Could a state legalize murder? Forum

[mmribail]

Sorry I forgot to say that I am actually taking time to go over the OL's post above.

[Renzo]

Attention thread: every post on page six was too goddamn long.


Thank you, that is all.

[mikeytwoshoes]

Or is there a federal law that says murder has to be illegal?

Sorry if this is a stupid, obvious question, I'm not sure...

it must be a pain to have you in a class.

i haven't started law school yet, but i'd imagine there's some common law thing about this.

http://tortbunnies.com/69.html

[thecynic69]

The first issue I have found is your argument that the necessary and proper clause working here. The necessary and proper clause has already been limited to only apply to congress carrying out their enumerated powers. It has never been interpreted as a catch all rule that can come into play when congress cannot otherwise regulate something. At least not currently (The commerce clause is the closest thing). You can argue that the law may change and this clause could be expanded if a state actually did in fact criminalize murder. I think you do say that towards the end of your discussion of N & P; therefore, I will give you a break there. Although that argument can be used for any other body of law (I still don't understand why the P & I clause of the 14th amendment hasn't been changed by now. So keep in mind it isn't like the justices change their minds about how the law is interpreted at a whim).

As for your paragraph on whether the common law would kick in...well this has already been discussed and is just a plain bad argument. Even non-law students can catch this and you did. Good for you.

As for your argument about a potential civil remedy for murder being barred. This is one of the more interesting arguments. The only issue with this that I can find is the state action doctrine and although there may be an argument that it would not apply here because the potential plaintiff is suing the actual perp that did the killing and the courts just serve as a mediator most law students would have at least addressed this issue...because it is an issue that you can't get away from if you make this argument. Also, the eminent domain argument also has a state action doctrine related issue here. The state is not doing the taking; the perp is. If you are talking about the civil remedy though you would ask whether the plaintiff had a property right in that remedy. Numerous cases have concluded that if the right is not vested then there is no property right (See, the numerous social security benefit cases/welfare benefit cases; sorry I do not know them by name and I am not going to look them up).

I find the state encouraging murder argument the most interesting and probably the best argument. Contrary to what others have said here a state promoting the general welfare is subject to judicial review; however, that review is rational basis review. The court has found at times that a state has failed to meet this requirement. In Lawrence v. Texas, the court applied rational basis, but found that there was none. So assuming that a state finds that encouragement is enough to surpass the state action doctrine then we can move on to asking if there is a rational basis for the state encouraging this behavior. I personally, believe that there is none. If there is none for gay sex then I would be hard pressed that the court could find one for murder. So, actually you are right, but you don't then argue n & p clause. You argue fundamental due process arguments.

The commerce clause is another good argument, but it runs into Lopez limitations. Murder by itself is not directly related to commercial activity; although this JUST came to me while writing this. You may not need to argue the substantially related to interstate commerce argument at all! You can argue that people are instrumentalities of commerce just like the court found in the civil rights cases. Although, the cases involved public places such as hotels and restaurants the court did say people are instrumentalities of commerce. And Lopez did seem to imply that congress can relate in this area even if the activity is purely intrastate. Killing of people (Which are today considered instrumentalities of commerce) in itself maybe able to trigger the congress to be able to regulate based on this argument.

Overall, I actually think this guy did a decent job here. Enough for a C in con law next year, but this is without the benefit of going through the first year.

Thanks for the actual reply. With respect to my N&P argument, I put domestic tranquility in parentheses, but it turns out I was using the wrong term; in any event, I was trying to refer to Article IV section 4, which says "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." I was thinking that when a state advocates violence against U.S. citizens, the feds are covered by this duty in conjunction with N&P. I didn't mean to say it is a slam dunk argument, but only that N&P gets a def boost when advocating violence is in play (not your fault for not getting this, I didn't spell it out--someone made a similar-ish argument and I just wanted to say it fares better if this hypothetical is true).

I know less about N&P than other stuff; my sense of things comes from reading Comstock, and in class discussions of the bank war//Federal Kidnapping. I don't think the enumerated power hook has to come from Article I, the power or duty just has to be enumerated somewhere in the Constitution (and I think the enumerated part would be up for debate if a duty was sufficiently implied by the Constitution, and necessary to our conception of liberty, as being free from wanton murder is, but this would be a break from the case law, so I mention as an aside). If you only briefly look at the 5 prong test from Comstock, things don't look good, but if you take a closer look, a lot of the language used by the majority is friendly to what I'm saying (I'd be happy to debate this). In short, I could easily see this flying, especially given what would be at stake.

As for your criticism on my eminent domain stuff, you are right. This is much less black and white than I made it. The question is does state preemption of a civil cause for the sole purpose of denying a plaintiff or class of plaintiffs compensation for damages suffered constitute a taking? My sense is yes, but this is going to be murky for the reasons you said. Would love to be pointed to some case law on this, it interests me; unfortunately, I feel the degree of murkiness varies from state to state and this isn't something that'd be easy to figure out.

As for your substantive due process argument, I think you made things more black and white than the are by assuming rational basis review. We have not decided what if any right is infringed by the designated state action 'advocating violence'. If we decide it is a penumbral right, we have a potential shit fest, since I think the current Court is likely to adopt Scalia's position given in his dissent to Troxel v. Granville (spelling? point being that penumbral rights are not enforceable). If we decide the states are encouraging domestic violence, or disturbing domestic tranquility in a manner that rises to the level of sedition, I think the implicated rights are fundamental and likely to be reviewed under strict scrutiny (I take my sense of where strict scrutiny would apply from Lawrence as well, here--sorry if there is more recent case law).

As for the Lopez limit, my sense has always been that we don't know how much of a reversal Lopez constitutes, and that it seems the Court is not going to super drastically erode Congress's power under the commerce clause. Someone made a big deal out of aggregation earlier, but I hadn't originally read aggregated effects to be taken out of consideration by Lopez. IIRC, the woman violence bill or w/e was struck down not because the economic effect existed only in aggregated form, but because even when the effects were aggregated, the economic consequences were still indirect (not willing to re-read the case, feel free to tell me if I'm wrong). My argument about safety being a precondition seeks to make the economic effects direct--without safety (to which laws forbidding murder is essential), there can be no economy, and this seems sufficiently direct to me. Granted, one murder does not destroy the personal safety in a way that tears down the economy, but the aggregated effect does this in a very direct manner. Perhaps this is not direct enough, but this is a question for the courts--I don't think the Lopez restrictions have been sufficient hashed out to warrant a definitive statement as to whether this would fly under prong three. If aggregating effects is totally of the table, then I have to come up with a different story--maybe going with prong 1 and arguing that Congress has the power to foster personal safety in places where the lack of personal safety would affect interstate commerce [which is basically everywhere]. I'm not sure what the implications of this argument are, but in my tired state, it doesn't seem too terribly bad to me.

But, your argument re: instrumentalities is interesting, and if it flies, is much more elegant than my channels of interstate commerce non-sense. Would it have the unfortunate consequence that people not engaged in interstate commerce would not be protected? My sense is that potential for engagement in interstate commerce is enough, but I'm not sure whether this is only true in certain circumstances, or if I just made that up.

Anyway, thanks again for not treating me like a retard.

P.S.
What are these C's you speak of =P

[thecynic69]

Sure, a state could decriminalize murder in the unlikely event the legislature voted accordingly. The framework of crime and punishment is almost entirely a legislative matter in the US, and accordingly, if something isn't expressly declared to be a crime, it isn't constitutionally punishable by law (ex post facto blah blah). In our modern system, the common law is relevant only as context for the statutes (interpretation, "wtf does malice aforethought mean," etc.).

The federal government couldn't do anything directly, but they could bribe their way to what they want as forcefully as the Dole test would let them. They are also free to criminalize whatever they can push through a Lopez test (which is pretty much anything), but that doesn't mean anything to the state (see California and the decriminalization of weed, and Printz re: anti-commandeering). The fact that something is a federal crime means little without enforcement, which is why medicinal marijuana users smoke with impunity.

To the 0Ls, it's nothing personal, it's just the way of things. Come back in a year and see if you don't laugh just as hard at the next generation.

Look, I stay out of most threads; I usually assume I lack relevant facts. But seriously, you guys aren't referencing obscure cases. I don't know what other people's ugrad coursework consisted of, but Printz, Wickard, Lopez, Morrison, City of Boerne, Dole, Employment Division v. Smith, and other federalism cases have been required reading in one or more of my classes [admittedly, a lot of the cases we read are short versions]. What I'm saying is this is less an obscure legal topic and more a "do you know how our government works" kinda thing. I read this thread, waiting for the conversation to take the usual dive into things I had never heard of, but it didn't. And after 5 pages of discussion (with tons of painfully stupid comments--apparently by law students?!), I chimed in. The standard 0L hate response is bs. It isn't 'just the way of things'. You can ignore my post, but I won't be made to feel silly for posting. You guys are the ones being silly--either you guys are butt hurt for being hated on when you were 0Ls, or you are hating just to hate.

Again, I'm willing to eat these words, if given a good argument for why what I said was standard 0L non-sense.

Easy now, I neither insulted your response, nor did I engage in any "hating just to hate." I merely referred to the reality of the 1L -> 0L relationship. Most 0Ls really don't belong in any discussion of substantive law, the quest for legal employment, or life as a law student. They often think they do however, and accordingly have established a long and storied tradition of making silly posts, for which they are often mocked. That you, individually, might believe you have a good grasp on the basic workings of our government does not change those institutional realities, nor does the fact that there are law students who couldn't "law" their way out of paper bag.

The irony is that practicing attorneys often feel exactly the same way about law students. So at least you can console yourself with the knowledge that there is someone out there mocking your mocker.

Sorry if I overreacted. I thought you were just blindly agreeing with the other poster, who I took to be giving me the standard 0L hate thing.

FWIW, some 0Ls have taken courses at their law schools, which in conjunction with positions as law clerks and government coursework makes them not entirely useless.

[vamedic03]

Sorry if I overreacted. I thought you were just blindly agreeing with the other poster, who I took to be giving me the standard 0L hate thing.

FWIW, some 0Ls have taken courses at their law schools, which in conjunction with positions as law clerks and government coursework makes them not entirely useless.

It's not about the background knowledge. It's about the legal reasoning skills that you simply do not have until you've completed 1L year. The entire point of 1L is to teach legal reasoning. It's why law school exams are formatted they way they are and it's why some form of case study/socratic teaching is used for every introductory law school class.

So, simply being exposed to "government coursework" or being a paralegal does not provide someone with the legal reasoning tools to approach legal problems.

This entire posting started as an exercise that several of us chose to engage in that challenged our legal reasoning and jurisprudential skills. Further, as this progressed, it raised interesting federalism and federal courts issues. This was pretty much ruined when 0L's come in with long rambling posts that are relatively baseless.

[ResolutePear]

ITT: 0L bashing by law students and lawyers.

[thecynic69]

FWIW, some 0Ls have taken courses at their law schools, which in conjunction with positions as law clerks and government coursework makes them not entirely useless.

No. A thousand times no.

People who have put a band-aid on someone or taken first aid are not qualified to comment on how surgery should be performed or whether a cancer patient might recover. People who have changed their car's oil are not qualified to comment on how an transmission should be re-assembled. And people who have not gone to law school are not qualified to comment on how complex questions like this one are resolved. That you might have some kind of opinion on the matter is understandable, but also beside the point. Likewise the fact that you have taken some very basic coursework, which, I might add, was almost certainly not of the same depth or nature as actual law school classes.

I don't mean to be harsh, or to suggest that people who haven't gone to law school know nothing about how the law works. This isn't personal, and I do understand your genuine desire to just engage in an interesting conversation. That said, I hope you can appreciate just how difficult it can be when, in thread after thread, we have people coming in here who get the conversation off track by making comments which miss key points, confuse others, or rely on completely inapplicable doctrines. Like Donnie in The Big Lebowski, you guys are just "out of your element," so to speak, even if you do (also like Donnie) mean well in what you say. Soon enough you will begin law school and realize what I mean. And when you do, I assure you, there will be a new crop of 0Ls making the same points you are making here.

Saying no, a thousand times no, in response to my saying some 0Ls aren't completely useless is both harsh and the sort of thing that suggests people who haven't gone to law school know nothing about how the law works (or else, they could be at least minimally useful).

If you want to rag on 0Ls for saying dumb things, even temp ban 0Ls for responding to these threads in ways that get the convo way off topic or completely miss the mark, that is the discretion of the mods, and seems not a bad idea to me. But if a 0L, by some chance, says something on topic, etc., the response should not be so harsh. I feel like everyone in this thread could have neglected to mention US. v Lopez when discussing the powers of the ntnl gov under the commerce clause, and if a 0L had pointed out this obvious oversight, s/he would have been hated on for posting, all the same.

[thecynic69]

Sorry if I overreacted. I thought you were just blindly agreeing with the other poster, who I took to be giving me the standard 0L hate thing.

FWIW, some 0Ls have taken courses at their law schools, which in conjunction with positions as law clerks and government coursework makes them not entirely useless.

It's not about the background knowledge. It's about the legal reasoning skills that you simply do not have until you've completed 1L year. The entire point of 1L is to teach legal reasoning. It's why law school exams are formatted they way they are and it's why some form of case study/socratic teaching is used for every introductory law school class.

So, simply being exposed to "government coursework" or being a paralegal does not provide someone with the legal reasoning tools to approach legal problems.

This entire posting started as an exercise that several of us chose to engage in that challenged our legal reasoning and jurisprudential skills. Further, as this progressed, it raised interesting federalism and federal courts issues. This was pretty much ruined when 0L's come in with long rambling posts that are relatively baseless.

To say that being simply X or simply Y does not bring about result Z in response to my saying that X in conjunction with Y (and some other stuff) brings about a minimum level of Z is so non-responsive, idk what to say here. Not claiming to know everything, I'm claiming I know a thing or two that allowed me to post in a not completely retarded way.

Also, way to change law clerk to paralegal, to cheapen the proposed experience.

[vamedic03]

Sorry if I overreacted. I thought you were just blindly agreeing with the other poster, who I took to be giving me the standard 0L hate thing.

FWIW, some 0Ls have taken courses at their law schools, which in conjunction with positions as law clerks and government coursework makes them not entirely useless.

It's not about the background knowledge. It's about the legal reasoning skills that you simply do not have until you've completed 1L year. The entire point of 1L is to teach legal reasoning. It's why law school exams are formatted they way they are and it's why some form of case study/socratic teaching is used for every introductory law school class.

So, simply being exposed to "government coursework" or being a paralegal does not provide someone with the legal reasoning tools to approach legal problems.

This entire posting started as an exercise that several of us chose to engage in that challenged our legal reasoning and jurisprudential skills. Further, as this progressed, it raised interesting federalism and federal courts issues. This was pretty much ruined when 0L's come in with long rambling posts that are relatively baseless.

To say that being simply X or simply Y does not bring about result Z in response to my saying that X in conjunction with Y (and some other stuff) brings about a minimum level of Z is so non-responsive, idk what to say here. Not claiming to know everything, I'm claiming I know a thing or two that allowed me to post in a not completely retarded way.

Also, way to change law clerk to paralegal, to cheapen the proposed experience.

Unless you are:

(a) a law student in a summer position somewhere that terms their summer intern or summer associate a law clerk, or

(b) a judicial law clerk (i.e., a term clerk for judge or a career clerk for a judge),

I haven't "cheapened" your "proposed" experience by terming it a paralegal.

[vamedic03]

FWIW, some 0Ls have taken courses at their law schools, which in conjunction with positions as law clerks and government coursework makes them not entirely useless.

No. A thousand times no.

People who have put a band-aid on someone or taken first aid are not qualified to comment on how surgery should be performed or whether a cancer patient might recover. People who have changed their car's oil are not qualified to comment on how an transmission should be re-assembled. And people who have not gone to law school are not qualified to comment on how complex questions like this one are resolved. That you might have some kind of opinion on the matter is understandable, but also beside the point. Likewise the fact that you have taken some very basic coursework, which, I might add, was almost certainly not of the same depth or nature as actual law school classes.

I don't mean to be harsh, or to suggest that people who haven't gone to law school know nothing about how the law works. This isn't personal, and I do understand your genuine desire to just engage in an interesting conversation. That said, I hope you can appreciate just how difficult it can be when, in thread after thread, we have people coming in here who get the conversation off track by making comments which miss key points, confuse others, or rely on completely inapplicable doctrines. Like Donnie in The Big Lebowski, you guys are just "out of your element," so to speak, even if you do (also like Donnie) mean well in what you say. Soon enough you will begin law school and realize what I mean. And when you do, I assure you, there will be a new crop of 0Ls making the same points you are making here.

Saying no, a thousand times no, in response to my saying some 0Ls aren't completely useless is both harsh and the sort of thing that suggests people who haven't gone to law school know nothing about how the law works (or else, they could be at least minimally useful).

If you want to rag on 0Ls for saying dumb things, even temp ban 0Ls for responding to these threads in ways that get the convo way off topic or completely miss the mark, that is the discretion of the mods, and seems not a bad idea to me. But if a 0L, by some chance, says something on topic, etc., the response should not be so harsh. I feel like everyone in this thread could have neglected to mention US. v Lopez when discussing the powers of the ntnl gov under the commerce clause, and if a 0L had pointed out this obvious oversight, s/he would have been hated on for posting, all the same.

Well, this discussion wasn't about the powers of the federal government.

[vanwinkle]

Well, this discussion wasn't about the powers of the federal government.

Boom! Headshot.

[vanwinkle]

This is the Forum for Law School Students. Students should be free to discuss things here without 0Ls not only popping in but defending their right to participate despite not being law students. I've heard enough complaints about 0Ls derailing the conversation, so:

0Ls who continue to post in this thread, whether to participate or defend their "right" to be here, will be banned. Period. Ban length will depend on how much additional persuasion is necessary.

Non-0Ls may carry on.

[thecynic69]

This is the Forum for Law School Students. Students should be free to discuss things here without 0Ls not only popping in but defending their right to participate despite not being law students. I've heard enough complaints about 0Ls derailing the conversation, so:

0Ls who continue to post in this thread, whether to participate or defend their "right" to be here, will be banned. Period. Ban length will depend on how much additional persuasion is necessary.

Non-0Ls may carry on.

Alrighty then. Thanks mmribail for throwing me a bone. Wanted to point out my use of "could have" in my post about Lopez--wasn't talking about what actually happened, and ganging up on me as if I did was unnecessary, but w/e--the powers that be have spoken. Later folks.

[mmribail]

This is the Forum for Law School Students. Students should be free to discuss things here without 0Ls not only popping in but defending their right to participate despite not being law students. I've heard enough complaints about 0Ls derailing the conversation, so:

0Ls who continue to post in this thread, whether to participate or defend their "right" to be here, will be banned. Period. Ban length will depend on how much additional persuasion is necessary.

Non-0Ls may carry on.

Alrighty then. Thanks mmribail for throwing me a bone. Wanted to point out my use of "could have" in my post about Lopez--wasn't talking about what actually happened, and ganging up on me as if I did was unnecessary, but w/e--the powers that be have spoken. Later folks.

Yeah, I personally do not care whether the person is an OL or a judge. If a person makes a solid argument well...they make a solid argument. As I said above, your argument was not perfect; however, I have seen a lot worse. Even from law students.

As for whether the topic involved federal powers or not to be fair didn't it? The question itself is centered on whether a state can decriminalize murder, but implicitly the logical next question to ask is whether the feds could step in and prevent a state from doing so. So yes, the question is at least in part about federal powers. The commerce clause IS a federal congressional power.

Finally, yes OLs usually about 90% of the time do not know what the hell they are talking about. Just look at the stupid OL that first responded to this topic. He/she said that the state obviously cannot decriminalize murder in somewhat of a arrogant way. However, the real answer was far from obvious. In fact, up until recently I believed that the state could.

[vanwinkle]

This is the Forum for Law School Students. Students should be free to discuss things here without 0Ls not only popping in but defending their right to participate despite not being law students. I've heard enough complaints about 0Ls derailing the conversation, so:

0Ls who continue to post in this thread, whether to participate or defend their "right" to be here, will be banned. Period. Ban length will depend on how much additional persuasion is necessary.

Non-0Ls may carry on.

Alrighty then. Thanks mmribail for throwing me a bone. Wanted to point out my use of "could have" in my post about Lopez--wasn't talking about what actually happened, and ganging up on me as if I did was unnecessary, but w/e--the powers that be have spoken. Later folks.

24 hour ban, blatant disregard of mod warning.

Note: To reduce thread derailment, if you have a problem with this, bring it up in the mod Q&A thread or a PM, NOT here. This is also a warning.

[Renzo]

This is the Forum for Law School Students. Students should be free to discuss things here without 0Ls not only popping in but defending their right to participate despite not being law students. I've heard enough complaints about 0Ls derailing the conversation, so:

0Ls who continue to post in this thread, whether to participate or defend their "right" to be here, will be banned. Period. Ban length will depend on how much additional persuasion is necessary.

Non-0Ls may carry on.

Alrighty then. Thanks mmribail for throwing me a bone. Wanted to point out my use of "could have" in my post about Lopez--wasn't talking about what actually happened, and ganging up on me as if I did was unnecessary, but w/e--the powers that be have spoken. Later folks.

24 hour ban, blatant disregard of mod warning.

Note: To reduce thread derailment, if you have a problem with this, bring it up in the mod Q&A thread or a PM, NOT here. This is also a warning.

What if I don't have a problem with it? Can I bring that up here, or am I also warned?

[Fark-o-vision]

ITT: Mod derails thread by threatening to ban 0L's who derail thread by posting in a forum "for law students." (accepted to law school? Enrolled in law school? Attending law school? Having completed a year of law school? The definition seems loose. Clarification would be appreciated).

Oh, and I get banned.

[Anonyme]

This may be too simple, but what about the 5th Amendment? Obviously it exists to prevent the abuse of authority on the government's end; but might there be a so-called "fundamental rights" basis for a case here?

[vanwinkle]

Oh, and I get banned.

Correct.

It was already stated that people could discuss it in the mod Q&A thread or PMs, but not this thread. People who disregard this second warning get even longer bans. You can discuss it, just not here.

[vanwinkle]

This may be too simple, but what about the 5th Amendment? Obviously it exists to prevent the abuse of authority on the government's end; but might there be a so-called "fundamental rights" basis for a case here?

Don't alt, Verity.