Checkpoints and Drunk Driving/DUI; New Years Eve and Weekend, and in General

One of my recurring concerns is about DUI checkpoints, a government project that would have made Heinrich Himmler foamingly and giddily excited, but which makes James Madison spin in his grave.

There are going to be several in this area over the New Year’s weekend, all funded by monies shipped here from Sacramento, which was shipped there from D.C., which was shipped there from taxes stolen from you and me back here: the money made a costly round-trip, engorging the pockets of bureaucrats on its lengthy and circuitous journey.

The checkpoints are rationalized as helping with what bad-minded sorts want a naïve public to believe is a drunk driving problem.  One problem with that is that there is no drunk driving “problem.”  The percentages of accidents actually caused by drunk drivers is so low that MADD inspired their governmental patrons to concoct a new descriptive category, which sounds menacing, but which is deceitful.  The real statistics have to do with “alcohol-related” accidents, deaths, incidents, etc., and that sounds like drunk driving, and its stats are deceptively admixed with drunk driving so that you believe drunk driving is a problem. 

However, alcohol-related accidents have nothing to do with who caused the accident, what the condition of the person was who caused the accident, what the condition of any driver was in any accident, nor the nature of the accident.  A drunk pedestrian falling in front of a car driven by a sober driver = alcohol-related accident; a sober driver plowing into a lawfully stopped car whose driver has alcohol in his system but who did nothing wrong = alcohol-related accident; a sober driver with drunk Uncle Harry in the back seat sucking on an open beer when the wheel falls off of the moving car causing it to wreck = alcohol-related accident.  Those and many other similar incidents, not caused by a drunk driver, are used to jack up the statistics to serve MADD’s neo-prohibitionist political agenda, and the court system has learned that the penalty assessments from DUI fines are a golden goose for their out-of-control budgets, so judges generally get on board the DUI tyranny train.

There is one use for those checkpoints that is other than the handsome revenue the courts and related systems make from DUI arrests and convictions, and that is probably the most important and least discussed reality.  The checkpoints show the public that “The Man” is in charge, is all around, is empowered to stop us, grill us, smell our breath, and let us leave or not, when and if He chooses.  This roadblock tyranny is a characteristic of a police state, and we indisputably have become one.  You can stop it, if you rise up and decide to do so, but most people only believe in popular sovereignty and individual liberty as a civics book nostrum, and not as a part of daily, political life.

The Framers would not have tolerated liberty infringements without particularized suspicion based on observed evidence, as Justice Thomas has made clear, but, ironically, Thomas is really the only true originalist on the Supreme Court right now.

But as for DUI generally, if you are stopped, either at the checkpoint, or otherwise pulled over, be polite, hand over documents if asked to do so, and say nothing.  Whether you are in the position to have been given your Miranda rights or not [erroneously believed to apply only after formal arrest, about which more at another time], you never, ever have to talk to the cops, and you should never do so.

Yeah, yeah, you think it will help to be “cooperative.”  Be cooperative by being polite.  It never, ever helps for you to supply evidence against yourself, or against others, to government.  Or, well, it does help – it helps the government obtain easy convictions and favorable stats.  But it never helps the accused.  Government is not your friend, when investigating crimes it suspects you committed. Do not respond when you are asked if you have had anything to drink, where you are coming from, where you are going.  You may ask if you are free to leave, and if the cop says no, tell him you want whatever citation he is going to give you, but say nothing about any facts, of your conduct, of your car, of your condition, etc.  Notice if there is a video camera installed on the dash or window of the cop car.

If you are told you are suspected of DUI, do not perform any of the pre-arrest performance tests, including the pre-arrest hand-held breath test.  That pre-arrest breath device, called the PAS, is to forensic alcohol analysis what Bernie Madoff is to stock investments.  

If you are arrested, you will be given a choice of blood or breath.  Generally take breath, unless the test is being administered within about 45 minutes of drinking.  If you choose breath, they then have to advise you of your right to a back-up test of blood or urine.  The latter they often and purposely fail to do.  Ask for urine test; they usually won’t give it to you, the failure of which could help at trial, if you have any jurors who understand their role.

Then shut up.  Say nothing more, except for answering routine booking questions.

As for the pre-arrest performance tests, the field sobriety tests, or FSTs, there are some things all should know, over and above the fact that you should not submit to them.

No reputable, neutral scientist, including the developer of the only three that have any arguable validity [and she is assuredly not neutral!], has ever found that there is a scientific correlation between any such tests and impairment by alcohol for trial purposes.

So, no person stopped for suspicion of drunk driving should ever submit to the FSTs.  They are to impairment what goat-entrails reading is to truth, and they are a trap for the unwary, because no one can perform them.  For instance, I can’t walk a straight line, heel to toe, on my best day, and I don’t drink alcohol. Putting heel-to-toe is an unnatural maneuver and movement of the body.  Query the legitimacy of ascertaining if your normal abilities are thrown off by alcohol ingestion by having you perform an unnatural task!  You are programmed for failure.  [“Oh, my government wouldn’t do that to me.”  Think again!]

But when you “fail” at a task that a cop says signifies to him impairment, jurors, who are supposed to be skeptics about government, too often fall for the story, hook, line, and sinker.  It is as if I were to say “I have never seen a person who was not drunk be able to stand on his head and whistle the Battle Hymn of the Republic; Fred could not stand on his head and whistle the Battle Hymn of the Republic; therefore, my opinion is that Fred is drunk.”  Good God!

Drunk driving is a political crime, and make no mistake about it.  But as with all political crimes, it can be fought, if you retain the right attorney.

We, obviously, are the best attorney for you, if you are snagged for drunk driving, or for DUI, or for anything else, in the Inland Empire, Riverside County, San Bernardino County, Palm Springs, Banning, Indio, Desert Hot Springs, Coachella Valley, Blythe, Joshua Tree, Yucca Valley, Needles, Victorville, or anywhere within 150 miles of Palm Springs.

Don’t let your entry into the New Year be marred by a conviction for drunk driving, but an arrest for drunk driving does not guarantee a conviction, unless you represent yourself or retain the wrong attorney.

Keep Your Mouth Shut, Redux

I repeat this and elsewhere, because people just don't get it.  So, I will repeat this over and over in various venues, because when people do not seem to get the message, they accordingly injure themselves and their families and their friends by shooting their mouths off.  I keep having clients come to my office for help regarding their arrest for this and that, and over 95% of the time they have, upon being apprehended by the police, confessed to a major component of what becomes the charge, or they have allowed searches which gave up the evidence being used against them, or they say something that gets a loved one in trouble, and I ask why.

And I have a new spin on the problem.  My clients know full well what I mean about not talking to the government, about the exposure of them and their family to things that will injure them and their families, and yet the dumbest thing I have ever witnessed along that line happened two weeks ago.

A client’s spouse thought he knew better than anyone about how his wife’s case should proceed, and he wanted the Payton Place atmospherics which led up to the problem, which are unrelated to the narrow charge, to be known, thinking [or not] that the government would just cave in and say “Gosh, now that you have told us how bad a witness is, we will let you off the hook.”  Uh---WRONG!

So, this intermeddler authors an incredible story about all of the history leading up the alleged crime, which includes an admission of the crime[!], and has his wife sign it, and then faxes it to the DA!!!!

On my next appearance, when I am answering ready for the preliminary hearing, the DA says, in court, “I have additional material for Mr. Kennedy.”  “Huh?,” I inquire.  “It’s from his client.”

When I saw what was stupidly sent to the DA by my client’s husband, Vesuvius itself was mild compared to me!

Do not think you know better than your lawyer [especially if I am that lawyer!] how to handle a case, and do not think sharing tidbits and morsels with the government will help your case.  Once the government has decided to prosecute, it is like a pit-bull with a cow bone – it will not let go.

We fought a Revolution partially to keep government out of our houses and out of our mouths, and yet people continue to blab to the cops when confronted.  I ask why, and the answer is always a variation on “I thought I had to,” or “Well, he’s the man,” or some such contra-constitutional inanity.

You do not ever need to talk to the cops.  You do not ever need to consent to searches.  And you should never do so.  NEVER.  In the 1,000s of cases I have had in my career, it never, ever, once helped the accused’s situation to talk to the cops.  NEVER!  Why do you do it?

“Uh…, I had nothing to hide.” That is not the point.  First off, they used it against you, so you should have hidden it.  And secondly, it is part of our scheme, part of the thing we shed blood over, that the burden is government’s, and the default position is with the individual and in the direction of liberty.

Once you start talking, the cops are very deft in making you say what they need for their report and theory of the case.  The interrogation techniques in vogue now play on the same psychological devices perfected by Nazi interrogators in the 30’s.  You will eventually say what they want to fit their theory, so just shut up.

It NEVER, EVER HELPS.  “Uh…, but I am a honest person…, I don’t want to lie.”  I didn’t say lie; I said don’t say anything.  Government is not your friend when investigating crimes [or, indeed, most times]; it is only its own friend.

And the admonition against talking to the cops includes asking questions as well as answering them.  If you ask, they can answer, then you will respond, and you think you are helping yourself, until the response comes back to haunt you.  Just shut up.                                           

You’ll occasionally hear the comment that it is important to enforce the criminal law. It might be important, but it is not the ultimate value in this Republic.  Preserving Liberty is the ultimate value, and liberty is defined as the absence of governmental involvement, coercion, or “help.”  Enforcing criminal law, like disposing of garbage, is important, but it was never the ultimate value in the Framers’ minds, contrary to what some statists masquerading as constitutional originalists claim. The supposed heightened and trumping value of enforcing criminal law has been allowed to creep into our psyche by purposeful sorts who have been inching us toward police statism since the founding of the Republic.

And on the point about talking to cops about others, if you think that you can snitch off others and then undo the damage, like turning off a water faucet, think again – once you let loose the dogs of governmental vengeance, you are no longer a controlling party – you are then a mere witness, and you cannot undo what you have begun.  So, tread carefully before you call the cops on friends or family, for domestic violence or other criminal law matters; they will not show up just to quell the situation. They will show up with the idea that someone is going to jail, and someone will, and you will not be able to control the matter, and your family or friendships will be irreparably injured by your hasty call to “The Man.”  Irreparably.

You’ll occasionally hear the comment that it is important to enforce the criminal law. It might be important, but it is not the ultimate value in this Republic.  Preserving Liberty is the ultimate value, and liberty is defined as the absence of governmental involvement, coercion, or “help.”  Enforcing criminal law, like disposing of garbage, is important, but it was never the ultimate value in the Framers’ minds, contrary to what some statists masquerading as constitutional originalists claim. The supposed heightened and trumping value of enforcing criminal law has been allowed to creep into our psyche by purposeful sorts who have been inching us toward police statism since the founding of the Republic.

And on the point about talking to cops about others, if you think that you can snitch off others and then undo the damage, like turning off a water faucet, think again – once you let loose the dogs of governmental vengeance, you are no longer a controlling party – you are then a mere witness, and you cannot undo what you have begun.  So, tread carefully before you call the cops on friends or family, for domestic violence or other criminal law matters; the cops will not show up just to quell the situation. They will show up with the idea that someone is going to jail, and someone will, and you will not be able to control the matter, and your family or friendships will be irreparably injured by your hasty call to “The Man.”  Irreparably.

Why No Bill of Rights in Original Constitution?

Now that we have all reviewed our copies of the Constitution, and have particularly studied Article 1, sec. 8, as I suggested in entry preceding the election discussion, we are able to begin to tackle [albeit somewhat superficially] what the National, or General, or Central, Government was supposed to be doing, and what was none of its business. One question surrounding Article 1, sec. 8, partially explains why there was no “Bill of Rights” in the original body of the Constitution.
The general government was intended to be a government of enumerated powers, which means that things not expressly and specifically assigned to the general government were beyond its power. The specification of that assignment is generally found in Article 1, sec. 8: what’s not there, Washington could not regulate, order, have anything to do with. Things not there, if they were of a nature that government should deal with them, were state government business. And, of course to the liberty-focusing Framers, many things did not have, nor merit, a government solution, which seems bizarre in this modern “state-istic,” paternalistic, “we’ll take care of all ills” view of government.

While the general government was to be a government of enumerated powers, the state governments were to be governments of reserved powers: the sovereign people gave all government power to their states; they then specifically shunted some of the power they had given to their states to their national, general government, while leaving in the states what they had not expressly given to the general government. They also retained to themselves certain fundamental rights, which was their own reservation against assigning powers to either of the two levels of government.

Reading down through Article 1, sec. 8, you’ll be hard-pressed to locate the power of the general government to tell people what medicine is lawful; what guns can be possessed or what is required to purchase them; what speeds to drive on roads; whether children could be left behind or not in public schools, and what they needed to be given for lunch; what punishment to give bank robbers, or kidnappers crossing state lines; etc., about which more later; or to command the purchase if medical insurance, on the pain of fine or jail for not doing so.

When the subject came up in the Convention of 1787, which was supposed only to amend the Articles of Confederation but ended up establishing a new order and structure [which is the danger of doing a convention now], there was scholarly opposition to a Bill of Rights by some who proved to be clairvoyant. Their argument was that individual rights were protected by the various state charters of liberties and by common law traditions, and that there was no need to protect people against the general government, because that government could not do what was not specifically authorized.

That is, there would be no need, for instance, in prohibiting Congress from abridging freedom of speech, because the power to abridge it had never been granted. There would be no need to prohibit quartering of troops in people’s homes, because the power to do so had never been granted. There would be no need to prevent unreasonable searches, because there was a common law tradition against such and the general government had never been awarded the power to do any searches, let alone unreasonable ones. And so forth.

The prescient portion of the argument, advanced by Hamilton, Madison, Jay, and others, was that if they then wrote a bill prohibiting the general government from doing specified things, evil people in later generations would rationalize that the national government could do everything that was not prohibited, instead of only being able to do what was enumerated in Article 1, sec. 8. Bad captains of the ship of the American state would chart a self-serving and duplicitous course through the imagined shoals erected by the specific prohibitions. And that is what we see happening now; they predicted it 223 years ago.

Their [federalist framers’] position was that the very structure of the nation, with the limited assignment of power nationally and reserved powers locally, was its own and sufficient Bill of Rights, and dangers of usurpation lay on the horizon if there were to be express reservations against a system that axiomatically could not do what was never granted. But their political scholarship and insight did not carry the day; a sufficient number of framing parties insisted that there be a promise that a Bill of Rights would be produced in the first Congress sitting under the new Constitution, or there would be no such Congress because there would be no new Constitution.
That promise was made, so the Constitution was ratified, and the first Congress heeded the commitment to put together a Bill of Rights in 1791.

Of course, that 1791 effort was not labeled a “Bill of Rights” when being put together, and it was not originally designed as the “amendments” we see now. The order of the provisions defined the location in the original body of the Constitution where the provisions would be inserted. That is, the “First Amendment” is not “First” because the Framers considered it to be the most important provision of liberty [as some erroneously assert these days], but because it was the first thing to be inserted, and it coincidentally was to be inserted into Article 1. Moreover, that “First” was not what really would have become the first provision; it was really the third item of liberty voted upon, about which more the next time.

The Election was not a "Conservative" Victory, Properly Understood

I tire of the simplistic analysis of the election [63 House gains for GOP; 6 Senate gains] as a victory for the “conservatives,” a loss for the “liberals,” and blah, blah, blah.

There are few true conservatives in this or any recent American undertaking, because there is a fundamental misunderstanding among many people of the meaning of the term, and there is a purposeful co-opting of the term by bad-minded sorts to dignify their radical extremism.

There is nothing “conservative” about Limbaugh, Palin, Rove, Hannity, Beck, O’Donnell, etc..  Those people are statists; they are police power extremist reactionaries; they invoke the Framers for their reactionary positions without ever having studied them.  They are to conservatism what Mussolini, Franco, Hitler, Rumsfeld, and Romney are to John Adams, Barry Goldwater, and Mike Kennedy [Captain Motion].

I am offended that they have co-opted the distinguished label of “conservative,” but I am even more distressed that people who properly attack the statists’ positions simple-mindedly call them “conservatives.”

What we see in Tea-Party-ism is a nominal and maybe superficial yearning for a return to certain fundamental founding standards, but most who are animating and marching and sandwich-boarding for such have never read founding documents, and they were curiously and tellingly silent when the Bush junta virtually eviscerated fundamental liberty values in service to “security,” which was anathema to the Framers.

As Justice O’Connor remarked upon her retirement, we will lose the Republic if people stay ignorant of its founding premises and of the Constitution.

There was no “conservative” victory here, but merely a shifting from the left-wing version of statism [socialism] to the right-wing version of statism [fascism], and liberty will suffer with either version in power, because statism is the enemy of liberty.

We need to return to the founding premises of small government [not even Reagan pressed for that, but merely mouthed the words], and big liberty, and limited central government involvement in our daily lives. Article 1, section 8, enumerates the extent of the central government’s power, and if it is not there, the central government cannot do it, and then the 9^th and 10^th Amendments announce the remainder.  Neither those who lost nor those who won, now nor in 1994, understand that constitutional truism. Ron Paul is one of the few who does. As do I.

Let's Discuss The Constitution, From the Git-Go

Let us discuss the Constitution and what this Republic is all about, or supposed to be. With all of the people running for the U.S. Senate, U.S. House of Representatives, various governors’ mansions, etc., and the Tea-Partyites and various pundits, blathering about the Constitution, and with the people in the White House and Supreme Court daily thumbing their noses at it, I feel it was important to start this project. The Constitution is not taught too intensively, or too originally, in the schools these days, so we will have to think about fundamental things here.


Justice Sandra Day O'Conner, upon retiring from the U.S. Supreme Court, observed that the greatest danger to the Republic comes from people being ignorant of their Constitution. Upon the pre-ratification writing of the fundamental charter, Ben Franklin commented that "Now you have a Republic..., if you can only keep it." It can only be kept if the public becomes educated about the founding premises and then commits itself to hewing close to the lines intended by the Framers.


It is most alarming that there is little instruction about the Constitution in the schools these days. Instruction on what we are about, and supposed to be about, and the evolving difference between the two, should begin in elementary and secondary school. But it does not, in most schools across this Fruited Plain. Many people never even read the Constitution until they get into certain college classes; some people have never read it. It is increasingly clear that many politicians, who swear to uphold it, have never read it, don't understand what they read, or intentionally violate its teaching. I had to interrupt my serious study of the Constitution when I went to law school, which says something about what is [or is not!] going on in the legal profession these days.


This series of offerings will help correct those shortcomings. You might not like all you read here, but that will only mean that either you do not understand, or are a counter-constitutionalist. And that is okay: your right to believe and spout other than what the Framers taught and intended is protected by what they wrote, the First Amendment, provided your position does not rise to the level of treason.


There are ideologues and polemicists on both, or all, sides, and talking heads competing for listenership instead of truth, who have agendas that have nothing to do with what the Framers intended, or which are downright violative of those founding intentions.


To begin, let us recall the founding notion that the national or central government [erroneously called "federal"] has, generally speaking, only the power conferred on it in Article 1, section 8, of the Constitution. If it is not there, the central government cannot regulate in the area without practicing usurpation. That is, the central government is a government of specifically enumerated powers, with implied powers of government reserved to the states. I leave it to you to track down a copy of the Constitution, read that section, and then we shall continue next time. You will return to these pages aghast at how far from its intended boundary line the national government has strayed, and that is partly why it has come to label itself "the" "Federal Government." Our scheme was to be that we would have "a" “federal” government, the difference about which we shall attend to next time.

Keep Your Mouths Shut!

Moving on to one of my favorite but apparently ineffectual rants, I keep having clients come to my office for help regarding their arrest for this and that, and over 95% of the time, they have, upon being apprehended by the police, confessed to a major component of what becomes the charge, or they have allowed searches which gave up the evidence being used against them, and I ask why.

We fought a Revolution partially to keep government out of our houses and out of our mouths, and yet people continue to blab to the cops when confronted. I ask why, and the answer is always a variation on “I thought I had to,” or “Well, he’s the man,” or some such contra-constitutional inanity.

You do not ever need to talk to the cops. You do not ever need to consent to searches. And you should never do so. NEVER. In the 1,000s of cases I have had in my career, it never, ever, once helped the accused’s situation to talk to the cops. NEVER! Why do you do it?

“Uh…, I had nothing to hide.” That is not the point. First off, they used it against you, so you should have hidden it. And secondly, it is part of our scheme, part of the thing we shed blood over, that the burden is government’s, and the default position is with the individual and in the direction of liberty.

Once you start talking, the cops are very deft in making you say what they need for their report and theory of the case. The interrogation techniques in vogue now play on the same psychological devices perfected by Nazi interrogators in the 30’s. You will eventually say what they want to fit their theory, so just shut up.

It NEVER, EVER HELPS to talk. “Uh…, but I am a honest person…, I don’t want to lie.” I didn’t say lie; I said don’t say anything. Government is not your friend when investigating crimes [or, indeed, most times]; it is only its own friend.

And the admonition against talking to the cops includes asking questions as well as answering them. If you ask, they can answer, then you will respond, and you think you are helping yourself, until the response comes back to haunt you. Just shut up.

Do NOT fall for the old cop ploy of "we really already know everything; we just need you to help us fill in the blanks," or the equivalent. Don't be softened up by the old "we're giving you this opportunity to...." Opportunity? To put yourself or your family in jail? That is not an opportunity; it is an indictment.

"You can do one of two things out of this; you can turn your life around or get in deeper." Uh, Gang, your life will assuredly get turned around if you big-mouth yourself into an easy conviction. Don't fall for the crap. "We know the answer to our question; we need to hear it from you." Oh really? Why do you need to hear it from me if you already have the answers?

The interrogation tactics employed by our police are the same as those employed by the Gestapo in 30's and 40's Germany; there is no difference. And the courts have said it's okay for the cops to lie to you to get where they want to go, and they will, and they do. "I'll be straight up with you." No they won't, and the courts won't care if they are not.

Keep your mouths shut.

Are your liberties in general in peril? "Oh, No; we are free..., aren't we"?

If you think your liberties are not imperiled, drop in to your local court house some day and watch from afar what goes on there. Of course, you’ll have to pass through the search-o-matic machine to make sure you are not a danger to the building and its occupants. That indignity is its own danger to the rule of law. Courts were envisioned as a place the public could go to seek protection from bad government. Yet the government agents from whom we were to be protected by the courts walk in and out of the court without scrutiny; you, who are there to have the court scrutinize government, are treated like an outsider, while the people you are coming to be protected against are invited in as part of the insiders. That symbolism alone undermines the pretense of rule of law and detracts from what the Framers envisioned for the judiciary.

But then just watch; do you feel that those in the public or those in the government, especially police, are being given the best service and most respect by the courts? Your answer to that defines whether we still have a government of laws, or whether instead we have devolved into something else, and less, and dangerous. Check for yourselves.

Justice O’Conner said, upon her retirement, that the greatest danger to our system of government, our republic, our ultimate safety is for the people to be ignorant of the Constitution and of the premises underlying its founding. As I have frequently noted over the years, You can only rein in a rampaging government if you understand at what point its actions are rampaging, and if you have a patriotic resolve to take affirmative stands to preserve the Republic.

Many of us have taken oaths at various times in our lives to defend the Constitution against all enemies, foreign and domestic. It does not overstate the issue to assert that there are far more domestic enemies of the Constitution than there are foreign ones, and ignorance of its precepts and founding is a catalyst for the reactions of bad-minded sorts who would destroy our Constitution in the hypocritical pretense of enforcing it.

Recall the immortal words of a personal hero of mine, Barry Goldwater: "Extremism in defense of liberty is no vice, moderation in the pursuit of justice is no virtue." That defines ultimately my outlook on life; what about you?

And so, My Fellow Americans, Ask Not What Kennedy & Roe can Do For You; Ask What Together We Can Do to Restore the Republic. If you care.

Constitution Day - Forgotten Again

The Constitution was signed by the 39 patriots who were its architects on September 17, 1787. There is no date in our founding’s history that should be more celebrated, because the Constitution [far more mentioned than understood these days!] was a careful crafting of values, structures, and assignments [and withholdings!] of power by a group of titanic thinkers who carefully factored in observations of what had worked and failed over history with the needs of a people who opposed tyranny but were anxious about anarchy. So, where were the celebrations this past September 17?

What is ominously troubling to me is that the current cute trend of neo-patriotism, with rah-rah-rah, sis-boom-bah, about 9/12, 8/28, “Tea Party-ism” [by pseudo-patriots who generally can't tell me the date of the real, original "Tea Party"] is not going to effect a real change in the growth of usurpatious, repressive national statism, because most people are really not serious about it. You can have all of the “yankee-doodlism” at a Glenn Beck religio-moralistic-red/white/bluism event, but until there is a true resurrection of deep commitment to founding values, the Reids and Byrds and Obamas of the world will remain the ascendant governmental reality. The one clear exemplar to me that this rash of neo-patriotism does not signal a resurrection of originalistic values is the comparative silence of this past September 17. Where were the rallies, the flags, the parades, the megaspeeches? Naturally, Hillsdale College [an originalism teaching “liberal” arts college in Michigan] commendably had a significant event, and other venues of serious Americanism marked that most important of all Americanism days with appropriate, but not very crowded, remembrances, but most of the Palin/O’Donnell hooplah-ites were oblivious to the coming and going of the day, because they were not commanded to march and celebrate by the various rightist demagogues who orchestrate the events that mobs are dutifully showing up at.

The uber-Left will continue to rise because truly committed originalists are few, far between, and increasingly marginalized by the superficial Woodstockism of neo-patriotism.
And that is irksome.

9/11; Let's Not Forget What We Should Not Forget

It has been nine years since the coordinated homicidal attacks on the World Trade Center, on the Pentagon, and possibly on the capitol, which was commendably thwarted by heroic passengers to plop into a field in Pennsylvania. And we, of course, should never forget. But there are many things we should never forget.

We should not forget our regime of liberty, which was spawned from and during emergency, which found its ultimate voice in the Constitution. The Constitution, born of emergency, axiomatically does not admit of emergency exceptions. That was a point that eluded the Bush Administration, and which seems to be forgotten by the Obama one too. We do not inspire others elsewhere to embrace constitutional government by flouting its teachings and standards here. If the Bush theory that turbaned hooligans in distant lands wanted to destroy our way of life by this attack and by other measures was correct, then the assault on civil liberties here, which was installed by thoughtless and hysterical [or maybe calmly purposeful?] sorts in the Bush administration, has given the thugs the victory that we thought we were preventing by our illegal invasion of other sovereign lands without congressional declaration.

And even though we need to pay our respects to the horrors and deaths and sacrifices of 9/11, we must desist from the apparently increasing vogue of yearly ritual victimization ceremonies, which are both morbid and unhelpful to the advancement of legitimate values.

Let’s rebuild the Twin Towers [after we get a lucid and scientifically valid explanation of how the curiously unmentioned third tower collapsed when it was not hit by a plane!], let’s start to mind our own business around the globe, and let’s start to recall what the Founding Fathers intended when they launched their marvelous experiment of popularly sovereign governance in Philadelphia. That is what we really must not forget and what we should celebrate yearly with vigor and appreciation and resolve.

What's Wrong with the Juries?

So, what has happened to the jury system? The Framers adopted the common law jury as something essential to be installed in our Constitution, because they believed that the best safety we had from our government was that liberties could not be taken by government without the say-so of a group of neutral citizens. And those citizens were to be skeptical of their government, which was the real meaning of proof beyond a reasonable doubt and of the burden lying with the government, before liberty could be stolen. And the jury, constitutionally, could adjudge the facts and the law – jury nullification was and is a vital fixture in the firmament of our rights. Of course, judges now, being jealous of becoming irrelevant if the jury makes judgments about the law, will not permit nullification arguments and will shriek that the jury can only assess the facts, not the law. But the jury has the constitutional power to nullify prosecutions by disagreement with the law and with how it is implemented in any particular case, and nothing the judiciary can shriek about such undermines that power. The Framers gave it and the judiciary cannot take it away.

But notwithstanding the importance of the jury in protecting people’s rights, juries increasingly cleave to the government. Juries, during the voir dire process, will claim that they do not believe everything government says, they do not think cops are telling the truth just because they are cops, and they know the defendant is not guilty unless or until they find otherwise, and to the requisite level of proof. However, they smile and nod when a shiny-badged cop says things, and look askance when defense witnesses say things, and forget that the government has an agenda in all cases which could well result in untruths being told. But they just don’t want to believe this cop is lying or shaving the truth; they know it happens elsewhere, but…, oh, just not here!

Wow, we are tossing into the ash can one of the great constitutional protections we have, and we are thereby dissolving into just another banana republic police state. We weep when we muse that our boys and girls are dying in distant lands to protect our rights here, but we are utterly oblivious to the rights they are dying for, and while they protect them over there, we tear them up over here.
Every time a juror blindly believes their beloved cops, or the government position, against contradictory evidence [or even without contradictory evidence!], they sully the memories of the founding fathers who long ago died for us here, and of the young kids who are still doing so over there. For shame, for shame.

First they came for the murderers, with insufficient evidence, and I did not vote not guilty, because I was not a murderer.

Then they came for the kidnappers, with insufficient evidence, and I did not vote not guilty, because I was not a kidnapper.

Then they came for the drunk drivers, with insufficient evidence, and I did not vote not guilty, because I was not a drunk driver.

Then they came for me, with insufficient evidence, and there was no one left with courage to vote not guilty.

Don't Ask; Don't Tell

Although we do not intend to turn this blog into a Gay Rights Forum, we are unwaveringly devoted to enforcing and protecting the human rights and constitutional rights of all, so it is important to point out the recent ruling regarding the “Don’t Ask; Don’t Tell” military policy of the federal government.

In Log Cabin Republicans v. The United States and the Secretary of Defense, here in the Central District of California’s U.S. District Court, Plaintiff Log Cabin Republicans attacks the constitutionality of the statute known as the “Don't Ask, Don't Tell” Act (“the Act” or “the Policy”), found at 10 U.S.C. § 654, and its implementing regulations. Plaintiff's challenge is two-fold: it contends the Act violates its members' rights to substantive due process guaranteed by the Fifth Amendment to the United States Constitution, and its members' rights of freedom of speech, association, and to petition the government, guaranteed by the First Amendment.

To remind all of the issue, the Act provides that any member of the U.S. Armed Forces who engages in homosexual conduct is subject to discharge unless the servicemember is able to demonstrate that he or she has no propensity to engage in “homosexual conduct.” Under the Act, homosexual conduct includes sexual acts with persons of the same sex, admissions that one is homosexual or bisexual, and attempts to marry a person of the same sex.

The “Don't Ask, Don't Tell” component is not expressly within the statute, but instead describes a prohibition on speech and association regarding one’s non-military reality, and the suit essentially urges that the homosexual reality is protected by the liberty clause of the Fifth Amendment [along the same lines discussed in the Prop. 8 ruling], and the implicit prohibition on talking about it or joining groups pertaining to it or petitioning the government to change the policy about it violates the First Amendment speech and association and redress of grievances clauses.

The defendants [U.S. Government and the defense secretary] presented no evidence in the trial, assuming that their “we are the government and we accordingly know best” arrogance would carry the day. The plaintiffs [Log Cabin Republicans] introduced a lot of evidence, by way of testimony and studies and expert opinions, and on the fundamental rights component of the attack, the Court, Judge Virginia A. Phillips, had little trouble siding with the plaintiffs [as is generally the case when the other side introduces nothing but subjective arrogance].

The Court found that the Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described in the trial memorandum. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden.

Thus, Plaintiff, on behalf of its members, was deemed entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment. That is, the Act is unconstitutional in that it violates the fundamental liberty interests protected by the Fifth Amendment. And then there is the First Amendment matter.

Recall the relevant portions of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Plaintiffs urged that the Act also violated those protections.

Is the Act concerning conduct, or concerning speech? Does the content of speech become regulated by, and punished by, government here?

The Act in subsection (b)(2) requires a servicemember's discharge if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . ." 10 U.S.C. § 654 (b)(2) (emphasis added). The Act does not prohibit servicemembers from discussing their sexuality in general, nor does it prohibit all servicemembers from disclosing their sexual orientation. Heterosexual members are free to state their sexual orientation, "or words to that effect," while gay and lesbian members of the military are not. Thus, on its face, the Act discriminates based on the content of the speech being regulated. It distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted.

The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic. As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

The Court discussed the technicality between such standards in non-military settings and military settings [the latter allowing somewhat more regulation than the former]

In keeping with a well-established rule of deference, regulations of speech in a military context will survive Constitutional scrutiny if they “restrict speech no more than is reasonably necessary to protect the substantial government interest.” Without attending to the technicalities of the well-thought out discussion, the Court found that the Act fails this test of constitutional validity. Unlike the regulations on speech upheld in other settings, the Court found that the sweeping reach of the restrictions on speech in the Don't Ask, Don't Tell Act is far broader than is reasonably necessary to protect the substantial government interest at stake here.

The Act's restrictions on speech not only are broader than reasonably necessary to protect the Government's substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.

Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities. An eighteen year old, stationed in Bahrain, felt restrained from complaining about the extreme harassment and hazing he suffered because he feared that he would be targeted for investigation under the Act if he did so.

The Act prevents servicemembers from openly joining organizations, such as the plaintiff in this lawsuit, that seek to change the military's policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances.

Furthermore, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e-mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized) reader to discern the writer's sexual orientation.

These consequences demonstrate that the Act's restrictions on speech are broader than reasonably necessary to protect the Government's interest.

Moreover, the Act's restrictions on speech lead to the discharge of servicemembers with qualifications in critically-needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants' own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all-volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government's interests.

And for all of those reasons, the Act was held to be unconstitutional in violation of the speech and petition clauses of the First Amendment.

Anyone interested should read about the credentials and accomplishments of the people who were punished under the Act; the testimony is sad and chilling.

One would hope, with all of the blather on the blogs and by the pundits about the Constitution these days, that people start to come around to understand that there is a realm of fundamental elements of human dignity that are supposed to distinguish us from the orangutan, and very often that distinction finds its voice, and its enforcement, in constitutional rights.

This is an excellent decision because of, if, for no other reason, its well-elucidated lessons about what our Constitution is all about. Or supposed to be about. It is also excellent, though, because of the human beings who got their day in Court, with a judge who understood, cared, and has courage to do the constitutional thing.

capmotion

http://www.kennedyroelaw.com

DUI Checkpoints

With Labor Day close upon us, people need to prepare themselves for those pesky DUI checkpoints, because those liberty infringement devices are increasingly the rage in local law enforcement. They are not popular because they are effective, because statistically they are not. They are popular because they are funded by grant funds from Sacramento, that come from Washington, DC, that had been taken from us back here; it is a big, costly circle that your and my money has traveled to then screw over you with.

The grant system is one of the greatest evils in policing, because grants are essentially a political bounty for pressing certain types of cases; the merit of the case does not matter; the filthy lucre funding its processing drives the affair. And nowhere is the evil more manifest than in drunk driving, DUI, DWI, or whatever label.

MADD, the lineal descendants of the Women’s Christian Temperance Union of old, which gave us Prohibition and the 18th Amendment, are furious that the 21st Amendment repealed Prohibition, but their neo-Prohibitionism is even more dangerous than its ancestor oppression. They have, with phony statistics and threats of placard-laced demonstrations, conned or intimidated legislators, judges, DAs, and cops into increasing harshness regarding drunk driving, and so they all lose their soul in the evil bargain.

Of course, if the Framers’ will be done, civilian jurors would be protecting accusees from governmental overreaching, but jurors have increasingly lost their independence and have come to believe that their government is good, reliable, trustworthy, and to be heeded. Yeah, idiotic as it sounds, people on juries cannot seem to see, or do not want to believe, the corruption in their very presence. Perhaps their own sense of security would be lessened if they came to understand how corrupt their government is in these things, but their lack of institutional skepticism has dangerously undermined the very foundation of our jury trial system.

The truth of the matter is that government makes a bundle from drunk driving, between the block grant moneys from DC, to the penalty assessments on the fines [now about 400% of the base fine, if not more], to the various fees, to the costs of the rehabilitation programs, to the need for more DAs and judges to try the matters. The fiscal corruption underlying DUI investigation and enforcement would make Bernie Madoff look like Mother Teresa in comparison.

“But what of the dangers of drunk driving?” Garbage! The system, at the insistence of the pushy harpies from MADD, have created the category of “alcohol-related [accidents, deaths, incidents, etc.]” in place of drunk-driver-caused [same],” because the incidence of those things being actually caused by drunk drivers is miniscule, and that truth would undermine their political agenda. But something gets into the stats as being “alcohol-related” if a sober driver hits a drunk pedestrian; if a sober driver’s drunk uncle in the back seat is thrown out when the car flips over because its tire fell off; if a drunk driver is sitting lawfully at a light and a sober driver negligently runs into him; etc.; that category has nothing to do with who caused what. Yet those “alcohol-related” stats are the ones that supply the pneumatic numbers that make everyone go nuts about drunk driving.

Drunk driver caused accidents are in single digit %-ages, which would not help the MADD harpies, nor the block grant ghouls, nor the legions of government employees who profit from DUI enforcement and prosecution and conviction.

So, what of checkpoints – they are legal, are they not? Well, it all depends on what you mean by legal. The Framers would not have tolerated such a suspicionless invasion of privacy. As Justice Clarence Thomas, a student of the Constitution whose scholarship on the subject is almost as faithful and pure as mine, has opined, “I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.” But, you see, most judges, even up to the U.S. Supreme Court, are politicians; few are scholars, and even fewer are faithful to the finding principles.
And those politician judges have found that a properly erected and run[!] checkpoint is “legal,” just as other politicians have found it beneficial to set up the scheme in the first place. But they do have to be properly erected and run, and very few are so, even for the watered down constitutional standards of the neo-Prohibitionist judges.

But beware, if you go through them. First off, watch, look, and listen, and if you see one ahead, turn off; that is legal. Don’t give the constabularial ghouls the opportunity to tell you to stop, tell you to wait, tell you to go, tell you to blow into their hands, command you to answer questions, etc. See, that is part of what is going on here. Cops like the checkpoints, whether they get any arrests out of them or not, because they then have the chance to play “we’re the Man; we’re in charge of your freedom” to the citizens thus stopped and inconvenienced. This is an incident of police statism, not public safety.

The fact of the matter is that communities that do not receive these grant funds do not do checkpoints on their own dime, because they give miniscule results for the efforts expended. There might be 500-800 citizens stopped while going about their business, and from that will come only 1-3 DUI arrests, if that many. Every police chief worth his stars [and some wear five, like General of the Army Douglas MacArthur!] will confess that saturation patrols are far, far more effective in apprehending drunk drivers than are checkpoints.

So, first try to avoid it by turning off. If you are in one and get approached, hand your license and registration and proof of insurance and say you do not want to talk, period. You don’t have to talk; you don’t have to say where you are coming from or going to or whether you have had anything to drink. Decline to say anything.

If they then shunt you over to the investigation line, be polite, but answer no questions, say nothing, and do not perform any objective symptoms [field sobriety] tests – you have a right to refuse, and politely do so, on advice of counsel, this counsel! If you are arrested, of course, you have to submit to a breath or blood test. Ask for breath, and then a back-up urine test, which is your right. When they say you cannot have a back-up urine test, politely request that the officer record that you have requested it. Then say nothing else. Anything you say to the police can and will be used against you, either in the order you said it, or in any order than helps their case. The cops are not there to help you. They are there to put DUI cases together. They make money by putting cases together; they make nothing by being nice to you and letting you go, so they will not. Ever.

Checkpoints are tyranny, DUI arrests and convictions are the product of evil maneuvers by purposeful people, and all aspects of both the stop and of the prosecution are fightable. Do not cave in, or else evil people will thereby be emboldened to harass others.
If you do get snagged, though, there are things to be done, if you have the right lawyers. Call us.

http://www.kennedyroelaw.com

Proposition 8 Curiosity

One hears all sorts of absurdities and points and positions pertaining to the same-sex marriage issue, and it is important to sweep away prejudices and to look solely at the constitutional points. The first thing which should give one pause, if he has any sort of familiarity with the views of the Framers of the Constitution, is that “the judges are stealing the will of the majority” types of arguments are constitutional hokum. The Framers set up a constitutional, representative democracy just so pure majority will would not carry the day; so that majorities could not tyrannize or oppress minorities, and the vehicle for preventing such was the proper application of constitutional law by judges. Quite bluntly, the Framers did not trust majorities!

Judicial review did not grow from latter-day “activist judges” working some tyrannical, evil, oligarchical will to strip the majority of their right to govern; instead it is part of the discussion of the Framers when designing the judicial branch, and it is discussed most helpfully in Federalist 78: the judges were expected to “void” laws that violate the Constitution.

The process of judicial review involves a judge laying a challenged enactment beside the Constitution and deciding if, and how tightly, it fits. And that is what happened with Proposition 8, the anti-same sex marriage state constitutional amendment. Apart from the wisdom of amending the constitution by popular plebiscite [idiotic notion], the substance itself, laid next to the Constitution, spilled outside of the boundaries of the Due Process Clause and the Equal Protection Clause of the 14th Amendment, and hence it is void.

Before one takes issue with that observation, one should read the 136 pages of the ruling, and most negative critics have not. Indeed, most negative critics know little about the Constitution – they are generally driven by emotion, sprinkled with banal and superficial spoutings about Christology. It should be noted that the KKK burns a “Christian” cross to make their point and they pretend the Bible supports their perverse prejudices, and most Christological opponents of same-sex marriage are quite indistinguishable from the KKK in that regard. It should be noted that Christ, who brought to Earth a New Covenant, eliminating some of the harshness of the Old Testament standards and preaching “love they neighbor,” never said anything against gays or gay marriage; He said much, however, against divorce and adultery!

Here, the institution of marriage is deemed [by cases long before this one] to involve a fundamental right, which is in the realm of substantive due process of the 14th [and 5th] Amendment. Moreover, treating similarly situated people differently implicates equal protection values of the 14th Amendment. If government wants to invade the fundamental rights arena, there must be strict scrutiny of the measure. The burden is on government, where strict scrutiny is the standard, and the government must show that there is a compelling state interest, and that the measure is narrowly tailored to address that interest, and it must have involved the least restrictive means to address that interest.

So, as some of the absurdists pose, prohibiting marriage to a dog or one’s sister or to more than one spouse could easily pass the strict scrutiny test and the measure would be illegal. But one cannot say the same of same-sex marriage, and that is largely because the proponents of the prejudiced position did not carry the burden that there is a compelling interest in illegalizing same-sex marriage – they failed in the factual showing, they failed the strict scrutiny test, which generally dooms constitutional litigation.

Then, we recall from famous footnote 4 of Carolene Products, that government action that singles out for negative treatment discrete and insular minorities triggers equal protection analysis. That analysis can run on one of three tracks, the strict scrutiny track, the intermediate scrutiny track or the rational basis track. On the rational basis track, the least restrictive, the burden is on the side attacking the measure to show that the measure is not rationally related to a legitimate governmental interest. Here, the opponents, marshaling impressive authorities, revealed that factually, and with an historical context that might have evolved away, there was not even a rational basis supporting Prop. 8; the court did not need to entertain strict or intermediate scrutiny analysis, because factually the measure failed on any track.
One of the critical equal protection issues here is that if George wants to marry Fred; he cannot: he must be Georgina to do so. Yet George and Georgina are of equal rights in all other pertinent respects. Nothing lucid in the law can treat George and Georgina differently, especially when the subject is a fundamental right.

It is interesting that the same pro-Prop. 8 sorts who lament the death of majority rule they think is represented by the injunction against the measure are the same sorts who were gleefully celebrating the two Second Amendment cases that threw out anti-gun legislation, which was also installed by a “majority,” and they were likewise thrilled by the Virginia federal court attack on “obamacare” from three weeks ago, likewise installed by a “majority.” Their biased skirts are showing with those expressed inconsistencies.

Judge Walker’s observation, when he refused to issue a stay pending appeal, that the intervenors have no standing to press the appeal [which I proclaimed on the air a week before he and the pundits mentioned it!] will, I think, carry the day. Intervenors, who are really officious intermeddlers in others’ affrays, are like lampreys on the belly of the shark: they travel so long as the shark swims, but when the shark stops, they have to stop too. Intervenors have no independent stake in this case, and if the court of appeals is faithful to Article III standards, it will dismiss the appeal. Of course, I never presume that Courts will be faithful to the Constitution nor to the law, but hope remains eternal.