But the USSC has held that the government has no duty to act in general, only
in limited cases such protecting witness or people in custody. So, your claim
"you can't say . . . " is wrong.
The notion of "positive protection" is a perversion of the Constitution and not
the basis for making your hypotheticals illegal acts for Congress. This
"positive protection" idea appears nowhere in the Constitution, but due process
and separation of powers are in it and your hypotheticals violate both by
creating laws to decide legal disputes and to reduce the people to a state of
nature wherein life and property are not protected. Also, denial of due
process is an act of government, denial of a right of an individual.
Individuals may obstruct justice or murder etc., but individuals do not deny
due process by the act of self-defense. And to suggest that such acts being
not criminalized is a denial of due process is wrong too since such acts are
investigated, unless you believe due process is delivered by trials only.
Phil
________________________________
From: "Volokh, Eugene" <[email protected]>
To: Phil Lee <[email protected]>; "[email protected]"
<[email protected]>
Sent: Thursday, May 9, 2013 9:32 AM
Subject: RE: New approach
If my hypotheticals are obvious illegal acts if offered by
Congress, being denials of due process, that must be because stripping someone
of positive protection – the protection given by the criminalization of attacks
on or thefts from that person – is indeed a denial of due process. And that
suggests that allowing people to kill those who are stealing from them, or
burglarizing their homes, or some such might be a denial of due process, too.
That it isn’t a denial of due process stems from various factors, including the
historical recognition of self-defense principles. (Similar historical
exceptions may justify situations where the government is affirmatively killing
people, such as in the war example.) My point has simply been that you can’t
say “no problem with allowing killing in self-defense or defense of property,
because that’s just the government not acting, and the government has no duty
to act.”
Eugene
From:Phil Lee [mailto:[email protected]]
Sent: Wednesday, May 08, 2013 10:49 PM
To: Volokh, Eugene; [email protected]
Subject: Re: New approach
Under our Constitution issuing a bill of attainder is a crime in the form of a
legislative act.
Similarly, your hypotheticals are obvious illegal acts if offered by Congress,
being denials of due process.
I suspect the real issue is our government's claim to lawfully kill people
suspected of waging war against the US. That, and my wanted dead or alive
posters would lead to better hypotheticals, the justification being that war
powers give the government the power in one case and in the other the
apprehension is too dangerous.
Phil
________________________________
From:"Volokh, Eugene" <[email protected]>
To: Phil Lee <[email protected]>; "[email protected]"
<[email protected]>
Sent: Thursday, May 9, 2013 1:32 AM
Subject: RE: New approach
But what differentiates a “bill of attainder” from lots of
other government actions targeting a particular person is precisely that “bills
of attainders” are inflictions of punishment that should normally require due
process. By saying that legislatively-imposed outlawry of a particular person
is a bill of attainder, you are saying that withdrawal of criminal protection
is a punishment that requires due process.
But let’s set aside the named person, and turn to any of my
other hypotheticals. “It shall not be a crime for squatters to kill anyone
trying to nonlethally evict them.” “It shall not be a crime for anyone to
steal from diamond merchants.” “It shall not be a crime for anyone to kill
anyone who has been accused of rape.” “It shall not be a crime for anyone to
lock up indefinitely anyone who has been accused of rape but found not guilty
as a result of a technicality.” No deprivation of life, liberty, or property
without due process?
As to the shooting of fleeing felons, that of course involves
positive government action, not just withdrawal of protection, so it’s not
really on point. And of course using deadly force to apprehend nonviolent
criminals has been held to violate the Constitution, see Tennessee v. Garner.
Eugene
From:Phil Lee [mailto:[email protected]]
Sent: Wednesday, May 08, 2013 10:26 PM
To: Volokh, Eugene; [email protected]
Subject: Re: New approach
The example is "only" an illegal "legal punishment for a crime" being a power
specifically denied to Congress and a crime that represents a conspiracy by
selected federal employees.
You may wrap your mind around this illegal-legal construction, but I'm not down
the rabbit hole, yet.
And, protection has been withdrawn for murderers, example a criminal shoots a
person killing that person, throws down his gun and runs, the USSC has held
that police may use deadly force to apprehend the criminal even though no due
process was given.
Phil
________________________________
From:"Volokh, Eugene" <[email protected]>
To: Phil Lee <[email protected]>; "[email protected]"
<[email protected]>
Sent: Thursday, May 9, 2013 1:09 AM
Subject: RE: New approach
But the hypothetical I gave is only an unconstitutional “legal
punishment for a crime” if withdrawal of legal protection counts as punishment
that requires due process. And that’s the article’s claim: That withdrawal of
legal protection in certain cases requires due process.
This also responds, I think, to the point that the Constitution
generally doesn’t define crimes. True enough. But if state law makes murder a
crime, then denying that protection to named people without a trial is
unconstitutional (as a bill of attainder), precisely because denial of existing
protections – including the protections offered by criminal law – constitutes
punishment for which due process is required. Likewise, if state law makes
theft a crime, then saying “anyone is free to take any diamond merchant’s
property, without risking criminal punishment for it” would deny the merchants
property without due process.
Eugene
_______________________________________________
To post, send message to [email protected]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
