“I do solemnly swear … to uphold the constitution ….”

A reminder in the Washington Post today of one of my pet peeves: the routine disregard by politicians of their oath to uphold the constitution.

I’m not a bitter partisan on health reform, but I’m disturbed at the paucity of discussion of the constitutionality of pending proposals. The questions are not trivial.

Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument? Although … three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes to thwart the popular will to enact comprehensive health insurance reform.

If “three of the potential constitutional challenges to health-care reform have a sound basis in the text of the Constitution,” why would a politician violate his or her oath to uphold the constitution by insouciantly passing the buck to the Court?

Because they think the bill’s popular? Well, I guess popularity’s a good reason to violate an oath.

Again, it’s not just health care. Politician’s shrug off constitutional objections all the time. I could respect them if they plausibly said “I have spoken to my legal advisers about this, and I believe Bill X is constitutional.” But the more common line is “the Court will have to decide if it’s constitutional.” If so, then why did you swear to uphold the constitution, sir?

Contingent executionism

One of my first posts was, by coincidence, on contingent vegetarianism: a view that it would be okay to eat meat if we raised our meat animals more humanely. A parallel crossed my mind at the time, but committing it to paper wasn’t ripe.

For close to 30 years now, you could say I’ve been a contingent opponent of capital punishment: I oppose it in most cases because, contrary to what seems to be majority opinion, I’m convinced that we have executed many who were not guilty of the crime for which they were executed.

I’m not talking lawyerly parsing of states of mind, either. I mean that we’ve executed people who didn’t do the deed; not people who did the dead but were clearly insane (even if the jury rejected an insanity defense) or who did in in “sudden heat” instead of premeditation. Nor am I talking about fresh-faced frat boys brutally framed. Most of the guys who died unjustly at the hands of the state were career criminals. But “right street, wrong address.” They didn’t do the bad deed that led to their state-sanctioned murder.

How can this happen? We maintain, after all, the ritual of requiring proof “beyond reasonable doubt” in criminal cases. We provide the indigent with lawyers now. Surely the system works.

No, it doesn’t. A notorious crime can cry out for a solution and a conviction. Elected Prosecutors are “as human as the next guy,” as an acquaintance of mine puts it. So are police, though in capital cases I’ve seen more evidence of cheating by prosecutors than by police. Some career criminal the prosecutor (or police) feel got off too lightly last time may be a convenient fall guy. (Believe me: police and prosecutors do carry grudges. There can be no other reason why Phil McCollum has lingered in prison due to a prosecutor’s veto for the last few years. He was a really bad dude who turned his life around in prison very, very convincingly, without the common plea that “you should let me go because I know Jesus now.”)

And frankly, I think fear of crime causes juries to lower that bar of “beyond reasonable doubt.” There are other causes, too: court appointed lawyers tend not to be top-tier; they’re more overworked, in my experience, than the prosecutors are. Bad lawyering for indigent defendants is pandemic.

If you doubt me on the ultimate result, get to know the work of The Innocence Project. I frankly don’t follow them closely because I was convinced of our system’s unreliability even before they began freeing people on the basis of DNA evidence that wasn’t a ripe science when the people were convicted. As I recall the stories that convinced me, prosecutorial misconduct (framing a guy, in essence, or at least withholding powerful counter-evidence) was the cause about as often as mere sloppiness in the cause of convicting someone … anyone.

But my opposition is contingent. I’m not opposed to execution for brutal murders when guilt is clear. There was a man executed in Virginia yesterday who truly seemed guilty beyond reasonable doubt, including being named immediately by a victim he left for dead (another victim did die) and his own admission.

I take no Pharisaical pleasure that I’m better than the guy who died in Virginia yesterday. I confess in my prayers that I’m “the worst of sinners,” and when you come to know what that means, you know it’s true of you, too. But my sins are not capital crimes in our systems of human justice.

* * *

I had to come back to this post 2 days later because of this illustration of my assertion that “Bad lawyering for indigent defendants is pandemic:” Public defender advises a defendant to plead guilty to a felony that isn’t even a felony. That’s not rocket science, folks. The criminal statutes would be pretty clear on what’s a misdemeanor, what’s a felony.

Lighting an Economic Candle

If it’s better to light one candle than curse the darkness, Allan Carlson, an Editor at Large over at the Porch (and a pretty major figure is real conservative American thought for decades now), has done a better thing recently, and I the curser of darkness pass it along.

Carlson’s keynote address for a University lecture series starts, necessarily, with a little darkness-cursing to set the stage:

Eighteen months of severe recession have brought to the surface old truths that many chose to forget when times seemed to be good: the business cycle has not been eliminated; finance capitalism is by its nature unstable; politically-connected corporations commonly escape market discipline; and there is nothing conservative about the “creative destruction” of a capitalist economy.

…As one commentator noted in the mid 1930’s, the label “conservative” had then been thoroughly “discredited,” twisted by the “apostles of plutocracy” into a defense of “gamblers and promoters.”

He then turns to the more illuminating task at hand, noting recent historic

seekers after a “Third Way,” a social and economic system that in important respects would be neither capitalist nor socialist.

In Europe, these seekers included: Great Britain’s Hilaire Belloc and G.K. Chesterton, architects of the Distributist program [to which I will return]; the Russian agrarian economist Alexander Chayanov, who crafted a remarkable theory of “the Natural Family Economy”; the Bulgarian peasant leader Alexander Stamboliski, who turned his nation into a model agrarian republic and co-founded the “Green International” in 1923; Nancy Eriksson, a Member of Sweden’s Parliament who defended a curious political movement that might be accurately labeled, “The Desperate Swedish Socialist Housewives”; and Gilbert Dru, Etienne Gilson, and Wilhelm Roepke, architects of a vibrant mid-20^thCentury Christian Democracy that aimed to build a Humane Economy. These episodes effervesced in events of brilliance and excitement, sometimes reaching fruition, only to fade in the face of the two main 20^th Century ideological contestants: capitalism and communism.

Then he summarizes the true core of his talk:

Tonight, I want to tell you about three American writers and activists who also have been part of this quest for a Third Way: Ralph Borsodi; Herbert Agar; and Wendell Berry. I will also suggest ways in which their examples and ideas may help us understand the current economic crisis and point toward an alternate Conservatism for the decades ahead, one combining a preferential option for the natural family with a more decentralized, human scale economy and a curtailing of the “national security state.”

There’s enough thereafter to make almost anyone squirm. Anyone who thinks Rush Limbaugh and Sean Hannity are genuine conservatives may go postal upon reading it. But it challenges me, too: can my vision of walkable cities and food co-ops survive except as parasitic of those who live in rural areas and burn fossil fuel to get their edibles to my cozy co-op or picturesque farmers’ market? But what becomes of community and “Front Porch” conversations if everyone’s sitting on their own 40 acres with their mule?

I don’t think I can commend it too highly or excerpt its treasures adequately. My PDF version for my archives is already heavily marked up. You must read it yourself if you, like I, suspect that we’re toast economically in the short term but hope for a humane life beyond the coming collapse.