Constitutional law is the product of "constitutional" attitudes which are themselves the product of the deep conflicts of the times, also known as "history."
The American Revolution is one example, when we went from living under a king to living under ourselves, as voters. We may make worse decisions than kings, but at least they're ours.
The Civil War is another, ending slavery, and putting equal protection of law in the Constitution, our basic legal document. Previously the equality principle had been found only in the Declaration of Independence ("...All men are created equal..."), an important document serving as the inspiration for many later acquired rights but not having the force of law, any more than Lincoln's Gettysburg Address ("...government by the people, of the people, and for the people...") or the Lazarus poem at the base of the Statue of Liberty, ("Give me your tired huddled masses...").
"Constitutional attitudes" are those which cause each side to fight a war.
We see this in the slow, rolling civil war over abortion since 1974. Both sides seem willing to go to war over deeply held beliefs. One side sees the relevant issues as being a woman's right to control herself, her body, her reproductive functions, and her role in marriage and society. The opposing side sees mainly death to a fetus as murder, for which drastic measures are appropriate to prevent.
Constitutional attitudes are attitudes which are important enough that sizable numbers of people are willing to fight for, if not on a battlefield, then the next best thing, in court, for a long time, at great trouble and expense, often against strong odds.
The deeper you dig into the subject of constitutional attitudes, the more you may find opponents siding with each other on some of them. The usual spectrum of "left" and "right" have a way of turning into a circular argument, often with a twist, like a Moebius strip.
For example, a conservative Republican may be so strong on personal rights for himself and those like him, say on an issue like being in favor of a right for an individual to keep and bear arms, and against gun-control, that he favors a privacy right to prevent police search and seizure that would appeal either to a libertarian or to a liberal.
The article below notes this effect in observing that Justice Scalia, conservative, sided with Justices Marshall and Brennan, liberals, in one case. Constitutional cases have a way of forcing you to ask what you really believe. Is it guns, or privacy, or liberty? The way one defines the problem, or issue, controls ones vote and the outcome of a case.
Jeffrey Fisher, a young lawyer who clerked for Justice Paul Stevens, then became a partner in a notable law firm, who argued both the Crawford and Blakely cases before the Supreme Court, and won, which won him a professorship at Stanford Law, is profiled in the article below. Of particular note is his warning about balancing tests as opposed to hard and fast rules.
Rules exist to prevent certain conduct. Balancing tests are a way to argue you out of your rights. As soon as a court starts balancing your right to exist, your life is in trouble, because of the greater good of society, right? Who do you think will win this argument, you or society?
That's the way it is with more familiar constitutional rights, such as
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." (First Amendment)
Justice Black, known as an absolutist on the First Amendment, believed that when the text states "Congress shall make NO LAW," that it means what it says, and that any law affecting an establishment of religion or regulating the free exercise thereof is therefore unconstitutional.
The game then began to imagine circumstances where even Justice Black would have to back down and allow balancing in order to avoid an absurd result. He argued strongly against use of a balancing test when it came to the First Amendment, realizing that this was a device for rationalizing taking away rights and watering down the supposed guarantees, by "balancing them away," as in an appellate court saying,
"Yes, Mr. Jones, you have a right to privacy, generally speaking, but in this case we're going to make an exception because, on balance, society has a greater right to be protected from the likes of you.So the evidence was lawfully admitted by the trial judge and you must now go to jail."
From the American Bar Association Journal, appearing online 3/23/07, this guest article:
FROM THE APRIL ABA JOURNAL
A Sixth Sense About Criminal Trials
A young litigator unites Justice Scalia and the court’s liberals over defendants’ rights
Jeffrey Fisher: "Liberals need not run from constitutional text."
PHOTOGRAPH BY MELISSA BARNES
By Richard Brust
Stanford University law professor Jeffrey L. Fisher says he occasionally muses about Crawford v. Washington, 541 U.S. 36, the 2004 case he argued—and won—before the U.S. Supreme Court that changed how courts regard testimonial statements.
“I sometimes joke that I made Crawford a full employment act for myself,” says Fisher, who joined Stanford last year to help direct the school’s Supreme Court litigation clinic.
He was referring to speaking about and briefing cases involving the rights of criminal defendants, as courts grapple with a revised notion of the admissibility of out-of-court statements.
The 36-year-old Fisher could easily have been talking about his own burgeoning career as a high court litigator and leading criminal defense advocate. Over the last four years, Fisher has argued and won four key cases that have continued an ongoing transformation in the way the Supreme Court looks at the Sixth Amendment, which spells out the rights of criminal defendants.
In the same term as Crawford—which altered more than two decades of Supreme Court decisions regarding the right of defendants to confront witnesses at trial—Fisher also successfully argued Blakely v. Washington, 542 U.S. 296. Blakely held that, under the Sixth Amend ment, juries—not judges—must determine whether the defendant is guilty of the factors that would add time to a sentence.
AN UNAMBIGUOUS INTERPRETATION
Fisher has urged a hard-and-fast adherence to the Sixth Amendment’s precise wording, which says in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury; ... 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 defense.”
Those rights amount to fixed “categorical rules,” Fisher wrote in a recent article in the Georgetown Law Journal. Judges, he argued, should not short-circuit those rights by weighing them against their own sense of when, for example, to allow out-of-court statements.
That argument captured the attention—and the judicial philosophy—of Justice Antonin Scalia, the court’s conservative leading light. The result was a series of rulings that upheld the rights of criminal defendants—an outcome usually associated with more liberal justices.
“Someone said to me, ‘Isn’t it crazy that Scalia writes all your opinions?’ But that’s the way I wrote the arguments,” says Fisher, who co-chairs the amicus committee for the National Association of Criminal Defense Lawyers. A former clerk to Justice John Paul Stevens, Fisher worked at Seattle-based Davis Wright Tremaine, where he still is a partner.
Besides Crawford and Blakely, Fisher went before the justices last term in United States v. Gonzalez-Lopez, 126 S. Ct. 2557, in which the criminal defendant won a reversal of his conviction because the trial court had deprived him of his Sixth Amendment right to choose his lawyer.
Also last term, in a follow-up to Crawford, Fisher successfully argued Davis v. Washington, 126 S. Ct. 2266, which was combined with Hammon v. Indiana, to limit the use of 911 calls in place of live witness testimony.
(Last November, Fisher went before the court in Burton v. Stewart, No. 05-9222, arguing that Blakely should apply retroactively in criminal habeas cases. In January, the justices ordered the case dismissed for lack of jurisdiction.)
The decisions have effected a sea change in thinking about the Sixth Amendment rights of defendants. In doing so, the justices assembled a rather unusual team. While the conservative Scalia wrote for the court, he was joined each time by Justices Stevens, David H. Souter and Ruth Bader Ginsburg—three of the court’s liberal wing. Justice Stephen G. Breyer, generally acknowledged as the fourth in the quartet, joined in all but Blakely. In the 5-4 Gonzalez-Lopez ruling, Scalia led the four-piece liberal band.
Explaining the lineup, Fisher says that labeling won’t garner a majority. “You have to think about issues that cut across the divide,” he says. “You have to look at it not so much in terms of politics, but jurisprudentially.”
Indeed, Fisher aimed his pitch right at Scalia’s jurisprudential wheelhouse: an originalist theory of constitutional law, a duty to the Constitution’s text, and an adherence to bright-line rules. Add for good measure a reverence of 18th century colonial history.
For Scalia, originalism says that the Constitution’s founders meant what they said and said what they meant. So the court must be faithful 100 percent.
“The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts,” Scalia wrote in Crawford, except, of course, those “established at the time of the founding.” He issued similar warnings in Blakely and Gonzalez-Lopez.
“When it comes to having a jury or witness confrontation or lawyer you pick, it’s all or nothing,” says Uni versity of Pennsylvania law professor Stephanos Bibas, who writes frequently about criminal procedure issues.
That meant that in Crawford the court scuttled its long-held test for admitting out-of-court statements, a balancing formula that measured a statement’s reliability. Ohio v. Roberts, 448 U.S. 56 (1980).
OUT OF BALANCE WITH THE CONSTITUTION
For Scalia, few things grate more abrasively than balancing tests. In a 1990 dissent regarding the confrontation clause, Scalia scolded the court for applying an “ ‘interest-balancing’ analysis where the text of the Constitution simply does not permit it.” Maryland v. Craig, 497 U.S. 836.
“Balancing tests are great if the judiciary shares your values,” Fisher says. “As soon as the judiciary doesn’t share your values, you need hard-and-fast rules.” Courts, including the Supreme Court, increasingly have favored the prosecution through the 1980s and ’90s, says Fisher. “Most federal judges come from the prosecution side,” he says.
The consequence has been a series of setbacks for the criminal defense bar and for those judges and justices who favor defendants’ rights. As if to presage the latest Sixth Amendment alliance, Scalia was joined in Craig by Stevens and by Justices William J. Brennan Jr. and Thurgood Marshall—perhaps the most liberal duo the court has known in the last half century.
That case and others “peek under the rug at the way the court could be reshuffled,” says Fisher. “Liberals need not run from constitutional text. They can embrace it.”
Scalia’s originalism also speaks to his faith in juries, according to Bibas, and for that the justice relies on colonial history. “The founding generation trusted juries, and not judges, in part because King George III had pressured judges and used them to oppress the colonies,” Bibas says.
For Scalia, the jury is nothing short of democracy itself—“the spinal column of American democracy,” he wrote in a 1999 case, Neder v. United States, 527 U.S. 1.
Originalism, Bibas wrote in a recent article, “seeks to protect the jury’s role as a check on all three branches of government.” It’s “a bright-line way of resolving cases with a minimum of judicial discretion and unpredictability.”
Of course, any such shift in the prevailing legal winds leaves many questioning the debris left in its wake. Blakely kicked off a rethinking of federal and state sentencing guidelines, culminating in United States v. Booker, 543 U.S. 220 (2005), which made federal guidelines advisory.
And prosecutors and defense lawyers alike have struggled with what exactly constitutes a testimonial statement. Such statements trigger the defendant’s right to confront the speaker in court and cross-examine that person. However, especially in cases of domestic violence, at which battered spouses often fear appearing, out-of-court statements should be given deference, critics have said.
Justice Scalia left that undefined in Crawford. But many have found perplexing Scalia’s attempt to elucidate in Davis. In considering when emergency 911 calls may be admitted, the court ruled that statements are not testimonial when given to police to meet an ongoing emergency—that is, when the individual wasn’t acting as a witness.
Fisher acknowledges the criticism but holds fast. “We all understand the difference between talking to a police officer and chatting with a friend down the street,” he says. “We all have a general understanding of what being a witness means.”
Fisher adds, “We did have 20 to 30 years of doing things the wrong way. So we have prosecutors who have the wrong idea about what the confrontation clause means.”
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03/23/2007 07:29 PM