What would prevent a US judge from condeming someone to slavery according to the 13th amendment? Let us assume that a particularly perverted judge (or a subversive one seeking to make a public case) condemns a convicted criminal to slavery, according to the 13th amendment that seems to allow for such a possibility: 13th Amendment of US Constitution Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Setting aside the highly hypothetical details of what that slavery would actually entail, but assuming it is distinct from classical imprisonment, is there anything that could prevent the judge from doing so? And how would one appeal against this decision? My (overly simplistic) reasoning as a person without background in law is that this article being in the constitution, it would be hard to over-turn it, even on the basis of the US adherence to the Convention to Suppress the Slave Trade and Slavery?
A judge can only impose sentences as prescribed by law. Suppose, as a random example, that a person is convicted in federal court of fraudulently mutilating coins, in violation of 18 USC 331. That section of the statute states the punishment for such a violation: ...Shall be fined under this title or imprisoned not more than five years, or both. The scale of fines is to be found at 18 USC 3571; for this crime, which is a felony, the maximum fine would be $250,000 (with certain exceptions, which let us suppose do not apply here). So in principle, the judge may sentence the offender to any of the following: Five years in prison and a fine of $250,000 Five years in prison and no fine Three days in prison and a fine of $6.25 No prison and a fine of $5000 You get the idea. (In practice, the judge is likely to follow official sentencing guidelines, but is not legally required to do so.) But the judge may not sentence the offender to any of the following, because the statute does not authorize it: Death A fine of $250,000.01 Five years and one day in prison Wearing a silly hat for a week Slavery I do not know of any federal criminal statute authorizing slavery as a punishment for any crime, so therefore, a federal judge cannot impose this sentence. Congress could in principle create such a law, and if they did it would not violate the Thirteenth Amendment, but they have not done so. (The Eighth Amendment might be a separate question, as slavery might very well be considered a cruel and unusual punishment by today's courts. And as you point out, such a law might also be in violation of treaty obligations.) (I assume here that &quot;slavery&quot; is understood to be something distinct from &quot;imprisonment&quot;, although I know some would disagree.)
Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception.
I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this.
The first thing to note is that your question is kind of the wrong way around. US states are sovereign and generally have the ability to make any kind of laws they want, unless they violate some specific tenet of federal law or the US Constitution. You suggest, for instance, that arguments which are "culturally founded" have no place in the law, but that's just your opinion, and there isn't generally anything preventing a state from making law based on such things, should its elected legislature see fit to do so. (Indeed, one could argue that nearly all laws are in some sense "culturally founded", since they are based on some notion of what kind of behavior is or is not appropriate, and those tend to be culturally based.) So legally speaking, the states aren't, by default, obligated to give any sort of justification for the laws they made. The burden of proof is on the other side. Someone seeking to overturn those laws would have to convince a court that the laws violated some specific provision of the Constitution (or another superior law). If they couldn't convince a court of this, the law would stand. From what I have read, before the US Supreme Court's 2015 legalization of same-sex marriage in Obergefell v. Hodges, the previous precedent was set in 1971 by the Minnesota Supreme Court in Baker v. Nelson. The decision itself is quite short and is worthwhile to read. Quoting Wikipedia's summary, the plaintiffs claimed that Minnesota's restriction of marriage to opposite-sex couples violated several provisions of the US Constitution: First Amendment (freedom of speech and of association), Eighth Amendment (cruel and unusual punishment), Ninth Amendment (unenumerated right to privacy), and Fourteenth Amendment (fundamental right to marry under the Due Process Clause and sex discrimination contrary to the Equal Protection Clause). The Minnesota court determined that none of the plaintiffs' objections were valid. Again, I'll refer you to the decision for the details, but the court mainly focused on their Fourteenth Amendment arguments (the others may have been addressed by the trial court, whose opinion I can't find online). They wrote: The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. They specifically rejected any analogy to bans on interracial marriage, which had been held unconstitutional in Loving v. Virginia: But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. Baker appealed to the US Supreme Court, but his appeal was dismissed "for want of a substantial federal question," without any further explanation. (Nobody quite seems to understand what they meant by that, but here is an essay discussing the situation in a little more depth.) The effect of the dismissal was that the Minnesota court's decision became binding precedent upon the whole nation - laws against same-sex marriage didn't violate those provisions of the Constitution. And that was how matters stood for 44 years until Obergefell. (Of course, there was nothing to stop individual states from deciding to allow same-sex marriage, and some in fact did so in the meantime.) You have suggested that laws against same-sex marriage were religiously motivated. This might suggest an argument that they would violate the Establishment Clause of the First Amendment. The plaintiffs in Baker didn't raise that point, so it wasn't considered in the Minnesota court's opinion. I don't know whether any other courts have considered it; no such argument was mentioned in the opinion in Obergefell.
An individual does not have authority to "issue" a restraining order. In the U.S. only judges can issue such orders. The guidelines and policies for obtaining a restraining order vary by jurisdiction, although in the end a judge can issue any order he wants. So in theory you might be able to find a judge who will issue an order for any or no reason. In practice I'd be surprised if many judges would abuse their office to gratuitously harass people in this fashion, though there are probably a few amusing/disturbing examples out there to the contrary.
We have all see on TV the judge instruct jurors that during trial they are not to speak about the case with anyone, even other jurors, unless all jurors are present and they are deliberating. However, contrary to the example given about England, in the U.S., those restrictions evaporate at the end of the trial. After a trial concludes, the court has no continuing control over the jurors and could not impose lasting restrictions without it. The Constitution provides the guarantee of trial by a jury of ones peers. In the U.S. for all general civil cases and all criminal cases, we have public trials. (special courts and tribunals are created to deal with cases involving classified information and issues of national security, and the courts have mechanisms for handling trade secrets, etc. to insure that information is not presented to jurors) So in that sense, there is nothing a juror could be exposed to in during their service as jurors that would require any type of continuing restriction.
Probably not. There is an unenumerated constitutional &quot;right to travel&quot; (which has been recognized in case law, and has not yet been judicially overruled) and there is also a concept called the &quot;dormant commerce clause&quot; which prohibits legislation by a state that interferes with the ability of people to engage in interstate commerce even if Congress has passed no relevant legislation. There could also be a privileges and immunities clause argument arising under the original 1789 constitution and not the 14th Amendment to that document privileges and immunities clause, which affords people from outside a state the same rights as people in a state. Also, citizens of a state are defined as its residents, so a state only has jurisdiction over someone as a citizen for so long as they reside there. I was born in Georgia, for example, but haven't lived there since I was six years old, so I am not a citizen of Georgia. The proposed Texas law bears some similarity to the Mann Act of 1910 which prohibits transporting people across state lines for the purposes of prostitution (to slightly oversimplify). But the Mann Act is a federal law, not a state law. The proposed Texas law also bears some similarity to the infamous Fugitive Slave Act of 1850 which required free states to respect the slave status of people treated as slaves in a slave state under the slave state's law by returning fugitive slaves to their out of state masters, when the slave escaped across state lines. But, this was also a federal law and reflect the greater extraterritorial force of contracts and property rights created under state law compared to the extraterritorial force of the police powers of a state government. There are constitutional provisions requiring states to honor each other's rulings as well, most notably the requirement to extradite felons, and the full faith and credit clause that requires states to honor the court judgments and government determinations of status (e.g. marriage certificates) of other states in most circumstances. But, I don't think that you get there in a case regulating the conduct of a state resident outside the state, or in a case where you want to criminalize assisting someone in the state to leave the state for a particular purpose. Neither of these examples, however, involve state laws. Generally, penalties for doing something across state lines need to be established by federal, rather than state, laws. This said, the issue has not been litigated in this particular context yet, and the legal theories implicated and structure of those lines in fine particulars could matter. States have only rarely tried to regulate the conduct of their residents outside their own states and have even less frequently been successful in doing so.
Yes The rule against prosecuting a sitting President is not a law, it is a Justice Department opinion and policy. The justification for it is that dealing with a criminal case would be severely distracting to the President, and thus harmful to the nation. Besides, the opinion goes on, any serious issue can be dealt with by impeachment. That reasoning obviously does not apply to a former President. Article I, section 3, paragraph 7 of the US constitution says: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (emphasis added) This clearly contemplates the criminal prosecution of a former office holder, after such a person was removed by an impeachment. There is no exception for a President. Therefor a President can be criminally charged and prosecuted for actions during the presidency, provided that the evidence to establish probable cause is there, and that a Grand Jury indicts said former President. So far as I know there has never been a case where such a thing was done. President Ford's pardon of President Nixon stopped any Federal prosecution of him. I think there have been cases were former US Judges, after impeachment, were criminally prosecuted. But that is not quite the same thing -- no one claims that sitting judges are immune to criminal charges. To be clear this would not apply just to issues that a President had been impeached for. A former President is no different from anyone else in this respect. Any such person can be prosecuted if there is probable cause, and convicted if there is proof beyond a reasonable doubt of criminal violation of some law, even if the violation occurred while the president was in office.