Showing papers in "William and Mary Bill of Rights Journal in 1998"

Aggravating and Mitigating Factors: The Paradox of Today's Arbitrary and Mandatory Capital Punishment Scheme

Abstract: In the 1970's, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. The "guided discretion" capital sentencing scheme that replaced the other schemes, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties. This Article argues that today's sentencing scheme is arbitrary because of undefined aggravating factors, unlimited non-statutory aggravating factors, and victim impact evidence. Justices Scalia, Blackmun, and Thomas also have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. At the same time, today's death penalty scheme has moved toward a mandatory scheme as legislature expand death penalty statutes and the Court sanctions other expansions of the application of the penalty. Thus, the paradox of the present system is that it is both arbitrary and mandatory. Focusing on the Court's decisions regarding aggravating and mitigating factors, the Article discusses the arbitrary and mandatory aspects of the current system and then examines five options for addressing those constitutional problems: keeping the present system, narrowing the application of the death penalty, returning to unguided discretion statutes, returning to mandatory death penalty schemes, or, as Justices Blackmun and Powell have suggested, abandoning the death penalty. The Article concludes that a mandatory death penalty scheme is the only way to potentially apply the death penalty in an evenhanded manner. The mandatory aspects of the current scheme and the historical experience with mandatory death penalty schemes, however, illustrate that no human system for selecting defendants for the ultimate punishment can be both fair and non-arbitrary.

The Moral Failure of the Clear and Present Danger Test

Abstract: The clear and present danger test has been used for almost a century to determine the speech the government may restrain. This test assumes that at some point speech transforms into an act and at that moment the speech becomes punishable. Under the clear and present danger test, the First Amendment does not protect speech that is an incitement to imminent lawless action. In this paper, however, Dow argues that the clear and present danger test protects too little speech. He posits that speech should be protected unless the following three conditions are met: (1) the speaker's specific intent in uttering the words was to cause an unlawful injury, (2) the injury in fact occurred as a proximate result of the speech, and (3) the speaker, through his or her speech, overwhelmed the will of the listener. Professor Dow's proposed test is based upon the belief that the listener has a will of his or her own and thus may choose whether to act on the words he or she heard. This test springs from the understanding that the Free Speech Clause recognizes that evil words do not always lead to evil acts. The proposed test would allow the punishment only of the most culpable speakers, those who overwhelm the will of the listener and in essence force the listener to act as the speaker desires.

Apportionment of Direct Taxes: The Foul-Up in the Core of the Constitution

Abstract: Article I, Section 2 of the Constitution requires that direct taxes be apportioned among the states by population. The Founders defined “direct tax” broadly, usually using the term as a synonym for “internal tax” and encompassing all taxes except for customs duties. The Founders expected Congress to use direct taxes. Giving Congress the power to lay internal taxes was a major purpose of the Constitution as a whole. Apportionment by population, however, turns out to be an absurd and inequitable requirement when the tax base is uneven per capita among the states. With apportionment, tax rates must necessarily be higher in poorer states or in states with a smaller per capita tax base. Where the tax base is especially thin, the tax rates will be prohibitive. The Founders did not see absurdity nor intend that apportionment would hobble any tax. The early Supreme Court solved the dilemma, when key Founders were still Justices, by interpreting “direct tax” strategically so that no tax was direct if apportionment was unreasonable. That solution was doctrine for one hundred years, and courts need to return to it. Apportionment has no constitutional weight. Some have described apportionment as an individual right intended to protect accumulated wealth from the force of mere numbers, but that rationale misdescribes the history. Apportionment was a product of the requisition system under the Articles of Confederation, and the formula was written to reach wealth, not to protect it. Apportionment, moreover, was brought over from the Articles into the Constitution solely to help settle a dispute as to the power of the slave states in Congress. With the end of the requisition system and of slavery, apportionment lost its historical rationale and justification.