A Lawyer's Dilema

For almost thirty years I have practiced law. Throughout this period, more than one-half of that practice has been criminal defense.

I have always had something of a problem with the term "criminal defense." It really is a misnomer. What we defense lawyers really do is "Constitutional Enforcement." It is not my job or mission to free criminals. It is my job to ensure that the government cannot deny any person of his liberty without following due process of law... stated differently, ensuring that governmentobeys the law in it's attempt to enforce the law and limit the individual's liberty.

That means that if the government violates the Constitution or laws in prosecution of a person, then there are sanctions which are imposed. For instance, evidence may be suppressed or a charge may be dismissed. The criminal justice system recognizes that liberty is so important and government is so powerful vis-a-vis the individual, that the courts must restrict the government to acting only within its delegated powers, or release the accused. Lawyers, that is, good lawyers, are not tied emotionally to their clients or pursuing an agenda other than that presented by their professional roles. This is why, even after a criminal killed my eldest son, I was able to continue doing a job that I love and that I know must be done.

Defense of the accused EQUALS defense of the liberty of all. Much like it is the pornographers which protect the First Amendment, it is the accused who defend and define the Fourth, Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution. It is the thousands of accused persons, represented by thousands of lawyers in courtrooms throughout this country who every day fight to hold the government in check, so that its power is not abused, and individual liberty is respected and protected.

This brings me to the point of all this. Over the centuries of our existence as a nation, we have watched as individual liberty slowly was eroded. As government grows, that is to be expected and, of course, resisted. What we are experiencing in our country now, during our lifetimes, is a wholesale assault on individual liberty and individual rights.

You name it, it is regulated. Taxes, building codes, health codes, criminal statutes by the thousands...the list goes on and on. Now we are seeing the nationalization of banks, manufacturers, and insurance companies. The Federal Reserve answers to no one, and controls everyone. Nationalized health care is on the horizon. Cap and Trade simultaneously puts the governments hands on our wallets and thermostats.

The new administration, as did the last, literally is paying no attention to the Constitution, other than treating it as if it were a tired old piece of paper, just another piece of bureaucratic paper to be dealt with. Government now finds its fundamental principles to be inconvenient and unduly restrictive. Its answer, ignore it. The people will take it as hard and deep as we want to give it to them.

Our beloved Constitution is, however, not just a piece of paper, damn it! The Constitution is the very document, the source document, for the power which the government exercises. It is WE THE PEOPLE who gave power to the government, subject to very well thought out restrictions and limits on that power. Our founding fathers appreciated the need to limit government power and to protect individual liberties from abuse of that power.

What we see today presents to all law-abiding people a very serious dilema; If the Constitution gives the government the power to make and enforce laws and, as it seems, the government is now engaging in a continuing and relentless rejection of the Constitutional restrictions placed upon it, what then can be the response of the people?

Our national contract is being breached. The government is losing its legitimacy by ignoring its life-source and dishonoring the principles on upon which it's very existence relies. I ask the question; if the government is not obeying the Constitution, need the individual obey the laws which the government sets forth?

Therein, lies the dilema.