Our Republic's Long Tale Continues

“Your tale is of the longest," observed Monks, moving restlessly in his chair.  “It is a true tale of grief and trial, and sorrow, young man," returned Mr. Brownlow, "and such tales usually are; if it were one of unmixed joy and happiness, it would be very brief.”

― Charles Dickens, Oliver Twist

Hot and steamy summer days cause the mind to wander to hot and steamy days of yore.  In a sweltering July in 1925 - entertainment came from the radio as Bessie Smith and Ma Rainey's blues songs mingled with Tea for Two and If You Knew Susie to top the popular music charts.  Not much was happening in southeastern Tennessee so folks came from miles around to a courtroom - no matter what the temperature, the trial of John Scopes was the hottest thing that summer.  The Tennessee Legislature had recently passed a criminal law prohibiting the teaching of evolution from grade school through college, punishable by a fine.  With trial as theater and the ACLU advertising free representation, a civil liberty-minded group recruited Mr. Scopes, a general science teacher, to act as plaintiff challenging the law.  Friends of Scopes agreed to prosecute the case.  Along with an illustrious team, the great Clarence Darrow defended Scopes and William Jennings Bryan defended the law.  Every person involved in the trial had agreed to his role before it began...indeed Darrow asked for a guilty verdict in order to challenge the constitutionality of the law.  He got it.  And, in a masterful - though, to Darrow not at all satisfying - ruling, the Supreme Court of Tennessee did not reach the constitutionality of the law but reversed on a technicality (the law required a jury to fix the fine but the jury had been dismissed prior to the judge's administration of the $100 fine in violation of the law.).  It may very well be that the Supreme Court of Tennessee felt hoodwinked into the melee and chose to step aside rather than fight.  If so, it deserves more kudos than anyone involved in the phony trial.

The law would remain on the books until 1967, a year before the Supreme Court of the United States would rule - on a wholly different (and as Justice Black noted, unconstitutionally vague) anti-evolution statute in Arkansas - that such types of laws infringing upon teaching and learning violate the First and Fourteenth Amendments.  Considered a "landmark case", Epperson v. Arkansas in reality is as phony as the Scopes situation.  Mrs. Epperson, a teacher, was not charged under the law; she sued the state under First Amendment principles even though it appears that evolution was widely taught in Arkansas schools with no threat of prosecution anywhere.  By all accounts, the state's lackluster argument to uphold the statute indicated that it did not care about the outcome. Mrs. Epperson had already moved from Arkansas and was teaching - or not teaching - whatever she wished elsewhere in the country.

Indeed, these laws of fervor, many passed in the roaring 20's when the country fatigued from foreign war sought to nourish an ideal of American roots - in the Age of Prohibition while drink was scarce and crime was growing - when the first migration of African Americans from the Southern states to the great, gleaming cities of the North began - just 6 years after the 19th Amendment, women were taking charge in state houses of Texas and Wyoming - and so despite the quest to return to pre-war normalcy, everything was changing...and that scared people.  So, they did what people have done for as long as people have had language and known fear - they made rules so they could feel less frightened.  Rather than accepting change, they legislated a strict version of morality and decency that never has existed and never could in a diverse and growing nation. 

It's not new - it happens all the time and it is happening still.  On evolution, on climate change, on abortion, on marriage equality.  Perhaps folks believe that if they just make a law then everything that frightens them will go away.  They will "win" with laws.  Legislators of the past said flat-out what they sought to prohibit whether it was alcohol or teaching evolution or intermingling among races.  The statutes seem brutal through the rear-view mirror of our modern society, but it was more honest than today's deceptive approach.  Folks declare that their laws are really not about evolution or climate change or abortion or marriage equality or self-defense at all - they are about balance in education which challenges children to think; a healthy scientific division on man's contribution to the planet's health, if any; a safer medical environment for women; the sanctity of traditional marriage; and the ability to feel safe under threat through the use of force.  Poppycock. Many of the reasons center not on Constitutional principles or prior law, but rather a fundamentalist version of Biblical doctrine.  If those who attacked the laws did so less on a sense of right and wrong and justice and fairness but on First Amendment principles the challengers might be the David to the seeming Goliath.  It worked in Epperson.

Where the old approach presented straightforward language, they were flashes of rhetoric more than enforceable law.  Neither Scopes nor Epperson was prosecuted by the state; both were test cases designed to ridicule the legislature in open court.   But, this is no longer the case.  Despite budget woes, prosecutions, convictions and sentences do not wane.  Legislators are less blatant these days and more clever because they know they will face challenge in federal courts (something revolutionary in the 1920's).  The Supreme Court in the mid-1920's boasted the Four Horsemen of conservatism - McReynolds, Butler, Van Devanter and Sutherland - who are petting zoo ponies to today's Gang of Four - Roberts, Scalia, Alito and Thomas.  The Four Horsemen were balanced by the brilliance and courage of both Holmes and Brandeis but there is no such balance to the Gang of Four.  The Four Horsemen were conservative but not mean-spirited; the same cannot be said for the Court today.  Those in the Gang of Four are not conservative by any definition- they are reactionaries determined to create a nation that never existed from their own version of what is and what should be rather than the world in which they live. So, constitutional challenges today are less likely to succeed than they may have been in the 1920's.

In the 1920's legislators gave lip service to halt progress with no intent to pursue it and this seemed to satisfy the populace.  Today, states are actively defying constitutional principles long decided to a Court very happy to review them while a tiny but powerful segment of society foots the bill.  The Majority Leader of the House of Representatives is on record saying that Congress should not be passing laws, or even amending ones that fall short, but repealing them altogether.  Just as the state legislators pretend they are not seeking to infringe on people's rights with their myriad laws on what can be taught and how medicine should be practiced and whether oil pollutes the planet or just falls harmlessly off the edge, the House Majority leader feigns an interest in effective law enforcement.  With so many laws are on the books, he claims, the Executive Branch cannot possibly enforce all of them.  But, of course, the Legislative Branch has nothing to do with enforcement of the laws so why would he really care?  That is, pass the laws that make sense and allow the Executive Branch to enforce those it wishes to enforce. 

And therein lies the rub.  Regardless of the tools available, prosecution being expensive, states tend to pursue the easiest crimes, and the offenses du jour rather than destructive forces in society.  There is no question that some laws are enforced disproportionately: these include, but are not limited to, overwhelming prosecution for drugs and guns in poor communities with very little prosecution for scams and fraud in wealthy communities.  The state places the resources wherever it wishes.  So, for example states that are changing their laws in order to eliminate abortions will allocate resources to shutting down clinics that fail to abide.  Similarly states with "stand your ground" laws will not prosecute homicides where there is a claim of self-defense.  It really is not the number of laws or the content of the laws that matter.  For example, in Massachusetts, it is still a criminal offense to be a member of the Communist Party (or even to rent a hall to Communist Party members), to provide articles of "self-abuse" such as contraceptives, to cause a miscarriage "unlawfully" (let us know when things get too vague to interpret fairly) and to commit blasphemy, Commonwealth v. Kneeland, 20 Pick. 206 (1838)(never overturned - never again enforced).

John Boehner is leading the charge on dishonesty when he claims that in repealing laws he is seeking to fulfill the role of Congress.  For reference, the role is defined and restricted in Art. 1 sec. 8.  This is not to defend the state legislators trying to enact utterly unenforceable laws whether they be to deny that human activity is devastating the planet or to deny that two people of the same gender can have as valid a relationship and two of the opposite gender or to deny that women will obtain abortions or to deny that the earth is round and 4 billion years old.  Passing a law - even seeking to enforce a law does not make something false true.

In most states, George Zimmerman would have been convicted of a crime after he pursued, shot and killed Trayvon Martin.  We know why Martin was unarmed, but it is not clear why Zimmerman was - and Florida law does not care.  Young men in poor neighborhoods carry guns because they feel afraid of other people around them they know to be carrying guns.  By the "stand your ground" logic, exactly none of them is guilty of a homicide when the gun goes off - it's all self-defense, no matter who started it and no matter what the quibble.  This is not a defense; it is anarchy.  The traditional law of self-defense understands that people will, out of necessity, defend themselves or others by applying reasonable force under the circumstances to repel the force upon them.  Allowing for deadly force in the face of non-deadly force - allowing for pursuit rather than defense -  is so far removed from the roots of criminal justice as to be unrecognizable.

During the Boston Massacre trial John Adams explained that the British Regulars were armed (this was no secret; there was no such thing as concealed muskets) and many of the townsfolk on King Street were armed (again, openly, with clubs).  Deadly force was met with deadly force.  Outnumbered by and angry, armed mob, the soldiers fired out of fear for their own safety.   At no time before the "stand your ground laws" could non-deadly force be met with deadly force, especially when, by all accounts, the person who initiated deadly force also initiated the altercation.  That is not self-defense; at a minimum, it is murder mitigated to manslaughter; but in most jurisdictions, it would fall under some grade of murder.  If the point of a powerful army is deterrence then the point of carrying a gun is to show it, not to use it.

But there was something more in the colonial trial of the Incident on King Street; Adams also arguably asked the jury to acquit the defendants despite any animosity toward them or any law allowing them to convict.  This ancient right of the people to jury nullification has all but disappeared as the laws have gotten more and more insane. So, while Tennessee and Arkansas never had the intent to prosecute the teaching of evolution, had such prosecution occurred, a jury could have acquitted based on its distaste for the law.  Query whether this same jury-nullification process would be available as against a defense at trial.  For example, if the prosecution could illustrate that George Zimmerman did not act out his known ability to stand his ground under Florida law, but rather out of malice, could the jury nullify the defense provided by law rather than the instance where it can defy enforcement of unjust laws in prosecution?

It is a close question.  Rarely does a legislature write laws protecting otherwise criminal acts.  While jury nullification is one means of the people speaking out against the government, can it do so in order to convict rather than acquit?  Oddly, had the Zimmerman matter proceeded as do most felonies, by presentment to a grand jury rather than the cowboy style of prosecution employed, it is probable that the grand jury would not have indicted.  This demonstrates that the problem with the stand your ground laws.  While many are asking for reconsideration of these statutes, state legislatures do not have the same zeal of repeal as does John Boehner.  But it puts a difficult question to the idea of jury nullification whose goal is not to convict where the law is too lenient but to acquit when the law is too harsh.

The Scopes trial was arranged to get Dayton, TN on the map - the population had dwindled in recent years and the town needed some excitement.  The trial - which began, over objection, with a prayer - was broadcast live; the judge even wanted to set up the case in a tent to accommodate the crowds.  It was a carnival, a circus and all for show.  All of the actors were in on the joke.  Even where the people had sympathy for the law and adoration for Bryan, the law was designed as a deterrent not as punishment (the maximum penalty was a $500 fine).  But court cases today are no joke; even if they put places like Sanborn, FL on the map, they are expensive and destructive.

When laws are written as backlash to a changing world, they wreak massive havoc.  Prohibition and the Volstead Act gave rise to the success of organized crime.  Anti-Communist fears caused many people's lives to be upended.  While anti-child abuse laws have always been appropriate, the hysteria of the 1980's against day care providers was a direct assault to women working outside the home.  The rise in anti-abortion legislation even as the number of abortions has remained stable or fallen and even as the procedure has become much safer (most abortions are now medically, rather than surgically, performed) is nothing more than an attempt to strike fear into women; if enacted, it will result in more back alley abortions and deaths (along with a huge expense in shuttling poor women to safe abortion providers).  The rise in educational "reforms" on what people should teach and how in the age of the internet hosting free, amazing, online courses, is simply irrational.

Although they get a lot of press, many of the now-proposed laws mirror those on the books in most states, including Massachusetts.  We have a strict parental consent with judicial override law; we have requirements on explaining what an abortion is and the possible effects; we have a requirement to inform patients seeking an abortion of the alternatives to the procedure.  The question is not always what law is on the books, but its enforcement.  Massachusetts has no interest in expending resources to police a system that seems to be functioning safely and effectively.  As the statistics demonstrate, where abortion is available, fewer people have them and where it is unlawful, more people die seeking them.  While states should provide individual laboratories for experimentation, we know how this one ends up; more poverty and more despair.  It is ironic that the states seeking to restrict abortions are the same ones seeking to expand gun rights. 

Democracy is a funny business.  We want a say in what goes on in our lives but when it really comes down to brass tacks, we are not always happy with the result.  In places where they elect Tea Party activists, they get bizarre, often unenforceable laws that have no bearing on better government.  Those states tend to have higher poverty rates combined with weaker educational systems.  They have a patchwork of criminal laws that do not resemble justice.  This was not the intent or that aspiration of any of the Framers.  They were men of progress and of science and of hope in the ability of people to see beyond themselves for a greater good.

There is not one of the Framers who could understand a stand your ground law; the Wild West was not part of their history - indeed their revolution was a last resort borne from repeated attempts to compromise with Britain.  There is not one who could possibly understand legislating medical procedures; in their world pregnancy and childbirth was left to the auspices of midwives and medical school had not yet been created.  There is not one who would support denying scientific discoveries; theirs was an ongoing quest to learn as much as possible whether by flying a kite or creating a nation.  It is even doubtful that any would scoff at marriage equality; they were more progressive than people give them credit for being.  But, really, democracy is not about the past: it is about the now.

With new laws seeking to restrict voting power, to deny voice, to limit access to medical, nutritional and educational services, to restrict liberty - all of which will be enforced through devoted resources at the expense of promoting the general welfare - we must hold up a mirror and ask what exactly it is that we are doing with our gift of democracy.  John Scopes' "Monkey Trial" was a make-believe media event set up by those who sought to strike down a law.  Contrast that frivolity with the death of Trayvon Martin and the media-driven trial resulting in the acquittal of George Zimmerman.  In Scopes, the point was to make a mockery of the law; in Zimmerman, the law made a mockery of justice.

As the nation was forming, an inquisitor asked Benjamin Franklin what form of government the convention had agreed upon.  He replied that we had formed a republic... "if you can keep it."  It is worth keeping and fighting for, no matter how long the tale of grief and sorrow and trial and truth.  It anticipates mistakes and compromise and trial and error; but gives us all the opportunity to continue to establish a more perfect union.  Together.  For as long as it takes.

Dissolving Political Bands: How Federal Enforcement Powers Trump the Tenth Amendment

As this nation concludes the celebration of its birth 237 years ago, it also commemorates the sesquicentennial of two enormous events that advanced the opportunity for such celebration.   One hundred and fifty years ago, General Grant accepted General Pemberton's full surrender after the devastating siege at Vicksburg.   While the terms included all munitions, out of character for General Grant, rather than his standard "Unconditional Surrender," he paroled the Confederate soldiers as he had no desire to transport, feed, clothe and care for 30,000 more men.  The victory at Vicksburg secured the Mississippi River to the Union and ultimately elevated Grant to General in Chief of the Union Army.  It was an essential victory in the Civil War.

As the Army of the Tennessee hunkered down in Mississippi, the famous three day battle of Gettysburg was underway in Pennsylvania.  That would end with Lee's retreat after three brutal (and somewhat indecisive) days of fighting.  Just as the Battle of Antietam provided Lincoln with the opportunity to issue the Emancipation Proclamation the year before, the Battle of Gettysburg followed by the fall of Vicksburg gave the president the opportunity to remind Americans of their identity along with the decisive goals of the war.  In mourning these brave men, a grateful nation promised to pursue their fight so that they would not die in vain.   Between the roughly 18,000 dead or wounded in Vicksburg and the 51,000 in Gettysburg there were twice as many casualties in those two battles than for both sides combined in the entire Revolutionary War.  This sacrifice had a purpose; the Civil War would forever change this nation and hold it to the promise espoused in the second sentence of the Declaration of Independence we continue to aspire to achieve: that the equality of all is a self-evident truth.

Though the guns have silenced, the fight is not yet over.  In the case of Shelby County, AL v. Holder, Justice Roberts speaking for the majority of the Court declared that the 15th Amendment was not designed to punish for the past, but to ensure a better future.  This is an astonishing rewrite of history because the 13th, 14th, and 15th Amendments were, without question, war reparations designed unquestionably to punish for the past.  The drafters of these Amendments did not carry Lincoln's malice-free hearts; they intended to alter the relationship between the states and its federal government.  John Bingham and Thaddeus Stevens sought to rectify past wrongs by incorporating the first 8 Amendments of the United States Constitution to the states and, to protect civil rights both men knew would be ignored because they had been ignored.  They were architects of a military occupation of the states formerly in rebellion.  Indeed, the same men who drafted the Amendments sought to impeach President Johnson for failing to enforce radical reconstruction of the South through occupation of martial law.

The men who drafted and pushed through these Amendments were not stupid and they were not naive; they were skilled lawyers grounded in constitutional law.  Having lived through war, they were determined to dictate the peace.  Enforcement of the Amendments would prove challenging due, in large part, to failures of the Johnson administration in advancing Reconstruction.  By the time the Grant Administration issued the Enforcement Acts seeking to guarantee the vote to African Americans and quell the rising KKK, the rest of the country was tired and just wanted to move on.  Without denying the overall racist tendencies of the majority population that prevented its full impact, the 15th Amendment was originally intended as punishment.  Given the high numbers of African Americans in the Southern states: roughly half the population of Alabama, Florida and Louisiana and more than half of South Carolina and Mississippi, it was intended to entrench an empowered electorate and a truly republican form of government where previously an oligarchy existed.

Justice Roberts, and the Court, in saying otherwise is deluded.  Indeed, this is not the first time the Court has confused the purpose and intent of the Reconstructionist Amendments.  While early justices (who also rode the circuit) seemed to grasp the metamorphic change wielded by the amended Constitution, See, i.e.  United States v. Given, 25 F.Cas. 1324 (1873) and this blog post, within short order, the Court grew fearful, weak and further from the directive of the revisions - indeed all of its incorrect decisions on the 14th Amendment have since been overturned. See, The Slaughter House Cases, 83 U.S. 36 (1873);  United States v. Cruikshank, 92 U.S. 542 (1875), and Plessy v. Ferguson, 163 U.S. 537 (1896).  To suit its own philosophy rather than the document it is entrusted to uphold, the Court then, as now, glorified the Revolution against Great Britain without so much as a head nod to the required sacrifice of the Civil War where the victorious Union literally rewrote the rules of government.  The original Constitution was a compromise to unify Northern and Southern interests; the Reconstructionist Amendments were the bounty of war victory and did not need to compromise much.

Noting only the 15th Amendment - nothing within it took away state powers; states were still free to establish elections, set standards for voting age, prohibit foreigners (and, as was clear from Congressional banter at the time, women) from voting, but what they could not do was discriminate on the basis of race, color or former condition of servitude which included both slaves of African descent and indentured servants, as both slavery and indentured servitude were outlawed under the 13th Amendment.  And to ensure that discrimination did not occur, Congress was authorized to enforce the Amendment by any appropriate legislation. (As an aside, while both contain identical language on enforcement, note that the 15th Amendment prohibits discrimination in all elections, but the 24th Amendment prohibits poll taxes only in federal, but not state elections.  Putting aside whether states would be wise to establish poll taxes, the 24th Amendment recognizes that the states reserve the power to determine certain aspects of their own elections - the question under the 15th Amendment deals exclusively with race, color and former condition of servitude, not poverty).

The original Framers constrained the powers of the federal government; but for the first time in the 13th Amendment, the Constitution granted new powers to the federal government as against the states (in favor of the people).  How anyone can interpret the 10th Amendment pre-1868 and post-1868 the same on citizenship, due process, equal protection of the laws, voting rights, and slavery of any kind identically strains the imagination.  The Reconstructionist Amendments delegated enforcement authority to the Congress thus any power reserved to the states must succumb to the supremacy of the federal government. 

In Shelby County, the Court says that the Voting Rights Act of 1965 was unusual.  The truth is that the failure of certain jurisdictions to comply with the mandates of the federal Constitution was unusual.  Defiance required significant enforcement legislation.  It takes an enormous leap of constitutional jurisprudence to declare that when the duly elected legislature passes a bill into law or reauthorizes a law for an extended period that this, somehow, is "inappropriate."  Much of the legislation emanating from Congress is truly inappropriate such as the establishment of all-powerful FISA and Immigration courts none of which is subject to Article 3 judicial review.  But guaranteeing the fair access to the polls can never be inappropriate.

Since the ratification of the 10th Amendment, Amendments to the Constitution have shifted power from the state both to the federal government and to the people.  Beginning with the Reconstructionist Amendments, the trend continued with the 17th Amendment decommissioning state powers by granting direct election of United States Senators.  The 19th, 24th and 26th Amendments all contain enforcement language similar or identical to the Reconstructionist Amendments.  Curiously, the now repealed 18th Amendment granted concurrent jurisdiction to enforce prohibition of alcohol.  This language is in direct contrast to the supremacy language of the 13th, 14th, 15th, 19th, 24th and 26th Amendments, all of which relate to individual rights, several relate to voting privileges and election of representatives.  Within the body of the original document, the federal government guarantees to every state in the Union a republican form of government implying by its very nature that citizens retain the right to vote for their elected officials who will, in turn, represent them according to law. US Const. Art IV sec.4.  Amendments to the Constitution duly ratified indicate that the federal government seeks to abide that promise even if it requires intrusion into policies traditionally held by the states when those states fail to protect liberty interests. 

So, the Court is simply wrong in determining that the Amendment was intended benevolently.  It does not guarantee individuals the right to vote - it prohibits state discrimination in voting practices.  If it were seeking to "ensure a better future" as the Court now claims, it would have been worded differently.  It was intended as punishment, specifically to restrict powers of states when they restricted the voting rights of the citizens.   The Voting Rights Act of 1965, including the now defunct Sec. 4, is appropriate; the issue is cleaner than the Shelby County case would suggest - the Court has repeatedly stated that it will not second guess Congress in its determination of policies that otherwise abide by the Constitution.  Why some legislation, for example creating federal crimes where once only states had power to punish can be considered "appropriate" while others such as enforcing the 15th Amendment's promise "inappropriate" simply because the Court disfavors the data used to establish the parameters of the law is preposterous.

More preposterous still is the inane and unsupportable notion that the state governments and the federal government are equal sovereignties; they are not and never have been.  States surrendered significant powers in exchange for an organized Union; the federal government surrendered little and, indeed, averred in the 10th Amendment that ONLY powers not delegated to the United States would be reserved to the states - it does not say that the states retain every single power they had at the time of entry into the Union or that they would continue to retain power despite amendment to the Constitution.  The United States delegated to the federal government the enforcement powers of the 13th, 14th, 15th, 19th, 24th and 26th Amendments ergo states no longer reserve those powers.  This has nothing to do with a love of strong central government or a diminution of federalism; it is simply the language of the Constitution.  The Court was dead wrong in deciding otherwise.

As this sesquicentennial comes and goes - and lingers - the meaning and purpose of those tens of thousands of men dying on battlefields in Mississippi and Pennsylvania, that sacrifice was to ensure the more perfect Union James Madison envisioned.  The intent of the original Framers was to establish a nation without ethnicity, without religion, without class where all who came could develop their potential.  It would take a Civil War and some changes to the Constitution to make that real on paper; it will take the continued will of all of us to envision and aspire to continue to improve upon this Union to ensure that all are free to be who they are, fully equal under the law and in the eyes of their countrymen and women.   Those who signed the Declaration of Independence had no idea how it would all resolve.  Those who lived 150 years ago had no idea that the war would continue for two more years; only after it ended could they see the significance of Vicksburg and Gettysburg.

As illuminated by Abraham Lincoln in memorial to the events that would turn the tide of war and ultimately secure Union victory giving us all this continued opportunity to improve upon our humble beginnings:

Four score and seven [today: eleven score and seventeen] years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

Truer and more appropriate words were never uttered.  In independence there is liberty; in liberty responsibility; in responsibility battles; in battles victories; in victories sacrifices; in sacrifice resolve.

Can the Great Writ Regain its Greatness - Daylight Through the AEDPA

This recent term of the Supreme Court of the United States opened the door to new and welcome discussions of federalism.  There is no argument here of the importance of federalism in regard to the powers of the states to define and expand rights beyond those guaranteed by the Constitution, but it turns federalism on its head to pretend that its purpose is to limit those rights guaranteed to all by the Constitution.  Two cases this term took a back door approach to recognizing this understanding of dual sovereignty in regard to criminal convictions subject to habeas corpus review.  

To clarify, what is meant by habeas corpus is NOT the habeas corpus enumerated in Article 1, Sec. 9[2] of the Constitution as history demonstrates that the Suspension Clause referred to pretrial detention and not prisoners held in state custody.  However, the Judiciary Act of 1867 extended the writ to “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Judiciary Act, ch. 28, § 1, 14Stat. 385 (1867).  Therefore, by 1867, habeas corpus was both a post-conviction remedy and that it applied to state court litigants.  The year following passage of the Judiciary Act welcomed the ratification of the Fourteenth Amendment defining citizenship and thus who was eligible for individual protection of liberty as well as ensuring that the federal government could restrict the powers of the states if they sought to infringe upon the rights of citizens.

It is reasonable to surmise that the Framers included Suspension Clause in 1789 to protect individuals from the power of a strong federal government; it is equally reasonable to surmise that the post-Civil War Congress distrusted state governments to comply with and enforce federal law when it passed the Judiciary Act and the Fourteenth Amendment.  As it turns out, the fear of the original Framers was real, just misplaced.  Rather than an overly aggressive federal government denying states power, individual states had demonstrated a capacity both of armed rebellion and constitutional defiance all to deny individual liberties to their own constituents. The federal government therefore had to step in to states where policies and practices denied protected and enumerated rights to citizens of the United States.  As the nation grew and evolved, as it continues to do, it became clear that states would not necessarily play the protective role envisioned by the Framers; they would instead discriminate- and discriminate in violation of federally guaranteed rights. 

Within a century of ratification, it finally became clear to the Court that the Reconstructionist Amendments changed fundamentally the relationship between the states and the federal government.   State powers never diminished; the federal government merely enhanced its commitment to protecting the very same rights (with a promise that everyone would be included) that it originally promised to protect in the first place.  And because the Supreme Court decides, ultimately, the expanse of those rights, habeas corpus must be guaranteed without much limitation.  That was so until 1996 when Congress passed - the unbelievably titled "Antiterrorism and Effective Death Penalty Act".  As we now know, that very Congress in 1996 overreached by passing another absurdly-named-bill, the "Defense of Marriage Act".


The AEDPA was enacted in response to the tragic Oklahoma City bombing by Timothy McVeigh in 1995.  McVeigh was executed by the people of the United States on June 11, 2001, 8 months after the suicide bombing of the USS Cole in 2000 and 3 months before the airplanes-come-missile attacks of September 11, 2001 calling into question whether the bill was effective at all on the anti-terrorism front.  To be sure, capital punishment was pretty effective in those days boasting the years in which highest number of prisoners lived on death row and the highest number of those killed from death row.  The national trend, however, since that time has been slowly to seek eradication of the death penalty in state after state after state.  The AEDPA failed against terrorism and is now protecting the state power to execute, a power the states are rescinding of their own volition.  However, the purpose of habeas corpus review was never to allow for comity; it was to ensure a foundation of rights for all.

Yet, the AEDPA restricts the timing of a habeas complaint and regulates the kinds of eligible claims for federal review in a manner so severely restricting the right to habeas corpus that it is as broad an overreach of Congressional power in regard to individual access to federal courts as the DOMA was to individual access to basic human dignity.  Just as normal, thinking people cannot be afraid or threatened by their government providing all lawfully wed couples identical treatment in marriage benefits, normal, thinking people cannot be afraid or threatened by their government providing all constitutional claims in criminal cases identical treatment in judicial review. 

Everything in increments, however.  The Court did not this term guarantee a fundamental constitutional right for marriage equality as it did, say, in Loving v. VA striking down a state law criminalizing interracial marriage.  Mr. and Mrs. Loving, lawfully married but of different complexions received a sentence of a year in prison, suspended for 25 years, so long as they left the Commonwealth of Virginia.  In the judge's words, "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."  Indeed, the high court of Virginia - and 15 other states - had previously ruled that the criminal anti-miscegenation statute served a legitimate state purpose of keeping the races segregated.  It was not the violation of the First Amendment and all rational thought - including the state's argument that it punished blacks and whites identically for miscegenation (confusing "equal protection" with "equal punishment") - that made the case easy for the Warren Court because (unlike the current battle for equality) the history and the intent of the Fourteenth Amendment revolved around equality of the races.  As to the eventual guarantee of marriage equality, this will be a state by state battle and it appears that the tide of public opinion favors dignity and respect for all couples.  To be continued...

Back to the AEDPA - last term, the Court decided Martinez v. Ryan which created a tiny workaround the AEDPA's provision that the federal court could deny a claim based upon an adequate and independent state ground (procedural default under state law) in that the Court narrowly carved out a cause of action where counsel was ineffective.  In Martinez, the Court stated that if counsel fell below an ordinary attorney by failing to raise claims thereby making those claims ineligible for federal review due to a state court restriction, that ineffective assistance of counsel claim could establish an avenue for the federal court to consider the claim. The ruling was "equitable" and not constitutional. Finding cause and prejudice to open the habeas door would not release the inmate from his prison.  Rather than entitling the petitioner to relief, it merely allows the federal court to review the underlying claim. 

Building on Martinez in this term, the Court decided Trevino v. Thaler essentially expanding the rule in Martinez to the initial habeas claim in federal court where the state law does not specifically state that ineffective assistance of counsel claims must first be raised in the initial state court proceeding.  Further, the Court decided McQuiggin v. Perkins which avers that a claim of actual innocence can override the strict statute of limitations under AEDPA.  

The dissents argued that states should have finality over their own convictions and putting their own citizens to death.  But the flaw in that idea - and indeed in the AEDPA itself - is that habeas corpus serves the opposite purpose.  After the Civil War, it became clear that the federal government would protect fundamental individual liberties but the states were free to expand those liberties at any time.  This, indeed, had to be the intent of many of the Framers of the original document even in their compromises to ratify the Constitution, as they had already seen the pitfalls of too weak a national government during the period of the Articles of Confederation.  Just as the Court will ensure that states provide minimal liberties to their inhabitants, it will ensure that lawyers provide minimal competence to their clients.  And it will have the power and authority to review individual cases to guarantee these minimal basic requirements.

Habeas corpus creates a post-conviction remedy when trial and direct appeal has failed - designed to release from confinement those who have been convicted in violation of the Constitution.  It did not protect antiquated ideas of federalism; it clamped down on state power.  Habeas corpus vows for the supremacy of the United States Constitution as defined by the Supreme Court within the case and controversy presented.  It is the flip side of federalism, recognizing that state powers must be constrained by the individual liberties guaranteed by the Constitution.  The 1996 AEDPA prohibits Article 3 courts from their constitutional role and seeks to revert to a defunct idea of comity obliterated by the Fourteenth Amendment.  There is no state authority to finality of any verdict or sentence rendered in violation of federal constitutional principles...even if those principles have been suggested but not yet verified by the Supreme Court.  

The "equitable" rather than "constitutional" decisions in Martinez, Trevino and McQuiggin all dance around the fundamental question of whether the AEDPA itself is an overrreach by Congress denying individuals access to the courts. Creating narrow escape hatches through ineffective assistance of counsel claims at any stage of the proceedings and to recognize claims of actual innocence as cause and prejudice relieving the petitioner from the statute's heavy burdens uphold the indefensible AEDPA.  The real question is to determine whether the AEDPA impermissibly restricts the First Amendment right to petition.

Two principles of federalism emerge from the Court's rulings in this current term striking down federal laws.  As to the Voting Rights Act of 1965, the Court deemed the restriction on state powers to regulate their own voting rules unconstitutional under the 15th Amendment as the use of 40 year old data was deemed an inappropriate basis for federal legislation.  It did not say that prejudice had ended or that Congress could not regulate the states in regard to election law, merely that the antiquated data could not support the pre-clearance restriction.  As to the DOMA, it ruled that the federal government could not treat some marriages as more equal than others.  States have powers (they have never had "rights") to expand liberty, but no federal restriction can usurp the state's power to recognize fundamental individual rights; indeed, once states so acknowledge, the federal government is bound to respect the rules of the states.  

This really is the essence of federalism, certainly federalism post-Fourteenth Amendment: fundamental rights will be protected by the federal constitution and states may (and should) increase the population subject to those individual liberties in order to guarantee full citizenship privileges and immunities to all.  The original Framers believed that states would exercise this very role as it would increase the voting franchise and thus their clout in Congress.  But when that went awry through prejudice and discrimination resulting in state oligarchies restricting individual liberties, the roles reversed so that the idea of democracy might flourish by virtue of a strong federal government celebrating the individual over the state.

Within this dual sovereignty lies post-conviction habeas corpus.  Unlike the obligation of the federal government to respect state expansion of rights and liberties, habeas corpus recognizes that the federal government, too, has an interest in protecting the fundamental rights of individuals.  Thus, the role of Article 3 courts is precisely to ensure that the minimal protections of the constitution apply to everyone in every court of these United States.  Like the DOMA, the AEDPA seeks to destroy that delicate balance.   And the Court seems somewhat receptive to reclaiming its authority with these incremental rulings over the last two terms.  Chipping away at the constraints of the AEDPA with endless claims of ineffective assistance of counsel is no answer - counsel must move to eliminate the AEDPA.