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.

The Lie Direct

Perhaps the most glorious exaltation of the First Amendment's guarantee of free speech was one that shunned silence in favor of speech, speech and more speech :

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.  Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Whitney v. California, 274 U.S. 357, 377 (1927)(Brandeis, J., concurring)(footnote omitted).

Whether or not lying about military heroism had become a large problem in society, or anything close to an imminent evil, Congress made a law abridging, and indeed criminalizing, false speech about receiving a Congressional Medal of Honor.  And, so, picking up Justice Brandeis’ gauntlet, when Xavier Alvarez was charged with violating the Stolen Valor Act, in a brief moment of honesty, he admitted that he never received the medal he claimed to have earned but averred that this lie was protected speech under the First Amendment.  He was right.  Lies, the Court decided, are in fact within the realm of speech guaranteed by the Constitution. 

Given the propensity to fib, this must come as a great relief to many.  We hate to admit this, but we all lie.  Mostly, we prevaricate about things that cannot be easily verified – how we feel, how much we weigh, how much we spent on that coat, what kind of gas mileage the Prius really gets, whether we ate the last brownie, whether we really DO think you look fat in that dress. 

...I did dislike the cut of a certain courtier's beard: he sent me word, if I said his beard was not cut well, he was in the mind it was: this is called the Retort Courteous. If I sent him word again 'it was not well cut,' he would send me word, he cut it to please himself: this is called the Quip Modest. If again 'it was not well cut,' he disabled my judgment: this is called the Reply Churlish. If again 'it was not well cut,' he would answer, I spake not true: this is called the Reproof Valiant. If again 'it was not well cut,' he would say I lied: this is called the Counter-cheque Quarrelsome: and so to the Lie Circumstantial and the Lie Direct.

William Shakespeare, As You Like It , Act V, Scene IV

We are liars, committing lies circumstantial and lies direct.  So, why do we express such pleasure when others lie and get caught?   Athletes lie.  Politicians lie.  Bankers lie. Businessmen lie. Authors lie. Journalists lie.  Lying is such a human trait that Cain  casually deflected his own guilt about killing his brother by lying to God…who, ummm…probably knew he was lying.   

  

When the news broke about Adam Wheeler lying to get into Harvard and to get grants from Harvard and to be fawned over by Harvard faculty, some believed that this would be the great reveal about Harvard.  Harvard did not check any of the blatantly false and ridiculous claims on Wheeler’s application, claims easily found and brought to light by the media.  Harvard was no dupe; it was a willing participant in the fraud (and the absurd claims about admissions officers relying on trust is just nonsense or, if true, idiocy.)  Until a faculty member recognized plagiarism, everyone believed Wheeler to be the boy genius he pretended to be – that is, he lied to get into Harvard but once he was there they did not realize that he was not who he pretended to be.  It was not Wheeler’s lies but Harvard’s willful blindness or total acquiescence that was really criminal.  Yet, Wheeler, ashamed of his behavior, is now a convicted felon…for lying.

Why is Adam Wheeler’s lie about his academic record worthy of incarceration but Xavier Alvarez’ lie about his military record is not? The reality is, it’s not.  Like Alvarez, Wheeler constantly got away with self aggrandized lies.  He made colossal mistakes, but mistakes no greater than Milli Vanilli or Rosie Ruiz.  The prizes he received should not have been awarded because the judges should have known he was copying other people’s work.  This is not to justify the lies or to condone them in any way, but they are not crimes. 

In Alvarez, the Court inched closer to confirming that almost all speech has some value worthy of First Amendment protection.  As uncomfortable as this may make us, it is commendable.  

We do recognize some false speech offenses.  Perjury, for example, was undeniably a crime at the inception of the country and is still a crime.  The offense of perjury is not the lie - it is failing to fulfill a promise, under oath, to tell the truth.  The false oath is an insult to the tribunal and, probably, originally to the Crown.  So, the lie is not at issue, but the promise not to lie and then the blatant repeal of that promise is the offense worthy of punishment.

Similarly, in fraudulent transactions, it is not the lie, but the detrimental reliance on the lie by an innocent who is relieved of his funds or personal effects to the enrichment of the liar.   This is a form of larceny.  What is punished is the theft, not the lie.  But, even this is not a well prosecuted crime.

But, false statements generally?  How is this type of speech punishable as a crime when lying about receiving a high military honor is not?  If content is not punishable and false content is not punishable, then why is telling a lie to a college admissions office or a police officer a crime but telling an audience a lie is not?  The Alvarez case raised hackles because those who are specially recognized for their military honor and bravery are deserving of the nation’s thanks; no one should co-opt such acclaim without earning it.  The lie is repugnant and worthy of disdain, but not the threat of imprisonment.  The legacy of the Alvarez case might well be - and should be - challenges to other speech-related crimes.

The First Amendment protects all speech: true, false, popular, unpopular, political, commercial, funny, stupid, kind, cruel, uplifting and disparaging.  The answer to speech that offends is more speech, not jail time.  Maybe, just maybe, if we all keep talking the truth eventually will come through.