Friday, October 3, 2008 at 10:51PM in Liberal/Conservative, De-democratization, Covering the courts, Cognitive dissonance Judging Crimes
A View of the Bench from the Trenches
Friday
03Oct
363. We deserve better
A long, long article in last Sunday's Times Magazine began: "Every generation gets the Constitution that it deserves." That, I guess, explains Plessy v. Ferguson and the whole legal structure of Jim Crow.
The article, entitled "When Judges Make Foreign Policy," continues with the following helpful summary of attitudes about international law:
One view, closely associated with the Bush administration, begins with the observation that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people. From this standpoint, the Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security. For the most part, that is, the rights the Constitution provides are for citizens and provided only within the borders of the country. ...
A competing view, championed mostly by liberals, defines the rule of law differently: law is conceived not as a quintessentially national phenomenon but rather as a global ideal. The liberal position readily concedes that the Constitution specifies the law for the United States but stresses that a fuller, more complete conception of law demands that American law be pictured alongside international law and other (legitimate) national constitutions. The U.S. Constitution, on this cosmopolitan view, faces outward. It is a paradigm of the rule of law: rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order. What is most important about our Constitution, liberals stress, is not that it provides rights for us but that its vision of freedom ought to apply universally.So where do you belong, with the "inward-looking conservatives and outward-looking liberals"? Or are you one of those wiseacres who will point out that just a couple paragraphs earlier the writer said the Constitution was facing inward or outward, rather than the liberals or conservatives?
It's hard to imagine a clearer illustration of the total disconnect between the way the words "liberal" and "conservative" are used in the legal world and the way in which they're used in the world of electoral politics. Nothing in the foregoing paragraphs has anything to do with either liberalism or conservatism, as we use those words when talking about, say, candidates for President.
The article goes on to identify the source of conflict: which should govern, democracy or "the rule of law"? Democracy is identified with the conservative position, although the author (Professor Noah Feldman) points out that "the constitutional principle here is actually one that most liberals also fully embrace: namely, the principle of democracy."
Um, that's actually a political principle, Professor. Anyway, "the rule of law" - of course - means whatever judges say it means. The "liberal" position, therefore, is that nations should be ruled by wise people trained in the Scholastic mysteries of the law, ideally old men who enjoy dressing in black robes. You know, the Iranian model (though the beards are optional).
This "liberal" approach worked so well in domestic affairs, after all. We concentrated power in the Supreme Court and that court has ever after busied itself implementing the liberal agenda. For example, what could be more liberal than enforcing the rule of law by inventing a single-use equal protection doctrine to throw the presidential election to one's favored candidate? Talk about putting democracy in its place!
As for giving three Reagan and four Bush appointees veto power over legislation passed by the next Congress? - very, very liberal indeed. One might even say outward looking. Cosmopolitan, even.
I'm afraid that if liberals make themselves believe this kind of thing, they really will get the Constitution they deserve.
Friday, October 3, 2008 at 10:51PM in Liberal/Conservative, De-democratization, Covering the courts, Cognitive dissonance Monday
29Sep
362. Mere reality
On Monday morning in Tijuana, 12 bodies were found piled up on the street.
The grisly discovery capped four days of violence that has shaken the sprawling Tijuana metropolitan area and forced Baja California state officials to plead for more federal police to help control the city. Police on Monday also discovered four bodies in a vacant lot in eastern Tijuana. They had been carefully arranged in a circle and, like other such scenes, carried a narco-message.That's from the LA Times, which adds that "[a]t least 380 people have been killed this year in Tijuana, most of them victims of organized crime, according to Baja California Atty. Gen. Rommel Moreno Manjarrez's office."
(Excuse me. Rommel?)
All of them, of course, were victims of America's war on drugs. It's longstanding U.S. policy to maintain a lucrative black market in untaxed goods. As Misha Glenny shows in his entertaining, disturbing, altogether brilliant McMafia: A Journey Through the Global Criminal Underworld, the one thing the worst thugs around the world have in common is their dependence on government.
Of course, governments (well, most governments) don't intend to subsidize their thugs. It's typical of the American way of looking at the world to focus exclusively on the intention and ignore the result. Anyone who works in the criminal justice system sees it every day.
The exclusionary rule is intended to deter police misconduct, so it does. It's not intended to encourage criminal misconduct, so it doesn't. For most judges and lawyers, that's enough. More than enough.
But it's not a failing unique to our little courtroom corner of solemn make-believe. I was reminded of it when my local newspaper republished a different LA Times piece, this one having to do with the drinking age.
Scanning the article, I was struck by arguments that proceeded from the premise that a drinking age of 21 prevents people younger than that age from drinking. Proponents of the current drinking age cite evidence - or pseudo-evidence - that 18-20 year olds shouldn't drink, and consider their point made. The fact that the drinking age doesn't actually stop younger people from drinking seems to be beside the point.
(Among the pseudo-evidence is the claim that raising the drinking age in 1984 is responsible for a 13-percent drop in traffic fatalities. Air bags didn't contribute? Improved medical care didn't contribute? Crackdowns on DWI, and the invention of cell phones with which those sharing the road might call 911, didn't contribute? Thirteen percent is pretty pathetic, really. Just imagine how much greater the drop would have been if their parents hadn't bought SUVs for them...)
Binge drinking on campuses is an expression of the weird neuroses Americans have about alcohol, and have had at least since Prohibition seemed like a good idea. The annual deaths of college students who overdose on alcohol is also due to their lack of awareness that marijuana's suppression of the vomit reflex has its downside, too.
There are times when it's actually a good thing to throw up. Tainted fish and an entire bottle of tequila are the two that jump immediately to my mind, although I'm sure you have your own memories of near-death experiences.
The war on drugs is, at least ostensibly, intended to put drug lords out of business. In practice it creates a business for them. Also, many millions of incentives for enforcing it with mass violence.
But then, which is more important? Good intentions, or mere reality?
Monday, September 29, 2008 at 11:06PM in Drugs, Courtroom unreality Sunday
28Sep
361. Normalization
Tanae and her cousin, Mishay Williams (Mishay), were standing on the porch outside Tanae's house. [FN3. Tanae was 14 years old and Mishay 12 years old at the time of trial.] ... Tanae's 16-year-old brother, Deron Calhoun (Calhoun), and their mother walked to an ice cream truck at the corner of 41st and Naomi Streets. A few minutes later, Tanae saw Vince walking up Naomi Street toward the ice cream truck, holding a “long black gun.” Tanae ran into the house with Mishay, got on the floor, and heard gunshots. ... After the shooting, there was a hole in the front window of her house.
That's from an unpublished decision of California's Second District (i.e., LA, Ventura, Santa Barbara, San Luis Obispo) Court of Appeal. The case was People v. Paul, it came out July 9, 2008, and I haven't been able to find a link to it.
It was a routine case - just another shooting. What got me was kids, younger than 14 and 12 at the time of the incident, knowing exactly what to do when they saw a man coming up the street with a rifle. They ran into the house and dropped below the level of the windows.
For those kids, gunfire and sudden violent death was, if not exactly normal, something that could reasonably be anticipated. For a caregiver, part of responsible parenting was teaching children how to recognize and respond to such potentially lethal threats.
I think that the process of normalization is the single most important variable in establishing the rate of a community's violent crime. What people expect influences what actually happens, and not in some semi-mystical Heisenberg Uncertainty Principle sort of way. (Besides, I'm talking about the macroscopic world - the one with bullets.)
I can best explain what I mean with an illustration, and luckily one comes readily to hand:
My brother Peter Jacobsen wrote a paper a couple years back called "Safety in numbers: more walkers and bicyclists, safer walking and bicycling." It was published in Injury Prevention magazine and became a kind of instant classic in the field of traffic safety. The World Health Organization, for instance, flew him to an Oslo conference on the strength of it.
As described in this Transportation Alternatives article,
The research suggests that the relationship between increased cycling and increased safety varies according to “PJ’s Law”, named for Peter Jacobsen, the California engineer who documented it in an article in Injury Prevention. He found that doubling the number of cyclists on the road tends to bring about a 1/3 drop in the per-cyclist frequency of a crash with a motor vehicle. By the same token, tripling the rate of cycling cuts the crash rate in half.
It seems counterintuitive at first, but it's really not. If the driver of a car expects to see lots of bicycles, he or she will be on the lookout for them, and that much less likely to turn right in front of them, push them off the road, clip their rear wheels, open doors on them, and all those other things cars regularly do to bicycles. As bicycle riding becomes normal, it becomes safer.
I think something similar helps to explain the phenomenon of violent crime rates dropping precipitously in some places (such as New York) while rising in others. Here's one article on the phenomenon. Over the summer, U.S. News reported:
Among cities with populations over 1 million, murder rates dropped 9.8 percent. That is a stark contrast to medium-size cities. Those with populations of 100,000 to 249,999 saw a 1.9 percent rise in murder rates. For cities with 50,000 to 99,999 residents, the increase was even greater: 3.7 percent.In fact, according to Mayor Bloomberg, if not for New York's contribution, the national homicide rate would have been steady last year.
The important variable isn't New York getting safer, but New Yorkers believing it's getting safer. As more people are out on the streets, the streets become safer. 47 years ago, Jane Jacobs observed that "[a] well-used city street is apt to be a safe street. A deserted city street is apt to be unsafe." When safety becomes normal, people are unafraid, which makes the community safer.
What may be good advice for the individual - for example, don't let your daughters walk outside after dark - can be destructive for the wider community of which the individual is a member. It normalizes fear. As fewer girls venture outside alone at night, it becomes more dangerous for girls in general to do so.
The really destructive effect of our judges' social experiments over the past 50 years - their constant reminders that arrogance is just a particularly clueless form of ignorance - is that by requiring communities to tolerate increased levels of violence, they've made violence normal in those communities. The criminal law isn't a succession of individual cases. It's a social dynamic.
Which is why 12-year-olds and 14-year-olds have to be taught to run indoors and lie on the floor - though, of course, only if they're growing up in neighborhoods far from those inhabited by any judges.
Sunday, September 28, 2008 at 10:00PM in Victim demographics, Crime statistics, Normalization Sunday
28Sep
360. Do the hustle
Okay, here's a new one on me. I wonder how long this sort of thing has been going on:
Two Rhode Island lawyers, including the brother of Providence's mayor, and a co-conspirator were sentenced in U.S. District Court in Boston for conspiracy to obstruct justice, obstruction of justice and making false statements. ...
The lawyers, plus a co-conspirator and a legal assistant, made an illegal deal with a couple who were facing drug trafficking charges in federal court in Boston. They promised to give the clients information they could pass along to the government to avoid prison if the couple paid them tens of thousands of dollars.Tens of thousands of dollars as in 10 tens of thousands, and then five more. If only they had delivered with the information, they would have gotten away with it:
The couple who were facing drug trafficking charges paid Bevilacqua and Giraldo $100,000, according to a statement from the U.S. Attorney's Office in the District of Massachusetts. Instead of giving the couple the promised information, Bevilacqua, Giraldo and Cicilline told the clients they'd need to plead guilty first.
Cicilline asked the couple for another $50,000 to make sure that Bevilacqua and Giraldo followed through on their end of the deal.I would have thought that basic worst-case planning for any drug dealer would have involved gathering information about one's competitors for just such emergencies. But the flatfoots apparently caught this couple flat-footed.
I know what you're thinking. You're worried that the two lawyers might have received the sort of sentence federal courts regularly impose on drug dealers - 240 months, that kind of thing. Never fear. These guys were lawyers, remember?
Compared to selling cocaine for a fair price, what's so bad about taking advantage of vulnerable people by suggesting they defraud prosecutors and the court, only to cheat them when they bite? 18 and 21 months did the trick.
Sunday, September 28, 2008 at 12:49AM in Drugs Thursday
25Sep
359. Best shot
The Sixth Circuit recently issued a routine little opinion, U.S. v. Mayberry. I'm not sure why they bothered to publish it. I guess it says something new about federal sentencing (all I know about the subject is that it would be unconstitutional if any state did the same).
After an introductory first paragraph, the opinion reads:
Although Defendants James Peoples and Shawn Mayberry were charged only as felons in
possession of a firearm, not with armed robbery, both Defendants allegedly participated in a string
of such robberies prior to their December 24, 2005 arrest. On October 30, 2005, the night of the first
robbery, three men wearing dark clothes and ski masks entered a D & W Food Store in Grand
Rapids, Michigan at just before midnight. At least two of these men were armed, and both of the
armed men were described by witnesses as African-American. Additionally, one of the armed
robbers was carrying an assault rifle with a wooden stock and distinctive scratches in the wood.
During the two minutes the robbers spent in the store, approximately $5000 was stolen.
On November 19, 2005, four armed men wearing masks entered a different D & W Food Store at just before midnight. One of these men was carrying an assault rifle just like the one used in the first robbery. In addition to stealing money, the robber carrying the assault rifle attempted to steal several cartons of Newport and Kool brand cigarettes, but the cartons he grabbed were empty displays. After robbing the store, the men fled in a black, four-door pick-up truck which fit the description of a truck which had been rented by Defendant Peoples’ cousin Lashenica Armstrong.
Then a man named Mario contacted police to inform them that he had found an AK-47 at his sister's house, which he confiscated and wished to turn over. (Interesting conversation around the Thanksgiving table in that family.) Of course, the AK-47 matched the gun used in the robberies.
Mario's sister was the mother of James Peoples' children. Peoples called Mario for help in concocting a story to explain why his fingerprints were on the gun. Then an informant came forward and told police that Peoples and Mayberry had tried to recruit him to participate in a third robbery. Peoples and Mayberry were on their way to the home of the target when police, thinking the situation had the potential for getting out of hand, arrested them.
At the police station Peoples got himself tangled up in his stories, and when left alone in the interview room (a tape recorder was running, of course) he talked to himself, saying: "I'm hit."
Did I mention there was surveillance video from the robberies, and Peoples identified his buddy Mayberry as one of the robbers? You can see a still from the video here. He also admitted that he smoked Newport cigarettes, the preferred brand of one of the robbers.
The really interesting thing about the case is that first line of the block quote. Peoples and Mayberry weren't charged with robbery, or with assaulting the various people they pointed major firearms at. They were charged with being felons in possession of firearms.
Assistant US Attorney Timothy VerHey (I have to admit I have never in my life met a person named VerHey) told a Grand Rapids TV reporter:
"We always sit down with the local authorities and decide where are we going to have our best shot, 'cause we want to defiantly get these guys of the street," said VerHey. "In this case, it was better to take it to federal court."In Peoples' federal trial, prosecutors presented all the evidence of his involvement in the armed robbery. Mayberry pled guilty to one count of being a felon in possession, and at his sentencing hearing "the judge found by a preponderance of the evidence that [he] had been involved in at least one armed robbery and eventually sentenced him to 110 months imprisonment."
My impression is that it's becoming increasingly common for ordinary street crimes to be prosecuted in federal court.
I know here in New Mexico there's been a massive transfer of drug cases from state to federal court, thanks to our appellate courts which "interpret" the New Mexico Constitution to provide more "protection" than its federal counterpart, with the wholly- predictable result that the defendants are prosecuted in federal court and wind up stripped of their assets and serving sentences many times longer than any they would have received in our state courts.
The Michigan case suggests a similar trend for violent crimes, something the feds rarely touched not so long ago. I don't doubt that it was a whole lot easier proving the elements of possession of a firearm beyond a reasonable doubt than it would have been to prove robbery. In fact, I'm not sure the federal prosecutors had anything actually to prove, since Peoples admitted touching the AK-47. (The story he eventually worked out was that he thought it was a toy and picked it up casually when he saw it at his girlfriend's house.)
It was certainly much easier to prove the robberies by a preponderance of the evidence - the standard required for imposing a lengthy federal sentence - than beyond a reasonable doubt.
And it might well be that the sort of sentence Michigan courts hand down for armed robberies likely wouldn't have added up to much more than 110 months, anyway.
But isn't it weird that we're prosecuting people for their commission of one crime by charging them with committing a different one?
It's yet another aspect of our criminal justice system's detachment from reality. By making conviction on robbery so procedurally difficult, the courts have created incentives to invent new crimes, with simplified elements but equally-long sentences.
I'm not sorry to learn about the incarceration of anybody who walks into a supermarket with an AK-47 and orders everybody to the floor. But it would be healthier all the way around if we imprisoned them for what they actually did.
Thursday, September 25, 2008 at 10:02PM in Unintended consequences, Courtroom unreality, Conditional criminal law, Sentencing Wednesday
24Sep
358. Instant evolution's gonna get you
A few weeks ago, the comic strip Pearls Before Swine - written by a recovering lawyer, Stephen Pastis - featured Pig, Rat and Goat standing behind a table or wall or something, all looking the same way. (In Peanuts, the wall had stones and they rested their elbows on it, but then Schulz hadn't gone to law school.)
Pig says something like, "My goal in life is to leave every place a little bit better than when I arrived." Rat says: "You already do that." Pig (thrilled): "Really?" Rat: "Every time you leave the room, I feel better." Pig, feeling euphoric, leaves, and Rat says to Goat, "The best insults sound like compliments."
I thought of that when I read a recent opinion by Judge Stephen Reinhardt, the right wing agent provocateur on the Ninth Circuit, whose career has been devoted to making liberalism look ridiculous. (See post 265.) In an opinion this summer, Reinhardt wrote of his "highly imaginative and creative dissenting colleague".
Just think how unfunny that Pearls Before Swine cartoon would had been if Rat's sarcasm had been as crude as that. My point isn't just that Judge Reinhardt is less intellectually sophisticated than a cartoon rat.
No, I take that back. That is my point. But I have other points, too. In the absurd Pledge of Allegiance case, he wrote one of my favorite fatuities:
It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights, whether such statutes are adopted by legislatures or by popular vote...
This is not to say that federal judges should be completely sequestered from the attitudes of the nation we serve, even though our service is accomplished not through channeling popular sentiment but through strict adherence to established constitutional principles. The Constitution contemplates occasions when we must be responsive to long-term societal trends-when determining, for example, that which is “cruel and unusual,” ... This broader long-term social conscience, however, is a matter far different from responding to particular immediate political pressures. We may not - we must not - allow public sentiment or outcry to guide our decisions.
So how does a federal judge tell the difference between long term societal trends and immediate political pressures? Easy-peasy: anything the judge likes is a long term trend, anything the judge dislikes is political pressure. (And if it wasn't long term before, he can do his best to make it so.)
Reinhardt was forced to say that sometimes federal judges are supposed to bend to the will of the people, because (of course) his personal opposition to the death penalty makes him accept the ludicrous idea that judges are better equipped to discern the the evolving standards of decency that mark the progress of a maturing society'" than are members of that society itself. (See post 354.)
There are lots and lots of very good reasons to be opposed to the death penalty, but the contention that Supreme Court justices (of all people) are attuned to what the people really think isn't one of them. Perhaps it's the best the justices can do, when faced with the unfortunate reality that the Constitution twice authorizes capital punishment (here and here).
Anyway, now the justices are contemplating a motion for reconsideration in their Kennedy v. Louisiana case, which held that the death penalty for mere child rape, when the child didn't die, was contrary to the latest trends in evolution. Turns out that Congress recently passed just such a law.
That's what it means to practice criminal law: we deal with matters of the greatest importance by arguing about side-issues such as "national consensus" that are saved from meaninglessness only because they possess no existence at all.
Wednesday, September 24, 2008 at 10:57PM Sunday
21Sep
Big changes coming
I recently signed a contract for a second book to be published in 2009. (Here's information about the first.) The newer new book, to be called For the Sake of Argument: A Life in the Law, will be published by Kaplan Publishing, the trade-book division of the big test-prep company.
It will be about the study and practice of law and will take the form of a memoir, but I'm going to leave out the uninteresting autobiographical bits like my being raised by feral dogs only to fall into a heroin habit after matriculating at Harvard Medical as a 12-year-old.
Taking on these writing commitments has diverted my energy from the blog, as you may have noticed. Also, I find myself more fascinated by the presidential race than by the relatively trivial disgraces of our judicial system.
It's such a bizarre year: that New York Times story headlined "Congressional Leaders Stunned by Warnings" on the economy - "the congressional leaders were told 'that we’re literally maybe days away from a complete meltdown of our financial system'" - followed by the Washington Post covering McCain's published praise of bank deregulation under the headline "McCain Health-Care Article Fuels New Clash Over Economy", as if the "clash" were the part that mattered.
And then there's Sarah Palin's gift of an almost precisely 60-second demonstration of her unreadiness to serve as vice president under an elderly cancer patient.
So all of the thoughts about law and the legal profession that until recently were poured into this blog are instead going toward the books, and with the little bit of attention remaining I find myself thinking about things other than the silly affectations of our judges. Also, I have a nagging feeling that I really ought to focus the website on publicity for the books.
So here's what probably is going to happen, assuming I can re-figure out how to configure a Squarespace website, three years after I initially launched this blog.
First: a new blog will be started, with a broader focus than the law. I like the narrow focus of Judging Crimes and don't want to dilute it, but I also want to include topics that will be of more immediate interest to that species known as "non-lawyers." Two blogs located at the same site seems ridiculous, but since I'm not sure exactly why it's ridiculous I'm going to do it.
Unless someone convinces me it's a really stupid thing to do, I'm going to call the new blog "Think Better Of It," adopting the magpie as a mascot in honor of its reputed habit of snatching shiny objects.
Second, at a more technical level, and assuming I can recall how to configure this thing, the blog will become just one page embedded within the website vaingloriously known as JoelJacobsen.com.
Third, I might even put some pictures up. Maybe even a more recent photo of me.
Fourth, other stuff that escapes me at this precise moment. Stay tuned.
Sunday, September 21, 2008 at 11:03PM in About this website Sunday
13Jul
357. Disposable people
I've always thought of the criminal law as a reflection of society's attitude toward the weak. And even if you weren't weak before you were attacked, there's nothing quite like a bullet to weaken you. At least in the Western states, with the "no duty to retreat" ethos, our courts are gung-ho about encouraging people to take care of it themselves. (And not just the courts, either.)
That tolerance for DIY revenge sometimes leads to a judicial attitude of lightly-disguised contempt for those who don't partake. If you're not going to protect yourself, why should we protect you? Judges are protective of people they identify with, and who wants to identify with a woman who returns to the man who broke her cheekbone?
But the ultimate disposable people don't even make it far enough to have their ID photo introduced as a prosecution exhibit. Last fall the Bureau of Justice Statistics published a fact sheet on Unidentified Human Remains in the United States, 1980-2004. The fact sheet reported that 10,328 unidentified remains were reported to the National Death Index (now there's a memorable response to the cocktail party question, What do you do?).
But the 10,328 figure means only that that many unidentified remains were reported to the NDI during the 25-year period under study. Three-quarters of the reported cases came from from just 5 states, which tells you the total is an undercount.
DOJ's National Institute of Justice reports that "[m]ore than 40,000 sets of human remains that cannot be identified through conventional means are held in the evidence rooms of medical examiners throughout the country".
But even the census of evidence rooms is an undercount, according to the DOJ report, because "many cities and counties continue to bury unidentified remains without attempting to collect DNA samples."
As of February, 2005, the NCIC - the FBI's national criminal database - contained information on just 5,900 unidentified remains, according to the BJS. (Incidentally, if you use the Google toolbar at work, make sure you're not in Google images when you search for BJS.) The number had barely risen as of 2007, according to one of those other acronyms mentioned earlier (I'm getting tired of writing in federalese).
Of the relatively handful of cases entered into the NCIC, 27% were classified as homicides, but in almost exactly half the cause of death couldn't be determined. I think it's reasonable to suppose that most of the "unidentified" category are in the category because of what the passage of time does to mortal remains, and the passage of time in turn suggests concealment, and concealment suggests ...
It's not that hard to think of ways in which an accident victim's body might also be concealed (avalanche, wandering in hypothermic disorientation, seeking help for your flat tire at an isolated dilapidated farmhouse despite the warning provided by the creepy background music), but there's a report filed for most of those, I would think. While the remains, when eventually found, might be in what the papers usually call an advanced state of decay, they'd still be identified.
I think, in short, that far more than 27% of the 40,000+ unidentified remains represent murders people have gotten away with. And there must be another large number of remains that haven't yet been found.
People got away with murdering these particular victims because they were so disposable. It's hard to think of a more definitive marker of low social status. Really, if you have so little self-respect that you allow your body to rot in a shallow grave for years and years, why should we care?
Sunday, July 13, 2008 at 03:15PM in Victim demographics, Crime statistics Saturday
05Jul
356. In the same old voice
It's interesting to note how much a reader reveals about him- or herself by leaving a comment at this blog. For instance, the "difference" feminists, inspired by Carol Gilligan's In a Different Voice, have taught us that heartfelt expressions of emotion are characteristically feminine, and yet the pseudonymous comment left at post 304, by far the most emotionally-naked ever left on the site, somehow strikes me as written by a male.
Is that my own sexism showing through, or is there something distinctly masculine about the thought expressed, or the words used to express it, or perhaps the orthography? Speaking of the spelling, did the author intend a hommage to the Kevin Kline character from Fish Called Wanda?
More recently, in response to post 353, David K. wrote:
What is it about this passage that makes me think it was written by a lawyer? Perhaps it's just the signature, with its echo of the most prominent of all 20th century lawyers, Franz K.
Anyway, there are several ways to answer David K.'s question. For example, it could be pointed out that the Constitution's preamble, which generally isn't studied in law school and is studiously ignored by judges, explains why we have a Bill of Rights in the first place. Among other things, the purpose of the 6th amendment is to:
So, from one way of interpreting it, it can be argued that when the 6th amendment becomes an instrument for preventing justice and opposing the general welfare, it isn't optimally serving its purpose. One might even go so far as to suggest that acts of violence perpetrated against small children tend to be - how should I put this? - untranquil.
The Constitution contains another and, I think, even more significant textual answer to David K.'s question, and that's way back there in article IV, the article no one ever bothers to look at:
The United States shall guarantee to every state in this union, a republican form of government
The United States Supreme Court long ago declared this part of the Constitution a dead letter (see post 147) or to use the Court's own euphemistic neologism, "non-justiciable." It's not hard to understand the justices' uncharacteristic diffidence, for while it's difficult to say exactly what a "republican form of government" is, it's easy - even, one might say, disturbingly easy - to say what it isn't.
It isn't government by nine unelected old people in black robes.
The guarantee of a republican form of government means that the people of each state get to decide for themselves what sort of government will rule over them. So, to get back to David K.'s question, whether a child as a right to call upon the protection of the community depends on whether the community chooses to extend that right to children.
The Constitution enters into it only because article IV, section 4 makes it unconstitutional for any government official to countermand the community's decision.
What makes David K.'s comment most lawyerish, despite its terseness, is that it pays no attention to the politics of judicial decisionmaking. Law schools teach the subject called "constitutional criminal procedure" as if politics wasn't involved. The subject is taught as a series of battles between lone individuals and the crushing soulless state, when the true subject matter of every one of the landmark cases was the distribution of power as between elected and unelected officials.
One can agree with the result of many cases - as I do - while still maintaining an awareness that, in them, the Court was telling what Dr. Johnson called "consecrated lies" about the Constitution and its meaning. (See post 42.)
But for various reasons, lawyers in general and law professors in particular find it hard to break themselves of the habit of accepting everything the Supreme Court says as the word of ... well, God doesn't have quite the same authority any more. But like that, only more so.
Ultimately, though, David K.'s comment most unmistakably shows the true lawyerly spirit in its underlying conception of criminal law as something that exists apart from, and even in antagonism to, morality. Right and wrong don't enter into it questions of crime and punishment. And, really, who but a lawyer could believe that?
Saturday, July 5, 2008 at 03:45PM in De-democratization, Distribution of powers, Legal rhetoric Tuesday
01Jul
355. The misuses of history
That's from Gordon S. Wood's collection of book reviews (or, really, essays using book reviews as take-off points), The Purpose of the Past: Reflections on the Uses of History, which is far more entertaining than any description can make it sound. It was an unlikely candidate for the books-on-tape treatment but I'm grateful the publishers made an exception for it, because it made the weekend drive to Jemez Springs most enjoyable.
In another essay, analyzing a self-described political theorist's tendentious use of history to score political points, Wood writes: "There is nothing wrong with this ransacking of the past by political theorists. Lawyers and jurists do it all the time. But we should never confuse these manipulations of the past for present purposes with doing history."
The use of that pretentious word "jurist" is one of Wood's few false steps. Lawyers and judges do indeed ransack the past for present purposes all the time. That's what "legal research" is. You start with the conclusion of your syllogism, add the major premise - the facts of the case - and then start searching for some legal authority to insert into the middle. An intellectually-honest creme makes for a better Oreo, but in a pinch almost anything will do. (I hope you don't mind if I don't pursue the cookie metaphor to its all-too-apt conclusion.)
But sometimes, I'm afraid, Supreme Court justices, who don't enjoy / suffer the peer-review process that keeps historians in touch with reality, confuse this kind of purpose-driven ransacking of the past with genuine history. I think we can now officially say that Justice Scalia is, historically speaking, delusional.
His recent Giles v. California opinion guarantees a good ten years of litigation and hundreds of incompatible decisions from around the country, so that's good news for all us lawyers practicing criminal law: there will always be something to slot into the middle of any syllogism. Better yet, this ensures a steady stream of future injustices, which will help sales of my next book. (See this unnumbered post.) So I don't mean to look the gift horse in the mouth, not that doing so would tell me anything anyway.
But viewed as history, Giles and its predecessor Crawford are ... pathetic. Not simply in the abusive sense of that word, but in the sense of being so far removed from adequacy that you can't help feeling rather churlish to point out their inadequacy, like pointing out the tuning problems of the elementary school orchestra.
Though, of course, the kids are cute. And, more important, they're trying.
It's not so much that the members of the Supreme Court are incompetent historians - that's not really a surprise - but that they are wholly unaware of it, as evidenced by the supposedly-erudite Justice Souter's incredibly fatuous remark: "I am convinced that the Court's historical analysis is sound".
Here are some of the key elements of that sound historical analysis:
- The correct interpretation of the 6th amendment depends on an analysis of the original intent of the Framers, but the identity of "the Framers" is never established. They aren't people but a vague abstraction.
- "The Framers" all thought exactly alike and had no disagreements about anything.
- "The Framers" anticipated the passage of the 14th amendment in 1868, which made the 6th amendment applicable to the states.
- Rid your mind of any concept of the Constitution as a democratic document, expressing the political will of the people, as expressed in Marbury v. Madison and Federalist 78 (the source of all the ideas found in Justice Marshall's Marbury opinion). Rather, reconceive of the Constitution as a top-down directive, imposed by "the Framers" on the passive people, because that way only the Framers' views count, greatly simplifying the matter.
- To determine the original intent of "the Framers," it is vitally important to examine the fewest types of sources available. For example, do not, whatever you do, look at trial transcripts, even though those are available in any law library and on the web. That would only complicate things and might not lead to the result you prefer.
- Also, don't look at contemporary newspaper reports or read history books, much less original sources such as private papers. Rather, look only at legal treatises (the opinions of self-publishing egotists) and appellate opinions (although there was essentially no right to appeal in the few federal criminal trials, and state appellate opinions weren't systematically collected until Mr. West got busy a hundred years later). The great thing about these sources is that their authors were self-important elitists of the same kidney as modern Supreme Court justices, so their views are emotionally satisfying.
- To achieve an ideal result, it is essential to commit as many classic historians' fallacies as possible.
- Giles, for example, relies almost exclusively on inferences drawn from the absence of evidence. (We have no evidence that Julius Caesar washed behind his ears, so therefore the buildup of layers of dirt from Britannia and Gaul was just dreadful.)
- Crawford anachronistically ascribed to 18th century folks the concerns of 21st century lawyers about the technical admissibility of hearsay, when as a matter of easily-verifiable historical fact lawyers had very little to do with criminal law as practiced in the 18th century, and most lawyers practicing in small towns had a level of formal education roughly comparable to that of jailhouse lawyers today.
- When it helps your argument, don't be afraid to make up evidence. That's what Justice Scalia did when he ascribed to "the Framers" an obsession with Sir Walter Raleigh. (Here it is again.)
Tuesday, July 1, 2008 at 11:41PM in Faux history, Individual justices, Fatuity Watch, Legal scholarship, Intellectual dishonesty watch