Blawg Review #282

 Posted on September 19, 2010 in Uncategorized

Last Friday was Constitution Day, a day when, by law, every educational institution receiving federal funds has to educate its students about the constitution (Ruthann Robson, Constitutional Law Prof Blog).

Or, as I call it, the thinking person's Patriot Day.

Constitution Day has been around since 2004, but blog posts including the phrase "Constitution Day" are up almost 300% between September 12-19, 2009 and September 12-19, 2010. Why? Mondo Frazier (Death By 1000 Papercuts) certainly has it right:

It only took 19 months of the Obama administration–aided and abetted by a Congress more intent on pushing unpopular laws than protecting the freedoms of the citizens who elected them–to spark this renewed broad interest in the U.S. Constitution.

To which this 15-year criminal-defense lawyer says, "it's about damn time!" Because one day out of the year we all ought to at least make noises like the Constitution is important.

A search for "Constitution Day" turned up the ED.gov blog, which I was sad to discover had nothing to do with Bob Dole. Rather, it's the website of some vast federal bureaucracy. According to that site, the Secretary of Education gave a Constitution Day speech "encourag[ing] students to honor the freedoms provided by the Constitution by working hard to shape their own destiny." That's the Constitution as vague platitudinous motivator.

Unlike the District of Columbia, where you can be fined for showing people where the Constitution is (Todd Henderson, Truth on the Market), the blogosphere allows me to serve as your meagerly-paid tour guide to the best of the blawgs.

When we talk about the Constitution, we often pick our favorite part. As did this customs agent, on Scott Henson's (Grits For Breakfast) Constitution-Day return to the U.S. from Canada wearing a t-shirt memorializing the Fourth Amendment:

"That's a great t-shirt," he announced with a grin, "I'm a big fan of the US Constitution, especially the Second Amendment. You know, I took an oath to uphold and protect the Constitution when I took this job," he added, "and if you ask me, these days the biggest threats are coming from within this country instead of outside it, if you know what I mean." I had in fact not asked him, but I nodded my head in agreement, even though one imagines he and I likely disagree over exactly what internal threats the Constitution presently faces.

"Especially the Second Amendment." Because we do tend to pick and choose the parts of the Constitution to which we dedicate our energy, don't we?

Doug Berman (Sentencing Law and Policy) quotes some of my own favorite parts of the Constitution and opines that the criminal-law related provision given the least respect or attention in modern times is the Reprieves-and-Pardons Clause of Article II ("The President... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment"). That wouldn't even have occurred to me... which just goes to prove Berman's point.

I did a quick-and-dirty tally of blog mentions of various parts of the Constitution. The First Amendment, you will be unsurprised to learn, is huge in the blogosphere, with about 13,565 mentions between September 12 and September 19, 2010. 1

The leading First Amendment blog is the Legal Satyricon, where Charles Platt notes that U.S. Supreme Court Justice "Breyer compares burning a Koran to shouting "Fire!" in a crowded theater." Platt continues, in dry Satyriconista style, "I guess this must mean that if you do anything at all which upsets delusional wackos, you are not protected by the First Amendment. That's good to know."

It's good to have sites like Legal Satyricon, since the First Amendment is petty functionaries' least favorite part of the Constitution. Why? Because it allows people to -gasp- criticize people like them aloud. Eugene Volokh (The Volokh Conspiracy) writes of Wisconsin family-court orders that a woman never again speak online about her ex-husband, and not speak online about his lawyer for four years:

The injunctions strike me as patently and vastly overbroad, and therefore clearly unconstitutional. Even if a narrow injunction of constitutionally unprotected speech - such as an injunction against repeating statements that have been found to be libelous - might be constitutional (a matter that remains unresolved), an injunction against all Internet speech about a particular person can't be squared with the First Amendment.

On Constitution Day a petition for writ of certiorari was filed (Conor McEvily, SCOTUSBlog) asking:

Whether the states may, consistent with the First Amendment, restrict attorney advertising that involves unverifiable claims, including implied claims about the quality of attorneys' legal services, and marketing techniques that do not assist the public in the intelligent selection of counsel.

Sometimes we might be tempted to think the petty functionaries have a point. Would this advertisement, which David Shulman (South Florida Estate Planning Law) brought us word of last week, qualify as "marketing techniques that do not assist the public in the intelligent selection of counsel"?:

(The sign was later removed from the bench near the Broward County courthouse.)

Mike Masnick makes an argument for First Amendment geeks to love: that copyright law itself violates the First Amendment (TechDirt). But-while we criminal-defense lawyers focus our energy on the Fourth, Fifth, Sixth, and Eighth Amendments-Terry Hart reminds us that there is more to the Constitution than the Bill of Rights when he tells us how the Copyright Clause, Article I, Section 8, became part of the Constitution (Copyhype). If Masnick is right, then copyright law was constitutional only from September 17, 1787 to December 15, 1791.

The Second Amendment is big on the blogosphere too, with 1,281 blog mentions in eight days. (Curiously, people blogging about the Second and Tenth Amendments are much more likely to abbreviate the ordinals than are people blogging about the other Amendments in the Bill of Rights. Similarly, people blogging about Article II are much more likely to use the Arabic, rather than Roman, numerals.)

Below the Second Amendment, interest quickly peters out until you reach the Tenth.

False confessions-a problem that the Fifth Amendment should minimize-were in the blogs last week, as was the possibility that police forces could record interrogations. Nate Burney writes at The Criminal Lawyer:

There's been growing pressure for police departments to videotape interrogations, and the practice has been adopted here and there. There are no good reasons not to tape interrogations - digital cameras are commodities now, and digital memory is insanely cheap. Detectives can review sessions at will, gleaning more (and more accurate) data from them over time. They can only help the police do their job.

Scott Greenfield (Simple Justice) says that videotaping confessions may help:

But it most assuredly won't be an ironclad guarantee that false confessions won't happen. The art form of interrogation will adjust to a camera, and cops will refine their technique to make sure that it plays well to a jury. Short of the video capturing a suspect being beaten, the interrogation will have some of the trappings of coercion, as most do, but also fall into that problematic area that people don't confess to crimes they didn't commit.

But Mike (Crime and Federalism) reminds us that there's a good reason that the FBI doesn't record interviews:

"Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants."

The FBI seeks invisibility because, as Paul A. Rahe (BigGovernment.com) points out, "when human beings armed with authority are invisible, they tend rightly to suppose that they can get away with a lot."

If the Sixth Amendment is your thing (I know it's mine), Gideon (A Public Defender) advocates improving jury trials by allowing jurors to ask questions in closing argument, and Brian Tannebaum (Criminal Defense Blog) encourages you to complete a survey:

A curriculum is being developed by the ABA, NACDL and the Spangenberg Project at George Mason University for an upcoming indigent defense training and technical assistance project funded by the Department of Justice Bureau of Justice Assistance. This comprehensive curriculum will be developed to present four regional training programs across the country for lawyers representing indigent persons in criminal cases. The survey closes on October 4th.

If you are a fan of the Seventh Amendment, court-o-rama is about the only game in town.

Interest spikes again when we get to the Tenth Amendment. "Federal power bad, state power good" is a recurrent theme among those who come to Constitution Day via the Tea Party (see Jayde Wyatt at Mitt Romney Central: "Our U.S. Constitution stands as a testimony for those who founded our nation and their belief in limited federal government power" [emphasis added]), but those state legislatures are a much greater and more imminent threat to individual freedom than Congress is.

The Tea Party influence is everywhere this year. There's a ConstitutionDay.com website (by parties unknown), "recognizing all who, are born in the U.S. or by naturalization, have become citizens." I, a U.S. citizen neither born in the U.S. nor naturalized, feel left out. That site's myopic catalog of types of U.S. citizens may reflect its authors' wishful misinterpretation of one of the less-sexy original parts of the Constitution that has been getting a lot of airtime, this clause of Article II Section 1:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President....

Randy E. Barnett and William J. Howell make the case for a "Repeal Amendment," allowing the legislatures of two thirds of the states, acting together, to repeal any federal statute (WSJ). I'm in favor of giving the states an eraser, but this brought me up short:

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds [sic] of the states.

Seriously, the "collective wisdom" of the small-time political hacks who get themselves elected to state legislatures? Have you ever seen the Texas legislature's work product? The best thing about Barnett and Howell's idea is that every day state legislatures spend trying to repeal federal statutes is a day they can't spend passing the state statutes that do more to make us less free.

In other let's-change-the-whole-system thinking, Jack Balkin (Balkinization) talks about the consequences of a second constitutional convention. It would require a huge amount of political time and energy, and might accomplish nothing. Which is, I think-for the reason described in the paragraph immediately preceding-not necessarily a bad thing. But there is the frightening possibility that modern politicians, playing at being Hamilton and Madison, would really screw things up. In a twenty-first century Constitutional Convention, there would be hordes of people (and institutions) throwing money at the politicos to persuade them to do away with judicial review or create a constitutional right not to be offended or advance some other nutjob agenda. The politicians may think they're not susceptible to persuasion, but they're all the more persuadable for that belief (Rita Handrich, The Jury Room).

There are things each of us could wish the Framers had found room for in the Constitution. (Mine is the separation of corporation and state; the Koch-brothers-financed Cato@Liberty would most likely disagree.) Steve Klugewicz (The Imaginative Conservative), however, is of the opinion that the first Constitutional Convention went entirely wrong:

[T]he Framers of the Constitution who were primarily responsible for its ultimate form and who played key roles in engineering its ratification- James Madison, James Wilson, Gouverneur Morris, and Alexander Hamilton-were themselves "living" Constitutionalists, who favored the creation of a central government with powers beyond what the vast majority of Americans in the eighteenth century would ever have countenanced. "America's first neo-cons" (to borrow Gleaves Whitney's term) craftily designed the document so that the door to the expansion of government power was firmly ajar, most significantly through the "necessary and proper," and "general welfare" clauses. No matter the motivations, wishes, or understanding of the other thirty-five men who signed the Constitution, it would be the actual words of the document that would matter.

This suggests that Madison's words in Federalist 45 were empty promises.

Patrick J. Deneen (Front Porch Republic), on the occasion of Constitution Day, looks beneath the structure of the Constitution at the Framers' "new science of politics" that underlay it, and publishes a 1961 speech of political theorist Wilson Carey McWilliams, who saw hazard in that science:

The science of politics which lies at the base of the Framers' theory is and was a science of loneliness, designed with the arts of the magician to prevent men from attaining contact and community, designed to compel him to find meaning only in things, in the objects toward which his passions direct him-toward things non-human, toward conflict and competition.

Finally, why do people (like this guy, and this guy, who really should know better) reciting the preamble so often leave out the words "of the United States" after "We the people"? I blame this:

This guy gets it right, but he's probably never seen Schoolhouse Rock.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

1 Approximate number of mentions of each of the following phrases, along with the word "constitution," between September 12, 2010 and September 19, 2010, according to Google Blogsearch:

"Article I": 1,090 / "Article 1":245"Article II": 161 / "Article 2": 214"Article III": 115 / "Article 3": 120"Article IV": 86 / "Article 4": 66"Article V": 73 / "Article 5": 54"Article VI": 91 / "Article 6": 100"Article VII": 41 / "Article 7": 56"Bill of Rights": 7,039"First Amendment": 13,452 / "1st Amendment": 1,225"Second Amendment": 2,633 / "2nd Amendment": 1,995"Third Amendment": 14 / "3rd Amendment": 3"Fourth Amendment": 125 / "4th Amendment": 47"Fifth Amendment": 121 / "5th Amendment": 26"Sixth Amendment": 22 / "6th Amendment": 8"Seventh Amendment": 11 / "7th Amendment": 6"Eight Amendment": 21 / "8th Amendment": 11"Ninth Amendment": 26 / "9th Amendment": 15"Tenth Amendment": 173 / "10th Amendment": 1,082

And so forth.