Aggressively Defending My Clients Since 1990


On Behalf of | Mar 22, 2020 | Firm News

One of Aesop’s Fables is the story of the Wolf and the Lamb:

A Wolf, meeting with a Lamb astray from the fold, resolved not to lay violent hands on him, but to find some plea to justify to the Lamb the Wolf’s right to eat him.  He thus addressed him: “Sirrah, last year you grossly insulted me.”  “Indeed,” bleated the Lamb in a mournful tone of voice, “I was not then born.”  Then said the Wolf, “You feed in my pasture.”  “No, good sir,” replied the Lamb, “I have not yet tasted grass.”  Again said the Wolf, “You drink of my well.”  “No,” exclaimed the Lamb, “I never yet drank water, for as yet my mother’s milk is both food and drink to me.”  Upon which the Wolf seized him and ate him up, saying, “Well! I won’t remain supperless, even though you refute every one of my imputations.

The moral to the story is simple:  A tyrant will always find a pretext for his tyranny.

According to Rolling Stone, “DOJ Wants to Suspend Certain Constitutional Rights During Coronavirus Emergency.”  Politico further explains that “In one of the documents, the department proposed that Congress grant the attorney general power to ask the chief judge of any district court to pause court proceedings “whenever the district court is fully or partially closed by virtue of any natural disaster, civil disobedience, or other emergency situation.  The proposal would also grant those top judges broad authority to pause court proceedings during emergencies. It would apply to “any statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings,” according to draft legislative language the department shared with Congress. In making the case for the change, the DOJ document wrote that individual judges can currently pause proceedings during emergencies, but that their proposal would make sure all judges in any particular district could handle emergencies “in a consistent manner.”

That means your government, which is supposed to be instituted for “We the people…..,” could arrest you and never have you brought before a judge until the government decides that the emergency or the civil disobedience is over, said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers.

Unfortunately, the cry to suspend the Constitution due to some emergency is not a new one.  As Justice Davis explained in Exparte Milligan which was decided after the Civil War, invalidating the criminal conviction of a civilian by military commission in a non-rebellious area as a violation of the rights to indictment and trial by jury:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.” 71 U.S. (4 Wall.) 2, 120-21 (1866).

In dealing with another perceived threat from Asia, the United States Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944) held that exclusion of all persons of Japanese ancestry from a designated “Military Area” was constitutional.  It took an ex-Nuremberg prosecutor, Robert H. Jackson, to explain the real harm caused by the Court’s decision.  Justice Jackson explained that the great harm to liberty and equality done by the military expulsion of Japanese Americans from their homes and communities was dwarfed by the still greater harm done by bending the Constitution into a form that could rationalize that course of action because of the exigency of the moment.  The principle of suspending the Constitution at the time of a proclaimed government emergency, explained Justice Jackson, is a  principle…”[that] lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting).

As the tale of the wolf and the lamb remind us, government action generated by public paranoia towards an unpopular cause or group rarely meets constitutional requirements.  City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442 (1985) (law against marginalized groups,-such as a group of mentally disadvantaged residents, cannot meet the equal protection command of the Fourteenth Amendment.).  It is not good legal policy to choose expediency over due process.  State v. King, 82 Wis. 2d 124, 138, 262 N.W.2d 80 (1978).  “[W]hat the Framers understood then remains true today—that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy.  It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms.  In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the government’s enforcement efforts remain within the strict boundaries.”  United States v. Leon, 468 U.S. 897, 929–30 (1984) (Brennan, J., dissenting).  Assertions of extraconstitutional authority by the federal government based upon the suspension of the Constitution were anticipated and precluded by the explicit terms of the Tenth Amendment which states that the federal government possesses only those powers delegated to it by the United States Constitution.  A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495, 528-29 (1935).