The 14 Day Clause

(By Andrew MacKie-Mason)

You have the right to remain silent. Anything you do say may be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney one will be provided to you.

Most people, at least those who have ever watched a cop show, are probably familiar with the preceding warnings. For those who don't know, they come from the Supreme Court decision in Miranda v. Arizona, which said that the police must make sure people are aware of their rights so that police can't intimidate them into confessing.

On Wednesday the Supreme Court issued an opinion in Maryland v. Shatzer, which sought to explore exactly where Miranda ends. (SCOTUSBlog has coverage here.) The issue is with people who have requested a lawyer. Under Miranda and its follow-up cases, someone who has asked for a lawyer cannot be interrogated any longer until they have actually spoken to that lawyer. In other words, the police can't try to get someone to change their mind about wanting a lawyer.

In Shatzer, however, the person being interrogated had not be consistently held in custody. In fact, the interrogation happened about three years after Shatzer had asked for a lawyer. The government argued that, because there was a break in custody, the police should be allowed to interrogate Shatzer (understanding that when they approached him the second time, he waived his Miranda rights.)

The Court agreed. Unanimously. The opinion held that with a substantial break in custody, the police can restart an interrogation of a suspect who has previously asked for a lawyer.

The more interesting part of the judgment was only agreed to by seven of the nine justices. The seven justices agreed to define a specific time frame: once a suspect has been out of police custody for fourteen days, the police can interrogate them. How did the Court arrive at this magic number? Orin Kerr at Volokh puts it this way:

As far as I can guess, the only reason 14 days was chosen is that it’s easy to remember and seemed in the right ballpark. Jews started measuring seven days as a time period in the 6th Century BC; the Romans then adopted it, measuring time in 7-day weeks; and two-thousand-odd years later, on February 24, 2010, a majority of the Justices on the Supreme Court though that one of those was too short, three was too long, and two seemed about right. And how did the Justices know that 14 days would be about right? Based on their extensive experience being arrested, perhaps? Presumably not. But no matter. Fourteen days seemed about right, and so the 14-day rule became the law.

In other words, the Court thought it would be good to have a number, and so settled on two weeks. But why did they need a specific rule? According to Kerr:

The police need clear rules that answer the question with certainty. It doesn’t work to give the police complex legal tests to apply on the fly: They need clear rules to know what they can and cannot do.

Fair enough. We want to be able to write handbooks for police; we don't want police officers to have to go to law school. However, is it the Court's job to provide those clear rules for police? That's the problem I have with the entire line of Miranda cases. It's the Court's job to determine when the police have violated a suspect's constitutional rights; it's Congress's job to provide the police with clear rules to guide them.

In other words, instead of requiring a specific Miranda warning, the Court could have said that there is a presumption that defendants don't know their rights, and if they don't know their rights they can't be interrogated. This would have left it to Congress to determine how to best ensure that suspects know their rights, whether it be spoken warnings, written statements, etc. In Maryland v. Shatzer, the Court could have said that police can begin questioning again once a suspect has been out of custody long enough to eliminate all feelings of coercion. If Congress thought that the police needed a clearer rule, Congress could have provided.

Throughout the entire line of Miranda cases, the Supreme Court has been far to eager to provide clear rules to the police and has done so through turning itself into a quasi-legislative body rather than a judicial one.

Texan Evolution

(By Andrew MacKie-Mason)

ThinkProgress has the results of an interesting poll conducted in Texas. According to the poll, 51% of Texans do not believe in the evolution of the human species and 60% of Texans either believe that humans and dinosaurs lived at the same time or aren't sure if they did or not.

Something to mull over.

Sex Offender Registration--Retroactive?

(By Andrew MacKie-Mason)

On Wednesday, the Supreme Court heard oral arguments in Carr v. United States. The basic issue is whether Congress can retroactively apply registration laws to sex offenders convicted before the law was passed. SCOTUSBlog has a preview of the oral argument.

Here's the timeline:

• 1994: Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act which required states to create sex offender registries.

• 2004: Thomas Carr was convicted of first-degree sexual abuse in Alabama and registered as a sex offender in Alabama.

• Late 2004: Thomas Carr moved to Indiana and did not register as a sex offender in that state.

• 2006: The Adam Walsh Child Protection and Safety Act, which made it a crime for sex offenders to travel without re-registering in the new state, became law. The act gave the Attorney General the authority to decide whether the registration requirements would apply retroactively to sex offenders convicted before the act was passed.

• February 2007: The Attorney General issued an order making the Adam Walsh act apply retroactively to sex offenders convicted before it passed.

• July 2007: Thomas Carr's failure to register in Indiana was discovered and he was convicted for violation of the Adam Walsh Act.

Basically, Carr was in violation of the Adam Walsh Act from February to July 2007. In his appeal, his main argument is that the Adam Walsh Act violates the Ex Post Facto clause of the Constitution. Ex post facto refers to laws that apply retroactively, and they are (mostly) forbidden by the Constitution. There are many exceptions, however.

My opinion is that Carr's arguments will (and should) fail. The Supreme Court has previously held that requiring registration of sex offenders convicted prior to the passage of relevant laws is not a violation of the Ex Post Facto clause because registration is not a punishment, it is merely a civil requirement. Then, also, creating penalties for failing to register does not raise an ex post facto issue because the person is being punished for failing to register, an act that takes place after the law is put in place, not for the original crime which makes them register.

The government could not have arrested Carr for failing to register the day after the Attorney General said the law applied to him. He must be given a reasonable time to register. However, given the fact that he could legally be required to register, he can also be legally punished for failing to register within a reasonable amount of time after the law was changed.

New Associate Justice?

(By Andrew MacKie-Mason)

There's been a lot of speculation lately about the possibility of a Supreme Court vacancy this spring. Some people are even suggesting there might be two. I tend to think that it's ridiculous to think there might be two vacancies, if only for the fact that Justices who didn't have to retire would be hesitant to push so much change into the Court at once. However, the idea that Associate Justice John Paul Stevens might step down this spring is very plausible.

So who will succeed the 80-year-old Stevens on the bench? Tom Goldstein, the publisher of SCOTUSBlog, posted a very nice roundup of the candidates. I won't try to go over everything he said; if you're interested, read the entire article. I will, however, briefly introduce each of the people he mentioned. Hopefully, when spring comes around and these names start becoming more common place you'll at least have some idea who people are talking about.

1. Solicitor General Elena Kagan

General Kagan has previous served as Associate White House Counsel for President Clinton, Dean of Harvard Law School, and a Professor of law at both Harvard and Chicago. She is the first female Solicitor General of the United States. Interestingly, if appointed and confirmed, Justice Kagan would the the only current Justice to have not first served on the Court of Appeals. Though she was nominated by President Clinton to the DC Circuit, the Republican leadership killed her nomination.

2. Judge Diane Wood (Court of Appeals for the Seventh Circuit)

Judge Wood is, according to Goldstein, one of the most (if not the most) respected liberal judge currently sitting. She was one of the first women to clerk for a Supreme Court Justice, has worked in the Department of State, the Department of Justice and in private practice, as well as teaching law at Georgetown and the University of Chicago. She continues to teach at Chicago in addition to her duties on the Seventh Circuit, to which she was nominated by President Clinton.

3. Judge Merrick Garland (Court of Appeals for the DC Circuit)

Born in Chicago, Judge Garland is also a highly respected liberal judge. He has a long record of work at the Department of Justice in law enforcement as well as some time in private practice and teaching at Harvard Law. He was also appointed to his current seat on the DC Circuit by President Clinton.

4. Secretary of State Hillary Clinton

Born in Chicago, Secretary Clinton has been First Lady, a Senator from New York, and now the Secretary of State. Not considered a very likely pick, but a possibility nonetheless.

5. Professor Cass Sunstein (Harvard Law)

Previously a professor at Chicago Law School, Professor Sunstein is on leave from his post at Harvard Law to work as the Administrator of the White House Office of Information and Regulatory Affairs. In addition to his jobs at Chicago, Harvard, and the OIRA, he has worked in the Department of Justice and as a visiting professor at Columbia. Professor Sunstein is a believer in libertarian (soft) paternalism and judicial minimalism.

6. Attorney General Eric Holder

General Holder has worked in the Department of Justice under multiple administrations, culminating in his current post as its head under President Obama; he is the first African American Attorney General. A graduate of Columbia (A.B., J.D.), he is the first candidate on this list for whom I've been unable to discover a Chicago connection. In addition to his various jobs in the Department of Justice, he's served as a judge for the Superior Court for the District of Columbia, a position from which he stepped down to accept an appointment from Bill Clinton as the US Attorney for the District of Columbia. General Holder also spent a few years during the Bush Administration working in private practice and then serving as legal counsel for Barack Obama's presidential campaign.

7. Governor Deval Patrick (Massachusetts)

Governor Deval has previously served in the Clinton Department of Justice (as an Assistant Attorney General), and also has a background in business administration. Born in Chicago (back to our Chicago connections) he's a graduate of Harvard (B.A., J.D.)

8. Governor Jennifer Granholm (Michigan)

Governor Granhom is a graduate of Harvard Law who, before serving as Governor, was the Attorney General of Michigan. Interestingly, if appointed to the Court, she would be (as far as I know) the only sitting Justice born outside the United States. Granholm was born in Vancouver (Go Olympics!--and the Stuff I Just Learned blog post about the Olympics). (No Chicago connection.)

9. US Senator Amy Klobuchar (Minnesota)

Senator Klobuchar is a graduate of Chicago Law. She has served as a county prosecutor, legal adviser to Vice President Mondale and has worked in private practice.

Well, that's the list. I hope it's interesting to see the people who could possibly be tapped for the next available seat on our nation's highest court. Of course, it also should be interesting to note that seven out of the nine are linked in some way to Chicago (either the city or the university) and many in some way to President Clinton.

Anyways, when one of these people is being talked about in the spring, you saw them here first!

Spying via Webcam

(By Andrew MacKie-Mason)

Above the Law had a story (Eugene Volokh also covers it) about an extremely scary lawsuit. The suit is being brought by a high school student in Pennsylvania against his school district for allegedly using his school-issued laptop to spy on him. According to the student, the school used images captured from the built-in webcam on his school-issued laptop as proof to punish him for "inappropriate behavior at home."

Now, to be fair, these are just allegations and there's some reasonable speculation that they might not be true: Above the Law later reported that it's possible the student in question posted pictures (taken by his computer webcam) to a publicly accessible Facebook page (that's why you should use those handy privacy settings). The school could have gotten the photos from the Facebook page rather than from accessing the student's computer illegally.

Still, this promises to be an interesting case for student privacy. The school district has admitted it had the capability but denied any wrongdoing, a federal judge has ordered them to stop accessing students' webcams, and the FBI and the local US Attorney have launched an investigation. And for those who are interested, Orin Kerr at Volokh has put up an analysis of the various statutory and common law claims made by the student in his lawsuit against the school district.

All in all, maybe it's time to cover that built in webcam with duct tape.

Can Students Insult Teachers on Facebook?

(By Andrew MacKie-Mason)

H/T to Above the Law for pointing me to this New York Times article. Apparently, a high school senior in Florida was frustrated by her English teacher. From home, she created a Facebook page entitled "Ms. Sarah Phelps is the worst teacher I’ve ever had" and criticized the teacher. She took the page down on her own, but was later suspended for "cyberbullying."

First of all, "cyberbullying" is one of the more ridiculous concerns of the current overly protective society. While behavior that is actually "bullying" should be punished whether it is done in person or over the internet, there is no need to create a special category for online bullying.

Usually, cyberbullying can be dealt with in one simple way: people shouldn't get involved in the internet so much that they take it personally. Children should be supervised until they learn how to understand the context of internet communication, but it's sad that a teacher, presumably an adult, would take such a minor criticism on the internet so seriously. It's true, the New York Times doesn't post any of the other comments made on the Facebook page. Perhaps some of them were mean spirited. However, if "Ms. Sarah Phelps is the worst teacher I've ever had" is indicative of the character of the page, it's a pretty lame page. I mean, the student even included an honorific title (Ms.) for the person she was supposedly bullying. As bullying goes, this is about equivalent to the big fifth grader saying to the first grader: "Excuse me kindly, Mr. Robertson, but I do believe your britches are untied. How terribly embarrassing for you! Toodles!"

Finally, students have the Constitutionally guaranteed right to criticize their teachers. A student should be able to tell a teacher to their face "You're the worst teacher I've ever had," let alone take the rather lame, cop-out way and create a Facebook page about it. If our society is at the point where students can get in trouble for being "disrespectful" to a teacher merely because that teacher is an adult, we're in a very bad place.

UPDATE 5/27/11: minor prose corrections.

The Similar Rationales for Israel and Nazi Germany

(By Andrew MacKie-Mason)

First of all, this is not a post about the policies or actions of either Nazi Germany or Israel. It's instead about what I find similar about the rationales behind their formations.

In my philosophy class we were briefly considering the debate between homogeneous states and heterogeneous states; that is, states dominated by one primary culture and melting pot states, where multiple cultures thrive and are accepted. Of course, neither exists in the absolute: no state lacks all counter-cultures, and no state has perfect acceptance of different cultures without one attaining some measure of dominance. However, the terms are useful for considering the subtler shades that actually do occur.

There are legitimate arguments for both types of society. For many, a homogeneous state is preferable because there is less internal strife: the more people agree, the less they argue over. Small towns, for instance, are dominated by a single joint identity and (stereotypically, at least) tend to have less internal strife than large urban, heterogeneous centers). Other people prefer heterogeneous states because they see diversity as an important value. For these people, learning from other cultures enriches society as a whole and helps people to grow.

It's in this debate that we can see a similarity between Nazi Germany and the Jewish Israeli state created in response to the Holocaust. Nazi Germany is one of the more radical experiments in homogeneity. The root cause of its racial, genocidal purges was a desire for cultural "sameness" and the belief that a united Germany would be a strong Germany, capable of taking its rightful place in the world.

Israel was formed because European Jews, long persecuted, wanted a state of their own. They wanted a state not where their religion would merely be tolerated, but where they could truly have a state-wide Jewish culture. While they did not seek to exterminate all non-Jews, they sought the same goal: a homogeneous culture, free from internal strife and characterized by a strengthening of their chosen way of life.

Though with different methods, the founders of Israel and the leaders of Nazi Germany had (at least) one goal in common.

The International Court of Justice: An Introduction

(By Andrew MacKie-Mason)

As a followup to my introduction of the International Criminal Court (ICC), I thought it would be appropriate to do a similar post for the International Court of Justice (ICJ/CIJ).

Unlike the ICC, which is an independent organization, the ICJ is a part of the United Nations. According to the ICJ's history page, it is located in the Hague (Netherlands), not New York City. It handles disputes between states based in international law and gives advisory legal opinions to other parts of the UN. Its fifteen judges are elected by the member states of the United Nations and the Security Council.

The ICJ can have jurisdiction over a contentious case (a dispute between two countries) through only three means:

• Two countries agree to have their dispute resolved by the ICJ.
• Two countries previously engaged in a treaty which includes a clause granting the ICJ jurisdiction over treaty disputes.
• Both countries have granted the ICJ compulsory jurisdiction over the type of case in question.

In total, the ICJ has heard 146 cases in the past 63 years.

One other interesting factoid about the ICJ: when a party to a case does not have a judge of its nationality sitting on the court, it may choose a judge ad hoc. Thus, all parties will have a judge from their country sitting on a case, whether it be a regularly appointed judge or a special appointee.

Like the ICC, the ICJ is run by a President (and Vice-President) and a Registry.

Female Tribulations: Not Enough Men On Campus

(By Andrew MacKie-Mason)

Orin Kerr at the Volokh Conspiracy pointed me to a New York Times article about the under-enrollment of men at American institutions of higher education.

Basically, the point of the article is that there need to be more men in college...because the lack of men is damaging to women. Of course, when there's under-representation of women, it's because of discrimination, or because women aren't given the same opportunities. But if there are fewer men in college, let's not talk about the fact that our society tells boys that excelling in school is a bad thing. Let's not talk about how men are taught to pursue athletics instead of education. Instead, let's talk about how women can't find a date.

The story is by Alex Williams. (I checked, due to the androgenous name: Alex is a man.) It's either disturbing or the most convincingly disguised piece of satire I've ever read.

The story has such gems as:

In terms of academic advancement, this is hardly the worst news for women — hoist a mug for female achievement. And certainly, women are primarily in college not because they are looking for men, but because they want to earn a degree.

But surrounded by so many other successful women, they often find it harder than expected to find a date on a Friday night.

And:

Thanks to simple laws of supply and demand, it is often the women who must assert themselves romantically or be left alone on Valentine’s Day, staring down a George Clooney movie over a half-empty pizza box.

And:

Even worse, “Girls feel pressured to do more than they’re comfortable with, to lock it down,” Ms. Lynch said.

Here it sounds like we should call the police:

Women on gender-imbalanced campuses are paying a social price for success and, to a degree, are being victimized by men precisely because they have outperformed them, Professor Campbell said.

Victimized? Has this led to an increase in campus rape? Here's what Alex apparently means by "victimized":

“A lot of guys know that they can go out and put minimal effort into their appearance and not treat girls to drinks or flatter them, and girls will still flirt with them,” said Felicite Fallon, a senior at Florida State University, which is 56 percent female.

The girls are victims...because the guys aren't buying them drinks. Right.

I encourage you to read the article for yourself, as there's a lot more hilarity than I've quoted here. Let me know in the comments if you think it's serious or tongue-in-cheek, or even if you agree that the shortage of men on campus is primarily a problem for women.

EDIT: Updated a bit, 12/7/11

Scalia and the Right to Secede

(By Andrew MacKie-Mason)

An interesting question of American Constitutional law (and Civil War history) is whether a state has the right to secede (withdraw) from the United States of America. I believe states do not have that right, but that's perhaps a discussion for another day. One way to answer the question is to say "the Civil War set a precedent that it's not alright for states to secede, since the Union won the war."

It seems to me (and to Professors Eugene Volokh and Ilya Somin) that this isn't a proper way to look at the Civil War. Can a war really set precedent? Do we want our constitution to be defined by the successes of one army or another army?

Well, some people are suggesting that Justice Scalia is already on the record about this issue, even though there's never been a case testing the legality of secession. Eric Turkewitz at the New York Personal Injury Law Blog posted a letter his brother received from Justice Scalia about the issue. The brother had written for advice about a screenplay he was working on dealing with the secession of Maine and a lawsuit over the issue reaching the Supreme Court. Scalia responded as follows:

Dear Mr. Turkewitz:

I am afraid I cannot be of much help with your problem, principally because I cannot imagine that such a question could ever reach the Supreme Court. To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, "one Nation, indivisible.") Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.

I am sure that poetic license can overcome all that -- but you do not need legal advice for that. Good luck with your screenplay.

Sincerely,
Antonin Scalia

Some people, including Eric Turkewitz and Orin Kerr, think this means that Scalia has decided that the question of secession was settled by the Civil War. Above the Law even suggested that Scalia might have to recuse himself if such a case ever came to the court. Is that was Scalia really said, though?

Looking at the exact wording of the letter, "To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede." While this does indicate that Scalia is probably leaning towards saying that secession is unconstitutional, it doesn't represent an unequivocal laying down of a position. Scalia (carefully, perhaps) couched the statement within "if there was any constitutional issue resolved by the Civil War." And that's a big "if." Attorneys for states seeking secession could (and should) argue that the Civil War had no power to resolve constitutional questions at all. Scalia could be convinced of that and rule in favor of a right to secession without contradicting his statement in the letter.

So, pencil Scalia in as a vote against secession, but I think it's a mistake to treat this letter as a defining part of the Justice's beliefs.

All Terrorists Look Alike?

(By Andrew MacKie-Mason)

Think Progress had a great article the other day. They report on Fox & Friends participant Steve Doocy saying that all the people who try to blow up planes look the same. Of course, it's a ridiculous claim, as Think Progress pointed out. They then provided a graphic comparison of the two most recent people alleged to have attempted terrorist attacks against America. On the left is Umar Farouk Abdulmutallab, the attempted Christmas Day bomber and on the right is Richard Reid, the attempted shoe bomber.

Jurors: No Tweeting

(By Andrew MacKie-Mason)

The Blog of Legal Times (the BLT) had an interesting post on Monday. Apparently, a committee of the Judicial Conference of the United States endorsed a set of model jury instructions. (Model jury instructions are suggestions to trial judges. They are encouraged to implement them, but do not have to.) Apparently, a major problem in federal trials has been jurors using new technology in order to research a case. That's an issue in the criminal justice system: many of the courtroom procedures are specifically designed to limit the information the jury gets to what the judge deems appropriate. If jurors do their own research, judges lose control over the flow of information.

All in all, the restrictions are reasonable. Excerpts from the jury instructions (as reported in the BLT post linked to above) follow:

(During the case): You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website...

(During deliberations): You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service...

You may not use a cell phone. Or an iPhone or Blackberry, because those clearly aren't cell phones. Oh, you also can't text message, because that's clearly not covered by the "no cell phone rule."

If you deconstruct the grammar in the first bit, it says you may not communicate "on your cell phone" (fine), "through email" (also fine), "through Blackberry" (what does that mean? Really? What does that mean?), "through iPhone" (again...what?).

I also like how it bans both blogs and websites. Just to make sure we cover all those blogs out there that aren't on websites...

The second part is a bit better, but still extremely redundant. No cell phones, or smart phones, or iPhones or Blackberries. How about just "no cell phones"?

I think it should considered a common sense rule that one does not make rules regulating technology unless one actually understands that technology. The Judicial Conference seems to disagree with me, though.

How a Bill Becomes a Law

(By Andrew MacKie-Mason)

One of my friends runs a pretty sweet blog called "Stuff I Just Learned" with interesting facts and tidbits. I thought this post would be appropriate to refer to here: how a bill becomes a law. Yes, it includes the Schoolhouse Rock video.

State Sponsored Safe Drug Use?

(By Andrew MacKie-Mason)

The Court, a blog about the Supreme Court of Canada, had an interesting article a week ago about safe injection sites in Vancouver. Basically, the idea of these sites is that drug addicts are going to continue using drugs, and there's little the police or the system can do to stop them. However, what's more dangerous to them than the use of the drugs is the risk of disease from doing drugs in unsafe ways: sharing a needle with someone who is HIV positive, etc.

So, Vancouver decided to establish a clinic that would supervise addicts in their use of drugs so as to ensure that they don't overdose and that they pursue their habits as safely as possible.

The article was about a case testing these clinics in terms of Canadian federalism, a topic with which I am woefully ignorant. The very existence of such a clinic is an interesting topic to consider, however. Is the benefit gained from preventing the spread of disease and lowering the risk of overdose worth the potential harm to society of possibly encouraging the spread of drug addiction?

I don't know, but it's certainly something to think about as part of the larger push for legalization of drugs.

The Intersection of Rights

(By Andrew MacKie-Mason)

One of the trickiest problems in a rights-based society is figuring out what to do when rights collide. I have the right to say what I want, but you have the right to not be slandered. How do we balance those rights?

There's obviously a lot of jurisprudence (in any society) about this issue, and I'm not even going to try to summarize it. I did want to address one oversimplification that comes up often, though. In the common phrasing, it goes something like "my right to move my fist ends at the tip of your nose." In other words, we can exercise our rights only so long as doing so does not interfere with anyone else's rights.

I was reminded of this by a recent reading on the French Revolution, entitled The Declaration of the Rights of Man and Citizen, passed by the French National Assembly on 26 August, 1789. My version comes from volume 2 of the Western Tradition, Fifth Edition, edited by Eugen Weber. Section 4 reads:

Liberty consists in the power to do anything that does not injure others; accordingly, the exercise of the natural rights of each man has no limits except those that secure to the other members of society the enjoyment of these same rights. These limits can be determined only by law.

Most of this sounds similar to what's above: we can do whatever we want, so long as we don't interfere with the wishes of others. However, it's the last sentence, seemingly added only as an afterthought, that is the most powerful. "These limits can be determined only by law." Without that, what comes before (and the entirety of the everyday nose example) is practically meaningless.

There are so many times that the delineation of where rights interfere with each other is unclear. Most people would say that by punching you, my right to do as I please interferes with your right to not be harmed. But couldn't we just as easily say that your insistence on not being harmed interferes with my right to do as I please?

If two people are given a choice as to which of them will die, what does the "liberty to not do harm" argument tell us? Neither of them may demand that the other sacrifice himself, because in doing so the survivor would be exercising their right to life over the other's right to life.

Those simple words, these limits can be determined only by law, make all the difference. They make the principle of rights without interference just that: a principle, the exact contours of which will be explored by legislatures and judiciaries. Figuring out exactly how to deal with this problem is a central issue that, I would venture, every society grapples with and never quite solves. Is perfection possible? Or is human society doomed to never be able to satisfactorily decide when one right ends and another begins?

The International Criminal Court: An Introduction

(By Andrew MacKie-Mason)

Formation

The International Criminal Court (ICC) is one of the most fascinating phenomena of international law. It is an attempt to deal with the dilemma of war crimes, crimes where there are often few states with jurisdiction to punish them and fewer states with an interest in doing so. Prior to its creation, war crimes or crimes against humanity were dealt with by ad hoc (created for a specific purpose) tribunals. Examples include the International Military Tribunal at Nuremburg (for prosecuting Nazis in the wake of World War II), the International Criminal Tribunal for Rwanda, and the International Criminal Tribunal for the former Yugoslavia. These tribunals were all designed, created, and executed in response to a specific conflict. This system, while somewhat effective, left international law without a legitimate, standing court and thus without a standard set of laws.

In response, many countries got together to form the International Criminal Court. The Court was formed by the Rome Statute, and 110 states have now ratified that treaty while another 38 states have signed but not ratified it. The United States is not a party to the Rome Statute, and Julian Ku at Opinio Juris reports that the Obama Administration has decided not to seek American participation in the ICC.

Jurisdiction

The Rome Statute (the text of which can be found here) gives the ICC jurisdiction over genocide, crimes against humanity, violations of the law of war, and crimes of aggression. The parties have not yet adopted a definition of aggression, however, though the parties are in the middle of a review session to (in part) address aggression. This review process will end in June.

In general, the ICC is considered complementary to national courts, which means that crimes tried in national courts will not be also tried in the ICC unless the proceedings in the national courts are clearly not genuine and designed merely to shield the perpetrator from justice. An explanation of this principle from the court itself can be found here.

Structure

The ICC is administered by the Presidency, consisting of one President and two Vice-Presidents. All three are judges of the court, elected by their fellow judges.

Prosecutions are handled by the Office of the Prosecutor. Like prosecutors in national courts, the ICC Prosecutor handles information provided by informants and decides whether or not to charge potential defendants. After charging, the prosecutor handles the cases. ICC cases are generally named "The Prosecutor v. [Defendant]".

The Registry is the administrative wing for the non-judicial parts of the ICC, and also oversees independent offices like Office of Public Counsel for Victims and the Office of Public Counsel for Defence.

The judicial part of the court is divided up into the Pre-Trial Division, the Trial Division, and the Appeals Division. There are currently seventeen judges on the court from as many countries.

Punishment

The Rome Statute allows the ICC to punish offenders in three ways: imprison them (either a term up to 30 years, or for life), fine them, or seize any property derived directly or indirectly from their crimes.

The ICC has detention facilities in a Dutch prison complex. They do say that prisoners have access to computers to prepare their defence (I might as well use the British spelling, since Americans are to "superior" to join the court). I doubt, however, that the prisoners get to browse YouTube (or read Source4Politics, for that matter, as I know they want to.)

Commerce Clause & Originial Intent

(By Andrew MacKie-Mason)

One major schism in constitutional interpretation is the originalism vs. living Constitution debate. Originalists (like Justice Scalia) think that the Constitution as ratified had a certain meaning, and that meaning is just as valid now as it was over two hundred years ago. Living Constitutionalists, however, think that the Constitution was purposefully made flexible because it was meant to survive for hundreds of years.

Originalists especially complain about modern interpretations of the Commerce Clause, because it is this clause that has authorized much of the expansion of government throughout American history. Often, originalist arguments against an interpretation of the Commerce Clause go something like this: "back in the late 18th century, the founders would have never thought the Commerce Clause would cover ".

This argument, however, is extremely weak. The idea that only those industries which operated at the interstate level at the time of the founding can be covered by the Commerce Clause is ludicrous. The framers did not lay out specific industries which could be regulated by the federal government specifically because they recognized that as the American economy changes, more and more industries operate on an interstate level. The Commerce Clause is meant to allow the federal government to interfere in the national economy, but not in local economies. As the national economy grows, the national government will have a larger opportunity to interfere.

If it seems like now the federal government can regulate almost any field, it's because it's hard to find an industry that operates truly within one state. As those local economies become nationalized, the national government will have more power over them. That's not a surprising conclusion, and it's something that true originalists would recognize.

Tea Partiers Want Literacy Tests

(By Andrew MacKie-Mason)

For those who didn't know, the for-profit Tea Party Nation is hosting a National Tea Party Convention. The convention will host speeches by people like former Alaskan Governor Sarah Palin and former Republican Congressman Tom Tancredo.

Tancredo caused a stir Thursday during his opening speech. Think Progress reports that he said that Obama won the 2008 election because "we do not have a civics, literacy test before people can vote in this country." (The NY Daily News, the Huffington Post, ABC and CNN also have versions of this story.)

Perhaps Tancredo would fail those civics tests himself. As all Americans should know, literacy tests were a prominent part of the Jim Crow south. They were used in order to promote de facto discrimination against newly freed slaves. Enforcement of these literacy test laws allowed whites in power to deny suffrage to blacks. So, either Tancredo is horribly illiterate in American history (and he's a former Congressman, remember) or he was fully aware of the implied meaning of his statements.

So, yes, Mr. Tancredo. If literacy tests were still around, President Obama would not have been elected. If that's the America you long for, God help you.

Criminal Justice Helps Us Fight Terror

(By Andrew MacKie-Mason)

As I talked about here, Attorney General Eric Holder recently sent a letter to Congress appraising them of the Department of Justice's investigation of the alleged Christmas attempted bomber, Umar Farouk Abdumutallab. In it, he defended the use of the criminal justice system as a national security tool and pointed out that only two people arrested for acts within the United States have ever been held outside of the criminal justice system. Both of those people were later transferred to criminal custody.

Holder also pointed out, rightly, that American law requires that all people be appraised of their right to remain silent and their right to an attorney (Miranda rights). The letter went on to claim that, in the FBI's experience, reading suspects their rights does not harm investigators' ability to glean actionable intelligence from them.

This is probably true. There are really two different types of information investigators are looking for in terrorism cases: confessions or other evidence that can be used to convict the suspect of a crime, and actionable intelligence that can help protect American interests. Miranda rights apply only to the former, and I find it hard to believe that many people would advocate taking away those Constitutional rights (If I'm wrong, let me know in the comments).

One common misconception seems to be that "reading someone their rights" somehow grants them rights. It does not. It merely reminds them of rights that they already have.

As for trying to gather actionable intelligence, Miranda has no impact on investigators. While they cannot use an un-Mirandized statement against a criminal defendant (generally), there is no reason they can't send the information gained from it to the CIA, DOD, or FBI to counter future attacks. And I think it's highly unlikely that an alleged terrorist would feel any differently about talking before or after being read his or her Miranda rights.

Also, if US officials have the authority to use any "enhanced interrogation techniques," reading someone their Miranda rights does not take that authority away from the government. The fact that coerced statements cannot be used in court does not change the government's authority to coerce information for other purposes (if it has that authority.)

In short, reading a terrorism suspect their Miranda rights does not limit the government in any way, it just ensures that any subsequent statements can be used in court to convict the suspect.

Kenneth Anderson at the Volokh Conspiracy has an article in which he takes a mistaken view of Holder's letter. He thinks it claims that reading Miranda rights helps us gain actionable intelligence, and then goes on to argue that that's false. There are two problems with Anderson's argument: firstly, Miranda does, to a certain extent help us gain the cooperation of terrorism suspects; secondly, Holder did not claim that Miranda helps us get intelligence, he claimed that it helped us fight Al Qaeda.

A lot of the terrorist mindset is caused by a deep seated hatred of America, whether based on facts, distorted history, or false information. The best way to counter those feelings is by demonstrating to the world that America is not the evil force some claim it is. And the best way to do that is to follow the rule of law and treat everyone (even our enemies) with respect. When a suspected member of Al Qaeda is sent to Guantanamo, it effectively tells them, "You were right, America is the evil you always thought it was." On the other hand, when an investigator reads a suspected terrorist Miranda rights, it says, "You may have tried to kill us, but we will treat you with humanity and respect." Thus, Miranda can both help us gain the trust of, and perhaps even flip, individual terrorists as well as helping change the image of America that creates terrorists in the first place.

And, at the end of the day, Holder's letter did not say that Miranda specifically helped get actionable intelligence, like Anderson's piece claimed it did. Instead, it says that the criminal justice system, of which Miranda is an integrable part, is an important tool in the war against Al Qaeda. This is undeniable. The criminal justice system gives the United States its most powerful and legitimate tool for detaining members of Al Qaeda, which is an essential part of the fight against the terrorist organization. Without Miranda, the criminal justice system loses its legitimacy, and thus all of its value.

Breaking News: The Police Lie, And Judges Help

(By Andrew MacKie-Mason)

CrimProf Blog has a link to what sounds like an interesting article on SSRN. I haven't had time to read the article yet, but the abstract makes it sound good. The article presents an empirical analysis of how allegations of falsehoods by the police are treated in court, and the abstract ends with the following: "Ultimately the article concludes that trial judges are perpetuating police perjury by failing to denounce police dishonesty with their rulings."

I think everyone needs a good reminder every once in a while that our public servants are not always perfect. Unfortunately, many Americans see any attempt to question the character or judgment of police officers, firemen, or soldiers as "unpatriotic." Our society needs to remember that people are always people, and 'police officers lie, and judges let them get away with it' is a good start.

FBI Conducts An Investigation - The Old Fashioned Way

(By Andrew MacKie-Mason)

One of the GOP's favorite talking points is that Democrats are weak on national security. During the Obama administration, with its (relatively) good record on civil liberties, the "weak on national security" criticism has been heard a lot. The attempted bombing of an airplane on Christmas Day, 2009 raised tensions. On FOX News, one commentator said:

The issue was discovered, the salience was discovered in Massachusetts, where a Republican understood after the administration's decision on the Christmas attacker to give him a civilian trial and to read him his Miranda rights. He shut up and denied us a lot of intelligence on active intelligence in Yemen against us.

Another responded:

This guy was interrogated for 15 minutes [ed note: It was actually 50 minutes] before he got lawyered up and has gone silent.

Let's set aside, for a moment, the idea that we should (or even could) deny people access to a lawyer just because we suspect them of being terrorists. Of course, any such ability to deny counsel based on suspicions would destroy the American right to a lawyer entirely, but let's not talk about that right now.

We can also save for later a discussion about whether by reading Umar Farouk Abdulmutallab his Miranda rights the government actually gave him any rights, or just made sure (as they are supposed to, if fair play means anything in this world) that a person unfamiliar with the American system knows his own rights.

Instead, let's just address the one big blow that the Republican talking points just took: the investigation and interrogation of Umar Farouk Abdulmutallab worked. The United States obtained a confession and is getting (valuable and reliable) information from Abdulmutallab due to his own (voluntary) cooperation. Where information gained from the torture methods endorsed by the Bush administration and John Yoo is very often unreliable, the information being provided voluntarily by Abdulmutallab is credible and useful to the intelligence community.

CNN had this story on Wednesday after the Department of Justice released a letter to Congress late Tuesday. Basically, the DoJ worked with Abdulmutallab's family. By convincing them (and him) that he would be treated fairly and not tortured, they obtained his cooperation. In other words, President Obama's disavowing of torture is making America safer, and this is one obvious example of how.

FOX (of course) reports that Republicans are outraged that the White House revealed Abdulmutallab's cooperation. Of course, it's only because of the rampant partisanship of the GOP that the White House was forced to defend its decision. The Republican plan seems to be this "criticize the President because a program isn't working; criticize the President for releasing the information to show that the program is working." Even FOX had to admit that Senator Kit Bond (R-MO) accused the White House of losing Abdulmutallab's cooperation after he was privately made aware that Abdulmutallab was, in fact, cooperating. Bond has now become one of the harshest critics of the White House for releasing information about Abdulmutallab's cooperation. There's one word for that.

Finally, Republican claims that the Obama administration violated the wishes of the DoJ by reporting Abdulmutallab's cooperation are not just hypocritical: they're false. The White House and FBI have refuted claims that any classified information was released.

The bottom line is that traditional investigative and interrogational methods worked, without the use of torture, and Republicans can't stand that. If they can't mislead the American public, it will mean that "national security" will no longer be a valid excuse for the evisceration of the Constitution.

Should Petition Signatures Be Sealed?

(By Andrew MacKie-Mason)

The LA Times has an interesting opinion piece about whether the names of those who sign petitions should be kept confidential or released to the public. The petition in question is Referendum 71 in Washington (the state) which was an attempt to overturn a gay marriage law passed by the legislature.

Proponents of the measure want the names of petition signers to remain secret because they fear that signers will be harassed by gay activists. Others want the names released in the hopes of promoting a more open process.

The argument in the op-ed that I find most convincing is this: "Under the Washington Constitution, the people of the state reserve the legislative powers of initiative and referendum," making them akin to legislators whose names are public." As legislators, people who sign petitions give up their right to anonymity. Signing a petition is by nature a public declaration of a political stance. There should be no expectation of privacy.

Also, transparency in petitions is extremely important. Even where state officials check the validity of petitions, third party groups should have an equal opportunity to peruse signature lists and conduct their own validation experiment.

Finally, I find the suggestion that petition signers will be subject to heightened harassment almost laughable. Harassment happens, yes. It evens happens, unfortunately, based on political views. But the instances of real harassment based merely on the fact that someone signed a petition must be very few and far between. (If anyone knows of any real data about this, please let me know.) I suspect that much of what's feared by the petition signers isn't really harassment; instead, I would be willing to bet that most of it is simple disagreement.

There is no compelling reason to limit public oversight of government by releasing the names of those who sign petitions. In fact, there is a compelling reason to continue to release those names.

"Retard"'s Multiple Meanings

(By Andrew MacKie-Mason)

The Hill had a story Monday about one of the most blatantly partisan and unfortunate controversies of the decade. (Yes, the decade is only just over one month old.)

Apparently, during a meeting, President Obama's foul-mouthed chief of staff Rahm Emanuel called some of the participants "fucking retards." Yes, he has a penchant for obscenities, but this shouldn't come as any surprise to anyone who knows anything about the man.

The most shocking aspect of this story is Sarah Palin's reaction. In a note on her Facebook page (yes, her Facebook page), she calls this "Rahm’s slur on all God’s children with cognitive and developmental disabilities – and the people who love them." Yes, using the word "retard" apparently is an insult to the mentally retarded.

Let's review the definition of "retard".

4. Slang: Disparaging.

a.	a mentally retarded person.

b.	a person who is stupid, obtuse, or ineffective in some way: a hopeless social retard.

Yes, "retard" can refer to those born with "cognitive and developmental disabilities." It can also, however, refer to someone who is "stupid, obtuse, or ineffective." Like any word with more than one definition, using it one way does not automatically mean one is using it in every way.

Rahm Emanuel has, unfortunately, had to apologize for using a word in a perfectly legitimate way. The apology was not to the people he referred to as retards (because yes, it was an insult to them.) No, the apology was to disability advocates. This is ridiculous. It is political correctness gone to far.

I will consider Sarah Palin, and all others who share her opinion on this, hypocrites until they do the following.

• Respond to uses of the word "bitch" by bemoaning the slurs on all God’s children born as female dogs – and the people who love them.
• Respond to uses of the word "bastard" by complaining that these people are insulting all God's children born out of wedlock – and the people who love them.
• Respond to uses of the word "chicken" by rushing to the defense of all God's children born as hens – and the people who love them.

Our language has pejorative words that also can refer to certain groups. These meanings, however, are separate.

Get over it, former Governor Palin.

UPDATE: I'm posting this really late, but Palin now seems to be fine with people calling other people retards...so long as its Republicans saying the word.

Sweatshops: Good or Bad?

(By Andrew MacKie-Mason)

I recently overheard an argument about the morality of sweatshops, and it got me thinking. Though my first feeling is that sweatshops are of course immoral (providing unlivable wages for extremely hard labor in order to exploit poor people), I was actually somewhat convinced by the following argument: sweatshops are a good thing for their workers because the shops help create economic growth in poor areas and provide jobs for people who would otherwise have none.

So, what are sweatshops? The means for the rich to exploit the poor for profit? Or the means to draw a poor community out of poverty when there are no other options?

The idea that, essentially, "sweatshops are better than nothing" is really a bad comparison. Even assuming that's true, it's not clear that the absence of sweatshops would mean less net jobs in the area. Even if companies like Nike paid their workers livable wages with reasonable hours and decent working environments, it would be cheaper than having the same work done somewhere else, like in America. So, if companies are convinced to stop running sweatshops by consumer boycotts, the result will almost certainly not be fewer Third World jobs. Instead, it will be higher wages for the same Third World jobs.

I'm not even sure about the accuracy of the assumption above, that sweatshops are better than no industry at all. A sweatshop industry can seriously mess up a poor economy: by encouraging people to give up their previous means of sustenance (presumably, to a large extent, agriculture) in exchange for the allure of cash promised by sweatshops, corporations soon make entire towns dependent on them for survival. If a CEO decides to close a sweatshop, an entire town is suddenly out its primary economic force.

At the end of the day, sweatshops are immoral for two reasons: because they do not create jobs, they merely lower salaries for existing jobs, and because they make local economies dependent on their continued presence and destroy a poor community's chance to create their own independent future.

United Kingdom: Sex Offender Registry Appeal

(By Andrew MacKie-Mason)

Now that I've given you all a brief introduction to the United Kingdom's new Supreme Court, I can talk about some interesting goings on at the Court. Hearings were held yesterday and today on a case entitled R (JF) v Secretary of State for the Home Department. (I'm still trying to understand the method of naming British Court cases. I know that the R stands for Regina [Queen] and I think the JF indicates the offender in question. If you know more, inform me in the comments.)

This case dealt with the British Sex Offender Registry, specifically laws that required offenders to adhere to strict notification requirements whenever their residency changed or they went on trips. Under the law, these notification requirements could be imposed indefinitely and a decision to impose them could not be contested by the offender.

The Court of Appeal (the court below the Supreme Court) ruled that offenders should have the opportunity to challenge the notification requirements and seek review of their status.

It'll be interesting to see how this case plays out, since it has obvious parallels to American institutions.

United Kingdom Supreme Court

(By Andrew MacKie-Mason)

In order to broaden my legal horizons I started following the UKSC Blog. That's the United Kingdom Supreme Court Blog, for those who are frustrated with the modern prevalence of acronyms. (There is no convenient acronym for the word acronym, unfortunately.)

This post is meant to provide a little history of the UK Supreme Court so I can talk about it in future.

Until recently, the highest appellate functions in the United Kingdom were performed by the Lords of Appeal in Ordinary, members of the House of Lords. The House of Lords is indeed a legislative body, which meant there was an inextricable link between the legislature and judiciary.

Recently though, thanks to some constitutional reform movements and the efforts of Tony Blair, the United Kingdom gained a Supreme Court. The Lords of Appeal in Ordinary became the first members of the Court, which opened in October 2009, but lost their seats in the House of Lords.

The UK Supreme Court is generally the highest court of appeals in the UK. It's actually more complicated than that, since Scotland is partially independent and there's also the European Court of Justice (for issues of European Union Law). It would be wrong to think of the UK Supreme Court as identical to the US Supreme Court, but the latter is a good place to start when trying to understand the former (at least, that is, for American readers. My apologies to people of different nationalities.)

Some important distinctions between the US and UK Supreme Courts:

• The UK Supreme Court has 12 justices (only 11 have been appointed so far) rather than 9.
• The President of the UK Court (like the US Chief Justice) can designate other justices (either senior judges or former Supreme Court Justices) to sit on the Supreme Court. This happens in lower US Courts, but not the Supreme Court.
• It seems easier to remove a judge from the UK Supreme Court, though neither the US or UK Courts have term limits.
• UK Supreme Court Justices must resign at the age of 70 (or 75, for judges appointed longer ago).
• The UK Supreme Court usually sits in panels of 5 members, rather than en banc (with all 12 hearing every case). UKSC Blog has an article about this here.
• Unlike boring US judicial robes, UK judges get really awesome outfits. (See above.)
  

In Response: Michael J. Klarman

(By Andrew MacKie-Mason)

February is Black History Month, and SCOTUSBlog is doing a series focusing on issues of race in the Supreme Court.

One article on Monday caught my eye. It's entitled "Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?" and was written by Michael J. Klarman, a professor at Harvard Law.

The main premise of the article seems to be that, notwithstanding important civil rights decisions by the Court, SCOTUS has largely harmed the black community. Surprisingly, perhaps, Klarman's criticism is not that the Court has let stand discriminatory laws. Instead, it is that conservative members of the Court have read the Fourteenth Amendment to require too much color-blindness.

Conservative justices, then and since, have read the Fourteenth Amendment, which was adopted in order to protect the newly freed slaves from racial discrimination with regard to civil rights, as a mandate of government color-blindness.

This got my attention pretty quickly. The problem with our race-related jurisprudence is that the Court strikes down too much discrimination?

Klarman goes on to explain that he is referring to times when the Court struck down affirmative action provisions, court-ordered busing to desegregate schools, and other similar laws. However, he uses some very interesting (and perhaps self-destructive) original intent arguments in order to show that the Court was wrong.

The Framers of the Fourteenth Amendment (and their constituents) were too racist to require government to eschew all racial classifications. They thought that laws disenfranchising blacks, excluding them from jury service, segregating them in schools, and forbidding interracial marriage would plainly be permitted under the new amendment.

The argument Klarman puts forth to make the Court more supportive of the black community could in reality be used to strike down some of the most important Fourteenth Amendment jurisprudence empowering blacks. Supreme Court decisions striking down race-based disenfranchisement, all-white juries, segregated schools, and miscegenation laws are some of the most important civil rights decisions in modern history.

Klarman also has an extremely odd originalist interpretation of the Fourteenth Amendment:

As with the conservative justices’ posture towards affirmative action, these decisions [banning racial gerrymandering to promote minority interests] were difficult to reconcile with the original understanding of the Fourteenth Amendment, which plainly did not protect political rights such as voting.

I find the idea that the Fourteenth Amendment is not meant to protect political rights quite disturbing. The Fourteenth Amendment guarantees equal protection under the law. How can one have equal protection if one is denied the equal opportunity to change the law? Voting is the way in which citizens protect themselves against the law. As I argue in my paper, "Due Process, Equal Protection, and Suffrage," suffrage is a central part of the equal protection guarantees. And as I quote Chief Justice Warren on page 5 of that paper, "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights."

In the end, I think Professor Klarman is seeking a double standard of Fourteenth Amendment jurisprudence, one that allows what he deems to be socially advantageous discrimination but bans what he deems to be socially disadvantageous discrimination. Unfortunately, such a route would turn our courts into legislatures making decisions about what's good or bad for society. The Fourteenth Amendment, to be effective, must be (literally) read to provide equal protection under the law, not to allow greater protection under the law for people who have disadvantages unrelated to the law.

Who's a Combatant in Computer Warfare?

(By Andrew MacKie-Mason)

I would recommend this post on Opinio Juris. It's a preview for an article about the "combatant" status of participants in computer network attacks (CNA). I haven't yet read, the article but it sounds interesting from the preview.

The conclusion is that typical standards for determining who's a soldier don't work very well when it comes to military operations on the net. The author proposes that the main standard for evaluating combatant status in CNA should be whether or not a person is state-sanctioned.

Opinio Juris also has a critique of the article as well as a response to the critique.

Who "Overrules" Whom?

(By Andrew MacKie-Mason)

It's common to hear people claim that the Supreme Court has "overruled" or "overturned" a law passed by Congress. This process is known (in technical terms) as judicial review. But the exact authority of the Court to overrule Congress, or for Congress to overrule the Court, is not clear. Nowhere in the Constitution does it grant either branch that power.

Josh Blackman (a law clerk for a federal district judge and the founder of FantasySCOTUS.net) points out on his blog, quite accurately, that Congress cannot actually "overrule" the Supreme Court. What they can do is pass a new law or constitutional amendment. Since the Court now has new legal material to interpret, it should come to a different result. Congress cannot just say that a case is overruled. It is not the final court of appeal, in other words, like the House of Lords used to be in Great Britain. If a party is unsatisfied with a decision by the Supreme Court they cannot just ask Congress to overturn the case. That party has lost, and that is the end of it. Congress can change the law to impact the outcome of later cases, and that is all.

A related but perhaps more prevalent misconception is that the Supreme Court can "overturn" an act of Congress. This language has found its way into the discussions surrounding almost all cases where the Court "strikes down" a law. But what is really happening? Where does the Court get the authority to say that a law violates the Constitution and is thus not valid? It comes from the Supremacy Clause:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land

The job of a court (any court) is to apply the relevant laws to the facts of a dispute. When the court says that a certain law or regulation does not apply because it violates a part of the Constitution, what they are really doing is identifying a conflict between two aspects of the law (the unconstitutional provision and the Constitution itself) and giving precedence to the provision that is the "supreme law of the land."

Thus, when the Court determines that a certain statute conflicts with the Constitution, they do not strike down the statute. They instead say that the "law" (in the general sense) is what the Constitution says, not what the statute says.

Of course, this is a very nitpicky distinction. However, if one wants to say that Congress cannot overrule the Court, one has to also acknowledge that the Court cannot really overturn an act of Congress.

US Citizens Abroad and Targeted Killings

(By Andrew MacKie-Mason)

Kenneth Anderson had an interesting article on the Volokh Conspiracy last week. In it, he addresses the United States' practice of targeted killings. Specifically, he reports that an American citizen, Anwar al-Aulaqi, is an approved target for such targeted killings. Anderson then goes on to examine whether al-Aulaqi's citizenship makes any difference in the legality of the targeted killing.

He concludes that it does not:

The question is, what difference, if any, does it make that he is a US citizen? Answer, as a combatant and therefore as a person subject to being targeted, none. You can target him like any other combatant.

I'm inclined to agree. The idea that it would make a difference is rooted in thought that the thought that the Constitution, in general, provides special protections for American citizens. This is a relatively common misconception, and one that particularly annoys me. It's true, in some limited cases, that the Constitution gives special protections to citizens. The 14th Amendment provides, in part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

That, obviously only applies to citizens. However, there is nothing to suggest that phrases such as (from the 1st Amendment) "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press" should apply only to United States citizens.

In general, the Constitution creates limits on governmental power, it does not grant rights. Those limitations, except in very specific circumstances, depend only upon the attempted government action, not upon the target of that action. This is true both in terms of detainees at Guantanamo (the government cannot deny them due process just because they aren't citizens) and foreign corporations with free speech. If American corporations can make independent expenditures in elections, there's a very weak case for banning foreign corporations from doing the same thing.

(NOTE: It's true that the government can restrict constitutional rights based on the presence of a certain level of governmental interest. The level of scrutiny depends upon the right in question. It's conceivable that citizens could have more protection than non-citizens because the government might have a more compelling interest in restricting the rights of foreigners. However, the citizens don't have more rights than non-citizens...the government just might have a less compelling reason to abridge the rights of citizens than those of non-citizens.)