Archive | Fifth Amendment

DOMA and Dignity

Why is the Defense of Marriage Act unconstitutional?  Here are two propositions that United States v. Windsor might be thought to stand for:

(1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or

(2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional infringement on a substantive right, e.g., the right to marry (a liberty claim).

These are among the many plausible interpretations of Windsor, but some explanations are more plausible than others.  After consuming several pages discussing the interests of the states in controlling family law, Justice Kennedy expressly states that the Court is not relying strictly on federalism.  Surely a statement in a decision suggesting what it means should have some bearing on what it means.  The Chief Justice, in dissent, thinks federalism is nevertheless critical to the result and would help to distinguish the case from one that involved a claimed constitutional right to state recognition of same-sex marriages.  He might be right about that.  But the Chief Justice’s explanation may also be more a hope about the limited consequences of an alternative Windsor than a reading of the actual Windsor (see Justice Scalia’s dissent).

As for the second proposition, the Court certainly mentions liberty several times.  And the context is one in which the plaintiffs claim that “liberty” protects a right to have their marriages fully recognized by government.  The Court sets for itself the task of deciding “whether the resulting injury and indignity is a deprivation of the liberty protected by the Fifth Amendment.”  Slip op. at 19.  It concludes that Congress “cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.”  Op. at 25.  But my sense is that reliance on [...]

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The Colorado Recalls Explained

Yesterday voters in Colorado recalled two State Senators. One result was not a surprise, and the other is a shock. Of course the votes are Second Amendment victories for the right to arms, but more fundamentally, they are Fourteenth Amendment victories for Due Process of Law.

Former State Senate President John Morse represented Colorado Springs, plus the somewhat hipster mountain community of Manitou Springs. While El Paso County is strongly Republican, the interior city of Colorado Springs has been center/center-left for years. Senate District 11 was carved to make the election of a Democrat possible, and it worked. Voter registration in SD 11 is about a third, a third, and a third among Democrats, Republicans, and Independents, with Democrats having the largest third and Republicans the smallest. Morse barely won re-election in 2010, and might have lost if not for the presence of a Libertarian on the ballot.

As the conventional wisdom expected, voter turn-out was relatively low. Morse was recalled by  51-49%. The conventional wisdom of Colorado politics had been that Morse would probably lose, but that the election would be tight, and there was a chance that he might win. As things turned out, Republicans turned out greatly in excess of their registration percentage, and that was probably the difference.

Both sides had hard-working GOTV programs, but apparently the Democrats did not succeed in convincing enough of their less-enthusiastic voters to vote. This is in contrast to 2012, when Obama won the district by 21%.

Pueblo, the largest city in southern Colorado, delivered the result that stunned almost everyone. For more than a century, Pueblo has been a Colorado stronghold of working-class union Democrats. Like most of southern Colorado, it has a large Hispanic population. Obama won Senate District 3 by 19% in 2012. In 2010, Democratic Senator [...]

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The Fiduciary Foundations of Federal Equal Protection

Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of the general public, but to enrich select interests. President Jackson wrote: “There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.”

This was the first use of the phrase “equal protection” in an American political document. Three and half decades later, the Fourteenth Amendment forbade States to deny to anyone the “equal protection” of the law.

In 1954, the U.S. Supreme Court ruled in Bolling v. Sharpe that the D.C. public schools could not be racially segregated. The Court held that the Fifth Amendment’s Due Process clause makes the principle of equal protection applicable to the federal government. Bolling was a hastily-written opinion, and it shows. Over the years, Bolling has been derided for creating “reverse incorporation”–as a good result that is hard to defend intellectually, other than by conceding the Supreme Court the power to act as Platonic Guardians.

That view is challenged in a new article by Gary Lawson (BU), Guy Seidman (Interdisciplinary Center, Herzliya, Israel) and Rob Natelson (Independence Institute). Their article “The Fiduciary Foundations of Federal Equal Protection” The abstract explains:

that a federal equal protection principle is not only consistent

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The Bourne Implausibility: Movie Inspires Blog Post, Which Inspires Video, Which Inspires Blog Post

Three months ago, under the heading “The Bourne Implausibility,” I offered up the following (wry?) observation:

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal.

It has recently come to my attention that someone named “Badger Pundit” has posted a YouTube video inspired by this blog post. Since this is, to my knowledge, the first time that a blog post of mine has inspired a video, it seems only fitting to come full circle and link to the video, here. [...]

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The Bourne Implausibility

I just caught the last few minutes of The Bourne Ultimatum. At the end (spoiler alert), Bourne successfully exposes everything, and we catch a glimpse of MSNBC, reporting on a secret CIA assassination program “which in several cases may have even targeted U.S. citizens.”

In the movie, it appears that MSNBC believes this to be some sort of scandal. [...]

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Nearing the end of the search for the non-existent limiting principles

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related [...]

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Encryption and the Fifth Amendment Right Against Self-Incrimination

I blogged a lot about this topic a few years ago when the Boucher case was pending; although an appeal was filed in that case in the First Circuit, the appeal was dropped so the appellate court never decided it. In any event, several readers point me to a new decision on the topic, United States v. Fricosu, out of the District of Colorado.

Based on a quick read of the opinion, the legal analysis in the Fricosu opinion is not a model of clarity. But it strikes me as a replay of the district court decision in Boucher: The Court ends up ordering the defendant to decrypt the hard drive, but only because the court made a factual finding that in this specific case, the government already knew the information that could be incriminating — and as a result, was a “foregone conclusion” that dissipated the Fifth Amendment privilege.

If I’m reading Fricosu correctly, the Court is not saying that there is no Fifth Amendment privilege against being forced to divulge a password. Rather, the Court is saying that the Fifth Amendment privilege can’t be asserted in a specific case where it is known based on the facts of the case that the computer belongs to the suspect and the suspect knows the password. Because the only incriminating message of being forced to decrypt the password — that the suspect has control over the computer — is already known, it is a “foregone conclusion” and the Fifth Amendment privilege cannot block the government’s application.

UPDATE: A reader asks what happens if a person refuses to comply with the order or claims to have forgotten the password. Here’s the Second Circuit’s summary of the law in In re Weiss, 703 F.2d 653 (2d. Cir. 1983):


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Some Comments on the Privilege Against Self-Incrimination, from 25 Years Ago

The sometimes critical reaction to the criminal division chief of the Arizona U.S. Attorney’s Office decision to take the Fifth Amendment in the Congressional investigation of Operation Fast and Furious led some people to wonder whether there was a similarly critical reaction with regard to Oliver North’s and John Poindexter’s decision to take the Fifth during the Iran/Contra hearings. I did a quick search, and came across these quotations, which I should stress are only a small subset of what was doubtless said:

[Michael Kinsley, Wash. Post, Dec. 18, 1986:] Five men have now taken the Fifth Amendment rather than tell a congressional committee about their role in the Iran arms deal. Moist-eyed Lt. Col. Oliver North says there’s nothing he’d like better than to reveal all, then declines, with a tragic sigh, to say anything. Strong congressmen swoon. Oliver North has a perfect right to take the Fifth. What he has no right to do is to strike a pose of heroic innocence, prattle on about upholding the Constitution and expect anyone to believe him.

[Steve Gerstel, UPI, Dec. 16, 1986:] Although Byrd and Dole both said that Vice Adm. John Poindexter and Lt. Col. Oliver North, two key figures in the scandal, had the right to invoke the 5th Amendment against self-incrimination in their appearances before congressional committees, they made it clear they felt uniformed military men had a higher obligation.

[Dorothy Collin, Chicago Tribune, Dec. 13, 1986:] The chairman of the Senate Intelligence Committee on Friday angrily accused three military officers who also have served as President Reagan’s national security aides of “deserting their country” by refusing to testify about the secret sale of arms to Iran and the diversion of money to the Nicaraguan contra rebels. “These guys are being praised as national heroes,” Sen. David

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The Privilege Against Self-Incrimination and Foreign Prosecutions

Reader John Lunde points to the story about the criminal division chief of the Arizona U.S. Attorney’s Office taking the Fifth Amendment in the Congressional investigation of Operation Fast and Furious, and asks: What if the witness is given immunity from prosecution — which normally blocks the invocation of the privilege against self-incrimination — but “still refuses to testify for fear of Mexican prosecution? Would that be a valid defense?”

The answer is that fear of foreign prosecution does not suffice to allow the assertion of a privilege against self-incrimnination, see United State v. Balsys (1998) (7-2) (Ginsburg & Breyer, JJ., dissenting), at least absent some deliberate attempt by the U.S. and Mexico to use this as a plan for gathering information for a Mexican prosecution. “Concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause,” unless (for instance) “the United States and its allies had enacted substantially similar criminal codes aimed at prosecuting offenses of international character, and … the United States was granting immunity from domestic prosecution for the purpose of obtaining evidence to be delivered to other nations as prosecutors of a crime common to both countries” (in which case “that prosecution was not fairly characterized as distinctly ‘foreign'”). [...]

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Honest Services Fraud: Your Third Felony Today?

Last week, the Supreme Court heard two cases challenging the scope of so-called “honest services” fraud, a 28-word provision tacked onto the generic federal mail-and-wire fraud statute that makes it illegal to “deprive another of the intangible right of honest services.”

If you’re asking what this statute means, you’re in august company: Justice Antonin Scalia asked the very same question during oral argument in Black v. U.S. (see pg. 45 of the transcript [PDF]). All told, eight of the nine justices expressed skepticism about the “honest services” law, focusing on the vagueness that prosecutors have exploited but defendants and civil libertarians have loathed.

Most pointedly, perhaps, was Justice Stephen Breyer’s observation that almost any professional could inadvertently violate this statute. “[T]here are 150 million workers in the United States. I think possibly 140 [million] of them would flunk your test,” he told Deputy Solicitor General Michael R. Dreeben, who was attempting to posit arguable limiting principles.

Breyer’s observation goes to the heart of the phenomenon about which I’ve written in my book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). Because of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day. (Interviewers have jostled me for what they deemed my wild overstatement, while I’ve tried to assure them that their own daily conduct probably produces three arguable felonies. Now I have one justice—and perhaps several more—on my side.)

“Honest services” fraud is an instructive example of this trend, but the federal law books are cluttered with countless others. Creative interpretations of the Computer Fraud and Abuse Act, obstruction of justice statutes, and controversial [...]

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Cato brief in McDonald v. Chicago

Available here. An outstanding brief, as one might expect. The bulk of the brief (21 pages, comprising Part I) shows that from the Founding Era into through the framing of the Fourteenth Amendment, national citizenship was paramount to state citizenship. Part II briefly argues that Slaughterhouse violated canons of constitutional construction–such as by interpreting the Privileges or Immunities Clause to make it nothing more than a reiteration of the Supremacy Clause.

Finally, Part III (pp. 27-33) argues that enforcing the Privileges or Immunities Clause will not undermine the Court’s prior so-called “substantive due process” jurisprudence. The brief shows that long before the 14th Amendment, “due process” was understood to mean that certain inherently unfair government actions were beyond the scope of lawful government powers–even if the government had followed proper procedures, such as public hearings. In the Supreme Court, the doctrine is as old as Daniel Webster’s argument in the 1819 Dartmouth College case, was always solidly established in American understanding of “due process,” and was so understood by the Framers of the Fourteenth Amendment.

Lead author on the brief is Timothy Sandefur of the Pacific Legal Foundation, which is also a party on the brief. You can listen to a podcast with Sandefur discussing the brief. The PLF’s Liberty Blog has some very interesting posts on the historical background of the Slaughterhouse cases.

United States v. Cruikshank, which was decided a few years later, finished off the job of judicial nullification of the Privileges or Immunities clause. Since that Court allowed some white domestic terrorists get away with mass murder of armed blacks who had assembled in a Louisiana courthouse, Cruikshank might appropriately have been captioned Slaughterhouse II. [...]

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