Constitutional Contortions
Critiques of case law. The opening chapter looks at our current constitutional crisis.
Procedure is substantive and this has allowed for powerful actors to utilize the courts to protect their rights, entrenching and fortifying substantive inequality. The main plaintiffs and beneficiaries of the First and Fourteenth Amendments, for instance, have been corporations. Corporations have utilized the First Amendment to protect against mandatory health disclosures on their products and to protect lobbying and dark money, which threaten our fragile democracy.
The Second Amendment has caused ineffable tragedies and is an open wound in our society – which if it would ever heal will forever scar us. The Fourth Amendment long utilized the “third party” doctrine as a loophole and it continues to limp on if in muted form, which in a time when everyone utilizes third party electronic service providers for their records and communications leads to unwarranted power. Moreover, Fourth Amendment jurisprudence continues to lack contextual analysis of consent, entrenching inequality by fortifying the power of those with the knowledge and means to refuse consent and being essentially useless for the remainder.
The Sixth Amendment, which enshrines the right of innocence until a determination of guilt and the right to a fair trial, is constantly violated. A substantial segment of the incarcerated population is awaiting trial and faced with the length of pretrial detention and the “trial penalty”, the vast majority are pressured into accepting plea bargains. Trials that do go ahead are hardly fair, including due to the regular use of paid informants whose interests lie in falsely testifying in an effort to commute their sentence. Moreover, while the Sixth Amendment provides for counsel, lack of resources and overstretched public defenders largely result in ineffective representation. The Seventh Amendment guarantees jury trials in most instances, but this has been practically eviscerated through contractual waiver in civil suits and the “public rights doctrine” for administrative adjudication.
The Eighth Amendment is violated with solitary confinement, mandatory and disproportionate sentencing, life sentences without the possibility of parole and the death penalty. The Thirteenth Amendment is violated through de facto criminalization of debt, cash bail and prison labor for Federal Prison Industries, the company wholly owned by the Federal Bureau of Prisons. FPI trades under the name “UNICOR” and prisoners are labor unicorns, unprotected by labor laws. It should be little surprise that in this prison-military-industrial complex, UNICOR’s main purchaser is the Department of Defense. The oxymoronic express exception of “voluntary servitude” in the Thirteenth Amendment exposes the quintessential contradiction of our unequal society, in which the counters of coercion respecting the provision of capital and imposition of debt can be tested but never invalidated in court.
The Fourteenth Amendment’s jurisprudence began with its shameful upholding of Jim Crow laws in the South and continues to uphold legal discrimination of people with felony convictions (the majority who accepted plea bargains rather than face a “trial penalty” in sentencing), who are denied needed benefits that would limit recidivism. It also continues to uphold substantive inequality by accepting juridical personalities as “persons” entitled to equal protection and due process – which has led to corporations challenging laws to protect public health and the environment, for instance, by claiming they are “discriminated” against.
The court has chipped away at the Voting Rights Act in its Fifteenth Amendment jurisprudence, failing to look at the impact of facially neutral laws. These are but some examples of how constitutional jurisprudence has failed the spirit of the constitution and our democracy.
