Joel Jacobsen

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:

The right of an accused person to "confront" his accuser is right there in the constitution. I must have missed the "child's right to protection from the community". Could you please point out to me which part of the constitution I might find that passage?

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:

 establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity

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?