Constitution Day

On September 17, 1787, the Founding Fathers, or rather that special subset now known as “the Framers,” signed the most influential document in American history, the United States Constitution. This document established the framework of our government and the rights and freedoms that “We the People” enjoy today. This will be the 225 anniversary of that founding and fundamental charter of rights and duties and structure and power, but how many people really care, or even know what it is all about?

Many people, in and out of government, blab with often faux reverence about the Constitution, and trumpet about constitutional rights, but how many have bothered to read or understand the Constitution?  I have found that a far higher percentage of people from foreign lands [students, immigrants, naturalized citizens] know the Constitution than do citizens born here.  Too many take the Constitution for granted, which is why absurd things can happen and be said on the political and judicial plane without shrieks of outrage and demands for change and correction.

The Republic was established “by the people,” introducing for the first time in recorded history the notion of popular sovereignty – the doctrine wherein all governmental power derives from the people, not from an anointed, divinely installed monarch: the people are the masters, and the government the servant.  But one would not know that from observing some of the things government does to its people – or that the people’s government does to its masters.

Government gets away with indignities toward the masters because the masters have remained happily ignorant of the founding premises of this Republic.

The upcoming election, or the rhetoric surrounding the campaigns, is emblematic some of the more critical, or pivotal, concerns facing the founding generation.  There are two basic models for the relationship of people to their government.  Government can operate as the perpetual nanny, making fundamental choices for the people, taking care of the people, deciding how much of the fruits of their labor the people can keep while taking an enormous percentage for the “service” of that nannyism, deciding what that labor should be, practicing costly paternalism so that all are safe, even if also individually repressed.  That was the view of King George III and of the Obama-ites, and of the Democrat Party: they know better than you what you should do about fundamental matters, and they will seize as much power as necessary to have their will be done, because the role of government is to make choices for you that serves their view of the public interest.  That is the big government, small liberty model.

The other model is one of small government and big liberty, with choices being made by individuals, with the fruits of their labor being largely kept by those who produced it, with the nature of the labor being a product of free choice acting on a free market-determined economy, with individuals rising or falling based on their own choices and efforts, with power limited to specific and enumerated areas, and with boundless and growing individual liberty.  That was the view of the Framers and of the founding generation, and of certain elements in the Republican and Libertarian Parties, and of originalists like me, and of [to varying extents] the challengers to the Obama-ites: they do not know better than you what you should do with the fruits of your own efforts, and even if some of them think they do, they concede they do not have the power to decide such – the making of those choices is not a government function.  That is the small, limited government, big liberty model.

Between now and September 17, we will have more discussions here about the Constitution, so that when the big day comes, people can finally realize that it is a big day and celebrate it accordingly.  We would not have some of the idiotic comments I hear daily about what the government is doing and should do, and what the two sides of the presidential contest claim they will do if elected, if the people were really educated about what their government was, and was not, empowered to do.

It is interesting that in 2004, federal legislation was passed that requires all schools receiving federal benefits [which means virtually all schools, and all public schools] have an educational celebration about the Constitution on September 17.  How many of you or of your kids are exposed to that event every year?  I have rarely found a school that honors that federal command.

In her retirement speech, Justice Sandra Day O’Connor, the first female supreme court justice [appointed by Reagan], warned that we will lose the Republic unless the people educate themselves about what their Republic is all about – or supposed to be.  I shall try to correct part of what is lacking.

Conservative Attorneys Protect Liberty; Liberals Serve Power

When I point out that fellow constitutional defense attorney John Adams was, like me, a conservative, indeed he was an originator of the American conservative movement, it causes confusion in the minds of some, who think conservatism and rights-protection are dipolar concepts; naïve people think individual rights are protected by liberals and power is advanced by conservatives.  Nothing could be further from the truth, the concepts properly understood.

It is actually the “liberal,” under the modern usage of the misunderstood term, who sides with police power and away from individual liberty, because, as we see from their standard bearer Barack Obama, they are more into collectivization of decision-making than into individual liberty.  What does that have to do with the question?

As Obama let slip recently, to the horror of some liberals who do not like too, too much truth coming out, the liberal view is that individuals are not responsible for what appears to be their achievements; it is the collective that is to be given credit for individual's only apparent successes; indeed, Obama was almost insulting in his declamations against those who would have the temerity to propose that they were responsible for their own successes.  And that attitude translates to the discussion of liberty, and to the nature of defense of those accused of crimes by the collective police power of the state.

You see, if the collective power of the state decides you are a disruption to the peace or security or safety of the community, liberals, who are agents of that collective idea, are far less likely to aggressively attack that collective to save the individual, because individual liberty to liberals is not the ascendant value.

But for conservatives [true conservatives, not police power extremists, who can be of the left or of the right], individual liberty is the intended default position in this Republic.  Therefore, government action which invades precincts of individual liberty is anathema to those devoted to the founding premise that liberty must always trump power, individualism must always trump collectivism.

Indeed, one of the classic examples that modern liberalism is anti-individual liberty can be found in the line-up of justices in the odious Korematsu opinion, which held that the collective interests of the state, even when based on fraudulent paranoia,  was more important than individual liberty.  The Justice Douglases of the world unrepentantly sided with the collective values and against liberty and authorized the incarceration of American citizens, and the government theft of their property, based solely on race, against the conservatives who were aghast at the notion, while we were fighting a war where people were singled out and savaged by another government solely on account of race.  That is, we fought against race-based butchery in Germany and practiced its second cousin right here ourselves, because liberals were in power here.

And you see what I am talking about in this by the nature of my own criminal law practice.  In my true defense of those accused of crimes, I advance a no-holds-barred attack on government when it invades people’s individual liberty, while some of my “liberal” colleagues approach their supposed defense of those accused of crimes by trying to get the best deal or the most comfortable punishment or rehabilitation in lieu of punishment.  That is, I command the Hun to back down; they consort with the Hun to not be so harsh, but with sympathy to the Hun’s “need” to preserve order.

Conservatives work to protect liberty; liberals work to make one’s lack of liberty as comfortable as possible, within the framework of the collective powers’ interests.  Conservatives rebuff power and elevate liberty; liberals genuflect to power and sneer at liberty.  Do you want a rebuffer or a genuflecter?  You are free to choose: that is an attribute of Liberty, but not of Power.  http://www.kennedyforlaw.com

Both Suspects and Attorneys Should Sometimes Shut Up

In law, as in so many other endeavors, sometimes the most difficult thing for people to do is to keep their mouths shut. Suspects want to "explain," as if the grant-driven government is going to have pity and drop its investigation. And attorneys want to unnecessarily find out things or prematurely argue things, reminding the government that they have forgotten to investigate, or to file, or to seek a warrant, or whatever. Sometimes the attorneys are the biggest problem, because the craft focuses, inordinately, on talk, and writing, and blabbing.

Far more cases are put together at the investigation stage because suspects can't shut up, and then proceed to government success at the filing and prosecution stage because lawyers can't shut up, than would otherwise occur in the normal course.

One thing suspects [or people who are not suspects until they open their mouths!] cannot fathom, because it is counter-intuitive to a generation that might have been brought up on the naive notion that government is your friend and is only there to look out for you[!], is that government is not your friend. You might be the sovereigns; you might be the electors; you might be the taxpayers funding their living and thereby your own undoing, but government has only one friend, and that is itself. If government suspects you, or your friends or loved ones, or whomever, politely decline to say anything. Politely. Decline.

Very often a response to that advice sounds in "but I am an honest person." Uh, Hello! I didn't say to lie to the cops; I said to shut up. And you might be an honest person, but government is not - they are allowed by the courts to lie to you to get what they want, even though if you lie to them, it will be deemed consciousness of guilt and possibly a separate and distinct new crime. There is a different standard as between what we [the masters] and our government [the sevants] can do, and the servants are allowed to get away with far, for more than the masters.

The same "shut-up" advice goes for attorneys - yeah, I know you concentrated all through law school of how to verbalize winning [and sometimes scholarly sounding] points, but often now the best argument is none, if it is your clients' liberty and not your vainglory which is of uppermost importance. And if that priority is not what animates you, get out of the profession.

We fought and won a Revolution partially to keep government out of our houses and out of our mouths, and we sully the memory of those blood-soaked heroes [when "hero" had a real, and not merely propaganda, meaning] every time we talk too much or consent too much and thereby shift the balance toward power and away from liberty.