Liberty Law Blog

A Right to an Unanimous Jury at the State Level: Incorporating the Sixth Amendment Jury Trial Right

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The Constitutional Accountability Center, which often puts forward originalist arguments, has a petition for certiorari arguing in favor of full incorporation of the Sixth Amendment Jury Trial Right. In the 1972 Apodaca v. Oregon case, the Court in a 4-1-4 decision held that while the Sixth Amendment required a unanimous jury to convict in federal court, it did not require such a jury to convict in state court. While the Due Process Clause of the 14th Amendment limits the procedures that states can use in criminal trials, it does not require that the full Sixth Amendment unanimous jury right be employed. In reaching this conclusion, Justice Powell’s opinion emphasized federalism and experimentation as reasons not to incorporate the Sixth Amendment right.

Since I believe (although am not certain of) the arguments in favor of incorporation, I am sympathetic to this Sixth Amendment argument. Incorporation, however, can occur under at least one of two theories. Under the first theory, the 14th Amendment incorporated the original meaning of the Bill of Rights. According to this view, the Sixth Amendment would be fully incorporated and states would be required to have unanimous criminal juries.

Under the second theory, the 14th Amendment incorporated the meaning of the Bill of Rights as of the time when the 14th Amendment was enacted. The question, then, is what the provisions meant in 1868, not in 1791. I am sympathetic to this view and have employed it in my own scholarship.

I am not familiar with how the right to a criminal jury was understood in 1868 – either the understanding of the Sixth Amendment or the understanding of the right at the state level. To conclude that states are required to have unanimous jury requirements, one would need to establish that the criminal jury right required a unanimous jury in 1868. I would not be surprised if this was the dominant view, but one wants to have evidence before concluding that the right was incorporated under this second theory.

Administrating the Decline in American Citizenship

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fourthbranchConfirming ordinary experience, the polls leave no doubt that the majority of Americans now regard the U.S. government as more a threat than a protector, acting beyond law or popular control. How government in America became “them” rather than “us,” what government’s loss of legitimacy means for this country, and whether lost confidence and legitimacy may be reclaimed any more than virginity, are questions we must ponder. Continue Reading →

Footnotes or Endnotes

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I know this is not the most consequential issue out there, but it is significant at least for those of us who read and write books.  When I read an academic book, I want there to be footnotes at the bottom of the page, not endnotes at the end of the book.  It is much more difficult to turn to the back of the book than to simply glance at the bottom of the page.  This is especially important for law books, because so much of the legal literature is placed in footnotes, including important substantive points.

Yet, publishers strongly favor endnotes.  My publisher claimed that the book would be cleaner and more readable without footnotes.  I am not exactly sure what that means, but I am guessing it is suggesting that readers like a page without footnotes.  Perhaps nonacademic readers like it, but academic readers do not.  And whether they are academic or nonacademic readers, I am sure all of them like a footnote when there is substantive content there.

I struggled for years reading Friedrich Hayek’s The Constitution of Liberty with endnotes. Those endnotes were a great course in the history of political philosophy, but one had to turn to the end of the book to see them (as well as the analytic table of contents).  Thankfully, a new edition of the book has been published with the endnotes moved to the bottom of the page — a great improvement.

What about technology? After some years of struggling, most new kindle books have a good system of endnotes.  One touches the endnote number and one is taken to the endnote at the end of the book.  One touches the endnote number again and is returned to the text.  That is certainly better than endnotes at the end of a paper book, but not as good as footnotes in a paper book, where you can tell at a glance whether there is a substantive note that might require reading.

Thomas’s Full-Throated Originalism: Ralph Rossum Responds

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I am grateful for the thoughtful commentaries and kind words that Keith Whittington, Lee J. Strang, and Adam White have provided on my essay on Clarence Thomas’s jurisprudence of constitutional restoration. Since all three commentaries address the low value that Thomas, as an originalist, places on stare decisis, I will begin there. Continue Reading →

The Age of Enlightenment?

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A Captain in the LAPD has responded to critics of general surveillance by saying that Americans objected to street lights when they were first installed because they made it easier to see what people were up to at night. There is, of course, a rather large difference between allowing for people to see what goes on in public areas and recording everything that goes on there. The difference is, perhaps, akin to the difference between the Providential God who might be anywhere but is not necessarily in any given place at any given point in time and the Pantheist God who inheres everywhere in nature at all times.

Meanwhile, the only example of I know of street lamps being erected in American history is in Philadelphia in the 18th century. Benjamin Franklin says that some credit him with introducing lighting to the streets of Philadelphia. In fact:

“It was by a private person, the late Mr. John Clifton, his giving a sample of the utility of lamps, by placing one at his door, that the people were first impress’d with the idea of enlighting all the city. The honour of this public benefit has also been ascrib’d to me but it belongs truly to that gentleman. I did but follow his example, and have only some merit to claim respecting the form of our lamps, as differing from the globe lamps we were at first supply’d with from London.”

Nowadays, would the government let Mr. Clifton do that?

Puzzling Questions

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the-once-and-future-king-20141Legal scholarship is too often a game of small ball, where vast efforts are expended in pursuit of minimal gains, like a game of football with 50 downs, or trench warfare where lives are expended for mere inches. How vastly more interesting are Sir Thomas Browne’s puzzling questions. “What Song the Syrens sang, or what name Achilles assumed when he hid himself among the women, though puzzling Questions, are not beyond all conjecture.” Continue Reading →

Introducing May Guest Blogger Frank Buckley

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It’s my pleasure to introduce Frank Buckley, Foundation Professor at George Mason School of Law, as our guest blogger for the month of May. You might recall his previous work on this site on the rise of executive power and the decline of liberty in America and the recent podcast we did on his latest book The Once and Future King: The Rise of Crown Government in America published by Encounter Books last month. I look forward to his posts on the administrative state, executive power, and other issues.

Promoting Innovation in the Twenty-First Century

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In my last post, I discussed how the nature of innovation in our time raises questions for Thomas Piketty’s forecast of increasing inequality in his new book, Capital in the Twenty-First Century. In this post, I argue that his policy proposals also leave out consideration of innovation and thus risk great social harm.

Piketty does not recognize how crucial extraordinary individuals are to innovation and distribution. As Robert Solow notes in his review. Piketty seems skeptical that today’s highly paid “supermanagers” add much value for their very high salaries.  Solow endorses this skepticism, agreeing that agency costs are responsible for these high salaries. On this theory, boards of public companies are cozy with these managers who often appoint them to their positions and the result is sky high compensation. But if agency costs were the cause, we should observe closely held companies paying supermanagers less, but as Greg Mankiw points out, they do not.

A much better explanation is that innovations in the structure of corporations– faster telecommunications and the availability of data that represent the details of companies’ operations—have enabled managers at the very top to make a huge difference throughout their organization. A business today is the shadow of one or a few individuals who can take the key decisions. Continue Reading →

Evaluating Justice Black

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My last post argued that Justice Hugo Black was not the most overrated justice and in fact was a first rate justice. I thought I would comment here on attempts to rate Justice Black as a justice – a matter that was recently debated by Will Baude and David Bernstein of the Volokh Conspiracy.

I always have a hard time with lists of great justices or great presidents, because it is always difficult for me to determine what are the appropriate criteria. As a libertarian, I have certainly been upset by the liberal or progressive historians or law professors selecting justices or presidents based on their own politics. Its fine if people want to rate officials based on their politics; the raters, however, should make clear that is what they are doing.

Attempts at nonpolitical criteria avoid the problems of political ratings, but introduce other challenges. One might judge presidents or justices based on how consequential they were, but unless one smuggles in political criteria, one can be an enormously bad president or justice and be very consequential.

Will defended Justice Black on grounds of “historical significance and legal ability.” Historical significance appears to be nonpolitical. Legal ability could be political or nonpolitical, depending on how one understands legal ability. Continue Reading →