It Wasn’t Supposed to Be this Way in America

I write mostly about things involving our criminal justice system but do venture into other areas. Doing this gives me a larger canvas from which to paint my opinions. Sometimes what  is happening elsewhere brings things happening in the criminal justice system into a better light.

It must be apparent to anyone who has followed this blog that once concerned itself mostly with James “Whitey” Bulger that the federal government has been reaching into traditional areas left to the states to determine how we should be governed and live. When the Bill of Rights was passed the Tenth Amendment was made necessary to obviate the fear of the American leaders of that time of a powerful central government. They had just finished revolting from one and sought not to be put back into the same position again. That amendment read: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Traditional areas under the state’s control related to making their own laws regarding families, crime and education. These were decisions to be made at a local level where it was believed people knew what was best in their local communities. States decided different laws on such things as the minimum age of marriage, the requirements for divorce, what was considered criminal, penalties for crimes, who could carry guns, how long the school year should be, what age one could leave school, and the like.

Then during topsy-turvy times in the country to preserve the right of the newly free blacks the 14^th Amendment was enacted.  It read in section 1: ” All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

You might have heard the expression that “loose lips sink ships.” Along with that is another one you may not have heard which is: “loose words sink nations.”  Is there any looser expression than “due process of law?” What it means to one person may have an entirely different meaning to another. Where it was originally intended to help slaves gain civil right for the first 60 years it helped corporations fight back measures such as child labor laws.

Then its meaning was changed with different judges examining it to embody a right of privacy that had to be respected by the states. It came down to meaning the majority of nine judges on the Supreme Court would decide what state laws would be allowed to stand. Those would be those they liked.

While the nation was ruled by the 5/9ths of the Supreme Court, Congress was acting to make more things criminal. The best exposition of this is by Boston Attorney Harvey Silverglate. I have noted how state crimes are made federal by alleging “civil rights” violations where none exist to start a federal investigation but then using other laws such as lying to a federal investigator or interfering with such investigation even if you did not know one existed to bring a prosecution. Or, the indictment of the probation commissioner for racketeering because he gave jobs to people recommended by legislators and judges. We have federal prosecutors making state molehill crimes into mountainous federal ones when patronage becomes racketeering..

It’s bad enough that the judiciary throws newly found rights at us which take away rights we thought we had; or Congress makes more and more daily actions federal crimes; but the worse is coming. It now appears the executive branch that doles out money plans to punish states that think differently than what it wants them to think. I do not believe that many states figured by taking grants from the federal government they were selling their freedom but that is what has happened. The president’s attitude is you took our money; now you play the tune we want.

Here is the first line in a New York Times article the other day: ”The Obama administration is considering whether North Carolina’s new law on gay and transgender rights makes the state ineligible for billions of dollars in federal aid for schools, highways and housing, officials said Friday.”  

Stop and think of that. Tell me how that differs from extortion. North Carolina must rescind a law the president does not like or it will suffer the loss of funds. According to the article this type of extortion has been done previously. One can only wonder what happened to the Tenth Amendment.

This is a scary time. The 5/9ths may soon be in the hands of those who discover new rights; Congress is malfunctioning; the president when paying attention is acting more like a dictator; and the majority of the American people who are more and more frustrated at a country not going their way only have a crackpot expressing their discontent.