The awesome majesty of the state’s power — thoughts for Constitution Day

Nobody believes more strongly in defense attorneys than Progressives.  This is ironic, because the whole point of defense counsel is to be a bulwark against Big Government.  I was reminded of this fact when one of my children, out of the blue, wondered how defense attorneys could bear to represent their clients . . . the really bad ones, she hastened to add.

What an excellent question and one, I think, that goes to the heart of a citizen’s relationship to the state.

It all starts with the Fifth and Sixth Amendments to the Bill of Rights:

Fifth:  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Sixth:  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.  (Emphasis added.)

These rights are inherent in each citizen.  Being Mirandized doesn’t create the rights; it simply reminds citizens in stressful situations that they have these rights.  Each of these rights has as its purpose protecting the citizen against the awesome majesty and power of the state.  With the Constitution in place, gone are the days of trials by fire or drowning; lengthy imprisonments before a trial; repeated prosecutions; and coerced testimony.  No matter what information we have about a criminal defendant’s conduct outside of the courtroom — no matter that a hundred people saw him stab the knife into someone’s heart — when he stands before the court, the law presumes him innocent and therefore entitled to every right that goes with that innocence.

In this context, a criminal defense attorney stands as the knowledgeable friend of an innocent man who would otherwise have to face alone everything that the state can bring to bear against him: its coercive power against witnesses; its wealth; its resources; its ownership of the judicial system; its familiarity with rules, law, and procedure; and, most importantly, its capacity to imprison or even to kill the person who stands before it.  A criminal court is Big Government made personal.  A criminal defense attorney is an honorable man (or woman) who stands as a necessary bulwark against potential tyranny.  The attorney represents not only his (or her) client, but all citizens.

Progressives are rightfully fanatic about making sure that an accused person has counsel.  At my law school, it was always the left of Left students who went on to become public defenders.  Most of them burned out, of course, because absent the presumptive assumption of innocence, the people defense counsel work with are for the most part not very savory.  Sure, there are the fools, the innocents, the dupes, the careless ones, the one-time, unlucky DUIs, and the victims, but for the most part, criminal defense work entails representing criminals.

Given their fealty to the notion that the government is an extremely dangerous entity, the power of which must always be constrained, it’s quite peculiar that Progressives are so enamored of Big Government.  One would think that they, more than others who don’t routinely think about our justice system, recognize how monumental government is and how dangerous it can be without our zealously reminding it of its limits.

Just as Obama vows to ignore federal law, the California State Bar vows to ignore state law

In ordinary times, criminals disregard the law.  In the PC Obama era, however, elected officials and state government agencies don’t have much use for the law either.  Take Obama, for example.  Contrary to the original headlines regarding Obama’s newly discovered immigration rights, Obama’s recent announcement regarding illegal immigration isn’t an executive order.  Instead, it’s simply an abandonment of his executive responsibilities, insofar as he has now publicly announced that he refuses to enforce the laws that the legislative branch has passed.  He’s still King Obama, taking the law in his own hands but, instead of making the law, he’s breaking the law.

It turns out that, in Obama’s America, the federal executive branch is not the only government agency that has no use for explicit laws.  In California, the State Bar is vigorously arguing that it doesn’t need no stinkin’ laws either.  Let’s begin this discussion with the law itself.

Under California law (Calif. Bus. & Prof. Code sec. 6068), a licensed attorney is obligated to support both federal and state laws:

It is the duty of an attorney do to all of the following:

(a) To support the Constitution and laws of the United States and of this state.

Attorneys cannot plead ignorance of this requirement, as they must expressly state this obligation as part of the oath of office they take as a prerequisite to becoming fully licensed (Calif. Bus. & Prof. Code sec. 6067):

I solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.

Put simply, California requires that, to practice as an attorney, the licensee must orally and explicitly promise that he or she will to support, not break, either state or federal law.

With this in mind, how in the world can the State Bar of California argue that an illegal immigrant should become a licensed attorney?  Shouldn’t both the Bar’s and the newly licensed attorney’s first obligation be to turn the attorney in for violating explicit federal immigration laws?

An illegal immigrant who passes the bar exam and demonstrates good moral character should be eligible to practice law, the State Bar has declared in a court filing.

The bar, which oversees California’s 225,000 lawyers, told the state Supreme Court on Monday that federal law leaves regulation of the legal profession largely up to the states and does not appear to prohibit Sergio C. Garcia, 35, of Chico from obtaining an attorney’s license.

[snip]

The court cited two federal laws as potential obstacles. One prohibits illegal immigrants from receiving any “state or local public benefit,” including a professional license provided by a “state agency.” The other prohibits employers from knowingly hiring illegal immigrants.

In Monday’s filing, the bar said the first law doesn’t apply because the court is a branch of state government, not a “state agency.” In 1995, the bar noted, the U.S. Supreme Court ruled that federal courts aren’t government agencies.

[snip]

“There is no reason to believe he cannot take the oath and faithfully uphold his duties as an attorney,” the bar said. It said the policy considerations are similar to those the California court addressed in 1972, when it declared unconstitutional a state law requiring attorneys to be U.S. citizens.

It’s pure sophistry to say that the federal laws don’t apply just because the California court system is a self-regulated branch of state government.  This argument ignores entirely the fact that California’s own law, which does indeed govern, imposes upon attorneys the obligation to support the Constitution.  The Constitution, in turn, is the umbrella for federal legislation.  The same sophistry holds true when it comes to comparing legal immigrants, who have not violated any laws on their way into the country, with illegal immigrants, whose very presence is an offense to law.

What’s going on here is open-and-above-board, so it’s we’re not concerned here with ordinary “cash corruption.”  That is, this is not a situation in which a private citizen makes a payment to a government official in return for the latter’s promise to look the other way.

What we have here is worse.  We are witnessing a profound ethical corruption that sees public institutions deliberately flouting their own laws.  This is a dangerous slippery slope.  Once the reliability of law is gone, the only thing left is despotism or anarchy, with the former being the tyranny of an individual or group and the latter being the tyranny of the mob.  When political officials expressly ignore the law, they are no better than ordinary criminals.  What’s being stolen, though, is more valuable than money or jewels.  It’s the essence of our liberty.