Power to the People

Q: Do the Bill of Rights apply to Congress and Congress alone?

A: This is a difficult question to answer in 500 or 600 words. The short version of the answer is “yes” and “yes,” but maybe not for the reasons you are thinking.

To explain a bit further, let us dip into some governmental philosophy. Governments, much like corporations, are non-entities. That is, they are the creations of legal documents and the coalescence of ideas, as proposed (of course) by humans. In the creation of a government, like our Democratic Republic, we as citizens effectively say, “Look, we recognize that we are, by birth and nature, free and ought to be permitted to live as such. But, we recognize that there is a need for some parameters to be set in our society. We recognize that even nature has rules that are so deep, so pervasive, so ingrained in we the created that we must codify them. Therefore, we will place that freedom in the stewardship of something we will call government.”

That is a simplistic summary, indeed, but the main point is very important: citizens possess the rights and freedoms as – coining the words of the Declaration of Independence – inalienably endowed to them by their Creator. Whatever power our government has, therefore, is subject to approval or disapproval by we the governed. Thus, the Constitution establishes the form necessary to govern the collective whole.

Are you with me still? Good. Back to the question.

The Bill of Rights applies to all citizens. That is, it secures the inalienable rights our Declaration of Independence suggests we posses in written form. Hence, we the citizenry can invoke any one of the provisions of the constitution and subsequent amendments. For instance, the Second Amendment permits us to possess and bear arms – even, in extraordinary circumstances, against the government itself. Essentially, the Bill of Rights functions to say to government, “We the people say this far you may go and no farther.”

Yet, what of the Bill of Rights as it concerns Congress? As originally designed, the Bill of Rights is the written consent of the governed; it is the margin to government. It works to say that government – as Thomas Paine once suggested, “In its best state, is but a necessary evil; in its worst, an intolerable one” – must be restrained.

And this makes sense. Why would we the governed allow a non-entity, of our own creation and management, to go beyond our inalienable rights? While there is a need to provide for an ordered society, that ordering must be subject to those it governs and, borrowing again, “to the Laws of Nature and Nature’s God.”

If this all sounds vaguely familiar, pull out your pocket Constitution and turn with me to the Ninth Amendment where it states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” And, as if to underscore the point, the Founding Fathers added the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In answer to the question, yes, the whole of the Constitution applies against Congress as a boundary, guaranteeing the application of the freedoms secured therein to the people. Where government overreaches, the Bill of Rights freely applies to the people as a shield against an invasive government, guaranteeing the survival of the freedoms inalienably endowed to them by their Creator.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Pardon Me?

Q: What gives the President the right to commute Scooter Libby’s sentence?

A: Last week, the big news was the President George W. Bush “commuted” the sentence of one Lewis “Scooter” Libby, a former aide to the Vice-President. For those of you fresh from hiding under your rock for the last two years, here’s a brief review of the facts.

Joe Wilson and Valerie Plame were husband and wife. Plame was the type of Federal agent whose secret identity as a Federal agent is not supposed to be revealed to anyone. She was the person who’s identity they disavowed any knowledge of at Mission Impossible headquarters. At some point, Wilson got involved in some political stuff, took a trip overseas that he probably should not have taken and, when he got back, said some things that made the current administration none too happy. Somehow, his wife’s name came up in the whole thing, a Washington Post journalist began sniffing around for a story, winding up at the desk of Lewis Libby, whose nickname has been “Scooter” since scooting about his crib. In the midst of that conversation he, allegedly, revealed Plame’s secret identity.

Scooter was brought in front of a grand jury, asked to testify, and put under the gun by Independent Prosecutor Patrick Fitzgerald who managed to keep Scooter busy running through enough circles that he eventually contradicted himself and, intentionally or not, committed perjury. Hence, he was brought up on charges of perjury and obstructing justice and some other counts. Interestingly, Scooter was not convicted of revealing the secret identity of a covert agent, which was how this whole thing started. And, as of today, no one has been prosecuted for that crime, vis-à-vis Plame. Scooter was then convicted of perjury, obstruction, and making false statements to a federal investigator.

Sidebar: If you told a federal investigator that his mullet was “a nice haircut,” could you be charged with making false statements to a federal investigator? Sorry. Bad lawyer humor. End sidebar.

So, under the Federal Sentencing Guidelines, which allow for about as much spontaneity as the Robert’s Rules of Order, Scooter was sentenced to thirty months in jail. All appeals, thus far, have failed. But, on Monday of last week, President Bush “commuted” Scooter’s sentence, leaving him with no jail time, a felony conviction, a $250,000 fine, and probation. How so?

Well, according to Article II, Section 2, the President has the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” A commutation, meaning literally “to change altogether,” falls under the category of a “Reprieve.” Thus, POTUS has the hyperbolic, “get out of jail free card” that you probably thought only belonged to Milton Bradley. Still, Scooter has not passed go and will not collect $200. He’s still a felon, subject to the terms of probation, and has to pay a hefty fine.

Presidents throughout history have wielded the gracious sword of pardons and reprieves. Clinton pardoned some 140 persons on his last day in office, H.W. Bush pardoned Reagan-era Iran-Contra officials, Carter granted amnesty to all draft dodgers, and George Washington even pardoned the leaders of the Whiskey Rebellion.

Is it a political weapon or a tool for the equalization of social justice? Is it used for high-paying former guests of the Lincoln Bedroom, or notorious felons wrongly convicted? No one is really sure. But, what is certain is that it is a unique tool given only to the President. It is one of very few areas in which there are no checks and balances. Reprieves and Pardons are, quite simply, the unique perks of Presidential power.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

How Long Does It Take?

Q: How long does a criminal trial typically take?

A: Returning to our ongoing serial look at the criminal trial process, my answer to the question should be obvious for those who have been reading this column these several months: it depends. What are the charges? Who are the witnesses? How many witnesses? How much evidence has to be presented? How long winded are the attorneys?

A trial consists of only a few basic parts: opening statements, presentation of the evidence, closing arguments, instructions, and deliberation. Opening statements we have already discussed. And, to an extent we have talked about the presentation of evidence too. What you may not know is how the parties take turns presenting the evidence.

Since the accused is always “innocent until proven guilty,” the State has the burden of proof. So, it is the State who puts on evidence first during what is called their, “case-in-chief.” Witnesses are called and asked questions to introduce evidence into the trial. This is called a “direct examination” because they are asking them “direct” questions to elicit evidence by way of a narrative. A textbook case of direct examination will involve questions that begin with “who,” “what,” “where,” and “when.” The goal of the questioner is to elicit a story, directed only by the questions asked.

When the prosecutor is done asking direct examination questions, the witness is “tendered” (I.e., offered for further examination) to the Defendant for what is called “cross examination.” It is unknown exactly why they use the term “cross” other than to speculate that it is an examination from the party across the room. (Although, www.etymonline.com suggests dates the phrase “cross-examine” back to 1664. Impress your friends with that at your next dinner party!) Nonetheless, the goal of cross examination is altogether different from direct. During cross, the goal is to insert reasonable doubt into the evidence presented on direct. The type of question used also differs from direct. On cross, the Defendant is entitled to use “leading” questions, meaning questions that propose the answer and are typically answered “yes” or “no.” For instance, “Isn’t it true that you stole all the money and not the Defendant?”

After the Defendant finishes, the State gets another crack at the witness and can ask questions on “re-direct” examination. Then, when finished, the Defendant may opt to ask “re-cross” questions on those topics inquired into during “re-direct.” This back and forth usually does not go past this point and the witness is excused.

When the State is done presenting all of its evidence, it “rests” its case-in-chief, thus allowing the Defendant to put on his defense, if any, during his case-in-chief. A Defendant has a Constitutional right to present no evidence whatsoever and may choose to be silent, forcing the State to present evidence “beyond a reasonable doubt.” Sometimes, if the State has presented a weak case, and the Defendant has managed to poke holes in the State’s case-in-chief during cross, further presentation of defensive evidence is simply not needed. But, for the most part, at least some evidence is presented by the Defendant so as to give the jury a reason to find the existence of “reasonable doubt.”

So, how long does all of this take? That is the $64,000 question. Sometimes it takes a day, two days, a week, a month – it just depends on who is saying what about the where, when, how, who, and why, and what the other party’s response, if any, will be to it. Justice takes time.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.