Baby with the Bathwater?
I’ve gone out on a limb here on this blog and openly expressed my conviction that the U.S. Constitution and the entire State resting on it is of No Authority. The full argument for this position is found in Lysander Spooner’s No Treason: The Constitution of No Authority (1870), and is encapsulated in the short appendix at the end of that treatise:
Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.
A problem, however, is that while the Constitution has either authorized or been powerless to prevent such evils as slavery, income taxes, and the recent bank bailouts, it also includes things that a libertarian or a criminal defense attorney is bound to approve, like the Confrontation Clause of the Sixth Amendment. Where would we be without the Sixth Amendment (or the rest of the Bill of Rights), or at least what’s left of it after so much judicial hackery?
The issue was brought home by Scott Greenfield and Gideon in their blog posts yesterday about this tough case:
Rapists, take note: Want to beat the rap and inflict even more psychological damage on your victim while you’re at it? Be your own attorney!While that might not sound like the best recommendation, what with representing one’s self in court typically associated with psychopaths whose defenses tend to go down in flames, it unfortunately seems to be sage advice for sexual assailants, as Alex Dibranco reports on the Women Rights blog.
Why? Consider a recent case out of Washington. As The Seattle Times reported last week, a man accused of child rape had charges against him thrown out after the alleged victim in the case, now 21, refused to let him cross-examine her on the stand; rather than testify, she spent three hours threatening to jump off the roof of the King County Courthouse. (The man still faces charges with respect to other alleged victims.)
. . .
Of course, even those accused of horrible crimes are entitled to a defense. And just because someone is accused of being a rapist doesn’t make it so. But victims also have rights, and asking them to relive the trauma of a sexual assault via a cross-examination by the perpetrator sure seems to be a violation of them.
Thankfully, there have been efforts to address the situation. Last year, a bill was introduced that would appear to protect defendants’ and victims’ rights alike by allowing the former to question the latter via closed-circuit television or through a surrogate attorney. And while the bill stalled in the state legislature, a similar proposal is expected to be reintroduced in the next legislative session — and recent events ought to persuade previously skeptical politicians.
Greenfield observes:
While I’ve tried to make the point a dozen different ways, concrete examples tend to serve best for those who find it difficult to wrap their heads around it. Each of us sees Justice through our own eyes. Our sensibilities are formed from our own unique experiences and genetics, and what is obviously just to one is questionably just to another, and clearly unjust to a third, all because our vision is different.
To the person whose concern focuses on the victim of rape, the idea that she would be forced to be subjected to interrogation by her violator is outrageous. To the person whose concern is false or mistaken allegation, no shortcut or half-baked compromise will suffice to replace the safeguard of confrontation.
It’s tough when there are directly conflicting interests at stake, both claiming to reflect Justice.
. . .
Many folks here, from criminal defense lawyers to those who have suffered at the hands of the criminal justice system, have some very clear, very strong, views that change is needed. They are incredibly good, as am I, at tearing down the things we feel are wrong.
The problem, however, is what we build to replace it, and that’s a problem not easily solved. Stop screaming for Justice, or arguing that it’s just common sense. There’s a possibility you may get what you ask for, and you’re not going to like it.
The problem, as I see it, is that, despite our cognitive and moral limitations, we the people, including those of us who happen to be judges or legislators, ultimately have nothing other than our rational faculties and sense of Justice to guide us in resolving such tough cases involving directly conflicting valid interests. Sure, we importantly also have legal traditions, such as those associated with the Confrontation Clause of the Sixth Amendment, that inform our sense of Justice, but these legal traditions themselves evolved from our predecessors’ sense of Justice, and must be subject to and amended by our own evolving sense of Justice. (Your average criminal defense attorney will certainly agree with this proposition when it comes to the Eighth Amendment.) The legal tradition associated with the Confrontation Clause of the Sixth Amendment does not depend upon recognizing the Constitution’s non-existent authority. According to Wikipedia:
The Confrontation Clause has its roots in both English common law, protecting the right of cross-examination, and Roman law, which guaranteed persons accused of a crime the right to look their accusers in the eye. According to Acts of the Apostles 25:16, the Roman governor Porcius Festus, discussing the proper treatment of his prisoner Paul, stated: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”
Gideon, in his post linked to above, argues that the conflict between the rights of an alleged rape victim and the rights of a defendant accused of rape to self-representation and to confront the witnesses against him is easily resolved in favor of a pro se defendant’s right to personally cross-examine his alleged victim by appealing to the text of the Confrontation Clause and judicial opinions interpreting the Clause, and thinks that those who think differently are “stupid.” While I’m inclined to defer to Gideon’s superior knowledge of constitutional law, I’m not so sure that the issue is as much of a slam-dunk as he makes it out to be. After all, as Gideon acknowledges:
In fact, as regular readers and criminal defense attorneys are aware, the only circumstance in which courts have upheld barring a defendant from the physical presence of the complaining witness is in cases of child sexual abuse. And even in those cases, it is only because the defendant’s representative – his attorney – is physically present in the same room as the complainant and thus able to satisfy the Constitutional mandate.
Where is the defendant’s right to personally confront his accuser face-to-face in that? What if the defendant accused of child molesting wants to represent himself and to personally cross-examine the child accusing him?
The political issue of our time, and of all times, is whether our evolving sense of Justice will lead we the people to concede ever more, or ever less, of our power to those of our number who purport to rule the rest of us by the authority of the State. Recognizing that these agents-without-principals do not in fact have the authority they purport to have constitutes an essential step in the right direction.
Follow
Putting aside questions of whether the ratification of the Constitution makes it binding when not every person subject to its nominal authority has signed off on it (or even a majority), or whether your libertarianism is really a proxy for anarchy (and I mean true anarchy), or whether it’s even marginally consistent to acknowledge some authority in the common law but none in the Constitution or to acknowledge that we are subject (legitimately or not) to the courts as constitutional creations but that the provisions of the Constitution are themselves irrelevant to the operation of their creations – putting aside all of that –
Why is it difficult to understand that the asserted “right” of the alleged victim of a crime to be protected against the indignity and annoyance of being cross-examined by the pro se defendant (or his agent the lawyer, and that is essentially an agency relationship in our system, like it or not) is a sham based on the assumption that the alleged victim must be in fact a victim? Under those circumstances, the assumption is that the defendant is guilty and has no rights.
But that’s not our system (or the common law system, for that matter) which presumes innocence and provides for a right of confrontation (however much it may be limited) and no concomitant right to avoid confrontation.
The issue may not be a legal “slam dunk” (your phrase) if by that you mean that the courts will always get it right. But it’s certainly a slam dunk in terms of legal principles.
1You raise a couple interesting points in your first paragraph. First, I did not mean to imply that the provisions of the Constitution are or should be irrelevant to the operation of the courts as constitutional creations. But I do agree with Lysander Spooner, in his The Unconstitutionality of Slavery, when he wrote:
“If these doctrines are correct, then those contracts of government, state and national, which we call constitutions, are void, and unlawful, so far as they purport to authorize, (if any of them do authorize,) anything in violation of natural justice, or the natural [*10] rights of any man or class of men whatsoever. And all judicial tribunals are bound, by the highest obligations that can rest upon them, to declare that these contracts, in all such particulars, (if any such there be,) are void, and not law. And all agents, legislative, executive, judicial and popular, who voluntarily lend their aid to the execution of any of the unlawful purposes of the government, are as much personally guilty, according to all the moral and legal principles, by which crime, in its essential character, is measured, as though they performed the same acts independently, and of their own volition.”
Many people, looking back with regard to American slavery, would I think support the above principle as self-evident, as they also would with respect to judges under the Nazi regime. If the principle was valid then with respect to American slavery and the Nazi’s effort to exterminate Jews, it’s as valid today.
More interesting is your suggestion that I acknowledged some authority in the common law but none in the Constitution and that it was inconsistent of me to do so. I’ll have to think that over.
2If the right of confrontation is based on the right to look one’s accuser in the eye as she makes the accusation to the jury, and on the right to cross-examination, then it would seem that the right of confrontation would be satisfied by allowing the accused to be physically present while an attorney cross-examines the accuser (whether the accuser is a child or not). You’re right that a rule preventing a defendant from representing himself and personally cross-examining his accuser only in certain special kinds of cases might imply an inversion of the presumption of innocence in those kinds of cases (though not in a way that would be meaningfully conveyed to the jury), and for that reason I on balance tend to have to agree with you and Gideon, but I still don’t think it’s a slam dunk, because the defendant ordinarily would have no good reason to want to cross-examine the accuser himself (unless the defendant also happens to be the best criminal defense attorney in town), and an obvious perverse reason to want to conduct the cross-examination himself. It also seems significant to me that the alleged victim herself may not be a voluntary witness at trial, and may have been subpoenaed against her will to testify.
3P.S. On further reflection, I can see why an innocent defendant wrongly accused of rape or child molestation might want to personally cross-examine his accuser rather than have an attorney do it (even though most every criminal defense attorney would say this is a very bad idea), on the theory that it will be more difficult for the accuser to lie to the accused in response to the accused’s questions than in response to the accused attorney’s questions. This makes it an easier case. But my intention in this post was not to come down on one side or the other.
4