But if there were no federal crimes, why would we need the 4th, 5th, and 6th amendments?

I previously blogged about what would be a federal crime in 1787. I conclude that for the most part, there could not be any.

Corey C, a bright eyed, blue haired 1L at George Mason law, posed a fantastic question.

If there were no federal crimes, why would the Constitution have needed the 4th, 5th, and 6th criminal procedure amendments?

If the only crimes were state crimes, and there were no federal crimes, how would the federal government have been bound by these amendments?

Corey suggests that this perhaps counsels in favor of incorporation. Perhaps, Barron v. Baltimore was wrong?

Just some more food for thought, but it gets my originalist juices flowing.


What was a federal crime in 1787? I agree with Brutus. There weren’t any.

I am helping Judge Gibson prepare the syllabus for the Federal Court Practice class at the Penn State Dickinson School of Law this Spring. For the first class, the students will be reading Article III (as all law students should).

Re-reading Article III reminded me of a question I asked my Federal Courts professors, to which I did not receive a satisfactory answer: What was a crime under the authority of the Federal Government in 1787?

Article III, Section 2 Provides:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

But what were these crimes? The Federal Government has no general police power.

Brutus XIV (28 February 1788) notes:

“There is no criminal matter, to which the judicial power of the United States will extend; but such as are included under some one of the cases specified in this section.”

I tend to agree with Brutus’s reading.

Reading the original text of the Constitution, the only federal crimes that jump to mind are counterfeiting currency and securities, and perhaps treason. But what else?

Today, most federal crimes are based in the Commerce Clause. But how were federal crimes defined before the New Deal Revolution? This may be fodder for a future law review article.

For those curious, in addition to Article III, tentatively, the students may also studying Brutus XI-XII, XIV-XV and The Federalist 78, 79, 80, 81, 82, 83, followed by Marbury v. Madison.

Is Jack Balkin Disgusting? Andy Koppelman Thinks He May Be.

From Balkinzation, Andrew Koppelman posted this new article to SSRN, titled Why Jack Balkin is Disgusting:

Yale Law Professor Jack Balkin didn’t win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn’t possibly defend the paradigmatic departure from the Constitution’s original meaning.

Balkin has indeed posed a radical challenge to the vision of law that drives the originalists – more radical than he is willing to admit. His theory is in such deep tension with a commonly held vision of the rule of law that his argument is, to put the point precisely, disgusting. But that doesn’t mean that he is wrong.

I discuss Balkin’s article, Abortion and Original meaning, at length in my new article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment

I find Professor Balkin to be quite curious, though I would never use the word disgusting. I had some lengthy chats with him during the Constitution in 2020 Conference at Yale Law school (see live blog here). He is a thought-provoking, sincere scholar, who provides a formidable foil on the Left.

Though-provoking read, as I scramble to add some footnotes from this article to Pandora.

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Article about the Other 10th Justice: The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General

Although I have dubbed my most recent FantasySCOTUS.net feature Predictions of the 10th Justice, this new article on SSRN discusses the other 10th Justice, commonly known as the Solicitor General (H/T SCOTUSBlog)

The solicitor general “has developed a unique relationship with the Supreme Court, one in which it serves as an adviser as well as an advocate.” The Solicitor General fulfills his role as the Court’s adviser and advocate by responding to the Court’s invitation to express the views of the United States in given petitions for certiorari. Here, the Solicitor General acts as a special type of amicus because the Solicitor General is not a party to the proceeding nor opining on behalf of one of the parties but rather acting as a sort of “partner” to the Justices. When the Justices believe that, before they can grant or deny a petition for certiorari, they would like another opinion of the merits of a petition, they “call for the views of the solicitor general,” known colloquially as CVSG. Because of the enormous amount of trust that the Court holds in the Solicitor General’s office, the Court values the Solicitor General’s opinion to “provid[e] [the] best judgment with respect to the matter at issue.” However, this unique relationship of trust between the Court and the Solicitor General such that the Solicitor General’s opinion is treated as tantamount to the opinion of a tenth justice did not develop until the 1950s. This paper will examine how the CVSG process developed. Part II will provide general background information, explaining the office of the Solicitor General, the Supreme Court practice of granting certiorari and the reasons for doing so, and the process by which the Supreme Court invites the Solicitor General to express the opinion of the United States. Part III will examine the environment that laid the groundwork for the CVSG process to emerge: the personal relationships that existed between individual justices and attorneys in the Office of the Solicitor General and the political climate that instigated a political partnership between the Court and the Solicitor General. Finally, Part IV will argue that the CVSG process represents the culmination of the mutually beneficial relationship between the Court and the Solicitor General and then describe the first petitions for certiorari where the Supreme Court exercised its option to CVSG.

For another interesting article on the role of the SG, see AN EMPIRICAL ANALYSIS OF SUPREME COURT CERTIORARI PETITION PROCEDURES: THE CALL FOR RESPONSE AND THE CALL FOR THE VIEWS OF THE SOLICITOR GENERAL by David C. Thompson and Melanie F. Wachtell. I edited Dave and Melanie’s article will on the George Mason Law Review, and absolutely loved this piece. Definitely check it out.

Judges aren’t like Umpires. They’re like the Commissioner of Baseball

Interesting new article on SSRN from the Yale Law Journal Online, titled The Justice as Commissioner: Benching the Judge-Umpire Analogy  (H/T SCOTUSBlog)

Chief Justice Roberts has repeatedly compared the role of a Supreme Court Justice to that of a baseball umpire, and this analogy has assumed a prominent place in the contemporary debate over the appropriate role of a Supreme Court Justice. This paper traces the history of the judge-umpire analogy since its first judicial invocation in 1886, finding that it was originally intended for trial court judges. Moreover, courts historically invoked the analogy as an illustrative foil to be rejected because of the umpire’s passivity. In place of the judge-umpire analogy, this paper propose that the appropriate analog for a Justice of the Supreme Court is the Commissioner of Major League Baseball. Both Supreme Court Justices and Major League Baseball Commissioners fulfill four critical characteristics which separate them from trial court judges and umpires: they provide interpretive guidance to subordinates, undertake extended deliberation, take countermajoritarian action, and wield substantial rule-making power.

If each of the Justices were an athlete, who would they be? Definitely fodder for a future post. Thoughts?

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Are Individual Health Care Mandates Unconstitutional as a Direct Taxes without Apportionment Under Art I. Sec. 9?

Jonathan Adler at Volokh thinks it may be:

As I understand the current proposals, the individual mandate would operate as follows: A tax would be imposed on all individuals, and the tax would be offset by a credit for those who purchase or are otherwise covered by qualifying plans.  The constitutional problem would arise if this tax is considered a “direct tax.”  Why?  Because Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  “So if mandate is imposed through the tax code, and the provision operates as a “capitation” or “other Direct tax,” it would have to be apportioned.

Do the respective individual mandate provisions constitute direct taxes?  I’m not sure.  “Indirect” or so-called event taxes are not subject to apportionment under Article I, section 9, and income taxes were exempted from the apportionment requirement under the 16th Amendment.  So the question would be whether any tax imposed on those who fail to purchase qualifying health plans would constitute a “direct” tax, or whether they could be properly characterized as indirect or income taxes. From what I understand, the tax in the House bill is, at least for some individuals, based upon income up to a set threshold.  This might be enough to avoid the Article I, section 9 problem

This approach is much smarter than Rivkin’s argument that the Mandates exceeds Congress’s commerce powers. That case is DOA (pun intended). Of course, Pelosi and Reid can simply re-characterize the penalty so it is clearly not a direct tax, and escape the apportionment requirement. But if they fail to do so, totally possible in light of the rapid pace they rahm through this legislation, this could set up a potential facial, or as applied challenge, if enacted.

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