Sunday, March 11, 2012

When did the US constitution cease to matter? (Oh, and a comment on the alleged New York Madam.)

I am a resident of a country without a bill-of-rights in our constitution. Whilst I think some of the rights are antique (second amendment, implied right to privacy in the fourth amendment which looks very difficult in the era of "digital papers") it is - I think - an improvement on our system.

That said, it is only an improvement on our situation if the constitution is not ignored.

This week we have seen an amazing power grab by the US Attorney General. To quote Eric Holder:
“Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”
Here is what the constitution says (Fifth Amendment):
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
I have - for the benefit of the Attorney General - highlighted the relevant section.

Incidentally I have quite a deal of sympathy for extra-judicial execution of a dangerous criminal. "Wanted, dead or alive" posters have been part of the American mythology for a reason. But I gather there was a valid arrest warrant for the person and if the person surrendered there was a legal process. These are I presume "processes of law" rather than (say) a process of the executive. The executive claiming that their process is sufficient to execute someone is - politely - novel.

But it is not the big cases that worry me about America. Its the little cases because through the little cases you can see the erosion of the liberties that made America great affecting ordinary citizens.

Linked is the New York Post article about Anna Gristina - the alleged New York madam with a roster of high class clients. Sure I was reading it for salacious details of who the clients might be. However I found myself getting more annoyed at the process.

You see she is innocent until proven guilty - and she is being locked up in solitary confinement on Rikers Island. Seems rough. But it was the statement that she was being held in lieu of $2 million bond that got me. She is a mother of four with deep connections to the United States. It is going to be hard to argue she is a major flight risk.

But somehow a $2 million bond (way more than most people could post) has been asked. This leads me to the eighth amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Somehow we have come to the conclusion that $2 million is not excessive bail. That I am puzzled by. When did America come to the conclusion that unless you were very rich you should be locked up pending trial for victimless crimes? What is it about the new American culture that does not think that $2 million bail is excessive?

Does anybody care or is Anna Gristina just another person arrested by police and hence guilty until proven innocent?


PS. If I had to guess the bail for a similar case in Australia - it would be bailed on her own surety (that is zero dollars). Australia's lack of a bill of rights looks pretty good here.


Market Indicator said...

Hi John,

As a fellow Australian, I too have struggled with the concept of bail bonds until I came across the following article last year ( I also draw your attention to a short post on The Picture Blog (

All the best,
Market Indicator

Sean Callahan said...

Go read some of the executive orders Bush put in place after Sept 11 and see how he eviscerated the Constitution.

Having lived for 28 years in the US, 12 in NZ and 3 in OZ, I don't know if Westminister or constitutional is better.

The former seems to leave you at the mercy of whichever party wins (or worse, whichever minor party holds the balance of power). The parties seem to hold all the power, instead of the electorate (which is why Gilliard is still Prime Minister).

The latter leaves you at the mercy of the special interests that support individual representatives (which is why Obamacare is such a mess, even though the idea is right).

Westminister legislation has much less special-interest language, probably resulting in shorter laws.

Constitutional legislation is subject to executive veto if it's bad enough.

Both OZ and NZ are much more nanny-statish then the US.

Rahul Deodhar said...

I am against this private jails business. I am all for privatization but this is taking it too far.

Also, you are right that bill of rights, by themselves, have no meaning. Seemingly, Indian constitution has bill of rights - fundamental rights. We had one called Right to Property. But some smart-a** thought government cannot guarantee property for everyone therefore they demoted it to normal legal right. So now we cannot go to the Supreme court with same earnestness as we could if it was a fundamental right. But they, we are a third-world country for a reason. That fellow should have known how to define property rather than tamper with the constitution.

Aside, in recent time, US has had the most number of transgressions over constitutional and democratic controls. Be it Paulson's bailouts, Iraq-Afghan war bills, Guantanamo, tear-gassing of OWS, etc. US truly looks like a third-world country.

dearieme said...

Doesn't your Constitution, or at least your law code, automatically embrace the English Bill of Rights of 1689? That's a bit of an oversight

gordon said...

I'm not so sure that we are actually without a Bill of Rights in Australia. Why shouldn't the 1689 version apply here as well as in the UK? The Australian constitution is an act of the UK Parliament, so I think that it imports the protections of the British Constitution, including that Bill of Rights.

Conscience of a Conservative said...

Stuff like this is the reason so many more of us in America are discouraged with Democrats and Republicans and identifying as Libertarians. There's been a huge erosion of personal liberties, rights, due process and well also basic contract law(you see that in the mortgage crisis and the MF Global saga).

Anonymous said...

If it was the Bush administration justifying executive executions, then there would be outrage...but alas there will be no outrage regarding this at all....

You will find out for sure if the constitution matters after the supreme court rules on the health care mandate. Indeed, there is now "hate speech" which can land you in jail...

If (or perhaps when) there is serious inflation in the US from the monetization of the debt, be prepared for more selective punishment, selective excessive bail, etc....

Anonymous said...

Her punishment for not even having been convicted yet as compared to Lawrence Taylor's for having sex with an underage girl (not even considering his blatant lack of remorse) seems highly inconsistent.

Anonymous said...

Her real sin is that her business, assuming of course there was one, intruded into the area of organized crime groups.

You know, the Mafia, Tong Societies, Triads, Yakuza etc.

Can't have that now can we ?

I won't even get into the whole drugs thing.

Gotta keep milking the sheeple.

EconFan said...

in many US states, prisons are run by for-profit corporations. Such companies lobby for laws and enforcement which increases number of jail inmates and their profits (there was recent article about AZ where this lobbying group wrote the law that was rubber-stamped by the legislature).
Such gaming of the constitution has accelerated(e.g. Citizens united) with Republican administrations.
Just as the refining and ditributing industry has a much bigger say than the producer on the price, so the state and local interests which delivers the 'liberty' has a much bigger impact on the bail(price) than the constituion(producer). You only have to live in a very red and very blue state for some time to realize how free you feel. You will see this in an even shorter time if you are a minority or a woman.

Tom said...

It's one of the great ironies of our age.

Because the American Bill of Rights is written down, people can worship the words rather than the ideals. Thus, American Supreme Court decisions frequently feature long discourses on what the meaning of certain words meant in 1789, or how an extra comma added at a certain place completely changes the meaning of the law.

It's the difference between an ossified Constitution written down on parchment, and a living unwritten Constitution that is instead defined by custom and usage. The American Bill of Rights remains intact after 200+ years. Whereas the English Magna Carta has been almost entirely repealed over the years -- because each repealed clause has been replaced by something better.

IF said...

You raise very good points. Unfortunately I have to report that they seem irrelevant to US Americans I interact with. Maybe they are numb by now, maybe they don't care because it doesn't affect them personally. Hard to tell.

A somewhat more original argument (that both a strong Obama supporter and also a republican/libertarian friend supported during dinner conversation) was that while drone strikes were unsavory it was positive that US citizens were not exempted. It would have been discriminatory otherwise. I couldn't follow, it sounded like globalization gone too far. But maybe my friends are outliers?

Anonymous said...

The Constitution hasn't mattered in quite some time. I imagine that Jefferson, Madison, Hamilton, etc are rolling over in their graves.

Gadfly said...

Religious fascists and right-wing Christian nutcakes are trying to take over my country - help!

Tom V said...

Nice catch John

I do note that the Second Amendment importance is critical then as now. A well armed populous gives .gov a cause for physical repressive pause. A disarmed society is so much simpler to oppress.

Best to you.

Tim said...


One thing I never got is why Australia didn't introduce a bill of rights like Canada did after both countries "repatriated" their constitutions(along with NZ)from Britain in the 1980s. Supposedly from what I remember Aus was no hurry until they saw Canada do it with cooperation of Britain and then they decided to do it also. One of the issues in both Canada and Australia I believe is how a bill of rights applies to provincial/state governments.

Kuldip Singh said...

It appears she has annoyed somebody in the 1%.
Kuldip Singh

Anonymous said...

I'm not sure facilitating prostitution is accurately described as a victimless crime.

Tim said...

The other thing John I am hearing about is a huge increase in the number of people renouncing their US citizenship related to something called FATCA which is attempt by the US to get foreign banks in countries such as Canada and Australia to report information on US citizen clients residing overseas(including those who hold Canadian or Australian citizenship for example). In many cases these individuals have little or no ties to the US and haven't in decades. In fact many cases these individuals affected believed they renounced their US citizenship decades ago(when they naturalized as Canadian citizens) but know the US wants their local banks to report on them. There is a whole website devoted to this at:

This FATCA issue is a true mess and believe could become the next black swan. I already know of several US born Canadians who have held consulations with one of the most high profile human rights lawyers in Canada to sue any Canadian bank that enters a FATCA information sharing agreement with the US IRS. Are you hearing anything on this front out of Australia.

Just Me said...

Hi John

As a US citizen residing in New Zealand since 2005, and living with an Australian wife for 30+ years, I was interested to find out about your Australian blog and this particular one about the US Constitution ceasing to matter.

It is a question I have been pondering myself, especially when America started the war of preemption on Iraq without the Congressional mandated Declaration of War.

Stephen Colbert has a pretty good tongue-in-cheek commentary about "due process' under his program, called "The Word". I am going to provide you the link, although I think it is blocked in Australia as Comedy Central seems to deny internet access in countries that have the program playing in your local media. I can watch it in NZ, however. A few months ago, I was in Sydney, and found that by use of a proxy server I was able to watch it.

Your readers may enjoy...

Finally, now that I have discovered you, I might just follow along and see if you are discussing FATCA and the impacts that will have on the Australian Financial Institutions and what concerns it might raise related to Australia's privacy rights.

Your press in Australia as been as silent as the New Zealand press, and the US MSM doesn't care, as they think this only effects the rest of the world, and that is not a concern of theirs. Wonder if all those marines coming to Darwin is helping squash Australia media coverage of US financial imperialism! Surely not! LOL

If you have discussed FATCA, I will do some searching on your blog to see what your understanding of this is. I fear that without a "bill or rights", Australia or its citizens may not be concerned about this US extra territorial reach.

Cheers, and look forward to following you more.


Anonymous said...

$2m bail is not excessive because it takes into account the fact that her clientele is extremely wealthy - and you can bet that if she needed to get out of the country at least one of them could swing it without any effort at all. It's obvious that since the investigation centers around those people, there's huge potential for one of them "removing" a loose end.

As for whether rich people get bail vs poor people - it's done based on wealth or potential wealth. And if you're above a certain level (aka, significant flight risk) they simply remand it all together.

Anonymous said...

Police in America arrest people for "failure to disperse when ordered to do so by a police officer"

Contrast with this part of the 1st amendment:
"the right of the people peaceably to assemble"

Thin ice indeed...

JeffDTom said...

@Tim In fact the situation with FATCA is only the tip of the iceberg. Many US persons abroad (citzens or green-card holders) are not US tax compliant because to be so would result in negative returns on their retirement pensions and double taxation of their hard-earned wages. Many have other citizenships, and many live in their country of second (or perhaps first) citizenship. The US treats its persons abroad like dirt. Many cannot even maintain bank accounts in the US because of the Patriot Act or other legislation. State governments are denying state-ID and driver's license renewal to non-military US persons abroad. Many are denied their right to vote or see it abridged (due to caucus physical presence requrements).

What about the recent NDAA (National Defence Authorization Act) which essentially authorizes the executive branch and the military to hold anyone indefinitely without trial? In a court case last year, a federal judge upheld the right of Obama to execute a US citizen abroad without trial.

BRM said...


Love the blog and your posts. I do note though (and I tried to read all of the above comments to ensure I'm not being redundant, sorry if I am) but she only needs to post 10% of that total bail amount in cash with the court. The idea is to set a bail figure that:

1) reflects the seriousness of the crime
2) provides a meaningful financial incentive for the accused to return to court

So if she say, has assets in the hundreds of thousands, you'd want to set bail in enough excess of that so that the cash component that must be posted (10%) accounts for a majority or all of her likely liquid assets.

I actually agree with the thrust of the post, but the $2MM in bail doesn't seem excessive to me unless she's flat broke.

Anonymous said...

U.S. citizen and resident here... When did it cease to matter? In short, the Bush administration. (At least in my lifetime.)

The Bush administration decided that the gov't had the authority to indefinitely detain or kill anyone - even U.S. citizens on U.S. soil - so long as that person was an enemy combatant. They also decided that the President has the authority to decide who is and isn't an enemy combatant. In short, if the President wants you dead or in jail, so be it. (They didn't exactly suspend the rule of law, just claimed that it didn't apply in certain self-defined circumstances and then acted accordingly.)

In a foreign theatre for non-citizens this is dubious morally (in certain circumstances) but not unconstitutional. But on U.S. soil, and especially applied U.S. citizens on U.S. soil, there is really nothing more blatantly unconstitutional. But the public accepted it without so much as a peep.

The Obama/Holder policy is really just a continuation of that policy. They don't use the term "enemy combatant" publicly anymore, but the outcome is the same.

And of course, there were also numerous other unconstitutional policies originating in the Bush administration such as warrantless wiretapping that were more nuanced but nonetheless clear constitutional violations.

The Bush administration claimed that all these powers derived from the President's authority as Commander-in-Chief. If the U.S. is at "war" and the "war" is being conducted on U.S. soil then the President can essentially do whatever he wants (as long as he pinkie swears that it's essential for the war effort).

Anonymous said...

To my knowledge, the only previous period in U.S. history when this position was considered even close to legitimate was during the U.S. Civil War, when President Lincoln claimed certain extra-constitutional powers for detaining suspected Confederate agents. But of course, the U.S. Civil War was an actual war: it had a defined enemy and a defined endpoint. It also had explicit, discrete conflict between combatants on U.S. soil. And even then Lincoln's actions caused a great deal of outrage, even in the North. The "War on Terror" is more like the "War on Drugs" in that there is no defined enemy and will continue indefinitely (neither drugs nor terror can be expected to surrender anytime soon). It is better described as a global police action; an ongoing campaign of law enforcement that incorporates military force. This is what makes the claim of power so pernicious. By calling the "War on Terror" a "war" and then claiming extraordinary powers during wartime, the Bush admin essentially claimed those powers indefinitely for every future American President. (It is like if a local police chief claimed that he had the authority to execute or indefinitely imprison "criminals", but only so long as crimes are still being committed.)

And not a peep was heard. Sure, some on the "far left" and "far right" thought it was outrageous and absolutely insane, but to an astounding degree the mainstream accepted or ignored what was happening (and continues to do so). I think this was due to a combination of (a) fear and desire for security, (b) social pressure to be "patriotic" and get in line when the country is "at war", and (c) complacency and the belief that it only affected "terrorists" ("them", not "us").

Of course, once a power is claimed by the government and accepted by the people, it is not readily surrendered. And it is easy to see how the definition of "terrorist" could be widened (just as the definition of "war" already has been). Already, many "regular" people who have committed relatively petty crimes (e.g. making written threats against a store after being provided with poor customer service) have been charged as domestic terrorists.

It is a sad state of affairs.

"They who can give up essentially liberty to obtain a little temporary safety, deserve neither liberty nor safety."
-Benjamin Franklin

Anonymous said...

Holder doesn't get to make up new terms, to suit his take on things. The Supreme Court long ago ruled that the interpretion of law must be based on the nominclature and definitions used at the time of adoption of said law. Holder apparently missed this chapter, in law school. We should resist the temptation to make moral and ethical judgements of yesterday's actions, using present day moral code.

Anonymous said...


The U.S. Constitution ceased to matter the day Barack Obama and Eric Holder were elected / sworn into power.

The U.S. cannot afford 4 more years of trampling by these two.

My 2c.

Anonymous said...

Just look up Dr. Mollie Frye, M.D. she and her husband are sitting in jail, that we are paying for, for recommending and selling marijuana to her patients. The Federal Government doesn't care that it is medical, or that five million people in california, alone, and 16 other states, voted to make it available to sick people. We have a corrupt system and it just seems to get worse.

Anonymous said...

John, this is only tangentially relevant to your post, but you may be interested since you seem to have developed a taste for US politics and law.

There was an 11th Circuit Court of Appeal judgement in the case of a child pornographer. The person in question had encrypted his hard drives, and refused to decrypt them, pleading his fifth amendment rights. A lower court had rejected his argument and found him in contmept when he refuused to provide the password. The appeal judges found that his hard drives were protected.

There are good arguments on both sides, so let's see which way your audience falls.

John Hempton said...

On that case: I think the appeal court is right.

Ugly case though. Person almost certainly guilty.

Australia however does not have a 5th amendment type protection. I think it probably should have.


Anonymous said...

"Australia's lack of a bill of rights looks pretty good here."

You mean like the Australian Left attempting to establish the Finkelstein Truth Court?

Anonymous said...

HI John,
The US Constitution is the bedrock of American power and to dismantle it has we have been is insane. While we readers support civil liberties, almost no one in either party, continues to do so. This last bill you mentioned, to restrict peaceable assemblies in "national security zones" received 432 of 435 votes in our Congress. For shame!

dearieme said...

The Constitution is ignored whenever it suits. Jeffferson famously admitted that the Louisiana purchase was unconstitutional. Lincoln ignored it wholesale. Wilson too: it was Harding who freed the socialists whom Wilson had locked up. And FDR. And LBJ: hell he fought a very large war without a Congressional Declaration of War. And so on and so on.

P.S. Thank you, John.

hmmmmmmmm said...

You are not following the case very closely and thus if you did , you would understand that it is not solely about Anna's prostitution and rumors of $10,000,000-$15,000,000 of prostitution money laundered

Prostitution is a class D felony , with probation as a normal sentence for a first time offender.
Money laundering is a class C felony , a normal sentence would be 18-36 months in jail .

The DA's office has been investigating this "case" for 5 years(!) and have 100+ hours of audio on her .
The DA's office is using its " public corruption unit" not its "sex crimes unit" on this case , extremely unusual .

Now you have to think about who is involved ..... is this about politicians ??????


John Hempton said...

Oh, I guessed the target was some politician customer of hers.

So we are allowed to violate her constitutional rights to go after our political enemies?

Come on - you can't be serious.

hmmmmmmmmmmmmmmmm said...

It's a good thing that you understand constitutional rights and how the courts work

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