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On Tuesday, the Supreme Court decided in Hernandez v. Mesa that there is no cause of action for damages if a federal border patrol agent unconstitutionally shoots somebody across the border. The Court had recognized a cause of action under the Fourth Amendment against federal law enforcement agents in a 1971 case called Bivens, and extended it in two subsequent cases, but it has rejected further Bivens claims in every Supreme Court Bivens case in my lifetime and that doesn't seem likely to change. Two Justices, Thomas and Gorsuch, have called for Bivens to be overruled on the grounds that it lacks a formal or historical basis.

Justices Thomas and Gorsuch are right about that the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas's concurrence notes, it's not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:

From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen's constitutional rights. Suits to recover such damages were generally brought under state law.

What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress's 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we're entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?

Normally the Court lacks the ability to take a big-picture view in these cases, since it has only the issue before it. But in Hernandez, the petitioner foresaw this problem and petitioned the Supreme Court to consider a second question if there is no Bivens liability, then, he asked:

whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

So Hernandez is the rare case in which the Court could have considered both questions at the same time and thus provided an account for what violations of constitutional violations remain. It does seem perverse to think that Congress can eliminate state law damages for constitutional violations without either Congress or the courts providing an alternative . It's possible that this seemingly perverse result is constitutional, especially if one takes a broad view of federal power, but it seems troubling for the Court to repeatedly narrow Bivens without at least considering that question.

[Cross-posted from Summary, Judgment.]

Read more from the original source:
Bivens Liability and Its Alternatives - Reason

Mayor Carlo DeMaria took aim at hisdetractors at the City Council meeting on Monday, February 24, for what hispersonal attorney referred to as demonstrably false allegations regarding hisconduct as mayor.

The mayor demanded an audience to answer aquestion previously posed by Councilor Michael Marchese about why he spent morethan $200,000 in legal fees from his personal campaign account. Some councilorspushed back against Mayor DeMarias address on Monday, as the issue was alreadyslated for a future committee meeting in March.

I dont see any reason to bring it uptonight, said Councilor Fred Capone.

Other councilors expressed feeling blindsidedby the mayors appearance and unprepared to speak on the issue, includingCouncilor Marchese.

Im not prepared to ask the questions that Iwould have [in the committee meeting], he said.

However, Mayor DeMaria insisted on beingheard, seizing on an opportunity to address specific rumors. He was representedby Asst. City Solicitors Matt Lattanzi and Keith Slattery, as well as hisprivate attorney John Pappalardo and fellow attorney Emily Bryant.

Pappalardo referred to himself as the seniorpartner of a very, very large international law firm and said that he chargesMayor DeMaria $1,650 per hour for his services. Reading from a preparedstatement, he explained that he was hired by the mayor to enhance hispolitical future by addressing scurrilous and unfounded attacks in the form ofsocial media posts, news media and blogs.

Pappalardo added that according toMassachusetts General Laws, public officials are able to retain counsel inorder to protect their reputations, and said that $200,000 was actually notmuch money. He couldnt confirm where his fees were coming from, but said hisclient is looking into suing those who besmirch his character.

Pappalardo attempted to disprove gossipswirling around about Mayor DeMarias conduct. Specifically, he defended aninterview the mayor gave to the U.S. government years ago, which was madepublic after a proffer agreement for that meeting was somehow leaked to themedia.

[He] has been portrayed as a snitch or aninformant. These allegations are completely untrue, he said. People who havesomething to hide dont talk. They invoke the Fifth Amendment.

Pappalardo admitted that he did not know whythe government interviewed Mayor DeMaria, but insisted that Council hadnothing to worry about and urged the body to question the validity of claimsposed in a one-man tabloid-type newsletter.

Your mayor is innocent of wrongdoing, hesaid. He has never been charged with a crime.

Mayor DeMaria mostly allowed his attorney tospeak on his behalf.

For the last six years, Ive enduredCouncilman Marcheses constant attacks on social media, in the public and inthe news, he said. Dont tell me that he or anyone else doesnt havequestions [prepared]. Theyve asked their questions in the Everett LeaderHerald.

The mayor also accused the Council of payingfor ads in the Leader Herald in exchange for a smear campaign.

Councilor Wayne Matewsky sided with MayorDeMaria and his counsel.

In Everett, if they cant beat you, theyslander you, he said.

Councilor Anthony DiPierro spoke on themayors behalf at least twice.

Lets stop allowing this body to be dictatedby a self-proclaimed newsletter and lets move the city forward, he said.

Councilor Capone said that as electedofficials, it was their duty to investigate all claims of wrongdoing.

This whole thing is ridiculous, MayorDeMaria said. Youve been slaughtering me for years, especially the Marchesefamily.

Councilors expressed a desire to continue thediscussion at the committee meeting as planned, and also requested that themayor provide his invoices for Pappalardos services.

Council President Rosa DiFlorio, who struggled to maintainorder during the meeting, gaveled a 10-minute recess to allow tensions tosettle before resuming the usual order of business.

Read more:
DeMaria Blasts Critics and False Allegations - Everett Independent

Within our constitutional framework, property rights have been relegated to second-class citizenship.

Take the Supreme Courts double-standard on the Fifth Amendments prohibition against the government taking private property unless its for public use. For alleged infringements of other guarantees in the Bill of Rights, the Court strictly scrutinizes government action. But with the Fifth Amendments property protections, the Court allows legislatures to interpret their own constitutional boundaries. If only property rights are at stake, then the fox may guard the henhouse.

Or consider the Courts amorphous review for substantive due process, a values-based inquiry into the constitutional legitimacy of state and federal regulatory laws. On this score, the Court candidly concedes that property rights and contractual freedoms enjoy less protection than other, non-economic liberties.

In his new book Property and the Pursuit of Happiness: Locke, the Declaration of Independence, Madison, and the Challenge of the Administrative State, Edward Erler shows how constitutional property rights climbed through the looking glass and came out topsy-turvy. From Americas founding era to the present day, property rights flipped from cachet to low-caste, and whats supposed to be up, well, is down.

Erler is a professor of political philosophy, so its unsurprising this books foremost contribution is its discussion of the vital role property rights played in the Framers constitutional vision. Tracing an arc of political thought from Aristotle through Locke on to the Declaration of Independence, Erler argues that the Founding Fathers put an inherently American gloss on pre-existing conceptions of property one that merged natural rights and moral obligation into a synthesis they called the pursuit of happiness.

For the Founders, the right to property was the comprehensive right that included all other rights. In this spirit, the Supreme Court in 1795 averred that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and unalienable rights of man.

Erler explains the decline of property rights from these sanctified heights. As the economy advanced and governments grew, vested property interests came increasingly into conflict with public policy, and it fell to the courts to demarcate the boundaries between public and private spheres.

For much of our nations history, as courts wrestled with these controversies, they hewed to an understanding of property rights closer the Framers than what we see today. The practical result was that property rights enjoyed considerable constitutional protection from overbearing government.

But the scales of justice shifted early in the twentieth century, when the Progressive forces of history swept first into legislatures and then into the courts. Progressives rejected the Founders conception of property rights because it impeded the science of economic planning. As Progressive influence waxed, property rights waned.

Although Property and the Pursuit of Happiness overlaps in subject and tone with Richard Epsteins excellent 2008 book, Supreme Neglect: How to Revive Constitutional Protection for Private Property, the two books are complementary but not the same. Discussion of the Founding Fathers is largely absent from the latterarguably the only flaw in Epsteins seminal workand this topic is Erlers strongest contribution.

This is not to say that Property and the Pursuit of Happiness is flawless. In the introduction, Erler warns that he test[s] the patience of the reader on some occasions, and hes not lying. The book is needlessly difficult. Relatedly, he peppers his prose with awkward sentence introductions (e.g., In a statement that is not entirely hyperbolic . . .). Further, the books subtitle, which mentions the Challenge of the Administrative State, engages in a bit of false advertising, as Erler gives the topic only a cursory examination.

Notwithstanding these drawbacks, Property and the Pursuit of Happiness is an important contribution to a growing body of scholarship pushing for a restoration of property rights to their original place among our individual freedomsparticularly with respect to the Fifth Amendments Takings Clause.

The good news is that these ideas are taking root. To wit, the Trump administration is reshaping the federal judiciary with a generation of judges affected by Richard Epsteins work. On the other side of the bar, dogged public interest lawyersmost notably those at the Pacific Legal Foundationhave advanced property rights in courts across the country. After decades, all this effort is paying off.

Consider the blowback to the Supreme Courts infamous holding 15 years ago in Kelo v. City of New London, which allows government to condemn peoples homes and give their land to a corporation in the name of economic development. As Ilya Somin explains in his book The Grasping Hand, many state courts reacted to Kelo by tightening restrictions on the use of eminent domain.

Last Summer, the Court handed down a watershed decision in Knick v. Township of Scott, which basically puts property rights (and Fifth Amendment takings claims, specifically) on the same procedural footing as other guarantees enumerated in the Bill of Rights. The Courts newest members, Justices Neil Gorsuch and Brett Kavanaugh, joined Chief Justice John Robertss Knick opinion. The holding is a bold step towards ending the inequality of our constitutional rights.

None of these welcome developments would have happened absent the toils of scholars and practitioners who laid the foundations for a resurgence of property rights. With Property and the Pursuit of Happiness, Erler adds a valuable voice to this worthy cause.

William Yeatman is a research fellow at the Cato Institute in Washington, D.C.

Originally posted here:
Recovering A Strong American Conception Of Property Rights - The Federalist

Fifth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces or in the Militia, when in actual service in time of War or public danger. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

See the article here:
Fifth Amendment | Summary, Rights, & Facts | Britannica

A Guide to the Fifth Amendment

The Fifth Amendment, or Amendment V of the United States Constitution is the section of the Bill of Rights that protects you from being held for committing a crime unless you have been indicted correctly by the police. The Fifth Amendment is also where the guarantee of due process comes from, meaning that the state and the country have to respect your legal rights. The Fifth Amendment was introduced as a part of the Bill of Rights into the United States Constitution on September 5, 1789 and was voted for by of the states on December 15, 1791.

History of the Fifth Amendment

Once the United States won their independence from the British Parliament and monarchy that had acted like tyrants, the Framers of the United States Constitution did not trust large, centralized governments. Because of this, the Framers wrote the Bill of Rights, which were the first 10 amendments, to help protect individual freedoms from being hurt by the governmental. They included the Fifth Amendment, which gave five specific freedoms to American citizens.

Understanding the Fifth Amendment Line by Line

If you are confused by what each line means, here are some explanations to make the Fifth Amendment easier to understand:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury: No one can be put on trial for a serious crime, unless a grand jury decide first that there is enough proof or evidence so that the trial is needed. If there is enough evidence, an indictment is then issued, which means that the person who is charged with the crime will can put on trial for the crime.

Except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger: People in the military can go to trial without a grand jury first deciding that it is necessary. This is the case if the military person commits a crime during a national emergency or a war.

Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb: If someone is put on trial for a certain crime and the trial ends, the person cannot be tried once more for the same crime. If a person is convicted of a crime and then serves his or her time in jail, or if the person is acquitted, he or she cannot be put on trial a second time.

Nor shall be compelled in any criminal case to be a witness against himself: The government does not have the power to make someone testify against himself. That is why a trial uses evidence and witnesses instead of the testimony of the accused person.

Nor be deprived of life, liberty, or property, without due process of law: The government cannot take away a persons life, property, or freedom without following certain steps that give the person a fair chance. This is what is known as due process. Due Process helps protect a persons rights.

Nor shall private property be taken for public use, without just compensation: The government cannot take away a persons property for public use without somehow paying them back for it.

Facts About the Fifth Amendment

The Fifth Amendment was introduced into the Constitution by James Madison.

The ideas in the Fifth Amendment can be traced back to the Magna Carta, which was issued in 1215.

A defendant cannot be punished for using his right to silence during a criminal trial, but there are some consequences to using it in a civil trial.

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See the rest here:
Fifth Amendment - Constitution of United States of America 1789