None of the constitutional provisions we discuss today come from the original text. Each of the cases below concerns an amendment. I've set the first amendment controversies aside for separate treatment in the final installment. Today, then, we discuss the right to bear arms, unreasonable search and seizure, the right of confrontation, effective assistance of counsel, and the position of the people of Puerto Rico within the United States vis-a-vis the 5th amendment, drawing on language from the 14th Yesterday, we found that on a range of matters, the Supreme Court has not been breaking down on the "3 blues versus 6 reds" pattern one might expect. Today we will discover though that, on another range of matters, it has. Second amendment, the New York decision Bruen was 6 to 3. The usual suspects, on each side. This is how that looks in the case reports: THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BA...
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This is the third in our four part discussion of the Supreme Court's October 2018 term, recently concluded. It has been a big year for the constitutional treatment of the criminal justice system, and we'll deal with four cases in that line here. We will ignore others that might have fit this theme, among them Gundy v. US (where the Court passed over an attempt to reinvigorate the nondelegation doctrine in this area) and Mitchell v. Wisconsin (involving a blood alcohol test on an unconscious man). As always, my decisions on exclusion and inclusion in this review are final and unappealable. Excessive Fines The Bill of Rights did not originally limit the actions of state governments, only those of the federal government. That, at least, has been the reigning wisdom at least since Barron v. Baltimore (1833). As it happens, I now and then feel compelled to question the rightness of Barron , but I'll leave that aside. The various provisions of the Bill have, noneth...
That phrase comes, of course, from the Declaration of Independence. It is the third of the unalienable rights, along with life and liberty. The word "property" often shows up as the third item on such lists, and does so for example in both the Bill of Rights and the 14th amendment. But Jefferson wrote of "life, liberty, and the pursuit of happiness." Much heavy water has been made of this in the last 2 and 1/3 centuries. I'm reminded of an episode of The Sopranos in which Tony is complaining to his psychologist about his terrible life. He says that he saw a documentary on The History Channel in which the anchor said that the US is the only nation in the world with a founding document that explicitly mentions happiness. "So where is my happiness," he cries. Dr. Melfi, "'Pursuit' is what it says." Tony: "Yeah, there's always a fucking loophole." Anyway, one common question is the origin of Jefferson's p...