Defending People

Last Fri­day was Con­sti­tu­tion Day, a day when, by law, every edu­ca­tional insti­tu­tion receiv­ing fed­eral funds has to edu­cate its stu­dents about the con­sti­tu­tion (Ruthann Rob­son, Con­sti­tu­tional Law Prof Blog).

Or, as I call it, the think­ing person’s Patriot Day.

Con­sti­tu­tion Day has been around since 2004, but blog posts includ­ing the phrase “Con­sti­tu­tion Day” are up almost 300% between Sep­tem­ber 12–19, 2009 and Sep­tem­ber 12–19, 2010. Why? Mondo Fra­zier (Death By 1000 Paper­cuts) cer­tainly has it right:

It only took 19 months of the Obama administration–aided and abet­ted by a Con­gress more intent on push­ing unpop­u­lar laws than pro­tect­ing the free­doms of the cit­i­zens who elected them–to spark this renewed broad inter­est in the U.S. Constitution.

To which this 15-year criminal-defense lawyer says, “it’s about damn time!” Because one day out of the year we all ought to at least make noises like the Con­sti­tu­tion is important.

A search for “Con­sti­tu­tion Day” turned up the ED.gov blog, which I was sad to dis­cover had noth­ing to do with Bob Dole. Rather, it’s the web­site of some vast fed­eral bureau­cracy. Accord­ing to that site, the Sec­re­tary of Edu­ca­tion gave a Con­sti­tu­tion Day speech “encourag[ing] stu­dents to honor the free­doms pro­vided by the Con­sti­tu­tion by work­ing hard to shape their own des­tiny.” That’s the Con­sti­tu­tion as vague plat­i­tudi­nous motivator.

Unlike the Dis­trict of Colum­bia, where you can be fined for show­ing peo­ple where the Con­sti­tu­tion is (Todd Hen­der­son, Truth on the Mar­ket), the blo­gos­phere allows me to serve as your meagerly-paid tour guide to the best of the blawgs.

When we talk about the Con­sti­tu­tion, we often pick our favorite part. As did this cus­toms agent, on Scott Henson’s (Grits For Break­fast) Constitution-Day return to the U.S. from Canada wear­ing a t-shirt memo­ri­al­iz­ing the Fourth Amendment:

“That’s a great t-shirt,” he announced with a grin, “I’m a big fan of the US Con­sti­tu­tion, espe­cially the Sec­ond Amend­ment. You know, I took an oath to uphold and pro­tect the Con­sti­tu­tion when I took this job,” he added, “and if you ask me, these days the biggest threats are com­ing from within this coun­try instead of out­side it, if you know what I mean.” I had in fact not asked him, but I nod­ded my head in agree­ment, even though one imag­ines he and I likely dis­agree over exactly what inter­nal threats the Con­sti­tu­tion presently faces.

“Espe­cially the Sec­ond Amend­ment.” Because we do tend to pick and choose the parts of the Con­sti­tu­tion to which we ded­i­cate our energy, don’t we?

Doug Berman (Sen­tenc­ing Law and Pol­icy) quotes some of my own favorite parts of the Con­sti­tu­tion and opines that the criminal-law related pro­vi­sion given the least respect or atten­tion in mod­ern times is the Reprieves-and-Pardons Clause of Arti­cle II (“The Pres­i­dent … shall have Power to Grant Reprieves and Par­dons for Offenses against the United States, except in Cases of Impeach­ment”). That wouldn’t even have occurred to me… which just goes to prove Berman’s point.

I did a quick-and-dirty tally of blog men­tions of var­i­ous parts of the Con­sti­tu­tion. The First Amend­ment, you will be unsur­prised to learn, is huge in the blo­gos­phere, with about 13,565 men­tions between Sep­tem­ber 12 and Sep­tem­ber 19, 2010.¹

The lead­ing First Amend­ment blog is the Legal Satyri­con, where Charles Platt notes that U.S. Supreme Court Jus­tice “Breyer com­pares burn­ing a Koran to shout­ing “Fire!” in a crowded the­ater.” Platt con­tin­ues, in dry Satyri­con­ista style, “I guess this must mean that if you do any­thing at all which upsets delu­sional wackos, you are not pro­tected by the First Amend­ment. That’s good to know.”

It’s good to have sites like Legal Satyri­con, since the First Amend­ment is petty func­tionar­ies’ least favorite part of the Con­sti­tu­tion. Why? Because it allows peo­ple to –gasp– crit­i­cize peo­ple like them aloud. Eugene Volokh (The Volokh Con­spir­acy) writes of Wis­con­sin family-court orders that a woman never again speak online about her ex-husband, and not speak online about his lawyer for four years:

The injunc­tions strike me as patently and vastly over­broad, and there­fore clearly uncon­sti­tu­tional. Even if a nar­row injunc­tion of con­sti­tu­tion­ally unpro­tected speech — such as an injunc­tion against repeat­ing state­ments that have been found to be libelous — might be con­sti­tu­tional (a mat­ter that remains unre­solved), an injunc­tion against all Inter­net speech about a par­tic­u­lar per­son can’t be squared with the First Amendment.

On Con­sti­tu­tion Day a peti­tion for writ of cer­tio­rari was filed (Conor McEvily, SCO­TUS­Blog) ask­ing:

Whether the states may, con­sis­tent with the First Amend­ment, restrict attor­ney adver­tis­ing that involves unver­i­fi­able claims, includ­ing implied claims about the qual­ity of attor­neys’ legal ser­vices, and mar­ket­ing tech­niques that do not assist the pub­lic in the intel­li­gent selec­tion of counsel.

Some­times we might be tempted to think the petty func­tionar­ies have a point. Would this adver­tise­ment, which David Shul­man (South Florida Estate Plan­ning Law) brought us word of last week, qual­ify as “mar­ket­ing tech­niques that do not assist the pub­lic in the intel­li­gent selec­tion of counsel”?:

(The sign was later removed from the bench near the Broward County courthouse.)

Mike Mas­nick makes an argu­ment for First Amend­ment geeks to love: that copy­right law itself vio­lates the First Amend­ment (TechDirt). But—while we criminal-defense lawyers focus our energy on the Fourth, Fifth, Sixth, and Eighth Amendments—Terry Hart reminds us that there is more to the Con­sti­tu­tion than the Bill of Rights when he tells us how the Copy­right Clause, Arti­cle I, Sec­tion 8, became part of the Con­sti­tu­tion (Copy­hype). If Mas­nick is right, then copy­right law was con­sti­tu­tional only from Sep­tem­ber 17, 1787 to Decem­ber 15, 1791.

The Sec­ond Amend­ment is big on the blo­gos­phere too, with 1,281 blog men­tions in eight days. (Curi­ously, peo­ple blog­ging about the Sec­ond and Tenth Amend­ments are much more likely to abbre­vi­ate the ordi­nals than are peo­ple blog­ging about the other Amend­ments in the Bill of Rights. Sim­i­larly, peo­ple blog­ging about Arti­cle II are much more likely to use the Ara­bic, rather than Roman, numerals.)

Below the Sec­ond Amend­ment, inter­est quickly peters out until you reach the Tenth.

False confessions—a prob­lem that the Fifth Amend­ment should minimize—were in the blogs last week, as was the pos­si­bil­ity that police forces could record inter­ro­ga­tions. Nate Bur­ney writes at The Crim­i­nal Lawyer:

There’s been grow­ing pres­sure for police depart­ments to video­tape inter­ro­ga­tions, and the prac­tice has been adopted here and there.  There are no good rea­sons not to tape inter­ro­ga­tions — dig­i­tal cam­eras are com­modi­ties now, and dig­i­tal mem­ory is insanely cheap.  Detec­tives can review ses­sions at will, glean­ing more (and more accu­rate) data from them over time.  They can only help the police do their job.

Scott Green­field (Sim­ple Jus­tice) says that video­tap­ing con­fes­sions may help:

But it most assuredly won’t be an iron­clad guar­an­tee that false con­fes­sions won’t hap­pen.  The art form of inter­ro­ga­tion will adjust to a cam­era, and cops will refine their tech­nique to make sure that it plays well to a jury.  Short of the video cap­tur­ing a sus­pect being beaten, the inter­ro­ga­tion will have some of the  trap­pings of coer­cion, as most do, but also fall into that prob­lem­atic area that peo­ple don’t con­fess to crimes they didn’t commit.

But Mike (Crime and Fed­er­al­ism) reminds us that there’s a good rea­son that the FBI doesn’t record inter­views:

“Per­fectly law­ful and accept­able inter­view­ing tech­niques do not always come across in recorded fash­ion to lay per­sons as proper means of obtain­ing infor­ma­tion from defendants.”

The FBI seeks invis­i­bil­ity because, as Paul A. Rahe (BigGovernment.com) points out, “when human beings armed with author­ity are invis­i­ble, they tend rightly to sup­pose that they can get away with a lot.”

If the Sixth Amend­ment is your thing (I know it’s mine), Gideon (A Pub­lic Defender) advo­cates improv­ing jury tri­als by allow­ing jurors to ask ques­tions in clos­ing argu­ment, and Brian Tan­nebaum (Crim­i­nal Defense Blog) encour­ages you to com­plete a survey:

A cur­ricu­lum is being devel­oped by the ABA, NACDL and the Span­gen­berg Project at George Mason Uni­ver­sity for an upcom­ing indi­gent defense train­ing and tech­ni­cal assis­tance project funded by the Depart­ment of Jus­tice Bureau of Jus­tice Assis­tance. This com­pre­hen­sive cur­ricu­lum will be devel­oped to present four regional train­ing pro­grams across the coun­try for lawyers rep­re­sent­ing indi­gent per­sons in crim­i­nal cases. The sur­vey closes on Octo­ber 4th.

If you are a fan of the Sev­enth Amend­ment, court-o-rama is about the only game in town.

Inter­est spikes again when we get to the Tenth Amend­ment. “Fed­eral power bad, state power good” is a recur­rent theme among those who come to Con­sti­tu­tion Day via the Tea Party (see Jayde Wyatt at Mitt Rom­ney Cen­tral: “Our U.S. Con­sti­tu­tion stands as a tes­ti­mony for those who founded our nation and their belief in lim­ited fed­eral gov­ern­ment power” [empha­sis added]), but those state leg­is­la­tures are a much greater and more immi­nent threat to indi­vid­ual free­dom than Con­gress is.

The Tea Party influ­ence is every­where this year. There’s a ConstitutionDay.com web­site (by par­ties unknown), “rec­og­niz­ing all who, are born in the U.S. or by nat­u­ral­iza­tion, have become cit­i­zens.” I, a U.S. cit­i­zen nei­ther born in the U.S. nor nat­u­ral­ized, feel left out. That site’s myopic cat­a­log of types of U.S. cit­i­zens may reflect its authors’ wish­ful mis­in­ter­pre­ta­tion of one of the less-sexy orig­i­nal parts of the Con­sti­tu­tion that has been get­ting a lot of air­time, this clause of Arti­cle II Sec­tion 1:

No Per­son except a nat­ural born Cit­i­zen, or a Cit­i­zen of the United States, at the time of the Adop­tion of this Con­sti­tu­tion, shall be eli­gi­ble to the Office of President.…

Randy E. Bar­nett and William J. How­ell make the case for a “Repeal Amend­ment,” allow­ing the leg­is­la­tures of two thirds of the states, act­ing together, to repeal any fed­eral statute (WSJ). I’m in favor of giv­ing the states an eraser, but this brought me up short:

This amend­ment reflects con­fi­dence in the col­lec­tive wis­dom of the men and women from diverse back­grounds, and elected by diverse con­stituen­cies, who com­prise the mod­ern leg­is­la­tures of two-thirds [sic] of the states.

Seri­ously, the “col­lec­tive wis­dom” of the small-time polit­i­cal hacks who get them­selves elected to state leg­is­la­tures? Have you ever seen the Texas legislature’s work prod­uct? The best thing about Bar­nett and Howell’s idea is that every day state leg­is­la­tures spend try­ing to repeal fed­eral statutes is a day they can’t spend pass­ing the state statutes that do more to make us less free.

In other let’s-change-the-whole-system think­ing, Jack Balkin (Balkiniza­tion) talks about the con­se­quences of a sec­ond con­sti­tu­tional con­ven­tion. It would require a huge amount of polit­i­cal time and energy, and might accom­plish noth­ing. Which is, I think—for the rea­son described in the para­graph imme­di­ately preceding—not nec­es­sar­ily a bad thing. But there is the fright­en­ing pos­si­bil­ity that mod­ern politi­cians, play­ing at being Hamil­ton and Madi­son, would really screw things up. In a twenty-first cen­tury Con­sti­tu­tional Con­ven­tion, there would be hordes of peo­ple (and insti­tu­tions) throw­ing money at the politi­cos to per­suade them to do away with judi­cial review or cre­ate a con­sti­tu­tional right not to be offended or advance some other nutjob agenda. The politi­cians may think they’re not sus­cep­ti­ble to per­sua­sion, but they’re all the more per­suad­able for that belief (Rita Han­drich, The Jury Room).

There are things each of us could wish the Framers had found room for in the Con­sti­tu­tion. (Mine is the sep­a­ra­tion of cor­po­ra­tion and state; the Koch-brothers-financed Cato@Liberty would most likely dis­agree.) Steve Klugewicz (The Imag­i­na­tive Con­ser­v­a­tive), how­ever, is of the opin­ion that the first Con­sti­tu­tional Con­ven­tion went entirely wrong:

[T]he Framers of the Con­sti­tu­tion who were pri­mar­ily respon­si­ble for its ulti­mate form and who played key roles in engi­neer­ing its rat­i­fi­ca­tion— James Madi­son, James Wil­son, Gou­verneur Mor­ris, and Alexan­der Hamilton—were them­selves “liv­ing” Con­sti­tu­tion­al­ists, who favored the cre­ation of a cen­tral gov­ern­ment with pow­ers beyond what the vast major­ity of Amer­i­cans in the eigh­teenth cen­tury would ever have coun­te­nanced. “America’s first neo-cons” (to bor­row Gleaves Whitney’s term) craftily designed the doc­u­ment so that the door to the expan­sion of gov­ern­ment power was firmly ajar, most sig­nif­i­cantly through the “nec­es­sary and proper,” and “gen­eral wel­fare” clauses. No mat­ter the moti­va­tions, wishes, or under­stand­ing of the other thirty-five men who signed the Con­sti­tu­tion, it would be the actual words of the doc­u­ment that would matter.

This sug­gests that Madison’s words in Fed­er­al­ist 45 were empty promises.

Patrick J. Deneen (Front Porch Repub­lic), on the occa­sion of Con­sti­tu­tion Day, looks beneath the struc­ture of the Con­sti­tu­tion at the Framers’ “new sci­ence of pol­i­tics” that under­lay it, and pub­lishes a 1961 speech of polit­i­cal the­o­rist Wil­son Carey McWilliams, who saw haz­ard in that science:

The sci­ence of pol­i­tics which lies at the base of the Framers’ the­ory is and was a sci­ence of lone­li­ness, designed with the arts of the magi­cian to pre­vent men from attain­ing con­tact and com­mu­nity, designed to com­pel him to find mean­ing only in things, in the objects toward which his pas­sions direct him—toward things non-human, toward con­flict and competition.

Finally, why do peo­ple (like this guy, and this guy, who really should know bet­ter) recit­ing the pre­am­ble so often leave out the words “of the United States” after “We the peo­ple”? I blame this:

This guy gets it right, but he’s prob­a­bly never seen School­house Rock.

Blawg Review has infor­ma­tion about next week’s host, and instruc­tions how to get your blawg posts reviewed in upcom­ing issues.

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¹ Approx­i­mate num­ber of men­tions of each of the fol­low­ing phrases, along with the word “con­sti­tu­tion,” between Sep­tem­ber 12, 2010 and Sep­tem­ber 19, 2010, accord­ing to Google Blogsearch:

“Arti­cle I”: 1,090 / “Arti­cle 1″:245
“Arti­cle II”: 161 / “Arti­cle 2″: 214
“Arti­cle III”: 115 / “Arti­cle 3″: 120
“Arti­cle IV”: 86 / “Arti­cle 4″: 66
“Arti­cle V”: 73 / “Arti­cle 5″: 54
“Arti­cle VI”: 91 / “Arti­cle 6″: 100
“Arti­cle VII”: 41 / “Arti­cle 7″: 56
“Bill of Rights”: 7,039
“First Amend­ment”: 13,452 / “1st Amend­ment”: 1,225
“Sec­ond Amend­ment”: 2,633 / “2nd Amend­ment”: 1,995
“Third Amend­ment”: 14 / “3rd Amend­ment”: 3
“Fourth Amend­ment”: 125 / “4th Amend­ment”: 47
“Fifth Amend­ment”: 121 / “5th Amend­ment”: 26
“Sixth Amend­ment”: 22 / “6th Amend­ment”: 8
“Sev­enth Amend­ment”: 11 / “7th Amend­ment”: 6
“Eight Amend­ment”: 21 / “8th Amend­ment”: 11
“Ninth Amend­ment”: 26 / “9th Amend­ment”: 15
“Tenth Amend­ment”: 173 / “10th Amend­ment”: 1,082

And so forth.

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This entry was posted by Mark Bennett on Sunday, September 19th, 2010 at 6:41 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.