• October 25, 2012
    Failed Evidence: Why Law Enforcement Resists Science
    David A. Harris

    By David A. Harris, Distinguished Faculty Scholar and Professor of Law, Associate Dean for Research, University of Pittsburgh School of Law

    The news everywhere today is full of headlines like “DNA Cracks Cold Case.” Popular culture is topped by television programs like CSI, in which police are more likely to use test tubes and high-tech gadgetry than guns and handcuffs to solve crimes. The bad guys better watch out: science is now the handmaiden of law enforcement.  And with that kind of partnership, criminals don’t stand a chance. 

    But my new book, Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012), exposes this picture for the myth that it is. Aside from DNA and analytical chemistry, police and prosecutors usually resist science, sometimes very vocally.  This scientific work concerns the basics of how police gather the evidence that prosecutors use in court every day: eyewitness identifications, suspect interrogations, and basic kinds of forensic evidence, like fingerprint analysis, and hair and fiber identification.  This science has been peer reviewed and published and replicated for years – sometimes for decades.  It tells us not only what the problems are in these basic areas of investigation, but how to fix them.  And yet, there is resistance to re-calibrating our police and prosecutorial practices so that they are consistent with the best of what science can teach us.  The question at the heart of Failed Evidence is why.  If we understand where that resistance comes from, we can find ways to overcome it, so that we can stop convicting the innocent, and get the real guilty parties off the street.

  • September 20, 2012
    Wrong and Dangerous: Ten Right Wing Myths About Our Constitution
    Garrett Epps

    By Garrett Epps, Professor of Law, University of Baltimore School of Law. Epps is also a contributing editor at The American Prospect.

    When future generations write the history of our time, I think they'll be struck by the way that vocal minorities in early 21st American culture succeeded in convincing their fellow citizens that there is doubt about obvious truths. The unquestionable reality of climate change is now discussed (only in America) as if it were a doubtful surmise; so, too, in much of the country is the demonstrable fact of evolution through natural selection. Human reproductive biology is now being targeted for dumbing down (see recent claims made by Sen. Todd Akin), as is public health.  I daily expect to read that we must all act as if there’s some question that pi equals three, because I Kings 7:23 implies that it does.

    That same sort of dumbing-down has been directed, over the past four years and more, at the United States Constitution. Any citizen's ears are daily assaulted by insistent claims that the "purpose" of the Constitution was to cripple Congress; that the First Amendment does not separate church and state; that the Second Amendment was passed so that citizens may defy federal law; that states are "sovereign" and may expel federal officials at their pleasure; and that federal environmental, social welfare, and worker-safety programs are illegitimate uses of the Commerce Power. If you don't believe me, just turn on Fox News, listen to AM talk radio, or read the letters columns of your hometown newspaper.

    And it's not just the public dialogue that is coming unhinged; extremists on the lower federal bench have begun using libertarian rhetoric as part of a crusade to cripple government. As one example, just consider the recent decision by the D.C. Circuit that new health warnings on cigarette packs are unconstitutional because efforts to discourage smoking are an "ideological," not a public health, matter.

    Two years ago, I became concerned about the toxic effects of this ideological sludge. The result is my new book, published this week, Wrong and Dangerous: Ten Right Wing Myths About Our Constitution

    The book was born out of a session of Tea Party-style "Constitution school" in a church basement, in which our instructor solemnly informed us that the Constitution is the law of Moses, brought to England by the Lost Tribes of Israel, and "intended" to restore the tallow-candle world of fifth-century Saxon England.

    I am not making this up. These seminars are going on every weekend across the country.

  • August 23, 2012
    The Parties Versus the People
    How to Turn Republicans and Democrats into Americans
    Mickey Edwards

    By Mickey Edwards, a former member of Congress who represented Oklahoma’s 5th congressional district for 16 years

    The underlying principle of America’s Constitution is pretty straight-forward. Americans are to be citizens, not subjects. Governments tell their subjects what to do but citizens tell their governments what to do. In the United States, that fundamental hallmark of citizenship is accomplished by (a) placing most of the major powers of the federal government in the hands of the national legislature, and (b) giving the people the right to determine who will serve in that decision-making capacity. Leaving the people with that power to determine what government shall and shall not do, and further arming them with specific restraints on government both within the original text and the subsequent Bill of Rights, the Founders gave citizens powerful weapons with which to defend their liberties.

    They had not, however, counted on the pernicious effects of a modern political party system which renders almost moot the separation of powers at the heart of the constitutional check on executive overreach. America’s leading Founders (among them, Washington, Adams, Jefferson, and Madison) warned repeatedly against the creation of the kind of political parties we know today; limited and shifting factions were one thing but permanent factions were something altogether different, something to be feared. If there is one notable feature of today’s party system it is the extent to which American civil liberties are jeopardized by the tendency of congressmen to willingly defer to presidential claims of extra-constitutional authority if the President and congressman share a common partisan identity.

    My own personal experience with that problem came when President George W. Bush began to regularly claim the authority to disregard clear federal law – legislation that had become binding law with his own signature – because he felt it impinged on his own broad definition of executive powers and because, well, it would be inconvenient to have to actually veto legislation that combined provisions he agreed with and those he found troublesome, even though the veto is the only remedy constitutionally provided to the President when he finds parts of the legislation distasteful. 

  • August 9, 2012
    Deportation Law and the New American Diaspora
    Daniel Kanstroom

    By Daniel Kanstroom, Professor of Law at Boston College Law School

    Good news: The major U.S. immigration enforcement agency has reported that “The border has been secured.” Bad news: That was in 1955 and nothing similar has been repeated since. Worse news: INS also recognized that “the prevention of illegal entries…is, in the long run, more economical and more humane than the expulsion process.” Worst news: The undocumented population now approximates 12 million. Despite recent Administration initiatives aimed at so-called “Dreamers” (the most innocent and the “best and the brightest” among the undocumented), massive deportation enforcement remains the dominant reality. Most frustrating news: No set of public policy issues is as widely misunderstood and as intractably resistant to rational solution. A virtual consensus among experts in the field as to comprehensive visa reform including work visas that match the realities of the labor market, better border control, some sort of legalization program for those already here, and flexible future enforcement discretion has yielded no legislation.

    Meanwhile, the United States continues a radical deportation experiment of unprecedented size and ferocity. The experiment has now continued for more than a decade. It is time to consider what it has accomplished and what it has wrought. The story is grim: deportation has cost much, achieved little, and caused tremendous pain and suffering. It is also widely misunderstood. Few realize, for example, that many deportees are not “illegal aliens.” All over the world, hundreds of thousands -- maybe millions -- of former U.S. legal permanent residents, people with green cards, families, and jobs in the United States find themselves scattered in an odd, unplanned new American diaspora. 

    Deportation has developed into a huge, expensive, and dangerous enterprise. If we count deportation events (including various mechanisms for what are technically called “removals” and “returns” through which a person is compelled to leave U.S. soil by government agents) over the last twenty years, the total number is around 25 million

    How did this experiment begin?

  • August 2, 2012
    For Liberty and Equality
    The Life and Times of the Declaration of Independence
    Alexander Tsesis

    By Alexander Tsesis, a professor at Loyola University, Chicago, School of Law

    Constitutional scholars often treat the Declaration of Independence as a relic of a bygone era. My recent book, For Liberty and Equality: The Life and Times of the Declaration of Independence (Oxford University Press 2012), shows how out of step that thinking is with social movements. Some of the most progressive groups in this country’s history based their demands for change, justice, and equality on the grand statements of the nation’s manifesto. Unlike constitutional scholars, manhood suffragists, abolitionists, woman suffragists, labor organizers, and a host of other progressives turned to the Declaration to condemn the hypocrisies of the Constitution.

    From the earliest days of the Republic, anti-slavery activists decried the incompatibility of adopting the universal sounding language of the Declaration of Independence while providing constitutional protections for the institution of slavery. In 1783, New Jersey Quaker leader David Cooper underscored the contradictions between Revolutionary principles of equality and the institution of slavery in two, side-by-side columns. He quoted from the Declaration in the left-hand column and in the right-hand column condemned those signatories of the document who were slaveholders, speaking of the blessings of liberty while securing it only for white men. Even that characterization of American democracy was too generous given the endemic racism that spilled over far beyond the boundaries of slave plantations.

    The manhood suffrage movement of the early nineteenth century turned to the Declaration’s principles of equality to vindicate the right of propertiless white men to vote. Laborers complained that in a country committed to liberty, equality, and the pursuit of happiness an aristocratic democracy had been erected on the backs of the workingman. Writing about political equality in 1800, Thomas Paine’s biographer, James Cheetham, interpreted the Declaration of Independence’s words that “all men are created equal” to include “the political equality of man.” From this followed the principle that “the right of suffrage cannot . . . belong to a part without belonging to the whole.”