התמלול המלא של Constitutional Clauses: Extradition

back to Virginia. J. Aughenbaugh: Yes. N. Rodgers: Because they did this heinous thing. J. Aughenbaugh: Typically, all states require is an official court order. N. Rodgers: You do have to go to a court and get a judge to say? I'm going to need them back here. J. Aughenbaugh: In your hypothetical, Nia, if the city of Richmond went and got a search warrant from a judge and then they found out through their investigation that we decamped to Kentucky. All the Commonwealth of Virginia would have to do, and it's usually done through either police departments or attorney general's offices. Governors only get involved when it's a really controversial case in either one of them. If you get an official court order and then it's presented in a court of the other state, usually, that's all that has to occur, right? N. Rodgers: Let me back up and say. So this is unlikely to happen if you and I shoplift. Because the effort and the time would not be worth it, right? Like, it's unlikely to happen for a misdemeanor. It's going to happen for a serious crime. It's going to happen for grand theft, it's going to happen for murder, it's going to happen for rape, it's going to happen for those kinds of crimes where you have a much bigger aspect to it, right? It's not going to be Aughie stole t shirts out at Virginia Beach when they were there one day because they'd been drinking and they stole some t shirts and walked off. They're not going to come for us in Kentucky for that. J. Aughenbaugh: No. N. Rodgers: It's not worth the time of the courts. It's not worth the time of the cops. It's not worth. J. Aughenbaugh: Yes, because typically the state that receives the extradition request will say to the state making the request, you need to come and get your alleged criminals. N. Rodgers: They don't commit their own resources. They say, if you want them locate them for you, but you got to come get them once we locate. J. Aughenbaugh: Yes. N. Rodgers: We'll ask around and when we find out where they're staying, we'll call you and say, they're at this hotel, you should go get them. J. Aughenbaugh: Yes. N. Rodgers: I wondered about that. I wondered whose whose resources got committed, and it's the wanting state, not the state where they are. J. Aughenbaugh: Yes, that possesses them. N. Rodgers: If we murdered somebody in Virginia, which by the way, listeners, we're never going to do. But if we did that and then we went to Kentucky and we murdered somebody there. J. Aughenbaugh: Or we committed a lesser crime in Kentucky and Kentucky searches the nationwide criminal database and sees there is an outstanding murder warrant for Rogers and Aughenbaugh pairing, right? They might call up the jurisdiction in Virginia and say, Hey, we got Rogers and Aughenbaugh. We pinch them for running out on a restaurant tab, right? N. Rodgers: Well, yes if you're going to murder somebody, it's not like you're going to pay your bills. I'll bets are off. J. Aughenbaugh: Even for

a penny in for a pound. But they recognize the law enforcement officials in Kentucky are like, Hey, they may get 30 days in prison, right? But we got them. If you want, serve us the extradition request. Come and get them because we don't want these criminals in our jurisdiction. N. Rodgers: That's right. Let's say that we had done something more equally heinous in both places. Who gets dibs? J. Aughenbaugh: Well, that can get complicated, because the jurisdiction that possesses you detains you can go ahead and say, we will get around to honoring the previous states search warrant after we get done with them. What typically happens is the jurisdiction that has you uses the other states arrest warrant as leverage as in we could turn you over to Virginia because Virginia is more likely to go ahead, one, get a conviction and two, give you a really severe punishment. Why don't you take a plea bargain here, which will delay. Yes. N. Rodgers: Because Ted Bundy, when he was murdering people, he went from a place where there was no death penalty, that is Oregon. J. Aughenbaugh: Yes. N. Rodgers: To a place in Florida where you get the death penalty for jaywalk. He was actually executed in Florida? Yes. If he had not gotten the death penalty, so states could have just lined up and said, He killed people here, he killed people here, he killed people here. These different states want a chance to, but Florida could say, we arrested him first. He's going to serve for what he did here, and then you can have him. J. Aughenbaugh: Yes. N. Rodgers: I think Mr. Harvey Weinstein, is serving time in New York, and if he finishes, if he survives that and finishes that, California has already said, Well, you have a spot here for him that we're keeping warm. J. Aughenbaugh: Yes. N. Rodgers: But New York pinched him first, as you put it. I like that pinched. Makes you sound like a noir detective. From the '20s '30s. J. Aughenbaugh: Well, perhaps I have read too many mystery. N. Rodgers: Marlowe. J. Aughenbaugh: Yes. Ross McDonald etc. Yes. N. Rodgers: Is extradition or the extradition clause, this concept also found in British law? Like, is it been around for a long time? Is that an old? N. Rodgers: Yes, it does have roots in British common law. All the colonies had it. It was also in the Articles of Confederation. This was one of the very few clauses that received very little debate at the Constitutional Convention. N. Rodgers: It makes sense. The states are all like, yes, we can't let you just wander around doing stuff in other places and then bolting and thinking that's going to protect you. J. Aughenbaugh: Yes. Now, what gets interesting as we've discussed with the previous clauses in this series is the application, right? N. Rodgers: It seems straightforward, doesn't it? The Constitution always lays a trap. The Constitution is a giant Venus flytrap. It's like, Hey, walk over here, Mr. Fly. You're going to enjoy it. It'll be fine. then when fly walks onto it, it goes stuck closes. Everything is a trap. J. Aughenbaugh: It's like the plots in the old British mystery novels, right? Everything seems to be straightforward. They're showing up at a countryside mansion and then all of a sudden, people just start dying. N. Rodgers: The final confrontation happens in the living room. J. Aughenbaugh: Yes, right? The Supreme Court did not issue a ruling about the meaning of this clause until 1861. For listeners, that's the first year of the Civil War, okay? N. Rodgers: And that's almost 100 years in. J. Aughenbaugh: Yes, No, it's a good 80 years. N. Rodgers: Sixty years. Yes. J. Aughenbaugh: Good 80 years. The case was Kentucky v. Davidson. The case involved a man, Willis Lago, L-A-G-O. I've also saw some reports saying that it should be pronounced lago, where he was wanted in Kentucky for helping a girl who was a slave escape her owners. He fled to Ohio where the governor, William Dennison was strongly against slavery,. N. Rodgers: Abolitionist. Ohio was abolitionist, wasn't it? J. Aughenbaugh: Yes, it was. N. Rodgers: Broadly? J. Aughenbaugh: With the exception of Kentucky, the rest of the state not Kentucky, Cincinnati, which is on the border of Kentucky, the state was strongly abolitionist, right? The governor Dennison refused to extradite him back to Kentucky, alright? In this case, the court ruled that while it was the duty of Ohio governor to return the fugitive where the crime was committed, a governor could not be forced by a federal court through a writ of mandamus to do so. N. Rodgers: What is the writ of mandamus? Direction. J. Aughenbaugh: Yes, basically, it is a writ that a person submits to a court and says to the court, force the government to do its job. N. Rodgers: Okay. J. Aughenbaugh: A writ of mandamus was at the heart of Marbury v. Madison, for instance. William Marbury went to the Supreme Court with a written mandamus that said, James Madison needs to deliver my commission which has already been signed by a previous president. Basically, the Supreme Court gutted, if you will, the application of the extradition clause, right? N. Rodgers: Yes, they completely were like, Founder Schmuders. They ought to do it, but if they don't do it, there's nobody compelled them to do it. J. Aughenbaugh: Yes, It's like a moral obligation. You should do it because that's the moral thing to do, but we can't do anything. N. Rodgers: What are you going to do? J. Aughenbaugh: The federal courts can't force you to do it. Now, in part the court wasn't wrong because as we've discussed in other episodes, it's not like the Supreme Court has a law enforcement. Yes. N. Rodgers: Which aren't we grateful that the justices do not have a police force beyond the Supreme Court protection police force? J. Aughenbaugh: Because I joke about it in my classes, Nia. You imagine Chief Justice John Roberts calling up the Supreme Court version of the FBI. I want you to go ahead and arrest, the following

individuals in this presidential administration because they're not complying. Like, I can just see how that plays out. My goodness. N. Rodgers: And the terrifying thought of that is judge Jerry and execution are by the same group of people. Yes, right? Which is what we don't want. We want the system to be more balanced. J. Aughenbaugh: Yes, we don't want that at all. N. Rodgers: We don't want that power concentrated in the hands of even J Rob. We don't want that. They're like, Matt, you ought to, but there's nobody here to make you. J. Aughenbaugh: Yes. The Dennison precedent lasted for over 120 years Nia. It gets overturned by the Supreme Court in 1987, in the case of Puerto Rico versus Branstad. What we had was Ronald Calder, who was a native of Iowa. He struck a married couple near Aguada, Puerto Rico. The husband survived the attack, but the wife, who was eight months pregnant, did not. Following the incident, Calder was charged with murder. He was let out on bail. While on bail, Caldor fled to his home state of Iowa. In May of '81, the Governor of Puerto Rico submitted a request to the governor of Iowa for the extradition of Calder. The governor of Iowa, Branstad refused the request, and the governor of Puerto Rico filed a petition for a writ of mandamus in the US District Court in the Southern District of Iowa. The District Court rejected the request of Puerto Rico complying with the Dennison precedent. J. Aughenbaugh: The US Circuit Court of Appeals for the eighth Circuit affirmed so Puerto Rico appealed to the US Supreme Court. The Supreme Court overruled the precedent, ruling unanimously that the federal courts did indeed have the power to enforce a writ of mandamus and that Denison was not only outdated. It was wrong in the first instance. Yes. N. Rodgers: They hardly ever say that about. J. Aughenbaugh: Yes. N. Rodgers: They say outdated, but they hardly ever say got it wrong the first time. J. Aughenbaugh: Yes, they usually use wishy washy language when they overturn precedent. Circumstances on the ground. It doesn't work in theory or practice, which is a really good way of saying it stinks. N. Rodgers: I know you may not know the case very well, but why on Earth would the governor of Iowa refuse to return somebody who had killed someone? He didn't kill one person, he killed two people. She saw eight month pregnant. J. Aughenbaugh: Which even back then, a fetus would be considered viable in the age. Yes. N. Rodgers: He killed two people and he thought, I'll just go home. The Governor of Iowa was like, Yes, well Brown people, we don't care about them. Is that what that was? J. Aughenbaugh: No, I wasn't so much about that. From what I read about the case, the governor of Iowa was not convinced that the arrest warrant was based on solid evidence, okay? N. Rodgers: Okay. J. Aughenbaugh: Sometimes that is an issue in extradition requests, right? Does that make sense? N. Rodgers: In our previous example, you and I are in Kentucky hanging out and they arrest us locally to hold us for this murder charge, and we're like, we were not even in Virginia when this guy was murdered. I don't know what they're talking about. We didn't have anything to do with anything. J. Aughenbaugh: Yes, I found examples, Nia, where states who don't like the potential penalty for the people who they are detaining will refuse extradition. A good example of this is sometimes states that don't have the death penalty will refuse to turn people over to states who have made an extradition request because the potential penalty might be death if they are found guilty in the state in which the crime was committed. Now there have been some controversies regarding this clause. We've already touched upon briefly one of them. During the fugitive slave era before the Civil War, northern governors frequently clashed with southern states because they refused to return individuals accused of helping enslaved people escape. N. Rodgers: Yes. J. Aughenbaugh: This became even more frequent after the Dred Scott ruling. This episode is not about Dred Scott, but one of the elements of the Dred Scott ruling by the Supreme Court is where the court majority said, not only did Dred Scott not have any legal rights to claim that he was now a free person. The court also went ahead and said that Congress had no authority to regulate the institution of slavery. Well, the immediate impact was the Missouri Compromise of 1820 and the compromise of 1850, which basically divvied up the states as free or slave were deemed unconstitutional. But the logic of the Northern states was, well, if Congress can't regulate the institution of slavery, then fugitive slave laws passed by Congress which would obligate Northern states to not only return slaves to their owners in the South, but would allow Southern states to issue arrest warrants for those who helped the slaves leave did not apply. Northern states began to ignore. N. Rodgers: Logic to the next step, well, if Congress doesn't have any power here, then it must be a states rights issue. Once they get to my state. J. Aughenbaugh: They're free. N. Rodgers: I'm the state. J. Aughenbaugh: Yes, they are free. We do not have to comply with any request for extradition. N. Rodgers: For anybody. J. Aughenbaugh: Which so inflamed the Southern states, it was one of their primary grievances for taking votes to secede from the Union. N. Rodgers: If you're not going to return our slaves, if they can just escape to your state. Then we're out of here. The North was like, Hey, don't let the door smack your butt on the way out. J. Aughenbaugh: I want listeners, keep that in mind because what I and other constitutional law scholars are predicting is we're going to see more extradition, if you will, conflicts because of current policy debates. Classic example here is in regards to abortion. After Dobbs Jackson, which was decided in 2022, or was it 2023. Recently, I teach the case so

often and talked about it so much. I'm just like, yes, it's been in the last couple of years. The issue of abortion is now a state matter. What we've seen in the United States is wide variety among the states in regards to either protecting a woman's right to choose or basically saying that women have next to no right to choose, and that anybody who helps them could be prosecuted for assisting women who end up getting an abortion after, say, for instance, the first six weeks of a pregnancy or the first four weeks, right? Some states have sworn out arrest warrants for doctors who live and practice in other states, usually states that have protected a woman's right to choose. N. Rodgers: The woman crosses over state lines to have this done. J. Aughenbaugh: Yes. N. Rodgers: They want to prosecute both her and the doctors provider. J. Aughenbaugh: Yes, right? Or how about doctors who have given subscriptions for the abortion pill? N. Rodgers: The extremity of that could be the mailman who delivered it to your house. J. Aughenbaugh: Sure. N. Rodgers: Is he or she going to be held responsible? There's some really extreme possibilities here with various states about how this is going to and we're so divided as a country on this topics. J. Aughenbaugh: The short list that I came across in my research, Nia, abortion, gender affirming care or not providing gender affirming care. Environmental laws in some states, if you violate their environmental laws, you can be prosecuted, okay? N. Rodgers: If you're illegal dumping, if you're doing all kinds of stuff, you can go to jail for that. J. Aughenbaugh: Yes. Abortion, gender affirming care, the environment, business fraud, fraudulent trade practices the kinds that you've seen with the tobacco industry, climate change etc. The polarization at the state level on these policy issues and the desire to prosecute people who may not necessarily live in your state, but whose behavior has affected your state. Now calls into question the scope and application of the extradition clause of the United States Constitution. N. Rodgers: I have to think that the other big controversial part of this is when the feds want to arrest you and the state doesn't? Yes. But the feds want to arrest you for an interstate issue. J. Aughenbaugh: Yes. We saw this with the Biden administration. We certainly seen this with the Trump administration where they've tried to force non compliant states to turn over people who are allegedly in violation of federal law. N. Rodgers: Sanctuary states. Sanctuary cities, right? N. Rodgers: It's a whole thing with immigration. J. Aughenbaugh: Well, immigration with Trump, but a whole bunch of other laws with the Biden administration, guns etc. Again, it depends on which presidential administration is in office. N. Rodgers: Which laws they are going to get crabby about. Hey, what if you and I ran to a reservation? J. Aughenbaugh: Yes. N. Rodgers: Should we be extradited there. Because those are different, right? J. Aughenbaugh: This is an unanswered question. The Supreme Court has never ruled on this issue. Various federal appeals courts have my research has indicated at least three. What all three have found in their rulings, is that the extradition clause does not apply to Native American tribes because Congress when they granted recognition to the Native American tribes, did not say that the tribes had to comply with the extradition clause of the US Constitution. This is yet another example of poor legal law or poor legislation craftsmanship is going to come back and create a problem because Congress never envisioned that people would want to go to tribal lands to escape justice in state jurisdictions. N. Rodgers: And tribal lands are different anyway because they have their own police force. They have their own their own courts. They have their own mechanisms. J. Aughenbaugh: Yes. By federal law, when they get recognized by Congress, they in effect become their own jurisdiction within states. N. Rodgers: Which is complicated. Yes, it is. It makes everything harder. Not to slam but it seems like that wasn't completely thought through. J. Aughenbaugh: Sure. In part, again, think about the logic. If you're a member of Congress and you're recognizing various Native American tribes, your thinking is, well, what non Native American is going to want to go to a tribal land to escape justice? You want to talk about cultural superiority. White men in Congress concluding no white person in their right mind is going to want. N. Rodgers: Do that. J. Aughenbaugh: Yes. Go to a tribal land to escape criminal justice. N. Rodgers: I actually think that you'd want to be more careful because if they if they have their own system, your outcome could be worse, not better, right? J. Aughenbaugh: Yes. N. Rodgers: You're assuming they're going to leave you alone. That may not be what happens. That may be, you did what? Well, what we do to people who do that? We set them out in the desert with ants all over them or whatever. I know what it's, you know what I mean? But anyway, justice is a weird thing. Thank you, Aughie. I get that a huge amount of the clauses in the Constitution were how we're all going to get along all 13 of us. J. Aughenbaugh: Yes. N. Rodgers: How are we going to manage when things go awry? This is one of those kinds of clauses where they're like, There's going to be somebody who's going to do this. What are we going to do about it? How are we going to manage when Aughenbaugh steal somebody's candy out of their Halloween basket and makes off to Ohio. What's Ohio going to do about that? J. Aughenbaugh: Yes, it goes on a crime spree. Again, the logic here is, how do you bind together a young nation and create, if you will, a natural culture of reciprocity, right? But as always, Nia, as we've concluded in previous episodes in the series, the devils in the details. N. Rodgers: Because when the founders did this, people were not driving across country in a Buick, right? The chances of you leaving and moving to another state in the colonial period was pretty low. J. Aughenbaugh: Yes. N. Rodgers: Chances of you going more than 80 miles from home was pretty low. You just we're not highly traveled people the way we are now. It's another your discussion here of the differences in how the states are extreme. I think also there's also a lot more travel than there used to be. There's just a lot more people saying well, I'll just bail and go across state line. J. Aughenbaugh: Yes. N. Rodgers: And sometimes that makes the crime worse, right? Like you kidnap someone in your state. Parents do this all the time. The non custodial parent takes the kid. J. Aughenbaugh: Yes. N. Rodgers: Mix off with them and then goes to another state. You just made this 1,000 times worse. Like cause now you've gotten the state authorities and two states involved, and now federal crimes involved. J. Aughenbaugh: Yes, because you have taken a family law dispute and now made it kidnapping. If you take the child across state lines. N. Rodgers: Now problem. J. Aughenbaugh: Yes, now the feds can get involved because I know listeners, this is going to sound really cold. At that point, that becomes part of interstate commerce. That's how the feds can get involved because it's now cross state lines, right? I know we don't normally like to go ahead and refer to people as commerce. But people's impact on commerce, is what allows the United States Congress to get involved. N. Rodgers: Just stay in faced music. You're so much better off. The other thing too is what is that old phrase? If you run, you'll be tired and I'll be more angry than I was when we started. If you make me chase you, right? Anyway thank you, Aughie. J. Aughenbaugh: Thank you, Nia. FEMALE_1: You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the workshop for technical assistance. Music by Isaac Hobson. Find more information at guides.library.vcu.edu/discourse. As always, no documents will harm to the making of this podcast.