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Horrible Days

Posted by Rick · October 30th, 2004 · No Comments

I had a horrible Friday.

Normally, I don’t write much about myself, what I think, what I feel.

No doubt some of what I believe usually comes through in what I write. (Let me know when you stop laughing.)

Yet as shocking as it may seem — though I’m not sure many other people realize this — not all of what I believe comes through in what I write.

I spent the morning in Visalia, in a courtroom, watching — among other cases that morning — a preliminary hearing. A “judge” who apparently was once a District Attorney and was not told that he works a different job now, was handling the prosecution at the preliminary hearing for a couple of kids — low-life gang-bangers — who started to earn the stripes they’ll wear as criminals for the rest of their lives by doing a pedal-by shooting. (Seriously. Too young to drive, they used a bicycle for their drive-by.) It wasn’t that tough a job, either, since at least one defense attorney was apparently asleep. (Once, when the “judge” asked if he was willing to stipulate to a certain fact, he said, “no.” After the “judge” became upset, the attorney said, “Stipulate? Oh, I thought you asked whether I had any objection.”)

As I sat there, dutifully observing the activity in the courtroom, I saw various defendants coming and going. Most — nearly all — were the kind of folk that you look at and you realize, just from looking, they’re not the cream of society. You’re not surprised to find them in a courtroom, as defendants.

Frankly, I’ve always wondered how these folk don’t notice that their very “hairstyles” and clothing choices telegraph their status. Why don’t they, I ask myself, recognize this and scrap the sartorial signification of lower-class status? It’s not more expensive to buy a regular pair of pants than it is to buy a pair that says, “I’m a loser. One of the dregs of society.” It’s probable cheaper to avoid some of those “‘dos” and the gallons of blue-green gang tattoos than not.

At any rate, it was depressing to realize that my life is headed towards spending large amounts of time trying to keep these folk on the street instead of warehoused in some prison.

But the words of H.L. Mencken combine in my mind with those of Martin Niemoller:

The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

H.L. Mencken

They came for the Communists, and I didn’t object — For I wasn’t a Communist;
They came for the Socialists, and I didn’t object — For I wasn’t a Socialist;
They came for the labor leaders, and I didn’t object — For I wasn’t a labor leader;
They came for the Jews, and I didn’t object — For I wasn’t a Jew;
Then they came for me — And there was no one left to object.

Martin Niemoller, German Protestant Pastor, 1892-1984

And I have an inchoate theory that won’t allow me to give up the idea of doing criminal defense work, even though the people I’ll most often see in the work I do probably will make me think I made the wrong choices in my own life. And, currently, our society is transforming — slowly, but quite steadily (and it is picking up steam, too) — so that I can make no other choice.

The theory is about “constitutional” rights. The kind that used to mark us as a country. The kind without which our country does not exist — at least not the country we, as a people, have lived in for going on 220-230 years now (depending on whether you count our birth from 1776, 1787, or, as I do, from 1789). The rights are called “constitutional,” but that’s really a misnomer. As I’ve explained numerous times before, the Constitution was a document that created a limited form of government. The Constitution did not “give” us rights. In fact, if it weren’t for the fact that we already had the rights that people today seem to believe the Constitution “gave” us, there never would have been a Constitution. There never would have been a United States of America.

This is true because all the rights that humans have are naturally ours; we’re born with them. And because of that we were able to give some of those rights to an artificial entity. That entity — the limited government of the United States of America — would never exist otherwise, though we, the people, would. And it was conceived as a limited government because we did not give all our rights to it.

But, as I’ve written before, we’ve been tricked into thinking that the Constitution “gives” us rights and we’ve come to believe that if it’s not in the Constitution, it’s not a right. (And no one ever talks about the Ninth Amendment anymore.)

And my theory is similar to one you’ve probably already heard about before. The other theory is an economic theory. It’s the theory that says that as the rich get richer and the poor get poorer, the middle class shrinks. The middle class is the only group that actually suffers. When the rich get richer, they don’t notice it. Hell, they’ve already got more money than they could spend in their lifetimes. And the poor don’t much notice when they get poorer. They’ve learned to live with suffering. When you’re already at the bottom of the heap, you really can’t go lower.

And “constitutional rights” in our current model are like this, too.

This thought came to me this past week when I was talking to someone and she said, after I had commented on the damage Bush has done to our Constitution, “Well, why would Bush do that? I mean, he won’t be President forever. And doesn’t he have to live by the same rules?”

And the truthful answer is . . .

No, he won’t. And, no, he doesn’t. Those at the top in our society have never been subject to quite the same standard as everyone else. And those in our society who create the rules that abrogate the constitutional limits we, the people, put upon them at the creation of our government are seldom subjected to the negative consequences of those rules.

Similarly, the people at the bottom — folks like those I watched in the courtroom today — won’t really suffer all that much, either. After all — as people often remind me when I comment on the fact that we lose more often than we win and my “clients” (actually the clients of the various criminal defense attorneys for whom I work, since I’m not yet a lawyer myself) usually go to jail — they are usually criminals. And the Constitution, contrary to popular belief, does not “protect” criminals. It just makes sure that, when the full force of the government is going to be brought to bear upon someone, the government is going to be forced to prove that they are criminals; the government is going to have to show that they actually got the right person — and for the right crime.

Other than that it just exists “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

The people who really suffer, then, when the Constitution is mangled by the people at the top are not the people at the bottom. It’s the people in the middle. People like me. Probably people like you.

It is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

H.L. Mencken (emphasis added)

The road to “protecting” ourselves against “the bad guys” is often found at the edge of a slippery slope. And it is imperative that we carefully consider who it is that we allow to build that road for us. We must take care to remember where we came from. Do we fully understand what we’re committing ourselves to in following those who want to lead us into a new future?

Fighting “terrorists” and prosecuting criminals is all fine and dandy. But, as Keanu Reeves character, Neo, quoting Friedrich Nietzsche, put it in The Matrix,

Whoever fights monsters should see to it that in the process he doesn’t become a monster.

And if we aren’t careful about it — if we let our institutions crumble under the impact of well-intentioned, consistent, but consistently-wrong leaders who know nothing but fighting monsters — we’ll soon all be having horrible days.

Categories: Law and Legal Issues


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