Jefferson Davis' speech of September 23, 1864, was so bad that Americans North and South speculated that it was a spoof or a satire – but it was real and sincere. In this speech Davis greatly discouraged his own troops and vastly raised morale in the North; unpersuasively justified his removal of a popular, effective commander for one who had suffered unprecedented losses; viciously attacked one his critics without naming him, leading many of his opponents to believe themselves gravely insulted by the President; and through an unbelievable exercise of "loose lips" caused his army's strategic plans to be published in the newspapers, thereby contributing to the some of the most astonishing Union victories of the Civil War. Most importantly he revealed the principles that he thought the Confederacy stood for.

On September 23, 1864, Jefferson Davis addressed the Confederate Army of Tennessee at Macon, Georgia. The speech was published in the Macon Telegraph the following day. The speech itself is available here; an annotated version of the speech from The Papers of Jefferson Davis may be accessed here.

After Braxton Bragg, one of Jefferson Davis' favorite generals, inexplicably lost the State of Tennessee by being unable to hold impregnable positions at Lookout Mountain and Missionary Ridge, the rugged but out-of-favor Joe Johnston held William Tecumseh Sherman off in northern Georgia throughout the spring and summer of 1864. Johnston, outnumbered 2 to 1, fought a wiley defensive battle, giving up ground grudgingly, slowly edging back toward the fortress of Atlanta, inflicting heavy casualties on Sherman whenever he attacked, extending Sherman's lines of communication, and never giving Sherman the opportunity to land a knockout blow that would threaten Atlanta. Most importantly, Johnston wanted to prevent the Union army from achieving a significant victory that would ensure Lincoln's reelection. If the war could be prolonged until after election day, the war-weary North might replace steadfast Lincoln with gutless McClellan, thus guaranteeing the independence of the Confederacy. Sherman could not have taken Atlanta by storm if he had had twice as many troops.

But Davis did not consider Johnston manly enough, and with Bragg whispering in his ear Davis replaced Johnson with John Bell Hood, the bravest and stupidest general of the Civil War. Hood, who had already sacrificed one arm and one leg for his fledgling country, now proceeded to sacrifice his troops, his army, the City of Atlanta, and the last hopes of the Confederacy. Hood launched a series of reckless attacks on Sherman's forces all around Atlanta. Each time his smaller force suffered far more casualties than they inflicted. Finally, exhausted and demoralized, his troops abandoned Atlanta and withdrew to Macon, where Davis delivered the speech that was intended to inspire the Army of Tennessee and the people of the South.

The Gettysburg Address it wasn't.

Davis bravely admitted that it was a time of "adversity." He confidently asserted that Sherman's army, like Napoleon at Moscow, would now be destroyed as it was compelled to retreat through enemy territory. But in doing so Davis betrayed the strategy that the Confederacy would pursue:

What, though misfortune has befallen our arms from Decatur to Jonesboro, our cause is not lost. Sherman cannot keep up his long line of communication, and retreat sooner or later, he must. And when that day comes, the fate that befel the army of the French Empire and its retreat from Moscow will be reacted. Our cavalry and our people will harass and destroy his army as did the Cossacks that of Napoleon, and the Yankee General, like him will escape with only a body guard.

Reading this speech in the newspapers, Sherman came to an important realization. Davis' plan was that Hood and the Army of Tennessee should busy themselves attacking Sherman's supply lines and intended to take back Tennessee. If he cut his supply lines, lived off the land, and led his army east to the Atlantic coast, he would face no opposition. Sherman responded:

If Hood will take his army into Tennessee I will supply him with rations!

Not satisfied with detailing the strategy that the Army of Tennessee intended to follow, Davis proceded to disclose his army's greatest weakness. He revealed that the army was greatly understrength, and, even worse, he attributed the cause to cowardice or a lack of patriotism:

It is not proper for me to speak of the number of men in the field. But this I will say, that two-thirds of our men are absent – some sick, some wounded, but most of them absent without leave.

Jeff, you should have stopped at "It is not proper to speak of the number of men in the field."

Davis' solution to the problem of widespread desertion was to appeal to men's consciences to return to the army, but in doing so he painted the most pathetic picture of his country, emphasizing "the wail of their suffering" and encouraging mothers to sacrifice all of their sons, even the little boys:

How can this be the most speedily effected? By the absentees of Hood's army returning to their posts And will they not? Can they see the banished exiles, can they hear the wail of their suffering country-women and children, and not come. By what influences they are made to stay away, it is not necessary to speak. If there is one who will stay away at this hour, he is unworthy of the name of a Georgian. To the women no appeal is necessary. They are like the Spartan mothers of old. I know of one who had lost all her sons, except one of eight years. She wrote me that she wanted me to reserve a place for him in the ranks. The venerable Gen. Polk, to whom I read the letter, knew that woman well, and said that it was characteristic of her. But I will not weary you by turning aside to relate the various incidents of giving up the last son to the cause of our country known to me. Wherever we go we find the heart and hands of our noble women enlisted. They are seen wherever the eye may fall, or step turn. They have one duty to perform – to buoy up the hearts of our people.

General Leonides Polk, of course, had been killed by Union artillary at long range a few months earlier. Attaway to bouy up the hearts of the people, Jeff!

To add to his message of hope, Davis then confessed that there weren't many men of military age left to fight the war, and that the ranks must now be filled by boys and old men:

You have not many men between 18 and 45 left. The boys – God bless the boys – are as rapidly as they become old enough going to the field. The city of Macon is filled with stores, sick and wounded. It must not be abandoned, when threatened, but when the enemy come, instead of calling upon Hood's army for defence, the old men must fight, and when the enemy is driven beyond Chattanooga, they too can join in the general rejoicing.

Having painted this rosy future for an army of old men and little boys (and again disclosing the army's plans to retake Tennessee), Davis turned to an even more critical topic – how right he had been to replace Joe Johnston with John Bell Hood as head of the Army of Tennessee. He first spoke of Johnston's pattern of holding Sherman off as a "disgrace," and then praised Hood's "honest and manly blow" against the Union army:

I know the deep disgrace felt by Georgia at our army falling back from Dalton to the interior of the State, but I was not of those who considered Atlanta lost when our army crossed the Chattahoochee. I resolved that it should not, and I then put a man in command who I knew would strike an honest and manly blow for the city, and many a Yankee's blood was made to nourish the soil before the prize was won.

Okay. Johnston was a disgrace and a coward, Hood both honest and manly. But in case you missed the point about Johnston, Davis explained his decision further:

If I knew that a General did not possess the right qualities to command, would I not be wrong if he was not removed? Why, when our army was falling back from Northern Georgia, I even heard that I had sent Bragg with pontoons to cross into Cuba. But we must be charitable.

I'm not sure that Davis' understanding of the concept "charity" is the same that Lincoln expressed in the Second Inaugural.

Having established his wisdom in replacing Johnston with Hood, Davis then chose to defend himself against his many critics. Well, actually Davis pretended that he had only one critic; and, for good measure, that solitary individual was a person of dastardly nature and despicable character:

It has been said that I abandoned Georgia to her fate. Shame upon such a falsehood. Where could the author have been when Walker, when Polk, and when Gen. Stephen D. Lee was sent to her assistance. Miserable man. The man who uttered this was a scoundrel. He was not a man to save our country.

There are a couple of minor problems with this complaint. First, it was not one "scoundrel" but several prominent Confederate leaders who had publicly criticized Davis' leadership, including Joseph E. Brown (Governor of Georgia) and Alexander Stephens (the Vice-President of the Confederacy), as well as several leading southern newpaper editors. Second, by following the strategy outlined in this speech Davis did abandon Georgia to her fate. Sherman's brutal and destructive March to the Sea met no significant opposition.

In the most hopeful portion of his speech, Davis attempted to portray the just rewards that would await the soldier who returned to the battle. It was here that he failed most spectactularly:

The man who can speculate ought to be made to take up his musket. When the war is over and our independence won, (and we will establish our independence,) who will be our aristocracy? I hope the limping soldier. To the young ladies I would say when choosing between an empty sleeve and the man who had remained at home and grown rich, always take the empty sleeve. Let the old men remain at home and make bread. But should they know of any young men keeping away from the service who cannot be made to go any other way, let them write to the Executive. I read all letters sent me from the people, but have not the time to reply to them.

In this passage Davis tells his soldiers that if they fight on they will be "limping" with "an empty sleeve," and that the men who remain home will "grow rich." He adds that the old men who stay home effeminitely "making bread" should write President Davis to inform on any young men avoiding military service – but that he, Davis, would have no time to answer those letters.

The speech is a testament to the courage of the Americans who fought to gain their independence from the United States, but it is also an admission of the hopelessness of that struggle. Davis' imagery unintentionally reflected the fact that so many Confederate soldiers had been grievously wounded and called into question the impaired leadership of General Hood:

Let us with one arm and one effort endeavor to crush Sherman.

In my opinion the most demoralizing aspect of Davis' speech – the worst mistake he made – was to use the word "aristocracy" to describe Confederate society. This was probably Davis' honest opinion, his vision of what his country should be. In his utopian society wealthy planters and slaveholders would dominate, blacks would labor unremittingly, and poor whites would serve as peasants and cannon fodder. This vision stands in stark contrast to Lincoln's vision of a country "conceived in liberty and dedicated to the proposition that all men are created equal." Here is what Lincoln said to a departing Ohio regiment a month earlier, encouraging them to return to the fighting after a visit home:

I suppose you are going home to see your families and friends. For the service you have done in this great struggle in which we are engaged I present you sincere thanks for myself and the country. I almost always feel inclined, when I happen to say anything to soldiers, to impress upon them in a few brief remarks the importance of success in this contest. It is not merely for to-day, but for all time to come that we should perpetuate for our children's children this great and free government, which we have enjoyed all our lives. I beg you to remember this, not merely for my sake, but for yours. I happen temporarily to occupy this big White House. I am a living witness that any one of your children may look to come here as my father's child has. It is in order that each of you may have through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained, that we may not lose our birthright—not only for one, but for two or three years. The nation is worth fighting for, to secure such an inestimable jewel. (Speech to 166th Ohio Regiment, August 22, 1864, 7 Collected Works, at 512)

The contrasting speeches by Abraham Lincoln and Jefferson Davis sharply illustrated to all of the people of the United States what the differences were between the societies of the United States and the Confederacy, and demonstrated why it was necessary to preserve the Union and abolish slavery.

This story on NPR is why I teach Law and Theology (occasionally). Our ideas and beliefs, whether implicit or explicit, about the nature of God's judgement and grace impact our ideas about human behavior and markets, and therefore about law.

In yesterday's post I discussed the effect of Section 776.041 of Florida law which codifies the common law rule that to claim self-defense a criminal defendant must not have been the aggressor. Under this statute George Zimmerman's guilt or innocence is likely to turn on whether the jury finds that he "initially provoked" the incident in which he shot Trayvon Martin to death. If he did provoke the attack and did not subsequently try to escape or withdraw from the confrontation, the "Stand Your Ground" law does not apply and Zimmerman will not be permitted to claim that he acted in self-defense. In this post I examine two recent Florida cases interpreting 776.041 and I cite some older Florida cases applying the common law rule that a wrongdoer may not claim that he acted in self-defense.

In Vila v. State 74 So.3d 1110 (5th Dist. 2011), the District Court of Appeal affirmed the defendant's conviction for battery. The Court stated that "The victim testified that Vila opened the door to his truck, reached inside, pulled him out, threw him to the ground, and began hitting him with a bicycle tire." The jury convicted the defendant of "burglary of a conveyance," and so the Court of Appeal concluded that the jury believed the victim's testimony on this point. The Court of Appeal found that the defendant's conduct of pulling the victim out of the car "initially provoked" the incident, and that this meant that the defendant was not entitled to claim "self-defense" to the charge of battery. The court concluded:

The jury's unchallenged verdict on the burglary charge causes us to conclude that Vila was the initial aggressor and surrendered his right to self-defense.

In Johnson v. State, 65 So.3d 1147 (3rd Dist. 2011) the District Court of Appeal affirmed the defendant's conviction for attempted second degree murder. There was evidence that there had been an earlier altercation that day between the two men and that the defendant had attempted to run over the victim with his motorcycle. When the victim went to the store two or three hours later, the defendant was there. The defendant testified that the victim got out of his car and rushed towards him attacking him. The defendant said that he shot the victim because he was losing consciousness and was afraid the victim would kill him. The victim testified that when they arrived at the store the defendant banged on the back window of the victim's car, that he (the victim) got out of the car, the defendant approached the victim, and the two "got locked up" and "tussled a bit" when the defendant shot the victim.

The Court of Appeal found that victim's testimony was sufficient to invoke Section 776.041 and instruct the jury that the defendant may not claim self-defense if he "initially provoked" the attack. The court was careful to state that the acts constituting "initial provocation" must be "contemporaneous" with the actions of the victim.

An older Florida case which was decided before 776.041 was enacted involved a "pursuit" which is perhaps analogous to Zimmerman's actions against Martin. In Mixon v. State 59 So.2d 38 (Fla. 1952), the Florida Supreme Court affirmed the defendant's conviction for second degree murder where there was evidence that the defendant armed himself, pursued the victim, and shot him. The court stated:

The appellant and the man he later admitted killing had an altercation while the appellant was sitting in his jeep, the other man standing at the side of the vehicle. The appellant drove to his home nearby where he procured a revolver, while his adversary continued along the highway, afoot. The appellant, accompanied by his wife and their young daughter, then drove in the same direction until he overtook his former antagonist when both stopped. … Were we convinced that the final encounter was of such nature that the issue of self defense was properly introduced and the appellant's blame should therefore be judged by the amount of force he used in resisting his victim, we think the testimony would have been admissible. But the facts believed by the jury point too strongly to a deliberate pursuit by appellant, after the original difficulty had ended and the parties had separated. The law is quite clear that one may not provoke a difficulty and having done so act under the necessity produced by the difficulty, then kill his adversary and justify the homicide under the plea of self defense. (emphasis supplied)

The West Key Digest system brings up a number of older Florida cases involving the rule that a "wrongdoer" may not claim self-defense. In several of these cases the courts stated that the defendant must be "free from fault" in order to claim self-defense. The quoted language in each case is from the key digest headnote, not the case itself:

Matthews v. State (1937) ("In murder prosecution, defendant could not invoke defense that deceased was  armed with a pistol and that defendant shot him in self-defense, where evidence showed that defendant was aggressor in bringing on difficulty and was not free from fault.")

Bowman v. State (1934) ("Killing is not justifiable or excusable if necessitated by accused's acting wrongfully or without being reasonably free from fault in provoking difficulty.")

Gaff v. State (1931) ("Accused, to successfully excuse homicide on ground of self-defense, must have been free from fault, or receded after having been aggressor.")

Scholl v. State (1927) ("One interposing self-defense in prosecution for homicide must not have wrongfully occasioned necessity of killing.")

Landrum v. State (Fla. 1920) ("On a trial for murder, it is proper to charge that one cannot acquit himself of liability for the consequences of a personal difficulty on the ground of self-defense, unless he is reasonably free from fault in entering thereupon.")

Stinson v. State (1918) ("Defendant cannot avail himself of defense of self-defense when he himself brought on the situation under the compulsion of which he strikes the blow or fires the shot which he claims was justified.")

Barton v. State (1916) ("If one wrongfully occasions necessity for self-defense, though he may have reasonable ground to apprehend a felony, or serious personal injury, and there is imminent danger thereof, he cannot justify a killing on the ground of self-defense.")

Barnhill v. State (1908) ("One who seeks and brings on an affray cannot plead self-defense.")

Kennard v. State (1900) ("The aggressor in a difficulty, one not reasonably free from fault, cannot justify homicide committed in such difficulty on the ground of self-defense.")

Lovett v. State (1892) ("On a trial for murder, it is proper to charge that one cannot acquit himself of liability for the consequences of a personal difficulty on the ground of self-defense, unless he is reasonably free from fault in entering thereupon.")

In the Zimmerman case the prosecution will make the following argument. Based upon his own statements to the police dispatcher Zimmerman profiled Martin and followed him in his car, and then exited his car and followed him armed with a gun. Zimmerman suspected Martin of committing a crime and was intent that Martin should not get away. Martin was completely innocent of any crime; he was simply walking home from a trip  to the store. Zimmerman was unjustified in pursuing Martin and under the circumstances his conduct was threatening. This, the prosecution will argue, was sufficient to "initially provoke" the ensuing struggle, no matter who struck the first blow. There is no credible evidence that Zimmerman either tried to escape from Martin or that he withdrew and clearly indicated his intent to withdraw from the altercation. Accordingly, under 776.014, Zimmerman may not claim that he acted in self-defense.

Zimmerman, of course, will seek to introduce evidence rebutting these findings.

The "Stand Your Ground" law explicitly provides that a person "has no duty to retreat" if he or she is "not engaged in an unlawful activity." However, another statute entitled "Use of Force by Aggressor" provides that if a person initially provokes the use of force then that person may not claim self-defense unless he or she has "exhausted every reasonable means to escape." I suspect that prosecutors will rely upon this second law in their prosecution of George Zimmerman for the shooting death of Trayvon Martin.

Section 776.013(3), the "Stand Your Ground" law (which was discussed in this previous post) will constitute Zimmerman's principal defense. This statute says that a person "has no duty to retreat" in the face of an attack. This law states:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

However, another Florida law overrides 776.013. This other law is a later section of the same chapter of the Florida laws, Section 776.041 entitled "Use of Force by Aggressor." This section of the law explicitly states that the rules of self-defense that are "described in the preceding sections of this chapter" do not apply if the defendant was attempting to commit a forcible felony OR if the defendant initially provoked the attack against him. Section 776.041 provides:

Use of force by aggressor.�The justification described in the preceding sections of this chapter is not available to a person who:

(1)�Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2)�Initially provokes the use of force against himself or herself, unless:

(a)�Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b)�In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

This statute allows an aggressor to claim self-defense only if the person "has exhausted every reasonable means to escape" or if "the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force."

Under Section 776.041 the prosecution need not prove that Zimmerman swung the first blow when they finally came together. It need only prove that Zimmerman "initially provoked" the attack. As noted in yesterday's post, in their probable cause affidavit the prosecutor's investigators  repeatedly emphasized Zimmerman's state of mind – his unfounded belief that Martin was committing a crime. The prosecution will attempt to prove that because of his irrational suspicion and against the advice of the police dispatcher Zimmerman unreasonably followed Martin armed with a gun, thus provoking the confrontation that led to Martin's death. If Martin had confronted Zimmerman when they first encountered each other Zimmerman would have had no duty to retreat. However, if the jury finds that  Zimmerman provoked the attack, the jury may not find that Zimmerman acted in self-defense unless they also find that Zimmerman either tried to escape from Martin or that he withdrew from Martin and clearly indicated his desire to withdraw.

Talking Points Memo has posted the affidavit filed by the special prosecutor's office explaining why there was probable cause to charge Zimmerman with second degree murder in the shooting death of Trayvon Martin.

The investigators – T.C. O'Steen and Dale Gilbreath – state that they "have taken sworn statements from witnesses, spoken with law enforcement officers who have provided sworn testimony in reports, reviewed other reports, recorded statements, phone records, recorded calls to police, photographs, videos, and other documents."

Most of the facts that O'Steen and Gilbreath recite are already familiar to persons following the case. Zimmerman saw Martin returning to the housing complex where Zimmerman lived and Martin was visiting, Zimmerman followed Martin, an altercation ensued, and Zimmerman shot Martin. Several portions of the affidavit jumped out at me, however, all contrasting Zimmerman's suspicious state of mind with Martin's innocence. First, the investigators state that Zimmerman "profiled" Martin:

Martin then walked back to and entered the gated community and was on his way back to the townhouse where he was living when he was profiled by George Zimmerman. Martin was unarmed and was not committing a crime.

Second, they say that Zimmerman "assumed Martin was a criminal" and "felt Martin did not belong":

Zimmerman who also lived in the gated community, and was driving his vehicle observed martin and assumed Martin was a criminal. Zimmerman felt Martin did not belong in the gated community and called the police.

Third, the investigators relate statements that Zimmerman made during his 911 call to the police that suggest that Zimmerman suspected Martin of being a criminal:

Zimmerman perceived that Martin was acting suspicious. … During the recorded call Zimmerman made reference to people he felt had committed and gotten away with break-ins in his neighborhood. Later while talking about martin, Zimmerman stated "these assholes, they always get away" and also said "these fucking punks".

Fourth, Zimmerman followed Martin, disregarding the instructions of the police dispatcher:

Zimmerman got out of his vehicle and followed Martin. When the police dispatcher realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that and that the responding officer would meet him. Zimmerman disregarded the police dispatcher and continued to follow Martin who was trying to return to his home.

In short, the investigators repeatedly emphasized both Zimmerman's suspicious state of mind and Martin's innocence.

In concluding the affidavit the investigators state that the facts mentioned in the affidavit "are not a complete recitation of all the pertinent facts and evidence" but were only presented to demonstate probable cause to charge Zimmerman with second degree murder.

In her news conference announcing that George Zimmerman was being charged with second degree murder in the death of Trayvon Martin, Florida Special Prosecutor Angela Corey mentioned several times that self-defense is an "affirmative defense" under Florida law. She also said that "Stand Your Ground" is "a tough affirmative defense to overcome." It will be "tough" for the prosecution because although Zimmerman has to introduce some evidence that he acted in self-defense, that doesn't mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a "reasonable doubt" as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.

Six years ago in Murray v. State, 937 So.2d 277, 279 (Fla. 4th Dist. 2006), the Fourth District Court of Appeal in Florida ruled that once a defendant in a criminal case has introduced proof that he acted in self-defense the jury is entitled to consider the defense, and the jury may not convict the defendant unless it finds beyond a reasonable that he did not act in self-defense. The Fourth District Court of Appeal stated:

But, with these additional facts, did he also incur a â��burden of proofâ�� identical to the State's? That is, did he have to prove the additional facts for self-defense beyond a reasonable doubt?  Or was he instead bound by some lesser standard-say, the greater weight of the evidence? Indeed, how about something even less onerous than that? Was he merely obligated to lay the additional facts before the jury, without any burden as to the strength of their probative value – other than they might be true? The answer is this. No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense.

Last year the Fifth District Court of Appeal quoted this language from Murray and followed the same rule in the case of Montijo v. State, 61 So.3d 424 (Fla. 5th Dist, 2011). In Montijo the trial judge had instructed the jury that the defendant had the burden of proving that he acted in self-defense "beyond a reasonable doubt." Montijo's attorney did not object to the jury instruction, but the appellate court found that the trial judge had committed a "fundamental error" by giving that instruction and ordered a new trial for the defendant. The Fifth District Court of Appeal stated:

The inclusion of the phrase �beyond a reasonable doubt� in the jury instruction placed the burden upon Montijo to prove self-defense, depriving him of a fair trial and rising to the level of fundamental error. Accordingly, we reverse.

Seminole County, where Trayvon Martin was killed, is in the is in the Fifth Appellate District, so the rule in Montijo is controlling unless and until the law is changed.

Florida Standard Jury Instructions online are in accord with the courts' rulings in Murray and Montijo. Instruction 3.6(f) states:

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

On April 1, 2012, the Florida Bar News published proposed amendments to the Standard Jury Instructions. The proposed amendment to Instruction 3.6(f) would strengthen this language to clarify that the jury may convict the defendant only if it finds beyond a reasonable doubt that the defendant did not act in self-defense. The proposed amendment adds the underlined phrase to the charge to the jury:

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

The bottom line is that Zimmerman cannot be convicted of murder or manslaughter unless the evidence shows beyond a reasonable doubt that he did not act in self-defense.

George Zimmerman has been charged with second degree murder, which carries a possible penalty of life in prison. A possible lesser charge is manslaughter, for which he could be sentenced to 15 years imprisonment. This post sets forth the relevant Florida statutes on homocide.

Jeff Weiner and Rene Stutzman of the Orlando Sentinel report in George Zimmerman jailed on second-degree murder in Trayvon Martin shooting on the charges that special prosecutor Angela Corey has brought against Zimmerman.

The Florida Murder statute is contained in Section 782.04. First degree murder (Section 782(1)(a)) requires proof of "premeditated design" and is a capital offense. Second degree murder, in contrast, requires proof of "imminently dangerous" conduct "evincing a depraved mind." Second degree murder is defined in Section 782.04(2), which provides:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life ….

Zimmerman could have been charged with manslaughter, which is defined in Section 782.07(1). That section of the law provides:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree ….

According to Section 775.082, the maximum penalty for a felony of the second degree is 15 years.

Professor Huhn will present a program today at 4:00 at Ohio Northern University Pettit School of Law on Same Sex-Marriage and Reality-Based Legal Analysis. The program will summarize the present status of same-sex marriage laws and litigation in the United States, and describe this movement within the larger intellectual and jurisprudential context of Legal Realism and Pragmatism.

Here.

Social conservatives sincerely believe that they are defending "morality" when they condemn practices such as  birth control, women working outside the home, and same-sex marriage. Their view is that these practices are "immoral" because they threaten the fabric of society. They consider people who condone these social transformations to be fostering "immorality."

They are mistaken. They view change itself as threatening. They forget that society often changes for the better – that human progress is possible – and that if given the opportunity to pursue their hopes and dreams people can often make this a better world.

The habit of social conservatives to think that they are defending "morality" is evident in the hysteria that arose over the subject of same-sex marriage. According to some conservative leaders, Satan is walking the land because some people of the same gender love each so much they are willing to promise to be faithful to each other and to share everything they have. What blindness! Committed gay and lesbian couples actually contribute to the strength of our families, our communities, and our society. Anyone can see that! So why all the uproar over what should be a relatively peaceful transition to a new level of acceptance?

Opposition to same-sex marriage is simply stated and easy to understand. Same-sex marriage, says its opponents, "threatens the institution of marriage." Some opponents even claim that it is not possible to speak of "same-sex marriage" – that the phrase itself is a contradiction in terms, a physical and moral impossibility.

The opposition to same-sex marriage is not grounded in logic or reality. It is based simply on tradition. Cultural and religious traditions condemn loving relationships between persons of the same gender, so according to social conservatives the practice of same-sex marriage is "immoral."

Those who approve of same-sex marriage and other changes to society such as the responsible use of birth control or the liberation of women from gender-based roles do not consider themselves to be fostering "immorality." They do not perceive themselves to be on the side of Satan or contradicting basic norms of what is good and right. They simply have a different way of telling right from wrong.

For example, liberals believe that whatever our cultural and religious traditions have been, people should not be treated differently unless they really are different. In accordance with this principle our society eventually came to the realization that racial discrimination is wrong. We learned that gender discrimination is wrong. And now we are figuring out that discrimination on the basis of sexual orientation is wrong. We now know – and social science studies prove – that gay and lesbian couples love each other just as much and are just as good at raising children as heterosexual couples. There is no earthly reason to treat same-sex couples differently – and therefore it is wrong to treat them differently.

This same dynamic is at work on the Supreme Court of the United States. Some justices are beholden to "tradition" in their interpretation of the Constitution. They maintain that if a group of persons has been historically discriminated against, that alone is reason enough for the law to continue to treat them differently. Other justices define equality more broadly and more realistically. They adhere to the principle that "persons who are similarly situated must be treated alike," and that principle has been repeatedly invoked to protect groups such as blacks, women, and the disabled from laws that enforced and reinforced traditional stereotypes.

If you, dear reader, are a social conservative, I urge you to pause the next time you are tempted to condemn me or another liberal for fostering "immorality." Please consider the possibility that I may see myself in a different light, that I may have a different way of telling right from wrong, and that what you regard as "immoral" I regard simply as a step forward.

During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service – or the police generally - carte blanche to arrest protesters for pretextual reasons.

The Supreme Court heard oral argument in Reichle v. Howards on March 21. The facts of the case are set forth in this earlier post. Essentially, Mr. Howards made some rude remarks about the Iraq War to Vice-President Dick Cheney in a public mall and touched him or pushed him on the shoulder. Later when confronted by the Secret Service Howards lied and denied that he had touched Mr. Cheney. Howards was promptly arrested. Howards sued the agents on the theory that they had arrested him not because they had probable cause (which they clearly did) but rather because they disagreed with what he had said to the Vice-President. The Tenth Circuit Court of Appeals ruled that Howards had the right to bring this lawsuit.

On the one hand, this seems like an easy case. The Secret Service has an important and difficult job to do. They have to protect our nation's leaders and we don't want them worrying about being sued by every protester who is properly arrested for harassment. On the other hand, do we really want to give the police immunity when they arrest someone for trespassing, littering, jaywalking, or driving with a broken taillight just because they don't like what the person has to say?

What makes this case more difficult is the fact that we don't allow the police or even the Secret Service to arrest people because of their race. The courts are not about to graft an exception onto the Equal Protection Clause for law enforcement officers even when they have responsibility for protecting the President of the United States. So how can we and why should we create such an exception to the First Amendment?

My impression from oral argument is that the justices are inclined to reverse the Tenth Circuit and rule in favor of the Secret Service agents by dismissing the lawsuit. A clue as to how the Court might do this was apparent from a question that Justice Stephen Breyer asked Sean Gallagher, the attorney representing the Secret Service agents:

And the — the question I wanted to ask you there is, you make a very strong case where the President and Vice President are involved, the need to protect them, but the rule that you there adopt is a rule that will apply to every police officer, anyone who arrests anyone anywhere in the country, and no matter how clear it is that the motive was retaliation against a point of view, that individual will be protected from a Bivens action.
So, it sounds as if your first claim — the remedy sweeps well beyond the need that you sketch. And so, I'd like your response to that. (p. 6)

In other words, the Court might adopt a rule granting immunity from First Amendment retaliation claims only to those law enforcement officers who are performing protective services. Furthermore, that immunity would apply only in situations where the police otherwise had probable cause to arrest the protester. I believe that this is how the Court is likely to rule.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess the political branches in the determination of national economic policy.

I promised that today I would explain why the courts lack that power. There are two reasons. First, the courts are not institutionally equipped to undertake the complex analysis necessary to the establishment of economic policy. Second, the courts are not democratically authorized to balance and compromise the economic interests of different segments of our society.

Both of these points were made in Part III of the amicus brief that I submitted to the Supreme Court on behalf of a committee of professors in the health care case. For the second point regarding the compromise among economic interests we are indebted to a member of the committee, Professor David S. Cohen of the Earle Mack School of Law, Drexel University. Part III of the brief is reproduced below:

III. ECONOMIC ANALYSIS IS SUITED TO THE LEGISLATIVE DUTY TO DEVELOP PUBLIC POLICY BUT IS NOT COMPATIBLE WITH THE JUDICIAL DUTY TO INTERPRET THE MEANING OF THE CONSTITUTION

In deciding whether to enact the individual mandate as part of the PPACA, Congress had to consider a host of interrelated factors including the following: the cost of health care in the United States; the cost of health insurance; the extent of out-of-pocket expenses for health care; the increase in the cost of health insurance relative to increases in personal income and the cost of living; the absolute and relative cost borne by persons in different income groups; the extent and effect of cost-shifting under current law; and the number and effect of personal bankruptcies attributable to the cost of health care. Most importantly, Congress had to assess the state of the nation�s health and the effect of the lack of adequate insurance upon people�s health.

In deciding whether the nation�s system of paying for medical care ought to be reformed, Congress also had to evaluate the cost and effectiveness of current federally funded programs, including Medicare, 42 U.S.C. §1395, Medicaid, 42 U.S.C. §1396, the National Health Service Corps, 42 U.S.C. §254d, the Veterans Health Administration, 38 U.S.C. §7401, and federally funded community health centers, 42 U.S.C. §254b. For purposes of comparison, Congress had to familiarize itself with the details of the health care delivery systems in other countries as well as the relative cost and efficacy of those programs. Once again, a prime consideration was whether the people of other countries enjoy better health than American citizens.

Congress also had to predict the likely effect of the PPACA on all of the previously mentioned cost and health factors. Specifically, Congress sought to anticipate the likely effect of insurance reforms, including guaranteed issue regardless of health; guaranteed coverage of preexisting conditions; complete coverage for preventive care; coverage for adult children; and minimum medical loss ratios. It had to determine the level of federal subsidies to individuals and families of different income groups that would be necessary to enable them to purchase health insurance and offset out-of-pocket expenses; the future cost of federal contributions to the states that would be necessary to pay for the expansion of Medicaid; and the extent and mix of tax increases and spending reductions that would be necessary to pay for these reforms.

In keeping with our constitutional tradition that the states have served as laboratories for experimentation in governing, Congress also examined the efficacy of health insurance reform in the various states and modeled the PPACA after the plan that was adopted in Massachusetts in 2006, Mass. St. 2006, c. 58 (An Act Providing Access to Affordable, Quality, Accountable Health Care).

In making these determinations Congress had at its disposal an array of economic studies from various sources, including the Agency for Healthcare Research and Quality, the Office of the Actuary of the Centers for Medicare and Medicaid Services, the Congressional Budget office, the Joint Commission on Taxation, the Commonwealth Fund, the Organisation for Economic and Cooperative Development, the World Health Organization of the United Nations, the Kaiser Family Foundation, and Families USA. Congress also was free to consider the voluminous literature published by health care economists as well as their testimony before Congress.

All of the foregoing economic factors had to be considered in designing this complex, comprehensive scheme of legislation. In the words of the District Court below, the various elements of the PPACA are a �finely crafted watch,� containing �approximately 450 separate pieces,� many if not most of which are interrelated and interdependent. Florida v. U.S. Dept. of Health and Human Services, 780 F.Supp.2d 1256, 1304 (N.D. Fla. 2010). Congress had to choose not only from a competing set of economic models and theories but also had to decide how to combine the hundreds of moving parts of this Act into a comprehensive and unified scheme of economic regulation. This was a matter of legislative prerogative and is beyond judicial competency.

In the exercise of its lawmaking function, Congress is not only permitted but expected to take economic data and expert economic opinion into account in determining whether to enact a system of universal health care coverage and in deciding what form that system should take. While judges as individuals are as capable as legislators at understanding and acting upon this information, it is incompatible with their judicial role to bring these considerations to the interpretation of the Constitution. The role of the courts is limited to determining whether Congress had a rational basis for enacting a particular plan of economic legislation.

In our brief we cited a dozen economic studies that bear upon the economic judgments that Congress had to consider in drafting this legislation. We could have cited hundreds.

Generations of Americans have struggled to achieve a program of universal health care. Health care providers, health insurers, consumer advocates, non-profit think tanks, and government agencies have researched this issue for decades and produced mountains of data. The issue has repeatedly come before Congress consuming vast amounts of political energy. (It bears repeating that the model of the "individual mandate" has been a Republican idea for nearly twenty years; the Party abandoned it only when Democrats embraced it after the 2008 election. Until then no-one thought of it as unconstitutional.) Congress worked on this specific legislation for over a year. The law contains over 450 separate provisions, most of which are intertwined and interdependent.

In contrast, the Supreme Court has undertaken review of this law only a few months ago as one case in a particularly full caseload. Even without the health care case this would be a challenging year for the Court to clear its docket. It is understandable – though still alarming – that at oral argument some members of the Court exhibited confusion regarding what was in the law and how the health insurance market works. That confusion reinforces the constitutional principle that under the doctrine of Separation of Powers, economic policy is the province of the political branches, not the judicial branch.

When the courts consider the constitutionality of laws that affect fundamental rights the presumption of constitutionality disappears. The courts are appropriately skeptical of legislation that affects fundamental rights such as freedom of speech, freedom of religion, the right to privacy, or the right of self-defense. But when the courts undertake to review the constitutionality of measures that are designed to adjust economic realities and reassign economic rights and responsibilities, their role is extremely limited, and for good reason. The federal courts do not democratically represent the economic interests of American society. That role is assigned to Congress and the President.

Congress had a rational basis for believing that Americans' lack of access to affordable health care is substantially affecting interstate commerce, and it had a rational basis for believing that the individual mandate is necessary to carry out the plan of universal coverage enacted in the PPACA. The law is constitutional.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

The Attorney General's letter is here. More below.

The President of the United States made a public statement in support of the constitutionality of the Patient Protection and Affordable Care Act. He said that it would be "unprecedented" for the Supreme Court to strike down economic legislation of this magnitude. Judge Jerry Smith of the Fifth Circuit Court of Appeals responded by ordering the Department of Justice to write him a three-page, single-spaced letter discussing the power of the courts to review the constitutionality of legislation. The Attorney General has responded with a letter in support of the President's remarks, concluding that "The President's remarks were fully consistent with the principles described herein."

The letter of the Attorney General reaffirms the fundamental principle that economic legislation comes before the courts cloaked with the presumption of constitutionality – that the courts are not clothed with the power to review the wisdom or necessity of economic laws, but rather must defer to Congress and are bound to uphold such laws so long as they are supported by a "rational basis."

Furthermore, it is Judge Smith, not the President, who appears to fundamentally misunderstand the doctrine of Separation of Powers.

The President of the United States was democratically elected by the people of this nation. One of the most important policy goals of his administration – and one of the fondest hopes of the American people – was that the Congress would enact and the President would sign a law that would establish a system of universal health care. Tens of millions of hardworking Americans can no longer afford health care. They either have no health insurance or their insurance simply isn't adequate: their policies exclude pre-existing conditions, they include high deductibles and co-pays, and they contain annual and lifetime limits on coverage. The President signed the PPACA into law on March 23, 2010, and as the nation's chief law enforcement officer he has defended the law in court. The President could, if he wished, have appeared in the Supreme Court and defended the law personally. (I wish he had.) His defense of the law was measured and appropriate.

In his outburst ordering the Department of Justice to write him a three-page, single-spaced letter about the power of judicial review it is Judge Smith who has overstepped the role assigned to him by the Constitution. Barack Obama, both as President of the United States and as a citizen, has the right to encourage the courts to uphold this landmark legislation. But I know of no principle of constitutional law that grants a judge the power to require the Executive Branch to prepare a dissertation explaining a President's remarks.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

The State Department has released a copy of the February 15, 2006 memo by Philip Zelikow arguing that the "enhanced interrogation techniques" used to question detainees were illegal. The Bush administration had sought to destroy all copies of the memo.

Two days ago Tom Blanton at The National Security Archive posted The Zelikow Memo: Internal Critique of Bush Torture Memos Declassified: Document Sheds Light on Disputes over Treatment of Detainees.

During the previous administration Philip Zelikow served as the attorney for Secretary of State Condaleeza Rice. On February 15, 2006, he issued a memo concluding that the United States had violated several federal statutes and international treaties by torturing prisoners. Not only was his memo ignored, but the administration sought to destroy all copies of it. Blanton quotes Zelikow from a statement he made in 2009:

"My colleagues were entitled to ignore my views. … They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives."

That memo, entitled The McCain Amendment and U.S. Obligations Under Article 16 of the Convention Against Torture, disagreed with the position taken by the administration that the "enhanced interrogation techniques" were perfectly legal.

Zelikow rightly noted that the Convention Against Torture not only prohibited member states from engaging in "torture" but that it also prohibited "cruel, inhuman, and degrading treatment" of prisoners. The United States Senate added an addendum to the treaty stating that "cruel, inhuman, or degrading treatment" was the same as "cruel and unusual punishment" under the Constitution. In other words, the same rules applied to prisoners of war as applied to prisoners in U.S. jails. This was also the plain meaning of Article 3 of the Geneva Convention. In his 2009 article in Foreign Policy entitled The OLC "torture memos": thoughts from a dissenter, Zelikow stated:

The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail. In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest — if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.

Zelikow is correct. I came to the same conclusion in my 2008 article Waterboarding Is Illegal.

Some questions of constitutional law and statutory interpretation are difficult. This one is not. If a country sheriff or prison warden in the United States hung a naked prisoner from the ceiling for six days, repeatedly sprayed him with near-freezing water, and prevented him from sleeping for days on end, it would be an open and shut case. Those police or prison guards would be convicted of several crimes and sentenced to jail themselves. Add "waterboarding" to the list – which we called "water torture" and considered to be a war crime when it was practiced by the Nazis, the Japanese, the North Koreans, and the North Vietnamese – and there never was any reasonable doubt about whether this conduct was legal.

And what does it say about an administration that finds it necessary to destroy all copies of a memo stating that it is breaking the law? That is not the act of a government that is confident it is in the right. Open and honest debate on this issue was deliberately suppressed. From the point of view of those who carried out this brutal policy it was necessary to shroud it in secrecy.

These events were a stain upon our nation. We must never allow this to happen again.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation of Powers.

At oral argument last week in the health care case Justice Kennedy made the following remarkable proposals about the presumption of constitutionality:

Could you help � help me with this. Assume for the moment � you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

The answer to both questions is NO. Justice Kennedy's proposed view of the role of the Judicial Branch violates the Separation of Powers.

The Legislative Branch enacts legislation. The Judicial Branch ascertains the meaning of laws and determines whether they are constitutional. In interpreting a statute the courts must defer to the intent of the legislature. The touchstone for statutory interpretation is "the intent of the legislature." Similarly, in assessing the constitutionality of a statute the courts must presume that it is constitutional.

There is only one exception to this rule. If Congress or a state enacts a law that infringes upon an individual's constitutional rights, then the courts will "strictly scrutinize" the law. In such a case the government bears the burden of proving that the law is constitutional – it must prove that the law is necessary to accomplish a compelling governmental interest. If the law does not affect anyone's constitutional rights then the "rational basis test" applies. The person challenging the law has the burden of proving that the law does not have any tendency to accomplish a legitimate governmental purpose.

It used to be that the Supreme Court recognized "economic liberty" as a constitutional right, and frequently struck down laws regulating employers and protecting workers under the theory of "economic substantive due process." That is no longer the case.

Instead, today economic legislation is presumed constitutional. This rule applies whether or not the law is "novel" or "shocking" to the members of the Court. The Supreme Court has recognized this principle in dozens, if not hundreds of cases. Here are but a few quotations from cases demonstrating this basic precept of constitutional law:

[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. United States v. Carolene Products, 304 U.S. 144, 152 (1938) (Stone, J.) (upholding federal law against challenge under Due Process Clause).

[T]o be constitutional � It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) (Douglas, J.) (unanimous decision) (upholding state law against challenge under Equal Protection Clause).

We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (Black, J.) (unanimous decision) (upholding state law against challenge under Due Process Clause).

[W]here we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. Katzenbach v. McClung, 379 U.S. 274 303-304 (1964) (Clark, J.) (unanimous decision with concurring opinions by Black, Douglas, and Goldberg, JJ.) (upholding federal law under Commerce Clause).

It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976) (Marshall, J.) (upholding federal law against challenge under Due Process Clause).

Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U.S. 144, 153-154 (1938), they cannot prevail so long as �it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable.� Id., at 154. Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981) (Brennan, J.) (footnote omitted) (upholding state law against challenge under Equal Protection Clause).

[Referring to] the strong deference accorded legislation in the field of national economic policy�. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 476 U.S. 717, 729 (1984) (Brennan, J.) (unanimous decision upholding federal law against challenge under Due Process Clause).

In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. South Dakota v. Dole, 483 U.S. 203 (1987) (Rehnquist, J.) (upholding federal law under General Welfare Clause).

[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. United States v. Comstock, __ U.S. __, 130 S.Ct. 1949, 1956 (2010) (Breyer, J.) (upholding federal law under Necessary and Proper Clause).

Tthe principle that the courts must defer to Congress on questions of economic policy pervades the Constitution. This principle applies in every field of Constitutional Law – Commerce Clause, Spending Clause, Necessary and Proper Clause, Fifth Amendment Due Process, and Fourteenth Amendment Due Process. This principle is so basic to our system of government that it must be considered a fundamental aspect of the doctrine of Separation of Powers. There is no exception to this principle for "novel" statutes. All statutes are novel. Nor does it matter how significant a departure that the law makes from existing law. It matters not whether the law works a minor or a major change in our society. The people, acting through their representatives in Congress, have the right to determine national economic policy. That is the meaning of the foregoing cases.

In tomorrow's post I will discuss why the courts must defer to Congress in the realm of economic policy.

Wilson Huhn teaches Constitutional Law at The University of Akron.

More on that (and why it matters) here.

If there is one constitutional principle that Justice Anthony Kennedy is devoted to it is the principle of "individual liberty." In oral argument yesterday Solicitor General Donald Verrilli took an opportunity to address that concept.

The debate over health care reform has long centered over the concept of individual liberty. The opponents of the law contend that the individual mandate violates the liberty of the individual to decide for himself or herself whether or not to purchase health insurance.

The opponents of the law do not contend that they have a constitutional right to refuse to purchase insurance. They must concede that the states have the power to impose this obligation. Instead, they argue that Congress lacks the power to enact this law under the Commerce Clause or the Necessary and Proper Clause, and that to allow Congress to require individuals to purchase health insurance represents a threat to individual liberty.

This is an argument that resonates with Justice Anthony Kennedy. In opinion after opinion, Justice Kennedy has focused on and elaborated upon the right to "liberty." This is why he decided Citizens United the way he did, holding that corporations have a constitutional right to spend as much money as they wish in support of political candidates. It is why he ruled in Lawrence v. Texas that people have a constitutional right to have sex with other persons of the same gender. It is why in the case of Casey v. Planned Parenthood of Southeastern Pennsylvania he voted to reaffirm Roe v. Wade; even though he is personally opposed to abortion he respects the liberty of a woman to terminate a pregnancy in its early stages.

Kennedy's devotion to the principle of liberty is evident even in his literary style. The first word of his opinion in Lawrence v. Texas is "liberty."  The last word is "freedom." The first word in the joint plurality opinion he co-authored with Justices O'Connor and Souter is "liberty." The last word is also "liberty."

The foregoing are all cases dealing with fundamental individual rights, so it is understandable that Justice Kennedy would invoke the principle of "liberty." But Kennedy has invoked the concept of "liberty" even in cases that are concerned solely with the extent of governmental powers. In Clinton v. New York, for example, a separation of powers case involving the constitutionality of the federal Line Item Veto Act. Justice Kennedy was moved to write a separate concurring opinion in which he rebutted the notion, advanced by Justice Breyer, that the case did not involve an infringement of individual liberty. Kennedy wrote:

Just as Justice Kennedy found in Clinton v. New York that individual liberty was at stake when an enhanced power to rewrite legislation was concentrated in the Executive Branch, so he might find in this case that individual liberty is threatened by an unwarranted expansion of the power of the Legislative Branch to enact legislation requiring individuals to enter commerce.

Kennedy said as much during the first day of oral argument. Kennedy stated to Solicitor General Verrilli:

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.

On Monday Solicitor General Donald Verrilli did not have a good answer to Kennedy's concern. Yesterday, however, General Verrilli used his last few minutes on rebuttal in the Medicaid portion of the case to return to this point, and I think the much-criticized advocate for the government hit a rhetorical home run. Here are Verrilli's closing remarks in full:

I'd like to take half a step back here, that this provision, the Medicaid expansion that we're talking about this afternoon and the provisions we talked about yesterday, we've been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can't afford insurance.

There is an important connection, a profound connection, between that problem and liberty. And I do think it's important that we not lose sight of that.

That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty. 

And the same thing will be true for — for a husband whose wife is diagnosed with breast cancer and who won't face the prospect of being forced into bankruptcy to try to get care for his wife and face the risk of having to raise his children alone. And I could multiply example after example after example.

In a very fundamental way, this Medicaid expansion, as well as the provisions we discussed yesterday, secure of the blessings of liberty. And I think that that is important as the Court is considering these issues that that be kept in mind. The — the Congress struggled with the issue of how to deal with this profound problem of 40 million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem.

Maybe they were right; maybe they weren't. But this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court, with profound respect for the Court's obligation to ensure that the Federal Government remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights.

And I would urge this Court to respect that judgment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.

That's exactly right. When we speak of constitutional rights, we speak of "negative liberties," the concept that the government may not invade our inalienable rights of freedom of speech, freedom of religion, and the right to privacy. But when we speak of constitutional powers we are really concerned with "positive liberties" – the right of the American people, through their government, to construct roads, build bridges, protect the weak, feed the hungry, shelter the homeless, free the oppressed, educate our children … and extend adequate access to medical care to all American citizens.

In his book Abraham Lincoln and the Second American Revolution, James McPherson draws a distinction between "positive liberty" and "negative liberty," and defines positive liberty as "freedom to achieve a status of freedom previously denied by disability or law." McPherson, at 62-63, 137-138 (1991). McPherson notes that the powers of the federal government greatly expanded under Abraham Lincoln, whose administration built the transcontinental railroads, created the land-grant colleges, and opened the west to settlement through enactment of the Homestead Act – all during the Civil War. After the War the American people quickly ratified the 13th, 14th, and 15th Amendments all of which granted enforcement powers to Congress to protect our rights against encroachment by the states. The continued expansion of Congressional power under the Commerce Clause and the Spending Clause in the 20th century does not represent an infringement of the liberty of individuals, but rather an enhancement of the right of the American people, through their democratically-elected representatives, to enhance their "positive liberty" by raising their standard of living and improving their quality of life.

I deeply hope that Justice Kennedy and the his colleagues on the Supreme Court observe the limitations of the judicial role in reviewing the constitutionality of economic legislation. This case does not involve an infringement of one of our "negative liberties." Instead it centers upon the power of our government to enhance our "positive liberties" by extending health care to all Americans.

Wilson Huhn teaches Constitutional Law at The University of Akron.

In this post I set forth all of the questions that Justice Kennedy asked the three attorneys at oral argument today in the health care case. Evaluate for yourself which way this "swing justice" is tending.

As we all know, Justice Kennedy is the swing justice; as he goes, so goes the Court. During today's oral argument in the health care case he asked tough questions of all three attorneys: Solicitor General Donald Verrilli, Attorney Paul Clement on behalf of the states challenging the individual mandate, and Michael Carvin on behalf of the individual plaintiffs.

Questions to Solicitor General Donald Verrilli:

Can you create commerce in order to regulate it?

Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?  [General Verrilli responded that Congress could not mandate insurance in markets in which insurance does not serve as the method of payment.]

But why not? If Congress — if Congress says that the interstate commerce is affected, isn't, according to your view, that the end of the analysis.

I'm not sure which way it cuts, if the Congress has alternate means. Let's assume that it could use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power.

On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes.

But the reason, the reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.

Questions to Attorney Paul Clement:

Is the government's argument this — and maybe I won't state it accurately. It is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health insurance companies figure risks. That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?

But they are in the market in the sense that they are creating a risk that the market must account for.

Questions to Attorney Michael Carvin:

[Attorney Carvin stated that the government "used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured."  Justice Kennedy stated:]

I agree — I agree that that's what's happening here.

And the government tells us that's because the insurance market is unique. And in the next case, it'll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.  That's my concern in the case.

The justices had no questions for Solicitor General Verrilli during his four minutes of rebuttal.

What to make of this? Several news outlets are reporting that the individual mandate is in trouble – that the five conservative justices strongly signaled that they intend to find the individual mandate unconstitutional. See Carrie Budoff Brown, Josh Gerstein, and Jennifer Haberkorn, Politico, Conservative justices skeptical of individual mandate; Huffington Post, Supreme Court Health Care Law: Justices Come Down Hard On The Mandate.

That is not my impression. Certainly Justice Scalia unequivocally indicated that this was his view, and perhaps Justice Alito as well. It is safe to assume that Justice Thomas will vote to strike down the law. But Chief Justice Roberts, though skeptical, did not show his hand.

As for Justice Kennedy, I would describe his questions as thoughtful, probing, and careful – just what we would want from any justice in such an important case and what we would expect from the Court's "swing justice."

In short, Justice Kennedy has doubts. And in a case such as this – where Congress labored a full year to draft landmark legislation enacting a comprehensive statutory program of regulation – legislation that represents the culmination of a generations-long struggle to create a system of universal health care – any doubts must be resolved in favor of the constitutionality of the law.

The courts do not make economic policy – the legislature does. Based on today's oral argument I predict that Justice Kennedy and therefore the Court will uphold the individual mandate.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

The Supreme Court heard oral argument today on the issue of whether the Anti-Injunction Act applies to the individual mandate of the Affordable Care Act.  The transcript of oral argument is available here.  The bottom line is that it looks like the Supreme Court will proceed to the merits and decide whether the individual mandate of the Affordable Care Act is constitutional.

Several news outlets are reporting that, from what the justices said during oral argument, the Court is likely to find that the Anti-Injunction Act does not apply.  See Jennifer Haberkorn, Kate Nocera, Jason Millman, Political Pro, Court watchers: SCOTUS to blow past the AIA; Lee Ross, Fox News, Supreme Court Signals It Won't Punt on ObamaCare Decision.

I agree with the conclusions of those reporters. If the Supreme Court rules that way, it means that the Court has jurisdiction to decide the case this year and will proceed to determine whether the individual mandate is constitutional. Let's analyze what the justices said during the first part of oral argument that supports that conclusion.

As described in this previous post, the federal Anti-Injunction Act prevents the courts from hearing challenges to federal tax laws until the taxes have been assessed. If the AIA applied in this case the courts would have to wait until 2015 to decide whether the Affordable Care Act is constitutional. Both the federal government and the parties challenging the contended that the AIA did not apply, but because this issue goes to the power of the courts to hear the case, the parties are not permitted to "stipulate" that the courts have jurisdiction.  Accordingly the Supreme Court appointed counsel as amici curiae to argue that the AIA does apply and to produce the best arguments in support of that proposition.

Attorney Robert A. Long argued on behalf of the appointed counsel.  The Supreme Court gave him a very tough time.  The numbers in bold below are to the page of the transcript of oral argument.

4.  Justice Scalia told attorney Long that the language of the Affordable Care Act that provides that the penalty enforcing the individual mandate is applied to the Internal Revenue Service, not to the courts.

5.  Attorney Long argued that the Anti-Injunction Act must apply in order the protect the interests of the government in being able to collect taxes with the interference of the courts.  Justice Kennedy pointed out that taxpayers still have to exhaust their administrative remedies before they can go to court, and that if the courts wanted they could apply that rule of administrative law.

7.  Then Chief Justice Roberts chimed in in support of Kennedy's point, saying that if the Anti-Injunction Act does not apply, then the rules against hearing pre-enforcement challenges to tax cases are not jurisdictional in nature; in other words, whether to hear the case at this time is discretionary with the courts, not binding. Basically, this means that the Court would have the choice whether to hear this case or not. Roberts also asked Long whether he thought that Helvering v. Davis, an older case that said that the government could waive jurisdictional issues, should be overruled.

8.  Justice Ginsburg then pointed out differences in wording between the Anti-Injunction Act and another federal statute, the Tax Injunction Act. The Tax Injunction Act, she indicated, was directed to the courts and was clearly jurisdiction, but the Anti-Injunction Act was directed to parties and therefore could be waived by the government.

9.  Justice Alito then asked whether any previously decided cases would have come out differently if the Anti-Injunction Act were interpreted as being directed to taxpayers and not the courts. Attorney Long admitted that all of those cases would have come out the same.

11.  Attorney Long said that the Congress has "acquiesced" in the ruling that the Anti-Injunction Act is jurisdictional.  Chief Justice Roberts said that because the courts have gone back and forth on whether the law is jurisdictional, it isn't clear what Congress was "acquiescing" to.

11.  Justice Kagan mentioned a case, South Carolina v. Regan, where the court issued a ruling saying that there was an "equitable exception: to Anti-Injunction Act.

12.  Justice Sotomayor said that she counted at least four cases where the federal courts allowed "waivers" to the Anti-Injunction Act and three other cases where the courts recognized "exceptions" to the law.

14.  Justice Sotomayor then returned to Justice Alito's policy question: does it make any practical difference whether the Anti-Injunction Act is jurisdictional or not?

15.  Justice Scalia then took it upon himself to respond to Justice Sotomayor's question: "You could say that about any jurisdictional rule."  That is, that the question implies that the government should simply be permitted to waive any rule, even if it were jurisdictional.  Justice Scalia rhetorically asked, "Why should there be any jurisdictional rules?"

16.  Justice Breyer then turned to another problem with the statute – is the penalty associated with the individual mandate a "tax"?  He pointed out that the Affordable Care Act calls it a "penalty," not a tax.

18.  Justice Scalia agreed that there was "at least some doubt" whether this penalty is a tax.  "I find it hard to think that this is clear."

19.  Justice Ginsburg stated that the penalty associated with the individual mandate is not a "revenue-raising" measure because if it works as intended everybody will purchase health insurance and no penalties will be paid.  Sotomayor noted that federal statutes distinguish between taxes and penalties. Breyer remarked that he had told his law clerk to look up every single case listed in one of the briefs on this point and found out that every one of those cases involved a tax or a penalty for failing to pay a tax, not a penalty like the one imposed for failing to purchase health insurance.

21.  Justice Kagan then pointed out that there were other taxes and penalties in the Affordable Care Act that were expressly made subject to the Anti-Injunction Act, and that Congress failed to do that with respect to the individual mandate penalty.  Long conceded, "They could have been clearer about saying the Anti-Injunction Act applied."

23.  Justice Kennedy asked about the unusual wording of the Anti-Injunction Act, and Attorney Long responded that it was an old statute – 1867 – and that would accout for the "odd" phrasing.

23.  Justice Ginsburg then asked about another issue that the plaintiffs had raised.  The plaintiffs claimed that they were not challenging the penalty, but only the requirement to purchase health insurance. Attorney Long quite reasonably responded that the penalty was the only way that the individual mandate was enforced and therrefore could not be separated from the mandate. Justice Alito and Justice Kagan had follow-up questions about this issue.

29.  Justice Sotomayor asked Attorney Long whether the Solicitor General's reading of the Anti-Injunction Act would create any problems.  The Solicitor General argued that the AIA should be interpreted to apply to taxes, to penalties associated with non-payment of taxes, and to penalties that Congress expressly says are subject to the AIA.  Attorney Long once again conceded that "the Solicitor General's reading would probably create the fewest problems."

During Attorney Long's argument, eight justices repeatedly and vigorously expressed doubts about the applicability of the Anti-Injunction Act to this case. Although I have read transcripts where the justices expressed more anger or frustration, I have never seen the justices so united in rejecting an attorney's position.  In tomorrow's morning's post I will analyze the judges' reactions to the arguments by the government and the parties challenging the applicability of the AIA.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Some thoughts on that here.

I don't wish to comment specifically on the killing of Trayvon Martin until the investigation has been completed.  It now appears that this matter has been turned over to capable state and federal investigators.  Once all the facts are established there will be time to express opinions about that specific case.  However, the state statute that local police relied upon in refusing to make an arrest should be examined.  The law is deeply flawed and should be repealed.

The statute that Sanford, Florida, police invoked as justification for the killing of Trayvon Martin was enacted by the Florida legislature in 2005.  This NRA-sponsored law permits people to "shoot first" if they are afraid of someone in the streets.  At the time the opponents of the law warned that it would provoke more violence.  See Katie Sanders, Tampa Bay Times, Democrats warned about 'stand your ground' in 2005.  They were right.  Since the enactment of the law justifications for these kinds of killings are up nearly three-fold in Florida.  See CBS Miami, Deaths Nearly Triple Since �Stand Your Ground� Enacted.  Now congressional lawmakers want to extend this law to the entire country.  Bad idea.  We don't need a law that excuses "human hunting."

Here is the Florida law on self-defense. I have included both Section 1 and Section 3 here.  Section 1 deals with self-defense in the home.  Section 3 deals with self-defense anywhere else.  The problem is with Section 3:

JUSTIFIABLE USE OF FORCE

776.013â��Home protection;  use of deadly force; presumption of fear of death or great bodily  harm.â�� (1)â��A person is presumed to have  held a reasonable fear of imminent peril of death or great bodily harm to  himself or herself or another when using defensive force that is intended or  likely to cause death or great bodily harm to another if:      (a)â��The person against whom the  defensive force was used was in the process of unlawfully and forcefully  entering, or had unlawfully and forcibly entered, a dwelling, residence, or  occupied vehicle, or if that person had removed or was attempting to remove  another against that personâ��s will from the dwelling, residence, or occupied  vehicle; and      (b)â��The person who uses defensive  force knew or had reason to believe that an unlawful and forcible entry or  unlawful and forcible act was occurring or had occurred. … (3)â��A person who is not engaged in  an unlawful activity and who is attacked in any other place where he or she has  a right to be has no duty to retreat and has the right to stand his or her  ground and meet force with force, including deadly force if he or she reasonably  believes it is necessary to do so to prevent death or great bodily harm to  himself or herself or another or to prevent the commission of a forcible  felony.

Section 1 of the law makes sense.  People have the right to defend their homes and vehicles from being invaded.  Furthermore, the terms that appear in Section 1 are carefully defined in Section 2 and Section 4 of the law which I have not included. There is not much vagueness or ambiguity about the provisions that justify self-defense in the home.

But Section 3 is another story.  Notice how broadly Section 3 of the law is written.  It applies to any person "who is not engaged in an unlawful activity."  It applies to "any other place where he or she has a right to be."  There is "no duty to retreat."  The person "has the right to stand his or her ground."

At first blush, this sounds wonderful.  The law seeks to protect our right to individual liberty – to go where we want to go and to do what we want to do so long as we are not breaking the law.

But this is not the usual kind of criminal law.  Every other criminal law that I am aware of is composed of neutral terms that carefully and dispassionately describe specific conduct and states of mind that constitute criminal behavior. Other criminal laws do not "make a statement."  This one does. This statute is not so much a criminal law as it is political manifesto or a moral imperative. It is an indorsement of a particular "image" or "role" of the individual as a heroic figure.

What does it mean to "stand your ground" in daily life?  In the context of warfare, the term is clear. If we are ordered to "stand our ground" then we will hold our position like Jackson at Bull Run ("There is Jackson standing like a stone wall!") or  Prentiss at Shiloh ("Hold the sunken road at all costs!").

This is not really a criminal law. It is rather an attempt to celebrate a particular conception of "honor."  It does not carefully and dispassionately define its terms. Instead, it invokes memories and emotions; it reminds us of the sacrifices of our ancestors; it seeks to glorify violence and, in particular, the use of guns in the defense of justice. The key language contained in the statute – STAND YOUR GROUND – would be a terrific title for a war movie or a western, but it makes lousy law.

We don't know yet what really happened between Trayvon Martin and George Zimmerman.  Even if we did, though, this law is so vague that it makes it difficult to prosecute killings in the street.

The statute could be interpreted to permit me to patrol the public streets at night, to follow someone, and to speak to him. That is all lawful behavior. I would be in a place where I have a right to be and I would not be breaking the law. In fact, both of us would be in a place where we have a right to be, and neither of us would be breaking the law. If the other person is armed, or if I reasonably mistake a bag of skittles or a set of keys for a weapon I might reasonably feel threatened. And I could kill him. Or he could kill me. And neither one of us (if either survives) could be prosecuted.

The "stand your ground" law coupled with "concealed carry" is a prescription for blood in the streets. Police and prosecutors oppose the law – but it is popular with criminal defendants. See Alexia Campbell, Sun-Sentinal, More accused hope to use 'Stand Your Ground' law to gain freedom.

The persons responsible for the enactment of this statute like Florida lawmaker Dennis Baxley (who co-sponsored the measure) and former Florida Governor Jeb Bush (who signed it into law) now claim that the law does not apply in the Trayvon Martin case – that it was never intended to justify a killing under those circumstances.  See Jeff Glor, CBS Evening News, Fla. "Stand Your Ground" author may seek changes; Washington Post: Former Fla. Gov. Jeb Bush: Self-defense law he signed doesnâ��t cover Trayvon Martinâ��s death.

That may be true. Too bad they didn't think of that before they enacted this hopelessly vague "honor statute" into law.

The most serious problems with ambiguous laws such as this are the risk that the law will not be fairly enforced and the risk that the public will not perceive that the law is being fairly enforced. Laws like this make it easy to "selectively enforce" the law. Racial and ethnic minority communities are rendered completely at the mercy of local police and prosecutors. It is because of that risk of selective enforcement that outside investigators were brought into this case. But that is not a sufficient solution. It simply isn't feasible to monitor the decisions of police and prosecutors in every state and every local community where "stand your ground" is now the law. Laws like this challenge our faith in the rule of law. Repeal it.

For additional commentary, see Christian Science Monitor, Professor: Florida 'Stand Your Ground' law vague (featuring Columbia Law Professor Jeffrey Fagan); New York Times Opinion Pages, Killing, With the Law on Your Side (featuring commentary from seven contributors).

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Yesterday the Supreme Court issued its decision in Coleman v. Court of Appeals of Maryland, No. 10-1016.   By a vote of 5-4, the Court ruled that the doctrine of "state sovereign immunity" applied in this case, ending Coleman's lawsuit against the State of Maryland.

This is another in the series of 11th Amendment cases decided by the Supreme Court in recent years. Essentially, the rule is that if Congress enacts a law pursuant to the Commerce Clause then it may not abrogate state sovereign immunity; it may not empower a person to sue a state government for money damages. However, if Congress enacts a law pursuant to Section 5 of the 14th Amendment, then it may abrogate state sovereign immunity and permit a plaintiff to sue a state for money damages. The reasoning is that when the Constitution was adopted Congress lacked the power to force the states to pay money damages to individuals, but when the 14th Amendment was ratified in 1868, that Amendment expressly provides that "No state shall" deny any person the equal protection of the laws and it authorizes Congress to enforce that provision.

Accordingly, civil rights laws that are adopted pursuant to the 14th Amendment can be used to sue the states for money damages. Civil rights laws that are adopted pursuant to the Commerce Clause may not be used to sue the states for money damages.

Some civil rights laws have portions that were enacted pursuant to the 14th Amendment, and other portions that were enacted pursuant to the Commerce Clause. The Americans with Disabilities Act is one such law.  In this case the Supreme Court ruled that the Family Medical Leave Act is another such law.

I described the facts of this case and the related case law in this earlier post, so I will only briefly summarize the case here. Mr. Coleman asked to take 10 days "sick leave." His employer, the Maryland Court of Appeals, decided instead to terminate his employment. Coleman sued the Court under the "self-care" provision of the Family Medical Leave Act, which guarantees employees the right to take sick leave.

The Supreme Court found that the "self-care" provision of the FMLA was adopted pursuant to the Commerce Clause, not the 14th Amendment.  This ruling was not a surprise.  Every single Court of Appeals that considered the issue came to the same conclusion. The provisions of the FMLA that permitted workers to take unpaid leave to care for other family members was obviously intended to protect women who historically have served as caretakers in our society and who as a result have often had to choose between family and a career. The FMLA is designed to redress this form of gender discrimination.  This argument is much more difficult with respect to the "self-care" provision of the FMLA.  It would seem to treat both genders equally, and is not so clearly directed against gender discrimination.  In light of the approach that the Supreme Court has adopted in these cases the decision of the Court in this case was reasonable.

However, there was no majority opinion. The vote was actually 4-1-4.  Justice Kennedy, in an opinion joined by three other justices, followed the usual path in these cases and determined that the remedy provided by the "self-care" provision of the FMLA was not "congruent with" or "proportionate to" any possible violation of the 14th Amendment by the state. Accordingly this provision of the FMLA was not a 14th Amendment enactment but rather a Commerce Clause measure.

Justice Thomas concurred on the ground that the entire FMLA is a Commerce Clause enactment, and that therefore all lawsuits for money damages against state governments under the FMLA should be barred.  As a result, in Justice Thomas' judgment the Court's decision in Nevada Dept. of Human Resources v. Hibbs (2003) should be overruled.  Justice Thomas was the only justice to take that position in this case.

In an opinion concurring in the judgment only, Justice Scalia came to the same result as the plurality but used different reasoning. He rejected the "congruent and proportionate" test used by Justice Kennedy, and stated that he evaluates the constitutionality of measures under the 14th Amendment by reference to the text of the Amendment:

I adhere to my view that we should instead adopt an approach that is properly tied to the text of §5, which grants Congress the power �to enforce, by appropriate legislation,� the other provisions of the Fourteenth Amendment. (Emphasis added.) As I have explained in greater detail elsewhere, see Lane, supra, at 558�560, outside of the context of racial discrimination (which is different for stare decisis reasons), I would limit Congress�s §5 power to the regulation of conduct that itself violates the Fourteenth Amendment. Failing to grant state employees leave for the purpose of self-care�or any other purpose, for that matter�does not come close.

In dissent, Justice Ginsburg, writing for herself and three other justices, would have ruled that the "self-care" provision of the FMLA redresses a form of gender discrimination because working women were most likely to be affected by a situation where an employee could not take sick leave. She stated:

The FMLA�s purpose and legislative history reinforce the conclusion that the FMLA, in its entirety, is directed at sex discrimination. Indeed, the FMLA was originally envisioned as a way to guarantee�without singling out women or pregnancy�that pregnant women would not lose their jobs when they gave birth. The self-care provision achieves that aim.

Justice Ginsburg makes a persuasive argument that the self-care provision was indeed a valid enactment under the 14th Amendment.

In footnote 1 of her opinion Justice Ginsburg offered another reason why Coleman should be allowed to sue the State of Maryland for money damages under the FMLA. She expresses the view that the entire enterprise of distinguishing 14th Amendment enactments from Commerce Clause enactments is mistaken:

I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power.

Only Justice Breyer agreed with Justice Ginsburg on this point.

I agree with the position that Justice Ginsburg and Justice Breyer took in footnote 1. Unlike the Articles of Confederation, the original Constitution of the United States does not mention the term "state sovereignty."  Instead, it provides that federal law is "the supreme law of the land." Nor does the 11th Amendment lend any support for the proposition that state governments are immune from liability imposed by statutes adopted pursuant to the Commerce Clause. That amendment to the Constitution deals with the jurisdiction of the federal courts, not the power of Congress to enact legislation affecting the states. This entire line of "state sovereign immunity" cases is based upon a wayward policy in search of a constitutional home.

Wilson Huhn has taught Constitutional Law at the University of Akron School of Law for longer than the Supreme Court has recognized "state sovereign immunity" as a constitutional principle.

In the debate over the constitutionality of the federal health care reform law, health insurance companies have maintained a low profile.  The individual mandate was their idea; they wish that the mandate was stronger than it is; and now they are signalling that if the individual mandate is struck down by the Supreme Court, they can not and will not go along with the other insurance reforms in the PPACA.

The health insurance companies and the principal trade group that speaks for them, AHIP (America's Health Insurance Plans), have not explicitly supported the constitutionality of the individual mandate before the Supreme Court.  From a policy standpoint that is inexplicable. In 2008 the insurance industry embraced the concept of achieving universal heath care coverage through the private insurance market, and proposed that the law should require everybody to have health insurance. In its December, 2008, report entitled �Now is the Time for Health Care Reform: A Proposal to Achieve Universal Coverage, Affordability, Quality Improvement and Market Reform,� the AHIP Board of Directors took a courageous position:

Combine guarantee-issue coverage with no pre-existing condition exclusions with an enforceable individual mandate: For guarantee-issue to work, it is necessary for everyone to be brought into the system and participate in obtaining coverage. Achieving this objective will require specific attention to the mechanisms for making the mandate enforceable and may require coordinated action at multiple levels of government. Indeed, the importance of combining guarantee issue with an enforceable individual mandate is borne out by research and experience from the states. For example, a report by Milliman, Inc. found that states that enacted guarantee-issue laws in the absence of an individual coverage requirement saw a rise in insurance premiums, a reduction of individual insurance enrollment, and no significant decrease in the number of uninsured.

Why hasn't the health insurance industry more vigorously supported the constitutionality of the individual mandate? There may be several reasons. First, the mandate is not as strong as the industry wanted.  In its 2008 report it called for an "enforceable" individual mandate, but the PPACA will penalize people only $695 for not having health insurance, far less than such insurance would cost. The health insurers would prefer that the penalty be much higher, and even if the Supreme Court does uphold the law the industry will probably ask that the penalty be increased.

Political considerations may also lie at the base of the reason that the health insurance industry has muffled its support for the individual mandate. At this point in the election season it may not make sense for the pick sides between Republicans who oppose the individual mandate and Democrats who regard it as a necessary evil.  However, that does not mean that the industry is neutral on the subject. Quite the contrary.

On January 6 the insurance industry filed an amicus brief in the Supreme Court on the issue of severability in which the industry advised  the Court that if the individual mandate is struck down, other insurance reforms like guaranteed issue (the requirement that insurance companies sell policies to persons with preexisting conditions); guaranteed coverage (the requirement that those policies cover preexisting conditions); and community ratings (health insurance must cost the same for all persons in the community) should also be struck down because they are not "severable" from the individual mandate. In a press release announcing the filing of the brief, AHIP stated:

The brief is intended to serve as a resource to deepen the Court�s understanding of the real-world economic implications for consumers of delinking major provisions of the law that were widely understood to be companion solutions as the nation debated health care reform.

Yesterday the insurance companies issued yet another warning to the Court. In a press release the industry noted that:

opinion leaders of all stripes and news outlets have been noting the inextricable link between the market reforms included in the ACA and the individual mandate.

The press release quoted Senator Joe Lieberman stating, "Unless you have a mandate … the Affordable Care Act has to change;" Paul Krugman: "Simply requiring insurers cover people with pre-existing conditions … doesn't work;"  CBS News: "If the mandate is struck down, the requirement that insurance companies cover those with pre-existing conditions would become unworkable;"  Kaiser Health News: "Keeping the premiums affordable – for both individuals and the government – hinges on making sure health people enroll in insurance too."

Also yesterday the health insurance industry sent an even stronger signal to Congress through a story published in the Wall Street Journal. In an article by Louise Radnofsky entitled Insurers Set Plans in Case Mandate is Quashed, the author quoted several spokespersons for the health insurance industry as stating that if the individual mandate is declared unconstitutional then popular reforms like guaranteed coverage will have to be repealed. Radnofsky states:

Several officials from large health insurers said that if the mandate were struck down, their first priority would be persuading members of Congress to repeal two of the law's major insurance changes: a requirement to cover everyone regardless of his or her medical history, and limits on how much insurers can vary premiums based on age.

The health insurers' position is bolstered by a January, 2012, report from the Robert Woods Johnson Foundation by Matthew Buettgens and Caitlin Carroll entitled Eliminating the Individual Mandate: Effects on Premiums, Coverage, and Uncompensated Care. Buettgens and Carroll estimate that if the individual mandate is eliminated health insurance premiums would increase between 10% and 25% and the number of uninsured persons would increase by more than 50%.

There may be alternatives to the individual mandate. There may be other ways to encourage people to purchase health insurance. But the bottom line is that if the individual mandate is stuck down, guaranteed coverage and community rating will disappear with it.  People who are unable to procure or afford health insurance will either have to go without medical care or the taxpayers will have to pick up the tab.

Wilson Huhn is a professor of Constitutional Law at The University of Akron School of Law.

The 14th Annual Richard C. Sughrue Symposium on Intellectual Property Law and Policy begins in one hour! David Kappos, director of the USPTO will discuss the America Invents Act, the biggest patent law reform since 1836, during the keynote address at 12:45. Follow the whole event live on Twitter  #akronlawip

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