Category: Constitution

New Cases for the New Term

by · Oct 3, 2025 7:29 am

The U.S. Supreme Court’s term begins Monday. As usual, the court held a conference the Monday before to discuss which cases to take up from the long list that accumulated over the summer. A short list of cases taken was released this morning. A long list of orders from the conference will be released Monday. In past years the opening Monday orders list has typically had a long list of denials and no additional grants. Update (10/6): As expected, the Monday orders list has no additional grants.

Today’s list has five cases taken up, all civil cases, and only one even tangentially related to crime. This continues a disturbing pattern of disinterest in fixing the massive number of precedents in criminal law and procedure that are clearly wrong under the current doctrine of interpreting the Constitution according to its original understanding.

The tangentially related case is Wolford v. Lopez, AG of Hawaii, No. 24-1046. This is a gun control case regarding controlled carry on private property. Three years ago, the Supreme Court issued a major decision regarding the Second Amendment and original understanding (or “text, history, and tradition”) in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Major decisions always involve a lot of detail-filling in the years following. In Wolford, the petitioner asked the high court to review two questions. It took one of them: Continue reading . . .

Back-from-the-Dead Attack on Habeas Corpus Reform

by · Sep 3, 2025 5:03 pm

Like a bad horror movie, a monster we thought we had killed in a past episode is back. The monster is the notion that the most important element of Congress’s 1996 reform of federal habeas corpus violates Article III of the Constitution because it binds federal courts to state courts’ interpretation of the Constitution, precluding the federal court from exercising independent judgment. In a nutshell, the law requires that when a defendant’s constitutional claim has been decided on the merits in state court, a federal court is precluded from nullifying that judgment on habeas corpus unless the state court was clearly wrong based on U.S. Supreme Court precedent.

In 1998, Columbia Law Review published an issue devoted to habeas corpus. James Liebman and William Ryan advanced the thesis described above in “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of the Federal Courts, 98 Colum. L. Rev. 696. I wrote the response article, Habeas Corpus, Relitigation, and The Legislative Power, 98 Colum. L. Rev. 888.

The Supreme Court resolved the issue in Williams v. Taylor, 529 U.S. 362, 411 (2000). The resolution left a lot to be desired, but the result was that 28 U.S.C. § 2254(d) was enforced as the major reform it was intended to be, not watered down to a minor change based on the supposed constitutional limitation. Continue reading . . .

Federalizing the National Guard in California Over the Governor’s Objection

by · Jun 12, 2025 11:36 am

On June 9, California Governor Gavin Newsom sued President Trump over the President’s directive to federalize units of the California National Guard and deploy units of the Marine Corps to Los Angeles to protect immigration officers and facilities and enable them to enforce federal immigration law. The suit claims that these actions are not authorized by the federal statute cited for them and that they violate the post-Reconstruction Posse Comitatus Act.

On its face, the complaint does seem to have some merit under the statute cited in President Trump’s memorandum, but there are other statutes that he could have invoked that are not subject to the same objection. On consideration of those other statutes, this appears to be the kind of issue that calls for maximum deference to presidential authority. Continue reading . . .

Pelosi Wrongly Calls Use of National Guard “Contra-Constitutional”

by · Jun 11, 2025 3:23 pm

Congresswoman and former Speaker Nancy Pelosi said recently that President Trump “in a contra-constitutional way … has sent the National Guard into California. Something is very wrong with this picture.” What is wrong is Ms. Pelosi’s understanding of the Constitution.

It is regrettably common for people to run around saying things are unconstitutional simply because they disagree with them strongly. The former Speaker should know better.

The National Guard is part of the militia, as that term is used in the Constitution. Article I, section 8, authorizes Congress to “to provide for calling forth the Militia to execute the Laws of the Union,” and Congress has done so in 10 U.S.C. §§ 252 and 253. The Constitution further provides, in Article II, section 2, that the “President shall be Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.” Use of the militia to enforce federal law goes back to President Washington. Presidents Eisenhower and Kennedy used the predecessors of the code sections cited above over the objections of state governors. I will have a long post on this soon.

Continue reading . . .

Baby Murderer Granted Early Parole

by · Apr 25, 2025 1:53 pm

Herbert Brown beat his two-year-old daughter to death in 2013. He was convicted of murder and sentenced to 15-to-life, of which he has only done 12 years. So why is the Board of Parole Hearings granting him parole?  The San Luis Obispo County District Attorney’s Office has this press release.

“It is shameful for the Parole Board to grant Herbert David Brown III early release from prison,” said District Attorney Dan Dow. “Mr. Brown was convicted of murdering his own 22-month young daughter Lily due to abuse he inflicted upon her while he was using and under the influence of methamphetamine. Brown, who now identifies as a woman and goes by the name ‘Allie Brown,’ was sentenced to serve 15-years-to-life and should have served every day of the 15 years before being considered for possible parole. I ask the Board of Parole Hearings: ‘Where is the justice for Baby Lily?’” Continue reading . . .

Immigration Enforcement, the Laken Riley Act, and State Standing

by · Jan 11, 2025 10:08 am

The House of Representatives has passed the Laken Riley Act by a whopping 264-159. The bill may set up a constitutional showdown on the question of the standing of states to sue federal officials for failure to enforce federal law, but not any time soon.

The bill adds theft offenses to the crimes for which aliens may be taken into custody. In addition, though, it grants standing to state attorneys general to sue the Secretary of Homeland Security for a variety of failures to enforce several immigration laws. Can Congress do that? Continue reading . . .

USCA9 Vacates SF Camping Injunction

by · Jul 8, 2024 11:00 am

In January, the U.S. Court of Appeals for the Ninth Circuit upheld an injunction against San Francisco, preventing the city from enforcing its ordinance against camping on public property based on its precedents in Martin v. City of Boise and Johnson v. City of Grants Pass. The decision was 2-1, with Judge Bumatay dissenting, noting that “there’s nothing in the text, history, and tradition of the [Cruel and Unusual Punishment] Clause that comes close to prohibiting enforcement of commonplace anti-vagrancy laws, like laws against sleeping on sidewalks and in parks.”

Last week the Supreme Court reversed in Grants Pass, taking the same view of the Eighth Amendment as Judge Bumatay. See this post.

Today, the Ninth withdrew its published opinion and replaced it with a brief “memorandum,” i.e., an unpublished opinion. Continue reading . . .

Arms, Abusers, and Originalism

by · Jun 21, 2024 11:17 am

Federal law prohibits persons who are subject to domestic violence restraining orders from possessing firearms. (See 18 U.S.C. § 922(g)(8).) Today, the U.S. Supreme Court rejected a facial challenge to this law, 8-1. Only Justice Thomas dissented.

A key issue is how closely a gun-control law must track those in existence at the Founding to be considered consistent with the Second Amendment. Chief Justice Roberts, writing the opinion of the Court, states that the historical analyses of recent cases “were not meant to suggest a law trapped in amber.” Just as the protection of the amendment is not limited to the muskets of 1791, neither are the permissible regulations limited to duplicates of those in force at the time. This touches off an extensive discussion of originalism. Continue reading . . .

SB 94 – Lies, Damn Lies, and Statistics – Murderers do not “Age Out”

by · Aug 30, 2023 4:35 pm

Steve Smith of Pacific Research Institute has this post on a bill that is exceptionally bad even by the California Legislature’s low standards. The bill  would make a large number of murderers sentenced to life without possibility for parole eligible for parole.  Smith notes:

SB 94 is based on the simplistic and poorly researched premise that, based on arrest statistics alone, criminals age out of crime. The bill’s author, Senator Dave Cortese, argues that “research overwhelmingly shows that people age out of violent crime….”

Both [Sen. Cortese’s] press release and the study [it cites] suffer from a glaring omission. Neither make the connection between age and the crimes for which the offender was sentenced. Continue reading . . .

Judicial Factfinding, Multiple Sex Offense Convictions and Consecutive Sentences

by · May 25, 2023 4:18 pm

Over a period of 10 months, Edgar Sandoval Catarino sexually abused his 9-year old cousin on multiple occasions.  He was charged with 8 counts of forcible lewd acts on a child under the age of 14 (Penal Code §288(a)) .  Each charge alleged an identical range of dates during which these offenses may have occurred.  A jury subsequently convicted him on 6 of the counts and the verdict also included the same range of dates alleged on each count, but did not further specify on what dates each of the crimes took place.  At sentencing, the court found that each conviction occurred on separate occasions and sentenced him to full, consecutive terms for each pursuant to Penal Code section 667.6(d).  Catarino argued that because the jury did not make specific findings that each of his convictions constituted separate incidents occurring on separate occasions, it violated his Sixth Amendment right to a jury trial.  The California Supreme Court rejected this argument and upheld his full, consecutive sentences this morning in People v. Catarino (S271828) Continue reading . . .