And what if Ken Cuccinelli’s “moral obligations” had forced him to arrest every abortion provider in Virginia?
That would actually be immoral, so it’s not relevant.
Defense attorneys have no place in a civilized society. The whole concept of “punishing” “criminals” is misguided: those who transgress do so through no fault of their own, so they need love and education rather than scorn and exclusion. Since we should love everyone anyway, however, the very question of guilt or innocence becomes irrelevant.
But what if we can’t get a hold of you and aren’t sure of what our moral obligations are supposed to be?
I’m all for a justice system that works more towards rehabilitation than punishment, but I’m not sure how that means we don’t need defense attorneys anymore. I mean, if a guy robs a liquor store, it would be great to be able to teach him how to function in society without stealing from people. (I’m not actually sure how we could do that, but let’s set that aside for right now.) But what if a guy who kind of looks like me robs a liquor store, and I’m the one who gets mistakenly blamed? How do I demonstrate that I don’t, in fact, need to be educated about how stealing is wrong? Am I entirely on the hook by myself to prove that it wasn’t me? Or am I not to be granted even that opportunity in your ideal of “civilized society?”
People need to stop pretending there’s some magical line between legal and illegal in all laws: there is only interpretation. Whereas one group in power get to draw the line in one place, the next group can choose to move that line elsewhere. No outside party is going to come in to earth and force us lowly humans to accept something abstract in writing; we are the guardians of our own future, of our own laws, and we interpret them how we please.
What’s happening right now is that the tipping point between those who support gay marriage and those who don’t is shifted to the pro-gay side. We have the power, we have the authority, the moral high ground, and the public support do what we want. The opponents do not so they fall back screaming about laws and lines and legal and logic all they can, trying to force us to not use our power to interpret things to our favor.
Its not going to work because support for gays has moved beyond the line in which it could be pushed back.
Taken practically, I don’t care what laws conservatives think the AG in Virginia is violating. I don’t care if Herring is doing it on purpose, for political reasons, or because he genuinely believes that the state law violates the US Constitution. All I care about is that he’s doing the right thing, which is to not defend something horrid.
And you know what will happen? More lawyers, AG’s, judges, and people will move to that position. More anti-gay laws will be violated, and they will be violated hard, and they will probably be violated illegally and that will be a GOOD thing. As public perception changes on gays, more people will think upholding anti-gay laws is a bad thing, no matter if they are legal or not. That’s the ideal goal, to be able to essentially eliminate anti-gay laws everywhere not through the long, hard slog of legal cases, precedent, and judgements, but by society’s collective disrespect of homophobic laws and homophobes themselves.
They, of course, are frightened to death of this. Its one thing to cloak yourself in the guise of the law, fighting to uphold what’s legal and judicial. That can convince people, that will move some to stay their support for gay laws, pushing back the tide a few years in the hope that those laws will be removed “the right way”. Even among intelligent people, there are those who know that discrimination is wrong but want to reduce it through public support, through changing of hearts and minds. The right way.
The subversives, like me, don’t give a shit about doing it the “right way”. “Change now!” we cry! A bad law is a bad law, no matter who supports it, no matter the number that supports it, no matter how righteous it was at one time, change it, burn it, destroy it! By hook or by crook, we say change it. Force them to do so by sitting in counter, by marching the streets, by blocking roads, but just change it!
At the heart of this issue, I think, is not about gays at all. It is expressed that way, sure, but it is really about something else. Ask yourself if you are willing to recognize a bad law and do something about it. Ask yourself whether you think it is ok to break a bad law even though its the law, in order to bring about a better, more moral, more fair, more righteous outcome. Have you done it before? Would you ever do it? Is there any circumstance you imagine that you would be the ones being targeted by fire hoses, dogs, or the ire of a cold, unfeeling system whose only loyalty is to the letter of the law? If you can imagine yourself thus, then you are for what Herring’s doing, whether you know it or not.
TLDR version: Its ok to break bad laws if they’re bad, and like anything, success on that depends on public support. Right now most people seem to support Herring and those opposed want desperately to turn the tide against him
I really don’t think “the very matter to be argued has already been settled by a higher court” is really in debate here, is it? Are you imagining that the AG could only refuse to defend a law that has already been ruled unconstitutional?
Not just a personal view of the Constitution, but also one that has objective, legal support for that position. We’re not talking about some determination made solely out of political decision-making, but one based on the law and rulings from other states that, while not precedential, are certainly influential.
Although a little bit of me is proud of you for your willingness to abdicate determinations of the Constitutionality of actions to the judiciary rather than the executive branch. PROGRESS!!!
Me, I think I prefer some kind of objectiveness to the determination, as well as a necessity requirement, rather than a simple “I have to defend every law despite it being unconstitutional” removal of discretion. Perhaps a reasonableness standard, where if there is a reasonable, legal argument to be made in defense of the law, the AG should be required to do so, unless there is a capable and willing alternative.
Suppose you’re President, and the Congress passes the Alien and Sedition Act, acts that you believe, reasonably and with great legal basis, are clearly unconstitutional? Do you believe it is your “duty” to investigate, try, convict, and possibly impose the death penalty based solely on your “duty to uphold laws”.
You appear to be implying that what defense attorneys do (at least sometimes) is inconsistent with integrity and “doing the right thing”, and that defense attorneys by the nature of their job need to leave their conscience at home.
I would say that this is often true, which is probably why criminal defense attorneys have a reputation as the scum of the earth (but I agree with your later sentiment that we do indeed need them anyway). The crux of my argument here would be that an AG isn’t a defense attorney, and that his role as a public servant makes conscience and integrity more important than bureaucratic function. Some here don’t seem to be persuaded that AG’s do this sort of thing all the time, even though some good examples were given. Cuccinelli not only did so, but he flagrantly abused the power of his office as well, on many other occasions. This is the legacy that also produced some really bad laws, one of which it appears Mark Herring is trying to address.
So you would have him defend the anti SSM law? Or are you saying that there is no reasonable legal argument in its defense?
If the latter, then you must realize that at least 4 Justices of the U.S. Supreme Court would vote to uphold the VA law. Those 4 Justices have better legal educations than you, me, or anyone else on this board and have been swayed by such an argument.
An argument that has no support would be one that never reaches the Supreme Court at all; one of those stories you read and get a chuckle over. Regardless of your personal opinion on laws against SSM, to say that there is no reasonable, legal argument in favor of those laws is absurd; it’s simply that you personally don’t agree with the argument which brings us back full circle.
If there are no substitutes who can intervene in the case, then, yes, I think the AG should be required to defend the law. I do think that there are more than enough substitutes to argue the case, so I’m not sure the AG should be forced to in this case.
Perhaps a “likelihood of success” would be a better standard, though. If the AG feels it is clearly unconstitutional, and an appeal has little to no chance of success, then perhaps the AG should be allowed to not defend the case. Balancing the extent of discretion the AG is allowed, as well as balancing the conflicting duties to defend both the constitution and the law, isn’t an easy decision.
Do you have a solution? Any opinion on the Alien and Sedition Acts?
There’s really no difference.
Herring is simply telling the court why he’s not defending the law…and adding that he agrees that a court should overturn a law that is indefensible.
I totally disagree.
To do what you personally believe, violating your duty of office, is itself morally wrong. You weren’t put there by the people to do that. You should resign if you can’t square your morality with the office.
I agree with Herrings’ actions, but that’s because I think it IS part of his duty. He must uphold the Constitution above all else.
Wow.
Not even remotely close to what I was saying.
It’s absolutely necessary to a fair and functioning justice system that the accused have advocates to fight on their behalf, even when they’re really, obviously, with-out-a-doubt guilty. This means that defense attorneys are often in a position where they’re responsible for defending very evil people, and sometimes succeeding. Steely Dan Fan seems to believe that an attorney in that position would be obligated to sabotage his clients defense, because it’s more important to do the “right” thing than to be a functionary of the system.
I think this is a *fantastically *naive view. Defense attorneys are the perfect example where the “right thing to do” is to fulfill your duty to the system, regardless of how you feel about the individual you are representing.
I understand what you were saying, and I agree, but the concept of “defend” covers very broad territory, and doesn’t necessarily mean trying to convince a jury that your guilty-as-sin client is innocent. “Doing the right thing” might mean an admission of guilt but advocating for your client through a plea bargain or by highlighting mitigating circumstances and your client’s good character. It’s arguable whether the defense attorney’s duty to the system can or should be characterized as having to lie to a jury to exonerate a guilty party.
Just as an incidental side note, having just finished reading “Wolf of Wall Street” I can cite Jordan Belfort’s high-priced lawyers as a great example of this. They avoided trial altogether by setting up a deal where he cooperated as a witness for the state, helping the FBI understand how and why things were done and testifying against others. They even helped establish a cordial working relationship with the investigators and the US attorney. As a result, important knowledge was gained and many others were brought to justice, and Belfort himself was sentenced but much more lightly than he otherwise would have been. A good example of “defense of the guilty” and “doing the right thing” being perfectly consistent.
While I don’t agree with some of Steely Dan Fan’s comments, I don’t think it’s naive to believe that every job in the legal profession can be done within ethical standards and the terms of one’s conscience, without selling your soul.
Lawyers are not allowed to lie to a jury, whether to exonerate a guilty party or an innocent one.
I don’t know why we would need “substitutes.” The AG is paid by the taxpayers to defend the state against lawsuits. His own personal opinion shouldn’t allow him to step aside from that duty. (And this should apply to the NJ gun laws and other GOP favorites as well)
As far as the Alien and Sedition Acts, those were passed before the concept of Judicial Review was even established in 1803. But assuming we had the system in place then as we do now, should the Jefferson Administration have defended the Alien and Sedition Acts in court? It does present a good question, but I would have to say yes. Society is best represented with a full and fair hearing on the merits of each question. Look at the Prop 8 decision; the refusal to defend the California law simply allowed the issue to be punted. It will be heard at some point in time, and it’s best for everyone to do their jobs and represent their clients.
I would draw the line only at patently frivolous arguments that would cause a lawyer to violate professional ethics (for example if Virginia passed a law requiring death and torture for those who refused to attend the Baptist church on Sunday). An AG could refuse to defend a law if he could not ethically make an argument in support of it.
No, but I think my duty there is to resign.
That may be your belief, but I think it’s pretty difficult to support that position. The three branches of government are checks and balances on each other. Resigning the presidency in this situation is IMO going against the spirit of the constitution.
Yep, poor, poor Charles Manson. He just needs to be loved and educated.