“Republican Florida Gov. Ron DeSantis floated two unconstitutional proposals that would lead to the US executing more people.
The first, which he suggested during an appearance before the Florida Sheriffs Association, was to allow juries to sentence someone to die even if the jury vote is not unanimous. “Fine, have a supermajority,” DeSantis said, adding that executions should be permitted if “maybe eight out of 12 or something” of a jury’s members vote for the death penalty.
The Supreme Court held in Ramos v. Louisiana (2020) that a jury must vote unanimously in order to convict someone of a “serious offense.” Meanwhile, the Court held in Hurst v. Florida (2016) that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Read together, the cases leave little doubt that a jury’s decision to sentence someone to die must also be unanimous. (There is always some risk that the Court’s current majority will refuse to follow Ramos or Hurst, but neither of these cases divided the Court along ideological lines when they were decided.)
A few days after offering this first half-baked proposal, DeSantis spoke at the Miami Police Benevolent Association hall, where he not only reiterated that idea, but also laid out a broader agenda on crime that included expanding the death penalty to offenders who rape children. The Supreme Court explicitly rejected this expansion of the death penalty in Kennedy v. Louisiana (2008). Among other things, Kennedy warned that, if sexual assault of a child carried the same penalty as murder, that would endanger children because “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.””
“Ultimately, the basis of such laws can be tied to simple and pure protectionism. Indeed, the protectionist urge is strong, historically, among the powerful producers of animal products—including meat and dairy. For example, as I’ve discussed in my book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable and elsewhere, rent-seeking dairy interests have, over generations, leaned on lawmakers to force competitors to change the name and even the appearance of their foods. In Wisconsin, the state long forced makers of margarine—who compete with the dairy state’s butter makers—to color their products pink. In New York, the state forced makers of non-dairy creamers to label those foods as “melloream”—whatever the hell that is.
Notably, though, this type of protectionism isn’t wholly limited to meat-industry-led attacks on vegan competitors. As I explained in a 2019 column, Arkansas has sought to protect its dominant rice industry against competition from makers of riced cauliflower (a law I characterized at the time as “veg-on-veg crime”).
The single most important fact to remember about these laws is that they seek to undermine the First Amendment to prop up sales for certain elements of the food industry. That’s as unconstitutional as it is unwise. Such laws don’t’ serve the interests of consumers. After all, neither your hypothetical cousin’s boyfriend nor your uncle was confused in the least by the differences between Tofurky and turkey. Indeed, it was those differences that drew them to choose those respective favored foods in the first place.”
“A three-judge panel on the 5th Circuit Federal Court of Appeals ruled this week that the CFPB’s structure is unconstitutional because Congress has no control over the agency’s budget, which is funded entirely by the Federal Reserve. Under the terms of Dodd-Frank, the CFPB is entitled to receive a budget totaling up to 12 percent of the Federal Reserve’s annual operating expenses, and the Federal Reserve is not allowed to refuse the CFPB’s requests for funding.
“Congress’s decision to abdicate its appropriations power under the Constitution, i.e., to cede its power of the purse to the Bureau, violates the Constitution’s structural separation of powers,” Judge Cory Wilson wrote in this week’s ruling.”
“”Congress did not merely cede direct control over the Bureau’s budget by insulating it from annual or other time-limited appropriations. It also ceded indirect control by providing that the Bureau’s self-determined funding be drawn from a source that is itself outside the appropriations process—a double insulation from Congress’s purse strings that is ‘unprecedented’ across the government,” Wilson wrote in the court’s ruling. “Even among self-funded agencies, the Bureau is unique. The Bureau’s perpetual self-directed, double-insulated funding structure goes a significant step further than that enjoyed by the other agencies on offer.””
“American taxpayers pay to be spied upon. That’s one takeaway from new documents obtained by the American Civil Liberties Union (ACLU), which has been examining how federal agents spent millions to purchase massive troves of cellphone location data and dodge Fourth Amendment requirements.
As part of a lawsuit against the Department of Homeland Security (DHS), the ACLU obtained thousands of previously unreleased records showing how DHS agencies—including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)—are purchasing and accessing “huge volumes of people’s cell phone location information quietly extracted from smartphone apps.”
These agencies are “sidestepping our Fourth Amendment right against unreasonable government searches and seizures,” suggests the ACLU.
In 2018, the U.S. Supreme Court held (in Carpenter v. United States) that under the Fourth Amendment, law enforcement must have a warrant before accessing a suspect’s phone location data from cellular service providers. But federal authorities have been getting around this by purchasing aggregated cellphone location data from data broker firms like Venntel and Babel Street. And they’re spending millions of taxpayer dollars doing it.”
“Chile’s draft constitution is even longer than Venezuela’s, which was redrafted by Hugo Chávez’ administration during his first year in office and set the stage for the country’s socialist revolution, descent into dictatorship, and ensuing economic collapse.
Venezuela has had 26 constitutions in a little over two centuries. In general, the practice of scrapping and rewriting constitutions helps to explain Latin America’s relentless political turmoil.
A constitution provides legal stability and predictability—like a computer operating system. Tampering with any foundational code creates security holes that are easily exploited by political opportunists looking to amplify their own power and overturn the established order.
Even if Chileans reject the new constitution—and, thankfully, polls indicate that they probably will—Boric can choose to start the process again with the election of yet another constitutional assembly to draft yet another version.
That could bring years of chaos, economic stagnation, and legal uncertainty. Now that Latin America’s free market experiment and “economic miracle” may be coming to an end, hopefully, the rest of the world can learn from the experience of Chile once again: Beware leftist pipe dreams.”
“There is one idea, though, that has longstanding bipartisan support, a proven record of success, and practical wisdom behind it: term limits. Imposing term limits on Supreme Court justices would be good for the country and the court. It would help ease the bitterness of the confirmation process and make the court more representative of the public’s views. And while conservatives might currently balk in light of their 6-3 majority, it’s a change that would not necessarily advantage either side over the long run.
The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.
Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment.”
“History has always played a role in constitutional interpretation, for some jurists more than others. But if history is going to be a key driver for the Supreme Court’s decisions — on the assumption that it is more legitimate than other forms of judicial discretion — then it is imperative to ask where the justices are getting their historical sources, whether those sources are fact-checked, and (most importantly) who is narrating the history.
Increasingly, the justices are relying on amicus briefs for historical information. Amicus briefs — also called “friend of the court” briefs — are submitted by third parties and have gone through a tremendous growth spurt at the Supreme Court in recent years.”
“These amicus briefs — sometimes signed by historians, sometimes not — are virtually all written by lawyers and often filed by motivated groups that are pressing for a particular outcome. The history they present, in other words, is mounted to make a point and served through an advocacy sieve. That distinguishes this type of history from the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately. As historian Alfred H. Kelly once put it, “The truth of history does not flow from its usefulness.” But usefulness is exactly the point when litigating a case at the Supreme Court — and historical sources are being used by the advocates to win.”
“The modern reality is the justices look to their friends and allies for historical sources, and rather than fact-check them — which they don’t have the time, resources, or expertise to do — they accept these historical narratives at face value. In the end, this creates an echo chamber where the history the justices cite is the history pressed to them by the groups and lawyers they trust, which conveniently comports with their preexisting worldviews and normative priors.”
“Professional historians are already complaining that the court got the history wrong in its recent cases, either by cherry-picking authorities or leaving out important nuance or both. When it came to the history of gun regulation, the court was awash in competing historical amicus briefs. The court chose one side, and in so doing caused historians to cry foul that the other history was ignored or distorted. In the abortion case, historians of the Middle Ages say some of the texts the court cites as proof that abortion was a crime in the 13th century are not about what we would think of as crime at all, but instead about “penance” imposed by the Church — an ambiguity easily lost on people who are unfamiliar with medieval Latin. Indeed, it is worth noting that much of the 13th-century history the court recounts seems to have come from a brief filed not by historians, but by professors of jurisprudence who publish on the moral implications of abortion — well-respected professors in their fields, perhaps, but certainly not medievalists.
This reveals a systemic problem about relying on amicus briefs for historical narratives: The amicus market is dominated by motivated scholars. Because many neutral experts do not pay attention to the courts or participate in advocacy, the historical accounts presented to the justices are necessarily incomplete and motivated to build a particular argument.”
“the Supreme Court should require anyone who files an amicus brief to disclose who paid for it. Current rules require disclosure only of whether the party contributed financially or otherwise to the brief, but they do little to shed light on briefs filed by neutral-sounding organizations that are in reality funded by those with an interest in the case (even if not the party).”
“the justices should borrow a practice from the laws of evidence and forbid any amicus brief presenting historical or other factual claims from adding accompanying legal argument. At trial in lower courts, there are strict limits on expert witnesses offering opinions on the law or generally opining on the case’s outcome. The idea is that this legal commentary detracts from the status of the expert as a neutral adviser, and that it oversteps the value and point of an expert witness in the first place.”
“justices should build in a process to request the specific history they are interested in earlier in the case’s timeline — in an attempt to recruit historians who may not be following the court’s every move but who are actual experts in the matter. If historians of medieval law knew their knowledge on abortion in the 13th century was so valuable when the court took the case (as opposed to after the leak in Dobbs) there might be incentive for more of them to participate in the briefing process.”
“If we are going to empower judges to referee history we must start paying more attention to the process through which they acquire that history. Many Americans see the court’s recent decisions as a threat to judicial legitimacy; perhaps one under-recognized threat to that legitimacy lies in the process used to make them.”
“perhaps a largely forgotten provision of the Constitution offers a solution to safeguard American democracy. Created amid some of the country’s most violent clashes over voting rights, Section 2 of the 14th Amendment provides a harsh penalty for any state where the right to vote is denied “or in any way abridged.”
A state that crosses the line would lose a percentage of its seats in the House of Representatives in proportion to how many voters it disenfranchises. If a state abridges voting rights for, say, 10 percent of its eligible voters, that state would lose 10 percent of its representatives — and with fewer House seats, it would get fewer votes in the Electoral College, too.”
“The problem with the Bork/Alito view of Lochner is that it is wrong as a matter of constitutional text and history. Indeed, the drafting and ratification history of the 14th Amendment make clear that the amendment was originally understood to protect a broad range of unenumerated rights, including the right to economic liberty, sometimes called liberty of contract, which was the very right at issue in Lochner.
Consider the words of Rep. John Bingham, the Ohio Republican who chiefly authored the first section of the 14th Amendment, which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” include “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.” In other words, the 14th Amendment was designed to protect, among other things, an unenumerated right to economic liberty.
Even those who opposed the 14th Amendment’s ratification said as much at the time. For example, Rep. Andrew Jackson Rogers (D–N.J.) complained to the House in 1866 that “all the rights we have under the laws of the country are embraced under the definition of privileges and immunities.” “The right to contract is a privilege,” he observed, adding, “I hold if that [the 14th Amendment] ever becomes a part of the fundamental law of the land, it will prevent any state from refusing to allow anything to anybody embraced under this term of privileges and immunities.”
To say the least, the fact that both advocates and opponents of the 14th Amendment agreed on its meaning at the time of ratification is strong originalist evidence in support of the Lochner Court’s reasoning and outcome. Contrary to the junk history peddled by Bork and Alito, Lochner is not a dirty word.”