This is a subject with so many angles and issues, it's hard to do it justice in a post.

Essentially Constitutional i8nterpretation encompasses several methods, some of which are textual, orinal intent, functional, historical and doctrinal. There are advantages and drawbacks to each.

The most basic problem with a universal adherence to original intent, which seeks to decide Constitutional cases by relying on the intent of the framers is that the framers' intentions are frequently diverse and ambiguous. This approach also falls short by ignoring the hundreds of delegates, who ratified the Bill of Rights. In many instances the debates that surrounded the ratification are more telling of an intent, and there are still contradictions about the meaning and application of terms. Also, it is important to note that the Founding Fathers never intende to have their judgment on interpreting the Constitution to be strictly used by future generations.

The notion that departing from original intent means that jurists can make Constitutional principles mean anything they want is nonsense. The doctrine of stare decisis places much more than an advisory influence on caselaw while allowing individual cases to be decided within its reasoning.

Scalia, who claims to be an originalist, opposing judicial activism, sheds the original intent cloak whenever he can advance his own agenda. Scalia changed the clear meaning of the 11th Amendment in order to kick a Native American tribe out of court by stating that the XI Amendment is understood, "to stand not so much for what it says, but for the presupposition of our Constitutional structurewhich it confirms." He'd have gone bonkers if another Justice used this language to support defendant rights.

You're right Kly. As I pointed out above and you addressed, the fact that the Constituion's ratification conventions generated several hundred amendments illustrates that many people had differing interpretations of the Constitution's provisions.

Sustantive due process is here to stay and engenders complaints only when one does not agree with the decision. I am sure that there were plenty of southern slave owners who applauded Roger Taney's substantive due process opinion in Scott v. Sanford.

You know what you get when a handful of judges move away from being strict constructionists to an "evolving document," based on case history, or through their own little interpretations?

Roe v Wade.

Need I say more?

How does a strict constructionist/originalist deal with the Ninth Amendment?

How does a strict constructionist/originalist deal with questions which never arose in 1789 and on which the Constitution is silent?

The Ninth Amendment stands in direct conflict with the underlying philosophy of the strict constructionist. When the Bill of Rights was drafted, the primary complaint that the States had was their fear that the enumerated rights would be regarded as an exhaustive list of rights of the people. As a result, the Ninth Amendment was drafted and included in the Bill of Rights. It is undeniable that there was a recognition of unenumerated rights.

Many strict constructionists argue that because the Constitution does not specifically refer to something, say privacy, as a right, then the courts would be, in fact, legislating. Here's the problem: The Bill of Rights was created specifically to deny Congress, the government, the ability to pass laws to refuse the people enumerated rights (I-VIII) and unenumreated rights (IX). The strict constructionists essentially say that if privacy is a right, let Congress, elected by the people, pass a law to make it so. But if we let the unenumerated rights be determined and defined by Congress or the state legislatures (instead of the courts), we would be placing it in the very hands of the body, agaist which the Bill of Rights is seeking.

This is why many strict constructionists ignore the IX Amendment or even dismiss it as ambiguously meaningless.

When I was in undergrad school, one of my History profs said that the most brilliant thing the Founding Fathers did was to acknowledge that their work was imperfect and would be subject to interpretation and change in the years ahead. That's why they wrote into the Constitution a process for amending it.

Now, a funny(?) story from my naive youth:

When I was draft-eligible eons ago, I got the peculiar notion that Selective Service violated the 13th Amendment's prohibition of "involuntary servitude." I asked all my lawyer and law student friends and acquaintances about it, not realizing how specialized the practice of law was, or how few lawyers specialize in Constitutional law.

I got some interesting answers: Constitution gives Congress power to raise and maintain standing armies; President is Commander-in-Chief of Armed Forces; intent of 13th Amendment was to end "Negro slavery," not to prohibit the draft. I finally figured it out: The Fifth Amendment says you can't be deprived of life, liberty or property without due process. Draft had due process: you could appeal your classification or order to report for service to your local draft board, to an appeals board, or to the President. Not that it would have made any difference, but it constituted "due process."

Let it go, Ivy. It's over .

What about Fall?

To pick up on what TB posted above, while Article I, Section 8 empowers the Congress to raise and support armies, it empowers the Congress only to maintain a navy. While it additionally limits the Congress to appropriating money for raising and supporting armies for only two years ata time, there is no such limit placed on maintaining a navy. Of course, as written, the Constitution does not authorize an Air Force or the President as its Commander in Chief.

So much for strict construction.

Well, I think my points stands in regards to the danger of getting too far away from what the Constitution actually says. It tends to happen through activist judges and a segment of society who try to ramrod their agenda through the courts (and those activist judges.) There's a reason why liberals, in general, tend to favor the more "evolving" notion of the Constitution. Eventually, the original document and our laws will have little resemblance to each other.

The Roe v Wade thing is simply a perfect example.

Kly, you've been in court when your clients have been sentenced. Although I 've attended a number of sentences, I've never heard a judge get personal. Do judges' pronouncement ever get personal? Do they ever say something like "You were so tough to assault that guy. Now you'll get a chance to prove just how tough you are"?

I just saw this post.

When I practiced criminal defense, very rarely would a sentencing judge offer any personal comments. There were lots of times where the judge was disgusted and had reason to be, and he/she would remark how offensive the crimes were. But I think most judges want to leave a clean sentencing record to minimize any arguments a defendant may have in appealing a sentence as unreasonable.

Crimes against children and the elderly were more likely to evoke outrage than murders and rapes though.

Given that both federal and state stutues contain sentencing guidelines, how likely is it that a prejudicial claim about a sentence due to personal bias would succeed?

In the same vein as a recent forum conversation...

Sing Sing nun believed in innocence of man convicted in livery-driver slaying

The 17-year nightmare of a man imprisoned for a murder he didn’t commit will soon come to an end — thanks in large part to a nun who never lost faith in him.

Eric Glisson, one of five people convicted in the 1995 slaying of a livery driver in The Bronx, had exhausted his appeals three years before he met Sister Joanna Chan in 2006.

Chan, who ministers to inmates at Sing Sing, told The Post yesterday that she hears prisoners claiming innocence “all the time.’’

But she sensed something different about Glisson.

She was struck by the matter-of-fact way Glisson brought up Baithe Diop’s murder.

When she remarked that Glisson’s family had sent him a lot of food for the Muslim holiday of Ramadan, he replied: “That’s because they know I’m innocent.”

As she got to know him better, she became more convinced that he was innocent.

She referred him to Peter Cross, a corporate lawyer with little experience in criminal defense work.

“I met him and became convinced he was innocent,” Cross said.

With Cross’ help, Glisson gathered evidence and wrote a letter to the Manhattan US Attorney’s Office.

It ended up with federal investigator John O’Malley, a former Bronx homicide detective. He realized that details in the letter matched up with a confession he once heard from two members of a gang called Sex, Money and Murder.

His final report concluded that the “evidence is overwhelming that [SMM gangbangers] Jose Rodriguez and Gilbert Vega acted alone, robbed and shot Baithe Diop’’ — and that Glisson was wrongly convicted.

Glisson’s path hasn’t been been easy, said Chan, whom inmates call “Grandma.”

“Once in a while he would say, ‘Grandma, it is really, really hard,’ ” she said. “I always said ‘Eric, keep praying because you are innocent and someday it will be OK.”

During her visits, she became impressed with the work he’d done on his case. She quoted Cross saying that Glisson was “quite a detective.”

The nun was also struck by his faith. “I used to tease him — Eric prays more devoutly than all of our sisters here,” said Chan.

She last saw Glisson Wednesday, and found him overjoyed.

“Finally, Eric will be free,” she said. “It’s probably the greatest news I’ve heard since I started working in Sing Sing 11 years ago.”

The federal probe likely will also result in freedom for co-defendant Cathy Watkins. The three others stand convicted of another murder and could remain in prison.

http://www.nypost.com/p/news/local/bronx/nun_kept_faith_YJLztLUMroe4AZs1k2na0K#ixzz22dq3QZUN

In the all-time notorious Rosenberg atomic secrets spy trial (1951), after the guilty verdict was brought in, the judge, Irving Kaufman, had an ex parte meeting with the prosecutor, Irving Saypol, to which the defense attorneys weren't invited. He asked Saypol if he intended to ask for the death penalty for both defendants, Julius and Ethel Rosenberg, who were parents of 10-year-old and seven-year-old boys. Saypol said he wwould. Kaufman instructed him to travel immediately to DC to get the opinions of his boss, the Assistant Attorney General for criminal matters, and J. Edgar Hoover of the FBI, and to report to the judge at his apartment as soon as he returned.

Saypol returned that evening and told Judge Kaufman that both parties wanted death for Julius but not for Ethel, because they believed Americans wouldn't countenance giving the chair to a mother of two small boys. So, Kaufman ordered Saypol not enter a recommendation at sentencing. On the day of sentencing, Kaufman put on a great performance. He said that the "burden of sentencing" them was "so great" that he "excused" prosecutor Saypol from having to make a recommendation. He claimed he spent "many sleepless nights" pondering what to do, and "prayed to my Maker for guidance." Then he sentenced both to death for "the greatest crime in human history...because of your crimes, 50,000 American boys are dead in Korea" and countless others' lives were threatened because the Rosenbers "stole the secret of the atomic bomb and handed it to the Russians."

That grandstand performance, Kaufman hoped, would land him a seat on the Supreme Court. He never got it because those and other of his improprieties at the trial followed him for the rest of his career.

It's very unlikely. The discretionary aspects of sentencing are almost never disturbed on appeal when the sentence falls within standard ranges of sentencing. Even sentences that are in aggravated ranges almost always stand if reasons are placed on the record.

The only times I've seen cases remanded for resentencing were when either the sentence exceeded the maximum, suggested aggravated range of sentencing (and that was only to allow the judge place reasons on the record), or there was a misstatement of fact during the guilty plea colloquy.

That's shocking judicial misconduct on multiple levels.

Cops taser deaf woman who called for their help

Who were the victims in the Oak Creek Massacre

being from a sikh family myself this got me pissed off, but i understand why he did it. The guy is just another idiot who believes in the myth of white supremacy, guys like this have to take out their own inadequacies out on others. I mean compare him to the temple president he shot. This sikh came to the usa during the 1980s with nothing, worked in a gas station built a home for his family, built a place of worship for his community and his family was in the process of moving into new probably bigger house and then look at this skinhead whose family has probably been here for generations yet all he had to show for it was his parents divorces, a failed military career, failed relationships, his hate, being a drunk, i forgot to mention the white power bands he was apart of, one of which kicked him out after another band member hooked up with his girlfriend. Even his own mother hadnt seen him in years. So im guessing he the whole supremacist thing really wasn't working out for him so he decided to kill in order to lift his self esteem. If this guy really wanted to help white people maybe he and his friends should clean up their own race before they talk shit or go after others.
couple accused of arranging sex with 13 yr old.
vast intnational child porn network uncovered
tacoma man accused of raping teen while wearing gps monitor
father kills wife 3 children in murder suicide
fugitives brutally beat and rob 71 year old store clerk

People are getting crazier and crazier and the world is growing more and more violent.

I honestly have no earthly idea what the answer is .

PB, it's a matter of numbers. Whether it's Throggs Neck or Vatican City, as the population increases, components of that population increase. When the US population was 180 million, 1% of it constituted criminals (or some type of violent people) was 1.8 million spread over 50 states. With a current population of over 300 million, that 1% has grown to 3 million to spread over the same 50 states.

It's not going to get better.

To shift gears: I have a question for the law-literate folks here:

In this county, defendants accused of multiple felonies get a hearing before the judge who'll hear the trial--if it goes to trial. The judge tells the defendant what penalty he'll get if he goes to trial and is found guilty, or what he'll get if he pleads not guilty. Obviously the judge, like counterparts everywhere else in the US, wants to avoid a trial.

My question: do you think this is coercive, especially coming from the same judge who'll hear the trial? Does it imply that the judge's mind is already made up? Shouldn't plea possibilities be worked out between the prosecutor and the defense lawyer, and communicated to the defendant by his lawyer?

TB, both the federal courts and state courts use sentencing guidelines. A bench trial would probably always be the result of a plea bargain. The court will always insure that a defendant is fully informed of his choices in order to minimize the basis for appeal. It is encumbent upon the court to inform a defendant of the consequences of his choices.

This is a very strange procedure. You are correct that plea agreements should be the result of a deliberative process between the prosecutor, who represents the state's interest and the defense counsel. A plea agreement takes into account many things, not the least of which is the prosecutor's assessment of obtaining a guilty verdict. And that rests on the reliability of witnesses on both sides, strength of physical evidence and any possible pretrial issues. The judge is not aware of any of this at arraignment. Therefore, the only job of the judge, who is presented with a plea agreement, is to approve or deny it. I should add that plea agreements can be creative and don't always specify the term of jail or probation.

It's certainly a ploy to encourage guilty pleas, but I can not see how a judge would commit to a sentence before hearing the testimony.

I recall a few times, however, where a judge offered some general, candid remarks in chambers that allowed us to avoid trial. He or she may have said that the case looked like probation or only a county sentence, which was enough for my client to plead. Other times the judge might lean on the prosecutor to get him or her to sweeten the deal. But I've never heard of a formal hearing to inform the defendant of specific sentences so early in the process.

Thanks, Kly.
Here (as elsewhere, probably), when a perp is arrested, the authorities tack everything onto the charges, no doubt to encourage a plea-bargain. Typically, someone arrested with a little more than personal-use quantities of drugs is charged with possession of narcotics; possession with intent to sell; possession of drug paraphernalia and, if armed, possession of a lethal weapon while committing a drug offense. Of course, if he pleads guilty to one charge, the others will be dropped.

Here's a strange one:

A guy went with his girlfriend to her apartment near here so she could retrieve something. He got into an argument with another tenant, who was the girl's previous boyfriend. Neither male had met the other before. The former boyfriend went to his apartment, retrieved his gun, and killed the new boyfriend. He's charged with first degree murder. There seemed to be nothing premeditated about it. I'm assuming the first-degree charge stemmed from the guy going into his apartment to get the gun--if he'd been armed during the argument, it would have been second-degree murder. I think they reached for "first degree" to incent a plea bargain.

Definitions of the degrees of murder vary from state to state. But it is essentially universal that first degree murder encompasses premeditation. The element of premeditation is defined by statute and/or case law. Classic premeditation, supporting first degree, would be lying in wait, poisonings, or making arrangements prior to the killing to escape or cover up the crime.

In Pennsylvania this guy would likely be charged with first degree murder, but, ljust as you suggested, the DA would be likely to accept a plea to third degree. In Pennsylvania premeditation can be be reached in a second, so the fact that the old boyfriend went to his apartment to retrieve a gun could provide a basis for forming an intent to kill.

Another oddity about PA is that our second degree murder is felony murder, which is any killing committed in the course of a felony. It carries a mandatory life sentence. Third degree murder refers to the "hot blooded" murders, not included in first degree.

Thanks for that answer, Kly. I wasn't aware of that third-degree distinction.

Kly, what's your take on unreasonable searches and seizures? From your experience, what standards do judges use when it comes to defiing unreasonable whether cosnidering a warrant or suppressing evidence.

Vietnam Vet murdered trying to protect grandchildren

John Villneff gave his life for his granddaughter’s.
The 62-year-old veteran and two-time Purple Heart recipient was shot twice Wednesday night as a robbery turned deadly on Detroit’s west side, his family said.

The robbers had broken into Villneff’s daughter’s home next door to his on Rutland about 11 p.m. The granddaughter was one of several people at the home and ran to Villneff’s house as the robbers chased her because she was taking pictures of them. The family gave the photos to police, family members said.

Villneff’s daughter, Melissa, said her father was shot in the heart and back as he tried to protect the girl.

“He jumped in front of my niece because they were trying to kill her because she was taking pictures of them,” Melissa Villneff said this morning. elissa Villneff was leaving the Tigers game Wednesday night when her father called to say her house was being broken into, she said.

His son, Michael, 37, said his father called him to say he'd been shot and was dying. "I didn't get the chance to say that I loved him," Michael Villneff said...