The Ferocity of U.S. Criminal Justice

Towards the end of a criminal trial in which a law partner of mine was defense counsel, he was approached by a journalist from a German newspaper who had been observing the trial. She asked him why American criminal justice was so ferocious towards defendants. The question is a good one. Our system is, in fact, anti-defendant to a degree perhaps unique in the civilized world. The German journalist’s question highlights a great divide in perception, for if you raised the subject of criminal justice with a random citizen of the United States, the question you might hear would be: “When are the courts going to close the loopholes and stop being revolving doors for criminals?”

The Fifth Amendment Does Not Entail the Constitutionality of Capital Punishment

The Fifth Amendment of the US Constitution anticipates the existence of capital punishment. Justice Scalia declared that it follows that capital punishment is constitutional. He was wrong.

Normative Words in the Constitution: Capital Punishment and Due Process

Some constitutional interpreters, including some who regularly put on robes, argue that capital punishment must be constitutional under the Eighth Amendment because nearly all the drafters, and the great majority of the ratifiers, would not have thought it "cruel and unusual." This reasoning is exactly as sound as that producing the conclusion that there would be no Fifth Amendment "due process of law" objection to restricting the jury to white males in trying a criminal action against a female African American.

A Textualist Approach to Legal Interpretation

Here is a draft of a paper on legal interpretation that is similar to origanilism in emphasizing the meaning of the text as enacted, but differs from standard forms of originalism, especially with respect to normative words and phrases in the text and in disavowing as determinative drafter and legislative or ratifier expectation and intent. The first section by itself might be of interest if you are a little uncertain about the difference between ambiguity and vagueness, or types of ambiguity, or what problems of interpretation there are beyond ambiguity and vagueness.