Constitutional law roundup

  • Kansas Supreme Court rules 4-3 that cops can conduct warrantless search of private homes if they say they smell marijuana. Practical difference between this and “…whenever they please” is not clear [Tim Carpenter, Topeka Capital-Journal] More: Jacob Sullum;
  • At Timbs v. Indiana oral argument, Court seems sympathetic to idea of applying Excessive Fines clause to the states [Robby Soave, Jacob Sullum, Ilya Somin, earlier here, here, and here] Notwithstanding Justice Gorsuch and Kavanaugh’s interjections, there is and has been no uniform incorporation of the entire Bill of Rights against the states [Rory Little]
  • Arizona Supreme Court should recognize that First Amendment protects right of calligraphic art studio not to be forced to draw invitations and vows for wedding ceremony of which owner/artists disapprove on religious grounds [Ilya Shapiro and Patrick Moran on Cato Institute amicus brief in Brush & Nib Studio v. City of Phoenix]
  • Claim: notwithstanding SCOTUS precedent to the contrary, U.S. Constitution contains no general federal power to restrict immigration [Ilya Somin and others, Cato Unbound symposium, more]
  • “The Supreme Court Really Needs to Start Defining the Scope of the Second Amendment” [Ilya Shapiro and Matthew Larosiere on Cato amicus brief in Mance v. Whitaker, interstate sales by gun dealers] “Bump Stock Rule Bumps Up Against the Constitution” [Shapiro and Larosiere] “The Most Common Firearm in America is Not a ‘Weapon of War’” [same on Cato amicus brief in Worman v. Healey, Massachusetts ban on “assault weapons”] Federal court strikes down as unconstitutional New York’s ban on nunchaku [AP, Lowering the Bar with previous coverage of lawyer’s quest]
  • “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.” That’s a recently adopted provision of the New Hampshire constitution. Now what does it mean? [David Post]


  • “Notwithstanding Justice Gorsuch and Kavanaugh’s interjections, there is and has been no uniform incorporation of the entire Bill of Rights against the states [”

    That doesn’t seem to be a fair shot at the justices—the Eighth Amendment has, and their point was more along that lines that the “ship has sailed.”

  • RE: Kansas

    Wasn’t Kansas the state in which cops mistook tea for marijuana?

  • The Kansas marijuana case is confusing. Marijuana smoke has a pungent smell, distinctive enough to establish probable cause (though I have been told that burnt tea is sometimes similar). Why couldn’t the cops say they smelled marijuana smoke, rather than blatantly lying about their ability to smell “raw” marijuana in a sealed container?

    • You can still smell raw marijuana in a sealed container. It’s just that strong.

      • I would suppose that depends on the nature of the container itself.

        In this case it was in two sealed containers; a Tupperware container which was insider a closed and locked safe.

        On top of that, it was at least 30 feet from where the officer claimed to have first smelled it.

        Count me skeptical that any human could have smelled it under those conditions, no matter how strong the odor is from the raw product.

  • Sullum’s piece shows, to be blunt, that the law is an ass. Actually, it isn’t the law. It is a court decree, and there is a different. Law has a component of rationality and legitimacy. Relying on the superhuman snout of a cop isn’t the same as the “fertile octagenarian” or other legal fiction, it is an affront to a free society.

    I have been criticized in this forum for being somewhat over the top in criticisms—but what is the proper response when an obviously bogus search gets the stamp of approval from the highest court in the state–a snide reference to “the learned judges?” A call to civility, in my view, often mitigates the force of justified criticism. And I get that it is important that the judiciary be respected, but it’s not a categorical imperative, and where a lack of respect results from decisions such as these, we should be careful not to mistake a symptom for a cause.

    The upshot, in my view, is that the legal system is supposed to be the guardian of our rights under a constitutional republic and when it obviously fails at that duty, it should be ruthlessly criticized.

  • Section 8 – Powers of Congress
    To establish an uniform Rule of Naturalization,

    Section 9 – Limits on Congress
    The Migration or Importation of such Persons as any of the States now existing shall
    think proper to admit, shall not be prohibited by the Congress prior to the Year one
    thousand eight hundred and eight

    Ilya Somin consistently says there is no general power to restrict immigration.

    Section 9 is recognized as dealing primarily with slaves and slavery, however- it doesn’t say slaves. It refers to both migration and importation. Slaves were imported. Migrants were not. They migrate. That is, they’re immigrants. So post 1808, Congress has the power to restrict and regulate immigration in any way it wants. And it goes hand-in-hand with Section 8. If you’re going to bring in immigrants, and allow them to naturalize, they should be immigrants who can be naturalized. I think coming into the country lawfully should be a first requirement.