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May 12, 2023
Closing another busy week rounding up some notable commentary
Last month, I used round-up posts here and here to catch up on a number of capital punishment and prison-related stories during busy end-of-the-semester weeks. This week it is mostly grading and graduation that has kept me from blogging a number of notable commentary pieces that I have seen recently. So, catching up again with a round up, here goes:
By James Austin & Michael Jacobson, "A Model for Criminal Justice Reform: How New York City Lowered its Jail Population and Crime Rates"
By Emily Beltz, "How an Oklahoma Death Penalty Case Shook Up Evangelical Views on Execution"
By Hillary Blout & Marc Levin, "Give Texas prosecutors the chance to do justice for old cases"
By Kristen Budd, "Expanding voting rights to justice-impacted can improve public safety"
By C.J. Ciaramella, "Newly Released Government Records Reveal Horrible Neglect of Terminally Ill Woman in Federal Prison"
By Whitney Downard, "Probation, parole an overlooked population of the criminal justice system"
By C. Dreams, "How The Prison Litigation Reform Act Blocks Justice For Prisoners: Legislation signed by Bill Clinton makes it nearly impossible for people in prison to have their cases heard in court."
By Eric Reinhart, "How Community Health Workers Can End Mass Incarceration and Rebuild Public Safety"
By Rupa Subramanya, "Is Justice Still Blind in Canada?: Equality under the law is the cornerstone of liberal democracy. But judges across the country are now factoring race into sentencing."
By William Weber, Brooks Walsh, & Steven Zeidman, "New York’s Compassionate Release Laws were Designed to Keep People from Dying Behind Bars; They’re Failing"
By Raymond Williams, "Dear Prison Officials: Stop Searching My Nose for Your Contraband"
May 12, 2023 at 10:06 AM | Permalink
Comments
There's this:
https://www.city-journal.org/article/after-jordan-neelys-killing-soul-searching-and-self-righteousness
Posted by: federalist | May 12, 2023 1:42:30 PM
The article by Rupa Subramanya about Canadian justice is ominous and eye-opening. I discuss it in my Substack entry here: https://ringsideatthereckoning.substack.com/p/equal-justice-under-law?utm_campaign=reaction&utm_medium=email&utm_source=substack&utm_content=post
Posted by: Bill Otis | May 13, 2023 7:13:08 AM
https://www.nationalreview.com/2023/05/why-daniel-penny-was-charged/
The Canadian actions are appalling. Spitting in the face of victims. Sickening. But all good under Doug's rule of law theory.
Posted by: federalist | May 15, 2023 9:22:03 AM
And Doug, I assume you're going to go off on Senator Chris Murphy:
CHUCK TODD: I want to talk about the issue of guns. And, look, this has been something that you’ve been working on for quite some time, trying to find small increases in gun regulations or big ones. We saw another court ruling that essentially invoked and said, “Hey there’s just not much you can do because of the Second Amendment, this absolutist version and, and interpretation of the Second Amendment.” Given that we have a court system that this is what it’s going to be, how do you tackle gun regulation under this environment? Do you go for a new consti – a new constitutional amendment or do you just hope judges’ philosophies change over the next generation?
SEN. CHRIS MURPHY: Right now, the Supreme Court has made it clear, under Heller Decision, which still controls, they say there is a right to private gun ownership, but there is also an ability for Congress to regulate who owns weapons and what kind of weapons are owned. I think we have to continue to operate under that construct. And I’m – and I really see progress, right? We broke a 30-year log jam last year by passing the first major gun safety initiative. You have seen Republican states like Tennessee looking at red flag laws, Texas considering raising the age to buy assault weapons. I think our movement is in a position to win. Does it worry me, what some of these district courts are doing? Absolutely. But right now, I think our focus is about – has got to be about growing the movement and continuing to capitalize on the progress of last year.
CHUCK TODD: But it does sound like you’ve got to do it within the construct of, “Look. You’re probably not going to be able to regulate much having to do with access to the gun by anybody over 18.”
SEN. CHRIS MURPHY: Well, listen, if the Supreme Court eventually says that states or the Congress can’t pass universal background checks or can’t take these weapons off the streets, I think there’s going to be a popular revolt over that policy. A court that’s already pretty illegitimate is going to be in full crisis mode.
Posted by: federalist | May 15, 2023 9:36:12 AM
Here's one for the rule of law:
https://www.nbcnews.com/news/us-news/arkansas-prosecutor-barry-walker-avoid-child-abuse-charges-rcna83390
Posted by: federalist | May 15, 2023 10:08:23 AM
federalist, I am not sure what you mean by my "rule of law theory" or what you think I should be "going off on Senator Chris Murphy" about.
My understanding of your "legal self-help theory" is that any person who sincerely thinks his Second Amendment (or other) rights are being violated has a right to attack at law enforcement.
I think Senator Murphy is pretty dense to think the voting public cares much about Second Amendment jurisprudence. I assume that is what he means by "popular revolt," but maybe you think he is talking about persons aggreived by the SCOTUS rulings taking the law into their own hands. If that is what he means, I do consider his statement quite irresponsible. Though I assume then you would be a fan, since that seems in keeping with your "legal self-help theory."
(Also, your "legal self-help theory" seems to suggest that, right now, someone who sincerely believes that high-capacity magazine bans and/or universal background checks are unconstitutional has a has right to attack at law enforcement to prevent enforcement of those laws.)
Posted by: Doug B | May 15, 2023 10:10:14 AM
First of all, he's calling SCOTUS illegitimate. I only have criticized verdicts.
Second, given what the Senate Dems have been saying about the Court, Murphy's popular revolt comment isn't capable of innocent construction.
Third, when you identify society's moral right to expect that Rosa Parks submit meekly, I can better address your arguments . . . . and why should someone have to submit to the danger of jail if the warrant is completely bogus?
Posted by: federalist | May 15, 2023 10:38:20 AM
I concur, federalist, that it is untoward and foolish to call SCOTUS "illegitimate," though this was a common epithet thrown at the Warren Court. Indeed, a quick google search turned up an article by Robert Bork calling that Court "profoundly illegitimate" and making this assertion: "It seems safe to say that, as our institutional arrangements now stand, the Court can never be made a legitimate element of a basically democratic polity." https://www.firstthings.com/article/1996/11/the-end-of-democracy-the-judicial-usurpation-of-politics
Interesting that you are now talking about "moral right" rather than legal right with respect to Rosa Parks. I am quite prepared to agree that jim crow laws were morally wrong (and I view that assertion to be part of the moral foundation for modern claims for economic reparations and other remedies for centuries of moral wrongs). But I thought we were talking about legal issues, not moral ones. And my assertion is that legal issues, not moral ones, are to be resolved consistent with the rule of law, not through legal self-help.
Can you clarify if you are just talking about morality or law (or the connection you see between the two)? Many individuals sincerely view abortion (and even abortifacient forms of contraception) to be immoral, but I do not think you are suggesting people who have those moral views have a legal right to attack people who are involved in otherwise lawful abortion practices.
Posted by: Doug B | May 15, 2023 11:13:07 AM
I am not going to let you off the hook so easily on Murphy--Bork obviously never called for violence (a la Schumer) or implied that the Justices themselves were illegitimate. Nor did he call for their security to be tied to them adopting rules that Congress wants.
You don't deal with a few things--first, if the ex-wife has the 1A right to criticize her ex-husband cop, is it really a right if she must meekly submit to a warrant commanding her arrest for just that with the possibility that maybe, just maybe, she gets money damages, and in particular where the government isn't a guarantor of your safety when in the pokey?
You also don't deal with the fact that the arrest of Rosa Parks was, in fact, lawless, given the Equal Protection Clause.
With respect to abortion, there is no license to kill. I will note that your moral paragon, Barack Obama, didn't want to ensure that babies that survive abortion would not be exposed (i.e., left to die) and would receive medical care.
As for my invocation of the moral right, I am talking about society's authority to demand that someone meekly submit to violence by the government. Do we really have a right to tell people that they have to risk physical injury in jail when the arrest itself was clearly illegal? https://www.ajc.com/news/crime--law/woman-arrested-for-critical-facebook-post-wins-settlement-praise/Ok7EESSmKgQnHa4Ch5RF8O/
This isn't about reparations, which would be blindingly unfair.
Posted by: federalist | May 15, 2023 11:44:53 AM
federalist, I have already condemned any effort to limit SCOTUS security funding on any ground and I condemn any call for violence and have stated Senator Murphy's comments here are untoward and foolish. All politicians, as I see it, always tend to say dumb things about judges and the judiciary, and Dems have becomes particularly dumb in this respect recently. I wish they would do their jobs rather than pander to the loudest and most extreme Twitter voices.
On the other fronts, you are throwing so much inconsistent "rule of federalist" ipse dixit around, it is hard to sort it out. (E.g., you say "with respect to abortion, there is no license to kill." But I believe Tarls and many other sincerely believe any and everyone from the moment of conception is covered by the Equal Protection Clause. Indeed, many pro-lifers view Roe as just a variation on Dred Scott and do not think Dobbs is much better. But in the "rule of federalist" world, I suppose you have a vision of why MLK is right but Tarls is wrong about the real meaning of the Constitution.)
But let's try to start with a few simple matters:
1. We are now talking about the "federalist legal self-help theory" of LEGAL rights and not moral rights in all these cases? Just want to be clear what the heck the curious and often confusing "rule of federalist" claims are really addressing.
2. Who in the federalist world gets to decide if a "warrant commanding an arrest" is "clearly illegal?" Is is a court or it is the person being served with the warrant? (Or is it any cop asked to serve the warrant? How about other persons associated with the person named in the warrant?) If it is the person being served, can that person (or others) use force against anyone and everyone seeking to serve that warrant that they have decided is "clearly illegal"?
I am starting here in part because I surmise former Prez Trump and many of his supporters sincerely believe he is being subect to many "clearly illegal" forms of partisan legal process.
Posted by: Doug B | May 15, 2023 12:11:45 PM
1. Senator Murphy's comments, in the context of what the 'rats are doing, are more than "untoward and foolish"--I think we should start by getting that right.
2. Does the government have the right to force people into a situation where their very lives are at stake in pursuing a blatantly illegal arrest? Going to jail isn't a riskless exercise, and if people are willing to put you in handcuffs illegally, what else are they willing to do? That point isn't addressed by yapping about the "rule of federalist" and invoking the "rule of law." Hint: that being arrested for criticizing your ex-hub ain't the rule of law.
3. Surely we can agree that the arrest of Rosa Parks was lawless.
Posted by: federalist | May 15, 2023 12:29:23 PM
federalist, you have failed to answer the questions I started with and that seem to me essential to continue. I will repeat (and condense):
1. Are we talking only about LEGAL rights and not moral rights in all these cases?
2. Who in the "rule of federalist" world gets to decide if a "warrant commanding an arrest" is "clearly illegal" (or that an arrest is "blatantly illegal")? Is is a court or the person subject to arrest or someone else?
Can you answer these questions directly?
Posted by: Doug B | May 15, 2023 1:26:26 PM
Ha ha. See, you cannot answer. As for the "who gets to decide?" question, you are going about it all wrong. In the case of the Facebook poster, any citizen can easily ascertain the lawlessness of the arrest warrant. It is beyond debate that she had a 1A right to post what she posted, and yet, through the illegal actions of government actors, she was subjected to force and subjected to dangerous jail. Remember what I said earlier--you had better be right. That's ultimately the issue--but let's not forget, in cases like that, government actors are abusing their power, and you call that "the rule of law." No.
1. Moral vs. legal. When I invoke the moral right, what I am saying is what moral right does society have to ask people to stand down when they are being abused by government. Are you saying, for example, that you, Doug Berman, would be morally justified in telling the Duke lax defendants that they would just have to submit to going to prison for decades on the basis of a fraudulent prosecution had things not gone their way. That's a tall order. Incantation of the "rule of law" sounds more like submission to tyranny. Did society have a right to ask Nat Turner to stand down? Hard questions. Would a woman have the right to resist a cop raping her on a traffic stop? And how do you separate that illegality from that of what happened to the ex-wife? Or what Nifong tried to do? Or let's take this hypo--prisoner sees guard spit in his food, and the prisoner (held beyond his release date, illegally) cold cocks the guard, guard hits his head on the floor and dies. What result? Should the fact that he was a prisoner, though illegally, factor into how he is dealt with?
2. I don't know who gets to decide, but what you're doing is using that "you never really know" argument to say that people have to submit to lawlessness. But in the cases I cite, there's no reasonable doubt as to the lawlessness of them. Equal protection means you cannot reserve seats on city buses for white people. Let's get that right.
Posted by: federalist | May 15, 2023 1:59:20 PM
And, of course, you don't answer about Murphy--his comments are very bad in the context of what his buddies are saying.
Posted by: federalist | May 15, 2023 2:16:31 PM
federalist, you keep changing your tune, which is what makes it so hard to understand what music you want everyone to dance to and so it is hard for me to answer questions from your jukebox. Are we now discussing legal rights or moral rights or just what should "factor in" when legal actors are excercising their lawful discretion?
At issue is not should people have to submit to "lawlessness," but whether people get to lawfully avail themselves of "legal self-help theory" when legal matters may be unclear and subject to debate in courts and elsewhere. There are established doctines like self defense and necessity that provide a legal basis for a certain kind of legal self help. But it seems you want to make up another doctine --- unclear if this is a legal doctrine or a moral doctrine --- which would allow some people (everyone?) to attack (and kill?) law enforcement actors (and judges?) that are seeking to enforce (a few? many?) laws -- but this applies only to some (but not all) factually innocent and/or constitutionally aggreived individuals. Again, it is hard for me to describe what you are claiming because the tune keeps changing and I still do not know whether we are talking law, morals, discretion or something else.
Meanwhile, you are eager to condemn Murphy, but your assertion that "Incantation of the 'rule of law' sounds more like submission to tyranny" would surely justify attacks on the Supreme Court by anyone and everyone who thinks the Justices are being tyrannical (whether during the Warren era or now in the Roberts one). Never should one submit to the rule of law, it seems you are saying, if you think that law is tyrannical.
Your bizarre assertion "Remember what I said earlier--you had better be right" gets to the heart of the nonsense you are spewing. "Right" according to whom? I keep sensing it is right according to federalist (or is it god?), because you cannot mean "right according to the standard legal process we use to resolve disputes" as that is exactly my point that these matters are for resolution pursuant to the rule of law and our legal system and not through "federalist legal self-help theory."
I am really trying to understand your claims, but it seems according to federalist, sensible commitment to the "rule of law" = "submission to tyranny," and the confusing "federalist legal self-help theory" is only cabined by the "you had better be right" principle from the gospels of federalist (which apparently does not apply to factually innocent persons wrongly convicted and serving decades in prison).
Uh.. okay.
Posted by: Doug B | May 15, 2023 3:21:44 PM
Once again, you posit the idea that we don't know until a court or the government says so. The problem is that we do know, sometimes, and there are actually laws that allow "self-defense"--you can resist an illegal arrest in Indiana, and you can defend your home against an illegal incursion by cops. The world isn't caving in. You try to mention a parade of horribles, and nothing I've said justifies attacking judges or what have you based on random disagreements. What I have asked, and you really can't seem to answer is whether society has the right to ask people to submit to thinks like a bogus Nifong prosecution (assuming it was successful). Did society have the right to ask Rosa Parks to submit to an unlawful arrest? (And yes, it was unlawful since it violated the Supreme Law of the Land).
If you think that the Duke lax defendants were obligated to go to prison quietly (assuming the fraudulent prosecution was successful), then that's fine. Own that. Tell us that the First Amendment has a submission to authority qualifier. I don't see it in there.
And I don't think anyone reading this misunderstands what I am saying.
Posted by: federalist | May 15, 2023 4:19:18 PM
federalist, can you just explain why this "rule of federalist" does not apply to every factually innocent person subject to an unwalful arrest and a bogus prosecution? You say "we do know, sometimes" --- but the factually innocent person surely knows her innocence more clearly than an average citizen knows about "the Supreme Law of the Land" (especially when there is SCOTUS precedent to the contrary).
And does the "rule of federalist" apply to the white-collar defendants recently vindicated by the 1st Circuit and the Supreme Court? Did it apply to those who were subject to arrest for LGBTQ activities before Bowers (or between Bowers and Lawrence)? I have so many questions about "we do know, sometimes" --- especially since there are surely at least few hundred wrongful convictions each year and surely many thousands of unlawful arrests.
Key point: there is no current "parade of horribles" because, to my knowledge, all legal actors currently are committed to the "rule of law" rather than the "rule of federalist."
Posted by: Doug B | May 15, 2023 4:39:11 PM
Part of living in an ordered society is that you have to live with good faith mistakes of people. That's life.
As for "committed to the rule of law," is it really fair to say that Nifong was? That the magistrate issuing the arrest warrant for the ex-wife?
You can't answer a simple question--let's say that Nifong was successful, would the Duke lax defendants have been justified in not accepting their fate? And no, there isn't Supreme Court precedent to the contrary regarding 1A rights of those kept past their term of incarceration. By the way, I believe that Lawrence was wrongly decided, and I also believe that such laws are awful and have no place in modern society.
Posted by: federalist | May 16, 2023 8:42:45 AM
As I now try to understand your latest variation of the "rule of federalist," it seems that you are saying "good faith mistakes" by law enforcement and prison officials do not authorize violent resistance by those subject to those mistakes. I assume that means you are saying that only (and all?) "bad faith" law enforcement efforts permit (call for?) violent resistance according to the "rule of federalist." That notion leads to all sorts of follow-up questions:
--- can seemingly politicized and/or racialized law enforcement efforts (eg, what many see in the prosecutions of Donald Trump and/or others see in the drug war as "the new Jim Crow") potentially qualify as "bad faith" law enforcement efforts so as to permit (call for?) violent resistance?
--- when a factually innocent person is subject to arrest and/or prosecution, especially if and when he sincerely believes race, class and other suspect factors are playing a role, can he reasonably presume that his unlawfully mistreatment is a product of "bad faith" and act accordingly?
--- can law enforcement, when simply and faithfully following established local and Supreme Court law at the time, still be (sometimes?) viewed as acting in "bad faith"? (Eg, were all (some?) cops involved in NYC stop-and-frisk potentially involved in "bad faith" when implementing a policy later found unconstitutional?)
I sincerely agree that all wrongfully prosecuted people --- those factually innocent and those just found "legally innocent" like the white-collar defendants exonerated last week --- do not need to forever "accept their fate." They can and should use our tort systems and other established mechanisms to vindicate their rights and seek compensation for the harms they have suffered. (This is one of many reasons I am troubled by non-textual immunities that have been invented by courts to shield government actors/coffers from justified liabilities.)
But, like everyone else in civil society, the Duke kids and other persons wronged and harmed by state action can and should be seeking recompense and the vindication through the "rule of law" rather than through the bizarre and unclear and inconsistent and principle-free "legal self-help theory" being confusingly articulated by the every-shifting "rule of federalist."
In short, I am interested in legal principles and their application, rather than "here is what federalist feels" about a few cases. That said, lots of legal scholars make a living by writing up accounts of what they feel about the law. And many who reference Rosa Parks tend to be in the CRT/reparation lane. Here are a couple of examples (one recent, one much older), if you are interested:
"Criminal Procedure and the Good Citizen"
https://columbialawreview.org/content/criminal-procedure-and-the-good-citizen/
"Looking to the Bottom: Critical Legal Studies and Reparations"
/https://scholarspace.manoa.hawaii.edu/server/api/core/bitstreams/d4d417a7-fff0-4aa0-b99c-636e27797043/content
Posted by: Doug B | May 16, 2023 9:29:47 AM
https://www.theatlantic.com/politics/archive/2023/05/dr-warren-hern-abortion-post-roe/674000/
Here's something for people to chew on.
You elide the difference between mistaken prosecutions and fraudulent ones. So you think that the Duke lax players, if Nifong had been successful, should have peacefully surrendered. Easy for you to say . . . .. And you think Rosa Parks had no right to resist. All good--just remember that "rights" mean something different to a you than they do to me, and the language of the document more supports my view than yours.
Posted by: federalist | May 16, 2023 10:23:05 AM
And the Nifong prosecution was not the "rule of law" . . . . we can start by getting that right. Nor was the arrest of the woman for criticizing her cop ex-hub--let's get that right too.
Posted by: federalist | May 16, 2023 10:24:20 AM
Reparations is an appalling idea--completely antithetical to the rule of law.
Posted by: federalist | May 16, 2023 10:49:46 AM
I am just asking, and I will keep asking until I get an answer, how you define a "fraudulent" prosecution for purposes of applying this latest variation on the ever-shifting account of the law enforcement resistance "rule of federalist."
Are any of the Trump prosecutions "fraudulent"? All of them?
How about the "fast and furious" prosecutions?
Or the Obama-era prosecution of leakers?
How about the stash-house stings brought against only black people?
How about this one, after a Trump pardon, recently discussed in Reason?
https://reason.com/2023/04/06/trump-commuted-his-sentence-now-the-justice-department-is-going-to-prosecute-him-again/
Was every state and local prosecution in support of racial segregation in the Jim Crow south "fraudulent"?
Was every state and local prosecution of (now constitutionally protected) LGBTQ activity "fraudulent"?
I could go on and on and on and on, but here is the key point: there does not appear to be any principled way for me to answer these questions other than to consult with the oracle called "federalist."
That's the rub: you are not articulating any principles, and so you are right to say LEGAL "rights" mean something different to you than to me. For me, legal rights are defined by LAW and are supported by principles. For you, rights are what ever you say they are based on your feelings. That's why I say, and will keep saying, that you keep expounding a (muddled) "rule of federalist" rather than the rule of law. (And it is because the Nifong prosecution violated the law that the persons harmed had a remedy in law. But that remedy is not violent resistance as defined by the feelings-based and principle-free "rule of federalist" that allows only those anointed by the oracle federalist to assert those (still unclear) rights that exist only in the mind of federalist and that do not find expression or any clear meaning anywhere else.)
And, tellingly, you are not even true to your own ever-changing statements about the "rule of federalist" --- describing the arrest of Rosa Parks as "fraudulent" strips that term of its plain meaning. You might sensibly call it immoral or unjust or even unconstitutional (despite SCOTUS precedent then to the contrary), but fraudulent? Again, to the extent you are eager to entirely remake the meaning of words to serve the "rule of federalist," you are very much in the tradition of the critical legal studies crowd.
Posted by: Doug B | May 16, 2023 10:55:48 AM
I've been remarkably consistent. You just can't bring yourself to say it--had Nifong been successful, your idea is that these kids should have risked their lives by going to a NC prison, even though the prosecution was a hoax. And remember, Brown v. Bd of Ed was decided in 1954, and Ms. Parks did her thing in 1955.
But hey, you're good with the idea that people like Rosa Parks had to submit to state-sponsored kidnapping. And I didn't call the arrest fraudulent--I called it lawless.
As for your questions about Trump, funny how Holder wasn't prosecuted . . . . but you're good with the uneven-handed enforcement of the law.
Posted by: federalist | May 16, 2023 11:54:39 AM
federalist, you are not being consistent except in consistently failing to explain your feelings in a way that provides any administrable principle (or legal precedent) for your assertions about a right to forcibly resistance to law enforcement. (I also do not know if you feel this resistance includes a right to kill law enforcement figures, whether it is just cops and prosecutors and prison guard or others who you feel can be attacked, and whether there is a right of others to help with forcible resistance.)
Many innocent persons have been (and many more feel they have been) railroaded by corrupt police and prosecutors. You have yet to even try to explain which one you feel do or do not have a "right" to forcible resistance.
Many people were prosecuted based on Jim Crow laws both before and after Brown. You have yet to even try to explain which one you feel did or did not have a "right" to forcible resistance. (Also, who exactly are "people like Rosa Parks" and how do you respond to sincere and reasonable claims by many in the BLM crowd that they are people like Rosa Parks?)
I keep asking over and over and over about all manner of modern and past criminal prosecutions eager to know, according to the "rule of federalist," which qualify as "fraudulent" or "lawless" as you are now using these terms. You have yet to even try to explain which defendants you feel do or do not have a "right" to forcible resistance.
It is interesting to keep hearing about your feelings about when you believe a couple people/defendants have a right to attack law enforcement, but I still can find no connections to actual law or any principles applied by courts and others. Maybe I can get more clarity about your feelings with a just focus on one person/defendant for now:
Do any of the criminal prosecutions of Donald Trump qualify, according to the feelings of federalist, as "fraudulent" or "lawless" so as to justify forcible resistance by Donald Trump (and/or his supporters)?
Posted by: Doug B | May 16, 2023 12:35:05 PM
You cannot just say it--under your view, the Duke lax players would have had to just go along with risking their lives in a NC prison had Nifong been successful, and people arrested for criticizing their ex-hub have to submit to a bogus arrest warrant . . . . rights are messy. Your view is that rights are ultimately not rights and that the only law is government power.
In Indiana, citizens have the right to resist an unlawful arrest . . . . and to defend their curtilage against unlawful attack. Would George Floyd have had the right to use deadly force against Chauvin who was killing him?
Posted by: federalist | May 16, 2023 12:52:28 PM
after you answer my Trump question, federalist, I will answer yours.
Posted by: Doug B | May 16, 2023 1:04:51 PM
The prosecution of Manafort and Stone were deeply problematic. Manafort, of course, was guilty as sin.
As the Durham report shows, we had a soft coup. Trump's supporters cheated somewhat out of their victory at the polls deserve some remedy---I don't know what that is though. It's a problem, as I like to say.
Posted by: federalist | May 16, 2023 1:27:19 PM
Just as the Democrats enjoyed the bounty of CIA/DOJ election interference, had Trump been successful in getting himself declared the winner of the election, who knows where we'd be now.
Posted by: federalist | May 16, 2023 1:29:43 PM
federalist, did you not understand the DJT question? I am asking about the current criminal investigations and prosecutions of DJT. Let me try again:
Do any of the current criminal investigations and prosecutions of Donald Trump --- the NY indicted case, the GA election interference case, the US classified documents case --- qualify, according to the feelings of federalist, as "fraudulent" or "lawless" so as to justify forcible resistance by Donald Trump (and/or his supporters)?
Also, if you want to focus on the Duke lax players, can you give some account of the type resistance you think was part of the "right" of resistance according to the "rule of federalist"? Did all 40+ of the lax players have a "right" to attack the police officers who were initially sent to collect evidence in the house? How about the police officers sent to arrest Reade Seligmann and Collin Finnerty following their indictment? How about the jail officials who booked Seligmann and Finnerty?
My sense is that all these law enforcement official ended up playing a part in Nifong's fraudulent prosecution, but I have no knowledge that they were "in" on the fraud. Did the whole lax team have a "right" to attack these law enforcement officials for doing their job based on Nifong wrongdoing? Did they have the right to use deadly force again all these police officers and any other public officials? What are the feelings of federalist as to this "right" to attack law enforcement in the context of the case you are stressing?
Posted by: Doug B | May 16, 2023 1:47:19 PM
The NY case is nonsense on stilts and a complete sham. Haven't read the Ga. statutes, but from my limited knowledge, Trump's actions look more like lobbying (i.e., protected speech) than a crime. The classified dox case is a problem due to HRC's unpunished crime, but Trump isn't going to jail over these.
Re: Duke lax case, the problem is that there is an indictment. But that's not my hypo--mine presupposed Nifong being successful and winning a conviction--you think, but cannot say out loud that you think they should have accepted their fate. And no, without knowledge on the part of the cops, violence seems impossible to justify---the facts are a bit different in the other cases I mention (I choose my hypos carefully.) And by the by, justice was not done in the Duke lax case--Nifong should have gone to jail for the rest of his life.
Posted by: federalist | May 16, 2023 2:14:57 PM
federalist, you still have not answered the DJT. Let me try yet again:
Do any of the current criminal investigations and prosecutions of Donald Trump --- the NY indicted case, the GA election interference case, the US classified documents case --- qualify, according to the feelings of federalist, as "fraudulent" or "lawless" so as to justify forcible resistance by Donald Trump (and/or his supporters)?
On Duke, I do not understand how the "rule of federalist" changes because there is a fraudulent indictment. What difference does that make? How is anyone ever convicted absent an indictment (does an information make fraud/lawless action different)?
Moreover, as I stressed earlier, thousands of innocent people have been sent to jail and prison by crooked cops and prosecutors, and yet you do not feel those actual folks (many of whom have spent decades in prison) have a right to resistance but your made-up Dukies do? The "rule of federalist" gets stranger the more you take about your feelings.
Posted by: Doug B | May 16, 2023 2:29:04 PM
No.
Unlike you, I don't think society has the right to ask a person convicted through out and out fraud (e.g., Nifong) has to submit to imprisonment, and that presupposes the ability to use force--I mean seriously, do you think that the Duke guys should have submitted to their fate had Nifong been successful? The indictment in the Duke case, unlike the arrests in my two hypos, shield the cops. It's all a matter of perspective--you think that the badge gets to violate the law and the citizen gets to take it. I have a somewhat different view.
Did George Floyd have a right to use deadly force to stop Chauvin from killing him?
Posted by: federalist | May 16, 2023 2:35:19 PM
Here's some of that wonderful Doug "rule of law."
https://hotair.com/jazz-shaw/2023/05/16/irs-yanks-team-investigating-hunter-biden-n551128
Posted by: federalist | May 16, 2023 2:50:55 PM
federalist, why does DJT have "to take it" in the NY case, which you call "nonsense on stilts and a complete sham" (also reasonably described as "a fraud")? And, of course, Rosa Parks was not subject to "out and out fraud" and yet she, too, gets the benefit of the "rule of federalist" ... because ... oracle federalist makes up these rules as he goes along without any clear principle or consistency.
Here is a wikipedia list with hundreds of wrongful convictions, many of which involved "out and out fraud," and I am sure this is the tip of ugly iceberg. https://en.wikipedia.org/wiki/List_of_wrongful_convictions_in_the_United_States Who did all these people have a "right" to forcefully attack under the "rule of federalist" while they were imprisoned and before?
At issue is whether people should use legal means to respond to illegal action or adopt federalist's mysterious and unclear "right" to be vigilantes and forcefully attack law enforcement without any lawful basis. (In the Floyd case, I think existing law would recognize George (and/or others) could use non-deadly force against Chauvin. But, again, this case does not involve any fraud so how it fits into the "rule of federalist" is also a mystery.)
As I suggested before, federalist, you seem to be conflating your reasonable moral feelings with legal matters. But I am not aware of any court that has ever cited "federalist's moral feelings" as a basis for a legal decision.
Posted by: Doug B. | May 16, 2023 3:32:18 PM
Existing law would have given Floyd the ability to use deadly force.
You just can't say it--people who are subjected to criminal judgments (and long sentences) obtained by government fraud just have to take it because the "monopoly on force" is the Supreme Law of the Land. Funny, I missed that day in law school.
The problem, ultimately, is that society asks people to stand down when they are horrendously abused. Your POV would even say that an escaped slave would have to submit to being taken back to the South.
You are mistaking power for law. And the problem is that once that genie is out of the bottle, we don't know what will happen.
Posted by: federalist | May 17, 2023 8:48:06 AM
Can you directly answer these basic questions about the application of the opaque and peculiar "rule of federalist"? It seems you want me to say I agree with your feelings about some kind of "right" to forcibly attack law enforcement officials, but I am still trying to just understand what you are claiming. So:
--- Why don't Donald Trump and/or his supporters have a "right" to forcibly resist his NY prosecution which they sincerely believe reflects "government fraud"?
--- Why do you claim that Rosa Parks, who was not subject to "government fraud," had a LEGAL "right" to forcibly attack law enforcement and does that "right" apply to anyone who sincerely believes he is being subject to government force that violates the "Supreme Law of the Land" (or does it only apply to black defendants subject to racism)?
--- Do all innocent persons wrongfully convicted/imprisoned as a result of "government fraud" have a LEGAL "right" to forcefully attack prison guards and others enforcing/defending criminal judgments that were "obtained by government fraud"?
These are just some basic question reasonably prompted by your ever-shifting accounts of the "rule of federalist." If you cannot answer these questions --- and cannot point to any "law school" materials or actual law that provide a principled or comprehensible account of what you are claiming --- then I will likely just give up on trying to understand how your feelings (mis)shape your legal beliefs.
Posted by: Doug B | May 17, 2023 10:14:23 AM
The Trump persecution in NY is deeply problematic, and there will likely not be any justice brought to those who are doing this. Obviously, the ramifications of Trump supporters ending the prosecution with violence would result in the polity coming down.
With respect to Rosa Parks, you do realize that your argument means that slaves had no right to resist?
Here's the real problem--let's just take Nifong--he subjected free citizens to a lawless process. Had he been successful, your view regarding the ability of those free citizens is that they would just have to go to prison. That doesn't seem a very satisfactory answer. Or the woman whose ex got a bogus warrant against her. Do you really think that she just has to submit? What about people's right to resist excessive force? Or the Indiana statute? How does society ask a free person to act "lawfully" when a government actor willfully violates the law?
Posted by: federalist | May 17, 2023 1:02:42 PM
You still have not answered the DJT question. Saying the polity will "come down" if people exercise a legal "right" is not answering whether they have a "right." So, I'll ask yet again: According to the "rule of federalist," do Donald Trump and his supporters have a legal "right" to forcibly resist his NY prosecution?
As for Parks and slaves, I sincerely believe they all had a MORAL right to resist immoral treatment under then existing laws. Persons under the Nazi regime had a moral right to resist their immoral treatment. Shifting to today, some anti-abortion advocates sincerely believe they have a moral right to attack legal abortion providers. Some BLM activists sincerely believe they have a moral right to block traffic to protest legal systems they believe are immoral. You may or may not agree on these moral views, but my understanding is that you are making assertions about LAW, not morality.
As for LAW, your (unclear and inconsistent) statements suggest anyone and everyone has a "right" to forcibly attack (and even kill?) police and other officials whenever you (or anyone else?) is prepared to believe that some law is inconsistent with the "Supreme Law of the Law" or involves "government fraud" or whatever other invented label you concoct to try to justify attacking law enforcement officials. Your non-answer to the DJT question highlights that you realize your (unclear and inconsistent) claims sow the seeds for violent anarchy that "would result in the polity coming down."
The Indiana statute (which I believe is one of its kind and does not get applied much, if at all) is a good example of how LAW can be changed in order to provide --- through the rule of law, not the "rule of federalist" --- individuals a defined LEGAL right to resist unlawful police force (albeit in quite limited settings). Notably, that provision is part of the state's self-defense law which is another way the LAW --- through the rule of law, not the "rule of federalist" --- provides LEGAL rights to self help. But, notably, the Indiana law does not apply to people in prison AND the law provides other legal means (eg, habeas) for people to contest unlawful imprisonment and other forms of unlawful government treatment. That's among the reasons I am always for expanding LAWS to give people more legal rights to seek to avoid illegal (and unwise) uses of state power, rather than asserting people have some concocted (and dangerous) "right" to forcibly attack government officials.
Finally, society asks persons to act lawfully in all sorts of challenging settings. I do not get to steal money because I am poor, even if I believe the government willfully and illegally made me poor. I do not get to storm the Capitol, even if I believe an election was illegally stolen by a willful government. I do not get to block traffic because I think cars, with the help of a willful government, are destroying the planet. I do not get to violently escape from prison, even during a pandemic, just because I think the government willfully and illegally sent me to prison for longer than the "Supreme Law" allows based on acquitted conduct. And so on. Wonderfully, in the US, we can and should work for legal change, through lawful means, if we think the law is morally problematic. But we do not get to take matters into our own violent hands based on our moral feelings no matter how right we think our morals are and how wrong we think the government is.
Posted by: Doug B | May 17, 2023 3:27:06 PM
So, under your view, those with the badges who "take matters into their own hands" get to demand that citizens follow the law. Interesting that.
And yes, I realize that there would be huge problems with anarchy--but doesn't that make government actors not breaking the law that much more important. You have elevated the government's monopoly on force to that of constitutional moment. But I don't read that in the document. I honestly don't know what I think about DJT and the bogus prosecution. But I do know that the Duke lax kids would have had the right to defend themselves against being thrown in prison had Nifong been successful. And by the way, the right to self-defense is of constitutional moment, so I don't know that government gets to take it away simply because the person creating the need for it has a badge. Why did the magistrate issuing the arrest warrant for speech have the right to take the law into his own hands when you've said that "we" don't get to do that?
A moral right means nothing. I posit that Rosa Parks had a right to resist the arrest. If she has a right not to be arrested under the EPC, and we all agree that her arrest was, in fact, illegal under the EPC, then it's not a right if she doesn't have the right to resist it. Slaves certainly had every right to resist. Your hypo comparing a poor person (who is stealing from innocent third parties) is weak.
The prosecution of DJT in NY is a real problem.
Posted by: federalist | May 17, 2023 5:47:55 PM
https://www.nationalreview.com/news/extraordinary-abuse-biden-nominated-federal-prosecutor-tried-to-influence-da-race-lied-under-oath-watchdogs-find/
And no prosecution. Tell me again why the DOJ gets to prosecute anyone for lying to it . . . .
Here's the 14th Amendment:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
That law--you know the "Supreme Law of the Land" says that the arrest of the woman who criticized her ex-cop husband was not to be arrested. It says so in black and white. Yet it happened. And you're saying that a lawless warrant deprives the target of the right to defend herself against being taken away by force to an uncertain fate (jails ain't safe)--or put another way, from making it so that law is followed. That may be the reality--but it's hard to divine that from our polity's governing documents.
You really ought to post the thing about that Biden hack made a US Attorney through a partisan vote.
Posted by: federalist | May 17, 2023 6:14:41 PM
Yet again, federalist, you are letting your feelings drive your comments. Nobody has "the right to take the law into his own hands" whether a magistrate or a cop or a prosecutor or an anti-abortion protestor or someone who has been prosecuted by Rachel Rollins or an innocent person wrongly convicted and imprisoned for 45+ years (look that one up, though you will find more than one). Nobody has the "right" to break the law, and the proper response is to hold lawbreakers responsible using the law, not to respond with more lawless action based on feelings (or even righteous moral commitments).
And that's the point -- either we commit to the rule of law, or we just say everyone gets to make up their own law as their feelings and personal morality move them. I do not think that's what you mean to advocate, so really what you want to develop are some doctrines --- which we should use the legal process to develop --- that allows innocent people and/or constitutionally wronged people to assert a legal right to resist. Great, develop that law --- but like in Indiana, that law needs to be articulated/enacted through legal means and not just made up on the fly using federalist feelings.
And speaking of feelings, you are 1000000% wrong that IN THE 1950s "all agreed" that Parks' arrest violated the EPC. That is why I keep bringing up the BLM and LGBTQ and abortion examples. You realize that not "all agree" now on those issues (which have clear constitutional dimensions and are in the Rosa Parks tradition as the anti-abortion folks view Roe as Dred Scott). If "all agreed" on these matters, there would be no legal dispute. But you cannot articulate a principle that applies at the time when matters are contested, again because you are setting forth your sincere feelings, not administrable legal principles.
I keep asking you, and you keep failing, to set forth your feelings as administrable legal principles. You seemingly can't because they are feelings, and you usefully concede that even your feelings are hard to sort out in the Trump case. Such are the nature of feelings, which are ever harder to figure out when they are someone else's. Ergo "the rule of federalist" that I cannot figure out.
Posted by: Doug B | May 17, 2023 7:03:28 PM
I'll have more later. But for your reading enjoyment, you can take a look at what the lawless goons at FBI did. Sure seems like following the law is for the hoi polloi.
As for Rachel Rollins--of course, you miss the point. The DOJ hooks up its own. From Daryl Foster to Andrew McCabe to Rachel Rollins, plainly illegal activity is not addressed with criminal sanction while far lesser offenses are prosecuted to the hilt. Whatever that is, that ain't the rule of law. And saying that people just don't get to break the law . . . . well, yeah they do.
You misquote me on Parks--we all agree now, not in the fifties, but the reality is that the words on the page ineluctably lead to the idea that black people cannot be forced to give up their seat for white people on a city bus. But, of course, you're of the view that ordinary law isn't ascertainable to the average citizen.
Posted by: federalist | May 18, 2023 12:36:39 PM
Forgot link: https://redstate.com/nick-arama/2023/05/18/watch-fbi-agents-powerful-statement-about-retaliation-taken-against-him-and-his-family-n747785
Posted by: federalist | May 18, 2023 1:01:53 PM
federalist, the Supreme Court held for 50+ years that "separate but equal" was consistent with the text of the 14th Amendment -- were the Justices not reading the words on the page? William Rehnquist wrote a memo as a law clerk in 1952 in which he stated: "I think Plessy v. Ferguson was right and should be re-affirmed." https://www.govinfo.gov/content/pkg/GPO-CHRG-REHNQUIST/pdf/GPO-CHRG-REHNQUIST-4-16-6.pdf. What do you make of Rehnquist's failure to understand "that the words on the page ineluctably lead to" a different view? Are all his opinions on how to read the Constitution presumptively flawed?
And, as I keep stressing and as you keep being eager to avoid discussing, the BLM crowd and the anti-abortion crowd today have very strong (but contestable) views about what "the words on the page ineluctably lead to." Why cannot they engage in self help --- and proactive attacks on government actors they do not feel are acting consistent with the "words on the page --- rather than waiting for modern-day William Rehnquists to figure out what they already feel "the words on the page ineluctably lead to"?
What you want to call "ordinary law" is so very often subject to much debate among "average citizens." And you notably keep dodging all my "ordinary" follow-up questions --- because the "rule of federalist" is hard to articulate with any principle or consistency when we are discussing your law-free feelings and not actual law.
Your sound complaints about the FBI and many other government actors failing to follow the law is especially comical in this context, as why shouldn't they get to follow their version of "federalist feelings" if feelings matter more than the rule of law. When government actors fail to follow the law, the proper response is to hold them accountable using the law, not to respond with more lawless action based on your feelings.
It has long been clear, federalist, based on your comments in many threads, that you are eager to invent "doctrines" in your mind and then wish to call them "law." But not only are you never able to provide any actual law/rulings to support your made-up claims, your crazy theories and inconsistent accounting of the "rule of federalist" itself provides a strong argument for why it is so important for society to commit to the rule of law. You are a trained lawyer, and yet you seem to care not at all about actual law when it does not suit your feelings.
Posted by: Doug B | May 18, 2023 1:40:52 PM
Rehnquist should have known better.
Regarding Equal Protection and prosecution--first, no court has ever held that race was the only classifier (remember, EP imports the idea of governmental classifications) that would allow scrutiny of prosecutorial decisions on Equal Protection grounds. Thus, presumptively, that constitutional protection extends to other classifications (exercise of 1A rights, etc.) Of course, this means that most prosecutorial decisions (and recall that our friend Elana "I hate military recruiters" Kagan took it as unremarkable that some defendants had some inchoate right to be treated similarly to other defendants when it came to prosecutorial actions) will have to have some rational basis. Of course, there is the prosecutorial discretion piece which has to be addressed. But prosecutorial discretion does not override Equal Protection. What it does is insulate most decisions from scrutiny--in effect, it creates a heightened pleading standard for someone challenging the decision.
In the case of Rachel Rollins, the decision to prosecute others for lying to the DOJ/FBI, in my view, creates a lot of problems under Equal Protection. It cannot be that the fact that a prosecution of a US Attorney for lying to the FBI/DOJ is embarrassing, would be used by the opposition party of an example of crappy performance etc. etc. is simply not a rational basis upon which to base a prosecution decision. And, if this were an isolated incident, maybe there would be some sort of isolated incident doctrine. The problem is that there is strong evidence that DOJ employees get breaks when it comes to prosecution. Starting with Daryl Foster.
The remedy with EPC is to put the person in the same position as he/she would have been without the improper classification, and since Rollins isn't going to be prosecuted, it seems that lying to the FBI, at least when it comes to similar situations, really cannot be done. You may say that creates all sorts of issues, but look at what we have here . . . . you cannot possibly think this is ok.
As for the hypothetical Dukies, recall that there is a constitutional right of self-defense, and I don't think that it can be altered by the badge. We all agree that a woman has every right to defend herself against a cop sexually assaulting her whlle the cop makes an arrest. OK, what if a cop threatens to plant evidence on a woman unless she performs fellatio? You gonna tell me that she doesn't have a right to defend herself against that? So we've established that there is a right to self-defense. You tell me where it ends.
Posted by: federalist | May 18, 2023 2:24:56 PM
Rehnquist obviously did not know better. Could Rosa Parks and her supporters forcibly attack him? Can we ignore all of Rehnquist's SCOTUS votes since he obviously could not give proper meaning to "words on the page"?
And then we get a lot more of federalist feelings: "in effect, it creates a heightened pleading standard for someone challenging the decision" ... "in my view, [that] creates a lot of problems under Equal Protection" ... "maybe there would be some sort of isolated incident doctrine" ... "it seems that lying to the FBI, at least when it comes to similar situations, really cannot be done"
Do you just pontificate about your "legal" feelings for your clients, federalist, or just in this forum? Of course, there are ways to try to turn all your feelings into doctrine --- go start representing folks being prosecuted for lying to federal authorities or for resisting arrest. Here is a link to one organization that can help you find police cases: https://policebrutalitycenter.org/what-is-police-brutality/
Or help out Crosley Green's defense team and make a motion to get him authorized to forcibly attack guards given the strong evidence that his conviction and imprisonment is fraudulent and unconstitutional:
https://www.crowell.com/en/pro-bono/crosley-green
Instead of opaquely expressing your feelings here about hypothetical old cases, consider presenting your claims for real folks now who need all the help they can get.
Posted by: Doug B | May 18, 2023 5:15:35 PM
I think the burden, Doug, is now on you. There is no caselaw saying that Equal Protection is limited to the race context.
Posted by: federalist | May 19, 2023 8:47:36 AM
federalist: I have no burden to explain, yet again, how your concocted "legal" feelings are misguided. As I have detailed before, no legal rulings suggest a failure to prosecute person A makes it unconstitutional to prosecute unrelated person B. But, if that is how you read the constitution, there are surely many on death row AND in prison AND with criminal records (especially for drug use) who would welcome your help on 1983 claims for being subject to prosecutions you believe violate the EPC.
And, of course, we are afield from your other assertions that some (unclear group of) people in prison have a "right" to forcefully attack (and kill?) innocent guards and that some (unclear group of) others have a right to forcefully attack cops and other law enforcement officials. But, yet again, if you really believe your claims, lots and lots of folks in prison and elsewhere who have strong and sincere claims that they were subject to fraudulent/unconstitutional government action would certainly appreciate a brief from you in support of what you think are their "rights" to attack law enforcement.
So, I think the burden, federalist, is now on you to write up your ideas so that we can all better understand what you are claiming and how it can support legal action for all those who do not know they have the "rights" that you posit.
Posted by: Doug B | May 19, 2023 9:59:53 AM
You're right regarding A & B. That's just prosecutorial discretion, absent circumstances. But where the government is engaging making classifications as to prosecution decisions, then the EPC kicks in. We'd all agree, for example, that a prosecutor can't prosecute members of one political party while allowing members of the other party to skate, nor can it target members of a political party.
So let's take Rachel Rollins--this woman has an atrocious history of abuse--threatening to ticket someone, threatening to charge a journalist etc. Of course, the 'rats in the Senate have zero issues with this. Nor did the 'rat in the WH. And then, once an AUSA, she engages in more bad conduct, and then lies about it to the IG. And she is not prosecuted. It's fair to assert (given the DOJ's longstanding policy of lenience towards its own) that the DOJ is engaging in classifications that don't have a rational basis. In other words, you cannot have a system where non-DOJ employees lying to the DOJ are treated worse than DOJ employees lying to the DOJ. But we do. And statist Doug thinks that this is just peachy.
On a larger scale, the DOJ is horribly partisan. And it's protecting Hunter. Given that, I think at least some people could make out an EPC claim. Of course, given the damage it would do, judges will wuss out.
As for self-defense, like I said, unrefuted by you, self-defense is a constitutional right. It therefore does not stop when there's a badge involved.
Posted by: federalist | May 19, 2023 12:59:22 PM
You give Rehnquist too much credit. He should have been ashamed of himself for such a comment. The Equal Protection Clause should not have been allowed to be evaded with BS like separate but equal (and backed up with the criminal law).
Posted by: federalist | May 19, 2023 2:20:53 PM
lots more federalist feelings, but I still await a model brief to better understand exactly when federalist feels "the EPC kicks in." But wait, federalist feels "judges will wuss out," because of "the damage it would do" to comply with his reading of the Constitution. Uh, okay. (And, of course, DOJ biases are not "peachy," but the issue is when and how the Constitution controls prosecutorial discretion and demands judges to dismiss (otherwise sound) prosecutions based on EPC rational basis review. As you should know, I am all for lots and lots and lots more oversight of the prosecutorial function, so I'd love to see you write up your EPC rational basis dismissal arguments. I sincerely think it could make an interesting law review article.
As for Rehnquist, I give him no credit -- I'm just highlighting that the future Chief Justice of the United States did not think in the 1950s that "the words on the page ineluctably lead to" what you think clear, and so it is comical to have expected bus drivers and cops in Alabama in the 1950s to have a different view. (Moreover, this history suggests that Prez Nixon and Prez Reagan should have been looking to nominate a "wise Latina" or anyone else better able to understand the "ineluctably" clear words of our Constitution, and also justifies suspicion of all Rehnquist opinions.)
As for self defense, and at the risk of starting another thread for your feelings, the assertion that "self-defense is a constitutional right" is quite contestable because it is not clear what "words on the page ineluctably lead to" a constitutional SD right. Substantive due process has often been viewed as the best doctrinal hook (see, eg, Nelson Lund's short essay "A Constitutional Right to Self Defense?" https://papers.ssrn.com/sol3/papers.cfm?abstract_id=912277), but that doctrine recently took a beating in Dobbs. Moreover, in Martin v Ohio, SCOTUS rule due process was not violated by a state putting the burden on the defense to prove SD. And, if SD is a constitutional right, what are its constitutional parameters? Are limits like the initial aggressor and duty to retreat always or sometimes unconstitutional? And so on.
Those challenging issues aside, everyone agrees that government actors -- a "badge involved" -- have rights to use force in some settings that others may not. In other words, a "badge" makes some force and threats of force lawful. I can properly resist an unlawful effort by my neighbor to put me in handcuffs or to come in my house or to point a handgun at me, but I may not act the same way if and when a person with a badge is engaged in this behavior when seeking to carry out an arrest or a search pursuant to a warrant. (When a person with a badge starts using unlawful force, the dynamics change, but a prisoner who claims his incarceration is unlawful because he is innocent does not have a right to start attacking guard who are treating him like every other prisoner.)
But, yet again, it would be great to see you write up your feelings here, as lots of folks in prison and elsewhere who have strong and sincere claims that they were subject to fraudulent/unconstitutional government action would certainly appreciate a brief from you in support of what you feel are their "rights" to attack law enforcement.
Posted by: Doug B | May 19, 2023 5:09:05 PM
