If Words Have No Meaning

By Cyberquill 01/17/201125 Comments

From today’s edition of the Washington Post:

Federal authorities are planning to move the trial of the alleged gunman in the Jan. 8 mass shooting in Tucson to San Diego because of extensive pretrial publicity in Arizona, federal law enforcement sources said Sunday night.

Article III, Section 2 of the U.S. Constitution:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. [emphasis added]

The Tuscon shooting on 8 January 2011 was clearly a crime, was clearly committed within a state, and my copy of the Constitution does not contain a trial location exception for “pretrial publicity” or anything else.

What is government if words have no meaning?

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  • Pkmartin

    Call me crazy but I don’t even get the point of a trial -- he did it he got caught and he’s guilty. We have old people in this country who don’t have money for their meds and we are going to spend taxpayer dollars to hear his pathetic story…throw this guy in the dungeon.

    • http://blog.cyberquill.com Cyberquill

      He may be guilty by popular consensus, but he is innocent under the law until convicted by a jury of his peers, or at least until prosecution and defense have reached a plea agreement. The rule of law isn’t much of a rule of law unless applied even in cases where going through the process seems but a waste of time.

      Of course, neither is the rule of law much of a rule of law if the supreme law of the land is being ignored, such as when moving a criminal trial out of state is being contemplated.

  • jenny

    Time to get out the Westlaw.

    • http://blog.cyberquill.com Cyberquill

      In this case, it seems, the plain text of the Constitution and a rudimentary command of the English language should suffice.

      • jenny

        Never. And I don’t think this is an example of the cavalier treatment of the rule of law.

        But I don’t actually want to do the research, if you know what I mean. You could, CQ.

        • http://blog.cyberquill.com Cyberquill

          I also don’t think this is an example of the “cavalier” treatment of the rule of law. Rather, I think this is an example of throwing the rule of law right out the window.

          So you say that the plain text of the Constitution “never” suffices. Alright. How about this:

          I became a U.S. Citizen in 2009. Let’s say I want to run for Senator from New York in 2012. So I consult the Constitution, and it tells me that in order to be eligible, I must have been a U.S. citizen for nine years. Call me naive and simple-minded, but I conclude from this that I won’t be eligible to run in 2012. Case closed. End of story.

          But wait—according to Counselor Jenny, because the text of the Constitution “never” obviously means what it obviously says, I’d have to do “research” now in order to figure out what the phrase “been nine Years a citizen of the United States” really means.

          Joseph Story said it best: “It is obvious that there can be no security to the people in any constitution of government if they are not to judge of it by the fair meaning of the words of the text.”

          The U.S. government is supposed to be one of laws, not of men. Laws are couched in the language of, well, language, i.e., the words of the text, and the words of the text don’t get much clearer than that the trial of all crimes shall be held in the state where the said crimes shall have been committed.

          What exactly would I be researching? Whether Arizona is a state? Whether the parking lot in front of the Tuscon Safeway is located within the state of Arizona? Whether what occurred there was a “crime” as opposed to an “accident” or a “natural disaster”? Whether the crime (if it was one) was actually “committed” as opposed to simply “happened”?

          Hmm. Perhaps an amendment was added later which modified and wholly or partially superseded the clause in question so that moving a criminal trial out of state would be in line with the Constitution after all. Because that’s what amendments do. They amend.

          And indeed, the Sixth Amendment, ratified three years after the seven main articles of the Constitution were passed, sets forth that the accused shall enjoy the right to a speedy and public trial, by an impartial jury…

          Ah, so now one could argue that the imparitality requirement supersedes the original call for all criminal trials to be held in the state where the crimes have been committed, for it makes sense that a jury’s impartiality quotient rises in proportion to the physical distance from the crime scene and that the impartiality of the jury is more important than the location of the trial.

          Unfortunately, the Sixth Amendment continues … by an impartial jury of the State and district wherein the crime shall have been committed.

          So relative to Article III, Section 2, not only does the Sixth Amendment not expand the geographic area in which a criminal trial may be held, it actually narrows it down from the state to the district where the crime was committed.

          Of course, strictly speaking, the Sixth Amendment doesn’t say that the trial shall be held within that district, only that the jury shall be of that district. So I suppose they could select a jury composed of Pima County residents and transport them to San Diego in hopes that the ocean air will render their judgment more impartial than it would be at home.

          Obviously, criminal trials have been moved out of state before. The Oklahoma City bombing trial, for instance, was held in Denver. The question is, how many unconstitutional precedents amount to a de-facto constitutional amendment? How often must the text of the Constitution be ignored in order for it to have been effectively invalidated? And where exactly is this bizarre amendment procedure set down?

          • jenny

            You have good points. Still, if you want an explanation (one you might find illogical or unsatisfying), you’ll find it in Westlaw. I’m fairly sure.

            I often don’t know what I’m researching until I start.

            • http://blog.cyberquill.com Cyberquill

              The Westlaw appears to be a paid online service. Sadly, I’m out of spare change to slake my curiosity on legal matters.

              However, given that criminal trials were moved out of state before, I stipulate that, were I to search, I would find ample legal opinions justifying such relocations.

              This does not change the fact that with respect to the location of all criminal trials the words in the Constitution say what they say with luculent clarity.

              Of course, every person of average intelligence, whether legally trained or not, can come up with some sort of creative explanation as to why the ink in virtually any paragraph on any page in any text ever written means something other than what it clearly says. I can easily make a case, as I’ve demonstrated in a previous post, that Barack Obama’s presidency is unconstitutional because the man is too young to be president. It’s all a relatively simple matter of forging new meanings for ostensibly unambiguous words and phrases until they mean what we want them to mean.

              There’s plenty of ambiguity in the Constitution. But this isn’t a matter of an existing ambiguity. This is a matter of searching for an ambiguity in order to justify a desired—and, perhaps, a fairer—outcome.

              But, as I’ve stated below, the oath of office is to uphold and defend the Constitution, not to find the most ingenious way to sidestep its provisions in order to secure the fairest result in a given situation.

          • Tschiria

            integral component of the us-american law (and its checks and balances-system) is the decisional indepence and the institutional independence of the judges – even though you don’t find this explicitly in the wording of the constitution.

            in this killing spree the leading federal judge of arizona was murdered as well, all the remaining other (6?) federal judges of arizona were his friends. hence, in this trial at debate you can’t expect an independent verdict of them.

            • http://blog.cyberquill.com Cyberquill

              True. Moving the trial may be the right thing to do, it may be the fair thing to do, and it may well be the best decision ever made in the history of civilization.

              However, all government officials and all federal employees must take and oath to uphold and defend the U.S. Constitution. They don’t take an oath to do what’s fair, and they don’t take an oath to do whatever may be considered the best option under a given set circumstances. They take and oath to uphold and defend the U.S. Constitution. The oath does not include an “unless ignoring a particular constitutional provision seems like the better option.”

              Therefore, the most integral component of U.S. law is not decisional or institutional independence, but adherence to the supreme law of the land. Think about it: if the most integral part of our legal system were “independence” rather than following the Constitution, we’d in effect HAVE NO constitution. This sort of independence is precisely what a constitution is meant to guard against, not foster.

              And if someone wishes to argue that independence rather than rigid adherence to the Constitution should be the ruling legal principle of the land, then that person better refrain from ever pointing to the Constitution as backing up their own point of view in a given debate and slamming the opposition as acting “unconstitutionally,” for that person apparently doesn’t care about the concept of constitutionality in the first place.

            • tschiria

              Therefore, the most integral component of U.S. law is not decisional or institutional independence, but adherence to the supreme law of the land.

              unless i’m very much mistaken (you’ll correct me then), you’ve overlooked a little detail in your argumentation. that is the socalled “judicial disqualification” or “recusal”, regulated in the united states code (usc) and therefore legitimating legally the trial’s move.

              this code, “the codification by subject matter of the general and permanent laws of the United States based on what is printed in the Statutes at Large” – http://www.gpoaccess.gov/uscode/about.html – constitutes together with the united states constitution the supreme law.

              the statutory basis for this “judicial disqualification”-thing you find under title 28, §455 (usc):

              http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc28.wais&start=1070386&SIZE=8693&TYPE=PDF

              all the judges of arizona described themselves as biased (“challenge on grounds of bias”), not capable of warranting an impartial verdict -- they disqualified themselves for their judging- job.
              this case is a precedent, isn’t it, not foreseen by the “constitution-fathers”.
              actually, i find, even without the legal substantation in the form of this title 28 these judicial assessments weigh far more than this “don’t move”-provision considering what the constitution is initially ordained for.
              due to its preamble the constitution is “established in order to establish Justice” -- this requires inevitably unbiased judges. don’t you agree?

            • http://blog.cyberquill.com Cyberquill

              Of course I don’t agree, because you’re being ridiculous. What you’re advocating here is government by the general principles outlined in the Preamble alone and a license to ignore any of the specifics set forth in the main body of the document on grounds that they may be deemed antithetical to the objective of “establishing Justice.”

              Obviously, it is precisely those specifics, i.e., the following seven Articles in conjunction with their appended amendments which were designed to “establish Justice,” not the phrase “establish Justice” in itself.

              By your interpretation, the only thing the Constitution really says is “Let’s always be fair and do what’s right,” and none of its actual provisions are legally binding, for they can simply be overruled and replaced by Congress adding laws to the U.S. Codex that say something different that what the Constitution says. This, of course, would mean that the Constitution is worthless, for the whole point of a constitution is that its provisions cannot simply be replaced by regular laws, only via constitutional amendments passed and ratified by the amendment process set forth in Article V.

              So if, over time, new circumstances arise which, as you say, were “not foreseen” by the Founders, you add a constitutional amendment to modify whatever constitutional provision seems inadequate to address these novel circumsances in a just manner; although it’s a bit hard to believe that the Founders failed to foresee that a federal judge could be murdered and all his buddies would therefore be too biased to conduct a fair trial in the state and district where said crime was committed.

              While you are correct that the Constitution “and the Laws of the United States” (plus “all Treaties … made under the Authority of the United States”) together form the supreme Law of the Land, it is the Laws of the United States “made in Pursuance therof,” i.e., the laws made in pursuance of the Constitution, not the laws made either in pursuance or in violation thereof in case a law made in violation thereof is found to do a better job at establishing justice than a law made in its pursuance.

              Therefore, the Constitution is unquestionably the supremest of the laws which, in combination, form the supreme Law of the Land.

              And if all the federal judges in the state of Arizona describe themselves as biased and therefore wish to recuse themselves from the case, then have them invite an impartial guest judge from another state to preside over the trial.

            • tschiria

              Ein Narr ist nie so lächerlich, als man ihn macht.

            • http://blog.cyberquill.com Cyberquill

              Or sie.

            • tschiria

              i’m under the impression that you need a lookout.

  • Richard

    The US isn’t the only place where the rule of law is treated cavalierly by those who should assiduously uphold it.

    In England, matters aren’t helped by the rambling ambiguities of our senior judges whose judgments are supposed to be definitive interpretations of the law.

    It wasn’t always like this.

    • http://blog.cyberquill.com Cyberquill

      The human mind has always been fairly creative at devising fanciful justifications to circumvent the obvious meaning of the words on the page if it desired them to mean something else.

      When the Sedition Act was passed in 1798, for instance, the Federalists would argue that the First Amendment only guaranteed freedom from prior restraint, but not freedom from subsequent punishment, i.e., you were free to say or write whatever you wanted about the government, but that didn’t mean the government couldn’t throw you in jail for it. Of course, to argue that the prospect of punishment for a particular act didn’t amount to a restriction of freedom to perform it was utterly ridiculous, but nonetheless that’s the argument that was put forth.

      What I find most disconcerting about this proposed move of the trial to a different state is that none of the news articles I read about it even bothered to address the obvious unconstitutionality of such a move and at least attempted to provide an explanation, no matter how tortured, as to why it may be constitutional after all.

      Apparently—and perhaps correctly, which would be frightening—these journalists assume that their readers aren’t familiar with the text of the U.S. Constitution anyway and hence the question of constitutionality would never be raised.

  • Testazyk

    Good question. It will be interesting to see the reasons given. But you also have to ask whether, given the coverage the shooting has had, whether a jury in San Diego (or Miami for that matter) had been subject to any less pretrial publicity.

    • http://blog.cyberquill.com Cyberquill

      To raise pretrial publicity concerns in a high-profile case like this one in the age of 24/7 cable news and the Internet doesn’t even pass the laugh test. If pretrial publicity were the true reason, they’d have to move the trial to a place like Haiti, where nobody gives a hoot what happened in Arizona and the jury would be truly impartial.

      Just look at the very first comment above (“throw this guy in the dungeon”). Without giving away the commenter’s home address, suffice it to say s/he doesn’t reside anywhere near Arizona. So much for enhanced impartiality across state lines.

      Here’s what’s truly puzzling:

      When the Constitution and the Bill of Rights were ratified at the end of the 18th century, there was no radio, no cable, and no Internet to broadcast pretrial publicity evenly all over the country in real time. The telegraph hadn’t even been invented yet. The only “media” extant at the time were newspapers, primarily local ones, so, unlike today, pretrial publicity declined precipitously with physical distance from the crime scene. It follows that back then, in most cases, relocating criminal trials out of state would have virtually insured an untainted pool of judges and jury members.

      Still, the Framers insisted that criminal trials be held where pretrial publicity was necessarily greatest, namely in the state and district where the crime had been committed.

  • Richard

    P.S.
    ” … this case is a precedent, isn’t it, not foreseen by the ‘constitution-fathers’ … “
    The only thing unforeseen by the “constitution fathers” is that all the federal judges of Arizona might declare themselves incapable of an elementary judicial art -- the ability to eliminate personal bias when hearing a case.

    • http://blog.cyberquill.com/ Cyberquill

      True, but sometimes judges recuse themselves in order to eliminate the appearance of personal bias. In this particular case, one of their fellow judges had been murdered.

      • Richard

        That is absolutely correct. It is vital that justice according to law is seen to be done. I recall how a senior law lord, Lord Hoffman, came in for widespread criticism for hearing a human rights case in which his wife was involved as a functionary with Amnesty International. I am certain, though, that the connection would not have affected his impartiality.

        In the instant case, however, the judges in Arizona had no option but to hear the case in order to comply with the law. It is deeply worrying that not one federal judge trusted himself enough to try the case, despite the proximity to her (or him) of the victim.

        The murder of a judge is not unforseeable to a legal draftsman.

        • http://blog.cyberquill.com/ Cyberquill

          Yes, and neither should it have been too difficult for the constitution fathers to fathom that personal bias and pre-trial publicity are likely to decrease with distance, yet they insisted that trials be held close to where the crimes were committed.

          Anyhow, apparently what ultimately happened was that instead of moving Loughner’s trial to California, it was decided to fly in a federal judge from San Diego to preside over the matter. So in the end, the trial was held in the state where the crime was committed, just as the Constitution sets forth.

          • Richard

            All that makes the visiting judge seem positively nonchalant.

            The finest legal brains must have worked overtime to find such an ingenious solution.

            • http://blog.cyberquill.com/ Cyberquill

              I think upon reading my post, those finest legal brains realized that moving the trial out of state really was not an option, so they put on their thinking caps and got creative. And that’s exactly what my blog is here for: to inspire.

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