The views expressed in any article published in this blog are the author's own and do not necessarily reflect the views of Joseph Foster or Bob Lupoli.

Tuesday, February 7, 2012

U.S. Constitution - An Unattractive Old Hag or Timeless Beauty?

Joe: today I am reading about the US Constitution, since it's in the news with Ginsberg's comments about not choosing the US Constitution as a mode for other countries. I agree with Scalia - essentially words are one thing - actions are another. Other countries may have better words and may change every 20 years or so but it the actions that count. Also the government is again trying to have more control over the internet – I suspect a nefarious purpose. -Bob
Definition of POLEMIC:   an aggressive attack on or refutation of the opinions or principles of another

‘We the People’ Loses Appeal With People Around the World

By ADAM LIPTAK  Published: February 6, 2012
WASHINGTON — The Constitution has seen better days.
A quarter-century later, the picture looks very different. “The U.S. Constitution appears to be losing its appeal as a model for constitutional drafters elsewhere,” according to a new study by David S. Law of Washington University in St. Louis and Mila Versteeg of the University of Virginia.
In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human RightsThere are, of course, limits to empirical research based on coding and counting, and there is more to a constitution than its words, as Justice Antonin Scalia told the Senate Judiciary Committee in October. “Every banana republic in the world has a bill of rights,” he said. “The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours,” he said, adding: “We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!” “Of course,” Justice Scalia continued, “it’s just words on paper, what our framers would have called a ‘parchment guarantee.’ ”

By Josh Peterson 02/06/2012 Tech Editor
Senate Majority Leader Harry Reid, following a recent anti-piracy legislative debacle with SOPA and PIPA, will lead his second effort of 2012 to push Internet-regulating legislation, this time in the form of a new cybersecurity bill. The expected bill is the latest attempt by the Democrats to broadly expand the authority of executive branch agencies over the Internet.

Citizen's Political Power in the U.S.
The Constitutional Relationship of the People to the Law
Supreme Court Re-Interprets Our Original Constitutional Traditions
A US Supreme Court decision, (Sparf and Hansen v. U.S.) declared, in 1895, that the jury does not have the right to nullify laws.

The actual case was technically just a ruling, in a bitter split decision, that U.S. states no longer had to inform juries they could veto an unjust law.  However, the majority opinion was that the juries have the power to nullify, but not the right.

If you find the last sentence confusing I don't blame you! I hope that the next paragraph will clear things up a little.

Basically it was the immunity of a seated jury from prosecution for returning a verdict that the judge didn't like that gave the jury members the power to nullify the law.  However: In reality this acceptance of the traditional immunity of a seated jury only limited the full impact of the court's decision.  Everything, up until the verdict is achieved, is fair game.  Trial judges now routinely tell jurors that their only job is to decide if the facts are sufficient to convict, and that if so, they must convict -  but  because of the continued immunity of a seated jury that is a relatively minor issue.  More important is the fact that the ruling allowed judges to limit the speech of trial lawyers, or at least defense attorneys, as well as the constitutional power to interfere in the seating of  individual jurors.

Today defense attorneys can face contempt of court charges if they urge jurors to acquit, because they believe the law is unconstitutional, or that a conviction would be an unjust burden on the defendant.  However, in England, "Rumpole of the Bailey" can still use the following defense - "Yes my client did it!  So what!  Does any member of the jury really believe my client deserves to be punished?"

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