When Battlefields Have Angels

I have an almost complete disregard of precedent, and a faith in the possibility of something better. It irritates me to be told how things have always been done. I defy the tyranny of precedent.

-Clara Barton 

Law is a playbook of memory.  We make decisions in large part due to decisions others made in the past.  And, in many ways, this is logical: we must have notice for the consequences of our actions.   But, also in law, as in life, sudden changes occur.  All at once the new replaces the old.  Both catastrophic failures and auspicious successes can force us to view the world through a different lens, valuing and addressing the picture in an entirely novel manner, sometimes recognizing the tyranny of precedent. 

One hundred and fifty years ago, this great nation was at war with itself – and not the war of words we wage today - but one with bullets and wounds and ever present death.   One hundred and fifty years ago, a mind boggling 23,000 Americans were killed, wounded or went missing in one day at the edge of a creek called Antietam.  It is so difficult to imagine that one hundred and fifty years ago, General George McClellan had Lincoln’s ear as leader of the Army of the Potomac and an unknown Ulysses S. Grant was mired in Mississippi with the Army of the Tennessee. 

On September 17, 1862, General Lee brought the war North; his entire army had crossed the Potomac into Union territory to engage.  The cannons would blast and guns would fire for twelve full hours before it all ended.  Although the casualty count was almost even, by the next night, Lee headed back across the river and by the following day he was in retreat.  Despite losing 550 more soldiers than the Confederate Army, the Battle of Antietam was considered a Union victory because Lee and his men returned to Virginia.  It was enough to prompt the preliminary Emancipation Proclamation on September 22, 1862 which gave birth to the January 1, 1863 Emancipation Proclamation changing the course of the war, of history and of the moral authority of a Union victory.  Brave men – on both sides – about to engage in the single bloodiest day of fighting ever known had no idea that their actions that day would alter the course of history for all mankind.

And, on that same battlefield was a truly courageous soul who brought her own medical supplies to the front in Maryland.  Clara Barton tended the wounded, assisted the surgeons, and literally lit the way for aid to continue into darkness with lanterns she had the foresight to pack.  Working tirelessly, she contracted typhoid and would be taken from Antietam in a stretcher.

The men who fought the battles and bore the wounds and suffered the ultimate sacrifice were unaware of the role they played in history.  They could not have known – any of them – that what happened on September 17, 1862 would not just change their lives, but life as they knew it.   Whether Clara Barton had any inkling of how the hiccup of Antietam would send history on a very different trajectory is utterly unknown.  It is doubtful that it would have changed anything for her.  Clara Barton was the kind of hero who did what she did because it was the right thing, not because she was looking to make a place in history or because she was a pioneer looking to open doors.  But, history she made and the doors she opened cannot be shut.

Clara Barton grew up in the great Commonwealth of Massachusetts where public education has been paramount since its earliest days.  As she taught in a New Jersey school where fees paid her salary, she discovered that some children could not afford to attend.  So, she opened a free school where all of the children could learn, no matter how much money their families had.  She filled a gap in the system.  Today, with college costs soaring, others fill in educational gaps as well.  So, her example shines still.

Frustrated because the school she founded would be run by a less qualified man, she left teaching and moved to Washington, D.C. where she got hired as a clerk in the U.S Patent Office, taking a position that was once held by Thomas Jefferson and one day would be held by Albert Einstein.  While there, she earned the same pay as her male counterparts.  Alas, the Secretary of the Interior had other ideas; he reduced her role and pay so she quit.  The equal pay conversation should sound familiar; it is a work in progress.  But, her example shines still.

While tending the wounded on Civil War battlefields, Clara Barton became aware that some families would not know what became of their sons and husbands and fathers and friends so after the war ended, she sent out hundreds of letters, made connections, and discovered the fates of over 22,000 missing men.  She did not do this alone; she received help from countless strangers and unsung heroes who wrote back, provided information, and assisted in this noble pursuit to tend to grieving friends and families.  Today, as we are engaged in military struggles, we are fully aware that war continues for families and returning veterans.  So, her example shines still.

After the war ended, she became involved in the women’s suffrage and civil rights movements.  Then the Franco-Prussian War broke out and Clara Barton traveled to distant lands to help strangers in need.  She devoted her energies to the Red Cross, a humanitarian group dedicated to neutrality and relief services in times of war.  Experiences both in the American Civil War and in Europe prompted her to create such a relief organization in the United States.  War weary Americans believed their fighting days were over and that no such organization would be needed; so she changed course and lobbied for a natural disaster relief organization instead.  Today, when forces of nature upend lives, the tireless efforts of the American Red Cross help to right them.  So, her example shines still.

From her years of caregiving, Clara Barton felt that everyone had the ability to learn basic lifesaving skills.  She founded the American First Aid Society (now merged with the American Red Cross) whose legacy continues in the hundreds of Red Cross sponsored First Aid and CPR classes offered each year throughout the country.  Today, too many know first-hand of tragedies natural and unnatural and of the need for everyone who can to help. So, her example shines still.

On September 17, 1862, Clara Barton brought nursing and teaching skills and a heart full of compassion into battle.  She would go on to brave new waters, including unofficial diplomacy aiding those in need in Spain and Turkey and Cuba; indeed she would continue her healing ways until she took her last breath 90 years after she took her first.  Americans today, as official  and unofficial diplomats and aid providers - charitable, exemplary, truly righteous human beings take their determination to do good all over the world.  So, her example shines still.

On a battlefield near a creek in Maryland one hundred and fifty years ago, men fought and died, men fought and were wounded, men fought and lived to tell the tale; and one woman nursed them all.  Without knowing it, they changed history.  McClellan’s incomprehensible delays undoubtedly prolonged the battle of Antietam; the extraordinary number of casualties – more for the Union then the Confederacy – made this battle real and meaningful for thousands of people in towns across the nation, divided though it was;  Lee’s retreat back into Virginia to regroup, but not to quit established enough of a signal for Lincoln to announce to the world that this war, this bloody, devastating war, would have a moral afterall.  It would be to rejoin these United States with liberty and justice for all.

The end of the war brought hope and change; not the least of which were the three Amendments to the United States Constitution that finally made the promise of America a possibility for all Americans.  Passing the Thirteenth, Fourteenth and Fifteenth Amendments equals the grandeur of the ratification of the original Constitution and its Bill of Rights and (okay, with one more addition) finally allowed the document to make sense from preamble to post script.

We owe a collective debt of gratitude to every single person who not only witnessed but made history one hundred and fifty years ago on that blood-soaked battlefield.  Six weeks after Lincoln announced that every advancement of troops would advance freedom, that Union victory was a moral imperative, his party would hold the House and gain five Senate seats securing the opportunity for the president to make his grand gesture on  January 1, 1863.  For all its limitations, it would spark excitement, end fugitive slave bounties, and welcome African American soldiers and sailors to the cause.  Today's pundits tell us that candidates campaign in poetry but govern in prose.  We owe a collective debt of gratitude to Lincoln’s ability to govern in poetry.  

In our playbook of memory – in our laws, in our approach to law, in our aspiration for a better future tied to, but not mired in, history -  we must heed their example: to do what is right with everything we have no matter what anyone else has done before.  

Serve. Fight. Struggle. Die. Survive. Advance. Retreat. Heal. Nurture. Care. Create. Contribute. Make history.

Consent of the Governed

On the surface, it seems intuitive that the affirmative defense of consent would be unavailable for armed home invasion and assault and battery with a dangerous weapon.  Those crimes suggest our worst nightmare of a stranger barging into our home to do us harm.  But, the recent Massachusetts case had a twist, several twists actually, of a ligature.  The issue in Commonwealth v. Carey was whether if the theory of defense were consent to sexual contact that included asphyxiation did the trial court err in failing to instruct the jury on consent as an affirmative defense?  As authority for the defense of consent, the defendant cited the landmark Supreme Court of the United States case of Lawrence v. Texas which struck down, as unconstitutional, criminal statutes for sodomy between consenting adults.  

The crux of the issue in Lawrence was whether the state could infringe on the private activity of consenting adults while in Carey the question was whether a criminal defendant would be entitled to a particular jury instruction.  And, the jury instruction request is not a new one; the defense in Carey asked for a review of older case law in light of the Lawrence decision since all prior Massachusetts cases on the issue of consent to assault and battery related to sexual activity predated that Court ruling.  In upholding its prior law despite Lawrence, the court discussed that it was not admonishing any particular sexual activity, but rather addressing the public's legitimate interest in the safety of all people.  In so reasoning, the court concluded that consent was not a viable defense to these crimes.

The Massachusetts Supreme Judicial Court has support for its decision.  In a New Jersey case the court held that even if the defendant and the complainant had an agreement that if she drank liquor, he would punish her physically, consent was not a defense to the charge of atrocious battery. That case referenced a law review article regarding the scope of consent as a defense,  Consent in the Criminal Law, 8 Harv.L.Rev. 317, 324 (1895), and discussed why the public has an interest in the personal safety of every person, even those who agree to be beaten.  That idea was also discussed at length in the informative opinion of this Montana case.

Rape and sexual assault trials have required a consent jury instruction when the evidence provides any support for the defense theory of consent. This is true both where lack of consent is an element of the offense and where consent is claimed as an affirmative defense to the force or compulsion element of a sexual assault charge. See,  State v. Lira, 70 Haw. 23 (1988), Mery V. Commonwealth, 12 Va.App. 21 (1991), State v. Koperski, 254 Neb. 624 (1998).  As a reverse of the sexual assault allegations, consent was not an available defense to criminal abortion; practitioners could be charged with the crime regardless of the consent to the procedure by the pregnant woman as explained in this really interesting article. 

Yet, consent is a viable defense to larceny accusations where the owner of the property agreed to its taking, even if the taker had felonious intent. Lowe v. State, 44 Fla. 449 (1902).  This is true even where there is an elaborate scheme involved. State v. Neely, 90 Mont. 199 (1931).  But, consent is not a defense to burglary where the entry to the home is induced by fraud and then exceeds the scope of consent by stealing. State v. Plumley, 181 W.Va. 685 (1989).

The defense of consent has a limited but vital role in criminal justice which was not destroyed by the recent case in Massachusetts.  And, all should be grateful for the efforts of defense counsel in calling older cases into question based upon more recent analogous decisional law.  This is not done nearly enough, yet it is a necessary practice if we are ever to allow law to progress, especially in this age of outstanding social science research calling into question ill begotten foundational concepts that have been accepted as true, but also in regard to changing social norms reflected in criminal law.

Perhaps more troubling than the limits on consent as a defense is the breadth of consent as an offense. Many times, the authorities claim that an individual consents to allow the police into his home or workplace or vehicle.  On occasion, courts rebuff the authority to consent.  And, where consent is outright denied, the police cannot enter, even when another member of the house consents to entry.  The Fourth Amendment, indeed, prohibits unreasonable searches and seizures - our papers our homes and our persons are protected from unwarranted molestation.

Analogous to the greater-good rationale protecting the complainants and victims in the assault and battery cases mentioned above, perhaps society is unprepared to accept that we ever consent to the police entering our homes when we did not call them there.  Can ordinary citizens truly waive their right to be free from unreasonable searches and seizures knowingly, willingly, intelligently and voluntarily when an armed police officer asks to come inside?  Is consent really a viable argument to circumvent the warrant requirement of the Fourth Amendment or the equivalent state constitution prohibition?

And, what about consent to the lesser intrusion still implicating the Fourth Amendment, the stop and frisk conduct of the police?  Once limited to occasions where police had a reasonable, articulable suspicion that a crime was being committed or had just been committed, it is now a common occurrence, particularly in the lives of poor young men of color.  The original idea was to protect the safety of police officers by allowing a minimal intrusion to check potential suspects for weapons, but this has been expanded to a general practice which really defies the constitutional principle of individual liberty in a free society and has nothing to do with police safety.  No one, no matter where s/he lives, can be presumed to waive the fundamental right to individual sovereignty and protection of his or her own body.

Indeed, that is the root of  the recent Massachusetts case of Commonwealth v. Carey: even if the defendant can illustrate that consent was given, it is not a defense society is willing to accept.  In law school parlance, the recent case concluded that consent is not available as a shield for certain criminal defendants.  But, another question, and one that also requires careful analysis of older decisional law, is whether consent has a proper application as a sword by the government. 

The government always bears the burden of proving that its search and seizure actions pass constitutional muster, whether it be by the four corners of a warrant, or facts and circumstances supporting probable cause to arrest or search, or "reasonable articulable suspicion" for a minimally invasive frisk.  This only becomes a constitutionally argued matter when the police discover potentially incriminating evidence or make an arrest and the defendant moves to suppress the evidence (or dismiss the case if the individual is arrested without probable cause).

But, what about the times that nothing is found, that an innocent person is stopped, assaulted, humiliated, made to feel like a second class citizen in his own neighborhood and no arrest is made because no crime was committed.  What about the times that the police just want to come inside to talk?  Where exactly is the Fourth Amendment line?  How closely do we hew to the ideals of our own Revolution to free ourselves from governmental tyranny? 

Whether we view the world in the now clearly defined party visions: through Republican eyes of the rugged individual braving the world on his own or through Democratic eyes which are all looking out for each other, do any of us really consent to government intrusion into our homes and our bodies?  And, if we do believe that consent permits a variance from a constitutional mandate, don't we need to define those boundaries, acceptable to everyone - not "just" poor people or people of color or people with accents or people that wear identifiable garments - but everyone including the judges and legislators crafting the limits?  How many of us would waive our right to be free from government intrusion into our homes and bodies?

And, how far does any such consent go?  To the stop and frisk devoid of purpose?  To the strip search for a traffic violation?  To the intrusion into our homes by fraudulent means?  Long before Thomas Jefferson waxed poetic on government's sole legitimacy emanating from the consent of the governed, and long before Eleanor Roosevelt admonished that no one can make us feel inferior without our consent, Dante explained that the worst of all eternities was reserved for those caught between heaven and hell, the coward angels whose silence in a time of great moral need in life echoed forever by endless lamentation in death.  Plato was not alone in assuming consent by silence. Current silence in the face of excesses to the limits of our consent to government searches and seizures will echo in sounds and loud cries until the end of time.

Legitimate Rhetoric

Abuse of words has been the great instrument 

of sophistry and chicanery, 

of party, faction, and division of society.  - John Adams

Words communicate much more than ideas, they often signal underlying themes.  In criminal law, we focus on the words of a statute to discern whether a crime was committed.  To determine the "legitimacy" of a crime, the guilty mind, mens rea, of the perpetrator is paramount since we punish actions motivated by thoughts, not simply actions and not just intent.  A certain candidate raised this issue in reverse when he flippantly declared that a "legitimate" rape, would not result in pregnancy.  The scientific basis for this conclusion resembles the seventeenth century Salem method where the innocent would sink (and drown) and the guilty would float and be put to death. This pregnancy determinant could open the door to a new defense - even with extrinsic evidence - a man's intent to force sex would bow to a woman's ability to become pregnant leading to exoneration for non-legitimate rape.  This, of course, is as ludicrous as the witch trials.

Looking to mens rea to give gravitas to crimes, it is perhaps surprising that in Massachusetts, joining the Communist Party carries a higher penalty than driving a car while intoxicated and actually killing another human being.  Political party affiliation - ostensibly guaranteed by the First Amendment - is a criminal offense weightier than a homicide caused by reckless endangerment.  Membership in an organization is worse than drinking, driving and killing someone, actions similar to Russian Roulette, the classic law school example for second degree murder.  The Cradle of Liberty sanctions this as legitimate.

Even the idea of a "legitimate crime" is odd since the word legitimate comes from the same root as law itself.  By definition, all crimes offend the law; therefore no crime can be legitimate - all crimes are illegitimate, i.e., not lawful.  

The notion of crime - what offends us and is worthy of punishment has changed markedly and continues to evolve.  Plymouth Colony made lying in public a crime punishable by 10 shillings or two hours in the stocks, a crime only 1/5 as bad as wearing strange apparel, a crime facing a 50 shilling fine.  Today wearing strange apparel is called fashion and lying in public currently takes on epic proportions of celebration.  So glorious is lying in public that a presidential candidate will not let fact-checkers dictate how his campaign is run.  A pity, too, because this candidate has the shillings to pay a fine if one were administered injecting much needed capital into an ailing economy.

And, so the public lying continues unabated.  We prohibit corporate false advertising, but we do not punish corporations who support false political messages.  These kinds of lies are protected speech just as lying about obtaining the Congressional Medal of Honor.   Fact-checkers have been helpful in evaluating rhetoric and claims by political candidates about each other.  But, where have the fact-checkers been when candidates invoke history as a defense of their policies?

The idea that "free enterprise" was part of the foundation of this nation is blatantly false; if anything, the Framers sought to regulate commerce and banks.  This is evident in John Adams' declaration that power believes it is doing sacred work when the opposite is true and Madison's certainty that if there were interest and power to do wrong, wrong would be done.  They advocated checks and balances within government and by government on private enterprise. Jefferson abhorred big business stating, "I hope we shall crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country."   Even Hamilton noted that the purpose of government was to constrain the passions of man to conform to the dictates of reason and justice.  

Rather than "free enterprise", those who created this nation believed in restraint - not of individual liberty - but of corporate greed influencing policy.  The idea that unregulated industry is good for America or somehow embedded deep in the Constitution is a fallacy borne of a guilty mind seeking to make legitimate that which is not.  The Citizens United case championing the voice of big money in government is antithetical to the purpose and meaning of the First Amendment - disembodied corporations - and unions - are not citizens and have no right to vote; it is inconceivable and contrary to the stated intent of the Founding Fathers that they have a First Amendment right to influence elections.

Abuse of words.  Abuse of our collective past.  Abuse of the public trust.  To ensure that the first Republican president's vision that a government of the people, by the people and for the people shall not perish from this Earth, it is incumbent upon all of the people to meet the ambition of those whose whose love of business trumps a love of democracy with an equal ambition for liberty and justice for all. 

We sought to break from tyranny by instituting self governance, not no governance.  As a modern politician has oft stated, government is the name of what we choose to do together.  An earlier politician affirmed that government's goal is justice.  True that Americans of all stripes built this nation, individually and collectively; but equally true is that democracy is a precarious form of government subject to an early death if strident ambition is not met with reasonable restraint.

So, is it a criminal act - one of a guilty mind - when government cowers to corporate interests and lifts regulation on clean air, clean water, safe working conditions, fair wages?  Is it legitimate to pander to the fears of the American people to say that government is an evil answered only by the angel of private enterprise?  Well, as John Adams might have said, it is an abuse of words dividing society at just the time it needs to come together to address the enormous challenges this generation faces.
     


  

From the Ridiculous to the Sublime (Or, Why Idiocy Should Spark Real Conversation)

Some statements - the eye-rolling ones, the ones that engender nervous laughter and the ones that bring uncomfortable silences - too often get spun out of control and fail to emerge as "teachable moments."  Such is it with the recent declaration that one candidate and his party wishes to place some members of society "back in chains."

Putting aside that the comment was undeniably about the concept of a wholly unregulated banking system which is a proven mistake; and, putting aside that bankers themselves have admitted that their own greed requires regulation; and, putting aside that Joseph Kennedy effectively started the Securities and Exchange Commission precisely because he understood how unscrupulously the industry behaves; and, putting aside that most Americans are struggling because Wall Street was not really paved with gold; and putting aside the Revolutionary lamentation of Patrick Henry, "is life so dear or peace so sweet, as to be purchased at the price of chains and slavery?" - the nation jumped on the comment as race-bait like lions on a gazelle in a feeding frenzy.

It is not news that the Vice President said something offensive; this is the same man who forgot more than once to turn the mike off before dropping the f-bomb (now a real word) and who calmed the nation by declaring that he was too frightened to use public transit due to fears of influenza.   Indeed, it is not news that vice presidents  and candidates for the vice presidency essentially write monologues for an entire nation of comedians with their ad libs.  It is also not news that comments, such as the recent gaffe by the current vice president, send political opponents into fits of joyful apoplexy condemning the statement and accusing the declarant of fueling negativity.

Negativity is part of American politics and has ever been.  Once Washington stepped down, the mud-slinging began.  The election of 1800 included accusations by the  Federalist camp that Jefferson was the child of a racially mixed union and the Democrat-Republicans countered with Adams' slightly effeminate persona.  Equally disgraceful were the smear campaigns between Andrew Jackson and John Quincy Adams.  The list goes on, but negative campaigns are not the point.  The (again, my apologies for this phrase) teachable moment is the point.

So, here it is: schools teach that slavery was an unfortunate and ill conceived economic system which existed well before and after the colonists broke ties with Britain and ended after the Civil War.  It was bad, we were good to end it.  With the exception of some escaped and freed slaves like Frederick Douglass and Phillis Wheatley, slavery is a nameless, faceless historical relic. Only it is not. 

Northerners like to believe that individual slave holders in Southern states were the oppressors; but this is another fairy tale.  Every colony had slaves; every colony contributed to slavery.  Indeed, Northern economic concerns helped drown out early Southern voices for abolition.  Without minimizing truly heroic and visionary individuals, most American laws and people supported the institution of slavery, tacitly or overtly - even if they hated it - because the legal and economic system of the entire country supported slavery, regardless of where the practice itself continued.

Economics also encouraged indentured servitude which, similar to slavery, was eternal, brutal, hopeless and demoralizing.  Indentured servants were personal property and could be bought and sold.   As awful as the life of a white indentured servant could be, the dehumanizing chains and shackles and naked auction blocks were reserved for black slaves.

Courageously, men and women who had been deemed less than whole by their own government found the dignity and grace not only to stay and contribute to American society after freedom was declared, but to hold up the mirror of truth for this nation to live up to its own creed.  And, yet instead of gratitude, as a nation we stood idly by as thousands of African Americans were lynched, when Jim Crow laws emerged, when chain gangs existed, when public and private institutions all over this country were segregated, when African Americans could only have a dream of equality.  Indeed, the silence of today's coded language and colorblindness echoes as loudly as overt racism of our not-too-distant past. We condemn slavery at the same time we fail miserably to welcome African Americans fully into the privileges and immunities of citizenship bestowed upon all Americans.  What else is this but a badge and incident of slavery hearkening back to the unfulfilled promise of the 13th Amendment? 

This is the teachable moment.  Reference of chains and shackles made to a largely African American audience caused a collective gasp, as those of a generation ago used to whisper the word "cancer" as if to utter it out loud would somehow let out a secret no one was supposed to know.  It is not a secret to African Americans that slavery existed in this country.  African Americans are well aware that their ancestors were shackled in chains and sold at auction.  This, too, is not a secret.  It is the nation's, not the individuals' or their descendants', shame and it should not be hushed.  Only by understanding and studying this history can we ever tackle its lasting effects.

Many of the lasting effects come out in criminal contexts: Boston believed a white Charles Stuart in 1989 when he blamed a black man for attacking him and his pregnant wife until the facts revealed that he killed his own family; in 1994, a white woman, Susan Smith blamed a black man of  carjacking her and her sons when, in fact, she had murdered her own children; in 2008, a white woman, Ashley Todd, blamed a tall, black man of carving into her face when, in fact, she had mutilated herself; in 2012, Bonnie Sweeten, a white woman, was sentenced to 8 years in prison for embezzlement, but that was only after her false original story - blaming a black man of carjacking her and her daughter and stuffing them into the trunk - unraveled.  Intensive investigation revealed the fraud in each of these cases, but query why these people would decide to blame a black man for their own crimes.

When he was a senator, Vice President Biden voted for a law to have youths as young as 14 tried as adults subject to the same penalties for "serious violent or drug related crimes." He voted for a law that increased the number of crimes subject to the death penalty and mandated life in prison for three drug crimes.  But, as scholars have explained, the "war on drugs" has disproportionately become a means of incarcerating African Americans despite the greater sale and use of drugs by whites than blacks. As with most legislators, he may not have realized the effect of these laws was, indeed, to place a disproportionate number of African Americans "back in chains".

Real chains, real shackles and real humiliation accompanies every incarceration under these laws.  This topic is uncomfortable because we desperately want to believe that if we chain and shackle people today at least they "deserve" it.  Yet, barring the rare case of uncontrollable violence, it is difficult to imagine the necessity for this badge and incident of slavery to continue save to create the illusion that those incarcerated are different from those not incarcerated.  But, even if the argument for restraints succeeds, most of the irons wrap around the legs of black men.  Frederick Douglass warned, "no man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own." Everyone suffers when we are unjust in our laws their application.  Those shackles, and the chains of our inability to discuss race in meaningful ways, weigh us all down.

Given the speaker, it is fair to say that the "y'all back in chains" statement was nothing more than an unfortunate combination of words that happened to fall out of his mouth while a microphone was on.  But, race bias is real in this country; ignoring it, glossing over it, making hay of it is not going to help change anything.  The presidential campaign will continue on its own negative trajectory with or without racial allusions.  The lesson to take away is that the reason this exploded into an issue is not the ghost of Lee Atwater as an earworm to politics, but rather because we are so still uncomfortable talking about race and the continuing badges and incidents of slavery.

No one alive today is responsible for the African Slave Trade.  We do not study history to take blame or credit.  But, if we learn the truth without painting good and evil into historical portraits, we will acknowledge this past, its imprint on the present, and aim to eliminate the residue from our hearts, our minds and our legal system (and perhaps we will spend less time punishing the poor and more time seeking to establish a functional, regulated financial market).

The teachable moment grants us permission to declare that words are not merely words; shackles and chains connote mental images.  But, also words are not merely words - this country began with a profound promise to each other, that, we, the people of the United States, would strive to enhance our union by working together to establish justice and insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity - not just words but a living, breathing affirmation.

Fools Rush In

Angels in government have a long history; Jefferson asked if men could not be trusted with self governance were kings not men but angels entrusted to govern others.  Lincoln urged us to be friends seeking the better angels of our nature.  Madison explained that because we are not angels, we require "auxiliary precautions" to guarantee fair government.

It is in celebration of democracy that the system of checks and balances emerged in which the independence of the judiciary ensures a government of laws and not men.  It is precisely because we are human, full of flaws, that we require restraint which grew here in the form of an independent and impartial judiciary. 

Judicial tenure, however, requires good behavior; actions contrary to law and decency shall not be rewarded.  And, so there are in place mechanisms by which to challenge the impartiality and independence of individual judges.  In recognition of the notion of an independent judiciary, the recent Massachusetts case protects from scrutiny a judge’s thoughts and notes about individual cases.  Here in Massachusetts, the Suffolk County (Boston) District Attorney has accused a judge of bias -   according to the prosecutor, he rules in favor of defendants too often to be impartial.

To clarify: the Executive Branch has declared that the Judicial Branch protects individual liberty too much to be fair to the interests of the Commonwealth...despite the trust the people place in all of government to protect liberty.  Prior challenges to sitting judges have occurred, but for the opposite reason.  In 1973, Judge Troy was disbarred by the Supreme Judicial Court for abusing his office by, among other things, depriving criminal defendants of their constitutional rights, hiring but not paying lawyers who appeared before him, and neglecting his actual, judicial duties.   It was after Judge Margaret Scott was awarded the Kinlock Award by the Massachusetts Juvenile Police Officers Association bestowed upon those demonstrating, “excellence in his or her field of endeavor; that endeavor must be associated with our young people... [those] endowed with understanding, compassion and patience and a willingness to do more than the next person for tomorrow’s adults" that she was sanctioned for depriving those appearing before her of their individual liberties.   Understanding, compassion and patience apparently includes making up laws to convict the innocent, charging unlawful fines, and removing terrified children from the care of their loving parents.

Past judicial challenges involved the deprivation of Constitutional rights.  The current charge against the judge who shall remain nameless  may be the first time that judicial protection of liberty faces scrutiny.  Even if we put aside the question of whether the Executive Branch even has the authority to challenge the Judiciary - which may very well be prohibited by the Massachusetts Constitution Pt. 1 Art. 30, it is important to note that the judge in question was appointed by a former federal prosecutor and a Republican governor not known to be “soft on crime”.  The Executive Branch’s current disappointment in this particular judge’s interpretation of the law is less credible than Eisenhower Republicans’ disappointment in the way Earl Warren understood the federal Constitution.   But even they did not investigate him for bias due to decisions from his Court.

American history decries the prosecutors' actions against a sitting judge.  As noted in the recent opinion, John Adams spoke highly of an independent judiciary; but, he had to be disappointed in the case that assured the concept.  Politics are a nasty business and it has ever been thus.  Mr. Adams’ Federalist party reviled Mr. Jefferson’s Democratic-Republican party.  The peaceful transition of power from one to the other in 1801 is still a remarkable feat about which the United States should be proud.

The rivalry, the animosity and the disgust, indeed led to one of the greatest legal decisions of this nation’s history ensuring the independence and the impartiality of the federal judiciary which we understand now to be a fundamental aspect of all American government.  Adams lost a bitterly contested election to his former friend come rival, Thomas Jefferson.  The Adamses could not wait to leave the swamp of the Capitol and head home to Peacefield.  As one of his last acts, President Adams appointed several justices of the peace and left their signed commissions to be delivered.  No one did so and President Jefferson famously ordered them not to be delivered.  Mr. Madison, Jefferson’s Secretary of State, obliged. 

One particular appointee, Mr. Marbury, was so enraged at being denied his commission that he sued for it directly in the United States Supreme Court under a legislative provision so permitting.  The Chief Justice of the Supreme Court of the United States was none other than Adams’ appointee John Marshall who, like Adams, was an ardent Federalist.  Indeed, his appointment to the bench was part of a Federalist Party power grab - the Midnight Judges Act.  We forget how young and vulnerable this nation really was.  And, we forget that those who founded this nation were men and not angels.

Surely, Marbury presumed, Justice Marshall would see fit to grant him his commission.  So, it was an historic and game-changing moment when the Court ruled otherwise.  On the one hand, Justice Marshall minced no words chastising the president for failing to make good on his predecessor’s appointments; the commissions were signed and ready to be delivered.  On the other hand, Congress erred in its statute granting right to sue directly in the Supreme Court as Article 3, Section 2 of the Constitution grants original jurisdiction to the Supreme Court in limited circumstances.  Marbury v. Madison’s almost quaint and petty circumstances permitted the Court to become Supreme in the truest sense; there was no fear of retribution when Marshall criticized a sitting president or corrected Congress or determined a result with which no party was happy.  Whether popular or unpopular, Justice Marshall ensured an independent judiciary with this brilliant split of the baby.

Marbury, justified in his anger and his cause, lost as the court had no jurisdiction to hear the case.  Had Marbury sought his commission in an inferior court, he likely would have won, but he hedged his bets on the Federalist court.  John Adams had to rue the rushed appointment of Justice Marshall, right?  Maybe at first, as moments in nascent nations tend to try men’s souls.   But, many years after this fateful decision, in a testament to his own character, Adams declared that John Marshall was a gift to the nation and appointing him was one of his proudest accomplishments.

Putting this history into context, the current investigation of a judge sitting in a busy, low level trial court is an attack on justice itself.  American courts are courts of the people.  They are not arms of the prosecutor or platforms for the powerful.  They are, indeed, a place where individual liberties should be celebrated. 

Today, the Executive branch, in the form of the District Attorney is fighting a petty, undignified battle about which John Adams and Thomas Jefferson and James Madison would be ashamed.  For all of their differences and for all of their human foibles, our Framers genuinely believed in the rights established in the Constitution; we in Massachusetts are fortunate that one of these men was the architect of our own government.  Losing a battle in defense of democracy is noble; the Framers understood that men could more easily be likened to fools than angels and yet trusted people to do the best they could, allowing for history to answer the question of whether men could govern themselves without a monarch.

When powerful people in any branch of government abuse authority in order to deprive individuals, especially the most vulnerable among us, of their right to be heard, to find fairness and fight for liberty, we have a duty to halt that practice.  The strength of this nation rests on a foundation balancing rights, responsibilities and freedom.  Thus, when a judge of any court protects individual liberty and seeks to find the better angels in all who appear before him or her, that judge is a gift to the nation.

Where You Come In

Olympus, where the best in the world of varied sports – some we know well, others more obscure – gather and compete for gold, for glory, for honor.  As the titans of their sport convene demonstrating speed and strength, agility and power, the rest of us watch in awe.  We do not fight, we do not brutally attack our neighbors.  Instead, we take pride in our own athletes as if we had something to do with their hard work and glorious achievements and we cheer on athletes from distant lands whose stories have touched us  or whose prowess cannot be denied. We buck up those who stumble  and rejoice with history makers.   For a few weeks, we share a common bond through sportsmanship.  

We watch with amazement and believe we will never forget how the world can get together to celebrate diversity and unity in human form.  But we do forget as we collapse into routines of mediocrity and ennui.   Our daily lives are so ordinary and average that they cannot compare to the sparkle of Olympic success. 

In the 1840’s in Boston, MA  a very average man had a very noble idea about the very opposite of our great Olympians.  John Augustus asked the Court to spare a poor drunkard time in jail; he asked to bring this bedraggled man into his home to help him heal his ways and chart a new course for his life.  He then did this again and again and again – not only with alcoholics, but with thieves and wayward children.  This cobbler’s valiant efforts helped thousands of people.  He did not fly over parallel bars or score goals or move himself through water; he made shoes.

The pressure we place on ourselves taunts us to be everything or nothing at all.  Go for gold or just forget about competing.  We have decided that it matters so much where we come in, and if it is not first, it is unimportant.  There are the OnePercenters and the NinetyninePercenters.  We no longer get an education, we use college for trade school to get “good jobs at good wages.”  Literature?  History?  Art?  Thought?  Wastes of time, we moan – we want something more mechanical and concrete that will allow us to monetize whatever mediocre abilities we have for our own advantage without worry as to consequences.  We no longer think of creative ways to help our fellow citizens, we are too busy stepping over them as we climb our imaginary hill pretending we are great and glorious.

In our quest, we have forgotten how to think, how to identify and then solve problems.  High school graduates might be able to read but they cannot comprehend.  College students focus on acing tests and never learn how to broaden their thinking.  Why should lawyers analyze facts and legal conclusions of a case when the arbiter has not bothered to read it?  Why should doctors puzzle out the reason for the pain when cure-all pills are widely available?  

Education should spark curiosity and wonder; we should not think of it as a means for spitting back things someone else already knows.  We want easy, uncomplicated, fill-in-the-circle-with-a number-2-pencil tests that do not challenge us or delight us or allow us the joy of discovery.  We want success in money, perhaps in fame, and definitely in ease.  

There is "value" in certain subject matters and not others because of the possibility that they may lead to money in our pocket rather than our highest potential.  This cretin approach we have the audacity to call success.  Winston Churchill declared that success was the ability to go from failure to failure with no loss of enthusiasm.  He may have been nodding to Jefferson or Einstein or Salk.  He could not have fathomed a world where mistakes were taboo.

This brings us back to Mr. Augustus.  There is not much known of his higher knowledge or his wealth or any achievement he may have had, really. Most of us have never heard of him.  But, think of this: by putting himself in service to others with a then innovative idea, his neighbors and his city prospered.  Each person he helped who managed to get a job or provide a service or create a useful item became a wage earner able to then share and spread that wealth rather than squander public funds in a jail cell.  He met with resistance, of course, by the jailers who earned their pay by the number of humans they warehoused.  The more things change the more they stay the same.

Today, the budget for corrections dwarfs that of indigent defense, prosecution, and basic court function combined.  True, corrections officers have good jobs at good wages, but their livelihood depends on the misguided warehousing of human beings.  Just as their predecessors, they will push back.  

Think of the incarcerated not as different from “us” but as part of the fabric of our community.  If it were our child we would seek to instill some sense of self worth with education, appropriate job training; we would encourage opportunities to think, to learn, to revel in verse and prose, to contribute to the larger community in positive, meaningful ways.  

So, what to do with the disgruntled prison workers if this leads to them with fewer jobs in their selected industry?  Same thing: education, appropriate job training, and the opportunity to think, to learn, to revel in verse and prose.  This is what we are doing, with varying success throughout the nation with all industries that have died off or been transported to other markets.  Why not do this with prison personnel as well?

In this tight economy, we can and must be creative with public dollars.  Augustus began his experiment immediately following the Panic of 1837 – times were tough then as they are now.  Jobs were scarce as they are now.  Dignity was as hard to come by as it is today.

We gain nothing from long prison terms save a false feeling of superiority over our neighbors.  We harshly punish petty crime and yet we live in a nation where first offenders are committing mass murder.  We wring our hands and are shocked, shocked when we discover that the weapons were all purchased legally.  The alcohol was purchased legally, too, when the drunk driver kills a bystander.  At the risk of offending the entire legal community, the drunk drivers should be treated like the mass murderers while the poor people trying to survive in an often hopeless neighborhood should catch a break.  Why is there a “program” for the inebriated who risk harming and killing people but the “program” for the indigent is prison?

If we stopped thinking of education as a means to an end, but rather as a starting point and we stopped looking at our less fortunate neighbors as a nuisance to lock away, we could creatively work together not only to end mass incarceration but to improve our entire society and economy. Are we better off with more prisons and prisoners costing us upwards of $45k per year per inmate or spending that same money for cleaner parks, better roads, cleaner energy, auditors to keep folks honest, more crops for local produce and small animal husbandry, better and more diverse transportation?  These are really worthwhile jobs; where are our priorities?  

Those competing in the Olympics, whether they stand on the podium or not, have made personal sacrifices to achieve their mastery.  Through perseverance they have made mistakes and have learned from them.  They are exceptional.  But then, so too was John Augustus exceptional.  In difficult economic times, he saw that imposing severe prison terms for people with potential was not helping anyone.  

As the world comes together to cheer, as we celebrate America’s and the world’s diversity through great athletic achievement, let us consider that in each ordinary individual lies some level of ability.  The vast majority of us will never be world champions.  We need not attain or even pursue gold, it is okay to keep trying and failing and trying again to form a more perfect union, establish justice and ensure domestic tranquility.  Regardless of where you end up, this is where you come in.