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WASHINGTON -- This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary's role. Herewith some pertinent questions:

-- Lincoln's greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act's premise was that "popular sovereignty" -- majorities' rights -- is the essence of the American project. Is it, or is liberty?

-- Justice Robert Jackson wrote, "The very purpose of a Bill of Rights was to ... place [certain subjects] beyond the reach of majorities." Was that not also the purpose of the 14th Amendment's Privileges and Immunities Clause? It says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Was this amendment's purpose to ensure that the natural rights of all citizens would be protected from abridgement by their states?

-- If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.

-- Chief Justice John Roberts says the doctrine of stare decisis -- previous court decisions are owed respect -- is not an "inexorable command." The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?

-- The court, without warrant from the Constitution's text or history, has divided Americans' liberties between those it deems "fundamental," such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgements of the latter have been given less exacting judicial scrutiny. The court calls this "rational basis" scrutiny; it should be called "conceivable basis" scrutiny. If a legislature asserts, or the court can imagine, a rational basis for the abridgement, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?

-- The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Robert Bork said this is akin to an "inkblot" on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress' powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?

-- Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress' power over interstate commerce?

-- The Fifth Amendment says no property shall be taken "for public use" without just compensation. In the 2005 Kelo case, the court upheld a city's seizure of private property not to facilitate construction of a public structure or to cure blight, but for the "public use" of transferring it to a wealthier private interest that would pay more taxes. Did the court err?

-- Madison worried that Congress would draw "all power into its impetuous vortex." For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says "All legislative powers herein granted shall be vested in a Congress." Should the court enforce limits to Congress' power to delegate its powers?

-- Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

-- Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

-- You commendably believe that judges should adhere to the "original public meaning" of the Constitution's text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?

-- Oliver Wendell Holmes, a deferential, majoritarian jurist, said: "If my fellow citizens want to go to Hell I will help them. It's my job." Discuss.

George F. Will is a columnist for The Washington Post.

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Questions for Judge Gorsuch - Helena Independent Record

WASHINGTON -- This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary's role. Herewith some pertinent questions:

-- Lincoln's greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act's premise was that "popular sovereignty" -- majorities' rights -- is the essence of the American project. Is it, or is liberty?

-- Justice Robert Jackson wrote, "The very purpose of a Bill of Rights was to ... place [certain subjects] beyond the reach of majorities." Was that not also the purpose of the 14th Amendment's Privileges and Immunities Clause? It says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Was this amendment's purpose to ensure that the natural rights of all citizens would be protected from abridgement by their states?

-- If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.

-- Chief Justice John Roberts says the doctrine of stare decisis -- previous court decisions are owed respect -- is not an "inexorable command." The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?

-- The court, without warrant from the Constitution's text or history, has divided Americans' liberties between those it deems "fundamental," such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgements of the latter have been given less exacting judicial scrutiny. The court calls this "rational basis" scrutiny; it should be called "conceivable basis" scrutiny. If a legislature asserts, or the court can imagine, a rational basis for the abridgement, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?

-- The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Robert Bork said this is akin to an "inkblot" on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress' powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?

-- Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress' power over interstate commerce?

-- The Fifth Amendment says no property shall be taken "for public use" without just compensation. In the 2005 Kelo case, the court upheld a city's seizure of private property not to facilitate construction of a public structure or to cure blight, but for the "public use" of transferring it to a wealthier private interest that would pay more taxes. Did the court err?

-- Madison worried that Congress would draw "all power into its impetuous vortex." For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says "All legislative powers herein granted shall be vested in a Congress." Should the court enforce limits to Congress' power to delegate its powers?

-- Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

-- Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

-- You commendably believe that judges should adhere to the "original public meaning" of the Constitution's text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?

-- Oliver Wendell Holmes, a deferential, majoritarian jurist, said: "If my fellow citizens want to go to Hell I will help them. It's my job." Discuss.

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GEORGE WILL: Here are questions senators should ask Gorsuch - Sioux City Journal

In a recent column ("Flawed Judicial Mindset," March 3), Dana Kelley argues that the death penalty is plainly constitutional. Therefore, he reasons, if the Supreme Court strikes down the ultimate sanction, the justices will be altering the U.S. Constitution rather than interpreting it. That would be an act of judicial "tyranny" because the Constitution may only be changed by Congress and the states via the formal amendment process set forth in Article V of our governing charter.

I disagree with Mr. Kelley's analysis in multiple respects.

Let me begin by disclosing my own biases. I believe that the death penalty is morally justified in principle. There are some crimes for which execution is a morally appropriate punishment. However, I also believe that the death penalty is not morally justified in practice.

While I hold this latter view on multiple grounds, the two most important are as follows.

First, according to the preponderance of the empirical evidence, the death penalty does not deter crime any more effectively than the sentence of life without the possibility of parole.

Second, our criminal justice system, while the best and most reliable in the world, is far from perfect. A small but critical percentage of jury trials result in a wrongful conviction. This is demonstrated by, among other things, the string of exonerations of death row inmates over the last three decades thanks to improved analysis of DNA. Furthermore, many leading criminal law scholars have concluded that innocent people have in fact been executed in this country. Thus, the risk of imposing the death penalty on an innocent person is simply too great given that the punishment has no supplemental deterrent effect in comparison to life without parole.

The morality and legality of the death penalty are two different issues. And Mr. Kelley's piece concerns the law. So now let's turn to that subject. Mr. Kelley rightly points out that certain parts of the Constitution appear to presume the existence of the death penalty. In particular, the Fifth Amendment provides that no person "shall be held to answer for a capital ... crime, unless" the person is indicted by a grand jury. And the amendment also states that a person may not be "deprived of life ... without due process of law." He says that these clauses codify capital punishment; they establish that the Constitution "allows the government to impose a death sentence, as long as it is the product of due process." But the story is considerably more complicated.

To begin with, the Fifth Amendment grants no government powers. Instead, it places limits on such power. Thus, the authority to execute a criminal must first be identified elsewhere in the Constitution. For state governments, the power to impose capital punishment is provided by the 10th Amendment, which grants states general authority to regulate the affairs within their borders. For our national government, the power comes from Article I, Section 8 of the Constitution, which identifies the legal domains that are subject to federal regulation.

But here is the key point: Any exercise of government power--state or federal--is prohibited if it violates one of the rights-bearing provisions of the Constitution, such as those set forth in the Bill of Rights and the 14th Amendment. For example, Congress is expressly granted the authority to regulate interstate commerce. But if it enacts a statute designed to govern the national economy that also happens to restrict the freedom of speech, then the law is unconstitutional because it violates the First Amendment. The death penalty is subject to the same limitations. Application of the ultimate sanction must be consistent with not only the due process clause, as Mr. Kelley explains, but also with every other rights-bearing provision in our national charter.

One of the most important such provisions is the equal protection clause of the 14th Amendment. It requires that governments not discriminate on the basis of race, sex, and several other grounds. Unfortunately, there is considerable racial discrimination in our criminal justice system. And much research establishes that the death penalty itself is applied in racially discriminatory ways. As a result, there is a powerful argument that capital punishment--as currently applied in the United States--violates the 14th Amendment's equal protection clause.

At most, the 14th Amendment only bars capital punishment until we can expunge disparate racial treatment from our enforcement of criminal law. Does any part of the Constitution go further? In particular, might the Eighth Amendment's prohibition on cruel and unusual punishment make the death penalty unconstitutional more generally? Mr. Kelley thinks the answer is absolutely not. He relies upon Justice Scalia's argument that the framers of the Constitution could not have believed that the death penalty violates the Eighth Amendment because they wrote the Fifth Amendment, which expressly contemplates that executions will be carried out in at least some circumstances. And, Justice Scalia continued, the Eighth Amendment must be interpreted consistently with how it was understood in the late 18th century.

The problem here is that there is considerable evidence that the framers thought that the meaning of "cruel and unusual" would change with time. After all, they used the word "unusual." What is unusual is constantly evolving as governments alter the laws of punishment. It is thus quite reasonable to believe that the death penalty, as a matter of constitutional law, is now cruel and unusual, even though it was not so in 1790.

Now, I actually agree with Mr. Kelley's conclusion about executions and the Eighth Amendment: I do not think that the death penalty is unconstitutional as cruel and unusual punishment. My point here is this: there is a plausible legal argument that Mr. Kelley and I are wrong. And thus, should the Supreme Court strike down the death penalty on Eighth Amendment grounds, that will clearly not be an act of tyranny. It will, at worst, simply be a case where the Supreme Court got it wrong on a legal issue over which reasonable and fair minds can differ. And if the High Court instead uses the 14th Amendment to invalidate capital punishment temporarily, the justices will be on even firmer ground. Indeed, I think they will be right.

Joshua M. Silverstein is a Professor of Law at the University of Arkansas at Little Rock, William H. Bowen School of Law. The opinions in this column are his own.

Editorial on 03/19/2017

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Death penalty might indeed be unconstitutional - NWAOnline

This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary's role. Herewith some pertinent questions:

Lincoln's greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act's premise was that "popular sovereignty" majorities' rights is the essence of the American project. Is it, or is liberty?

Justice Robert Jackson wrote, "The very purpose of a Bill of Rights was to ... place [certain subjects] beyond the reach of majorities." Was that not also the purpose of the 14th Amendment's Privileges and Immunities Clause? It says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Was this amendment's purpose to ensure that the natural rights of all citizens would be protected from abridgement by their states?

If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.

Chief Justice John Roberts says the doctrine ofstare decisis previous court decisions are owed respect is not an "inexorable command." The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?

The court, without warrant from the Constitution's text or history, has divided Americans' liberties between those it deems "fundamental," such as speech and association, and others, many pertaining to economic activity and the right to earn a living, that are inferior. Abridgements of the latter have been given less exacting judicial scrutiny. The court calls this "rational basis" scrutiny; it should be called "conceivable basis" scrutiny. If a legislature asserts, or the court can imagine, a rational basis for the abridgement, it stands. Do you think judges should decide which liberties to protect or neglect? Should courts examine evidence of whether economic regulations are related to public health and safety or merely reflect rent seeking by economic interests?

The Ninth Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Robert Bork said this is akin to an "inkblot" on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress' powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?

Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress' power over interstate commerce?

The Fifth Amendment says no property shall be taken "for public use" without just compensation. In the 2005 Kelo case, the court upheld a city's seizure of private property not to facilitate construction of a public structure or to cure blight, but for the "public use" of transferring it to a wealthier private interest that would pay more taxes. Did the court err?

Madison worried that Congress would draw "all power into its impetuous vortex." For many decades, however, our centrifugal Congress has been spinning off essentially legislative powers, delegating them to presidents and executive agencies. The Constitution says "All legislative powers herein granted shall be vested in a Congress." Should the court enforce limits to Congress' power to delegate its powers?

Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

You commendably believe that judges should adhere to the "original public meaning" of the Constitution's text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?

Oliver Wendell Holmes, a deferential, majoritarian jurist, said: "If my fellow citizens want to go to Hell I will help them. It's my job." Discuss.

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Opinion/Column: Some questions to pose to Judge Gorsuch - The Daily Progress

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ByKody Fairfield

Kentucky conservative SenatorRand Paul reintroduced S. 642, theFAIR(Fifth Amendment Integrity Restoration)Acton Wednesday. The intention of the bill isto protect property owners rights and restore the Fifth Amendments role in civil forfeiture proceedings.Rep. Tim Walberg (R-MI) has introduced companion legislation (H.R. 1555) in the U.S. House of Representatives, read an official statement from his office on Thursday.

Specifically, the bill looks to target and limit civil asset forfeiture of citizens who have not been convicted of a crime.

The federal government has made it far too easy for government agencies to take and profit from the property of those who have not been convicted of a crime, said Paulin his statement. TheFAIRActwill protect Americans Fifth Amendment rights from being infringed upon by ensuring that government agencies no longer profit from taking the property of U.S. citizens without due process. It guards against abuse while maintaining the ability of courts to order the surrender of proceeds of crime.

Over the past few years, weve seen a wave of stories where the government unjustly seized property from innocent Americans without charging them with a crime, explainedRep. Walberg, in the same statement.These types of abuses of civil asset forfeiture laws should be a clarion call to reform the system and uphold the constitutional rights of the American people. Thats why Im committed to championing the FAIR Act, which includes comprehensive and bipartisan reforms to limit the scope of the governments forfeiture powers and protect individual rights.

The FAIR Act has the backing of some major organizations in politics, includingHeritage Action, the American Civil Liberties Union, Institute for Justice, FreedomWorks, National Federation of Independent Business, National Association of Criminal Defense Lawyers, Drug Policy Alliance, Americans for Tax Reform, and Campaign for Liberty, according to Pauls statement.

Dr. Rand Pauls S. 642, the Fifth Amendment Integrity Restoration (FAIR)Act:

Eliminates Equitable Sharing: The federal equitable sharing program allows state law enforcement officers to turn seized property over to federal officials for forfeitureand get up to 80% of the proceeds of the forfeited property. The FAIR Act ends equitable sharing and ensures that law enforcement cannot ignore state law.

Restores Principle of Innocent Until Proven Guilty: Under current law, federal law enforcement agencies may take property suspected of involvement in crime without charging the property owner with a crime. The FAIR Act places on the government the burden to show that a property owner consented to his property being used in a crime by a third party (or that the property owner was willfully blind to the criminal activity).

Requires Clear and Convincing Evidence: Under current law, the government need only prove by a preponderance of the evidence that a defendants property was used for an illegal purpose to forfeit the property. The FAIR Act would require that the government prove its case by the higher standard of clear and convincing evidence.

Protects the Right to Counsel: Under current law, property owners can receive appointed counsel due to indigency only if (1) they request it, and (2) their home has been seized. The FAIR Act would ensure that owners have the opportunity to receive representation in all civil forfeiture proceedings.

Removes the Profit Incentive: Law enforcement should be motivated by public safety, not financial rewards. The FAIR Act would restore the rule in which the proceeds of forfeiture go to the Treasurys General Fund, where Congress can appropriate the money for any purpose.

Reforms IRS Seizures: The FAIR Act requires that the IRS prove that the defendant knowingly deposited funds with criminal intent before they can seize the property. It also requires that a probable cause hearing be held no later than 14 days after the IRS seizes funds under the pretense of a structuring violation.

Enacts Strong Reporting Requirements: The Department of Justice will be required to compile and publish the percentage of its seizures that were subjected to civil and criminal asset forfeiture.

The push against civil asset forfeiture has been gaining momentum as just the other day, sitting Supreme Court JusticeClarence Thomashas questioned its necessity, specifically highlighting the procedures effect on minority groups.

These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings, Thomas wrote. Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home, Thomas toldthe Huffington Post.

The value collected by law enforcement departments via civil asset forfeiture has bloomed wildly since the mid 80s when it collected roughly $93.7 million in the US, to today where it collects well over $2.5 billion.

5th amendmentCivil Asset Forfeiturefair actrand paultim walberg

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Rand Paul Reintroduces FAIR Act to Restore Respect for the 5th Amendment - The Libertarian Republic