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Constitutional Rights

Posted by Rick · October 28th, 2004 · No Comments

I’m working on an appeal — and, although I haven’t missed the appeal deadline, I’ve already missed my “draft deadline” — so my blogging time right now is extremely limited. It should be “nonexistent” until this appeal is finished. So forgive the brevity of this post.

The friend who inspired my “Nothing to Hide” article not too long ago has apparently designated himself as my Muse.

Last night, in Advanced Criminal Law, we were discussing the fact that in some cases — to my current knowledge, only in child molest cases with young victims — the witnesses may testify via closed-circuit television. This is to avoid the trauma of having to face their accuser. When this ruling came out — and due to time constraints, I leave finding citations to validate this as an exercise for the reader — there was a big brouhaha because one of the policies behind the Confrontation Clause of the Constitution (see U.S. Const. amend VI) was based on the idea that when an accuser had to make his or her accusation “face-to-face” with the accused, they were less likely to lie. It’s easy to say bad things about people behind their backs; the difficulty is in making a lying accusation straight to their face. (This is most emphatically not to imply that child molest victims lie. I’m reporting on the policy behind the Confrontation Clause here, not the veracity of child witnesses.)

I asked the question in class whether the rule relating to testifying via closed-circuit television had ever been applied to adult witnesses, mentioning the “look-them-in-the-eye” policy of the Confrontation Clause in the course of asking the question. The response from Mr. Nothing to Hide was, “Show me where that is in the Constitution!”

Now I was — this is perhaps not surprising to those who understand not just the meaning of the Constitution, but also the rationale behind expecting accusations to be made in front of an accused person — taken aback momentarily. He continued to mention that there was no “right” to a face-to-face confrontation listed in the Constitution.

When I recovered, I said, “It’s in the Ninth Amendment.” He said (surprise!), in an agitated tone, “Ninth Amendment? What’s in the Ninth Amendment?!”

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. U.S. Const. amend. IX.

I tried to explain to him — as I’ve told numerous people, including readers of this blog — that the purpose of the Constitution of the United States was to establish a limited government. The Constitution was never intended to limit the rights of the People.

Due to my limited writing time, I won’t reiterate all my arguments supporting that here. Instead, the interested reader is referred to my article, “Re-Adopting the Constitution.” In that article, starting in the tenth paragraph, the case relating to what the Constitution does and does not say about the rights of the People is laid out, with extensive reliance upon specific quotes from the Federalist Papers, which were written by John Jay, James Madison and Alexander Hamilton to explain why the colonists should adopt the Constitution of the United States.

That article includes an interesting discussion of why the majority of the Founders originally thought a “Bill of Rights” was a dangerous idea. Their fears, by the way, have come to pass.

So let me leave you with this: The Sixth Amendment states that accused people have a right to confront their accusers. It does not say they get to look them in the eye. The fact that it does not say that they get to look them in the eye does not mean “you don’t have a right to look them in the eye.” Besides the fact that Merriam-Webster Unabridged says that “confront” means “to put or bring face to face,” there is the fact that the Constitution does not say, “The government may construe the Sixth Amendment to be the sole explication of the rights of the accused with relation to any accusers.”

Thus, even without the Sixth Amendment, the Constitution does not say you do not have a right to have your accusers brought face-to-face with you.

And, remember,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. U.S. Const. amend. IX.

Therefore, citizens accused of crimes do have a right to confront their accusers face-to-face, notwithstanding the Constitution of the United States.

The only question is whether or not the government usurps that right, or provides some other grounds for asserting that citizens do not have that right.

Lastly, let me note that “Mr. Nothing to Hide” appears to me to be a decent human being. He and I simply disagree on significant constitutional issues. Neither my calling him “Mr. Nothing to Hide” in this post, nor my vehement disagreement with him, is intended to disparage him. I’m only using that name because he has not invited me to, nor given me permission to, mention his name on my blog. And since he has not engaged me on my blog and is not any kind of public figure, I have chosen not to use his name. If he decides to identify himself, I will switch to calling him by his real name because, at that point, there will be Nothing to Hide.

Categories: Law and Legal Issues


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