Who are “We The People”?

The preamble to our Constitution identifies those to whom it applies with the opening phrase “We the People of the United States”. But who exactly are these people? Recent disputes related to immigration, and in particular to illegal immigrants, make this a crucial legal issue. Focusing more closely, I want to address this question. “What exactly makes someone who is not a US citizen or a qualified alien eligible for constitutional protections?” Two Supreme Court decisions are most often quoted in reply to this question.

In Kwong Hai Chew v. Colding (1953), the Court found in an 8-1 decision that a permanent resident of the United States could not be deported without a hearing under the constitutional right to due process.

In Plyler v. Doe (1982), the Court held that a Texas statute which withholds from local school districts any state funds for the education of children who were not “legally admitted” into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. The issue of jurisdiction was found to be irrelevant.

But note that both of these cases were understood to apply to persons who are residents of the US. So the issue devolves into what constitutes residency.

Consider the following hypotheticals and see if you can discern a bright line that clearly indicates residency in the US. Have any of the following individuals established residency that is sufficient to qualify for constitution protection?

Someone who approaches the US border and plants his left foot firmly on US soil?

Someone who is standing in Mexico, while waving one foot in the air over US soil?

Someone who visits the US Embassy in Germany? (Our embassies are sovereign territory.)

Someone flying over the Aleutian Islands on a trip from Canada to the Far East?

Someone who trips on a tree stump in Canada and lands on US soil?

Someone who falls overboard into US territorial waters while exercising free rights of passage?

Can you answer these questions confidently, using a clear and unambiguous rule? I believe that I can. The writers of our Constitution never intended that incidental or even deliberate touching of US territory in and of itself confers any kind of claim for Constitutional protection whatsoever. They intended this to apply only to those who purposefully enter our territory, with our explicit or implicit permission, and with the clear intention to remain more than momentarily. There is no other possible reading of either the Constitution or our founding documents like the Federalist Papers. Thus, my answer to all of these questions is “None have established residency.” Do you disagree?

Now consider how the preceding might apply to those sneaking over our southern border. At which point will they have established residency? We have both laws and customs that grant a hearing for claims of refugee status from prospective immigrants. But as far as I know, we have no laws that grant status to those who can’t find sustenance where they now live, or who are at risk from endemic criminality in their homeland, or who simply want a better life for themselves and their families. For those with valid refugee claims, we have policies and procedures in place to process them. But none involve sneaking over our borders.

It is fair to respond that our policies are sometimes overly restrictive and are almost always ponderously slow. But if we can truly claim to be a nation of laws, then these criticisms cannot override legal considerations.

The bottom line seems to be that people trying to avoid our ports of entrance don’t achieve resident status thereby, and hence they are not yet one of “We the People of the United States”. We can grant them due process at our discretion, but I see no constitutional requirement to do so. However, it remains an open question for those clever or lucky enough to escape detection and actual take up residency within our borders.

In his usual bombastic manner, President Trump has called for prompt expulsion of those caught while violating our borders, without due process of law. This has been widely condemned, but I am not so sure that he is entirely off-base with this idea. An old Southern expression comes to mind, “Even a blind hog can find an acorn once in a while.


Justice Ginsburg v. Donald Trump


The media are agog over Supreme Court Justice Ruth Bader Ginsburg’s diatribe against Donald Trump. “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” She even half-jokingly suggested that his election would trigger her move to New Zealand. It isn’t surprising that she opposes his candidacy, but saying so publicly and in such strong terms crosses historical boundaries for Supreme Court Justices.

Most federal judges are bound by the Judicial Code of Conduct that says that judges should not “make speeches for a political candidate, or publicly endorse or oppose a candidate for public office” or “engage in any other political activity.” But that rule specifically does not apply to the Supreme Court. However, as far as I can determine, no Supreme Court Justice has ever violated it before. Of course, they are free to express opinions privately, so their views are often informally known.

Justice Antonin Scalia, like Justice Ginsburg, had a reputation for outspokenness. In 2003, he recused himself from a case involving a challenge to the words “under God” in the Pledge of Allegiance, after having publicly criticized a lower-court decision that sided with the challenge. In 2004 however, he declined to recuse himself in a case involving Vice President Dick Cheney, rejecting a request that he should sit out because the two men had gone duck-hunting together. These instances are not quite comparable to Justice Ginsburg’s political outburst, but they show that recusal can become a real possibility whenever impartiality is even slightly at stake.

I believe that Justice Ginsburg went far further than either of these instances and, indeed, that she crossed an ethical line. If Trump is elected, she may have to recuse herself often or bring disrepute upon the Court. This might arise from disputes about the November election or questions concerning executive actions. Remember the Florida ballot in the 2000 contest between Bush and Gore? Who would doubt that Justice Ginsburg might put her thumb on the scales of justice in a comparable situation?

Frankly, I think it possible she would retire in this event even though that would permit Trump to name her replacement. She must know that it is unlikely that she would survive eight years more on the Court anyway. She is 83 and in frail health. She has spoken vigorously about her desire to remain as long as she can be productive, and offering Trump the opportunity to shift the Court to the right would be anathema to her. Still, one can’t ignore reality.

lady_injustice001573_displayThe internet is rife with opinions on this matter. There are the usual rants by the uninformed, but even many legal experts disagree on the question of propriety and on the possible consequences. In general, those supporting her don’t base their arguments on legal or ethical grounds. Rather they seem to believe that Trump represents such an existential threat that no restraints on opposing him are valid or reasonable. That sounds to me like a veiled call for violence. In our current condition of fragile peace and comity, that is very dangerous and I condemn it. Some legal experts base their arguments on First Amendment rights, which they evidently feel outweigh the crucial requirement for judicial impartiality upon which our entire legal system depends. That requirement is sometimes unfulfilled even by the Supreme Court, as some disreputable decisions have shown. But the aspiration toward a blindfolded Lady Justice should always be the goal, and no one has a greater responsibility for this than a Supreme Court Justice.

Innovation in Crime Fighting

Several American cities have tried or plan to try a program to pay criminals not to commit crimes. Richmond CA was one of the originators, where typical payments are a relatively modest $9,000 per year. Washington DC is considering a similar program. Chicago, Boston, Pittsburgh and Baltimore have tried these programs with mixed success over the last two decades. Of course there is more to this than just simple bribery. Recipients also are expected to participate in rehabilitation programs. Still, at the root, bribery is exactly the motivating technique.

BribeTNThese experiments haven’t been in place long enough to evaluate them properly, but there is a case in point from 1600 years ago to guide us. The Romans tried paying off the Visigoths to persuade them not to sack their cities. Sometimes it worked, or at least the payments satisfied their enemies for a while. Eventually, however, the Visigoths realized they could have their cake and eat it, so to speak, and thus Rome fell.

The longest lasting program, in Richmond, came about from an astonishing discovery. In 2009, 70% of their deluge of homicides and firearm-related assaults were believed to have been committed by just 17 people. The authorities thought, what if they could just buy them off before they committed their crimes? It isn’t that hard to identify likely candidates, who typically are gang members with long rap sheets. But if you are going to commit a serious crime – bribery – to reduce the threat of other crimes, my impulse would be to go all the way. What if they just assassinated their bribery targets? It would probably cost less and would definitely be more certain.

Could this work with ISIS? It is frequently asserted by sympathizers that many young Europeans and no doubt some American youth are drawn to ISIS partly because they see no path to a fruitful life. Few and mostly dead-end jobs, deteriorating neighborhoods and an unfriendly society push these disaffected youth into accepting the siren call of ISIS. For the subset for whom idealism is not the prime motivator, why wouldn’t a big payoff succeed in persuading them that there is an easier and safer route to happiness? If this were in the form of regular payments which must be picked up in person, the incentive to stay would be quite high, don’t you think?

Perhaps we might somewhat alleviate our problem of burgeoning prison costs by just releasing selected criminals and putting them on the dole. Murderers with a death sentence would be prime candidates because of the horrendous cost of our time-consuming and often fruitless attempts to off them.

Hey, what about paying members of Congress to resign and desist their criminal enterprise? There seems to be no end to the possibilities of buying our way out of trouble, and many would likely produce a net financial gain. Initially I was skeptical of this crime management approach, but I am beginning to warm to it now that I see the potential.



What if she takes the Fifth?

Judge-Emmet-G-SullivanA provocative possibility looms in Hillary’s e-mail controversy. The presiding judge, Emmet G. Sullivan, has suggested that deposing Hillary under oath may be necessary and says that he wouldn’t shrink from that in spite of the political situation. Judge Sullivan was appointed to the U.S. District Court for the District of Columbia by Bill Clinton in 1994, and he has presided over complex and politically controversial cases before. We should take him at his word.

Now just suppose that this happens and that he asks a question that her lawyers think might expose her to criminal prosecution. They would undoubtedly advise her to claim the protection against self-incrimination afforded every citizen under the 5th Amendment of our Constitution. What if she does? After all, she is a skilled attorney herself and fully understands the folly of disregarding her best legal advisors.

There should be no adverse conclusions drawn from asserting this right, but let’s be honest. We know exactly what Republicans would make of it and how they would seek to exploit it in the Presidential contest. But how would her supporters react? I suspect that the vast majority would remain loyal. They could logically rationalize that it proves nothing, that all politicians have skeletons in their closets, and anyway that she remains far superior to her opponent, whomever that might be. But that might not be true for weakly attached voters. At the fringes of her support coterie, this might be enough to break them loose, perhaps not to vote against her but rather to stay home and abstain in disgust. Everyone anticipates a close election. Well, perhaps not everyone, as there are many dreamers on both sides of the political chasm. But if it is close, this might have a significant impact.

Or maybe not. The one certainty in this weird political season is that predictions are especially hazardous. And in any case, all of this is pure speculation and rests upon several somewhat flimsy hypotheticals. Rest easy, you hopeful Democrats, none of this may come to pass.

The Cuckoos Are Chirping in California

52715-Crazy-California-LawsI live in California, and I love it. But I can’t deny the likelihood that Truman Capote may have had it right when he claimed, “It’s a scientific fact that if you stay in California you lose one point of your IQ every year.” And our long-term residents in the California legislature may be proving this once again.

There is a bill, SB-350 “Clean Energy and Pollution Reduction Act of 2015”, that has passed committee review and is headed for likely passage in the Senate. The goals of the bill seem well-intentioned and they exhibit a California characteristic of leading the nation toward a safer, self-sustaining environment. These goals are to achieve the following by 2030: (1) a 50% reduction in petroleum used in motor vehicles; (2) a doubling of the energy efficiency of all existing buildings; and (3) generating 50% of total retail sales of electricity from renewable resources.

This is ambitious but no one achieves great things without great goals. But wait a minute. A close reading of the actual bill reveals something a bit different, and in my mind anyway, a bit wacko. Let’s say, California-style wacko.

Notice that the terminology used above refers to “goals”. But when you read the text you discover that the 50% goals have transmuted into requirements. In fact earlier drafts did phrase these as goals and that was changed. There are other provisions that require technical evaluations to see if this is feasible. Am I the only one who notices that this is backwards?

In other sections there are requirements to evaluate cost impacts. Nice, but what then? There are no restrictions based on these cost impacts. I suppose whatever they are, they are. It’s good to know what disaster is about the befall you, but don’t you think it is better not to undertake anything without first assuring that the cost can be borne without winning the lottery?

NICE elec car charging-420-90Take the motor vehicle provision for example. The plan envisions switching over to 70% all-electric vehicles, with the full required refueling infrastructure that this implies. Keep in mind that this change would effectively bankrupt much of the current gas station infrastructure. I suppose some stations could switch over to becoming gigantic electrical sockets but I don’t see how that would work. Charging takes much more time than just siphoning gas into your gas tank. We’re talking hours rather than minutes. Once this new regime is in place, remaining actual gas stations would become few and far between so that the other 30% of cars and all interstate vehicles would have to take their chances on California highways. Originally, the bill’s authors considered allowing hybrid or alternate fuel source cars but that was edited out of the current draft. No half measure here!

Massively switching our electricity generation to low-carbon emission methods is technically feasible. All we have to do is go the whole hog on nuclear power. But that must start immediately and on a massive scale, and the review process must be accelerated tenfold. Any other approach is just a dream. Do you like that prospect? I don’t.

It’s all a bit weird when you consider it. For California to single-handedly take on this venture completely on its own is breathtaking. It is equivalent to the United States unilaterally trying to solve world-wide pollution without any other countries participating. Is it conceivable that we could set up our own little ecological utopia in California? Everything is connected. We have adjacent states with which we have extensive commerce. We have international commerce too. All would be impacted. The bill makes no mention of setting up barriers on our interstate highways to bar cars and trucks from elsewhere. But without that, the rules are meaningless other than greatly inconveniencing our residents. It is true that California has been a leader before in setting gas mileage and auto fuel standards, but that pales before this vast undertaking.

I could see a bill directed at achieving the maximum change that is technically feasible and economically sound, but who knows if that means 50%? I am not entirely sure that this isn’t some kind of enormous practical joke. If so, they certainly took me in. Perhaps the idea of establishing a fixed target for improvement is that it is the only way to ensure action. In any case, it is self-limiting. For example, you could pass a bill saying the there shall be no more forest fires that threaten our homes. That won’t make it happen of course, so what’s the harm?

Innocent Unless Proven Guilty?

Have you ever served on a jury? I have, multiple times, and I recently received yet another jury summons. On balance, I really don’t mind although it is often inconvenient. For one thing, the experience can be interesting. But more importantly it is probably our most vital civic obligation, much more important than voting because each juror has a far greater impact. If you were unfortunately caught up in the criminal justice system, wouldn’t you want the best and most attentive jurors for your trial, not just a bunch of unhappy saps who couldn’t find a way out of serving? So, next time you are called, suck it up and do your duty.

In California, where I live, they have improved their system so that it is no longer necessary to endure the tedium of long waits in the jury assembly room. You just call in each of five consecutive days to see if they need you. If you are called, either you are assigned to a jury the following day or your service is complete. They call it “one day, one jury”. Of course there is always the risk of being selected for a mega-trial lasting weeks or even months.

But I think there is a fundamental flaw in our system of dispensing criminal justice. Directly or indirectly it has arisen in several trials on which I was a juror. We are not allowed enough leeway in reaching a decision. For each individual count of the indictment, we simply choose either guilty or not guilty. There are no shades of gray. Either guilt is proven beyond a reasonable doubt – often a difficult concept in itself – or the defendant is deemed innocent of the charge. In fact, during jury selection, the judge invariably asks each juror if he understands the concept of “innocent unless proven guilty.”

innocent-guiltyThat phrase embodies the flaw that I see. The fact that guilt is not proven is hardly evidence of innocence except in a convoluted legal usage. In many trials, jurors struggle with this issue. They may be convinced that the defendant is guilty, based upon all of the circumstances involved, but are faced with a prosecution’s case that is too weak for a guilty verdict. I have served on such a trial, a capital murder case. Our jury was almost positive that no one but the defendant could have committed the crime, but we found the actual evidence insufficient to meet the high standard of “beyond a reasonable doubt.” So, with some regret and dismay, we followed the law and freed the defendant. I suspect that there have been instances where juries flinched at deeming a defendant to be innocent and used jury nullification to ignore the judge’s instructions.

In the case of an insanity plea, the conflict is even clearer. Who believes that John Hinckley, Jr. is innocent, in the common use of the term, of the attempted murder of President Reagan? At best, legal insanity is an excuse for a criminal act, not a refutation of its facts.

simpsonA partial resolution of this flaw is offered by the Scottish verdict of “not proven”. This is a form of not guilty verdict in which the jury expresses their belief that the defendant may not be innocent of the crime. The humorous form of this verdict is “not guilty, and don’t do it again.” Some taint remains even if the defendant walks free and that eases our conscience to a degree. At least the accused won’t be able to stand smirking on the courthouse steps and gleefully proclaim his exoneration. Given this option, juries may be a little less inclined to violate their oath to follow the law.

Supreme Court Ideology

TheFightThe relationship between the Presidency and the Supreme Court has often been a rocky one. Supreme Court justices have human frailties and a lifetime of developed opinions and political leanings. It is nonsense to pretend otherwise, although all go through the sham process of claiming total impartiality during their confirmations. Perfectly aware of this reality, Presidents try to select new justices who seem to lean toward the President’s policy agenda. Then, full of hope, they launch these justices on their Court careers and then watch helplessly as events transpire. Sometimes there are surprises. Justices either reveal heretofore hidden political leanings or they find that the heady atmosphere of the highest court causes them to re-evaluate their previous beliefs.

At the same time, the country as a whole constantly changes, demographically, philosophically and technologically. This inevitably affects the justices, and properly so. The Constitution is a living document, notwithstanding the antediluvian thinking of originalists like Antonin Scalia. As times change so do standards, beliefs and expectations, and this affects both the workload of the Court and the way in which justices interpret the Constitution.

As you might expect, given the powerful effects of Court decisions, the political leanings and evolution of members have been seriously studied. One of the best and most often quoted studies is by Andrew Martin and Kevin Quinn. Using refined statistical techniques, the Martin-Quinn Score measures the ideological leanings of every justice from the term starting October 1937 to the one starting October 2013. This is graphically shown below. Note that the vertical scale and zero point are arbitrary; only the relative distance of the lines and their changes over time are significant. Each unique color represents a particular Court seat, so that transitions from retiring justices to their successors are easy to follow. Black lines designate Chief Justices, who have an outsize influence on the Court. The yellow line is an estimate of the median justice, showing how the court as a whole has evolved over time.

Graph_of_Martin-Quinn_ScoresThis graph is very revealing. Some of my conclusions are summarized below, but the overall significance seems to be that the popular conception of a static court, jarred only by periodic changes in personnel, is clearly wrong.

  • With a few exceptions, the justices’ ideological leanings change over time, often significantly. Look at Owen Roberts, William O. Douglas, Thurgood Marshall, and John Paul Stevens for example. Sometimes this is more a function of the kinds of cases considered, but the bottom line is that almost all justices evolve in their thinking. Rarely do liberals turn conservative, or vice versa, but two examples of such turnarounds are Stanley Forman Reed and Harry Blackmun. And John Paul Stevens was hardly a reliable force in either direction.
  • Presidents sometimes get it badly wrong or perhaps are misled. No doubt FDR was disconcerted by Felix Frankfurter’s switch to a staunch conservative. I am sure Eisenhower was upset at Earl Warren’s progressive evolution, and Bush ’41 must have been dismayed by David Souter.
  • The current court consists of two Reagan appointees, one by Bush ’41, and two each by Clinton, Bush ’43 and Obama. Thus this Court trends conservative and, as the graph shows, this was a considerable and increasing trend by the end of the 2013 term. But something odd appears to have happened in the current term and I have discussed this unexpected occurrence in another post.
  • Sometimes voters choose a President partially because they hope he will have the opportunity to mold the court through appointments. This often doesn’t work as well as it is supposed. One factor is that Senate confirmation can be a difficult filter on extreme choices. But occasionally, as noted above, the unexpected occurs. Nixon was able to select Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. This is more that most Presidents can accomplish. His choices were predictably conservative but not really reliably so, and they hardly changed the median justice line at all.
  • There are four current justices who are over 77, two Reagan appointees and two by Clinton. Thus, the next President will very likely change the Court’s predominant ideology, but exactly how may be a surprise to us and perhaps even to him (or her).