Legal briefs

Crime

An organization called The Skeptic Research Center has been conducting a study every year since 2020 to measure how informed Americans are about race and policing. In 2020, the study sampled 980 adults of all political orientations. One part of the study asked participants how many unarmed black men they believe were killed by police in 2019. Over 30% of people identifying as “very liberal” estimated the number to be “about 1,000.” Another 30% of liberals estimated the number to be “around 100.” Around 13% of conservatives estimated the number to be “about 1,000.” The actual number was 12. The accuracy of guesses has improved modestly since 2020, but is still wildly off for the most part.

More crime

The U.S. House Judiciary Committee released data this week on heightened threats to the judiciary. There were 179 documented threats against federal judges in 2019. By 2023, that number had risen to 457. Threats to federal prosecutors have gone up sharply as well, from 81 in 2019 to 155 in 2023. In addition, there has been an increase in swatting incidents. Swatting is when an individual falsely reports an emergency at an official’s home causing first responders, sometimes including SWAT teams, hence the name, to be dispatched there. As far as I can tell, there is no such data kept at the state level. Stay safe out there, my friends.    

Originalism

Last week, the Hawaii Supreme Court ruled that Hawaii’s subjective test for issuing gun permits does not violate its citizens’ right to bear arms. Under Hawaii law, a person who wants to carry a firearm must apply for a permit and must give a good reason why they want to carry a gun. Hawaii officials are free to grant or deny the permit as they see fit. Such a “may issue” permitting process directly clashes with a recent U.S. Supreme Court ruling, the Bruen case, which says that subjective tests violate the Second Amendment to the U.S. Constitution. The Hawaii Court recognized that the Bruen finding exists, but said they disagree with it. They also criticized the originalist analysis the U.S. Supreme Court used in reaching its conclusion in Bruen. In doing so, the Hawaii Supreme Court wrote: “As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era's culture, realities, laws, and understanding of the Constitution." For some additional flair, the Hawaii court quoted the HBO hit show The Wire, stating: "The thing about the old days, they the old days." These two cases are a clear contrast between originalism employed by the U.S. Supreme Court and the living constitution theory employed by the Hawaii Court. In this contest, the U.S. Supreme Court wins, though. The old days may be the old days, but it is still the case that states cannot infringe upon rights protected by the U.S. Constitution, and the U.S. Supreme Court is the final arbiter on the Constitution’s meaning. 

More originalism

This week, the U.S. House of Representatives impeached Homeland Security Secretary, Alejandro Mayorkas. As Homeland Secretary, Mayorkas oversees border security. By nearly all accounts, even increasingly by some in his own party, Mayorkas has done a dismal job at securing the border. Removing a cabinet official, though, requires the same standard as removing a president, which comes from Article II, Section 4 of the U.S. Constitution. It says, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Some argue that although Mayorkas has been incompetent, or even willfully neglectful of his duties, he has not committed treason, bribery or any high crimes or misdemeanors, and, therefore, does not qualify for impeachment. There are many retorts to this argument, but one is relevant to Judex, namely originalism. The originalist argument is that the phrase “high Crimes and Misdemeanors” at the time the founders adopted it did not mean literal violations of the criminal code. At the time of the drafting, there wasn’t much of a federal criminal code. In addition, the term “misdemeanor” as defined by the Samuel Johnson Dictionary used at the Constitution’s drafting meant “ill behavior” rather than the technical criminal law violation it connotes today. So, an originalist would say that while Mayorkas’s conduct may not violate the criminal law, it is certainly “ill behavior” as the word was understood at the time it was written into the Constitution.

As always, thank you for reading! If you enjoy Judex, do me a favor and share it with your friends with your recommendation that they subscribe.