Wrong, Wrong, and . . . RIght?

Young Shawn Matlock, Ft. Worth criminal defense lawyer, writes here about his "conservative" (in American politics, code for "in favor of big government unless it gores my ox") political views. Not to pick on Shawn, but here are some highlights of his goodnatured post:

Do I think, in general, Bennett’s person convicted of trafficking 400 grams of cocaine should be punished with a mandatory minimum. Yes. Are there situations when that might not be appropriate? Of course there are. But fundamentally, I think the concept is fair.

Wrong. The fundamental concept of mandatory minimums is there are no situations when the minimum might not be appropriate. If the government has a rule that something must always be so, and you oppose the rule in some cases, you don't favor the rule. You may think 15-year sentences are fair for most people convicted of the crime (if you did, you probably wouldn't want to tell your clients that), but if you don't think they are fair in all cases, then you don't think mandatory minimums are fair.

Do I think a person convicted of sexually assaulting a 6 year old boy should have to register as a sex offender and let everyone know wherever he lives for as long as he lives? Yes. Does it suck to be that guy? Probably more than any of us that haven’t gone to prison as a child molester will ever know. But do I think the person should have to register? Absolutely. Why? Because I want to know that someone like that lives near me, so that I don’t let my two year old son play unsupervised around him.

Wrong; it's a straw man argument. First, the group of people living in our neighborhoods after having been convicted of sexually assaulting 6-year-old boys is a very small one; most such convicts will be in prison until they are very old. Second, the group of sex offenders who violate strangers is a very small one. The stranger who assaults 6-year-old boys is a classic government-generated bogeyman. Only 4.6% of reported sexual assaults against boys aged 6-11 are committed by strangers (see the Bureau of Justice Statistics 2000 report on Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics at 10). The problem with sex offender registration is not that the pedophiles and violent assailants have to register (they would probably prefer registration to incarceration), but that the 20-year-old with the 16-year-old girlfriend has to register for life, and the guy who twice responded to come-ons from the wrong people (that is, cops) at the gay bookstore has to register for life, and the 12 year old who played doctor with his 12-year-old friend has to register for life. The government has broadened the group of people treated as "sex offenders" beyond usefulness to justify registration laws. I was going to announce that Shawn had made a triple-play of wrongness with this paragraph:

The bottom line is that I don’t think you have to be completely anti-establishment to be a successful criminal defense attorney. There is a burned-up, charred American flag hanging in a frame in my office. It was given to me by a former client who I represented pro bono because I thought he was getting a raw deal. He was an Army Ranger, and he stopped two guys that were antagonizing a woman at a bar. A fight ensued and he hurt one of the other men. Surprisingly, he was indicted for Aggravated Assault. We were able to convince the jury of my client’s innocence, and we walked out of the courtroom together. About a year later, he sent this flag to me that he had recovered from demonstrators in Saudi Arabia. The simple note inside said "This is what you and I are fighting for."

If Shawn were employing the flag as a metaphor for government, he would be tremendously, magnificently, absolutely wrong. Wrong in a Coulterian way. The flag doesn't stand for the government. I think Shawn knows that, which is why I'm not inclined to ding him for the third "wrong." Rather, I think Shawn is correctly using the flag as a metaphor for the nation and, by proxy, for the Constitution. I'll come back to the Constitution, but first a few words about the flag. The government tries to appropriate it (with the help of its "conservative" friends who falsely claim that being anti-government is being anti-nation), and sometimes opponents of the government try to give the flag to the government (by burning it, for example, in protest of the government's policies). But the flag never has belonged to or stood for the government. It belongs to and stands for the nation, and for the document establishing it: the Constitution. So. What, if anything, does the Constitution teach us about being pro-government or anti-government? We know that the people who wrote the Constitution were fervently anti-government. They were so anti-government that they picked a fight with the biggest, baddest government on Earth -- not an occupying power but their government -- and, in a serious land war, kicked its ass. Overthrew it. Sent it crying home to mummy. Then, realizing that government was at least inevitable, they established a weak government. Knowing that governmental power is inimical to freedom, they wrote the Constitution so that it would be difficult for the government to get anything done. The unamended Constitution shows the founders' mistrust of government. So we anti-government thinkers are the direct political and philosophical heirs of the founders. If the founders were right not to trust government, then so are we. Having created a weak government, to make assurance doubly sure the founders tacked on the Bill of Rights. As a package, the first ten Amendments restricted the power of government in favor of human freedom. Read in context, each amendment creates a check on a particular aspect of governmental power:

1.The power to stop us from saying what we want and believing what we want. 2.The power to overpower us with force.¹ 3.The power to take over our houses. 4.The power to search us and seize us at will. 5.The power to take away our property and our lives. 6.The power to imprison us. 7.The power to divvy up our property. 8.The power to punish us. 9, 10.The power to do anything else.

Ponder the Sixth Amendment. It was written, as were the rest of the first ten Amendments, to provide a check on governmental power. We are that check. How many jobs are created by the Constitution? How many jobs could not constitutionally be eliminated?

Members of the House of Representatives; Electors; Senators; President; Vice President; Supreme Court justices; Jurors; and Criminal Defense Lawyers.

As the only non-governmental employees with a constitutionally-mandated job, criminal defense lawyers (and jurors) are not only right to oppose the government at every turn, but also obligated to do so. ------- ¹ Some seem to believe that the Second Amendment was intended to preserve our right to protect ourselves against muggers, or invaders, or squirrels. Not so. It, like the rest of the Bill of Rights, was written to protect us against the government. Our right to bear arms was preserved so that we could keep the government in check.

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