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.

Political Last Will and Testament

How far back must we go to find our political will - to a place and time when democracy worked - when politics was able to advance the best interests of the people?  Perhaps we must travel to a time when those not yet enfranchised to vote and participate fully in their own government spoke with voices no one could ignore.  Before we equated money with speech, speech and actions forced this nation to address glaring errors in our original Constitution.  Though there is a human tendency to glorify and mythologize history, some historical episodes really do change the direction of human events.  As headlines and upcoming Court decisions focus on issues of equality, on race and on voting, we should realize that these kinds of questions have deep roots.  This weekend marked a humbling anniversary, one that calls upon us to remember our long lost political will to address them.

On June 2, 1863, on the shores of the coastal low country of South Carolina, Colonel James Montgomery commanded some of the early commissioned African American troops, freedmen of South Carolina, on a raid of Combahee Ferry.  Getting to the spot required traveling through tricky waterways.  The ships that arrived did so only due to the navigational skills and knowledge of the area by the African Americans aboard including the newly commissioned 2d South Carolina and a woman named Harriet Tubman.

They called her Moses.  Her expertise directed the raid; her presence allowed those held in bondage to grasp the magnitude of the moment.  People who had been denied the opportunity to read, to write, to dream and who only dared to hope saw Harriet Tubman on the John Adams and knew they had been delivered from slavery.  Descriptions of the event included women carrying pots full of rice, babies clinging to their parents, pigs squealing from sacks and rushes of humanity toward the boats.  Indeed, not everyone could fit aboard and those onshore refused to let go until Harriet Tubman promised to return.  Making several trips, she ensured that every one of the 750 people there would be ferried to freedom.  Many of the men who scrambled on deck would be commissioned into the Union military and have a hand fighting for their own liberty.  These newly free folks would help inch our country closer to the promise of the second sentence of the Declaration of Independence.

Col. Montgomery and his crews would go on to loot the storehouses and burn the homes they found in South Carolina that day.  He held an ardent belief that the lot of slaveholders was to feel the burning wrath of justice; though his zeal throughout the war would destroy many homes holding only women and children inside.  Montgomery demonstrated his commitment to the cause well before Kansas bled.  He had purchased a claim in the southeastern part of that territory and routinely stole property from pro-slavery factions, selling them at a profit as far away as Iowa.  This was not so much Robin Hood (he kept the money) as it was a fervent attempt to introduce Kansas as a free state.  In an odd irony, he was also a minister of the Christian (Campbellite) Church, a Second Great Awakening establishment interested in restoring the primitive church in a kumbaya peace, love and abolition kind of way which, apparently, involved some New Testament horse wrangling.  All of this fades in the discussion of how he brought Moses to free the slaves on South Carolina plantations: stealing, burning and pillaging in the name of freedom has a certain cache that gives him grace in history books.

Yet, Montgomery never could have gotten into the South Carolina river system without Harriet Tubman and the low country sailors on board.  The fact that they were able to contribute is a testament to political will driven by the necessity of war.  Abolition and African American troops became essential to Union victory and so the political will for abolition and African American troops emerged.  Routinely, Civil War battles claimed thousands of lives in a matter of hours.  The war seemed endless.  Volunteers were dwindling (while Southerners had slaves running their farms and businesses, Northern farmers and business owners relied upon the women and children to keep their entities afloat).  Conscription issued and riots broke out claiming that the draft was beyond the reach of the federal government (it was not, even then; US Const Art. 1 Sec. 8).  As morale in white America suffered, African American communities came to the rescue.

While African Americans fought in the Revolution and some, unofficially, in the War of 1812, the military had been closed to African Americans by 1792.  Yet, these were the men itching to fight.  Here was a willing population with little voice whose courage, strength, and skills were desperately needed by the federal government.  Months before the Emancipation Proclamation issued, Congress passed the Second Confiscation and Militia Act permitting the president to bring African Americans into the military effort...which Lincoln actually declined to do...but that did not stop unofficial regiments from forming in Louisiana, South Carolina, Kansas and Missouri on their own (all eventually would be mustered into service).  After issuing the Emancipation Proclamation, President Lincoln did authorize full service by African American troops.  Entry of these men into the military, without question, turned the tide of the war.  Their participation was instrumental in securing a Union victory.

The spoils of war included some long overdue changes to the Constitution.  Those changes - the Reconstructionist Amendments - altered forever the relationship between the states and the federal government and the sound of the voice of the American people.  There is no doubt that the original Framers were leery of a strong federal government (although each of them who actually held the office of president sought to centralize power), but that fear existed  partly because of concerns that the government would not survive and partly because self-governance was still experimental.  Eighty years into the gig, the Civil War affirmed that these United States were united for eternity and that unity required a more cohesive - and powerful - federal government requiring representation of all communities.  What the courts had denied, the political will - albeit political will driven by mounting war casualties and devastation - would ensure.  America would be united...even if it killed us.

Even those ruing tactics of James Montgomery who slashed and burned everywhere he went, surely all Americans speak with awe and pride and reverence when recounting Harriet Tubman's contribution to the raid on Combahee Ferry - and her voice in enunciating the idea of unalienable rights.  Surely Americans laud the fortitude and will of Frederick Douglass in urging for African American troops to have the opportunity to serve in the armed forces and to vote.  Indeed, it was Douglass who argued that, rather than a fatally flawed document, the Constitution should be the empowering tool for abolition and inclusion.  The Reconstructionist Amendments opened the door for that to occur.  Our collective pride in the history - even when shrouded in mythology - for great leaders in our nation who have spoken with grace and courage and righteousness is palpable.  We could not imagine an America that would deny full participation in government to any such citizens.  We are an eternally grateful nation to all of those who - despite, or perhaps because of, injustice they endured- elucidate our own identity as Americans; liberty has a hollow ring without their explanation of freedom.  When people discuss the greatness of America, images of these men and women come to mind.

Yet, there are voices - some on the Court, some in Congress, many in the media who want to ignore the Civil War chapter of Constitutional jurisprudence.  They talk about the 18th Century Constitution failing to recognize the alterations of the 19th Century Amendments.  This is not only misguided, it is wrong.  The original Framers designed a document that could grow and change  - not on a whim, but for necessity - and it has.  Changes including abolition of slavery, prohibiting the denial of the right to vote due to race, and the very definition of citizenship all altered the relationship between the states and the federal government forever.  They paved the way for direct election of United States Senators, the prohibition of the denial of the right to vote due to gender, and the prohibition of poll taxes.  The current document changed the very structure of our government from the timid conflagration of separate states with a very limited central government to one of national pride.  This is not to deny the 10th Amendment, or the 11th Amendment for that matter, it is just that the focus on the powers of states as though these Reconstructionist changes to the Constitution never occurred is ludicrous and dishonest.

As we await decisions from the Court on voting rights and issues of race in school admission and equality of marriage, it might do us good to recall the raid in South Carolina 150 years ago.  African Americans who had been denied basic individual liberties steered boats through  intricate riverways in order to emancipate their brothers and sisters.  Those men and women - who never before had legal authority over their own bodies - would willingly surrender their now-free lives for the Union cause.  And, when the war ended, we had the political will to ensure the finality of slavery, to bestow belated citizenship with all of its privileges and immunities and to prohibit interference with voting due to race.  The contributions of those men and women to our collective history is immeasurable as is the contribution of the members of the 38th, and especially the 39th Congress whose legislative prowess sought to complete the war by winning the peace.

Today's 113th Congress boasts 40 elected and 2 appointed African Americans (40 in the House and the 2 appointments in the Senate), 36 members of Hispanic or Latino heritage (33 in the House, 3 in the Senate), 9 Asian and 2 Native American members (all in the House), 99 women members (79 in the House and 20 in the Senate) and 7 openly gay members (6 in the House and 1 in the Senate).  The composition of this Congress is a direct result of the political will of past elected bodies who saw fit to empower all Americans.  With pride we should celebrate the diversity of this Congress as a living legacy of the courage of those earlier legislators.  Yet, we should be ashamed that this reflection of America cannot do more than stall at an impasse on significant issues facing the country today: important issues that concern equality and voting and immigration and how we care for the frail and infirm - issues almost identical to the ones faced and tackled 150 years ago.

The 39th Congress declared the 13th Amendment ratified, passed the Civil Rights Act of 1866 and the Freedmen Bureau Bill, sent the 14th and 15th Amendments to the states for ratification, legalized the metric system, reduced the number of Supreme Court justices from 9 to 7, admitted Nebraska as a state, began welcoming back the states formerly in rebellion - all while mourning the untimely death of the president, figuring out how to pay for the last 4 years of war and overseeing the completion of the Capitol dome.  Much of the legislative prowess was due to many vacant seats and thus less discussion and dissent.  But, the problem with a democracy cannot be too much democracy.  Those elected should serve in a way that advances the ideals of the nation - disagreement is welcome, but not if its purpose is to halt progress.  The blood shed to keep this Union together cannot be spilled in vain.  The 113th Congress owes its forbears a duty to legislate constructively and progressively to continue the quest by peaceful means.  Anything less is simply criminal.

Memorial Day Mentality

Crimes are comprised of action plus intent.  We call the intent element, a factor the government must prove beyond a reasonable doubt, mens rea. Intent, like any other element of the offense must be proven beyond a reasonable doubt.  In our society, we celebrate ordered liberty and chafe against a disordered mind, and therefore we presume sanity for all criminal defendants placing upon them the burden of demonstrating insanity or diminished capacity to form intent.

Without seeking to do so, the recent case of Metrish v. Lancaster, SCT Docket No. 12-547 (May 20, 2013) exemplifies that courts are comprised of humans and humans are uncomfortable with the disorder of mental illnesses.  Mr. Lancaster was a Detroit police officer with a long history of mental illness who killed his girlfriend.  He set out the defenses both of insanity and of diminished capacity; despite his defenses, he was convicted of murder.  After his conviction, the case was reversed for unrelated reasons.  By the time of his retrial, the Michigan legislature and courts had eliminated the defense of diminished capacity, the only defense Mr. Lancaster intended to pursue at his second trial.  The change in the law left him with the possible affirmative defense of insanity but no other avenue by which to attack the mens rea element of the offense. 

Framed within the brackets of Bouie v. City of Columbia, 378 U.S. 347 (1964) and Rogers v. Tennessee,532 U.S. 451 (2001), Mr. Lancaster argued that he should have been entitled to the diminished capacity defense as a matter of due process of law.  Briefly, Bouie was a Civil Rights era case where the offenders were involved in a peaceful sit-in arrested for trespass when they did not leave the premises.  The language of the trespass statute only mentioned entering (which the protesters were permitted to do) and not remaining (which they were not).  At the time of the arrest the only notice provided as to the crime of trespass was the statute.  Almost 2 years after the arrest (but apparently before trial), the South Carolina courts ruled that the trespass ordinance covered both entry and remaining on the premises.  The retroactive application to the Bouie defendants, however, violated due process as the Bouie defendants could not have been on reasonable notice that they were breaking the law since the plain language of the statute did not appear to cover the activity.  In short, the activity of the defendants was ordered and the crime as defined by the South Carolina courts was disordered.  The defendants were the good guys.

Rogers, on the other hand, involved a homicide.  At common law, a homicide could not be charged under Tennessee law unless the death occurred within one year and a day of the assault.  In Rogers' case, the victim lingered for 15 months, thus the defendant claimed the common law defense of a year and a day rule.  The Tennessee high court invalidated the antiquated rule and found that the government had proven Rogers guilty of the crime regardless of the date of death.  The Supreme Court agreed; application of this change did not deprive Rogers of due process.  In short, the crime as understood by the Tennessee Courts was ordered and the conduct of the defendant was disordered.  The defendant was the bad guy.

This backdrop predicts the outcome of Metrish v. Lancaster; his due process argument would fail since it was not based upon notice, as was Bouie, it was based on the state's power to define crimes and defenses as in Rogers.  In a terse and almost exasperated unanimous opinion, the Court explained that the defense of diminished capacity was not firmly rooted in Michigan jurisprudence...and was not widely accepted in all of the states... and therefore the judicial decision to eliminate it - and that retroactive application to Mr. Lancaster - did not violate due process. 

That ruling avers that despite the requirement of the state to prove every element of an offense beyond a reasonable doubt, if a challenge to an element of the offense was not "firmly rooted" in state law, the state can bar such a defense without offending due process of law.  Even the Court cannot really believe that to be true because defendants have the right to demonstrate that the state has not proven its case beyond a reasonable doubt.  Mens rea is an essential element of the offense; particularly with the presumption of sanity, a defendant should be entitled to present all proofs to demonstrate a lack of sanity.

In reality, what the Court said in Metrish v. Lancaster was that the Michigan courts did not unreasonably apply Supreme Court precedent in retroactively applying the court decision eliminating a defense within the meaning of the AEDPA.  The AEDPA, of course, is a legislative directive that so limits federal habeas claims as to infringe upon the First Amendment right to petition the courts.  The ruling in Metrish v. Lancaster almost hints at the idea that, if the Court were presented with the specific issue of due process as it relates to mental illness and mens rea, say in a petition for certiorari, the ruling might be different.

Or, maybe not; mental illness upsets order in the court.  Although not mentioned in Metrish v. Lancaster, in Clark v. Arizona, 548 U.S. 735 (2006), a case that came in on direct certiorari, the Court determined that everything related to the insanity defense would be in the hands of the states and thus almost seemed to eliminate a constitutional due process review.  That is, Arizona had eliminated a portion of the definition of insanity making the claim harder to prove.  The defendant argued that this reduced the burden of proof for the government, but the Court did not seem to mind.  The decision explored the history of the defense and its application throughout the states.  "[N]o particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice." Id. at 752.   Clark - a profoundly well-reasoned opinion - is a beautiful, if sad, rendition of federalism and the power of the state to define its own crimes and punishments.

It is beautiful for its clarity and purity of federalist notions of state powers, but sad because given the discomfort society has with mental health defects, the Court could have provided a protective layer of due process or equal protection under the law to shield those with mental health defenses from the vagaries of mob rule.  While Blackstone's commentaries note the necessity of a "vicious will" to effect a criminal offense, the whole notion of a guilty mind almost seems to be a relic of the past. 


The insanity defense and all of its permutations seems to have its origins in the matter of Mr. M'Naugton.  In 1843 Scotland, his defense at trial for shooting civil service worker was that he was persecuted by aliens.  Testimony at trial was one-sided in favor of the defense theory of insanity; even the prosecutor's closing was half-hearted.  The jury was told that if it found Mr. M'Naugton insane he would be properly cared for.  They accepted that determination, found him insane and he went on to live another 20 some odd years in a state run asylum. 

The M'Naugton case itself is fascinating not only because of its contribution of the insanity defense but for other reasons.  For one, the gunshot did not actually kill the civil servant; medical treatment did.  Additionally, one author has speculated that M'Naugton was a political case and that the insanity defense discredited his political views; on the flipside of that observation is speculation that M'Naugton was a paid assassin who feigned insanity when he missed his intended target so as not to reveal the conspiracy.  Finally, the verdict so upset the public and the Queen that the House of Lords took the unusual step of posing questions to the courts regarding crimes as they relate to people suffering from delusions.  From its earliest days, mental illness as a reason to negate any element of a criminal act has made people uncomfortable.

And, that is okay.  Horrible acts should make everyone uncomfortable regardless of the circumstances.  Our courts have been long on punishment and short on mercy especially in matters of mental frailty.  We are afraid of those who cannot seem to conform their behavior to norms society has created; we are terrified of those whose behavior is violent, unpredictable and devoid of reason.  We crave the ability to find order in chaos which mental illness prohibits. 

Unlike the jury in M'Naugton's Case, modern juries do not learn that if they find the offender insane, he will be cared for, protecting himself and the community from his random and incomprehensible acts.   After designing a system dependent on sanity where we deprive people of liberty when they act with evil intent, we unfairly place on jurors the burden of eliminating punishment for acts that look to be heinous and criminal but for the lack of intent.  Few of us would be able to do that.  Courts and legislatures need not restrict and minimize mental health defenses because most mental health defense cases will become guilty verdicts.  There is no place for mental disorder in a system created for order.  Thus, before Metrish v. Lancaster, in Clark, the Court removed itself from the discussion on mental health defenses and relegated the policy decisions to states.

Insanity, even in states that have the broadest rules for its definition, and diminished capacity or diminished responsibility in the few locations where available as a defense, are very difficult to demonstrate.  Even if told that those insane or of diminished capacity will be properly cared for (i.e. away from society but just not in a prison environment), and that care will cost less to the taxpayer, the truth is that most juries still would convict.  At base, despite the protections of constitutions and rule of law, humans have not evolved so much that they possess more mercy than revenge.  Which is a shame because our prisons are the madhouses of the 19th Century with no proper care and even less concern for the mentally ill inmates.  Out of their minds but out of our sight.

While Metrish v. Lancaster mentions that Mr. Lancaster had been a police officer, there is no mention of the onset or derivation, or even the name of the illnesses from which he suffered; it makes no statement on whether treatment was available to him for him to keep his job or whether institutional barriers prevented him from obtaining the care that he needed.  And, that was not relevant to his case: he simply argued that taking away a defense available to him at the time of his actions violated due process of law.  The Court dutifully kept its answer limited to the question; in fairness it is not the Court's role to remind states that eliminating mental health defenses results in prisons full of mentally ill inmates.  Without proper guidelines that no one wants to create, the mentally ill, who did not choose to be sick, will be found guilty of criminal acts if they harm others.


On this Memorial Day, when we honor those who sacrificed and died so that we may be free, we might recognize all of those servicemen and women who return terminally altered in both mind and body from their experiences in places most of us could never imagine.  Some come back to a home that seems unfamiliar and struggle to find a way to navigate through a life they barely recognize.  We would do a deep honor to our veterans who are still with us if we radically changed our perception and our approach to mental illness not only in relation to their experience but to crimes and misdemeanors, and to society at large.

The Memorial Day remembrance began, years after the war ended, to show respect for the sacrifice of Civil War soldiers.  The nation mourned with such prolonged grief (a grieving period that today would be classified as a mental illness) that it needed a place to put the pain of 700,000 deaths; it needed to stop the persistent ache of a country's broken heart.  Unlike today's military ventures, that war was very much a shared experience.  Today, we collectively mourn the sacrifice of lost men and women, but it is less personal to most Americans. 

As we lay wreaths and place flags near tombstones, we could, however, esteem our returning veterans by recognizing that illness and injury is not shameful.  With so many in our military committing suicide after serving valiantly, we owe them and ourselves a focused effort to embrace the difficult journey of facing mental illness in all of its permutations.  Mental illness is not a rare occurrence; 1 in 4 adults, close to 60 million people, suffer from a diagnosable mental health disorder every year.  Most will not self harm and fewer will harm others.  But those who do will likely be convicted of crimes they could not, realistically, have the intent to commit. 

Not just in memory of our fallen but in honor of those who survive, we might revisit mental health as it relates to war and peace and justice in our times.  Regardless of what juries will do with the information, all defendants suffering from mental illness should have the opportunity to raise every possible claim in their defense.  The more we restrict the rights of the criminally accused, the closer we come to a police state.  As uncomfortable as it makes us, we must remember that the promise of ordered liberty requires proof beyond a reasonable doubt for mental intent even when the betrayal of mental illness disorders the mind of the accused.

 

Depending on the People: 100 Years of the 17th Amendment

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. 

- James Madison: Federalist 51

The Constitution sought to include both state governments and the people in the two houses of Congress.  Direct elections for the House ensured a place for the people in the national government.  The Senate, by contrast, would be the voice of the states.   According to John Jay in Federalist 64, the populace had not yet become familiar with foreign affairs.  Therefore, elected state officers would be in the best position to select those of the highest intellect and integrity to promote national interests to the United States Senate.  Hence, Art. 1 Sec. 2, par. 3.

Having state legislatures select senators was one way to prevent extreme centralized federal power in a time of great uncertainty.  It was unclear how the unified federation would function and what types of evils or corruption lay ahead.  Thus, state legislative selection of senators was intended in part as a check on unwieldy government and in part as a means of establishing the new country as one of educated and wise men.  But, the Framers understood that this indirect election was hardly perfect; it was acknowledged, even in its day, as one way to kick the can down the road for future generations to ponder about the powers of the individual states in relation to the federal government. The more things change…

Parties and factions were well known to the Framers who sought to minimize their damage.  However, it is also possible that they did not anticipate the pending power of party bosses, the corruption of cronyism and the perils of patronage.  But, it soon became clear that state political parties (rather than elected officials) would hand-select Senators instituting a system neither intended nor desired.  In states where one party held sway, the legislature voted for the party stalwart.  In states where the legislature was divided, the decision was so contested that states could go without United States Senators, sometimes for years.  Art.1 Sec. 2 grew not to protect federalism in the sense of state autonomy; it became a means of promoting people significant in party politics in a particular state...something akin to an arbitrary, appointed government - something the Framers found odious.  As early as 1826, bills became commonplace on the House floor to insist on direct election of Senators.

Leading up to the Civil War, issues couched in federalist cloaks took center stage in a very ugly way; indeed, the idea that federalism itself is linked to preserving the horrific institution of slavery diminishes the import and beauty of the dual sovereign system and really misunderstands its true basis and why it matters.  John C. Calhoun (NOT, as some yahoos declare, Thomas Jefferson) started talking about states as if they were people.  People have rights; states have powers.  There is no such constitutional concept as "states rights".  States were at the Congressional table by legislatively electing United States Senators, but that was not as of right - it was more of an experiment.  Calhoun himself was a Senator appointed by the South Carolina legislature and thus query his loyalty under the indirect election construct: was it to the nation, to the people of South Carolina or to the officials elected to the South Carolina Legislature?  Indeed, the pretenders to the throne of federalism sought to secure their own, not the people's, rights.  They come today the same but in different garb called SuperPACs; new shields to wield the paper sword.  Neither the early "state's rights" advocates not the current ones seek to empower the people of the individual states; they seek to silence them. 

The franchise of voting is and has long been an American ideal.  Indeed, after the bloody Civil War ended, the Reconstructionist Amendments promised that the federal government would insist upon enforcing the elimination of slavery and indentured servitude, would decide who was a citizen and how to ensure protection of individual rights, and finally that there would be no infringement upon the fundamental right to participate in one’s own government due to race.  The 15^th Amendment seeks to ensure, not just presence at the ballot box, but also an equal presence without dilution of any person’s vote.

After the Civil War, after the Reconstruction Amendments, and while certain powerful members of formerly rebellious states were seeking to enforce voting discrimination as deeply as they could under the guise of "state's rights", several bribery cases occurred in state courts – some were bribes to vote for United States Senators (see, i.e., In re Wellcome, 23 Mont. 140 (1899)); others were accusations and convictions for United States Senators taking bribes (i.e. State v. Davis, 18 Del. 139 (1899)).  The system of state legislature elections of senators left the people with no voice but also the Senators with no accountability. As in the antebellum period, some legislatures deadlocked on selecting United States Senators leaving (depending on the lens one views) either the states or the people of those states without any representation in the Senate, sometimes for several years.  Everything intended by the initial idea of the state legislatures electing Senators had been destroyed by party factions; people were seeking to buy Senate seats and voters - even newly minted ones - were losing their one person-one vote mandate.

An odd twist of history includes the Treason of the Senate series in W.R. Hearst’s Cosmopolitan magazine in 1906.   The series portrayed a Senate for hire, beholden to corporate interests and devoid of loyalty to the state or the people.  The groundswell prompted a bill in the Senate to amend the Constitution which was roundly opposed by the entrenched factions – Republicans in the New England states and Democrats in the Southern ones – but the measure gained approval and passage by the required margins in both houses of Congress in May, 1912.  The first state to ratify the 17th Amendment for direct senate elections was the Commonwealth of Massachusetts; the measure gained inclusion into the United States Constitution 100 years ago (Southern strongholds including Virginia, Florida, Georgia, South Carolina, Mississippi and Kentucky never did vote to ratify – Utah rejected it outright in 1913).

In 1912 and 1913 the question was not one of federalism; those living at the time understood the radical, cataclysmic alteration of the relationship between the states and the federal government that occurred with the Reconstructionist Amendments.  The question was one of increased democracy.  It was one of fairness and it was one of inclusion.  The 17th Amendment intended to rectify the crimes of bribery and influence that had infused the upper house of Congress.  Indeed, the Amendment passed as House members enjoyed malapportionment, where rural votes diluted urban votes in many states by being given greater weight (perhaps the 17th Amendment foreshadowed modifications destined for that chamber.)  It was before effective voting rights legislation, the same legislation currently under attack.   The idea was to increase the franchise and therefore reflect better the American people and denounce the influence of special interests.

Almost immediately, the 17th Amendment altered the composition and texture of the Senate.  With Wilson in the White House and his progressive agenda on the table, direct election literally changed the Senate from Republican to Democrat in one election cycle.  Without this change, America may have been denied the compassionate brilliance of Brandeis on the Court, reforms in labor, banking, tariffs, and health care, all of which paved the way for bolder programs and ideals later administrations would propose.  Without the change from the state legislatures choosing Senators to the people, it is unclear how long it would have taken the country to propose, pass and ratify the 19^th Amendment.  

States always had the power to increase the franchise and it was always – and is now - in their interest to implement more liberal voting opportunities.  The more people eligible to vote, the greater the representation in Congress, the more power the individual states can wield.  It has ever been thus and yet the fundamental right of voting has continually been restricted, diminished, diluted and denied by state governments, the very entity the Framers believed would seek to increase, not decrease, its voice in the national government.  This was true from the earliest compromises including the horrid 3/5 compromise of Art. 1 Sec. 2.  Had all people counted for apportionment in the House of Representatives, the slaveholding states would have had MORE power, not less, in Congress; it was the slaveholding states who fought to have slaves count fully for apportionment.  If, as some at the time suggested, the wholly disenfranchised not counted at all for apportionment purposes, states would have had, early on, determined means of increasing the franchise and perhaps would have ended slavery sooner. That is, if apportionment were really apportionment of eligible voters rather than voiceless bodies, states would have an incentive to broaden the population eligible to vote.  It does not work that way which is exactly why, for example, towns with prisons full of inmates ineligible to vote want the inmates to count for apportionment but not for any other purpose.  A true one-person one vote mandate would only count eligible voters so as not to increase or dilute voting power.

Those who seek to restrict and dilute and deny voting rights today argue issues of federalism as if it were 1789 and the Constitution had not been amended (and also as if they understood the idea of federalism - it is NOT to empower individual people in federal matters, but to solidify powers of individual states).  No Amendment to the Constitution - not even the 10th - ever sought to increase the powers of state government.  The franchise Amendments, the 15th, 17th and 19th all sought to wrest powers away from the states and into the hands of the people directly.  Those who argue for state powers under the inaccurate and improper moniker “state’s rights” cannot also claim that they individually want the right to vote for their own Senator – or for the African Americans and women involved in that particular and odd movement – the right to vote at all.  It’s one Constitution; we cannot cherry pick the parts we like and pretend the rest does not exist.  Where federalism works and has ever been successful is where states become laboratories for improvements and progress including advancing equality on social issues and civil rights and creative enterprise.  Every other experiment in federalism leads to a contraction, rather than expansion, of the voice of the people thereby restricting democracy and freedom. 

A major contributor to passing the 17^th Amendment was disgust that United States Senate seats were up for sale in state legislatures.  They still are under new guise.  Indeed, query whether the 17th Amendment could impact Court rulings on the 1st Amendment thereby limiting outside influence at least in United States Senate races.  That is, unlike the language of Art. 1 in regard to House seats where "the People of the several states" elect House members, the 17th Amendment declares, "[t]he Senate of the United States shall be composed of two Senators from each state, elected by the people thereof..."

Massachusetts is engaged in a special election for the remainder of the term for our Class 2 Senate seat.  This is a post once held by Edward Everett whose lengthy speech preceded Lincoln’s Gettysburg Address, by John Weeks who initiated a federal land preservation act (and also his son, Sinclair Weeks), by Edward Brooke, the only elected African American Massachusetts Senator, by Paul Tsongas, the first former Peace Corps volunteer elected to the Senate, and by John Kerry, the current United States Secretary of State.  It is, indeed, the People's Seat and the Senator should be elected by the people of the Commonwealth without influence from special interests.

Although the Democratic candidate in the special election has requested the “People’s Pledge” that neither candidate benefit from special interest issue-oriented advertising, his opponent has not agreed.  Millions of dollars will pour into this campaign from unknown, undisclosed entities seeking to sway the votes of Bay Staters in an effort to corrupt this election in ways even more extreme than the scandals leading to ratification of the 17th Amendment.  Ironically, if the senate seat were still controlled by the Massachusetts Legislature, the result would be a foregone conclusion.  Though that is no answer; any election is better than legislative appointment.  While the people of Massachusetts have the constitutional right to elect their United States Senator by direct ballot, it sure looks like the seat is still up for sale.  Happy Centennial 17th Amendment; may your quest for democracy be fulfilled.