial vision of the US Constitution, no amount of increased attention in our federal constitution is too little.

“Where does the Constitution,” goes the rallying cry, “give the President and Congress the authority for the laws they are passing?”

Neither the revival, however, nor questioning the constitutionality of the federal laws, is unique in history. In fact, it was a dispute over the constitutionality of a central government’s actions that lead to another major event in our country’s history: the American Revolution.

"The fruit of half a century of research and reflection, Greene's masterly book restores legal pluralism and constitutional controversy to their proper place among the causes, course, and consequences of the American Revolution." - David Armitage, Harvard University

In his short, and dense, review of the century and a half leading up to the American Revolution, The Constitutional Origins of the American Revolution, Jack P. Greene postulates and examines that evidence that the American revolution did not erupt purely as a simple dispute over “taxation without representation,” but rather that such rallying cries emerged after decades of disagreement on who justly had the right to legislate for the American colonies

Whether the king-in-Parliament, the ultimate source of statute law in Great Britain, could legislate for British colonies overseas was the ostensible question in dispute, but many other related and even deeper legal issues involving the nature of the constitution of the empire and the location of sovereignty within the empire emerged from and were thoroughly canvassed during the debate.

(From Constitutional Origins, p. 1)

It was only after the conflicting opinions of metropolitan Britain and that of the colonists failed to be reconciled that open warfare broke out in 1775, and it was why the decision to broach the topic of and ultimately pursue independence from Great Britain was so cautiously and tentatively pursued. The colonists considered themselves British subjects, citizens, not vassals and secession was not a choice they relished.

They saw themselves as part and partial of the British Empire. Indeed, as one Virginia lawyer at the time phrased it, they might be “subordinate to the Authority of Parliament,” but only “in Degree” and “not absolutely so.” (p.78).  As free men and

As free-born Britons, the colonists assumed, they could not be subjected to any but what Bland referred to as “a constitutional Subordination” to the parent state.

(From Constitutional Origins p. 78)

This political cartoon (attributed to Benjamin...

This political cartoon (attributed to Benjamin Franklin) originally appeared during the French and Indian War, but was recycled to encourage the American colonies to unite against British rule. From The Pennsylvania gazette, 9 May 1754. Abbreviations used: South Carolina, North Carolina, Virginia, Maryland, Pennsylvania, New Jersey, New York, and New England. This is a somewhat odd division: New England was four colonies, and Delaware and Georgia are missing. Image via Wikipedia

The nature of this “constitutional Subordination” was such that the colonists readily accepted the authority of Parliament in certain areas, but balked at the idea of taxation, seeing it as beyond Parliament’s authority. “Indeed, considerable evidence suggests that the colonists’ strong initial impulse was to exclude Parliament from all jurisdiction over the domestic affairs of the colonies.” (p.79) Like our modern idea of the federal government, the states concern themselves with their domestic activities while the federal government’s most basic responsibility is national security.

Interestingly, from a historical perspective, we start to see the first signs of federalism in the disputes between the colonies and the home country.

Further,

[s]o long as Parliament confined its regulations to “restrictions on navigation, commerce, or other external regulations,” they reasoned, the ‘”legislatures of the colonies” would be “left entire”and “the internal government, powers of taxing for its support, and exemption from being taxed without consent, and [all] other immunities which legally belong[ed] to the subjects of each colony agreeable to their own particular constitutions” would thereby, according to the “general principles of the British constitution,” remain “secure and untouched.”

Sound familiar? If you hear the foreshadowing of the federalism that would be later inscribed into the US Constitution, there’s a reason. It was rooted in the relationship between Great Britain and its far-flung colonies.

If, during the last couple years, you’ve found yourself at all more interested in the federal constitution and the limitations it places on the federal government, I urge you to look at the role constitutions, and constitutional disputes, played in leading to our own American constitution.

It’s a great read, if a bit scholarly, and evidence that whether a law is constitutional is not a new question, but actually may be  at the very root of the American experiment and its origins in the American revolution. The American revolution was not, nor is it today, an obscure moment in history, but rooted in obscure legal disputes between the colonies and mother country, long predating the Stamp Acts and the Boston Massacre.  It began  as a constitutional dispute between the central government in London and the British colonies in America.

Understanding why the colonist went to war, how they got there, and the legal battles that preceded the battlefields can be useful in understanding why the Founders drafted what they did–into the Declaration of Independence and into the federal constitution–and what those words mean to us now, even in the midst of our own constitutional disputes.

Pick up The Constitutional Origins of the American Revolution by Jack P. Greene from Cambridge University Press, 2011.

(h/t Patrick Charles, who introduced the book to me, and  Conor Friedersdorf of The Atlantic)

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In case you didn’t know…now you do: How laws are made.