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by Jim McCarthy

Criminal justice at the local level in Virginia is the province of the 120 Commonwealths attorney offices funded primarily by the state, with some also receiving local supplement. Indigent defendants may avail themselves of the Sixth Amendment right to counsel through 28 public defender offices. Many other indigent defendants will be represented by court appointed counsel from lists and attorneys overseen by the Virginia Indigent Defense Commission (VIDC) which is the statutory organization for public defenders.

The genesis of the existence of public defenders arose in 1963, ten years before Roe v Wade, with the SCOTUS opinion in Gideon v Wainwright. The defendant, Clarence Earl Gideon, was sentenced to five years in prison after trial at which he requested the appointment of counsel to defend him. At the time, states were mandated to consider appointed counsel only in capital offense proceedings, not for lesser offences which might involve imprisonment. The unanimous court in Gideon concluded that the Sixth Amendment did not distinguish between capital and non-capital cases, finding that a defendant faces the danger of criminal conviction because he does not know how to establish his innocence.

This hallmark decision and its progeny later gave rise to the familiar Miranda warning (Miranda v Arizona, 1966), a required notification by police in a custodial setting:

You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

Gideon and Miranda are derived from principles in the Fifth and Sixth Amendments to the Constitution which are reasonably inferred from those provisions and not literally expressed. This type of jurisprudential reasoning pervades virtually all court decisions in some manner and is a commonly held value or belief in fairness and equity. Its antithesis is characterized as originalism or textualism whereby judicial reasoning is deemed to require a textual or literal reference in the Constitution or legislation upon which to base a decision.

In criminal cases, the Fifth Amendment precludes an accused from being compelled to be a witness against himself or be deprived of liberty without due process of law. The Sixth Amendment guarantees that the criminal defendant have compulsory process for obtaining witnesses and to have the assistance of counsel for his defense. Neither provision contains language conferring a right to court-appointed counsel; nor a right to remain silent; nor to cease answering questions. Were these conclusions reached by the justices based upon personal views? Are they reasonable, lawful? Does reliance upon them for decades create a fundamental entitlement?

Apparently, originalist justices are not of the opinion that precedent or reasonable interpretation of the Constitution or legislation may issue in the absence of text or clear language of such decision. That view is the essence of the leaked draft opinion in the abortion controversy by five justices. The Roe decision, they declare, was egregiously wrong when decided nearly 50 years ago because there is no basis in the Constitution for the protection of privacy.

In Garza v Idaho (2019), Justices Thomas and Gorsuch, joined in part by Alito, argued for the overturn of Gideon asserting it was wrongly decided in failing to identify a textual basis for appointed right to counsel. Thus, despite a statement limiting the overturn of abortion rights to that issue alone, the draft opinions line of jurisprudence as can be seen in Garza involves a much larger universe of established rulings. Privacy in marriage with respect to the use of contraception decided in Griswold v Connecticut (1965) is vulnerable. In that case, the court adverted to a penumbra of privacy based upon a view of the Bill of Rights of the Constitution together with the Fifth and Fourteenth Amendments. Writing for the majority, Justice Douglas frankly acknowledged that the Constitution does not mention the term privacy.

The logic of reductio ad absurdum may encourage and drive the present cohort of justices to an ultimate end of Constitutional jurisprudence. The 1803 decision in Marbury v Madison arrogated to SCOTUS authority to declare a law to be invalid upon judicial review. Chief Justice John Marshall crafted the ruling determining that a provision of the Judiciary Act of 1789 was unconstitutional, conflicting with the supreme law of the land in Article VI. Neither judicial review nor a power to declare a law unconstitutional exists in legislation or the Constitution.

Conceivably therefore, in a contemporary case or controversy, the originalist majority would be bound to agree that SCOTUS has no power to declare a law of Congress or a states unconstitutional due to the absence of a textual anchor. Combined with the reservation of powers to the states (Ninth and Tenth Amendments) such conclusion is inevitable. As precedent is no barrier, the originalists on the Court would be consistent in dismissing judicial review itself as a nullity. It follows that Justice Scalias magnus opus in Heller, interpreting a right to firearms by one and all, is fallacious since the Constitutional reference to the right to bear arms applies only to militias not individuals. Moreover, Heller has been in place for only 14 years, a mere bagatelle of time in the eyes of originalists.

Circling back, Virginia, without public defenders, would be on a path to increase its prison population, ensuring innocent, mostly poor, defendants are jailed while police misconduct thrives in the absence of Miranda. A certain amount of chaos is expected as Constitutional clarity is exercised.

In the Old Testament, Gideon and his overmatched forces frightened the enemy into disbanding camp after surrounding it with blaring trumpets and flaming torches. Lord, what fools these mortals be, says Robin Goodfellow or Puck in Shakespeares Midsummer Nights Dream musing about human folly. Look for the Constitutional provision enumerating nine justices.

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Silence of the Trumpets - Bacon's Rebellion

Title IX, passed in 1972, is an amendment to the Civil Rights Act of 1964 that focuses on sex-based discrimination in schools that receive public funding. On its surface, theres nothing wrong with this. Discrimination is bad and should not be allowed in public schools. In practice, however, that is not what this law is for.

A series of court decisions and eventually pressure from the Obama administration in the early 2010s clarified that sexual assault or harassment count as discrimination under this law. By allowing assault and harassment to go unchecked, the school is fostering discriminatory policies and they would lose federal funding. Therefore, schools are obligated to prevent harassment and assaults. Again, this may seem reasonable on the surface, but its not.

The problem is that when anybody is accused of wrongdoing by the government, they are constitutionally entitled to due process. This means that the accused must be presented with the evidence against them, be allowed to confront their accuser, and have an opportunity to provide evidence of their own for their defense. In practice, this does not happen. Schools actively prevent the accused from confronting their accuser, under the false guise of protecting victims. Tribunals are conducted behind closed doors without the accused even being allowed inside.

Schools have been sued countless times for violating peoples constitutional rights; despite schools continuously losing these suits, they keep doing this because they dare not risk losing federal funding.Even when the alleged victim says nothing happened, schools will still expel the accused.

Title IX has become synonymous with the Inquisition.

In 2015, Professor Laura Kipnis from Northwestern University wrote a letter in a newspaper criticizing the harassment policies so common in schools because they violate due process. In response, the university launched a Title IX investigation against her. She wasnt even accused of assault or harassing anyone. Students complained that because she dared to criticize school policy, her presence on campus created a chilling effect that prevented students from reporting when they are harassed. Criticism of Title IX is itself a Title IX violation.

Recently, three middle schoolers from the Kiel Area School District in Wisconsin are being accused of sexual harassment for refusing to use a self-described non-binary persons preferred pronouns. It is one thing to prevent slurs; it is entirely different to compel speech. This new standard, being pushed by the Biden administration, is untenable. This is not harassment, much less discrimination on the part of the school.

Modern Title IX law is so far corrupted from its original intent it is beyond saving. It violates peoples Fifth Amendment rights to due process, frequently kicking students (and staff) out of school with no chance to defend themselves, leaving them with tens of thousands of dollars in debt and no degree to show for it. It violates peoples First amendment right to free speech, both by prohibited speech people want to say, and compelling speech people do not want to say.

During the Trump administration, Education Secretary Betsy DeVos tried to institute much needed reforms, requiring due process. The ACLU (of all people) sued saying that due process is a bad thing. Now the Biden administration is undoing these reforms.

Peoples constitutional rights cannot depend on the whims of administrators. There are no reforms that can withstand partisan bickering. Title IX is fundamentally flawed and should be abolished.

William Smith lives in Fargo.

This letter does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

Originally posted here:
Letter: Abolish Title IX of the Civil Rights Act - INFORUM

Charter bus company North Fork Express, Tritec Real Estates planned Ronkonkoma Hub project and Tritecs Robert Coughlan (EverybodyWiki/Orenawong, Tritec Real Estate, iStock)

A developer may be forced to pump the brakes on a massive mixed-use project in Ronkonkoma, as a bus company owner is refusing to yield to an attempted seizure by eminent domain.

A depot operated by charter bus company North Fork Express stands in the way of the second phase of Tritec Real Estates $750 million Ronkonkoma Hub project, according to Newsday. Tritec has asked the Brookhaven Town Industrial Development Agency to condemn the depot, which sits on a 2.2-acre site on Hawkins Avenue near MacArthur Airport and Ronkonkomas Long Island Rail Road Station.

The IDA will hold a virtual public hearing on the issue Wednesday.

Municipalities use eminent domain when attempting to seize a property for a public purpose, such as parks or affordable housing. The Fifth Amendment requires municipalities to give owners just compensation for seized properties.

North Fork Express owner Greg Mensch said he could be willing to negotiate, but isnt happy with the offer hes received from Tritec.

They want to give you what they want to give you and thats it, Mensch told Newsday. Theyre taking private property and they, the town, want to give it to a private developer.

A spokesperson for Tritec said the firm prefers to negotiate.

Both sides have leverage. On the one hand, the town can seize the property and pay fair market value determined by an appraiser, which would result in Mensch losing the property, perhaps for less than hed want for it. But Mensch could mount a legal defense and drag out the eminent domain process, driving up the projects costs.

The initial phase of the Ronkonkoma Hub project wrapped up two years ago and the first tenants moved in three years ago. The second phase is expected to add 388 residential units, 74,000 square feet of retail, 17,000 square feet of offices and a village square for events.

Should it be completed, the development would contain 1,450 apartments, 195,000 square feet of retail and 360,000 square feet of offices.

In December, the IDA approved condemning more than a dozen properties, mostly small businesses, for the project. When the project was approved in 2014, the town and Tritec had said they had no plans to use eminent domain to acquire properties, according to Newsday.

[Newsday] Holden Walter-Warner

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Holdout threatens massive Long Island development - The Real Deal

Now may be a good time to max out your investments in airlines, car rental agencies and intercity bus companies. Travel has picked up as the pandemic has ebbed, but the Supreme Court could give it an extra boost by revoking the constitutional right to abortion.

If that happens, a lot of American women are going to find that "shop local" is a useless slogan when it comes to this type of commerce. The pro-choice Center for Reproductive Rights has predicted that with Roe gone, "abortion would remain legal in twenty-one states and likely would be prohibited in twenty-four states."

Vast swathes of the continent would become abortion-free zones free of legal abortions, anyway. But Americans have been traveling to get what they want since the Pilgrims arrived, and women with unwanted pregnancies are no exception.

In the days before Roe, when the procedure was illegal in most of America, places like New York and Washington state had lots of visitors who didn't come for recreation. Some 40% of all abortions were performed on patients outside their home state.

Already, liberal states are a destination for desperate abortion-seekers. Illinois, surrounded by states that have greatly restricted access, saw nearly 10,000 women come from out of state to get abortions in 2020, the Chicago Tribune reports. Planned Parenthood says that number may quadruple if Roe falls. We are on the verge of a wave of abortion refugees.

But anti-abortion advocates are not likely to accept this outcome as inevitable. A bill was introduced recently in the Missouri Legislature to bar its residents from getting abortions out of state.

Republican Rep. Mary Elizabeth Coleman told Politico: "If you believe as I do that every person deserves dignity and respect and protection whether they're born or unborn, then of course you want to protect your citizens, no matter where they are." Though her measure didn't pass, it will undoubtedly inspire other states to enact their own bans.

That would be a radical step, but "radical" is a term of endearment in the anti-abortion movement. It would be a terrible idea, though, and one at odds with our entire system of federalism.

One of our fundamental freedoms, long recognized by the Supreme Court, is the right to travel within the United States and be treated as an equal citizen from sea to shining sea. A state government can no more burden the freedom of its residents who venture out of state than it can burden the freedom of migrants from out of state.

In 1969, the court struck down a California law imposing a residency requirement for public assistance. It said the rule violated the right to travel and amounted to "an unconstitutional discrimination which violates the Due Process Clause of the Fifth Amendment."

For a state to assert its power over citizens beyond its borders would be an act of extreme presumption. Decades ago, when Nevada was the only state with legal casinos, everyone could go there and gamble without fear of bluenoses back home.

The same limits apply today. Utah can ban recreational cannabis, but its residents may drive to Colorado to get high. California may forbid the open carry of guns, but it can't stop Angelenos visiting Arizona from packing in public view.

As University of Pennsylvania law professor Seth Kreimer has written, one basic principle of American federalism is "that each citizen may take advantage of the liberties offered by any state." This arrangement also contributes to our national civic peace by accommodating a diversity of policies.

Anti-abortion advocates may argue that their cause is different because it involves life and death. Not so. A New Yorker who kills a fellow New Yorker in Atlanta and is acquitted under Georgia's "stand your ground" law cannot be convicted under New York's less lenient statutes.

Conservatives, who champion state sovereignty, should recognize that only one state can be sovereign within its borders. Otherwise, every state could extend its policies into the other 49 states.

The right should also beware of handing a new weapon to progressives. If a state can punish conduct that takes place in another state, Connecticut, which bans "assault weapons," could imprison a resident who uses one for target shooting in Maine. The possibilities for liberal mischief are endless.

If and when the enemies of Roe win their greatest victory, they will be tempted to seize every possible method of exploiting this success. But even the long reach of the law needs limits.

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Column: The coming fight over out-of-state abortions - Tampa Bay Newspapers

These remarks were delivered by Jeffrey Rosen, president and CEO of the National Constitution Center,at a May 2, 2022, celebration of the newly installed marble First Amendment tablet, donated to the National Constitution Center by the Freedom Forum. Its design and installation was made possible through the generosity of Judge J. Michael Luttig and Elizabeth Luttig.

Thank you, Judge [J. Michael] Luttig, for your gift to America in bringing the First Amendment Tablet to Philadelphia. Its fitting that the 45 words of the First Amendment will shine forever over Independence Hall, where the Declaration of Independence and the Constitution were drafted. As we prepare to dedicate the Tablet, lets gaze together at Independence Hall and then turn our attention back to the words of the Tablet that are shining before us. Holding these two images in our minds is illuminating, because the First Amendment shows us the connection between the Declaration and the Constitution. It protects freedom of conscience, which the Founders considered first among the unalienable rights enshrined in the Preamble to the Declaration and first among the blessings of liberty enshrined in the Preamble to the Constitution.

How do we know that the rights of conscience, as the Founders called them, were first among the unalienable rights and the blessings of liberty recognized by the Declaration and the Constitution? We know that from two other sacred texts Id like to talk to you about now, as we dedicate the First Amendment Tablet together. Those text are Thomas Jeffersons Bill for Establishing Religious Freedom in Virginia, drafted in 1777, and Justice Brandeiss opinion in Whitney v. California, drafted in 1927.

Jefferson drafted his bill in Virginia months after he returned Philadelphia, where he had just completed the Declaration of Independence. He considered his Religious Freedom Bill among the three accomplishments of his life important enough to be inscribed on his tombstone, along with his having drafted the Declaration and founded the University of Virginia.

Under Virginias colonial religious code, all dissenters were required to support and attend the Established Anglican church. Presbyterians and Baptists could be arrested for practicing their faith or preaching the gospel. Quakers, Jews, and other dissenters could be denied the freedom to marry or to have custody of their children. Jefferson proposed not only to disestablish the Anglican Church and remove all criminal punishments for dissent, but also to prohibit all compelled support for religion of any kind. He concluded that because freedom of conscience is a fundamental right, government can regulate overt acts against peace and good order, but it lacks all power to intrude into the field of opinion.

Jeffersons Bill sets out four reasons why government can make no law that constrains our freedom of speech, conscience, or opinion. Those four reasons were summed up by Justice Brandeis in Whitney, and they have been further developed by the Supreme Court since then:

1. Freedom of conscience is an unalienable right because people can only think for themselves;

2. Free speech makes representatives accountable to We the People;

3. Free speech is necessary for the discovery of truth and the rejection of falsehood;

4. Free speech allows the public discussion necessary for democratic self government.

Lets review each of Jeffersons four reasons.

1. Freedom of conscience is an unalienable right

Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds, Jefferson wrote in the first sentence of his draft, God hath created the mind free,and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint. In other words, Jefferson argued, freedom of conscience is, by definition, an unalienable right one that cant be alienated or surrendered to government because our opinions are the involuntary result of the evidence contemplated by our reasoning minds. We cant give presidents, priests, teachers, or fellow citizens the power to think for us, even if we wanted to, because we are endowed as human beings with the capacity to reason and therefore cant help thinking for ourselves. We know that Madison, the drafter of the First Amendment, shared Jeffersons views because he echoed them in his Memorial and Remonstrance in 1785, which persuaded the Virginia legislature to pass Jeffersons bill. The rights of conscience are unalienable, Madison wrote, because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.

2. Free speech makes representatives accountable to We the People.

In his Religious Freedom Bill, Jefferson emphasized that its crucial in a democracy for citizens to be able to criticize public officials because legislators and religious leaders, being themselves fallible and uninspired, will always try to impose their own opinions and modes of thinking on others. His prediction came to a head in the controversy of the Alien and Sedition Acts of 1798, where the Federalist Congress made it a crime to criticize the Federalist President, John Adams, but not the Republican Vice President, Thomas Jefferson. And Madison, once again, echoed Jeffersons views in his Virginia Resolution, which said the Sedition Act ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures which is the only effectual guardian of every other right.

3. Free speech is necessary for the discovery and spread of political truth.

Jefferson concludes his Religious Freedom Bill with words expressing his unshakeable faith in the power of reasoned deliberation to distinguish truth from error, words that are inscribed in marble on the Jefferson Memorial in Washington: truth is great and will prevail if left to herself; she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate.

4. Free speech allows the public discussion necessary for democratic self-government.

Jefferson believed that in a democracy, all citizens have an equal right and responsibility to exercise their rights of conscience. As Jefferson put it in his Virginia Bill, proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.

On the Supreme Court, in the greatest free speech opinion of the twentieth century, Justice Louis Brandeis distilled Jeffersons four reasons for protecting free speech into a few inspiring paragraphs. In the case, Whitney v. California, we see the first Jewish Justice insisting on the right of Anita Whitney, a white woman, to make a speech defending anti-lynching laws, which were designed to protect the life and liberty of African Americans. Whitney made her speech at a Communist Party meeting, and she was convicted under a California law that made it a crime to associate with organizations that advocated doctrines that might lead to people to break the law. In 1926, Brandeis had read Jeffersons original draft of the Virginia Bill for Establishing Religious Freedom. In his Whitney opinion in 1927, Brandeis adopted and refined Jeffersons standard for ensuring that government could only punish overt acts of lawbreaking, not the expression of dangerous opinions.

As Brandeis put it in Whitney, Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. [And] There must be reasonable ground to believe that the danger apprehended is imminent.

Brandeiss inspiring test government can ban speech only if its intended to and likely to cause imminent and serious injury was based on his Jeffersonian faith in the power of what he called free and fearless reasoning to expose falsehood through public discussion. As Brandeis put it, If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Brandeiss test was finally adopted by the Supreme Court in 1969. As a result, the United States Supreme Court now protects free speech more vigorously than any other judiciary in the world.

Brandeis went on to summarize Jeffersons four reasons for why government cannot make laws designed to restrict what Jefferson called the illimitable freedom of the human mind. And in the process he achieved a kind of constitutional poetry. I will now read Brandeiss central passage listen closely for each of Jeffersons four reasons: freedom of conscience, democratic accountability, discovery of truth, and democratic self-government.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. [Thats a quotation from Pericles funeral oration]. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

But as this paragraph shows, all four of Jefferson and Brandeiss reasons for protecting free speech are based on an Enlightenment faith in reason itself. The First Amendment is based on a faith that people will take the time to develop their faculties of reason, through education and public discussion; that public deliberation will check arbitrary and partisan demagogues rather than enable them; that more speech will lead to the spread of more truth rather than more falsehood; and that people will, in fact, take time for discussion and deliberation, rather than make impulsive decisions.

This founding faith in reason is being questioned in our polarized age of social media. Twitter, Facebook, and other platforms are based on a business model thats now being called enrage to engage. They have accelerated public discourse to warp speed, creating virtual versions of the mob. Inflammatory posts based on passion travel farther and faster than arguments based on reason. Rather than encouraging deliberation, mass media undermine it by creating bubbles and echo chambers in which citizens see only those opinions they already embrace. For these reasons, some are calling for Americas free speech tradition to be reconsidered or abandoned.

Here at the National Constitution Center, by contrast, we are proud to reaffirm the faith in reasoned deliberation by consecrating the 45 words that will shine forever in this hallowed space. As a vital platform for non partisan education and debate, we bring together Americans of different perspectives to cultivate their faculties of reason. Only by listening to the best arguments on all sides of the constitutional questions at the center of American life can all of us exercise our right and duty to make up our own minds. Like Jefferson and Brandeis and Frederick Douglass and Ruth Bader Ginsburg and all of the great free speech heroes of America history, we are dedicated to preserving, protecting, and defending what Jefferson called the illimitable freedom of the human mind. May the shining words of the First Amendment Tablet inspire future generations with this self-evident truth: reason will always combat error as long as individuals are free to follow the dictates of conscience wherever it boldly leads. On behalf of all of us at the National Constitution Center, thanks again to Jan Neuharth and Judge Luttig for making this memorable ceremony possible, and thanks to all of you for joining us.

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From Jefferson to Brandeis: The First Amendment, the Declaration, and the Constitution - National Constitution Center