By now, we're all familiar with the Restoring Our Constitution Project, inspired by Jay Elias. The project resonates with us is because a central theme of the BushCo administration has been ignoring, negating, and destroying the Constitution piece by piece. Simultaneously, one of the things that annoys so many of us about conservative judges who fashion themselves "originalists" is that the Constitution is inherently supposed to be a living document, flexible enough to respond to the evolving standards of society but durable enough to ensure that civil liberties are always respected.
And because the Constitution is a living document, it is not the same today as it was in 1789 when it was first conceived by the Founders. It is not even the same document as it was in 1953, when Earl Warren became the Chief Justice of the Supreme Court.
Warren was appointed by President Eisenhower, who thought he would be a very conservative justice; as the Republican governor of California during World War II, Warren had supported the internment of Japanese Americans, and as a district attorney in Alameda County in the 1920s, he'd earned a reputation for being very "tough on crime." Yes, Eisenhower had every reason to believe that Warren would be a conservative justice. As it turned out, though, he was anything but conservative; indeed, Eisenhower once famously remarked that appointing Warren to the bench was "the biggest damned-fool mistake" he ever made. You see, Warren was the father of the Due Process Revolution in American criminal justice.
When it comes to criminal justice, there are four amendments to the Constitution in particular that would seem to apply.
The Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fifth Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
And finally, the Eighth Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
These are all protections we perceive as fundamental and inalienable. We have a right to be protected against unreasonable searches and seizures (and "seizure" includes detainment of any sort). We have a right not to incriminate ourselves -- whether through torture or otherwise. We have a right to be protected from double jeopardy. We have a right to due process. We have a right to competent counsel if accused of serious crimes. We have a right to speedy, public trials before juries of our peers. We have a right to be protected against excessive, cruel, and unusual punishments.
But as the Constitution was originally applied, these protections were not absolute. Sure, we were protected from the violation of these rights at the hands of the federal government, but we had no such protection against the states. When the Founders wrote the Constitution, they were primarily concerned with the power of the federal government to violate the rights of private citizens; they weren't so concerned about what states would do to violate the rights of private citizens. And when it came to criminal justices, most (if not all) matters were left in the hands of the states.
As you might imagine, this led to all kinds of abuses. After the Civil War, however, it became clear that something needed to be done to protect citizens from abuses heaped upon them by the states out of capriciousness, racism, or random idiocy. Hence the Fourteenth Amendment, ratified in 1868; the relevant sections are highlighted:
Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Thanks to the Fourteenth Amendment, the federal government had the power to compel states to respect the basic civil liberties of all citizens. The language of the amendment was such that prior and subsequent amendments to the Constitution could be applied to the states in a process known as "incorporation." Still, until the Warren Court, some of these rights we think of today as fundamental and inalienable were denied by the states.
Consider the following landmark cases decided by the Supreme Court; prior to these rulings, the amendments described above did not apply to the states:
- Mapp v. Ohio (1961): Dolee Mapp was convicted for possession of pornography after police forcibly entered her home without either a warrant or consent to search for a fugitive, illegally searched through her belongings, and thereby discovered the pornography illegally. The Supreme Court of Ohio upheld the conviction. The Supreme Court, recognizing that the failure to apply the Fourth Amendment protections against unreasonable searches and seizures to states left a loophole that effectively permitted any search or seizure conducted by a state agent, overturned the conviction and ruled that the Fourth Amendment would thereafter be applied to the states as well as the federal government.
- Escobedo v. Illinois (1964): Danny Escobedo was arrested for his alleged involvement in the fatal shooting of his brother-in-law. He was arrested shortly after the shooting, but released after his lawyer obtained a writ of habeas corpus from a state court. About a week-and-a-half later, he was arrested again and brought to a police station for questioning. Despite his repeated requests to see his lawyer, who was in the building and simultaneously asking police to allow him to see his client, the police refused. The police questioned him persistently, and eventually elicited a confession, which was used at trial to convict Escobedo for murder. In a 5-4 decision, the Supreme Court ruled that Escobedo had an "absolute right to remain silent" rather than be forced to incriminate himself, which the police violated by failing to inform him sufficiently of his rights and by denying him access to his attorney. Two years later, in Miranda v. Arizona, the Supreme Court instituted the requirement for police to read those famous warning with which we are all familiar to any suspect undergoing a custodial interrogation; accordingly, the Fifth Amendment protection against self-incrimination was incorporated.
- Benton v. Maryland (1968): John Benton was tried on charges of burglary and larceny. He was found guilty of burglary, but not guilty of larceny, and sentence to ten years in prison on the burglary conviction. But because the jurors at his trial were sworn in illegally (they were made to swear their belief in the existence of God), Benton had the option of being re-tried, and he took it. In the re-trial, Maryland charged him with both larceny and burglary again. Benton protested that he could not be charged with larceny again because he had already been acquitted and double jeopardy forbade a retrial on that count. Maryland countered that double jeopardy did not apply to the states; at the re-trial, Benton was convicted on both charges. The Supreme Court threw out the larceny conviction on the grounds that the Fourteenth Amendment had incorporated the Fifth Amendment's prohibition against double jeopardy.
- Gideon v. Wainwright (1963): It wasn't even until 1938 that the Sixth Amendment right to counsel was granted in federal courts, but it took until 1963 for the right to be incorporated to the states. Prior to this case, the Court applied the doctrine of "fundamental fairness," requiring states to provide indigent defendants with counsel only when required to do so by "the special circumstances of the case" (Betts v. Brady, 1942). Clarence Gideon, a man accused in Florida of breaking and entering, could not afford to hire an attorney to defend him and requested that the court appoint an attorney for him. The court refused, indicating that the law in Florida made no provision for appointing attorneys for indigent defendants who were not charged with capital crimes. Untrained in matters of law, Gideon stood no reasonable chance of defending himself against a trained prosecutor and was convicted. From his prison cell, he appealed to the Supreme Court for relief; they at least had the good sense to appoint counsel for him (Abe Fortas, later a Supreme Court justice). In a unanimous opinion, the Court ruled that defendants in all serious cases had a right to a court-appointed attorney if they could not afford their own representation, and that there could be no "fair trial" without such a guarantee.
And so it goes. Of course, the Warren Court's rulings and use of the doctrine of incorporation was not limited to matters of criminal law. The Warren Court also unanimously decided Brown v. Board of Education, which proclaimed that the segregationist doctrine of "separate but equal" was inherently unequal and a violation of the equal protection clause of the Fourteenth Amendment.
Some scholars of American legal history argue that the strategy of Republic presidents over the past 50 years in appointing conservative, "originalist," "strict constructionist" federal judges has been a reaction to the due process revolution, the doctrine of incorporation, and the decisions of the Warren Court. Conservatives say the Republic strategy is a reaction to the "judicial activism" of the liberal Warren Court.
Fair enough -- I suppose in many ways it is. So let's examine the decisions I've highlighted here. What is the common thread running between Mapp v. Ohio, Escobedo v. Illinois, Miranda v. Arizona, Benton v. Maryland, Gideon v. Wainwright, and Brown v. Board of Education?
I submit to you that the common thread is that each of these decisions was about respecting the basic civil liberties we all took for granted right up until that awful day in 2001 when the worst president in US history took office. Each of these decisions was about making sure that the most basic civil liberties of every citizen were respected, regardless of race, religion, creed, national origin, English fluency, socioeconomic status, or any other factor. These decisions were fundamentally about advancing the human condition by demanding that the federal and state governments of the United States always did their best to live up to the ideals and values enshrined in our Constitution. Contrast this with the basic attitude of BushCo and the Republic Congress of the past six years, which prioritized lying, cheating, stealing, enriching cronies, and promoting war for cynical political gain at the needless cost of hundreds of thousands of lives, over half a trillion dollars, and the trust and esteem of our neighbors.
In short, the Military Commissions Act, the warrantless spying debacle, the Patriot Act, and really the entire agenda of BushCo and the Republic Congress of the past six years has been about restoring their boot to the neck of Americans who weren't born with the same silver spoons as them. Since the ratification of the Fourteenth Amendment, progressives have worked tirelessly for 139 years to improve all our lots, and though we've made great strides, we have a long way to go. In just six years, BushCo has undone much of our progress. We must Restore Our Constitution now; we cannot afford to wait until BushCo and their Congressional sycophants supporters completely backtrack on the doctrine of incorporation and regress us back to the nineteenth century.
Cross posted at ProgressiveHistorians, NION, and Street Prophets.