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John Marshall has made his decision
now let him enforce it.
The quote, attributed to Andrew Jackson, summarizes the problem: How can a legal system make people obey it. The context was President Jackson ignoring a Supreme Court verdict in order to permit the seizure of Indian property and the forced transfer of its inhabitants to territory west of the Mississippi.
The Supreme Court has no army and no police force; enforcing verdicts is the job of the executive arm of government headed, at the Federal level, by the president. If the president refuses to do it and everyone under him goes along with his refusal, there is nothing the Justices can do. The land was seized, the inhabitants forced to move to the land that had been assigned to them, and a large number died on the way.
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The only solutions I can see in the framework of our legal system are for Congress to impeach the President, only possible if a sufficient majority of the Congress disapproves of what he is doing, for the voters to vote him, and perhaps his party, out at the next election, or for enough of his subordinates to choose loyalty to the law over loyalty to their chain of command and refuse to obey his orders. In the case of Jackson’s decision to ignore the verdict in Worcester v. Georgia none of those things happened.
One can imagine a system where the courts had their own enforcers, a greatly expanded version of the present bailiff system. But there would remain the problem of how to make the court enforcers obey the court if they did not wish to.
How to Enforce Unconstitutional Laws
Suppose the Supreme Court holds, as it did in District of Columbia v. Heller and McDonald v. City of Chicago, that the Second Amendment imposes severe limits on gun control legislation. Further suppose that the government and judiciary of a state, say New Jersey, is strongly in favor of legislation that violates those limits. The legislature passes a law which severely restricts the rights of gun owners. A gun owner sues. The case gradually works its way through the court system until it eventually reaches the Supreme Court, which finds the law in violation of the Constitution. The New Jersey legislature passes another law, restricting gun ownership in a different form with a different justification. Legally speaking they keep losing but, for an extended period of time, they are winning.
Consider such legislation at the city level. San Jose, where I live, passed a law requiring all gun owners to carry firearms liability insurance and pay an annual fee to go into a fund to pay costs associated with firearms crime. The city has defended the law on the grounds that firearms, like autos, sometimes impose cost on people, hence requiring liability insurance is legitimate. They have not yet announced what the fee will be but the liability policy, found online, costs me seventy-five dollars a year.
A few years ago I attended a city council meeting dealing with a previous regulation, one requiring all firearms to either have trigger locks or be in locked storage. Quite a number of people testified in favor of the law. Every one of them put the argument for the law in terms of problems with gun ownership, such as suicide, which would not be affected by a trigger lock. The objective of the law, as seen by the voters who supported it, was to make firearms ownership a little more expensive, a little less convenient, a little less common.
I do not know whether if the current law ever makes it to the Supreme Court it will be found consistent with the Second Amendment. I am confident that its actual purpose is to discourage gun ownership.
It occurred to me attending that meeting that what was being done was the equivalent on the left of the approach to abortion law of states that wanted to make abortion illegal but were constrained by Roe v. Wade. Their solution was to impose regulations on abortion that made it as inconvenient as possible for both providers and their patients. I did not follow that issue closely enough to know how such attempts fared with the Court but I presume that when and if the court ruled against them the states responded by trying to achieve the same result in some different form.
The best solution I have come up with for the problem is for Supreme Court verdicts to take three forms: Constitutional, unconstitutional, obviously unconstitutional. The obviously unconstitutional verdict would be for cases where, in the view of the justices, the legislators knew when they passed the law that if it made it to the Court it would be ruled unconstitutional. That verdict should probably require a supermajority, perhaps 6/3, perhaps unanimity. The result of the obviously verdict would be to make the state civilly liable for any costs that the law had imposed.
I do not know whether my proposal could be made consistent with sovereign immunity — even though I spent many years as a law professor I am an economist, not a lawyer — but it seems like a reasonable approach to solving that particular problem.
How to Get Away with Attempted Genocide
In 2008, a call came in to a Texas domestic abuse hot line by someone identifying herself as “Sarah.” She claimed to be a sixteen-year-old living on the Yearning for Zion Ranch, a community in Eldorado settled by the FLDS, an LDS sect that practiced polygamy. Law enforcement entered the property to search for “Sarah” — and did not find her. Within a few days it was discovered that the call was bogus, the caller not a sixteen year old girl in Texas being forced to marry an older man but a 33-year-old woman living in Colorado with a history of bogus phone calls. The Department of Family and Protective Services seized more than 400 children, from infants on up, male and female, refused to return them even after a Texas appeals court had unanimously ruled that the seizure was illegal, finally returned them when the verdict was confirmed by a unanimous ruling of the state Supreme Court.
The DFPS claimed two of the women in the ranch were pregnant minors without explaining that they were refusing to accept documentary evidence of age, so a minor meant anyone the said was a minor. Only after the two women had their children did they concede that both were adults, one eighteen and one twenty-two. The DFPS claimed that 31 of the minor women seized had had children. By the time the case got through the appeals court the number was down to 5. Throughout the case, most of the major media accepted without question the accounts given by the authorities.
The only basis offered for seizing male children was that they were being brought up to believe in polygamy. Judging by news stories at the time, mothers were being offered the possibility of getting their children back if they renounced their adherence to the FLDS.
Under current law, destroying a religion by taking away its children is genocide.
I covered the case in some detail on my blog as it was happening. The posts are still there. The parents eventually got their children back but the FLDS settlement in Texas was destroyed.
Arguably that was the purpose.
about three years ago, a local legislator introduced a package of bills to the legislature, some of which passed, intended to target the FLDS. They included an increase in the legal age of marriage with parental consent from fourteen to sixteen and raising polygamy to a felony. It is even possible, on this reading, that the CPS expected to eventually lose in the courts but believed, perhaps correctly, that they could impose large enough costs on the FLDS families in the process to persuade them to go somewhere else. (From my blog, 2008)
My reaction after following the story to the end was that the Department of Family and Protective Services had committed multiple crimes, including mass kidnapping of both minors and adults under color of law, and the responsible people should have been held criminally and civilly liable. As best I can tell, none of that happened.
This case, like others where criminal acts were committed under color of law, raises the question of who can and should be held responsible. Consider a case where a police officer has been told that a house is occupied by armed drug dealers and ordered to do a no-knock raid. He does, the occupant, legally armed, interprets what is happening as a home invasion and shoots at the invaders. The officer shoots back and kills one or more people.
I think it is clear that if, as in one real world case, the raid was based on fraudulent evidence, the person who committed the fraud should suffer both criminal penalties and civil liabilities. If it was the result of someone making an innocent mistake, writing down the wrong address, the person responsible should be liable for tortious loss of life but not criminally liable since there was no criminal intent. In either case, the police force in question should be civilly liable.
The problem with preventing deliberate violations of law by government actors is that it depends on the people responsible for enforcing the relevant legal rules disapproving of what was done. In the FLDS case the Texas court system ruled against continuing to hold the children — but nothing, so far as I can tell, was done to punish those responsible, even though at least some of them knew what they were doing was illegal, such as the woman who, in the legal procedure that preceded the seizure, testified under oath that some of the women in the ranch said they knew the (nonexistent) Sara. Criminal prosecution would have required prosecutors willing to be identified as on the side of the FLDS, politically and socially costly, would probably have resulted in an acquittal or mistrial since some or all jurors would have approved of driving the FLDS out, very possibly of suppressing their beliefs. Victims could have sued, but there too would be unlikely to prevail in a jury trial. Similarly in the arguably worse cases earlier of people convicted in cases of imaginary, often supposedly satanist, abuse in child care, where one of the prosecutors responsible ended up as U.S. Attorney General.
The cases that have been getting attention recently involve police officers who kill someone. Insofar as it happens in the course of doing things they are supposed to do, such as arresting people committing crimes, it is unlikely to result in criminal prosecution unless sufficiently obvious to come to public notice — in the George Floyd case resulting in riots and the threat of riots. In the civil context the issue arises in arguments about qualified immunity, the doctrine that holds police officers civilly immune unless what they did was something they should have known was illegal, with the question being one of how obvious its illegality should have been.
It's easy, after the fact, to feel moral indignation for misdeeds by government agents, hard to prevent them. One reason is that punishing the misdeeds requires a context where most of the people participating in the legal system, including prosecutors, judges, and jurors, want to. Another is that the risk of punishment, especially criminal punishment, may deter government agents from taking actions that could be interpreted by an imperfect legal system as criminal — arresting suspects who might be armed with the choice between shooting when the arresting officer thinks that the suspect is drawing a weapon and waiting to be certain at the risk of being shot. There seems to be some evidence of increased crime rates in response to reduced law enforcement effort after such cases.
Readers are invited to offer suggestions for dealing with the range of such cases, from a president who deliberately and openly defies a court verdict to a policeman too willing to interpret an innocent act as a suspect about to shoot him.
One final point, at a slight tangent. One of the oddities of the American legal system is that it deals with warrantless searches and similar violations of the Fourth Amendment not by punishing the violator but by making the evidence inadmissible, which in some cases means letting someone go free whom the evidence shows to be guilty. I have been told that this rule developed as a result of legal rules that made law enforcement agents effectively immune to tort prosecution. A modern policeman is taught how to procure evidence without having it declared inadmissible. A nineteenth century policeman was taught how to avoid doing things that would make him civilly liable.
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