Category: General Law

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Oral Argument as Performance Act

I’m hibernating doing edits on a paper that are under deadline, but I did want to offer one thought about the oral argument in the same-sex marriage cases.  Some who oppose televising arguments claim that this would turn them into a performance rather than a genuine conversation between the Justices and counsel.

It seems to me, though, that in the high-profile cases where same-day audio is being released, this is already the case.  Anybody who believes that Justice Kennedy is uncertain about what he will do in these cases is fooling themselves.  But he must have felt as though he should at least pretend to have doubts to appear neutral.  If he and his colleagues allowed thousands of same-sex marriages to occur by allowing circuit court decisions, say in the Seventh Circuit, to become final while harboring doubts about whether that was constitutionally required, then they are guilty of an abuse of office.  There is no way that the majority harbors such doubts, though, so let’s move on to what the opinion will say.

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FAN 58 (First Amendment News) Citizen Recordings of Police in Public Places — First Amendment Protection?

We’ve had incidents where people have videotaped us and it requires unbelievable restraint. Typically during times where things can be a little chaotic. We really have to convey we’re living in a different environment now where police action is scrutinized and a lot of video is surfacing. We simply tell our officers to assume they’re being recorded out in public at all times. — South Gate Police Capt. Darren Arakawa (L.A. Times, April 21, 2015)

We live in technological times, in times when the means of communications are restructuring the relationship between citizen and State. Part of that new technology is the cell phone and its ability to capture reality with video accuracy and then transmit its recorded images to the world within seconds. In the process, citizens have become journalists of sorts as they convey the news of the moment to their fellow citizens and others. From Ferguson to Baltimore, eyes are opening as never before as the conduct of police is cast in bold relief. What was once routinely concealed is now routinely revealed. Predictably, there have been attempts to squelch (by force and by law) these new checks on police power — transparency breeds contempt. By the same token, the new technology can also turn its lens on acts of lawlessness, as the events in Baltimore are revealing. And as you will see below in the item concerning a recent incident at the Albany Airport, sometimes there are videos of police actually defending people’s claims of their First Amendment rights.

UnknownIt is a fact: Visual communication is revolutionizing our world, both in cultural and in constitutional ways. The public forum is becoming public in ways heretofore unimagined. Every street corner, every ally, and every open space is now not only a place wherein to be, but also a place wherein to be watched. True, it may sometimes smack of an Orwellian world, but it is likewise a world in which the acts of Big Brother can be scrutinized like never before. Hence, just as technology can enhance governmental power, so too can it restrain it.

How does the First Amendment figure into all of this? That is the question. Before turning to it, however, it is well to consider what happened recently to a citizen in Southern California as she attempted to record the events in her own neighborhood.

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Recent scene in South Gate, CA

Ms. Paez & police

A little over a week ago something disturbing happened in South Gate, California — and true to the times, it was captured on cell-phone video. It happened in a neighborhood where a “tactical unit” of police from different departments sough to arrest some members of an alleged bike gang, purportedly on outstanding warrants. As all of this was taking place in open daylight — replete with heavily armed police and what have you — Beatriz Paez was recording portions of it on her cell phone. The woman appeared to be a few houses or more away from where all of this was occurring and did not otherwise seem to be interfering with the police in any way.

Meanwhile, an officer directed an armed U.S. Marshall towards the woman with the cell phone. The marshall approached Ms. Paez, who continued to record the events. Suddenly, he lunged towards her, grabbed her cell phone, and then threw it to the ground and kicked it.

You’re making me feel unsafe. I have a right to be here. — Beatriz Paez

Fate being what it is, the scene was captured on video, apparently by another citizen with a cell phone camera.

See also, March 7, 2015 video-recorded incident in Santa Barbara, California, and March 24, 2015 video-recorded incident in Dillon, Montana.

Ms. Beatriz Paez

Ms. Beatriz Paez

What to make of this? “The officer’s conduct is a blatant and deliberate violation of the Constitution and his duties as an officer to abide by the law,” is what Hector Villagra, executive director of the American Civil Liberties Union of Southern California, told a Los Angeles Times reporter.

A “blatant . . . violation of the Constitution”? While I agree that blanket prohibitions and the like on citizen recordings of police actions in public violate the free speech provisions of the federal and many state constitutions, among other laws, I nonetheless thought I would look into the matter. Here is what I found:

Summary of Federal Case Law

  • 5 federal cases out of four different circuits have sustained a First Amendment claim to record police activities occurring in public
  • 3 federal cases out of two different circuits have denied a First Amendment claim to record police activities occurring in public, though two of those cases involved unpublished opinions.
  • 8 federal district courts out of four different federal circuits have denied a First Amendment claim to record police activities occurring in public.
  • (see cases listed below)

When police officers seize materials in order to suppress the distribution of information critical of their actions, “the seizure clearly contravene[s] the most elemental tenets of First Amendment law.” Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003) (source: here)

Limitations on Citizens’ Videoing Police: Legitimate & Otherwise   

(credit: City Watch)

(credit: City Watch)

In all of this certain limitations might come into play, limitations that could confine the reach of an right, constitutional, statutory, or otherwise. Such limitations would include the following:

  1. Time, place and manner restrictions (see e.g., Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010), but “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties” is conduct “not reasonably subject to limitation.” Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011);
  2. Any behavior that might reasonably be viewed as interfering with the lawful activity of police officials;
  3. And then there are certain consent laws requiring individuals to obtain consent before recording anyone, even police engaged in public activities (such laws as applied to police officials raise First Amendment issues as evidenced by the 7th Circuit Alvarez ruling listed below). Moreover, state wiretap statutes are often used when citizens secretly record;
  4. Application of the fighting words doctrine (but see: Lewis v. City of New Orleans415 U.S. 130, 135 (1974) (Powell, J. concurring): “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.'”), and R.A.V. v. City of St. Paul, 505 U.S. 377, 428 (1992) (Stevens, J., concurring) (“we have consistently construed the ‘fighting words’ exception … narrowly”).
  5. Disorderly conduct (but seeGregory v. City of Chicago, 394 U.S. 111, 120 (1969) (“To let a policeman’s command become equivalent to a criminal statute comes dangerously near making our government one of men rather than of laws.”);
  6. Securing the area rationale;
  7. Suspicious behavior rationale (but see: A person “whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets,” and may not be arrested “‘at the whim of any police officer.’” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965)).

Recording Case Now Being Litigated in Maryland

Note: Many of the above issues are currently being litigated in Garcia v. Montgomery County (Case 8:12-cv-03592-TDC, U.S. Dist. Ct., MD), and Statement of Interest of Department of Justice supporting First Amendment claims.  See here re the complaint filed by Robert Corn-Revere.

Unknown→ See also May 14, 2012 Statement by Department of Justice re Sharp v. Baltimore City Police Department, et. al. (“[Police] policies should affirmatively set forth the contours of individuals’ First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”).

State law ought to make clear that it is illegal for an officer to confiscate a camera or phone — and certainly to destroy it — or to arrest people simply for recording police action in public places.Editorial, L.A. Times,  April 23, 2015

Statutory LawIt would, of course, be short-sighted to limit one’s focus to constitutional limitations. That is, the legality of police conduct in this area could also depend on:

  1. The precise scope of statutory authorization of police conduct in this area, and
  2.  The character and extent of statutory limitations on police conduct in this area

See here re proposed California legislation creating a public right to record.

Officer Protects Assertion of 1-A Rights  

Obviously this is your constituional right.” — Deputy Sheriff Stan Lenic

When an airport authority at Albany International Airport tried repeatedly to prevent a young woman from InfoWars from distributing flyers informing passengers of their right to opt out of body scanning screening, a local sheriff’s officer came to their  defense. It is all captured on video by documentary filmmaker Jason Bermas — it’s a must see!

Compare International Society for Krishna Consciousness v. Lee (1992) (no 1-A right to solicit for money in public airports)

Police Policies & Training Programs 

  1. Boston Police Department training video re what citizens are allowed to record under Massachusetts’ wiretap statute.
  2. Luke Broadwater, “New city police policy says public has right to film officers,” Baltimore Sun, March 12, 2014 (Baltimore Police Policy here)
  3. Montgomery County, MD, Police Policy, “Citizen Videotaping Interactions

I am calling on incoming Atty. Gen. Loretta Lynch to order a Justice Department investigation of the incident and to make sure that all law enforcement officers are trained to respect the right of citizens to videotape them. — Congresswoman Janice Hahn (April 26, 2015)

Lawsuits Against Municipalities: Damages and/or Attorneys’ Fees  

  • Danielle Keeton-Olsen, “Recent settlement in suit over arrest for recording police follows growing trend,” Reporters Committee for Freedom of the Press, June 16, 2014: “The town of Weare, New Hampshire, settled a lawsuit last week for $57,500 with a woman arrested for videotaping a police officer, adding to the growing list of settlements stemming from police officers’ restriction of video and audio recordings in public places. In Gericke v. Begin, the U.S. Court of Appeals in Boston (1st Cir.) upheld a lower court opinion that Carla Gericke was within her First Amendment rights to record a police officer at a traffic stop.Following that opinion, instead of choosing to continue with the trial, Weare settled the case with Gericke.”
  • “Other courts have reached similar conclusions. In a U.S. district court case in Maryland, Sharp v. Baltimore City Police Department, police arrested a man taking video, deleted his recordings, and subpoenaed his medical and cell phone records.The court affirmed the plaintiff had a right to make the recording. The court quashed the subpoena and awarded him $25,000 in damages in addition to covering his approximately $220,000 in legal fees.”
  • “Most recently, in ACLU v. Alvarez, the Seventh Circuit addressed the constitutionality of Illinois’ eavesdropping offense law after the ACLU of Illinois filed a pre-enforcement action against Illinois’ attorney general so its videographers would not be arrested for audio recording police officers in public places.Following that decision, the district court awarded $645,000 to the ACLU, covering attorney fees.”
  • See Datz v. Suffolk County Police (story here: “On June 8, 2014, the NYCLU announced a settlement approved by Suffolk County Legislature. The settlement required the County Police Department (SCPD) to pay Datz $200,000 and create a Police-Media Relations Committee to address problems between the press and the police department.”) (see settlement here)

Appellate Cases Sustaining a First Amendment Claim Read More

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FAN 57.1 (First Amendment News) Court Denies Review in Military-Base Protest Case

Today the Supreme Court issued its orders list in which it denied review in Apel v. United States (#14-874).

Following United States v. Apel (2014), the issue in the latest Apel case was “whether in light of Flower v. United States it violates the First Amendment for a person who was previously barred from a military installation to be convicted under 18 U.S.C. § 1382 for peacefully protesting on a fully open public street, which has been designated as a public protest area, on federal property outside the closed military installation.” (See FAN 48, “Chemerinsky Petitions Court Again — Relies on Flower“).

Opinions in argued cases are expected to be released this Wednesday at 10:00 a.m. E.T.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 4-27-15]

Review Granted & Cases Argued

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. Friedrichs v. California Teachers Association, et al.
  4. Central Radio Co., Inc. v. City of Norfolk
  5. O’Keefe v. Chisholm

Review Denied

  1. Apel v. United States 
  2. Dariano v. Morgan Hill Unified School District
  3. The Bronx Household of Faith v. Board of Education of the City of New York 
  4. Arneson v. 281 Care Committee
  5. Kagan v. City of New Orleans
  6. ProtectMarriage.com-Yes on 8 v. Bowen
  7. Clayton v. Niska
  8. Pregnancy Care Center of New York v. City of New York 
  9. City of Indianapolis, Indiana v. Annex Books, Inc.
  10. Ashley Furniture Industries, Inc. v. United States 
  11. Mehanna v. United States
  12. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  13. Vermont Right to Life Committee, et al v. Sorrell
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Walter Scott and The Child Support System

In the blizzard of publicity surrounding the murder of Walter Scott, the unarmed African-American who was shot in the back as he ran from a routine traffic stop, the media has somewhat belatedly discovered the criminalization of child support enforcement. What it has yet to address fully is the way that criminalization imposes child support terms on poor, often minority, men that can be much harsher than those imposed through the system that typically applies to middle class families.

Earlier this week, The New York Times discussed the way state-initiated child support enforcement, as it prioritizes extracting payment from poor men who cannot afford it, is a disastrous trap. The article focused on the experiences of Walter Scott, shot in the back after he was pulled over by police for a broken taillight. Scott ran because he feared being sent to jail for falling behind in his child support payments.   His death occurred, according to one source in the story, as part of a punitive system that imprisons men “’over and over again for child support debt simply because they’re poor.’”

Those fighting the excessive incarceration – and murder – of African-American men have highlighted the pointless criminalization of child support enforcement. In South Carolina, a state where African-Americans constitute 28% of the population, 70% of those who end up in jail because of child support issues are black.   While a system that sends poor men to jail for debts they cannot pay is unconscionable, so too is the establishment of many child support awards in the first place: they are arbitrary, unfair and at odds with the treatment of elite fathers and, often, of the parents’ own arrangements.

Child support today reflects a system that results in the treatment of poor fathers dramatically differently from wealthy fathers. Read More

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Call for Papers–AALS Section on Law and Sports

The AALS Section on Law and Sports is pleased to announce the inaugural AALS Section on Law and Sports Award to recognize an individual that has made a substantial and significant contribution to scholarship, teaching, and/or service in the area of law relating to sports. Section members and other individuals are eligible for the award, but law schools, institutions, and organizations are not eligible to receive the award. A committee comprised of section members will consider all nominations and select a deserving recipient for recognition at the 2016 AALS Annual Meeting.

Please email nominations – and any supporting information – to Professor Dionne Koller at dkoller@ubalt.edu. In your nomination, please provide an explanation as to how the nominee meets the criteria for the award. Nominations are due by August 1, 2015.

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Guido on Law and Economics

Guido Calabresi has a new book coming out in January on Law and Economics.  While I’m not an unbiased source (as his former clerk), I have read a draft and think this will make a big splash.  Closer to the release date, it is my hope that CoOp will hold a Symposium on this book and see if we can host Guido’s first-ever blog post.

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More Questions About the Meaning of “Legislature”

The Justices are still considering the Arizona redistricting case that I’ve posted about several times, but a few other things occurred to me about that pending decision that I wanted to share.

1.  At oral argument, Justice Kagan pointed out that there are many state constitutional provisions that regulate the “time, place, and manner” of voting in congressional elections.  I’m not sure how many there are, but it would seem that all of them would be vulnerable under an analysis that says that only the state legislature may make those regulations subject to congressional preemption.  It would be useful to know (and the dissent may end up telling us) how many of these there are.

2.  If you take the legislative exclusivity argument seriously, doesn’t that mean that a state court interpretation of a voting regulation for congressional elections could raise a federal constitutional question?  In Bush v. Gore, Chief Justice Rehnquist’s concurrence argued that the Florida Supreme Court’s interpretation of state election law regarding the selection presidential electors was so flawed that “the Legislature” was not truly exercising its constitutional authority under Article II.  Couldn’t the same be true for a legislature under Article I?  (Yes, I know–it was a plurality opinion from Bush v. Gore.  Two strikes there.  But still.)

3.  If Arizona’s plan is unconstitutional, then California’s plan of open primaries adopted as part of the state constitution is probably also unconstitutional.  Oddly enough, the Legislature elected under that plan can cure the constitutional flaw by just enacting the same plan as a statute.  Right?

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FAN 57 (First Amendment News) Press Group & Others Await Ruling re Release of 1942 Grand Jury Transcripts in Chicago Tribune Case

PETITION FOR ORDER DIRECTING RELEASE OF TRANSCRIPTS OF CERTAIN TESTIMONY FROM AUGUST 1942 GRAND JURY INVESTIGATION OF THE CHICAGO TRIBUNE

UnknownThat is the caption in the petition titled In re Petition of Elliot Carlson, et al, which was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. The judging presiding over the case is Chief Judge Ruben Castillo. In addition to the lead petitioner, the other parties in the case are: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

Stanley Johnston & Jay Loy Maloney

Stanley Johnston & J. Loy Maloney of the Tribune

The controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

The government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

Screen Shot 2015-04-14 at 12.08.46 PM

The Justice Department convened a grand jury in August of 1942 to investigate whether Johnston and his managing editor, J. Loy Maloney, along with the Tribune had violated the Espionage Act of 1917. On August 19, 1942, the grand jury declined to issue any indictments.

Tribune_The  CitadelJubilant over its victory, the Tribune ran a front-page cartoon the next day — the cartoon depicted the Tribune Tower as a citadel for press freedom.

It is against that backdrop that Elliot Carlson (a naval historian) and his fellow petitioners requested the release of the transcripts of the testimony of all 13 witnesses who testified before the grand jury in connection with the Tribune investigation. The transcripts are apparently stored at a National Archives repository in College Park, MD (enclosures to Serials 1 through 11 for File Number 146-7-23-25).

In his declaration to the court, Carlson maintained that “[r]eleasing the grand jury testimony will fill in important gaps in the existing historical record and will provide valuable perspective on the relationship between the government and the press during national security crises – a subject that has never been more relevant. Historians and writers still disagree would the details of the Tribune scandal . . . but the grand jury testimony could settle the dispute.”

Government Opposes Release of 1942 Transcripts

On December 24, 2014, the government filed its response in opposition to the release of the grand jury transcripts. Its opposition was based on three basic arguments:

  1. “No Statute or Rule Provides for Release of Grand Jury Information for Reasons of Historical Interest”
  2. “Second Circuit Law Recognizing Historical Significance as a Special Circumstance Justifying Disclosure Is Flawed and Contrary to the Weight of  Supreme Court Jurisprudence,” and
  3. “The Supreme Court’s Rulemaking Body Has Rejected an Amendment to Rule 6(e) Based on Historical Interest”

In their reply memorandum, the Petitioners advanced two main arguments:

  1. “Courts have discretion to order disclosure of historical grand jury material in appropriate circumstances pursuant to their inherent authority,” and
  2. “The Coalition has demonstrated that disclosure of the testimony from the 1942 Tribune grand jury investigation is a proper exercise of this Court’s discretion.”

Lawyer for Petitioners: Brendan J. Healey

 Lawyer for the Government: Elizabeth J. Shapiro (U.S. Department of Justice)

A ruling is expected sometime within the next two months.

→ See also Editorial, “Breaking the code on a Chicago mystery from WWII,” Chicago Tribune, November 21, 2014

For some historical background, see:

  1. Lloyd Wendt, Chicago Tribune: The Rise of a Great American Newspaper (1979), pp. 627-636
  2. Michael S. Sweeney & Patrick S. Washburn, “‘Aint Justice Wonderful': The Chicago Tribune’s Battle of Midway Story and the Government’s Attempt at an Espionage Act Indictment in 1942,” Journalism & Communication Monographs December 5, 2013 (updated 2014)
  3. Dina Green, “Communication Intelligence and the Freedom of the Press. The Chicago Tribune’s Battle of Midway Dispatch and the Breaking of the Japanese Naval Code,” Journal of Contemporary History (1981)

ht: Katie Townsend

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Muzzle Awards ‘Honor’ First Amendment Violators

This from a news report in The Daily Progress: “The administration of a major university, the mayor of Peoria, Illinois, and an Alabama circuit judge are among this year’s recipients of the Jefferson Muzzle awards, given to people or institutions accused of stifling freedom of speech in the United States. Thomas Jefferson Center for the Protection of Free Expression . . . gives out the awards each year.”

Those receiving the awards were:

  1. Peoria, Illinois Mayor Jim Ardis
  2. Bergen Community College (NJ)
  3. Mora Co., New Mexico Board of Commissioners
  4. Bedford Co., Pennsylvania District Attorney Bill Higgins
  5. Alabama Circuit Court Judge Claud D. Neilson
  6. The Indiana Department of Corrections
  7. Asnuntuck Community College (CT)
  8. The University of Illinois at Urbana–Champaign

NB: Links are to stories re the reasons for bestowing the awards.

Video of Balkin-Redish Exchange Posted  Read More

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The Great State Constitutional Opinions

Suppose you had to name the Top 5 constitutional decisions by a state court.  What would they be?  This could refer to readings of a state constitution or a state case on the Federal Constitution.  Here are some thoughts:

1.  Goodridge v. Dept. of Public Health (Mass. 2003).  This was not the first state case finding a right to same-sex marriage (that was in Hawaii), but this was the most important.

2.  Ives v. South Buffalo RR (N.Y. 1911).  This case invalidating the state worker’s compensation statute as a due process violation sparked outrage across the country and led to modifications in the Supreme Court’s jurisdiction.  (The case could not be reviewed by the Justices at the time.)

Other candidates?

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Magna Carta in America: Entrenched

Englishmen on both sides of the Atlantic treasured their rights derived from Magna Carta, but during the eighteenth century their manner of protecting them diverged.   That divergence has kept Magna Carta’s legacy more vibrant in American than in the land of its origins.

Sir Edward Coke’s defense of Magna Carta in the early 17th century and that articulated by William Blackstone in the late eighteenth clarify the evolving English stance. Coke insisted that judgments “given against any points of . . . Magna Carta . . . are adjudged void” while “any statute be made against it shall be void.” But elsewhere Coke conceded that Parliament could not “be confined, either for causes or persons within any bounds.” Americans embraced Coke’s first pronouncement. Promised the rights of Englishmen, they insisted these not be infringed by either Parliament or King. By 1765 when William Blackstone’s Commentaries on the Laws of England appeared, English opinion embraced Coke’s second statement. The Great Charter, Blackstone wrote, “protected every individual of the nation in the free enjoyment of his life, his liberty and his property, unless declared to be forfeited by the judgment of his peers or the law of the land.” The “law of the land” trumped Magna Carta. Parliament, Blackstone declared, could “do every thing that is not naturally impossible.” It could, by a simple majority, limit the use of juries or abolish the prohibition against double jeopardy.

Americans, determined to protect their “inalienable” rights even from the law of the land, entrenched them in a constitution extraordinarily difficult to amend. They relied upon a written constitution and courts, Englishmen relied on Parliament.