Will Bode

And in part, you need to look at that the government actually has the burden of indicting and proving the facts necessary to make the statute constitutional in your case.

And in part, you need to look at that the government actually has the burden of indicting and proving the facts necessary to make the statute constitutional in your case.

So for instance, if you have a statute, if it turns out that the felon in possession statute is unconstitutional as applied to nonviolent felonies, but constitutional as applied to violent felonies, for instance, that then when the government wants to bring felon in possession cases, it should have to prove kind of like a jurisdictional element. Interesting.

So for instance, if you have a statute, if it turns out that the felon in possession statute is unconstitutional as applied to nonviolent felonies, but constitutional as applied to violent felonies, for instance, that then when the government wants to bring felon in possession cases, it should have to prove kind of like a jurisdictional element. Interesting.

Offense is one that it's allowed to criminalize.

Offense is one that it's allowed to criminalize.

Yes. I mean, so in those cases, we could bracket maybe habeas is going to be a third wrinkle because on post-conviction relief, the conviction is presumed valid and so on.

Yes. I mean, so in those cases, we could bracket maybe habeas is going to be a third wrinkle because on post-conviction relief, the conviction is presumed valid and so on.

Yeah. But if you imagine somebody's being prosecuted now under – these sodomy laws are still in the books. So somebody's being prosecuted today for child abuse. I think the government – The government, to bring the prosecution, would have to allege in the indictment and prove to the jury the facts necessary to make the conduct unprotected.

Yeah. But if you imagine somebody's being prosecuted now under – these sodomy laws are still in the books. So somebody's being prosecuted today for child abuse. I think the government – The government, to bring the prosecution, would have to allege in the indictment and prove to the jury the facts necessary to make the conduct unprotected.

We may be exceeding... The article's not written yet. So there are some interesting questions about defenses versus constitutionally required elements sometimes. And so it depends on how you tweak the hypo exactly. But if you imagine that the point is that the statute as written can't constitutionally be applied unless we know something else, like some additional fact. Like Lopez, right?

We may be exceeding... The article's not written yet. So there are some interesting questions about defenses versus constitutionally required elements sometimes. And so it depends on how you tweak the hypo exactly. But if you imagine that the point is that the statute as written can't constitutionally be applied unless we know something else, like some additional fact. Like Lopez, right?

So almost all guns found near schools have at some point moved to interstate commerce and so can be reached under the government's commerce power. But the government did not allege and prove that Lopez's gun had traveled under state commerce, and so the Supreme Court set aside his conviction. It didn't really explain why they were doing what they were doing.

So almost all guns found near schools have at some point moved to interstate commerce and so can be reached under the government's commerce power. But the government did not allege and prove that Lopez's gun had traveled under state commerce, and so the Supreme Court set aside his conviction. It didn't really explain why they were doing what they were doing.

I'm not sure they really thought it through. But under our view, that would be correct. The government has to indict and prove the jurisdictional element.

I'm not sure they really thought it through. But under our view, that would be correct. The government has to indict and prove the jurisdictional element.

Well, I, that's, that's, I'm not sure about that. And that, that remains to be worked out too. So that, that would certainly, that'd be the easiest case of Congress.

Well, I, that's, that's, I'm not sure about that. And that, that remains to be worked out too. So that, that would certainly, that'd be the easiest case of Congress.

Well, but under the normally correct first principles of severability, you don't ask in the abstract, like, is the law constitutional? You ask, is the action before the court, this constitutional, has the enforcement of this law against this person been within Congress's powers?

Well, but under the normally correct first principles of severability, you don't ask in the abstract, like, is the law constitutional? You ask, is the action before the court, this constitutional, has the enforcement of this law against this person been within Congress's powers?