Posted on 05/27/2006 9:10:24 PM PDT by FairOpinion
True, he was appointed-by clinton.
A Repub was sentenced to 10 months in jail for a "phone jamming" "scandal".
The tire shashers of the Republican vans are still walking free, IIRC.
The media concerns me, but not as much as the diparity in sentencing.
One more clinton era gift.
Nonsense. Either the search is constitutional, or it isn't. If the US Constitution permits the search than there is no fundamental change underway.
If memory serves, Bent Willie at the last hour pardoned Rosty of his felony along with Marc Rich, and other assorted rat cronies. No culture of corruption of course.
I was a radical and risky response to a unprecedented economic and social crisis (putting aside the question if it was a correct response).
The corruption was from the beginning of USA, what is the urgency to introduce new practices?
The New Deal is just one example. Legislation by its very nature involves passing governmental acts that have not been passed before. Except for instances of renewing old statutes, extending sunset clauses, etc, all legislative acts are "unprecedented."
The judicial branch also sets precedent. Look at Marbury v. Madison. That was the first case establishing judicial review.
Where in the Constitution does it say that only the executive branch is precluded from entering the realm of the unprecedented? And how would recognizing a special prohibition of this sort for the executive branch (which is not in the text of the Constitution) impact the balance of power?
Many things were obvious to the authors of Constitution and to the public. For example there was no need for the marriage amendment at that time.
Obvious insights can be lost. So the established customs and underlying beliefs.
Both Harris and Toomey were undermined by the RNC. I'm not going to go further because it's off-topic discussion.
Obvious insights can be lost. So the established customs and underlying beliefs.
I'm not so sure this is true. Right or wrong, the law is what the law says, not what the drafters subjectively thought they were saying--or more accurately, what people 200 years later suppose they must have been thinking--but did not. That's the great thing about a Constitution. If it doesn't say what we want it to say, we can change it. There is an established amendment process for effecting such changes. "Gentlemen's understandings" between Congress and the executive branch are not part of that process.
It seems to me that the speech and debate clause protects only two things: 1) speech and 2) debate. It does not protect materials except to the extent they are incidental to speech and debate (e.g. a copy of a speech). Other than "but we don't like it" Congress really has no argument.
We should read the Constitution like any other legal document, because that is what it is. If it were nothing more than a manifesto of principles, we could all just make a list of principles (e.g., liberty, equality, etc.) and throw out the document itself.
The US Constitution is a formalization of underlying customs and common ideas deriving from the English tradition and modified by the political concepts of XVIII century. That is why it is " more than a manifesto of principles".
There were very nice laws and constitutions created in other countries which did not have much meaning because of lack of cultural roots.
BTW, England and United Kingdom until this very day does not have a written constitution. It demonstrates the primacy of customs and political culture.
When the informal rules, customs and common ideas change enough the old system might die, even if it appears alive on the surface.
The problem here is that Congress' "separation of powers" argument goes so far beyond the text as to render it superfluous. It essentially says that everything done within the four walls of the Capitol is immune from scrutiny. If that is so, there would be no need for the Founders to specifically single out speech and debate for protection.
Here there is not even the (debatable) proposition that the legal analysis should change because of unforeseeable developments like technology. What occurred here was a search of the type the Founders could easily have comtemplated (people entering a location and rummaging around to find things - no bionic eyes, no infrared, etc.).
I understand that a lot of people dislike faithful adherence to constitutonal text. It makes the system harder to effect change, but the less subjectivity that gets infused into the equation, the better. When we get into rival factions of archeologists and social scientists arguing about what the Founders "really meant" but did not say, we depart from the realm of legal analysis that we accord all other legal documents.
In some cases, "due process" or "equal protection" issues may come into play. Many places have laws which haven't been enforced for many decades because technological or sociological changes have rendered them obsolete. Despite (or perhaps because of) the lack of enforcement, however, nobody has bothered to remove such laws from the books.
If someone were charged with violating such a law, the fact that the law had not been enforced for ages, and that nobody made any particular effort to comply with it, could be a basis for acquittal, especially if there was any reasonable possiblity that the prosecution of a particular case was motivated by any illegitimate factors.
The fact that a law hasn't been enforced is no bar to prosecution if the reason for the lack of enforcement is that the law has been well-enough respected that enforcement has not been necessary. In such a case, the lack of enforcement would not favor the defense but might, if anything, favor the prosecution.
More generally, a law that society perceives as not existing may be rendered unenforceable by such perception. A law that is well-ingrained into society may not.
bump
Also remember that we are talking about the same people who tried to argue that Roe v. Wade was a "super duper precedent" because of the number of times that it came before the Supreme Court and was not overturned. I think they all just make up these arguments as they go, looking for what's best for them in each separate situation.
-PJ
Certainly the equal protection principles in the due process and equal protection clauses preclude selective enforcement. This does not mean government cannot prosecute just because it did not do so in the past. It simply means that it must do so evenhandedly.
I'm not sure I'd go so far as to say an "obsolete" law can never be enforced. Suppose there is a law that says you can't send obscene telegrams, for example. Nobody sends telegrams anymore. However, if somebody did send an obscene telegram, that would not mean that there was a due process bar to prosecuting the statutory violation. When a law is on the books, that is constructive notice of the law's existence. Actual notice is not required.
Also, unless fundamental rights or a suspect classification are involved, the threshold for overcoming a due process/equal protection challenge is the extremely permissive "rational basis" test. All the government has to show is that enforcing the law in the particular case is rationally related to some legitimate government interest.
I got the impression from your post that you perceived this rational basis test to be met only if the reason for previous lax enforcement was that in the past there were not an inordinate number of violations. I respectfully disagree. Suppose there were significant violations and such violations were leading to increased social problems. It seems to me that curing these undesirable effects would be a legitimate government interest and again, enforcement of a previously ignored law would be a perfectly rational way of furthering that interest.
In short, the issue is not so much government's power to enforce the law "wearing off" as it is about the manner of enforcement: it must be evenhanded and serve a legitimate purpose.
None of these principles is offended in Jefferson's case. While it is true that congressional representatives are not always held accountable for taking bribes and many legislators probably think they have free reign to engage in such behavior because of lax enforcement, I can guarantee that the average reasonable person still believes bribery is illegal. Renewed enforcement (if it is indeed renewed) is justified by the legitimate interest in holding officials responsible for violating the public trust; prosecution is rationally related to that legitimate interest. Even Jefferson, Hastert, and company do not pretend legislators are immune from criminal prosecution for bribery.
For that reason, I think the case law you seem to be alluding to about selective/renewed enforcement does not speak to the issue here. That body of precedent dealt with when legal violations may be prosecuted, not the manner in which an investigation or subsequent prosecution is carried out.
That said, let's assume those cases do apply to the search of Jefferson's office. Here we had government agents acting pursuant to a warrant. Jefferson was treated just like millions of other Americans who are the target of criminal investigations. He cannot seriously invoke equal protection. In fact, he appears to be doing quite the opposite: he is engaging in special pleading, asking to be treated in a manner different from other citizens.
I suppose theoretically, Jefferson could say he is being unfairly singled out because he is a congressman, but legislators are not a suspect class and in any event the argument has little merit under the rational basis test. We have more, not less, of an interest in punishing corrupt leaders than in prosecuting the citizens who collude with them in their underhanded schemes. When ordinary citizens engage in corruption, the public does not perceive a failure in government; when leaders act this way, the public does have this perception.
Finally, there is no argument that Congress’ fifth amendment due process or equal protection rights are being violated. Quite simply, government entities are not protected by the Fifth Amendment. The Fifth Amendment reads: “No person shall … be deprived of life, liberty, or property without due process of law.” By its terms, it only purports to protect “persons.” Governmental entities like the legislature are not “persons.”
Suppose a short stretch of road has a 25mph speed limit, but 99% of motorists drive 35mph there. Would it be proper for the government to install some hidden cameras, wait a year, and then send out thousands of citations for all the times people had driven 35mph there in the year since the cameras were installed?
I would argue that it would not. Regardless of any notice offered by the sign, I would argue that the government's clear and overt failure to enforce the speed limit over that one year period would constitute effective notice that it had no interest in doing so and that renewing enforcement of the speed limit would require some new notice of intention to do so.
None of these principles is offended in Jefferson's case. While it is true that congressional representatives are not always held accountable for taking bribes and many legislators probably think they have free reign to engage in such behavior because of lax enforcement, I can guarantee that the average reasonable person still believes bribery is illegal.
I agree entirely. I was not trying to argue that the failure to pursue such violations in the past should bar their pursuit in this case, but rather to point out what other condition would have to be met (the fact that the law in question must be widely ignored). I should perhaps clarify that it's not sufficient that the law be ignored by violators, but also that the law be ignored by those who happen to comply with it (i.e. such people must be indifferent to the fact that other people are breaking it).
In general, ignorance of the law is no excuse. There are some exceptions for when mistake of law is a defense to a violation, but I've never heard of nonenforcement being one of them.
As for your traffic example, I think the sign says it all. Assuming there is no statute of limitations problem, I don't see that there would be any due process violation. I agree it would be a pretty jerky thing to do, but the due process clause only requires the government to be fair. It doesn't have to be nice. I see nothing unfair about prosecuting violators in an evenhanded manner.
Apparently, Current members of Congress consider the only crime to be not paying our taxes. Anything else is forgiveable. Especially their own crimes and corruption.
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