Law Enforcement, Race and the Gun Culture – Part IX and Conclusion

This is the tenth part in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here, Part V is here, Part VI is here, Part VII is here and Part VIII is here:

In Part VIII, I concluded by setting forth the Review of Gerald Walpin’s book by RUTHEE as it appears on the Amazon website.

I now set forth my response as it also appears on that website:

It has been fourteen months since I wrote my negative review of “The Supreme Court vs. The Constitution”, which sparked a lively debate with the author, though now that I return to the Amazon page for this book, I see that all the reviews but mine, have not only been positive, but have been on the rave side.

I wonder why this is? I suggest that that in our hyper-partisan age, it is unlikely that anyone with a view that would not agree with the premise of the book is unlikely to read it. I am the exception.

RUTHEE, whoever that is, since he/she/it does not care to use her real name, came to the book with an obvious pre-disposition to agree with it, and I must say that there are things in the book, that I too, agree with.

But before I get to that I want to comment on RUTHEE’s review.

Ruthee starts out by complaining that while the Constitution is “America's most important document…few have read it” and then demonstrates an ignorance of the Constitution that clearly shows that RUTHEE hasn’t read it either.

How else can one explain the absurd comment that “the primary function of government…is to render security to its subjects? And any mischief menacing that security demands a remedy commensurate with the evil.”

I hope that isn’t a quote from Walpin’s book for it would not reflect well on Walpin’s knowledge of the Constitution.

First of all it is only in a monarchy or a dictatorship that the relationship of the people to their government is that of “subjects”. In a Democracy the people are citizens, not subjects.

Secondly, where did he get the idea that the primary function of government “is to render security to its subjects”? Certainly not from the Constitution, for the Constitution in its preamble states that:

...in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity…

Now if Ruthee, and possibly Walpin, had actually read the Constitution, they would have found that the founders did not consider the primary task of government to be “security to its subjects” but rather to “establish Justice” and it should be noted that the founders even chose to capitalize “Justice”. To do Justice, the founders tell us, is the first function.

Now I find no reason why Walpin (if he in fact wrote what RUTHEE claims he did) or RUTHEE, cannot disagree with the founders; they were not Gods. But to claim that this is what the Constitution provides is either ignorance, or deliberate misrepresentation.

RUTHEE then goes on to select as the most outrageous decision of the Supreme Court, Miranda v. Arizona Supreme Court. Now, I happen to agree that this decision was misplaced in interpreting the 5^th amendment, but wouldn’t it be nice if RUTHEE had bothered to quote the relevant portion of the Constitution in criticizing the courts interpretation of it. Or is the language of the Constitution of no consequence in RUTHEE’s mind, and only the result is what counts. Has RUTHEE really ever read the Constitution?

The relevant portion of the Fifth Amendment reads:

…nor shall (any person) be compelled in any criminal case to be a witness against himself, …

This is a very short and concise statement. It, like most provisions of the Constitution, is subject to different interpretations.

We could, for instance, make a case that it means only that torture may not be used to coerce confessions, or other forms of evidence that might be harmful to the defendant, but that, a refusal to testify may be used by a jury as evidence of guilt.

But on this point the Supreme Court as early as 1893, in Wilson v. U S, 149 U.S. 60 said: “… clearly recognize their constitutional privilege, … their neglect or refusal to testify shall not create any presumption against them.”

Now if there is a constitutional right to be silent, is it such a huge step to insist that a defendant in police custody must be told of this right. Certainly, we can disagree with this conclusion, as at least three judges did, but is it such a clear deviation from the Constitution as to provoke outrage.

Now RUTHEE goes on to say: “Failure to adhere to this (giving the Miranda warning) will result in dismissal of the case even against hardened and dangerous criminals.” But this is patently untrue! Failure to give the Miranda warnings will, under the Supreme Court decision, make the confession inadmissible, not lead to dismissal of the case.

RUTHEE then goes on to quote Justice O’Connor: “The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced…” No, but neither does it proof that they have not been coerced, and when a person’s liberty is at stake, shouldn’t the proof have to be that they were not coerced?

Justice O’Connor is also quoted as saying, ”when the admission is not coerced… (it is) highly probative evidence”. Did Justice O’Connor base this on evidence? Was there a record before the court to support this assertion? Isn’t that what courts, and particular Supreme Court Justices, are supposed to do? Base their opinions on evidence?

So let us look at the evidence! The non-partisan Innocence Project uses DNA evidence to determine a person’s guilt. On this basis they have proven to the satisfaction of American Courts that 324 people were wrongfully convicted, and that in 27% of those cases “False confessions and incriminating statements lead to wrongful convictions”. What does that say about O’Connor’s comment about confessions being “highly probative”, or for that matter about RUTHEE’s or Walpin’s approving quote of O’Connor. See here.

One of the foundations of American jurisprudence, as most lawyers know, is Blackstone’s Commentaries on the Laws of England, published in the 1760s. In it he puts forth the principle: "It is better that ten guilty persons escape than that one innocent suffer". Apparently, Walpin, RUTHEE, and O’Connor have lost sight of this principle, which finds its genesis even in the bible:

“Abraham drew near, and said, "Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? ... What if ten are found there?" He [The Lord] said, "I will not destroy it for the ten's sake." (Genesis 18:23-32)

Aside from the damning statistics of the Innocence project, has RUTHEE paid any attention to the tragic story of the Central Park 5? The newspapers trumpeted the glory of their convictions on the basis of their confessions, supposedly freely given and with the Miranda warnings. But the confessions were false. Clearly, the Miranda warnings don’t go far enough!!! I urge anyone who cares, to read the story in New York Magazine, “Central Park Revisited.” 

There is something wrong with a society that incarcerates more people per capita than any other Democratic state, by far.

I urge the reader to look at this graph.

Sadly, this graph doesn’t tell the whole story. According to Wikipedia’s “List of countries by incarceration rate" the US has the highest incarceration rate of any country in the world except for Seychelles, and North Korea. It, by far, exceeds China, Cuba and Russia.

Yes, maybe we can all agree that the Supreme Court has become too powerful and that rulings that drastically limit or overrule previous decisions, or lower court decisions, may not be made by a bare majority of 5-4.

But allow me to point out that in the Miranda decision the majority five were not all appointed by Presidents of one party. Two, Warren and Brennan, were appointed by Eisenhower, Republican, and among the dissenters one, White was appointed by Kennedy (Democrat). Contrast that with today’s decisions where the Supreme Court Justices break consistently along the lines of whether they were appointed by Republican or Democratic Presidents. In other words the Court has become completely politicized.

Just how politicized can be garnered best by the completely partisan decision of Bush v. Gore. The Justices in the majority were Rehnquist, Kennedy, O'Connor and Scalia, appointed by Reagan, Thomas, appointed by Bush, G. H.W. Republican Presidents appointed all of them.

Dissenting were Souter appointed by Bush, G. H.W, Stevens appointed by Ford, and Breyer and Ginsburg appointed by Clinton. Thus this majority of Justices that came to their posts through Republican Presidents, chose the next President of the US to be, guess what, a Republican.

They did this in a decision that they declared would have no precedential effect and went against all precedents (stare decisis) in substituting its interpretation of Florida laws for that of the highest state court. For an in depth discussion of the decision see Alan Dershowitz's “Supreme Injustice” and other books on the subject.

Ever since we have seen this partisan divide on the court, only worse, and when that divide is consistently 5 to 4 along party lines, we have good reason to put an end to such 5 to 4 decisions, which take the court out of evenhanded justice and into political partisanship.

That this is not good for the nation is something we should be able to agree upon.

And so I once again I ride into the night. For the foreseeable future there will be no new posts, while I devote my time to writing my memoirs.

However, if there should be any:

Comments, questions, or corrections they are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – Part VIII

This is the ninth part in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here, Part V is here, Part VI is here and Part VII is here.

In Part VII, I focused on the excessive prison population, resulting from ever-longer sentences, the huge number of people, particularly of color, caught up in the drug wars, and both the human and financial costs resulting therefrom.

In earlier posts, I spent a great deal of my focus, on the denial of the right to trial by jury, a proper defense and the criminal behavior of many prosecuting offices in withholding exculpatory evidence. I spent relatively little time on the Supreme Court as a major miscreant in denying the accused a fair trial and in allowing proper remedies against the abuse of the criminal justice system.

I did mention the Supreme Court decision in CONNICK, DISTRICT ATTORNEY, ET AL. v. THOMPSON where the innocent defendant was convicted of murder and spent 14 years on death row as a result of the DA’s office withholding a crime lab report that exonerated him. A jury awarded one million dollars to the defendant (I million for each year served) but SCOTUS by the usual 5-4 vote decided that the 14 years wrongfully incarcerated entitled the victim to zilch. -0- Nothing.

And that is where the problem begins but doesn't end. There is good reason why the founders wrote in the 5^th amendment:

…nor shall be compelled in any criminal case to be a witness against himself...

so as to prevent coerced confessions. But the amendment has been distorted to keep miscreants (particularly white collar affluent ones) from having to answer questions in court or even before investigative bodies. To be sure the danger of being held in contempt is, in a sense, a means to force an accused into answering questions under threat of contempt of court. But is that what the founders had in mind? Or did they try to prevent the use of the 3^rd degree, whether physical or mental, to extract confessions. I suggest the latter. But it is the latter that is so frequently used to extract confessions, and it is the latter that the courts have allowed, even though it has been shown again and again that such confessions are unreliable.

Thus the Innocence Project has found:

...in about 30% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty.

These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences.

Since DNA evidence is more often than not available to prove the innocence of the convicted, it may be assumed that the number of innocent in our jails or on death row is much higher than 30%.

It is for that reason that the SCOTUS instituted the Miranda rule, which I suggest is entirely inadequate to prevent the large number of cases that result in convictions of the innocent from false confessions.

Thus what prompted me to address this issue came through a rather circuitous route. I refer the reader to my blog posts of October and November of 2013 entitled "The Supreme Court vs. the Constitution," "The Supreme Court vs. the Constitution (Discussion),"

and "The Supreme Court vs. the Constitution(Addendum)," where I reproduced a discussion of a book by that name by one Gerald Walpin, which resulted from my negative review of Walpin’s book, his response, and my reply, all of which can be found on the Amazon website (See here).

Fourteen months later, out of curiosity, I returned to the Amazon website to see what other reviews had been posted and found one written under the pseudonym RUTHEE, which among other things attacked the Supreme Court, not for the Gore decision, or the United decision, or the many other recent decisions of the court that ignored precedent and made decisions for blatantly political reasons, but for instituting the Miranda rule in 1966. See Miranda v. Arizona.

Allow me to share RUTHEE’s review with you here, and I will share my response, as it appears on the Amazon website, in my next post.

Both liberals and conservatives promote their ideologies by evoking America's most important document. (sic) the Constitution, but very few have read it, understand its intent and its impact on American civil life.

Gerald Walpin comes to the rescue with this indispensable book. In “The Supreme Court vs. The Constitution,” in elegant prose coupled with meticulous research, he demonstrates how justices have based critical decisions on politics and a desire to implement a particular agenda. In his own words: “You don’t have to be a lawyer to understand how Supreme court Justices have substituted their own elitist vision for constitutional guarantees that protect the average American’s security and values.”

One particular egregious example is the passage of the Miranda law. How many times have we seen a movie or a column on a criminal being told his “Miranda rights?” Have you wondered why violent criminals have these rights which exclude confessions from admissible evidence?

Gerald Walpin reminds us “…the primary function of government…is to render security to its subjects. And any mischief menacing that security demands a remedy commensurate with the evil.”

Until the Miranda Law, the Supreme Court held that a confession obtained while the defendant was in custody was admissible, without any specific required procedures, as long as evidence showed that it was freely given and not induced by fear or threats.

Nonetheless, in 1966 five justices, outvoted four colleagues, and in Miranda v. Arizona Supreme Court, ruled that persons in custody must, prior to interrogation, be clearly informed they have the right to remain silent, and that anything the person says will be used against that person in court. Failure to adhere to this will result in dismissal of the case even against hardened and dangerous criminals.

Gerald Walpin demonstrates how the law and its practice violates the intent of the Constitution and quotes Justice Sandra Day O'Connor, dissenting almost two decades later in 1985: “The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced’ and ”when the admission is not coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievable lost to the fact finder.”

This is one of the many gems in this book. There are many, many more.

Mr. Walpin has written many excellent columns on the debates in our judicial system- on Race and the Law and the Supreme Court, the misuse of the 14th Amendment to foster illegal immigration, New York's "stop and frisk" decision, NSA surveillance, to name a few.

The Supreme Court vs,(sic) The Constitution makes the debate about original intent and practice intelligible for non lawyers. It is highly recommended.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – V

This post is the sixth in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here and Part IV is here.

In my post entitled "Law Enforcement, Race and the Gun Culture – Discussion" I posted comments from two of my readers and my responses, but in looking back I see that I failed to quote one comment that I should not have overlooked, because it was very complimentary.

That comment came from Albert Nekimken of Vienna, Virginia and it read:

These are very hard-hitting, well-written blog posts. The malfunctioning of the grand jury system disturbs me the most.

Nekimken made this comment after my second post. He could not know that there are even worse things in our criminal justice system, than the failure of the “grand jury system.”

In my last post I discussed how prosecutors, instead of seeking justice as they are supposed to do, seek convictions regardless of guilt, and treat each conviction as though it were “another notch in their gunbelt." I pointed out that many innocent people are convicted, even though the prosecuting attorney has evidence in his possession highly probative of innocence, if not absolute proof thereof.

The stories of innocent people facing the nightmare of conviction and incarceration should chill the blood. The average reader will say ‘that couldn’t happen to me’. But it could! The numbers are astounding. But since numbers never seem to reach the conscience adequately, (they are cold statistics) I urge the reader to acquire and view the CNN documentary: “An Unreal Dream – The Michael Morton Story”. For information on that documentary, see here. This was a dramatic story, but it is not so different from so many others. I quote from CBS News: 

Morton's nightmare began in 1986, when his wife Christine was bludgeoned to death in their home in Austin, Texas. Despite no direct evidence linking him to the crime, he quickly became the prime suspect. At his trial, Williamson County District attorney Ken Anderson painted a picture of him as a violent, sexually depraved murderer who showed no remorse for his crime…

They literally pulled my son out of my arms, 'cause he was screaming for me. And, you know, the little hand is out. And ... he's being pulled away. And that was one of the worst parts…

For a short video on the case click here.

Unfortunately, the Supreme Court in the usual 5-4 decisions, actually reversed a decision granting another innocent man, who had served 14 years in prison an award of $14 million, $1 million for each year served. The Supreme Court held that he is entitled to - NOTHING.

But the injustices of our criminal justice system don’t stop there. In theory, one is innocent until proven guilty. But in practice that is hardly true. Pleading not guilty can be dangerous. There is an enormous penalty for insisting on a fair trial.

It is known as plea-bargaining and it is the method that prosecuting attorneys use to extort guilty pleas.

In a research paper on the subject entitled: “Plea and Charge Bargaining” the author finds:

In plea bargaining, a defendant is faced with a charge at arraignment. Typically this is the maximum charge or punishment that the defendant will be held to if he or she goes to trial. The prosecutors will present the defendant with an opportunity to plead guilty to a lesser charge or to the original charge with less than the maximum sentence.

What this means in practice is that defendants who plead guilty to the lesser charge, will get a lighter sentence, but if they chose to go to trial and are convicted, they will face the full penalty of “the maximum charge or punishment”.

This is a difficult choice to make. Going to trial is always a throw of the dice. It is impossible to predict with any kind of certainty, or even probability, what the outcome of a trial will be. It is “a throw of the dice”.

This is particularly true for the indigent or poor defendant who does not have access to highly competent counsel. It is even truer for those who cannot raise bail, and are incarcerated pending trial or other disposition. They might end up spending a year in jail pending trial, while if the charged offense is not that serious, a guilty plea might get them free in less time. The pressure to get out of jail, and/or to avoid the risk of long jail time is too great to make going to trial a plausible alternative.

Not surprisingly, the research paper cited above estimates that “about 90 to 95 percent of both federal and state court cases are resolved through this process” and that is confirmed by the website of a DA’s office in Texas where it is stated: "At least 90-plus percent of all criminal cases are disposed of by plea bargain agreements."

Not surprisingly the paper finds: “The majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas.”

The paper makes no attempt to explain this discrepancy, but I would suggest while in some cases racial prejudice may be a factor. More likely it is a question of economic status. It is logical to assume that those who have no difficulty raising bail and of hiring the best defense counsel are in a better bargaining position than the poor defendant, who the DA knows cannot put up a good defense at trial, and therefore there is less need to offer inducements for a guilty plea. As is well documented, Blacks are generally in a lower economic status than whites.

But where the injustice becomes even clearer is where accomplices get disparate sentences where one of them “cops a deal”, sometimes “called accomplice testimony. It's when a person involved in a crime agrees to testify against the other participants in exchange for a reduced plea.” See here. 

In effect this means that if one of the people charged agrees to give testimony in accordance with the prosecutors wishes, he gets a lighter sentence, which is quite an inducement to give such testimony, whether true or not. The DA gets his conviction, and one who may be guilty gets off with a light sentence, or even with probation.

It should be obvious that such testimony is highly dubious, and accordingly “New York law says that testimony of an accomplice, standing alone, is insufficient proof against the defendant.  There must be some form of corroboration that connects the defendant to the crime on top of the co-defendant testimony.” See here. But this is not true in other jurisdictions. Under “federal law… accomplice testimony is enough," (Ibid) and it varies from state to state.

According to the Cornell Law Review, Vol72:800 @p.802 (The link for this doesn’t work – For those who might want to go to the source, Google Cornell Law Review, Vol. 72:800 and then chose: "Accomplice Testimony Under Contingent Plea Agreements")

Accomplice plea agreements tend to produce unreliable testimony because they create an incentive for the accomplice to shift blame to the defendant or other co-conspirators. Further, an accomplice may wish to please the prosecutor to ensure lenient prosecution in his own case. Nevertheless, courts held that the testimony of accomplices who receive lenient treatment is not per se unreliable. Federal courts have allowed convictions based on uncorroborated testimony of accomplices to stand where the testimony is not “incredible or unsubstantiated on its face.” Convictions have been sustained even when the accomplice is an admitted perjurer.

How much this stacks the deck against the accused can bee seen from the fact that if counsel for the defense where to offer an inducement to a witness to testify on the defendants behalf, not nearly as beneficial as a lower sentence, or even probation, the attorney could be disbarred and prosecuted for subornation of perjury.

The deck is stacked against the accused in every way, and if the accused is indigent or poor, the likelihood of his being able to put up a proper defense, (with all the required investigations and the expenses involved therein) are dim indeed.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – Discussion

This is the fourth in this series. I recommend that you read or re-read Part I here, Part II here, and Part III here.

I have received two comments on the first two posts and I want to share those with you, together with my responses:

Michael Cerratto Esq. of Westville, New Jersey, wrote:

Good, something I don't feel so intimidated commenting on!

 The closing incident reminds me of a comment I once heard about the "cops vs. bad guys dynamic" being nothing more than our young delinquents vs. THEIR young delinquents. In any event, there are just too many dead bodies littering the streets lately, and the fact that we are only just now beginning to ask the questions which will, I pray, lead to some explanation of what is going on does not speak well of us. But then, again, I wonder if we really want the answers? Time will tell.

To which I replied:

You ask: "But then, again, I wonder if we really want the answers?"

According to CNN we do not.

I quote from my blog: "Law Enforcement, Race and the Gun Culture - I”:

How many people are shot by police every year? Nobody seems to know the exact number (something that is itself disturbing -- no official government agency tracks the full data for the entire country)

… nobody wanted to fund it and the (police) departments didn't want it. They were concerned with their image and liability. They don't want to bother with it.''

If you have any observation on my later post, I welcome it.

And Bob Russo of Montclair, and its former mayor, chimed in with:

I loved your 20 year old letter to the Editor... and the reference to the Ham sandwich being indicted...the more things change, the more they STAY the same, I think is the correct version. Anyway, I think you are absolutely right on all counts. I just have a hard time as former Mayor and Deputy Mayor demonstrating against my police department as I have been asked to do by protestors of police brutality, which I believe really does exist, but should probably be referred to as overzealous excessive use of force. I just don't know what the solution to mistrust of police based on legitimate fears and negative past experiences is...while we still need the security provided by adequate community policing and foot patrols. I think we should be putting more police on the streets and devoting more resources to public safety and security at this time of increased violence and potential terrorism.....but the nation does not seem to care.....We should devote energy to securing our communities,  especially urban areas and cities,  rather than spending billions on foreign adventures that seem to only fan the flames of more hatred toward us....and we should fix our bridges and infrastructure which are crumbling due to neglect.   We really need another TR and FDR with a public works agenda to make things right again......sorry to write so late......I was just catching up and that is my commentary on yours tonight! 

Which prompted this response from me:

Sorry about not getting the idiom correct. I usually check things on the web, rather than relying on my memory, but in this case, apparently, I felt so comfortable with the form I used, (incorrectly) that I never thought of checking it.

On the substance, neither a TR nor an FDR, nor an LBJ, would make any difference. They all had collaborative Congresses, and overwhelming majorities in those Congresses. Congress does make a difference. And it used to be that politics ended at the water’s edge. All that is gone. 

The Supreme Court is no longer a judicial body, but a purely political one, with power greater then that of either the President or that of Congress. The Congress can be vetoed by the President, and the President can be overridden by 2/3rd in both houses, but SCOTUS can only be overridden but 2/3 of both houses and 3/4th of the legislatures of the states. That is awesome power, and when it is abused, e.g. Bush v. Gore, or the United case, which effectively legalized bribery and extortion, it does harm far beyond what people realize. Had Gore been allowed his victory, as was in fact the intent of the voters, the Supreme Court would have a totally different composition, would be handing down entirely different decisions, and even elections might be run differently, if a different court where to strike down the outrageous suppression of voters and the gerrymandering.

I have become convinced that SCOTUS must be weakened. I think 5-4 decisions should be treated as a tie and of no force and effect. I am aware that this might means that the upcoming 5-4 decision on gay marriage would be of no effect, but that would still leave most of the US with legal gay marriage. I assume that in any case giving effect to the Constitution’s, Full Faith and Credit clause (Article VI -Section 1) so that each state has to recognize a legal marriage in another state, is unavoidable even for the Right wing nuts on the Court. The language in the Constitution is too plain.

As for the police, I don’t think that we have inadequate forces. That may have been true once - I don’t think it is true any longer. But the police must be held accountable. If they are not, we are in deep trouble. But it goes way beyond the police. It is our whole criminal justice system, as I will elaborate in future posts.

As for "securing our communities, especially urban areas and cities” the best way to secure them in the long run is to deal with their economic and social problems. The outrageous under-financing of their schools, which should not be financed by local property taxes, which by their very nature finance poor neighborhood schools poorly, and wealthy ones extremely generously.  But, schools are not enough, unless we attack the underlying poverty and the social and cultural problems that have arisen from years, indeed generations of persecution, under-employment, and neglect.

As for "foreign adventures” I believe we must guard against isolationism (that has never served us well), while guarding against foolish involvement. Examples of sound involvement were the actions taken by Clinton in Bosnia and by George H.W. Bush in stopping the invasion of Kuwait, while Iraq, and of course, Vietnam were major errors. I think we are doing the right thing in punishing an expansionist Russia, but as I have indicated, we are wrong to allow an expansionist Israel.

Well, that’s a lot of area to cover in a nutshell, but on the criminal justice system, stay tuned.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office. 

The Supreme Court vs. the Constitution (Addendum)

I keep wanting to devote my time to activities other than my blog, but questions keep nagging at me, and question beget the search for answers, and once the research is done it behooves one to publish.  And so here we go again!

In Gerald Walpin’s book "The Supreme Court vs. the Constitution" at page 21, Walpin asserts:

“We start that analysis by making clear that the Constitution did delegate to the Supreme Court the duty to decide whether actions taken by legislatures and governmental executives are constitutional.”

But did it?

That was a question that immediately raised itself in my mind upon reading it. To be sure that power is unquestioned today. But that doesn’t make the assertion quoted above true. As one who studies American history assiduously, I recalled how unimportant the Court was considered to be in much of our history.

I remembered for instance that the Court had not received its own home until 1936. That until then, while the President lived and worked in the White House, and Congress had its own great chambers in the Capitol, the Court occupied various spaces in the United States Capitol building. See here. It simply was not considered important.

I remembered that the generally accepted wisdom was that there was no recognition of this power until it was asserted by Chief Justice Marshall in MARBURY v. MADISON, 5 U.S. 137 (1803) and then after asserting the power the court did not exercise it. In fact when the court handed down its infamous Dred Scott v. Sandford, 60 U.S. 393 (1857) decision that was the first time the Court had actually exercised that power, or to put it another way, the court had not attempted to assert that power for some 70 years.

This history, plus various reading of American history, which suggested that George Washington considered it his duty to judge constitutionality and that this would be the basis for most vetoes and other indications led me to the conclusion that this power was not intended to be given by the Constitution to the Court.

But as always, I wanted to confirm my impression, and so I went to the Federalist Papers, that extensive collection of essays written primarily by Hamilton and Madison as part of their successful attempt to sell the States on the merits of the Constitution. I expected to find corroboration that Walpin was wrong on that point as well.

Well, as I have always said, facts first. The facts showed me to be wrong. At the very least it was the opinion expressed in the Federalist Papers that that power had been given and had been intended to be given to the Court. Walpin was right on this point.

However, the founders assumed that the court would be held in check by the threat of impeachment if they overstepped. Yet in the history of the Court only one Justice has ever been impeached and none have ever been removed. See here.

For those who like to go to the original sources and want to read the relevent portions of the Federalist Papers, I refer them to here.

The point, however,  is that on this issue, my initial impression was wrong, and Walpin was right.

The Supreme Court vs. the Constitution (Discussion)

At the end of my last post entitled "The Supreme Court vs. the Constitution" I stated: “Comments on the above are welcome and will be responded to, but will not be published or posted. However, the discussion that followed has been so interesting and informative that I do want to share it with you.

So here goes...

Robert Malchman, Esq. of Brooklyn, NY was brief in his remarks. He wrote:

I believe you have the better of the argument, and the errors are quite stunning.  Even in his rebuttal, Mr. Walpin gets Griswold flat wrong.  That case had nothing to do with people being secure in their homes; it was an appeal of petitioners' criminal convictions for selling birth control devices.  Searches and homes, and the Fourth Amendment were irrelevant.  The Court instead found a right to marital privacy, which included the purchase of contraceptives.

As is my wont, I was not equally brief. My response is below:

Yes, I was surprised that he had such a poor defense. It wasn’t just Griswold, The case he cited to support his Declaration of Independence argument, as you can see from the quote, says just the opposite. And how anybody can talk about religion in the public square and totally ignore the 1st amendment is beyond me.

I was surprised because Walpin has always been rather brilliant. At CCNY where we went to school together he was President of the Student Council and I think an editor on one of the newspapers. He took on the President of the college and made him back down. He then went to Yale where he became Editor in Chief of the Law Review. He clerked for two federal judges and then joined the US Attorney’s office, where he was in charge of the prosecution of Roy Cohen, Sen. McCarthy’s sidekick.  He then joined the Rosenman firm where he soon made partner and became the head of its 65 person litigation department. After Walpin retired Bush II appointed him as Inspector General of the Corporation for National and Community Service See here. Obama fired him.

Regardless of the virtue of his Tea Party positions, I would have expected his book to be on more solid ground and his debate with me to be more lucid. Surely his briefs in his law practice must have been argued with much greater skill.

I also noted that he resorted to an attack on his critic rather than relying on the merits of the argument, saying:

"I thank Mr. Scheller for his candor in conceding that, before he read my book, he had already decided that he would not agree with its conclusions. While I will not spend my time responding to each nit-pick that those who read my book (with a closed mind) claim to find…”

The other comment came from Leonard Levenson, Esq. of Manhattan, NY. He wrote:

I have read your review of Walpin's book, his rebuttal and your sur-rebuttal.  Without going into specifics, it seems clear that Supreme Court decisions turn a blind eye to the doctrine of Stare Decisis.  The court does so for 2 reasons:  First, it is an institution respected and admired by the vast majority of the people.  I believe the court receives a favorable rating of 78% of the country; a  remarkable percentage in these days of political division and the obvious politicizing of the Court.  Compare this with the favorable rating of 18% for congress and 44% for the presidency. Because of this respect and prestige they are able to make an imprint upon our life based primarily on the Social and Economic views of the justices. 

 
Secondly, Stare Decisis has limited importance where the Court under discussion is the court of last resort. I suspect that the Court from its inception was a political institution.  It increased its political nature as its prestige increased.   

      

The Supreme Court in the 1930's, in combating Roosevelt and the New Deal measures was acting from a social, economic and political point of view; certainly not from a judicial.  The court members were mostly appointed by the Harding, Coolidge Hoover presidencies and were largely chosen from the empowered elements of our society.  They mirrored the thinking of the 20's just as the Warren Court mirrored the thinking of the 60's (despite the fact that Warren was a Republican and voted to intern the Japanese during WWII). 

     
For the reasons stated, it seems that Walpin's message misses the point, completely.  Simply stated, I believe each Supreme Court justice interprets the constitution more with an eye to his social philosophy and political tone of the times that by a strict adherence to the intention of the founders or the idea of Stare Decisis. 

          

As an aside I did not research the appointment history of the Supreme Court justices of the 30's.  Knowing you excellent reasoning ability, your thoroughness in research and enjoyment of the intellectual battle, I tremble when I cite facts to prove a point to you.

Prompting my very lengthy annotated reply:

You are correct about my " thoroughness in research” because I believe in facts first and then opinions, as opposed to the current trend toward opinions first, and we will invent facts to suit the opinions, which was very much in evidence in Walpin’s very poor defense of his views.

So let me begin by correcting your comment, "First, it is an institution respected and admired by the vast majority of the people.  I believe the court receives a favorable rating of 78% of the country;”

In fact the Court like the rest of our governmental institutions is held in low esteem. Your “facts” are very much out of date. 

Allow me to quote from the Rasmussen Reports as of September 26, 2013: 

"Just 26% of all voters think the Supreme Court is doing a good or excellent job, down from 28% in June. Just as many (26%) rate the Supreme Court poorly, but that's down, too, from June’s all-time high of 30%”. See here.

I think that was a major factor in Justice Roberts deciding to break with his Right Wing colleagues, and uphold Obamacare on the basis of a valid tax, though not on the Commerce Clause, by which, I believe, he hoped to keep his agenda of striking down liberal laws by restricting the Commerce Clause, while improving the standing of the court. It didn’t work. The Court’s reputation continued to decline, as it infuriated the Right, while doing nothing for the views of the Middle or the Left.

The Court, I believe, was in very high esteem after the Nixon fiasco, where the country felt the court had saved our Constitutional system.

Now let me address your next comment, namely, "The Supreme Court (members) in the 1930’s ... " were mostly appointed by the Harding, Coolidge, and Hoover Presidencies and were largely chosen from the empowered elements of our society. 

This is correct! That court consisted of Charles E. Hughes, Owen J. Roberts, Benjamin N. Cardoza appointed by Hoover, Willis Van Devanter appointed by Taft, George Sutherland and Pierce Butler appointed by Harding, James C. McReynolds appointed by McKinley, Harlan Fisk Stone appointed by Coolidge, and Louis D. Brandeis, appointed  by Wilson.

Thus only one Justice, Louis D. Brandeis was appointed by a Democrat, Wilson. But that should come as no surprise to anyone, since Republicans held the Presidency for 12 years, similarly to the 12 years of Republican rule in the White House during the Reagan/ Bush years and the 20 out of 28 years if you count the Reagan to Obama years, where we had Republicans in the White House continuously, with the break of Clinton for 8 years.

I assume that in raising the question of who appointed  the Supreme Court Justices you assume that this is a predictor of how they will vote. But that has not been true through most of our history, and is a relatively recent phenomenon.  As I point out above 8 of the 9 Justices were appointed by Republicans, which one might assume would mean that the votes striking down New Deal legislation would be 8 to 1, but that was not the case.

Most decisions were five-to-four with only four Justices consistently voting to strike down New Deal legislation, and the fifth vote coming from various other members. See here. Also here and here.

Just when appointments became predictors of how a Justice would vote is something I have not researched, but I suspect it started with Nixon’s southern strategy when he made two nominations of outspoken racist Southerners G. Harrold Carswell and Clement Haynsworth for the vacancy, but the Senate rejected them. I suspect that from that time on, Presidents made nomination not on the basis of qualifications, but on carefully vetted political and judicial philosophies. 

You say: Stare Decisis has limited importance where the Court under discussion is the court of last resort. This is an important point and I think that what this whole discussion leads to a conclusion that Walpin, you and I might be able to agree on. The Court is too powerful!

But that has long been a view and various proposals to reduce the Court’s power have been proposed. After the Court struck down the New Deal legislation, "Public anti judicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional." But they went nowhere.

However, Roosevelt’s court packing plan, which was denounced by many even in his own party, seemed to have the desired effect, causing one of the Justices to change his votes to validate New Deal legislation, resulting in the famous slogan: “The switch in time that saved nine”. See here.

But with life expectancy short Roosevelt was able to replace all nine Justices with his own choices by 1941. See here.

We talk about equal branches of government. But to quote George Orwell "Some are more equal than others.” Congress is balanced off by having two branches and subject to a veto by the President and by the Supreme Court. The President can be checked by Congress’ refusal to pass the legislation he desires and by the Supreme Court, but the Court can only be over-ruled by an amendment to the Constitution that needs 2/3 of both Houses and 3/4 of state legislatures, an almost impossible task, and the power of the Court has been enhanced by the longevity of life expectancy and the tendency of Presidents to choose Justices who are young, thus extending their philosophy long after another President or Presidents take office. It is unlikely that Obama will be able to change the philosophical nature of the court, since the only Justice likely to retire (or die) during Obama’s remaining years is Justice Ginsburg, whose replacement by Obama will not change the balance.

But you fall into the Walpin trap when you talk about "strict adherence to the intention of the founders”. That, of course is the concept of “Originalism”, which I denounce in my response to Walpin. For many reason, including the one set out in the Preface of the book co-authored by Robert Bork entitled LOCATING THE BOUNDARIES: THE SCOPE OF CONGRESS'S POWER TO REGULATECOMMERCE to which I refer in my post, that is a concept that has zero merit. Aside from the reasons mentioned in this book, the founders intentions have been radically altered by the 27 amendments to the Constitution, and to go by what their intentions were, is to ignore all these amendments. Let us remember, that the founders intended that slavery be part of our institutions, so that if we go by their intent, we must ignore the 13th, 14th, and 15th amendments, and accept the juridical maintenance of slavery.

Furthermore Justice Scalia, along with Thomas and Kennedy, have rejected legislative history as a guide to interpretation. See here at p.182 and what is a reference to a founder’s intent, but the use of legislative history. Legislative history on a document many times amended, is doubly absurd.

But I think you also fall also into the fallacy of equating both progressive interpretation of the Constitution with those who are interested in protecting, to quote from your comment, "the empowered elements of our society”. To understand that we have to look at how the 14th amendment has been abused. This amendment was intended to empower the newly freed slaves. Section 1 provides:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So whom did the Supreme Court choose to protect with this amendment in its earliest interpretation. The newly freed men? No! It was "the empowered elements of our society”. The Supreme Court in its first interpretation of the amendment in the The Slaughter-House Cases, 83 U.S. 36 (1873), chose to protect the rights of the "Butchers' Benevolent Association’ and set in motion the use of the amendment to thwart all social and labor legislation. Was that the intent of the authors of the amendment? Clearly, NO! But that is the  point of all this Originalism. It is insincere and phony and is never used when it doesn’t bring about the right result.

On the other hand to use the language in a manner that is appropriate to a modern understanding of its language, is the only approach that makes any sense. What “cruel and unusual" punishment was in the 18th century clearly is not what it means in the 21^st century.

Finally, Levenson had some concluding observations:

I agree with you that in the past Supreme Court Appointees have often surprised and disappointed the President appointing them.  I suspect that this is true with regard to Earl Warren, Cardoza, Brandeis, Stone and others.  I think you are also right about recent appointees who seem to remain faithful to their economic, political and social philosophies more so than those of the past. 

 What I did find interesting and what surprised me was your comments about efforts to limit the power of the court to declare laws unconstitutional. I was under the impression that Roosevelt's court packing was the only effort to combat the courts powers to declare a law unconstitutional.  On reflection, such ideas have merit. 

 Requiring more than a simple majority of the justices to overturn a law has the virtue of removing political considerations from their decisions except in the rare situation of a court almost totally appointed by Presidents of a single party.  With regard to treating Court decisions as a judicial veto, which could be overridden, I think this would complicate an already overburdened legislative process.