Cooper v. Oklahoma, 517 U.S. 348 (1996) 116 S.Ct. 1373, 134 L.Ed.2d 498, 64 USLW 4255, 96 Cal. Daily Op. Serv. 2645…

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KeyCite Yellow Flag – Negative Treatment Not Followed as Dicta U.S. v. Gomez-Guilian, D.Ariz., March 3, 2010

116 S.Ct. 1373 Supreme Court of the United States

Byron Keith COOPER, Petitioner, v.

OKLAHOMA.

No. 95-5207. |

Argued Jan. 17, 1996. |

Decided April 16, 1996.

Synopsis Defendant was convicted in the District Court, Oklahoma County, Richard J. Freeman, J., of first-degree murder, and he was sentenced to death. Defendant appealed. The Court of Criminal Appeals, Lumpkin, P.J., 889 P.2d 293, affirmed. Certiorari was granted. The Supreme Court, Justice Stevens, held that Oklahoma law presuming defendant is competent to stand trial unless he proves incompetence by clear and convincing evidence violates due process.

Reversed and remanded.

**1373 *348 Syllabus *

Oklahoma law presumes that a criminal defendant is competent to stand trial unless he proves his incompetence by clear and convincing evidence. Applying that standard, a judge found petitioner Cooper competent on separate occasions before and during his trial for first-degree murder, despite his bizarre behavior and conflicting expert testimony on the issue. In affirming his conviction and death sentence, the Court of Criminal Appeals rejected his argument that the State's presumption of competence, combined with its clear and convincing evidence standard, placed such an onerous burden on him as to violate due process.

Held: Because Oklahoma's procedural rule allows the State to try a defendant who is more likely than not incompetent, it violates due process. Pp. 1376-1384.

**1374 (a) It is well settled that the criminal trial of an incompetent defendant violates due process. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353, establishes that a State may presume that the defendant is competent and require him to prove incompetence by a preponderance of the evidence. Such a presumption does not offend a “ ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ ” id., at 445, 112 S.Ct., at 2577, for it affects the outcome “only in a narrow class of cases … where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent,” id., at 449, 112 S.Ct., at 2579. This case, however, presents the quite different question whether a State may proceed with a criminal trial after a defendant has shown that he is more likely than not incompetent. Pp. 1376-1377.

(b) Oklahoma's rule has no roots in historical practice. Both early English and American cases suggest that the common-law standard of proof was preponderance of the evidence. That this same standard is currently used by 46 States and the federal courts indicates that the vast majority of jurisdictions remain persuaded that Oklahoma's heightened standard is not necessary to

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vindicate the State's interest in prompt and orderly disposition of criminal cases. The near-uniform application of a standard that is more protective of the defendant's rights than Oklahoma's rule supports the conclusion that the heightened standard offends a deeply rooted principle of justice. Pp. 1377-1380.

*349 c) Oklahoma's rule does not exhibit “fundamental fairness” in operation. An erroneous determination of competence has dire consequences for a defendant who has already demonstrated that he is more likely than not incompetent, threatening the basic fairness of the trial itself. A defendant's inability to communicate effectively with counsel may leave him unable to exercise other rights deemed essential to a fair trial-e.g., choosing to plead guilty, waiving his privilege against compulsory self-incrimination by taking the witness stand, or waiving his rights to a jury trial or to cross-examine witnesses-and to make a myriad of smaller decisions concerning the course of his defense. These risks outweigh the State's interest in the efficient operation of its criminal justice system. Difficulty in ascertaining whether a defendant is incompetent or malingering may make it appropriate to place the burden of proof on him, but it does not justify the additional onus of an especially high standard of proof. Pp. 1380-1383.

(d) Although it is normally within a State's power to establish the procedures through which its laws are given effect, the power to regulate procedural burdens is subject to proscription under the Due Process Clause when, as here, the procedures do not sufficiently protect a fundamental constitutional right. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, distinguished. The decision herein is in complete accord with the ruling in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323, that due process requires a clear and convincing evidence standard of proof in involuntary civil commitment proceedings. That ruling protects an individual's fundamental liberty interest, while the ruling in this case safeguards the fundamental right not to stand trial while incompetent. Pp. 1383-1384.

889 P.2d 293 (Okl.1995), reversed and remanded.

STEVENS, J., delivered the opinion for a unanimous Court.

—-

Attorneys and Law Firms

Robert Alan Ravitz, Oklahoma City, for petitioner.

W.A. Edmondson, Oklahoma City, for respondent.

Opinion

*350 Justice STEVENS delivered the opinion of the Court.

In Oklahoma the defendant in a criminal prosecution is presumed to be competent to **1375 stand trial unless he proves his incompetence by clear and convincing evidence. Okla. Stat., Tit. 22, § 1175.4(B) (1991). Under that standard a defendant may be put to trial even though it is more likely than not that he is incompetent. The question we address in this case is whether the application of that standard to petitioner violated his right to due process under the Fourteenth Amendment.

I

In 1989 petitioner was charged with the brutal killing of an 86-year-old man in the course of a burglary. After an Oklahoma jury found him guilty of first-degree murder and recommended punishment by death, the trial court imposed the death penalty. The Oklahoma Court of Criminal Appeals affirmed the conviction and sentence.

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Petitioner's competence was the focus of significant attention both before and during his trial. On five separate occasions a judge considered whether petitioner had the ability to understand the charges against him and to assist defense counsel. On the first occasion, a pretrial judge relied on the opinion of a clinical psychologist employed by the State to find petitioner incompetent. Based on that determination, he committed petitioner to a state mental health facility for treatment.

*351 Upon petitioner's release from the hospital some three months later, the trial judge heard testimony concerning petitioner's competence from two state-employed psychologists. These experts expressed conflicting opinions regarding petitioner's ability to participate in his defense. The judge resolved the dispute against petitioner, ordering him to proceed to trial.

At the close of a pretrial hearing held one week before the trial was scheduled to begin, the lead defense attorney raised the issue of petitioner's competence for a third time. Counsel advised the court that petitioner was behaving oddly and refusing to communicate with him. Defense counsel opined that it would be a serious matter “if he's not faking.” App. 6. After listening to counsel's concerns, however, the judge declined to revisit his earlier determination that petitioner was competent to stand trial.

Petitioner's competence was addressed a fourth time on the first day of trial, when petitioner's bizarre behavior prompted the court to conduct a further competency hearing at which the judge observed petitioner and heard testimony from several lay

witnesses, a third psychologist, and petitioner himself. 1 The expert concluded that petitioner was *352 presently incompetent and unable to communicate effectively with counsel, but that he could probably achieve competence within six weeks if treated aggressively. While stating that he did not dispute the psychologist's diagnosis, the trial judge ruled against petitioner. In so holding, however, the court voiced uncertainty:

**1376 “Well, I think I've used the expression … in the past that normal is like us. Anybody that's not like us is not normal, so I don't think normal is a proper definition that we are to use with incompetence. My shirtsleeve opinion of Mr. Cooper is that he's not normal. Now, to say he's not competent is something else.

* * * * * *

“But you know, all things considered, I suppose it's possible for a client to be in such a predicament that he can't help his defense and still not be incompetent. I suppose that's a possibility, too.

“I think it's going to take smarter people than me to make a decision here. I'm going to say that I don't believe he has carried the burden by clear and convincing evidence of his incompetency and I'm going to say we're going to go to trial.” Id., at 42-43.

*353 Incidents that occurred during the trial, 2 as well as the sordid history of petitioner's childhood that was recounted during the sentencing phase of the proceeding, were consistent with the conclusions expressed by the expert. In a final effort to protect his client's interests, defense counsel moved for a mistrial or a renewed investigation into petitioner's competence. After the court summarily denied these motions, petitioner was convicted and sentenced to death.

In the Court of Criminal Appeals, petitioner contended that Oklahoma's presumption of competence, combined with its statutory requirement that a criminal defendant establish incompetence by clear and convincing evidence, Okla. Stat., Tit. 22, § 1175.4(B)

(1991), 3 placed such an onerous burden on him as to violate his right to due process of law. The appellate court rejected this argument. After noting that it can be difficult to determine whether a defendant is malingering, given “the inexactness and uncertainty attached to [competency] proceedings,” the court held that the standard was justified because the “State has great interest in assuring its citizens a thorough and speedy judicial process,” and because a “truly incompetent criminal defendant, through his attorneys and experts, can prove incompetency with relative ease.” 889 P.2d 293, 303 (1995). We granted certiorari to review the Court of Criminal Appeals' conclusion that application *354 of the clear and convincing evidence standard does not violate due process. 516 U.S. 910, 116 S.Ct. 282, 133 L.Ed.2d 202 (1995).

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II

No one questions the existence of the fundamental right that petitioner invokes. We have repeatedly and consistently recognized that “the criminal trial of an incompetent defendant violates due process.” Medina v. California, 505 U.S. 437, 453, 112 S.Ct. 2572, 2581, 120 L.Ed.2d 353 (1992); Drope v. Missouri, 420 U.S. 162, 171-172, 95 S.Ct. 896, 903-904, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). Nor is the significance of this right open to dispute. As Justice KENNEDY recently emphasized:

“Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on one's own behalf or to remain silent without penalty for doing so. Drope v. Missouri, 420 U.S. 162, 171-172, 95 S.Ct. 896, 903-904, 43 L.Ed.2d 103 (1975).” **1377 Riggins v. Nevada, 504 U.S. 127, 139-140, 112 S.Ct.

1810, 1817-1818, 118 L.Ed.2d 479 (1992) (opinion concurring in judgment). 4

The test for incompetence is also well settled. A defendant may not be put to trial unless he “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding … [and] a rational as well as factual understanding of

the proceedings against him.’ ” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). 5

*355 Our recent decision in Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), establishes that a State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence. Id., at 449, 112 S.Ct., at 2579. In reaching that conclusion we held that the relevant inquiry was whether the presumption “ ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Id., at 445, 112 S.Ct., at 2577 (quoting Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2322-2323, 53 L.Ed.2d 281 (1977)). We contrasted the “deep roots in our common-law heritage” underlying the prohibition against trying the incompetent with the absence of any settled tradition concerning the allocation of the burden of proof in a competency proceeding. 505 U.S., at 446, 112 S.Ct., at 2577-2578. Our conclusion that the presumption of competence offends no recognized principle of “fundamental fairness” rested in part on the fact that the procedural rule affects the outcome “only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just

as strong as the evidence that he is incompetent.” Id., at 449, 112 S.Ct., at 2579. 6

The question we address today is quite different from the question posed in Medina. Petitioner's claim requires us to consider whether a State may proceed with a criminal trial after the defendant has demonstrated that he is more likely than not

incompetent. Oklahoma does not contend that it may require the defendant to prove incompetence beyond a reasonable doubt. 7

The State maintains, however, that the clear and convincing standard provides a reasonable accommodation *356 of the opposing interests of the State and the defendant. We are persuaded, by both traditional and modern practice and the importance of the constitutional interest at stake, that the State's argument must be rejected.

III

“Historical practice is probative of whether a procedural rule can be characterized as fundamental,” Medina, 505 U.S., at 446, 112 S.Ct., at 2577. In this case, unlike in Medina, there is no indication that the rule Oklahoma seeks to defend has any roots in prior practice. Indeed, it appears that a rule significantly more favorable to the defendant has had a long and consistent application.

We turn first to an examination of the relevant common-law traditions of England and this country. The prohibition against trying the incompetent defendant was well established by the time Hale and Blackstone wrote their famous commentaries. 4 W.

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Blackstone, Commentaries *24 (“[I]f a man in his sound memory commits a capital offence … [a]nd if, after he has pleaded, the **1378 prisoner becomes mad, he shall not be tried: for how can he make his defence?”); 1 M. Hale, Pleas of the Crown *34-*35 (same). The English cases which predate our Constitution provide no guidance, however, concerning the applicable standard of proof in competency determinations. See Trial of Charles Bateman (1685), reported in 11 How. St. Tr. 464, 467 (1816), and Hawles, Remarks on the Trial of Mr. Charles Bateman, 11 How. St. Tr. 474, 476 (1816) (noting that the court in the 1685 trial incurred “censure” for proceeding to trial with a doubt as to the defendant's competence); Kinloch's Case (1746), 18 How. St. Tr. 395, 411 (1813); King v. Steel, 1 Leach 452, 168 Eng. Rep. 328 (1787).

Beginning in the late 18th century, cases appear which provide an inkling of the proper standard. In King v. Frith, 22 How. St. Tr. 307 (1790), for example, the court instructed *357 the jury to “diligently inquire … whether John Frith, the now prisoner at the bar … be of sound mind and understanding or not….” Id., at 311. Some 50 years later the jurors received a nearly identical admonition in Queen v. Goode, 7 Ad. & E. 536, 112 Eng. Rep. 572 (K.B.1837): “ ‘You shall diligently inquire, and

true presentment make … whether John Goode … be insane or not….’ ” Id., at 536, n. (a), 112 Eng. Rep., at 572-573, n. (a) 2 . 8

Similarly, in King v. Pritchard, 7 Car. & P. 303, 173 Eng. Rep. 135 (1836), the court empaneled a jury to consider “whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial….” Ibid. See also King v. Dyson, 73 Car. & P. 305, n. (a), 173 Eng. Rep. 135-136, n. (a) (1831); Queen v. Southey, 4 F. & F. 864, 895, 176 Eng. Rep. 825, 838 (1865); Queen v. Berry, 1

Q.B. Rep. 447, 449 (1876). Ibid. 9

These authorities, while still speaking less clearly than we might wish, are instructive. By phrasing the inquiry in a simple disjunctive, Frith, Goode, and Pritchard suggest that traditional practice required the jury to determine whether the defendant was “more likely than not” incompetent. Nothing in the jury instructions of these cases will bear the interpretation of a clear and convincing standard. What is more, the cases contain no indication that the use of a preponderance *358 standard represented

a departure from earlier (pre-Constitution) practice. 10

Modern English authority confirms our interpretation of these early cases as applying a preponderance standard. Relying on “principles … laid down in a number of cases,” including Pritchard and King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), the court in Queen v. **1379 Podola, 43 Crim.App. 220, 3 All E.R. 418 (1959), ruled:

“If the contention that the accused is insane is put forward by the defence and contested by the prosecution, there is, in our judgment, a burden upon the defence of satisfying the jury of the accused's insanity. In such a case, as in other criminal cases in which the onus of proof rests upon the defence, the onus is discharged if the jury are satisfied on the balance of probabilities

that the accused's insanity has been made out.” Id., at 235, 3 All E. R., at 429. 11

*359 Likewise, we are aware of no decisional law from this country suggesting that any State employed Oklahoma's heightened standard until quite recently. Rather, the earliest available sources typically refer to English authorities, see, e.g., Freeman v. People, 47 Am. Dec. 216, 223-225 (N. Y.1847), State v. Harris, 53 N.C. 136, 78 Am. Dec. 272, 272-275 (1860) (adopting procedures outlined in King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep. 135, n. (a) (1831), and King v. Pritchard, 7 Car. & P. 303, 173 Eng. Rep. 135 (1836)), and employ the disjunctive language used by the English courts, see, e.g., Commonwealth v. Hathaway, 13 Mass. 299 (1816); People v. Kleim, 1 N.Y. 13, 15 (1845); Harris, 53 N.C. 136, 78 Am. Dec., at 275; United

States v. Chisolm, 149 F. 284, 290 (SD Ala.1906). 12 By the turn of the 20th century, however, American courts were explicitly applying a preponderance standard. In 1896, Ohio juries were instructed that “[t]he burden is upon the prisoner to show by

a preponderance of the proof that he is insane.” State v. O'Grady, 5 Ohio Dec. 654, 655 (1896). 13 Some 15 years later, the Tennessee Supreme Court described the competency determination as *360 “controlled by the preponderance of the proof,” Jordan v. State, 124 Tenn. 81, 89, 135 S.W. 327, 329 (1911), and the highest court of Pennsylvania held that competence is

“decided by a preponderance of the evidence,” Commonwealth v. Simanowicz, 242 Pa. 402, 405, 89 A. 562, 563 (1913). 14

These early authorities are bereft of language susceptible of supporting **1380 a clear and convincing evidence standard. 15

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Contemporary practice demonstrates that the vast majority of jurisdictions remain persuaded that the heightened standard of proof imposed on the accused in Oklahoma is not necessary to vindicate the State's interest in prompt and orderly disposition of criminal cases. Only 4 of the 50 States presently require the criminal defendant to prove his incompetence by clear and

convincing evidence. 16 None of the remaining *361 46 jurisdictions imposes such a heavy burden on the defendant. 17 Indeed, a number of States place no burden on the defendant at all, but rather require the prosecutor to *362 prove the defendant's

competence to stand trial once a question about competency has been credibly raised. 18 The situation is no different in federal court. Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence. 18 U.S.C. § 4241.

The near-uniform application of a standard that is more protective of the defendant's rights than Oklahoma's clear and convincing evidence rule supports our conclusion that the heightened standard offends a principle of justice that is deeply “rooted in the traditions and conscience of our people.” Medina v. California, 505 U.S., at 445, 112 S.Ct., at 2577 (internal quotation marks omitted). We turn next to a consideration of whether the rule exhibits “ ‘fundamental fairness' in operation.” Id., at 448, 112 S.Ct., at 2578-2579 (quoting Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990)).

IV

Contemporary and historical procedures are fully consistent with our evaluation of the **1381 risks inherent in Oklahoma's practice of requiring the defendant to prove incompetence by clear and convincing evidence. In Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1807-1808, 60 L.Ed.2d 323 (1979) we explained that:

“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075-1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring).”

The “more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision.” *363 Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 283, 110 S.Ct. 2841, 2853-2854, 111 L.Ed.2d 224 (1990). For that reason, we have held that due process places a heightened burden of proof on the State in civil proceedings in which the “individual interests at stake … are both ‘particularly important’ and ‘more substantial than mere loss of money.’ ” Santosky v. Kramer, 455 U.S. 745, 756, 102 S.Ct. 1388, 1396, 71 L.Ed.2d 599 (1982) (termination of parental rights) (quoting Addington, 441 U.S., at

424, 99 S.Ct., at 1808). 19

Far from “jealously guard[ing],” Jacob v. New York City, 315 U.S. 752, 752-753, 62 S.Ct. 854, 854-855, 86 L.Ed. 1166 (1942), an incompetent criminal defendant's fundamental right not to stand trial, Oklahoma's practice of requiring the defendant to prove incompetence by clear and convincing evidence imposes a significant risk of an erroneous determination that the defendant is competent. In Medina we found no comparable risk because the presumption would affect only the narrow class of cases in which the evidence on either side was equally balanced. *364 “Once a State provides a defendant access to procedures for making a competency evaluation,” we stated, there is “no basis for holding that due process further requires the State to assume the burden of vindicating the defendant's constitutional right by persuading the trier of fact that the defendant is competent to stand trial.” 505 U.S., at 449, 112 S.Ct., at 2579. Unlike the presumption at issue in Medina, however, Oklahoma's clear and convincing evidence standard affects a class of cases in which the defendant has already demonstrated that he is more likely than not incompetent.

For the defendant, the consequences of an erroneous determination of competence are dire. Because he lacks the ability to communicate effectively with counsel, he may be unable to exercise other “rights deemed essential to a fair trial.” Riggins v. Nevada, 504 U.S., at 139, 112 S.Ct., at 1817 (KENNEDY, J., concurring in judgment). After making the “profound” choice

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whether to plead guilty, **1382 Godinez v. Moran, 509 U.S. 389, 398, 113 S.Ct. 2680, 2686, 125 L.Ed.2d 321 (1993), the defendant who proceeds to trial

“will ordinarily have to decide whether to waive his ‘privilege against compulsory self-incrimination,’ Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), by taking the witness stand; if the option is available, he may have to decide whether to waive his ‘right to trial by jury,’ ibid.; and, in consultation with counsel, he may have to decide whether to waive his ‘right to confront [his] accusers,’ ibid., by declining to cross-examine witnesses for the prosecution.” Ibid.

With the assistance of counsel, the defendant also is called upon to make myriad smaller decisions concerning the course of his defense. The importance of these rights and decisions demonstrates that an erroneous determination of competence threatens a

“fundamental component of our criminal justice system” 20 -the basic fairness of the trial itself.

*365 By comparison to the defendant's interest, the injury to the State of the opposite error-a conclusion that the defendant is incompetent when he is in fact malingering-is modest. To be sure, such an error imposes an expense on the state treasury and frustrates the State's interest in the prompt disposition of criminal charges. But the error is subject to correction in a subsequent proceeding and the State may detain the incompetent defendant for “the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [competence] in the foreseeable future.” Jackson v. Indiana, 406

U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972). 21

The Oklahoma Court of Criminal Appeals correctly observed that the “inexactness and uncertainty” that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering. 889 P.2d, at 303. We presume, however, that it is unusual for even the most artful malingerer to feign incompetence successfully for a period

of time while under professional care. 22 In this regard it is worth reiterating that only four jurisdictions currently consider it necessary to impose on the criminal defendant the burden of proving incompetence by clear and convincing evidence. Moreover, there is no reason to believe that the art of dissimilation is new. Eighteenth and nineteenth century courts, for example, warned jurors charged with making competency determinations that “ ‘there may be great fraud in this matter,’ ” King v. Dyson, 7 Car. & P. 305, n. (a), 173 Eng. Rep., at 136, n. (a) (quoting *366 1 Hale, Pleas of the Crown, at *35), and that “[i]t would be a reproach to justice if a guilty man … postponed his trial upon a feigned condition of mind, as to his inability to aid in his

defense,” United States v. Chisolm, 149 F., at 288. 23 Although they recognized this risk, the early authorities did not resort to a heightened burden of proof in competency proceedings. See Part III, supra.

More fundamentally, while the difficulty of ascertaining where the truth lies may make it appropriate to place the burden of proof on the proponent of an issue, it does not justify the additional onus of an especially high standard of proof. As the Chisolm Court continued,

“[I]t would be li