Thursday, June 02, 2005

The US Constitution and the Bill of Rights: A True Conservative's Reading of a Radical Document

The Suburban Ecstasies: Twenty Incontrovertible Truths About the American Criminal Justice System, From Someone Who Knows and Has No Interest in Lying to You About It

I wanted to direct your attention to a very well written article that very much reflects my thinking about the criminal justice system. I agree with about 90 percent of the post and truth be told there is a lot of truth in the other 10 percent too. I think that the part about the Constitution being a radical document is an interesting one. In fact for its day, it was in fact radical. To hold to its meaning today I think means to be conservative. The problem is how does a true conservative read and interpret the Constitution? Let's see if I can stake out the positions as I see them:

A liberal thinks the constitution is a breathing document whose interpretation needs to change with the time (think Justice Brennan and Justice Douglas.)

A Neo conservative (think Justice Scalia and Justice Thomas) thinks the that the constitution means just what it says and doesn't expand to meet the times but is relatively stagnant and must be interpreted as it would be when it was written.

As a conservative, I think the Constitution needs to be read as the libertarian document it is. When deciding a case, the courts needs to understand that the Constitution is an outgrowth of a very important document, The Declaration of independence. Courts interpreting the Constitution's meaning, need to ask themselves, "how do I decide this case in a way that gives the most liberty to the individual without hurting or destroying the nation?" "How do I keep the king (the government) out of the home and pocket of its citizenry?" (I think Justice Souter comes the closest here.)

In the criminal justice arena, two more questions need to be asked: "How do I help keep the citizenry safe from crime, while not exposing it to the greater harm of allowing the government to much room to interfere with the life and privacy of the individual." And lastly, " How do I accomplish this in the least costly and onerous way?"

These two questions make criminal law a very different arena than civil law. Criminal law is about society as a whole. It is State v. Accused not Victim v. Accused. If it was the latter, then let the victim pay a lawyer and prosecute the case themselves. Why should the rest of us worry about and pay for their private vengeance. What as a society is in it for or us.

No, the criminal prosecution is a public procedure because it is about what is best for all of us, not just the victim or the accused. Too often in this era of political correctness, we lose sight of what is really best for all of us. Victim impact statements, mandatory minimums, even sacred cows like rape shield laws, are not in the best interest of the public as a whole. They may make an individual victim feel better, but do they help society as a whole?

No, not if the law forces us to punish someone who needs not be punished; or covers up a reasonable doubt by keeping the full picture from the fact finder; or causes a court to act out of the needs of a particularly sympathetic victim, rather than do what is in our best interest as a whole society.

The pendulum swings the other way too. Prison needs to be corrective and rehabiliative. People who threaten the safety of all of us, need to be warehoused at least for a sufficient period of time to render us safe from harm. Country Club prisons (of which their are probably none anymore) are as ridiculous and wasteful as their opposite hell holes.

Probation and parole are presently a joke. There are too many people per parole officer. Money needed to be beef up these departments is scarce, while we overspend by over incarcerating. Strong post arrest oversight requires that it be sufficiently able to ensure that the vast majority of "at risk re-offenders" do not reoffend. Finally personal improvement should not just be the goal, but ought be required of every sentence. The concept of "good time" should mean exactly that; no one gets out of jail or prison early who has not made a good faith attempt to better themselves while in jail or prison. Academic or trade school should be required, as should self help group participation, and or therapy if found to be necessary.

Once released, the ex con should be accepted back into our society to work and repay the victim her damages, or if none, then to repay society for their time incarcerated. A true conservative tries to improve society while costing it the least amount of capital, whether that be financial or human capital.

Hence that is why it is important that courts not be onerous. Sure we all want to punish the bad guy as much as we can. It makes sense and is what we are taught from a young age. However if we over or under punish we cost ourselves resources. Waste is not a conservative's friend. Government pays for waste, which is to say We pay for this. A court should never lose sight of what it costs us as a society, and what our gain will be as a society, when fashioning a sentence. No court has a right to waste an iota of our capital for personal pique.

Conservative means preserving what is good while not destroying growth and opportunity. One is not more important than the other. A true conservative harmonizes the two competing interests. A true Conservative realizes that he does what is best for the majority by protecting the civil liberties of the individual. Even when those property or civil liberty interests may seem to go against what the majority thinks it wants at any given moment.

When the societal need arises, A True Conservative sacrifices his own want for that of the betterment of society as a whole. A True Conservative understands that principal is more important than symbolism. He understands the value of one is not more than, or less than, the value of another, or all.

A True Conservative understands that teaching a person to fish, is better than giving him a fish, but you can't teach a hungry person all that much.

A True Conservative realizes that his willingness to make "it" happen, can overcome the failure of the village to pitch in, and that he has no right to force the village to act. In other words it doesn't take a village, but it is nice when the village wants to pitch in to help make "it" happen too.

A True Conservative understands that the devil is in the details. That when you sweat the small stuff the big stuff comes out right. When it comes to government, doing it right and getting it right is success. Doing it wrong but getting it right is luck. A society cannot count on luck.

The guy who invented Zen, was probably a True Conservative.

Anyway that's what I think, let me know what you think. Leave me a message here or visit me at my website by going to www.thatlawyerdude.com or www.Colleluorilaw.com. Both links take you to the same place but you're free to chose your own path :)
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