Matthew – The Sermon on the Mount

JESUS THE SON OF MAN

His words and His deeds as told and recorded by those who knew Him

by Kahlil Gibran

MATTHEW

The Sermon on the Mount

Upon an evening Jesus passed by a prison that was in the Tower of David.  And we were walking after Him.

Of a sudden He tarried and laid His cheek against the stones of the prison wall.  And thus He spoke:

“Brothers of my ancient day, my heart beats with your hearts behind the bars.  Would that you could be free in my freedom and walk with me and my comrades.

“You are confined, but no alone.  Many are the prisoners who walk the open streets.  Their wings are not shorn, but like the peacock they flutter yet cannot fly.

“Brothers of my second day, I shall soon visit you in your cells and yield my shoulder to your burden.  For the innocent and the guilty are not parted, and like the two bones of the forearm they shall never be cleaved.

Brothers of this day, which is my day, you swarm against the current of their reasoning and you were caught.  The say I too swim against that current.  Perhaps I shall soon be with you, a law-breaker among law-breakers.

“Brothers of a day not yet come, these walls shall fall down, and out of the stones other shapes shall be fashioned by Him whose mallet is light, and whose chisel is the wind, and you shall stand free in the freedom of my new day.”

Thus spoke Jesus and He walked on, and His hand was upon the prison wall until He passed by the Tower of David.

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Mary Magdalen – On Meeting Jesus for the First Time

JESUS THE SON OF MAN

His words and His deeds as told and recorded by those who knew Him

by Kahlil Gibran

MARY MAGDALEN

On Meeting Jesus for the First Time

 

It was in the month of June when I saw Him for the first time. He was walking in the wheat field when I passed by with my handmaidens, and He was alone.

The rhythm of His steps was different from other men’s, and the movement of His body was like naught I had seen before.

Men do not pace the earth in that manner. And even now I do not know whether He walked fast or slow.

My handmaidens pointed their fingers at Him and spoke in shy whispers to one another. And I stayed my steps for a moment, and raised my hand to hail Him. But He did not turn His face, and He did not look at me. And I hated Him. I was swept back into myself, and I was as cold as if I had been in a snow-drift. And I shivered.

That night I beheld Him in my dreaming; and they told me afterward that I screamed in my sleep and was restless upon my bed.

It was in the month of August that I saw Him again, through my window. He was sitting in the shadow of the cypress tree across my garden, and He was still as if He had been carved out of stone, like the statues in Antioch and other cities of the North Country.

And my slave, the Egyptian, came to me and said, “That man is here again. He is sitting there across your garden.”

And I gazed at Him, and my soul quivered within me, for He was beautiful.

His body was single and each part seemed to love every other part.

Then I clothed myself with raiment of Damascus, and I left my house and walked towards Him.

Was it my aloneness, or was it His fragrance, that drew me to Him? Was it a hunger in my eyes that desired comeliness, or was it His beauty that sought the light of my eyes?

Even now I do not know.

I walked to Him with my scented garments and my golden sandals, the sandals the Roman captain had given me, even these sandals. And when I reached Him, I said, “Good-morrow to you.”

And He said, “Good-morrow to you, Miriam.”

And He looked at me, and His night-eyes saw me as no man had seen me. And suddenly I was as if naked, and I was shy.

Yet He had only said, “Good-morrow to you.”

And then I said to Him, “Will you not come to my house?”

And He said, “Am I not already in your house?”

I did not know what He meant then, but I know now.

And I said, “Will you not have wine and bread with me?”

And He said, “Yes, Miriam, but not now.”

Not now, not now, He said. And the voice of the sea was in those two words, and the voice of the wind and the trees. And when He said them unto me, life spoke to death.

For mind you, my friend, I was dead. I was a woman who had divorced her soul. I was living apart from this self which you now see. I belonged to all men, and to none. They called me harlot, and a woman possessed of seven devils. I was cursed, and I was envied.

But when His dawn-eyes looked into my eyes all the stars of my night faded away, and I became Miriam, only Miriam, a woman lost to the earth she had known, and finding herself in new places.

And now again I said to Him, “Come into my house and share bread and wine with me.”

And He said, “Why do you bid me to be your guest?”

And I said, “I beg you to come into my house.” And it was all that was sod in me, and all that was sky in me calling unto Him.

Then He looked at me, and the noontide of His eyes was upon me, and He said, “You have many lovers, and yet I alone love you. Other men love themselves in your nearness. I love you in your self. Other men see a beauty in you that shall fade away sooner than their own years. But I see in you a beauty that shall not fade away, and in the autumn of your days that beauty shall not be afraid to gaze at itself in the mirror, and it shall not be offended.

“I alone love the unseen in you.”

Then He said in a low voice, “Go away now. If this cypress tree is yours and you would not have me sit in its shadow, I will walk my way.”

And I cried to Him and I said, “Master, come to my house. I have incense to burn for you, and a silver basin for your feet. You are a stranger and yet not a stranger. I entreat you, come to my house.”

Then He stood up and looked at me even as the seasons might look down upon the field, and He smiled. And He said again: “All men love you for themselves. I love you for yourself.”

And then He walked away.

But no other man ever walked the way He walked. Was it a breath born in my garden that moved to the east? Or was it a storm that would shake all things to their foundations?

I knew not, but on that day the sunset of His eyes slew the dragon in me, and I became a woman, I became Miriam, Miriam of Mijdel.

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The Right to Counsel as Most Consequential: Tracking the Sixth Amendment from Warren to Roberts

A MOST IMPORTANT RIGHT

The right to counsel is important for “it is through counsel that all other major rights of the accused are protected,” and “ [o]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” Penson v. Ohio,1(1988), quoting Walter V. Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956).

Encompassed within the right to counsel is necessarily the “right to select counsel of ones choice,” which the Supreme Court has regarded as the “Root meaning of the [Sixth Amendment’s] Constitutional guarantee. United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006); see also Wheat v. United States, 486 U.S. 153, 159 (1988), “The right to select and be represented by ones preferred attorney is comprehended by the Sixth Amendment,” see also; Powell v. Alabama, 287 U.S. 45, 53, (1932), a defendant should “be afforded a fair opportunity to secure counsel of their own choice.”2 3

The Supreme Court has repeatedly stated that only through defense counsel’s testing of the prosecution’s proof may the public and the Government gain comfort that a conviction, once attained, is just. “Our criminal justice is premised on the well tested principle that truth, as well as fairness, is best described by powerful statements on both sides.”4 “Law enforcement may be assisted by preventing the infiltration of taint in the prosecutions’ identification of evidence and [t]hat result . . . can only help assure that the right man has been brought to justice.”5 See also, In re Grand Jury Subpoena served upon John Doe, 781 F. 2d at 259, “Fair trial envisions defense counsel playing a critical role in the adversarial system thereby furthering a just result.” Indeed, “[t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” United States v. Cronic,6(1984); quoting Herring v. New York, (1975); 7 See also, Wilson v. Mintzes, 761 F. 2d 275, 279 (6th Circuit 1985), “[the accused’s right to retain counsel of his choice is necessary to maintaining a vigorous adversary system and the objective fairness is prosecuted].”

As the Supreme Court has poignantly, and repeatedly noted, an inscription on the walls of the Department of Justice states the proposition candidly for the federal domain. . .“The United States wins its case whenever justice is done one of its citizens in the courts.”8

“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly,” Brady v. Maryland, 373 U.S. 83, 87 (1963)9.

“Due Process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely that to say that convictions cannot be brought about by methods that offend a ‘sense of justice,’” Rochin v. California,10 (1952).

“There is an additional safeguard against miscarriages of justice in criminal cases. . .that safeguard is the right to effective assistance of counsel,” Murray v. Carrier,11 (1986).

This paper will trace the application of the Sixth and Fourteenth Amendment to a Criminal Defendants’ right to be represented by effective, conflict free counsel as his or her own choice, and in specific focus on Warren Court decisions beginning with Gideon v. Wainwright12 (1963), and its progeny and then extending the analysis through the Burger, Rehnquist, and Roberts Courts’ decisions, on the application of the Sixth Amendment to a criminal defendant’s right to conflict free counsel of his choice.

APPLICATION OF SIXTH AMENDMENT PROTECTIONS TO THE INDIGENT

The forgoing introduction has demonstrated that federal law as defined in the decisions of the United States Supreme Court clearly establishes a Sixth Amendment derived right for a criminal Defendant to be represented by counsel. In Johnson v. Herbst,13 (1938), the Supreme Court ruled that indigent criminal Defendants charged with crimes in Federal Court have the right to counsel; however, at the time, Supreme Court holdings on the Sixth Amendment right to counsel were limited to the Federal Government, meaning that only those charged with federal crimes were entitled to legal representation14. The ensuing legal question was whether the Sixth Amendment right to counsel should be extended to the States through the Fourteenth Amendment’s due process clause, which provides that states “shall not deprive individuals of life, liberty or property without due process of law.”15

In its’ 1942 decision in Betts v. Brady,16 (1942), the court held “The appointment of counsel [to indigent persons] in a non-capital criminal case, is not a fundamental right essential to a fair trial.” This meant that criminal defendants not charged with crimes bearing the death penalty, who could not afford to pay a lawyer did not have the constitutional right to the appointment of counsel.

The Warren Court changed all this in its’ 1963 decision in Gideon v. Wainwright (1963); or did it?

The story of Clarence Gideon is a fabled one; the career criminal Florida convict sitting in his cell with a blunt pencil and a sheet of paper who reads the Sixth Amendment and achieves a curious clarity; if the Sixth Amendment says that a person accused of a crime is entitled to a trial where he can confront his accusers and have a lawyer represent him, then it should make no difference if he has the money to pay for one and that if he cannot, he should have one provided to him. He wrote a hand written letter to the Supreme Court of the United States which a law clerk read and brought to the Chief Justices’ attention.

Apparently, Gideon has postured his case squarely enough for the Court to accept it in the context of the long anticipated opportunity to strike down Betts v. Brady, supra, and it appointed the noted Washington D.C. attorney and constitutional scholar, Abe Fortas (a future LBJ nominee to the High Court), to represent Gideon in the certiorari proceedings before them. What followed was the Courts’ landmark decision requiring the states to appoint counsel to every criminal Defendant accused of a felony, regardless of their ability to pay an attorney. What resulted in ensuing Warren Court decisions was the fortification of those rights. However, the road from Gideon (1963) to Gonzalez-Lopez (2007), was not paved with constitutional gold. In fact, it has become very clear that the quality of legal defense for indigents is expected to be inferior to the services provided for those who can pay.

The Warren Court’s initial foray into criminal justice defendant jurisprudence came in
its’ 1961 decision in Mapp v. Ohio17 (1961), where Justice Tom Clark writing the majority vacated a criminal conviction based upon an unlawful search and seizure, for lack of probable cause and gave us his memorable reminder that when a wrongful conviction is overturned for a violation of a defendants constitutional rights, “it is the law that sets him free” and reminiscent of Justice Brandeis’ dissent in Olmstead v. United States18 277 U.S. 438 (1928), that “nothing will undermine a governments’ legitimacy than its’ willingness to violate its’ own laws, the very charter of its’ own existence.”19

In a majority opinion in Gideon, written by Justice Hugo Black, which was in essence a reassertion of his dissent in Betts v. Brady, an unanimous Supreme Court overturned Gideon’s conviction and held that the Fourteenth Amendment guarantee of Due Process must incorporate the right of indigent state court criminal defendants in all felony cases to have the Sixth Amendment’s right to counsel.20 That Gideon represented a major breakthrough on full application of the Sixth and Fourteenth Amendment guarantees on the right of the indigent criminal defendant to be represented by counsel, there can be no doubt.

The Warren Court fortified its ruling in Gideon through with its’ 1966 decision in Miranda v. Arizona,21 (1966) which require police officers to warn suspects of their right to counsel and against self-incrimination. 22

Gideon became the subject of a Hollywood movie starring Henry Fonda and Miranda has had numerous cameo appearances in Law and Order and other police television shows ever since. However, the Warren Court was not immune to public passions about crime and punishment and Richard Nixon’s appeals to the “silent majority23.” Chief Justice Warren himself would write for the majority in Terry v. Ohio24 (1968), where the court upheld a police “stop and frisk” without having probable cause. America began making its’ sharp turn to the right and the court began what would be a forty-four year decline; one decision; rule; exception; qualification and reversal at a time, in its jurisprudence concerning that the core constitutional rights of criminal defendants, including the right to counsel.

Today, federal law as decided by the Supreme Court of the United States is clear; an indigent criminal Defendant is not entitled to counsel of his choice; United States v. Gonzalez- Lopez25 (2006), supra.

Having now established that an indigent defendant in a criminal case is not afforded the same rights to counsel of choice as a person of means, the Supreme Court has continuously left in doubt, an indigent’s right to effective assurance of conflict free counsel. In Holloway v. Arkansas26 (1978), the court drew the lines which govern when court appointed counsel must refrain from representing multiple defendants in criminal cases. In Cuyler v. Sullivan27 (1980), the Supreme Court held that the right to counsel afforded by the Sixth Amendment included the right to conflict free counsel of choice, but stressed that an indigent defendant was not entitled to the appointment of successive publicly funded lawyers except under certain circumstances. In Strickland v. Washington28 (1984), the Supreme Court imposed a strenuous standard for review of ineffective assistance of counsel claims, requiring that the defendant demonstrate both that his attorney rendered deficient performance that the deficiencies prejudiced him. This threshold test for constitutional ineffectiveness has become especially burdensome for indigent criminal defendants to meet.

In Wheat v. United States29 (1988), the Supreme Court held that a criminal Defendant’s right to counsel includes that right to conflict free counsel, but that an indigent Defendant is not entitled to a succession of court appointed lawyers if he is not satisfied with his court appointed counsel’s performance unless there is demonstrated actual conflict of interest, which would operate on the defense caused by a complete breakdown in the attorney-client relationship.30

In Wood v. Georgia (1981), the Court reiterated the rule it established for Holloway, supra, concerning the operation of actual conflicts in criminal defense attorneys, once again making the burden to establish the attorney conflict more burdensome in indigent criminal Defendants because the cost to the taxpayer in paying for successive court appointed counsel would be excessive.

In Caplin & Drysdale v. United States31 (1989) and United States v. Monsanto32 (1989), decided on the same day, the Supreme Court carefully crafted procedures for when cash contraband seized and frozen in the course of a drug prosecution may be unfrozen and made available to pay the Defendants legal fees in defending such a criminal action. The protections afforded to the cash-rich drug cartel dealer to use his ill-gotten gains to pay his lawyers in Caplin and Monsanto, are completely inapposite to the Courts’ holding, where an indigent Defendants’ right and need for a publicly appointed lawyer to defend his criminal case are at issue.

In United States v. Stein, 541 F. 3d. 130 (2d Cir. 2008), the United States Court of Appeals for the Second Circuit, dismissed an indictment against multiple KPMG, Peat, Marwick, Mitchell & Co. (criminal Defendants), in a derivative liability white collar fraud case, because the government interfered with their employer’s established corporate policy of paying it’s employees’ work related criminal counsel’s legal fees. The panel was steadfast in upholding the defendants’ rights to have third party benefactors pay for their criminal defense; once again keeping intact for criminal defendants with access to private funds the right to counsel of their choice.

This was very different from the Second Circuit’s handling of a 2001 Sixth Amendment counsel deprivation decision, in a case depicting the deprivation of counsel to an indigent state court defendant who had an altercation with his court appointed lawyer.33

The state of legal services for the poor in the United States has reached crisis proportions.

Indicative of this, the New York Civil Liberties Union (NYCLU) filed a class action lawsuit Hurrell-Harring et. al. v. State of New York in 2007, challenging New York State’s failure in its constitutional duty to provide effective counsel to New Yorkers accused of crimes who cannot afford to pay private lawyers.34

This case targets public defense systems in Onondaga, Ontario, Schuyler, Suffolk and Washington Counties, New York, for failing to provide adequate public defense services. The case was filed on behalf of defendants from these five counties. On August1, 2008, a State Supreme Court Justice denied the state’s motion to dismiss the case. In July 2009, the Appellate Division of New York State Supreme Court for the Third Judicial Department, in a split decision, reversed the lower court’s denial of the state’s motion to dismiss. In May 2010, the State Court of Appeals, New York’s highest court, overturned the Third Department in a historic 5-4 ruling, allowing the case to proceed. The case is now in the discovery phase and is making its way through the trial stages. The outcome could have an extraordinary effect on Defending Justice for the Poor in New York State and throughout the nation.35

In addition to the crisis in indigent representation in criminal cases, recent downturns in the economy and the fallout from the so called “subprime mortgage’ lending crisis and the associated predatory lending practices of institutions such as Bank of America, Countrywide Mortgage, Wells Fargo Bank and others, have exacerbated the hardships and injustices caused to indigent people who are made to proceed to litigation without adequate legal representation in civil cases. Mortgage foreclosure cases, evictions in Landlord-Tenant proceedings as well as consumer lending related matters can potentially be as threatening to the right to happiness and fairness that are bedrock to our democracy as cases which result in unconstitutional liberty deprivations.

New York State has recognized the grave proportions of this crisis and the State’s Chief Judge, Jonathan Lippman, has conducted hearings with Gillian Kirtland, Professor of Law and Economics at the University of Southern California, where extensive testimony was presented concerning the potential role of non-lawyer advocates in helping low income households in New York who are experiencing problems that are legal and civil in nature. Chief Judge Lippman has created a Task Force to address the urgent need for the judiciary to change the landscape of options available to those with legal needs. Authorizing intelligent, trained and well supported non-J.D. legal assistants to assist the poor in civil cases has been successfully undertaken in the United Kingdom where there is a long history of allowing a wide variety of differently trained individuals and organizations to provide legal assistance to the poor and the system there has been widely recognized as a success.

The United States on the other hand has little experience with non-J.D legal assistance. Washington State has made progress in this area and now has under consideration a plan to afford, “Limited License Legal Technicians” to perform carefully defined services for people, without direct supervision of an attorney. The new rule in Washington establishes a Limited License Legal Technical Board to oversee the implementation of new rules and to provide strict oversight of the non J.D. Practitioners.36

Within New York, federal and state law currently allow non-lawyer advocates to participate in administrative hearings and proceedings involving certain kinds of public benefits, including State public assistance benefits, Medicaid, food stamps and Medicare. The next logical step will be for the Chief Judge’s Task Force to promulgate rules to allow non-J.D. representatives to assist indigent persons in civil cases and stem the tide of economic injustices and waste which are running rampant in the existing adjudicative framework.

State and Federal prisoners in the United States are left little option but to obtain legal assistance in criminal and civil matters in prison law libraries where fellow inmates, with minimal education and training, are often the only source of legal assistance.37

The undeniably remarkable leadership and commitment to civil liberties demonstrated by Earl Warren has resonated with American Constitutional History since the late 1950s. Over time, The Supreme Court has significantly moderated its extension of sixth amendment protections and allowed its decisions to be effected by public outcries for increased law enforcement. It has been in the interest of the Supreme Court to rule with a coinciding sensitivity to American popular politics. Since the Warren court, we have seen the narrowing of the expansive civil liberties outlined in cases like Gideon and Miranda, as more conservative political eras have influenced the courts to chisel away at the Warren progeny; and, to some degree become and extension of law enforcement. Justice Scalia referenced that “Attorneys are not fungible” in Gonzalez-Lopez. I would challenge Justice Scalia with a reminder that Justice is also, intrinsically, not fungible; therefore, it is inherently unconstitutional to compromise the sixth amendment liberties for economic interests.

1 Penson v. Ohio, 488 U.S. 75, 84 (1988).

2 Profound consequences may flow from this choice, for “[l]awyers are not fungible, and often ‘the most important decision a defendant makes in shaping his defense is his selection of an attorney.’” Moreover, “[t]he selected attorney is the mechanism through which the Defendant will learn of the options which are available to him. It is from the attorney that he will learn of the particulars of the indictment brought against him, of the infirmities of the Government’s case and the range of alternative approaches to oppose or even cooperate with the Government’s efforts. United States v. Laura, 607 F 2d. 52, 56 (3rd. Circuit (1979)).

3 Horwitz, Morton J. The Warren Court and the Pursuit of Justice: A Critical Issue. New York: Hill and Wang, 1998. Print.

4 Penson v. Ohio, 488 U.S. 75, 84 (1988)

5 United States v. Wade, 388 U.S. 218, 238 (1967)

6 United States v. Cronic, 446 U.S. 648, 655 (1984)

7 Herring v. New York, 442 U.S. 853, 862 (1975)

8 Woodward, Bob, and Scott Armstrong. The Brethren: Inside the Supreme Court. New York: Simon and Schuster, 1979. Print.

9 Brady v. Maryland, 373 U.S. 83, 87 (1963)

10 Rochin v. California, 342 U.S. 165, 174 (1952).

11 Murray v. Carrier,1 477 U.S. 478, 496 (1986).

12 Gideon v. Wainwright, 372 U.S. 335 (1963)

13 Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard UP, 1977. Print.

14 Horwitz, Morton J. The Warren Court and the Pursuit of Justice: A Critical Issue. New York: Hill and Wang, 1998. Print.

15 Bernstein, R. B., comp. The Constitution of the United States with the Declaration of Independence and the Articles of Confederation. New York: Barnes & Noble, 2002. Print.

16 Betts v. Brady, 316 U.S. 455 (1942)

17 Mapp v. Ohio, 367 U.S. 643 (1961)

18 Olmstead v. United States, 277 U.S. 438 (1928)

19 Urofsky, Melvin I. Louis D. Brandeis: A Life. New York, NY: Pantheon, 2009. Print.

20 Lewis, Anthony. Gideon’s Trumpet. New York: Random House, 1964. Print.

21 Miranda v. Arizona, 384 U.S. 436 (1966).

22 Trachtman, Michael G. The Supremes’ Greatest Hits: The 37 Supreme Court Cases That Most Directly Affect Your Life. New York, NY: Sterling, 2009. Print.

23 Horwitz, Morton J. The Warren Court and the Pursuit of Justice: A Critical Issue. New York: Hill and Wang, 1998. Print.

24 Terry v. Ohio, 392 U.S. 1 (1968)

25 United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)

26 Holloway v. Arkansas, 435 U.S. 475 (1978)

27 Cuyler v. Sullivan, 446 U.S. 335, 100 s. Ct. 1708, 64 L. Ed. 2d. 333 (1980)
28 Strickland v. Washington, 466 U.S. 668 (1984)
29 Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L-Ed. 2d 140 (1988)
30 Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L.Ed. 2d 220, (1981)
31 Caplin & Drysdale v. United States, 491 U.S. 617, 109 S. Ct. 2667, 109 S. Ct. 2667, 105 L. Ed. 2d. 528 (1989)
32 United States v. Monsanto, 491 U.S. 600, 109 D. Ct. 2657, 105 L. Ed. Ld. 512 (1989)
33 See e.g. Gilchrist v. Keefe, 260 F.3d 87 (2nd Cir. (2001))
34 “Hurrell-Haring Et Al. v. State of New York (Challenging New York State’s Failure to Provide Adequate Public Defense Services) | New York Civil Liberties Union (NYCLU) – American Civil Liberties Union of New York State.” Hurrell-Haring Et Al. v. State of New York (Challenging New York State’s Failure to Provide Adequate Public Defense Services) | New York Civil Liberties Union (NYCLU) – American Civil Liberties Union of New York State. New York Civil Liberties Union (NYCLU), n.d. Web. 10 Dec. 2012.
35 [See, Vimeo, “Defending Justice for the Poor, Hurrell-Harring v. New York,” Steven Downs Esq., New York Civil Liberties Union and Mardi Crawford Esq., New York State Defenders Association, August 25, 2012, In Our Name, Restoring Justice in America, Conference, Andrew J. Zarro, Co-Coordinator, http://www.inourname.org] http:// vimeo.com/52619265
36 United States of America. The Supreme Court of Washington. IN THE MATTER OF THE ADOPTION OF NEW APR 28 – LIMITED PRACTICE RULE FOR LIMITED LICENSE LEGAL TECHNICIANS. By J. Owens. 257000-A- ed. Vol. NO. N.p.: n.d. Ser. 1005. http://www.courts.wa.gov. 14 June 2012. Web. 10 Dec. 2012. (Appendix 17 at page 1087)
37 Bounds v. Smith, 430 U.S. 817 (1977)

From the Vantage Point of the Framers; The Development of American Law and Public Policy Since 1776

John Adams once observed that the purpose of a true republican form of government was to provide as much happiness to as many people as possible. At the time of ratification of the Constitution, Benjamin Franklin said that the new document would be workable only until such time as when the people became so corrupt as to make way for a despot. Thomas Jefferson saw property rights as the life force of the democracy, and presciently announced that any gap between rich and poor, laborer and employer, the propertied and non-propertied would result in an intolerable diminishment of liberty. Certainly, these men and their colleagues at the Philadelphia Convention of 1776 had not defined or even contemplated such things as the post- reconstruction era passage of the Fourteenth Amendment and the ensuing doctrine of “substantive due process,” which would be used for centuries to come to ensure compliance by the several states with the Federal Bill of Rights, the expansions of the rights to privacy and free speech under the First Amendment or the vast array of regulatory and economic prescriptions and proscriptions to be advanced under the umbrella of the Commerce Clause.
What the Framers were attuned to was what they did not know; therefore, they drafted, some would say, an organic living document, the Constitution and the Bill of Rights, which were themselves based upon the principles enunciated in yet another organic document, the Declaration of Independence.
Supreme Court Justice Ruth Bader Ginsberg has championed the case for the organic Constitution, the “living organism” in a collegial rivalry with her fellow associate Justice Anton Scalia, who makes a compelling argument that the Constitution is not a living document at all, but just a document; a contract between the governed with the government to be read strictly and literally and limited to interpretation within its written boundaries. What would the founding fathers think or say if they were on the scene today? This paper will address that question in the context of some of the most significant opinions of the United States Supreme Court, with emphasis on the opinions of Justice Louis D. Brandeis, whose 1920s body of work has had a profound transformative effect on American Democracy.
Thomas Jefferson was cautious about the exercise of Judicial Power to the point of specifically equating judicial activism with Oligarchy.i He cautiously began the discussion of how contemporary America views the application of the Bill of Rights to principals of ordered liberty; this can be reduced to Jefferson’s fear of Judges, and the creation of a “government by Judiciary” through the transformation of the Fourteenth Amendment.ii

Some say that the Framers intended the Bill of Rights to apply to the National Government and not the States, a position affirmed by the Supreme Court in Barron v. Baltimore (1833).iii Judicial Activists as well as many Legal Scholars now believe that the Fourteenth Amendment prescriptions for due process and equal protection of law were intended to extend the Bill of Rights to the States. In Gilbert v. Minnesota (1920),iv the United States Supreme Court decided that the abridgment of speech by a state was not protected by the Federal Constitution. In his dissenting opinion, Justice Louis D. Brandeis expressed that such a state law infringement on basic rights “is not one merely of state concern, because such a state law affects. . . rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty. There are rights which are guaranteed protection by the Federal Constitution.” Justice Brandeis went on to say in his dissent in Gilbert v. Minnesota, supra, that the Fourteenth Amendment was not intended solely to protect acquisition and enjoyment of property, but also to protect core liberty interests.
Within a short time, other Supreme Court Justices would quote Justice Brandeis’ dissent on Gilbert for majority opinions expanding Fourteenth Amendment protections to core civil rights violations by States.
Justice Brandeis wrote many of his most important opinions in the 1920s, paving the way for an expansion of civil liberties, establishing a constitutional basis for privacy, and supplying a strong permanent foundation for the requirements of free speech in a democratic society as well as other fundamental rights. In his powerful and prescient dissent in Olmstead v. United States v, Justice Brandeis condemned government, prosecutors, police and informants for illegal wiretapping and for breaking the law in order to convict an accused. He used his dissent in Olmstead to emphasize to all government officials, from Police Investigator to President, that when any government official violates citizen’s constitutional rights as a means to prosecute alleged criminal conduct, it undermines the law and forfeits its legitimacy.

“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law, the ends justify the means. To declare that the Government may commit crimes in order to secure the conviction of a private criminal, would bring terrible retribution against this pernicious doctrine thus court should resolutely set its face.”vi,vii
In the majority opinion in Olmstead, Chief Justice Taft had emphasized that the Framers, in drafting the Fourth Amendment, had nothing more in mind than the general warrants used by the British in the 1760s and 1770s, and that the Fourth Amendment thusly appealed to little else. In his recently published biography of Louis Brandeis, historian Melvin I. Urofsky captured the essence of the Justice’s philosophy on adhering to not merely the letter, but the spirit of 1776 and how the Framers drafted the Constitution with Government oppression in full view.
Justice Brandeis’ dissent in Olmstead, invoked Chief Justices Marshall’s reminder, “‘We must never forget that it is a Constitution we are expounding.’ Times had changed since 1791 and Justice Brandeis, in Olmstead, cited case after case to show that the Court had constantly read Constitutional provisions to take into to account, conditions never envisioned by the Framers. The technical nature of the entry did not matter as much as the intent of the Amendment [Fourth], to protect people in their homes and businesses. Time works changes, brings into existence new conditions and purposes. Subtle and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to attain disclosure in court of what is whispered in the closet.”viii
Further in his dissent in Olmstead, Justice Brandeis’ best juxtaposed the question of whether or not the Framers would agree or disagree with the proposition that the Constitutional safeguards they envisioned should be marginalized by government excess or minimized by restrictive judicial interpretations by the Supreme Court, as follows:
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth”ix Olmstead, supra.
In the Olmstead dissent, Justice Brandeis not only wanted to call attention to the issues of privacy and respect for the law; but also about how the due process clause of the Fourteenth Amendment should be interpreted. Justice Brandeis would later remind his colleagues that in revisiting the opinion and dissents in Olmstead, “. . .reviews of the opinion would see that . . . in favor of property, the Constitution is liberally construed. . . in favor of liberty, strictly.”x Brandeis especially wanted to advance the idea he originally set forth in Gilbert v. Minnesota, supra, that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the States. Court Justice McReynolds extended this judicial philosophy in two of his leading opinions following Gilbert, and soon thereafter, the Court would apply First Amendment free speech protections to the States, on the basis of the Fourteenth Amendment, Gitlow v. New York (1925).xi
Later on, in his concurring opinion in the Whitney v. California (1927)xii, Justice Brandeis again guided the court back to the Framers’ principles on liberty and government oppression. Whitney involved a 1919 California legislative act which targeted Communist Party activity and perceived Communist threats to violently overthrow society. The broad question presented by Whitney went far beyond free speech and Socialist activist Charlotte Whitney’s conviction under the California Criminal Syndication Act of 1919 for helping to organize the Communist Labor Party in the State. The law made it a felony to organize or knowingly become a member of an organization founded to advocate the commission of crimes, sabotage or acts of violence. Whitney denied that her group ever intended to become an instrument of crime or violence and the State offered no evidence at her trial that the Party had ever engaged in violent acts. Nonetheless, the trial court found her guilty and on appeal her conviction was affirmed, essentially based upon the rationale that the Federal Due Process Clause did not protect ones liberty to destroy the social and political order. It was in this posture that the case came before the Supreme Court, and upon which Justice Brandeis rendered his landmark concurrence in Whitney. Whitney presented only Due process and equal protection grounds. Because the Court had not therefore determined when “present danger” became “clear” in the context of its’ prior First Amendment rulings, Justice Brandeis, joined by Justice Holmes, went on a rant against the Court’s restrictive interpretation of Free Speech.
Once again, Justice Brandeis, here in collaboration with Justice Holmes, posited that the Framers surely had in mind more than simply allowing people to engage in hearty debate. Justice Brandeis described in vivid detail the intention of the Framers in protecting Free Speech as republican “civil virtue” or “civil courage” virtues which go far beyond traditional notions of free speech and extend to the very nature of democratic society. In enunciating these principals, Justice Holmes stated, “Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” “…Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears…Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion…Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it,” Whitney v. California, supra, Brandeis, L., concurring.xiii
Obviously one could shed different Judicial light on the question of whether or not the Framers would be inclined to agree or disagree with current governmental and judicial abdications of practical rights in pursuit of ordered liberty. The Roberts Court has relied less and less on expansive Fourteenth Amendment Substantive Due Process analysis in securing rights, privileges, and immunities guaranteed by the first ten Amendments to the Constitution to the States. In his recent publication “Reading the Law”xiv, co-authored with constitutional scholar Bryan Gardner, Supreme Court Justice Anton Scalia has stated that devotees of Substantive Due Process have exceeded any reasonable interpretation of the intent of the Framers and have far exceeded that intent by inventing doctrine and ascribing motives never offered or intended by the men who wrote the Constitution.
No Justice of the twentieth century had a greater impact on American Democracy then did Justice Louis Brandeis. Historians and Legal Scholars now believe that the Reconstruction Congress intended for the Fourteenth Amendment to apply to the Bill of Rights to the States.
In the 1920s, when Justice Brandeis asserted the position that the Fourteenth Amendment operated on political as well as property rights, he stood nearly alone; his application of the idea of “incorporation” during his Supreme Court tenure set the stage for the great Judicial “rights revolution” of the 1950s and the 1960s.
Today, the vast majority of scholars and judges now agree with Justice Brandeis’ position that the Framers intended to protect the “right to be let alone,” and his warnings about violations of our rights to privacy and free speech become all the more critical in these times of technological intrusion and stifling national security policies.
The Framers understood that democracy is a work in progress; “a daily, a weekly, a monthly process,” as President Kennedy once described it.xv The Framers knew the difference between the vision and the view. Strict Constructionists see what is in front of them, not what lies ahead. They see a brown bag under the front passenger seat of a vehicle in a high drug use neighborhood, and the Framers view of the Fourth Amendment as limited to the Kings Writs of Assistance in pre-revolutionary America; They see the right to Free Speech as a vehicle to enable corporations to make unlimited contributions to political campaigns but stifle ordinary political, religious, and artistic expression on the basis of post September 11, 2001 national security exigencies; they view the right to counsel of ones choice in a criminal trial as reserved for those who have money for lawyers, and regard the Great Writ of Habeas Corpus, once held with the esteem of a sacrament, now eviscerated by the Anti-Terrorism and Effective Death Penalty Act of 1996xvi, and essentially reduced to its nuisance value.
In what may be his two most significant Judicial opinions, his dissent in Olmstead and his concurring opinion in Whitney, Justice Brandeis made it powerfully clear that a democratic society must never sacrifice liberty for security or marginalize freedoms out of fear of the unknown. These principles were founded squarely on the writings of the Framers, and in particular, Benjamin Franklin, who wrote: “They, who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
So what would the Framers have thought about the prospects of Article III Judges expanding judicial review from the narrow confines of supervision of procedure in the courts as a means of securing constitutional boundaries and imposing limitations on power to the outright control of legislative policy making?
The Framers never dreamed that Judicial power could be expanded to the point where courts substitute their own views of public policy for those of legislative bodies as they have done since the late nineteenth century.xvii The concept of Substantive Due Process would be expanded much further years later by Supreme Court Justice Hugo Black who would develop the doctrine of “natural law due process,” not directly derived from the Constitution by rather created by individual justices’ interpretations of “ordered liberty”xviii, dissenting opinion; but where do these judges derive the authority to apply such dogma? Or, put another way, whence does the Court derive the power to free the American people from the “chains of the Constitution.” From the “tyranny of the dead,” that is, the Founders?”xix

Justice Anton Scalia, examined the effect of the Court’s expansion of its interpretive role as it specifically relates to the democracy and the political process. In his recent book, “Reading the Law,” Justice Scalia traced the expansion of judicial activism in the Burger, Rhinequist and Robert’s Courts.
In United States v. Nixon (1973),xx in a unanimous opinion authored by Chief Justice Warren Burger, the Court directly intervened in a dispute between the House Judiciary Committee and the Executive Office of the President and carefully circumscribed the long standing doctrine of Executive Privilege when it distinguished documents related to national security from materials related to suspected criminal wrongdoing in the White House.
The effects of United States v. Nixon on the political process and the democracy were and continue to be very significant and go to the core of the Framers concept of the doctrine of separation of powers. In the advent of U.S. v. Nixon, the American Presidency has been cut down to less than imperial size and made to bear some resemblance to its second cousin, the Prime Minister, in terms of the accountability of the office to the co- equal Legislative Branch.
In Bush v. Gore (2000)xxi, in a 5-4 decision, the Court imposed itself directly in the Presidential electoral process, side stepping further review by the state court and literally electing the next President of the United States.
In Citizens United v. Federal Election Committee, (2010)xxii the Roberts Court again imposed the Court on the national electoral process by ignoring the chief issue presented by the litigants at bar and carving out an issue which would enable them to radically alter McCain Feingold, which had theretofore set the bar for campaign finance reform, and utilizing the free speech guarantees of the First Amendment, gave private corporations, domestic and foreign and Political Action Committees the unfettered right to make unlimited campaign contributions to political candidates of their choice in national elections.
In Skilling v. United States, (2010)xxiii the Court in a series of majority and concurring opinions invalidated certain provisions of the federal mail fraud statute. Justice Ruth Bader Ginsberg, writing for the majority, struck down the “honest services” provisions of the law for constitutional vagueness and in so doing nullified the Enron era convictions of Enron CFO Jeffrey Skilling, Health Com CEO Richard Scrushy, and Canadian Publishing magnate Conrad Black, thusly handing a major setback to the Administration in its efforts to prosecute epidemic corporate fraud.
And in National Federation of Independent Business v. Sebelius (2012)xxiv or “Obamacare,” Chief Justice Roberts, writing for the majority upheld the core provisions of the Administration’s controversial Health Care reform act, demonstration the Court’s reluctance to overturn an act of Congress.
Each of these decisions had major impacts on the American Democratic process and the society itself; they went beyond mere questions of the application of constitutional provisions to specific rights.
So it is that our delicate and imperfect balance of power, the checks and balances devised by the Framers to protect against the onset or recurrence of tyranny, comes and goes, rises and falls and invariably effects the democracy.
Would the framers be happy or even content with the current state of judicial primacy in American life and more importantly with the application of guaranteed constitutional protections to core rights? The answer is probably as elusive as the great experiment itself.

No reasonable view of the Federalist Papers or the Debates preceding the Ratification of the Constitution or reading, the political and philosophical views of the Framers of the Constitution could lead to any conclusion other than that, John Adams, Thomas Jefferson, Benjamin Franklin, and their contemporaries would differ in their answers to the question. There are too many variables at play to answer the question definitively and that indeed may have been the Framers greatest strength, the ability to deal with the uncertain; however, given the restraints of this papers’ prompt, I believe that the Framers would be essentially dissatisfied with the contemporary U.S. political system as outlined in this paper.

i Peterson, Merrill D. Thomas Jefferson and the New Nation; a Biography. New York: Oxford UP, 1970. Pgs. 37, 61, 102. Print.
ii Peterson, Merrill D. Thomas Jefferson and the New Nation; a Biography. New York: Oxford UP, 1970. Pgs. 284, 491-493. Print.
iii Barron v. Baltimore, 32 U.S. (7 Pet.) 243. 8L. Ed. 672. (1833)
iv Gilbert v. Minnesota, 254 U.S. 325, 41 S.Ct. 125 (1920)
v Olmstead v. United States, 277 U.S. 438 (1928)
vi Urofsky, Melvin I. Louis D. Brandeis: A Life. New York, NY: Pantheon, 2009. Print. vii Olmstead v. United States, 277 U.S. 438 (1928)
viii Urofsky, Melvin I. Louis D. Brandeis: A Life. New York, NY: Pantheon, 2009. Chapter 25: A New Agenda: The Court and Civil Liberties. Print.
ix Olmstead v. United States, 277 U.S. 438 (1928) x Olmstead v. United States, 277 U.S. 438 (1928) xi Gitlow v. New York, 268 U.S. 652 (1925)
xii Whitney v. California 274 U.S. 357 (1927)
xiii Whitney v. California 274 U.S. 357 (1927)
xiv Scalia, Antonin, and Bryan A. Garner. Reading Law: The Interpretation of Legal Texts. St. Paul, MN: Thomson/West, 2012. Print.
xv Address Before the 18th General Assembly of the United Nations, September 20, 1963. Series 3. United Nations General Assembly. Digital Identifier: JFKPOF-046-041.
xvi Full Title: An Act To deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.
xvii Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard UP, 1977. Pgs. 300-305, 307. Print.
xviii IN RE WINSHIP , 397 U.S. 358, 381-382 (1970)
xix Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment. Cambridge, MA: Harvard UP, 1977. Pg. 282. Print.
xx United States v. Nixon, 418 U.S. 683 (1974) xxi Bush v. Gore, 531 U.S. 98 (2000)
xxii Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
xxiii Skilling v. United States, 561 U.S. ___ (2010)
xxiv National Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012)