Sunday, September 19, 2010
An inspiring and famous poem you are unlikely to have encountered at school
Why? Because it is patriotic, though in an understated British way. It is about the attitudes that built the British empire. It points out the transferability of attitudes learnt in elite private school sport (in this case cricket) to the wider world. The allusion to a Gatling (an early machine gun) probably places it in the days of the Boer war. In one word, it is about doggedness or "sticking to it" in the face of difficulty: Never give up. I hope some readers like the poem as much as I do. It is at least a glimpse into another world
("They Pass On The Torch of Life")
There's a breathless hush in the Close to-night --
Ten to make and the match to win --
A bumping pitch and a blinding light,
An hour to play and the last man in.
And it's not for the sake of a ribboned coat,
Or the selfish hope of a season's fame,
But his Captain's hand on his shoulder smote --
'Play up! play up! and play the game!'
The sand of the desert is sodden red, --
Red with the wreck of a square that broke; --
The Gatling's jammed and the Colonel dead,
And the regiment blind with dust and smoke.
The river of death has brimmed his banks,
And England's far, and Honour a name,
But the voice of a schoolboy rallies the ranks:
'Play up! play up! and play the game!'
This is the word that year by year,
While in her place the School is set,
Every one of her sons must hear,
And none that hears it dare forget.
This they all with a joyful mind
Bear through life like a torch in flame,
And falling fling to the host behind --
'Play up! play up! and play the game!'
By Sir Henry Newbolt (1862-1938)
Rise and Fall of the Fourth Amendment
Turning to the Fourth Amendment itself, we read: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
This sounds pretty good, doesn't it? And solid, like it might actually mean something. Alas, no such utopian state of affairs actually obtains. It is possible of course that my elementary school teachers just plain lied to us when they spun golden tales about American freedoms.
Yet surely there is more to it. But if so, what doom befell the Fourth Amendment? We might try looking at various eventful periods when governments-state and federal-felt unusually strong needs to arrest, search, and seize, such as the Civil War, Reconstruction, World War I, Prohibition (see Lacey, in works consulted below), World War II, the Cold War, and (naturally) the war on drugs. It seems, however, that long-running negligence, evasion, and misinterpretation have done more harm to the Fourth Amendment than have various short-run authoritarian panics. Central to this slow but continuous process was the rise of modern policing in the nineteenth century, creating a new institution not foreseen in American constitutions (state or federal) and therefore largely incompatible with them and unaddressed by them (see Roots).
Gradualism and crisis, always headed the same way, have yielded a constitutional trail of tears catalogued in American state and federal case law. The U.S. Supreme Court hardly noticed the Fourth Amendment until the twentieth century. In the Prohibition-era case Carroll v. U.S. (1925), the Court sanctioned searches of private automobiles on the rather forced analogy of ships at sea. (The next time cops pull you over and search your car, you may blame Chief Justice William Howard Taft.) But the amendment's core meaning survived awhile longer in areas where it was thought to have always applied.
Meanwhile, emboldened by the Fourteenth Amendment, the Supreme Court undertook to supervise state police practices from the late 1940s on; it would decide if the states were following the Fourth and other amendments. This new project annoyed the states but did little enough for the public. Examining federal search practices in U.S. v. Rabinowitz (1950), the Court declared the word "unreasonable" the key to the Fourth Amendment. Henceforth the Court would philosophize on the "reasonableness" of searches ("in the circumstances") and periodically announce our ever-waxing-and-waning rights on the accordion model of civil liberties. Warrants pretty much disappeared.
We have been saddled with this unsatisfactory outcome ever since. The subjectivity of judicial balancing acts, along with fluctuating judicial moods, has made the Court's understanding of "reasonable" rather less stable than that of the Oxford English Dictionary. The war on drugs has rendered the Court (particularly "conservative" justices) unsympathetic to complaints about searches. The upshot is that the Fourth Amendment is now mostly just another empty marker at which American politicians, bureaucrats, and ideologues can wave when praising the precious freedoms that supposedly cause Americans to be hated.
In constructing the above account, I have relied heavily on the work of Thomas Y. Davies, professor of law at the University of Tennessee. (The rhetoric is mine.) In essays running from 1999 to 2007 Davies painstakingly reconstructed the late eighteenth-century context of the Fourth Amendment, accounted for its later reinterpretation, and thus described its effective demise. ...
With common-law rules in view, Davies sees the whole point of the Fourth Amendment as control of warrants to be achieved by defining them strictly. In the common-law environment of the late eighteenth century, warrantless searches-or arrests-were rare and subject to strict conditions. Thus confined, these few warrantless actions hardly threatened public liberty. Let us see why.
First of all, no one-constable or freeman-could arrest or search someone merely for looking "suspicious." Accusers (public or private) had to have a case before applying for any kind of warrant. To have a case, an actual crime had to have been committed already. An accusation also had to include sworn testimony of one or more witnesses asserting direct, personal knowledge supporting the belief that a named defendant had done the deed. Strung-out informants selling hearsay "evidence" about crimes that might occur in the future were not consulted, although hearsay could be admitted to establish background facts. Judicial action-indictment, issue of warrants-rested on the kinds of evidence described above. Arrest warrants did not normally issue for misdemeanors. The defendant remained at large but would be wise to attend his trial. A search warrant gave permission to look only for the specific things named.
Further, a defendant never appeared as a witness, but could, with or without counsel, impeach the evidence against him and cross-examine witnesses. Accordingly, the rule against self-accusation (self-incrimination) did not protect a defendant's trial rights, but meant instead that his diary, calendar, papers, and effects-as extensions of himself-were not subject to general ransacking and fishing expeditions. The other side had to make its case without such modern conveniences. Only Parliament claimed to be able to license fishing expeditions (such as the "general warrants" that so nettled colonial Americans) and mainly in the narrow areas of "treason," customs, and revenue. (The last two items came under admiralty law with its civil [Roman] law rules.) The Fourth Amendment sought to limit the ability of Congress to play such games.
There was a short list of warrantless arrests and searches allowed under common law. An officer or freeman who saw a misdemeanor underway in his presence (affray or breach of the peace) could make an arrest. Someone traveling at night could be detained overnight to account for himself. In "hot pursuit" of a fleeing felon who had committed an actual crime, an officer or freeman could "break" (into) a house. Here again is the combination of actual crime and personal knowledge. There were a few other complications, but they and the above-mentioned practices were rooted in common sense and had definite boundaries.
Under common-law rules arrests were few and far between. In a system based on enforcement by private parties (freemen), or by constables with few additional powers, defendants could sue for "personal trespass" anyone who brought a bad prosecution. Logically enough, a right to resist false arrest also existed. (Nowadays the concept of false arrest is nearly dead and resistance is not generally recommended.) Damages for bad prosecutions were a useful incentive for keeping peace officers and private prosecutors reasonably careful. Tightly drawn warrants, where required, actually protected officers from resistance or suit.
Since arrests were few and generally followed indictment-and that on real evidence-defendants not formally accused were seldom detained. Hence modern dilemmas involving interrogation seldom arose. Asking questions was a judicial function carried out at trial. Constables, who were considered judicial (not executive) officers, had little discretionary authority and few occasions for third-degree Q&A sessions in the back room. And of course common law had no plea bargaining, that ubiquitous, contemporary solution of "overworked" courts that Paul Craig Roberts and Lawrence M. Stratton refer to as a form of torture.
The framers' quest to establish certain common-law rights largely failed. The disjunction between the clauses of the Fourth Amendment encouraged the leap to a "reasonableness" standard. In fact, as Davies shows, the words "unreasonable searches and seizures" were Revolutionary-era rhetoric condemning British general warrants of the 1760s and 1770s as without reason (outside of reason) and therefore illegal and unconstitutional; they were not meant to license future judicial speculation. The core ideas of the Fourth Amendment were better expressed in the Massachusetts Constitution of 1780 and the Ohio Constitution of 1802. Davies speculates that James Madison's innovative phrase, "probable cause," was meant to allow a little leeway for customs and revenue enforcement, which already enjoyed partial exemption from common-law rules. (A warehouse, for example, did not enjoy the same immunities from search and seizure as a private dwelling.) Still, even Madison's slightly weakened version meant something, although "probable cause" (taken by itself) had a big future as a means of reducing restrictions on power to a nullity.
Most arrests and searches today are without warrant, and getting a formal warrant is fairly easy. Concrete, sworn personal knowledge has yielded to vague ("reasonable") suspicion or whimsy as a "standard." Once we enjoyed rules that provided for concrete privacy. By the 1960s privacy seemed so imperiled that the Supreme Court with its usual jobbery was driven to invent an artificial "right of privacy" just to restore some balance.
Recovery Summer Needs Life Support
A day after the national press corps proclaimed the death of the Republican party because Christine O'Donnell won the GOP primary for U.S. Senate in Delaware, some really awful numbers came out showing why the geniuses in the Obama White House have got this all wrong.
As a reminder, the Senate race in Delaware is for a seat currently held by a Democrat. In a CNN interview Wednesday afternoon I was asked if O'Donnell's nomination meant the GOP would not control the Senate next year. I looked directly into the camera and said: If, six months ago, I had told you that after the November elections the GOP would have 49 seats in the U.S. Senate you would have told the cameraman to stop the tape and you would have had me escorted out of the bureau.
This past summer had been billed as "Recovery Summer" by the Obama White House. Unfortunately for them:
- the unemployment rate has been stuck in the mid-nine-percent range, - the Dow Jones average has been stuck in the mid-10-thousand range, and
- the trade deficit (according to the AP yesterday afternoon) "grew to $123.3 billion in the April-to-June period, a 12.9 percent increase from the first quarter, the Commerce Department said Thursday."
In addition to the terrible trade deficit numbers yesterday, the Obama Administration had to announce that the poverty rate had reached historic levels. According to Reuters: "The U.S. Census Bureau said 43.6 million people, or one in seven Americans, lived in poverty last year, up from 39.8 million in 2008." And USA Today's take was: "The number of people in poverty reached its highest level in 51 years."
Obama has successfully steered the economy in reverse to the point that he has equaled the poverty level not seen since the last years of the Eisenhower Administration. If that is true, then the poverty level in the U.S. is worse than it was when Lyndon Johnson declared his "war on poverty." If it weren't for the artificial effects of extending unemployment benefits and a bonus to Social Security recipients, the numbers would be even worse.
Nicely played, Mr. Obama! Well done. But wait! There's more! Also yesterday, the Obama Administration was forced to announce the first numbers following the enormous success of his highly touted health care legislation. According to AOL.com:
"The percentage of people with private coverage, 63.9 percent, is the lowest since 1987, the first year the bureau collected health insurance data. The percentage covered by government programs, 30.6 percent, is the highest since record-keeping began. "The number of children without health insurance remained at 7.5 million, or 10 percent of those under 18."
Private health care … lowest in 23 years. Government health care … highest ever. One out of ten children without health insurance. Reporter Andrea Stone wrote in her AOL piece:
The delayed benefits, combined with rising insurance rates and the president's back-tracking on how fast his plan would bring down costs, have caused widespread skepticism amid a majority of Americans who deride the law as 'Obamacare.'"
Hello, Tea Party? We are just outside six weeks from the mid-term elections. The national press corps is in an ears-back panic looking for ways to show that Republicans have overplayed their hand.
Even the most liberal of the liberal press - the NY Times and CBS News - in their current poll, have Obama's job approval at 45-47. That is not among likely voters. That isn't even among registered voters. That is among adults - typically the most Obama-favorable construct.
Finally, if you are looking for an antidote to the "Republicans are in really trouble now, boy" stories how about this one: Jimmy Carter - arguably the worst President in history - not just American history but all of history, everywhere - is going to be on 60 Minutes this Sunday saying, according to the Associated Press: "Americans could have had comprehensive health care coverage decades ago if Sen. Edward M. Kennedy hadn't blocked a plan Carter had proposed."
Whoa! Check, please. A former Democratic President dissing a Kennedy? How can this be? Won't Democrats have to choose sides? Isn't this evidence of the Democrats in disarray? Nah.
Although, when it comes to the failure of the "Recovery Summer" it looks like it's time for a voter intervention.
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The Big Lie of the late 20th century was that Nazism was Rightist. It was in fact typical of the Leftism of its day. It was only to the Right of Stalin's Communism. The very word "Nazi" is a German abbreviation for "National Socialist" (Nationalsozialist) and the full name of Hitler's political party (translated) was "The National Socialist German Workers' Party" (In German: Nationalsozialistische Deutsche Arbeiterpartei)
Posted by JR at 9:54 PM