Could a state legalize murder?

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Borhas
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Re: Could a state legalize murder?

Postby Borhas » Wed May 11, 2011 11:25 pm

I'm sure the right not to be murdered is implied somewhere in the constitution, maybe P&I clause would make a come back in that hypo

I guess Congress could explicitly make it a law that not being murdered is a P&I of US Citizens (And feds can regulate immigration too so I don't think that it would have to be limited to citizens)

Renzo
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Re: Could a state legalize murder?

Postby Renzo » Wed May 11, 2011 11:27 pm

vamedic03 wrote:
Renzo wrote:It just spontaneously came to me.


Having the state protect you from murder is both deeply rooted in our nation's history and implicit in notions of ordered liberty; there's a substantive right to have the state protect you from murder. For a state to fail to offer some protection of your life from your fellow man would thus be unconstitutional.


Reasonable argument. But, since I'm finding this hypo to be entertaining, three follow up questions: (1) Who would have standing to sue (considering standing and ripeness)?; (2) Who would you sue?; (3) What would be your remedies?


All very good questions.

I'd say you could get a writ of mandamus to get the courts to enforce a common law/constitutional crime of murder, even if the statute were repealed. But, you can't force prosecutors to prosecute, so I'm not sure how that helps.

Renzo
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Re: Could a state legalize murder?

Postby Renzo » Wed May 11, 2011 11:42 pm

G. T. L. Rev. wrote:
vamedic03 wrote:
Renzo wrote:It just spontaneously came to me.


Having the state protect you from murder is both deeply rooted in our nation's history and implicit in notions of ordered liberty; there's a substantive right to have the state protect you from murder. For a state to fail to offer some protection of your life from your fellow man would thus be unconstitutional.


Reasonable argument. But, since I'm finding this hypo to be entertaining, three follow up questions: (1) Who would have standing to sue (considering standing and ripeness)?; (2) Who would you sue?; (3) What would be your remedies?


Question (3) is, in my view, the toughest of the three, as it lays bare the fact that we're talking about a positive right rather than a negative one. A declaratory judgment holding that the de-criminalization law was constitutionally invalid might work, as that would at least let willing prosecutors charge a murder or attempted murder.



Ah, see, this is why you're the fancy Art. III clerk! No way prosecutors are excited about legal murder. Either a declaratory judgement or a mandamus that says the prosecutors can still enforce a common law/constitutional murder law is all you need; they'll pick up the ball from there.

I also like your standing points. Maybe the relative of a murder victim suffers emotional damage from the state's failure to prosecute the murder, and sues? You could contrive an insurance policy that would only pay on conviction of a person's murder, then the estate could sue--but you'd have to sell a fuckload of policies and wait until someone got snuffed.

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vamedic03
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Re: Could a state legalize murder?

Postby vamedic03 » Wed May 11, 2011 11:48 pm

Renzo wrote:
G. T. L. Rev. wrote:
vamedic03 wrote:
Renzo wrote:It just spontaneously came to me.


Having the state protect you from murder is both deeply rooted in our nation's history and implicit in notions of ordered liberty; there's a substantive right to have the state protect you from murder. For a state to fail to offer some protection of your life from your fellow man would thus be unconstitutional.


Reasonable argument. But, since I'm finding this hypo to be entertaining, three follow up questions: (1) Who would have standing to sue (considering standing and ripeness)?; (2) Who would you sue?; (3) What would be your remedies?


Question (3) is, in my view, the toughest of the three, as it lays bare the fact that we're talking about a positive right rather than a negative one. A declaratory judgment holding that the de-criminalization law was constitutionally invalid might work, as that would at least let willing prosecutors charge a murder or attempted murder.



Ah, see, this is why you're the fancy Art. III clerk! No way prosecutors are excited about legal murder. Either a declaratory judgement or a mandamus that says the prosecutors can still enforce a common law/constitutional murder law is all you need; they'll pick up the ball from there.

I also like your standing points. Maybe the relative of a murder victim suffers emotional damage from the state's failure to prosecute the murder, and sues? You could contrive an insurance policy that would only pay on conviction of a person's murder, then the estate could sue--but you'd have to sell a fuckload of policies and wait until someone got snuffed.


(1) On Declaratory Judgment - does either party have a coercive claim?

(2) Can't get damages against the state - see, State Sovereign Immunity (unless you bought into the Diversity Theory of the 11th Amendment)

Renzo
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Re: Could a state legalize murder?

Postby Renzo » Wed May 11, 2011 11:55 pm

vamedic03 wrote:
(1) On Declaratory Judgment - does either party have a coercive claim?

(2) Can't get damages against the state - see, State Sovereign Immunity (unless you bought into the Diversity Theory of the 11th Amendment)

You can't get damages, but equitable remedies are fair game, and that's what you really want. And if you could satisfy standing requirements, there'd be enough to get you a declaratory judgement.

03121202698008
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Re: Could a state legalize murder?

Postby 03121202698008 » Thu May 12, 2011 12:21 am

This thread is why people hate lawyers. WTF are we arguing about? Something that will never happen and in reality even if it did someone (courts/Congress/voters) would find a way to fix it?
:lol:

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ResolutePear
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Re: Could a state legalize murder?

Postby ResolutePear » Thu May 12, 2011 12:25 am

G. T. L. Rev. wrote:
ResolutePear wrote:Crap.

Yeah, your argument is pretty much FUBAR. You do get a consolation prize, however: as problematic as your reasoning was, it was still better than CG's, and s/he is a law student.


Well, let me throw out another one.

It'd be an equal protection clause issue because the law would have a discriminatory result on voting in states with a history of denying voting to minorities. This assumes the state has a history, as in the VRA '82.

If I don't want somebody to vote in my state, I'd just shoot them at the ballot if it were legal.

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CG614
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Re: Could a state legalize murder?

Postby CG614 » Thu May 12, 2011 12:28 am

G. T. L. Rev. wrote:
ResolutePear wrote:Crap.

Yeah, your argument is pretty much FUBAR. You do get a consolation prize, however: as problematic as your reasoning was, it was still better than CG's, and s/he is a law student.

Sorry for being the only person here basing their opinion in a sense of reality.

BeenDidThat
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Re: Could a state legalize murder?

Postby BeenDidThat » Thu May 12, 2011 12:41 am

CG614 wrote:
G. T. L. Rev. wrote:
ResolutePear wrote:Crap.

Yeah, your argument is pretty much FUBAR. You do get a consolation prize, however: as problematic as your reasoning was, it was still better than CG's, and s/he is a law student.

Sorry for being the only person here basing their opinion in a sense of reality.


Oddly similar to what people say when they are getting 302'ed.

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vanwinkle
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Re: Could a state legalize murder?

Postby vanwinkle » Thu May 12, 2011 12:19 pm

CG614 wrote:
G. T. L. Rev. wrote:
ResolutePear wrote:Crap.

Yeah, your argument is pretty much FUBAR. You do get a consolation prize, however: as problematic as your reasoning was, it was still better than CG's, and s/he is a law student.

Sorry for being the only person here basing their opinion in a sense of reality.

Wait. You're still trying to claim you had a valid point?

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ResolutePear
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Re: Could a state legalize murder?

Postby ResolutePear » Thu May 12, 2011 12:36 pm

vanwinkle wrote:
CG614 wrote:
G. T. L. Rev. wrote:
ResolutePear wrote:Crap.

Yeah, your argument is pretty much FUBAR. You do get a consolation prize, however: as problematic as your reasoning was, it was still better than CG's, and s/he is a law student.

Sorry for being the only person here basing their opinion in a sense of reality.

Wait. You're still trying to claim you had a valid point?


He's trying to claim that his argument is more valid than everybody else's argument.

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vanwinkle
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Re: Could a state legalize murder?

Postby vanwinkle » Thu May 12, 2011 12:38 pm

ResolutePear wrote:He's trying to claim that his argument is more valid than everybody else's argument.

That's even worse.

UCLAtransfer
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Re: Could a state legalize murder?

Postby UCLAtransfer » Thu May 12, 2011 3:17 pm

CG614 wrote:Sorry for being the only person here basing their opinion in a sense of reality.


¿Qué?

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vamedic03
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Re: Could a state legalize murder?

Postby vamedic03 » Thu May 12, 2011 4:37 pm

blowhard wrote:This thread is why people hate lawyers. WTF are we arguing about? Something that will never happen and in reality even if it did someone (courts/Congress/voters) would find a way to fix it?
:lol:


I guess you didn't like Lon Fuller's The Speluncean Explorers either.

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vanwinkle
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Re: Could a state legalize murder?

Postby vanwinkle » Thu May 12, 2011 4:40 pm

I figured I'd translate for those struggling enough just to understand people in English:

UCLAtransfer wrote:
CG614 wrote:Sorry for being the only person here basing their opinion in a sense of reality.

¿What?

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ResolutePear
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Re: Could a state legalize murder?

Postby ResolutePear » Thu May 12, 2011 4:43 pm

vanwinkle wrote:I figured I'd translate for those struggling enough just to understand people in English:

UCLAtransfer wrote:
CG614 wrote:Sorry for being the only person here basing their opinion in a sense of reality.

¿What?

We don't use that swirly upside-down question mark. :lol:

Sorry, ICR. :(

UCLAtransfer
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Re: Could a state legalize murder?

Postby UCLAtransfer » Thu May 12, 2011 5:52 pm

vanwinkle wrote:I figured I'd translate for those struggling enough just to understand people in English:

UCLAtransfer wrote:
CG614 wrote:Sorry for being the only person here basing their opinion in a sense of reality.

¿What?


Great point. My sincere apologies for further confusing anyone who is already having difficulty. :D

HBK
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Re: Could a state legalize murder?

Postby HBK » Thu May 12, 2011 6:18 pm

Although Lopez would provide a strong basis for denying Congress the power to criminalize murder, there may be a precedential argument made by looking back to the Heart of Atlanta and its progeny. If a state provided no protection to travelers, transportation, truckers, and business people engaged in interstate commerce, those people would avoid the states which allowed murder- thereby hindering interstate commerce. Under this line of reasoning and precedent (assuming Lopez does not defeat it), a new federal law criminalizing murder may be upheld.

edit for clarification

mmribail
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Re: Could a state legalize murder?

Postby mmribail » Sun May 15, 2011 6:41 pm

I am of the position that a state can make murder legal; well, at least under the current state of what the law is today. The court will likely find some sort of exception to the state action doctrine (any due process argument has trouble here) or the commerce clause under Lopez. However, there is one way that the feds can limit murder in this hypothetical state. That would be to provide a judicial hook for murders that do involve interstate commerce. Such as if in Lopez the statute only regulated guns that traveled in interstate commerce. Well...my thoughts on it. Any other ideas? This by the way is a fascinating question. I spent an hour going over all the arguments. Ha ha, sad I know

mmribail
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Re: Could a state legalize murder?

Postby mmribail » Sun May 15, 2011 6:45 pm

Oh, how about an article p & I argument relating to conducting business in the state in question for out of staters? I know this is a stretch, but I am really picking for straws now. Any brilliant legal minds here that can tell me why this is wrong? My gut feeling says it is.

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Remnantofisrael
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Re: Could a state legalize murder?

Postby Remnantofisrael » Sun May 15, 2011 10:58 pm

Congress could amend to clarify the 14th or even elsewhere, which I'm sure it would do in the case of the danger of free walking murderers and the threat they offer to other states, and then send in the army to make sure California, specifically Oakland, adopts the requirement.

We are talking about California right?

Of course, the smart "state" would just avoid making murder illegal and change the definition of "justifiable". See South Dakota (abortion doctors). Create a wide sweeping definition of justifiable in the case of homicide, and go from there. Like, "if they make you mad, its justifiable".

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vamedic03
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Re: Could a state legalize murder?

Postby vamedic03 » Sun May 15, 2011 11:02 pm

Remnantofisrael wrote:Congress could amend to clarify the 14th or even elsewhere, which I'm sure it would do in the case of the danger of free walking murderers and the threat they offer to other states, and then send in the army to make sure California, specifically Oakland, adopts the requirement.

We are talking about California right?

Of course, the smart "state" would just avoid making murder illegal and change the definition of "justifiable". See South Dakota (abortion doctors). Create a wide sweeping definition of justifiable in the case of homicide, and go from there. Like, "if they make you mad, its justifiable".


You're not a law student, are you?

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Remnantofisrael
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Re: Could a state legalize murder?

Postby Remnantofisrael » Sun May 15, 2011 11:06 pm

vamedic03 wrote:
You're not a law student, are you?


Obvious right? Not till august. And yet I know the actual answer. Commerce Clause and Interpretation. Lets be honest, the fed gov will do whatever they want when push comes to shove, so long as enough people both in power and in the electorate want it to happen.

I'll go away now.

mmribail
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Re: Could a state legalize murder?

Postby mmribail » Sun May 15, 2011 11:43 pm

I meant p & i under article 4 of the constitution not the 14th amd. You wouldn't be able to argue equal protection or fundamental rights w/o running into a state action issue. A state failing to utilize its powers to outlaw murder is not a state action. It is merely inaction.

mmribail
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Re: Could a state legalize murder?

Postby mmribail » Sun May 15, 2011 11:46 pm

Also, didnt the slaughter house cases limit a p and i argument under any 14th amd p and i?




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