Volume 26, Issue 2
Volume 26, Number 2 Winter 1999
Table of Contents
ARTICLES
The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States’ Affairs, or a Sorry State of Affairs?
By Brannon P. Denning & Jack H. McCall, Jr.
Since the mid-1990s, many state and local governments have enacted a host of laws barring local governments' procurement of goods and services from persons doing business with certain pariah governments, including Burma (Myanmar), the People's Republic of China, Cuba, Nigeria and even Switzerland. Though ostensibly patterned after earlier laws, most notably longstanding "Buy American" laws and anti-apartheid laws of the 1980s, the latest wave of subnational sanctions statutes and ordinances is much broader in scope and application, raising troubling questions as to the constitutionality of such laws. An example is a Massachusetts statute forbidding the award of state contracts to companies with business ties to Myanmar. In November 1998, in National Foreign Trade Council v. Baker, the federal District Court for Massachusetts held that the statute encroached upon the Constitution's assignment of plenary authority over foreign affairs to the federal government. The Baker decision has opened the possibility that many other examples of these laws will now be subjected to constitutional challenge.
In this article, the authors analyze the constitutionality of state and local procurement sanctions on various grounds. The authors argue that such sanctions not only act as an unconstitutional infringement on the foreign affairs powers reserved to the federal government, as the Baker court held, but that they also violate the dormant Foreign Commerce Clause by impermissibly burdening foreign commerce. Contrary to suggestions that subnational sanctions are defensible under the "market-participant" exception to the dormant Commerce Clause, the authors conclude that such activities fall outside the intended scope of that exception.
The Rights to a Fair Trial and to Examine Witnesses Under the Spanish Constitution and the European Convention on Human Rights
By Dennis P. Riordan
In the wake of the death of dictator Francisco Franco in 1975, Spain enacted a new Constitution containing extensive procedural rights for criminal defendants, thereby in theory moving its justice system closer to the adverserial model of criminal trials long established in common law countries. In the years immediately following the passage of the 1978 Constitution, however, criminal proceedings continued to be inquisitorial in nature, especially in cases involving politically-charged allegations of domestic terrorism.
In this article, the author tracks one such case that had a dramatic impact on the Spanish legal system. Following their conviction for participating in a politically-motivated kidnapping for ransom, the defendants pursued appeals unsuccessfully through the Spanish courts before turning to the European Court of Human Rights in Strasbourg for redress. In Barberà, Messegué and Jabardo v. Spain, the ECHR held that Spain had denied the defendants a fair trial, in part by convicting them on the basis of evidence not subject to cross-examination. The author argues that the Barberà decision has promoted recognition in Europe’s civil law democracies of the common law right to confront adverse witnesses. The author then examines the subsequent decision of the Spanish Constitutional Tribunal accepting the ECHR ruling and awarding the defendants a new trial. He asserts that the ruling of the Tribunal confirmed the significance of Spain’s international treaty obligations in domestic law and cemented a defendant’s right to confront witnesses in its criminal justice system.
Section Three of the Defense of Marriage Act: Is Marriage Reserved to the States?
By Kristian D. Whitten
It seems clear that the Framers of the Constitution of the United States believed that laws defining and regulating marriage were among the "numerous and indefinite" powers reserved to the states. Early U.S. Supreme Court decisions echoed that sentiment, and as recently as United States v. Lopez, the Court has cited regulation of domestic relations as a quintessentially state power. In 1996 Congress and the President reacted to the possibility that Hawaii might license same-sex marriages by enacting the Defense of Marriage Act, Section 3 which defines the words "marriage" and "spouse" for all federal laws, regulations and programs. This is the first time in our history that such definitions have been promulgated by the federal government; until DOMA, the states’ determination of marital status had been used to determine rights and obligations under federal law. Congress was careful to apply DOMA’s definitions to federal law only, for fear that mandating them to the states would be unconstitutional. This Article argues that, because of the supremacy and pervasiveness of federal regulation, the practical effect of DOMA’s definitions is to mandate them to the states, thus rendering Section 3 of DOMA an unconstitutional invasion of reserved state powers.
California’s Sexually Violent Predator Act: The Role of Psychiatrists, Courts, and Medical Determinations in Confining Sex Offenders
By Carolyn B. Ramsey
This article explores tensions between law and psychiatry after the California Supreme Court’s affirmation of the Sexually Violent Predator Act ("SVPA") – a statute providing for the involuntary civil commitment of sex offenders at the end of their prison terms. The United States Supreme Court upheld a similar Kansas law in 1997. Following a brief discussion of the SVPA’s constitutionality, the article considers three issues in greater detail: (1) the sex offender’s right to treatment during civil confinement, (2) potential problems with finding a right to refuse treatment, and (3) the need to reconcile the standard for civil confinement under the SVPA with the legal definition of insanity at the guilt phase.
Federal right-to-treatment case law offers a means to enforce the SVPA’s therapeutic provisions and ensure that it serves a civil, rather than penal purpose. However, sex offenders do not have a constitutional right to either be cured, if no completely successful therapy exists, or to refuse treatment. Finally, the adoption of the guilty but mentally ill ("GMBI") verdict, paired with psychiatric treatment of GMBI inmates, is suggested to harmonize the SVPA with guilt determinations. Rather than attacking the SVPA’s constitutionality, this article urges the courts, the legislature, and the psychiatric profession to seek to curb sexual violence within the parameters of the statute.
NOTE
Scared to Death: The Separate Right to Counsel at Capital Sentencing
By John E. Spomer, III
To date, a separate right to counsel at the penalty phase of a capital trial is not recognized as fundamental under the Sixth Amendment right to counsel provision. This Note addresses a capital defendant’s constitutional right to have a separate attorney represent him during the sentencing stage. The Supreme Court, in several significant holdings, has stepped towards recognizing this right. The Court has held that the right to counsel applies to capital trials and to all critical stages therein. It also has held that the right to effective assistance of counsel applies at the sentencing phase of these trials and that capital sentencing must comport with the slippery notion of due process. In addition, the procedural and evidentiary components that make up the sentencing phase signify that the sentencing phase is, indeed, a separate trial. In response to these facts, the Court has held that the double jeopardy clause applies to the capital sentencing "trial." Therefore, a defendant’s decision regarding his right to counsel at the guilt phase of a capital trial should under no circumstances bind him in the sentencing phase. Hence, this Note concludes that the Sixth Amendment’s right to counsel