Sunday, October 31, 2010

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.

Friday, October 29, 2010

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.