Justice, and the Problem with the Bill of Rights

I am reading about the work of the late William J. Stuntz, a law professor at Harvard, who wrote about the criminal justice system, in The Caging of America (recommended!) and Stuntz looks for the reasons why we arrived at this impasse, finding it, ultimately, in the Constitution, particularly in the Bill of Rights. And I was hard struck by how right he was in what was wrong. The problem, as he sees it, is that the Bill of Rights is about process and procedure, rather than principles. Compare, he says, the French Declaration of the Rights of Man and the Citizen with our Bill of Rights — Bills 4-8 establish our judicial system, and are how we end up with more black men in prison than were slaves in 1850, and more than six million people under “correctional supervision”. Gopnik writes:

Instead of announcing general principles–no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is that justice be done–it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence, and so on. This emphasis, Stuntz think, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice….You can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong.

I’d always been uneasy with Constitution-worship, particularly uneasy about the Bill of Rights, and certainly the justice system, but didn’t have the least idea why. This is why.

3 thoughts on “Justice, and the Problem with the Bill of Rights

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  2. Couple of things: The backdrop to the Bill of Rights (amendments to the Constitution — in other words, not even deemed appropriate for the original document) were that there were no real procedural protections in the English justice system for (for lack of a better word) commoners. So these broad restrictions of what the crown — er, federal government — could do were truly revolutionary.

    That said, the proof is in the pudding. It wasn’t until the 1960s that indigent people could insist on free legal representation (Gideon) and had to be told they didn’t have to cooperate with police (Miranda) and Jim Crow laws began to wither away. And while Articles 4-8 apply everywhere, most criminal trials are state, not federal, affairs.

    I’d blame the people of [insert unenlightened state here] for not insisting on proper judicial parameters than for a Founder’s failure to make the somewhat philosophically finer points in the Constitution about people being supreme. But it’s all there — it just has to be emphasized and nurtured, generation after generation. The Founders’ hearts were in the right place. After all the Declaration of Independence begins: “We, the people …”

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