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On Friday, March 18, 2011, I had the distinct honor and privilege of advising a group of Middle Eastern judges from Iraq, Jordan, Morocco, Saudi Arabia, Sudan, and Tunisia under the auspices of the State Department’s International Visitor Leadership Program. This program invited these foreign jurists, who are selected as the rising stars in the government (impressive alumni include President Nicholas Sarkozy and Prime Minister Hamid Karzi) to the United States to learn about the rule of law and judicial reform. I was invited to speak to the group as a representative of the Harlan Institute about how American students learn about the law, Constitution, and the Supreme Court.

All too often lawyers are critical of such meetings, contending that American lawyers and jurists are influenced by foreign law. I disagree—the door swings both ways. My aim was to introduce our guests not just to how Americans learn about the law, but what the students actually learn. I began the session by handing each guest a copy of the United States Constitution translated into Arabic, courtesy of the Cato Institute. No one in the room had ever seen or read the United States Constitution before.

With the assistance of a simultaneous Arabic translator, I introduced our guests to the Constitution through the case of Snyder v. Phelps, relying on the lesson plan the Harlan Institute designed for high school students. I explained how the case as structured—(Petitioner) Matthew Snyder, father of slain Marine Mathew Snyder, objected to the protests from (Respondents) Fred Phelps and his family, and filed a lawsuit in federal district Court. Next, I explained how our tripartite federal judicial system is structured, discussing the interaction between the judges on the district, appellate, and Supreme Courts.

With the procedural matters out of the way, I moved onto the substantive law. I asked each of them to turn to the page of their pocket Constitution that contained the First Amendment. None of them had ever been exposed to our great Charter. As I read it out loud, and saw their eyes following along in Arabic, I felt a joy that exceeds any other feeling I have ever had as a teacher. It was quite a rush.

The jurists were very interested in FantasySCOTUS. One judge asked if we could create a version for the Tunisian judiciary. They were also quited interested in, HARLANconnect, the Harlan Institute’s platform to connect lawyers and professors with students using Skype. Several of the members who were responsible for promoting education in their country expressed an interest in Skyping with members of the Harlan network.

I look forward to working with my new friends, and helping to promote the study of liberty and the rule of law around the World.

Professor Richard Albert, who sits on the Harlan Institute’s Board of Advisers, has a Symposium piece about Justice Thomas, wherein he asserts that Justice Thomas may be leading a constitutional revolution. Here is the abstract of The Next Constitutional Revolution:

In these brief reflections presented at the University of Detroit Mercy Law Review’s March 2011 Symposium on “Celebrating an Anniversary: A Twenty-Year Review of Justice Clarence Thomas’ Jurisprudence and Contributions as an Associate Justice on the United States Supreme Court,” I advance the view that the history of the United States is a series of constitutional revolutions that have defined and redefined the nation and its people. I illustrate how constitutional revolutions have shaped the United States using three different examples of revolution leadership: legislative, presidential, and judicial. My objective is to suggest that America may now find itself on the cusp of yet another constitutional revolution – a modern conservative constitutional revolution that could change much of what lies at the foundation of the United States Constitution.

The constitutional revolutionary leading this transformative movement is neither a president nor a legislator nor an amorphous aggregation of political interests. It is instead a single, and indeed singular, individual who currently sits on the Supreme Court of the United States: Clarence Thomas. His judgments have come to constitute the intellectual core of a persistent movement to return the United States to its founding confederate design. The battle pitting nation-centric federalism versus state-centric confederalism may be the next frontier in American constitutional law.

For years I have commented that it is Thomas, and not Scalia, who is carrying the banner of limited government and constitutional liberty. Albert writes that “Specifically, I will suggest that Clarence Thomas is a modern constitutionalrevolutionary whose vision for the United States is as transformative as had been in their daythose of Roosevelt, Lincoln and the Federalists.” Should we be so fortunate.

Albert writes further:

But amid these doubts about the future course of American constitutional law, two thingsremain certain. First, Justice Thomas will continue to interpret the United States Constitution inconfederalist terms, concerned first and above all with promoting state supremacy, protectingstate sovereignty, and neutralizing the concerns that give him and others reason to be suspiciousof the power-arrogating tendencies of the national government. Justice Thomas is a jurist ofprinciple who heeds only what he believes to be right, not what he regards as expedient. And forhim, what is right as a matter of constitutional law and founding history is to reclaim America’sconfederalist roots.

The second thing we can be sure of is the continuing influence of Justice Thomas. Even ifthe current conservative movement fails to consummate its revolutionary aspirations, there willnevertheless remain hope for the movement’s revival sometime in the future because JusticeThomas is not expected to retire anytime soon. He only recently entered his 60s.138 He couldvery well remain on the bench for the next two to three decades. We could see anotherconservative movement spring between now and then. And with Justice Thomas likely still to beon the bench when it does, the next conservative movement after the current one may very wellbe the one that becomes the next constitutional revolution.

I may quibble, and note that Thomas is much more libertarian than conservative, but this is a fascinating piece. Take a look.

During my research for Original Citizenship, I spent some time studying the government under the Continental Congress, a government that predated the Articles of Confederation. This nascent government was not well-formed, but it did function as a sovereign for some time, and engaged in the types of things a government will do (details later, I promise). I often thought about the government of the confederacy, specifically what were its Court systems like.

G. Edward White has a fascinating piece called Recovering the Legal History of the Confederacy. Here is the abstract;

Although the government of the Confederate States of America has been formally treated as a legal nullity since 1878, from February, 1861 to April, 1865 the Confederacy was a real government, with a Constitution, a Congress, district courts, and administrative offices. This Article seeks to recover the legal order of the Confederacy in its robust state, before the prospect of its obliteration came to pass.

The Article explores the question why certain southern states would have considered seceding from the United States, and forming a separate nation, in late 1860 and early 1861. It then turns to the legal order of the Confederacy that was erected after secession. If focuses on two characteristics of that legal order: its architecture, including the drafting of the Confederate Constitution, the establishment of Confederate district courts, and the failure of the Confederate Congress to organize a Supreme Court for the Confederacy; and the central legal issues with which the Confederate government was preoccupied. The Article concludes that in the minds of contemporaries, the outcome of the Civil War and the dissolution of the Confederacy that accompanied it represented a transformative phase in American history, in which the way of life that the Confederacy symbolized was confined to oblivion..

It’s quite long (92 pages) but looks rather interesting.

The Times obtained the text of an F.B.I. memorandum I discussed yesterday that effectively expands the public safety exception to Miranda in cases of terrorists. The memorandum provides three steps to follow. The first two hew closely to Supreme Court precedents:

1. If applicable, agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights. [3]

2. After all applicable public safety questions have been exhausted, agents should advise the arrestee of his Miranda rights and seek a waiver of those rights before any further interrogation occurs, absent exceptional circumstances described below.

Generally speaking, the public safety exception only permits the abrogation of Miranda for imminent threats. But the third step the memo provides expands this exception.

3. There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4]

The memo includes Footnote Four which lists a number of opinions showing that 5th Amendment violations only occur if evidence is admitted at trial. I don’t think any of these cases permit interrogations without Miranda in circumstances without an imminent threat:

[4]The Supreme Court has strongly suggested that an arrestee’s Fifth Amendment right against self-incrimination is not violated at the time a statement is taken without Miranda warnings, but instead may be violated only if and when the government introduces an unwarned statement in a criminal proceeding against the defendant. See Chavez v. Martinez, 538 U.S. 760, 769 (2003) (plurality op.); id. at 789 (Kennedy, J., concurring in part and dissenting in part); cf. also id. at 778-79 (Souter, J., concurring in the judgment); see also United States v. Patane, 542 U.S. 630, 641 (2004) (plurality opinion) (“[V]iolations [of the Fifth Amendment right against self-incrimination] occur, if at all, only upon the admission of unwarned statements into evidence at trial.”); United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (“[A] violation [of the Fifth Amendment right against self-incrimination] occurs only at trial.”)

That footnote is somewhat misleading, as it does not support the proposition. It just explains that even if Miranda is violated, if the US doesn’t introduce it at trial, it’s cool.

Step three concludes by suggesting “whenever feasible” that the agent obtain permission from the FBI or DOJ.

Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

As I commented previously, this memorandum seems to expand the Supreme Court’s interpretation of the public safety exception beyond the imminent threats in Quarles to cases where the agent determines that it is important to “collect valuable and timely intelligence not related to any immediate threat.” No Supreme Court precedents to support that. I’ll repost my earlier comment:

Is it that simple? If the government does not seek to use the evidence in Court, they can ignore the Constitutional right? Isn’t the point of Miranda to deter police misconduct–not just to prevent its admission in Court. I don’t think the US would need whatever statements the Christmas Day bomber made in order to convict him. Thus, with impunity, they could ask any sorts of questions notwithstanding Miranda, and convict him just the same. It seems they can have their cake, and eat it too.

This position really seems to defeat the purpose of Miranda. I suppose one day the Court will have a chance to opine on this issue. But how? There won’t be a motion to suppress because these statements will never be introduced. Perhaps under a 1983 action for violation of civil rights? That won’t get very far. Perhaps a due process challenge? It seems any proceeding would be collateral to the conviction. In essence, this action is shielded from any meaningful judicial review (I think).

 

I have probably seen every episode of Seinfeld at least twice (though I don’t watch TV of late). While watching many episodes, wherein the zany members of quartet are unable to find one another, I often wondered how easy things would’ve been with a cell phone. I often wonder how anyone existed before cell phones. My parents purchased their first cell phone in 1994 or so, when I was 10.

Gawker has a good piece breaking down the top 10 Seinfeld episodes that couldn’t have happened with cell phones. I think there was one episode where Kramer had a Zak Morris phone, but I guess that was short lived.