Fifth Amendment

December 2, 2014|Fifth Amendment, Grand Jury

Deconstructing the Grand Jury

The tragedy that is Ferguson now distills to this: To vindicate the civil rights of one man, Michael Brown, that were allegedly violated, the civil rights of another, Darren Wilson, should have been definitely infringed.

To be sure, despite its apparent justification, there is little to celebrate in the decision not to indict Officer Wilson. Whether his actions were warranted has probably forever vanished into a fog of mixed evidence and ambiguous testimony. The profound culture of mistrust between African-Americans and police in Ferguson—as elsewhere—reflects a deep and continuing racial divide that cannot be wished or refuted away. Frustrations so deep generally do not arise from nothing.

February 18, 2014|Constitution, Due Process Clause, Fifth Amendment, Magna Carta, Substantive Due Process, Supremacy Clause, The Federalist

The “Law of the Land” Clause of Magna Carta, the Supremacy Clause, and Judicial Review

by Josh Blackman|

During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:

No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.

This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect.

November 3, 2013|Drug War, Fifth Amendment, Fourth Amendment, Rule of Law, The Wire

Walking The Wire Between Constitutional Law and Hopelessness

by Erin Sheley|

Many fans of HBO’s acclaimed crime drama The Wire will cite as a favorite moment a scene in which Baltimore drug kingpin Stringer Bell attempts to increase the professionalism of his gang by running its meetings by parliamentary procedure. When one of his soldiers dutifully begins to take minutes in accordance with Robert’s Rules of Order, Stringer, exasperated, shouts “Is you taking notes on a criminal ****ing conspiracy?” The scene exemplifies one of the show’s most lauded attributes: despite the numerous murders under the belts of most of its major drug-dealing characters, the nuance of their portrayals allows for moments…

November 27, 2012|Fifth Amendment, takings cases, U.S. Supreme Court

Takings Cases This Term

by Michael S. Greve|

For some reason Supreme Court cases seem to come in packs, when this or that issue captures the justices’ attention. On deck this Term: civil rights cases (over affirmative action and the Voting Rights Act, among other issues); and cases involving Fifth Amendment “takings” of private property. So far, the justices have granted cert in three cases. They involve water; more water; and raisins.

November 4, 2012|

Kelo With Caveats

by Steven J. Eagle|

In response to: From Kelo With Love: Revisiting Kelo’s Flawed Economics and Vacuous Constitutionalism

My work on takings law reflects my strong disposition for free markets, and my concern that expansive interpretations of eminent domain powers lead to crony capitalism and other abuse. I believe that the Supreme Court’s facile equation of “public use” with “public benefit” in Kelo v. City of New London (2005) is particularly pernicious. So, I start out from the same premises as my George Mason colleague Todd Zywicki. The Fifth Amendment to the U.S. Constitution explicitly conditioned the federal government’s condemnation power, and those restrictions subsequently were made binding on the States. “[N]or shall private property be taken for public…

Democratic Government and Eminent Domain

by Christopher Serkin

Professor Zywicki is right: Kelo is one of the most publicly-maligned decisions in recent Supreme Court history. But it is altogether more debatable whether the hostility was deserved. Professor Zywicki offers a straightforward economic account and critique of eminent domain. He argues that the fair market value standard is inadequate to compensate people for their subjective…

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.