Originalism

From National Review:

There is only one proper way to faithfully interpret the Constitution. And that is to ascertain the actual meaning of the words of the text, taken in their proper social and linguistic context.

That meaning must be the objective meaning — not the reader’s subjective understanding or preferred reading. And that meaning must be the original meaning — that is, the meaning the Constitution’s words and phrases would have had to reasonably informed readers of the English language at the time they were used, in context, and accounting for any specialized usages or term-of-art phrases. Any other reading is pure anachronism, a misuse of language.

This single correct method of constitutional interpretation travels under many names. I call it “original-public-meaning textualism,” emphasizing the text and the requirement that it be taken in its known, original sense. A convenient (if imprecise) shorthand term is simply “Originalism.” It contrasts, sharply, with any of a variety of progressive theories under which the Constitution’s meaning shifts, morphs, evolves, or otherwise transmogrifies to suit the needs or circumstances of the moment — and, typically, to serve the interpreter’s desired political agenda.

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

[snip]

Pith

Source: Watcher of Weasels

Bookworm is cleaning out her closet, and came across, among other things, some pithy sayings from her Contracts law class….

“Watch out for chameleon words. They change with the context.”

“The absolute best defense is a counter-claim.”

“Stay with something simple . . . like logic.”

“Always look to see what the reason for the rule is. If the reason isn’t applicable, then maybe the rule isn’t applicable.”

“It’s tooth fairy time. You are departing from reality.”

“Common sense says that’s crazy.”

“The peasants are restless. Let’s promise them a circus.”

“It’s not the village idiot you have to be worried about. It’s his attorney.”

“Put yourself where you were the day before you entered law school: intelligent and common sensible.”

“It’s like shopping for drapes to match the towels.”

“Article 9 comments [I assume it was the Restatement of Contracts, 2nd] were written by some cockroach flinging itself at the typewriter.”

“You can’t legislate common sense, but you can legislate lunacy.”

“To a litigator, perjury is just emphasis of different facts.”

Law of Self Defense: The Lies of the Zimmerman Probable Cause Affidavit

Source: Law of Self Defense: The Lies of the Zimmerman Probable Cause Affidavit

Makes a person think perjury laws should be applied to lawyers — especially prosecutors, who control whether a criminal case goes forward or not.

This week’s Case of the Week is inspired by the so-called “documentary,” Rest in Power: The Trayvon Martin Story, produced by Jay Z and Trayvon Martin’s parents.

The first two episodes focus enormous attention on the fact that George Zimmerman was not arrested until April 11, 2012, 44 days after he shot and killed Trayvon Martin on February 26.

It’s all presented as if there is no possible rational and lawful reason for not arresting George Zimmerman. As if his guilt is the most obvious thing in the world, and only a racist police department and a racist State Attorney would refuse to make the arrest of a racist killer.

Never addressed, naturally, are the due process and civil rights that protect law-abiding citizens. Lawful arrests require the police to find probable cause of a crime.

It is, of course, undisputed that Zimmerman shot and killed Trayvon Martin. Not all killings, however, are crimes. A killing committed in lawful self-defense is legally justified and completely legal.

In evaluating whether probable cause exists, then, the authorities must conclude Zimmerman’s actions were probably unlawful based on the evidence they collect.

In Zimmerman’s case, there was literally zero evidence inconsistent with self-defense, a claim he made from the very start. There was also considerable evidence consistent with self-defense. As a result, the entirety of the evidence overwhelmingly favored the view that Zimmerman killed Trayvon Martin in lawful self-defense.

Ultimately, of course, imported State Attorney Angela Corey charged Zimmerman with second-degree murder anyway. How was she able to build a foundation of probable cause in a few days when Sanford Police Chief Lee and local State Attorney Wolfinger had not done so for weeks?

Simple: her legal team fabricated the “facts” to create probable cause where none existed. Their affidavit pointed to “evidence” that did not exist, and that they knew did not exist. Note that this false affidavit is a sworn document, signed by two of Corey’s investigators under the pains and penalties of perjury. (That affidavit is embedded below.)

For example, the affidavit states “Martin attempted to run home …” and later “…Martin who was trying to return to his home.” Nobody familiar with the facts, the timing of events, and the layout of the apartment complex can believe this to be true. Martin was a healthy 17-year-old football player. He had a full two minutes to cover 400 feet from his starting position to his apartment. Even an old, desk-bound attorney like me can cover three times that distance at a modest jog, much less in fearful flight.

The affidavit also says, “When the police dispatcher realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that, and that the responding officer would meet him. Zimmerman disregarded the police dispatcher, and continued to follow Martin …”

There are two claims here, one an outright lie, and the other a fabrication.

The outright lie is that Zimmerman disregarded the police dispatcher’s suggestion. As clearly captured on the recorded conversation, Zimmerman was immediately compliant when told by the dispatcher “We don’t need you to do that.” He said, “OK.”

The fabrication is that Zimmerman “continued to follow Martin.” The only reason Zimmerman got out of his car at all was that he informed the dispatcher that Trayvon had run out of sight behind a building, and the dispatcher asked Zimmerman to identify where Trayvon had run to. Unable to see through a building, Zimmerman exited his vehicle and went to peer around the corner of the relevant building. It was at this point the dispatcher made his suggestion, and Zimmerman complied. There is literally zero evidence—none—that Zimmerman “continued to follow Martin.”

The affidavit also states that “Zimmerman confronted Martin, and a struggle ensued.” This is a very serious claim of fact to make, but if true it guts Zimmerman’s claim of self-defense. If Zimmerman started the conflict, he lost the innocence legally required for a valid self-defense claim.

As you might expect by this point, however, Zimmerman’s confrontation of Martin is utter fabrication. There is literally zero evidence—none—that Zimmerman confronted Martin. To the contrary, all available evidence supports Zimmerman’s claim that he was ambushed by Martin.

So did the prosecutor not study the evidence? Was the prosecutor just stupid, or was she lying through her teeth?

Although the laws may not demand it, I think a prosecutor who pursues a case with this little supporting evidence should be required to justify, in court, under oath, the decision to bring the case to court.

Title IX vs the Constitution

Some people just can’t resist putting the “Twit” in Twitter.

From Advice Goddess blog:

From Rewire (in that tweet above), Shiwali Patel reports this gem about the supposedly “fair process” under Title IX for sexual assault.

…There is no inherent conflict between ensuring a fair process for survivors and a fair process for alleged perpetrators. For the record, when we advocate that schools be trauma-informed in responding to sexual violence and that schools stop and prevent sexual harassment, we are not asking the school to take away due process rights. It’s possible to advocate for both a fair process for all students and the safety of survivors of sexual violence. Take cross-examinations, for example, where institutions could ensure a fair process by allowing parties to submit questions to each other through hearing panels or investigators, yet still protect the safety of survivors by not permitting direct questioning by the accused student.
To highlight a recent case, a federal court last month held that the University of Michigan had violated an accused student’s due process rights to a live hearing and an opportunity to question the woman who filed the complaint against him. In doing so, the court “consider[ed] the emotional harm and trauma” to survivors of being directly questioned by their rapists. It concluded that the accused student had a right to question the woman who filed the complaint, but could only do so by submitting his questions to the student resolution panel or other school administrators, who would then ask the questions on his behalf.

I’m no lawyer; I’m just somebody who follows a few lawyers on Twitter; and even I knew immediately that this was, shall we say, merde du cheval.

Several lawyers chimed in pointing this out.

My comment was:

I think Ms. Lhamon’s tweet should be construed as a waiver of the right to cross-examine should she ever be in a legal dispute.

Inevitable Blood On Your Hands

A golden oldie, from Marginal Revolution:

…Every law is violent. We try not to think about this, but we should. On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This is by no means an argument against having laws.

It is an argument for a degree of humility as we choose which of the many things we may not like to make illegal. Behind every exercise of law stands the sheriff – or the SWAT team – or if necessary the National Guard. Is this an exaggeration? Ask the family of Eric Garner, who died as a result of a decision to crack down on the sale of untaxed cigarettes. That’s the crime for which he was being arrested. Yes, yes, the police were the proximate cause of his death, but the crackdown was a political decree.

The statute or regulation we like best carries the same risk that some violator will die at the hands of a law enforcement officer who will go too far. And whether that officer acts out of overzealousness, recklessness, or simply the need to make a fast choice to do the job right, the violence inherent in law will be on display. This seems to me the fundamental problem that none of us who do law for a living want to face.

But all of us should.

Any law that is enacted in your name will be backed up by the thread of deadly force. Inevitably, the threat will have to be followed through upon. That means sooner or later, someone will die because of that law. So some blood on the hands is inevitable.

I thought of this column today after reading about Santa Barbara’s ban on plastic straws:

On Tuesday, the Santa Barbara City Council unanimously passed a bill that prohibits restaurants, bars, and other food service businesses from handing out plastic straws to their customers. …Santa Barbara… has banned even compostable straws, permitting only drinking tubes made from nonplastic materials such as paper, metal, or bamboo. The city also has made a second violation* of its straw prohibition both an administrative infraction carrying a $100 fine and a misdemeanor, punishable by a maximum fine of $1,000 and up to six months in jail. Each contraband straw or unsolicited plastic stirrer counts as a separate violation, so fines and jail time could stack up quickly.

…Assistant City Attorney Scott Vincent tells me criminal charges would be pursued only after repeat violations and if there were aggravating circumstances.

I wonder what direction the slippery slope runs in this case.

Aliens

There is some debate over whether immigration enforcement has an effect on crime. Sites like Reason.com argue that immigrants are not any more likely to be criminals than citizens are. Others point out that advocates like the writers at Reason pull a fast one by conflating legal and illegal immigrants.

The US Department of Justice and the Department of Homeland Security have released a report with some hard numbers.

Summary of Findings

A total of 58,766 known or suspected aliens were in in DOJ custody at the end of FY 2017, including 39,455 persons in BOP custody and 19,311 in USMS custody.

Of this total, 37,557 people had been confirmed by U.S. Immigration and Customs Enforcement (ICE) to be aliens (i.e., non-citizens and non-nationals), while 21,209 foreign-born people were still under investigation by ICE to determine alienage.

Among the 37,557 confirmed aliens, 35,334 people (94 percent) were unlawfully present. These numbers include a 92 percent unlawful rate among 24,476 confirmed aliens in BOP custody and a 97 percent unlawful rate among 13,081 confirmed aliens in USMS custody.

This report does not include data on the foreign-born or alien populations in state prisons and local jails because state and local facilities do not routinely provide DHS or DOJ with comprehensive information about their inmates and detainees. This limitation is noteworthy because state and local facilities account for approximately 90 percent of the total U.S. incarcerated population. DHS and DOJ are working to develop a reliable methodology for estimating the status of state and local incarcerated populations in future reports.

Let’s run some back-of-the-envelope calculations, why don’t we?

So, 58,766 in custody are known or suspected to be aliens. Some 64% of these have been confirmed to be aliens. Of this number, 94% are here illegally. This is thought to represent 10% of the foreign-born population. If the percentages of foreign-born, aliens, and illegal aliens are similar in state and local prisons (not sure why they wouldn’t be), then it would seem to follow that around 13% of prisoners in the country are illegal aliens.

One of the memes floating around claims that 1% of the population of the US is in prison, which would work out to roughly 3.3 million people. That would mean some 430,000 prisoners in the US are illegal aliens. If we divide that into the 20 million estimated illegal aliens, that’s a bit over 2%. This would mean an illegal immigrant is twice as likely to be in prison as a lawful resident.

People are welcome to bring in bigger envelopes if they like.

Sharia in America – The Washington Post

Source: Sharia in America – The Washington Post

The final installment in Michael Broyde’s series on religious courts in America. The take-away is in a bolded paragraph:

The truth is that Islamic courts are not so scary. State court judges regularly order the enforcement of religious arbitration awards, as the previous four posts explained. The future of Islamic law and sharia courts could look like the present state of Jewish law and rabbinical courts.

The alert reader may well notice the modal — “could” — in that paragraph. And he’s right, Islamic courts certainly “could” look like the present state of Jewish law and rabbinical courts.  All it takes is…

These measures, which have been successfully adopted by rabbinical courts, can be implemented by Islamic panels too, if they wish to do so.

Of course, just because they can be learned and applied, does not mean that the Islamic community actually will do that: That is their choice and their choice alone. Either the Islamic courts can fit into the framework of religious arbitration in America and have their decisions upheld, or they can remain outside that framework, be a source of protest and not be acceptable to the legal system. The question is not whether American courts can adapt to Islamic arbitration — judges know no more Jewish law than Islamic law — but rather, the question is whether Islamic arbitration will adhere to the norms of American law.

Successful religious arbitration allows religious communities to be moderately self-governing. This sort of respect for legal pluralism is part and parcel of American legal culture and history: Federalism — the concurrent existence of multiple sovereigns (federal, state, local jurisdictions) — meshes well with the idea that for some people some matters are ecclesiastical, and that also is a “jurisdiction.”

Perhaps more importantly, by permitting Islamic communities to conduct private faith-based dispute resolution within certain legal limits, American law can bring Islamic and secular segments of society and culture into conversation with each other. Islamic communities will improve from these interactions with secular law, and secular law will advance as well.

And this is all quite true. That last paragraph may be the ultimate barrier: Jihadists probably also see this, and recognize that adapting Islamic courts to be compatible with U.S. law will wind up changing the practice of Islamic law.  So just as adopting the values that lead to success in Western culture is called “selling out” by certain minority groups, accommodating Western law may be called “infidelity” by certain minority religions.