To understand what we face in trying to hold federal agents accountable for their misconduct, we need to examine the legal foundations.
Citizenship is not defined in the 14th Amendment. That is a
common misunderstanding, and we need to dispel it. The definition of
citizenship goes back 2000 years to Roman law. In
countries with a feudal system the word "subject" was often
substituted for "citizen" without changing its essential meaning.
(There were countries with republican forms of government throughout
the Middle Ages where the word continued to be used.) The term was
further clarified by English legal scholars, particularly Edward
Coke and William
Blackstone, who were the main authorities cited by the Framers
when they wrote the Constitution and Bill of Rights.
Prior to the Supreme Court Dred
Scott decision that departed from original understanding
of citizenship, it was generally understood that a citizen was any
individual born or residing anywhere on U.S. national soil who did
not owe allegiance to either a foreign nation, or to a "domestic
nation" that did not accept U.S. law (unassimilated Native
Americans). One did not have to be a citizen of a state. One could
be a citizen of a U.S. territory, which were initially the Northwest
and Southwest territories, before we added the Louisiana Territory,
Texas, and then the territories ceded by Mexico and Britain, and the
territory sold to us by Russia (Alaska).
The problem created by the Dred Scott decision was that it
tried to deny rights to blacks by holding that, while they were
persons, the rights recognized in the Constitution and Bill of
Rights attached only to citizens, not persons, and that they were
not citizens. Textually, that is emphatically wrong. The
Constitution is quite clear that the rights attach to persons, and
not just citizens. But now there was that precedent, and courts,
especially in the South, began to reinforce it with their own
decisions based on it.
So the 14th Amendment was adopted to correct the mistake made in the
Dred Scott decision. It was also adopted to correct another
decision considered erroneous, that of Barron v.
Baltimore, which denied that federal courts had
jurisdiction to decide cases between a citizen and his state over
infringement by the state of any of his rights recognized by the
Constitution or Bill of Rights. The intent of the 14th Amendment was
to extend the jurisdiction of federal courts to such cases, although
it was not as clear in its wording on this point as we might wish.
Because it was not clear enough, the Supreme Court in the Slaughterhouse
Cases refused to recognize that broad extension and
began selectively extending it one right per case, which has come to
be called "selective incorporation". The break came in the case of Hurtado v.
California, where the court refused to extend it to
include the right to a grand jury. That began a long line of cases
where federal court jurisdiction was extended for some rights and
not for others, creating the doctrinal mess we have today.
This led to the mistaken notion that rights are not incorporated
unless the Supreme Court decides they are in a case. That is
mistaken because it treats the Court as a lawmaker rather than as a
law discoverer. A less incorrect notion might be that a right is
incorporated unless the Court finds it is not, but the correct
position is that they all are whether the Court so finds or not.
The most recent such finding was McDonald
v. Chicago, which found that the jurisdiction of federal
courts extends to infringements of the Second Amendment by a state,
and held the Chicago ordinance prohibiting possession of firearms to
be unconstitutional. However, they did so by citing the due process
clause of the 14th Amendment, not the privileges
or immunities clause, which would have had the effect of
incorporating all rights, not just that one. Justice Thomas
dissented on that point, arguing it should have been based on the
privileges or immunities clause.
One can argue that one of the ways the 14th Amendment was unclear or
incomplete was that it only authorized civil or criminal prosecution
of state agents, not federal. This omission goes back to the original
Constitution, where it provides that federal officials can be
removed from office for "treason, bribery, or high crimes or
misdemeanors", but only explicitly delegates to Congress the power
to legislate the punishment of treason among these offenses by a
federal official. The omission seems to have arisen from an unstated
assumption that it would be within federal jurisdiction to prosecute
these as "common law crimes" without an explicit delegation of
legislative authority. But the Supreme Court in U.S. v.
Hudson correctly held that there can be no prosecution
of common law crimes, and that there must always be a criminal
statute authorized by the Constitution. That means no prosecution
for many kinds of crime that would be prosecutable in state courts,
such as perjury, fraud, theft, or murder, as well as bribery or high
crimes or misdemeanors.
The term of legal art, "high crime or
misdemeanor", can include ordinary crimes, but also includes
offenses peculiar to officials, like perjury of oath, dereliction of
duty, failure to supervise, abuse of authority, or conduct
unbecoming. You may recognize them as offenses under the Uniform Code
of Military Justice, which preserves that legal legacy in ways
that civilian law often does not.
So we have a gaping hole in constitutional authority, not just
created by the precedent of In re
Neagle, that does not include authority to criminally
prosecute federal agents for things they might do. That precedent
denies the authority to the states under state laws while the
offender remains in federal service. Congress has passed statutes
making some acts by federal agents crimes, and the courts have
enforced them, but if the constitutional issue were ever decided
strictly on constitutional grounds, all those prosecutions would
have to be dismissed. All that might be done would be to remove the
federal agent from his position, and then prosecute him under state
law, if he committed the offense in a state, or under the laws of a
territory, such as the District of Columbia, if it occurred there,
but not while he still remains a federal agent.
There is one precedent, Bivens v. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971), in which abused citizens finally won money damages
against federal agents for violating their rights, after a long
struggle to get to the Supreme Court. It might offer a ray of hope, but
the damages would be paid, if one ever managed to collect, from the
government and not from the agents individually, and it is only a civil
tort claim, not a criminal prosecution that might correct or deter
individual misconduct. A federal judge can just reduce the money damages
to a point where it is not worth the cost to collect it.
Needless to say, this is an intolerable situation, and I have
addressed it in a proposed
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