Tuesday, November 24, 2009

Something on Which We Can All Agree - Less Government in Criminal Justice

At last - something on which the right and left can agree....

In "Right and Left Join Forces on Criminal Justice," Adam Liptak describes how both conservatives and liberals are coming around to a position of agreement that government exercises too much power on matters of criminal justice. (The notion of excessive government power is something I've discussed here previously.)

It is great news for all libertarians - civil, progressive, minimalist alike - that conservatives are coming around from their "tough-on-crime" posture they've held since the days of Nixon, to recognizing that government simply too involved in criminalizing individual activity.

Liptak reports:

"'It’s a remarkable phenomenon,' said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. 'The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.'"

"Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

"Mr. Meese once referred to the ACLU as part of the 'criminals’ lobby.' These days, he said, 'in terms of working with the ACLU, if they want to join us, we’re happy to have them.'

"Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“'The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,' Mr. Thornburgh said. 'Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the ACLU.'"

A Heritage Foundation report shows that there are "more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent."

Liptak continues: "Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, 'Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

"The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“'Libertarians and the civil liberties left have always had some common ground on these issues,' said Radley Balko, a senior editor at Reason, a libertarian magazine. 'The more vocal presence of conservatives on overcriminalization issues is really what’s new.' ... 'Conservatives now recognize the economic consequences of a criminal justice leviathan,' said Erik Luna, a law professor at Washington and Lee University."

It is a rarity for folks from across the political spectrum to find common ground; but it is encouraging that there seems to be some broadening agreement on lessening the proliferation of criminal statutes.

Wednesday, November 18, 2009

McDonald v. Chicago - Petitioner's Brief

The Petitioner's Brief in the McDonald v. Chicago case, involving whether the 2d Amendment applies to the states, has been filed in the Supreme Court. See it here.

The brief spends 66 of its 73 pages arguing that the proper constitutional mechanism for incorporating the 2d amendment is the fourteenth amendment privileges or immunities clause (a provision that was improperly buried by the Supreme Court 136 years ago, in The Slaughter-House Cases - as I've discussed in these pages previously); then makes the conventional due process argument in the remaining pages.

Alan Gura, the attorney for the petitioners, recognizes the rare opportunity this case provides to right a monumental wrong that was perpetrated by a Southern-sympathetic Court after the Civil War, and he's done a terrific job making the arguments in this brief.

(My two articles on this topic - "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" (in the 2007 Missouri Law Review); and "Rescuing the Privileges or Immunities Clause: How 'Attrition of Parliamentary Processes' Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" (in the forthcoming 2009 William & Mary Bill of Rights Journal) - are cited in this petitioner's brief at pages 29 and 52, respectively.)

Thursday, November 12, 2009

Destroy the Filibuster

Anybody besides me disgusted and discouraged with the healthcare debate?

Don't get me started.... Let's just limit the topic for the moment to the entire idea that 41 senators can essentially destroy legislation a majority of Americans AND a majority of Congress want. This is egregiously anti-democratic. Harold Meyerson in his "The Do Nothing Senate" column in the Nov. 11 Washington Post describes the problem well:

"A catastrophic change has overtaken the Senate in recent years. Initially conceived as the body that would cool the passions of the House and consider legislation with a more Olympian perspective, the Senate has become a body that shuns debate, avoids legislative give-and-take, proceeds glacially and produces next to nothing. ... With each passing day, the Senate becomes more of a mockery of the principle of majority rule -- democracy's most fundamental precept."

So it's time to destroy the filibuster. (See, e.g., Chris Bowers' "Open Left" blog of November 10.) It used to be that the filibuster was used only rarely; now it is used on virtually any legislation - and this outrageously undemocratic practice is standing in the way of Progress.