Law Professor Eugene Volokh, of the very popular Volokh Conspiracy, fills in for vacationing Glenn Reynolds on Glenn's MSNBC weblog, devoting an entire column to his opposition to the Victim's Rights Amendment. Volokh says he is generally a Republican law and order type, but this Amendment is wrong.

We agree entirely, for the same reasons, and more.

The highest ranking Republican in the Senate, Bill Frist, said on ABC News' This Week today that he would back a constitutional amendment banning gay marriage. Never happen? Probably not. But, the proposed Amendment was introduced in the House of Representatives last month.

H. J. RES. 56 was introduced on May 21, 2003 by Mrs. MUSGRAVE and has 25 co-sponsors. Last week it was referred to the Committee on the Judiciary. subcommittee on the Constitution. Here's the text (available on Thomas, the Federal Legislation Server.)

Article --

`SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman . Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'

We're outing the co-sponsors so you can write them an appropriate letter:

Rep Akin, W. Todd - 6/10/2003 [MO-2]
Rep Bartlett, Roscoe G. - 6/2/2003 [MD-6]
Rep Burgess, Michael C. - 6/10/2003 [TX-26]
Rep Davis, Jo Ann - 5/21/2003 [VA-1]
Rep DeMint, Jim - 6/10/2003 [SC-4]
Rep Goode, Virgil H., Jr. - 6/2/2003 [VA-5]
Rep Hall, Ralph M. - 5/21/2003 [TX-4]
Rep Isakson, Johnny - 6/24/2003 [GA-6]
Rep Istook, Ernest J., Jr. - 6/10/2003 [OK-5]
Rep Johnson, Sam - 6/10/2003 [TX-3]
Rep Jones, Walter B., Jr. - 6/10/2003 [NC-3]
Rep Kennedy, Mark R. - 6/24/2003 [MN-6]
Rep King, Steve - 6/24/2003 [IA-5]
Rep Lewis, Ron - 6/25/2003 [KY-2]
Rep McIntyre, Mike - 5/21/2003 [NC-7]
Rep Miller, Jeff - 6/25/2003 [FL-1]
Rep Norwood, Charlie - 6/10/2003 [GA-9]
Rep Pence, Mike - 6/10/2003 [IN-6]
Rep Peterson, Collin C. - 5/21/2003 [MN-7]
Rep Pitts, Joseph R. - 6/2/2003 [PA-16]
Rep Ryun, Jim - 6/10/2003 [KS-2]
Rep Souder, Mark E. - 6/24/2003 [IN-3]
Rep Vitter, David - 5/21/2003 [LA-1]
Rep Weldon, Dave - 6/2/2003 [FL-15]
Rep Wilson, Joe - 6/2/2003 [SC-2]

This should be getting more attention. Senators Dianne Feinstein (D-CA) and Jon Kyl (R-AZ) have successfully pushed their proposed Victim's Rights Amendment to the U.S. Constitution through a Senate Panel vote. But the bill has many detractors in Congress.

Every Democrat on the panel voted against her. Think about it for a moment. A constititutional amendment? Why? Wouldn't a federal law do, if that's what Congress wants to pass?

While just about everyone in Congress says they favor increasing the rights of crime victims, some say a constitutional amendment isn't needed and threatens to do more harm than good.

...33 states, including California, have victims' rights amendments in their state constitutions that provide for everything from restitution to requiring prior notice of all court or parole board appearances in their cases.

Her measure, co-written with Sen. Jon Kyl, R-Ariz., grants victims of violent crime the right to prior notice of any public proceeding in the case, as well as notice of the release or escape of the accused or convicted, the right to be heard at trials and pardon hearings, access to any court decisions in their case and the right to restitution.

But opponents of the proposed amendment said the proper route would be to first try a federal law -- which can be changed relatively easily -- rather than the far more permanent step of enshrining victims' rights in the Constitution.

"I will fight this with everything I have," said Sen. Charles Schumer, D-N. Y. "No one has shown we need a constitutional amendment." (empahsis supplied)

Sen. Russell Feingold, D-Wis., who as a state senator voted for Wisconsin's victims' rights amendment, said he feared the Feinstein measure would undermine the criminal justice system.

We wrote this detailed article about why the VRA is a lousy idea some years ago. Both the New York Times and the Washington Post opposed it in editorials, here and here.

Bad news for prisoners. The Supreme Court today upheld a Michigan prison policy which precluded prisoners who have sustained two controlled substance violations while in prison from even non-contact visitation with family members and friends, and which limited contact visits for all prisoners.

The case is OVERTON V. BAZZETTA (02-94)

Respondents--prisoners, their friends, and family members of the Michigan prisoners filed a 42 U.S.C. sect. 1983 action, alleging that the regulations as they pertain to noncontact visits violate the First, Eighth, and Fourteenth Amendments. The District Court in Michigan and the Sixth Circuit Court of Appeals agreed invalidating the restriction as unrelated to legitimate penal interests. The Supreme Court reversed.

Under the Michigan policy, inmates could not have visits with minors other than their children or grandchildren, or with former prisoners unless they were immediate family. Inmates with two substance abuse violations in prison could only see clergy or lawyers.

The policy covered both noncontact visits - in which the prisoner sees visitors through glass or some other barrier - and contact visits. A lower court upheld the rules for contact visits, so the Supreme Court focused on noncontact visits. The justices said prisoners may have some right to associate with family members, but that Michigan prison officials have good reasons for limiting family visits.

.... Michigan changed some of its rules after the case began. In 2001, minor siblings were added to the list of immediate family members who could visit. In May 2002, minor nieces and nephews were allowed noncontact visits, and the substance abuse policy changed to limit prisoners to only noncontact visits after one violation.

21 states and the feds weighed in with the Court by filing briefs in support of Michigan's position.

"As the sprawling trial of accused Colombian drug kingpin Fabio Ochoa continues in federal court in Miami, Ochoa's attorneys have asked the 11th U.S. Circuit Court of Appeals to prohibit prosecutors and judges from hiding information essential both to their client's defense and the public's right to know."...They contend the "secret dual docket" system is illegal."

Roy Black is lead counsel for Fabio Ochoa. He has been tearing the Government's witnesses up on cross examination. See, here and here.

Now Black, along with the American Civil Liberties Union of Florida and the 1,600-member Florida Association of Criminal Defense Lawyers, are asking the 11th Circuit to void

what they contend is an illegal system in South Florida of maintaining separate public and nonpublic federal court dockets. In amicus briefs filed Monday, they ask the appeals judges to order the Southern District "to cease maintaining a secret dual docket."

....In their appellate brief on Ochoa's behalf filed last week, Black and Strafer argue their client has been victimized by an improper collaboration between prosecutors and the judiciary. They claim that prosecutors and judges have choked off the flow of government information to which Ochoa is rightfully entitled to defend himself.

Last year when drug cops served a subpoena on Denver's Tattered Cover book store to learn which book a suspect had purchased, the store stood firm in its belief that a book purchaser has a First Amendment right of privacy in the books he buys and reads. They took the case to the Colorado Supreme Court and won. Even though they knew, as the public did not, that the book did not pertain to meth dealing. This was revealed yesterday, at a Denver Press Forum luncheon.

A book at the heart of a controversial drug case that went all the way to the Colorado Supreme Court isn't about drugs at all. It was a calligraphy book about how to draw Japanese characters.

For nearly two years, investigators in the North Metro Drug Task Force tried to obtain a receipt they thought was linked to two books they found in a mobile home that had been used as a methamphetamine lab.

But their attempt to obtain a receipt from the Tattered Cover bookstore led to a ground-breaking legal case in which the state's highest court upheld the store's right to protect its customer's privacy.

It was never about whether the cops were right or wrong. It was about privacy. Thank goodness there are still independent booksellers out there like Joyce Meskis, owner of the Tattered Cover. Patronize them.

A class action has been filed against the city of Chicago by suspects who were held more than 48 hours before being brought before a judge or charged with a crime. The primary plaintiff in the civil rights case is Joseph Lopez who was held for five days, handcuffed to a wall in a police interview room, without mattress, blanket or pillows, so he could be interrogated about a murder. It later turned out someone else committed the crime. He filed suit after he was released. Subsequently, the Judge allowed to case to be brought as a class action and it is expected that hundreds, maybe thousands, of individuals kept more than 48 hours will be joining the case.

In the 1991 case of Riverside v. McLaughlin,

the Supreme Court said holding suspects longer than two days without judicial review is unconstitutional. Justice Sandra Day O'Connor wrote ... in a 5-4 ruling, that a 48-hour rule would permit "a reasonable postponement of a probable-cause determination while the police cope with the everyday problems of processing suspects through an overburdened criminal justice system."

Chicago police are now considering implementing a 48 hour rule, but say the decision places them "between a rock and a hard place." Suffice it to say we are not sympathetic to the police.

Steve Glassroth, Birmingham, AL criminal defense lawyer and NACDL board member has an eloquent and all too true commentary up in the Montgomery Advertiser on The Unrealized Promise of Gideon .

Forty years ago last week, on March 18, 1963, the U.S. Supreme Court decided the landmark case of Gideon v. Wainwright and announced a principle we all take for granted: that everyone who is accused of a crime is entitled to be represented by a lawyer, even if the accused is too poor to hire one.

No one can seriously question that a fair trial cannot be possible unless a competent lawyer is provided to those who cannot afford one. As the justices said, this "seems an obvious truth." However, decades later Gideon's promise remains largely unkept as we still find that the quality of justice frequently depends on the ability to pay for it.....

While we hear the horror stories of sleeping lawyers, scant attention has been given to the major underlying cause of inadequate representation: lack of resources.

Ninety percent of Americans questioned in a recent poll said that the quality of justice people receive should not be determined by the amount of money they have. That poll also found that Americans want lawyers defending the poor to have salaries, resources and workloads equivalent to those of prosecutors. They want national quality standards for the defense of the poor, much like standards for doctors, architects or teachers.....

The keys to reforming the system for effective representation for those unable to afford lawyers are simple and basic -- things like proper training, resources proportionate to those for the prosecution, adequate payment for lawyers providing services, manageable caseloads and a guarantee of independence so that politicians or judges are unable to arbitrarily reduce lawyers' pay or fire them simply because they are effectively doing their jobs.

To do this will require spending more money, something that is never politically popular. However, failing to take the necessary steps will only further erode public confidence in a system that treats the wealthy and poor differently and can tragically contribute to wrongful convictions.....The time has come to invest in justice for all.

Senator Edward Kennedy writes in the March 24 Legal Times (subscription only) on both the unfulfilled promise of Gideon and the need for the Innocence Protection Act:

Law Professor Glenn Reynolds says a school in Tennessee is violating the Establishment Clause of the U.S. and Tennessee Constitutions by requiring students to participate in Christian revival meetings during school hours.

For a school system to get this involved in promoting religious activity during school hours is to create an "establishment of religion" in violation of the First Amendment to the United States Constitution.
Attorney General Ashcroft has made religious discrimination a priority for the Department of Justice Civil Rights Division. It's time he has said, to end bigotry against people of faith. Unless Ashcroft only meant "people of Christian faith," this looks like a good case for an investigation.

We agree. We had a feeling when Ashcroft started his morning prayer breakfasts with his staff at the Justice Department, and Bush introduced his born-again Christianity into his speeches, that it wouldn't be long before they tried to sneak it into our secular institutions. Now we have Bush promising money for "faith based" drug programs and Ashcroft looking the other way when it comes to programs like the one in Tennessee. Christian fundamentalism cannot be allowed to become mainstream. Let's vote these guys out in 2004 and take back our Constitution.

South Knox Bubba is good today on Bush's proposals for admissions at Michigan:

"Isn't it funny how Bush interprets the 14th Amendment one way to get himself "elected" and another way to fight affirmative action? The 14th Amendment sure seems to be a versatile tool."

"... For God's sake don't attack Bush's race relations point man, John Ashcroft, on his record or you'll set race relations back another fifty years. Quid pro quo, you know. Besides, everything is fine in his home state, with college admissions of blacks at 6.5% in a state where the black population is 11.2%. And only about 45% of prison inmates are black."

Tapped has a thoughtful, well-reasoned analysis as well:

"But intellectual consistency requires that if you oppose affirmative action for one group (in this case, minorities), then you should also oppose affirmative action for all groups, including de facto affirmative action for rich whites -- aka legacy preferences in college admissions. You simply can't deploy the rhetoric of pure meritocracy -- as conservatives routinely do and as Bush did yesterday -- to rail against affirmative action, and then turn around and say it's OK for colleges to ignore these meritocratic imperatives when it comes to the children of alumni."

A budget crisis looms in Wisconsin and many other states. We applaud an editorial today in the Racine Journal Times that exposes the denial of legal representation to those below the poverty line, and relying upon the Constitution, pleads with the legistature to change the rules.

....The governor and the Legislature must also find a way to correct an evergrowing injustice in our obligation to defend the indigent.

When we have come to the point where poverty equals a guilty plea and a conviction, that is simply not justice at all.

That may well be the case in Wisconsin today because the state has not adjusted the poverty guidelines on who qualifies for public defender assistance for a decade and a half.

That means a single person who makes a mere $3,000 a year doesn't qualify for state-funded assistance -- even though that figure is a third of the federal poverty level.

You really have to be a pauper to fall below the state's guidelines, which were pegged to 80 percent of the poverty level in 1987 and have not changed since.

Some contend it's an oversight. Perhaps it started that way but it has grown much larger than that and now undermines the basic rights of our citizens -- yes, the poor are still citizens -- to legal representation in a court of law.

That right is granted in the U.S. Constitution.

....It's a matter of money, but more than that, it's a matter of equal justice. The state must do what's right, even if it adds to our budget woes.

The editorial correctly points out that groups such as the ACLU will file suit if changes are not made. Last month in Michigan, the principal legal groups that represent poor defendants in the Detroit area sued the Chief Judges of the Wayne County Circuit Court to seek adequate compensation for their services. The suit is one of several reform projects being pursued in trouble spots around the country by the Indigent Defense Committee of the National Association of Criminal Defense Lawyers.

Thanks to Pete Karas of Progressive Racine for sending us the link. Pete is also a major source for updates on the Racine Rave Raids and the Wisconsin green party. We hope he signed up with Daily Kos to be a part of his new state legislative action blog which should be up and running after the first of the year.

Law Professor Glenn Reynolds ( Instapundit) tackles the issue of the constitutionality of state sodomy laws today in his Fox News Column. He quotes Supreme Court Justice Joseph Story from the 19th century treatise Commentaries on the Constitution and concludes:

"... where laws infringe on important rights like property or "personal liberty," the very "nature of republican and free governments" may offer some restraint, even in the absence of specific constitutional language barring such laws. And this is not because of some fancy new right, but because of longstanding principles that the government should not regulate conduct that causes no harm to others."

The professor also quotes from a Kentucky case that struck down sodomy laws using as an analogy an older case that said the state can't regulate a person's consumption of alchohol:

"The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or as it has been otherwise expressed, that government is best which governs least. Under our institutions there is no room for that inquisitorial and protective spirit which seeks to regulate the conduct of men in matters in themselves indifferent, and to make them conform to a standard, not of their own choosing, but the choosing of the lawgiver."

"... legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior."

A Georgia court, in striking down a law prohibiting consensual heterosexual sodomy, stated:

"Since, as determined earlier, the only possible purpose for the statute is to regulate the private conduct of consenting adults, the public gains no benefit, and the individual is unduly oppressed by the invasion of the right to privacy. Consequently, we must conclude that the legislation exceeds the permissible bound of the police power."

Based on these and some other cases mentioned by Prof. Reynolds, he posits that the easiest (or most palatable) way for the Supreme Court to reason its way to striking down the sodomy law currently at issue before the Court is not to carve out a new right of privacy, but to rely on the time-tested and well-accepted theory that "limited government power is an American tradition."

The Professor makes a good argument. The Constitution is a living and breathing document that has served us well for over 200 years. Why complicate things by stretching it too far when a ready answer is so close to its core?

Does anyone see a downside to the Professor's argument? Our motto over here at TalkLeft has always been, "Let's not treat the Constitution as a rough draft" --meaning let's not amend it, let's find ways to allow it stretch within its existing parameters. So we think his argument is well-taken.