Not Innocent Enough

Nanci Griffith sings about the case resulting in the execution of of Philip Workman and the legal system's challenges.

Street Level Legal Interpretation

Criminal law is statutory.  Sometimes circumstances requires street-level analysis and legal interpretation by the hard working public servants entrusted with the first line enforcement of these laws.  Thorny gray areas become evident, as this video suggests:

Contempt of Court

Students who watch the movie, My Cousin Vinny, are sometimes surprised by the contempt rulings against Vinny for failing to comply with courtroom decorum and question whether that is merely a fictional device to garner laughs.  Well, here is Judge Joe Brown, formerly of TV curt show fame, found in contempt of court and sent to jail as a result of his courtroom conduct. It happens.

Raw audio:

Pay The Piper, or He Sings

From the fable of A-Rod and the MLB:

If you into a serious legal dispute, you need a lawyer.  If you need a  lawyer, then you need to pay a lawyer's fee.  If you don't pay the fee, then you get into a legal dispute with the lawyer who helped you with your legal dispute.  If you get into a legal dispute with the lawyer who helped you with your legal dispute, then your lawyer will disclose all the secrets that he hid for you in order to prove that you needed a lawyer's help with your legal dispute. To try to safeguard those secrets, you will need a lawyer to help you with the legal dispute with the lawyer who helped you with your legal dispute. And the carousel spins round and round again, etc.

First Amendment in Song

Lyrics by the U.S. Congress (1789).

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Law, Politics, Religion, and Irony

On Feb. 26th, ArizonaGovernor Jan Brewer vetoed the bill passed by the state legislature that would have authorized discrimination in the provision of services if providing such services offended a religious conviction. Since that time, a host of politicians and political commentators have rushed forward to protect Christians against what is alleged to be discrimination, bullying, and victimization for not allowing them to discriminate, bully and victimize others on the basis of a devout belief in the teachings of Jesus Christ.  Although the irony in such an argument was obvious, I was struck at the time by a more subtle, but equally evident irony found in the inability of another story to generate any similar Christian outrage.

Two days prior to the Arizona legislature's passage of the bill designed to protect Christians from government trampling their fervent beliefs to discriminate against people who are born with qualities deemed to be undesirable in the eyes of the righteous, a 84 year old devout Catholic nun and two equally devout companions were sent to prison by the federal government for practicing their deeply held religious conviction of advocating for peace.  The three activists broke into the federal facility known as the Fort Knox of uranium, where the nation's principal cache of weapons grade material is kept.  Once inside:

They hung banners, strung crime-scene tape and hammered off a small chunk of the fortress-like HighlyEnriched Uranium Materials Facility, or HEUMF, inside the most secure part ofcomplex. . . . They painted messages such as, "The fruit of justice is peace," and splashed baby bottles of human blood on the bunker wall.

At sentencing, one of the activists told the judge, "I was acting upon my God-given obligations as a follower of Jesus Christ." Federal officials acknowledge that they never posed an actual threat to anyone.

So, where is the outrage?  Where are the Michelle Bachmans and the Mike Huckabees and the other self-appointed defenders of religious ideology against tyranny clamoring for justice? 

Acting on deep religious conviction, three advocates for peace harm no one and are sent to prison. They are ignored by the Christian mouthpieces.

A bill that would have authorized the public shaming of persons whose innate traits are deemed undesirable by misguided and irrational religious fervor is vetoed and statements of religious persecution are shouted from every available political pulpit.

The legal lesson in this story is the role of politics in shaping policy. Law is what the government says it is. The government is a political process. We are selling our students short if we do not give them ample opportunity to explore the connection.

No high powered Christian mouthpiece outrage for devoutly religious peace activism:

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Irrational, high-volumed Christian outrage for being denied the privilege of lawful discrimination:
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Pondering Judicial Ideology

Here is an exercise regarding judicial decision-making and ideology.  The Commerce Clause in the Constitution grants the federal government the power to “regulate commerce among the several states….”  In a series of decisions from the New Deal in the 1930’s to the Civil Rights era of the early 1960’s, the Supreme Court has interpreted the Commerce Clause power so as to confer a very expansive power on Congress to regulate even very local activity.

However, in U.S. v. Lopez (1995) the Supreme Court took a very restrictive view of the Commerce Clause. Putting a halt to 50 years of expansive Commerce Clause interpretations, the court struck down the federal government’s attempt to ban guns from schools.  The court said:

To uphold the government’s contention here, we would have to pile inference upon inference in a manner that would bid fair to convert Congressional authority under the Commerce Clause to a general police power of the sort retained by the states. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in those opinions has suggested the possibility of further expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local.  This we are unwilling to do.

Ten years later, in Gonzales v. Raich, the same court (with no turnover in personnel) took a very expansionist view of the Commerce Clause in upholding the power of the federal government to regulate marijuana sale, use and possession, even in the face of legalization by the State of California and even applying to a plaintiff who grew her own medicinal marijuana in her own house. The Court relied heavily on the 1942 decision in Wickard v. Filburn where the federal government was allowed to control the quantity of wheat grown by farmers – even wheat that was sewn, harvested and used on the farmer’s own 11 acres. This is one of the decisions that was soundly rejected in Lopez.  Indeed, in oral argument in Raich, Justice Scalia said, “I always used to laugh at Wickard.” Yet, in his concurring opinion, he relies upon it.

Let’s take a look at the votes in each case:

Lopez:

5 justices in favor of restricted federal power: Kennedy, O’Connor, Rhenquist, Scalia and Thomas

4 justices in favor of more expansive power: Breyer, Ginsburg, Stevens, Souter

Raich:

3 justices in favor of restricted federal power: O’Connor, Rhenquist, Thomas

6 justices in favor of more expansive power: Breyer, Ginsburg, Kennedy, Scalia, Stevens and Souter

So, what’s going on here? Can the two decisions be reconciled on judicial ideology of expansive vs. restrictive federal powers?  Or is there a social conservativism expressed by the Kennedy and Scalia switch when it comes to smoking pot?  If this is true, is it possible that a judge’s social preferences may color his or her law-making? Is “the rule of law” shaped by a judge’s law of social rules?