Constitutional Silence

[Mark Tushnet]

This question is indeed not rhetorical, and the answer to the last 
question may well be, Yes.  After Winship, the Court has struggled with 
the question of whether the Due Process Clause constrains a 
legislature's ability to define the elements of a crime.  If it does 
not, Winship is pointless, because the legislature can simply shift 
issues from the "elements" side, on which the government bears the 
burden of proof beyond a reasonable doubt, to the "defense" side, where 
the defendant bears the burden.  After toying with the idea that there 
are limits on the definition of elements (Mullaney v. Wilbur -- SSP:  
for an early article pointing this out, see 55 Boston University Law 
Review 775 (1975)), the Court basically gave up (Patterson v. New York 
is the key case, but the Court has revisited the issue occasionally 
thereafter).  Until Apprendi (and Booker), that is, which raise exactly 
the same problem.  Who knows how the Court's going to figure out what to 
do now?  [And who believes that Ms. Miers has the faintest clue about 
how to go about thinking about the problem, or even that there is a 
problem?]

Marshall Dayan wrote:

>I want to make clear that the following is not a rhetorical question nor
>designed to make a rhetorical point; I am sincerely interested in the
>breadth of this constitutional silence notion--Could a state
>legitimately (e.g., constitutionally) impose a standard of guilty until
>proven innocent at criminal trial proceedings once a prima facie case
>(e.g., probable cause) had been made that a particular individual
>committed a criminal act?  The Constitution says nothing about proof
>beyond a reasonable doubt in criminal cases, does it?  Is In re Winship
>tyrranical?  Marshall Dayan, NCCU School of Law 
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