• Should Jurors Be Instructed About Jury Nullification? [POLICYbrief]
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    Should Jurors Be Instructed About Jury Nullification? [POLICYbrief]

    Jury nullification is the idea that an individual juror can make a decision to acquit a defendant when the evidence proves beyond a reasonable doubt that the defendant committed the crime, but the juror thinks in the juror’s own judgment that a criminal prosecution is not proper in this case. I think a much more accurate term is conscientious acquittal. They are acquitting somebody as a matter of conscience. There not nullifying anything. The real debate is over whether to encourage jury nullification. Whether to talk to the jurors about it, uh whether to have a more official role for it. Jury nullification sounds at first like a great idea,…

  • Federalism as Another Separation of Powers [No. 86]
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    Federalism as Another Separation of Powers [No. 86]

    What is federalism? The answer is that federalism, in my view, is another form of the separation of powers. But whereas the separation of powers separates legislative, executive and judicial power at the national level, what federalism does is it separates power between the national government in the United States the state governments in the United States. And it is the case that it was the state governments, or at least popular conventions in nine of the 13 states that created the federal Constitution and therefore the federal government, but the federal government under the US Constitution is a government of limited and enumerated legislative powers. And there are significant…

  • HB 261: Limiting Eminent Domain
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    HB 261: Limiting Eminent Domain

    (light upbeat xylophone music) – Hi, I’m Nichelle Aiden at the Capitol with Representative Lyman to talk about House Bill 261 about eminent domain. Can you tell us about your bill? – Well, a few years ago, the Supreme Court made a decision that basically gave almost unlimited powers to municipalities and states to exercise eminent domain. So, a lot of states have responded with putting a little bit of rails on that authority, the idea being that eminent domain is a really powerful tool and so it should be used very responsibly, and this just gives some guidelines for the state on how to use eminent domain to take…

  • SB 102: Addressing Utah’s Unique Human Rights Crisis
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    SB 102: Addressing Utah’s Unique Human Rights Crisis

    (light upbeat xylophone music) – Hi, I’m Nichelle at the Capitol with Senator Henderson to talk about Senate Bill 102 and polygamy. Can you first tell us about your bill? – Sure; what my bill does is it takes polygamy among otherwise law-abiding, consenting adults down from a felony to an infraction, but it also keeps enhanced penalties in place for those who are committing other serious crimes along with bigamy. – Great. Why is this so important to you? – Well, we’ve had polygamy as a felony in Utah since 1935, and the state engaged in 20 years of vigorous enforcement of the law and it didn’t stop polygamy.…

  • Modern Cases that Violate Original Meaning [No. 86]
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    Modern Cases that Violate Original Meaning [No. 86]

    I think that there are some decisions of the Supreme Court that simply cannot be right in light of the text of the Constitution understood in its original public meaning. One notorious example of this is the Blaisdell case from the New Deal era in which the court upheld state laws which prevented the collection of debts. Well, this is exactly what the contracts clause of the Constitution was written to prevent. If the courts are not going to enforce the collection of the debts, then people are not going to be able to borrow. And so I think it was actually making the, made the Depression worse rather than…

  • Should We Change the Size of Congress? [Article I Initiative]
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    Should We Change the Size of Congress? [Article I Initiative]

    The Constitution requires that the United States conduct a census every 10 years. That is, we add up the number of inhabitants in each state and then we use that as a basis for reapportionment. The House of Representatives is based on the total number of inhabitants in each state. And we divide them up, larger states get more representatives and smaller states get fewer representatives. So every 10 years we update the total from the census and then we reapportion the house to make sure that each state gets the number of representatives that it ought to have based upon its population. Today a typical congressional district is about…

  • Can the Constitution Adapt to Future Circumstances? [No. 86]
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    Can the Constitution Adapt to Future Circumstances? [No. 86]

    Even though the Constitution should be interpreted as other laws are interpreted with their original public meaning, this does not mean that the Constitution can’t adapt to future circumstances. In fact, the Framers did at least three things in the Constitution that allowed it to be flexible and adaptable into the future. First the Framers wrote a lot of the constitutional provisions in broad terms. They said Congress shall make no law abridging the freedom of speech. They didn’t say Congress shall make no law abridging the freedom to write with quill and parchment thus the First Amendment applies to the Internet. The Fourth Amendment protects against unreasonable searches and…

  • Jeff Deist on PC and the State-Linguistic Complex
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    Jeff Deist on PC and the State-Linguistic Complex

    This is Mises weekends with your host, Jeff Deist. Ladies and gentlemen, earlier today I had an opportunity to speak to a group of lawyers at the Federalist Society luncheon in Montgomery, Alabama. Given everything that’s been going on this week. Alex Jones being kicked off of several social media sites, our friend Scott Horton and Daniel McAdams being deplatformed by Twitter. I decided to talk about free speech in the age of big tech and inquire whether these are truly private companies or whether they are, in fact, highly state connected almost government-sponsored enterprises that are involved in a very PC, very sinister and very illiberal suppression of thought…

  • Can the Supreme Court Change the Constitution Using Judicial Review? [No. 86]
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    Can the Supreme Court Change the Constitution Using Judicial Review? [No. 86]

    One of the things that is very striking about Article 3 of the US Constitution and which differentiates the US Constitution from most modern constitutions like the constitution of Germany or Italy or Brazil or South Korea is that Article 3 of the Constitution does not contain a judicial review clause. There is no specific clause empowering the courts to exercise the power of judicial review. In fact, no such clause appears anywhere in the Constitution. The way in which the Supreme Court correctly, in my opinion, concluded that there was a power of judicial review in Marbury versus Madison was by building on the argument that Alexander Hamilton made…

  • John Marshall Defines Non-Delegation Doctrine [No. 86]
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    John Marshall Defines Non-Delegation Doctrine [No. 86]

    The Supreme Court first addressed the Non-Delegation Doctrine back in 1825, in an opinion by Chief Justice John Marshall. It was addressed in passing, because they didn’t need to deal with the issue in the case, but Marshall made some observations about that doctrine that still have a lot of relevance today. He noted the big problem is figuring out where the lines are drawn among the Legislative, Executive, and Judicial powers. In that particular case, Congress had given the Federal Courts power to promulgate their own rules of procedure, for how to execute judgements and things like that. The question was whether that was something that needed to be…