Equity Parole Review Seminar

The following was a Keynote Address that Jonathan E. Gradess, the Executive Director of the New York State Defenders Association, gave at the Eastern New York Correctional Facility in Napancoh, New York on January 30, 1982.

In my heart I believe that  early this morning deep in your hearts some of you must have felt that you could not stomach one more white man from outside these walls standing  up to address you with clichés.

Some others of you, I trust, at 7:00 this morning had only one thought in your mind about this symposium-how to use it as a tool to gain freedom.

Some of you I am sure in the midnight soul of your imprisonment conceive of it as crazy that an outsider should give the keynote address here.

Here being the place-the prison-where 945 human beings live away the moments of their lives. 945 people who have within themselves the most important speech ever to be delivered. Each of you has a speech to give. It is inside of you, and I have come here today to ask you to deliver it.

It is said that, “In the land of the blind the one-eyed man is king.” I think, however, that in the land of the blind the one-eyed man is a freak. And here, in this alien environment, outsiders are freaks. Lawyers are freaks. Government officials are freaks. Anyone who isn’t doing time is a freak.

At the end of this symposium, when the correctional officers hustle the invited guests out the door, most of us will go home to sleep in houses or apartments that have heat. And light. And warmth. Where the sheets are clean and the pillows are fluffed. Where we are free. When we reach deep sleep, we sleep proud of our good day’s work on behalf of you.

So I say to you that our words, the words of invited guests and supporters, should be given only the weight they deserve-must be given only the weight they deserve. Anyone who stands on this platform should be held accountable for what they say and accountable for what they do.

If this were the Rotary Club, the Lions Club, the Kiwanis Club that is the way it would be. Well this is Napanoch Prison and that is the way it should be.

If you sleep in a nine by six room in a state paid prison built with the taxes of your mother and your father, your children and yourself-if you sleep in such a place–48 or 50 square feet-if you live in such a place and listen to clichés from this platform, and you don’t demand accountability from the speakers, you don’t yet know the address of the prison in which you reside.

I have come to ask you for your help. And I want to tell you a little bit of the “how” and the “why” of that.  I didn’t come to you first. No one who wants to transform the face of New York’s criminal justice system goes to a place in which the powerless and the broken are housed. At least they don’t go there first.

It is the job of those of us who want to change this system-and I don’t mean tinker with it-I mean tum it on its head-it is our job to translate for you sometimes because you have been restrained in your efforts to do that.  It is hard to carry the message of prisons and prison problems without help from you and your families.

In Albany they call us, sometimes, the “hoodlum lobby.” Because we do not deliver the votes of a union, because we do not come with the wealth of the banks, because we do not ride with those in political favor, our voice is not easily heard. And our message about how very, very wrong prisons are as institutions is sometimes easily ignored.

Any civilization that wanted  to change its penal system, any nation state that wanted to change its correctional system, any one of these United States that wanted to reform its criminal  justice system would come first here. Representatives would not be sent to great universities. They would not seek the public comment of the reformers and the sociologists. They would come first here or to one of the 32 other prisons just like this. And they wouldn’t dispatch a team of investigators. They wouldn’t come under the color of the protection of an invitation. They wouldn’t come in broad daylight. If government cared, it would have a constant presence in the halls of this building. It would be living up to its obligation to make you secure in the walls of this prison. It would dispatch its most caring and useful citizens to investigate and respond quickly to every complaint. And soon, if government cared, there would be no need for complaints. For soon the inevitable brutality of prison, not a philosophical issue but a gut issue, would be the daily fare of policymakers who cared.

There is no doubt in my mind that if Hugh Carey, the Governor; and Mario Cuomo, the Lieutenant Governor; and Edward Regan, the Comptroller; and Robert Abrams, the Attorney General; and Basil Patterson, the Secretary of State; and Lawrence Cooke, the Chief Judge of the Court of Appeals; and Stanley Fink, the Speaker of the Assembly; and Warren Anderson, the Majority Leader of the Senate; and the 208 other members of the New York State Senate and Assembly, if they could spend a year with you, or even a month, or perhaps even a week, not under color of an invitation,  but living as you live, there is absolutely no doubt in my mind that  the penal system of New York State would be transformed overnight.

They would see the truth, and the truth would set them free.

They would see that we have imprisoned guards and inmates alike in concentration camps of fear. They would feel the four o’clock in the afternoon agony of an inmate on work release who has to return to the institution as a dog. They would come to know the pain of men and women with long, hard, minimum sentences the pain that those men and women feel when they think of their children who grow ten years without father, or without mother.

I didn’t come first to you. I went first, with others, in one way or another, to the public officials I mentioned. I will tell you also that I have spent nearly half of my life engaged in criminal justice work. It took me almost all of that time to understand the principle of accountability. And I am only now beginning to understand it, to work with it, and I come here to share it with you. And I want to share that lesson with you because I accompany you, whether you believe it or not. I accompany you in your imprisonment.

There are others who share my feelings and my beliefs who accompany you as well. And as desperately unbelievable as it may seem, and I suspect that it is desperately unbelievable, there are thousands of people outside of these walls who believe as I believe, who speak as I speak, who share what I say, and who respect you as the unique and irreplaceable people you are. And let me add by way of reference point, so there absolutely is no mistake, I understand and know full well, not only because I am a defense attorney, but precisely because being a defense attorney  has not been my sole experience, that  many of you are here for cruel and brutal acts. I know that it is possible in the middle of the night for a human being to throw another human being off the roof of a building, less than 18 blocks from the Supreme Court House in Bronx, NY.  I know that it is possible to shoot someone to death.  I know that it is possible to shoot someone to death and not know that you have done it. I know that it is possible to bind the hands of another human being and force them to eat feces and to beat them again and again. I know that it is possible to spring trap a cellar door and to hit whoever falls through it with a lead pipe, steal their money and run, without ever so much as conceiving of their prey as a human being. I know that it is entirely possible to walk through a door from a Tuesday to a Wednesday, making the sum total of one mistake, one impulsive act, one desperate descent into cruelty and barbarism and have that change every moment of your life thereafter. I know all these things and I came here to talk to you because I know them.

I came to you to ask you for your help. It is hard to talk to people on the outside about crime. It is hard to talk to them about the people who commit it.

To tell them that despite their fear and despite the cruelty of crime, prisons are not the answer. Hard to tell people and to make them understand that prisons destroy the human soul.

It is hard to make public officials understand that their major fundamental responsibility in the area of crime and justice is to make the victims and the perpetrators of crime whole people, by whatever means necessary.

I learned a way to talk about this more gently, not surprisingly from an inmate at Ossining Prison. I want to share with you a story, a metaphor for mercy, if you will.  If I had only five minutes on this platform, this story would be the only thing I would say to you.

A father and his son were together in their apartment. The father had paperwork to do. The son wanted time to be with his father and to have his father play with him. And the father said he needed about half an hour to work. He took a magazine and thumbed through it. The father saw in the magazine a picture of the world. He tore the picture of the world into little pieces and laid it carefully on the floor and told his son that as soon as he could put the picture of the world back together he would have time to play with him. And he gave him scotch tape and let him go to work. And his son went to work, and in a few minutes had the picture of the world back together. He brought it to his father. The father was amazed and said to his son, “Son, You are only five years old. You have never even seen a picture of the world. How could you put it back together so quickly? I had torn it into a hundred pieces.” The boy turned the page of the magazine with the picture of the world over and showed his father a picture of a man that was on the other side. He said to his father, “It’s true. I don’t know what the world looks like, but I know what a man looks like. And when I put the man back together, the world came back together naturally.”

In September of this year, I received from Harvey Brown, here at the place where you reside, a copy of the Equity Parole Review Proposal. The argument in support of it was economic. In fact, it stated that the most compelling reason to support equity parole review was economic. I don’t believe that. The reason equity parole review makes sense is simply because long minimum sentences of incarceration make no sense. In fact, they are cruel, vindictive accidents of history.

Some of you have been in this prison system since the time that pizza cost five cents and the subway cost fifteen. The reason equity parole review makes sense, whether the economic argument is compelling or non-existent, is because long hard time destroys human beings. And the State of New York should not be engaged in the destruction of human beings.

I speak to politicians frequently. I am told by them that “the people in the streets” want more severe sentencing. I am told that “the people” want long, hard terms of incarceration. They tell me that “the people” want the death penalty. That “people” want to clean up the streets-to stop drugs-to stop muggings. The excuse of politicians when they explain away their support for this system must be then that the voters of New York want savagery.

It must then be that the voters want to destroy poor people’s families. It’s the voters who want to separate parents from tl1eir children. It must be the voters who want to insure inevitably a relationship between joblessness and crime-between crime and the inability of the poor to have decent housing. They say, “It’s not us, it’s them.”

Well, that was the exact position of white Southerners regarding segregated drinking fountains in 1947.  It was the exact position of white bigots in the North and the South concerning the maintenance of segregated schools in 1951.  That is the exact position that permitted the grandfather clause to keep Blacks across the South from voting.  That is exactly the rationale that that put you in the back of the bus.  And don’t make any mistake why I say you.  Seventy percent of this prison system that the so-called “people” want is Black and Hispanic, under 30, unskilled, without high school diplomas, and from the City of New York and Buffalo.

I believe that it is time for the price of oppression to go up. I tell you that there are thousands of people ready to move on criminal justice reform in this state. But they need you to help them to do it. They need to be registered to vote. The people I am talking about are the people who you love and who love you. They need to have their faith rekindled and they need to come to know that there are a lot of politicians who are staking their entire political careers on the proposition that there no longer exists in this country a massive interracial movement for peace and social justice.

Well I know that sometimes it feels like tl1at. But that isn’t the truth.  What is the truth is that there is need for the visibility of such a movement-for the rekindling of a non-violent movement that holds government accountable for its failure to serve the needs of people, for its failure to look into the eyes of starving children and feed them. For its failure to put aside its wealthy, wasteful ways, and to put broken people back together again. And there is something about accountability. Something that I have learned. And that is that everybody is accountable to somebody. And what we have to do is work our way up the chain of accountability. And that is why I am here to ask you for your help. Because we on the outside can’t work up that chain alone.

Some of the most powerful labor unions in the nation consist of fewer than 100,000 people. If each prisoner in the state of New York loved three other people on the outside and could convince them to register to vote, and to vote, they would create overnight a magnificent constituency of voters-voters who would have the power to raise the issue of what should be done with crime and justice, so that people like me and the “hood­lum lobby” could get on with our work and get the job done on building the future that ought to be.

But it happens that there is something more insidious about this prison business than meets the eye. Somehow the experience as a degrading institution is uniquely known to each of you and your families, but it doesn’t get translated to the Capital of his state. Caring about human beings is not a legitimate political position. The alien quality of prison, the destruction  of families, the separation  of you from the only city you may have known, the inability to see, to visit, to constructively communicate  with the people who are your only link to freedom-all of these things take their toll. But they are not yet important in Albany because they are not yet truly known.

We have found that time after time in visiting with people in prison that inmates keep a secret part of themselves as the only place where freedom can continue to reside-the freedom not to share your feelings, the freedom to maintain intact your innermost self. So what happens when outsiders come in under the color of the protection of an invitation? Rather than presenting the unique human being that exists, the unique human being is kept inside and the political being comes out. The person who says, “The most compelling reason for equity parole review is economic,” that simply isn’t so. Again, the most compelling reason for equity parole review is because lots of people who are currently kept in prison ought to be out of prison.

I have three simple propositions and I want to state them. The first is, and I alluded to it before, that inmates and guards are in prison together. The reason that prisons are perpetuated is because there is a need to maintain more than 12,000 jobs that are attached to running the Department of Correctional Services. There is a need for the public, and the guards union, and guards who want to operate in good faith, to talk about the very real union issues that are involved in retraining correctional officers to do productive work. The only way that alternatives to incarceration and the prison abolition movement will succeed is when we can guarantee to Council 82 that we will be liberating the inmates and the guards at the same time. There are thousands of correctional officers, as hard as this may be to believe, who don’t like to come to work. Who hate these prisons as much as inmates do? Who are saddened by the degradation and offended by the waste? It is necessary for you and your families and for us to understand this issue and to relate to it.

Secondly, it is necessary to have register to vote every person you love and every person who loves you, and to cast ballots at election time on behalf of a system of true  justice, to remove from office the cruel and barbarous. And to keep in office those who would bring the future about.

The third issue, and this is relevant to what I’ve said about how you present equity parole review, is you need to bring the legislators of the state of New York into the prisons by direct invitation. Right now you are as invisible to them as they are to you. Section 146 of the Correction Law of this state provides that any legislator at any time can enter a correctional facility at will. It is possible that the first five times you ask them to come, they will be too busy. Continue to ask them. Bring them here. Have them meet with you and your families. Bring them here until they have been here a hundred times-until they are recidivists for justice.

Deal with them as you would a minister and demand of them service. But talk gently to them because only you can civilize them and make them understand what at their hand is perpetuated in this system every day. And in talking gently to them try  to let them understand that it is entirely possible to walk through a door in any day of one’s life and completely and utterly change­ doing on Wednesday something  radically different than what one did on Tuesday.  As I said before, all of you know that that can happen. And that it can have terrible consequences. But you have to trust your ability to translate your experience to those who don’t understand it. And to know that one can walk through a doorway both positively and negatively.

If a senator or an assemblyman or a government official comes here, or a member of the Department of Corrections or Tom Coughlin or Ed Hammock or me, if we come here and hear you talk about the problems of temporary release or those of Good Time, or complaints about rules and regulations, or the appeals process, it is nowhere near as significant as hearing you talk about yourself-to talk about, and legitimately talk about, how bad prisons are. This prison culture is not alien because it is governed by the Correction Law and the rules and regulations of the Department of Correction, and a thousand directives that you have never gotten your hands on. It is an alien environment because it is artificial. It isn’t real.

Out there, beyond the walls, people say to me tl1at I’m not realistic, that  I live in a fantasy land. And I tell them, although you can understand it and they can’t, that there is no greater fantasy than the one that surrounds the idea that you can take people born to be free and stick them in concrete and steel cages under duress, in an invisible empire, impregnated by the Ku Klux Klan, and governed by a standardless system of perpetual punishment-there is no greater fantasy than that such a process will work to do anything positive in all the world. And I believe that the message can only get out over the walls by bringing politicians in here to talk to you. And I don’t mean a symposium. I mean on a one to one basis.

Legislative change, in my opinion, does not flow from a rational analysis of problems. I don’t even think it flows from meritorious proposals. And so far I have not seen it respond particularly well to issues of fairness, mercy or justice. Legislative change seems to flow from a subjective analysis of problems. There must, therefore, be a subjective understanding of the people in prison and their condition. Of prisons and what they do. All this before change will occur.

During the last session of the legislature I commenced with others a personal process of trying to bring legislators on a one to one basis to prison. Not for the purpose of discussing political issues or legislative proposals, but for the purpose of meeting and discussing people. Our first trip was unsuccessful. Inmates were interested in speaking a political message and hoping against hope that a legislator would bring it back and maybe bring legislative reform.

Our second trip was not much better.

But we went back. We met with inmates. And we prepared them for later trips by asking them to become vulnerable. To dig into that inner reserve that they never share with each other and that they never share with an outsider. And we did it by asking questions and asking them just to answer them so that  they could portray the reality of things as they are. What we did was simply ask if we could cross examine them on an issue of importance:

Question: What year were you convicted? Answer: 1971.

Question: What year were you sentenced to prison? 1972.

From where: Manhattan

When was the last time you were in Manhattan? 1972.

In the last ten years, when did you have your last visit? 1976.

When is the last time you saw your grandmother? 1974

Did you have a job when you were in Manhattan? Yes.

What did you do? Swept out a drugstore. Have you had a paying job since? No.

Have you ever been outside the state of New York? No.

Prior to your incarceration, did you ever live outside the City of New York? No.

Did you ever cross the Hudson River when you lived in Manhattan? No.

Have you ever been to Canada?  No. But I have been to Clinton County.

Have you ever walked on the main street of Dannemora?  No.

In the land of the blind, the one-eyed man is a freak. You are experts about yourself and it is the story of your life – the keynote speech of your existence-that you need to begin to tell. And you need to join with others to tell it. You need to take yourself up more gently and speak directly to the people that you and your families elect and re-elect to political office.  As if it was the Kiwanis Club.  As if you were the Rotary. As if this was Lions International.

I don’t know how to expect human beings raised in America to relate to a rational reform of the criminal justice system unless their inner most selves are exposed. And unless their inner most self reaches the inner most self of another human being. It is only in that way that the crime becomes unimportant and the process of the future takes on new meaning. And it is only when legislators on a one to one basis, upon your invitation, are confronted with the reality of prison and the experience of the lives of you and your family-it is only then that they will come to understand the length of time that is involved in a ten year minimum sentence.

When you speak to them translate to them in human terms. Many of them have daughters 26 years old. Sit down with them and plot with them the course of their daughter’s life from age 16 to 26. And compare it with what you have done in the last ten years in prison. Talk to them about the ache they felt when their son was but two years away in Vietnam. Ask them when was the last time they had Thanksgiving with their grandmother? You are not going to humanize this system, and neither am I, by talking about it in objective terms, any more than we can humanize you and me by talking about us in objective terms. If you expect people to be more than  the sum of their experiences, and I mean here people of wealth and power, but also people of good faith who know little of the world of poverty and pain. If you expect such people to be more than the sum of their experiences, you will be asking of them exactly the same thing that they ask of you. It is as much your job to civilize the policymakers of this state as it is mine.

I say to you as.clearly as I stand here that two things are necessary to change and transform the criminal justice system of New York. And I say it in the face of people who don’t believe it can be done. And who are gambling their entire political careers on the fact that it won’t be done. Get everyone you know and love and who can love you to register to vote. And in meaningful terms, translate that vote into a new agenda for change. One which assures the security of the streets, speaks truth to power, and makes politicians and legislators accountable for what they do.

Secondly, invite legislators and politicians to this prison all the time. Make sure they say yes. Collect their “no” answers. If they refuse to come, publish the fact that you have asked them ten times in the Albany Times Union. It will require you to become vulnerable and to tell about your inner most self and the love you deeply feel for the people you deeply love. And for this to work you will have to do it together, in the unified spirit of a single problem. With a faith to share with each other despite the hatred you may feel for some of the others in this room. And the unified spirit of doing it must include doing it for your brothers and sisters yet to come here. And with the idea that it should not be any one group alone but every group. And there are 102 of them in the state of New York recognized by volunteer services as legitimate organizations. At the same time that you ask politicians to respond to the human side of the problem, make sure they know that you are developing 75,000 votes on the outside, voters who are also interested in the human side of the problem. And if it should be that you love 5 people or that 5 people love you, register them too. And maybe that75,000 will grow to 125,000.

And so at the same time that I am here to sup­ port equity parole review and any other early release mechanism, I am here to ask you to help me. And I leave you with one more old saying that puts it into perspective. I learned it from Mercedes McCambridge, who herself, though an actress, came from the depths of alcoholism, from the pits of despair and depression. A woman who learned in her own heart that one becomes strong by becoming vulnerable.

She speaks about taking a little bit of clay and fashioning an image of you and an image of me, and then breaking them, and smashing them, and rebuilding that clay again so that  in the image of me there is a little bit of the image of you. And in the image of you there is a little bit of the image of me. And ever more together we shall be, and under the same quilt of peace shall we someday sleep.

Thank you for hearing me.

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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)