Monday, March 12, 2012

Some hope in American politics

I wrote a post yesterday which impinges on American politics. I simply observed that the alleged New York Madam who is being locked in solitary for failure to find $2 million in bail money was being denied her constitutional rights.

(I also criticized the recent executive grab for power by Eric Holder.)

I said I thought that the State abrogating Constitutional Rights was an unfortunate trend.

What pleases me is that (with the exception of a second amendment fundamentalist who objected to my off-hand assertion that the provision was antique) I have had almost universal agreement with this observation from both the left and the right.

I have gun-toting law-and-order right wing readers. They agree.

I have liberal readers. They agree.

I have libertarian readers. They agree.

I haven't seen this much agreement in any US political matter for a long time.

That is hopeful.



John

PS. As far as I know I don't have many Christian-fundamentalists who want a Christian State type readers. As I was standing up for the constitutional rights of a woman who is alleged to have provided women for prostitution I suspect there is a fracture line there. I did not see that in comments or emails received.

15 comments:

John Short said...

It's not so much the constitutional rights have been denied in this case that this seems to indicate a shift, it's that the common man/middle class is now more and more being denied these rights, while previously this happened only to the fringes of society like minorities, gays etc. The constitution has never been sacred, so this case isn't as alarming as you make it out to be. Hundreds of years ago you had the same constitution and also slaves, imo the constitution was trampled on more in that time.

John Hempton said...

John - as a historical reference the notion to the "same constitution and slaves" is just false.

The constitution counted slaves as three fifths of a person

http://en.wikipedia.org/wiki/Three-Fifths_Compromise

and still did not allow them to vote. it did however count them in representation...

The constitutional rights have never applied to non-citizens (hence guantanamo bay for non-Americans arrested on the battlefield and slaves) however we are now seeing them not apply to citizens (which is novel).

So far the citizens have not wound up in Cuba but in American courts. All except the guy who was assasinated with a drone and a few who were allowed to be detained by foreign governments.

Whatever - it is easy enough to make the case that constitutional rights are a nicety in terrorism. Its a case I do not agree with - but I understand.

The New York Madam however - it is simply not possible to make that case.

J

john b said...

John: I hate to piss on your chips, but I suspect part of the reason for what you've seen here might be that you have readers who're well-informed and capable of reasoned discussion.

The general polity (not just the US) also features a) a lot of people who know and care little about politics and who therefore act primarily based on fear and stereotype; b) quite a lot of power-grabbing politicians or lobbyists arguing in bad faith in order to stir up fears and create/reinforce stereotypes among the former group.

Anonymous said...

In theory, state prosecutors (and indeed, all "officers of the court") are mandated to seek justice and enforce the law fairly.

In practice, prosecutors are career driven. They seek to "win", and convictions for more serious crimes (with longer sentences) are bigger "wins".

In theory, prosecutors are supposed to seek bail commensurate with the flight risk and press charges that accurately reflect the crime.

In practice, prosecutors seek the highest bail possible and charge defendants with as many crimes as possible to use as leverage in plea negotiations.

In theory, criminal justice is about deciding guilt or innocence.

In practice, most cases don't go to trial and criminal justice is a negotiation between the state and the accused.

Anonymous said...

"The constitutional rights have never applied to non-citizens (hence guantanamo bay for non-Americans arrested on the battlefield and slaves) however we are now seeing them not apply to citizens (which is novel)."

That is not novel. That was also the position of the Bush administration. Jose Padilla was an American citizen arrested on American soil. He was designated an "enemy combatant" by Bush in 2002 and imprisoned without trial for over three years.

Anonymous said...

The US was established by two very distinct groups. Very fundamental religious people, and extremely serious business minded folks.

So, it's not surprising to see someone arrested for running a prostitution ring, and a tax avoidance "fiddle" being issued a massive bail bond.

Especially when a prosecutor is an elected political position.

Anonymous said...

More broadly speaking, however horrifying the current political stalemate appears, especially to foreigners, it is not contrary to how the Founders envisioned the system working. The Federalist Papers warn against tyranny of the majority, espouse deliberative policymaking, and well defined separation of powers. Partisanship, policy disaggreements, and occasional rancor are to be expected under a Madisonian system the founders setup, particularly in these times when there are many difficult and seemingly insoluble issues the country has to face. The solutions will not and should not be crafted by a bunch of unelected technocrats behind close doors as in Beijing or by autocratic dictate. Leaders derive the legitimacy of their mandate from the voters and from political speech, which (shock!) does include campaign finance and lobbying on BOTH sides of the aisle.

Most people who read this blog rely on computers and networks to facilitate their trades and investments. Tell me this, would you rather have your company's systems and networks routinely stress tested and poked for holes and espionage, as multinationals do all the time by employing ex hackers to try to break into their systems, or would you rather have a system that is never stress tested, is never contested, is never subjected to feedback. I dont view political systems and policymaking that much differently. Our Founders never intended to have harmonious, easy, seemless policymaking. They wanted stress testing and deliberation. You want efficient and swift policymaking, Nazi Germany, USSR 5-year plans, Japan's miracle 1980s economy led by MoF and MITI bureaucrats were surely efficient governments that could engage in swift consensus policymaking. I suspect China's 'policy lending' and 'social housing' haven't been subjected to much give-and-take either.

There's a reason Bismarck compared lawmaking to sausage production. I'll take partisanship, deliberation, and separation of powers over swift, consensus policymaking any day of the week.

JAL said...

Yet another one of NYC's rent-stabilized apartments where the rent is controlled to protect the poor tenant from the predatory pricing of the landlord. That ridiculous system is the other crime here.

Just Me said...

Your post gave me a chuckle, as unfortunately those in the categories that you mentioned represent such a narrow cross section percentage that they are incapable of influencing "change that we can believe in"

Another Constitutional provision that I would like to explore sometime is the ever increasing proliferation of "non willful" penalties for even the most benign failures to file some administrative form or another. This practice is shifting the burden of proof from the Government onto the offender. Instead of the government having to find you guilty of failure, you now have to prove that you have a "reasonable cause" for said failure to escape the penalty with attaches even for non willfulness.

This is especially true related to US requirements for filing FBARs, (Foreign Bank Account Reports) that the IRS is now using as its penalty hammer of choice to frighten a lot of minnow offenders into paying some outrageous penalties.

However, I suspect it applies more broadly in penalties everywhere. I was struck again about how America is becoming a "Penalty Nation", when I happened to notice all the penalties that have been added or increased inside the new "Surface Transportation Bill" coming out of the Senate S1813.

I never have seen any of these "non willful" penalties struck down on any constitutional grounds, but I can guarantee you, that if you live in America today, you are probably non willfully failing to file or do something or another. If they decide to penalize you, you are going to have a hard time providing you are not guilty as the penalty comes with the assumption of guilt!

Thoughts anyone?

dearieme said...

The English Bill of Rights of 1689 includes relevant complaints:

"That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;"

The Scottish Claim of Right of 1689has a particularly nice phrase by way of explanation of the difficulties:

"... invade the fundamental constitution of this Kingdom and altered it from a legal limited monarchy, to an arbitrary despotic power".

Anonymous said...

Dear Mr. Hempton:

I am a USA resident "Christian-fundamentalist who want a Christian State type" reader.

I very much enjoy your blog for its wholesome combination of humor and honesty -- all quite compatible with an orthodox Christian outlook. ("Sure I was reading it for salacious details of who the clients might be." Precious.)

I too, with the gun toters, liberals and libertarians, agree with your assessment of the Anna Gristina case. Is typifies an exuberantly punitive -- indeed sadistic -- strain of American culture. I suppose that such things should not surprise in the land where the prison guards' union can be a major political institution in one of our largest states.

Wishing you profitable investing and continued Ephesians 4:29-compliant writing.

John Hempton said...

All this makes me hopeful. A politician who takes on police and prosecutors for breach of the constitution sounds like they might get general support. Kind of interesting given the extent to which politicians fall over themselves to be tough on law-and-order issues.

--

Locking her up in solitary without conviction so they can get her to talk. That clearly oversteps line envisaged by the founders.

J

Jeff Matthews said...

Regarding your postscript, you will find that Americans on the extreme left can be as inconsiderate of constitutional rights as Americans on the extreme right. There is good reason Hitler's party was a "Socialist" party: under Socialism and Communism, individual rights are subordinate to the State. That is an historical observation of fact, nothing more, and not meant to be incendiary.

JM

rkka said...

JM, Hitler ran on a platform of private property, traditional roles for women, the role of the Christian churches in moral life. Anti-abortion too. And military buildup. He got every non-Socialist party in the Reichstag, to include the Center Party, the party of the Catholic Church, to vote in favor of giving him power to legislate by decree.

Only the Socialists voted against.

Enough with the lie that the Nazis were Socialist.

hcg said...

Sorry to disagree with you on this one. The constitutional ban on excessive bail does not mean bail shall be set in all cases so that any person can be released on bail. Flight risk is a legitimate concern,and passport/asset seizures/monitoring are not enough in all cases to prevent flight to avoid prosecution. Public safety issues are permissible as well, and really are paramount. Each case has to be considered on it's own merits, and any bail issues that are resolved for any reasons other that those stated above are abuses that the constitution does not sanction. Sadly, not all bail settings are reviewed because there are so many of them. Regarding the generalizations of prosecutors I have read here, they are overbroad and unfair. Yes, I was a prosecutor and district court judge, and bail issues were considered by me with the two factors noted above in mind.

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