On the day when the President of the United States welcomes the Pope to the White House, the long-awaited decision of the US Supreme Court on the compatibility of the lethal injection with the Eighth Amendment to the US Constitution has been handed down. In Baze v Rees, the challenge failed by a vote of 7 to 2 and the decision below (217 S. W. 3d 207 (2007)) was upheld; but the 7 is a fractured majority (I have previewed this case here and here; for full analysis, see the ScotusWiki page on the case; for initial news reaction, see NPR).

Roberts CJ, joined by Kennedy and Alito JJ, concluded that Kentucky’s lethal injection protocol satisfies the Eighth Amendment. In their view, allowing a condemned prisoner to challenge a State’s execution method merely by showing a slightly or marginally safer alternative found no support in the Court’s cases, that it would embroil the courts in ongoing scientific controversies beyond their expertise, and that it would substantially intrude on the role of state legislatures in implementing execution procedures. As a consequence, they held that the petitioners had failed to demonstrate the necessary substantial risk of serious harm, and that Kentucky’s protocol did not constitute an unconstitutional “cruel and unusual” punishment. Read the rest of this entry »

L’Assemblée nationale francaise (the lower house of the French parliament) yesterday passed a “Draft law aimed at fighting incitement to seek extreme thinness or anorexia” providing for fines of to €30,000 and terms of imprisonment of up to two years for inciting to “excessive thinness” and more if the incitement results in death (see Associated Press | Daily Telegraph | Guardian | International Herald Tribune here and here | Irish Independent | Irish Times | Media Law Prof Blog here and here | New York Times; update Volokh, including the French text of the Bill). The Bill will go before le Sénat (the upper house) next month. According to the Guardian, the Bill:

would bar any form of media, including websites, magazines and advertisers, from promoting extreme thinness, encouraging severe weight-loss or methods for self-starvation … [and] is specifically aimed at what French MPs called pro-anorexia “propaganda” websites … [which] support anorexia as a lifestyle choice rather than a medical disorder … The blogs and forums, which have developed in the US since 2000 and grown in France over the past two years, often include talk-boards frequented mainly by teenage girls and young women with advice on how to get through the pain of extreme hunger after eating a yoghurt a day, or how to hide extreme weight-loss from parents or doctors. Some use pictures of excessively thin models as “thinspiration” for self-starvation.

There is plainly an important social issue here, and much good work is done in Ireland by groups such as Bodywhys (especially their online support group). Indeed, more can be done to combat this problem without recourse to censorship. Read the rest of this entry »

On this day (hat tip: ScotusBlog) in 1819, Chief Justice Marshall (left) delivered the decision of the US Supreme Court in McCullogh v Maryland 17 US (4 Wheat) 316 (1819) (wikipedia | findlaw), holding that the US Federal Government had the power to establish the Bank of the United States, and in the process laying down some fundamental constitutional doctrine which underpins many of the world’s constitutions today – not only the US, but the Irish as well. In particular, he asserted that

… we must never forget that it is a constitution we are expounding (17 US (4 Wheat) 316, 407 (1819) (Marshall CJ) emphasis in original).

A recent conscious Irish echo of this dictum is to be found in the judgment of Barrington J in Irish Times v Ireland [1998] 1 IR 359 (SC), where he asserted that

… it is important to remember that we are construing, not a revenue statute, but a constitution ([1998] 1 IR 359, 406 (Barrington J)).

The trope that a constitution is not to be interpreted as a revenue statute is a common one. For example, in National Union of Railywaymen v Sullivan [1947] IR 77 (HC) 88 Gavan Duffy J held that a Constitution is “emphatically not to be parsed as if it were an Income Tax Act”; whilst in AG v Paperlink [1984] ILRM 373, 385; [1983] IEHC 1 [45] Costello J said that the Constitution is “a political instrument as well as a legal document and in its interpretation the courts should not place the same significance on differences of language used in two succeeding sub-paragraphs as would, for example be placed on differently drafted sub-sections of a Finance Act” (see also Murray v Ireland [1985] IR 532 (SC) 539 (Costello J)).

But quotes such as those from Marshall CJ and Barrington J have divided subsequent generations. Frankfurter J (writing extra-judicially) described the Marshall quote as “the single most important utterance in the literature of constitutional law … most important because most comprehensive and most comprehending” (F Frankfurter “John Marshall and the Judicial Function” 69 Harv L Rev 217, 219 (1955)), but Scalia J (also writing-extrajudicially) more recently described as an often misused old chestnut (A Scalia “Assorted Canards of Contemporary Legal Analysis” 40 Case Western Reserve Law Review 581, 594-596 (1990)). Either way, the status of McCullogh v Maryland as a (perhaps the) leading case on constitutional law is secure.

(Thanks to Daithí­, offblog, for discussing these issues and quotes with me!)

A few weeks ago, The Economist published a Special Report on Capital Punishment in America entitled Revenge begins to seem less sweet. The theme was that Americans – except in Texas – are losing their appetite for the death penalty. One of the many points in a typically well-written, balanced and informative piece was that

It is now far more expensive to execute someone than to jail him for life; in North Carolina, for instance, each capital case costs $2m more. Ordinary inmates need only to be fed and guarded. Those on death row must have lawyers arguing expensively about their fate, sometimes for a decade or more … The system of appeals has grown more protracted because of fears that innocent people may be executed. Few would argue that such safeguards are not needed, but their steep cost gives abolitionists a new line of attack.

This was graphically illustrated by a story in the New York Times last week, headlined: Capital Cases Stall as Costs Grow Daunting: Read the rest of this entry »

As I’ve already mentioned here and here, last Thursday, the University of Washington and Lee’s branch of the American Constitution Society hosted a great Supreme Court Discussion Panel, Looking Back and Moving Forward, to recap the US Supreme Court’s 2006-2007 term and to preview its 2007-2008 term. This post looks at three more of the presentations, covering abortion, elections, detention, and sentencing. Read the rest of this entry »

At the University of Washington and Lee’s branch of the American Constitution Society event last Thursday, I heard Rodney Smolla (Dean of that university’s First Amendment issues: the speech rights of high school students (on which contrast here and here), and First Amendment law on obscenity.

High School Speech
(Insert High School Musical joke to taste here).

The first case he discussed was Morse v Frederick 551 US __ (2007) (Justice Talking (NPR) | oyez | wikipedia), in which the Supreme Court had to decide whether a banner bearing the slogan “Bong Hits 4 Jesus” at a school outing to watch the Olympic torch run through town (though not on school property) got First Amendment protection. Roberts CJ held that, because schools may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use, the school did not violate the First Amendment by confiscating the banner and suspending the student.

Dean Smolla argued that there were three key elements to Roberts CJ’s reasoning. Read the rest of this entry »

The BBC are reporting today on yet another death row battle in the United States: Alabama’s fierce death row battle:

If most politicians in Alabama had their way, Tommy Arthur would have been executed more than 20 years ago. … Alabama’s governor has made it clear he wants Arthur to die as soon as possible, and that the current furore over the chemicals used to deliver the ultimate punishment is an annoying distraction.

Although many death penalty abolitionists are viewing the US Supreme Court’s decision to review the constitutionality of the existing chemical cocktail with hope, the fact is that states like Alabama guard their rights very carefully – and few more so than the right to execution.

Last Thursday, I attended an event hosted by the University of Washington and Lee’s branch of the American Constitution Society, looking at the US Supreme Court’s term just past and at the term to come. David Bruck, of that University’s Law School talked about death penalty cases (which he described as a US Supreme Court “staple, term after term”), including what the BBC story above referred to as “the current furore over the chemicals used to deliver the ultimate punishment”. Read the rest of this entry »

The University of Washington and Lee’s branch of the American Constitution Society hosted a great Supreme Court Discussion Panel, Looking Back and Moving Forward, today to recap the US Supreme Court’s 2006-2007 term and to preview its 2007-2008 term. I’ve blogged the proceedings here, here and here.

By way of bonus, here’s a link to videos of two good roundups of the Supreme Court’s last term, with equivalent video previews of the forthcoming term here (ACS) and here (Federalist Society).