One reason I haven’t been blogging as much lately is I’m too angry. I’d be calling for a bloodbath: shoot all governmental authorities on sight, I’d be saying. To avoid doing that, I’ve just stopped writing much of anything.

Besides, these days Scott is saying it better than I could and without suggesting war.

His solution? Give up. Be honest. The Constitution is dead. Put up signs:

Beyond This Point 

“All persons found within the borders of the United States are subject to search and seizure.” 1)Let me state right here that I don’t think Scott really believes that is the thing to do.

While that certainly would usher in a new era of governmental honesty, I find it unsatisfying — to say the least. What we some how must do is to find a way not just to recognize that it is happening and resign ourselves to the inevitable failures those of us who defend the victims of governmental overreaching experience on a daily basis, but to find a way to convince enough people who can still vote that it should not be happening, that it must be dealt with, and that if we don’t stop it, it will eventually consume the rights of us all.

Whew. That was a sentence!

There is an old quote, sometimes thought of as a poem, that has been so-much-circulated in so many different forms that it has pretty much lost its punch. But I beg you to bear with me here — don’t skim over it, saying, “oh, that; yeah, I’ve seen that like a million times.” I know you have. This time, I want you to read it. I want you to go through it slowly, think about the words, and read it. If you’re not willing to do that, you might want to just stop reading right here and skip this entire blog entry, because if you can’t focus for a minute here, you probably can’t focus on the point I’m trying to make, anyway.

When the Nazis came for the communists,
I remained silent;
I was not a communist.

When they locked up the social democrats,
I remained silent;
I was not a social democrat.

When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.

When they came for the Jews,
I remained silent;
I wasn’t a Jew.

When they came for me,
there was no one left to speak out.

Don’t get lost in Godwin’s law on this one. First off, it’s a piece of shit “law”: if the police are really acting like Nazis, there’s no reason not to say that. To argue that we should never compare what’s happening in America today to what happened in Germany in the period leading up to the Nazi disaster is to risk ignoring the warning signs should it ever occur again. And don’t think it can’t happen here. As I’ve noted more than once previously (yes, I’m going to quote myself), pre-Nazi Germany wasn’t all that different from the United States today:

As alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which there were constitutionally-protected freedoms. As Ingo Müller has pointed out, the German legal system was brought down not overnight, but over a period of time, by “the doctrine of ‘national emergency.’” 2)Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, p. 24 (1991).

But, secondly, I’m not even trying to argue here that the police are Nazis.

Not yet, anyway.

I want to make what I hope is a simpler and — again, “I hope!” — even less controversial point.

And that is that the abolition of the United States Constitution is not something which necessarily occurs overnight. Like the sand in an hourglass, it dissipates a few grains — or even a grain — at a time, until eventually, it is gone. As Justice Douglas put it:

These civil rights — whether they concern speech, searches and seizures, self-incrimination, criminal prosecutions, bail, or cruel and unusual punishments extend, of course, to everyone, but in cold reality touch mostly the lower castes in our society. I refer, of course, to the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto. Are we giving the States the power to experiment in diluting their civil rights? It has long been thought that the “thou shalt nots” in the Constitution and Bill of Rights protect everyone against governmental intrusion or overreaching. The idea has been obnoxious that there are some who can be relegated to second-class citizenship. But if we construe the Bill of Rights and the Fourteenth Amendment to permit States to “experiment” with the basic rights of people, we open a veritable Pandora’s box. For hate and prejudice are versatile forces that can degrade the constitutional scheme. 3)Johnson v. Louisiana, 406 U.S. 356, 387; 92 S. Ct. 1620; 32 L. Ed. 2d 152 (1972).

So, for now, we go after “the undesirables,” the lower caste of our “casteless society.” As long as the police stick to that approach, they — that is, the police — are safe. They have time to build their power base, because no one with real power will oppose them.

But, as with the Niemöller quote, or poem, above, it doesn’t necessarily end there. Once our government — particularly law enforcement — crosses that line, it becomes comfortable. Entrenched. It may even sincerely, albeit rarely, apply its newfound power to ignore constitutional limitations against the likes of you, rich man, white boy, judge, senator, out of some perverse effort to show that it is not limited to targeting “the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto.”

It may even believe that.

But it won’t matter. Whatever the reason, the line is crossed. A new culture flowers. American citizens are deflowered. “[L]egal norms [are] forced to yield to political opportunism.” 4)Müller, supra, at 293. Before you know it, everyone — particularly the courts — have given the police a free hand. 5)Id. at 49.

When that day comes, it will be too late. Law enforcement will have become too entrenched. They will have too many drones, tanks, automatic weapons.

And the people who, if the rest of us supported the concept of Law, might have stood against them — “the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto” — they’ll have long ago been subdued and locked away, so that when law enforcement comes after you, there will be no one left to speak out.

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References   [ + ]

1. Let me state right here that I don’t think Scott really believes that is the thing to do.
2. Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, p. 24 (1991).
3. Johnson v. Louisiana, 406 U.S. 356, 387; 92 S. Ct. 1620; 32 L. Ed. 2d 152 (1972).
4. Müller, supra, at 293.
5. Id. at 49.

12 comments

  1. Excellent post. Keep fighting the good fight, it’s appreciate more than you can know.

    …although, as a commentor said above, take a vacation if you need one to stay sane.

    @John David Galt

    > I’m all for doing something about it, but what is there to do?

    One answer was covered in the second sentence of the post above.

  2. Excellent post. Keep fighting the good fight, it’s appreciate more than you can know.

    …although, as a commentor said above, take a vacation if you need one to stay sane.

    @John David Galt

    > I’m all for doing something about it, but what is there to do?

    One answer was covered in the second sentence of the post above.

  3. I’m all for doing something about it, but what is there to do? Any reader who lives in a place like New York City or Joe Arpaio’s county in Arizona is simply going to be outvoted by people who love the thug tactics those cops use. I’d love to see them put in prison or successfully sued (though a court would have to break serious new ground to do either one), but I have yet to hear of a judge with the balls to do it.

    So what does that leave for us to do? I really, really don’t want “take up arms” to be the only answer.

  4. I’m all for doing something about it, but what is there to do? Any reader who lives in a place like New York City or Joe Arpaio’s county in Arizona is simply going to be outvoted by people who love the thug tactics those cops use. I’d love to see them put in prison or successfully sued (though a court would have to break serious new ground to do either one), but I have yet to hear of a judge with the balls to do it.

    So what does that leave for us to do? I really, really don’t want “take up arms” to be the only answer.

  5. Hey Rick, when something you write gets Brian Frickin’ Tannebaum to stop yapping about the evils of social media and come down from his mountain of scorn and derision to write something that sounds supportive…that sounds pretty serious. Take care of yourself.

  6. Hey Rick, when something you write gets Brian Frickin’ Tannebaum to stop yapping about the evils of social media and come down from his mountain of scorn and derision to write something that sounds supportive…that sounds pretty serious. Take care of yourself.

  7. Rick,

    Things in the criminal justice system are getting pretty bad. No doubt. A decade after 9/11 we see an America where the public has no desire to curtail police power (until their kid is of course “unfairly, wrongly, and illegally stopped and searched.”)

    As a criminal defense lawyer, you have a couple choices – run for office (and maybe lose), try to become a judge (not easy either), write about it (which you do), leave the practice and focus on something else, or try to make a difference on client at a time.

    A vacation is also not a bad idea. Go clear your head, take a deep breath, see the good in life in other areas.

    Anger doesn’t change the system – anger and work – maybe – can make a difference.

    But don’t ever think that it’s going to change much. Remember that the system operates as it does because the public allows it to.

    1. Brian, you can’t imagine how much seeing your comment here improved my day. You and Scott are — believe it or not — at the top of the list of people I respect the most. I bet there isn’t a day that goes by when I don’t wonder how you, Scott, and one or two other people might feel about something I do.

      On more than one occasion, I’ve felt something that, at the moment felt okay, but then I ask myself “what would Brian and Scott say if they found out about this?” and, sometimes, there is a change in direction.

      To know you read my post and thought enough of it to comment gives me a boost.

      Now if only I could follow your advice about a vacation. I know I need one. I have managed to keep my office open past the five-year mark. I haven’t figured out how to do that and take a vacation.

  8. Rick,

    Things in the criminal justice system are getting pretty bad. No doubt. A decade after 9/11 we see an America where the public has no desire to curtail police power (until their kid is of course “unfairly, wrongly, and illegally stopped and searched.”)

    As a criminal defense lawyer, you have a couple choices – run for office (and maybe lose), try to become a judge (not easy either), write about it (which you do), leave the practice and focus on something else, or try to make a difference on client at a time.

    A vacation is also not a bad idea. Go clear your head, take a deep breath, see the good in life in other areas.

    Anger doesn’t change the system – anger and work – maybe – can make a difference.

    But don’t ever think that it’s going to change much. Remember that the system operates as it does because the public allows it to.

    1. Brian, you can’t imagine how much seeing your comment here improved my day. You and Scott are — believe it or not — at the top of the list of people I respect the most. I bet there isn’t a day that goes by when I don’t wonder how you, Scott, and one or two other people might feel about something I do.

      On more than one occasion, I’ve felt something that, at the moment felt okay, but then I ask myself “what would Brian and Scott say if they found out about this?” and, sometimes, there is a change in direction.

      To know you read my post and thought enough of it to comment gives me a boost.

      Now if only I could follow your advice about a vacation. I know I need one. I have managed to keep my office open past the five-year mark. I haven’t figured out how to do that and take a vacation.

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