14th Amendment | The Magpie Gazette

Without Due Process of Law

January 12, 2018 Editor

“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.”
― from The Federalist Papers, No. 51, by James Madison.

United States Attorney General Jeff Sessions is a fan of civil asset forfeiture, and last year he reinstated the federal partnership with state and local authorities that had been ended by the previous Attorney General, Eric Holder. That partnership allows state and local police to share seized assets with federal authorities if they claim even the flimsiest trespass on federal law by the forfeited assets (in a pretzel-like twist of legal reasoning, it is the assets themselves that are accused, not the person or persons who own them). Engaging the federal government in this way allows state and local police to bypass their civil asset forfeiture laws because they are superseded by federal laws, which are often more favorable to the police. The feds then give the state and local cops a kickback of all or part of the proceeds. This is called “equitable sharing” or, more cutely, “federal adoption”.

100 U.S. DOLLARS - MONEY - Free For Commercial Use - FFCU (26742846243)

Getting pulled over for a minor traffic violation while carrying a large amount of cash can lead to a nightmare civil asset forfeiture scenario for the driver, regardless of the legitimacy of his or her claim to the cash. Only the rich can afford to fight city hall in court. Photo by photoo.uk.

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 offence 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.

― The Fifth Amendment to the United States Constitution, with the due process clause.

It’s hard to imagine how the law can be more clear than this: ” . . . nor be deprived of life, liberty, or property, without due process of law . . . ” To be doubly sure, there is another due process clause in the 14th Amendment. Yet here we are, with police abusing the citizenry by stealing from them, sometimes without even a formal charge filed, but only on mere suspicion of a crime having been committed with the asset or assets, and keeping the proceeds in order to augment their budget. There are slight differences in the law from state to state, but in many states the police are allowed to keep seized assets, which also clearly violates the last clause of the Fifth Amendment, the takings clause. It’s impossible to imagine a more blatant case of conflict of interest, adding insult to the injury of the initial seizure.

In a civil asset forfeiture case, the burden of proof is often on the citizen whose assets were seized, not the authorities who took them. In order to retrieve seized assets, a citizen must prove they were not used in the commission of a crime or are a result of criminal activity, and this proof must be forthcoming even when the police have not filed a charge in court. Apparently the only thing to prevent the police from more flagrantly abusing the civil asset forfeiture laws more than they do is the basic decency and good character of the majority of them. But men are not angels, as James Madison wisely observed, and to allow these laws to remain on the books is to invite corruption of the police and further erosion of public trust in government.

Cash found in a freezer at the Washington, D.C. home of Congressman William J. Jefferson of Louisiana. This photo was entered as evidence in July 2009 showing what was seized in August 2005 from the freezer of the home of then Rep. William Jefferson, D-New Orleans. Jurors in the trial of Jefferson, who lost his re-election bid in 2008 while under indictment for bribery, saw photos of the infamous frozen cash. It was wrapped in $10,000 increments and concealed in boxes of Pillsbury pie crust and Boca burgers. Photo by the U.S. Attorney’s Office.

A flagrant case of abuse occurred last year in Jeff Sessions’s home state of Alabama, in the small town of Castleberry in the south central part of the state. To generate revenue for his little town, the mayor hatched a plan for taking advantage of Alabama’s very favorable civil asset forfeiture laws by confiscating cash and property from citizens and visitors alike, but especially out of state visitors, often using entirely invented suspicions. The police chief made no bones about it on public forums, where he joked about how the bogus money grabbing had been a windfall for the town of Castleberry and its nascent police department, now flush with fancy new equipment and patrol cars. Eventually bad publicity caught up with the mayor and police chief of Castleberry, and they were hit with a lawsuit. On a national scale, what happened in Castleberry doesn’t amount to much other than a clear distillation of everything wrong with civil asset forfeiture.

Attorney General Sessions, waving the bloody shirt of the War on Drugs, nevertheless wants to continue civil asset forfeiture and expand it, if he can get away with it. His motivations are unimportant other than how they forecast all the draconian policies he’s likely to see through while he is in charge of the Department of Justice. The important thing is that he has opened up one of the very few issues that attracts a bipartisan consensus in Congress, and that has been for less civil asset forfeiture, not more.

Highway robbery in Stanley Kubrick’s 1975 film Barry Lyndon, with Ryan O’Neal as Redmond Barry. Under America’s civil asset forfeiture laws, the gold guineas in Barry’s purse, and the horse he rode in on, could be forfeited to the robbers, or police.
The strange history of this policy of official stealing from the innocent and the guilty alike also matters little, except perhaps to those appellate court judges who fall back on referring to obscure precedents of legal reasoning as convoluted and ultimately irrelevant as the debates of clerics who wondered how many angels might dance on the head of a pin. Congress can take this matter away from both Sessions and the judges by enacting legislation rolling it back. Really it should be swept away entirely, along with the War on Drugs it purportedly assists, as failed policies which have corrupted the police and eroded public trust every bit as much and in the same way as Prohibition did in the early decades of the twentieth century, when civil asset forfeiture first became a major police tactic. It seems we never learn lessons once and for all, but have to forever relearn them.
― Ed.

Thievery 14th Amendment, Alabama, America, Attorney General, Barry Lyndon, Boca Burgers, Burden of Proof, Castleberry, Civil Asset Forfeiture, Congress, Constitution, Criminals, Democrats, Department of Justice, Due Process, Equitable Sharing, Eric Holder, Federal Adoption, Federal Authorities, Fifth Amendment, Freezer, Highway Robbery, James Madison, Jeff Sessions, Judiciary, Louisiana, New Orleans, Pillsbury, Police Employees, Prohibition, Republicans, Ryan O'Neal, Stanley Kubrick, State Laws, Supreme Court, Takings Clause, The Federalist Papers, United States, War on Drugs, Washington D.C., William J. Jefferson

Not a Piece of Cake

July 9, 2017 Editor

“All politics is local.” ― An old saying, most famously uttered by former Speaker of the House, Thomas P. “Tip” O’Neill

This fall the Supreme Court will hear the case of Gill v. Whitford, a partisan gerrymandering case from Wisconsin, where redistricting lines drawn up by Republicans in the state legislature in 2011 after the 2010 census resulted in grossly unbalanced election results, such as in the 2012 election when, despite a majority of the votes statewide going to Democrats, Republicans nonetheless won sixty of the ninety-nine State Assembly seats. While the case is specifically about the redistricting lines drawn for state elections, there are implications for national elections because state legislatures also draw the lines for federal congressional districts. National election results have similarly tilted toward Republicans winning more seats in the House of Representatives than simple vote tallies warrant, and Democrats typically gain fewer seats than vote totals should grant them.

“The Gerry-Mander”, a political cartoon by Elkanah Tisdale (1771-1835), published in the Boston Centinel in 1812. The district depicted in the cartoon was created by the Massachusetts legislature to favor the incumbent Democratic-Republican party candidates sponsored by Governor Elbridge Gerry over the Federalists.

Gerrymandering has been around since the founding of the Republic, ever since Article 1, Section 2 of the Constitution specified that the states had the power to apportion congressional districts based on census results every ten years. There’s nothing in there about how the states should draw the lines, though the 14th Amendment, adopted 149 years ago on July 9, 1868, set guidelines for citizenship and equal protection under the laws for all citizens, and that has been invoked by the Supreme Court to overrule racially motivated gerrymandering. State legislatures have nevertheless taken the broad leeway left in Article 1, Section 2, and run with it, with both parties divvying up the cake as they liked if they had enough votes from their own members to push new district lines onto the books. Once one party or the other established districts in their favor, subsequent elections had the effect of consolidating their power.

There have been partisan gerrymandering cases brought before the Supreme Court in the past, but the Court has always been reluctant to step into what it has deemed politics as usual, and their rulings have always been narrow enough to have little effect on the practice of partisan gerrymandering. The Court has been more willing to rule broadly against racial gerrymandering by applying the equal protection principles of the 14th Amendment. It’s hard to see the ultimate ruling in Gill v. Whitford deviating from past rulings unless one or more of the conservative justices rule against the State of Wisconsin, and by extension the Republican party. The Court is currently split 5-4 along party lines, with Republicans in the majority.

This gerrymandering case is a reminder of how failure to pay attention to state and local politics can result in a minority party exercising disproportional power. There are more important elections than the presidential one every four years. The party that turns people out for local school board elections, for city council elections, and for state legislature elections every year, year after year, is the party that ultimately takes power in the national elections. Those seemingly insignificant elections lay the groundwork and set the rules for what follows on a grander scale.

Motivated people turn out for elections, and Republicans have done a much better job over the past thirty or more years of motivating their people than Democrats have done with their people. They have done so with with some dubious tactics, it’s true, mainly motivating people through fear and loathing of The Other, whoever or whatever that might prove effective at the moment. That was easily seen in the 2016 election.

On a national scale, where state boundaries do not change, the Electoral College has worked to gerrymander the presidential election result on behalf of the Republican candidate as Democrats lose strength in the small towns and countryside of the middle of the country. For instance California, the most populous state in the nation, and one with a strong Democratic party majority, has 55 electoral votes (53 congressional districts plus 2 Senate seats) to offer the Democratic presidential candidate whether that candidate wins the state with a simple majority of one vote or an overwhelming majority of three million votes.

This is from a network television appearance by George Carlin in the early 1990s. No foul language warning necessary.

In the language of gerrymandering, Democrats are effectively “packed” into California and other highly urban states, mostly on either coast. Getting rid of the Electoral College and deciding the presidential election with a simple nationwide majority vote would eliminate this gerrymandering effect, but with Republicans controlling the Presidency, the Senate, the House of Representatives, the Supreme Court, 33 out of 50 governors’ offices, 31 out of 50 state houses, and 37 out of 50 state senates, that won’t be easy.

Magpie Eating Cake, an 1865 painting by Rubens Peale (1784-1865).

It would take working from the grass roots on up instead of snoozing until 2020 and dreaming the current Republican president will be impeached along the way. It would also mean holding the Democratic party establishment to account for selling out the middle and working classes while they chased after financial and professional elites. Since the Democratic party establishment has shown no inclination to change in response to the 2016 election debacle, however, it appears the best course in the years ahead will be to discard the Democratic party apparatus altogether and form an entirely new major party. It’s not like that has never been done before.
― Ed.

Politics 14th Amendment, Al Pacino, Boston Centinel, California, City Council, Constitution, Cuba, Democratic-Republican, Democrats, Elbridge Gerry, Electoral College, Elkanah Tisdale, Federalist, George Carlin, Gerrymander, Gill v. Whitford, Governors, House of Representatives, Lee Strasburg, Magpie Eating Cake, Massachusetts, Middle Class, President, Representatives, Republic, Republicans, Rubens Peale, School Board, Senate, Senators, Speaker of the House, State Legislatures, Supreme Court, The Godfather: Part II, Thomas P. "Tip" O'Neill, Wisconsin, Working Class

The Kolledge of Electoral Knowledge

December 18, 2016 Editor

Meeting of the 2012 Ohio Electoral College; photo by Ibagli

The 538 members of the Electoral College meet tomorrow, December 19th, in the 50 state capitols and in Washington, D.C., to cast their ballots for President and Vice President. Many people across the country are unsure about the purpose of or need for the Electoral College, and they think we could do better without it. In Article II, Section 1 of the Constitution, the Founding Fathers established the Electoral College, though they never named it as such.

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . “

There is further elaboration on the Electoral College in the 12th and 14th Amendments.

Nowhere in the Constitution is there anything about constraining the Electors to vote for the winner of their state’s popular vote. In 26 states and in Washington, D.C., Electors are bound by state laws or party pledges to vote for the winner of the popular vote in their state. The Founding Fathers did not foresee the rise of political parties, and they imagined the Electors would act more independently than has proved to be the case. Political parties now choose the Electors and dictate how they vote, and over half the states have codified that policy into state law. The Electoral College functions now as nothing more than a rubber stamp for the winner take all system in all the states except Nebraska and Maine, which allocate their electoral votes by congressional district.

If the Electors exist only to rubber stamp the electoral votes determined by the popular vote in each state, then why bother with human Electors at all? If the purpose of the electoral vote system is to protect the minority rights of less populous states from being overrun by more populous states, then tally the electoral votes allocated by each state’s popular vote and do away with the Electoral College members altogether. If, on the other hand, we expect Electors to act at their own discretion, then do away with the restrictions placed on them by the states and by the political parties, all of which may be unconstitutional, and allow them to vote their consciences.

The Founding Fathers had some good reasons for establishing the Electoral College, though they failed to envision how it has played out since the 18th century. As it exists now, it is neither fish nor fowl, neither a body independent of the will of the people nor beholden to it. The Electoral College is beholden to the will of the political parties, and any member who votes independently of that will is termed a “faithless Elector,” and may be subject to legal penalties as well as party ostracism. What good is an institution like that?
– Ed.

Scene at the Signing of the Constitution of the United States, a painting by Howard Chandler Christy. The figures in this painting who were instrumental in the establishment of the Electoral College were James Wilson, in the green coat directly beneath the flags, who proposed it; and seated to either side of Benjamin Franklin, at the center, were James Madison on the right and Alexander Hamilton on the left, the two men who explained it’s function and lobbied for it’s inclusion in the Constitution.

Voting 12th Amendment, 14th Amendment, Alexander Hamilton, Benjamin Franklin, Congressional District, Constitution, Electoral College, Electors, Founding Fathers, Howard Chandler Christy, James Madison, James Wilson, Maine, Nebraska, Ohio, Political Parties, President, Scene at the Signing of the Constitution of the United States, States, Unconstitutional, Vice President, Washington D.C.