Showing papers in "William and Mary Bill of Rights Journal in 2019"

A Century in the Making: The Glorious Revolution, the American Revolution, and the Origins of the U.S. Constitution's Eighth Amendment

Abstract: The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing the grotesque punishments of Titus Oates and others during the reign of King James II, the Article sheds light on the origins of the language of Section 10 of the English Bill of Rights. That language became a model for similarly worded provisions in early American constitutions and declarations of rights, including the Virginia Declaration of Rights, that were linguistic forerunners of the Eighth Amendment. The U.S. Constitution’s Eighth Amendment, ratified in 1791, became the law of the land more than 100 years after the Glorious Revolution, though that provision of the U.S. Bill of Rights was shaped by the Enlightenment as well as by early American understandings of English law and custom. The Article describes the seventeenthcentury origins of the Eighth Amendment’s prohibitions and the Enlightenment’s impact on eighteenth-century thinkers, while highlighting how existing American prohibitions against excessive bail, excessive fines, and cruel and unusual punishments are now understood to bar acts inconsistent with “the evolving standards of decency that mark the progress of a maturing society.” The Article concludes by outlining the implications of the Eighth Amendment’s history for modern American jurisprudence. In doing so, it provides a critique of the U.S. Supreme Court’s recent Eighth Amendment decision in Bucklew v. Precythe. * Associate Professor, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center; Of Counsel, Berens & Miller, P.A., Minneapolis, Minnesota. The author extends his appreciation and thanks to Raquel Flynn and Shannon Hayden, two University of Baltimore law students who provided outstanding research assistance during this Article’s preparation.

The Bemba Appeals Chamber Judgment: Impunity for Sexual and Gender-Based Crimes?

Abstract: On June 8, 2018, a majority of the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002, and March 2003. The decision was clearly a disappointment for the victims of the crimes committed by Bemba’s troops, who have been waiting for more than fifteen years for a measure of justice. Significantly, the acquittal also means that sixteen years after the Rome Statute came into force, and despite increasing recognition of the prevalence of sexual violence in the situations under the jurisdiction of the court, the ICC has yet to issue a single, final conviction for the crime of sexual violence. A number of commentators have critiqued various aspects of the judgment, including the standard of review used by the Appeals Chamber. However, with few exceptions, little of this commentary has focused on the impact of the Appeals Chamber’s analysis of command responsibility under Article 28 of the Rome Statute on sexual and gender-based crimes. We argue that the majority’s decision — in particular, its analysis of the necessary and reasonable measures that a commander is required to take to avoid liability under Article 28 — lacks the kind of insight that a critical gender analysis would have offered. We conclude that absent reconsideration, the Court’s jurisprudence on modes of liability will remain a major obstacle to the successful prosecution of cases of sexual and gender-based crimes at the ICC, especially for high-ranking accused who either did not clearly order the crimes or were not physically present during the commission of those crimes.

The Popular Constitutional Canon

Abstract: Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same time, other scholars have worked to bring the American people back into constitutional theory by studying the constitutional views of ordinary Americans and explaining the ways in which key social movements shape constitutional doctrine. These scholars, however, have largely ignored the pathways of constitutional socialization—the ways in which citizens learn about the Constitution. An important part of this neglected project is tending to the set of stock stories transmitted by key institutions to ordinary citizens—in other words, tending to the popular constitutional canon. In this Article, I turn to one site of constitutional socialization—American public schools. This visit to our Nation’s classrooms highlights the various ways in which the lessons that we are teaching our schoolchildren undermine popular sovereignty, through mythologizing the Supreme Court, promoting “Founder worship,” and downplaying the constitutional achievements of successive generations. In the end, if public opinion matters to constitutional doctrine and reform, as many scholars argue, then these sites of constitutional socialization are worth studying. * Alpheus Thomas Mason Prize Fellow, Princeton University; Climenko Fellow and Lecturer on Law, Harvard Law School, 2010–12; JD, Yale Law School, 2009; BA, Georgetown University, 2003. This Article arises from years of research, reflection, and conversation spanning a range of institutions and organizations, including Yale Law School, Harvard Law School, the Constitutional Accountability Center, the National Constitution Center, and Princeton University. For their suggestions, encouragement, and inspiration at various stages, I extend my deep thanks to Bruce Ackerman, Akhil Amar, Richard Albert, Andrew Bradt, Stella Burch Elias, Desmond Jagmohan, Michael Klarman, Stephen Macedo, Robert Post, Jeffrey Rosen, Reva Siegel, Steven Teles, Susannah Barton Tobin, and Keith Whittington.

Doctrinal Dynamism, Borrowing, and the Relationship Between Rules and Rights

Abstract: The study of “rights dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can help deepen understandings of the nature of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “doctrinal dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly, for example in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying different constitutional guarantees, and the sometimes inextricable relationship between particular rights and their constitutive doctrines. In this Essay, we explore the definitional challenge—what is doctrine?—before identifying some lessons learned when doctrine migrates between rights, and when it stays home.

Common Law Evidence and the Common Law of Human Rights: Towards a Harmonic Convergence?

Abstract: This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect of certain kinds of evidence on both the weight of the evidence as a whole and on the fairness of the proceedings as a whole. The result has been to encourage a shift in the nature of both their epistemic and non-epistemic reasoning during the trial. In its most recent decisions, however, the Court appears to have drawn back from its more activist stance of setting standards of fair participation in evidentiary matters. Instead, the Court has become more fixated on the traditional common law concern with reliability. This has somewhat pushed back the potential that the ECtHR has to shift the common law toward reaching a more harmonic convergence between achieving truth and fairness in criminal proceedings.

Universal Human Rights and Constitutional Change

Abstract: Many Americans believe that the United States has a tradition of federal constitutional protection for fundamental human rights, dating back to adoption of the Bill of Rights in 1791. That belief is mostly wrong. For most of U.S. history, protection for fundamental rights depended primarily on state law, not federal law. This article documents the transfer of regulatory authority over human rights from the states to the federal government, which we call the “federalization” of human rights. Before 1930, state governments exercised primary or exclusive regulatory authority for most fundamental rights. Federalization occurred in two phases: from 1930 to 1947 (the New Deal revolution) and from 1948 to 1976 (the “human rights” revolution). We show that the period from 1948-76 was the critical period for federalization of human rights law in the United States. This article also examines two other processes that occurred in the same time period: the advent of modern international human rights law (the “internationalization” of human rights) and the incorporation of human rights norms into national constitutions in numerous countries (the “constitutionalization” of human rights). The power of ideas is an important factor that contributes to legal change. The period from 1948 to 1976 witnessed the global diffusion of a distinctive set of ideas that we call the “political morality of human rights.” We contend that the global diffusion of human rights morality was an important causal factor that contributed to the internationalization and constitutionalization of human rights, as well as the federalization of human rights in the United States. Conventional wisdom depicts the United States as insulated from transnational forces that led to the global diffusion of human rights norms. This article contends that the conventional wisdom is wrong. The global diffusion of human rights morality in the decades after World War II contributed to the development of a new tradition of robust federal protection for human rights in the United States.

Considerations of History and Purpose in Constitutional Borrowing

Abstract: This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white supremacy has been linked in the past in dangerous ways that must be accounted for today. Third, in deciding how to juggle a variety of constitutional interests, we must engage in purposivist interpretation, considering not only the goal of particular constitutional provisions, but also how the general enterprise of constitutionalism is affected by interpretive choices. In a time of democratic decline, which we are experiencing today, the borrowing of constitutional ideas and delineation of rights must be done in a way that treats the renewal of democracy as an overriding purpose. Otherwise, judicial decisions will be incapable of aiding perennially mistreated groups or solving intractable problems. Remaining non-judgmental as to warring conceptions of democratic life merely ratifies unequal patterns of power and influence. Fourth, as an alternative to policing rights harmony, I argue that it is a judge's responsibility to help foster an unruly constitutional culture where overlapping rights and values are ubiquitous rather than to be obsessed with maintaining a mythical notion of balance. To do so, judges should pursue these twin goals: (1) ensuring the durability of connections between key constitutional values and (2) permitting one closely related value to be substituted for another when doing so is consistent with our constitutional past and can aid the project of democratic renewal.

Epilogue: From Too Tall to Trim and Small

Abstract: The William & Mary Bill of Rights Journal dedicates itself to the study of constitutions. Although the Journal begins in (and with) the United States, it also comparatively looks abroad to foreign venues. In light of its mission, however, the fact that the Journal holds a symposium on international law is a somewhat nifty—perhaps even outré—move. It is so because one major difference between law at the international level and law at the national level is that law at the international level lacks much in the way of intentional constitutionalism. While considerable scholarly work posits (or questions) an emergent constitutionalization of international law and the idea(l) of global constitutionalism, one thing remains clear: the international legal order is bereft of any formal, unitary constitution. Assuredly, there are “constitutionalish” instruments at the international level. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are two that spring to mind. Many other widely ratified international instruments serve “constitutionalish” functions to protect and empower specific groups: conventions, for example, promoting the best interests of the child, the elimination of all forms of discrimination against women, and the rights of persons with disabilities. Certain public international organizations moreover may have their own enabling instruments that functionally structure their internal and external operations and define them as legal entities. These instruments are more institutional or constitutive than constitutional, however. They can be loosely analogized to corporate articles of incorporation.

Protecting the States from Electoral Invasions

Abstract: Since the 2016 U.S. presidential election, the threat of foreign interference in U.S. elections has loomed large in the minds of the American public. During the 2016 campaign season, Russian government-backed hackers infiltrated the networks and computers of the Democratic National Committee (DNC), the Democratic Congressional Campaign Committee (DCCC), and various campaign officials, harvesting private information and installing spyware and malware for ongoing intelligence purposes. U.S. intelligence officials have indicated that, using similar tactics, the Russian hackers also targeted election systems and officials in all fifty states, successfully breaching at least two of those states’ election systems, Illinois and Florida.

Merging Offensive-Speech Cases with Viewpoint-Discrimination Principles: The Immediate Impact of Matal v. Tam on Two Strands of First Amendment Jurisprudence

Abstract: This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as an offensive-speech case and when it should be treated as a case involving viewpoint-based discrimination.

Servitude and Captivity in the Common Law of Master-Servant: Judicial Interpretations of the Thirteenth Amendment’s Labor Vision Immediately After Its Enactment

Abstract: In the 19th century, the American common law of master and servant was a system of subordination principles designed to command and capture the labor of workers. Blackstone’s Commentaries was the received common law, from the nation’s early days through the settlement of new states in the American West. Blackstone’s Chapter 14, organized the legal rules into a system of subordination as formal inequality. As the system’s foundation, Blackstone used slavery, rather than partnership or voluntary free labor. Thus, when the nation abolished slavery by the 13th Amendment, the structure’s foundation was implicitly undermined. Moreover, during Reconstruction, the Radical Republicans, who dominated the post-War Congress, engaged in a sweeping anti-subordination agenda marked by multiple reform initiatives. Oppressive labor systems that they found to be slave-like were deemed “anti-republican.” An egalitarian, leveling ethos held sway as Reconstruction brought about a revolution in basic rights. Yet, this ethos did not find its way into a revision of all of the subordinating principles in the nation’s common law of master and servant. In the years immediately after its enactment, the anti-subordination agenda lost ground. The 13th Amendment was subject to different interpretations as state courts, analogized more broadly or narrowly, depending upon their state’s position as a former slave state or free state. As a result, the nation’s received common law was never completely reordered upon a new foundation of fully free labor.

A Cleaner, CRISPR Constitution: Germline Editing and Fundamental Rights

Abstract: On August 2, 2017, genetic engineering once again burst into the world. On that date, a team of international researchers published their latest experiment. These researchers used CRISPR/Cas9, the newest and most controversial genetic engineering technology, to edit a portion of a human embryo. They succeeded in removing a genetic heart disease, known as hypertrophic cardiomyopathy, from the embryo’s DNA. Not only was this the first time researchers created a genetically modified embryo in the United States, it was the first time researchers successfully edited the DNA of an embryo, ever. The experiment had groundbreaking consequences. This breakthrough sheds light not only on a future of cheap and safe genetic engineering, but also a future that morphs and modifies our conception of humanity. Even before CRISPR/Cas9, scientists and public figures warned against allowing such technology in fear of dystopia and the advent of “designer babies.” CRISPR/Cas9 has made that prospect a foreseeable reality. CRISPR/Cas9 capabilities in gene editing deserve a constitutional conversation. Because of the novel nature of this technology, scholarship concerning the legal implications and constitutional dimensions of gene editing is scarce. Now that the technology is at the doorstep of the United States, courts and legal scholars should

State Empowerment and the Compact Clause

Abstract: INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776 I. THE SCOPE OF THE COMPACT CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 779 A. The Historical Origins of the Compact Clause . . . . . . . . . . . . . . . . . . 779 1. Compacts in the Colonial Period . . . . . . . . . . . . . . . . . . . . . . . . . . 780 2. Compacts Under the Articles of Confederation . . . . . . . . . . . . . . . 780 3. Debates at the Constitutional Convention . . . . . . . . . . . . . . . . . . . 781 B. The Legal Development of the Compact Clause . . . . . . . . . . . . . . . . . 785 1. Congressional Consent Requirement . . . . . . . . . . . . . . . . . . . . . . . 786 2. Treatment as Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 789 II. SHOULD THE COMPACT CLAUSE BE SUBJECT TO PRESENTMENT? . . . . . . . 792 A. The Constitution, State Legislatures, and Consent . . . . . . . . . . . . . . . 793 B. The Presentment Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 796 C. English Executive Precedent and Its Meta-Theory . . . . . . . . . . . . . . . 799 D. America’s Conceptual Revolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801 E. Modern Separation of Powers Precedent. . . . . . . . . . . . . . . . . . . . . . . 805 F. Article V and Presentment: The Constitutive Power . . . . . . . . . . . . . . 808 1. The Higher Law: The American Conception of Popular Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809 2. The American Experience with the Constitutive Power . . . . . . . . 814 G. Article I, Section 10, Clause 2 and Presentment: The Interstitial Import-Export Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 817 1. Text, Context, and Separation of Powers. . . . . . . . . . . . . . . . . . . . 818 2. Structural Incompatibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 820 H. Article I, Section 10, Clause 3 and Presentment: The Interstitial Regulatory Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 823 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 826

"Great Variety of Relevant Conditions, Political Social and Economic": the Constitutionality of Congressional Deadlines on Amendment Proposals Under Article V

Abstract: Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing deadlines on amendment proposals began in 1917 with the Eighteenth Amendment, but has not been consistent since. Deadlines appear to have originated as an effort to torpedo amendments by opponents, but have since become almost pro forma. Some argue deadlines ensure finality and closure;8 others argue they infringe on the power of states to control the ratification process free of unconstitutional limitations imposed by the national legislature. With the 1992 ratification of the Twenty-Seventh Amendment after 203 years, and state ratifications of the ERA after 35 years,11 the issue of congressional deadlines is both front and center and of potentially enormous consequence. This Article examines the history, theory, and policy of amendment deadlines and argues that they are unconstitutional limitations on state power, inconsistent with the federalism guarantees of the founding. This issue will almost certainly require resolution by the Supreme Court, which needs to give the issue of congressional deadlines its most thoughtful attention.

Human Rights in International Criminal Proceedings : The Impact of the Judgment of the Kosovo Specialist Chambers of 26 April 2017

Abstract: By their very nature, international criminal tribunals will in their operation impact individual rights, such as the right to liberty and the right to a fair trial. Without a constitution and without a history in developing due process norms, international criminal tribunals have to provide for instant incorporation of human rights in their respective criminal proceedings. However, the circumstances under which international criminal tribunals are established are often complex, while at the same time their creation is considered to be a matter of urgency. As a result, there may not always be sufficient attention to human rights law’s position and rank in the applicable sources of law during the creation of international criminal tribunals. In practice, the effect of human rights law in international criminal proceedings has proven at times to be problematic. Without elaborate written procedural rules, it may be uncertain what the precise scope of the proceedings’ interference with individual rights and liberties is, or ought to be. On April 26, 2017, the Constitutional Chamber of the Kosovo Specialist Chambers (KSC) reviewed the due process content of the KSC’s newly drafted Rules of Procedure and Evidence (RPE). It concluded that the RPE adopted by the Judges were inconsistent with human rights in a number of ways, especially because of its lack of sufficiently detailed rules governing investigations which interfere with individual rights, such as search and seizure operations and wiretaps. It raises the question—the subject of this Article—whether the KSC has raised the bar in terms of the principle of procedural legality and whether the current loose approach in international criminal proceedings to investigative powers is in violation of international human rights law. If this research question is answered in the affirmative, it would necessitate a significant overhaul of the organization of international criminal proceedings, especially in its pretrial phase. In order to answer the aforementioned research question, I first provide an overview and analysis of the position of human rights in international criminal proceedings. Next, I examine how international criminal proceedings have been organized in relation to international human rights law. In Part III, my focus shifts to the KSC, where I first provide information and background on the creation of the KSC before ultimately analyzing the April 2017 judgment of the KSC’s constitutional chamber. Its impact on the protection of rights and the organization of international criminal proceedings will be the subject of Section V.B. The Article ends with concluding observations.