Does Federal Law Actually Preempt Relaxed State Marijuana Laws?

Posted on Categories Congress & Congressional Power, Constitutional Law, Criminal Law & Process, Federalism, Public, Speakers at Marquette3 Comments on Does Federal Law Actually Preempt Relaxed State Marijuana Laws?

Federalism & MarijuanaThe Cato Institute’s Ilya Shapiro recently spoke at the Law School concerning the status of relaxed state marijuana laws in light of the federal Controlled Substances Act’s continued prohibition of activities that these state laws now allow. This is a timely question with, it turns out, a less-than-certain answer. More precisely, it demands an answer that is more nuanced, and less categorical, than one might initially be inclined to give.

One’s initial answer is likely that these state laws are preempted—that is, rendered void and unenforceable—because of the federal statute. It is conventional constitutional doctrine, after all, that the U.S. Constitution’s Supremacy Clause makes valid federal law supreme over conflicting state law. Moreover, because the U.S. Supreme Court in Gonzales v. Raich (2005) deemed the federal marijuana prohibition to be a valid exercise of Congress’ commerce power, the specific question of whether state marijuana laws are vulnerable to preemption seems already to have been answered.

Mr. Shapiro makes an important observation, however. Continue reading “Does Federal Law Actually Preempt Relaxed State Marijuana Laws?”

The “Feisty” Secretary Clinton—An Object of Media Bias?

Posted on Categories Feminism, Media & Journalism, Public3 Comments on The “Feisty” Secretary Clinton—An Object of Media Bias?

Regarding the recent Senate committee hearings on the September 2012 attacks that killed four Americans in Benghazi, Libya, several major media outlets described Secretary of State Hillary Clinton as, among other things, “feisty.” Strictly from a definitional standpoint, the media’s characterization appears unobjectionable. Webster’s New Universal Unabridged Dictionary, for example, most relevantly defines “feisty” as “quarrelsome, aggressive, belligerent, etc.” and these words arguably capture at least some aspects of Secretary Clinton’s remarks.

A modest examination of American English usage suggests that “feisty” is commonly used to refer to the behavior or character of people in a group (e.g., “the candidates had a feisty debate” or “it sure is a feisty crowd”) or to an animal, particularly a small rambunctious animal (e.g., “that there is one feisty critter”). Indeed, the word’s proximate origins concern the temperamental nature of mixed-breed dogs, and its earliest origins concern the malodorous passing of gas—hence a “fisting hound” in late 17th-century England was an undesirably flatulent dog.

The term “feisty” can also be used, of course, to describe the demeanor or behavior of an individual person. When used in that way, however, it seems more frequently to describe the elderly (“feisty octogenarian” retrieved 17,200 Google hits), the relatively young, and—it appears—women, or at least certain women. Continue reading “The “Feisty” Secretary Clinton—An Object of Media Bias?”

The Emancipation Proclamation—Sesquicentennial Reflections

Posted on Categories Civil Rights, Constitutional Law, Legacies of Lincoln, Legal History, President & Executive Branch, PublicLeave a comment» on The Emancipation Proclamation—Sesquicentennial Reflections

January 1, 2013, marks the 150th anniversary of President Lincoln’s final Emancipation Proclamation, which declared the freedom of slaves in rebellious states. The decree was controversial in Lincoln’s time and seems often to be misunderstood in ours. The objective of this blog post, accordingly, is to survey the context, chronology, and consequences of the Proclamation as we observe the sesquicentennial of its issuance.

The Context—Summer 1861 through Fall 1862

Through the latter half of 1861 and well into 1862, it was not at all self-evident that the Union would win the Civil War. Particularly in the east, the most symbolic military theater, the Confederate Army secured numerous victories or military stalemates, the latter of which were essentially as advantageous for it as the former. Despite having superior financial and industrial resources, the Union Army’s deficit of aggressive battlefield leadership, lack of well-trained or seasoned troops, and comparative unfamiliarity with the terrain repeatedly hampered Union military actions.

Lincoln was painfully cognizant of these problems, especially the operational timidity of his top brass, purportedly remarking at one point that if General George B. McClellan was not going to use the Army of the Potomac, Lincoln “would like to borrow it, provided he could see how it could be made to do something.” President Lincoln also knew that popular support for the war, as casualties mounted and the prospect of national conscription loomed, could not long endure without visible Union success in the east. At the same time, the President was aware that the Confederacy was seeking the recognition and material support of European nations such as England and France, and that every Confederate victory appeared to make this objective more attainable.

It was this array of circumstances, among others, that prompted President Lincoln to take the manifestly drastic step of issuing the Emancipation Proclamation. Only against this political and military backdrop, in fact, can the Proclamation and its timing be fully comprehended. In order to explain why this is so, it is necessary to walk through the events leading up to the Proclamation and then to examine the substance and scope of the Proclamation itself. Continue reading “The Emancipation Proclamation—Sesquicentennial Reflections”

This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises

Posted on Categories Congress & Congressional Power, Constitutional Law, Legal History, Public, Race & Law, U.S. Supreme Court2 Comments on This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises

On December 14, 1819, Alabama was admitted to the Union as the twenty-second state. The admission itself was not especially remarkable. Various parts of present-day Alabama had been settled by the French (and later the British) since the early 1700s, and explored by the Spanish as early as the 1540s. The territory to the west, moreover, had already been admitted as the states of Mississippi (1817) and Louisiana (1814). Not least important, Alabama’s soil and climate were amenable to cotton production, which was accelerating due to technological innovation and increased demand, such that the years preceding Alabama’s statehood had seen substantial growth in the region’s population.

What made Alabama’s admission significant, politically and constitutionally, was the situation it then posed for Congress regarding the admission of subsequent states, particularly west of the Mississippi River. Specifically, the nation was now evenly divided between free and slave states, having eleven of each. Given a federal Senate based on equal voting for every state regardless of population, this resulting parity of free and slave states made the admission of any additional state an opportunity either to expand or to restrict slavery. The South especially perceived the need to maintain parity as its influence in the House of Representatives declined relative to the North, which was experiencing (and would continue to experience) more immigration as well as greater industrial and economic growth.

This dynamic, in turn, set the stage for a new era of anti- and pro-slavery compromises and eventually—as these compromises less and less alleviated sectional tensions—a rather bloody civil war. Continue reading “This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises”

Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians

Posted on Categories Criminal Law & Process, Federal Indian Law, Public, U.S. Supreme Court1 Comment on Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians

Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. The purpose of this post, and of the series of which it is a part, is to identify and examine such anomalies in an effort to acquaint readers with the metes and bounds of Federal Indian Law, while shedding some light on the origins and perhaps the future of this unique legal realm.

The prior post examined one such anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. In this, the second installment in the series, another topic of significant contemporary interest will be surveyed. This is the oddly diminished character of Indian tribal sovereignty and, in particular, the extent to which tribes, in their own territories, lack criminal and civil authority over non-Indians or non-tribal members.

The capacity to enact and enforce laws is, of course, one of the hallmarks of sovereignty within the Western political tradition. This includes both criminal laws and civil laws, the latter often being divided into powers of regulation, taxation, and adjudication. It is typically accepted, moreover, that the reach of a sovereign’s laws extends along two axes: citizenship and territory. That is, the sovereign has the authority to govern not only its citizens but also all others who enter its territory. Thus, for example, inquiries into the jurisdiction of courts over a person or his property ordinarily entail an examination of the person’s citizenship and/or the relationship between the person’s conduct or property and the territory of the sovereign to which the courts belong.

In recent decades, however, Indian tribal sovereignty has increasingly been confined to a single axis—that of citizenship—leaving tribes largely powerless to enforce their laws against non-Indians who, within the tribe’s territory, commit criminal conduct or engage in activities that would normally be susceptible to regulation, taxation, or adjudication. Perhaps surprisingly, the institution primarily responsible for this diminishing conception of tribal sovereignty is not Congress, which the Supreme Court has repeatedly described as having “plenary power” over Indian affairs, but rather the Court itself. Continue reading “Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians”

Religious Objections to Autopsies—A Virtual Solution?

Posted on Categories Constitutional Law, Criminal Law & Process, First Amendment, Public, Religion & LawLeave a comment» on Religious Objections to Autopsies—A Virtual Solution?

“[I]n this world,” wrote Benjamin Franklin famously, “nothing can be said to be certain, except death and taxes.” Were we to add a third certainty to the list, it might be that law will have something to say about the other two. To be sure, the law has quite a bit to say about death, including a mandate, under certain circumstances, to determine the cause of one’s demise.

Often such determinations entail autopsies or postmortem examinations, but sometimes these examinations are offensive to the decedent’s religious beliefs or to those of surviving family members. In such situations, it has frequently been the case that the religious beliefs have had to yield to the interests of the government or the public.

A few years ago, Kelly McAndrews (MU Law 2010) and I gave a presentation on religious objections to autopsies at a conference of the Wisconsin Coroners and Medical Examiners Association. (At the time, Kelly was the Medical Examiner for Washington County, Wisconsin.) We noted that, among other groups in Wisconsin, the Hmong and Orthodox Jews would likely have strong objections to autopsies, while that the Old Order Amish, Hindus, and some Muslims, American Indians, and Christian Scientists may have objections ranging from minor to moderate in their intensity.

Potential bases for objection, varying by religion, include: concerns about delay in the preparation and burial of the body as prescribed by religious law or tradition; concerns about the mutilation, desecration, or disturbance of the body (e.g., the body belongs to God and should not be altered, the body is needed intact for successful passage to the afterlife, or the body is needed intact in the afterlife itself); and concerns about spiritual harm to the surviving relatives for failing to take care of the decedent in a religiously proper manner. Continue reading “Religious Objections to Autopsies—A Virtual Solution?”

This Day in Legal History—September 28, 1918

Posted on Categories Legal Ethics, Legal History, Public1 Comment on This Day in Legal History—September 28, 1918

On September 28, 1918, outside of the French village of Marcoing, British Private Henry Tandley of the 5th Duke of Wellington Regiment came across an escaping wounded German soldier. The encounter took place near the end of the British capture of the village, and thus the military situation, though winding down, was still very much rife with hostilities. The soldier was presumably armed and posed a potential threat to Private Tandley and his fellow infantrymen.

Private Tandley was presented at that moment with a serious ethical question: shoot preemptively in self-defense, not knowing the capability of the German soldier or the extent to which other German soldiers were present, or spare the soldier’s life and let him return to his unit, either to survive or to die in the arms of his own comrades. Private Tandley did not then know that an armistice with Germany would come within a matter of weeks, nor did he know whether the soldier had a wife and children to whom he might return after the war. He knew nothing of this German soldier other than that he was another human being who was injured.

Private Tandley decided to spare the soldier’s life, and the soldier continued on his way, apparently nodding to Tandley in appreciation.

This story is presented in here because, if Tandley’s account is correct, his decision to spare the life of this German soldier changed the course of the 20th century, with vast consequences not only for the law but also for every other aspect of culture and society across much of the world. Continue reading “This Day in Legal History—September 28, 1918”

Legal Anomalies in Federal Indian Law, Part I—Equal Protection

Posted on Categories Constitutional Interpretation, Constitutional Law, Federal Indian Law, Public, Race & Law3 Comments on Legal Anomalies in Federal Indian Law, Part I—Equal Protection

Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. Such anomalies or aberrations, though frequently noted, have seldom if ever been systematically delineated in cases or in legal scholarship. The purpose of this and succeeding blog posts is to identify and examine several of these anomalies, the hope being that readers will gain a better sense of the unique topography of Federal Indian Law and at least some of the reasons that have brought it about.

Examined in this first post will be one such apparent anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. This issue goes to the heart of Federal Indian Law, which is largely embodied as statutes in Title 25 of the U.S. Code (denominated “Indians”) and implemented through rules and regulations in Title 25 of the Code of Federal Regulations (also denominated “Indians”). To the extent that the classification of “Indian” ordinarily if not always includes a component of race, ethnicity, ancestry, or perhaps national origin, its use in the federal Code and Regulations—including its derivative use in judicial opinions—would seem presumptively to run afoul of constitutional as well as statutory proscriptions against discrimination on the basis of race, ethnicity, ancestry, and the like. After all, were one to encounter a Title of the U.S. Code designated “African Americans” or “Latinos” or “Germans,” an eyebrow, if not two, would almost certainly be raised in response. Continue reading “Legal Anomalies in Federal Indian Law, Part I—Equal Protection”

Effective Assistance of Counsel and Tribal Courts—A Different Standard?

Posted on Categories Constitutional Law, Criminal Law & Process, Federal Indian Law, PublicLeave a comment» on Effective Assistance of Counsel and Tribal Courts—A Different Standard?

Virtually none of the U.S. Constitution’s guarantees or prohibitions applies to the actions of Indian tribal governments when those governments are exercising their inherent or retained powers. For this reason, among others, Congress in 1968 passed the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, which imposes on tribal governments most though not all of the guarantees found in the Bill of Rights and 14th Amendment. After almost 45 years, however, it remains uncertain whether or to what extent ICRA’s statutory guarantees must parallel the interpretations given to the respective constitutional guarantees on which they are based.

Among ICRA’s original provisions is a command that “[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person in a criminal proceeding the right . . . at his own expense to have the assistance of counsel for his defense . . . .” This, of course, is an analog to the 6th Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence,” which the U.S. Supreme Court has interpreted as requiring “reasonably effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), by “an advocate who is . . . a member of the bar,” i.e., a licensed attorney. Wheat v. United States, 486 U.S. 153, 159 (1988).

In the recent case of Jackson v. Tracy, No. CV 11–00448–PHX–FJM, 2012 WL 3704698 (D. Ariz. Aug. 28, 2012), a federal district court has held that ICRA’s assistance-of-counsel guarantee requires neither that one’s advocate be a licensed attorney nor that the advocate be held to the standard of a reasonably effective attorney. Continue reading “Effective Assistance of Counsel and Tribal Courts—A Different Standard?”

Restricting Liberty in the Name of Equality

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, First Amendment, Public, Religion & Law7 Comments on Restricting Liberty in the Name of Equality

Robust equality is a relatively recent part of the American constitutional landscape, rooted in a limited way in the Declaration of Independence and then formally embraced in the Constitution’s 14th Amendment, ratified in 1868, though it took another near century to buttress that guarantee with meaningful legal force. By contrast, liberty—e.g., of religious exercise, of speech, and of the press—and its attendant guarantee of non-deprivation without due process of law, go back to the nation’s founding if not decades and in some cases centuries before.

In recent years, however, with great domestic and international dynamics at work, there has ascended into prominence and influence a norm of equality or nondiscrimination, or an unabashedly pursued equality of outcome, effectively supplanting the centrality of individual or group liberty as the citizen’s core constitutional guarantees.

Part of this has been achieved by legitimate historical and other academic research and theorizing, though it should be noted that at times the neutrality of those undertaking such efforts may rightly be questioned. Part of this sea change, though, has come from a public and university-sanctioned tolerance for the suppression of viewpoints that conflict with the modern ethos of equality, variously defined. Many of these developments, moreover, have resulted from outside pressures—from interest groups to like-minded accrediting organizations—that seemingly leave the institutions with little choice but to comply with their dictates.

As repeatedly documented by, among others groups, the Foundation for Individual Rights in Education and the Center for Campus Free Speech, colleges and universities ironically have sometimes been the most egregious censors of speech under the banner of equality (or of perceived equal treatment), which perversely betrays a subordination of the time-honored values of truth-seeking and knowledge propagation to relatively fleeting interest-group pressures and ideological expediency.

Continue reading “Restricting Liberty in the Name of Equality”

The Civil Jurisdiction of Indian Tribes

Posted on Categories Civil Rights, Congress & Congressional Power, Federal Indian Law, Public2 Comments on The Civil Jurisdiction of Indian Tribes

This is the fourth in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights; the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection; and the third explored the criminal jurisdiction of tribes. This post will examine the civil jurisdiction of tribes, both over members and especially over non-members, in each its three major forms: regulation, taxation, and adjudication.

As noted in the last post, tribal jurisdiction (not unlike federal and state jurisdiction) is uniquely limited in a manner that reflects the place and circumstances of tribes on the American legal landscape. In particular, each tribe is said to retain its original or inherent jurisdiction—the sovereign authority possessed prior to European contact and the subsequent formation of the United States—except insofar as such jurisdiction has been (1) relinquished or ceded by tribe itself through a treaty or other agreement, (2) expressly abrogated or taken away by Congress, or (3) deemed by the judiciary, especially the U.S. Supreme Court, to have been implicitly lost by virtue of the tribe’s historical circumstances and contemporary status. Continue reading “The Civil Jurisdiction of Indian Tribes”

The Criminal Jurisdiction of Indian Tribes

Posted on Categories Criminal Law & Process, Federal Indian Law, Federal Law & Legal System, Federalism, Public1 Comment on The Criminal Jurisdiction of Indian Tribes

This is the third in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights, while the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection. This post will explore the criminal jurisdiction of tribes, with the expectation that one or more future posts will similarly explore the criminal jurisdiction of the federal and state governments in relation to Indians or conduct on Indian lands.

Sovereignty, as conceptualized in the Western legal-political tradition, has customarily included the power to enact and enforce a criminal code against persons who, within the sovereign’s territory or against its citizenry, commit conduct injurious to health, safety, welfare, and morals. This is a theoretical standard, however, and today across the globe as well as in the United States—and not just with regard to Indian tribes—one can observe forms of sovereignty that include degrees of diminished (or less-than-plenary) criminal jurisdiction.

The most obvious domestic example involves the respective authority of the federal and state governments. Continue reading “The Criminal Jurisdiction of Indian Tribes”