The “Living” Constitution Is in Serious Condition

By | April 16, 2018 | 7 Comments

FBI raids office, home, hotel room, and safety deposit box of Donald Trump’s longtime personal lawyer, Michael Cohen, and seizes computers, flash drives, phones,  and records. News report

Lifelong liberal and Hillary voter Prof. Alan Dershowitz calls raid on lawyer “really appalling,” “a dangerous day for lawyer-client relations,” and “unconstitutional.” News report

As Martha Stewart, Lewis “Scooter” Libby, and Michael Flynn learned to their sorrow, when you talk to federal agents, and you say something that contradicts what others said, you can be sent to prison ‒ even if there was no provable underlying crime. This being the case, a Miranda warning should be required before anyone is interviewed by a federal agent.

They tell us, “See something, say something.” But as recent cases including the Parkland school shooting proved, even if we say something, they may not do anything. And as Martha, “Scooter,” and Michael proved, if you say something, they may toss you in the slammer. (Yes, Libby was just pardoned, but his career was ruined, and he lived as a convicted felon for 14 years.)

But now we have descended to the next level of government intrusion. Now we have reached, “Don’t say anything, even to your lawyer.” At any time, federal agents can raid his office, his home, his hotel room, and his safety deposit box. They can seize all his computers, flash drives, phones, and other records. And if they can do that to the President’s lawyer, they can surely do it to anyone’s lawyer, including yours.

But they don’t have to be interested in you, at least not at first. They may be interested in another of the lawyer’s clients, and your files happen to be on that hard drive or flash drive.

Do you imagine that when the FBI and U.S. Attorneys go through Michael Cohen’s computers, they won’t ‒ not even for a moment ‒ peer at records of his other clients? There is naïve, and then there is just plain stupid. You’d have to be stupid to believe that the agents’ curiosity wouldn’t get the better of them. Besides, “making” a new case would be a good career move.

And what was the reaction of the New York Times, the Los Angeles Times, and the ACLU to this gross violation of attorney-client confidentiality? These leftist organizations nodded approvingly. But what if Trump had ordered the FBI to seize the records of the attorney for Bill and Hillary Clinton? They would have screamed themselves hoarse and soiled their underwear. They have no rules to guide them. They have only tactics to advance their leftist agenda.

America needs an organization that fights for civil liberties. Instead we have the ACLU, which fights for leftist causes and concerns itself with civil liberties as a sideline, if it has spare time.

The physician-patient privilege, which is dear to me, is based on the 2400-year-old Hippocratic Oath. But only one American medical school administers that oath to graduates anymore. They now use a variety of oaths that cover a variety of subjects, and few pay much attention.

On the other hand, the attorney-client privilege is based directly on the Constitution. The Sixth Amendment guarantees criminal defendants the right to be represented by counsel. But what good is representation by an attorney, if the attorney’s records may be seized and scrutinized by the prosecutors?

And those records may contain accounts, or actual recordings, of private conversations between you and your attorney. In effect, that part of the Sixth Amendment has been rendered null and void. Similarly, the First Amendment’s guarantee of free expression is being rendered meaningless at our universities and social media.

Apologists tell us that some contacts between lawyer and client are not privileged. Purely business dealings or crimes may not be privileged. But who decides? The prosecutor reads through everything, decides what is privileged, uses what he says isn’t privileged, and then uses what is privileged to find a “work-around” and use it as well.

That sounds more like the “legal” system of the Soviet Union and other tyrannical states that it does like the American system, based on centuries of English common law. It sounds like the prosecutor holds all the cards, including the power to bully the defense lawyer with threats of imprisonment. Presumption of innocence? Representation by counsel? What quaint, old-fashioned notions. Get with the program!

But at least the confessional of the Catholic Church is immune from government snooping, right? Wrong. Police were allowed by a judge to bug the confession of a prison inmate to his priest. Yes, it was in a prison, not a church, but to the participants it was still a sacrament. Bye bye, First Amendment. Bye bye, free exercise of religion.

The data breach at Facebook made headline news, but privacy was already dead. Bugging the confessional showed that the corpse was in an advanced state of decomposition. Data mining of schoolchildren? Your medical records online? We don’t need no stinkin’ privacy ‒ we’re Big Brother. And we want to know everything about you.

What’s next? What’s the next part of the Constitution that will be shredded? What’s the next freedom to pass away?

Retired Supreme Court Justice John Paul Stevens proposed that the Second Amendment be repealed. But he may be a bit senile. Why go through the laborious and uncertain process of amending the Constitution? Why bother? Just get the Supreme Court to vote 5-4 that the Second Amendment refers not to an individual right but to a collective right ‒ that is, it guarantees the “right” of the government to arm its troops.

If you believe the Framers went to the trouble of writing an amendment to guarantee that troops could be armed, your photo ought to appear in the dictionary under “G” for gullible. True, such an interpretation defies the Framers’ plainly stated intentions. But who cares? Who even notices? There are no rules. There are only tactics.

• If the object is to demote citizens into subjects who are defenseless against a powerful government, who cares what the Second Amendment says?

• If the object is to enforce speech codes and silence opposing opinions, who cares what the First Amendment says?

• If the object is to get rid of a President who is not part of the Washington establishment, who cares what the Sixth Amendment says?

“See something, say something”? Are you joking? If you say something, they probably won’t do anything. And if you do say something, even in the privacy of your lawyer’s office, they can find out and use it against you.

As Marshal Beria, head of the KGB secret police in the Soviet Union used to say, “Show me the man and I’ll find you the crime.” We used to believe that the KGB and the FBI were totally different. But we were naïve. We thought that we Americans were fundamentally different ‒ we couldn’t be secret policemen. We were wrong.

The difference between us and the KGB isn’t hereditary, it’s acquired. It’s inculcated in us by our educational system. It’s taught by training us to revere the Constitution. It’s imparted along with a love of freedom. Or at least it used to be.

All federal officers, civil and military, take an oath not to the government but to the Constitution. But not to the “living” constitution, which in effect means whatever the government says today ‒ tomorrow it may say something different. No, they take an oath to the actual, written Constitution. We must insist that they keep that oath.‒ or get out.

The Constitution isn’t actually dying ‒ not yet. But it is seriously ill. Are we going to help it survive? Are we going to give it the needed medicines of originalist interpretation and deep respect? Or will we sit idly, playing video games, watching sports while munching snacks, and occupying ourselves with trivia, while our most precious possession dies from abuse and neglect?

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