JUDGING CRIMES

Post 239 discussed America's founding contradiction.  A country that gained its independence by declaring that all men were self-evidently created equal turned around and ratified a Constitution that - under cover of cowardly euphemisms - enshrined slavery.   As Lincoln observed, there were reasons for accepting the compromise, but they were about as idealistic as paying off a bookie. 

The Civil War was a massive re-ordering of the constitutional system.  Talk about federal interference with state affairs!  The changed status quo was institutionalized in the "Civil War amendments" - the 13th (abolishing slavery), the 15th (guaranteeing the right to vote) and the 14th, an omnibus amendment that took care of unfinished Civil War business (the Union takes no responsibility for Confederate war debts, for instance, and congressional seats shall be apportioned according to the number of voters). 

The 14th amendment also contains this sentence:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.

When people today talk about "the 14th amendment," this sentence is what they're talking about.  Two of the key phrases were ancient.  As early as 1354 Parliament passed an act stating that "no Man of what Estate or Condition that he be" shall be imprisoned, dispossessed or executed "without being brought in Answer by due Process of the Law".

The phrase "privileges and immunities" isn't quite so ancient, but it's already suggested by the 1606 Charter of Virginia, in which King James I (of England) & VI (of Scotland), affixing his seal during Shakespeare's lifetime,  promised that children born in the colonies "shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions."

(Of course, this is the same King James who tore out the page of Parliament's Journals asserting a parliamentary privilege to speak freely.)

The concept of royal "letters of privilege" goes back even further.   Christopher Columbus received one such from Ferdinand and Isabella, and Hungarian monarchs issued them to Saxons displaced by the Normans.

The body of the Constitution also includes a "privileges and immunities" clause, which was early understood to mean that a citizen of New York, say, who happened to be visiting in Philadelphia was entitled to the same protection of the laws as any citizen of Pennsylvania.   When the people adopted the "privileges or immunities" clause of the 14th amendment, they meant that the states had no power to deprive citizens of rights guaranteed by the federal Constitution.  Such as, for example, those found in the Bill of Rights.

The great - the tragic - flaw of our system of government, however, is that it entrusts the enforcement of rights to the courts.  In 1873, less than five years after the 14th amendment was ratified, the Supreme Court declared that the privileges or immunities clause had essentially no meaning whatsoever.  There is a back-story to the decision full of irony and a certain political pathos, brilliantly told by Michael A. Ross.

But the most important background facts are simply told: at the time of the decision, the youngest Supreme Court justice was 56.  None of the nine had fought in the war.  All had learned their law in the age of Calhoun and nullification, when the subject "United States" still required a plural verb. 

And all, of course, were common lawyers, leading lights of an exceedingly conservative profession.  (The law is such a conservative profession that most lawyers, I think, don't even realize it, the way we don't notice the color of air - until, say, we visit Phoenix.)  The post-war justices' respect for precedent - for standing decided - led them to rely on pre-war precedents, since there were so few of the other type. 

Pre-war precedents, naturally, reflected the pre-war constitutional order.  In 1872, Dred Scott - the ultimate expression of the founding contradiction - was still good law within the four walls of the Supreme Court chamber because the Court had not overruled it.  Six hundred thousand dead soldiers didn't change that.

The underlying reason for the Court's refusal to give effect to the 14th amendment's privilege or immunities clause was that the justices resisted change.  They had dedicated their professional lives to the pre-war American legal system, they had reached their positions of imminence because they believed whole-heartedly in that system, and they worked to restore it - by forbidding American courts from enforcing the 14th amendment's privileges or immunities clause.  They could accept the 13th amendment, but nothing past that.

With 1896's Plessy v. Ferguson, which forbade American courts from enforcing the 14th amendment's equal protection clause, the Supreme Court made the Union's surrender official.  The South had, at long last, won the Civil War.

This blog was never intended to devote as much space to Justice Scalia as it has.  The frequency with which his name appears in these posts isn't the result of an unhealthy obsession - okay, isn't solely the result of an unhealthy obsession.  It's mainly the result of his penchant for saying interesting and provocative things, both in his increasingly-frequent public appearances and in his opinions.

That, and the fact that no one else on this Court says anything interesting or provocative, ever.

The late Chief Justice had lots of personality and an easily-discernible philosophy of judicial government.   In Rehnquist's view, the authority of the judiciary came first, conventional conservative ideology second, the worrying about the facts of the individual case was sentimental nonsense.  Justice O'Connor had a solid grasp of courtroom reality.  But they're gone. 

It's too soon to say much about the new Chief Justice or Justice Alito, and since Roberts has revealed he was only kidding when he told Congress during his confirmation hearing that he thought the Court should hear more cases, it might always be too soon to say much about them.

The real meaning of the Court's shrinking caseload, a meaning that for some reason commentators seem reluctant to recognize, is that this is an extremely low-functioning Court.  Every few weeks it stirs itself to tell another lower court, picked apparently at random, that it was wrong about something or another - the issue likewise picked seemingly at random - and then, exhausted, it takes a three-month vacation.  It's become like a  pit bull that's gotten too old and lazy to maul every passing toddler, but still enjoys the odd romp-and-tear from time to time.

Putting to one side Scalia, Alito and Roberts, what's left are people who never practiced enough law to be considered for partnership at your average law firm (Breyer, Ginsburg, Thomas), or who are judicial bureaucrats in DMV sense, taking vacations at their desks or scheming for power within the organization (Ginsburg, Breyer, Kennedy), or who possess no personality (Breyer, Ginsburg, Kennedy, Souter) or no discernible ability to think coherently (Breyer, Ginsburg, Souter).

Only two names appear in each of those categories.  President Clinton's second-worst domestic policy decision was signing the media-monopolization bill.  The decisions that tie for third place take up space on the Supreme Court. 

I used to think that Ginsburg just retired into the job - she simply stopped working upon confirmation.  It's not unusual for appellate court judges to do that, and she hasn't written a single memorable - or even interesting - opinion in her 13-plus years.  She's been a vote, and a person willing to sign the workmanlike opinions assembled by her dutiful clerks, and that's about it.  If not for her gender, she would go down in history as one of those names that even people interested in the Court's history have trouble placing, like Daniel, Todd or Curtis.

But lately it's occurred to me that Ginsburg might actually have a philosophy, or at least an agenda.  The evidence, admittedly, is scanty, and perhaps I'm reading too much into it (or giving her too much credit). 

A little background is necessary.  In 1948 and again in 1966, Congress passed statutes saying that a federal court hearing a habeas corpus petition filed by a state prisoner must begin with the presumption that any factual finding by the state court was correct.  On the face of it, this meant that federal courts should defer to a state court's finding that a prisoner had waived a federal right

But, as as Louis Brandeis once wrote in a letter to presidential aspirant Bob La Follette, "It has been my experience that no rule of law is so clear and no array of evidence so conclusive but the Court can escape from a conclusion which it is disinclined to reach."  (I can't find a link to this on the web - it was a letter of May 26, 1911.)

To get around Congress, federal courts began holding that a state court's finding of waiver wasn't a finding of fact, but rather was an issue of federal law.  This was magic-wand jurisprudence, a mere formula of words, and in 1983 the Court ruled that federal courts really ought to follow the law, instead. 

But twelve years later, the Court resurrected the overly-cute little evasion.  Justice Ginsburg's opinion gave no indication that she knew she was doing something the Court itself had said was illegitimate - it didn't even cite the earlier opinion - which I was inclined to attribute to ignorance rather than sneakiness.

 But I might have been underestimating her, or rather overestimating her intellectual integrity.  Just this year she ruled that the Constitution gives the Court authority to overrule a state supreme court on an issue of state law - an authority every prior generation of justices (and even Ginsburg herself) had denied the Court possessed.  (See post 230.)  Again, her opinion didn't acknowledge the significance of what she was saying, and again that's possibly attributable to ignorance, but how ignorant can one justice be?

Then, just this week, she filed a dissent in which she implausibly claimed to believe that when Congress referred to an application for state review in the habeas corpus statutes, it meant application for state or federal review.  Her position, if it had been adopted by a majority of the Court, would have given federal courts additional power over state courts, by allowing them to reach cases that would otherwise be placed beyond their grasp by the statute.

Do you see a pattern in this?  I don't think I'm imagining it.  Finally, after 13 years, I've figured out something that Justice Ginsburg believes in: reordering the hierarchy of courts into a single totem pole, with the state courts on the bottom and Justice Ginsburg herself, hunched like a diminutive vulture, perched on top.

The LA Times recently quoted Justice Scalia telling students at Claremont McKenna College: "I'm a textualist. I'm an originalist. I'm not a nut."  But he's a nut about some things, and one of the nuttiest things about him is that he doesn't perceive any contradiction between his first two self-descriptions. 

The whole purpose of being an "originalist" is to fill in the gaps left by the text of the Constitution.  The doctrine, if it deserves such a dignified title, is based on the idea that judges have the power - even the duty - to invent new constitutional doctrines based, not  on the text, but on the judges' imputation of an unexpressed intent, the meaning that the drafters intended to put into the text but absent-mindedly left out.  (See post 81.)

Pure textualism is the only position justified in democratic theory.  It's based on the idea that the Constitution is binding only insofar as the American people agreed to be bound, and they could only have agreed to be bound by the words on the page.  There are no gaps to be filled.  There can be no gaps, by definition.  If the Constitution as it exists is inadequate, the only legitimate way to fix it is by democratic action, that is, through the amendment process. 

Originalism, like any other theory of the "living Constitution," is based on nearly the opposite idea, that the Constitution is an open-ended grant of power to judges.  That the American people who ratified the Constitution and its amendments were saying: "We don't care to define our essential liberties.  We'll leave that to unelected federal officials to explain to us at some later date."  Whether the judges base their eventual explanations on mystical revelations of social evolution or on amateurish historiography (see post 238) is, at best, a difference in technique only, and maybe not a difference at all.

Or, more brutally but perhaps more realistically, originalism boils down to this: "It doesn't matter what the American people said in the past or what they want of their government today.  We're judges and we make the rules.  The people can pass laws that will be effective unless we decide to veto them, based on cynically-shifting proclamations of what is and what is not 'constitutional.'  Other than that, the people's only job is to obey us - although, really, they ought to reverence us, too."

This year's Eustace Tilley anniversary issue of The New Yorker has several items of interest, such as this:

Last March, Supreme Court Justice Clarence Thomas and his wife, Virginia, joined [24 and The 1/2 Hour News Hour producer Joel] Surnow and [24 head writer] Howard Gordon for a private dinner at Rush Limbaugh’s Florida home.

At least when Ronald Reagan palled around with conservative pundits, he held out for George Will. 

Jane Mayer's great article about torture and 24 quotes Joe Navarro, introduced as "one of the F.B.I.’s top experts in questioning techniques."  Navarro critiques the interrogation techniques favored by Jack Bauer, the Kiefer Sutherland lead character, on 24 (shouldn't it be 144 by now?): “Only a psychopath can torture and be unaffected."

Navarro, in an interview with Bluff Magazine - honestly, I don't make up these names - was asked: "Does that good-cop-bad-cop thing really work or is it just for the movies?"  And he answered:

No, it doesn’t. I did a study, along with the Bureau of Prisons, which found that criminals actually laugh at the good-cop-bad-cop thing. They think it’s a joke and they have no respect for it. What they do respect is the guy that comes in all cool, calm and collected. That scares them the most. It’s almost like the computer HAL in 2001: A Space Odyssey, with that scary voice that’s non-emotive. That really gets them.

When interrogation techniques become bywords in the popular culture, it's like when your local paper prints a list of ten hot stocks: it's way too late.  Techniques are effective when they aren't perceived as techniques.

I've always thought that much of the pressure of an effective interrogation is internally generated by the suspect: it's just very hard not to obsess about the secret you're trying to keep.  It becomes huge, an inflating bubble in your chest, and the more the interrogator intimates that he knows already, the more difficult it becomes for the suspect to maintain the energy level necessary to keep it concealed.  Table pounding and yelling is a message that the interrogator doesn't know.  It's a relief.

Surnow, the focus of the article about torture and 24, seems as refreshingly unclear on the distinction between life and TV as any old-fashioned Hollywood lefty - it's nice to know some things don't change.  

The show's basic plot line is that a horrible terrorist attack will take place unless our psychopath can get information out of their psychopath in time.   So what reliable methods can our guy use to get their guy to talk? Bob Cochran, another of the show's producers, has a question he likes to pose to those who express reservations about treating psychopathic violence as heroic: "Cochran demanded to know what the interrogators would do if they faced the imminent threat of a nuclear blast in New York City, and had custody of a suspect who knew how to stop it."

It's a college dorm-room debating point, of course: how, exactly, do you know that a bomb is going to go off in a certain number of minutes, yet don't know where it is?  (The difficulty of answering questions like that explains why Hollywood has always been prepared to throw money at writers.)  The unfortunate tendency of some American soldiers to confuse 24 with reality prompted West Point's dean Patrick Finnegan to fly out to Hollywood to remonstrate with the 24 crew.  Finnegan made the obvious point that 

torturing fanatical Islamist terrorists is particularly pointless. “They almost welcome torture,” he said. “They expect it. They want to be martyred.” A ticking time bomb, he pointed out, would make a suspect only more unwilling to talk. “They know if they can simply hold out several hours, all the more glory—the ticking time bomb will go off!”

More than that, the would-be martyr could stop the torture at any time by giving false information, or multiple locations.  But, of course, in the show the terrorists eventually just lose their will and tell all.  (Making that transformation seem halfway-plausible is how character actors make their money in Hollywood - talk about depending on technique!)

Now, wasn't there another TV show, once upon a time, in which a relentless interrogator cleverly sensed and exploited the weaknesses of bad guys, by the end of the episode breaking the bad guy's will, reducing him or her to a repentant dish rag?  Why, yes, there was.  And that tells you the real progenitor of Jack Bauer: he's Perry Mason with a hacksaw.

The same New Yorker issue has a profile of Domino's Pizza man Tom Monaghan, who, as most people know, devotes his money to conservative Catholic causes.  Monaghan had a terrible childhood.  His father died when he was four and his mother made only fitful, short-lived attempts to be a parent.  Between those unhappy episodes she put him in orphanages, foster homes and eventually a juvenile-detention home. 

One line by reporter Peter J. Boyer seemed particularly telling: "[Monaghan] had spent much of his young life after the orphanage on the streets, avoiding his mother, and he always believed that if it weren't for his faith he might have crossed a line from which there was no easy return."

It has always seemed to me that the appeal of street gangs is that they offer a substitute family.  If you grow up without a functioning family, with no secure connections to others, what a relief it must be to find an organization that cares enough to tell you what to wear, what to think, which people to like and which ones to hate, how to spend your time, what music to listen to, what slang to use - everything! 

It hadn't occurred to me before, however, that something as far removed from la vida loca as the pre-Vatican II Catholic Church could meet some of the same needs with its cry-now-laugh-later view of life and afterlife.  But Monaghan seems to have been just the sort of abandoned, needy kid who winds up in gangs, perpetrating Jack Bauer-type violence on people a little less definitively in possession of terrorist secrets than the extras in 24.  Instead of that, Monaghan introduced corrugated-cardboard pizza boxes, opened three stores a day for a while, and is now building Ave Maria, Florida.  Not only that, but he lived past his twenties, too.

For those of my readers needing to take care of business in school tomorrow, or planning a visit to your local Stop-'n'-Rob store, you'll be glad to know that the NRA has some stylish new gear for you.  Yes, now you, too, can wear concealed-carry jeans with the belt loops thoughtfully positioned "so they don't interfere with holster wear. Pants feature two internal magazine pockets and a concealment pocket in the front and back."  Today's NRA.  You provide the homicidal impulse - we'll take care of the rest!

Meanwhile, in John Wayne County, California, an accused criminal was acquitted.  Not because he didn't do it:

No one disputes that an on-duty Irvine police officer got an erection and ejaculated on a motorist during an early-morning traffic stop in Laguna Beach. The female driver reported it, DNA testing confirmed it and officer David Alex Park finally admitted it.

How'd he get  off - I mean, how'd he get acquitted?  Easy: he spent a lot of time stalking his prey, eventually choosing a stripper on her way home from her workplace.  His lawyer simply made sure the 11 male jurors knew she was a low status woman:

In his closing argument, [defense attorney Al] Stokke pounced. He called Lucy one of those “girls who have learned the art of the tease, getting what they want . . . they’ve learned to separate men from their money.”

[Prosecutor Shaddi] Kamiabipour wasn’t amused. “Dancer or not, sexually promiscuous nor not, she had the right not to consent,” she told jurors. “[Park] doesn’t get a freebie just because of who she is . . . He used her like an object.”

But Kamiabipour was wrong.  The cop did get a freebie.  He had the jurors' permission to use her like an object.  After all, “She’s an overtly sexual person.”  The jurors employed the same decision-making matrix favored by the United States Supreme Court.  (See post 102 and post 228.)  (At least the cop was fired.)

Meanwhile, another lesson in the relationship of status to the law was administered in poor Burma, where, according to an understandably anonymous blogger,

A Toyota SUV  being driven by the son of Dr. Tin Aung Aye (Supreme Court Justice of lower Burma), managed to seriously crunch a Suzuki Wagon car on Pyay Road, Yangon.

Witnesses say that he looked drunk or on drugs at the time of accident. Apparently he was doing a U turn on a major road in Yangon when he hit the Suzuki. The elderly diver of the Suzuki subsequently died in the infamous Yangon Hospital’s emergency department.

No charges were preferred, although a directive came down from on high that henceforth judges weren't to permit their family members to drive the official vehicles "without the presence of Supreme Justice himself on the car."  My favorite bit: each judge gets both an SUV and a van from the store of vehicles impounded (all in accordance with approved judicial procedures, of course) by the government.  I wonder if judges get to place orders for specific makes, colors and option packages?

And in Boston, a Judicial Conduct Commission investigation concluded that two state judges did nothing wrong when they delayed entering judgment against a sitting state Senator - the political mentor of one of them - until after her tough primary campaign.  The Commission's findings are almost parodic: "The commission's investigation revealed that, while there was inadvertent delay in the processing of this case, there was no misconduct on the part of any judge."   There was "no misconduct" in the sense that there isn't actually a rule against judges using their power of office to influence elections.  And what other sense is there?

 We know how burning the flag flips people out. Imagine if a nationally-known journalist were to get onstage during a July 4 celebration and set fire, Jimi-Hendrix-Monterey-Pop-Festival style, to a copy of the United States Constitution.

That's what William Lloyd Garrison did on July 4, 1854. It upset a lot of people at the time, but I bet it would upset even more people today.  Sixty-seven years after the Constitution was drafted, Americans could still see it as it was, as a document produced by men and accepted by other men because rejecting it wasn't a realistic option. It hadn't yet ascended to the quasi-religious status of "the miracle at Philadelphia."

Garrison, whose life is wonderfully told by Henry Mayer, called the Constitution "a covenant with death and agreement with hell." This wasn't mere abuse; his listeners would have caught the allusion to Isaiah 28:15-16. In the King James version that would have been most familiar to Garrison's audience, the verses read:

Because ye have said, We have made a covenant with death, and with hell are we at agreement; when the overflowing scourge shall pass through, it shall not come unto us: for we have made lies our refuge, and under falsehood have we hid ourselves: Therefore thus saith the Lord GOD, Behold, I lay in Zion for a foundation a stone, a tried stone, a precious corner [stone], a sure foundation: he that believeth shall not make haste.

(Here are several modern translations, with commentary, which make the verses' - and therefore Garrison's - meaning a little clearer.)

I don't think anyone can seriously dispute that the Constitution was a compromise with evil. Not metaphorical evil, or the lesser of two evils, but the cloven-footed thing itself. When Garrison burned his copy, it gave off the smell of brimstone.

The whole idea of a Constitution in a democratic society is that the people, through democratic means, agree to place certain subjects beyond the reach of democratic control. The demos divests itself of some of its sovereignty. And one of the subjects that the Constitution placed beyond democratic control was slavery. 

From the moment the Constitution was ratified, it didn't matter if a majority of Americans, even an overwhelming majority, disapproved of slavery, or considered it a positive evil. In their supposedly democratic new state, they had no power to do anything about it.

It is telling, and a bit pathetic, that the drafters of the Constitution couldn't even bring themselves to use the word "slavery." Instead, they provided that “[t]he migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808”.

By “such people,” the drafters meant thousands of kidnapped Africans crammed into coffin ships and brought across the ocean to be brutalized. The modern equivalent, perhaps, would be UFOs beaming us up from the street and taking us to Andromeda to be worked to death growing strange crops. That was the miracle at Philadelphia.

Nor could Americans choose for themselves whether to offer shelter to Black people in search of the land of the free. The Constitution prohibited Americans from exercising their own moral judgment about that: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

That meant that every sheriff in the nation was constitutionally required to be a slave driver, and the taxes of every citizen were used to prevent the ideals expressed in the Declaration of Independence from being realized.

The Constitution awarded slaveowners additional seats in Congress in proportion to their inequity. The "three-fifths clause" gave additional seats in Congress based on each state's slave population. The slaves themselves could not vote, and of course the people who were allowed to vote didn't represent the slaves' interests.  Apportioning congressional seats based on the number of slaves meant that, as far as the House of Representatives was concerned, the votes of white Southern males counted for more than the votes of white Northerners.  

Garrison wasn't alone in recognizing that the Constitution was, at best, an ignoble compromise. Abraham Lincoln explained it clearly just four years after Garrison's incendiary act.  In a Chicago speech he compared the Declaration of Independence to the Constitution:

I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a negro, why not another say it does not mean some other man? If that declaration is not the truth, let us get the Statute book, in which we find it and tear it out! Who is so bold as to do it! [Voices—"me" "no one," &c.] If it is not true let us tear it out! [cries of "no, no,"] let us stick to it then, [cheers] let us stand firmly by it then. [Applause.]

It may be argued that there are certain conditions that make necessities and impose them upon us, and to the extent that a necessity is imposed upon a man he must submit to it. I think that was the condition in which we found ourselves when we established this government. We had slavery among us, we could not get our constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more, and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties.

At the time Constitution was drafted and ratified, Americans understood that their new nation would have a short lifespan if the 13 colonies didn't bind together. Thirteen separate countries would have been easy pickings for any European power. Only by joining together in a union could they hope to maintain their independence.

That was obvious to everyone concerned, and especially to the southern slaveowners, who in effect held the future of the United States ransom to their own short-term economic self-interest. Give us slavery, they said, or you don't get your union. So the people who declared themselves independent on the basis of the self-evident truth that all men are created equal gave them slavery.

America's founding contradiction was memorably captured by Samuel Johnson in 1775 when he asked: "how is it that we hear the loudest yelps for liberty among the drivers of negroes?" That contradiction was embodied, not resolved, in our Constitution.  The Constitution was history's true Faustian bargain. 

Lincoln coined that phrase “charter of our liberties” to refer to the Declaration of Independence. Justices of the modern Supreme Court perverted the phrase's meaning into its opposite when they assigned that title to the Constitution instead. A document that enshrined slavery a charter of liberties!

Were the justices not thinking about the meaning of the words they used? Or did they cynically see how extraordinarily useful it would be – to them – to encourage that ignorant pseudo-patriotism?

America has never gotten over its founding contradiction.  The many ways in which it continues to determine our criminal law will be the subject of future posts.

In  Crawford v. Washington, the Supreme Court in 2004 told us it had systematically violated the sixth amendment for the previous 213 years.  Everything it had previously required lower courts to do turned out to be not only wrong but ridiculous - we know, because Justice Scalia ridiculed it. 

Henceforth, Scalia's opinion declared, sixth amendment jurisprudence would conform to the vision of "the Framers," a phrase he used 12 times in Crawford.  It's never been very clear who "the Framers" are.  (See post 79.)  I sometimes suspect Scalia uses the term to talk about himself in the third person, in the style of certain professional athletes.  (See post 81 and post 192.) 

But probably Scalia, at least consciously, intends the term to refer to some or all of the many hundreds of men involved in drafting, approving, ratifying or agitating in favor of the Constitution during the 1787-1791 era.  His working assumption, apparently, is that all those men thought as one being, the way thousands of single-celled amoebas can, under certain circumstances, combine to form a single spore-producing entity.

Evidence of that assumption is Scalia's willingness to ascribe collective thoughts and feelings to an ill-defined group of men spread over a huge geographical area (1,277 miles from New Hampshire's Maynesborough Plantation to Georgia's Brunswick):

the Framers certainly would not have condoned ...

the Framers’ understanding ...

The Framers would be astounded to learn ...

One of the most telling signs of low-rent popular history is its reliance on the "must have" formulation, as in: "Peering into the ice-flecked waters, Washington must have sensed that the tides of history were moving as did the waters of the mighty Delaware."  Or: "Standing just 5'4", James Madison must have thrilled with his first glimpse of Dolley's decolletage." 

Scalia would belong in the same category with the laziest writers of pop history if he had told us what a given Founding Father "must have" thought about a famous 16th century show trial.  But Scalia tells us what a whole generation must have thought about it: "It is not plausible that the Framers’ only objection to [Sir Walter Ralegh's] trial was that Raleigh’s [sic] judges did not properly weigh these factors before sentencing him to death." 

(Note, too, the cheesy rhetorical trick of starting with the unproven assumption that the Framers had any "objection" at all to a political event of such antiquity, and then proceeding as if the only point of controversy is the precise nature of their collective objection.)  

Crawford is history of a very low order of intellectual sophistication.  Judged as hsitorical fiction, it demonstrates somewhat less intellectual rigor than the authors featured on this page.

But what's intellectually most dishonest about Crawford is something even more basic.  Scalia writes that: "The Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant [in a state court trial] because it was elicited by 'neutral' government officers."  The bracketed phrase is key: Crawford involved a Washington state criminal trial, and the follow-up Davis case involved two more state prosecutions.

Whether or not any prominent American of 1791 would be "astounded to learn" that hearsay was admitted in a state trial is, perhaps, debatable, though I think a study of actual trial records would show that Scalia is not even wrong.  He's simply projecting his own 1950s-era legal education backwards.  (See post 179.)

But there is one thing that we can say with absolute certainty: the people who drafted and ratified the sixth amendment would have been astounded to learn that it was applied in state prosecutions at all. 

Richard Labunski's James Madison and the Struggle for the Bill of Rights is a fairly detailed account of the Virginia ratifying convention sugar-coated with the pseudo-drama implied by the title.  One of the central arguments of the Anti-Federalists against the Constitution, as Saul Cornell has catalogued, was the absence of a bill of rights, which they considered essential to restrict the power of the federal government, not the state governments.    Here's Patrick Henry:

The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained Within proper bounds.

And from the record of the same debate we hear from George Mason in paraphrase:

Mr. GEORGE MASON still thought that there ought to be some express declaration in the Constitution, asserting that rights not given to the general government were retained by the states. He apprehended that, unless this was done, many valuable and important rights would be concluded to be given up by implication. All governments were drawn from the people, though many were perverted to their oppression. The government of Virginia, he remarked, was drawn from the people; yet there were certain great and important rights, which the people, by their bill of rights, declared to be paramount to the power of the legislature. He asked, Why should it not be so in this Constitution? Was it because we were more substantially represented in it than in the state government? If, in the state government, where the people were substantially and fully represented, it was necessary that the great rights of human nature should be secure from the encroachments of the legislature, he asked if it was not more necessary in this government, where they were but inadequately represented? He declared that artful sophistry and evasions could not satisfy him. He could see no clear distinction between rights relinquished by a positive grant, and lost by implication. Unless there were a bill of rights, implication might swallow up all our rights.

One purpose for enacting the Bill of Rights, ironically enough, was to protect the authority of the states themselves from federal encroachment.  Henry again:

It was expressly declared in our Confederation that every right was retained by the states, respectively, which was not given up to the government of the United States. But there is no such thing here. You, therefore, by a natural and unavoidable implication, give up your rights to the general government.

Your own example furnishes an argument against it. If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw -- government that has abandoned all its powers -- the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights -- without check, limitation, or control. And still you have checks and guards; still you keep barriers -- pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?

The argument of the Federalists (such as George Nicholas, quoted below) was that a bill of rights was unnecessary because the federal government had only the powers granted to it, which did not include power to encroach on the people's rights:

It is agreed upon by all that the people have all power. If they part with any of it, is it necessary to declare that they retain the rest? Liken it to any similar case. If I have one thousand acres of land, and I grant five hundred acres of it, must I declare that I retain the other five hundred? Do I grant the whole thousand acres, when I grant five hundred, unless I declare that the five hundred I do not give belong to me still? It is so in this case. After granting some powers, the rest must remain with the people.

I don't find a whole lot in the debate about whether jurors considering the guilt of a baby-raper or wife-beater should be allowed to learn truthful information of relevance to their determination, which is what Crawford is all about.  (See post 154.)

The sixth amendment was never intended by its framers to restrict the state prosecution of criminals.  Scalia's historical analysis begins with absurdity and continues with dishonesty, for the sixth amendment was intended to prevent exactly the sort of federal takeover of state functions that Crawford represents.

I've long thought that lawyers make lousy managers because we're trained to anticipate the worst, even rewarded for it: "A Johns Hopkins study in 1990 showed that in all graduate-school programs in all professional fields except one, optimists outperform pessimists.  The one exception: law school."  The more pessimistic your outlook, the better your law school performance. 

That pessimism, combined with a detailed knowledge of the worst that can happen in the litigation meat grinder, prompts law firms to transfer an incompetent secretary from department to department, unwilling to wield the ax unless there's a paper trail guaranteed to stand up in court: a bulletproof personnel file.  Maybe that's why we have no mechanism for reining in out-of-control judges.  Like the bad secretary, we let the bad judges go on, adding to the file until we're ready to lower the boom.

At least, that's one explanation for the length of Cheryl Aleman's judicial career.  According to Florida's Judicial Qualifications Commission - the most transparent (see post 236) judicial standards commission in the country -  she ordered an attorney to appear in her courtroom the following day, knowing full well that he was out of town.  When he "failed" to show up at the appointed time, Judge Aleman found him in criminal contempt of court and sentenced him to 60 days in jail.  He in fact served four days, getting sprung last Valentine's Day.

Hey, what good is absolute judicial immunity from lawsuits if you don't use it?

Then there was Judge Aleman's sadistic little way of playing with lawyers she didn't like, most of them, it would seem, public defenders.  For example, when a public defender asked for time to prepare a written motion to disqualify Judge Aleman, the judge allowed 15 minutes, and when the lawyer wasn't back in court in time, issued an order to show cause - prelude to a contempt citation.  When the public defender asked that the lunch recess by delayed for 15 minutes to permit her to attend a hearing in another courtroom, the judge refused; "yet, you readily granted a request from the assistant state attorney for a 15-minute delay in the start of the afternoon proceedings".

The judge made national news in 2003, when she refused to furlough an inmate on the point of death.  In response to negative publicity, she filed an order explaining that the defense attorney had failed to present any expert medical testimony - neglecting to mention that the defense and prosecution had stipulated that the man was on death's door.  You have to admit, the order was not-false.  (See post 65.)

That was nearly four years ago.  How abusive does a judge have to be, before she gets the first tap on the shoulder?  (Three disciplinable events seems to be the minimum, presumably based on the ancient Rule of Three.)  As Bill Gelin wrote on the collective blog known (I'm sure there's an explanation somewhere) as JAABlog,

The anger and resentment in Broward is leading to complaints in Tallahassee because there is no remedy or redress at the local level.  Our judges are not held accountable by judicial administration, the same judicial administration that sets the tone and the example as to how judges should behave.  While we have mostly good judges, the fact that the outlyers are given carte blanche and never called to task, no matter how weird, destructive, or dysfunctional their behavior, results in the complete undermining of the reputation of Broward's judiciary (IMHO, of course).

The lesson Judge Aleman learned from her abuse of the public defenders is that she could do what she wanted.  So she spent the next three and a half years doing it.  Should we be surprised?  Meanwhile her superiors refrained from taking the first step until they were sure they were ready to take the final one.  

(Hat-tip to Me-Mo.  Thanks!)

How's this for a headline?  "Supreme Court details five ways to a harmonious society".  Harmony isn't something one ordinarily associates with our Supreme Court.  It was actually the Supreme People's Court of China that "issued a wide-ranging circular ...outlin[ing] five areas were the country's courts have to solve social issues in order to achieve a harmonious society." 

One of the characteristics of our Supreme Court is that it takes no responsibility at all for the social consequences of its decisions.  (See post 232.)  Whether the Chinese court does more than pay lip service to the Confucian - or is it Communist? - ideal of its circular, I can't say.  But it's hard to find fault with its expression of that ideal, even if it leaves you to wonder how it translate into real-life action (and also to wonder about the translation into English of the fourth principle):

 All courts need to better resolve cases involving family members and neighbors to promote harmony within communities. They need to properly protect the rights of peasants to guarantee the social order of the vast rural areas. The courts need to protect the legitimate rights of laborers to enhance the development of the work force. Courts need to also strictly supervise government departments and state institutions to protect their rights. All courts need to properly handle environmental cases to prevent pollution and build a harmonious relationship between humans and nature, read the circular.

Of particular interest is the circular's admonition to judges.  China's judges aren't merely the ones given the task of reforming everybody else: "[T]he circular also said judges who abuse their power and take bribes must be dismissed."  And who can argue with that?

It's the next part of the circular that might cause an audience of American judges to start shifting in its seats: "It also urged the courts to be more transparent to people's congresses, procuratorates and the common people."  You can almost hear the paper rustling and the coughs breaking out across the hotel meeting room, can't you?

"Transparency" is a word that has recently come up in regard to the judicial systems of the EU's newest members.  Ireland's RTE summed up the flamboyant shortcomings of the Bulgarian judicial system this way:

Bulgaria's primary law, adopted in 1991 after the fall of communism, gave the judiciary total independence, breeding corruption and impunity.

Spectacular trials including an embezzlement case that bankrupted 14 banks in 1996 and 1997 led nowhere with defence lawyers and corrupt judges always finding loopholes to delay a court ruling.

Police have also recorded over 160 suspected contract killings since 2000 but there has not been a single conviction, although the names of notorious gang bosses have circulated in the Bulgarian press.

As a result, parliament passed amendments last March designed to limit the independence of the judiciary, giving parliament the power to sack the chief prosecutor and members of the supreme courts.

But the EU Commission later criticised the changes, claiming they violated the independence of the judiciary, and pressed for 'ambiguities' to be removed.

Bulgaria's constitutional court repealed the disputed legal amendment last September, making it necessary for parliament to find another mechanism to monitor the judiciary.

I wouldn't blame those Bulgarian parliamentarians for feeling they can't win for losing.  Total independence has been proven to be disastrous in practice, while Daddy in Brussels says less-than-total independence is even worse, in theory.  (And remember we're talking about a legal system - theory is what counts.)   So what's a striving wannabe-normal European nation to do?  Why, get transparent, of course:

The Bulgarian parliament has approved constitutional changes demanded by the European Union to improve the efficiency and transparency of its much-criticised judiciary.

Transparency is something American courts fight against, tooth and nail.  Hammer and tongs.  The ludicrous blow-up on the Michigan Supreme Court is all about an emotionally-adolescent Chief Justice (he circulated a draft opinion suggesting one of the women on the court start a hunger strike, which has "the potential for everyone to be a winner."  You can just hear the guys in home room cracking up, can't you?) trying to keep the people of his state from knowing how he and his pals spend their time in Lansing.  (See post 234.)

Meanwhile, in Connecticut, a judge was located who was prepared to go public with the laughable notion that it violated the doctrine of separation of powers for the state legislature to investigate the chief justice's attempt to manipulate the legislative process.  (See post 198.)

Meanwhile, no one has yet come up with any explanation as to how the Supreme Court's ban on TV in federal courtrooms, conspicuously including its own, can possibly be squared with the first amendment - you know, the one the federal courts are always so eager to enforce against the other branches.

(The justices have come up with an explanation as to how their denial of freedom of the press can be squared with the sixth amendment guarantee of a public trial, but that explanation is mere magic-wand jurisprudence, a because-I-said-so declaration that the sixth amendment's reference to a "public trial" doesn't, as the legally-unsophisticated might naively assume, necessarily mean "public trial.")

Perhaps there's a kind of reversion to the mean going on.  Relatively successful legal systems, such as ours, seek to reduce transparency in order to increase the personal power of the judges.  Relatively unsuccessful legal systems, such as Bulgaria's, seek to promote transparency in order to decrease the personal power of judges.  The goal of both is mediocrity.  The interesting question is: will either achieve it? 

South Carolina has been having a public dust-up about its almost-unique system of selecting judges: the legislature picks them from a list assembled by an outside committee.  (Virginia is the only other state that does it that way.)  One legislator described the way the committee selects candidates for the list: "It's, 'Well, I went to law school with this person or this person's mother baby-sat me or we went to the same fraternity together.'"

Well, that's what "merit selection" means.

Picking judges by way of political connections doesn't necessarily produce bad judges, of course.  I was reminded of that when I read that Clarence Thomas recently gave a speech honoring the late Richard Sheppard Arnold, an Arkansas-based judge of the Eighth Circuit (whose brother still serves on that court).

Thomas's speech isn't posted on the Supreme Court website's repository of the justices' speeches - why isn't that a surprise? - but we have a description from the Springdale Morning News.  (At least I think the paper is published out of Springdale [=Tyson, with some Wal-Mart thrown in] - like so many online editions today, it has a logo instead of a masthead and seeks to downplay its geographical limitations.)

Supreme Court Justice Clarence Thomas remembered a late federal court judge from Arkansas on Friday as "perhaps the most outstanding judge in his time" for championing individual liberties and judicial restraint.

In a 35-minute speech to the University of Arkansas at Little Rock's William H. Bowen School of Law, Thomas praised Richard Sheppard Arnold's judicial style and sparingly offered his own opinion.

"He adhered to a well-defined philosophy of classical liberalism -- stressing individualism and skepticism of large government," said Thomas, the guest speaker for a lecture series bearing the Arnold family's name.

That actually sounds more like the way Thomas prefers to see himself, but still.  Arnold was an interesting guy, even if he did tend to favor bow ties.   Here's the brief biography, taken from public sources:

Arnolds have practiced law for a century in Texarkana (located, as the name is meant to convey, near the junction of Texas, Arkansas and Louisiana).  Richard Arnold's great-grandfather was Gilded Age Congressman John Levi Sheppard.  (Here's more.)  His grandfather was Morris Sheppard, United States Senator and champion of Prohibition, making him the (unintentional, one presumes) mentor of Al Capone.

Like all post-Civil War politicians in the South, the Sheppards were Democrats and Richard Arnold maintained that tradition, though his brother is a Republican and Reagan nominee.  And his cousin Connie Mack, III was a Republican Senator from Florida in the 1990s.  Cornelius McGillicuddy IV, the current Florida Congressman, whose official portrait looks like a SNL actor parodying the modern blown-dry pol, is a full-blooded GOPpy, too.

The significance of all this, of course, is that Richard Arnold had some serious baseball roots.  But it also means he was to the political manner born.  I'm not sure why the Arnolds of latter generations decided they were Arkansans rather than Texans, but then the border runs right through their hometown, of hardly greater significance than the border between any two LA suburbs.  And there are advantages to being big fish in the smaller of two available ponds.

Following in his lawyer father's footsteps, Richard prepped at Exeter, graduated from Yale and received his law degree from Harvard, producing the usual mixture of envy and nausea in the rest of us.  He finished law school at the top of his class and clerked for Justice William Brennan, then spent the next three years collecting his reward, practicing with a big Washington firm for what undoubtedly was a handsome salary.  Then he went home to Texarkana to launch his campaign for the United States House of Representatives and incidentally to work at the family law firm.

That's when fate stopped playing ball with Richard Arnold.  In 1966, at the age of 30, he narrowly lost the Democratic primary.  But six years later the victor, David Pryor, gave up his seat to run for the Senate.  So Richard Arnold tried a second time to grab the congressional seat that was his by birthright.  But he lost again, by a wider margin.

It was now 1972 and the kid with the silver spoon was advancing on middle age with nothing to show for his vaulting ambition but a small-town law practice.  He lowered his sights and took a water-carrying job as aide to Arkansas Governor Dale Bumpers. 

Now, as it happened, Bumpers' term in the governor's mansion exactly coincided with that of Georgia's Governor Jimmy Carter.  As fellow southern governors, both belonging to the socially moderate, politically liberal wing of the party, Bumpers and Carter had a lot in common. 

Bumpers knocked off bad-old-liberal William J. Fulbright in the Democratic primary for the U.S. Senate in 1974, leading to his automatic election in November (the South was still Solid for the Democrats in 1974).  Arnold followed him to Washington. 

Two years later, Carter was inaugurated President.  And just seventeen months after that, the federal district judge for Texarkana conveniently died.  Bumpers boosted his loyal sidekick as the ideal replacement, and his pal the President went along.  So the wannabe Congressman became instead District Judge Arnold.

What happened next was the type of lucky break enjoyed only by those white males who snagged their positions in the last days of de facto segregation: Arnold was kicked upstairs to make room for a minority candidate.  Carter was eager to appoint blacks to the federal bench in his native South.  But southern Senators, who cared more about doing favors for their friends and paying off political debts than about the racial makeup of the federal bench, were resistant, forcing the President into wholesale judge-bartering. 

When Congress created a new district judgeship for Arkansas, the state's Senators acquiesced in a plan that saw their favorite candidate, a political insider, named to the new seat while Judge Arnold was elevated to the Eighth Circuit so that a black lawyer could replace him on the district court bench.

That's how you get to be a federal appeals court judge.  Pay your dues to the party, perform useful services for powerful men, hang around long enough and get lucky.  Take advantage of your ethnicity, if you can.  And, you know, have some credentials.  (Though you'll notice in this timeline that Arnold never spent much time actually practicing law - perhaps 9 years, of which two were consumed by congressional races.  Extensive practical experience has never been considered necessary, or even particularly helpful, in a federal appellate judge.  See Scalia, Antonin; Thomas, Clarence; Ginsburg, Ruth; Breyer, Stephen.)

What happened next was truly amazing: one of Bumpers' successors in the governor's chair got himself elected President.  Arnold was a friend of Bill, of course - no politically-connected Arkansas Democrat could have failed to be, at least during the first heady year of Clinton's presidency.  And so when Harry Blackmun announced his retirement, Arnold seemed poised to keep sliding upwards.

No less an exalted mentor than recently-retired Justice Brennan kicked off a package of four articles published in the normally undelirious Minnesota Law Review, extolling the many excellences of Judge Arnold.  [volume 78, pages 1, 5, 25, 35]  It was the sort of over-the-top homage usually reserved for Supreme Court justices on the occasion of their recent death, unheard-of for a sitting appeals court judge. 

More than 100 of his fellow federal judges wrote letters to President Clinton endorsing Arnold for the Court, a number far too large to have been anything but organized.  Sitting members of the Supreme Court let reporters know they wanted Judge Arnold to join them.  (This is from a New Republic editorial and a Wall Street Journal article, both from May, 1994.)   It cannot be doubted that Brennan was busy behind the scenes, eager to see his life's work perpetuated by a protégé.  With his cousin boosting him from the Republican side of the aisle, Arnold's confirmation in the Senate seemed assured.

But the blatancy of the Arnold for Supreme Court campaign made it impossible for President Clinton to go along without giving the impression of being rolled.  Arnold wound up with the consolation prize of kind words from Stephen Breyer, who called him "the finest of judges" at a rose garden ceremony.  

As with his two campaigns for Congress, Richard Arnold had been presented with a can't-miss opportunity to match or even exceed his ancestors' achievements in public life.  And, once again, he missed.

Clinton's official excuse for passing over Arnold was his cancer, and maybe it was more than an excuse.  After all, if Arnold had been named to the Court, the current President would have had yet a third nominee.

But for all that Arnold had every trapping of the political hack, and then some - and for all that he was small-town royalty, which is generally not healthy for a person's psyche - for all that, he was considered a fine judge.  Indeed, some are ready to say he was a great judge, although not necessarily for the same reasons Clarence Thomas praised him.  Here's one generous obit, and here's another.  And here's Rick Garnett's recent kind words from PrawfsBlog.

I'm prepared to believe all the wonderful things said about Judge Arnold, up to a point.  (When the word "perfect" gets used, I get hives, don't ask me why...)  Which just goes to show that even a judicial selection system based entirely on the old fashioned Andy Jackson-style spoils system will occasionally produce outstanding judges.  What was the Arkansas expression Clinton liked to use?  Something about a blind hog?