Ignorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely by being unaware of its content.  In other words, ignorance of law excuses no one.  The presumption is that the public knows all the laws, both state and federal, and a defense of ignorance is not allowed.  See, Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604 (1991) Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240 (1957)

For instance, say you have terrible allergies which cause nasty itchy eyes and throat to where it feels you cannot take a breath. The legislature on April 1, 2021 bans anyone with a meth-related conviction from possessing pseudoephedrine, a common decongestant medicine (and meth ingredient). One month after the effective date, you were charged with violating the law after purchasing allergy medicine containing the substance. You file a motion to dismiss on grounds that the statute was unconstitutional. Trial court denies your motion and you was convicted at trial.  That decision was upheld by the North Carolina Supreme Court.  See, State v. Miller, 800 S.E.2d 400 (N.C. 2017).  The Miller court specifically rejected Miller’s argument that the legislature had criminalized the otherwise innocent act of possessing a pseudoephedrine product for a subset of felons to which defendant belonged despite the fact that the purchase of such substances by individuals like defendant had been entirely lawful little more than a month earlier and that the State's failure to provide adequate notice of this change in law constituted a federal due process violation.  Citing to prior decisions, the North Carolina Supreme Court held that “The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes.”

Sounds pretty clear, right?  A rule that is deeply rooted in the American legal system should apply to everybody , right?  Nope.  Courts find cops are above deeply rooted rules in the American legal system.  In Heien v. North Carolina, 574 U.S. 54 (2014), (on appeal from a decision in North Carolina)and State v. Houghton, 2015 WI 79 (police officer believed any object dangling from a rear-view mirror automatically violated the state’s law on obstructing a driver’s view), courts have found that a police officer's reasonable mistake of law can provide the individualized suspicion required by the Fourth Amendment to the United States Constitution to justify a traffic stop. 

Translation? 

When it comes time for cops to enforce the law, courts have determined that if the cops ignorance of the law is reasonable, the cops actions will be upheld on judicial review.  See, Police mistakes of law, 61 Emory L.J. 69 (2011), (even when you are acting legally, cops can stop you) https://scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1276&context=elj  It takes little reflection to see “the fundamental unfairness” of holding citizens to strict compliance with the law “while allowing those entrusted to enforce the law” to interpret and apply the law more flexibly. United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (internal quotation marks omitted). 

Courts have now approved a citizen’s oppression not by lawlessness but by the law.

Politics are at the center of the story of Jesus. His historical life ended with a political execution. Crucifixion was used by Rome for those who systematically rejected imperial authority.  This rejection of authority chronically usually came from defiant slaves and subversives who were increasingly challenging the rule of the Roman Empire.  Rome typically chose indigenous collaborators from the wealthy class who saw it in their personal interest to support power when it advantaged them.  In first-century Roman Palestine the wealthy oligarchy (meaning ‘the ruling few’) was represented by the Sadducees, sometimes referred to in the gospels as “the leaders of the people,” or “the chief priests and the elders.”

Today the Sadducees are found in various conservative groups like the Manhattan Institute.  The Manhattan Institute for Policy Research is a conservative 501 non-profit American think tank focused on domestic policy and urban affairs.  In its March 18, 2021 blog, Josh Hammer, a Newsweek opinion editor and a research fellow at the Edmund Burke Foundation, writes “Homicides in the United States increased in 2020 by over 30 percent, on a year-over-year basis. Gun assaults and aggravated assaults also spiked, leading the National Commission on COVID-19 and Criminal Justice to deem the crime surge of 2020 a ‘large and troubling increase’ with ‘no modern precedent. … Citizens of all political stripes, especially conservatives, must recover and publicly advocate anew the time-tested and common-sense notion that a free and just society is impossible without a robust commitment to a strictly enforced rule of law.’”

This is the Nixonian scare tactic calling for “law and order” to whip up public fear about rising crime rates to justify attacks on civil liberties and our constitutional rights.  Both the concept and the exact phrase "Law and order" became a powerful political theme in the United States during the late 1960s. The leading proponents were two Republicans, the governor of California Ronald Reagan and presidential candidate Richard Nixon. Nixon targeted, among others, working class White ethnics in northern cities to turn against the Democratic Party, blaming it for being soft on crime and rioters.  In reality, the Nixonian cry for law and order was a racial attack on African Americans.  “Nixon Adviser Admits War on Drugs Was Designed to Criminalize Black People,” Equal Justice Initiative (2016), https://eji.org/news/nixon-war-on-drugs-designed-to-criminalize-black-people/

Like Nixon, Hammer cites to a lop-sided view of the criminal system.  I previously wrote how the “lock them up and throw away the key” mentality does not work.  “CRIME IS NOT REDUCED BY PUTTING A MASSIVE AMOUNT OF PEOPLE IN PRISON,” http://www.paulksicinskilaw.com/blog/-crime-is-not-reduced-by-putting-a-massive-amount-of-people-in-prison  In his article, Hammer gives no evidence for idea that there is a causal link between crime rates and incarceration rate.  That’s because the evidence is to the contrary.  “ ‘Given the small crime prevention effects of long prison sentences and the possibly high financial, social, and human costs of incarceration, federal and state policy makers should revise current criminal justice policies to significantly reduce the rate of incarceration in the United States. In particular, they should reexamine policies regarding mandatory prison sentences and long sentences. Policy makers should also take steps to improve the experience of incarcerated men and women and reduce unnecessary harm to their families and their communities.’”  Id.

Finally, as reported by the Pew Center “[b]oth the FBI and [Bureau of Justice Statistics] data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation.”  Pew Research Center, “What the data says (and doesn’t say) about crime in the United States” (2020). https://www.pewresearch.org/fact-tank/2020/11/20/facts-about-crime-in-the-u-s/

Before conservatives “publicly advocate anew the time-tested and common-sense notion” of prison as a solution to the problem of crime, they should tell the public everything, not just what scares the public,

When sentencing someone who has done wrong, judges are very fond of saying words like, “I have to sentence you to this long sentence to hold you accountable for what you have done.”

Apparently judges think it is important to hold someone accountable for their misdeeds.   Similarly, parents teach their children that that the child is being punished as a way for them to learn to not do something again.  In other words, a parent holds even a child accountable for when they do something wrong.

So why do we hesitate to treat the police differently than we treat a child?

We know that taxpayers pay hundreds of millions of dollars each year in the form of settlements for police brutality and other misconduct. The nation’s three biggest cities account for over 80 percent of those costs. But the data on payouts to victims and their families is so spotty and inconsistent—some cities don’t even agree on what constitutes “misconduct”—we can’t tell whether the payments change the bad behavior that prompts excessive force or wrongful death cases in the first place.  “Police misconduct has cost Milwaukee taxpayers at least $17.5 million in legal settlements since 2015, forcing the city to borrow money to make the payouts amid an ever-tightening budget.  That amount jumps to at least $21.4 million when interest paid on the borrowing and fees paid to outside attorneys are factored in.”  Kevin Crowe and Ashley Luthern, "The cost of police misconduct in Milwaukee: $21 million – and growing"  Milwaukee Journal Sentinel (2017), https://www.jsonline.com/story/news/investigations/2017/10/25/cost-police-misconduct-milwaukee-21-million-and-growing/792428001/.  By 2020, that amount erupted to $40 million.  Police Misconduct Cases Costly For Milwaukee (Seehafer News 2020), https://www.seehafernews.com/2020/11/11/police-misconduct-cases-costly-for-milwaukee/. 

Incidentally, when many cities, including Milwaukee, exceed their budgets for settlements and judgments related to police misconduct, they utilize taxpayer-funded bonds with high interest rates to cover the costs of lawsuits. This creates an avenue for banks and investors to profit from police brutality.  Edgar Mendez, Banks earn millions from bonds issued to settle MPD brutality cases, new report finds (Milwaukee Neighborhood News Service June 19, 2018), https://milwaukeenns.org/2018/06/19/banks-earn-millions-from-bonds-issued-to-settle-mpd-brutality-cases-new-report-finds/. 

“As the country has witnessed episode after episode of police abuse, holding police officers accountable for misconduct has become an urgent issue. But despite increased attention, it’s still rare for police officers to face criminal prosecution. That leaves civil lawsuits as victims’ primary route for seeking legal redress and financial compensation when a police encounter goes wrong. The resulting settlements can be expensive for the city, which is generally on the hook for the payouts (meaning ultimately, most are subsidized by taxpayers), and those costs can encourage cities to make broader changes.”  AMELIA THOMSON-DEVAUX, LAURA BRONNER and DAMINI SHARMA, "Police Misconduct Costs Cities Millions Every Year. But That’s Where The Accountability Ends.(The Marshall Project 2021), https://www.themarshallproject.org/2021/02/22/police-misconduct-costs-cities-millions-every-year-but-that-s-where-the-accountability-ends.

We should not accept the false choice of either having a police force or not having a police force.  The reality of today’s society is that a police force is needed.  But there are several commonsense reforms that state and local leaders should pursue to reduce police brutality while protecting the thousands of honest law enforcement officials who risk their lives every day for their fellow citizens.  “STATE SOLUTIONS THAT ADDRESS POLICE REFORM AND ACCOUNTABILITY,” State Policy Network (2020), https://spn.org/blog/state-solutions-that-address-police-reform-and-accountability/?gclid=Cj0KCQiA-OeBBhDiARIsADyBcE554-bsO0PfQ4RzSLp2Kjiyqst1_iFR2e9zl3FQDrh3k7hQY31y2R0aAr7uEALw_wcB.

It is time to hold the police accountable for their mistakes, and not just from the taxpayer’s pocketbook.   We need to quit accepting the fear-mongering that holding police accountable will increase crime.   Police officers are the public officials society has authorized, even obliged, to use force. Ensuring that police officers use that warrant equitably, legally, and economically on behalf of citizens is as basic as discipling your child to make sure the child learns a lesson.

We live our lives by a couple of fundamental concepts.  One fundamental concept is make the punishment fit the crime.  In Wisconsin, we have not endorsed government sanctioned killing by barring the death penalty.  Simply put, in Wisconsin a majority believe you cannot turn a bad act, like killing someone, into a good act by killing again.  After all, if Justice Brandies was right in Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). that “our government is the potent, the omnipresent, teacher,” when the government teaches that a life does not have intrinsic value it approves of killing.   Your government gets to decide some lives just don’t matter so a person needs to be killed.  Of course, history has taught us, whether it be Stalin or Hitler, the actual practice of a government’s decision to kill certain people ends up being used against the politically powerless.

With that in mind, we need to realize that as of February 2021, COVID-19 infects half of Wisconsin inmates, five times the overall state rate.  Vanessa Swales, ‘He shouldn’t have had to die’: COVID-19 infects half of Wisconsin inmates, five times the overall state rate, Wisconsin Watch (February 13, 2021), https://wisconsinwatch.org/2021/02/covid-19-infects-wisconsin-inmates/?mc_cid=5ec3227325&mc_eid=4a5b451b1f  Ms. Swales mentions Calvin Johnson,  a 52-year-old who lived with high blood pressure and asthma and feared a COVID-19 outbreak at overcrowded Prairie du Chien Correctional Facility would kill him. He had been convicted of armed robbery in 2016, an offense which Wisconsin says is not supposed to have a death penalty. 

In October 2020, he asked a judge to modify his 13-year sentence due to the pandemic for health reasons.  Johnson explained to a court that “I was given 13 years for my crime. I was not given a death sentence . . . . I feel that the precautions the Department of Corrections has put into place to stop the spread of (COVID-19) are no more than a facade and my health, safety, and life are at risk here.”

About a week later, finding “no legal basis” to change Johnson’s sentence due to the pandemic, a judge wrote, “While the court recognizes the potential threat of COVID-19 to the inmate population, it also recognizes that the institution has a legal obligation to take the necessary steps to keep inmates safe and healthy.”  https://wisconsinwatch.org/wp-content/uploads/2021/02/Childs-order.pdf

 Johnson died of COVID-19 the next month.  The last thing he said was, ‘I can’t take this shit anymore, I can’t breathe.’ ”  The cause: complications from COVID-19, his autopsy showed.

Reporter Vanessa Swales explains that:

The coronavirus has run rampant across Wisconsin’s state prison system, infecting at least 2,153 staff members at adult institutions who self-reported test results and 10,786 inmates throughout the pandemic — more than half of the current population. The state has detected infections among inmates at a rate more than five times higher than in the general population. The outbreaks have killed at least 25 inmates, according to DOC data. John Beard, an agency spokesman, declined to say whether any prison staff had died of the virus, citing medical privacy considerations.

Ms. Swales continues:

Wisconsin was a laggard in ramping up testing for inmates, meaning its data likely undercounts infections from the early months of the pandemic.  Many of Wisconsin’s aging prisons are poorly designed to keep viruses from spreading. Inmates in some facilities sleep in barrack-like arrangements and cells are cramped. Inmates share toilets, showers and sinks. Prisoners say air typically flows poorly through the facilities — conditions common in prisons nationwide that allow aerosols to remain in the air and circulate throughout the closed environment, according to a National Academies of Sciences, Engineering, and Medicine report that calls for decarceration to limit COVID-19 in prisons.

“It’s not that this virus is behaving differently in correctional systems,” said Dr. Lisa Puglisi, an assistant professor at Yale School of Medicine and expert in post-incarceration care. “It is that the (correctional) systems can’t handle the virus.”

In other words, an overcrowded prison is an overcrowded prison and until you take steps to deal with overcrowding, bandaid solutions do not help.

For instance Prince Rashada, a 52-year-old inmate at Fox Lake Correctional Institution, was among seven   inmates at three prisons who told Wisconsin Watch that soap and sanitizer remained hard to access — or that sanitation was broadly lacking. He was also among eight inmates at five prisons who said infected inmates were not always isolated from others. “The fact remains that they put our lives at risk,” Rashada, who reports having sickle cell trait and other conditions that might make him more vulnerable to COVID-19, said in a phone interview. “I fear for my life, and I feel I’m going to die in prison. I’m having nightmares that I’m going to die in here.”
​
It is time for Wisconsin to make the punishment fit the crime.  Wisconsin needs to stop killing people by prison overcrowding.

The words are sweeping as they are majestic:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” 

 The Declaration of Independence tells citizens their right of citizenship is endowed by the Creator.  It is not dependent on any government declaration.

The Supreme Court says not true.

The Supreme Court’s role in defining American citizenship
By Gabriel Chin on Jan 27, 2021 at 10:23 am

The following is a series of questions posed by Professor Gabriel “Jack” Chin, University of California, Davis School of Law, to Professor Amanda Frost, American University Washington College of Law, on Frost’s new book, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers.

Frost is an expert in constitutional law, immigration and citizenship law, federal courts and jurisdiction, and judicial ethics. She writes the Academic Round-up column for SCOTUSblog, highlighting noteworthy scholarship on the Supreme Court. On Thursday, Jan. 28, at 8 p.m. EST, Politics & Prose will host a virtual book launch. For more info and to register for that event, click here.
* * *
Can you start by describing the book in a few sentences, and what motivated you to write it?

The book describes the events surrounding the legal battles to safeguard citizenship. Over the past two centuries, the government tried, and sometimes succeeded, in revoking citizenship from millions, including disfavored racial and ethnic groups, women who married noncitizens, imprisoned Japanese Americans during World War II, as well as political activists and labor leaders. At times, the Supreme Court defended citizenship, but at others it acquiesced or even led the way in declaring that groups or individuals were no longer entitled to the rights and privileges of U.S. citizenship.

I wrote this book in part because this history is not well known, and I wanted to share this knowledge with a wider audience. The book is a legal history, but it is told primarily through the stories of those who lost their citizenship, using their own words whenever possible. These people were remarkable, and one of my goals was to write an accessible book in order to share their citizenship battles with a broader audience.
 
Those who lose their citizenship often turn to the courts for relief, but as you explain, the Supreme Court has not always protected citizenship. Why has the court protected some individuals from losing citizenship even as it refused to protect others?

Supreme Court decisions often reflect their historical moment. When the political branches choose to revoke citizenship, they do so from those viewed as “un-American” — whether because of their race, ethnicity, speech or even their choice of marriage partner or reading material. Like elected politicians (and the rest of us), the justices are influenced by the public’s perceptions of who is a “real” American entitled to the rights of citizenship, and who is not.

When the court decided Dred Scott v. Sandford in 1857, the nation was debating whether slavery could be reconciled with the Declaration of Independence’s founding principle of equality. Chief Justice Roger Taney thought he had solved that problem when he declared that no Black person, slave or free, could claim the “rights and privileges of citizenship” — in other words, that all Blacks were outside of the social compact. As the dissent pointed out, to reach that conclusion he had to ignore historical precedent supporting Black citizenship, including the fact that some Black residents of the United States had the right to vote, and some had even voted to ratify the Constitution that Taney thought denied them citizenship. But Taney and a majority of the justices could not see beyond their deep-seated assumptions about race and equality.

At other times, though, the court protected citizenship from the political branches’ efforts to take it away, even when it was not politically popular to do so. In its 1967 decision in Afroyim v. Rusk, the court put a stop to the government’s Cold War denaturalization campaign, declaring: “The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.”
 
Was there a Supreme Court decision regarding citizenship stripping that surprised you?
I was pretty taken aback by Mackenzie v. Hare, the 1915 decision in which the court unanimously upheld a federal law revoking U.S. citizenship from American women who married noncitizens.

The story behind that case is almost too good to be true. The plaintiff, Ethel Mackenzie, was a well-known suffragist who had successfully fought for the right to vote in California. But when she tried to vote in the next election, she was barred because she had married a Scotsman. Under the Expatriation Act of 1907, American women who married noncitizens automatically lost their citizenship. Mackenzie challenged the law in the Supreme Court, but none of the (male) justices could understand why it would be important for women to maintain independent citizenship.
​
The happy ending to the story is that two years after the 19th Amendment guaranteed women the right to vote in 1920, the Expatriation Act was partially repealed — though it was not eliminated entirely until 1931. And the credit for getting rid of it goes in part to the newly elected women in Congress.
 
You argue that citizenship stripping has “served as a proxy for overt discrimination.” Can you elaborate on what you mean by that, and how citizenship stripping fits in with more familiar forms of discrimination?
Citizenship stripping has been used to discriminate in ways otherwise prohibited by law. The Supreme Court has held that the right to vote, serve on a jury, own property, criticize the government, work in a variety of professions and remain in the United States cannot be denied on the basis of race, religion, gender, speech and other protected grounds. But, as the court explained in Mathews v. Diaz in 1976, it is legally permissible to discriminate against noncitizens in a variety of ways. I argue that at times the government has taken advantage of that distinction, using access to citizenship as a facially neutral means of accomplishing unconstitutional goals.
 
Is there a Supreme Court justice whose vote in a citizenship case you view as particularly significant?
I was struck by Justice Felix Frankfurter’s 1944 opinion for the court reversing the denaturalization of Carl Wilhelm Baumgartner, a German immigrant who had become a naturalized U.S. citizen in 1932.
Baumgartner supported the Nazis, made anti-Semitic statements and declared publicly that “he would be glad to live under the regime of Hitler.” Frankfurter was the court’s only Jewish member, and the case was decided on June 12, 1944 — just a week after D-Day, at a time when Nazi Germany still posed a very real threat to the world. Nonetheless, Frankfurter wrote that U.S. citizenship came with the “freedom to speak foolishly” without fear of expulsion for doing so. By authoring the opinion, Frankfurter drove home his point that citizenship could not be lost even for expressing abhorrent speech and beliefs.
 
Access to law and to lawyers has been essential for many litigants, especially the Chinese at the turn of the 20th century, and imprisoned Japanese Americans during World War II. How did these disempowered groups get access to the judicial system?
Chinese immigrants in the United States pooled their resources to hire high-profile, establishment lawyers, who filed thousands of cases on their behalf — a massive pro-bono effort comparable to that of the NAACP during the civil rights movement in the 20th century. In fact, the Chinese should get more credit for pioneering a legal strategy that is still used today.
ACLU lawyer Wayne Collins was dogged and passionate in fighting to restore the citizenship of the nearly 6,000 imprisoned Japanese Americans who had been coerced into renouncing their citizenship. After 15 years of litigation, the government finally admitted its errors and restored their citizenship. Collins is proof of the difference one lawyer can make.
 
How has race affected the Supreme Court’s citizenship decisions?
Not surprisingly, race plays a big role in this story all the way through.
Citizenship stripping was often intertwined with questions about race, membership and political power. Dred Scott’s declaration that Blacks could not be citizens epitomized the view that the United States was a white nation. The 14th Amendment’s citizenship clause overruled Dred Scott, declaring that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The Supreme Court played a vital role in implementing the 14th Amendment’s citizenship guarantee. In the 1890s, Solicitor General Holmes Conrad argued that the native-born children of Chinese immigrants did not qualify for birthright citizenship. Conrad was an un-Reconstructed former Confederate officer who rejected every aspect of the 14th Amendment. He even went so far as to argue before the Supreme Court that the amendment was itself unconstitutional because the southern states had been coerced into ratifying it — a startling claim even in 1898. But the court rejected that view, holding in United States v. Wong Kim Ark that birthright citizenship applied to all, regardless of race or ethnicity.
 
Is there a justice whose views on citizenship came as a surprise?
Justice John Marshall Harlan’s dissent in Wong Kim Ark startled me.
Harlan’s stance in favor of civil rights for Blacks led Frederick Douglass to declare him “a moral hero.” In 1896, just a year before Wong’s case reached the court, Harlan had written an angry dissent in Plessy v. Ferguson — the case establishing “separate but equal” accommodations for whites and Blacks, cementing Jim Crow racial segregation into U.S. law until the Supreme Court’s 1954 decision in Brown v. Board of Education finally began to put an end to it. The court’s lone dissenter in Plessy, Harlan had passionately argued that “our constitution is color-blind.”
But then just two years later, he was one of only two justices to conclude that the native-born children of Chinese immigrants were not citizens, despite the clear language in the 14th Amendment granting citizenship to all born on U.S. soil. As you have written, Jack, Harlan’s dissent in Wong Kim Ark complicates his legacy as an advocate for racial equality.
 
As you explain, citizenship stripping lives on today. Donald Trump questioned birthright citizenship for the children of undocumented immigrants and threatened to end it by executive order. The State Department refused to give passports to those born near the southern border and outside of institutional settings. Citizens are mistakenly detained and deported by immigration officials, and proving citizenship is getting harder. What do you think the Supreme Court would do now if people were told by their own government, “You Are Not American”?

 In recent years, the Supreme Court has been more protective of citizenship than the political branches. In Afroyim, the court thought it had put an end to the government’s aggressive denaturalization campaigns, and for a while it succeeded. But a footnote in that opinion allowed for denaturalization in cases of fraud or mistake — a tiny loophole that the Trump administration used as grounds to launch an investigation of over 700,000 naturalized citizens. Whether the government’s expansive interpretation of that footnote is legally permissible never reached the Supreme Court.

I think if and when new cases come before the court, the justices are likely to be skeptical of the government’s power to lightly revoke citizenship. In 2017, in Maslenjak v. United States, the government argued before the court that it could denaturalize anyone found to have made even a minor error in a naturalization application. At oral argument, Chief Justice John Roberts asked Assistant to the Solicitor General Robert Parker if failing to admit to having driven at 65 miles per hour in a 60-mile-per-hour zone would be grounds for denaturalization. Parker responded yes, and the government lost its case in a unanimous opinion.
 
Does the story you tell show that the United States is basically a bigoted, racist country? Or is it the opposite, given humane outcomes like the quick repudiation of Dred Scott, the rejection of racial limits on birthright citizenship in Wong Kim Ark, and the opportunity for women who were expatriated because they married noncitizens to regain their citizenship?

It is both at once. On the one hand, the United States claims to be an open, tolerant country that welcomes immigrants — and at times it lives up to that ideal. But citizenship stripping is evidence of our nation’s schizophrenia. The government has repeatedly passed laws casting out its own citizens, both native-born and naturalized. Women who married noncitizens, Chinese Americans at the turn of the century, Japanese Americans during World War II, even labor leaders and political activists have all been declared “un-American” — not just rhetorically but as a matter of their legal status. Some were even deported. And as I explain in the last chapter, citizenship stripping lives on today.

Happily, though, the story doesn’t end there. As I describe in the book, those groups successfully fought back, sometimes (though not always) with the help of the Supreme Court. So the book is in part about the nation’s constant struggle to live up to its stated ideals.

SOURCE:  ​https://www.scotusblog.com/2021/01/the-supreme-courts-role-in-defining-american-citizenship/

"Lies, damned lies, and statistics" is part of a phrase attributed to the 19th Century British Prime Minister Benjamin Disraeli, among others, and later popularized in the United States by, among others, Mark Twain: "There are three kinds of lies: lies, damned lies, and statistics." The statement refers to the persuasive power of numbers, the use of statistics to bolster weak arguments, and the tendency of people to disparage statistics that do not support their positions. 

Unfortunately, all too often courts rely on racist statistics in pronouncing sentence.  Courts use computer generated risk assessments in sentencing defendants.  As has been pointed out, the term "risk" is a proxy for Race.  Bernard E. Harcourt, Risk As a Proxy for Race (2010), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1265&context=public_law_and_legal_theory.  See also, Algorithmic Injustice: How the Wisconsin Supreme Court Failed to Protect Due Process Rights in State v. Loomis (2016), https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1332&context=ncjolt and  Racist Algorithms: How Code Is Written Can Reinforce Systemic Racism (2020), https://www.teenvogue.com/story/racist-algorithms-testing-policing

 

” Do you defend n_______, Atticus?” [Scout] asked him that evening.
“Of Course I do. Don’t say nigger, Scout. That’s common.
“That’s what everybody at school says”.
“From now on, it’ll be everybody less one—”
“Do all lawyers defend Negroes, Atticus?”
“Of course they do, Scout.”
“Then why did Cecil say you defended niggers? He made it sound like you were running a still”.
” I am simply defending a Negro. It’s a peculiar case- wont come to session till Summer”.
” If you shouldn’t be defending him, then why are you doing it?”
” For a number of reasons, Scout. The main one is, if I didn’t I couldn’t hold up my head in town, I couldn’t represent this county in the legislature, I couldn’t even tell you or Jem not to do something again.”
” You mean, if you didn’t defend that man, Jem and me wouldn’t have to mind you any more?”
” That’s about right”
” Why?”
” Because I could never ask you to mind me again. Scout, simply by the nature of the work, every lawyer gets at least one case in his lifetime that affects him personally. This one’s mine. You might hear some ugly talk about it at school, but do one thing for me if you will: you just hold your head high and keep those fists down. No matter what anybody says to you, don’t you let them get your goat. Try fighting with your head for a change…”
​

The Court of Appeals for District 4 decided in State & T.A.J. v. Alan S. Johnson, 2019AP664-CR, 10/29/20 (recommended for publication) that “Marsy’s Law” gives a crime victim standing to get involved in Shiffra-Green litigation.  This decision is in conflict with well established case law which defines the role of a public prosecutor in a criminal case and why a private attorney cannot assist in a criminal prosecution.

The role a prosecutor plays in a criminal case has long been clearly established.  Ethically, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”  SCR 20:3.8.  Special responsibilities of a prosecutor, ABA Comment [1].  Thus, a prosecutor is not like an ordinary party to a case.  Unlike a private party’s attorney, a prosecutor is an:

independent administrator of justice in the criminal justice system, which can only be accomplished through the representation and presentation of the truth. The primary responsibility of a prosecutor is to seek justice……A prosecutor should zealously protect the rights of individuals, but without representing any individual as a client. A prosecutor should put the rights and interests of society in a paramount position in exercising prosecutorial discretion in individual cases. National Prosecution Standards, 1-1.1 and 1-1.2.  National District Attorneys Association (Third Edition Updated 2009).  Emphasis added.  See also ABA STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION standard 3-2.1, at 19 (3d ed. 1993) (“[t]he prosecution function should be performed by a public prosecutor who is a lawyer subject to the standards of professional conduct and discipline.”); Neil M. Peretz, The Limits of Outsourcing: Ethical Responsibilities of Federal Government Attorneys Advising Executive Branch Officials, 6 CONN. PUB. INT. L.J. 23, 35-36 (2006) (discussing higher ethical burden on prosecutors to preserve justice)


A public prosecutor has the power of the State behind her.  Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987) (“[The prosecutor] has the power to employ the full machinery of the state in scrutinizing any given individual.”).  This makes a criminal prosecution an exercise in state sovereignty.  See, e.g., JONATHAN SIMON, GOVERNING THROUGH CRIME 33 (2007) (noting nexus between law enforcement, prosecutorial authority, and sovereign power); PAUL R. VERKUIL, OUTSOURCING SOVEREIGNTY: WHY PRIVATIZATION OF GOVERNMENT FUNCTIONS THREATENS DEMOCRACY AND WHAT WE CAN DO ABOUT IT 14 (2007) (“[S]overeignty is the exercise of power by the state.”).

Prosecutors are public officials who serves not a private party but the interest of the sovereign.  Marshall v. Jerrico, Inc., 446 U.S. 238, 249 (1980).  See also, Austin Sarat & Conor Clarke, Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law, 33 LAW & SOC. INQUIRY 387, 390 (2008) (prohibitions of criminal law represents a “fragment of sovereignty.”).  A prosecutor is not the servant of any one citizen but is a “servant of the law” whose obligation is not to win a case but see “that justice shall be done.”  Berger v. United States, 295 U.S. 78, 88 (1935).  With the awesome power of the State at their disposal in the prosecution of a case, “those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice.”  Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987).  Even private attorneys appointed to prosecute a criminal case are representatives of a private party but is a representative of the State.  Id. at 804. 

Thus, in Wisconsin it is wrong to put a defendant on trial by the district attorney with the assistance of another individual.  A person accused of a crime involving his confinement cannot be tried by the use of private parties as prosecutors. The fact that a private party was paid to aid the district attorney warrants a new trial.  Biemel v. State, 71 Wis. 444; 37 N.W. 244 (1888):

public policy, and the fair, just, and impartial administration of the criminal law of the state, make it the duty of the courts to exclude the paid attorneys of private persons from appearing as prosecutors. That public policy is against permitting them to prosecute.  Id at 446.  See also, State v. Eldridge, 951 S.W. 2d 775, 782 (Tenn. App. 1997) (private attorney who represented victim in civil matter could not serve as special prosecutor since this violates due process); Cantrell v. Virginia, 329 S.E. 2d 22 (Va. 1985) (private attorney who represented victim’s parents seeking custody of father who was defendant assisted public prosecutor presents overwhelming probability of a conflict of interest)

Biemel recognized, as did Young, Eldridge and Cantrell that there is a clear opportunity for interested private counsel to base prosecutorial decisions on a private party’s best interests and not on the public’s best interests.
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An example of the problem created by a private party acting as part of the prosecution is illustrated by the story of Tobias E. Diamond, who was both a private attorney and the United States Attorney for Iowa.  He resigned his position in November 1952.  After unsuccessfully settling a claim that his client had against a Florida company, Diamond obtained a grand jury indictment against the company and two of the company’s officers.  See House Probers Told Justice Dept. Denounced U.S. Attorney with $67,000 Private Practice, WASH. POST, Dec. 18, 1952, at 9; Murrey Marder, Justice Aide Quits During Investigation — Iowa U.S. Attorney Probed for Alleged Outside Practices; Second in Month, WASH. POST, Nov. 8, 1952, at 1.  Based on what happened Tobias E. Diamond, the Justice Department prohibited outside law practice by its attorneys.  See Luther A. Huston, M’Granery Limits Aides’ Activities — 15,000 in Justice Department May Not Do Outside Work Interfering with Duties, N.Y. TIMES, Dec. 19, 1952, at 25.

And that’s why a private attorney cannot serve as a public prosecutor.  

I am against burning or stepping on the American flag.  The flag to me is symbolical of what my belief in what America is : “We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”  “No American …. ever looks upon [the flag] without taking pride in the fact that he lives under this free Government.”  Halter v. Nebraska, 205 U.S. 34, 41 (1907) (in a ruling that did not address free-speech rights but property rights only, law restricting flag on bottle of “Stars and Stripes” beer upheld)

It is curious to me that the same people who worry about burning or stepping on the flag endorse using the flag to sell guns or clothes.  To me this type commercialization is stepping on the symbol of the people of the United States to make a buck.  It is even more ironic when much of the clothing bears the tag, “Made in China.”  Do the “Blessings of Liberty to ourselves and our Posterity” really amount to so little that we allow our national symbol to be used to sell socks and underwear??  Such commercialization does more to trivialize the sacred banner than any flag burning.

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I would humbly suggest that there are far greater sins committed against our country than the burning of a flag.  As President Lyndon Johnson said in his message that accompanied his request that Congress enact a voting rights bill, “In the world, America stands for-and works for-the right of all men to govern themselves through free, uninhibited elections. An ink bottle broken against an American Embassy, a fire set in an American library, an insult committed against the American flag, anywhere in the world, does far less injury to our country and our cause than the discriminatory denial of any American citizen at home to vote on the basis of race or color.”  Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 277 (1999) 
 
Repeated congressional attempts to ban flag desecration have been invalidated by the US supreme court because the symbolic act of burning the flag has been ruled a type of expression protected by the First Amendment.  Indeed, some of the supreme court's most eloquent words in defense of free speech have been written in cases involving the flag: in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), while striking down a law requiring schoolchildren to salute the flag, the court ruled:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.  Emphasis added.

The interest a person has in protecting the "physical integrity" of a privately owned flag rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the belief we have in the symbol itself in any way.  United States v. Eichman, 496 U.S. 310, 316 (1990)
Moreover, the First Amendment does not permit regulation of flag burning or destruction because of the message to be sent.  Boos v. Barry, 485 U.S. 312, 320 (1988)  In other words, the State cannot forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role.  A content-based law or regulation discriminates against speech based on the substance of what it communicates and is therefore unconstitutional.  Texas v. Johnson, 491 U.S. 397, 416-17 (1989).
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Bottom line?  Hold dear you belief in American ideals which should be firm enough to not worry about attacks on a symbol of that belief.

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Given Donald Trump's refusal to promise a peaceful transition of power and tweets about delaying the election, it is understandable that Senator Diane Feinstein asked Supreme Court nominee, Amy Coney Barrett, if the constitution gave Trump the right to delay the election.

The answer, without question, is no. According to the Constitution, only Congress can delay or change the date of an election.
 
Being a constitutional law professor at a prestigious law school, you would hope that Barrett would be able to give a clear and concise answer to this direct question capable of being answered by a first year law school student. However, she did not:
 
"Well Senator, if that question ever came before me, I would need to hear arguments from the litigants, and read briefs, and consult with my law clerks, and talk to my colleagues, and go through the opinion writing process. So, you know, if I give off-the-cuff answers, then I would be basically a legal pundit, and I don’t think we want judges to be legal pundits."
 
This was anything but a clear and concise answer to this direct question.  Her evasive answer to this question should frighten us all.  It is a clear answer that Barrett wants to be an activist judge refusing to follow the Constitution and rewrite the Constitution to fit her personal beliefs.
 
Then it got worse: Senator Patrick Leahy asked Barrett if she would recuse herself from any case involving the presidential election outcome she said "I can't offer a legal conclusion right now about the outcome of the decision I would reach," in other words no, she would not recuse herself.

Trump and other Republicans have strongly implied that they are rushing Barrett's confirmation because they expect a conservative-leaning Supreme Court to be the ultimate decision maker on the presidential election -- not the voters.
This is why faculty members of the University of Notre Dame wrote a letter asking Amy Coney Barrett to “halt” her Supreme Court nomination process until after the November presidential election.  The members noted the "rushed nature" of the nomination process, which "may effectively deprive the American people of a voice in selecting the next Supreme Court justice."
 
"You are not, of course, responsible for the anti-democratic machinations driving your nomination," the letter read before mentioning Senate Republicans' refusal to take up former President Obama's nomination of Merrick Garland during the 2016 presidential election.
 
The letter also stated that stopping the confirmation process now would fulfill Justice Ruth Bader Ginsburg's dying wish to leave her seat on the bench open until after the November election.