Forensic science not so reliable

With the rising popularity of t.v. shows like the CSI series, there has been a corresponding interest in forensic science. In particular, within the legal system there have been rumblings that jurors are expecting a little too much from forensic specialists when it comes to criminal trials. And there are some fairly well-established patterns of abuse within the forensic science community. Well, it turns out that the problems with forensic science aren't simply limited to corrupt labs or sloppy police work. The simple fact is that forensic science isn't all that it is cracked up to be. Popular Mechanics has an important story on the problems with forensic science. It's one major problem: it isn't all that scientific. That's a pretty big problem.

Eight tips for being a reputable attorney

Here's the list from the Nutmeg Lawyer blog. It's a good list, particularly tip #7.

Quote of the day on liberty

I will not willingly cede more power to anyone, not to the state, not to General Motors, not to the CIO. I will hoard my power like a miser, resisting every effort to drain it away from me. I will then use my power, as I see fit. I mean to live my life an obedient man, but obedient to God, subservient to the wisdom of my ancestors; never to the authority of political truths arrived at yestereday at the voting booth.

—William F. Buckley Jr., Up from Liberalism.

Quote of the day: why the law should not be hastily changed

In all the rush to pass a national health care bill, the following thought might be a good one for all of us to give some time to:

The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently its symmetry has been destroyed, its proportions distorted, and its majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies, and delays, (which have sometimes disgraced the English, as well as other courts of justice,) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament, “overladen (as Sir Edward Coke expresses it) with provisoes and additions, and many times on a sudden penned or corrected by men of none or very little judgment in law.” This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. “But if,” he subjoins, “acts of parliament were after the old fashion penned, by such only as perfectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far forth former statues had provided remedy for former mischiefs and defects discovered by experience; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, between insensible and disagreeing words, sentences, and provisoes, as they now do.”

—Sir William Blackstone, Commentaries on the Laws of England, volume 1 (1753).

What state constitutions tell us about the foundation of our rights

Oftentimes when we think of the our rights, we think of the United States Constitution. But state constitutions deal with the rights of the people as well, and in many ways are a much better gauge of how our system conceptualizes the rights (and duties) of the people which are part and parcel of our particular form of democratic republicanism. Since this blog is written from the heart of the Inland Northwest, I thought that I would look at the state constitutions that are applicable to this area of the country, namely the constitutions of Washington and Idaho. In their preambles both the Washington and Idaho state constitutions address the source of our rights, material that provides some insight into the ideas of liberty that undergird each document. Both of these state constitutions are not particularly unique in their approach to how they understand the source of government and the nature of civil rights. Nearly every state constitution in the United States includes similar language in its preamble or bill of rights. The Idaho and Washington state constitutions are good examples of this common approach found in American state constitutions:

• Idaho state constitution preamble: "We, the people of the state of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution."
• Washington state constitution preamble: "We, the people of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this constitution."

Now, Washington and Idaho are two very different states, demographically, economically and politically. Yet, if one looks at these preambles, they display a remarkably consistent theory of the origin of the state and the basis of our rights. Both charters state that the foundation of the authority of the government is with the people. It is the "people" of each state who enact the constitution of each state. The language in the preambles to this effect are clear and unambiguous, "establish," and "ordain." It is the people of each state who create and are the basis of the authority that undergirds each state's constitution. In that sense, the constitutions are populist and democratic.

But that doesn't mean that the people are unconstrained in their actions or that the people themselves are the source of the freedom that is secured by each constitution. The preambles make clear that the freedoms enjoyed by the people are not their own creation, but stem from a transcendent source. The Idaho constitution expressly identifies this transcendent source of rights as "Almighty God." The Washington constitution uses more deistic language, "the Supreme Ruler of the Universe." But in each case, it is clear that the Deity is being invoked, and that the Deity is the source of rights. The Idaho constitution proclaims gratitude to God for the freedom enjoyed by the people of that state. The Washington constitution likewise proclaims gratitude to the Deity for the "liberties" of the people. The message of these two state constitutions is plain. While government's authority comes from the people, neither the people nor the government are the source of our rights and freedoms. Rather our rights and freedoms come to us as a gift from the God who stands beyond our legal and political systems, who governs the universe by his almighty power.

This insight is not unique to the Washington and Idaho constitutions, or to the American political and legal tradition in general. It arises in several places outside our own system. For example, it is one of the foundational ideas discussed by the French thinker Frederic Bastiat in his wonderful book The Law. As Bastiat puts it quite forcefully:

Life, faculties, production — in other words, individuality, liberty, property — this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it. Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.

Note that Bastiat makes essentially the same point as the one expressed in the preambles of the Washington and Idaho constitutions: our rights come not from the government and its largese to us, but rather come from God as a gift. Bastiat then states that far from our rights being the result of the government's laws, our rights are the source of the government's laws! This is a very similar point to that made in the Idaho and Washington constitutions.

Some good advice for lawyers on persuasive argument in trial

From the ABA Journal. Well worth reading for anyone who has to persuade others, whether one is a lawyer or not. The article is full of very useful advice like the following:

"We ought to have a simple-speaking rule: one idea per sentence, with no un­necessary adjectives or adverbs. That’s something you don’t find in almost anything a lawyer writes."

Sage advice. I know that it is advice that I need to hear! I tend to be too wordy when I write and when I speak. I guess it's a carry-over from my youth when that's how I thought lawyers should communicate. Not that this is a problem that is unique to me. Back in the bad-old-days lawyers got paid by the word, and editors were scarce!

Providence and the American Founding

There's an interesting post on that topic over at From Burke to Kirk and Beyond. Well worth a read today.

1852 Independence Day Oration by Frederick Douglass

[Image: a photograph of Frederick Douglass, one of the leaders of the abolitionist movement, and a former slave.] On this holiday, it isn't just patriotic to remind ourselves about what America gets rights, it is also important for us to remember what we get wrong as well. Here's the text of a speech by the great American abolitionist and civil rights activist Frederick Douglass, calling for us to always remember that America was founded to be a republic of liberty before all else: Fellow citizens, pardon me, allow me to ask, why am I called upon to speak here today? What have I, or those I represent, to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? and am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits and express devout gratitude for the blessings resulting from your independence to us? Would to God, both for your sakes and ours, that an affirmative answer could be truthfully returned to these questions! Then would my task be light, and my burden easy and delightful. For who is there so cold that a nation's sympathy could not warm him? Who so obdurate and dead to the claims of gratitude that would not thankfully acknowledge such priceless benefits? Who so stolid and selfish that would not give his voice to swell the hallelujahs of a nation's jubilee, when the chains of servitude had been torn from his limbs? I am not that man. In a case like that the dumb might eloquently speak and the "lame man leap as an hart." But such is not the state of the case. I say it with a sad sense of the disparity between us. am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you, this day, rejoice are not enjoyed in common. The rich inheritance of justice, liberty, prosperity, and independence bequeathed by your fathers is shared by you, not by me. The sunlight that brought light and healing to you has brought stripes and death to me. This Fourth of July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony. Do you mean, citizens, to mock me by asking me to speak today? If so, there is a parallel to your conduct. And let me warn that it is dangerous to copy the example of nation whose crimes, towering up to heaven, were thrown down by the breath of the Almighty, burying that nation in irrevocable ruin! I can today take up the plaintive lament of a peeled and woe-smitten people. "By the rivers of Babylon, there we sat down. Yea! We wept when we remembered Zion. We hanged our harps upon the willows in the midst thereof. For there, they that carried us away captive, required of us a song; and they who wasted us required of us mirth, saying, Sing us one of the songs of Zion. How can we sing the Lord's song in a strange land? If I forget thee, O Jerusalem, let my right hand forget her cunning. If do not remember thee, let my tongue cleave to the roof of my mouth." Fellow citizens, above your national, tumultuous joy, I hear the mournful wail of millions! Whose chains, heavy and grievous yesterday, are, today, rendered more intolerable by the jubilee shouts that reach them. If I do forget, if I do not faithfully remember those bleeding children of sorry this day, "may my right hand cleave to the roof of my mouth"! To forget them, to pass lightly over their wrongs, and to chime in with the popular theme would be treason most scandalous and shocking, and would make me a reproach before God and the world. My subject, then, fellow citizens, is American slavery. I shall see this day and its popular characteristics from the slave's point of view. Standing there identified with the American bondman, making his wrongs mine. I do not hesitate to declare with all my soul that the character and conduct of this nation never looked blacker to me than on this Fourth of July! Whether we turn to the declarations of the past or to the professions of the present, the conduct of the nation seems equally hideous and revolting. America is false to the past, false to the present, and solemnly binds herself to be false to the future. Standing with God and the crushed and bleeding slave on this occasion, I will, in the name of humanity which is outraged, in the name of liberty which is fettered, in the name of the Constitution and the Bible which are disregarded and trampled upon, dare to call in question and to denounce, with all the emphasis I can command, everything that serves to perpetuate slavery-the great sin and shame of America! "I will not equivocate, I will not excuse"; I will use the severest language I can command; and yet not one word shall escape me that any man, whose judgment is not blinded by prejudice, shall not confess to be right and just.... For the present, it is enough to affirm the equal manhood of the Negro race. Is it not as astonishing that, while we are plowing, planting, and reaping, using all kinds of mechanical tools, erecting houses, constructing bridges, building ships, working in metals of brass, iron, copper, and secretaries, having among us lawyers doctors, ministers, poets, authors, editors, orators, and teachers; and that, while we are engaged in all manner of enterprises common to other men, digging gold in California, capturing the whale in the Pacific, feeding sheep and cattle on the hillside, living, moving, acting, thinking, planning, living in families as husbands, wives, and children, and above all, confessing and worshiping the Christian's God, and looking hopefully for life and immortality beyond the grave, we are called upon to prove that we are men!... What, am I to argue that it is wrong to make men brutes, to rob them of their liberty, to work them without wages, to keep them ignorant of their relations to their fellow men, to beat them with sticks, to flay their flesh with the lash, to load their limbs with irons, to hunt them with dogs, to sell them at auction, to sunder their families, to knock out their teeth, to burn their flesh, to starve them into obedience and submission to their masters? Must I argue that a system thus marked with blood, and stained with pollution, is wrong? No! I will not. I have better employment for my time and strength than such arguments would imply.... What, to the American slave, is your Fourth of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciation of tyrants, brass-fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast, fraud, deception, impiety, and hypocrisy-a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States at this very hour. Go where you may, search where you will, roam through all the monarchies and despotisms -- of the Old World, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.

A poem for Independence Day

I posted this over at the American Creation blog, but wanted to share it with my readers here: Concord Hymn by Ralph Waldo Emerson (1837) Sung at the completion of the Concord Battle Monument April 19, 1837 By the rude bridge that arched the flood, Their flag to April’s breeze unfurled, Here once the embattled farmers stood, And fired the shot heard round the world, The foe long since in silence slept, Alike the Conqueror silent sleeps, And Time the ruined bridge has swept Down the dark stream which seaward creeps. On this green bank, by this soft stream, We set to-day a votive stone, That memory may their deed redeem, When like our sires our sons are gone. Spirit! who made those freemen dare To die, or leave their children free, Bid time and nature gently spare The shaft we raise to them and Thee.