Silverglate On Scalia's Important Impatience With Murky Federal Criminal Laws
TheFIRE.org founder, lawyer Harvey Silverglate, wrote the book Three Felonies A Day: How the Feds Target the Innocent
Silverglate writes at WGBH:
Scalia's impatience was particularly acute when dealing with a problem that is disturbingly common in federal criminal law: the plethora of statutes so vague and broad that no person of normal intelligence - or even superior intellect for that matter - can figure out where the line is being drawn between crime and business-as-usual. Scalia was the member of the court most disturbed when a citizen found himself convicted of violating a statute that gave no fair and clear guidance of the demanded standard of conduct.Scalia was what we lawyers call an "originalist"--someone who believes that when the Constitution was written, its words, phrases, and concepts were meant to set out a blueprint for a society where government powers are limited, where citizens' (and others') rights and obligations are spelled out, and where those dictates are not lightly trampled upon in the absence of a hard-to-obtain amendment to the Constitution. Original meaning, in other words, does not change with the times in the absence of an amendment.
Scalia took literally and absolutely some constitutional commandments that other judges and justices try to skirt or re-define in order to achieve what they view as some overriding social or political goal. Scalia prioritized free speech rights, freedom from unreasonable searches and seizures, protection of the right to trial by jury (despite others' repeated attempts to cut corners), and, importantly, the obligation of Congress and state legislatures to enact clearly-worded criminal statutes that gave fair warning of what actions (or inactions, for that matter) could land one in prison.
This notion - that all of us are entitled to have the clear guidance of the law in deciding what we should and should not do - is essential to liberty. Indeed, it curtails the power
of the government to decide anew what is unlawful whenever prosecutors want to bring a case. The notion is not exactly new, having (in theory at least) been enshrined as one element of "Due Process of Law." Due Process is a concept set forth in the original Bill of Rights that constricts the power of the federal government to infringe on an individuals' rights. After the Civil War, the concept was written into the Fourteenth Amendment,
applying it to state governments that might otherwise be tempted to interfere with the property or liberties of citizens without resort to fair processes....Rebalancing politics and federal criminal law may have to await the next Antonin Scalia, and I would not make a wager that such a justice is likely any time soon. It takes a certain intellect, and a certain character and courage, to tell the Department of Justice that, like the fabled emperor, it is wearing no clothes.
Remember this the next time someone gripes that "Congress isn't doing anything".
Yes, they're not passing more stupid legislation that criminalizes something or other, or restricts our freedoms, or otherwise entangles our lives. Don't you think we have enough statutes on the books?
The real goal of having murky laws is that they can be employed as needed: to lock up a troublemaker or the politically unpopular. And it'll be perfectly legal. Even if no one else is ever bothered over such violations.
Or, as InstaPundit puts it: 1984 is supposed to be a warning, not a how-to guide.
I R A Darth Aggie at February 16, 2016 8:02 AM
Whether you agree that Scalia actually met the description that Silverglate gives him, the type of judge that Silverglate describes is surely the type of Supreme Court justice we need now. Unfortunately, we're unlikely to get such a person.
Aside, but I'm getting a kick out of the leftist media trying to concern-troll the GOP today. "The Republicans must give Obama's nominee a full and fair hearing, or they will be wiped out in the election!" Right, and give the media something to demagogue every single freakin' day, with above-the-fold headlines in the NYT and WaPo and the lead story on every TV news broadcast, between now and the election. No, the Republicans are playing it tactically smart by refusing to hold hearings.
Cousin Dave at February 16, 2016 10:05 AM
And the impossible to obey collection of contradicting laws is being used that way every day.
That idiot in Oregon was locked up as a terrorist because he accidentally burned some federal land in a controlled burn on his adjoining land (adjoining land the federal government was trying to wrest from him at the time).
Dinesh D'Souza was forced to plead guilty to violating a campaign finance law that is violated regularly (and blatantly) by politicians of all stripes. Even liberal icon, Alan Dershowitz, said D'Souza's prosecution "smacks of selective prosecution."
Ask any restaurant owner and he'll tell you that he can obey city health codes, county health codes, or state health codes, but not all three at once.
Conan the Grammarian at February 16, 2016 11:02 AM
Cousin Dave, the GOP loudly telling everyone they will refuse to consider any nominee reminds me more of Archer.
Do you want a recess appointment?
Because that's how you get recess appointments.
If the GOP refuses out of hand to consider a nominee I think that would justify Obama making a recess appointment.
There's loyal opposition, and then there is obstructionism to ensure nothing can ever be done.
It is a hoot to see Senators constantly flip flopping on filibustering court nominees.
jerry at February 16, 2016 11:12 AM
Harry Reid solved that problem with GW Bush - by never letting the Senate go into recess.
Of course Obama ignored it when the Republicans tried it on him, arbitrarily declaring the Senate in recess and making a recess appointment.
Even if Obama makes a recess appointment, the next Senate will have to confirm the appointment or conduct hearings for another non-recess nominee.
Isn't it, though.
The Democrat-controlled Senate in 1960 passed a resolution that said presidents shouldn't make recess appointments to the Supreme Court in an election year.
That was an effort to thwart Eisenhower's penchant for making recess appointments to get around Democrat obstructionism. Dwight Eisenhower, the Republican the Dems now say they wish they could find more of.
Conan the Grammarian at February 16, 2016 11:38 AM
Yep, I said "Senators" not "Republicans" or "Democrats" for a reason! They're all guilty as sin on this one at least.
... now my theory is that Scalia isn't dead. He retired in this fashion in order to troll the elections.
jerry at February 16, 2016 12:50 PM
Let's see, Scalia dies mysteriously in his sleep (with a pillow over his head), throwing the Court off balance before some controversial upcoming cases.
He had just returned from Japan and was judged before that trip to be in excellent health.
Hmm. Sounds like dime novel. Pelican Brief anyone?
Conan the Grammarian at February 16, 2016 12:54 PM
Politician, thy name is hypocrisy.
If the president were Republican and the Senate Republican, the Repubs would be defending the president's power to appoint a new justice immediately.
And the Dems know they can't get a nomination past the Senate right now, but they want an issue to use in the upcoming election. Obama will appoint a champion of abortion to help the Dems canard about a "war on women" - allowing them to claim their SCOTUS appointment will defend women's health issues while if a Republican is elected president women will have to go to the witch doctor down the alley for a mammogram.
The Repubs will try to use Obama's appointee against the Dems as well, claiming that the blood of the innocents will run in the streets if the communist the Dems would appoint is allowed to sit on the Supreme Court.
Based on Obama's last two appointments, Kagan and Sotomayor, I'm inclined to side with the Republicans in this case. Kagan, I can live with. She's another doctrinaire liberal, but not a frothing zealot. Unlike Sotomayor. SCOTUS does not need another "wise latina" practicing social engineering from the bench.
It's easy to blow this off as politics as usual. Unfortunately, this is our circus and these are our monkeys, even the ones we didn't vote for. It might be time to go monkey hunting.
Conan the Grammarian at February 16, 2016 3:00 PM
"The Repubs will try to use Obama's appointee against the Dems as well, claiming that the blood of the innocents will run in the streets if the communist the Dems would appoint is allowed to sit on the Supreme Court."
Actually quite the opposite. They've already started on the 'We are just one person from grabbing all your guns' line. So the streets won't run red with the blood of the guilty is more the sound bite.
Ben at February 16, 2016 3:21 PM
Ben, I was thinking of abortion when I wrote that. The "innocents" in that hyperbole are the unborn whom the Republicans say they are pledged to defend and the Democrats to kill.
==============================
Jonah Goldberg in the LA Times on the current Court situation and why it will be a fight for the ages:
http://www.latimes.com/opinion/op-ed/la-oe-0216-goldberg-scalia-obstruction-20160216-column.html
Conan the Grammarian at February 16, 2016 3:53 PM
'Let's see, Scalia dies mysteriously in his sleep "
No mystery to it.
Gay hookers and meth killed him.
Damn. Baseless internet conspiracy theories are FUN!
Let's do another one.
Gog_Magog_Carpet_Reclaimers at February 16, 2016 5:23 PM
Gay hookers and meth? Come on, Gog, you can do better than that.
You want a conspiracy theory that's on the cusp of being believable. Pick an upcoming case in which a SCOTUS tie sends the case back to the Superior Court decision or to be scheduled for a re-hearing.
The public sector unions case is a good one. The unions are shadowy organizations with mob ties. They stand to lose a great deal of money if they lose the SCOTUS appeal.
Now that you've got a plausible villain, dress it up with a White House connection, perhaps Valerie Jarrett and the Chicago mob, and a global financier with questionable ethics and ties to the president and to the Democratic party; George Soros fits that bill. If you can work Hillary or Bill into this, you've got conspiracy theory.
The Harry Reid gambling debts and beat down theory could be worked into this as well.
Conan the Grammarian at February 16, 2016 5:37 PM
He had just returned from Japan and was judged before that trip to be in excellent health.
Before is the key word there. He should've known better than to eat fugu prepared by a Toyko street vendor.
JD at February 16, 2016 11:12 PM
"Gay hookers and meth? Come on, Gog, you can do better than that."
I don't have to. You already believe a conspiracy theory that's been debunked by the guy who said he found Scalia with a pillow "over his head". You read it to say "over his face". He immediately clarified that it wasn't, and yet - here you are.
So why should I have to work any harder than that?
Gog_Magog_Carpet_Reclaimers at February 18, 2016 5:02 PM
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