Lately, I’ve been deeply involved in writing motions, replies, etc., against governmental agencies that are treading on constitutional freedoms. The problem is that the government — tired of following the constitutional strictures that have required them to actually prove their cases for the last 200-plus years — is attempting to make an end-run around criminal procedure requirements.

In the course of this work, I discovered that in one particular case — People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 [60 Cal.Rptr.2d 277] — the California Supreme Court does something utterly amazing.

Specifically, the Court states,

From Montesquieu to Locke to Madison, the description of the pivotal compact remains unchanged: By entering society, individuals give up the unrestrained right to act as they think fit; in return, each has a positive right to society’s protection. Montesquieu describes this civil liberty as “that tranquillity of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen.” (Montesquieu, The Spirit of the Laws (U. Cambridge Press 1989) ch. 6, p. 157; and see Locke, Two Treatises on Government (U. Cambridge Press, student ed. 1988) ? 122, 140, 211, 227; Madison, The Federalist No. 51 (Rossiter ed. 1961) pp. 324, 325.) — Gallo, supra, 14 Cal.4th 1090 at pp. 1102-1103.

The irony was not lost on Justice Mosk, who in his dissent noted:

No doubt Montesquieu, Locke, and Madison will turn over in their graves when they learn they are cited in an opinion that does not enhance liberty but deprives a number of simple rights to a group of Latino youths who have not been convicted of a crime. — Gallo, supra, 14 Cal.4th 1090 at p. 1132.

In particular, the reference to Federalist No. 51 caught my eye. Lately (if you check the sidebar on the main page of this blog, you’ll see this) I’ve been reading the Federalist Papers. And virtually the entire thrust of Federalist No. 51 is contrary to the meaning with which the California Supreme Court attempted to imbue it. This is exemplified in a quote from that source:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.? — Madison, The Federalist Papers, No.51 (Rossiter ed. 1961, reprinted 2003), at p. 319.

As I noted in a recent reply to a respondent’s brief on the matter,

We cannot provide a quality of life to many of our citizens by stripping away the rights of others who, having themselves committed no crimes, nevertheless find themselves disapproved by the majority.

Expect more on this topic as I begin to shift my attention away from the useless morass of politics towards writing more about law and legal issues.