DOCSLIB.ORG

Constitutional Spaces Allan Erbsen

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Constitutional Spaces Allan Erbsen University of Minnesota Law School Scholarship Repository Minnesota Law Review 2011 Constitutional Spaces Allan Erbsen Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Erbsen, Allan, "Constitutional Spaces" (2011). Minnesota Law Review. 451. https://scholarship.law.umn.edu/mlr/451 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article Constitutional Spaces Allan Erbsen† I. The Land of the Law: The Constitution’s Ad Hoc Typology of Physical Spaces ............................................ 1175 A. The “Land” ................................................................. 1179 B. The “United States” ................................................... 1186 C. “States” ....................................................................... 1197 D. The “District” and the “Seat” .................................... 1208 E. “districts” .................................................................... 1215 F. “places” and “territories” ........................................... 1221 G. “Territory” and “Property” ......................................... 1224 H. “possessions” .............................................................. 1232 I. “Places” ....................................................................... 1234 J. The “high Seas” .......................................................... 1243 K. “admiralty and maritime Jurisdiction” .................... 1247 II. The Law of the Landless: Unenumerated Spaces .......... 1252 A. Indian Territory ......................................................... 1253 B. Adjacent Spaces: Above (the Air), Below (Underground Resources), Beside (Coastal Waters and Submerged Lands), and Between (Boundary Rivers) ........................................................................ 1258 Conclusion .............................................................................. 1266 Scholarship about the Constitution’s meaning generally fo- cuses on four core features of the document: the rights that it creates, the obligations that it imposes, the institutions that it empowers, and the relationships that it structures. These con- cepts are clearly important. But understanding how these con- cepts translate into doctrine requires considering an aspect of † Associate Professor, University of Minnesota Law School. A.B. 1994, J.D. 1997, Harvard University. Thanks to Aaron-Andrew Bruhl, Christina Duffy Burnett, Richard Freer, Jill Hasday, Brad Karkkainen, Mark Rosen, and participants in a faculty workshop at Loyola Law School Los Angeles and the Federal Courts Workshop sponsored by the University of Illinois College of Law for helpful comments. Copyright © 2011 by Allan Erbsen. 1168 2011] CONSTITUTIONAL SPACES 1169 the Constitution that scholars have not systemically analyzed. This overlooked dimension is the Constitution’s identification, definition, and integration of the physical spaces in which it applies. Spatial precision is essential because knowing how the Constitution addresses a particular problem often requires knowing where the problem arises. The text remains the same, but its significance varies as one travels between, for example, Maryland, the District of Columbia, Puerto Rico, Guantánamo Bay, and Afghanistan. Yet despite the importance and perva- siveness of spatial references in the Constitution, commenta- tors have not analyzed these references collectively. This Article fills that gap in the literature by considering each of the fourteen spaces that the Constitution identifies, as well as several that it overlooks, to reveal patterns in the text’s approach to delineating the physical domain in which it ap- plies. The analysis shows that many discrete problems on which scholars have focused—such as the rights of U.S. mili- tary detainees abroad and the extraterritorial reach of state law—are manifestations of a broader phenomenon that exists because of indeterminacy in the Constitution’s typology of spaces. Considering these spaces together highlights this inde- terminacy, provides new perspectives on commonly discussed problems, and exposes additional puzzles that have escaped scrutiny. The Article thus provides a foundation for future scholarship addressing a wide range of constitutional questions linked to the boundaries and status of discrete spaces. The importance of spatial distinctions emerges from three of the Constitution’s signature features: its bifurcation of sover- eignty, its recognition of fifty semi-autonomous subnational units, and its enumeration of individual rights. The fragmenta- tion of regulatory authority raises vexing allocation problems: the Constitution must allocate power vertically between the federal and state governments, and horizontally among the states.1 Compounding these problems is the fact that the allo- cation of power is sometimes exclusive and sometimes concur- rent. A conclusion that one entity (such as Congress or a state) possesses a given power does not foreclose further inquiry into whether the same power resides in another entity, and if so 1. See Allan Erbsen, Horizontal Federalism, 93 MINN. L. REV. 493, 504– 05 (2008) (explaining how vertical federalism and horizontal federalism prob- lems overlap). 1170 MINNESOTA LAW REVIEW [95:1168 how those overlapping powers operate in tandem.2 The Consti- tution’s enumeration of rights and the historical importance of territorial limits on institutional authority add further com- plexity when thinking about the text’s spatial distinctions. Each constitutionally defined space has at least one corre- sponding governing entity and governed community that may have more or less power, or more or fewer rights, when acting within or beyond a particular place. In essence, most people are citizens in some places and aliens in others, and governments are sovereign in some places and foreign in others. The permis- sibility of particular interactions between people and govern- ments can therefore vary depending on the relationship be- tween them, the territorial scope of the government’s authority, and the territorial reach of individual rights.3 Fragmented reg- ulatory authority and enumerated rights thus combine to create a central question of constitutional law: Which unit(s) of government, if any, may exercise binding power with respect to particular matters? The Constitution takes three distinct approaches to an- swering the “which unit” question by focusing, variously, on who is acting, what they are doing, and where they are doing it.4 For example, if the relevant actor is a foreign ambassador, federal courts possess adjudicative authority that might other- wise lie in state courts.5 If the actor is instead a private citizen engaging in interstate commerce, Congress possesses legisla- tive authority that it might otherwise lack.6 And if the actor’s noncommercial conduct occurs in a national forest, federal power may exist to a greater degree than if the conduct oc- curred on land belonging to a state.7 Most scholarship about the Constitution’s allocation of regulatory authority focuses on the who and what aspects by considering whether the federal or state governments should 2. See generally Mark D. Rosen, From Exclusivity to Concurrence, 94 MINN. L. REV. 1051 (2010) (analyzing evolving understandings of when powers are or should be exclusive or concurrent). 3. See infra notes 33–34 (discussing how law shapes and is shaped by notions of territory). 4. A fourth question—when conduct occurred—is relevant when consti- tutional amendments or nonretroactive changes in controlling precedent draw a temporal line between otherwise indistinguishable acts. 5. See U.S. CONST. art. III, § 2. 6. See id. art. I, § 8, cl. 3. 7. See infra Part I.G. 2011] CONSTITUTIONAL SPACES 1171 have authority to regulate various kinds of actors or activities.8 But the where question merits closer scrutiny because of the Constitution’s haphazard approach to defining physical spaces and assigning significance to those spaces. The key to understanding the where question in constitu- tional law is to recognize that spaces are important because they have boundaries, and those boundaries are important be- cause they create an inside and outside and define people as in- siders or outsiders. These inside/outside distinctions animate a broad range of constitutional doctrines. Judges must constantly consider what must and cannot happen in certain spaces, who decides what may happen in these spaces, and whether the force of particular powers and rights varies with the physical context of their assertion or the affiliation of actors and the people they affect. Opinions thus emphasize whether conduct happened in a particular space, whether a regulator is of a par- ticular space, or whether an actor is from a particular space. Of course, the empirical prominence of spatial boundaries in con- stitutional analysis does not mean that analysis based on spa- tial distinctions is normatively sound. The extent to which lines on a map should determine government prerogatives and indi- vidual entitlements is debatable.9 But for better or worse, “the People” who “ordain[ed] and establish[ed]” the Constitution or- ganized themselves within overlapping spaces marked by phys- ical borders that play at least some role in structuring
Load more

Recommended publications
  • United States V. Lozoya
    FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50336 Plaintiff-Appellee, D.C. No. v. 2:16-cr-00598- AB-1 MONIQUE A. LOZOYA, Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding Submitted En Banc May 26, 2020* San Francisco, California Filed December 3, 2020 Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, William A. Fletcher, Jay S. Bybee, Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford, John B. Owens, Mark J. Bennett, Daniel P. Collins and Kenneth K. Lee, Circuit Judges. Opinion by Judge Bennett; Partial Concurrence and Partial Dissent by Judge Ikuta * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 UNITED STATES V. LOZOYA SUMMARY** Criminal Law The en banc court affirmed a conviction for misdemeanor assault within the special aircraft jurisdiction of the United States, in a case in which the defendant, who committed the assault on a commercial flight from Minneapolis to Los Angeles, argued that venue in the Central District of California was improper because the assault did not occur in airspace directly above the Central District. The en banc court held that the Constitution does not limit venue for in-flight federal crimes to the district sitting directly below a plane at the moment a crime was committed, and that venue thus “shall be at such Place or Places as the Congress may by Law have directed.” U.S.
    [Show full text]
  • Here the Problem Arises
    Article Constitutional Spaces Allan Erbsen† I. The Land of the Law: The Constitution’s Ad Hoc Typology of Physical Spaces ............................................ 1175 A. The “Land” ................................................................. 1179 B. The “United States” ................................................... 1186 C. “States” ....................................................................... 1197 D. The “District” and the “Seat” .................................... 1208 E. “districts” .................................................................... 1215 F. “places” and “territories” ........................................... 1221 G. “Territory” and “Property” ......................................... 1224 H. “possessions” .............................................................. 1232 I. “Places” ....................................................................... 1234 J. The “high Seas” .......................................................... 1243 K. “admiralty and maritime Jurisdiction” .................... 1247 II. The Law of the Landless: Unenumerated Spaces .......... 1252 A. Indian Territory ......................................................... 1253 B. Adjacent Spaces: Above (the Air), Below (Underground Resources), Beside (Coastal Waters and Submerged Lands), and Between (Boundary Rivers) ........................................................................ 1258 Conclusion .............................................................................. 1266 Scholarship about the Constitution’s
    [Show full text]
  • THREE ISSUES the NATIONAL PARK SYSTEM FACES in 2017 Andrew Waggoner
    University of Baltimore Journal of Land and Development Volume 6 | Issue 2 Article 2 2017 THREE ISSUES THE NATIONAL PARK SYSTEM FACES IN 2017 Andrew Waggoner Follow this and additional works at: https://scholarworks.law.ubalt.edu/ubjld Part of the Land Use Law Commons Recommended Citation Waggoner, Andrew (2017) "THREE ISSUES THE NATIONAL PARK SYSTEM FACES IN 2017," University of Baltimore Journal of Land and Development: Vol. 6 : Iss. 2 , Article 2. Available at: https://scholarworks.law.ubalt.edu/ubjld/vol6/iss2/2 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Journal of Land and Development by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. COMMENT THREE ISSUES THE NATIONAL PARK SYSTEM FACES IN 2017 Andrew Waggoner I. INTRODUCTION AND ISSUES PRESENTED It’s 2017; a new year, complete with an entirely new administration. Celebrating a new year is all about change. However, change is elusive to the National Park Service (NPS) which, nearly 150 years after its creation, faces intriguing hurdles going into the new year. This paper will diagnose three issues that the NPS faces going into 2017 and will provide solutions along with additional facts to alleviate the concerns of those who support the NPS. The first concern that NPS supporters will face in 2017 is the resurgence of the Republican party which now controls the House, Senate,
    [Show full text]
  • The Role of Race in Jury Impartiality and Venue Transfers Darryl K
    Maryland Law Review Volume 53 | Issue 1 Article 5 The Role of Race in Jury Impartiality and Venue Transfers Darryl K. Brown Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Constitutional Law Commons Recommended Citation Darryl K. Brown, The Role of Race in Jury Impartiality and Venue Transfers, 53 Md. L. Rev. 107 (1994) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol53/iss1/5 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. THE ROLE OF RACE IN JURY IMPARTIALITY AND VENUE TRANSFERS DARRYL IL BROWN* I. INTRODUCrION A. Two Cases in Point In 1990, Washington, D.C., Mayor Marion Barry was indicted on fourteen charges of drug possession and perjury arising from a federal investigation that yielded a videotape of Barry smoking crack cocaine in Washington's Vista Hotel.1 Barry and his attorney chose not to seek a change of venue for the trial, despite overwhelming pretrial public- ity about the case that included constant replays of the incriminating videotape on local television stations.2 The jury, drawn from the Dis- trict and comprised mostly of African Americans,3 convicted Barry, an African American, of only one misdemeanor possession charge-not the one arising from the videotape.4 The verdict was generally viewed as a victory for the defendant.' * Staff Attorney, University of Georgia School of Law Legal Aid Clinic.
    [Show full text]
  • Tyson Timbs and a 2012 Land Rover Lr2
    No. 17-1091 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- TYSON TIMBS AND A 2012 LAND ROVER LR2, Petitioners, v. STATE OF INDIANA, Respondent. --------------------------------- --------------------------------- On Writ Of Certiorari To The Indiana Supreme Court --------------------------------- --------------------------------- BRIEF FOR PETITIONERS --------------------------------- --------------------------------- SAMUEL B. GEDGE WESLEY P. H OTTOT* SCOTT G. BULLOCK INSTITUTE FOR JUSTICE DARPANA M. SHETH 600 University Street, INSTITUTE FOR JUSTICE Suite 1730 901 North Glebe Road, Seattle, WA 98101 Suite 900 (206) 957-1300 Arlington, VA 22203 [email protected] (703) 682-9320 *Counsel of Record [email protected] Counsel for Petitioners ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i QUESTION PRESENTED Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment. ii PARTIES TO THE PROCEEDINGS Petitioners are Tyson Timbs and his 2012 Land Rover LR2. Respondent is the State of Indiana. Addi- tional plaintiffs before the state trial court were the J.E.A.N. Team Drug Task Force, the Marion Police De- partment, and the Grant County Sheriff ’s Depart- ment. iii TABLE OF CONTENTS Page INTRODUCTION ................................................ 1 OPINIONS BELOW ............................................
    [Show full text]
  • Petitioner, Respondent. Counsel of Record
    No. 18-5924 IN THE EVANGELISTO RAMOS, Petitioner, v. LOUISIANA, Respondent. On Writ of Certiorari to the Court of Appeal of Louisiana, Fourth Circuit BRIEF FOR PETITIONER Jeffrey L. Fisher G. Ben Cohen Brian H. Fletcher Counsel of Record Pamela S. Karlan Shanita Farris STANFORD LAW SCHOOL Erica Navalance SUPREME COURT THE PROMISE OF JUSTICE LITIGATION CLINIC INITIATIVE 559 Nathan Abbott Way 1024 Elysian Fields Ave. Stanford, CA 94305 New Orleans, LA 70116 (504) 529-5955 Yaira Dubin [email protected] O’MELVENY & MYERS LLP Times Square Tower 7 Times Square New York, NY 10036 QUESTION PRESENTED Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous jury verdict to convict. ii TABLE OF CONTENTS QUESTION PRESENTED........................................... i TABLE OF AUTHORITIES ....................................... iv BRIEF FOR PETITIONER ......................................... 1 OPINIONS BELOW .................................................... 1 JURISDICTION .......................................................... 1 RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ...................................... 1 STATEMENT OF THE CASE .................................... 2 A. Historical background .................................... 2 B. Facts and procedural history ......................... 9 SUMMARY OF THE ARGUMENT .......................... 13 ARGUMENT.............................................................. 15 I. The Sixth Amendment’s Jury Trial Clause requires a unanimous jury verdict
    [Show full text]
  • A Computational Analysis of Constitutional Polarization
    Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2019 A Computational Analysis of Constitutional Polarization David E. Pozen Columbia Law School, [email protected] Eric L. Talley Columbia Law School, [email protected] Julian Nyarko Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons Recommended Citation David E. Pozen, Eric L. Talley & Julian Nyarko, A Computational Analysis of Constitutional Polarization, CORNELL LAW REVIEW, VOL. 105, P. 1, 2019; COLUMBIA PUBLIC LAW RESEARCH PAPER NO. 14-624 (2019). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2271 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. \\jciprod01\productn\C\CRN\105-1\CRN101.txt unknown Seq: 1 30-APR-20 8:10 A COMPUTATIONAL ANALYSIS OF CONSTITUTIONAL POLARIZATION David E. Pozen,† Eric L. Talley†† & Julian Nyarko††† This Article is the first to use computational methods to investigate the ideological and partisan structure of constitu- tional discourse outside the courts. We apply a range of ma- chine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors
    [Show full text]
  • Vicinage, Venue, and Community Cross-Section: Obstacles to a State Defendant's Right to a Trial by a Representative Jury Lisa E
    Hastings Constitutional Law Quarterly Volume 19 Article 9 Number 1 Fall 1991 1-1-1991 Vicinage, Venue, and Community Cross-Section: Obstacles to a State Defendant's Right to a Trial by a Representative Jury Lisa E. Alexander Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Lisa E. Alexander, Vicinage, Venue, and Community Cross-Section: Obstacles to a State Defendant's Right to a Trial by a Representative Jury, 19 Hastings Const. L.Q. 261 (1991). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol19/iss1/9 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Vicinage, Venue, and Community Cross- Section: Obstacles to a State Defendant's Right to a Trial by a Representative Jury By LISA E. ALEXANDER* Introduction "The jury's legitimacy has always rested in its capacity to express fairly the community's conscience .... I One of the criminal jury's critical functions is to act as a buffer between government and defend- ant.2 "The purpose of a jury is to guard against the exercise of arbitrary power - to make available the commonsense [sic] judgment of the com- munity as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased re- sponse of a judge." 3 A criminal defendant has a constitutional right to a trial by a jury derived from a jury pool composed of a cross-section of the community in which the crime occurred.' Exclusion of distinctive, also known as cognizable, groups within the community can occur at different stages of jury selection.
    [Show full text]
  • A Theory of Justiciability
    A Theory of Justiciability Jonathan R. Siegel* I. Introduction........................................................................................... 74 II. The Riddle of Justiciability................................................................... 76 A. Our Purposeful Constitution ............................................................. 79 1. “Group-Promoting” Provisions................................................... 79 2. “Specific Evil Avoidance” Provisions.......................................... 80 3. Structural Provisions .................................................................... 80 B. Does Justiciability Fit?...................................................................... 82 III. Exploring the Riddle............................................................................. 86 A. Litigation-Enhancing Functions of Justiciability Requirements....... 87 B. Representational Theories................................................................. 90 C. Separation-of-Powers Theories......................................................... 95 1. The Pure Assertion ....................................................................... 95 2. Justice Scalia’s Article II and Political Process Arguments ........ 98 a. The Article II Argument .......................................................... 100 b. The Structural Argument......................................................... 101 c. The Role of Congress.............................................................. 103 D. The Passive Virtues........................................................................
    [Show full text]
  • Decryption Originalism: the Lessons of Burr
    ARTICLES DECRYPTION ORIGINALISM: THE LESSONS OF BURR Orin S. Kerr CONTENTS INTRODUCTION ............................................................................................................................ 907 I. FACTS AND PROCEDURAL HISTORY ................................................................................... 914 A. The Charges Against Aaron Burr ................................................................................... 915 B. The Role of Ciphers and the Disputed Letter .............................................................. 917 C. Bollman’s Initial Assertion of the Fifth Amendment Privilege .................................. 921 D. The Prosecution’s Initial Questioning of Willie .......................................................... 922 II. THE LEGAL AUTHORITIES................................................................................................... 924 A. The First Source of Law: MacNally’s Treatise ............................................................. 925 B. The Second Source of Law: The State Trials Cases .................................................... 930 C. The Third Source of Law: The Early American Cases ................................................ 933 III. THE ARGUMENTS OF THE PARTIES ................................................................................ 935 A. Who Decides if an Answer Might Be Incriminating? ................................................. 936 B. What Is the Standard for Whether an Answer Is Sufficiently Incriminating? ....... 938
    [Show full text]
  • In the Supreme Court of Iowa
    IN THE SUPREME COURT OF IOWA No. 13–1397 Filed March 25, 2016 Amended June 22, 2016 STATE OF IOWA, Appellant, vs. DEMETRIUS S. RIMMER, Appellee. _______________________________________ STATE OF IOWA, Appellant, vs. RONA MURPHY, Appellee. _______________________________________ STATE OF IOWA, Appellant, vs. MELONICKA THOMAS, Appellee. On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge. Defendants seek further review of the court of appeals decision that reversed the district court’s ruling dismissing criminal charges against them for lack of territorial jurisdiction. DECISION OF COURT 2 OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED. Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellant. Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellee Demetrius S. Rimmer. Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellee Rona Murphy. Jack E. Dusthimer, Davenport, for appellee Melonicka Thomas. 3 WATERMAN, Justice. Can criminal defendants avoid prosecution in Iowa if they were unaware that their scheme was being perpetrated, in part, on persons located in Iowa? This appeal presents questions of first impression regarding the State of Iowa’s territorial jurisdiction to prosecute multistate insurance fraud. The defendants, who live in Wisconsin and Illinois and had never set foot in Iowa before their extradition here, allegedly staged an auto accident in Chicago to collect on false insurance claims. The victim was a Wisconsin insurance company that paid claims through its Wisconsin bank account.
    [Show full text]
  • Petition for Writ of Certiorari ______
    NO. ____________ IN THE ____________ DALE LAMBERT, PETITIONER, V. STATE OF LOUISIANA, RESPONDENT. ____________ ON PETITION FOR A WRIT OF CERTIORARI TO THE LOUISIANA COURT OF APPEAL, FOURTH CIRCUIT ____________ PETITION FOR WRIT OF CERTIORARI ____________ G. Ben Cohen* The Promise of Justice Initiative 636 Baronne Street New Orleans, LA 70113 (504) 529-5955 [email protected] * Counsel of Record QUESTION PRESENTED In Apodaca v. Oregon and Johnson v. Louisiana, this Court upheld state rules borne out of ill-will to minority defendants that allowed the conviction of defendants based upon non-unanimous juries. The Court held that although the Sixth Amendment requires unanimity in federal trials that the Fourteenth Amendment did not require unanimous verdicts in state trials. That ruling, as this court noted in McDonald v. City of Chicago, 561 U.S. 742 (2010) was “the sole remaining exception to the notion that the ‘Fourteenth Amendment applies to the States only a watered down, subjective version of the individual rights,” and was the “result of an unusual division among the justices not an endorsement of the two track approach to incorporation.” While recognizing the value of stare decisis, this case presents a clear opportunity to redress a question of critical constitutional significance in order to prevent further deviation from constitutional principles: Whether the Fourteenth Amendment incorporates the Sixth Amendment guarantee that the truth of every accusation against a defendant should be confirmed by the unanimous suffrage of twelve of his equals and neighbors? i PARTIES TO THE PROCEEDING The petitioner is Dale Lambert, the defendant and defendant-appellant in the courts below.
    [Show full text]