Reprint of Articles on the Rehnquist Court from the Executive Intelligence Review

by Ed Spannaus and one by Leo Scanlon

Printed in the American Almanac, 1992 and later

End of Page Table of Contents Site Map Overview PageHome Page


William Rehnquist's Southern Strategy, September, 1992
Did Rehnquist Lie Under Oath? Rehnquist Gives Starr Green Light in Assault on the Presidency
Judge Rehnquist Led the U. S. Into A Police State
The U.S. Constitution: tough on tyranny, not soft on crime

William Rehnquist's Southern Strategy

by Edward Spannaus

The following report is reprinted, in a slightly edited version, from New Federalist Sept. 21 and Sept. 28, 1992.

The Democratic and Republican Parties are not the only groups pursuing a ``Southern strategy.'' The U.S. Supreme Court under Chief Justice William Rehnquist has been doing just that for a number of years.

Rehnquist is an avowed admirer of the principles of the Confederate Constitution, and of the worst Chief Justice ever to occupy that position on the Supreme Court, Roger Taney.

Rehnquist praises Confederate sympathizer Taney as ``a first-rate legal mind'' for his states-rights philosophy. ``His willingness to find in the Constitution of the United States the necessary authority for states to solve their own problems was a welcome addition to the nationalist jurisprudence of the [John] Marshall court,'' says Rehnquist.

By allowing ``the states to solve their own problems,'' Rehnquist means allowing the states to do what they want without hindrance by the federal courts. The federal judiciary, and especially the Supreme Court, were established by the Constitution as instruments for enforcing the federal Constitution over the states. Marshall put this ``federal supremacy'' into practice, and Taney destroyed it.

Rehnquist's peculiar view of ``federalism'' qualifies him for the label of ``neo-Taneyite,'' for Rehnquist's ``federalism'' is really just a revived Confederate philosophy. Rehnquist's outlook is fundamentally antagonistic to those who wrote and fought for the U.S. Constitution; he takes the anti-Federalist arguments of 1787-89, mixed with Taneyite and Confederate states-rights ideology. It is as if the Civil War never happened.

Below, we deal with Rehnquist's racist, segregationist views and practices. Now, we look at another side of Rehnquist's treason to the Constitution--his denial of the principles of equity and justice in death penalty cases. As we will see, the Southern states are the primary beneficiaries of Rehnquist's deference.

Even though federal courts have historically found constitutional violations in 40% of habeas corpus proceedings before them, Rehnquist has campaigned to restrict the ability of federal courts to review state criminal proceedings--especially in capital cases.

To Rehnquist, the highest priority is that there be no interference in state administrative procedures--even if federal constitutional rights are at stake.

Earlier this year, two judges of the U.S. Court of Appeals for the Ninth Circuit issued statements highly critical of the Supreme Court after the high court had barred the Court of Appeals from issuing any further stays in the case of Robert Alton Harris.

``I think it is clear that the constitutional rights of individuals are no longer of paramount importance to the Court,'' said Judge Stephen Reinhardt. ``Other values, such as that of federalism, now predominate.''

Another Ninth Circuit Judge, John T. Noonan, was even tougher. The issue, he said, is whether decades of precedents guarding constitutional and civil rights ``are to be suspended or set aside to assure the orderly keeping of an execution date.''

``Prompt enforcement of the death penalty,'' said Noonan, ``conflicts with the precedents built up under the Constitution, Bill of Rights and Civil Rights Act. If death penalties are to be inflicted according to a state's schedule, these protections must give way. A federal court must even commit `treason to the Constitution' and abstain from exercising its jurisdiction.''

This seems to be the view of this Supreme Court, warned Noonan; it believes ``that it is intolerable for a federal court to delay an execution to decide a constitutional question.''


In fact, things have gotten to the point that the courts ignore ``procedural'' (really constitutional) questions, such as the use of coerced confessions or illegally obtained evidence. Rehnquist is now trying to impose a much tougher standard: that a prisoner must prove that he is actually innocent of the crime charged.

It is no longer enough to prove that a serious constitutional violation occurred. Now you must prove--to Rehnquist's satisfaction--that you are innocent. This is an almost impossible burden of proof for most prisoners, since there is almost always some contradictory evidence in every case. That's why the burden of proof is normally on the government: In a trial, the prosecution has to prove you guilty beyond a reasonable doubt; you don't have to prove your innocence.

In the 1992 case of "Sawyer v. Whitley," Rehnquist's perverse reasoning provoked strong disagreement from three of his Associate Justices. They argued that ``a fundamental miscarriage of justice occurs whenever a conviction or sentence is secured in violation of a federal constitutional right.'' But to Rehnquist, such a violation in a capital case is of no concern.

Justice Harry Blackmun wrote that he had always supported the death penalty, because he believed ``that certain procedural safeguards ... would ensure that death sentences are fairly imposed.''

But now that Rehnquist's majority on the court has continuously restricted these safeguards, ``more than 20 years later, I wonder what is left of that premise underlying my acceptance of the death penalty.''

Despite Rehnquist's claims that the court is being more ``democratic'' by leaving these matters to the states, primarily the states of the old Confederacy take advantage of his ``treason to the Constitution.''

There has been a dramatic increase in the number of persons sentenced to death since the 1976 Supreme Court decision upholding capital punishment. By 1997, there were 3,517 persons under sentence of death, and 408 of the 500 executions--more than 80%--carried out by the states since 1976, were in the South. Over 75% of the executions in the United States are carried out by just six states: Texas, Florida, Louisiana, Georgia, Virginia, and Alabama.

Some Northern and Western states have high numbers of inmates on Death Row (California, Pennsylvania, Illinois), but they are not rushing to kill them off, as are the Southern states. Indeed, California, with 323 Death Row inmates, is second only to Texas (349), but California has only executed one inmate in the past 25 years. That was Robert Harris--the case discussed above, in which Rehnquist and the Supreme Court prohibited the U.S. Appeals Court from staying execution. In 1997, the number of persons under death sentence is 3,517.

One often-overlooked difference between the U.S. and Confederate Constitutions is that the U.S. Constitution gives the federal courts jurisdiction over all cases, ``in Law and Equity,'' arising under federal law and the Constitution. The Confederate Constitution eliminated ``equity'' from the jurisdiction of its courts. This is a fitting metaphor for the Confederate system, and Rehnquist's Supreme Court, for the function of equity was to apply justice where the strict application of the common law, particularly contract law, would work an injustice.

Rehnquist obviously has no concept of equity in application of justice, any more than did the Confederacy.


When the school desegregation cases, including "Brown v. Board of Education," came to the Supreme Court in the early 1950s, William Rehnquist argued that the court should uphold segregation.

Rehnquist was a clerk to Justice Robert Jackson at the time. The future Chief Justice wrote a memorandum for Jackson stating that "Plessy v. Ferguson," the 1896 case which established the Jim Crow ``separate but equal'' principle, was correct, and should be reaffirmed.

Thurgood Marshall, then head of the NAACP legal defense fund, was arguing that a majority cannot deprive a minority of its constitutional right. To this, Rehnquist said: ``The answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.''

(You probably thought it was the Constitution that determined what constitutional rights are. But to Rehnquist, you don't need a Constitution, you just need a mob.)

When confronted with this memorandum in later years, Rehnquist tried to explain it away by asserting that he was expressing Jackson's views, not his own. However, the views expressed in the Rehnquist memoranda were not consistent with Jackson's views, but they were consistent with Rehnquist's own known views.

A long-time secretary to Justice Jackson said that Rehnquist's explanation ``smeared the reputation of a great Justice.'' Other former clerks at the court said that Rehnquist had often promoted segregationist views in discussions with clerks around the lunchroom table.

Rehnquist has often argued that the Supreme Court is the least democratic of the three branches of government. That, of course, is true. There is a reason for that. The Justices of the Supreme Court are supposed to be the guardians of the Constitution, against the whims and caprices of temporary, or even permanent, majorities.

But Rehnquist often cites the ``undemocratic'' nature of the judiciary as his justification for his doctrine of ``federal abstentionism''--that is, that the federal courts should abstain from intervening in disputes between a citizen and a state, for example, to protect the rights of the citizen when those rights are being abridged by a state.

This is the argument he uses--along with his colleague Antonin Scalia--in many death penalty cases. Polls show that the majority of the American people want the death penalty. Then why should some federal judge frustrate the will of the majority by halting an execution just because a few constitutional rights have been violated? Who is a federal judge to stand in the way of the lynch mob?

What does Rehnquist really mean when he talks about ``democracy'' and ``majorities''? Listen to Rehnquist the law clerk, again during 1952, when a voting rights case involving black voters in Texas came before the Supreme Court:

``The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the court faced the fact that white people in the South don't like the colored people.''

After completing his tour as a clerk at the Supreme Court, Rehnquist went back to Arizona. There, he carried out an aggressive campaign during 1964 against a proposed public accommodations ordinance in Phoenix barring discrimination on the basis of race, color, or creed.

In 1967, Rehnquist wrote a letter to the "Phoenix Republic," saying that ``we are no more dedicated to an `integrated' society than we are to a `segregated' society.'' Rehnquist has never dissociated himself from this statement.

During his confirmation hearings in 1971 and again in 1986, charges were raised that Rehnquist had been part of a Republican Party effort to keep blacks and Hispanics away from the voting booths in Arizona.

One eyewitness, a Dr. Sidney Smith, testified that he had seen Rehnquist pull up in a car, get out, and confront two black men at a polling place. After holding up a card for the two men to read, Rehnquist told them: ``You have no business being in this line trying to vote. I would ask you to leave.''

Rehnquist denied the allegations, while conceding that he had been part of a Republican ``ballot security'' effort in 1960, 1962, and 1964.

Senator Edward Kennedy, who opposed Rehnquist's confirmation as Chief Justice in 1986, said that ``he [Rehnquist] denied that he harassed and intimidated voters in Arizona in the early 1960s, but the evidence is substantial that he did.''


You might be asking at this point, how is it that a racist like this gets confirmed by Congress? In fact, he has been confirmed twice, first in 1971, and again in 1986 as Chief Justice. The key lies in understanding that it is the Senate Judiciary Committee, a stronghold of unreconstructed Southerners, which passes on all nominations to the federal courts.

In 1971, when Rehnquist was first confirmed, the chairman of the Senate Judiciary Committee was the arch-segregationist James O. Eastland (D-Miss). Eastland headed the crucial Senate Judiciary Committee for 22 years--from 1956 to 1978.

In 1986, when Rehnquist was nominated for Chief Justice, his confirmation was steered through the Senate by Judiciary Committee chairman Strom Thurmond--the old Dixiecrat turned Republican. Thurmond is from South Carolina, the seat of the Southern Jurisdiction of the Scottish Rite Freemasons.

That the Southern-dominated Judiciary Committee should twice confirm such an avowed segregationist is not surprising. Rehnquist is a kindred spirit. His philosophical outlook is clearly that of the Confederacy, not that of the Founding Fathers and those who framed the United States Constitution.

At every opportunity, he lines up with the enemies of the Constitution, whether it is those anti-Federalists who opposed the Constitution in 1787, or Roger Taney who tried to destroy it, or the Confederate traitors who broke up the Union and wrote their own slave-owners' charter to replace the U.S. Constitution. Rehnquist's outlook is completely compatible with that of the slavemasters. He was just born 130 years too late.

Back to Directory


by Edward Spannaus

Jan. 12 (EIRNS)--When Senator Strom Thurmond swore in Chief Justice William Rehnquist to preside over the impeachment trial of President Clinton, it was enough to send a shudder down anyone's spine. Here was the old segregationist, who ran for President in 1948 as a ``States' Rights Democrat,'' swearing in another, not-as-old segregationist who opposed school desegregation in the 1950s, and opposed public facilities desegregation and minority voters in the 1960s.

That's not all. There is abundant evidence that Rehnquist, who will oversee the trial of a President charged with lying under oath, himself lied under oath about these matters during his Senate confirmation hearings in 1971 and again in 1986.

In our last issue (Jan. 11), we reprinted a 1992 New Federalist article called ``William Rehnquist's Southern Strategy'' which described the arguments Rehnquist made as a clerk to Supreme Court Justice Robert Jackson in 1952, in which Rehnquist contended that the Supreme Court should uphold segregation. We also described how Rehnquist, after he went back to Arizona, campaigned against a proposed public accommodations ordiance in Phoenix in 1964, and how he was part of a Republican Party ``ballot security'' operation which harassed and intimidated black and Hispanic voters.

- The Segregationist -

During his first confirmation hearing for the Supreme Court, in 1971, Rehnquist was asked about a memorandum he had written called ``A Random Thought on the Segregation Cases,'' which argued that the segregationist ``separate but equal'' doctrine should be upheld by the court. Rehnquist stated that the memorandum represented Justice Jackson's views, not his own. This was disputed by a number of people at the time, including Jackson's longtime secretary and confidante Elsie Douglas, who said that Rehnquist's story was ``incredible on its face,'' and that he had ``smeared the reputation of a great jurist'' by attributing segregationist views to Justice Jackson.

In 1986, when Rehnquist was nominated for Chief Justice, the issue came up again. Despite new evidence which had surfaced concerning his 1952 memorandum--some of it reported in the 1975 book on the school desegregation cases, ``Simple Justice,'' by Richard Kluger--Rehnquist stuck to his story, under questioning by Sen. Edward Kennedy and others. Under oath, Rehnquist maintained that the ``I'' in the memo (it was written in the first person), referred to Jackson, not to himself.

As legal writer Jeffrey Rosen puts it in the Jan. 11 issue of The New Yorker magazine: ``It all depends on what I mean by `I.'|''

- Voter Intimidation -

In both sets of his confirmation hearings, Rehnquist was confronted with evidence that he was part of a Republican Party effort to prevent blacks and Hispanics from voting in Arizona in the early 1960s. In his 1986 hearings, Rehnquist testified that he had never directly challenged any voters at the polls. Rehnquist claimed his role was to ``arbitrate'' disputes, but a former federal prosecutor, James Brosnahan, who had collected statements about voter intimidation for the FBI, testified otherwise.

Another eyewitness, Dr. Sidney Smith, testified that he had seen Rehnquist confront two black men at a polling place, and tell them; ``You have no business being in this line trying to vote. I ask you to leave.''

The Jan. 10 issue of the Arizona Republic of Phoenix reported more details of the 1962 and 1964 incidents, and noted that some local citizens who were involved in the incidents with Rehnquist ``think he lied, under oath, at both hearings.''

One is Manuel Pena, a 30-year veteran of the Arizona State Legislature, who was one of a group of Phoenix residents who testified at Rehnquist's 1986 confirmation hearing. Pena was a pollwatcher in south Phoenix during the 1962 elections, and he had confronted Rehnquist, who was illegally challenging voters inside a polling place. In fact, Pena and Rehnquist almost came to blows, according to the recent Arizona Republic account.

As Pena puts it: ``It's just ironic that we have somebody presiding over a Senate that may find the President guilty of perjury, who is himself guilty of lying under oath.''

Back to Directory

Rehnquist Gives Starr Green Light in Assault on the Presidency

by Edward Spannaus

Aug. 5 (EIRNS)--We are in the middle of an all-out war against the U.S. Presidency, being waged by Kenneth Starr and his cronies in the federal judiciary--including Chief Justice William Rehnquist--and in the Justice Department permanent bureaucracy. Lyndon LaRouche warned last weekend that if Starr is successful in bringing down the President, the Independent Counsel could also trigger a financial collapse and bring on a world depression.

LaRouche emphasized that people should be told: If Starr is successful, you're going to lose your shirt--not to mention your pension. A crisis of the U.S. Presidency could be the final straw, the trigger which blows out the whole financial system. Starr could be the detonator.

- What Happened on July 17 -

In the past few recent weeks, the British-initiated assault on the Presidency, which began during Clinton's first year in office, has accelerated to breakneck speed, culminating with Starr's unconstitutional subpoena to the President, and the President's ill-advised decision to provide testimony for Starr's grand jury.

During the spring, it was anticipated that Starr would deliver his impeachment report to the House of Representatives in June, and it seemed likely that the summer would be dominated by impeachment hearings. But then Starr's drive slowed, as many Republicans began making it clear that they were not very enthusiastic about impeachment proceedings against a popular President, an undertaking which could backfire on the Republicans in the November elections.

The crucial date for Starr was July 17--when Chief Justice Rehnquist refused to extend the stay which was barring Starr from taking the testimony of Secret Service agents. Even though his regular grand jury was not sitting that day, Starr rushed three Secret Service agents before another grand jury to take their testimony. During the following week, Starr brought more of the agents, including Larry Cockell, head of the President's personal security detail, before the grand jury to testify; he also brought a parade of others in front of one or another grand jury, including multiple appearances by the ``Bush mole'' Linda Tripp.

Emboldened by Rehnquist's backing, Starr did something else on July 17. He issued a subpoena to President Clinton for Clinton's own testimony before the grand jury--the first time in United States history that a President has been summoned to appear before a grand jury to testify against himself.

Presidents have been subpoenaed for documents or other items (Thomas Jefferson for documents relating to the treason of Aaron Burr, or Richard Nixon for the White House tapes), but never has a President been summoned to testify when he himself is the target of a criminal investigation. Normally, a target is almost never called before the grand jury, because it is assumed he will claim his Fifth Amendment privilege against self-incrimination, and so Justice Department guidelines discourage such subpoenas.

But Starr and his thugs assumed that President Clinton's political advisers would not wish to see him ``taking the Fifth,'' and that therefore he would be forced to abandon his rights under the Constitution. Starr and his thugs were right.

Beyond that, as we showed in last week's New Federalist, Starr's use of a criminal grand jury to target of the President is in violation of the constitutional separation of powers. There is only one method under the Constitution for removing a President from office, and that is impeachment. Under that procedure, the House of Representatives functions as the grand jury. Impeachment is deliberately a political process, but properly so. Starr's targetting of the President is of course also intensely political--but it is hypocritically conducted under the false front of a ``criminal'' investigation.

Rehnquist came through again for Starr on Aug. 4, when he denied a stay of the previous day's Appeals Court ruling which allowed Starr to interrogate White House lawyers in front of the grand jury. Thus, after having penetrated the President's inner circle of security (the President's personal Secret Service detail), Starr was given access to the inner circle of White House advisers and lawyers. Rehnquist permitted Starr to bring before the grand jury deputy White House counsel Bruce Lindsey, and White House special counsel Lanny Breuer. About the only ones left in whom the President can confide, are his wife, and his dog and cat.

- Starr's Ties to Rehnquist -

Rehnquist should instantly have disqualified himself from hearings on any matters involving disputes between Kenneth Starr and the President.

Rehnquist and Starr are both deeply involved in the ``conservative'' legal movement which was created in the 1980s, around the mis-named ``Federalist Society,'' and the network of right-wing legal foundations, also known as ``public interest law firms.'' Both the Federalist Society and the legal foundations are financed by intelligence-linked foundations such as the John M. Olin Foundation and those operated by Richard Mellon Scaife.

The Federalist Society was founded at Yale in the early 1980s as a training ground for law students and young lawyers who were strategically placed as judges' law clerks, and packed into the Reagan and Bush Justice Departments.

Rehnquist, the avowed states' rights advocate and segregationist who became Chief Justice in 1986, was a key figure in the founding of the Federalist Society and in the creation of the ``conservative'' legal movement.

Kenneth Starr, starting from his tenure as an official in the Reagan Justice Department in the early 1980s, has likewise always been a leading light of the Federalist Society, as have other lawyers and judges closely associated with Starr, such as Theodore Olson, Robert Bork, Lawrence Silberman, Antonin Scalia, and Clarence Thomas.

Rehnquist has another direct conflict of interest: He personally appointed federal Appeals Court Judge David Sentelle to head the special three-judge panel which appoints independent counsels. Sentelle, also a Federalist Society activist, was first appointed by Rehnquist in 1992, and was reappointed in 1994 and 1996. It was the panel headed by Sentelle which in 1994 fired the first Whitewater independent counsel and replaced him with Kenneth Starr. Sentelle has repeatedly authorized expansions of Starr's jurisdiction, the latest being into the Monica Lewinsky affair.

Return to Directory

Justice Rehnquist led the U.S. into a police state

by Edward Spannaus

One of the biggest hoaxes of our time is the commonly peddled idea that William Rehnquist, the Chief Justice of the United States Supreme Court, is a ``conservative.'' A conservative at least has some respect for tradition. A conservative may be hidebound, reactionary, hostile to change, and so forth, but at least he clings to the traditional way of doing things.

William Rehnquist is no conservative.

Our current Chief Justice is a philosophical enemy of of the Founding Fathers and the Framers of the Constitution. Rehnquist is an avowed follower of Thomas Hobbes, whose views were anathema to eighteenth-century Americans. Hobbes's ideas were thoroughly rejected by the Founding Fathers, so much so that he was only cited when they wished to attack him. To Alexander Hamilton, Hobbes's ideas constituted an ``absurd and impious doctrine.'' To John Adams, Hobbes was ``detestable for his principles.''

But to William Rehnquist, Hobbes is a ``realist'' in his view of the nature of man and law. We don't even need to consider Rehnquist's own confessions on this matter. The proof is in his record as a Supreme Court justice for the past two decades--showing how he has systematically dismantled the rights and protections which the Constitution and the Supreme Court have provided over the past two centuries.

Rehnquist is a statist. He believes in big government--a police state. Whenever it comes to a question of the rights of the individual versus the government, he invariably sides with the government. But on the other hand, when it is a matter where the power of the federal government is properly invoked for a constructive purpose, Rehnquist consistently denies the rightful constitutional powers of the federal government over the other branches or the states. As Rehnquist has consolidated his control over the Supreme Court in the past few years, he has turned the outlook of the Founding Fathers on its head, denying federal supremacy where it is proper, but expanding the police powers of the government.

Before Rehnquist was nominated for the Supreme Court, he was already an outspoken advocate of police-state measures. He toured the country as a spokesman for the Nixon Justice Department in the late 1960s, advocating military surveillance of civilians, warrantless wiretaps, and ``qualified martial law.'' Then, after being put on the Court, he cast the deciding vote upholding the constitutionality of military surveillance of civilians in the case Laird v. Tatum.

- The Hobbesian state -

Not without reason has Thomas Hobbes been labeled ``the father of modern totalitarianism.'' Hobbes's state of nature is the ``war of every man against all every man''; to overcome this brutish condition, men enter into a social contract in which they give up all rights to the sovereign. Since the purpose of the sovereign is to protect the people against themselves, the subject owes unquestioning obedience. The sovereign literally can do no wrong; he cannot commit an illegal act, because the sovereign is the law. As an avowed enemy of religion, the church, and natural law, Hobbes's ideal state was a political dictatorship (preferably a monarchy) combined with economic laissez faire.

Our nation was founded on the contrary principle, however imperfectly realized, that reason, not might, makes right. That man is created in the image of God, and bears within him the divine spark of creative reason. That the end of society and government is to foster the happiness and the moral perfection of its citizens, which is most efficiently accomplished by promoting scientific and technological progress.

Thus, in the American colonies Hobbes was universally viewed an an evil apologist for the British monarchy. Virtually everyone in the colonies believed in natural law, which was prior and antecedent to the state. All believed in some form of ``natural rights,'' that men possessed God-given, inalienable rights which no government could usurp. Even if one wrongly interprets the Declaration of Independence as a Lockean document--it is far superior to anything John Locke could have inspired--it is still utterly opposed to the outlook and prescriptions of Hobbes.

- Rehnquist and Hobbes -

In a 1980 speech entitled ``Government by Cliché,'' Rehnquist set out to debunk the ``cliché'' that the Constitution is a charter ``which guarantees rights to individuals against the government.'' People have learned, said Rehnquist, ``that it is better to endure the coercive force wielded by a government in which they have some say, rather than risk the anarchy in which neither life, liberty, nor property are safe from the `savage few.'|'' The recognition that ``government is a necessary restriction on unbridled individual freedom'' comes from entirely divergent sources, he goes on. Locke and Hobbes, says Rehnquist, were diametrically opposed in their view of life in ``the state of nature.'' Locke believed that ``every person had a right to liberty and property, quite apart from any constitutional declarations by reason of what Locke called the `law of nature.'|''

Rehnquist then declares where he stands: ``To Thomas Hobbes, on the other hand, who was much more of a realist, life in the so-called state of nature was `nasty, brutish and short.' It was to escape this world of violence, insecurity, and the like that men formed governments, and they were better off for having formed them even though the governments themselves proved to be tyrannical.''

- Rehnquist vs. natural law -

To be a consistent Hobbesian, Rehnquist would of course have to attack the very idea of natural law. This he explicitly did in the same speech, where he argued that our constitutional system is ``a system based on majority rule, and not on some more elitist or philosophical notion of `natural law.'|'' Over the years, Rehnquist has attempted to justify his police-state practices both by appealing to the presumed sentiments of the majority of the population, and by denying any connection between law and morality.

Particularly revealing is a 1976 speech, in which Rehnquist ridiculed the notion that the Supreme Court should be the ``voice and conscience of contemporary society.'' He identified his view of the Constitution with that of Oliver Wendell Holmes: Morality has nothing to do with law. Moral judgments only have validity to the extent they have been adopted into positive law. If a society adopts a constitution and safeguards for individual liberty, this does not mean that these protections have a general moral rightness. ``They assume a general social acceptance neither because of any intrinsic worth nor because of any unique origins in someone's idea of natural justice, but simply because they have been incorporated into a constitution by the people.'' In the same speech, he says (still following Holmes): ``Value judgments take on a form of moral goodness because they have been enacted into positive law.''

Rehnquist's view that the Supreme Court should follow the ``will'' of the majority (for example, on capital punishment) is pervasive throughout his writings and opinions. But a cursory reading of the Federalist Papers, for instance, will demonstrate that the Founding Fathers deliberately took great pains in creating our scheme of government to insulate the institutions of power, particularly the judiciary, from the passions of popular majorities.

In the Federalist No. 78, Hamilton argued that the independence of the judges (that they would be appointed, not elected), was necessary ``to guard the Constitution and the rights of individuals from the effects of those ill humors'' which can arise from designing men, or which ``sometimes disseminate among the people themselves.'' Judges must not act on their presumptions or even their knowledge of the sentiments of the population, if they are to carry out their duties as ``faithful guardians of the Constitution.'' The integrity and moderation of the judiciary must be prized, ``as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today.''

Rehnquist, on the other hand, has repeatedly cited the unrepresentative character of the court as a reason for abdicating the court's constitutional role as the guardian of individual rights and liberties.

- Law as authority -

To put it bluntly, Rehnquist believes that a citizen has no rights which the courts are bound to protect. This is the way he thinks, and it is the way he rules from the bench. He has conceded (in a 1978 article) that ``there is an element of authoritarianism in the views I have advanced.'' The very idea of law, he argued, is based on the authority of the state to enforce that law. Authority, he continues, ``is the ultimate guardian against a state of anarchy in which only the strong would be free.''

In this same article, Rehnquist gleefully points to Article I, Section 9 of the Constitution (which provides that habeas corpus may be suspended under certain emergency conditions) as demonstrating that, ``in certain rare conditions, the Founders viewed the individual as, at least temporarily, having no rights which he might assert against the government.''

Rehnquist does put his Hobbesian outlook to work from the bench. Numerous studies of his rulings have been published in the law journals, showing their consistency. After he had been on the Supreme Court for only five years, his record was well established. A study published in the Harvard Law Review in 1976 showed that Rehnquist's rulings were guided by three basic propositions:

  1. Conflicts between the individual and the government are to be resolved in favor of the government;

  2. Conflicts between the states and the federal government are to be resolved in favor of the states; and

  3. Disputes involving the exercise of federal jurisdiction are to be resolved against the exercise of such jurisdiction.

Another study of his rulings from 1971 to 1986 (prepared for his confirmation hearings as Chief Justice) reveals two striking examples of Rehnquist's hostility to the rights of the individual. During this period, the Supreme Court heard 30 cases concerning allegations of cruel and unusual punishment. The Court as a whole found constitutional violations in 15 of these cases. Rehnquist found none. In the same period, the Court heard 124 cases involving claims of unconstitutional action against an individual. Rehnquist cast the deciding vote against the constitutional claim in 120 of the 124 cases.

- The Rehnquist record -

During the 1990-91 term, probably the worst Supreme Court term in memory with respect to individual rights, Rehnquist consolidated his ``police-state'' majority. The newest justice, David Souter, voted with Rehnquist 80% of the time, giving him a 6-3 majority on many of the key cases discussed below.

Following are some of the specific provisions of the Constitution and the Bill of Rights which Rehnquist has ripped up in recent years:

Habeas corpus (Art. II, Sec. 9): The ``great writ,'' by which federal courts are empowered to review convictions of prisoners for constitutional violations, has long been targeted by Rehnquist and the Justice Department for extinction. Habeas corpus was considered so important to the Founding Fathers that it was written into the text of the Constitution itself. This past term, the Supreme Court drastically narrowed the use of habeas by prisoners in two important cases.

In Coleman v. Thompson, the Court held that state prisoners who fail to comply with procedural (i.e., technical) rules cannot have their cases reviewed by a federal court, even if the procedural default was the fault of the lawyer and not the prisoner. This case involved a death row inmate whose lawyer filed a habeas petition to a Virginia state court three days late.

In McCleskey v. Zant, the Court said that state prisoners (and by implication federal prisoners as well) get only one chance to bring a habeas petition before a federal court--even if new evidence is discovered after the first petition is heard. This ruling was particularly outrageous, because state authorities had lied and hidden the relevant evidence from the prisoner and his lawyer.

Two years ago, in Teague v. Lane, the Court said that new decisions could not be applied retroactively to challenge existing convictions if they create ``new rules'' that courts could not have been expected to have known at the time. Then last year, the Court said that death row inmates aren't entitled to the benefits of changes in constitutional law decided while their cases are pending. In a dissent, Justice William Brennan, Jr. said that this ``strips state prisoners of virtually any meaningful federal review of the constitutionality of their incarceration ... the court has finally succeeded in its thinly veiled crusade to eviscerate Congress' habeas corpus regime.... After today, despite constitutional defects in the state processes leading to their conviction or sentencing, state prisoners will languish in jail--and others like Butler will die--because state courts were reasonable, even though wrong.''

Trial by jury (Art. III, Sec. 2; Sixth Amendment): In Mu'Mim v. Virginia, the Court wiped out the right to be tried by a fair and impartial jury. The case involved a capital murder trial, in which 8 of 12 jurors admitted having been exposed to extraordinarily prejudicial publicity about the murder. Rehnquist, writing for the Court's majority, said that as long as the jurors said they could be impartial, a judge need not question them further about the effect of their exposure to pre-trial publicity. (This was precisely the same reasoning by which the 1988 frameup conviction of Lyndon LaRouche and six associates was upheld.) The Mu'Mim ruling was a particularly cynical one, because any lawyer who has ever tried a case in court knows that potential jurors lie through their teeth in order to get on juries, and that initial professions of impartiality are totally worthless without additional probing.

Search and seizure (Fourth Amendment): Rehnquist has never met a search or a seizure he didn't like. For years, the Fourth Amendment has been under attack by the Burger and Rehnquist Courts; this continued last term.

In County of Riverside v. McLaughlin, the Court said that a suspect can be detained for 48 hours (longer on holidays and weekends) without probable cause being shown in either a hearing or a warrant.

In Florida v. Bostick, the Court held that police can board a bus and ask to search passengers' baggage without violating the Fourth Amendment. A passenger can always refuse, the Court said with a knowing wink.

In California v. Acevedo, the Court again broke precedent and allowed police to search an entire car and and to search closed containers (luggage, etc.) within it.

In California v. Hodari, evidence dropped by a fleeing suspect can be used as evidence, even if the police did not have any reason to chase the individual.

Last year, in U.S. v. Verdugo-Urquidez (a Thornburgh Doctrine case), the Supreme Court said that the United States does not need a search warrant to search property abroad owned by foreign citizens. (In other words, anybody anywhere in the world can be prosecuted for violating U.S. law, but the government can freely violate U.S. law in the course of prosecuting such a person.)

Self-incrimination (Fifth Amendment): Rehnquist and the Justice Department have been unrelenting in their desire to eliminate the 1966 Miranda ruling. The Supreme Court began cutting Miranda back in 1971, and Rehnquist carved out a big ``public safety'' exception to Miranda in the 1984 case Quarles v. New York. In 1987 the Court said it was ``harmless error'' for a prosecutor to question a defendant about his post-arrest silence. And in this last term, the Court ruled that the use of a coerced confession in a trial does not violate the constitutional provision against self-incrimination if it is determined to be ``harmless error.''

Due process (Fifth and Fourteenth Amendments): For years, Rehnquist has been extending the concept of ``harmless error'' in criminal proceedings. ``Harmless error'' is a particularly insidious doctrine, and thus a favorite of Rehnquist. It states that even if the Constitution was violated, it is ``harmless'' if there is otherwise sufficient evidence of guilt. In practice, what it really means is that if a judge thinks a defendant is guilty, any violation of his or her constitutional rights is ``harmless.'' No longer do such ``technicalities'' as the Constitution stand in the way of getting a conviction.

The right to counsel (Sixth Amendment): Coleman v. Thompson, the habeas case cited above, in which the prisoner is to die because of the lawyer's mistake, also clearly bears upon this fundamental constitutional right.

In the 1989 Giarratano v. Virginia case, the Court said that a state prisoner does not have the right to a lawyer after his first appeal.

In the 1990 case Michigan v. Harvey, the Court allowed prosecutors to use statements taken from criminal defendants in violation of their right to counsel, in order to impeach their inconsistent testimony in court.

In 1989, the Court upheld the provisions of the RICO (racketeering) act which prevent defendants from hiring lawyers of their choice by freezing their assets before trial.

Cruel and unusual punishment (Eighth Amendment): Just this last term, Rehnquist upheld the use of prejudicial ``victim impact'' evidence in capital cases. Justice Antonin Scalia, who has been a fervent proponent of introducing the community ``consensus'' into Supreme Court rulings, cited the ``victim rights'' movement in his concurring opinion. In his dissent, Justice John Paul Stevens called this ruling ``a dramatic departure from the principles which have governed our capital sentencing jurisprudence for decades.'' Victim-impact evidence, said Stevens, ``sheds no light on the defendant's guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.''

In keeping with Rehnquist's policy of allowing the states virtually unlimited leeway in criminal cases, the Court allowed Michigan to impose a mandatory, no-parole life sentence for selling a relatively small amount of drugs.

Just about eliminating the ability of prison inmates to sue for unhealthy or unsafe conditions, the Court said that inmates cannot sue prison officials over conditions unless they can show ``deliberate indifference'' on the officials' part; this allows budgetary considerations to override any claim of constitutional rights.

In 1990, the Court said that state officials can require prisoners who are diagnosed as dangerous and mentally ill to take anti-psychotic drugs without seeking court approval.

Rehnquist is right at the front of the mob which is howling for more and more executions. (Ironically, the death penalty bloc on the Court is virtually the same as the ``pro-life,'' anti-abortion bloc.) Many of the decisions cited above involved death penalty cases. Among the barbarous actions which have especially disgraced the United States among civilized nations, was the 1989 upholding of executions of juveniles and the retarded.

Separation of powers: Rehnquist has abdicated the Supreme Court's responsibility to enforce the Constitution with regard to the Executive and Legislative branches. In case after case, his and his Court's declared policy is that the ``political'' branches should be able to do pretty much what they want, and they should be free from such annoyances as civil rights suits brought by citizens seeking to enforce legal or constitutional rights.

Another egregious example was the Court's upholding of the 1986 sentencing reform act, which imposes mandatory minimum sentences for most offenses. Here the Court violated the separation of powers by giving the U.S. Sentencing Commission the power to fix mandatory sentences and taking all discretion away from judges.

Supremacy clause: This is probably the single most important specific provision of the Constitution, which gives effect to the commitments of the Preamble ``to form a more perfect Union, establish justice ... and secure the blessings of liberty to ourselves and our posterity.'' This clause provides that the Constitution, and the laws made pursuant thereto, ``shall be the supreme law of the land,'' and that judges in every state shall be bound by federal constitutional law.

Rehnquist's view is precisely the opposite: that the federal courts should not interfere with state governments and state courts. Thus he has limited the access of citizens to the federal courts under the doctrine of ``abstentionism.'' Today it is virtually impossible to get into federal court to challenge the constitutionality of police-state actions by state officials. State officials, not federal courts, now have the final say as to the constitutionality of their actions. (This was the irony of President Bush's recent endorsement of the ongoing federal court intervention against the pro-life demonstrators in Wichita, Kansas. Rehnquist and his backers have vigorously opposed the exercise of federal jurisdiction to protect the civil rights of minorities.)

As early as 1975, in the National League of Cities v. Usery case, Justice William O. Brennan accused Rehnquist of repudiating principles of federal supremacy which had governed the Supreme Court since John Marshall's time.

It is thus not surprising that Rehnquist should praise former Chief Justice Roger Taney, the states' rights advocate who dismantled much of John Marshall's nation-building work, and who was the author of the contemptible Dred Scott decision. Calling Taney a ``first-rate legal mind,'' Rehnquist says: ``His willingness to find in the Constitution of the United States the necessary authority for states to solve their own problems was a welcome addition to the nationalist constitutional jurisprudence of the Marshall Court.''

It is not surprising that Chief Justice Rehnquist, as an avowed opponent of the philosophy and principles on which our Constitution is based, should be the instrument of destroying the role of the federal judiciary as the guardian of the Constitution. He has intentionally left no barrier between the citizens and the Hobbesian tyranny of the police state.

[Edward Spannaus, former law editor of EIR, is a researcher for the Constitutional Defense Fund.]

Return to Directory

The U.S. Constitution: tough on tyranny, not soft on crime

by Edward Spannaus

The way William Rehnquist and the Department of Justice tell it, the current crime wave is the result of the liberalism of the Warren Court in the 1960s. By creating a new set of ``rights'' that are nowhere found in the Constitution, the Warren Court ``handcuffed the police'' instead of the criminals, and made it impossible for the good guys to convict the bad guys. The parade of horrors always starts with the famous Miranda case and its warnings to suspects that they have a right to remain silent; it continues through the ``exclusionary rule'' and a long list of rulings which, they say, showed more concern with the rights of criminals than the rights of their victims.

The Department of Justice and Rehnquist seem to agree: The Bill of Rights is nothing more than an impediment to conviction. The DoJ's misnamed ``Truth in Criminal Justice'' series (see accompanying article) argues that such provisions as restrictions on interrogation (Miranda), or the requirement that prosecutors not deal directly with an accused who is represented by counsel (Massiah), or the exclusionary rule prohibiting the use of illegally obtained evidence, simply prevent the obtaining of confessions which would reveal the ``truth'' about crimes. The Supreme Court, in this view, has simply made up rules which make it more difficult to get at the truth.

Crime has risen, but the principal causes are the long-term economic collapse, the loss of any sense of progress and hope in the population, and the promotion of the drug trade by sections of the political and financial establishment. As a nation, we have written off an entire generation of youth, particularly poor and black youth. But as crime rates have risen, so have rates of conviction, length of sentences, and rates of incarceration. Rates of conviction of suspects have never been higher, and, most telling, almost 90% of convictions result from guilty pleas. The jury trial is almost an anachronism.

But still, frustrated and angered by the obvious moral and physical decline of the United States, many people look to the courts to get ``tough on crime,'' and to get rid of those bothersome ``technicalities'' which keep criminals on the streets. Overlooked--until it's too late--is the fundamental notion that these constitutional protections (``technicalities'') exist to protect the innocent against arbitrary prosecutions and unjust convictions. The fact is that the Framers of the Constitution and the Bill of Rights did place a higher value on protecting the innocent than on convicting the guilty. They were well aware how criminal prosecutions could be used for political or other nefarious purposes.

As Alexander Hamilton put it in Federalist No. 83: ``Arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions have ever appeared to me to be the great engines of judicial despotism.''

But nevertheless, Hamilton and many others were less than enthusiastic about codifying the rights of the citizens into a Bill of Rights. An enumeration of certain rights, they thought, might be interpreted as appearing to disparage others. ``They would contain various exceptions to powers which are not granted; and, on this account, would afford a colorable pretext to claim more than were granted,'' Hamilton argued. The Framers knew (unlike our academic experts today) that the Constitution in its broad sweep was not an enactment of positive law (except as to the specific structure of the government, and the allocation of powers), but rather it was declaration of pre-existent natural law and natural rights.

- Self-incrimination -

The Fifth Amendment, with its prohibition against compelling anyone in a criminal case ``to be a witness against himself,'' is a good example of the legitimacy of such concerns about the dangers of enumerating a Bill of Rights. This prohibition has come to be interpreted as merely barring the use of torture or coercion to compel self-incrimination, usually on the grounds that such coerced testimony is unreliable. But it was regarded as ``self-evident'' at the time of the enactment of the Bill of Rights, that natural law prohibited making one a witness against himself--voluntarily or involuntarily, and irrespective of the evidentiary issue of whether or not such testimony is reliable.

The prohibition against self-incrimination is not an invention of the Warren Court. It even goes back to Talmudic and Roman law (Matt. 27:11-14; Acts 22:24-30), and Thomas Aquinas. (The Jewish philosopher Moses Maimonides said it was a ``divine decree'' that an accused could not be convicted upon his own admission.) In early English law, a confession made prior to an indictment could not be used; but for centuries English law, while barring self-accusation before indictment, did permit coerced testimony after indictment. But by 1838, English courts said that authorities could not entrap a prisoner into making statements against himself, and that he must be advised that such statements could be used against him. Despite complaints by Jeremy Bentham, the requirement that such ``Miranda'' warnings be made to a prisoner was enacted into English law in 1848.

The understanding in revolutionary America was broader than in England, as shown for example by the Massachusetts Declaration of Rights, which said: ``No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially, and formally, described to him; or be compelled to accuse, or furnish evidence against himself.'' The version used in the U.S. Bill of Rights, however, was modeled by Madison on the Virginia Declaration of Rights, which was much narrower and not as precise. While early cases recognized the broad privilege (i.e., John Marshall's rulings in Marbury v. Madison and U.S. v. Burr), by the end of the nineteenth century the privilege became confused with an evidentiary rule, and the Fifth Amendment was reduced to a prohibition against torture to extract testimony. (``Hmmm,'' says Rehnquist to himself. ``A little `good faith' torture? Sounds like `harmless error' to me.'')

Incredibly, Rehnquist has characterized Miranda and related rulings as ``creating a new constitutional right,'' and the Justice Department ``Truth'' series calls Miranda ``a decision without a past,'' which ``had no basis in history or precedent.''

- The right to counsel -

We find the same type of situation with respect to the Sixth Amendment's guarantee of the right to counsel.

In the American colonies, the right to counsel at trial was considered a fundamental principle of justice and fairness. In England, the ancient right to counsel had become restricted over time, particularly in the sixteenth century, so that counsel was available to argue questions of law but not matters of fact, and counsel was allowed for misdemeanor trials but not for those involving felonies. This view was rejected by almost all the colonies and by the new states at the time of the Bill of Rights.

The Supreme Court has since extended the right to counsel to include pre-trial proceedings, not just the trial itself. Why? The nature of criminal proceedings themselves has changed enormously over the past two centuries. There were no organized police or investigative forces for most of the nineteenth century. (The Framers never envisioned such a massive--and unconstitutional--federal police force such as the FBI and related agencies have become.) In those days, the critical confrontation between an accused and the state took place at trial. Today, most cases never go to trial, and for those that do, the die is usually cast during pre-trial investigations and proceedings. Thus, the ``changes'' made by the Supreme Court have done nothing but attempt to keep up with the changes in the nature of law enforcement.

- Trial by jury -

Probably no right was considered more important by the generation of the American Revolution than trial by jury. Grand juries were regarded an an essential protection against arbitrary and politically motivated indictments, and petit (trial) juries were a protection against unjust convictions. In most jurisdictions, juries were judges of both the facts and the law, and thus could ``nullify'' an unjust law. And juries did freely acquit defendants, on a much broader scale than today. Concerning the colonial period, historian Roscoe Pound wrote: ``Throughout the seventeenth century, the power of juries to render a general verdict was a chief obstacle to the attempt of the crown to use criminal justice for political purposes.'' Into the nineteenth century, Pound says that American juries were still predisposed to release the accused.

The conviction rates for the past 40 years show that it is getting easier and easier for prosecutors to get convictions from juries. In 1948 the rate of conviction by juries was slightly under 60%. It rose to about two-thirds by 1960, and 80% in 1988.

Even though we tend to think of criminal justice in the old days as much harsher (e.g., many more capital offenses), the reality is that the system was considerably more flexible and equitable than today. Grand juries would often refuse to indict (unheard of today), petit juries would often refuse to convict, and the use of pardons was very widespread--especially in capital cases. During the latter part of the nineteenth century, almost one-half of all pardon applications were granted.

Today, we have given our prosecutors and courts almost unlimited power. Prosecutors can indict whomever they want; as the saying goes, a grand jury today will indict a ham sandwich. If you are indicted in a federal court today, your chances of conviction are higher than 80%, unless you agree to cooperate with the prosecutor, or in the very rare instance that your case is dismissed. If your case is prosecuted, your probability of conviction is an astounding 97%.

The constitutional right to a speedy and public trial by jury is almost a thing of the past. The vast majority of criminal cases in both federal and state courts today are resolved by plea bargains. (It is well known that many innocent defendants often enter a plea bargain under pressure from prosecutors and their own lawyers, who discourage them from going to trial.)

Almost 85% of federal prosecutions result in guilty pleas. Of the other 15% that go to trial (either a judge or jury trial), 12% end in convictions, and less than 3% are acquitted.

We've come a long way over the past 200 years. But not far enough for some. For William Rehnquist, that 3% is probably still too high.

Return to Directory

The Justice Department's blueprint for a police state

by Leo F. Scanlon

In the opening of his final dissent from the U.S. Supreme Court bench, retiring Associate Justice Thurgood Marshall warned: ``Power, not reason, is the new currency of this Court's decision-making.'' He condemned the new Court majority, and identified a long ``hit list'' of decisions which they intend to overturn in the next few years.

Exposing the long-term strategy of Chief Justice William Rehnquist and the Bush and Reagan appointees, Marshall warned that ``today's majority ominously suggests that an even more extensive upheaval of this Court's precedents may be in store.... The majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree.... The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration.''

Marshall was referring to the majority opinion in Payne v. Tennessee, in which Rehnquist said that the Court will exercise caution in matters relating to property and contract law, but it will eagerly look to override its precedents involving criminal justice.

Marshall continued: ``By limiting full protection of the doctrine of stare decisis to `cases involving property and contract rights' ... the majority sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination.... The continued vitality of literally scores of decisions must be understood to depend on nothing more than the proclivities of the individuals who now comprise a majority of this Court.''

- The Justice Department `truth' series -

The ``hit list'' identified by Justice Marshall includes an array of specific precedents dealing with First Amendment speech and association rights, civil rights and discrimination, search and seizure, protections against compelled self-incrimination and double jeopardy, the right to counsel, and various death penalty issues.

There is a clear method to the systematic manner in which the Court is dismantling existing case law. Over the past five years, a series of eight reports have been drafted by the Department of Justice's (DoJ) Office of Legal Policy (OLP) calling for a drastic revision of criminal procedure. The reports were published by the University of Michigan Journal of Law Reform (Spring-Summer 1989), and ironically entitled the ``Truth in Criminal Justice Series.''

As Stephen J. Markman, the editor and spokesman for the series, makes clear, the ideas are drawn directly from the writings of Jeremy Bentham, the British liberal polemicist who devoted his life to destroying the U.S. Constitution and the concept of natural law which it reflects. Bentham, like his American epigones, focused his venom on the Bill of Rights (and the Declaration of Independence), precisely because they assert the legal sovereignty of the individual, not the interests of the state, as the basis of civil government and criminal jurisprudence. This view holds that in matters of criminal law, society's interests are served only by successful prosecutions, not by the administration of justice to the individual. At its core, it is a doctrine of vengeance.

- The Rehnquist kindergarten at work -

As head of the Office of Legal Counsel during the Nixon administration, Rehnquist has been associated with this project from the beginning. His contemporary, James Vorenberg, later key in the creation of the Law Enforcement Assistance Administration, was the head of the DoJ's Office of Criminal Justice, the earliest predecessor to the OLP. Vorenberg worked closely on criminal code matters with Charles Fried, who became the solicitor general during the second Reagan administration when these reports were prepared. The head of the Office of Legal Counsel during that time was Charles Cooper, who, in turn, had been a law clerk for Rehnquist after he was appointed to the Supreme Court. Associate Supreme Court Justice Antonin Scalia served as head of the Office of Legal Counsel during the Ford administration.

The plan of this cabal is to invite prosecutors to bring cases to the Court which will allow them to overturn precedents in criminal law, focusing on cases which involve the close connections among the Fourth, Fifth, and Sixth Amendments. The current public champion of this apparatus is George Bush, who has aggressively sought restrictions on federal habeas corpus appeals, especially in death penalty cases, and has pushed to eliminate the exclusionary rule (which bars illegally seized evidence from being introduced at trial) in each of his recent proposed crime bills. The arguments presented by Markman in the DoJ blueprint are the basis for Bush's claim that crime can be controlled by destroying the Constitution. They are carefully constructed lies.

- Eliminating habeas appeals -

The issue of habeas corpus reform (or more properly, the elimination of federal habeas corpus appeals) is central to this debate, since it is by means of this device that the most egregious errors in state courts--where most criminal convictions and nearly all death sentences are imposed--are corrected. Bush, Markman, Rehnquist, et al. claim that the courts are flooded with spurious habeas appeals filed by clever criminals who are misusing the process to delay their executions.

Putting aside the absurd premise that the average criminal (or his unpaid defense attorney) is capable of outwitting government prosecutors and several layers of federal judges who could dismiss a spurious petition at any time, the figures expose the fraudulent nature of Bush's campaign theme. It is true that from 1978 to 1987, federal habeas filings increased 36% and the number of potential habeas petitioners (prisoners) rose by 94%. But, contrary to the propaganda claims of Bush, the rate of habeas corpus filings (the percentage of potential applicants who sought habeas relief), dramatically declined from 2.54% in 1978 to 1.84% in 1987.

Markman and the OLP study further lie in asserting that ``there are frequently enormous delays'' between conviction and the filing of habeas petitions, and point to the flurry of appeals filed on the eve of execution as proof of the subversive use of the great writ. In fact, the study on which Markman bases his claim (done by a Rutgers professor and his students), found no evidence of such delay, and numerous observers point out that the reason so many habeas petitions are filed just before executions is that this is the point at which prisoners finally get an attorney. In recent terms, the Supreme Court has lashed out at the notion that a defendant has any right to competent post-conviction representation, further reducing the possibility of successful appeals by indigent defendants.

It is not habeas corpus filings, but the legislative initiatives of the Bush administration--which have criminalized the most trivial ``environmental'' infractions and federalized all manner of state crimes--that are swamping the federal judiciary. Bush and Rehnquist seek to eliminate federal habeas appeals in order to increase the rate of executions and make a bloody spectacle of their so-called ``anti-crime campaign.''

- The exclusionary rule hoax -

Another campaign theme raised by Bush involves the so-called ``exclusionary rule,'' which prevents the use at trial of evidence seized during searches in violation of the Fourth Amendment. The Supreme Court has already created a gaping ``good faith'' exception to these limitations, so that evidence discovered during a search can be admitted if the police officer believed he had grounds for conducting the search. That is not enough for Bush and the DoJ. They want an ``inclusionary rule'' which would allow prosecutors to introduce any evidence no matter how it was obtained--or manufactured. This is no small issue. There are a growing number of cases where the Court has been presented with evidence of criminal mendacity by prosecutors who brazenly hide or destroy exculpatory evidence, only to have the action labeled ``harmless error.''

This issue is the front end of a campaign to overthrow constitutional protections afforded to a citizen during the time he is most defenseless before the power of the state--the pre-trial period. For example, the OLP calls for a dramatic increase in the use of undercover informants against an indicted suspect. This year, the Supreme Court decided a case (McCleskey v. Zant) in which prosecutors planted an informant (a felon who had a court record of fabricating stories for his case officers) in jail with a defendant. On the dubious testimony of that informant, the defendant was convicted of murder and sentenced to die. The fact that the witness was an informant for the prosecution had been concealed and withheld from the defense. Nevertheless, the Court upheld the denial of the habeas petition.

Entrapment of one indicted person by another is not limited to prisoners. The DoJ is engaging in widespread use of defense attorneys, who are facing indictment on some charge, to set up their own clients and to run stings implicating associates of their clients. Clients are likewise being used to entrap their attorneys. These and other practices openly carried out by DoJ prosecutors make a mockery of the constitutional right to counsel.

Similarly, the inquisitors at the OLP call for the right to conduct interrogations without counsel. The Supreme Court has gone one better, ruling that coerced confessions are now acceptable in the U.S. It must be remembered that torture was found to be widely used throughout the United States, even as late as 1931, when the Wickersham Commission brought the matter to national attention. Convictions based on torture then, were most common in the South, where, as now, the death penalty is overwhelmingly applied to impoverished black defendants.

Justice Marshall concluded with a chilling forecast of the fate of justice in the United States. Accusing the new Court majority of a ``blatant disregard for the rule of law,'' Marshall said that this past term's overturning of key precedents ``is but a preview of an even broader and more far-reaching assault on this Court's precedents. Cast aside today are those condemned to face society's ultimate penalty. Tomorrow's victims may be minorities, women, or the indigent. Inevitably, this campaign ... will squander the legitimacy of this Court as a protector of the powerless. I dissent.''

Top of Page Table of Contents Site Map Overview PageHome Page

The preceding article is a rough version of the article that appeared in The American Almanac. It is made available here with the permission of The New Federalist Newspaper. Any use of, or quotations from, this article must attribute them to The New Federalist, and The American Almanac

Publications and Subscriptions for sale. See: Publications and Subscriptions

Readings from the American Almanac. Contact us at: