On the Suzuki Court

Re: Selective Service Registration

Associate Justice Souter, concurring

It is one of the tortures of human development that ideas are often implemented initially where they have the least impact to the prior social order.

 Associate Justice Scalia

                                                                  concurring in judgement

Nonacs v Selten, Secretary of Defense

            I agree fully with the opinion of the Court, which I join. I write separately to address the vexing question of original intent and its implementation, a question which undoubtedly will haunt the near future of this Court. We have birthed argument not our own; a seemingly endless slide of historical conjectures awaits to take us to our favorite destination. Or so many will say, and so it may become. We must police ourselves, a difficult if not absurd ethic.

I-A

             Today’s decision would have been impossible during the Cold War, when conventional war was the only counter to nuclear annihilation. Such warfare is unlikely now. The war on terror has not depleted volunteerism; casualties have been high, but nothing like true land war. If this decision was impossible then, should we say that the Court, so then deciding, would be acting unconstitutionally? This question should haunt us perennially. Social-economic reality can never be shunned completely if our decisions are to take root. But we never know what reality is, exactly, nor how far our decisions might go in shaping it; for, without doubt, jurisprudence seeks to shape the world.
           How, then, can we take words contemplated at the end of Civil War, importing these for decision in a world beyond the comprehension of those who ratified them into the Constitution? The only sane answer I see is to distinguish content from implementation.

I-B

             The future is often present in small quantities if we will see. Small voices can be prophetic. This is, I think, an essential reason why our rights centered democracy thrives; forbidden to eradicate voices we detest or find baffling, we unwittingly (sometimes) preserve warnings of things to come.
             This was not, however, the original motivation for tolerance. We tolerated because we needed allies, allies in commerce, allies in potential defense against Great Briton, allies in lieu of warfare for possession of westward land. We are all different. This gravely nodded by all at the Constitutional Convention. Madison’s Notes of the Convention preserve an observation by Charles Pickney of South Carolina of some import for the ratification of constitutional language:

no two people are so exactly alike in their situation or circumstance as to admit the exercise of the same Government with equal benefit; a system must be suited to the habits and genius of the people it is to govern, and must grow out of them. (Madison, 1987, Notes of the Federal Convention, W. W. Norton and Co., p. 185)

This statement, professed at a time when mud alone inflated distance beyond present reckoning save in times of disaster, hints at an essential ingredient in the federal ratification of constitutional language: in matters of livelihood, words must not be too exact. Content fattens as debate grows; so too then does alliance for ratification. Content fattens on ambiguity, and it is ambiguity which propels language to ratification. Votes are allies in mutual misunderstanding.
           Consequently, the implementation of constitutional language is often underdetermined. Fat words can go several ways, each way creating and destroying future choice. Slogging though mud, choices are slowly made. Fears of multiple, divergent implementations are muted; the thrill of alliance and possibility dominates. Today we have instantaneous implementation. We demand exact language for future protection, but thereby have fewer allies for ratification. Perhaps the European Union faces this quandary today, our constitutional process, for better or worse, no longer possible, truth unavoidably unique at civilization’s pinnacle.
           We, however, have our fat words from the past, and must look to the Courts to trim a reality from them. The content we have is not limited to the prevalent view of regions let alone nation. A minority view may be essential to ratification and so latent within language. Democracy does not create prescience, but possibility.
           The Court implements less than ratification gives, for alliance is usually based on a self-lie of common interest. Common, but as Pickney, ante, notes, rarely identical. But the Court cannot trim on whim. We must show the content was there during ratification. And, as Justice Scalia does in his concurrence, we must now show why a new, proposed implementation was ignored. Our Courts have done well, more or less, because the minority content of constitutional wording often presages future social economic process, a strange happenstance of democracy I fear we under appreciate.

I-C

           I believe the Opinion of the Court and Justice Scalia’s concurrence in judgement adequately delineate the content of “involuntary servitude” within the 13th Amendment. I disagree, however, with Justice Scalia’s view that delimiting the content of involuntary servitude outside of military service constitutes dicta to the present case. If nothing else, fleshing the full content of the words may check future implementation. But, beyond this, military service, militia or otherwise, was not, even during Civil War, as distinct from other aspects of livelihood as presently. Marching the militia afar could have the same effect as inflationary debt, trapping individuals in the perceived forced labor of involuntary servitude (see Suzuki, for the Court). Prolonged military service, apart from risked death, could force a man into debt for the upkeep of his homestead.
           Nor do I think Justice Scalia’s proposed constitutional amendment necessary. Our social economy can, has supported a contractual army absent threat of conscription, even under real prospect of death. We abandoned the draft as the Vietnam war ended. The Soviet threat kept the tool needful, but that need has past. We might blunder into an over-extended military, but potential bad policy cannot, as Scalia, concurring in judgement, implicitly admits, control constitutional implementation (cf Scalia, concurring in judgement, Nixon v Missouri Municipal League [2004]). Neither, however, am I distraught over Justice Scalia’s amendment. As he proudly proclaims, let the people decide. This is his patriotism, and I find no fault with it.

I-D

           The minority content of the 13th Amendment we activate today is not hard to see in 1863. It is reflected in the resistence to State as opposed to Federal conscription and, of course, in the New York City draft riots. As Justice Scalia, concurring in judgement, notes, these riots saw a volunteer army employed to enforce conscription: the social technology of the American draft was born in Civil War. The failure of volunteerism in what is called the first modern war is also a failure of free labor, free soil ideological recruitment. Perhaps we should marvel that the war was executed through volunteerism for as long as it was.
           Free labor ultimately failed in recruitment because the ideology was not, at bottom, patriotic. Lincoln and the Republican Congress tied patriotism to free labor, but the exegesis of war, and Lincoln’s incessant constitutional justification of Union, left patriotism free standing; Lincoln was reduced to promising free labor equality after war (e.g., Scalia, concurring in judgement, Part IV, Section 8d). The failure of Midwestern volunteerism is an affirmation of free labor involuntary servitude ideology. The decision to turn bluecoats on the New York rioters is a manifestation of free standing, national, patriotism, born in coercion; for the first goal of patriotism is control of the nation.

I-E

           How fickle is the implementation logic outlined herein? Can we later return to Arver v US, 245 US 366 (1918), abandoning the involuntary servitude content identified today? Honesty compels a yes. Which is why this Court is both hated and loved. But liberty acts as a ratchet; it is hard to go back. Not impossible, though. In glorious dictum I declare the Japanese-American internment camps were in violation of the 13th Amendment’s prohibition of involuntary servitude (Hirabayashi v United States, 320 US 81 [1943]; Korematsu v United States, 323 US 214 [1944]); careers, present and future, property, real and financial–all lost en mass without conviction for crime. The horizon of opportunity quashed for so many without process of any kind, their only affront being where they lived. Guantanamo comes to mind as a similar blot.
           Still, liberty is a ratchet, distributed in so many minds throughout the nation. Liberty returns, always ready in hiding even when flourishing. Justice Scalia’s stance today speaks powerfully of this. I revere him this day.

II

           Ratification is a coalition of ambiguity in which delusion may safely dwell. Self-delusion, intentional delusion to an ally. From the hard contours of politics comes representation of the nascent future, the tiny voice included to reach ratification. The greater voices shall forget that embrace. But the necessity of the interested lie can become altruism for the future. There may thereby be tools for that future. Tools for Congress, tools for the courts. Original intent is conservative of possibility.
           But possibility is not always a good thing. There are many small voiced allies of ratification, embraced with the neutrality of political necessity. Some should stay safely pinned for exhibit in history books. We shall not find that original intent will remove interpretative contention on this Court. The rules will change, but possibilities will whisper in our ears that their time is now.
           We shall have rules in our defense, but they must leave a remnant of undeclared possibility to be of use. There, in that place, we may become drunk on history as Justice Brennen became drunk on equity (e.g., Plyler v Doe, 457 US 202 [1982]). No interpretative scheme can insure against self-delusion. Of this I am assured.

III

           History jumps across time, hiding in words for later revelation. The standard methodology of the common law, identifying a chain of decisions with incremental change, may veil the coalition content of ratification, ratification formal or not, for Crown policy which seeded the common law was not without coalition. This Court employed a common law analysis to expand jury oversight of facts determining sentencing in Apprendi v New Jersey (2000) and its progeny (e.g., Blakely v Washington [2004], Ring v Arizona [2002], United States v Booker [2005]). Justice Scalia’s analysis today (Scalia, concurring in judgement) suggests the common law should not be dispositive; rather, the historical chain which is the common law may employ an “obscuring tradition” (Scalia, concurring in judgement, Nonacs v Selten, Secretary of Defense) which prevented the implementation of a contentious process.

III-A

           I may have succumbed to the false certainty of the common law’s historical trail. In 2001 this Court heard Atwater v City of Lago Vista, where a mother, having failed to employ seat belts for herself and her small children, was handcuffed and arrested, in front of her children, for violating a fine-only misdemeanor. Texas law authorizes such an arrest, but Atwater, based partly on the success of Apprendi the year before, argued for a common law tradition precluding arrest for fine-only violations. Writing for the Court, I denied her argument (Souter for the Court, Atwater):

We find disagreement, not unanimity, among both [pre-founding English] common law jurists and text-writers who sought to pull cases together and summarize accepted practice.

The American Colonial record is no better; quoting Justice Powell in an early case:

There is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned with warrantless arrests by local constables and peace officers. (Powell, concurring, United States v Watson, 423 US 411, 429 [1976])

Justice Scalia joined me in Atwater. But his analysis today makes we wonder if we got it right. The contention reported in early English common law might be evidence of an obscuring tradition. Some of the evidence I presented can, I think, be re-interpreted to this end.
           Atwater noted several Parliamentary statutes which authorized warrantless misdemeanor arrests. A second reading suggests a commonality overlooked in 2001: these statutes deal with unacceptable behavior at society’s margin. A stranger, passing a night-watchman, shall be arrested until morning (13 Edw. I, ch 4, §§5-6, 1 Statutes at Large 232-233 [1331]); persons playing unlawful games such as bowling, tennis, dice and card may be arrested without warrant, as may those “haunting” such activities (33 Hen. VIII, ch 9, §§11-16, 5 Statutes at Large [1541]); so too any hawker, peddler or petty trader (8&9 Wm. VIII, ch 25, §§3,8, 10 Statutes at Large [1697]); so too jugglers, palm-readers, and unlicensed play-actors (17 Geo. II, ch 5, §§1-2, 5, 18 Statutes at Large 144, 145-7 [1744]); so too individuals obstructing public streets and passages with “pipes, butts, barrels, casks or other vessels” or an “empty cart … or other carriage” (30 Geo. II, ch 22, §§5, 13, 22 Statutes at Large 107-8, 111 [1757]). I concluded the list with 27 Geo. II, ch 16, §7, 21 Statutes at Large 188 [1754]), which permits arrest of negligent carriage drivers, suggesting the Atwater case similar to this. In each case flight, or an actual breach of the peace, might result. In these instanced, social controls enforcing later payment of fines were absent or weak.
           As mobility increases so too do the appearance of socially marginal vagabonds making their living in disapproved ways. Presumption of the day held that such activities could lead to altercation; they were breaches of the peace waiting to happen. The King’s Bench in Holyday v Oxenbridge, 79 Eng. Rep. 805 (1631), held that a private individual could arrest a “common cheater” discovered “with false dice”:

The court expressly rejected the contention that warrantless arrests were improper “unless in felony,” and said instead that “there was good cause [for] staying” the gambler and, more broadly, that “it is pro bono publico to stay such offenders. (Souter for the Court, Atwater, citation suppressed)

I went on to say:

In the edition nearest to the date of the Constitution’s framing, Sergeant William Hawkins’ widely-read Treatise of the pleas of the crown generalized from Holyday that “from the reason of this case it seems to follow, that the [warrantless] arrest of any other offenders … for offenses in like manner scandalous and prejudicial to the public, maybe be justified” (ibid, citation suppressed).

Yet Blackstone asserts warrantless arrests for nonfelonies only for breach of the peace (4 Blackstone 289).
           What I saw as contention within the common law may be expansion of the definition of social vagabond. A cart blocking public passage or spilling cargo to that end may attract altercation. The driver, a traveler by profession, is less likely to return a fine than one embedded in the locale. He is arrested to insure payment for any cleaning as well as punishment proper. Perhaps no altercation is likely; but breach of peace elides into insured payment to confront increasing mobility driving misdemeanor arrest since Edward I. To arrest a local man, one of community standing, would, however, be an affront–which is, perhaps, why Blackstone restricts nonfeloneous arrest to breaches of the peace: a man of local standing does not breach the peace because he will return the fine, else be punished both socially and legally. In this view, the obscuring tradition sensu Scalia, concurring in judgement, Nonacs v Selten, Secretary of Defense, desiccating the common law in this instance of its historical power, is an identification of social with individual breaches of the peace. The Crown refuses to accept a social breach as real in itself; all breaches are individual. The power of misdemeanor arrests consequently is unbound.
           A social breach may be facially so: a social/political protest under guise of unauthorized theater; or a gambling to pool meager resources through luck. Or a social breach may be consequential: leaving cargo on the road; driving recklessly. Breaches of the peace, of course, were social at origin: the King’s peace was meant to prevent escalation of quarrel or accident into feud. Expanded use, however, required no clear victim; no one may encounter the temporarily blocked road, no one may be actually harmed by the reckless driver. A nebulous social order–there, but hard to discern within–becomes the victim; finally, faith becomes crime, words become crime, even business can be a breach.
           Our First Amendment bars unlimited expansion of the social breach as State tool. The Fourth Amendment does so in finer grain, requiring judicial oversight via warrant absent complete bar. Arrest is punishment both State and social. The late Justice O’Connor, dissenting in Atwater, noted that “a full custodial arrest is the quintessential seizure”; “when a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable” (citation suppressed). She details Atwater’s arrest:

There is no question that [the officer’s] actions severely infringed Atwater’s liberty and privacy. [The officer] was loud and accusatory from the moment he approached Atwater’s car. Atwater’s children were terrified and hysterical. [W]hen Atwater asked [the officer] to lower his voice because he was scaring the children, he responded by jabbing his finger in Atwater’s face, saying “You’re going to jail” …

Atwater asked if she could at least take her children to a friend’s house down the street before going to the police station … [the officer] refused and said he would take the children into custody as well. Only the intervention of neighborhood children who had witnessed the scene and summoned one of Atwater’s friends saved the children from being hauled to jail with their mother. (ibid, citations suppressed)

           As supervisor I might disapprove of the officer’s actions. But there is a telltale sign that something more informed the officer’s gestalt. After calling for backup (a sure sign of eminent arrest) he asked Atwater for proof of driver’s insurance; she had none, saying it had been stolen along with her purse (ibid). The officer perceived a social vagabond. Having previously encountered Atwater with unsecured children in her car, he finds her too a social cheat on State mandated car insurance. I suggest the officer’s vehemence was motivated by his gestalt of a social vagabond, i.e., one inclined to dodge State requirements for immediate, if petty, advantage.
           When listing Parliamentary precedent for warrantless misdemeanor arrest absent real or threatened violence, I noted 27 Geo. II, ch 16, §7, 21 Statutes at Large 188 [1754] allows, “most significantly for the case before us,” arrest of “negligent carriage drivers” (Atwater, Souter for the Court). Yet there is no evidence in the record of hazardous driving. The social breach generalized from 27 Geo. II, ch 16, §7 is highly attenuated: possible harm to children upon accident, and failure to contribute to the insurance pool. Punishment to mother and children is, however, immediate and irreversible; indeed, there might be harm to the relationship of mother and child (O’Connor, dissenting, Atwater, details possible psychological cost for Atwater’s children). In an age of computerized record retrieval and surveillance, one cannot plausibly claim arrest to insure fine due, although the State so tried (O’Connor, dissenting, Atwater).
           We are left with a social breach of the peace without individualized victim, without plausible future violence, and without plausible loss of fine. I now doubt my decision. I think the common law fooled me.

III-B

           State judiciary attitudes toward misdemeanor arrest absent probable violence controlled my Atwater analysis of the common law. In Commonwealth v Carey, 66 Mass. 246, 250 (1853) the Massachusetts Court affirmed “the old established rule of the common law” that “a constable or other peace officer could not arrest one without a warrant … if such crime were not an offence amounting in law to felony,” but said the rule could be amended by the legislature (Chief Justice Shaw for the Court). This regardless of the Massachusetts’ Constitution Fourth Amendment equivalent. Similarly, while the Michigan high court affirmed the same rule in Robison v Miner, 68 Mich 549 (1888), that Court reversed itself just six years later (Burroughs v Eastman, 101 Mich 419 [1894]), this last clear judge made incremental common law. I concluded

The reports may well contain early American cases … favorable to Atwater’s position … But more to the point, we think, are the numerous early and mid-19th Century decisions expressedly sustaining (often against constitutional challenge) state and local warrantless arrests for misdemeanors not involving any breach of the peace (citations thereafter, Souter for the Court, Atwater).

What I had somewhat unknowing identified was a common law expansion of social vagabond as herein, cumulating in Atwater itself.
           My unease with Atwater today lies in the possible violation of equal protection inherent in enforcement by social standing. I suspect someone of higher status than Atwater, with the same violations, would be more likely to receive nought but citation. Of course, one might claim that those of higher social standing would not have the same bundle of violations. This may be true; but it does not, by itself, make Atwater a vagabond. The rarity of arrests such as Atwater’s almost predetermines an equal protection violation–for, unlike a true vagabond, Atwater is most unlikely to slip away. The “pointless indignity” (O’Connor, dissenting, Atwater) is not so pointless in a stratified society with true vagabonds. And vagabonds we still have. Not pointless, but now worrisome within the confines of the Fourth Amendment, given Atwater’s true social circumstance.
           Justice Scalia’s “obscuring tradition” analysis (Scalia, concurring in judgement, Nonacs v Selten) allows me to step back from my reliance on State case law. Growing 19th Century urbanization, coupled with concomitant expanding markets within agrarian areas, motivated liberal use of common law or statutory (implicit) social vagabond as legal category. Throughout the period records were scant, biased, significantly, toward those of higher status, and, even when extant, difficult to transmit. The question we should address, in light of today’s decision on a disparate topic, is whether, at ratification of the Fourth Amendment, a plausible proportion (not necessarily a majority—ante) of ratifiers would see the Atwater arrest of one embedded in social status with its network of monitoring obligation as against the Amendment.
           If so, present record archive and transmittal will void much of the class implicitly exempted from protection from warrantless arrests under the Fourth Amendment. Certainly a mother of young children with friends in the area of arrest is unlikely to abscond or hide. This would not be an equal protection holding as such, for warrantless arrest of those unlikely to be available to pay fines would remain a reasonable exercise of State enforcement. It would, rather, be a technological restriction on the scope of such arrest induced by an original intent within the Fourth Amendment. I cannot consider the range of original intent within the Fourth Amendment this day. But I can suggest that today’s decision will, if followed as analytic principle, force us to examine anew the circumstances surrounding ratification of the Bill of Rights. Building on Scalia, concurring in judgement, Nonacs, it seems unlikely that the latent content(s) of these Amendments will be delimited by utterances from political winners of that day.
           Until then I am forced to reconsider what I thought an overly dramatic conclusion by Justice O’Connor, dissenting in Atwater:

Under today’s holding, when a police officer has probable cause to believe a fine-only misdemeanor has occurred, that officer may stop the suspect, issue a citation, and let the person continue on her way. Or, if a traffic violation, the officer may stop the car, arrest the driver, search the driver, search the entire passenger compartment of the car including any purse or package inside, and impound the car and inventory all of its contents. Although the Fourth Amendment expressly requires that the latter course be a reasonable and proportional response to the circumstances of the offense, the [Atwater] majority gives officers unfettered discretion to choose that course without articulating a single reason why such action is appropriate.

I would say today that the actions envisioned by Justice O’Connor could often be construed as a gross violation of social status and so perhaps barred in original intent. My stance in 2001 rested on the unreasonable burden placed on an officer wondering if misdemeanor arrest was plausible at the moment. Plausible record retrieval is not so difficult an inference for an officer to make; true social vagabonds could still be arrested, contrary to the late Justice O’Connor’s stance.
           Justice O’Connor chided me in her conclusion:

The [Atwater] majority takes comfort in the lack of evidence of “an epidemic of unnecessary minor-offense arrests.” But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. (ibid)

Yes, Sandra Day O’Connor, yes. The class of individuals subject to adequate records retrieval, a criterion I suspect already employed by many officers, is greater than the class of individuals capable of effectively protesting their arrest. Indeed, such immeasurablity is suggestive of an obscuring tradition sensu Justice Scalia, concurring in judgement, Nonacs. I suggest the Fourth Amendment has embedded within it a kind of social discrimination which present technology can partially remove. This is all the more worth considering as arrest itself can constitute punishment of varying power and duration (e.g., distancing of friends and relatives, neighbor and work gossip, even spousal difficulty resulting from these). Precisely because arrest is consequent of felonies, it attaches stigma greater than the less conspicuous citation. State action of arrest invites, perhaps intentionally, social punishment. Such punishment without verified reasonable cause should always be suspect.

IV

           If the common law fooled me, perhaps it has fooled Justice Scalia as well. The Apprendi line is held together by the singular hands of Justice Scalia. No other member of the Apprendi progeny Courts holds that line consistent. Yet he is consistent, basing his view on common law as exactly revealed. Where the common law is silent, silent because the legislative experiment is too new to be touched by ancients rapidly growing young, he would be silent. Justice Scalia well knows the common law grows incrementally; that in this day we are the final arbitrators of new growth. Yet he would freeze this law in a heaven finely formed. A heaven pressed into final form at ratification of the Sixth Amendment, billed as the basis of Apprendi v New Jersey [2000]? No. The common law is notoriously silent on what it is. So he waits until it speaks through mid-nineteenth century judge oracle.

IV-A

           Apprendi held that sentencing enhancements beyond the statutory maximum for a crime create a new crime with a new statutory maximum; the sentencing enhancement becomes an element of the new offence, an alleged fact which must be submitted to a jury for determination (Scalia for an unanimous Court, United States v Gaudin [1995]). Statutory enhancements began in veiled form in the early Nineteenth Century, with legislatures subdividing general crimes into categories with variable sentencing ranges, depending on aggravating circumstances.
           Courts had no trouble reading these new statutes as detailing several distinct crimes (Thomas, concurring, Apprendi). Even recidivism, not an action at the criminal moment, was seen as an element which could be contended at trial (Plumby v Commonwealth, 43 Mass 413 [1841]; Tuttle v Commonwealth 68 Mass 505 [1854]; Commonwealth v Haynes, 107 Mass 194 [1871]; Thomas, concurring, Apprendi). Justice Thomas capped his review by quoting an influential common law treatise of 1872:

The idea of a jury trial, as it has always been known where the common law prevails, includes the allegation, as a part of the machinery, of the trial … [that] an accusation which lacks any particular fact which the law makes essential to the punishment is … no accusation within the requirements of the common law, and it is no accusation in reason. (I. Bishop, Criminal procedure, §87, 55, fidé Thomas, concurring, Apprendi).

Post-bellum 19th Century courts regularly and explicitly applied Bishop’s rule to define elements of crime (Thomas, ante).
           Bishop’s rule is invariant to enhanced statutory maxima or minima, although, in practice, only questions of maxima faced the courts. Justice Scalia would declare the rule’s neutrality as dictum other than in consideration of maxima enhancements; the courts, after all, might have decided differently if presented with an enhanced minimum, even though such a ruling would flout a canon of common law construction. While joining most of Justice Thomas’ Apprendi concurrence, Justice Scalia withdraws from that part suggesting identity between enhanced minima and maxima. Justice Scalia is honest. Two years later, he pivots a new plurality, now joining his Apprendi opponents, holding that statutory enhancements of minima need not be submitted to the jury (Kennedy, plurality opinion, Harris v United States [2002]). So doing, he makes trial by jury a procedural right determined by past practice.
           In this view, common law exhausts original intent. Ratifiers of the Sixth Amendment’s trial by jury meant no more than what we inherit by common law practice. Here Justice Scalia firmly stands in common law; for this law’s rules of evidence are largely constraints on jury oversight (James Bradley Thayer, 2000, A Preliminary Treatise on Evidence at the Common Law, Adamant Media Corporation). But a constitutional amendment is meant to check the common law as well as statute. So the 1776 Independence Constitution of Maryland, while silent on limited State control of militia (Scalia, concurring in judgement, Nonacs v Selten), explicitly constrains the common law through its Bill of Rights:

[T]he inhabitants of Maryland are entitled to the common law of England, and the trial by Jury, according that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used and practiced by the courts of law or equity; and also to acts of Assembly, in force on the first of June seventeen hundred and seventy-four, except such as may have since expired, or have been or may be altered by facts of Convention, or this Declaration of Rights-subject … (Declaration of Rights, Article III, emphasis supplied)

Revolutionary common law shifts latently toward new articulation through the Deceleration of Rights. Nor is this shift unique for all time. The Declaration may be amended:

That this Form of Government, and the Declaration of Rights, and no part thereof, shall be altered, changed, or abolished, unless a bill so to alter, change or abolish the same shall pass the General Assembly, and be published at least three months before a new election, and shall be confirmed by the General Assembly, after a new election of Delegates, in the first session after such new election … (1776 Constitution of Maryland, Article LIX, emphasis supplied)
 

Rights may be reformed, so the common law is not limited to judicial articulation in toto. Delaware’s 1776 Constitution is more conservative, disallowing any change in the new re-articulation of the common law. As in Maryland, prior common law is subordinate to the Independence Constitution’s Bill of Rights:

The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in for such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention &e, unless they shall be altered by a future law of the legislature;. (1776 Constitution of Delaware, Article 25, emphasis supplied)

But the declaration of rights is unamendable:

No article of the declaration of rights and fundamental rules of this State, agreed to by this convention, nor the first, second, fifth, (except that part thereof that relates to the right of sufferage,) twenty-sixth, and twenty-ninth articles of this constitution, ought ever to be violated on any presence whatever. No other part of this constitution shall be altered, changed, or diminished without the consent of five parts in seven of the assembly, and seven members of the legislative council. (1776 Constitution of Delaware, Article 30, emphasis supplied)

Justice Scalia’s Apprendi line jurisprudence goes against the American Revolution by locking common law articulation into a frozen past, employing an obscuring tradition to this end.

IV-B

           Suppose a jury asked to find a defendant guilty of violating a statute which applies punishment randomly. The statute proscribes 1 to 50 years in jail, chosen randomly in yearly increments. Juries, I suggest, would balk. No offense could justify such random allocation over such a wide range. Even absent judicial reasonableness, acquittal would be common. Although we judges resist the truth, the jury provides the first, front line, constitutional proportionality test fitting punishment to crime. It follows at once that a jury must know the range of punishment before determining guilt:

Jurors possess an important comparative advantage over judges. In principle, they are more attuned to the community’s moral sensibility because they reflect more accurately the composition and experiences of the community as a whole … better able to determine in the particular case the need for retribution … (Breyer, concurring in judgement, Ring v Arizona [2002]).

Punishment and criminal correction, I would say, although Justice Breyer here focused on the death penalty.
           Judge found facts determining enhanced maxima or minima act as probability mechanisms for the assignment of punishment from a jury’s perspective. The effect, if not intent, of such laws is to severe guilt from punishment. I have no doubt that such a policy would have been resoundingly resisted at the Founding. The jury has no idea what a judge may decide concerning enhancement; indeed, it may not know what these factors are–they may be introduced after trial–since they are “irrelevant” to the “factual” decision of guilt. I daresay such a scheme would be seen as horrendous as the transportation of accused colonists to Britain–if fully explained. Punishment was a community matter back then. It had to be; the abstract, impersonal government agency was but nascent in the new United States. I think Justice Breyer right in saying the jury the first filter of the Eighth Amendment prohibition against cruel and unusual punishment (ibid; although Breyer therein restricts himself to the death penalty, nothing in his logic so binds him).
           Justice Scalia has gone where our Independence generation would not. He allows statutory minimum enhancements. In a paragraph surely crafted for his join (the remaining Court majority in outcome being opposed to Apprendi), the plurality holds that the absence of prior historical test implies common law neutrality:

[Today’s] conclusion might be questioned … if there were extensive historical evidence showing that facts increasing the defendant’s minimum sentence (but not affecting the maximum) have, as a matter of course, been treated as evidence. The evidence on this score, however, is lacking. Statutes … which alter the minimum sentence without changing the maximum were for the most part the products of the 20th Century, when legislatures first asserted control over the sentencing judge’s discretion. Courts at the founding (whose views might be relevant, given the contemporaneous adoption of the Bill of Rights) and in the mid-19th Century (whose views might be relevant, given that sentencing ranges first arose then) were not as a general matter required to decide whether a fact giving rise to a mandatory minimum sentence within the available range was to be alleged in the indictment and proved to a jury. Indeed, though there is no clear record of how history treated these facts, it is clear that they did not fall within the principle by which history determined what facts were elements. That principle defined elements as “fact[s] … legally essential to the punishment to be inflicted” [United States v Reese, 92 US 214, 232 (1876), Cliford, J., dissenting). This formulation includes facts that … alter the maximum penalty, but it does not include facts triggering a mandatory minimum. The minimum may be imposed with or without factual finding; the finding is by definition not “essential” to the defendant’s punishment. (Kennedy, plurality opinion, Harris v United States [2002]; some quotation marks and citations suppressed)

So Justice Scalia asserts that an event which has not happened can bind the common law; that events of the past may be relevant to constitutional law, but qualitatively new events of the present are not; that while the common law could evolve before the 20th Century, it is now and forevermore frozen. The 6th Amendment, and the common law, are, truly, “dead” (Scalia, dissenting, Morrison v Olson, 487 U.S. 654, 697, 727 [1988]; Scalia, 1997, On interpreting the Constitution, Wirston Lecture, Manhattan Institute for Public Policy Research;Scalia, 1998, A matter of interpretation: federal courts and the law, Princeton University Press, pp. 40-1).
           Justice Cliford’s view in 1876 cannot be dispositive for, by Justice Scalia’s own admission, the common law was still then evolving; perhaps Justice Cliford would have said something different if confronted with a statutory minimum enhancement. Justice Scalia’s sole positive argument is that while an enhanced maximum necessarily reveals a punishment otherwise impossible, punishments beyond an enhanced minimum might be applied absent the enhancement; that is, the enhanced minimum punishment is not forbidden absent the enhancement, so is not an “essential” element of the crime.
           Yet that part of Justice Thomas’ Apprendi concurrence joined by Justice Scalia suggests something else: in 1862 the Wisconsin Supreme Court considered a statute with three distinct ranges of punishment, two of which overlapped. Arson of a home leading to the death of someone lawfully present required life imprisonment; arson leading to the death of an unlawful occupant yielded 7 to 14 years; arson in a vacant home 3 to 10 years. The Wisconsin Supreme Court treated these as three distinct statutory offenses by diversely severe “aggravating circumstances” (Lacy v State, 15 Wis *13 (1862); and Thomas, concurring, Apprendi with footnote 4). The last two offenses overlap in punishment, and it is crucial to note that while the enhancement forces a judge to employ a higher minimum (7 rather than 3 years), he need not employ the enhanced maximum of 14 vs 10 years. The Wisconsin Supreme Court’s severance of the offenses creates (judge-made) Scalia-admissible common law support not just for Apprendi but the Harris dissent for jury oversight of minimum enhancements as well. Relative perdition raises both bounds simultaneously. What is clearly and absolutely lost in this example is the 3 to 7 year punishment range upon enhancement; the enhanced 10 to 14 year maximum range is mere potential when “present.” A lenient jury might balk at that lost lower end range (e.g., perhaps the occupant, having lost lawful residence therein, had proudly announced he would be out of town, but was not). Contrary to Justice Scalia, since some punishments are lost through the minimal enhancement, from a jury’s perspective, such enhancement is an “essential element” of the offense. Justice Thomas, dissenting in Harris, ante, puts the matter succinctly:

[An] incremental increase between 5 and seven years in prison may not seem so great in the abstract (of course it might seem quite different to a defendant actually being incarcerated). However, the constitutional analysis adopted by the plurality would hold equally if the mandatory minimum … was five years [without enhancement], but … life imprisonment [with enhancement]. The result must be the same because surely our fundamental constitutional principles cannot alter depending on degrees of sentencing severity.

A jury would surely balk, as would the conscience of this Court.

IV-C

           Precedent does not support Justice Scalia’s stance in Harris. If Harris had gone the way of Apprendi we would have consistent procedure suggesting an underlying principle–that jury determination of guilt is contingent on statutory punishment. But Harris and Apprendi differ on the importance of juries, and it is difficult to find a principled why beyond common law procedure (Kennedy, plurality opinion, Harris [2002]; Breyer, concurring in part and concurring in judgement, ibid). This invites caprice–procedures may be substituted when no fundamental right is at stake–which is what we now have.
           Following Apprendi, Ring v Arizona (2002) held that aggregating factors statutorily allowing the death penalty must be found by jury, not judge. This would seem a simple extension of Apprendi, but not quite. Our jurisprudence requires death be sentenced only upon finding tailored to circumstance (Furman v Georgia, 408 US 238 [1972] and its contentious descendants)–the “special death” jurisprudence Justice Scalia so abhors (concurring in part and concurring in judgement, Walton v Arizona, 497 US 639, 656 [1990]). So Ring finds the Justice with the majority for special reasons:

The question whether Walton survives our decision in Apprendi confronts we with a difficult choice. What compelled Arizona (and many other States) to specify “aggravating factors” that must be found before the death penalty can be imposed was the line of this Court’s cases beginning with Furman. In my view, that line of decisions had no proper foundation in the Constitution. I am therefore reluctant to magnify the burdens that our Furman jurisprudence imposes on the States. Better for the Court to have invented an evidentiary requirement that a judge can find by a preponderance of the evidence, than to invent one that a unanimous jury must find beyond a reasonable doubt.

On the other hand … I believe the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment … must be found by the jury beyond a reasonable doubt.

Should I continue to apply the last-stated principle when I know that the only reason the fact is essential is that this Court has mistakenly said the Constitution requires State law to impose such “aggravating factors?” (emphasis original; citations and quotation suppressed)

A blanket death law, without aggravating factors, is fine with the Justice. A wink and nod–we all know the States legislate aggravating factors to employ death for at least some murder, not because “of a changed social belief that murder simpliciter does not deserve death” (Scalia, Ring, ibid). Aggravating factors are forced laws, the Justice says, coerced by a capricious Court. Since the Court employed an unconstitutional principle post Furman, “I would still have approved the Arizona [judge death sentencing] scheme–I would have favored the States’ freedom to develop their own capital sentencing procedures … over the logic of the Apprendi principle” (ibid) at the time of Walton (1990). The Sixth Amendment does not control.
           Rather, the Justice joins the Ring majority for an extra-constitutional reason:

[Having observed] over the past 12 years the accelerating propensity of both State and Federal legislatures to adopt “sentencing factors” determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and witnessing [that] a near majority of my colleagues find that this novel practice is perfectly ok, [I have come] to believe that our people’s traditional belief in the right of trial by jury is in perilous decline. That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.

Accordingly, whether or not the States have been erroneously coerced into the adoption of “aggravating factors,” wherever those factors exist they must be subject to the usual requirements of the common law, and to the requirement enshrined in our Constitution, in criminal cases: they must be found by the jury beyond a reasonable doubt. (Scalia, Ring, emphasis original)

Apprendi does not control, but he will force it on the States’ death machinery anyway. In so saying, Justice Scalia jeopardizes trial by jury. His Ring concurrence makes Sixth Amendment jury trial a protective procedural, not substantive, right; in principle there is no need to void judge finding enabling death if the States were wrongly coerced into this action while struggling to uphold public safety. The States acted wrongly in process but perhaps rightly in outcome because they were left no choice consistent with public safety. The Justice applies Apprendi to this tortured death jurisprudence because “our people’s traditional belief in the right of trial by jury is in perilous decline” (ante). We do not reverse a speech case because the people’s traditional belief in the right of free speech is in perilous decline. We reverse because the First Amendment demands it. Such acts of reversal are the quintessence of a substantive right:

It is a settled and invariable principle in the laws that every right when with-held must have a remedy, and every injury it’s proper redress. (1 William Blackstone, Commentaries on the Laws of England 23)

By imposing an extra-constitutional rationale for the application of Apprendi to Court created post-Furman error, Justice Scalia implicitly asserts the Sixth Amendment a procedural right; probable identical outcome may substitute in a pinch.
           And so it is in 2004. Most of the Harris majority holds in Schriro v Summerlin [2004] that Ring is not retroactive; those whose sentences were finalized before Ring are unavailed by that decision. Justice Scalia writes for the Court:

New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms … as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish.

A footnote adds

We have sometimes referred to rules of this latter type as falling under an exception to Teague v Lane’s [489 US 288 (1989)] bar on retroactive application of procedural rules, see, e.g., Horn v Banks, 536 US 266, 271 and footnote 5 (2002) (per curium); they are more accurately characterized as substantive rules not subject to the bar. (ibid, footnote 4)

Contrast new rules of procedure which

do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise … That a new procedural rule is “fundamental” in some abstract sense is not enough; the rule must be one “without which the likelihood of an accurate conviction is seriously diminished. (Teague at 313, emphasis added) (Scalia for the Court, Schriro [2004])

Such, generally, are the rules of evidence. Ring, Justice Scalia says, is like these. Ring “did not alter the range of conduct Arizona subjected to the death penalty” (ibid). Nor did pre-Ring judicial fact finding during sentencing “so seriously diminish accuracy that there is an impermissibly large risk of punishing conduct the law does not reach” (ibid, quotation marks suppressed).
           Possibly, probably true; but not on point. Rules of evidence are the senses of the jury; the jury is something else entirely. Finding an aggravating factor is proclaiming a kind of guilt. The jury stands between conduct and “the State’s power to punish” (Scalia, ibid). The mechanism of decision is instantly lost to us; all we have is a yes or no. Not so the judge, who will leave a testament of his reason. A jury is not a rational fact finder; it is an unknown we try to control through the rules of evidence.
           Juries, as applied, are “constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish” (Scalia, ante). A judge cannot, as a jury can, ignore evidence or inferences therefrom without peril; juries can. The two mechanisms are not substitutable. Conviction is not necessarily a matter of “accuracy.” My brethren Justice knows this. He would make of the jury a good judge, a judge which is “an increasingly bureaucratic part of the State” (Scalia, concurring, Apprendi, ante). He manifests an obscuring tradition (sensu Scalia, concurring in judgement, Nonacs v Selten, Secretary of Defense) blocking historical content of the Sixth Amendment. That tradition is, simply, acquittal as rational outcome.

IV-D

           There is a battle over original intent embedded in the Apprendi line. My brethren Scalia and I are opposed in this. We both want the jury privileged, but part on how privileged. Justice Scalia, who has prevailed in every Apprendi case (save only partially in the esoteric United States v Booker [2005]), would provide only the minimal privilege necessary to preserve any originalist understanding of the Sixth Amendment; so the Justice’s vote in Harris, ante, restricts rather than enhances jury oversight of fact. With Justice Breyer (concurring in part and concurring in judgement, Harris), I see no reasoned difference between Apprendi and Harris; their divergence simply bows to Sixth Amendment while muzzling the jury. It is the curious silence of the jury which Scalia and I contest. I hear much in their petulant yes or no; Justice Scalia, less.
           Justice Scalia has taken ground early. The war is over:

Our commitment to Apprendi … reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended. (Scalia for the Court, Blakely v Washington [2004]), citation and quotations suppressed).

Then Schriro (2004), ante, was wrongly decided. If we will not sanction an excluded election, how can we sanction a failure to submit facts essential to sentences to “the people’s ultimate … control of the judiciary,” ante, the jury? One can not argue for later remedial action, as a new election when a term expires, for Schriro deals with death cases; the “term” expires upon execution. It is high judicial arrogance to remove the people as jury by fiat:

Those who reject Apprendi [might have] legislatures establish legally essential sentencing factors within limits–limits crossed when, perhaps, the sentencing factor is a tail which wags the dog of the substantive offense. What this means in operation is that the law must not go too far–it must not exceed the judicial estimation of the proper role of judge. … Whether the Sixth Amendment incorporates this manipulable standard rather than Apprendi’s bright-line rule depends on the plausibility of the claim that the Framers would have left definition of the scope of jury power up to judges’ intuitive sense of how far is too far. We think that claim not plausible at all, because the very reason the Framers put on jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury. (Scalia, Blakely; italics original)

Yet Justice Scalia, in his Harris vote and Schriro opinion of the Court, essentially makes such a claim for the judicial determination of jury power, an attenuated determination, granted, but there nonetheless.
           Why evoke the people-as-jury, exercising their suffrage control of the judiciary, if a good jury behaves as would a good judge? To close the originalist debate, take the field early:

Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil law ideal of administrative perfection, but the common-law ideal of limited State power accomplished by strict division of authority between judge and jury. (Scalia, ibid)

Tradition is affirmed for tradition’s sake; there is more to the Constitution than the Sixth Amendment. Let’s move on. What is left unsaid requires a poke. So comes Justice Breyer with a thorn to make the lion roar.
           Justice Breyer concurs in Ring’s judgement because he thinks juries sample a community’s “moral sensibility”:

more than two-thirds of American counties have never imposed the death penalty since Gregg v Georgia, 428 US 153 (1976) [which reopened death as punishment], and only 3% of the Nation’s counties account for 50% of the Nation’s death sentences. … This diversity argues strongly for procedures that will help assure that, in a particular case, the community indeed believes application of the death penalty is appropriate, not “cruel,” “unusual,” or otherwise unwarranted. (Breyer, concurring in judgement, Ring [2002], numbers suppressed and punctuation altered.)

Justice Scalia must reply:

[Justice Breyer] contends that juries are more accurate because they better reflect community standards in deciding whether, for example, a murder was heinous, cruel, or depraved. But the [Arizona] statute here does not condition death eligibility on whether the offense is heinous, cruel, or depraved as determined by community standards. It is easy to find enhanced accuracy in jury determination when one redefines the statute’s substantive scope in such manner as to ensure that result. (Scalia for the Court, Schriro)

But the jury’s power is not statutory, by Justice Scalia’s own admission. The sure hand of the Justice has shaped the Apprendi line, fully delimiting the power of juries. They will do what they are told to do by statute. Has the Justice forgotten that the Crown threatened jury trial abroad precisely because pre-Independence colonial juries refused to convict even in the face of clear evidence of statutory guilt? Is that not originalist and aspect of common law? Let us close the gates of originalism swiftly.

IV-E

           Justice Scalia employs an obscuring tradition nearly as old as the first common law writs, a tradition itself part of the common law: rules of evidence designed to create consistent jury verdicts across locales. Fairness, as a measure of equal protection, is inconsistent with “community standards” across appreciable distance (e.g., Breyer, concurring in judgement, Ring, ante). Justice as fairness is inconsistent with the jury as local electorate curtailing the judiciary (sensu Scalia, Blakely, ante). There are, in coarse eye, two common law traditions here, each striving to obscure the other. In my view, neither should eclipse. Justice Scalia has chosen fairness as consistent application of statute, leaving only the judiciary to oversee constitutionality as applied. I am not as sanguine of myself or brethren, especially if we come to an originalism which curtails constitutionality. I submit Harris and Schriro (ante) in support of my doubts.
           Instanced justice in the fine is not capable of fairness. It is, rather, often rebellion against consistency. These two common law traditions, jury acquittal against statute and evidentiary fairness, play against each other, each illuminating justice, each spurring the other to fresh concerns. As statutory control grows, ‘false” jury acquittal–on guilt or denied sentencing factors–is increasingly seen as abhorrent. So jurors take oaths to faithfully apply evidence to statute; false acquittal, or “nullification,” is declared heresy in all but name. Yet we know false acquittal was an important form of rebellion prior to the Revolution. Originalism must either embrace this common law tension or lie to itself. It has been my experience a doctrine which lies cannot stop. Originalism, honestly applied, will be a hard road. To date, I have been unwilling to jettison contemporary jurisprudence in the faith we will or can follow that road.
           We need not return to England to see this contest over jury control in the common law:

[P]rior to the 19th Century, the prescribed penalty for felonies was often death, which the judge had limited, and sometimes no, power to vary. (Breyer, dissenting, Blakely; see also O’Connor, dissenting, Blakely)

In such cases one should not presume death commonplace; juries acquitted against the facts, unwilling to associate guilt with death. What punishment there was would then occur outside the criminal justice system. Penitentiaries and rehabilitation were motivated in part by jury reluctance to convict otherwise. Gradating punishment through various prison terms substituted for extra judicial punishment. One goal of reform was to remove the unfairness inherent in variable conviction and community punishment. Sentencing discretion shifted control of the accused from jury (and, upon acquittal, perhaps the community links associated with jurors and court audience) to judge; jurors were admonished to consider guilt a factual matter, leaving punishment to the judge, a precursor to sentencing enhancements.
           Punishment is determinative of guilt. A jury might refuse conviction given the statutory range of incarceration, or doubt as to the judge’s probable sentence. Legislatures in the 20th Century replied by allowing conviction on lesser included offences and statutory enhancement by a judge sitting without a jury.
           Apprendi seems to return power to the jury, but I am beginning to think this somewhat illusory. Apprendi demands that a fact determinative of sentencing enhancement be submitted to the jury–but only after a general verdict of guilt. As with prior judge fact finding, the acquittal power of juries, which, good or bad, is linked to punishment in the common law, remains attenuated. Essentially, an Apprendi sentencing enhancement is a special verdict imposed on the jury.
           Guilt is decided before the range of punishment is known. A juror bridling may be accused by his compatriots of obstinately failing to play by the rules of law. In a world of workplace imposed rules, the net effect of Apprendi will be to reduce the common law acquittal power of juries. That a juror thinks she can control sentencing enhancements makes her less resistant to deliberative pressure to convict. Yet, once guilt is decided, that very decision may be used to push for an enhancement. Such parsing of jury deliberation may appear to be more rational than the common law general verdict. It is, nonetheless, legislative and judicial intervention in jury deliberation.
           Such intervention reaches an extreme in potential death cases, where our prior jurisprudence requires murder in the first degree decided prior to death enhancements (ante). In a bizarre extension of Apprendi, this Court has held that double jeopardy does not attach to a jury hung on death enhancements (Scalia for the Court, Sattazahn v Pennsylvania [2003]). Double jeopardy does not attach to a jury hung on a general verdict, Richardson v United States, 468 US 317 (1984). To extend Richardson to sentencing enhancements abolishes the general verdict entirely.
           A jury hung on enhancement will be discharged, another empaneled. The latter will not, however, be exposed to the nuanced testimony leading to conviction. Rather, the new jury will be told the defendant is guilty in law. Only evidence “directly relevant” to the enhancement will be allowed, irregardless if some holdouts on the original panel were motivated by the complete testimony. Common law jury determination of guilt with punishment has been torn asunder.
           With Sattazahn Justice Scalia has possibly come as close to the jury as professional judge (e.g., Scalia for the Court, Schriro, ante) as our review system allows. He has turned a death jurisprudence he abhors (e.g., Scalia, concurring in part and concurring in judgement, Walton, ante) into a jury verdict attenuating the power of acquittal. I cannot approve of this result; but I would be a fool not to admire it.

IV-F

           Apprendi and Ring seemingly return control of justice to the jury by making sentencing enhancements special verdicts. I believe, however, that post general verdict questions to the jury most likely channel jury deliberation towards conviction. The 6th Amendment is silent on general vs special verdicts, although our decisions previous have acknowledged a historical case for general verdicts in criminal law:

Juries at the time of the framing could not be forced to produce mere “factual findings,” but were entitled to deliver a general verdict pronouncing the defendant’s guilt or innocence. Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale L. J. 575, 591 (1922). See also G. Clementson, Special Verdicts and Special Findings by Juries 49 (1905); Alschuler & Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 912-913 (1994). Justice Chase’s defense to one of the charges in his 1805 impeachment trial was that “he well knows that it is the right of juries in criminal cases, to give a general verdict of acquittal, which cannot be set aside on account of its being contrary to law, and that hence results the power of juries, to decide on the law as well as on the facts, in all criminal cases. This power he holds to be a sacred part of our legal privileges . . . .” 1 S. Smith & T. Lloyd, Trial of Samuel Chase 34 (1805). (Scalia for an unanimous Court, United States v Gaudin [1995])

Even Revolutionary war could not loosen the grip of general verdicts everywhere. The Georgia Constitution of 1777, most radical and detailed of all the Independence War Constitutions, forbade the special verdict entirely:

The jury shall be judges of law, as well as of fact, and shall not be allowed to bring in a special verdict; but if all or any of the jury have any doubts concerning points of law, they shall apply to the bench, who shall each of them in rotation give their opinion. (Article LXI, Georgia Constitution of 1777)

Perhaps such was the price of inducing rebellion in the land. But the special verdict in criminal cases is still with us (United States v Zacarias Moussaoui, Jury special verdict, US District Court, Eastern District of Virginia, 2006). In Gaudin we held that every defining element of a crime must be found by a jury. While a general verdict is the simplest way to do so, our Apprendi line has rediscovered the special verdict through a backwards temporal unraveling of jury deliberation. Nothing therein precludes a hierarchy of crime where the general verdict is limited to some minimal core offense. Justice Chase, ante, of old might well balk–perhaps in personal desperation, but desperation is the engine of defense. It will be shameful if originalism leads us to abjure the spark which set the flame.

V

           I have never written a concurrence like this. It is an indulgence all but worthless in law. I write because the Court this day sails in directions uncharted. If the potential is great, so too the peril. We cannot afford to piecemeal our thought to the case happening to approach our door, ashiver in its distress and hope. We must think on what we have done; on what we might have to do. So I begin with myself in the light of Justice Scalia’s new thought. And hope my penitence will lead to thought beyond my own.

David Souter, Associate Justice