I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Judge Posner on originalism and criminal law, Walter Dellinger on state sovereignty

You really should check out Slate magazine’s discussion of the Supreme Court term (beginning here), whose participants this year are Richard Posner, Dahlia Lithwick, and Walter Dellinger (who taught at Ole Miss law school in 1966-68).  Posner on Miller v. Alabama and Dellinger’s most recent on US v. Arizona are particularly good.  Posner takes a nice shot at originalism:

I don’t object to a loose construction of the Constitution; there isn’t any sensible alternative, given how old and out of touch the document is, how unrecoverable the actual thinking of its authors and ratifiers, and how vaguely worded so much of it is. But it would be nice if interpretation could be based on something more than gut.

He also notes that our criminal law system does not suggest a society growing toward greater decency:

Is the United States a maturing society? Surely not in the realm of criminal law, a real disaster area—we imprison a higher fraction of our population than any civilized nation (and than most of the uncivilized ones), many for trivial crimes involving mind-altering drugs less dangerous than alcohol or cigarettes; life sentences are imposed with abandon; prosecutorial discretion is very broad and often exercised irresponsibly; and judges’ sentencing discretion, also broad, is exercised much of the time in an intellectual vacuum.

Dellinger notes this about the soveriegnty of the states:

 the one thing an advocate before the Supreme Court can never, ever do is to suggest in any way that the states are less than fully sovereign. Full state sovereignty has to be taken as an assumption, or a trap door will open beneath your feet and you will descend to some black hole deep in the basement of the court.

He concludes by reference to…

… Scalia’s notion that the court has no business subordinating the states to a president’s policies on enforcement of the immigration laws. Only Congress can make determinations that override the states on this subject, and there is no room for the exercise of presidential prosecutorial discretion, in Justice Scalia’s view.

So Justice Scalia thinks now. But Stanford Law prof. Pam Karlan, working on her greatly anticipated forward to the Harvard Law Review’s Supreme Court Term issue, noted to me that Justice Scalia took a different approach in his truly classic 1998 dissent in Morrison v. Olson.Back then, he argued that “law enforcement functions” have “always and everywhere” been an exercise of executive power; that “the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted” involves “the balancing of various legal, practical, and political considerations, none of which is absolute”; and that “[t]o take this away is to remove the core of the prosecutorial function, and not merely ‘some’ Presidential control.”

Justice Scalia had it right in Morrison v. Olson. And he got one thing right in his bench statement in this week’s immigration case. “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.” Motion seconded.

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