It's Too Long And There Are No Adorable Kittens (Or, Why Meaningful Thought Trumps Popular Appeal)

Those who favor descriptive authors and rich story lines presume that everyone loves words; if a few are good, then more are better.   Though addicted to words, I am trying to cut down.

Massachusetts is a great leader in progressive and even radical thought.  But, we fell behind the nation in draconian punishment and are just now considering “Three Strikes” legislation when so many others who led the charge find themselves rescinding their punitive laws as too costly and ineffective .  Odd that we are so late to the penalty game,  given our colorful past of stoning witches and hanging Quakers.  But, better late than never, so despite overcrowded prisons and full courtroom dockets, the Cradle of Liberty has become determined to deny the possibility of parole to our “most dangerous felons”. 

As the Legislature sees it, due to the magic of the number 3, we can lock up all of the very, very bad people and then only good guys like bankers will be out on the streets.  

Two fantastic books published by law professors, one coming from the political right and the other from the political left shed brilliant light on the subject.   WARNING: both books have more than 750 words and there are no adorable kittens.  Still, worth the read.

Few people laud criminal activity, including inmates in prison.  Most rue their transgressions and seek to improve themselves and their lives.  Of course, we do not give them the prayer of a chance.  We deny felons the right to vote, to live in public housing, to work, to care for their children: we lock them up outside.  We demand that people change their ways and then deny them the opportunity to demonstrate that change. 

By recognizing the difficult and complicated truth about crime – how we define it, how we enforce the law, how we punish offenders, how we are creating a (self-destructive) divided, rather than united, society through our criminal justice system we can start to address the underlying problems of poverty, addiction and mental illness.  Not only is this a more humane and evolved approach to the problem, it is cheaper and more effective than catchy slogans.

Although none of us is immune from making a bad decision, studies have shown that stress wears down the mind and actually leads to poor judgment.  What could be more stressful than poverty and despair?  Prison, I suppose.

Our current world subsists on quick fixes and flashes of light.  We judge rapidly, harshly, and  permanently to our own detriment.  Three strikes, we say, and you are out – out of our sight, out of our thoughts, out of our “civil” society.  Baseball metaphors really sing in headlines and talking points, but they make no sense in determining the trajectory of human lives. 

Humbly asking forgiveness of the literary gods for the transgression of bullet points, I give you our first president, George Washington:

1.     Begging for and receiving a command in the British military for which he had no experience, he caused what can only be considered a murder leading to the Seven Years War. 

2.     He owned slaves and signed the 1793 Fugitive Slave Act. 

3.     As president, he taxed spirits to pay down the federal debt; those most greatly affected were poor, rural farmers…who rebelled…so he had them rounded up…and convicted.

Oh my, forget the mythical cherry tree and leading the Continental Army to revolutionary victory, that’s three strikes.   

Without question, there are some people who are broken and cannot be fixed, but even Charles Manson gets parole hearings. As an early sinner turned saint confessed, “Victoria veritatis est caritas.”  Hating is easy but it solves nothing.  Truth requires love built on pillars of forgiveness, opportunity and hope - three strikes for justice.

The Lie Direct

Perhaps the most glorious exaltation of the First Amendment's guarantee of free speech was one that shunned silence in favor of speech, speech and more speech :

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.  Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Whitney v. California, 274 U.S. 357, 377 (1927)(Brandeis, J., concurring)(footnote omitted).

Whether or not lying about military heroism had become a large problem in society, or anything close to an imminent evil, Congress made a law abridging, and indeed criminalizing, false speech about receiving a Congressional Medal of Honor.  And, so, picking up Justice Brandeis’ gauntlet, when Xavier Alvarez was charged with violating the Stolen Valor Act, in a brief moment of honesty, he admitted that he never received the medal he claimed to have earned but averred that this lie was protected speech under the First Amendment.  He was right.  Lies, the Court decided, are in fact within the realm of speech guaranteed by the Constitution. 

Given the propensity to fib, this must come as a great relief to many.  We hate to admit this, but we all lie.  Mostly, we prevaricate about things that cannot be easily verified – how we feel, how much we weigh, how much we spent on that coat, what kind of gas mileage the Prius really gets, whether we ate the last brownie, whether we really DO think you look fat in that dress. 

...I did dislike the cut of a certain courtier's beard: he sent me word, if I said his beard was not cut well, he was in the mind it was: this is called the Retort Courteous. If I sent him word again 'it was not well cut,' he would send me word, he cut it to please himself: this is called the Quip Modest. If again 'it was not well cut,' he disabled my judgment: this is called the Reply Churlish. If again 'it was not well cut,' he would answer, I spake not true: this is called the Reproof Valiant. If again 'it was not well cut,' he would say I lied: this is called the Counter-cheque Quarrelsome: and so to the Lie Circumstantial and the Lie Direct.

William Shakespeare, As You Like It , Act V, Scene IV

We are liars, committing lies circumstantial and lies direct.  So, why do we express such pleasure when others lie and get caught?   Athletes lie.  Politicians lie.  Bankers lie. Businessmen lie. Authors lie. Journalists lie.  Lying is such a human trait that Cain  casually deflected his own guilt about killing his brother by lying to God…who, ummm…probably knew he was lying.   

  

When the news broke about Adam Wheeler lying to get into Harvard and to get grants from Harvard and to be fawned over by Harvard faculty, some believed that this would be the great reveal about Harvard.  Harvard did not check any of the blatantly false and ridiculous claims on Wheeler’s application, claims easily found and brought to light by the media.  Harvard was no dupe; it was a willing participant in the fraud (and the absurd claims about admissions officers relying on trust is just nonsense or, if true, idiocy.)  Until a faculty member recognized plagiarism, everyone believed Wheeler to be the boy genius he pretended to be – that is, he lied to get into Harvard but once he was there they did not realize that he was not who he pretended to be.  It was not Wheeler’s lies but Harvard’s willful blindness or total acquiescence that was really criminal.  Yet, Wheeler, ashamed of his behavior, is now a convicted felon…for lying.

Why is Adam Wheeler’s lie about his academic record worthy of incarceration but Xavier Alvarez’ lie about his military record is not? The reality is, it’s not.  Like Alvarez, Wheeler constantly got away with self aggrandized lies.  He made colossal mistakes, but mistakes no greater than Milli Vanilli or Rosie Ruiz.  The prizes he received should not have been awarded because the judges should have known he was copying other people’s work.  This is not to justify the lies or to condone them in any way, but they are not crimes. 

In Alvarez, the Court inched closer to confirming that almost all speech has some value worthy of First Amendment protection.  As uncomfortable as this may make us, it is commendable.  

We do recognize some false speech offenses.  Perjury, for example, was undeniably a crime at the inception of the country and is still a crime.  The offense of perjury is not the lie - it is failing to fulfill a promise, under oath, to tell the truth.  The false oath is an insult to the tribunal and, probably, originally to the Crown.  So, the lie is not at issue, but the promise not to lie and then the blatant repeal of that promise is the offense worthy of punishment.

Similarly, in fraudulent transactions, it is not the lie, but the detrimental reliance on the lie by an innocent who is relieved of his funds or personal effects to the enrichment of the liar.   This is a form of larceny.  What is punished is the theft, not the lie.  But, even this is not a well prosecuted crime.

But, false statements generally?  How is this type of speech punishable as a crime when lying about receiving a high military honor is not?  If content is not punishable and false content is not punishable, then why is telling a lie to a college admissions office or a police officer a crime but telling an audience a lie is not?  The Alvarez case raised hackles because those who are specially recognized for their military honor and bravery are deserving of the nation’s thanks; no one should co-opt such acclaim without earning it.  The lie is repugnant and worthy of disdain, but not the threat of imprisonment.  The legacy of the Alvarez case might well be - and should be - challenges to other speech-related crimes.

The First Amendment protects all speech: true, false, popular, unpopular, political, commercial, funny, stupid, kind, cruel, uplifting and disparaging.  The answer to speech that offends is more speech, not jail time.  Maybe, just maybe, if we all keep talking the truth eventually will come through.

Presumption of Indigence: The Opt-Out Solution

In light of recent Massachusetts case law regarding indigence of criminal defendants, it might be time to change the rules: all criminal defendants should have counsel appointed, be assessed as to ability to contribute, and be provided with the option to waive appointed counsel and hire a private attorney.  As a practical matter, the opt-out process would modify little and cost the state nothing; indeed the Commonwealth might benefit from the change.  If the government guarantees and provides appointed counsel for each criminal defendant while also ensuring that those who can contribute do pay, the system will be far more honest and far more fair. 

Briefly, the Supreme Judicial Court reviewed circumstances in three cases as to which assets may be considered when defendants request appointed counsel.  In Commonwealth v. Porter, 2012 WL 2849456 (July 13, 2012), the defendant was deemed not indigent; if she could not find an attorney to accept the case for the fee the court determined was fair, the defendant could return to court to be deemed indigent but able to contribute.  In Commonwealth v. Mortimer, 2012 WL 2849450 (July 13, 2012), the defendant undeniably had assets, including a retirement account which would be attributable for defense costs minus fees and penalties for early withdrawal; however he had no access to many of the other assets due to prohibitions outlined in the Massachusetts  "slayer statute".  In Commonwealth v. Fico, 2012 WL 2849443 (July 13, 2012), the court affirmed that assets of family members including a girlfriend or parent may be reachable for criminal defense. 

The rules establish a cumbersome, expensive and ludicrous opt-in framework that ends up costing time and money for the already overburdened courts to figure out eligibility and price for a constitutionally guaranteed mandate.  It makes sense to switch the paradigm.

The Framers of the Constitution declared that criminal defendants shall enjoy the right to counsel (whether they like it or not).   The Supreme Court famously determined that this obliges the public to pay for the cost of counsel for anyone who cannot afford a lawyer.  The requirement is that counsel also be paid a reasonable fee for services rendered and that criminal defense attorneys be constitutionally effective in representing clients.  Today’s criminal defense environment encompasses the natural evolution of law, consequences of criminal convictions, the amalgamation of law and science, forensics and social science disciplines.  Criminal defense attorneys must have a wealth of knowledge and access to numerous experts in order to meet the minimum requirements of constitutional effectiveness. 

Although we rarely discuss it, the Massachusetts Constitution does not oblige criminal defendants to enjoy the right to counsel; it provides the opportunity to elect whether or not to obtain counsel. See, MA Const. Pt. 1 Art. 12 Because Massachusetts courts presume the election of counsel, the Commonwealth has already established the framework of an opt-out system. 

To the extent that opting out would affect the recent changes in the Massachusetts public counsel and private counsel divisions of the Committee for Public Counsel Services, it would illustrate the folly of seeking to place more cases into salaried public defender caseloads (which, after a tipping point already present, renders them ineffective as a matter of law opening up new litigation).  Salaried public defenders would only be able to accept cases of the truly indigent wholly unable to contribute to their own defense.  The private bar who accepts court appointed cases, however, would be eligible for the undeniably indigent matters as well as those able to contribute.  Because every defendant will be assigned counsel and assessed for ability to pay, the pool of those indigent but able to contribute may increase thereby necessitating more, not fewer, attorneys able to accept court appointed cases.

The opt-out framework would avoid the confusion, delays and litigation associated with whether or not an individual qualifies for counsel and it would cost less than the system in place.  Rather than requiring criminal defendants to bear the burden of demonstrating indigence by a preponderance of the evidence before having counsel appointed at the public’s expense, all defendants would obtain counsel subject to reimbursement costs where appropriate.

One recent case demonstrates the efficacy of immediately appointed counsel.  As the speedy trial clock ticked away, the court determined that the defendant was not indigent and could afford to pay counsel a fee determined by the court if the defendant could find a lawyer to accept the case for that amount.  The amount was roughly the same as the fee court appointed counsel would make if the case were assigned and went to trial.  If appointed, additional funds would be available for investigators and experts.  

Lawyers have a duty to make their client’s interests paramount.  In this circumstance, the client would be disadvantaged by hiring private counsel as there would be less money available for the required experts.  Therefore, an ethical lawyer would tell the court that s/he could accept the case but only if the client were deemed indigent but able to contribute – not for the lawyer’s fee - but for the ability to represent the client in today’s reality.  Whether the matter is a street crime requiring experts on ballistics or DNA or drug composition or a financial crime where the assistance of forensic accountants and financial expertise is beyond the realm of ordinary knowledge for an attorney, the lawyer would be constitutionally ineffective to accept the matter on a low fee without the ability to hire experts.

Therefore, the defendant would end up being deemed indigent but able to contribute in any event.  However, if the opt-out system existed, the defendant and her attorney would be working together on her case and the time spent on these hearings regarding whether or not counsel should be appointed would have been spent providing access to justice for another litigant.  The opt-out framework would save time and money for the overburdened courts with the net same result, a contribution by the defendant able to so provide.

Just like the system today, the vast majority of defendants would be deemed unable to contribute.  Just like today, a small number would opt out by refusing to submit financial information or by hiring private counsel who would file a notice of appearance at the earliest moment (the only difference would be an affidavit of the defendant affirmatively waiving court-appointed counsel.)  Just as today, some defendants would have an ability to contribute which would be assessed with a revisable payment plan subject to review.  What would be eliminated is the question of whether or not the individual qualifies for counsel.   

Perhaps criminal process should begin with a presumption of indigence with required financial disclosure by which defendants demonstrate their ability to contribute by a preponderance the evidence.  Any defendant who chooses to can opt out and hire private counsel.  The only thing that changes in the opt-out model is that criminal defendants will obtain counsel early on in their defense whether or not they can afford the full cost of hiring a lawyer. 

Art and Craft

“In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute.”

        -      Thurgood Marshall

Law is imperfect.  Built upon habit and common practice, its normal course is to ease forward by increments.  Occasionally, kicking and screaming, stare decisis yields to truth from all corners: social science, “hard” science, technology, and even humanity.  However, our idea of justice, learned but blind, giving all who come before her fair and equal benefit of her wisdom requires some artistic license.

Law, ideally being the construct of people struggling to establish a fair society in which everyone understands what is expected of him and the consequences of violating that public trust - even if pure in its essence - is imposed by humans, and alas we are all fallible.  Often, we allow Justice to be blind, deaf, and stumbling in distress.  The craft of lawyering comes from analytical knowledge beginning in law school and developed in practice.  But, good lawyering involves humility and humanity which we learn from outside our selves.

Unlike the law which is staid, art is revolutionary.  Mozart’s music, soothing to the modern ear, was complex and confusing to his audiences.  Shakespeare’s examples of prejudice, greed and chicanery convey his timeless understanding of the human condition.  In very few words, Langston Hughes told a story of racial animus that resonates through time.  Walt Whitman celebrated himself despite society’s disdain for who he was. 

Sometimes art speaks through generations.  Woodrow Wilson Guthrie's influence on songwriters from Bob Dylan to Bruce Springsteen is legendary -  probably because he used his light to curse the darkness (on the edge of town).  In protest to Irving Berlin’s jingoistic “God Bless America” which showers accolades on mountains, prairies and foaming oceans begging for prayer, Woody Guthrie gave us one of his greatest gifts.  He reminded us that this nation, physically stunning as it is from diamond deserts to endless skyways and golden valleys, is blessed because of who lives here.  He reminded us that within this bounty of beauty are our brothers and sisters, some of whom are suffering.  By refusing to shun the poor and downtrodden, he expresses a love far greater than Berlin’s adoration when he proclaims that no one can make him turn his back on this land, this land made for you and me.  Hold those truths to be self-evident.  Revolutionary indeed.

Sometimes art reflects such truth that it inspires us to understand our world better.  Only then can we improve it – and make no mistake - the lot of lawyers is to improve society.  This may come from preserving the law and it may come from working to change it, but there is no purpose in a lawyer whose vigil is to remain stagnant.  We are champions of freedom; freedom depends on humanity.  Art opens a door, even for the stodgiest attorney, in a way that is all at once uncomfortable and accessible.

Even when art is representative, from Copley's portraits to Adams' photographs, we are forever changed by the experience of seeing through another’s eyes.  This, of course, becomes a markedly different experience when the impressionists give us their vision, one granting freedom to view the world however we choose to see it.  One need never witness war to understand it through art.  From Picasso’s tormenting Guernica to Spielberg’s Saving Private Ryan and Schindler’s List to George’s Hotel Rwanda art can make the most rugged recoil in horror.  Just as quickly, we are universally lifted by Sam Cooke's voice...and Twyla Tharpe's dance...and Charlie Chaplin's antics... and John Newton's Amazing Grace.  And so like war, we learn peace through art.

Art can be raw – exposing itself and us, drilling into our own humanity.  Kanye West’s hip-hop or Robert Mapplethorpe’s images or Natasha Trethewey’s poetry or John Coltrane’s jazz or Verdi’s operas or Michaelangelo’s sculptures all leave an imprint.  Art is supposed to make us think, to get outside of ourselves, to explore without ever leaving our own minds.  Indeed, in art we find compassion for the afflicted, the accused and convicted that betrays us in real life.  We cheer the disabled in The Elephant Man, Mask  and Forrest Gump; we root for the criminals in The Sting, The Town, Goodfellas and The Shawshank Redemption; we praise union activism in Norma Rae and North Country; we connect to characters in every John Steinbeck novel and every August Wilson play.  Art reminds us that we care.

Woody Guthrie wrote with humanity about America.  Although falling short of its own promise, Guthrie's America was strong and glorious and striving.  Guthrie's America was all at once different from and identical to today's America - a place of hope and also where hopes get dashed.  He acquitted Sacco and Vanzetti in the public eye long after their deaths through song (as an aside, future Justice Frankfurter wrote of the injustices of that trial in this 1927 Atlantic article).  In a similar but more timely way, Bob Dylan would later create a storm of interest in Reuben Carter's unfair trial which would prove instrumental in his ultimate release from prison. 

 

Art makes a personal expression of truth comprehensible to strangers; it is a vehicle for communication that transcends time and color and race and nationality and religion and social strata.  Because of that, art speaks to our core humanity.  While law involves curiosity, creativity and craft, it is not art.  It is scholarship and precedent and analysis associated more with restraint than revolution.  But, also it is and ought to be reflective of our humanity.  Only if we seek that higher notion in the practice of law can we create and celebrate a more fair and just society.  

The criminal justice system paints with big, broad, ineffective strokes  - we punish, we incarcerate, we label.  And, it is not working.  When we discount the value art has in the justice system, we dilute our own humanity.  Incredibly, art does create meaningful change in adult prisons.  It gives voice to children housed in juvenile detention facilities.  It keeps folks successful on probation.  It brings people together in our neighborhoods. 

Energy recouped from tapping in to the kindness and compassion art percolates can improve our common condition.  By accessing our own humanity, even lawyers can invite the humanity of others.  We have a duty – all of us – yes, to represent our clients and to preserve and defend the Constitution of the nation and of our state - but also to hold up the mirror of truth.  By defending the Constitution, at a minimum, we pledge to ensure both due process of law and the equal protection of the law.  We, therefore, carry an obligation to address the causes of poverty instead of punishing the poor, to address our own prejudices instead of making presumptions about members of our community.

In tribute to Woody Guthrie on the one hundredth anniversary of his birth, let us take a moment to recognize the humanity in others.

 

Such is the power of art.  Such is the craft of law.

Justice is Not a Popularity Contest

By failing to consider the individual characteristics of the offender and by disregarding the possibility of rehabilitation, imposition of a mandatory life sentence without the possibility of parole for juveniles convicted of murder is both cruel and unusual and thus barred by the Eighth Amendment of the United States Constitution. Miller v. Alabama, WL 2368659 (2012).  This fairly simple conclusion met with vociferous dissent – not about the sentence itself - but the role of the Court.

One dissenting opinion averred that the original intent of the Amendment was to prohibit only the means of punishment. But, in the early days of the nation, punishments were often public humiliations or death, commutation and pardon were fairly widespread (think: Whiskey Rebellion); and, judges and juries alike would refuse to enter a guilty verdict if the proposed punishment were too harsh.  In 1791, bloodletting was a common medical practice, considered helpful and neither cruel nor unusual.  Unless it seeks to reintroduce scarlet letters, stockades, public whippings and jury nullification, it is safe to dispel the assumption of this version of original intent argument. 

Despite having no data to support it, another dissenting opinion feared that these juveniles, if ever released, would murder again.  Even for adults, sociopaths aside, homicide is rarely a repeated offense.  The crux of the cruelty of the mandatory punishment is that it denied juveniles all opportunity for reform.  In the cases at bar, the boys were both 14 years old; both had been exposed to conditions of life that a civilized society should be ashamed to admit even exist in our midst.  One child lived with intergenerational violence and the other was the victim of abuse and neglect who had been plied with drugs by the victim himself.  The majority denounced only a mandatory punishment that ignored all mitigating circumstances. 

However, what begs response is that four members of the Court determined that if the punishment is not unusual - if it is popularly administered - even if cruel by any other measure - even if it shocks the conscience - there is no review under the Eighth Amendment.  This distasteful crowdsourcing approach to criminal justice disregards history.  

Recall the problem of factions: “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Federalist No. 10  Madison argued that a large, strong federal government would protect against the whim of the frenzied mob.  As enlightened statesmen would not always be in charge, the federal government, he argued, would prevent a poor, but popular, idea from taking hold.  He did not absolve any element of government from its role in diluting the effects of factions. 

In the United States, the legislative model has failed to ensure a fair criminal justice system.  There is no accountability of legislators at the state or federal level who create harsh laws.  Legislators want to be re-elected and voters of all backgrounds, colors, creeds, religions and economic strata want to have safe streets.  Therefore, tough on crime slogans and statutes prevail regardless of the effect on society at large or whether they improve safety.  Putting aside that the crime in question in Miller v. Alabama was murder, universally regarded as one worthy of severe punishment, and putting aside that the issue in question was a mandatory punishment for a particular class of defendants, the most disturbing portion of the opinion is that four members of the Court agree that if a punishment is popular, it is unreviewable. 

Elected officials do not promise to study the effect of the criminal code on safety, pledge to modify the number and character of crimes and to mediate the harsh sentences that do not protect people.  Most voters have no idea how crimes are defined, what the minimum standard of proof is, what the sentencing ranges are for various offenses and whether they carry a mandatory term, minimum or absolute.  It is fair to say that, whether effective or not, most people like the idea of harsh punishments for the convicted.  Legislators, therefore are not accountable to any identifiable electorate when they enact severe, even cruel, criminal statutes and punishments. 

Further, because people are utterly unaware of the criminal codes and justice systems in their states, they are not outraged at some of the effects unless and until they become aware by virtue of a friend or family member accused or convicted.  Neighborhoods most disproportionately impacted by the criminal code have so little voice legislatively and in court as jurors it is barely above a whisper.  The daring individual who speaks up and seeks to alert the masses to the reality of their folly is ridiculed and humiliated if not silenced.  But, even if the dissent’s theory held true and those affected possessed a voice loud enough to be heard and the masses did understand the consequences of actions under the criminal codes in their states, just because a punishment is popular does not make it Constitutional.  Quite the opposite.  

Madison warned that factions cannot be eliminated, but the idea of a national identity professing individual liberties would cure their mischiefs.  This declaration affirmatively denounces the dissent.  Faction-driven discriminatory policies are, indeed, within the purview of the federal government and therefore the province of the Court.  When nine young boys (falsely accused of rape faced trial with counsel appointed that day) were convicted and sentenced to death, it was wildly popular in Alabama.  Although not on an Eighth Amendment argument (that would prevail in later years regardless of its popularity), the Court stepped in. Powell v. Alabama, 287 U.S. 45, 57 (1932).

Powell v. Alabama discussed an idea of procedural law inherent in the Fourteenth Amendment, not dependent on, or even mentioning, the Bill of Rights, in which one of the rights of due process was the guiding hand of counsel.  Although stymied by the Court and Congress, the Framers of the Fourteenth Amendment did intend for it to have broad reaching effects – to incorporate the Bill of Rights- but also, it seems, something more.  When ratified, popular voices urged prison reform, care for the poor, the infirm and mentally ill, and education for all children; it was a time when the ideals of equality, peace and Union permeated the national voice.  Its language is far too broad; its goals far too enormous, the conflict preceding it was far too bloody for limits:

No State shall… deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution 14^th Amendment, Sec. 1.

As to the expanse of the Fourteenth Amendment, “[o]ccasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights.” Adamson v. California, 332 U.S. 46, 68 (1947) (Murphy, J. dissenting).  This echoes Madison’s call to affirm individual liberties in the face of unfair practices, no matter how pervasive.  The purpose, indeed, of the federal government is to prohibit authoritarian practices whether driven by a despot or by the masses.  This is precisely why the Fourteenth Amendment ensures not only process but equal protection of the laws.

Whether in 1791 or 1868 or 2012, laws, pressed into being by factions antithetical to establishing justice, require federal review and remedy.  If the purpose of forming one nation from several states prompted and ratified the Constitution, and if that nation espouses ideals of liberty and freedom and equality and fairness and democracy, then is it not incumbent upon that nation – whether in the Legislative, Executive or Judicial arm to protect these ideals?  Do we not, as a nation, hold a duty to counter a majority or minority, that seeks to disenfranchise the rights of other citizens or the permanent and aggregate interests of the community? 

The dissenting opinion of Miller v. Alabama suggests that it is not the province of the Court to address punishments that, even if cruel, are commonly practiced.  But, mob rule is neither the backbone of the Constitution nor the republican form of government it created.  Whenever any element of authority, whether it be state or federal, fails to deliver on the promise of liberty, courts are duty-bound to enter the fray.  When the legislative model fails, it matters not whether the argument arises under an article of the Constitution or one of its first ten amendments or broader, heretofore unchartered, protections of the Fourteenth Amendment, when civil and individual liberties are at stake, we fail to uphold the Constitution we swore to defend whenever we abdicate responsibility.   

Sovereignty Demands Protection of Individual Liberty (or Why Abuse of Authority Will Kill Federalism)

Hungry for labor, early American law conferred citizenship on all who came, remained for five years and renounced all foreign allegiances.  Despite the colonial kerfuffle beginning in 1776, Great Britain determined that all who were born British subjects remained British subjects in perpetuity despite any denouncements of loyalty to the Crown. 

Armed with this idea, in the early 19^th century, British troops boarded American ships, seized all British-born aboard and forced them to serve the British Navy.  This was called “impressment”, a fancy word for an unreasonable seizure.  The American government was outraged.  Colonial abuses, General Warrants and Writs of Assistance, had inspired the ratification of the Fourth Amendment protecting all from unreasonable searches and seizures. It is fair to say that integrity, impressment and immigration were catalysts for the first declared war in the history of the United States of America.

The bicentennial of the War of 1812 provides a fitting backdrop for the Supreme Court decision in Arizona v. United States,  WL 2368661 (2012).  Although the decision is based on principles of federal preemption regarding immigration policy, history affirms that the one portion of Arizona’s law left intact will result in an unreasonable seizure of human beings 200 years after we went to war over this very issue.  

What begs comment is not so much the majority opinion, but the false history lesson in the dissent.  The dissenting opinion begins with this quote: “The United States is an indivisible ‘Union of sovereign states.’” Arizona v. United States, WL 2368661 (2012) (Scalia, J. dissenting) (citing and quoting Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104 (1938)).  What a tidy little kitbag – what happens when we unpack it?

The Hinderlider case talks about the opportunity of individual states to create congressionally approved compacts for land use rights.  The full quote actually states, “[t]he compact-the legislative means-adapts to our Union of sovereign States the age-old treaty making power of independent sovereign nations.” The Court never conferred full sovereignty on states.  It averred that, as between themselves, states have authority to create enforceable agreements subject to congressional approval.  If there is a dispute, the Court will settle it.

This is what occurred in Rhode Island v. Massachusetts, 37 U.S. 657, 748 (1838) where the Court specifically declared that states had surrendered the right to judge their own boundaries when they joined the Union.  The very act of ratifying the Constitution limited individual state sovereignty in favor of submission to the federal Constitution. In Rhode Island v. Massachusetts, the Court affirmed its authority, by virtue of that Constitution, to settle equitable claims of borders between the states (as an aside, Justice Roger Taney dissented in that case stating that the Court should not delve into “political” matters; apparently he forgot this tenet in 1857). 

So, the source of the quote in the dissenting opinion of Arizona v. United States declaring that states were as sovereign as nations, in fact, confirmed the opposite. The establishment of the federal government in 1789, by design and definition, limited the sovereignty of the independent states by virtue of Union.  Early history including the assumption of the national debt for the Revolutionary War, the federal taxation power and the elimination of tariffs by state governments confirms this idea. 

Completely erasing history, the dissent suggests that this portion of the Constitution “acknowledged” a power of immigration in the federal government: “[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 one thousand eight hundred and eight....” Arizona v. United States, WL 2368661 (2012) (Scalia, J. dissenting).  The dissent ignores the fact that the purpose of this provision was a federal ban the international slave trade (with the hope that slavery would die a natural death by attrition).  To suggest that there was any discussion or concern about foreign immigration either by individual states or the federal government in the 18^th century when the nation occupied a tiny fraction of the continent and travel was slow and dangerous is preposterous.

The truth is that at the time of ratification, the nation was desperate for labor; the slave states (with the assistance of the non-slave states) “migrated or imported” Africans; the non-slave states could not bring people in fast enough, many who came did so as indentured servants.  The section of the Constitution referred to by Justice Scalia is an embarrassment; it states that the federal government will allow the trafficking of human beings for sale from 1789 until 1808.  That is not an immigration policy; it is a crime.

  

So, the dissent is historically inaccurate, and inaccurate in a fairly terrifying way.  The Declaration of Independence pledged life, fortune and honor in pursuit of liberty for all.  Constitutional compromises regarding democracy and liberty ultimately led to civil war.  Indeed, the aspirational promise of America has consistently forced restraint, not expansion, of state sovereignty in favor of national ideals. 

The Thirteenth Amendment abolished slavery (okay, in theory it abolished slavery…)  This amendment also modified the original Constitution as to congressional representation.  Of the Framers, Northern voices called for all slaves to be granted the vote and fully counted for purposes of congressional apportionment or, if denied the vote not counted at all; Southern voices wanted slaves to be denied the vote but fully counted for apportionment purposes; the 3/5 determination was a compromise.  The Fifteenth Amendment guaranteed the right of all citizens to vote (okay, in theory it guaranteed all citizens the right to vote…)  These two constitutional amendments acted to limit sovereignty of states regarding property rights, humanity, and how to determine democratic representation in the federal government.  

The Fourteenth Amendment did several remarkable things not the least of which was to confer citizenship where citizenship had been denied, mandate that all citizens be granted the same privileges and immunities AND further restrict the sovereignty of states by affirming that no state had the authority to deny any person of life, liberty or property without due process of law.  Rather than now viewing each state as a sovereign, the Fourteenth Amendment affirmed that the federal government could and would call the shots as to citizenship as well as due process and equal protection of the laws for all people, not just citizens.  

It is irrational to aver that the individual states of the United States of America are fully sovereign entities.  In the most aspirational model of federalism, in fact, states can (and should) enact laws and rules only to make life better for inhabitants, not worse.  However, history precludes the notion that American states are sovereign nations with authority to patrol their own borders or deny equal protection of the laws. 

Of course, this has nothing to do with the Court’s concerns and conclusions in Arizona v. United States; there the issue was federal preemption and whether national interests essentially trumped the state’s, not the Fourteenth Amendment.  The majority did not declare states to be sovereign in the manner suggested by the dissent.  But, the crux of the dissenting opinion does resonate with other Court members and the public despite its flaws; further the Court left one provision of Arizona’s law intact which will be challenged under the Fourth and Fourteenth Amendments.  

Putting aside the already harsh and misguided national immigration policy and pretending for a moment that it is just and fair in a way Arizona’s new policy is not, the provision that remains, SB 1070 section 2(B), will likely lead to extended detentions of people because of the way they look or talk or the area of town in which they travel.  Sure, they have to be arrested first, but given the conventional standard for probable cause, that is a mere technicality. In addition to restraints of liberty, it is unclear what will happen with those detained by Arizona authorities if the federal government declines to proceed with deportation procedures.

George Santayana warned that those who fail to learn from history are doomed to repeat it.  Our history demonstrates that for all of our aspirations, for all of our ideals, we are societally challenged to live up to our promise.  Arresting people first, Arizona will detain people who speak with accents, it will detain people with darker skin, it will detain people who authorities believe - in Justice Scalia’s unsettling words - “have no right to be there.”  The dissent has it all wrong: sovereignty is not based upon the power to exclude; it is based upon liberty and independence.    

States should not be constrained in conferring the promise of America to ensure equal privileges and immunities, due process of law, and opportunities for freedom and liberty for everyone.  But, if past is prologue, when states seek to deny equal privileges and immunities, deprive due process of law and limit freedom and liberty, they ultimately lose sovereignty as a result.  Instead of the goal of federalism – which is greater freedom – this abuse of authority leads to its demise.   

As we commemorate the War of 1812, we remember the war “heroes”, we rejoice in the Star Spangled Banner, but we forget why the war started, we ignore the lasting trauma to Native Americans it perpetuated, and we have no idea who won.   United, we once went to war to ensure that those loyal to America could remain free in her borders.  Divided, we now clamor to deport those very same folks.