Gang Violence and Terrorism

Jonathan Hafetz

Terrorism is largely the province of federal law. But a little-noticed decision from the New York Court of Appeals (the State’s highest court) issued earlier this month makes an important contribution to the field. The case, People v. Morales, involves an expansive—and novel—interpretation of the crime of terrorism. Following a gang-related shooting in the Bronx that killed a 10-year-old-girl and paralyzed another victim, the district attorney charged gang members under New York’s anti-terrorism statute, enacted after 9/11. The prosecution argued that the defendants, who were from one of the most feared Mexican gangs in the Bronx, had committed a “crime of terrorism” because their intent was “to intimidate or coerce a civilian population,” namely the Mexican-Americans who resided within the gang’s geographic area. The jury convicted.

In reversing the convictions, the Court of Appeals underscored the potential breadth of the prosecution’s theory. “The specter of ‘terrorism,’” it explained, could be invoked “every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate’s soldier.” The court, moreover, noted that the legislative history failed to support the statute’s use to address gang-on-gang violence. (The legislature instead cited, for example, the 9/11 attacks, the 1998 bombings of American embassies in Kenya and Tanzania, and the 1995 destruction of the Oklahoma City federal office building as crimes of terrorism). The court also reversed the defendants’ convictions for the underlying offenses specified in the terrorism counts (murder, manslaughter, etc.), finding that the terrorism charges allowed the prosecution to introduce highly prejudicial evidence about the gang’s prior criminal acts that would otherwise have been inadmissible.

Gang violence causes great harm to and sows fears within urban communities across the country. But treating gang violence as a crime of terrorism would have significant—and often unwelcome—effects. It risks transforming many incidents of gang violence and other street crimes into acts of terrorism, even where the violence was not intended to create fear among the general population or lacked a political motivation. While this might enhance prosecutorial power, it could undermine other law enforcement efforts to reduce gang activity, which often involve a combination of traditional criminal sanctions and gang-prevention programs (as detailed in an amicus brief submitted by NYU’s Center on the Administration of Criminal Law). At the same time, treating gang violence as terrorism would alter collective understandings of the type of acts—the deliberate and ideologically motivated targeting of the civilian population—viewed as terrorism, potentially diluting the exceptional stigma attached to those acts and undermining public support for anti-terrorism efforts generally.

Posted 10:16 AM by Jonathan Hafetz [link]

Would a serious country place John Boehner two heartbeats from the Presidency?

Sandy Levinson

Under the current Succession in Office Act, the Speaker of the House would succeed to the Presidency in case something happened to both the President and Vice President.  Akhil Reed Amar makes an interesting argument that the Act is unconstitutional, though this has been disputed by Seth Barrett Tillman.  But although the constitutional question is surely of interest to constitutional theory buffs, it is near-irrelevant to most people.  For them, the question is (and perhaps should be) the wisdom of some of our institutions rather than their pure legality.  As almost everyone on this list knows, I think that a lot of our Constitution is stupid (or worse), but the point is that the relevant provisions--such as, for starters, delaying Inauguration until January 20, which would have placed us, yet once more, in the position of having an even more terminally dysfunctional government had Mitt Romney been elected about six weeks ago but had no legal authority for yet another month)  being without a truly functioning government--raise no "legal questions" as such.

So, even assuming that the Succession in Office Act, contrary to Amar's analysis, is constitutional, it is still terminally stupid, both in theory and in raw, brute fact.  The theoretical objection comes from the fact that changes in party control of the White House should be by election, not by the vagaries of sickness (or assassination), and with some frequency in recent years the Speaker has been a member of the Opposition Party (Gingrich, Hastert, Pelosi, and now Boehner, most recently, though, of course, all Republican Presidents since Hoover have faced Democratic Speakers for most or all of their presidencies).  There is also the fact that whatever the skill set required to be Speaker, there is literally no reason in the world to believe that it overlaps substantially with the skill set required to be President, especially in the heightened circumstances that such succession would be occurring in.

But then, of course, there is the particular Speaker himself.  Would anyone on this list, Democratic, Republican, Tea Party, or whatever, list John Boehner as anyone that any rational person/republic would consider as President?  I regard this as a rhetorical question, but I'll be genuinely interested if even the most oppositionist regular discussants take up the cudgels for Speaker Boehner.  (I'm not really interested in hearing any rhetorical displays about whether Speakers Pelosi, Wright, or O'Neil, among others were any more qualifies.  I want to know who, if anyone, would breathe more easily if John Boehner became President of the United States--unlike, say, Secretaries of State Powell, Rice, and Clinton, who would all have been next in line under the old Succession in Office Act repealed in 1947 in a fit of "democratic abstractionism" because Harry Truman and others thought it desirable that the President be an elected official rather than someone merely nominated by the President and confirmed by the Senate (though this was precisely the position of both Gerald Ford and Nelson Rockefeller, the only two "beneficiaries" of the 25th Amendment process adopted in the aftermath of JFK's assassination).  He appears to be, by all accounts, an uncommonly provincial person.  If he has ever traveled abroad, for example, there is no record of it in the New York Times stories I was able to call up.  (A golfing excursion to Scotland doesn't really count.)  If he has ever read a serious book on economics, I'd be more than a bit surprised.  He seems to be a classic party hack, totally unfit to represent our country in serious negotiations (unlike, say, even Mitt Romney, who one has to presume is more intelligent and thoughtful than the absolutely egregious persona he opportunistically adopted in order to win his ultimately worthless nomination). 

Note that this is one time I'm not blaming the Constitution for this particular idiocy of the American political system; indeed, Amar argues that the Constitution, correctly understood, would protect us from the spectacle of a Boehner presidency through succession. 

We could have a separate discussion, incidentally, about whether Pat Leahy should be three heartbeats away.  I don't think that Succession by the President pro Tem of the Senate makes any more sense than Succession by the Speaker (and would be just as unconstitutional if one accepts Amar's argument), but at least Leahy, by all accounts, is still fully functioning, unlike such recent potential presidents as Strom Thurmond and Robert Byrd.  One can understand why the Senate has adopted a seniority rule to designate Presidents pro Tem, but it is just one more piece of evidence that members of the Congress simply do not see any duty to think of the Succession in Office Act and its implications with the slightest bit of seriousness.  It's all very discouraging.
Posted 6:26 PM by Sandy Levinson [link] (31) comments

Is America Governable? (II)

Sandy Levinson

Posted 12:59 PM by Sandy Levinson [link] (18) comments

"Is America Governable?"

Sandy Levinson

 



 

Posted 3:44 PM by Sandy Levinson [link]

Majority of a Majority

Gerard N. Magliocca

The latest breakdown of the fiscal cliff negotiations illustrates the problems created by another unwritten constitutional rule--no bill may be brought to the House floor unless it is supported by a majority of the majority party.  It is possible that a budget measure could pass the House with the support of most Democrats and some Republicans, but that is not an option for the Speaker. The practice of requiring a majority of the House majority operates as a minority veto that is even more lopsided than the Senate filibuster, since it means that (typically) less than a third of the House can block action.

What is the source of this venerable tradition?  The answer is that Dennis Hastert came up with this about ten years ago.  (I must admit that I don't know if the Democrats imposed a similar requirement when they ran the House under Nancy Pelosi).  Not exactly a foundational principle of the Republic.

There is a way around this obstacle.  A discharge petition can be signed by a majority of the entire House to force a bill to the floor, which is what was done (or threatened) to overcome committee chairs who tried to bottle up civil rights legislation in the 1960s. Of course, a discharge petition cannot be put forward until there is an actual bill to debate.



Posted 8:43 AM by Gerard N. Magliocca [link] (3) comments

Guns and Courts

Jason Mazzone

People who spend their lives reading Supreme Court opinions sometimes end up imagining that the Supreme Court is responsible for everything, good and bad, that happens in American politics and society. Since the Sandy Hook shooting, various commentators have asserted that the five justices in the majority in the recent Second Amendment cases of DC v. Heller (2008) and McDonald v. City of Chicago (2010) bear responsibility for Adam Lanza's actions. Professor Geoffrey Stone now writes:

By distorting the text and meaning of the Second Amendment and ignoring the common sense judgement of the rest of the civilised world, the five conservative justices fed into and reinforced the frenzy about gun ownership in America. And by preventing American citizens from engaging freely in the democratic process to decide for themselves what controls on guns are most sensible, those five justices tragically and needlessly set America apart from the rest of the civilised world — with predictable consequences. 

Read more »
Posted 6:38 PM by Jason Mazzone [link] (18) comments

Robert Bork and the Contingencies of History

JB

Robert Bork's passing reminds us of how much the development of constitutional doctrine depends on contingencies.   Had Ronald Reagan nominated Robert Bork instead of Antonin Scalia in 1986 upon Chief Justice Burger's retirement, the odds would have been much greater that Bork would have been confirmed. After all, Republicans would have been replacing one conservative with another (although Bork was considerably more conservative than Burger by that point) and, equally important, Republicans controlled the Senate.

Then, in 1987, when Lewis Powell retired, Antonin Scalia might have had a far easier path to confirmation than Bork did, even though by that point the Democrats controlled the Senate.  You may recall, for example, that Republicans made much of the fact that Scalia was the first Italian-American nominated to the Court. In addition, Scalia had not fired Archibald Cox during the Saturday Night Massacre, and although he was known as an implacable foe of Roe v. Wade, he lacked Bork's remarkable paper trail of opposition to civil rights and civil liberties.  Scalia had not, for example, opposed the 1964 Civil Rights Act on grounds of individual liberty (Bork later recanted his opposition), and Scalia had not argued in a famous law review article that non-political speech was unprotected by the First Amendment.

With both Bork and Scalia on the Court, the history of constitutional doctrine would probably have been quite different. For one thing, Roe v. Wade would probably have been overturned within five or six years.

This last statement, of course, conceals its own contingencies. We don't know whether O'Connor would have voted the same way she did in Webster and Casey, and we don't know whether George H.W. Bush would have nominated Souter and Thomas to replace Brennan and Marshall. If Bork was successfully nominated in 1986, and Scalia avoided the same treatment that Bork received in 1987, then the Bork hearings wouldn't have happened, and no precedent of bitter and polarizing confirmation battles would have been established.

Without the bitterness of the Bork confirmation battle, George H.W. Bush might not have felt gun shy about nominating a more overtly conservative candidate in 1990, when William Brennan retired.  Therefore there might have been no "stealth nomination" of David Souter-- and we might have gotten someone like Ken Starr, or Edith Jones, or even Clarence Thomas a year early. Later presidents might not have been so eager to nominate only young candidates with no paper trail, thus expanding the pool of talent available to the Court.  (Bork was about 60 when he was nominated; later candidates have been considerably younger.)

Thus, flipping the order of the Bork and Scalia nominations might have allowed Presidents Reagan and Bush to stock the Supreme Court with reliable movement conservatives instead of Anthony Kennedy and David Souter. This, in turn, might have led to a conservative constitutional revolution that was much broader and deeper than what actually occurred during the Rehnquist Court. A five person majority consisting of Rehnquist, Bork, Scalia, Thomas, and Jones might have cut a broad swath through existing liberal doctrines, and the cause of gay rights would have made almost no progress.

This didn't happen. Reagan miscalculated, or rather, he didn't foresee the Iran-Contra scandal and losing the Senate in the 1986 elections. Democrats saw their chance and fought hard to defeat Bork. Then, after Bork was defeated, the fracas over Douglas Ginsburg's marijuana use (this was 1987 after all) wasted more precious time, and by then the 1988 elections were less than a year away. Eager to put the appointment mess behind him, Reagan nominated the more moderate Anthony Kennedy. George H.W. Bush chose David Souter to avoid a replay of the Bork nomination, and the rest, as they say, is history.

In Bork's subsequent career as an author and pundit he moved decisively from economic libertarian to social and religious conservative, and he became increasingly bitter and disdainful of what he viewed as the decline of American culture. This does not speak well for what he would have done as a Supreme Court Justice. Indeed, he might have made Scalia seem positively cheerful and moderate by comparison.

Despite Bork's defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more. I rarely agree with Thomas's views, but my study of Thomas's opinions in the past twenty years suggests to me that he may actually be a more successful and intellectually interesting Justice than even Bork would have been. (And that, of course, is saying something, given Bork's background as Yale law professor and Solicitor General).

What conservatives did not get, however, was five movement conservatives on the Court. If they had, we might be speaking of the post-1987 period the way we speak of the New Deal Revolution or the glory days of the Warren Court as a period of significant constitutional transformation. As it is, the Rehnquist and Roberts Courts have moved doctrine considerably to the right in a number of areas. One can only imagine what a Court staffed with Bork, Scalia and Thomas might have done.


Posted 8:41 PM by JB [link]

The Enduring Image of the Warren Court

Mark Tushnet

Posted 4:42 PM by Mark Tushnet [link]

"If your Constitution is so good, how come you're sending drones against us?"

Mark Tushnet

Posted 4:35 PM by Mark Tushnet [link]

Instagovernment?

Jason Mazzone

Yesterday, Instagram, the popular photo sharing site owned now by Facebook, announced new terms of service effective January 13 under which Instagram purported to gain the right to license to advertisers photos users had posted to the site unless users opted out of the arrangement by closing their accounts. Instagram users around the web immediately voiced strong opposition to this proposal to make money off their photos. The collective outrage worked. A few hours ago, Instagram abandoned its plan with a face-saving announcement that the language contained in the proposed terms of service had been unclear and misinterpreted and that the company had no intention of hawking users' photos. I have written a lot about overreaching claims with respect to intellectual property. Even so, Instagram's audacious plan--to confer upon itself by a contract of adhesion licensing rights and immunity from violations of rights of publicity claims--was extraordinary. More striking, though, was the 24-hour correction. Imagine if government worked that way.          
Posted 9:02 PM by Jason Mazzone [link] (5) comments

Gun Control: The Missing Movement

Jason Mazzone

Given the renewed calls for Washington/Democrats/Obama to do something about firearms, I recommend Kristin Goss's 2008 book, Disarmed: The Missing Movement for Gun Control in America. Goss (a colleague from when we both worked at Harvard for Robert Putnam and now a professor at Duke University) explains persuasively why there has never been an organized and effective gun control movement in the United States. Goss's account is rich and complex and it will give pause to anybody who thinks that all that is needed to enact stricter gun laws is to overcome the political influence of the NRA in Washington. Goss shows that a mixture of institutional and historical factors explains why the gun control movement has been "missing." Two factors are especially striking. First, Goss shows, there has been a historical shift in where reformists look to for resources. A century ago, well-organized women's groups led and financed social reforms, often in conjunction with churches. Today, and since the end of the twentieth century, reformers depend much more heavily on professionally-staffed foundations for resources. Foundations, however, are reluctant to take on risky high-profile political movements like gun control. In sum, professionalization of reform undermines transformative endeavors. Second, Goss shows, gun-control leaders in the 1970s made a disastrous error of calculation. They focused their efforts on a single goal of a federal ban on handguns. In so doing, they failed to develop a grassroots network of engaged citizens in state and local chapters to pursue localized reform. Focusing on handguns also alienated vast numbers of Americans who might otherwise be inclined to volunteer in efforts to secure more modest goals. In other words, by going big at the federal level, reformists overlooked the possibility of incremental reforms and local successes. By the time gun control reformers had dropped their focus on handguns and learned the value of local organizing, the NRA had filled the void by successfully pursuing state laws that prohibit local regulation. Read Goss to understand how we got to where we are now and to identify the background factors that work against any simple reforms.          
Posted 9:40 PM by Jason Mazzone [link] (78) comments