Friday, April 02, 2004

The intersection of Politics and Law

Of course, these are intricately intertwined. However, in this election year, a greater intersection exists. That would be the judiciary. It appears that the next president of the United States may appoint up to 3 Supreme Court Justices (replacements for William Rhenquist, Sandra Day O'Connor and John Paul Stevens). Supreme Court Justices, as one can easily see looking back at the last 50 years of our nation's history, play a very large role in the course of our country. Since they are appointed for life, a justice appointed by even a short-time president can play a huge role for a long time (consider Gerald Ford's 1 1/2 year term as president where he appointed Stevens nearly 30 years ago).

Many societal changes that some hold dear, or that some decry, have taken place at the hands of the Supreme Court. Legalisation of abortion, desegregation, extension of individual privacy and civil liberties, expansion of voting rights for minorities (especially in the South), equality for women, protection of people charged with crimes, and thousands of other issues affecting everyday life in society have been decided by the Supreme Court in the last 50 years.

Major issues were decided before that era as well, including the enshrining of "seperate but equal," rolling back of the New Deal legislation and other legislation protecting worker's rights, as well as plenty of other areas of interest. However, it has been that last 50 years, since the appointemnt of Earl Warren as Chief Justice of the Supreme Court by President Eisenhower in 1954 that the Court rose to it's present prominence.

The choice between competing views on the judiciary is stark and easy to understand. On one hand are those who feel that the Constitution is a document that is to be looked at as the end all be all of what is "Constitutional." Meaning, since the Constitution says "Congress shall make no law" regarding freedom of speech and free exercise of religion, this means that the states are free to pass laws restricting religion or speech (that is, until the 14th amendment, which may have changed things according to some), or even the president could act against people based on their religion or to restrict speech as long as he was acting within his specifically enumerated executive powers. These people have generally opposed everything done by the Supreme Court in the past 50 years, including ending restrictions on privacy such as birth control (Griswold v. Connecticut), abortion (Roe v. Wade), desegregation (Brown v. Board of Ed), free speech (Cohen v. California and plenty of other cases), right to remain silent (Miranda v. Arizona). In general, you see a seminal case in the last 50 years that expands freedom and restricts the rights of government to opress individuals, and you see the opposition of these "strict constructionalists" (I put that in parenthesis because they are generally strict constructionalists only when it comes to things they disagree with, they become very activist when it comes to their own pet issues, such as the activism of the Court in Bush v. Gore).

On the other hand are those who feel that the Constitution is a road map, a guide, but not only word on running our government. Obviously, the framers never anticipated cars, so when they wrote the 4th amendment and spoke of search and seizure and people being secure in their homes, they never anticipated people driving around and practically living out of their cars like they do now. They never could have anticipated the internet when it came to speech, or the power of executive departments like the FCC, FAA, ICC, etc.... Thus, the Constitution must be something of a living document, if it does not address the issue directly on point (for instance, by failure to mention the automobile), does that mean the constitution is silent on the issue?

This is a huge issue for my life and work. My job as a public defender, something we take for granted at this point, comes from the case of Gideon v. Wainwright in which Gideon challenged his conviction and prison sentence on the grounds that he was denied a lawyer because he couldn't afford one. The Court said that everyone is entitled to a lawyer if the government wishes to imprison someone. This only happened in the last half century, for 150 years before that, such a concept did not exist. I believe our society is far better off as a result of it, we are a more moral society. Similarly, for decades, police acted with impunity, breaking into people's houses in search of contraband or to solve crimes. Nothing stopped them from doing this. Finally, the Court said that anything taken in violation of the 4th amendment could not be used against those suspects, and created the exclusionary rule. Obviously, the Constitution never mentions the exclusionary rule, but it does talk about freedom from illegal searches and seizures, the Court had to look at that, and decide how best to enforce it, otherwise it was a right without a remedy, which is no right at all (or at least does not prevent government from acting with impunity in our daily lives, which is the whole point of the Bill of Rights).

At this point, we are poised on the sharp edge of a blade differentiating where this country will go in the next half-century with regards to the Courts. On one hand, if Bush is reelected, we can expect more appointees who could tip the balance for a generation trying to take us back to before the 1950s. If Kerry is elected, we can expect that he will at least appiont justices who are not as bad as Bush's (I can't say anything beyond that, because I don't know. Perhaps he will be visionary like Johnson and Eisenhower, perhaps he will be timid like Clinton, but most likely he will not be like Reagan and Bush I).

The choice is clear in my mind, and hopefully the minds of the majority of this country (although, as Bush v. Gore taught us, majorities don't matter). Please keep this in mind and tell all of your friends.

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