The Republic Endures

On the NACDL listserv Sunday and Monday, one lawyer wrote of the Supreme Court term just ended.

It will always be known as the term where the Chief Justice and 4 other justices disgraced themselves by ignoring the Constitution in order to give the President a  political victory.  As a result, the rule of law is dead, and no person can be certain that their rights will be vindicated.
This was a disaster.  If freedoms and liberties are not upheld for all, then all are at risk.

The judgment was plainly wrong.  P L A I N L Y wrong.  Wholly unsupported by the Constitution.

And this time I am not so sure that the Republic does endure.  Or that I care if it does not.

This is the fourth Independence Day post since I began this blog in 2009.  It is not a post about the health care law or the Supreme Court's decision or whether John Roberts changed his vote and why and whether it was a good or bad thing for him to change it if he did.

It is, rather, as were my prior Independence Day posts, a post about liberty and revolution and the Rule of Law.

And about getting close enough for government work.

In the first of those posts, on July 4, 2009, I began this way.

Consider these words:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

They are, of course, from The Declaration of Independence. It's quite an extraordinary document, one well worth reading every now and again - say, on Independence Day.

They say that "all men" (and one can only wish that "all" were meant to include people of color, including those who were enslaved, and that "men" were intended to include women) "are created equal" which really leaves no room for invidious discrimination.

They say that those equal men have certain rights that are "unalienable," that is, they cannot be alienated or taken away. They say that among the unalienable rights are "Life, Liberty, and the pursuit [not the attainment, however, since that's beyond guarantee] of Happiness." They say that government exists "to secure these rights."

And they say, and these are amazing words today, but we must remember that the landed gentry who signed this document were not just the establishment - they were an establishment teeming with enlightenment ideals and with revolutionary ardor, they say that when governments don't do that job, then it is the right and the duty of the people to overthrow the government. Revolution is obligatory.

I copied that the next year, that time putting the final sentence in italics.  I didn't quote that whole thing last year.  Oh, I hit the theme, but I focused as much on the need as on the obligation.

I began (not the post, just the part of it I'm about to quote), with that sentence about the "long train of abuses."

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

No small thing.  Not a bitch about this or that.  No revolution over health care reform or the Patriot Act or Scope and Grope.  Taxes too high or too low?  Nope, not enough. But "a long train of abuses and usurpations" intended to crush the people "under absolute Despotism."  Still, you work on it, wait on it, try to avoid it.  "[P]atient sufferance."  And then, there it is again, "now the necessity."

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

And then the argument.

To prove this, let Facts be submitted to a candid world.

There follows the list of grievances.  It's a list that pretty well catalogues the usurpation of the Rule of Law and its replacement with the Law of Rule.

And, frankly, much as we in the criminal defense blawgosphere may bitch and moan about how bad things are, we're not close.  Much as the most rabid of the TeaPartiers may bitch and moan about how bad things are, we're not close.  This is what it takes.

Last year I then quoted the list.  I'm not going to do that now.  (It's at the bottom of this post where I've pasted the whole Declaration.)  Here, I'm offering a different list, a shorter one, inspired by (and partly stolen from) Patrick at Popehat.

• Dred Scott v. Sandford
• Korematsu v. United States
• Plessy v. Ferguson
• Buck v. Bell
• Schenck v. United States

I could easily go on, but I want to avoid getting the point lost in political quibbles or squabbles. What's striking about those cases is that they're almost universally recognized as deeply offensive to liberty, to who we are as a people, to the Constitution. 

National Federation of Independent Business v. Sebelius?

Not in the ballpark.  Nor, frankly, are nearly all those other cases that make some group of us apoplectic.

It won't come as any surprise if you've followed this blog that there's a constant tension between the Rule of Law and the Law of Rule.  And you know, or you do if you've been paying attention - not just to me and some other blawggers but to the news and, frankly, to what goes on outside your front door every day - that in the balance, on a regular basis, the Law of Rule wins.

And yet the republic endures.

Sigh.

Maybe upholding the Affordable Care Act is the Law of Rule in action. Maybe it's the Rule of Law at its best.  Same for Citizens United  or Arizona v. United States.

But Korematsu? Plessy? Buck? Those aren't even questions you can ask.

And yet the republic endures.

Looking for another case to generate outrage?  Try Imbler v. Pachtman giving absolute immunity to prosecutors.

We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest.

What "broader public interest?"  Oh, yeah, convicting bad guys.  You see, if prosecutors were held responsible for lying and cheating and hiding evidence and . . . . Well, then they might be wary of lying and cheating and hiding evidence and . . . .

So to ensure that the republic endures.

And yet it does.

Consider Matthew Swaye and his partner Christina Gonzalez.  The folks on this Wanted poster.

The offense, if you can't read it, is "30th Pct. Professional Agitators."  And the poster includes their home address.

From DNAinfo.com.

It was spotted by multiple people, including the couple, when it was taped to a podium outside a public hearing room in the 30th Precinct house last Thursday, where residents met for precinct council meeting.

"Be aware that above subjects are known professional agitators," read the flyer, which bears the NYPD shield and a seal of the NYPD's Intelligence Division. It also gave the home address of the couple.

"Above subjects MO is that they video tape officers performing routine stops and post on YouTube," the sign said. "Subjects purpose is to portray officers in a negative way and too deter officers from conducting there [sic] responsibilities."

The flyer also listed the name and cellphone number of a Sgt. Nicholson in the 30th Precinct, and implored cops to "not feed into above subjects propaganda."

Intimidation, along with a warning against getting caught abusing the power. Not bad for a simple poster.

And yet, the republic endures.

Ken at Popehat and guest blogging at The Agitator recalls watching a number of Filipinos taking the oath to become naturalized citizens.

One said, not with anger but with the tone of a dream finally realized, "We've waited so long for this."

And oh, how they had waited. These men, born Filipinos, answered America's call in World War II and fought for us. President Franklin D. Roosevelt asked the men of the Philippines to fight, promising them United States citizenship and veterans benefits in return. 200,000 fought. Tens of thousands died. They weathered the brutal conditions under Japanese occupation, fought a valiant guerrilla war, and in some cases survived the Bataan death march.

In 1946, Congress reneged on FDR's promise. Filipino solders who fought for us and their families were not given their promised citizenship, let alone benefits. Many came here anyway, had children who were born U.S. citizens, and some even became citizens through the process available to any immigrant. But many others, remembering the promise, asked that it be kept. And they waited.

They waited 54 years, until after most of them were gone. It was not until 1990 that Congress finally addressed this particular stain on our honor and granted them citizenship. (They never received their promised benefits, and never will. Some received lump sum payments of up to $15,000 in 2009 under the unpopular stimulus bill, some 68 years after more complete benefits were promised. Most of the happy men I saw that day 20 years ago are dead.)

A promise, after all, is a promise, and the republic endured the decades of shame. As it has endured, and continues to endure, the decades, no the centuries of shame of our treatment of Native Americans, you know, the ones we call American Indians. The ones with whom we broke (and, according to many, continue to break) treaties right and left.

And yet the republic endures.

And in some sense, and to some degree

• Despite the fear and outrage and horror
• Despite the broken promises and dreams deferred
• Despite Gitmo and Abu Ghraib and waterboarding
• Despite Sheriff Joe
• Despite Sharon Keller and the cold-blooded murder of Cameron Todd Willingham
• Despite Scope and Grope and the TSA
• Despite the Patriot Act and Stop and Frisk
• Despite Korematsu and Plessy and Buck and Dred Scott and Schenck
• Despite Bush v. Gore and Citizens United and Arizona v. United States
• And, yes, even despite the Affordable Care Act and National Federation of Independent Business v. Sibelius

Despite all that, the republic endures.

Shaky though it may sometimes seem.

Though Jefferson's warning, his admonition, his Declaration stands.

Not yet. Not today. But at some point. At some times. 

When in the course of human events.

Revolution is obligatory.

So said the rich white guys who put, quite literally, their Lives [their] Fortunes and [their] sacred Honor" on the parchment.

On this date 236 years ago.

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

h/t Scott Greenfield and others for the story about Matthew Swaye and Christina Gonzalez