The Founding Fathers of the United States of America were some of the greatest and smartest people who ever lived. But – they screwed up in a place or two.
Now, this time, we will take a look at the law, just as a concept. The sole and only purpose that a law in the United States should have is to protect individual freedoms and/or protect an individual from exploitation by others. Period. Interstate commerce? Well, yes, that eventually filters down to protecting a citizen from abuse. Sometimes the trail is long.
A look at the history of law goes from the Egyptians to Hammurabi, to whichever way you want to go from there. One thing that emerges is the notion that we humans can make a pretzel out of anything. Take the Talmudic interpretation of the simple “Thou shalt not boil a kid in its mother’s milk” Exodus 34:26, I think. By the time the rabbinical philosophers got through with that one it had evolved into a whole system of kitchen cleanliness. Including four separate sets of dishes and some very convoluted recipes (good though). Mr. Spock was only partly right. Logic is great until you make one wrong step. Everything after that is garbage.
OK, back to law. “The law is an ass” Everyone has heard that one – here’s the whole thing from Dickens’ Oliver Twist:
“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.” It is not that the law is an ass, it is that laws are made by humans. Most of our laws are compromises to start with, they are written down. Then they must be interpreted and enforced. Oh my, what is written and how it is interpreted may be two different things. And what was intended may not come through at all.
We are looking at criminal law here.
Let us look at a small part of the world of the Founding Fathers. Just the forensic science part. It didn’t exist. Fingerprinting wasn’t there. Blood testing wasn’t there. DNA matching wasn’t there. Ballistics wasn’t there. In fact, physics was just beginning to be explored and codified. Electricity was the new kid on the block (Franklin, remember). Calculus was understood and beginning to be used for less than 100 years. The only thing that the Fathers had to go on was eyewitness testimony.
Humans have evolved to be pattern matchers. We have to be able to jump to a conclusion based on partial information. Does the grass move the wrong way? Might be a lion. Run. Now it could be many things other than the lion, but those that jumped to the conclusion and acted on it survived. Those that waited for full data and deliberated the implications became lion food. Guess which set of genes we carry. Back to the discussion. Human eyewitnesses depend on two things: Perception of events seen in an emotionally stressful situation. Memory. Oh boy, memory. Now we got two immediate strikes. Interpretation of perception and memory. I can’t think of any things that we humans do any worse. The FFs were really smart guys and tried to take that into account. Now we get what they wrote and then we get how the lawyers and courts interpret. Ouch! We now have the logic guys in the picture. Now, don’t get me wrong, I’d way more rather use logic than emotion, but it is a razor. You can get hurt if you are not careful. So – we get into the whole Catch-22 about admissible vs. inadmissible evidence. There is no justice in our courts. There is a rather horribly beautiful exercise in insane logic and acting that takes place. Watch court TV for a while and you will find a fascinating/repelling experience. The FF wanted to be as sure as they could that the innocent did not suffer falsely. Even if it meant turning some of the guilty loose. Anyway, back to admissibility of evidence. A fact is a fact, but said fact is not admitted if the cop at hand did not play the game according to the rules. All Ts crossed. All Is dotted. Didn’t even slap an uncontrollable wild man on the wrist. Look here, any rational human knows that people in positions of authority can become bent. We need to be protected from the protectors. But try this on instead of this admissible evidence crap: All evidence is admissible. No matter how it was gotten. A fact is a fact. However (twist!), if it was improperly gathered or falsified, make the individual cop personally responsible, with rather stiff penalties. This way we still protect individuals from abuse. We also protect the next child by not turning molesters and serial killers loose on technicalities.
I don’t think we need to twiddle the Constitution. I don’t trust this current crop of politicians to look past their bribes and bigotries. I do think we need to take a fresh look at what we think the Constitution says.