More on arbitrary detainment and habeas corpus suspension

More good comments on the monstrous legislation from Jack Balkin, Jack Balkin, and Glenn Greenwald. The best comments are from a bunch of law professors, who attach the text of the Senate bill. I am no Democrat, but I couldn't agree more with Greenwald that our most urgent and important tasks here in the U.S. this fall are to end one-party rule of the federal government and to punish politicians who have voted away our freedoms. Toward that end here is the list of Representatives who voted for and against arbitrary detainment. See my prior post to determine how your Senators voted.

Per Balkin's comments, and the comments of many who supported this legislation, an individual right of action in court -- i.e. habeas corpus -- has for many hundreds of years been the first line of defense against illegal imprisonment. Often it the only way for a prisoner to make his case heard. Without a right of action in court, any and all of the Bill of Rights, the Geneva Convention, and so on are just theoretical. That the a member of the executive branch would be doing something illegal by detaining innocents indefinitely, committing torture, and so on is moot unless it leads to impeachment or a court hearing. The possibility of impeachment, extremely unlikely even if the Democrats win in November, and no matter how many illegal acts the executive branch adds to the probable thousands it has already recently committed, is no substitute for the right of a person to defend his or her own rights in court. Furthermore, even if the President were impeached this would be not nearly enough to disincentivize the failure of much of the rest of the executive branch, as the Constitution commands them, to "take care that the laws be faithfully executed." The fate of a short-term denizen of the White House is not that big a deal to a career bureaucrat who is doing the immediate law breaking. Faithful law enforcement depends crucially on the ability of the targets of that enforcement to defend themselves in court.

Arbitrary detainment and suspension of habeas corpus

I am horrified by the legislation the U.S. Senate passed today. It will, short of a miracle, be signed by President Bush into law. The bill:

(1) Suspends habeas corpus for all aliens, including tens of millions of aliens within the United States and its territories. This means resident aliens can be imprisoned, tortured, etc. without recourse to U.S. courts to challenge the legality of any kind of detention or treatment, no matter how despicable or illegal that treatment may be. Habeas corpus has protected the rights of all residents imprisoned in English and United States territory, by ensuring them appeal from abusive detention to the normal courts of the land, under English and United States law for over 900 (that's nine hundred) years. Habeas corpus is the wellspring of all other legal protections we have against abuse of the power to detain or imprison. For a substantial part of the U.S. population, and for all foreigners, it is now gone. (It should be noted that there has been traditionally and does need to be an exception for aliens on an actual battlefield, otherwise the ability of our military to fight would be severely compromised. But this legislation excludes all aliens from habeas protection, including the tens of millions of aliens living peacefully within or peacefully visiting the U.S.).

(2) Subjects all persons, including all U.S. citizens, at the whim of the executive branch, to arbitrary detention, for indefinitely long periods of time, as "enemy combatants." Although U.S. citizens still have an appeal to normal courts via habeas corpus, the tendency of recent courts to defer to legislation over fundamental liberty rights disturbingly suggests a large free hand for the executive branch, regardless of the party of the President, here too.

The vote was mostly along party lines; here are the exceptions (h/t Glenn Greenwald):

Democrats in favor (12) - Carper (Del.), Johnson (S.D.), Landrieu (La.), Lautenberg (N.J.), Lieberman (Conn.), Menendez (N.J), Nelson (Fla.), Nelson (Neb.), Pryor(Ark.), Rockefeller (W. Va.), Salazar (Co.), Stabenow (Mich.).

Republicans against (1) - Chafee (R.I.).

Sununu (R-NH) and Specter (R-PA) tried to reverse the suspension of habeus corpus, but failing that voted for the final bill despite their objections.

While the media focused attention on the more dramatic issue of what kinds of torture or inhumane treatment would be considered technically legal under the bill, for aliens this question is now moot, because, at the whim of the executive branch, they will not be able to raise the issue in front of anything but a military tribunal. And if they are not charged with any crime they will not even get a military tribunal, because the bill allows for indefinite and arbitrary detention of aliens defined, at the whim of the executive branch, as "enemy combatants."

Marty Lederman also has a good description of this legislation.

That this bill will be signed into law is now fait accompli. The only recourse we have now is the ballot box this fall to punish the Representatives and Senators who have surreptitiously stolen some of our most basic and hard-won freedoms.

A's win the West!

The Texas Rangers beat the Los Angeles Angels 5-2 and the Oakland Athletics stomped those little mice, the Seattle Mariners, 12-3, so the A's clinch the American Leaguge West. Still my favorite team after all these years. :-)

Patent infringed by cat?

Here is the silly patent. But it's more entertaining when the laser pointer is wielded by hand (which from reading the claims you can see does not infringe the patent).

Why Kelo was way off

(This is an edited version of comments I made on Catallarchy, posted here for my readers)

The Takings Clause reads, "…nor shall private property be taken for public use, without just compensation." This has always been interpreted by courts to forbid taking for anything other than a "public use," compensated or otherwise. One can summarize the reasons for this interpretation as follows:

(1) It’s the common-sense way to interpret the clause in light of the rest of the Constitution (e.g. in light of the rest of the 5th Amendment, by the doctrine of enumerated powers, by the 9th and 10th Amendments, by the interpretation rule of smaller to greater, etc.)

(2) Precedent: the Supreme Court has always interpreted it that way. The big dispute is not over this, but over what "public use" means. Alas, the preposterously broad Kelo definition of "public use" makes the complement category "private use" almost a nullity.

I’d add that forbidding of takings for private use reflects what English common law and state practice (interpreting similar provisions in state constitutions) was at the time of ratification. The framers simply took it for granted, thus the poor wording.

(The framers realized such dangers of misinterpretation generally, however, which is why we have the 9th and 10th Amendments: to prevent construing of poorly worded clauses against individual rights).

There are also good policy reasons to forbid takings for private use, such as the public choice waste that arises when B lobbies officials to take A’s land for B’s use.

Which brings us to why Kelo wasn't even close to an accurate opinion about the law. The "public use" in the 5th Amendment probably referred to Hale’s "public interest" doctrine, which when the 5th Amendment was ratified meant only functions involving either coercion or monopoly – for example a police station or courthouse, or the equivalent of taking a toll on the only bridge across a river. A franchise was, to quote a modern movie, a business that could legally make "an offer you can't refuse." It was as a result closely regulated under common law. The most common requirements were that it had to be open to the general public, that the service be well maintained, and that it was restricted to charging only "reasonable" tolls.

It is thus unconstitutional to take private property for the use of any competitive enterprise (even if it’s run by government). There are almost surely also Due Process Clause restrictions to taking property, even for a coercive function or a monopoly, when that involves "taking from A to give to B" (to paraphrase Sir Edward Coke in the 17th century and Justice Samuel Chase in Calder v. Bull), and to take property such as a house or communications device used to exercise a fundamental right, as I describe here. But U.S. courts don’t recognize those rights either.

Around the time of the ratification of the U.S constitution, state constitutions that specified language like the U.S. constitution, and generally under common law, forbad takings (compensated or not) for non-"public use." There are two somewhat different issues here, since there were two different interpretations of what was forbidden as not "public use." The first forbad a taking from A to give to B rather than to a government. The second (and I believe correct) approach forbad taking for the use of a competitive enterprise, i.e. an enterprise that did not under the old common law require a special patent-like property right called a "franchise." A franchise was required, per Hale, for a natural monopoly which charged a "toll." A franchise could also be a privately owned court or police force (these were common in England, and there were some private courts in some U.S. colonies, but these had largely disappeared in the U.S. by the time of the ratification). A franchise was required by common law to be open to the public and charge a "reasonable" toll, unlike a competitive enterprise which could charge the market rate.

On the first interpretation(whether private property could be taken from A and given to B), the following claims in early Supreme Court majority opinions are a bit exagerated, but generally correct:

"...a law that takes property from A. and gives it to B: It is against call reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation." Calder v. Bull, 3 U.S. 386, 388 (1798)

"We know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union. On the contrary, it has been constantly resisted as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.... The counsel for the plaintiffs have themselves admitted that they cannot contend for any such doctrine." Wilkinson v. Leland, 27 U.S. 627, 658 (1829)

On the second interpretation(whether private property could be taken for a competitive enterprise instead of a franchise) the evidence is more concrete, but misunderstood, since hardly anybody understands franchise law these days. Justice Thomas' dissent in Kelo [with my comments in brackets] gives a good overview of the case law at the time:

States employed the eminent domain power to provide quintessentially public goods, such as public roads, toll roads, ferries, canals, railroads, and public parks [all of these were, if privately held, franchises under common law -- NS]. Though use of the eminent domain power was sparse at the time of the founding, many States did have so-called Mill Acts, which authorized the owners of grist mills operated by water power to flood upstream lands with the payment of compensation to the upstream landowner. Those early grist mills “were regu­lated by law and compelled to serve the public for a stipu­lated toll and in regular order,” and therefore were actu­ally used by the public.They were common carriers— quasi-public entities. [These were toll-taking franchises -- NS] These were “public uses” in the fullest sense of the word, because the public could legally use and benefit from them equally. See Public Use Limi­tations 903 (common-carrier status traditionally afforded to “private beneficiaries of a state franchise or another form of state monopoly, or to companies that operated inconditions of natural monopoly”).

Thomas cites many state cases where full public access was required, or else the taking prohibited. This however is an incomplete distinction: public access was merely required of a franchise by the common law, but there were other common requirements, such as the "reasonable toll" requirement, and these requirements didn't define a franchise. A franchise was defined per Hale as a business that its "customers" could not avoid using: either a coercive process, as tax farming or operating a private court, or a natural monopoly, i.e. an unavoidable service that charged a toll.

To be sure, some early state legislatures tested the limits of their state-law eminent domain power. Some States enacted statutes allowing the taking of property for the purpose of building private roads [franchises were privately owned, so this is no exception to the rule -- NS]. These statutes were mixed; some required the pri­vate landowner to keep the road open to the public, and others did not. Later in the 19th century, moreover, the Mill Acts were employed to grant rights to private manufacturing plants, in additionto grist mills that had common-carrier duties. [citations omitted]

Incorporation of the Second Amendment

John Roland presents strong evidence that the 14th Amendment of the United States Constitution, ratified shortly after the end of the Civil War, was intentended to incorporate (as well as other parts of the Bill of Rights), as a restriction on States, the 2nd Amendment. It was incorporated in the form of an individual and equal right to keep and bear arms, even if, for the sake of argument, the original 2nd Amendment was not an individual right. There is also some evidence that the "liberty" part of the Due Process Clause was intended to protect, among other things, liberty of the house: that it included "... the right [of a person] to be safe and protected in that citadel of his love [i.e. his home] [and] ... to bear arms for the defense of himself and family and his homestead."

Blown down in the wind: property rights and the public interest doctrine

The public interest (or public use) doctrine has been widely used in U.S. law in areas ranging from constitutional law (including the Takings Clause, substantive due process, and the First Amendment) to bankruptcy law and the regulation of public utilities, telecommunications, and transportation businesses in particular as well as of business generally. But this doctrine has been radically changed in form over the years, until today it is a only a mockery of its original form.

From its origins in the medieval doctrines of seisin and feudal service, as applied to private rights to exercise police powers or to charge taxes or tolls, it was extended to apply to franchises and monopolies in general. During the New Deal, the idea was preposterously expanded to justify even the arbitrary and discriminatory regulation of every kind of property.

In medieval times governmental jurisdiction was property. Like other property, it was either derived by title ultimately from the king or by long use (prescription). Like other property, it was governed by the doctrine of seisin, or active and notorious possession. Often property , including land, entailed, as a matter of obligation specified in charter (the deed under which property was conditionally transferred) or as a matter of custom, obligations such as military service, rent, or maintaining or using the property. In the context of a franchise involving police powers, the doctrine of "non-user," justified as either seisin or implied feudal obligation, often imposed certain procedural obligations -- for example to exercise the police power against lawbreakers and to respect the right of trial by jury. The non-user doctrine was, however, controversial, and owners of these intangible properties argued that their franchises, even franchises to collect taxes and tolls or exercise police powers, were purely private property for their private use.

In 1237 King Henry II argued, in a letter to the Abbott of Peterborough, that his grant to the abbott of local police powers was conditional on their being exercised:

Since we ordered all the bailiffs in our realm to see that watches were kept by night against the disturbers of our peace and commanded that the holders of liberties [i.e. franchises] should see that this was observed in their liberties, we marvel greatly that you in your liberty of Peterborough have allowed homicide and theft to be committed, and have taken no steps to keep our peace...We enjoin you therefore that, as you wish to retain your liberty, you take care to deal with malefactors and peace breakers, so that it may appear that you are a lover of peace, and that we may not have to lay our hands upon your liberty because you have failed.

A more recent case that illustrated this debate is Att.-Gen. v. Newdegate (King's Bench 1519). This case was to determine whether the franchises of "infangthief" and "outfangthief" that had been deeded by the king to Newdegate for his manor was forfeit back to the king due to "non-user." "Infangthief" was the right to hang those who had committed a theft on the land and caught red-handed on the land, and "outfangthief" was the right to hang such a thief even if caught red-handed elsewhere.

According to a report of the case, "the king's attorney showed that [Newdegate] had not used it, and had also misused it, for he did not have gallows..." Newdegate's attorney lamely explained that "his gallows were blown down in the wind," but over a year had gone by and they were still down. He argued that whatever the reason the gallows were blown down was irrelevant because "non-user is neither a forfeiture nor finable because this is a liberty [franchise] granted to him which he may use as he wishes, and it is for his own advantage." Another words, he was arguing -- and it was a plausible argument at the time -- that even a function we now consider a core governmental function was purely a matter of private property. Even a police force and a court did not in this view entail enough public interest to justify common law regulation.

However, Chief Justice Fyneux held that "this leet [i.e. the private court] is granted for the common wealth as well as for the benefit of the party [owner], and it must be used or else it is forfeit." Whereas in previous centuries this kind of forfeiture proceeding, called a quo warranto, was considered merely a dispute over title to the franchise as either the king's private property or the current operator's private property, now the franchise of monopoly police power over an area was considered to have a pubic interest. It was this public interest, not an implied feudal obligation to the king as grantor of the franchiise, that now justified common law obligations and restrictions on the use of a police powers franchise.

In the late 17th century, Lord Chief Justice Hale, in his treatise De Portibus Maris (Concerning the Gates to the Sea) applied this doctrine to franchises to take taxes or tolls. All rights to charge taxes or tolls were originally the property of the king (the king's prerogative), but like the king's jurisdiction it was often granted or owned by prescription by other parties in the form of a franchise. Hale discussed the issue of what kind of commercial enterprise constituted taking a "toll," and thus required an intangible property right -- a franchise -- on top of the personal and real property of the enterprise in order to legally operate the enterprise. If the price was a toll, the enterprise was performed under franchise with a public interest, and thus would be regulated by the common-law franchise doctrines of non-user (the requirement of continual use for the public) and that the rate charged be reasonable.

Besides toll-roads and bridges, for Hale toll-taking included being the sole operator of a port facility such as a wharf or a set of cranes, or the operator of the sole ferry in an area. Hale justified this scope of public interest by citing the Roman idea of juris publica, under which the emperor, rather than local authorities or private parties (juris privati) had jurisdiction over the ocean shoreline.

These monopolistic situations with high avoidance costs were, however, still plausible variants of the right to collect taxes or tolls. According to Hale, when such a monopoly was either expressly a franchise granted by the king or was a toll-taking monopoly owned by prescription, the owner of the monopoly had to charge a reasonable rate. Hale describes such a franchise as "a right privilege, that no man may set up a common ferry for all passengers without a prescription time out of mind or a charter from the king. He may make a ferry for his own use or the use of his family, but not for the common use of all the king's subjects passing that way; because it doth in consequent tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every [such] ferry ought to be under a public regulation, viz., that it give attendance at due times, keep a boat in due order, and take but reasonable toll; for if he fail in these he is finable." As long as the property right is equivalent to the monopoly of taking a toll on a road, the property is "affected with a public interest." This interest, however, terminates if competition arises. If the situation is not or is no longer the equivalent of taking the toll -- i.e. if it does not involve "all" the king's subjects who travel that way -- freedom of contract (i.e. property rights in motion) must govern:

A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree for cranage, wharfage, housellage, pesage; for he doth no more than is lawful for any man to do, viz., makes the most of his own. If the king or subject have a public wharf, unto which all persons that come to that port must come and unlade or lade their goods as for the purpose, because they are the wharves only licensed by the king, or because there is no other wharf in that port, as it may fall out where a port is newly erected, in that case there cannot be taken arbitrary and excessive duties for cranage, wharfage, pesage, &c.; neither can they be enhanced to an immoderate rate, but the duties must be reasonable and moderate, though settled by the king's license or charter. For now the wharf and crane and other conveniences are affected with a public interest, and they cease to be juris privati only; as if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected by the public interest.

Up to here the public interest was required to justify a common law restriction on a franchise. In medieval and Renaissance times, on rare occassions Parliamentary statutes, and much more commonly local lords and guilds, regulated property in motion, with various oppressive or economically dubious laws that fixed prices, set maximum wages, and the like. These regulations were not considered part of the common law and were not justified in terms of the public interest doctrine. However, in the U.S. the Fourteenth Amendment was commonly held by legal scholars and judges to apply common law restrictions to statutory law, and that included restricting regulation of private property by the public interest doctrine as it had been explicated by Hale. The Waite, Peckham, and Taft Courts all agreed that the public interest doctrine restricted the ability both state and federal legislatures to regulate private property, but in the process of applying the doctrine in this way the Supreme Court ended up stretching it beyond all recognition, until it just broke.

This conflict between the legislative desire to regulate property and the common law restrictions incorporated in the Fourteenth Amendment came to a head little more than a decade after the ratification of that Amendment. The common law doctrine of public interest was applied to restrict legislation, but it was even in the first case stretched to allow legislation that was far from regulation of any sort of private police power or toll-taking.

In Munn v. Illinois (US. Supreme Court 1877) the public interest doctrine was rather dubiously extended to a set of grain elevator situated near a major railroad hub in Chicago. These elevators sorted and stored grain and thus played an important role in the shipment and trading of grain. Their construction and operation had greatly expanded the ability of Midwest U.S. farmers to market their products, but now the farmers had complained about the high prices charged and successfully lobbied, via a political lobbying group called the Grangers, for Illlinois to regulate the rates charged by the elevators for storing grain.

Munn's elevators did not comprise all (or even most) of the elevators near the hub. There were several companies operating such elevators, albeit they had been accused of collusion. Nevertheless, there is an economic rationale for extending the public interest doctrine to what Professor Richard Epstein calls network companies -- companies like public utilities and railroads. Given the exclusive contracts between railroads and the grain elevators, and anti-scompetitive collusion between the elevator companies itself, the network doctrine could plausibly be further extended from the railroads to the elevators. Whether or not it was justifiable on policy grounds, Munn was a radical redefinition of the public interest doctrine. No longer was the doctrine confined to performing governmental functions, i.e. running courts and police forces and collecting taxes and tolls, when the rights to conduct such activities were privately owned. Now the public interest doctrine applied to purely commercial enterprises that were not purely competitive but were associated with some uncompetitive practices or outcomes.

The network or anticompetitive theory lasted for a little over seventy years, but it was easy for courts to extend this doctrine, since no commercial enterprise is purely competitive. Indeed, as Professor Epstein has described, the Progressive and pro-New Deal judges thought highly regulated monopolies or cartels were the ideal form of business for most sectors of the economy. In Nebbia v. New York (U.S. Supreme Court 1934) Justice Roberts declared that the public interest doctrine justified almost arbitrary and discrimanatory regulation of property:

The court has repeatedly sustained curtailment of enjoyment of private property, in the public interest. The owner's rights may be subordinated to the needs of other private owners whose pursuits are vital to the paramount interests of the community. The state may control the use of property in various ways; may prohibit advertising bill boards except of a prescribed size and location, or their use for certain kinds of advertising; may in certain circumstances authorize encroachments by party walls in cities; may fix the height of buildings, the character of materials, and methods of construction, the adjoining area which must be left open, and may exclude from residential sections offensive trades, industries and structures likely injuriously to affect the public health or safety; or may establish zones within which certain types of buildings or businesses are permitted and others excluded. And although the Fourteenth Amendment extends protection to aliens as well as citizens, a state may for adequate reasons of policy exclude aliens altogether from the use and occupancy of land [citations omitted].

In terms of what local lords and legislatures had actually regulated over the course of history this was accurate. In the context of the history of franchise law, on which Hale's public interest doctrine was based, and which the Fourteenth Amendment had been held to incorporate, but which Justice Roberts had forgotten, this interpretation of the public interest doctrine was absurd. "Public interest" now refered, not to coercive police powers, not to toll-taking, not to toll-like monopolies, not to businesses with network externalities, but simply to the ubiquitous condition of scarcity, used in NBC v. U.S. (U.S. Supreme Court 1943) even to deny First Amendment claims against content-related FCC regulations:

The facilities of radio are limited and therefore precious; they cannot be left to wasteful use without detriment to the public interest.

The Waite Court's application of the doctrine to network-like businesses generally, including not just railroads but also semi-monopolistic depots standing beside railroads, had already stetched the doctrine well beyond toll-taking proper. Now the doctrine was simply smashed down altogether by the New Deal hurricane.

Artificial atoms

Will McCarthy's book Hacking Matter is now online. Although it contains too much hype for my tastes, it also contains a good layman's description of quantum dots (artificial atoms) and similar devices. See also the programmable matter FAQ.

Due process property rights

Modern legal commentators often refer to property rights as "mere economic rights." Epstein and others have argued against a strong distinction between economic and personal rights. This article argues that some kinds and aspects of property rights, especially those associated with owning, renting, or providing a residence, a communications service, or an article or servcie associated with a family or other intimate relationship, are much more than economic rights. Besides possibly falling under the Takings Clause, these property rights also fall under the Due Process Clause, the First or Fourth Amendments, or other constitutional rights depending on the nature of the property. Such property rights cannot consistently with the Constitution be taken merely by monetary compensation, even if taken for a public use, but may be taken or unduly burdened by regulation only if they are forfeit due to lawbreaking of the property owner or if a full and complete equivalent to the violated right is provided.

Although property law is commonly considered a branch of substantive rather than procedural law, this is a highly misleading categorization for the purposes of constitutional interpretation. Traditionally, obligations and rights associated with residence and property were at the core of common law procedural rights. "Due process" was and is considered synonymous with "the law of the land." "The law of the land" was guaranteed by the Magna Carta. Several state constitutions still protect "the law of the land" rather than "due process", but courts have always considered them to be synonymous. "The law of the land," under traditional common law, referred to core righs of property, person, and procedure that could be pled in the king's courts using the extraordinary writs, particularly quo warranto, habeus corpus, and prohibition. Quo warranto could not be used to take certain property rights unless those rights had been abused in violation of law and unless proper legal procedure was observed, just as under habeus corpus a person could not be imprisoned unless he or she was a lawbreaker and proper procedure was observed. Indeed the phrase "common law" originally referred, not to the "judge made law" of the king's courts generally, but only to that subset of the law that the king's courts could apply, via the extraordinary writs, in all parts of the land including against the many private (franchise) and Church courts. This is also the cf core meaning of "the law of the land" and "due process."

So much did the Framers of the United States Constitution considered property to be the core and paradigmatic constitutional right that they often (as in this essay) referred to intangible rights such as freedom of speech, association, belief as property rights in order to afford them greater protection. The Framers did not make a sharp distinction between property and other rights, and they certainly did not dismiss property rights as "merely economic."

These core common law rights could not be taken by mere compensation, but only due to illegal behavior by the rightsholder that forfeited the property right under law. Although these rights often referred to jurisdictional rights no longer recognized today, they also referred to rights that still have modern forms, such as "view of frankpledge," a local private police force whose modern forms include neighborhood watch programs and other community groups, "advowson", associated with community religious practice, and various rights to take action against people breaking the law on one's property or within one's residence, such as liberty of the house, with modern equivalents in "stand your ground" and other self-defense laws as well as Fourth Amendment rights restricting searches of residences and other property where there is a reasonable expectation of privacy.

Although many of these rights associated with residence, community, and jurisdiction now take a very different form, Due Process rights still include rights to build relationships with one's neighbors and community for safety, security, religion and other purposes that are more than economic. Then as now, personal jurisdiction was based on the location of one's residence. At the core of these rights is the right to live in the residence and neighborhood itself. Due Process rights also include special rights of safety, security, privacy, and self-defense within one's own residence. A regulation or property taking that does not provide a full substitute for such rights, rather than mere monetary compensation, and whether for public use or otherwise, violates core Due Process rights.

When jurisdiction, search and seizure rights, and rights of self-defense, among many other procedural rights, are based on property, a taking of that property, or a regulation that impacts such a right, may be a violation of Due Process rights. If so, the taking or regulation may not be accomplished by mere compensation. Rather, when Due Process rights are associated with property, this either poses an absolute bar to government action or requires a full substitution of the specific rights violated.

Furthermore, the rights of privacy, recognized as protected by Due Process Clause, are often associated with residence. As Justice Kennedy wrote in Lawrence v. Texas:

Liberty [under the Due Process Clause] protects the person from unwarranted government intrusions into a dwelling or other private places...

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

The home itself is often another important element of family and other intimate relationships. When property is associated with personal relationships, intimate behavior, the expression of personal beliefs, or the protection of one's safety and privacy, it takes on special constitutional meaning and is entitled to greater constitutional protection. Many common individual rights enforced against the government inherently include property rights and freedom of contract (rights of property in motion). For example, the right to birth control and abortion includes the property rights to own birth control and abortion clinics and the freedom of contract to buy and sell birth control devices and abortion services. Freedom of the press includes the right to own a newspaper, to buy and sell newspapers on one's own terms, to hire journalists and editors and control their work, to contribute to political campaigns, and to spend money on political compaigns. Similarly, the Fourth Amendment and the Due Process Clause should include the property rights associated with those rights, such as property rights to the protected home, curtilage, and other areas with a reasonable expectation of privacy under the Fourth Amendment. A taking or regulation of such areas should require the government to provide equivalent privacy and security functions of buildings and other features, or be barred altogether from the regulation or taking, rather than mere monetary compensation, even when taken for a public use. Many constitutional rights have at their core rights of property and property in motion (contract) that are entitled to enhanced protection since they are not "merely" economic rights.

Semayne's Case: liberty of the house

Semayne's Case, an opinion of the English King's Bench in 1604, is a very important case expressing the long-standing "knock and announce" rule when law enforcement searches a residence. This rule was formally recognized to be an important part of the U.S. Fourth Amendment in Wilson v. Arkansas (U.S. 1995). I've posted the entire opinion online and linked to it below. Semayne's Case is where the popular phrase "a man's home is his castle" comes from, but there's a lot more to it than that.

I was going to write a blog post about the interesting conflict that is going to arise between no-knock searches (which, despite Wilson, are increasingly being conducted by increasingly militant and culturally distant law enforcement) and the recent "stand your ground" statutes in at least ten U.S. states and at least one European jurisdiction. Several other American and European states are discussing such legislation. These statutes generally provide a full defense to murder if the victim is an illegal entrant into an occupied residence (or even in some states an occupied car), or in some states if the occupant reasonably believes that deadly force is necessary to prevent the commission of a forcible felony within the house, including common burglary.

It turns out I don't need to say much, because Sir Edward Coke has already done it for me in Semayne's Case. The special expectation of safety within and right to defend a residence and its occupants -- what Coke called the "liberty ... of a house" -- justifies both a kill-the-burglar rule for residents and a knock-and-announce rule for law enforcement.

So forget the exclusion of evidence in such a search (per Hudson v. Michigan) -- there is now in at least a few states a much stronger incentive for police to behave with respect for household safety and security. Police need to enter a house legally, including announcing themselves per Semayne's Case and Wilson v. Arkansas, or they are, I argue, legally and m.orally put in jeopardy of their lives in a "stand your ground" state.

It's important to observe that Coke speaks of the "liberty ... of a house" and the of thhue of whether the house is "a liberty." In Coke's time "liberty" was a synonym for a franchise -- a privately held jurisdiction. Indeed, the kill-the-burglar rule is a weaker version of infangthief, the franchise right to hang a thief caught red-handed on one's own land. Infangthief and other liberties were special property rights that had to be granted by one's lord and ultimately by the king, or alternatively by prescription (i.e. long-standing use that creates ownership under property law). Per Coke, liberty of the house automatically attaches to any occupied residence as an inalienable prescriptive right. It provides more protection against execution of process in a private lawsuit than against execution of process for for a criminal case (here referred to as process for the King). In either case, the official must knock and announce. The highly evolved procedural law of franchises is central to Coke's opinion. Coke analogizes the liberty of a house to a weak form of liberty where the king's writs run but where private officials execute them, i.e. a liberty "with return of writs." Coke notes that, while the owner of such a liberty (or an official of it, called here a bailiff) normally has authority to use force against trespassers, this does not give the liberty owner authority to use force against legally executed process where the liberty owner himself is a defendant: "a liberty is always for the benefit of a stranger to the action" not for the defendant. Thus, when process is performed legally against a resident, it can be executed forcefully into and within a residence despite liberty of the house which otherwise allows the resident a full lethal defense against forceful intrusion. To allow the resident to distinguish the two cases is one of the main reasons for the knock-and-announce rule.

Under some of the new "stand your ground" laws the modern equivalent of Coke's liberty of the house now attaches to your car as well, so that you can legally defend yourself against carjackers with deadly force.

My thanks to Professor Renee Lettow Lerner for her insights on stand-your-ground statutes and legal history generally.

Without further ado, Semayne's Case.

NASA urban legends

NASA did not invent most of the things they are popularly given credit for.

Another good use for pseudonyms

To stay alive.

Law of the dominant paradigm

This is from a very old Usenet post of mine:

I can only mention [in reply to a previous post] my Law of the Dominant Paradigm:

Given opposing opinions with equal evidence in their favor, the less popular opinion is more likely to be correct.

To see why this is so, consider how evidence -- facts, data, observations, etc. are obtained and transmitted by human culture. Each observer and transmitter passes on a filtered version of the evidence, either consiously or unconsiously, to fit a particular paradigm. If most of the information gatherers in a society -- journalists, academicians, writers, movie studios, etc. -- subscribe to one out of several possible opinions, it is natural to expect that more evidence will be gathered that supports that opinion than the others, even if the some of the other opinions have equal validity. This does not mean that evidence is useless; it means that evidence is a function both of the reality and the paradigms held by the information gatherers. Evidence given in an argument must be adjusted by the resources devoted to gathering evidence in favor of each opinion. The amount of bias caused by the dominant paradigm effect is not well-defined, but an extremely new or unpopular opinion is likely to have little evidence in its favor, since little has been done to gather such evidence.

On the net, it is very easy to fall into the mindset of simply agreeing with and copying those already dominant on the net. Far more fruitful are original ideas, disagreements, and working to find evidence for unpopular and new opinions to determine their worth.

An international non-delegation doctrine

The D.C. Circuit has held that Congress cannot delegate lawmaking power to an international organization. The case is a lawsuit brought by an environmental group against the U.S. Environmental Protection Agency (EPA) for an alleged violation of the Montreal Protocol. The group argued that the EPA violated "decisions," or agreements that have been negotiated by party countries since ratification of the Protocol, defining "critical uses" which would be exempt from the general ban on the ozone-eating chemical methyl bromide. Some choice quotes:

If the “decisions” [further agreements made after the treaty was ratified] are “law” – enforceable in federal court like statutes or legislative rules – then Congress either has delegated lawmaking authority to an international body or authorized amendments to a treaty without presidential signature or Senate ratification, in violation of Article II of the Constitution. The Supreme Court has not determined whether decisions of an international body created by treaty are judicially enforceable. But there is a close analogy in this court...we held that rulings of the [International Court of Justice] do not provide “substantive legal standards for reviewing agency actions,” because the rulings, though authorized by the ratified treaty, were not themselves self-executing treaties. [citations elided]....

A holding that the Parties’ postratification side agreements were “law” would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers...

To illustrate, suppose the President signed and the Senate ratified a treaty with Germany and France to conserve fossil fuel. How this is to be accomplished the treaty does not specify. In a later meeting of representatives of the signatory countries at the United Nations, a consensus is reached to lower the speed limits on all major highways of the signatory nations to a maximum of 45 miles per hour. No one would say that United States law has thus been made.

The court makes an interesting distinction between using an international organization's "decisions" to interpret ratified (and thus binding) treaty language and enforcing them as law itself:

Like any interpretive tool ... the “decisions” are useful only to the extent they shed light on ambiguous terms in the Protocol. But the details of the critical-use exemption are not ambiguous. They are nonexistent. The “decisions” do not interpret treaty language. They fill in treaty gaps.

The court then makes a good analogy from contract law to treaty law:

Article 2H(5) thus constitutes an “agreement to agree.” The parties agree in the Protocol to reach an agreement concerning the types of uses for which new production and consumption will be permitted [i.e. the critical use exemption], and the amounts that will be permitted. “Agreements to agree” are usually not enforceable in contract. (“A treaty is in its nature a contract between . . . nations.”). And the fruits of those agreements are enforceable only to the extent that they themselves are contracts. There is no doubt that the “decisions” are not treaties. [citations elided]

The court goes on to interpret the language of the Montreal Protocol to be consistent with the non-delegation doctrine, and thus as not authorizing courts to enforce post-ratification "consensus agreements": they "are international political commitments rather than judicially enforceable domestic law."

This is a great decision, not because it preserves "sovereignty," but because it recognizes that a strong non-delegation doctrine is crucial to allocating Constitutional powers where the Framers intended them to be allocated.

For more on the non-delegation doctrine, see my paper origins of the non-delegation doctrine. HT: Opinio Juris.

Laptop searches at will at U.S. customs

If you leave from or arrive into at least the 4th, 5th, or 9th Circuits (see map), your laptop can be searched at will, reports Orin Kerr, yet another talented law prof at my alma mater. This incident in Canada also involved a laptop scan as well as interrogation into possible libertarian sympathies. Of course, the scan of your laptop need not be restricted to child porn. Until we get the Fourth Amendment back, you can get some of its effect back by using TrueCrypt. Or just improve your odds of privacy by leaving the laptop at home and using something less conspicuous.