Author: Josh Blackman


Book Review: A Brief History of Judging – From the Big Bang to Cosmic Constitutional Theory

J. Harvie Wilkinson, III, Cosmic Constitutional Theory (2012)

Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Much the same could be said about Cosmic Constitutional Theory by Judge J. Harvie Wilkinson, III, the latest jurist to write about his own constitutional theory—or in Judge Wilkinson’s case, a self-professed lack of a constitutional theory.

Judge Wilkinson views all theories of constitutional laws as “cosmic” in the metaphyhsical sense. “[T]he search for cosmic theory has caused us to forget some mundane and humdrum truths, and that future generations will not look kindly on the usurpations that pursuits of unattainable ends have brought about.” Living constitutionalism, the hallmark of the Warren Court, is “activism unleashed.” Originalism—in many respects a moderating-jurisprudence born in reaction to living constitutionalism—to Judge Wilkinson is merely “activism masquerading as restraint.” Pragmatism—the approach endorsed most prominently by Judge Posner—is “activism through antitheory.” Constitutional theories are activist all the way down, to borrow another cosmic image. So, if living constitutionalism, originalism, and pragmatism are out, what is the best judicial philosophy? To Judge Wilkinson, that is the wrong question. In his view, the ideal jurisprudence is none at all. “So what is my theory?” he asks, rhetorically. “The answer is I have no theory.”

But it is not quite that simple. The sine qua non of Judge Wilkinson’s view of the judicial power is to permit the people, through self-determination and the democratic process, to rule for themselves. This very rejection of a constitutional theory is, in essence, a theory in and of itself. His anti-theory, one could call it, fails to address a number of curious constitutional counterfactuals the book raises, but does not resolve. What if other judges, applying Judge Wilkinson’s non-philosophy, had to decide divisive cases, where the will of the people was at odds with individual liberty? Think of cases involving segregation, eugenics, disenfranchisement, or criminal rights.

Elsewhere, Judge Wilkinson has written that “[w]hen a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.” Judge Wilkinson punts on these important questions quite unconvincingly: outlier “[d]ecisions like BrownGideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”

To simply shoo away any future constitutional conflicts by saying the Supreme Court has already decided the important cases is short-sighted, and as Gerard Magliocca put it, somewhat reminiscent of the 19th Century Patent Commissioner who purportedly boasted that “Everything that can be invented has been invented.” This is not the case with respect to inventions, and it is certainly not the case with respect to future unexpected constitutional crises. Further, this position does nothing to address whether a Judge Wilkinson sitting on the Fourth Circuit or the Supreme Court decades earlier would have decided cases any differently. Unexpected changes in our society—disputed presidential elections, a war on terror, broccoli mandates, and other constitutional black swans—will happen, and the Supreme Court will confront them.

More pressing, is from what, or more precisely, from where Judge Wilkinson would derive these “foundational principles essential to the functioning of our nation.” Indeed, it is quite debatable what the foundational principles of our nation are, and what makes them essential to the functioning of our nation. Originalists would say that the foundation of our nation is the Constitution as understood by the founding generation. Living Constitutionalists would say that the foundation of our nation is evolving principles that reflect present circumstances.

And what are these principles to Judge Wilkinson? Addressed almost in passing, he notes that “[o]ne foundational premise of the American experiment is that self-determination is a valuable good.” Judge Wilkinson assumes—almost as if it is incontrovertible—that the foundational principle that separates a bad (read activist) opinion from a good (read restrained) opinion is one that promotes self-governance. But he does not show why this is so, nor does he prove why this is Article III’s ideal explication of “the judicial power.”

Cosmic Constitutional Theory serves as a worthy embodiment of Judge Wilkinson’s quarter-century of minimalist jurisprudence on the Fourth Circuit, and offers salient and vigorous critiques of today’s most popular schools of constitutional thought. However, where the book falters is by failing to come to grips with the foundation of Judge Wilkinson’s own anti-jurisprudence.

Josh Blackman, Assistant Professor, South Texas College of Law


Farewell, and See you Soon

My stint blogging on this virtual faculty workshop ends tonight. Many thanks to Danielle and company for bringing me on board for the past 2 months. It’s been a blast, and I’ve really enjoyed interacting  with such an insightful and thought-provoking audience.

Yet, I hope to hear from many of you, quite soon. As I noted in my inaugural post, I have submitted my application for the AALS Faculty Recruitment Conference in Washington, D.C. in October.

If any Profs out there have enjoyed my commentary here, or on my blog, or have taken an interest in my publications (SSRN), please drop me a line: joshblackman at gmail dot com. I would be eager to chat about any hiring needs or vacancies at your school.

My C.V. is available here. My FAR form is available here. All of my AALS materials are available here.

I hope to meet some of you  at the meat market.


District Court Finds Florida Drug Law That Lacks Intent Requirement “Facially Unconstitutional Because it Results in a Strict Liability Offense With a Harsh Penalty, Stigma, and Overbroad Regulation of Otherwise Innocuous Conduct”

WSJ Law Blog links to a habeas opinion from the Middle District of Florida in which a District Court Judge found the Florida Drug Abuse Prevention and Control law–which criminalizes the delivery of a controlled substance– facially unconstitutional because it lacks an intent requirement.

“Actus non facit reum nisi mens sit rea” – – except in Florida.2

Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”

Here is how a brief digest of some of the key quotes from the section finding the statute facially unconstitutional:

Petitioner’s facial challenge to Florida’s drug statute is properly premised on allegations that the State’s affirmative elimination of mens rea and scienter from this felony offense violates due process.  . . .

Petitioner’s facial challenge to Florida’s drug statute is properly premised on allegations that the State’s affirmative elimination of mens rea and scienter from this felony offense violates due process.  . . .

To be sure, the law recognizes the authority of government to fashion laws that punish without proof of intent, but not without severe constraints and constitutional safeguards.  . . .

From this body of law it is clear that while “strict liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements,” their use is very limited and they are accorded a “generally disfavored status.”  . . .

Thus, under Staples and its progeny, the tripartite analysis for evaluating a strict liability offense under the strictures of the Constitution involves consideration of: (1) the penalty imposed; (2) the stigma associated with conviction; and (3) the type of conduct purportedly regulated.

With this framework, the Court finds that the law “violates due process because the penalties are too severe” (a 2nd degree felony, punishable by up to 30 years), the law “violates due process because it creates substantial social stigma,” (the law can “‘gravely besmirch’ a person’s reputation”), and  the law “violates due process because it regulates inherently innocent conduct ” (“Florida’s statute does not require even the minimal showing that the Defendant knew he was delivering any illicit substance as an element of the offense charged”). Based on these factors, the Court found the law unconstitutional.

Under this analytical framework, FLA. STAT. § 893.13 cannot survive constitutional scrutiny when considered in relation to the conduct it regulates—the delivery of any substance.

The court in footnote 7 lists the name of 38 law profs who joined an Amicus filed by the National Association of Criminal Defense Lawyers. Here are all the names (usually briefs are cited, if at all, without listing the signatories).

7 A full explication of the elimination of mens rea as atavistic and repugnant to the common law is eloquently and thoroughly set forth in the memorandum filed by Amici Curiae, National Association of Criminal Defense Lawyers, Florida Association of Criminal Defense Lawyers, American Civil Liberties Union of Florida, Drug Policy Alliance, Calvert Institute for Policy Research, and thirty-eight Professors of Law: (1) Bridgette Baldwin (W. New England Coll. Sch. of Law); (2) Ricardo J. Bascuas (Univ. of Miami Sch. of Law); (3) Caroline Bettinger-López (Univ. of Miami Sch. of Law); (4) Guyora Binder (Univ. at Buffalo Law Sch.); (5) Jennifer Blasser (Benjamin N. Cardozo Sch. of Law); (6) Vincent M. Bonventre Albany Law Sch.); (7) Tamar R. Birckhead, (Univ. of N.C. Sch. of Law); (8) Darryl K. Brown (Univ. of Va. Sch. of Law); (9) Paul Butler (The Geo. Wash. Univ. Law School); (10) Michael Cahill (Brooklyn Law Sch.); (11) Matthew H. Charity (W. New England Coll. Sch. of Law); (12) Lucian E. Dervan (S. Ill. Univ. Sch. of Law); (13) William V. Dunlap (Quinnipiac Univ. Sch. of Law); (14) Sally Frank (Drake Univ. Law Sch.); (15) Monroe H. Freedman (Hofstra Univ. Sch. of Law); (16) Bennett L. Gershman (Pace Law Sch.); (17) Andrew Horwitz (Roger Williams Univ. Sch. of Law) (18) Babe Howell (CUNY Sch. of Law); (19) Renée Hutchins (Univ. of Md. Sch. of Law); (20) John D. King (Wash. & Lee Univ. Sch. of Law); (21) Jeffrey L. Kirchmeier (CUNY Sch. of Law); (22) Richard Daniel Klein (Touro Coll. Jacob D. Fuchsberg Law Ctr.) (23) Kelly S. Knepper-Stephens (The Geo. Wash. Univ. Law School); (24) Alex Kreit (Thomas Jefferson Sch. of Law); (25) Donna Hae Kyun Lee (CUNY Sch. of Law); (26) Mary A. Lynch, (Albany Law Sch.); (27) Dan Markel (Fla. State Univ. Coll. of Law) (28) Ellen S. Podgor (Stetson Univ. Coll. of Law); (29) Martha Rayner (Fordham Univ. Sch. of Law); (30) Ira P. Robbins (Am. Univ. Wash. Coll. of Law); (31) Jenny M. Roberts (Am. Univ. Wash. Coll. of Law); (32) Ronald Rotunda (Chapman Univ. Sch. of Law); (33) Stephen A. Saltzburg (The Geo. Wash. Univ. Law Sch.); (34) William A. Schroeder (S. Ill. Univ. Sch. of Law); (35) Michael L. Seigel (Univ. of Fla. Levin Coll. of Law); (36) Laurie Shanks (Albany Law  Sch.); (37) Rodney Uphoff (Univ. of Mo. Sch. of Law); (38) Ellen C. Yaroshefsky (Benjamin N. Cardozo Sch. of Law).

Congrats to all the Profs!

I’ll be curious to see how the Defense Bar applies this opinion to a number of other strict liability offenses.  I think the Federal Government also has a number of strict liability crimes for which a guilty mind is not required–many of which can have quite severe penalties.

Cross-Posted at


Counterfactual: Without the “War on Drugs” what would Constitutional Law look like today?

How many criminal procedure cases arose based on investigations, interrogations, arrests, trials, prosecutions,  and incarcerations of defendants on drug charges? Without the “War on Drugs” how would 4th, 5th, and 6th amendment jurisprudence have evolved? Same? Different? Even if the same procedural irregularities occurred in a crime not involving drugs, and were considered by the Supreme Court, would courts have treated them differently?

What about other areas of the law? Sentencing? Habeas? Civil Rights and 1983 actions?

Cross-Posted at


Does “Ignorance of the Law Excuses No One” Make Sense When No One Knows How Many Laws Exist?

The WSJ has a lengthy piece about the proliferation of federal criminal laws,  and tells the story of a number of people who unknowingly violated obscure federal criminal statutes–many of which lack a mens rea requirement–including history buff Eddie Leroy Anderson, who violated the 1979 Archaeological Resources Protection Act by removing arrowheads from federal land without a permit.

Should society hold people accountable for violating laws–without any mens rea–that few if any experts know exist? Judge Posner addressed just this point in his dissent in United States v. Wilson:

We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn’t mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson’s milieu is able to take advantage of such an opportunity. If none of the conditions that make it reasonable to dispense with proof of knowledge of the law is present, then to intone “ignorance of the law is no defense” is to condone a violation of fundamental principles for the sake of a modest economy in the administration of criminal justice.

Even if Anderson were to go to the local law library, and read through the entirety of Title 18, it’s unlikely he would be able to learn all of the federal laws. As the WSJ piece points out, several attempts at cataloguing all federal crimes, including violations of regulations that carry criminal penalties, by the Department of Justice, the American Bar Association, and others have failed.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA’s report said “the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”  . . .  Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

So if the smartest legal minds are unable to list all of the federal crimes, how can we hold people like Anderson culpable for violation of essentially unknown federal laws that lack any intent requirement? Is Posner right to say we are condoning a violation of a fundamental principle of justice for the sake of a “modest economy in the administration of criminal justice”? Is ignorance of the law no longer a valid excuse? If so, what would the remedy be?

Cross-Posted at


Ginsburg’s Greatest Hits! Match the Justice with the Quote from Oral Arguments

Howard Bashman (via Jess Bravin) links to a speech Justice Ginsburg gave before the Otsego County Bar Association. In the speech, she lists some of the best questions from oral arguments this Term.

See if you can match the quote with the Justice and the case.

  1. What did James Madison think about video games?
  2. Isn’t evidence always destroyed when marijuana is smoked? Isn’t it being burnt up?
  3. Does Al-Qaeda know all this stuf?
  4. Why are you here?
  5. Why are we all here?
  6. I know your client doesn’t care. But we still have to write an opinion. So what’s the answer?
  7. Is the snake covered?
  8. Where is the 9,000-foot cow?
  9. What do you think about Satan?
Answers below the fold.

The Social Cost Frontier

In Terror in the Balance, Eric Posner and Adrian Vermeule introduce a “tradeoff thesis” to explain how courts balance between security and liberty in times of criss. To illustrate this tradeoff, the authors produced a “security-liberty frontier”  (Figure 1 on page 2) that is similar to a Pareto frontier (like the Guns and Butter curve from Econ 101).

On the X-Axis is Liberty. On the Y-Axis is Security–the ability of the state to protect the people–in the context of their book, from terrorism. On the frontier (the curve) “any increase in security will require a decrease in liberty, and vice versa.” This curve rejects any claims that “liberty is priceless” or “security at all costs.”

Posner and Vermeule use this curve to illustrate how the relationship between security and liberty can be used to “maximize the aggregate welfare of the population”–“[b]oth security and liberty are valuable goods that contribute to individual well-being or welfare. Neither good can simply be maximized without regard to the other.” The authors note that the frontier by itself “conveys no information about where the optimal tradeoff point lies.” Rather that point “depends entirely on the values or preferences of the people in the relevant society.” Effectively, the frontier “represents a constraint on the opportunities available to governments.” The shape of the Frontier is not static–“balance between security and liberty is constantly readjusted as circumstances change”

A valuable contribution of the Frontier model is that it allows people to recognize that “security and liberty are comparable” and “can make judgments about the relative worth, to them, of increases (decreases) in security that produce a concomitant decrease (increase) in liberty.” However, this is not to say that all increases in liberty will result in a decrease in security, or that all increases in security will result in a decrease in liberty. An important aspect of this model is the recognition that certain government policies can reside below the curve (Points Q, Q*, R, and R*), where liberty and security are not directly related.

The Posner/Vermuele frontier is helpful in order to illustrate the relationship between liberty, social costs, and security I discussed in The Constitutionality of Social Cost (which is now in print in the Harvard Journal of Law & Public Policy). I adapted this frontier, with a few alterations, in what I call the Social Cost Frontier. I re-labeled the X-Axis as individual liberty, rather than liberty. This focuses on what is implicit in Posner and Vermuele’s analysis–liberty inures to the benefits of individuals, while security inures to the benefit of society, at large (and these two factors are often at odds). I re-labeled the Y-Axis more broadly as Collective Safety–security is really a subset of collective safety. The red curve represents social cost (and corresponds to a second axis on the right, labeled social cost).

Read More


Non-Lawyer Squats in Abandoned Foreclosed $330,000 House, Tries to Acquire It Through Adverse Possession

Kenneth Robinson is currently squatting in a house in foreclosure that the owner had abandoned with hopes of acquiring it through adverse possession. After filling out a $16 “Affidavit of Adverse Possession” with a local court, he has set up shop in the home (it is unclear how he obtained a key). He even put up no trespassing signs. It is definitely notorious, and based on this news report, open as well (assuming the owner finds out).

It seems that Texas requires 3 years to obtain title via adverse possession, so he has some time. The full story is at the Daily Mail and a video from a local news station is available here. Let’s see what happens over the next three years.


60 New Recipes for Carolene Products Co.’s Milnut from 1939

All this talk about fundamental rights, strict scrutiny, and the New Deal has made me hungry, and the only thing that can hit the spot is a tasty, healthful, and “unadulterated” snack made with Milnut produced by The Carolene Product Co. of Litchfield, Illinois. Good thing I just received in the mail from a winning eBay bid a recipe book from 1939, titled “60 New Recipes for Milnut.”

Milnut, for those of you who have no clue what I am talking about, was, in the words of Justice Stone in United States v. Carolene Products, a “a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream.” This famous Supreme Court considered whether the sale of Milnut violated the “Filled Milk Act” of 1923–which prohibited “the shipment in interstate commerce of any skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream.” Carolene Products was indicted on the grounds that Milnut “‘is an adulterated article of food, injurious to the public health,'” and that it is not a prepared food product of the type excepted from the prohibition of the Act.” The Supreme Court–in an opinion that gave birth to the famous Footnote Four–found that the Filled Milk Act was “presumptively within the scope of the power to regulate interstate commerce and consistent with due process.”

What is fascinating is that the Recipe Book is copyrighted 1939, after the Supreme Court’s opinion was delivered on April 25, 1938. A very important word is missing from this recipe book–milk! The product is referred to only as Milnut, with no reference to milk. In other words, following this case, Milnut no longer shipped in interstate commerce products “in the imitation or semblance of condensed milk or cream.” It is just, well, Milnut, whatever the heck that is (but we do know it is “So Rich It Whips!”).

So Carolene Products started selling (presumably) the exact same product, without calling it milk, and it was now legal. Yet another reminder how Supreme Court cases have an impact on more than just law profs.
In case you were wondering, Milnot (the name was changed in 1939 after the Supreme Court case) is still on sale today. And it is labeled as “Evaporated Filled Milk” (the FIlled Milk Act was repealed decades ago, so I think this is legal). You can purchase Milnot online from Smuckers (I bought a case!).

I have also purchased a case of Ollie’s BBQ sauce from the Olie’s BBQ of Katzenbach v. McClung fame.

I am collecting these trinkets for a book project with my colleague Yaakov Roth, titled Constitutional Places, Constitutional Faces. If you have photographs, or even better, actual items, from famous Supreme Court cases, please drop me a line at jblackman at harlaninstitute dot org. I’d love to include them in our collection. Some of our pictures are available here and here.

Cross-posted at


Linda Greenhouse on Justice Breyer’s Dissent in EMA: “most unusual judicial performance”

In the New York Times, Linda Greenhouse labels Justice Breyer’s dissent “most unusual judicial performance” this term. If it makes the top of Linda’s end-of-term scorecard, perhaps this answers, in part, any questions about why David and I wrote about it. It’s an important, and “unusual” opinion.

Greenhouse also focuses on the fact that Breyer went out of his way to cite contradictory studies that were never briefed to the Court, something he has done several times, a point we made in our Op-Ed.

When Greenhouse–who has written nostalgically about a return to the Warren Court jurisprudence–is criticizing Justice Breyer, and calling Justice Scalia’s opinion “forcefully libertarian” (!) you know something is awry in the realm of active liberty.

Here is the relevant passage:

In this case, Brown v. Entertainment Merchants Association, the United States Court of Appeals for the Ninth Circuit had found that the California law violated the First Amendment, and by a vote of 7 to 2, the Supreme Court agreed. Even Justice Samuel A. Alito Jr., who in earlier opinions dissenting from rulings that protected hate speech and depictions of animal cruelty had seemed the justice most attentive to arguments about the harms inflicted by unfettered free speech, found the California law unconstitutionally vague. (He did not sign Justice Antonin Scalia’s forcefully libertarian majority opinion.)

Most unusual judicial performance: Justice Alito having forfeited his usual spot on the First Amendment spectrum in the video games case, his place was taken by Justice Stephen G. Breyer, who voted to uphold the statute. Justice Breyer added two appendices to his dissenting opinion, comprising a 14-page list of scientific articles on the psychological harm of playing violent video games. The much longer “Appendix A” listed articles concluding that the games were in fact harmful, while the shorter “Appendix B” listed articles that either did not support or that actually rejected the claim of harm.

Justice Breyer does not employ footnotes in his opinions, and has collected references in appendices with some frequency. His penchant for original research has also occasionally led him outside the record of the case at hand. But the sheer size of this offering, consisting of contradictory articles neither cited to the court by the parties nor vouched for by the justice himself qualifies the Breyer dissent for the distinction of “most unusual judicial performance.”

This analysis is foreign to traditional First Amendment analyses, and apparently offends Linda Greenhouse’s sensibilities. I find myself largely in agreement with what Linda Greenhouse wrote.

Cross-Posted at