Constitution

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Common Miranda

It always amazes me how politicians who hate “Big Federal Government” can say with a straight face that people should have few rights when they are accused of a crime. Recently there has been a rash of complaints from these idiots over the fact that the Boston bomber was (gasp) given his Miranda rights.gavel

Last I checked, the first ten amendments weren’t called the Bill of Privileges.

Rights are meaningless if we only give them to people we like. Who needs freedom of speech when you say nothing offensive? Why care about freedom to assemble if you’re just having a picnic? Rights are there for unpopular views and the things we don’t like.

Giving someone the right to remain silent, to see a lawyer, and to not be railroaded by Big Government protects all of us, and keeps us from becoming a police state. I am astounded how conservatives who rail against government “ruling over us” never complain when they rule over us in criminal proceedings.

People also misunderstand Miranda. (I know many of my clients do.) They think that if the police don’t “read you your rights” that the case will be thrown out of court. Wrong, wrong, wrong.

Let’s talk about the original Miranda case, which happened in the early 60s. Ernesto Miranda was arrested for suspicion in a terrible kidnapping and rape case. The police took him in and questioned him without a lawyer and without telling Miranda (who barely spoke English) that he had those rights. He eventually confessed. The Supreme Court held that because his confession was not given “knowingly, intelligently, and voluntarily” it could not be used in court. So did he go free? Not at all. They had plenty of other evidence to convict him even without the confession. And he spent years in prison.

There are some times when all the police have is a confession. Then the case would die. I had a case like that. I won, the DA appealed to the Pennsylvania Superior Court, and I won again. My client was a scared woman who had never been arrested before, was coerced by an officer and told that if she didn’t confess to a theft, he would handcuff her and drag her out in front of all her co-workers and tell the media. Clearly that was not a “voluntary” confession.

But that doesn’t happen very often.

Generally, police like giving Miranda rights because it protects them. If someone talks after being given the rights, it is practically impossible for an attorney to keep that out of evidence. You’d be surprised how many accused criminals talk before seeing a lawyer, stupidly thinking they can make things better by just telling their side of the story. And then they hire me and I’m stuck with a confession I can’t get rid of.

So let’s celebrate our freedom from unconstitutional violations of our right to remain silent, and cheer the Attorney General’s decision to give this bomber his rights. We are better than the people who attack us. We mean what we say in the Constitution. And we are better Americans because of it.

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Wasting taxpayer money to fight sex you don’t like

Tea Party favorite Ken Cuccinelli is the Attorney General from my home state of Virginia. You know, the person who is the top attorney in the state. The guy to go to when you have a question about the Constitution. The expert on the law.

Oh, wait, did I say “tea party favorite”? Never mind. All bets are off once you say those words.

Kenny Boy has decided to spend taxpayer money fighting for an anti-sodomy law in Virginia, to prohibit all sex except vaginal intercourse. As anyone who is a lawyer knows, all such laws were struck down by the United States Supreme Court in the Lawrence v. Texas case ten years ago.

The Constitution has never stood in the way of these people before, though, especially when it comes to icky sex things such as oral sex, gay sex, abortions, or other personal choices having to do with one’s own body. These prudes want to make sure no one does anything that they personally don’t like. (As an aside, have you noticed how almost all of the loudest anti-sex protesters later turn out to be closeted themselves, doing the very things they rant about?)

Fortunately, the very conservative 4th district federal court ruled unanimously that the law was what it was. Surprise, Ken!

This guy is now running for Governor of a state that is becoming bluer by the day. Let’s hope he loses and Virginia remains for lovers.

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Top 5 reasons to get rid of the Electoral College

1. It will make every vote count. I grew up in Virginia which, at the time, was reliably Republican. My vote meant little in the Presidential race. Then I moved to Massachusetts and later New York where my Republican friends’ votes were meaningless.

That’s ridiculous. With the winner-take-all elections we have now, people who are in the minority party in their states have no real reason to come out and vote.ElectoralCollege-638x370

By having a popular vote for the President, every vote will count. Democrats in Utah and Republicans in Hawaii won’t feel their votes are wasted.

2. It will force candidates to campaign everywhere. Right now, there are states that rarely see a political campaign, where the candidate visits only to raise money and then disappears. The candidates also pay an inordinate amount of attention to whatever issues are important to those states that are in play, even if those issues would hurt the rest of the country. (Admittedly, some of that will still go on with our current primary system.)

Getting rid of the electoral college means a vote is a vote, no matter where it is. A vote in Idaho is meaningless to a Democratic candidate now, but it would be worth just as much as one in a swing state if we get rid of the electoral college.

3. It will help get people in those non-swing states involved. It should increase voter participation, and even help the local economy.

4. It will get rid of “red states” and “blue states.” This concept does nothing to help political discourse, and only divides us more.

5. It will make it clear that the President represents the people, not the states. And, more importantly, all the people, not just the ones in the states that elected him.

Right now, a President can lose the election and still win. That has happened three times in our history, most recently when Gore got more popular votes than Bush yet Bush won the electoral college. We ended up with a guy a majority of Americans voted against. How is that democracy? That’s winning by a loophole. And it could easily happen again.

(EDIT:  Be sure to read the very extensive debate on this topic in the comments!)

(EDIT #2:  Obviously, this was written before the 2016 election, so now we have two examples of a candidate winning the popular vote and losing the election within a period of 16 years.)

(EDIT #3:  If you’re really interested in this topic, I dedicated an entire chapter to it in my book HOW TO ARGUE THE CONSTITUTION WITH A CONSERVATIVE.)

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Listening to experts

Doctor: “Based on my examination of you and my experience, I can say with a degree of professional accuracy that you have the flu.”

Patient: “Thank you, doctor, you obviously know best.”

Auto Mechanic: “I’ve been studying cars for years and know them backwards and forwards, and can say without fear of error that the problem is the starter.”

Car Owner: “You certainly know your work better than I do.”einstein11a-7-web

Lawyer: “I’ve spent years getting my law degree, studying the Constitution and the laws and taking constant continuing education classes. I can say with certainty, having studied the cases and history, that the Supreme Court has declared that the 2nd amendment is not absolute and reasonable restrictions on gun ownership and use are perfectly Constitutional.”

Citizen: “Oh yeah? What do you know? I know that the exact opposite is true and there’s nothing you can say that will change my mind.”

That was something I posted on my Facebook page a few months ago that generated a bit of conversation (including notice from my US Representative who “liked” it).

Some folks tried to read more into this than was intended. I am not saying that every “expert” is always right, or that you should never question authority — far from it. My point was that when you personally have little or no knowledge of something, paying attention to an expert is not a bad thing. And disagreeing without having any evidence to support your view won’t get you far.

Doing some research, educating yourself, and presenting an argument based on facts is different. It is certainly possible to make yourself into someone knowledgeable.

However, discounting an expert’s opinion simply because he or she disagrees with you doesn’t seem like the best way to win an argument.

Note that disagreeing with what the law is is not the same as denying the law exists. There are lots of laws I disagree with. I think laws denying gays the right to marry should be declared unconstitutional, in my opinion. But they currently are not.

My problem is when I say “Here is what the current law on the Constitution is” and have someone respond “No it isn’t” and be absolutely wrong and unwilling to accept that. Currently, the Supreme Court has ruled that the 2nd amendment allows for individual ownership of guns but also that this right is not absolute. That’s the law. There should be no debate over that. It’s clear cut and in black and white for anyone to read. When gun lovers say “Nuh uh! The 2nd amendment is absolute!” they are merely giving their opinion and are, therefore, wrong. They’re as wrong as people who deny that evolution is real simply because it goes against what they personally want.

I guess, in a roundabout way, I’m agreeing with Isaac Asimov: “Anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge.’”

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The Slippery Slope

Banning assault rifles obviously means that all guns will be banned eventually.

Just like how allowing gay marriage means we will have to allow people to marry penguins. And how legalizing marijuana means we have to also legalize heroin.

Just like our history! We installed a minimum wage and the next thing you know, the government is setting all salaries for every single person. We gave women the right to vote and now all children get to vote, too. We registered cars and made provisions for their safety which immediately led to all cars being banned.

Because, of course, we have no possible way of doing anything reasonable as a population and can only do the most absurd outrageous outcome at the end of the slippery slope.

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Do the Words “Well Regulated” Mean Anything?

See, here’s the problem.

The words “gun control” make the radical gun owners’ heads explode. Despite the fact that the vast majority of gun owners agree with things like background checks and licensing and other controls to help keep guns out of the hands of criminals and the insane, the radicals see the mere thought of even the slightest bit of regulation as a violation of the Constitution greater than any other.

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And this is despite the fact that the Constitutional amendment in question is the only one that uses the words “well regulated.”

Go figure.

The First Amendment clearly says that “Congress shall make no law” concerning freedom of speech and the press and religion and so on. Yet, there are all sorts of regulations on our speech which do not violate the Constitution at all. There are restrictions on the time, place, and manner of the speech (Can’t yell “fire” in a crowded theater); there are restrictions on speech that can cause a “clear and present danger” (you can’t incite a riot and then claim as a defense that you were simply exercising your First Amendment rights); there are restrictions on obscenity, military secrets, and laws against libel and slander.

And that amendment doesn’t even carry the words “well regulated.”

So what does that mean in the 2nd amendment? Why would the founders have added those words if they were meaningless?

Some will point out that it says “well regulated militia” and therefore the law only applies to the military. Well, by that definition, only the militia can have guns.

And even so, I wouldn’t object if non-military persons had to follow the same rules as our military when it comes to guns. No one joins the army and is handed a machine gun on the first day. No, first you have to be cleared to even be in the military in the first place to make sure you’re not a felon or insane. Then there is training to go through; there are safety courses; and there are many people overseeing you at first. You know — the same kinds of restrictions many of us feel are reasonable for anyone wanting to own a gun.

I have friends who are gun owners. Not one of them would be prohibited from owning their guns with these restrictions. Yet a few of them seem to think that any restriction is equivalent to “the government taking their guns away.” No, it’s more like the government taking cars away from people who don’t know how to drive, have no license, and/or are criminals or insane.

Sounds nice and “well regulated” to me. No Constitutional problems there. (And, once more, although the radical gun owners always point out the recent Supreme Court decision that says that citizens have the right to own guns, they ignore the parts of the decision that allow for the exact kinds of regulations I’m talking about here.)

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The Constitution as Our Bible

Some people view the US Constitution in the same way fundamentalists view the Bible, as if it were written on stone, never changing, and can never be questioned.constitution_quill_pen

These Constitutional Fundamentalists have something in common with their religious counterparts:  They believe there is only one interpretation of their holy book and — here’s the amazing part —  that interpretation is always exactly in line with their own personal views!

Most of us who study the Constitution for a living are aware that the Founding Fathers, though great men, were not gods.  We know that the Constitution was written by politicians, who made compromises and made sections deliberately vague because that was the only way they could get the damn thing passed.

Those who “know” the intent of the Founding Fathers need to acknowledge that the only thing we can really say is that it was the intent of a majority of them to pass the Constitution as a whole, and they did not necessarily agree on what the words meant at the time.  After all, within a few years, there were cases before the Supreme Court to determine its meaning and its application.  The Founding Fathers themselves were still around and they could not agree!  To think that there is some magical interpretation we can know today, hundreds of years later, is ridiculous.

(NOTE:  This is the first real post for this blog.  There is a lot more I could say on this issue;  in fact, entire books have been written on this topic.  However, my goal with this blog is just to throw out one basic idea per post, to stir discussion, and then to follow up on this with other similar ideas in follow-up posts.  For instance, a future post will discuss whether the interpretation of the Constitution should change as society changes, so hold your comments on that issue please.)