Because There's No Danger So Slight That It Isn't Worth Sacrificing Liberty to Prevent

Here's the set up.  Joe Nocera, liberal columnist in the Times, invites Dan Baum a self-described liberal and "gun guy" (author of Gun Guys: A Road Trip) to debate (in Joe's column) guns and gun control.

Baum's not Wayne LaPierre.  He describes the N.R.A. as "a hideous organization."  He's comfortable with requiring gun locks and punishing gun owners (assuming you can identify them, since he disapproves of registration) whose guns weren't locked up and get stolen and used in crimes.  He wants folks who carry guns to be well-trained.

I think somebody who wants to carry a gun should be at least as well trained as the police. Right now, for example, if I wanted to carry a gun, my permit would be good in 30 states. But in every state it’s different. I can wear it in a restaurant in this state, but not in that state. In this place, I can take it near a school, but in that place I can’t. Flip the script. Say, “If you get licensed to carry a handgun, you can carry it anywhere. But you have to be trained at least as well as a police officer.” Do you worry when there’s a police officer in your kid’s school? No. You trust the police officer. Trust gun owners. Raise everybody’s level of responsibility instead of treating them like children. It’s getting us nowhere. 

Of course, we could point to serious evidence that the cops aren't all that well-trained, so he's not exactly setting the bar high.  Still, he'd set it.

But this isn't a post about what's wrong with guns.  I've made my position clear (I hope) before.  I hate guns.  I'd be a much happier camper if there were none.  Confiscate and destroy all 300 million in private hands.  And take them away from the cops, too.  But it won't happen, and the Constitution, through the Second Amendment, says it shouldn't.  

And one more time (because I've said it a number of times before), the Second Amendment isn't about protecting the right to hunt or shoot skeet or protect yourself and your loved ones from grizzly bears or burglars or Indians.   It's about having weapons to protect yourself from the government - and to engage in revolution against that government.  (Of course, the Five Who Decide in Heller didn't say that.  Because they are the government, after all, and because they like to protect themselves against burglars and to go hunting with the Veep.)

All that is, as I said, the set up.  This isn't a post about Baum or gun rights or the N.R.A.  It's about something closer to how Phil Ochs described liberals:

Ten degrees to the left of center in good times.  Ten degrees to the right of center if it affects them personally.

It's about silly ideas like banning the Big Gulp.  And it's about, really about, the anti-civil-libertarian liberal's belief that there's no risk so slight that it isn't worth losing our liberty over.

Baum apparently argued in Gun Guys that a focus on banning assault weapons was misguided (or worthless or silly or something) because, says Nocera, "very few people are killed with them." Which leads to this.

DAN: That is true. They’ve been used in these big high-profile mass killings, no doubt about it. But there were no assault rifles at Virginia Tech or Fort Hood.

JOE: But assault rifles were used in Aurora and Newtown. And here is my larger point. When I talk to gun absolutists, they claim that we shouldn’t make such a big deal out of mass shootings because they are statistically insignificant. But so what? We have turned this society upside down because 3,000 people died on 9/11. In the scheme of things, that number is also statistically insignificant. Yet we take extraordinary measures, limiting people’s personal freedoms, to prevent another act of terrorism on our soil. Besides, we enact regulations all the time designed to keep people safe, even when the number of people who have been harmed is small. 

And what's striking is that Nocera hasn't a clue about why that's a problem.  Forget the merits of banning assault rifles (and please, forget the arguments about whether the weapons at issue are actually assault rifles).  Focus instead on the point.  It's ok, desirable, vital even to "take extraordinary measures, limiting people's personal freedoms" to protect against statistically insignificant risks. 

Ben Franklin put it well.

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

And then there's Ochs.

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

Fingers in the Dike

I've been reading Naomi Wolf's 2007 screed The End of America: Letter of Warning to a Young Patriot in which she details "ten classic pressures" that are essential to and lead inevitably toward dictatorship if not promptly stopped.  If you let them go, she says, dictatorship is inevitable and unstoppable. 

Item by item, she reports on how various dictatorships (with special focus on Mussolini's Italy, Hitler's Germany, and Stalin's Soviet Union) adopted and used each of those pressures to cow any opposition, secure absolute control over the state, and destroy individual freedom.

Each of the steps is a chapter title.

1. Invoke an External and Internal Threat
2. Establish Secret Prisons
3. Develop a Paramilitary Force
4. Surveil Ordinary Citizens
5. Infiltrate Citizens' Groups
6. Arbitrarily Detain and Release Citizens
7. Target Key Individuals
8. Restrict the Press
9. Cast Criticism as "Espionage" and Dissent as "Treason"
10. Subvert the Rule of Law

Wolf sees and describes the Bush administration taking steps to adopt each of these.  The result is what she calls a "fascist shift." It's not fascism yet, she says, but it will be if we don't stop it. Soon.

All of us -- Republicans, Democrats, Independents, American citizens -- have little time to repeal the laws and roll back the forces that can bring about the end of the American system we have inherited from the Founders -- a system that has protected our freedom for over 200 years.
I have written this warning because our country . . . is in the process of being altered forever.

She blames all this on the Bush administration and sees the evil in Karl Rove's stated goal of a "permanent Republican majority." And she's concerned that the then-newly elected Democratic-controlled Congress won't undo all the damage.

OK, that was 2007.  Now we know.  The Democrats in Congress didn't fix it when they were in power, and while Obama's administration has eased some of it (apparently, though who really knows, we no longer waterboard ourselves, preferring to outsource direct torture through rendition), it's been more than happy to pursue an anti-civil-liberties agenda.  (As, by the way, did the Clinton administration.  It's folly to believe that any President - or any Congress - will embrace most of the Bill of Rights except, perhaps as a rhetorical device.)

Wolf, again, wrote that in 2007.  And with a built in hatred of the Bush administration.  Consider torture. The experts say it doesn't work.  So he asks this question.

Because torturing prisoners is counterproductive if the goal is securing the Homeland, and because it makes us pariahs in the eyes of the rest of the world, then what could be some genuine reasons why this is so important to this White House?

The implicit answer, of course, is that Bush and company were using the torture of the prisoners at Guantanamo to scare the rest of us. What we do to them, we can do to you. Maybe. But I doubt it. Wolf's question, after all, assumes that those driving the torturing, and those who did it, acted with a canniness I don't see any indication they had. And it assumes that they knew - and actually believed - torture to be counterproductive.

More likely, they actually thought it worked. That's certainly the explanation they offered and the defense they continue to offer.

Torturing those guys kept us safe.  No longer torturing them endangers us.

Besides, look at the pictures from Abu Ghraib. The torturers were having fun. Shits and grins, as they say.

Ultimately, motivation probably doesn't matter. If you end up with a police state, it doesn't really matter much whether you got there by design or by accident.  If we're on the path, regardless of whether the road is carefully paved, we want to get off.

Rick Horowitz, looking more at his own practice and at how the police and courts treat his clients.makes essentially the same point right now. (I'm leaving in his links but deleting his footnote.)

To argue that we should never compare what’s happening in America today to what happened in Germany in the period leading up to the Nazi disaster is to risk ignoring the warning signs should it ever occur again. And don’t think it can’t happen here. As I’ve noted more than once previously (yes, I’m going to quote myself), pre-Nazi Germany wasn’t all that different from the United States today:

As alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which there were constitutionally-protected freedoms. As Ingo Müller has pointed out, the German legal system was brought down not overnight, but over a period of time, by “the doctrine of ‘national emergency.’”

But, secondly, I’m not even trying to argue here that the police are Nazis.
Not yet, anyway.

And he's about had it.

One reason I haven’t been blogging as much lately is I’m too angry. I’d be calling for a bloodbath: shoot all governmental authorities on sight, I’d be saying. To avoid doing that, I’ve just stopped writing much of anything.

It's all too easy to get to this point.  Follow Radley Balko's nearly daily links to stories of puppycide.  (Here, for instance.)  Look at Scott Greenfield's But for the Video series. (Here, for instance.)  Read . . . Aw, hell, there's too much to point to.

Wolf is right.  So is Horowitz.  We're edging down the path. The steps (they both recognize this) are incremental.  The thing is, enough small steps add up.

Here's the thing.  I can't change the system.  Neither can you.

And, frankly, most people don't really give a damn.  And can't be made to.

We can do it collectively, but frankly none of us with our blogs - not even all of us with our blogs - have the clout.

So we can speak up, each in our own way, and we should.

And we can band together as we can.  There is strength in institutional numbers.  But there are limits, too.

Beyond that, I'm a criminal defense lawyer. What I do is work for my clients.  This one today, that one tomorrow. Greenfield:

The criminal defense lawyers who hit the wall of frustration and break through are the ones who keep the system as honest as it can ever be. It may not be much, but without them, there is no one to impede the machinery of justice. We've all been there. We just keep fighting. Sometimes it help to make a joke of it just to keep our sanity. Sometimes a stiff drink helps. A vacation is always a good idea. Whatever it takes, break through the wall. Welcome to the other side.

Because, really, it's what we do.  One damn case at a time.

 

Use 'Em Or Lose 'Em

Today is Bill of Rights Day.

Originally, twelve amendments were proposed for ratification. The first was never ratified.  The second was ratified in 1992 and became the 27th Amendment.  The rest, numbers three through twelve, were ratified and officially adopted into the Constitution on this date 220 years ago, December 15, 1791.

The Bill of Rights.

Before the day was over, we began eviscerating them.

They're not altogether gone, of course.  Hell, Tim Lynch over at Cato@Liberty notes that the Third is in really good shape.  

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

It's continued vitality rests in large part on your continued ignorance.  If we spent any time needing to exercise it, you can be pretty sure they'd gut it.  (And remember that we're in a war against drugs and a war against terror and a war against poverty - except we pretty much surrendered in that one - so if Congress wants to prescribe a manner you might be cooking for a platoon.)

Anyhow, today's a day to celebrate the ever weakening amendments.  And to remember why we have them.

Dust them off, polish them up.

Let's see if we can make them shine.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

 

Rich, White Men - and Revolutionaries

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.

With those words, a bunch of rich white guys signed off on this quite extraordinary document.

You know how it begins, and if you don't, you should.

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. 

Think about those words.  "When . . . it becomes necessary."  Not if it should happen.  When it does happen.  For it will.  That's the opening.  In time, "in the Course of human events," it will be "necessary" - not just once, from time to time - "necessary" to undo the government.  But it's no trivial thing.  So important is it, and so important and even tenuous an act, that it must be explained, justified.  With clear argument so as to make it understood.  That's the "decent respect [owed] to the opinions of mankind."  Logic.  Argument.

First the premises:   

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.

And there it is again.

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.

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 harass 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 benefit 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.

Or something of the sort.  Which will happen.  Because in time, power will beget power.  Absolutely.  And always.

Then, then, 

it is their right, it is their duty, to throw off such Government.

The thing is, Jefferson really believed it.  He is, after all, the one who offered this.

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.

Damn.

A bunch of rich white guys.  

Their lives, their fortunes, their sacred honor.

Happy Independence Day!

Justice Redux: Who We Are and What We Do Yet Once More

This started out to be a comment on Mark Bennett's latest (as I write this) post on "Justice" and "justice."  Actually, it kind of began as a comment on John Kindley's comment on Bennett's post.  But it was getting clumsily long, starting to feel like I was hijacking Bennett's piece.  So I decided to come over here and do my own.

Here's what passes for the background.  The criminal law blogospshere gets roiled from time to time with discussions about just what it is we do and why.  Kindley, at his blawg, People v. State, and in comments on other blawgs, has for some time staked out the position that he seeks justice.  Others of us, at various times, on our own blawgs and in comments on others', have said - and for somewhat different reasons and in different ways - that we don't.  (No links to specific posts here, but search around in Simple Justice and Defending People and Norm Pattis and A Public Defender and lots more.)

Well, as I suggested in the first paragraph, it's back in a string of recent posts by Kindley and Bennett and Pattis and comments by them and others.

Anyhow, in the comment that got me started on this, John wrote this (among other things).

Certainly it appears to me that most criminal defense lawyers I know in the blawgosphere and in real life have what I’d call a well-developed sense of justice. We are passionate and get pissed off about things, particularly about injustices perpetrated by state actors.  I believe some of us, if we could switch hats for a second, would gladly prosecute some of these abusers (and some of us, like Norm [Pattis, linked above] kind of do, via Section 1983). I bet some of us would be positively happy to see some of them in jail. Sadly, some of our clients have done things every bit as inexcusable and abusive as these State-sanctioned abusers.

That whole switching-hats thing gets at part of the problem, I think.

I'm a criminal defense lawyer.  I advocate for the interests of my client because I've chosen that job (or maybe it chose me, but that's another discussion).  I choose (we'll stick with that) to advocate for the interests of the criminally accused because at the end of the day, I think it makes for a better society to have what we euphemistically call the "criminal justice system" tilted strongly in favor of the criminally accused.  The state has too much power, power that it readily abuses.  One way to check that power, to rein it in, is to defend those against whom it is directed.

It doesn't matter, it's simply irrelevant, whether those people have actually done what the government claims they have.  Nor does it matter whether what those people are said to have done is what law professors like to call malum in se (bad in itself, say, murder) or malum prohibitum (a wrong only because some legislative or executive or judicial body says it is, say servicing a mare within 30 feet of a public street in Ohio.  I happily defend them because the government is out to get them.
But that I advocate for my client who may have killed someone, and that I am pleased if I am successful and the killer goes home, does not mean that as an abstract proposition I want murderers running around the streets.  I want my neighborhood (and yours) to be safe.  I'm not opposed to sanctions against those who would do us harm, and in appropriate cases, confinement for a time, even a long time, may well be an appropriate sanction.

And I'm certainly not opposed to those (I've done it to, though I don't currently) who use civil litigation to curb government abuse.  But I will defend, against criminal charges, those same allegedly abusive government officials.

Because as a criminal defense lawyer, I don't give a rats ass what they did.  I'm defending them against the power of the state.  Were I also doing 1983 work, I'd be going after them as agents of the state, on behalf of their victims, for abusing the power the state gives them.  Think victims, for a moment, and it starts to become clear.  The civil case victim of an abusive cop is the person abused.  The criminal case victim of a cop who abuses people is the government.  I represent people against governments, not governments against people.

Look, I'm a criminal defense lawyer.  I'm also a husband, father, brother.  I'm a balding guy with gray hair and a bushy mustache.  I'm a Mets fan (which is tough these days).  I am the owner of an automobile and a snow blower.  I am a reader of crime fiction and renaissance English literature, of books on particle physics and on legal philosophy.  I am dozens (hundreds? thousands?) of other things. 

As I say, I want safe streets.  I want a community free of dangerous people whether they are criminals or cops or just folks who happen to be dangerous but without either position or formal accusation.  But my job as a criminal defense lawyer is not to create, not even to enable that community.  It's to hold back the government.  It's the government's job to ensure - hell, nobody's ever put it better than the Preamble does.  The job of the government is plain:

[T]o form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

That's a tall order.  And it embodies conflicting goals.  One is to "establish Justice,"  whatever the hell that means, but it clearly involves making up rules, which is a set up for trouble.  Another is to "insure domestic Tranquility," which is something like working to see that the rules are followed and keeping us safe from bad guys.  A third is to "secure the Blessings of Liberty."  That's liberty against the government.  (Remember, the same folks who drafted the Preamble also drafted the clauses permitting slavery; they clearly weren't concerned with liberty against private people.)

I choose (again, I'm taking responsibility for the choice here) to make my living, and to do my part to effect the goals of the Constitution on the "secure the Blessings of Liberty" part.  I don't see how you can sign on for both securing liberty and making or enforcing rules that, pretty much by definition, limit liberty.

I'm not an anarchist.  I operate within the system even when I don't much like it.  But my job occurs in my part of that system.  And that's just not the "justice" or "Justice" part.  Unless you make the terms meaningless.

Which brings me back to John Kindley.  He says in his latest post that those who disagree with him have

opined that my ideas are a menace to society so long as I’m practicing criminal defense.

I don't know.   I disagree with him about what the role of a criminal defense lawyer should be and about what we do conceptually.  But if he advocates zealously and fearlessly and competently for the best possible outcome for his client, innocent or guilty, and if he does that regardless of whether he believes that as an abstract proposition people do what he believes his client did should be publicly disembowled, he can be a fine criminal defense lawyer.

It'll probably be harder for him to be that fine criminal defense lawyer than one who doesn't have that cognitive dissonance, but the job is [typo corrected] ultimately about how we act, not how we feel.

Yet there is a danger to his conflating the roles of justice seeker and criminal defense lawyer.  It may not be a danger for John's clients, but it's a danger for the Republic.  If the Preamble's goals are to have substance, they need all to honored and advanced, not conflated.  One cannot simultaneously advocate for the people and for the state.  Bennett pointed out the irony of Kindley doing that in a blog he calls "People v. State."  That's exactly right.

You Say You Want a Revolution? Nah.

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.

That's how I started last year's Fourth of July post (though I didn't put the last sentence in italics last year).  It's not a bad way to begin this year, either.

And so with revolution in our souls, let's look one more time (I'll try to hold myself in check for a bit and at least consider having it be the last time) at the Generalissima, Elena Kagan - about as non-revolutionary a choice as there could be for the Court.  No surprise that the guy who eschews excitement would choose a nominee who exudes none.

She could end up voting my way on every issue to come before the Court.  (I'd be surprised, really I'd be shocked, but it's theoretically possible.)  I still wouldn't think it was good to put her on the Court (though I'd like her votes).

I want a lawyer who's actually practiced law.  I want someone who's stood in the well next to some poor person charged with a crime or victimized by the police or an unfeeling government agency or a major corporation.  I want a person on the court who knows what it means to stand up for the Bill of Rights at some risk.  Someone who actually knows something about risk.  Someone whose trajectory offered something other than a direct line to where she is.

I want a justice who understands constitutional rights both from the ground up and from the top down.  The Generalissima gets them, insofar as she does, only from the top down.

But then, I get the idea of the Declaration of Independence.  It's a call for revolution by a bunch of wealthy landowners (the same sort who brought King John to heel at Runnymeade and made him sign Magna Carta).  [It's no surprise that having established their republic, these same men were eager to protect "life, liberty, [and] property.]  And yet, there was more.

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.

No small thing, that.  And truly at risk.

The Declaration is not a blueprint for government. (That's the Constitution.)  It is, as I said last year, "a campaign speech for overthrow of tyranny."  And it's one of our sacred documents.  Think about that.  Then look at the Supreme Court.  

Is there even one of them who'd sign?  Who'd risk life, fortune, honor?  One of them for whom honor itself might be something sacred?  

Look at Elena Kagan.

Happy Independence Day.

Sigh.

Are they really self-evident?

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.

So: The Declaration says that government cannot take away the life of a citizen (not a subject, since it is government established by the people - a bottom up, not top down system) but must secure it. No death penalty. Period. (They didn't mean that, of course, though Jefferson was generally opposed to the death penalty.) No encroachments on "liberty," though that's more difficult since "liberty" is less clear a term than "life" (which has its own ambiguity - consider abortion) and besides freedoms can collide and something will have to give. And no interference generally with people's activities. That last is something like what Justice Brandeis said (in dissent, alas) in Olmstead v. United States:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.

As Brandeis understood the goal, so he understood the threat:

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

Brandeis understood that. Those revolutionary land and slave owners who signed the Declaration understood it viscerally if not literally.

It's a good day, this 4th of July, to recall all of that. But we need, too, to remember that the Declaration is not law. The Constitution is. And where the Declaration is a campaign speech for overthrow of tyranny, the Constitution is what they put in its place.

My seventh grade history teacher told us (and this is probably the only specific thing I remember from the class) that "Democracy is the system that allows you to choose your dictator."

Happy Independence Day!!