Constitution Day

September 17, 2013 marks the 226 anniversary of the United States Constitution. Every President, Congressman, Senator, Judge, Soldier, Sailor, Civil Servant and Attorney has taken an oath to uphold and defend this document. Josh_Constitution

I always stand a little taller whenever I hear:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Constitution Day is just as important and the 4th of July. The Declaration of Independence was the kick-off to our country becoming the United States of America, but we would not be the United States of America without the Constitution. It is literally the document that binds us together, ensuring each of us are protected under the laws of the United States.

We also should never forget those who paid with their lives to defend our Constitution.

The History Geek

We briefly experimented with the Articles of Confederation after the Revolutionary War. It was a long lesson of how not to have a government. The Articles of Confederation were a failed experiment due to the inability to have any sort of national unity, the ability to tax or pay off debt. If left in place would have caused nothing by disunity, as states became their own nation-states.

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.

Alexander Hamilton, The Federalist Papers, No 15, December 1, 1787

We Americans are a funny lot. The Constitutional Convention gathered with the intent to fix the Articles of Confederation, not draft a new Constitution. The fact this was pulled off is an impressive testimonial to James Wilson, James Madison and the other Founding Fathers.  Somehow, Ben Franklin did not leak the Convention’s plans while drinking.

Josh_FoundingFathersNothing in America gets done without debate and usually name-calling. James Madison, Alexander Hamilton and John Jay wrote the Federalist Papers arguing for the Constitution under the pen name Publius. Ironically, one of the complaints was the fact the Constitution’s preamble said “We the People” and not “We the States.”

What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.

James Madison, The Federalist Papers, No. 51, February 6, 1788

The ratification battle was won, but the first order of business for the first Congress was establishing the Bill of Rights to ensure greater protection of personal liberty.

The Legal Geek

Why should we celebrate Constitution Day? Because many of our rights as US citizens are completely misunderstood by many of our countrymen. There is also the very real fear many of our rights are being eroded.

Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.

Chief Justice John Jay, Georgia v. Brailsford, 1794

Case in point: After the Boston Bombing, a self-identified liberal told me that “foreigners” do not deserve the right to counsel or a trial. She did not care the suspect in the attack was a naturalized US citizen. The Constitution should not apply to “them” in her worldview.

No, No and No. The Constitution protects everyone in the United States. Even the people we do not like that are charged with crimes. You have the right to be protected from unlawful searches; the right against self-incrimination; the right to counsel if charged by the state or Federal government; and the right to a trial. These rights are not simply suspended out of anger or fear. These rights must be applied to all, to ensure that no one is denied the equal protection and due process of law.

There is another issue: the expanding powers of the Government in the name of law enforcement and security. We have seen government agencies, both Federal and state, decide for themselves that the 4th Amendment does not apply to them. These cases include: U.S. v Pineda-Moreno 2010 U.S.App. Lexis 16708 (Aug. 12, 2010), where a GPS tracking device was put on a car parked by the police on a driveway without a warrant; the DEA’s Hemisphere Project, where AT&T employees paid by the DEA turn over call history via an administrative subpoena issued by the DEA, not a judge; to 1.5 million Americans being subject to a single search warrant issued by a secret court.

I did alright in both Criminal Procedure & Constitutional Law. I always thought the text of the 4th Amendment was pretty clear when it came to probable cause and warrants:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If law enforcement has probable cause, then get a warrant. That being said, I am still stunned there was one warrant to cover 1.5 million U.S. citizens.

Our Constitution is supposed to protect every US Citizen and those in the United States. It is not selectively applied. We attorneys have a duty to help educate the public on our rights. We also have a lot of work to do ourselves in ensuring all of our rights are protected. We do not want to wake up one morning to see our justice system has mutated into the Cyber-Star Chamber that would fit better in Oceania and not America.

So, my fellow attorneys sing the praises of our Constitution to your friends and neighbors. Never be afraid to fight for the Constitution. After all, we took an oath to uphold and defend it.

Back to the History Geek

September 17 is of historical note for the Civil War battle Antietam; Operation Market Garden in World War II; and the roll out of the Space Shuttle Enterprise. Of less historic note is it is also my birthday.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.