Obstacles to holding federal agents accountable

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 amendment.