Stealing is as old as the ages. As early as Genesis, at his mother's urging, Jacob impersonated his brother Esau to obtain his birthright and fortune. There's a slight wrinkle in that a hungry Esau may have agreed to the bargain in exchange for food (which did not make him any less angry when reality hit). And, their father Isaac, tricked into bestowing on one son what he believed he gave to another, let bygones be bygones and never tried to right the wrong. As it turns out, the birthright was Jacob's destiny and was never intended for Esau in the first place. So, even though he used trickery, Jacob really did not steal anything.
As ancient as the concept of deception and identity theft is, Joseph Caramadre took the idea, one might say, on a ladder to exalted levels. He realized that certain insurance annuity documents contained a drafting flaw which allowed the insured and the annuitant to be different parties - and parties who did not have any connection to each other. By way of context: he realized this in an era of complex financial instruments and a world comprised of derivative markets. Indeed, he discovered this at a seminar by the insurance companies seeking sales of this particular product.
Rather than selling policies to wealthy individuals in retirement, Mr. Caramadre realized that instead of an annuitant/investor and the beneficiary, the roles could be changed to annuitant and investor/beneficiary. And so, Mr. Caramadre started finding and paying people who had terminal illnesses to become his annuitant. He paid a fee to people who would be the "measuring life" and bet that the individual would die sooner rather than later. So, he took his own money as the investment and put it into incredibly risky ventures; if they beat the market, he got the profits but if they fell short, there was a guaranteed death benefit. It was genius. And, unlike the sketchy books kept by "the smartest guys in the room" at Enron, this was all transparent, above-board and completely legal.
Nothing gets by these insurance companies and once they had paid him tens of millions of dollars over the course of several years, they caught on to Mr. Caramadre. Instead of changing the contract terms to require the annuitant to be the investor or the relationship between the annuitant and beneficiary to be something other than "acquaintance", they sued. And lost. However, the federal government in its infinite wisdom, charged Mr. Caramadre and an associate with 66 criminal offenses including identity theft, wire fraud and conspiracy. To be clear; the role of prosecutors is to protect the people. No person was harmed by any of these contracts: people actually received money they never otherwise would have due to Caramadre's payment for their participation. The "person" of the insurance companies did not lose money, they lost face.
Mr. Caramadre did not develop this plan in a vacuum. He was introduced to these annuities by a company trying to make a lot of money from them in a world where people purchased and were encouraged to purchase financial instruments they did not understand. Mr. Caramadre, despite the grim reaper aspect of all of this, did not do what banking institutions did to their fiduciaries when they sold worthless investments. The people who signed the contracts were paid a sum of money, they did not forfeit anything that belonged to them. No one lost anything: the individuals never could have afforded the annuities, the insurance companies wrote the contracts and assumed the risk: that is their business after all.
Not one banking institution or credit default swap salesman has ever been charged for tanking the world economy. Instead of prosecuting bad guys who got rich while people lost their homes and retirement savings, the federal government chose to go after the one guy who beat the bankers at their own game. Sadly, facing so many charges, Mr. Caramadre and his associate each pleaded guilty during their trial last week to one count of wire fraud and one of conspiracy.
It's not the first time the federal government has been on the wrong side of history where theft was concerned. Two hundred years ago, the United States were at war with England. The English illegally boarded ships and forced impressment on men working on American vessels. Indeed, the very idea that foreign powers could enter a ship sailing under a United States flag was one of the causes of the war. At about that same time, the French were also at war with, well, everyone including themselves, but England was certainly one of their combatants and England ruled the seas.
In this context, French thieves stole a boat near Spain that belonged to American merchants; they transformed it into a warship. If the newly configured ship were intended for war, it should have sailed up the Atlantic Coast toward Russia, the country France was then invading. Yet, somehow, the ship docked in Philadelphia whereby its original owners became aware of its existence and sought to reclaim their stolen property. Putting aside the fact that the economy was in trouble due to massive forfeiture of cargo to the United States Treasury under the Embargo Act of 1808 - and putting aside that this merchant ship fitted with guns was, in all likelihood running goods (Napoleon was in Smolensk, the boat was in Philadelphia; if this were really a warship, the crew was horribly lost). It's almost the perfect case to assert American sovereignty: an American ship boarded and seized by a foreign powers. One might think that the victims would be returned their ship.
One would be wrong. The Supreme Court of the United States (no doubt with some prompting by the other two branches of government desperately professing neutrality in the Napoleonic wars) determined that even though the ship had been seized unlawfully, Napoleon was immune from prosecution. The enemy of my enemy is my friend theory of justice prevailed then as now. The enemy then was England and her immense Navy. The enemy today are fraudulent financial instruments that hurt investors. But, both the Schooner Exchange and Mr. Caramadre's cases are the wrong vehicle to demonstrate their respective points. Britain's Navy was not defeated: not by the United States in the War of 1812 and not by the French in the the Napoleonic Wars. Eliminating or regulating unscrupulous derivatives has not even been attempted. The United States government does not do well when it defies justice in an effort to curry favor with powerful forces.
Mr. Caramadre simply did what is done every day by bankers and insurance companies themselves because the government refuses to curtail the practice. Instead of going after the parties that genuinely hurt innocent investors, the government has gone after the one guy who legally, transparently, and flamboyantly profited from a drafting flaw; unlike real identity thieves, no one's credit was ruined, no one's life was upended. Supporting the insurance companies in the face of their own complicity out of disdain for complex financial instruments is like granting Napoleon sovereign immunity for a stealing a ship just because everyone despised England.
After all, sometimes events only seem deceptive. Even if Jacob put on the goatskin to trick his father, it could not have been to
cheat Esau out of his birthright; God preordained that the elder
(Esau) would serve the younger (Jacob). Indeed, Rebekah, their pious and devoted
mother, set the scheme in motion: she urged Jacob to feign his brother's
identity to receive his father's blessing; she then aided and abetted him as he sought
shelter from relatives while Esau cooled his heels from the power
grab. Even though it appeared to be devious, the outcome would have been no different.
Like the story of Jacob and Esau, Mr. Caramadre's enterprise was not theft in the sense of taking something that rightfully belonged to another. It was more of a morality play, but this time with an unwritten ending. One has to ask: it is just a coincidence that translated from the Italian, "caramadre" means "beloved mother"?
Monday, November 26, 2012
Monday, November 19, 2012
Federalism and Cannibis -How the Ninth And Tenth Amendments Won at the Polls
When Congress overrode President Wilson's veto of the Volstead Act in 1919, it unwittingly launched careers of now notorious criminals. Federally prohibiting the manufacture, sale and transportation of intoxicating liquor (but not consumption or use for scientific and religious purposes) was an unmitigated disaster culminating with the 21st Amendment in 1933.
Entire communities of brewers and distillers lost everything to Prohibition and then the Great Depression, bracketed by loss in two World Wars. The American people protested these ill conceived laws through bootleggers and speakeasies (romanticized now but often dangerous in their time) by unlawfully manufacturing, selling and transporting all manner of intoxicating liquors which had been a legitimate business just moments before. But, the mostly small, independent commercial producers of beer and spirits could not fight back leaving empty, boarded up buildings in formerly profitable neighborhoods. The repeal of Prohibition came too little, too late to revive the lost businesses.
The entire movement in opposition to alcohol would baffle the Colonists and Revolutionaries who imbibed on a regular basis. Indeed, with no water purification system (or understanding of waterborne illnesses), alcohol was safer to drink than water. It never would occur to them that any government - state or federal - would seek to restrict intoxicating drink or even medical drugs. What could be more personal an individual freedom than the choice of what to - or not to - ingest?
The Volstead Act leaves a legacy in the federal government's war on drugs, a war that may have met its match; the people are fighting back. The shot heard round the world came this time from Colorado and Washington in ballot initiatives granting legalization (not decriminalization or medical use, but full on treat-marijuana-like-alcohol-and-cigarettes legal). The federal government is in a tizzy (it's a war, afterall) and so a "conservative" House of Representatives will scramble to figure out how to control state action over a drug that is not known to cause much harm, if any, and has its roots and relatives in our American heritage. Just let that sink in; those who chatter about principles of federalism to restrict rights will contest those same ideals when those principles enlarge rights.
Industrial hemp is a weed, not terribly unlike its banned cousin, which was used to make everything from paper to fabric to rope for the burgeoning shipyards from the earliest of Colonial American settlement. Indeed, there are texts indicating that failing to grow this important crop was itself a criminal offense. While hemp brought American industry to new heights, it did not have a similar effect on the populace as it has no intoxicating properties. The cannabis associated with smoking and laughing and Jazz and hippies was not widely available until about the time of the Missouri Compromise. Marijuana may have even gained prominence during Prohibition but was criminalized shortly after alcohol regained its place in polite society. It is as though the federal government is unhappy unless it is punishing some type of intoxicant. Today's question is not whether the federal government can enact such laws but whether the federal laws pre-empt the new state laws.
The national prohibition on cannibis has essentially eliminated all commercial growth of hemp despite its long history in this nation and the remarkable qualities of the plant. Undeniably, the people of Colorado and Washington spoke to recreational use of marijuana, but the implications reach far beyond the borders of those states and far beyond their intent. Their initiatives will necessarily spark - for both liberty interests and commercial concerns - a new conversation about the role of the federal government in conflict with and as constrained by the Ninth and Tenth Amendments.
Federal drug laws live, for the moment, in the Commerce Clause, permitting even the federal prosecution for home grown plants where states have medical marijuana use laws. But, the Chief Justice has called this line of argument into question since he did not support the Affordable Care Act under the Commerce Clause. Indeed, the valorous creativity of the Warren Court's use of the Commerce Clause to ensure equality was always a tenuous and easily challenged argument. What may be a shield cannot be a sword; federalism, and justice itself, demands the protection of individual liberty as against an encroaching government.
The Ninth Amendment acknowledges that the Constitution does not enumerate all rights, and that there are rights retained by the people. See, i.e. concurrence in Griswold v. CT, 381 U.S. 479, 492 (1965) Ballot initiatives often express the voice and life of the Ninth Amendment. Surely the Framers understood a right to the integrity of one's own body including what substances one might ingest and which ones one might refuse. And, intoxicating drink was certainly prevalent even in the colonies. It would be difficult to imagine Hamilton or Adams or Madison or Jefferson seeking to micromanage individual's consumption of any particular product. As to the question of marijuana (or any drug) legalization, it appears have some resonance in the Ninth Amendment.
But, the big guns will be reserved for the Tenth Amendment: the retention of power by the individual states where no such power is delegated to the federal government. For example, Colorado and Washington will develop some regulatory mechanism for marijuana. There are privileges and immunities clauses within Art. 4 and the Fourteenth Amendment of the Constitution. Query whether those in a national park located in one of those states could be treated differently from those in a state park or city sidewalk. And if there is a difference, who trumps whom? There are no enumerated powers in the federal constitution in regard to controlling intoxicants; this one should bounce back to the states. That is, given the flimsy ground upon which the federal drug laws stand, they should bow to state legalization.
While the insidious and destructive war on drugs has wreaked havoc on American neighborhoods and entire populations for far greater offenses than recreational use of marijuana, the good people of Colorado and Washington may have started a revolution with their decisive votes. The results of the ballot initiatives could restore to farmers the opportunity to grow industrial hemp, a plant that, among other uses, has the power to assist America in its quest for energy independence. And, it could be the catalyst to end federal control over the criminalization of drugs; reverting all power therein to the states or to the people.
Valid, vibrant federalism arguments, such as those mounting in Washington and Colorado right now, can and should thrive. States ought to be individual laboratories for growth and change and progress providing more freedom than does the federal government. And, unless specifically enumerated powers rest exclusively in the federal government, it should have no ability to restrict freedoms provided by the states. That is the greatness of the federalist ideal. The invidious misinterpretation of the doctrine of federalism, those often self-named "states rights" movements which aim to restrict individual liberties by state action are necessarily doomed to failure as they were 150 years ago. But, unless the national government will secure and protect all liberty concerns, then marriage equality, broad educational mandates, single payer medical coverage, and even legalization of previously banned substances are and ought to be the province of the individual states. As the red states and blue states work this out through a purple haze, federalism lights up.
Entire communities of brewers and distillers lost everything to Prohibition and then the Great Depression, bracketed by loss in two World Wars. The American people protested these ill conceived laws through bootleggers and speakeasies (romanticized now but often dangerous in their time) by unlawfully manufacturing, selling and transporting all manner of intoxicating liquors which had been a legitimate business just moments before. But, the mostly small, independent commercial producers of beer and spirits could not fight back leaving empty, boarded up buildings in formerly profitable neighborhoods. The repeal of Prohibition came too little, too late to revive the lost businesses.
The entire movement in opposition to alcohol would baffle the Colonists and Revolutionaries who imbibed on a regular basis. Indeed, with no water purification system (or understanding of waterborne illnesses), alcohol was safer to drink than water. It never would occur to them that any government - state or federal - would seek to restrict intoxicating drink or even medical drugs. What could be more personal an individual freedom than the choice of what to - or not to - ingest?
The Volstead Act leaves a legacy in the federal government's war on drugs, a war that may have met its match; the people are fighting back. The shot heard round the world came this time from Colorado and Washington in ballot initiatives granting legalization (not decriminalization or medical use, but full on treat-marijuana-like-alcohol-and-cigarettes legal). The federal government is in a tizzy (it's a war, afterall) and so a "conservative" House of Representatives will scramble to figure out how to control state action over a drug that is not known to cause much harm, if any, and has its roots and relatives in our American heritage. Just let that sink in; those who chatter about principles of federalism to restrict rights will contest those same ideals when those principles enlarge rights.
Industrial hemp is a weed, not terribly unlike its banned cousin, which was used to make everything from paper to fabric to rope for the burgeoning shipyards from the earliest of Colonial American settlement. Indeed, there are texts indicating that failing to grow this important crop was itself a criminal offense. While hemp brought American industry to new heights, it did not have a similar effect on the populace as it has no intoxicating properties. The cannabis associated with smoking and laughing and Jazz and hippies was not widely available until about the time of the Missouri Compromise. Marijuana may have even gained prominence during Prohibition but was criminalized shortly after alcohol regained its place in polite society. It is as though the federal government is unhappy unless it is punishing some type of intoxicant. Today's question is not whether the federal government can enact such laws but whether the federal laws pre-empt the new state laws.
The national prohibition on cannibis has essentially eliminated all commercial growth of hemp despite its long history in this nation and the remarkable qualities of the plant. Undeniably, the people of Colorado and Washington spoke to recreational use of marijuana, but the implications reach far beyond the borders of those states and far beyond their intent. Their initiatives will necessarily spark - for both liberty interests and commercial concerns - a new conversation about the role of the federal government in conflict with and as constrained by the Ninth and Tenth Amendments.
Federal drug laws live, for the moment, in the Commerce Clause, permitting even the federal prosecution for home grown plants where states have medical marijuana use laws. But, the Chief Justice has called this line of argument into question since he did not support the Affordable Care Act under the Commerce Clause. Indeed, the valorous creativity of the Warren Court's use of the Commerce Clause to ensure equality was always a tenuous and easily challenged argument. What may be a shield cannot be a sword; federalism, and justice itself, demands the protection of individual liberty as against an encroaching government.
The Ninth Amendment acknowledges that the Constitution does not enumerate all rights, and that there are rights retained by the people. See, i.e. concurrence in Griswold v. CT, 381 U.S. 479, 492 (1965) Ballot initiatives often express the voice and life of the Ninth Amendment. Surely the Framers understood a right to the integrity of one's own body including what substances one might ingest and which ones one might refuse. And, intoxicating drink was certainly prevalent even in the colonies. It would be difficult to imagine Hamilton or Adams or Madison or Jefferson seeking to micromanage individual's consumption of any particular product. As to the question of marijuana (or any drug) legalization, it appears have some resonance in the Ninth Amendment.
But, the big guns will be reserved for the Tenth Amendment: the retention of power by the individual states where no such power is delegated to the federal government. For example, Colorado and Washington will develop some regulatory mechanism for marijuana. There are privileges and immunities clauses within Art. 4 and the Fourteenth Amendment of the Constitution. Query whether those in a national park located in one of those states could be treated differently from those in a state park or city sidewalk. And if there is a difference, who trumps whom? There are no enumerated powers in the federal constitution in regard to controlling intoxicants; this one should bounce back to the states. That is, given the flimsy ground upon which the federal drug laws stand, they should bow to state legalization.
While the insidious and destructive war on drugs has wreaked havoc on American neighborhoods and entire populations for far greater offenses than recreational use of marijuana, the good people of Colorado and Washington may have started a revolution with their decisive votes. The results of the ballot initiatives could restore to farmers the opportunity to grow industrial hemp, a plant that, among other uses, has the power to assist America in its quest for energy independence. And, it could be the catalyst to end federal control over the criminalization of drugs; reverting all power therein to the states or to the people.
Valid, vibrant federalism arguments, such as those mounting in Washington and Colorado right now, can and should thrive. States ought to be individual laboratories for growth and change and progress providing more freedom than does the federal government. And, unless specifically enumerated powers rest exclusively in the federal government, it should have no ability to restrict freedoms provided by the states. That is the greatness of the federalist ideal. The invidious misinterpretation of the doctrine of federalism, those often self-named "states rights" movements which aim to restrict individual liberties by state action are necessarily doomed to failure as they were 150 years ago. But, unless the national government will secure and protect all liberty concerns, then marriage equality, broad educational mandates, single payer medical coverage, and even legalization of previously banned substances are and ought to be the province of the individual states. As the red states and blue states work this out through a purple haze, federalism lights up.
Sunday, November 11, 2012
Unabridged: Reservations About the Tenth Amendment and the Right to Vote
One hundred and fifty years ago, Union forces built bridges and began assembling to face Lee's Army near Fredericksburg, Virginia wholly unaware they were about to lose one of the most lopsided fights in Civil War history. That war is prominent this Veteran's Day as the battles enter their sesquicentennial anniversaries and cinema brings the era into a new realism. But, also because we are still chasing its ghosts.
Spoiler alert - the Union wins, the Confederacy dissolves and the states in rebellion re-enter the Union with considerable conditions placed upon them. Among these conditions was mandatory ratification of the Reconstructionist Amendments to the United States Constitution: the Thirteenth Amendment prohibited slavery and indentured servitude, the Fourteenth Amendment defined citizenship and declared equality for all, and the Fifteenth Amendment enfranchised those who had been denied the vote by stating, "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." Due to the opposition by the states in insurrection and a general concern about the administration of these mandates, all three Amendments endow Congress with the power to enforce them by appropriate legislation.
So, when Congress first set out to enforce the article in 1870, it did so rather forcefully, in 16 Stat. 140, by authorizing criminal penalties for officials who denied the right to vote based upon race. In perhaps the first case determining the validity of that statute, Justice Strong (acting as Circuit Justice) upheld convictions in United States v. Given, 25 F.Cas. 1324 (1873). He explained the constitutional powers of Congress to enforce the Fifteenth Amendment's right to vote (or, more precisely, prohibition of discrimination to vote) through clever analogy. He asserted that there was no power bestowed upon Congress to enforce the third paragraph of Sec. 2 of Art.4 of the United States Constitution but that legislation enforcing it had been upheld by the Court. Reasoning that the language in the Fifteenth Amendment was stronger and more directed, congressional action - even to criminal penalties - was appropriate.
Art. 4 of the United States Constitution originally affirmed the permanence of servitude for anyone born into slavery who was not granted manumission. It was silent in regard to enforcement. Yet, Congress acted twice with the Fugitive Slave Act of 1793 and then again in 1850 creating criminal penalties for those seeking freedom and remedies for those seeking to reclaim their "property"; both times the Court upheld fugitive slave legislation. In this punctuated vein, Justice Strong upheld Congress' authority and power to enforce the Fifteenth Amendment via criminal sanctions.
The Givens case mentioned the general powers of the states to enact rules and regulations for voting but remarks,
Fast forward to 2012 where the Court granted certiorari in the matter of Shelby County, AL v. Holder to determine whether Congress exceeded its authority under the Fourteenth and Fifteenth Amendments when it reauthorized a section of the 1965 Voting Rights Act requiring certain localities with a history of racial discrimination to obtain preauthorization from Congress before they changed their voting rules thereby violating the Tenth Amendment and Art. 4 of the Constitution. The Tenth Amendment declares that powers not specifically designated to the federal government nor prohibited to the states would be reserved by the states or the people. Art. 4 avers that citizens of each state would enjoy the privileges and immunities of citizens in the several states...it also was the original home of the guarantee that a slave would be a slave no matter where he resided leading to the ill considered decision in Dred Scott v. Sandford announcing that no African American was a citizen anywhere in the United States. The grant of certiorari under these two sections of the Constitution should send shivers down the spines of every American.
In 1873, Justice Strong- appointed by President Grant (the same person who accepted Lee's surrender at Appomatox Courthouse) - affirmed that the Fifteenth Amendment radically changed the relationship of the states to the federal government. He lived through the ratification period and the emergence of liberty in Reconstruction and was quite convinced that the Tenth Amendment did not apply to enforcement of the Fifteenth. By granting certiorari the current Supreme Court is opening up these old wounds of war that have scabbed over and over with time and struggle through a Tenth Amendment vehicle that ran out of steam by 1873.
Following the war that claimed 700,000 American lives, countless lynchings, intimidation, brutal violence, outrageous poll taxes and literacy tests continued to deny the vote. Undeterred by this irrational savagery, courageous, powerful movements of the 1940's, 50's and 60's persisted. Finally President Johnson and the heroic 89th Congress passed the Voting Rights Act of 1965.
The Reconstructionist Amendments were war reparations reserving little ambiguity about their meaning, purpose and design. To ensure their life in perpetuity, they reformed the entire relationship between the individual states and the federal government granting significantly more power in the federal government than initially occurred (a point Madison would have loved) and left nothing to comity. These Amendments were not a compromise - they were an affirmation intended to instill the promise of the second sentence of the Declaration of Independence upon all people by redirecting certain powers to Congress. That change is permanent.
Together, as a nation, we have united to defeat the Nazis, we have struggled with the inequities of our first compromise and have emerged stronger with each member of society fully enfranchised, we have pulled and strained against the notion of liberty to a point where we are ensuring civil rights at the ballot box (which has its drawbacks, but is a remarkable achievement), and we have just affirmed, by popular (and our quirky electoral) vote that we do believe in the promise initially embraced by the Enlightenment that emboldened our forbears. That unified nation - the one that reveres our brave armed forces on this Veteran's Day- began with the end of the Civil War and is continually evolving, in the hopeful words of James Madison, in order to form a more perfect Union, establish justice and ensure domestic tranquility.
We ought not and cannot and shall not permit the frayed edges to unravel this great nation. Congress is now elected by popular vote; it has deemed that certain localities must receive approval before changing voting laws; the unelected Courts must accept this under the Fifteenth Amendment which, by its own terms, denied states their prior powers under the Tenth Amendment. Even though it took Congress 100 years to act, separation of powers assures that any and every action to enforce the Fifteenth Amendment shall be upheld.
The mournful magnitude of 20,000 casualties in Fredericksburg 150 years ago was not in vain. Our tragic division united us; and in that unification we agreed - however reluctantly by some - to welcome all Americans as equals. Every vote counts and if takes Congressional approval to so ensure then that is a tiny price to pay for all of the blood that has spilled over the unalienable right to take part in one's own government.
Spoiler alert - the Union wins, the Confederacy dissolves and the states in rebellion re-enter the Union with considerable conditions placed upon them. Among these conditions was mandatory ratification of the Reconstructionist Amendments to the United States Constitution: the Thirteenth Amendment prohibited slavery and indentured servitude, the Fourteenth Amendment defined citizenship and declared equality for all, and the Fifteenth Amendment enfranchised those who had been denied the vote by stating, "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." Due to the opposition by the states in insurrection and a general concern about the administration of these mandates, all three Amendments endow Congress with the power to enforce them by appropriate legislation.
So, when Congress first set out to enforce the article in 1870, it did so rather forcefully, in 16 Stat. 140, by authorizing criminal penalties for officials who denied the right to vote based upon race. In perhaps the first case determining the validity of that statute, Justice Strong (acting as Circuit Justice) upheld convictions in United States v. Given, 25 F.Cas. 1324 (1873). He explained the constitutional powers of Congress to enforce the Fifteenth Amendment's right to vote (or, more precisely, prohibition of discrimination to vote) through clever analogy. He asserted that there was no power bestowed upon Congress to enforce the third paragraph of Sec. 2 of Art.4 of the United States Constitution but that legislation enforcing it had been upheld by the Court. Reasoning that the language in the Fifteenth Amendment was stronger and more directed, congressional action - even to criminal penalties - was appropriate.
Art. 4 of the United States Constitution originally affirmed the permanence of servitude for anyone born into slavery who was not granted manumission. It was silent in regard to enforcement. Yet, Congress acted twice with the Fugitive Slave Act of 1793 and then again in 1850 creating criminal penalties for those seeking freedom and remedies for those seeking to reclaim their "property"; both times the Court upheld fugitive slave legislation. In this punctuated vein, Justice Strong upheld Congress' authority and power to enforce the Fifteenth Amendment via criminal sanctions.
The Givens case mentioned the general powers of the states to enact rules and regulations for voting but remarks,
But the recent amendments have introduced great changes. If prior to 1870, when the fifteenth amendment became a part of our organic law, the right of a slave holder to the ownership of his fugitive slave in any state of the Union, and his right to delivery of such slave, was a right which congress was authorized to enforce and protect by penal legislation against individuals obstructing it, much more are the rights secured, recognized, and guaranteed by the thirteenth, fourteenth, and fifteenth amendments objects of legitimate protection by the law-making power of the federal government. Those amendments have left nothing to the comity of the states affecting the subjects of their provisions. They manifestly intended to secure the right guaranteed by them against any infringement from any quarter. Not only were the rights given—the right of liberty, the right of citizenship, and the right to participate with others in voting, on equal terms, without any discrimination on account of race, color, or previous condition of servitude—but power was expressly conferred upon congress to enforce the articles conferring the right. The second section of the fifteenth article ordained that ‘the congress shall have power to enforce this article by appropriate legislation.’ Manifestly this section was adopted for a purpose. It must be so construed as to confer some effective power.United States v. Givens, 25 F.Cas. at 1327 (emphasis added).
Fast forward to 2012 where the Court granted certiorari in the matter of Shelby County, AL v. Holder to determine whether Congress exceeded its authority under the Fourteenth and Fifteenth Amendments when it reauthorized a section of the 1965 Voting Rights Act requiring certain localities with a history of racial discrimination to obtain preauthorization from Congress before they changed their voting rules thereby violating the Tenth Amendment and Art. 4 of the Constitution. The Tenth Amendment declares that powers not specifically designated to the federal government nor prohibited to the states would be reserved by the states or the people. Art. 4 avers that citizens of each state would enjoy the privileges and immunities of citizens in the several states...it also was the original home of the guarantee that a slave would be a slave no matter where he resided leading to the ill considered decision in Dred Scott v. Sandford announcing that no African American was a citizen anywhere in the United States. The grant of certiorari under these two sections of the Constitution should send shivers down the spines of every American.
In 1873, Justice Strong- appointed by President Grant (the same person who accepted Lee's surrender at Appomatox Courthouse) - affirmed that the Fifteenth Amendment radically changed the relationship of the states to the federal government. He lived through the ratification period and the emergence of liberty in Reconstruction and was quite convinced that the Tenth Amendment did not apply to enforcement of the Fifteenth. By granting certiorari the current Supreme Court is opening up these old wounds of war that have scabbed over and over with time and struggle through a Tenth Amendment vehicle that ran out of steam by 1873.
Following the war that claimed 700,000 American lives, countless lynchings, intimidation, brutal violence, outrageous poll taxes and literacy tests continued to deny the vote. Undeterred by this irrational savagery, courageous, powerful movements of the 1940's, 50's and 60's persisted. Finally President Johnson and the heroic 89th Congress passed the Voting Rights Act of 1965.
The Reconstructionist Amendments were war reparations reserving little ambiguity about their meaning, purpose and design. To ensure their life in perpetuity, they reformed the entire relationship between the individual states and the federal government granting significantly more power in the federal government than initially occurred (a point Madison would have loved) and left nothing to comity. These Amendments were not a compromise - they were an affirmation intended to instill the promise of the second sentence of the Declaration of Independence upon all people by redirecting certain powers to Congress. That change is permanent.
Together, as a nation, we have united to defeat the Nazis, we have struggled with the inequities of our first compromise and have emerged stronger with each member of society fully enfranchised, we have pulled and strained against the notion of liberty to a point where we are ensuring civil rights at the ballot box (which has its drawbacks, but is a remarkable achievement), and we have just affirmed, by popular (and our quirky electoral) vote that we do believe in the promise initially embraced by the Enlightenment that emboldened our forbears. That unified nation - the one that reveres our brave armed forces on this Veteran's Day- began with the end of the Civil War and is continually evolving, in the hopeful words of James Madison, in order to form a more perfect Union, establish justice and ensure domestic tranquility.
We ought not and cannot and shall not permit the frayed edges to unravel this great nation. Congress is now elected by popular vote; it has deemed that certain localities must receive approval before changing voting laws; the unelected Courts must accept this under the Fifteenth Amendment which, by its own terms, denied states their prior powers under the Tenth Amendment. Even though it took Congress 100 years to act, separation of powers assures that any and every action to enforce the Fifteenth Amendment shall be upheld.
The mournful magnitude of 20,000 casualties in Fredericksburg 150 years ago was not in vain. Our tragic division united us; and in that unification we agreed - however reluctantly by some - to welcome all Americans as equals. Every vote counts and if takes Congressional approval to so ensure then that is a tiny price to pay for all of the blood that has spilled over the unalienable right to take part in one's own government.
Sunday, November 4, 2012
Driven to Extremes
Concerned about acquittal numbers in criminal trials for operating a motor vehicle under the influence of alcohol, the Massachusetts Supreme Judicial Court commissioned a report to identify issues related to this perceived phenomenon. The report is thorough and explanatory. It seems that the primary reasons for high acquittal rates have nothing to do with corruption within the system, but rather weak cases for the prosecution combined with defense attorney operating under the influence specialization. This comes as no surprise as a quick search of "oui" or "operating under the influence" does not return statistics on deaths or accidents, it yields names of lawyers holding themselves out as skilled in this type of defense alone.
But, one surprising outcome of the report was included in its four recommendations, three of which are unobjectionable on any level as they tend more toward fairness in the proceedings and the ability of the fact finder to ascertain the truth of the event. But, one recommendation (which, the Supreme Judicial Court admits would require legislative action) is to amend G.L. c. 90 sec. 24(1)(f)(1) to deny the restoration of a driver's license, suspended upon refusal to take a breathalyzer test, regardless of the outcome of the case. Assuming the driver has the right to refuse the test (knowing that his or her license will be suspended automatically for that refusal), why shouldn't the privilege of driving be restored immediately upon a determination, as outlined in the statute, within 15 days of offense if the officer did not have probable cause to stop the person or, certainly upon acquittal or dismissal of the case? The minimum suspension of a driver's license for refusing to take a breathalyzer test is six months.
Breathalyzer tests may not be consistent or reliable; results may be challenged effectively at trial. But, there is a presumption of guilt with a reading of 0.08 or higher. Query the purpose of the law: to prevent erratic driving due to the influence of drugs or alcohol. A sleepy or elderly or newly licensed or distracted driver may be more dangerous than one who has a high tolerance for alcohol; but if they are stopped for another reason, their licenses will not be suspended. The suggestion by the otherwise thorough and compelling report to suspend people's driver's licenses for a minimum of six months, whether innocent or guilty of a specific offense, or whether there is even probable cause to arrest someone is an invitation for abuse by the police as well as a swift slide down a slippery slope.
It is reasonable to place a minimal penalty on the refusal to submit to a breathalyzer (and query whether the refusal alone suggests a higher brain functioning and reaction time than one who submits). However, the statutory suspensions are lengthy and can be burdensome to individuals who depend on cars for their livelihood. Further, mass transit options in some parts of the state are non existent and even if one has a bicycle and the ability to ride, winter is cold in Massachusetts. A rule change may result in an innocent person who was not impaired but refused the breathalyzer for any one of a number of legitimate reasons to be acquitted of the offense but possibly lose her job and her ability to manage her life. That seems extreme.
Putting aside the overdependence we have on cars and putting aside that there are additional options and putting aside that driving is a privilege and not a right - all legitimate, but irrelevant, issues. The question is what penalty do we assign to the refusal to submit to a potentially faulty test, the refusal of which is not admissible evidence in a court of law, when the government is incapable of proving guilt beyond a reasonable doubt? The statute itself states that by getting behind the wheel all drivers consent to this test - the individual who refuses negates this presumed consent and sacrifices the loss of a license for a short period of time.
However, the potential for restoration of rights necessarily advances the case more quickly through the courts with the potential to clear the docket. The knowledge that a mere arrest - even one without probable cause - would result in a loss of license regardless of outcome relegates the case to a low priority for both parties resulting in even further clogged court dockets. Such a determination suggests a poor example of due process and fair play, the very attributes of government that prompt apathy and disaffection, not responsible citizenship. And, to what end?
Collateral consequences are serious matters not just to defendants, but to justice itself. This is not to say that driving a car or the deprivation of that privilege is anything close to being deported (as in Padilla v. Kentucky), but for many years, courts had incorrectly concluded that immigration consequences were collateral damage to convictions and not a basis for withdrawing a guilty plea. The collateral consequence of a loss of license despite innocence may be utterly unknown by the individual who is not in a position to obtain legal advice before making a decision to submit to a breathalyzer test. Indeed, innocent food products, common medical conditions and poor machine calibration could result in a presumption of guilt.
Operating a 4500 pound machine that can move at a pretty nice clip with only a foot touch on a pedal is an inherently dangerous undertaking. Impairing that action by ingesting a substance that delays reaction time and confuses the mind is the equivalent of walking around with a loaded gun. It might not go off, but if it does, some innocent person can die. That is tantamount to second degree murder, not the vehicular homicide misdemeanor we embrace. The minimal consequences of a guilty verdict for drunk drivers is, quite frankly, too low. But, if someone is not impaired, but merely fearful of a test that might demonstrate impairment and, indeed is acquitted of the offense of driving while impaired, the continued loss of a license is unconscionable.
Our foundation relies on the belief that it is more important to protect the innocent than punish the guilty. Criminal defendants enjoy the presumption of innocence and the burden of proof beyond a reasonable doubt rests solely upon the government for each and every element of the offense it charges. The suggestion that a punishment, whether collateral or otherwise, be imposed upon an individual even where the government failed to prove a crime is antithetical to our founders and the constitutions they placed in our safekeeping.
But, one surprising outcome of the report was included in its four recommendations, three of which are unobjectionable on any level as they tend more toward fairness in the proceedings and the ability of the fact finder to ascertain the truth of the event. But, one recommendation (which, the Supreme Judicial Court admits would require legislative action) is to amend G.L. c. 90 sec. 24(1)(f)(1) to deny the restoration of a driver's license, suspended upon refusal to take a breathalyzer test, regardless of the outcome of the case. Assuming the driver has the right to refuse the test (knowing that his or her license will be suspended automatically for that refusal), why shouldn't the privilege of driving be restored immediately upon a determination, as outlined in the statute, within 15 days of offense if the officer did not have probable cause to stop the person or, certainly upon acquittal or dismissal of the case? The minimum suspension of a driver's license for refusing to take a breathalyzer test is six months.
Breathalyzer tests may not be consistent or reliable; results may be challenged effectively at trial. But, there is a presumption of guilt with a reading of 0.08 or higher. Query the purpose of the law: to prevent erratic driving due to the influence of drugs or alcohol. A sleepy or elderly or newly licensed or distracted driver may be more dangerous than one who has a high tolerance for alcohol; but if they are stopped for another reason, their licenses will not be suspended. The suggestion by the otherwise thorough and compelling report to suspend people's driver's licenses for a minimum of six months, whether innocent or guilty of a specific offense, or whether there is even probable cause to arrest someone is an invitation for abuse by the police as well as a swift slide down a slippery slope.
It is reasonable to place a minimal penalty on the refusal to submit to a breathalyzer (and query whether the refusal alone suggests a higher brain functioning and reaction time than one who submits). However, the statutory suspensions are lengthy and can be burdensome to individuals who depend on cars for their livelihood. Further, mass transit options in some parts of the state are non existent and even if one has a bicycle and the ability to ride, winter is cold in Massachusetts. A rule change may result in an innocent person who was not impaired but refused the breathalyzer for any one of a number of legitimate reasons to be acquitted of the offense but possibly lose her job and her ability to manage her life. That seems extreme.
Putting aside the overdependence we have on cars and putting aside that there are additional options and putting aside that driving is a privilege and not a right - all legitimate, but irrelevant, issues. The question is what penalty do we assign to the refusal to submit to a potentially faulty test, the refusal of which is not admissible evidence in a court of law, when the government is incapable of proving guilt beyond a reasonable doubt? The statute itself states that by getting behind the wheel all drivers consent to this test - the individual who refuses negates this presumed consent and sacrifices the loss of a license for a short period of time.
However, the potential for restoration of rights necessarily advances the case more quickly through the courts with the potential to clear the docket. The knowledge that a mere arrest - even one without probable cause - would result in a loss of license regardless of outcome relegates the case to a low priority for both parties resulting in even further clogged court dockets. Such a determination suggests a poor example of due process and fair play, the very attributes of government that prompt apathy and disaffection, not responsible citizenship. And, to what end?
Collateral consequences are serious matters not just to defendants, but to justice itself. This is not to say that driving a car or the deprivation of that privilege is anything close to being deported (as in Padilla v. Kentucky), but for many years, courts had incorrectly concluded that immigration consequences were collateral damage to convictions and not a basis for withdrawing a guilty plea. The collateral consequence of a loss of license despite innocence may be utterly unknown by the individual who is not in a position to obtain legal advice before making a decision to submit to a breathalyzer test. Indeed, innocent food products, common medical conditions and poor machine calibration could result in a presumption of guilt.
Operating a 4500 pound machine that can move at a pretty nice clip with only a foot touch on a pedal is an inherently dangerous undertaking. Impairing that action by ingesting a substance that delays reaction time and confuses the mind is the equivalent of walking around with a loaded gun. It might not go off, but if it does, some innocent person can die. That is tantamount to second degree murder, not the vehicular homicide misdemeanor we embrace. The minimal consequences of a guilty verdict for drunk drivers is, quite frankly, too low. But, if someone is not impaired, but merely fearful of a test that might demonstrate impairment and, indeed is acquitted of the offense of driving while impaired, the continued loss of a license is unconscionable.
Our foundation relies on the belief that it is more important to protect the innocent than punish the guilty. Criminal defendants enjoy the presumption of innocence and the burden of proof beyond a reasonable doubt rests solely upon the government for each and every element of the offense it charges. The suggestion that a punishment, whether collateral or otherwise, be imposed upon an individual even where the government failed to prove a crime is antithetical to our founders and the constitutions they placed in our safekeeping.
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