February 25, 1960 – Anti-segregation Sit-in at the Montgomery, AL County Courthouse

On this day in history, students from Alabama State College (a traditionally African American college in Montgomery, Alabama), stated an anti-segregation sit-in at a lunch counter in the Montgomery County Courthouse. In response, the store-owners closed the lunch counter and a mob of pro-segregationists physically assaulted the students.

Student sit-in participants

Student sit-in participants

Four days later, on February 29, Alabama Governor John Patterson held a news conference to condemn the sit-in. Patterson, who was also chairman of the State Board of Education, threatened to terminate Alabama State College’s funding unless it expelled the student organizers and warned that “someone [was] likely to be killed” if the protests continued.

On March 1, more than 1000 protesters marched from the campus to the state capitol and back. On March 2, Alabama’s all-white State Board of Education unanimously accepted then-Gov. John Patterson’s expulsion resolution. Under pressure, then-ASU president Harper Councill Trenholm expelled the nine students identified as sit-in leaders and suspended 20 other students.

On Sunday March 6, protesters began to gather at the Dexter Avenue Baptist Church, led by Rev. Ralph Abernathy – a well-known member of Dr. Martin Luther King, Jr.’s Southern Christian Leadership Conference (SCLC) and organizer of the Montgomery Bus Boycott. A crowd of whites surrounded the church, physically assaulting some members of the march and forcing them to flee into the church. It was reported that the city fire company brought two fire trucks to the scene and used the high-powered fire hoses on retreating protesters; soon after this, the police dispersed the crowds and ended the protest.

A white man swinging a baseball bat at a black woman the day after the black students were refused service at the courthouse cafeteria

A white man swinging a baseball bat at a black woman the day after the black students were refused service at the courthouse cafeteria

More than 1000 students immediately pledged a mass strike, threatened to withdraw from the school, and staged days of demonstrations; 35 students, a faculty member, and a physician were arrested. Montgomery Police Commissioner L.B. Sullivan recommended closing the college, which he claimed produced only “graduates of hate and racial bitterness.”

Dr. King sent a telegram to President Eisenhower on March 9, writing:

MR PRESIDENT WE APPEAL T O YOU TO INTERVENE BY INSTRUCTING THE ATTORNEY GENERAL TO TAKE IMMEDIATE ACTION IN YOUR NAME TO RESTORE LAW AND ORDER IN THE CAPI- TAL OF ALABAMA. . . . WE APPEAL TO YOU TO URGE THE CITY AUTHORITIES TO PUT DOWN THEIR GUNS, TO GARAGE THEIR VEHICLES OF AGGRESSION WE ARE UNARMED AND DEDICATED TO NON VIOLENCE THOUGH DETERMINED TO RESIST EVIL.”

Meanwhile, six of the nine expelled students sought reinstatement through a federal lawsuit. (On August 4, 1961, in Dixon v. Alabama State Board of Education (294 F. 2d 150, 5th Cir. 1961) a federal court upheld the expulsions and barred the students’ readmission to the school.)

On February 25, 2010, in a ceremony commemorating the fiftieth anniversary of the sit-in, Alabama State University (formerly Alabama State College) President William Harris reinstated the nine students, criticized Governor Patterson’s “arbitrary, illegal and intrusive” role in forcing the expulsions, and praised the student protest as “an important moment in civil rights history.” Three of the men, James McFadden, St. John Dixon and Joseph Peterson, received honorary degrees.

Guantanamo  Prisoners

Post by James A. Broderick, J.D., M.B.A.

Much debate about the holding of prisoners at Guantanamo centers on the question of whether it is unconstitutional or at least illegal to hold them indefinitely without charging them with a crime.  This memo is written in response to that sentiment. 

Guantanamo_Bay_map

The Sixth Amendment of the U.S. Constitution provides:
       

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

The scope of the amendment is limited to “criminal prosecutions” for “crimes” committed in a “State” of the United States.  Note that none of these key terms [“criminal prosecutions,” “crimes,” or “State”] apply to the theory under which the prisoners are being held at Guantanamo. 



Instead, they are being held as “enemy combatants,” a term that first appeared in Supreme Court jurisprudence in Ex Parte Quirin, 317 U.S. 1  (1942).   There the Supreme Court reviewed the decision of a military tribunal to execute eight German agents who had secretly come ashore in the United States after arriving on a German submarine.  This of course happened during World War II.  They were not wearing uniforms at the time of their arrest and were found to have intended to commit sabotage.  They were captured on July 2, 1942, and by July 31, their trial and appeal to the Supreme Court were completed.  On August 8, 1942, six of them were executed in the electric chair!  Talk about “speedy” if not very “public” justice.  

The Supreme Court held that as enemy combatants they were (1) “subject to capture and detention”; (2) not entitled to the status of “prisoner of war”; and (3) subject to trial by military tribunals, not civil courts. The Court reasoned:


 … the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”

Obviously the issue of how promptly the prisoners’ status was to be reviewed by a tribunal did not arise in this case.  One suspects that the enemy combatants in the Quirin case would have appreciated a somewhat more leisurely adjudication.

One issue raised in discussions is whether the Guantanamo prisoners could legally be held without a specific declaration of war.  The answer is clearly yes.  Article I, Section 8 of the Constitution grants Congress the power “to declare war,” but does not further define or elaborate the term.  Congress has enacted a specific declaration of war only five times, but has authorized military action at least 13 other times.  (The five wars declared by Congress were (1) the War of 1812; (2) the Mexican War; (3) the Spanish-American War; (4) WWI; and (5) WWII.) In an additional seven instances the United States has engaged in extended military engagements that were authorized by United Nations Security Council Resolutions and funded by appropriations from Congress.  The power of the military to take and hold prisoners has never been seriously questioned or litigated in any of those actions.
 

GTMO1-600x400

In 1973, Congress passed the so-called War Powers Resolution in an attempt to limit the power of the President to initiate military action as Commander in Chief without Congressional approval.  [It should be noted that Bill Clinton ignored the Resolution when he allowed American military action in Kosovo to persist beyond the 60-day grace period the law granted without congressional approval.  As Jason Kelly observed in his review of the book The Executive Unbound: After the Madisonian Republic by Eric Posner and Adrian Vermuele (Oxford University Press, 2011),  “Clinton’s actions exemplified the authority inherent in the office.”

In any event, the War Powers Resolution has never been overtly challenged by any President.   In the present conflict with Al Qaeda and the Taliban, both Presidents Bush and Obama have relied on a specific resolution of Congress,  2001 Authorization for Use of Military Force (“AUMF,” P.L. 107-40) passed on September 14, 2001.  The resolution provides in part:

Section 2 – Authorization For Use of United States Armed Forces

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.”

So the President has Congressional authorization to “use all necessary and appropriate force against…persons he determines . . . aided the [9-11] attacks or harbored such . . . persons in order to prevent any future acts of . . . terrorism. . . . (Emphasis supplied.)”  That would seem to include the power to hold as prisoner any Al Qaeda member for as long as necessary to “prevent any future acts of terrorism.”

The rights of the prisoners at Gitmo have been extensively litigated, with several cases reaching the Supreme Court.

article-2308616-1946876F000005DC-72_634x387

In Rasul v. Bush, 542 U. S. 466 (2004), the Supreme Court expressly refrained from addressing whether the detainees are being held illegally or how that question should be decided.  It stated that it decided only that “the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing” and sent the case back “for the District Court to consider in the first instance the merits of [the detainees’] claims.”

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Court ruled on the procedural rights of a U.S. citizen who was captured in Afghanistan.  The U.S. Court of Appeals for the Fourth Circuit had held that Hamdi was entitled to bring a habeas corpus action, but that, because he was captured on the battlefield, the federal courts should give complete deference to the government’s decision to hold him incommunicado in military custody.   The Supreme Court ruled that, by enacting the authorization for the use of military force in Afghanistan, Congress had authorized Hamdi’s detention as an enemy combatant, but that he must be given a meaningful opportunity to demonstrate, with the assistance of counsel, that he was in fact an innocent civilian. Justice O’Connor’s plurality opinion implied that the required evidentiary hearing could be held in “an appropriately authorized and properly constituted military tribunal” rather than a federal court. 

Guantanamo-Camp-De_2521503b

As to the nature of the grounds for detention in Hamdi, Justice O’Connor stated that the authority to detain enemy soldiers in order to prevent their return to the battlefield to take up arms again has always been a “fundamental incident of waging war.”  The laws of war, including the Geneva Conventions, recognize that uniformed members of an enemy army may be detained as prisoners of war until the end of the hostilities without charges, trial, or access to counsel. The purpose of such detention is to prevent their return to the battlefield and does not depend upon any determination that they have committed any wrongdoing. 

The law of war also recognizes that individuals captured fighting in an armed conflict who have not abided by rules (such as wearing uniforms and carrying their arms openly) that are intended to allow their identification as enemy soldiers are not entitled to prisoner of war status.  Such “irregulars” may also be detained until the end of the conflict.  These irregulars do not have a uniformed soldier’s immunity for killing, and thus are subject to criminal prosecution for murder or battery, and (as seen in Quirin) they can be executed as spies or saboteurs.  These rules are consistent with both due process and military necessity.  However, the law of war provides no authority for detaining without charge individuals not found on the battlefield. 

No serious challenge to the concept of detaining enemy combatants has been mounted since the Hamdi case.  Other litigation involving the Gitmo detainees has focused on the procedures they may employ to challenge their status as enemy combatants.  Thus the principal issue in subsequent litigation is whether the prisoner is an enemy combatant or an innocent civilian, not whether he has committed a crime.

ss2005-05-17image

After the Hamdi case, the Department of Defense set up Combat Status Review Tribunals in 2004 to review the status of prisoners.  The rules of procedure for the tribunals allowed them to hear and consider hearsay evidence, and suspects were restricted from attempting to refute or learn about evidence against them that was classified, and evidence extracted using “enhanced interrogation techniques” was deemed admissible. 

Then, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court ruled that only Congress and not the Executive Branch has the Constitutional authority to set up military commissions to try captives. As to the merits of the case, the Court held that Common Article 3 of the Geneva Conventions of 1949 applies to persons captured in the conflict with Al Qaeda.  That provided the prisoners a minimum baseline of protections, including protection from “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, [and] affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”  The Court held that the military commissions were not “regularly constituted” because they deviated too far from the rules that apply to courts-martial under the Uniform Code of Military Justice without a satisfactory explanation of the need for departing from those rules. In particular, the Court decried commission rules allowing the exclusion of the defendant from attending portions of his trial or hearing some of the evidence against him.

In response, Congress then passed the Military Commissions Act of 2006 in October, creating Military Commissions similar to those set up by the Department of Defense and retaining most of the features that had concerned critics.  In addition, the Act also attempted to quash all pending habeas corpus submissions on behalf of the captives.

habeas_corpus_guantanamo--450-x--31670-20090329-1

In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court ruled that the right to habeas corpus procedures extended to all the Guantanamo prisoners despite the fact that they were not confined in the United States and that the Military Commissions Act was an unconstitutional suspension of that right. 

Following the Boumediene decision, federal judges began closely scrutinizing the quality of evidence offered by the government, and government lawyers started losing cases. The Center for Policy and Research at Seton Hall University School of Law found that between 2008 and July 2010, Guantanamo detainees won 19 of 34 of their habeas challenges in federal court, indicating that in many cases, the government did not have evidence that would pass muster in trials conducted under the Federal Rules of Criminal Procedure.  

In 2010 the D. C. Circuit began requiring federal trial judges to stop submitting the government’s evidence to such rigorous examination. After July 2010 and the appeals court ruling, only one of twelve petitions was successful.  Thus, prior to July 2010, federal judges agreed with 56% of detainees who claimed there was insufficient evidence to justify their detention. After July 2010, detainees won only 8% of their cases.  The change is attributed to rulings by the federal appeals court, which reviewed 19 of the Guantánamo habeas cases and reversed or remanded every case in which the trial judge had ordered a detainee’s release.

article-1380290-004B2E6700000258-554_634x328

In December 2011, Congress passed the National Defense Authorization Act for FY2012 (“2012 NDAA,” P.L. 112-81), intended to codify the present understanding of the detention authority conferred by the AUMF, as interpreted and applied by the Executive and the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit).  The NDAA does not address many of the legal issues involving wartime detention that have been left unresolved by the Supreme Court. A Congressional Research Service Report on the subject lists the following unresolved issues: (1) full scope of the Executive’s detention authority; (2) circumstances in which U.S. citizens may be detained as enemy belligerents; (3) the degree to which noncitizens held at Guantanamo and other locations outside the United States are entitled to protections under the Constitution; (4) the authority of federal habeas courts to compel the release into the United States of detainees determined to be unlawfully held if the Executive cannot arrange their release to another country; (5) the ability of detainees to receive advance notice and challenge their proposed transfer to a foreign country; and (6) the appropriate procedural rules and standards of evidence.  According to Jennifer Elsea, the legislative attorney who authored the report, “The full implications of the 2012 NDAA upon judicial activity concerning wartime detention remains to be seen.”  (You can reference this report, which provides an annotated list of all important court rulings bearing on this issue, here.)

Guantanamo Bay

Conclusion:
 
It is misleading (although true) to say that the Guantanamo prisoners are being held without being charged with a crime.  Instead, they are being held as enemy combatants taken prisoner in a military action authorized by Congress.  Under the generally recognized laws of war [there are a few] and recent Supreme Court cases, that means that they are subject to incarceration until the end of hostilities.  In the case of Taliban fighters, that would be until the U.S. withdraws completely from Afghanistan.  In the case of Al Qaeda operatives, that might be the rest of their lives.  

Be that as it may, they are still entitled to some adjudication of their status even if that procedure does not meet Sixth Amendment standards.  Significantly, U.S. Army Regulation 190-8 provides for military hearings [called “Article 5 hearings”] for persons captured on the battlefield to enable them to demonstrate (1) that they are entitled to be held as prisoners of war or (2) that they are in fact innocent civilians.  The regulation gives a detainee the opportunity to testify and to secure the testimony of reasonably available witnesses, but does not afford access to counsel. After the first Gulf War, the military conducted nearly 1200 such hearings, and hundreds of detainees were released as innocent civilians. After the Afghanistan invasion, however, the U.S. government refused to hold a single Article 5 hearing because President Bush declared no one was entitled to POW status. The President’s declaration was criticized by many international law scholars, and, in my opinion, was unwarranted.  I believe it was reasonable for the President to determine that no detainee captured on the Afghan battlefield qualified as a POW:  after all, none were wearing a uniform.  Nevertheless, it was not reasonable to rule in advance that no detainee was an innocent civilian. That is a factual determination which can be made only on a case by case basis. 

Although it was, and perhaps still is, impractical to hold full blown trials on the status of every prisoner, the government could have saved itself a lot of criticism by holding Article 5 hearings.  The Supreme Court has attempted to rectify the situation by extending the right of habeas corpus to Guantanamo.  In addition, and contrary to the assertions of the Bush administration, the Court ruled that the prisoners are entitled to minimal protections afforded by Article 3 of the Geneva Conventions of 1949.

* * * * * * * * * * *

February 13, 2014 – A Federal Judge Struck Down Virginia’s Ban on Same-Sex Marriage as Unconstitutional

On this day in history, U.S. U.S. District Judge Arenda L. Wright Allen issued a 41-page opinion striking down the constitutional amendment Virginia voters approved in 2006 that both banned same-sex marriage and forbade recognition of such unions performed elsewhere.

U.S. District Judge Arenda L. Wright Allen

U.S. District Judge Arenda L. Wright Allen

She stayed her decision pending appeal to the U.S. Court of Appeals for the 4th Circuit in Richmond. She wrote:

Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices — choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”

She added:

The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.”

Both the Virginia ruling and other similar recent decisions relied heavily on the Supreme Court’s ruling in United States v. Windsor striking down part of the federal Defense of Marriage Act.

February 12, 1809 – Birthdate of Abraham Lincoln

On this day in history, Abraham Lincoln was born in a one-room log cabin in Kentucky.

Many people know a lot about his life, including the fact that he was a lawyer before the became the 16th President of the U.S. But most don’t know that he also served a Judge Pro Tem for the Eighth Judicial Circuit of Illinois.

The term judge pro tem normally refers to a judge who is sitting temporarily for another judge or to an attorney who has been appointed to serve as a judge as a substitute for a regular judge. Abraham Lincoln served as a substitute for Judge David Davis in the courts of the Eighth Judicial Circuit in over 300 cases between 1850 and 1859. (Davis also called on attorneys Clifton H. Moore and Oliver L. Davis to serve in his place for brief periods.)

While serving as judge, Lincoln made 323 decisions including 161 continuances, 31 dismissals, 28 default judgements, and 3 nonsuits. Most of those decisions did not require much input from Lincoln. He also, however, made 54 final judgments, 40 procedural rulings, 5 decisions to set aside defaults, and one other judgment the nature of which is unknown.

In 1858, when the voters of Sangamon County elected John F. King as a justice of the peace, Lincoln’s law partner William Herndon reported that King came to Lincoln to ask him for advice on how best to fulfill his responsibilities.

Source: The Papers of Abraham Lincoln in Springfield, Illinois, a project dedicated to identifying, imaging, transcribing, annotating, and publishing all documents written by or to Abraham Lincoln during his entire lifetime (1809-1865).

Lincoln in 1860

Lincoln in 1860

February 7, 1794 – The Supreme Court Decides Georgia v. Brailsford: An Endorsement for Jury Nullification?

The Seventh Amendment establishes the right to a trial by jury whenever the case is one that would have required a jury at common law. And when a state is a party, the Supreme Court may be the court of original jurisdiction. During the 1790’s the U.S. Supreme Court impanelled juries at the beginning of every term, but has not done so for more than 200 years.  Although the Court is known to have presided over at least three jury trials, only one of them was ever reported: Georgia v. Brailsford (3 U.S. 1, 1794).

During the Revolutionary War, many states – Georgia included – enacted legislation to “sequester” debts owed to British creditors.  However, the 1783 Treaty of Paris ending the war provided in part:

Creditors on either Side shall meet with no lawful Impediment to the Recovery of the full Value in Sterling Money of all bona fide Debts heretofore contracted.”

Ex_E249_G73_1783_TP-235x300 

Once federal courts were created, foreign creditors hastened to bring suits. Samuel Brailsford was a British subject who was owed a bond dated 1774 by Georgia citizen James Spalding.  The State of Georgia claimed that Spalding rightfully owed the debt to the state, not to Brailsford, since it had sequestered the debts of all British creditors by statutes it passed before the Treaty of Peace.  In Georgia’s view, the state had replaced the British creditors.  

The Brailsford case presented two questions. First, when Georgia “sequestered” Brailsford’s debt, did the right to receive payment vest in the state? This was a matter of statutory interpretation.

Second, if it did vest in Georgia, was the state’s right to payment abrogated by the Treaty of Peace? This second question concerned the supremacy of treaties and state sovereignty. Both the State of Georgia and Brailsford had stipulated all the facts, obviating a factual inquiry.

Nevertheless, because it was a common law action, the Supreme Court impanelled a jury despite there being no facts to determine. But then, this was no ordinary jury. In the 17th and 18th centuries, it was a recognized practice of common law courts to impanel “special” juries in complex cases or cases that involved specialized mercantile knowledge or expertise. Such juries were composed entirely of experienced businessmen rather than citizens chosen at random. In a sense, they acted as a panel of expert witnesses as well as the jury’s traditional role of fact finder.

Chief Justice John Jay, portrait by Gilbert Stuart

Chief Justice John Jay, portrait by Gilbert Stuart

The report of the case includes the instructions given to the jury by Chief Justice John Jay on the distinction between law and fact:

It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.”

It seems as if Jay were telling the jurors that they should respect the legal opinion of the judges, but that they were not bound by those opinions! These words have been considered by some scholars as the foundation of the jury’s right to “nullify,” i.e., to ignore the court’s instructions.

Other scholars contend that such interpretations ignore the context of the case and of the time. In the mid-18th Century, Lord Mansfield, Chief Justice of King’s Bench in England, commonly used special juries of merchants to assist him in incorporating the law merchant into the common law, inviting the special merchant jurors to “call[] upon their own experience and knowledge in reaching their verdicts.” Furthermore, in late eighteenth-century America, a similar use of special juries of merchants was widespread and exerted a great influence over the development of post-revolutionary commercial law. [James Oldham, “The Origins of the Special Jury,” 50 U. Ch. L. Rev. 136 (1983); and James Oldham, “The History of the Special (Struck) Jury in the United States and Its Relation to Voir Dire Practices, the Reasonable Cross-Section Requirement, and Peremptory Challenges,” 6 Wm. & Mary Bill Rts. J. 623, 1998.]

William Murray, 1st Earl of Mansfield

William Murray, 1st Earl of Mansfield

[Interestingly, special juries are still sometimes used, even in this day and age of expert witnesses. Oldham also discusses the issue of whether “the standards for the admissibility of expert testimony require upward adjustment because of the supposed greater capabilities of the special jurors.” (Ibid, p. 661.)]

In any event, not only this Supreme Court case, but some statements made by Founding Fathers show an early belief in jury nullification at least in some circumstances. For example, John Adams said of the juror:

…it is not only his right, but his duty… to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” (cited in Yale Law Journal, 1964:173.)

Portrait of Adams by John Trumbull, 1792–93

Portrait of Adams by John Trumbull, 1792–93

A century after Brailsford, however, in Sparf v. United States (156 U.S. 51, 1895), the Supreme Court held that the constitutional right to jury trial does not give a jury the right to decide questions of law or to reject the law as presented to it by the court.

Some scholars – especially those labeling themselves as “originalists,” maintain that, because Founding-era juries had the right to nullify, the right was implicit in the constitutional meaning of jury, and should be restored. They contend that Sparf should be overruled.

But if in fact the instructions issued in Georgia v. Brailsford are seen more as an outline to guide experts, as was clearly the case in its historical context, Chief Justice Jay’s comments appear to be not so much advocacy of jury nullification as deferral to recognized expertise. 

Moreover, an article by Jonathan Bressler, former law clerk to Justice Stephen Breyer, argues convincingly that a proper construction of the Fourteenth Amendment eliminates any power to nullify that may have existed during the Founding Era.  Bressler observes:

…the Reconstruction Congresses understood the Fourteenth Amendment not to incorporate against the states the jury’s historic right to nullify, even as it incorporated a general right to jury trial. On the contrary, Reconstruction Republicans understood jury nullification to be incompatible with new constitutional rights they were charged with protecting in the former Confederate states and in the Utah Territory. In what was then among the most significant revolutions in federal jury law, Reconstruction Republicans supported legislation that would purge en masse from criminal juries Southern and Mormon would-be nullifiers—even some prospective jurors who plausibly believed that a federal criminal statute was unconstitutional.” (Jonathan Bressler, “Reconstruction and the Transformation of Jury Nullification,” U. Chicago Law Review Volume 78 Fall 2011 Number 4)

February 2, 1848 – Treaty of Guadalupe Hidalgo

On this day in history, the U.S. and Mexico signed the treaty that ended the Mexican-American War (1846-1848). The treaty is the oldest treaty still in force between the United States and Mexico. As a result of the treaty, the United States acquired more than 500,000 square miles of valuable territory and emerged as a world power in the late nineteenth century.

The treaty called for the United States to pay $15 million to Mexico and pay off the claims of American citizens against Mexico up to $3.25 million. It also gave the U.S. more than 500,000 square miles of valuable territory including ownership of California, and a large area comprising New Mexico, Arizona, Nevada, Utah, and parts of Wyoming and Colorado.

1848-Mexican-Cession-350pw

Lincoln had been among the Congressmen who objected to The Mexican War as an unjustified act, challenging President Polk for proof of his insistence that the war began when Mexicans shed American blood on American soil, an assertion Lincoln denied. Lincoln voted for a resolution that declared the war unnecessary and accused Polk of violating the Constitution in commencing it. But in this era, the doctrine of “Manifest Destiny” ruled the day; Lincoln was fighting a losing battle. In any event, Lincoln did vote to supply the American army and he did not support legislation that would have prohibited acquiring territory from Mexico as part of a peace settlement.

President James K. Polk

President James K. Polk

For Mexico, The Treaty of Guadalupe Hidalgo ensured that Mexico would remain an underdeveloped country well into the twentieth century. In addition, the treaty had important implications for the civil and property rights of former Mexican citizens in the ceded territories. Although the treaty promised U.S. citizenship to former Mexican citizens, the Native Americans in the ceded territories, who in fact were Mexican citizens, were not given full U.S. citizenship until the 1930s. In addition, the former Mexican citizens were discriminated against by the U.S. settlers who moved into the new territories, and their rights were not universally upheld in U.S. courts. Within a generation the Mexican-Americans became a disenfranchised, poverty-stricken minority.

January 26, 1830 – Daniel Webster Delivers “The Most Famous Speech in Senate History”

On this day in history, Massachusetts Senator Daniel Webster began his closing oration on a debate over a proposal by a Connecticut senator to limit federal land sales in the West. Like many debates at the time, the issue quickly changed into one pitting the interests of slavery against its opponents.

Daniel Webster

Daniel Webster

South Carolina Senator Robert Hayne argued that land sales benefited the federal government, and that states should have the power not only to control their own lands but to nullify federal laws they believed to be not in their best interests. Hayne continued that the North was intentionally trying to destroy the South through a policy of high tariffs and its increasingly vocal opposition to slavery.

Webster excoriated Hayne for straying from the original topic by segueing into the slavery issue. He reminded his audience that in spite of Northern opposition, the North had never claimed Congress could abolish slavery.

Responding to Hayne’s argument that the nation was simply an association of sovereign states, Daniel Webster launched into an eloquent disquisition on the nature of government in the United States as set forth by the Constitution (which also, he noted, conferred the power to decide disagreements between states on the judicial branch):

This leads us to inquire into the origin of this government and the source of its power. Whose agent is it? Is it the creature of the State legislatures, or the creature of the people? If the government of the United States be the agent of the State governments, then they may control it, provided they can agree in the manner of controlling it; if it be the agent of the people, then the people alone can control it, restrain it, modify, or reform it. It is observable enough, that the doctrine for which the honorable gentleman contends leads him to the necessity of maintaining, not only that this general government is the creature of the States, but that it is the creature of each of the States severally, so that each may assert the power for itself of determining whether it acts whithin the limits of its authority. It is the servant of four-and-twenty masters, of different will and different purposes and yet bound to obey all.

This absurdity (for it seems no less) arises from a misconception as to the origin of this government and its true character. It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people. The people of the United States have declared that the Constitution shall be the supreme law. We must either admit the proposition, or dispute their authority. The States are, unquestionably, sovereign, so far as their sovereignty is not affected by this supreme law. But the State legislatures, as political bodies, however sovereign, are yet not sovereign over the people. So far as the people have given the power to the general government, so far the grant is unquestionably good, and the government holds of the people, and not of the State governments. We are all agents of the same supreme power, the people.”

Webster’s speech lasted for several hours and stretched over two days. Reprinted later (in a version edited by Webster), it had an impact that reached far beyond the Senate chamber.

You can read the entire speech here.

Follow

Get every new post delivered to your Inbox.

Join 87 other followers