"The Practice" and Liberal Judicial Activism

One of my favorite TV shows of the early 2000's was The Practice, a drama revolving around a small defense law firm in Boston. Now in syndication, the main plot line of this morning's rerun involves an accused kidnapper and nun killer. The police, upon entering the apartment of the suspect, rescue the girl while the suspect is out getting coffee. The phone is found to be fully functional and the girl was free to go at any time when the suspect was out for coffee, all shedding what seems to be reasonable doubt on the kidnapping charge. But the "victim" tells the police that she was told by the suspect that he has guns in the closet, so in order to secure the apartment fully the police jimmy the closet and find not only an array of weapons but the mutilated remains of the missing nun. The suspect is arrested upon his return from his coffee-procuring expedition.

Tensions rise as the defense makes a motion during cross-examination of the police officer who executed the search (without a warrant) to suppress the contents of the closet because the search was illegal. No exigency, no warrant, bad search. That is the crux of the defense's argument.

There is also a secondary plot line involving a socially awkward middle-aged man who gets arrested for solicitation of prostitution. The police essentially entrapped the man by luring him into a situation he otherwise never would have found himself in without the aggressive actions of the police. Basically, they led a very thirsty man to a water fountain and got him to drink.

These two plot lines share a very powerful, binding thread: the actions of the police and the possibility of misconduct. The ultimate question to be resolved in both circumstances is: does the police misconduct rise to the level necessary to set the defendant free?

The episode, on its face, does a remarkable job juxtaposing two very different cases bound together by the possibility of police misconduct. The underlying heart of the matter, however, is not the outcome of each trial, though that is the hook for the episode as always. No, here the juxtaposition of Supreme Court precedent versus the original understanding of the Fourth Amendment of the Constitution is the heart of the examination.

Let us begin with this obvious truth: like always when liberal judicial activists take their personal hatchets to the plain language of the Constitution, Supreme Court precedent has been expanded and tortured beyond any conceivable relationship to the original understanding of the Fourth Amendment. Whereas the original understanding never required Miranda warnings (a Supreme Court decision) and the original understanding likewise never allowed for the exclusion of evidence based upon reasonable mistakes made by the police in the line of duty, we are now faced with the unfortunate reality that the Court has created a new reality out of whole cloth, requiring Miranda rights and the disgusting exclusion of evidence obtained not due to misconduct, but due to the simple but reasonable mistakes that human beings make every day.

The police in the case of the man who agrees to pay for sex have engaged in gross misconduct. The man never solicited a prostitute. The undercover officer misled the man up to her hotel room under the guise of consensual sex between two adults and on the verge of intercourse demanded money for her services. He agreed. They took advantage of a weak, socially inept man who probably hadn't been engaged by a woman in years. The police in the case of the nun killer entered an apartment of a man who they suspected of kidnapping, opened a closet they were told had guns, and made an honest and reasonable effort to secure the premises before the suspect returned home. Between these two cases, one action by the police was reasonable. One was clearly not.

Unfortunately, due to the liberal perversion of the Fourth Amendment, precedent requires that the Court treat both equally and give more preferential treatment to the defendant in the nun killer case in order to make sure that the abuse in the solicitation case is curbed. What is never asked, until arguments made by the assistant district attorney and a stunning speech by the judge presiding over the nun killer case, is whether or not this equal treatment of the actions of the police in both cases is ITSELF reasonable.

The judge is torn by her fidelity to the Constitution and to the principle of stare decisis, which is of course important for stability in the law but does not require fidelity in a case when the decision to be upheld is clearly wrong and unconstitutional. In the case of the nun killer, when deciding whether or not the actions of the police are reasonable, she recognizes all of the following: the police acted reasonably; her duty to the Constitution; the validity of the ADA's argument with respect to the original understanding of the Fourth Amendment; and the absurdity of Court precedent which is said to require her to suppress the contents of the closet and therefore release the defendant. And yet, she still rules in favor of the defense!!!!

We have been properly conditioned as a people to respect court decisions in order to maintain order in both the law and the day to day actions of society. We also recognize that abusive conduct by the police is a possibility that requires our vigilance. Where we have gone horribly wrong, as evidenced by this outstanding episode of The Practice, is that we now give suspected murderers more latitude in exploiting the possibility of abusive actions by the police than of demonstrating actual abuse. Because of that, procedure in the collection of evidence is held to a standard that is almost unreachable, and certainly unreasonable, while the prospective rights of the accused are given more weight than the rights and interests of society as a whole.

The presiding judge in The Practice shows a clear understanding of fact, law and reality, as well as the unreasonable position in which she finds herself having to choose between fidelity to the Constitution as her oath requires, or discharging her duties as a lower court judge in a system that depends on stability in order to function properly. In making her decision to set the nun killer free, she chooses to uphold not her oath, but the ludicrous idea that precedent requires one to break that very same oath. It is this unfortunate truth we find ourselves faced with now that we've been exposed to 40 years of liberal perversion of the original understanding of the Constitution's Fourth Amendment.

This is one of my favorite episodes of The Practice because it examines a very difficult question with clarity and a keen understanding of the deep cracks in the foundation of our law and jurisprudence due to liberal judges and their propensity for engaging in outright dereliction of duty. I wish the judge would have had the moral courage to uphold her oath instead of swearing fidelity to the cult of liberal judicial activism. She certainly seems capable of exhibiting the strength required to do so. And in doing so she would've demonstrated to a large audience that the Constitution is the final arbiter of proper judicial conduct, a lesson that MUST be revisited if we are to restore the judicial branch to its proper place in our confederate republic. But we at least understand why she did it. Regrettably, she had no choice.

In the final shot when the judge, defense counsel and prosecution come to understand the reality of what they have allowed to unfold, we see in their tears the folly of the choice made by the judge and the real world consequences sure to follow the release of a sociopath who will likely kill again. Bottom line? The police acted reasonably and the search should have been upheld under the original understanding of the Fourth Amendment. But the killer walks anyway, due to the Court's perversion of the Amendment and a warped fidelity to stare decisis. But hey. At least we know court-engineered procedure was followed, no matter the expense of the public's safety. And, aren't we told, isn't THAT what matters most?

Scientific Fact and Faith

We have done ourselves a disservice by allowing the fight for America's soul to be waged on the terms of our vocal but nonetheless fringe minority. In fact, we are the overwhelming majority of the American people. We believe in American exceptionalism, we believe in G-d and that this nation was created with His blessings, we believe in science and we believe that faith the two are inextricably intertwined. We must reclaim these truths and speak them boldly. And we must not delay another moment.

It is time we reassert that both fact and faith are always on our side. With respect to abortion, they use science and abhor faith when in fact both science and faith are on our side. We have the incontrovertible scientific fact that human life begins at the moment of conception, and as such is afforded by G-d the unalienable right to Life and the Constitutional rights to liberty and due process of law (both statutory and substantive), they argue that human life is not entitled to those because of the word "personhood" and that faith has no place in the law. Which requires more faith? Scientifically proven fact or the parsing of language to achieve a desired result? I suppose it depends on what your definition of the word "is," is.

With respect to education, we again have fact and faith on our side. Until the centralized takeover of education, schooling was a local/state issue. And until the Supreme Court manufactured the separation of church and state, the Ten Commandments hung in most every schoolhouse in America. The statistics don't lie. Before this liberalization of our education system, America's students were taught truthful and therefore patriotic version of American history, fostering a love of country that is curiously absent from the filthy, America-hating, flag-burning hippies who now infest America's higher education system. America's students were taught science and reason, and how to think critically. America's students performed with the best of the rest of the world's students in all disciplines. And America's kids weren't suffering from the scourges of: teen pregnancy epidemics; abortion and its physical and psychological repercussions; rampant STD's; teen suicide. Now, in fact, our students are taught to be oversexed, frivolous idiots who hate their country and the G-d who created them in His image, who just so happen to finish at or near the bottom of the industrialized world's test scores and capabilities in math and science. Which requires more faith? Believing that this is the strange of all coincidences? Or seeing the cause-effect relationship as being fatefully and factually inevitable?

With respect to the American medical/health/insurance (MHI) system, once again both fact and faith are on our side. Before the perversion of the American MHI through over-regulation, taxation, corruption of the health insurance industry through legislation, and other similar government-induced phenomena like the strain illegal immigration puts on the American MHI, American medical care was cheap and plentiful, generally paid out of pocket and budgeted for in advance. And insurance was cheap because it was only meant for catastrophic situations (like car insurance). Then government started mandating all sort of ridiculous procedures be allowed as a legitimate medical claim (think sex changes and breast augmentation), mandated that no interstate competition could take place between insurance companies (thereby stifling competition and artificially increasing cost/profit margins), and now we're debating as a country just 40-some odd years later that a single-payer health care system is worth a second look after the debacle of Hillarycare just 14 years ago. Is it just coincidence that the old model looks exactly like today's current car insurance model? Or should we mandate that car insurance pay for gas, tolls and routine maintenance? So what if single-payer is an unconstitutional and therefore illegitimate act by the federal government (though in saner times those were the only two things that needed to be mentioned to immediately halt such Marxist fantasies). Instead, we should debate them over the minutia in a 1000-page legislative Frankenstein in an effort to convince the American public of something that just four decades ago would've been clearly seen as the direct assault on liberty that it so clearly is? We should take their word on faith instead of looking at the facts?

Wake up, America!!!!!! The solutions to our problems are right in front of us. So let us set about the work of making our future, which coincidentally enough is just exactly where we began. We can do this simply by returning to G-d, returning to the Declaration and Constitution's founding principles, reclaiming science as our natural ally, and let us pray to G-d for the strength and courage to speak bold truths about them all.

Rights versus Privileges

In today's America we hear arguments for this or that policy goal framed with the language of "my rights." Gay marriage is supposedly a right. Abortion is supposedly a right. Health insurance is supposedly a right. Cheap housing is supposedly a right. And so on. It does beg the question, though: what exactly is a right? And second to that, what is a privilege?

A proper understanding of rights and privileges requires us to start from the beginning of the American Republic, namely the Declaration of Independence. Our founding charter articulated the concept of inalienable rights, or rights that derive from G-d and not from the beneficent hand of man (government). These rights are inseparably embedded in the human condition and therefore cannot be legitimately denied or curbed by the arbitrary force of our government, or any government for that matter. For the first time in human history, the American founders articulated the truth that rights are distinguished separably from privileges; one is inherent in human life at the moment that life comes to be; one is left to the realm of the legitimate political process that derives said legitimacy only from the consent of the governed.

We are indeed endowed by our Creator to the rights of life and liberty, and only when one impedes upon the other can either be circumscribed. If I destroy your right to life, then my own life and liberty are at risk. If I destroy your right to liberty, than my own is properly at risk. In the American system, my rights of life and liberty may only be proscribed according to the due process of law, and not by the sheer arbitrary acts of those who hold the levers of power.

Privileges, on the other hand, are benefits or favors bequeathed from one to another, or from oneself to oneself. Should I choose to purchase health insurance I have accorded myself this benefit. Should my employer provide me with it, he or she has accorded it to me. But one cannot write a check to G-d and purchase health insurance, and one is not accorded health insurance at conception or even birth. I suppose a more succinct way to put it would be to say that things created by man cannot be inalienable rights. With respect to abortion, the only legitimate means of the termination of pregnancy is through the natural course of gestation and the body's natural acceptance or rejection of the baby developing inside the womb. For as the right to life is inalienable as properly understood by our Declaration and protected by our Constitution, it is self-evident then that the destruction of that right by arbitrary exercise of power at the hands of a physician (whose knowledge was not inherent at either conception or birth, but learned over a lifetime) and the whim of decision-making by the mother who allowed herself (in almost all cases) to be impregnated in the first place, then the act of abortion is a privilege to be decided by the People of the United States or of the several States. But let's please dispense of the fraudulent discussion of abortion as a right that derives itself from two documents that place the inalienable rights of life and liberty above all others. This is tragicomedy at best.

What got me thinking about rights and privileges was all the discussion about Michael Vick's reinstatement into the NFL and his signing by my favorite team, the Philadelphia Eagles. Many have mused that Vick "deserves" a second chance or that he has a "right" to play football. One statement is questionable and one is wrong.

Viewed solely through the prism of law and order, Vick is indeed deserving of a second chance at exercising his rights of life and liberty. But the conglomeration known as the NFL also has an inherent right of free association and therefore gets to make decisions for itself about who plays and who doesn't. If the NFL can deny the privilege to me because I'm not athletically gifted enough, then it also has the right to deny that privilege to someone who committed an outright felonious atrocity against dogs. So yes, Vick's freedom (e.g. liberty) is guaranteed because he paid his debt to society as defined by society and enforced through the courts, but his ability to play football is not inherent in his humanity and is therefore properly defined as a privilege. No, Michael Vick does not deserve to play football and has no right to do so in the NFL. Sadly, the Eagles bestowed that privilege upon him and have angered a city and fan base around the nation.

We do a profound disservice to ourselves, our family, our friends, and most importantly our Declaration of Independence and Constitution when we debase the discussion of rights and privileges and allow the lines between the two to be blurred or even completely removed. In our efforts to return our nation to a better path for the future, we must place at the forefront of the discussion an honest effort at the proper distinction between the two. Then we will have taken our first steps toward a new morning in America.