Blawg Review 325.9

There is nothing more rewarding than creating something in this world that will forever be associated with you. We will all die eventually, but it is our ideas that survive us. As I wrote earlier this week, Ed of Blawg Review passed away after a tough battle. In his memory, here is one last Blawg Review, version 9 (see this post at Blawg Review for the other Blawg Reviews going up today, all in memory of Ed).

As with previous Blawg Reviews hosted here, I’m terrible at themes. I’m terrible at bringing things together into one coherent message. I’m terrible at coherent messages. So instead – and I know Ed would appreciate this because he’d send me links on a wide range of topics – I’m presenting the most interesting posts and stories that I’ve found in the last week or so. There are, of course, loose ties, this being a law blog, but the one thing I want to convey about Ed is his sense of wonder and his desire for information and knowledge. If the goal is to learn, then everything is interesting.

So, without further nonsense:


As we Americans listen to the news these days and ponder whether our listening to the news is news to anyone or whether the NSA is aware that we are, at that moment, listening to the news about the NSA listening to us listen to the news, we can perhaps also sit and reflect on whether the Constitution has expired. That, really, is the only conclusion one can reach when one reads stories like this one: where a comment on Facebook about marijuana is reasonable suspicion to believe that the commenter is a drug dealer.

It’s not that it wasn’t a good Constitution or that it embodied wonderful ideas, but that it has outlived its utility – or rather that we have outmaneuvered its utility. This post at The Atlantic1 asks just that question:

America, we’ve got some bad news: Our Constitution isn’t going to make it. It’s had 224 years of commendable, often glorious service, but there’s a time for everything, and the government shutdown and permanent-crisis governance signal that it’s time to think about moving on. “No society can make a perpetual constitution,” Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. “The earth belongs always to the living generation and not to the dead .… Every constitution, then, and every law, naturally expires at the end of 19 years.” By that calculation, we’re more than two centuries behind schedule for a long, hard look at our most sacred of cows. And what it reveals isn’t pretty.

If men (and, finally, women) as wise as Jefferson and Madison set about the task of writing a constitution in 2013, it would look little like the one we have now.

And the one we have now hasn’t been working that well, because it means different things to different people. Like the split between Judge Shira Scheindlin and the Second Circuit on just what makes “stop and frisk” unconstitutional. Even if you assume, as blogger Judge Kopf does, that it wasn’t politically motivated, it is still mindboggling. Is it any wonder, then, that those who are paying attention have little to no confidence in the American judiciary?

But the law is more machinery than a Transformer and as such is hard to move and change: one option suggested recently was to permit jurors to ask questions. An idea that isn’t exactly new, it breathed a gasp of life into the blogosphere last week when Judge Kopf (again) posed the question and Greenfield reminded us that it was asked and answered.

If, suppose, jurors were permitted to ask questions, perhaps they’d look a bit like our non-lawyer blawger friend Windypundit, who took crack at the Federal Rules of Evidence this week and quickly devolved into a metaphysical discussion with the other resident philosopher Jeff Gamso about what, exactly, is a fact. Jamison Koehler, not to be outwaxed, offered his own thoughts on one indisputable “fact”: that the truth rarely matters in a trial.

One seeming universal “fact” is the love affair Americans have with the death penalty. But even there, the perception of the thing is far more impressive than the reality of it. A new report issued last week revealed that Americans are shedding their support for the barbaric punishment, but more troublesome is our misunderstanding of its application and fairness.

In other words, we don’t think it’s racist or applied in an arbitrary or unfair manner. Which, you know…ask Ronald Phillips. Ronald Phillips, who the State of Ohio is so desperate to murder that they will literally try anything to kill him. And, if this guy at Slate has his way, “anything” would include the guillotine. I swear. I know it’s the Slate. But still. C’mon.

Or would you have more faith when you learn that a San Diego judge was “exiled to traffic court” after several Superior Court rulings favoring defendants’ constitutional rights”. As Will Baude writes at Volokh, Judge Kreep2, an avid “birther”, decided to issue rulings upholding the Fourth Amendment rights of defendants. Naturally, prosecutors who are citizens who aren’t ever going to be in real danger of having their Fourth Amendment rights violated, boycotted the judge – a practice that is not new to the prosecutors in San Diego, having boycotted another judge in 2009.

Because the last thing we as Americans should want is a fair and impartial justice system where prosecutors aren’t whiny bitches when they lose a case once in a fucking generation. Not bitter at all.

Speaking of prosecutors losing, no Blawg Review worth its salt will fail to mention the monumental victory of one of our own, The Texas Tornado Mark W “the other” Bennett in the Texas Supreme Court of Criminal Appeals. In a case Mark handled on appeal, the ridiculously conservative Texas court held unanimously that a criminal statute was unconstitutional because it violated the First Amendment.

Bennett has since been on a roll, identifying other statutes susceptible to doom and Grits for Breakfast has this delightful post chronicling the apoplexy exhibited by prosecutors on their forum.

And since there is never going to be a better note to end on, I shall end. The next post in the Blawg Review chain is at Likelihood of Confusion. Don’t forget to check out all the posts at Blawg Review.

Goodbye, Ed.

  1. Yeah, I know, it’s not a blog, but it should be.
  2. The guy he beat in the election was named Garland Peed.

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