« "Marijuana law reform is a civil rights issue" | Main | Virginia's Governor denies clemency for female condemned murderer »

September 17, 2010

Quick textual reflections on Constitution Day

USCon Today, September 17, is the 223rd anniversary of the day in 1787 when the Constitutional Convention officially submitted its proposed constitution to the people of the United States.  To honor the day, I thought I might quoting some of the key criminal justice provisions of the original U.S. Constitution (along with the Bill of Rights):

Part of Article I:  "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  No Bill of Attainder or ex post facto Law shall be passed."

Part of Article II:  "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Part of Article III:  "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."

Amendment I:  "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; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Amendment II:  "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Amendment IV:  "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."

Amendment V:  "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 offense 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...."

Amendment VI:  "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."

Amendment VIII:  "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

I would be interested in readers' perspectives on which criminal justice parts or provisions of the US Constitution they believe or fear is being given the least respect or attention in modern times. 

Regular readers should not be surprised that I believe that it is the Reprieves and Pardons Clause that is in the worst shape in modern times.  Especially in the wake of the Supreme Court's recent work in cases like Heller and Blakely and Graham, I am not unduly worried about the state and fate of the even Amendments (which always seem to get less love than the leading odd Amendments).  But modern presidents have largely ignored their clemency powers until late in their presidencies, and political cronyism rather than constitutional respect seems to best explain many of the major clemency actions of the last few Presidents.  And, as noted here and in many prior posts, President Obama, now almost a full two years into his presidency, has not yet used this historically important constitutional authority a single time (except for two turkeys last Thanksgiving). 

Some related posts:

September 17, 2010 at 09:05 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Quick textual reflections on Constitution Day:


Thanks for offering this excellent precis!

Long ago, when I was in elementary and middle school, reading (and memorization) of the Constitution was required: as young students we were asked to select portions and explain them, in writing, paying particular attention to their potential relevance in our own lives. It is amazing that the complexity of ideas is expressed in language which can be understood -- perhaps incorrectly -- by almost everyone of every age. Which leads to a different point...

Yesterday, I told the following story to a group of youth: One day, Jack, a 26 year old man was walking in the woods surrounding his Appalachian homeplace (from which he seldom departs) and acquired a splinter and, being versed in the healing arts of the area, immediately scooped up some powdered Virginia clay soil, wet it, and put it over the splinter. As the clay dried, it drew out the splinter.

The story was told as a first aid lesson for young campers but (for whatever reason) I decided to follow-up with the question "Did Jack engage in interstate commerce?" The children laughed and called me silly -- and quickly schooled me on the meaning of the words "interstate" and "commerce." When I tried to explain that he had reduced the multi-state sales of Band-Aids by using the old Virginia method, they laughed again and reminded me "Well, that was what he MEANT to do, stupid."

Sometimes, just reading the words is sufficient for those who have natural common sense. Cheers for Article III (and Amendment VI).

Posted by: Robert | Sep 17, 2010 11:18:06 AM

The Fourth Amendment is in about as bad shape as it can be. It is hardly worth having, at this point. Any search will be upheld as long as the officer can spout the right language about why he conducted it. Highway patrol officers routinely pull people over, not to enforce traffic laws, but to wrest consent from them to search their vehicles in a fishing expedition for contraband. City police officers routinely frisk people who fit within a profile, hoping to find contraband on them. The Wrenn case has basically made it possible for police to pull over drivers for no reason, so long as they make the right one up. Home invasions by police are rampant; the so-called "protective sweep" power of the police has essentially abrogated the need for a search warrant. In my home state of Texas, a driver can be arrested, handcuffed, booked into jail, strip searched, cavity searched, forced to spend the night in a cell with drunks, violent criminals, and sick people, and required to post bail to get out, all for a minor traffic offense that can be punished only by a fine, and the Supreme Court has ruled this "reasonable" (Atwater v. Lago Vista). The Fourth Amendment is sort of like Cinderella--so fair and decent, yet treated like dirt by those around her--but there's no Prince Charming on the horizon to save the Fourth Amendment.

Posted by: Anonymous | Sep 17, 2010 11:37:23 AM

Not to be Debbie Downer, but there's much to be worried about:

Part of Article I: AEDPA denigrated the right to Habeas Corpus.

Part of Article II: As noted in the post, the President's use of Pardons is virtually non-existant and, when used, rarely used for its true purpose (ie to correct injustices the judicial system failed to correct).

Part of Article III: We don't have trials any more and, in fact, defendants suffer a trial penalty.

Amendment I: An entity created by law is now equal to a natural-born individual. (See Citizens United).

Amendment II: The dicta in Heller, which is not based on fact and premised on inaccuracy, swollows the rule and has been extended to misdemeanants.

Amendment IV: The good faith exception makes the probable cause of the warrant requirement a nullity, as it causes the probable clause requirement to be virtually impossible to enforce. The 4th amend itself is becoming meaningless, as the Court continues to narrow the exclusionary rule (which is the only meaningful way to enforce the amend). Further, the "auto exception" and "inventory search" exception" (to name just two) also eviscerate the right. (See also Pineda-Moreno, recent 9th Cir. case saying GPS tracking is allowed w/o warrant).

Amendment V: The DJ clause has been greatly eroded via the "hung jury" exception, and by the "same elements" test for what constitutes a crime. The Miranda rule has been turned on its head (see Berghuis v. Thompkins) and is quickly becoming meaningless (see FL v. Powell). Further, how is it due process to be sentenced based upon allegations, of which you were acquitted?

Amendment VI: See comment on trials, supra. In a capital case, how is it an "impartial jury" and a fair-cross section of the community when it must be composed of individuals who already believe in capital punishment.

Amendment VIII: Bail, what's that? Do people even get that anymore. Almost never in the federal system. (See US v. Salerno). And the over-criminalization of federal law and the corresponding sky high penalties is outrageous, trending towards cruel and unusual. Not to mention that you can get locked in a cage for 25 years to life for stealing 3 golf clubs. (See Ewing v. CA).

And we haven't even touched on the meaning of "interstate commerce" and "necessary and proper", the current interpretation of which I have no doubt our Founders would view as an abomination.

Posted by: Downer | Sep 17, 2010 12:06:21 PM

Of course Obama hasn't used the pardon power. He would be absolutely pilloried for it, no matter whom he chose to pardon. The man can't do anything at all without Fox News screaming that it's the end of the Republic. Just imagine if he had the gall to pardon someone. He'd go from Marxist to Mass Murderer in no time.

Posted by: SRS | Sep 17, 2010 12:10:50 PM

SRS --

Either President Obama bases his pardon decisions on fear of Fox News or he doesn't. If he does, he's a coward. If he doesn't, he has no reason to refuse more pardons except, perhaps -- now hold onto your hat! -- he might think they're not deserved on the merits.

Which would you sat it is?

Posted by: Bill Otis | Sep 17, 2010 12:27:08 PM

At some point, things just need rebuilt from the ground up. The Constitution is a prime example. In its original form, there are a lot of good things in there. In my personal view, the Constitution has become diluted, twisted, or outright shredded by legal eagles over the past 200+ years looking for loopholes, different angles of wording and so forth.

I'll preface my next comment by saying I am fairly liberal in my view points and see government as a good thing if it works correctly. With that said however, I think the Constitution is a tool to cover the backsides of the current form of government and less about protecting the public.

To the original question about which portion(s) is given the least respect. Amendments 4, 5, 6, and are all very intertwined (and 2 in many views), but I see Amendment 8 as being ignored.

I say this from the viewpoint of having a relative that is a sex offender.

I won't go into detail since anytime an article for such crimes is posted, the issues come out to be discussed in full.

Posted by: Questions Authority | Sep 17, 2010 1:11:26 PM

The 4th has been utterly torched with the ashes thrown to the whirlwind. I work in financial services and few realize how the Bank Secrecy Act, The PATRIOT Act and FinCEN, have all had their role in the elimination of any security over your papers.

Posted by: Jardinero1 | Sep 17, 2010 1:35:38 PM

Mr. Bill's either Obama is a coward or big government is so perfect that no sentence should be commuted is misplaced.

A better either/or and one that is missing from the constitutional provisions above is either there is a separation of powers or there is a collusion of powers.

Earl Warren was a prosecutor, then an AG and then a governor, and in all three he exercised power in each office with loyalty to his office and to the best of his ability. Once Chief Justice, his loyalty was to the Constitution and he exercised that power to the best of his ability though the separation of powers doctrine. That was because his previous positions enlightened him to the dangers of the collusion of powers.

Indeed, many of the arguments above laying out how the Constitutional provisions were denigrated are due to a collusion of powers. So perhaps the separation of powers doctrine should be included in the "key criminal justice provisions of the original U.S. Constitution (along with the Bill of Rights)."

Posted by: George | Sep 17, 2010 3:39:24 PM

Are you sure you have that date right?

The Constitution's name: "Constitution of the United States of America, 1787"

The Constitution was ratified first by Delaware, on December 7, 1787. The ninth state, New Hampshire, ratified it on June 21, 1788. Although only 9 states were needed to ratify the Constitution, all 13 eventually did, the last one being Rhode Island on May 29, 1790. You have them ratifying the Constitution before it was even release by the convention delegates to the states.

Your date should be September 17, 1787, not 1789, and this is the 223rd anniversary of the release from the Constitutional Congress. The 223rd anniversary of ratification will be June 21, 2011.

I don't think I'm wrong about this. If so, I'd like to hear how.

Posted by: Bill B. | Sep 17, 2010 3:59:44 PM

From Wikipedia:

On September 17, 1787, the Constitution was completed, followed by a speech given by Benjamin Franklin, who urged unanimity, although the Convention decided that only nine states were needed to ratify. The Convention submitted the Constitution to the Congress of the Confederation, where it received approval according to Article 13 of the Articles of Confederation. (citation omitted).

From NARA (at www.archives.gov):

The Federal Convention convened in the State House (Independence Hall) in Philadelphia on May 14, 1787, to revise the Articles of Confederation. Because the delegations from only two states were at first present, the members adjourned from day to day until a quorum of seven states was obtained on May 25. Through discussion and debate it became clear by mid-June that, rather than amend the existing Articles, the Convention would draft an entirely new frame of government. All through the summer, in closed sessions, the delegates debated, and redrafted the articles of the new Constitution.

Also from NARA:

Q. When did the United States government go into operation under the Constitution?

A. The Constitution became binding upon nine States by the ratification of the ninth State, New Hampshire, June 21, 1788. Notice of this ratification was received by Congress on July 2, 1788. On September 13, 1788, Congress adopted a resolution declaring that electors should be appointed in the ratifying States on the first Wednesday in January, 1789; that the electors vote for President on the first Wednesday in February, 1789; and that "the first Wednesday in March next [March 4, 1789] be the time and the present seat of Congress the place for commencing proceedings under the said constitution." The Convention had also suggested "that after such Publication the Electors should be appointed, and the Senators and Representatives elected." The Constitution left with the States the control over the election of congressmen, and Congress said nothing about this in its resolution; but the States proceeded to provide for it as well as for the appointment of electors. On March 3, 1789, the old Confederation went out of existence and on March 4 the new government of the United States began legally to function, according to a decision of the Supreme Court of the United States (wings v. Speed, 5 Wheat. 420); however, it had no practical existence until April 6, when first the presence of quorums in both Houses permitted organization of Congress. On April 30, 1789, George Washington was inaugurated as President of the United States, so on that date the executive branch of the government under the Constitution became operative. But it was not until February 2, 1790, that the Supreme Court, as head of the third branch of the government, organized and, held its first session; so that is the date when our government under the Constitution became fully operative.

Posted by: Bill B. | Sep 17, 2010 4:06:26 PM

"Part of Article I: AEDPA denigrated the right to Habeas Corpus."

The writ of habeas corpus as it was known at the time the Constitution was written is impaired by AEDPA. The primary effect of AEDPA is to limit the use of habeas corpus to collaterally attack felony judgments entered by courts of competent jurisdiction. That use of the writ was completely unknown at that time.

It was 41 years after ratification before it occurred to any lawyer to even try such a thing in federal court, in Ex parte Watkins, and the Supreme Court confirmed what everyone then knew. The judgment of conviction was conclusive on the legality of custody. End of case.

Posted by: Kent Scheidegger | Sep 17, 2010 6:35:27 PM

Should read "unimpaired".

Posted by: Kent Scheidegger | Sep 17, 2010 6:35:54 PM

I thought I had the date off, Bill B., and now I have corrected my pre-coffee mistake.

Much appreciated!

Posted by: Doug B. | Sep 17, 2010 8:47:46 PM

The lawyer has trashed the Preamble, explained clause by clause here:


It is not any law. It does not generate lawyer income. However, it justifies everything that follows. Every clause is mocked by the lawyer and trashed.

Posted by: Supremacy Claus | Sep 17, 2010 9:14:14 PM

"It was 41 years after ratification before it occurred to any lawyer to even try such a thing in federal court, in Ex parte Watkins, and the Supreme Court confirmed what everyone then knew. The judgment of conviction was conclusive on the legality of custody. End of case."

But not the end of it. See Justice Scalia's dissent in part in Withrow v. Williams (91-1030), 507 U.S. 680 (1993), which discusses Ex parte Watkins .

There is also the little matter of the 14th Amendment shortly after Ex parte Watkins and the reactionary love for it may explain the contempt for the 14th Amendment. Is this part of the reason for wanting to repeal it?

Posted by: George | Sep 18, 2010 1:43:14 AM

"It was 41 years after ratification before it occurred to any lawyer to even try such a thing in federal court"

And it was 86 years after the ratification of the Fourteenth Amendment that Oliver Brown pursued a similarly creative action in federal court. The point in all this being...?

Posted by: Michael Drake | Sep 18, 2010 11:19:36 AM

The day really should be more of a remembrance than a celebration.

If they had the requisite interest and attention spans, I think most Americans would be stunned to discover what the "collusive powers" have done to the Constitution they learned about as children.

Of course to the first sentence of Part 1 Article 1 (Habeus) this phrase should be added: "...or unless an arbitrary deadline has been missed or some worthless bureaucrat might be inconvenienced.

Posted by: John K | Sep 18, 2010 11:53:17 AM

The Fourth Amendment is by far the most downtrodden of those listed, followed by the Second. Before looking at this post, I'd written just this morning that celebrating the Fourth Amendment is "rather like wearing a Kurt Cobain t-shirt, commemorating something that's dead and anachronistic, however laudable or memorable for those of a certain age who could still recall when it was relevant."

Posted by: Gritsforbreakfast | Sep 18, 2010 1:00:16 PM

Scalia's discussion of Watkins is fully consistent with my point.

Brown was quite obviously not the first person to claim that state-imposed racial segregation violates the Equal Protection clause.

Posted by: Kent Scheidegger | Sep 20, 2010 12:13:30 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB