The Language of the Law and Pena-Rodriguez v. Colorado

Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law.  The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law.  But what turns on this question?  The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why it matters and how the failure to follow the language of the law tends to confer discretion on the justices. A Colorado jury convicted Pena-Rodriguez of a crime, but following the discharge of the jury two jurors stated that another juror had expressed anti-Hispanic bias towards…

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