The last of the Insular Cases

Balzac v. Porto Rico, decided in 1922, was the last of the Insular Cases. First off, notice how the island is referred to as “Porto Rico” in the name of this case. This is because the United States had changed the island’s official name to Porto Rico for some reason when the U.S. acquired her in 1898 at the conclusion of the Spanish-Cuban-American War. The defendant in this case was Jesús Maria Balzac y Balzac, the editor of a newspaper called El Baluarte. The Government of Puerto Rico had charged Mr Balzac of criminal libel after he had written and published an article criticizing the governor of island. Mr Balzac then demanded a jury trial, arguing that the provisions of the U.S. Constitution, including the Sixth Amendment right to a jury trial, applied to Puerto Rico. After all, Puerto Rico was a U.S. territory, and the Congress had recently granted U.S. citizenship to all persons born in Puerto Rico under the Jones Act of 1917, so how could the insular government deny her U.S. citizens the right to a jury trial or any other constitutional right, for that matter? Mr Balzac’s appealed his case all the way up to the Supreme Court of the United States (SCOTUS), but as we shall see in my next few posts, the justices of that august forum–including such supposed champions of civil liberties as Louis Brandeis and Oliver Wendell Holmes–would find a way of denying Mr Balzac of his most basic constitutional rights.

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Juries and Puerto Rico

Following up on our previous two posts, how will the case of Ramos v. Louisiana be decided? Although second-guessing SCOTUS is always a perilous business, based on what I heard during the oral arguments in this case, I will venture two guesses: SCOTUS will not only conclude that the Sixth Amendment requires jury verdicts to be unanimous in criminal cases; SCOTUS will also rule that the Sixth Amendment applies to the states.

But how would such a ruling affect Puerto Rico? Specifically, how would the Sixth Amendment apply to Puerto Rico? Like Louisiana, Puerto Rico allows juries to render non-unanimous verdicts in criminal cases. Puerto Rico, however, is not a State; it is still a territory under the jurisdiction of the United States, and SCOTUS has previously ruled in a series of racist decisions known collectively as the “Insular Cases” that the full Constitution does not apply to Puerto Rico, including the right to a jury trial, because Puerto Rico is supposedly an “unincorporated territory” of the United States–a category that was entirely invented out of thin air by SCOTUS in the early 1900s to justify Puerto Rico’s second-class colonial status at the time. (Professor Bartholomew Sparrow has written an entire book about this series of shameful cases; see book cover below.) Personally, I am hoping SCOTUS will use the occasion of Ramos v. Louisiana to overturn these discredited Insular Cases, especially the infamous case of Balzac v. Porto Rico. With the possible exception of Dred Scott v. Sandford or Prigg v. Pennsylvania, the Balzac case has to be one of the worst and ugliest SCOTUS decisions of all time. I will delve into the facts of the Balzac case in my next post.

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Should jury verdicts be unanimous?

What about the decisions of the Supreme Court of the United States (SCOTUS)? The case of Ramos v. Louisiana, which was argued before the Supreme Court yesterday (7 Oct.), poses these questions and many more, including questions involving stare decisis (when may a court disregard or overrule its own precedents?) and the common law background of the Constitution (what parts of the common law are enshrined in the Constitution?), issues that I will discuss in my next few posts.

In any case, because of my fascination with juries and our common law jury system, with the rule of stare decisis, and with our nation’s constitutional history, I attended the oral arguments in Ramos v. Louisiana. Amy Howe’s analysis of how the arguments in this case played out is very good (see here), but there is one thing she left out. At one point during the petitioner’s oral argument, Chief Justice John Roberts posed a fascinating question. I will rephrase his question as follows: if you were accused of a crime and your case went to trial, which of the following options would you prefer?

(a) a six-man jury with a unanimity requirement to convict,

(b) a 12-man jury with a three-fourths super-majority requirement, or

(c) a 24-man jury with a two-thirds super-majority requirement?

Isn’t the right answer obvious? Under option (a), you will be convicted of the crime only if all six members of the six-man jury find you guilty beyond a reasonable doubt; under option (b), you will be convicted if at least nine members of the 12-man jury find you guilty; and under option (c), you will be convicted if at least 16 members of the 24-man jury find you guilty. However you answer the above question, jury voting also raises some perplexing questions about voting by judges on multi-judge panels like SCOTUS and the federal courts of appeals. Specifically, why do the justices of the Supreme Court as well as appellate judges use simple majority voting when they are deciding their cases? Put another way, why don’t appellate courts consider using super-majority voting rules or consider requiring unanimity when rendering their decisions?

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Image credit: W. S. Gilbert

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Dispatch from the Supreme Court

Does the Constitution require jury verdicts in federal or state criminal cases to be unanimous? Given my interest in jury voting and voting methods generally, I was able to attend the oral arguments in Ramos v. Louisiana this afternoon and will write up and post a complete report on this case in the next day or two …

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Archways of North America

Top: National Cathedral, Washington, DC

Middle: Rollins College, Orlando, FL

Bottom: University of Pennsylvania, Philadelphia, PA

Photo credits: F. E. Guerra-Pujol

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The Problem with Pigou

Our friend and colleague John Nye, who teaches economics at George Mason, has published a powerful critique of so many proposals calling for Pigovian taxes, i.e. taxes designed to reduce harmful externalities such as carbon emissions. You can read Professor Nye’s essay here. Below is an excerpt:

Even if we insisted on a Pigovian tax as a precautionary measure, it would make sense only if it replaced all preexisting subsidies, taxes, and regulations rather than being added on top of existing arrangements. Moreover, a truly scientific proposal would also make clear under what circumstances the Pigou tax should be lowered as well as raised.

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Doll house crime scenes

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