Bills Quills and Stills

 

BILLS, QUILLS and STILLS

 

AN ANNOTATED, ILLUSTRATED, AND ILLUMINATED HISTORY OF THE BILL OF RIGHTS

 

By Robert J. McWhirter 

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Robert J. McWhirter

Robert J. McWhirter is a nationally and internationally known speaker and author on trial advocacy, immigration law, and the history of the bill of rights.

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Bob McWhirter

Bob McWhirter

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My name is Marvin Draper

 

                                I have known Robert for the past 17 years now. The way we met were on not so good terms for me at the time. I sure am glad that it was Mr. McWhirter that was assigned to me though.

 

                                Robert was very professional and would not allow me to feel guilty for what had happened or what I had done. I was sure that I was going to spend some time in jail or prison but Mr. Mcwhirter fought very hard and his counter responses and questions were aggressive that the other party didn’t know how to respond. It was like he was always a couple steps ahead. With his attitude and knowledge of the court system, it made me more comfortable in speaking up for myself. To this day Mr. McWhirter would have forgotten about me and moved on since he was just appointed to me , But Mr. McWhirter keeps in constant contact with me to see how my family and I are doing. I think of Mr. McWhirter as a very close friend now.

 

                                I would not hesitate to recommend Robert at any time. Thanks for being there for me and my family Robert.

 

                                                                                                                Thanks again

                                                                                                                Marvin Draper 

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Almost as surprising as how much clients and prospective ones think that lawyers have committed all sorts of legal minutiae to memory is how much those in need of legal help misunderstand the law, most especially the penultimate document in the U.S. legal system. What practitioner hasn’t been at least momentarily amused by potential clients who brattle off their alleged rights — to the house in a divorce, to a clean environment in a pollution case, to health insurance, to a new job — thinking that they are constitutionally entitled to them?


As tempted as a lawyer might be to query, have you ever read the document?, the larger goals — helping someone with a legal problem, gaining a client, getting some work — compel just a bit more diplomacy. No need to roll one’s eyes at wrongheaded statements about how a worker’s ‘right to free speech’ was violated when she told her supervisor exactly what she thought of her only to find herself sitting before a Human Resources person for a reprimand, or about how English is the ‘official’ language in the United States because the Constitution says it is.

Simply launch into a brief yet engaging lecture after noting that the prospect raises a good point about the Constitution and its breadth.

Of course, any lawyer would be interested in a conversation on this point, but the general universe, or the subset that has a tiny little legal problem compelling it to seek legal advice, tends to need something more gripping than a centuries-old document to hold its attention. This is where a book like Robert J. McWhirter’s Bills, Quills, and Stills: An Annotated, Illustrated, and Illuminated History of the Bill of Rights (American Bar Association, 2014 hardback available for $195, 2015 paperback available for $29.95) could be most helpful to a lawyer in need of an engaging story or two that will help a client understand what is and is not a protected right.


The book, which took lawyer McWhirter a decade to write, is an engaging chronicle of the first 10 amendments to the Constitution. Accompanied by hundreds of visuals and even more footnotes, the work makes a history of such an old document an actually interesting read. Who wouldn’t be tempted by a book that manages to link classic comics, molasses stills, and Homer Simpson to the Constitution?

Some lawyers like to give out pamphlet-sized copies of the Constitution. That can be effective, sometimes. But to bring the Constitution to life, and to make it relevant to a segment of the population that might not be overly interested in it despite seeking its protections, any educator is going to need contemporary and captivating references that illustrate the document’s reach as well as its limitations. The usefulness of Bills, Quills, and Stills can be to the lawyer, given the book’s currency and readability. Just flip to the right chapter on the Constitutional amendment you are addressing and pick up a few tidbits to weave into a story about rights that a client will actually remember.

For the general public, this work is a pertinent one to have around. While many are unlikely to read a scholarly tome on the bill of rights and Supreme Court decisions interpreting them, they may well be drawn to a book like this one, replete with visuals, references to mainstream media, and interesting bits of trivia conveyed with a contemporary twist (how many of us have thought about philosopher John Locke’s position on drug rehab?).

McWhirter, a criminal attorney who is a supervising lawyer at the Arizona State University Alumni Law Group in Phoenix, treats the Constitution with reverence even as he has managed to inform readers about its workings while riffing on subjects like the Beatles’ White Album and how the boys from Liverpool railed on Sir Walter Raleigh and how all of this is pertinent to the confrontation clause. He has made the story of the Bill of Rights readable and suitable for varied audiences, whether they’re lawyers, clients, law students, or co-eds.

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On this date 228 years ago, the delegates to the Constitutional Convention signed the Constitution. To celebrate Constitution Day, we offer you a little trivia about the document which forms the foundation of our republic.

We enlisted the help of Robert J. McWhirter, whose new book Bills, Quills, and Stills: An Annotated, Illustrated, and Illuminated History of the Bill of Rights was released this year by the ABA. McWhirter, a criminal defense lawyer from Phoenix, has provided us with a list of 10 common misconceptions or lesser-known facts about the Constitution and the Bill of Rights:

1.) Most voters today would not have had the right to vote under the original Constitution. Women, blacks, Catholics and white men without substantial property could not vote. Abigail Adams wrote a charming, though pointed, letter to her husband John Adams on March 31, 1776 reminding him “To Remember the Ladies.” But it was not until the 15th Amendment that the Constitution gave black men the vote, and not until the 19th Amendment did it “remember the Ladies.”

2.) Many of the rights we take for granted were not granted by the original text of the Constitution. For instance, the right to travel comes from Magna Carta in 1215; Magna Carta is also the source of our right to due process, and the common law gave us the presumption of innocence in a criminal cases. The Framers provided for no universal public education and no workers’ rights. Sure the original Constitution recognized the right to a civil jury, a habeas corpus petition, and a prohibition on ex post facto laws. But beyond those, the main right that the 1787 Constitution gave was to keep slaves—hardly a promising start!”

3.) The word “God” never appears in the Constitution or Bill of Rights. The way the Constitution and Bill of Rights are written, the source of all government power and legitimacy is “the People,” not any notion of divine right.

Bills Quills and Stills cover

4.) The word “democracy” never appears in the Constitution or Bill of Rights. We do not live in “a democracy,” but a republic. James Madison and Alexander Hamilton argued in the Federalist Papers that democracies were a disaster.

5.) The Bill of Rights was never an actual “bill” in Congress.Americans were debating the need for a “Bill of Rights” even before there was a Congress. We call it the Bill of Rights because 100 years earlier in 1689, the English Parliament passed an actual “Bill of Rights.” James Madison never intended the first 10 amendments to be a Bill of Rights. He would have inserted them throughout the Constitution. Roger Sherman argued that they be added at the end as “amendments.”

6.) Most of the Framers believed a Bill of Rights unnecessary. This was because in their view, the federal government had only the power the Constitution specifically gave it. Alexander Hamilton argued a Bill of Rights was redundant because the states had their own bills of rights and “the Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights.”

7.) The Bill of Rights was not, originally, 10 amendments. Madison took over 200 proposals from the states and political leaders and submitted 17 to Congress, which he largely based on George Mason’s Virginia Declaration of Rights of 1776. The House approved all 17 amendments, but the Senate rejected some (including Madison’s favorite on protecting conscience and the press) and combined others.

8.) The First Amendment was not originally first. It started out as the third amendment. (So much for the hortatory speeches that “the First Amendment is so important because the Framers put it first!”). In fact, the Framers originally put it after an amendment regarding the size of the Congress and another related to Congress’s pay. The original “first amendment” never passed, but the states did ratify the original “second amendment” concerning congressional salaries on May 7, 1992, making it the 27th Amendment.

9.) Several states did not immediately approve the Bill of Rights. Connecticut, Georgia, and Massachusetts never got around to ratifying it until the sesquicentennial of the Constitution in 1939.

10.) The Constitution begins and ends with the People. Its first words are “We the People”. If we count the Bill of Rights as part of the original Constitution, which we generally do and should, the last words of the Constitution are the Tenth Amendment’s reservation of rights “to the people.” The People are first and last the source of government power and legitimacy.

Did you already know all this? Think you know the Constitution inside and out? Try this quiz to test your mettle.

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“Time to rein in the United States Supreme Court,” pronounces Ted Cruz, junior senator from Texas, self-professed disciple of Originalism and aspiring presidential candidate. Cruz held hearings to stop the high court’s “lawlessness” and “judicial tyranny,” which he titled “With Prejudice: Supreme Court Activism and Possible Solutions.”

This has nothing to do with the court’s conservative rulings on guns, campaign spending and blocking the Environmental Protection Agency. Cruz’s search for “options the American people have to rein in judicial tyranny” responds only to the Obamacare and same-sex marriage decisions: “Much to my great disappointment this past term, the court crossed a line and continued its long descent into lawlessness to a level that I believe demands action.”

 

Time to change the Constitution, opines Cruz, to stop the Supreme Court from “declar[ing] itself as a super legislature.” His suggestions include: judges running for retention every eight years, giving justices term limits, allowing a majority of states to override the Supreme Court and allowing a two-thirds vote of Congress to overturn the Supreme Court.

Yet Cruz incredibly claims to be an Originalist — someone who believes we should read the Constitution as the Framers intended. Although the Framers did not write out the court’s power of judicial review, they provided for the judicial branch, intending it to do just that. Our country began with the Declaration of Independence’s indicting King George III’s attack on judicial independence: “He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”

The Framers provided for a judicial branch exactly because the Articles of Confederation had none. James Madison, father of the Constitution and Bill Of Rights, recognized the problem of protecting individual rights: “Repeated violations of these parchment barriers have been committed by overbearing majorities in every state.”

Federal courts were the answer, as Madison explained in The Federalist Papers: “[I]ndependent tribunals of justice [who would] consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against any assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”

Madison’s Federalist Papers co-author, Alexander Hamilton, noted the value of a Supreme Court over the states to provide national unity: “Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed.”

The courts are the best guardians of rights because, he said, the court “has no influence over either the sword or the purse [and is] beyond comparison the weakest of the three departments of power.”

Madison, Hamilton and the rest of the Framers did not work in a vacuum. English common law and constitutional custom gave us a powerful tradition of judicial review. In 1610, Chief Justice Court of Common Pleas Sir Edward Coke in Dr. Bonham’s Case held a court could find the common law trumps Parliament. A generation later, John Lilburne’s Agreement of the People (1647-1649) noted constitutions trump Parliament. A century later, William Blackstone’s “Commentaries” provided natural law trumps Parliament because “no human legislature has power to abridge or destroy . . . [t]hose rights which God and nature has established.”

From this tradition, the Framers created the federal courts with the power of judicial review.

Sure, there were dissenters. John Rutledge of South Carolina argued that federal courts are an “unnecessary encroachment on the jurisdiction [of the states].” Patrick Henry, who opposed the whole Constitution, argued: “I see arising from the extensive jurisdiction of these paramount Courts, the State Courts must soon be annihilated.” Because Rutledge and Henry lost, we today have the U.S. Constitution.

Possibly Cruz will point to President Thomas Jefferson’s reaction to Marbury v. Madison (1803), in which Jefferson’s cousin, Chief Justice John Marshal, established the prevailing concept of judicial review. Jefferson was unhappy because the Federalists stacked the courts with Jefferson opponents. The Constitution, Jefferson grumbled, was now “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

But 10 years before on March 15, 1789, Jefferson wrote to Madison that a bill of rights is good because of “the legal check which it puts into the hands of the judiciary.” Of course, Jefferson at the time was not in power and had not lost before the court.

As any Jefferson historian will attest, the slaveholding declarer that “all men are created equal” could be wildly inconsistent if not hypocritical. First extolling the judiciary as a “legal check” to guarantee rights and later bemoaning the court’s power of judicial review because he didn’t like the ruling is classic Jefferson. In this affinity to Thomas Jefferson, Sen. Ted Cruz appears an originalist after all.

Robert J. McWhirter is a well-regarded criminal defense and constitutional lawyer based in Phoenix. He is the author of “The Criminal Lawyer’s Guide to Immigration Law,” now in its second edition (ABA Press 2006), and the just-released “Bills, Quills and Stills: An Annotated, Illustrated and Illuminated History of the Bill of Rights” (ABA Press 2015).

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The shooting in South Carolina made clear the connection of guns and race in America. Statistics of inner-city gun violence show the connection pretty much every day.

In this context, the National Rifle Association actually believes in gun control. “Nothing,” says the NRA, should infringe on the right of “law-abiding citizens to bear arms.” So, everybody not “law abiding” gets controlled.

But does “not law abiding” mean black people? History says yes.

In the late 1960s, the Black Panthers creed was “the gun is the only thing that will free us.” In 1967, they invaded the California Assembly with guns in hand to protest the Mulford Act, which made it illegal to carry loaded firearms in public.

The NRA came to support the Mulford Act, and that icon of American conservatism, Gov. Ronald Reagan, signed the law, stating, “I see no reason why on the street today a citizen should be carrying loaded weapons;” the Mulford Act “would work no hardship on the honest citizen.” The national Omnibus Crime Control and Safe Streets Act of 1968 and the Gun Control Act of 1968 followed, which the NRA did not oppose. The “not-law-abiding” blacks got controlled.

But the history goes back further. We think of the American South as the most anti-gun-control part of the nation — in reality it was always the most gun controlled. From before the American Revolution until well after the Civil War, slaves couldn’t touch a gun without the master’s permission. Laws prohibited even free blacks from having a gun, a situation that persisted throughout the Jim Crow South well into the 20th century. This was strict gun control.

A gun-toting slave with no rights under the law by definition cannot be “law abiding.”

D.W. Griffith’s racist silent film of 1915, “The Birth of a Nation” (a.k.a. “The Clansman”), was the first movie blockbuster and ends with the disenfranchisement and disarming of blacks. “ The Birth of a Nation” remains a Klu Klux Klan favorite and a recruiting tool.

So, guns and race have been connected throughout American history. They were connected again at the Emanuel African Methodist Episcopal Church in Charleston, S.C. Dylann Roof chose his venue and victims with purpose. And, as if the connection of guns and race was not clear enough, Mr. Roof murdered under the banner of the so-called Confederate flag.

The “Confederate flag” was actually not the flag of the Confederacy but of the Army of Northern Virginia. It’s graphically appealing. We grew up with TV’s “Dukes of Hazzard” and the General Lee racer draped in the Confederate flag invoking good-natured mischief and independence. But this obscured history.

Assertions of southern “heritage” and “pride” and “states’ rights” cannot change the Confederate battle flag as an icon of the fight to maintain slavery and insurrection. Dylann Roof made the point as he waved it while burning the American flag.

Claims of “heritage” cannot look only to some putative ancestor who may have fought bravely for the Confederacy. That heritage is itself hateful. As Confederate Vice President Alexander Stephens stated in 1861, the Confederacy “corrected” Thomas Jefferson’s statement that “all men are created equal”:

“Our new government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition.”

Claim Southern heritage and pride, but if you wave the “Confederate flag,” it comes with the violent racist cornerstone that was the Confederacy. As much as the KKK hood, the Confederate flag remains the enduring symbol of white supremacy. This is why, when Dylann Roof walked into a Bible meeting with a gun, it was about race, gun control and a flag.

The real question is why we would need yet another reminder that race is still an issue, that guns need regulation and that the Confederate symbol of racism needs to vanish from American life.

Robert McWhirter is a practicing criminal lawyer and the author of “Bill, Quills, and Stills: An Annotated, Illustrated, and Illuminated History of the Bill of Rights,” forthcoming from the American Bar Association in August.

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Much of the modern argument on the scope of the First Amendment and freedom both of and from religions has to do about getting God power.


Getting God-Power for the army is still in play. Geoffrey R. Stone, The World of the Framers: A Christian Nation? 56 UCLA L. Rev. 1, 2–3 (2008), begins his article with but one example from the religious “culture wars.” An Air Force Academy graduate objected to the color guard at the Naval Academy lowering the flag to the cross at a ceremony because the oath he took was “to protect and defend the Constitution, not the New Testament.”


As for the irony of asking God for the power to kill God’s other creations, no one summed it up with bitter irony better than Abraham Lincoln in his Second Inaugural Address:


Both [sides] read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes.


Abraham Lincoln, Second Inaugural Address (March 4, 1865)

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All this begs the question: How much is God really behind human attempts to claim "God Power"?

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Rather, the political street gang called the “Sons of Liberty” was protesting tax unfairness. The modern Tea Party has it wrong.

The issue was that the British East India Company had a monopoly allowing them to import tea into the colonies without paying taxes. This really pissed off colonial importers like John Hancock who had to pay the taxes. So, they organized their gang to raid the British East India ships in Boston Harbor, Dartmouth, Eleanor, and Beaver, with cargos of tea and hard cider worth about $4,444,617.60 in 2004 dollars. Thus, the Boston Tea Party was not about being “taxed enough already” but not being taxed enough!

What they did not tell you in grade school was that only the tea ended up in Boston Harbor. The Sons of Liberty rolled the barrels of hard cider to whatever Sons of Liberty bar was near to dispose of it in a befitting way.  

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Who Killed Perry Mason?

 

The United States Supreme Court keeps pronouncing we have the right to an effective criminal defense lawyer. It just handed down Hinton v. Alababma, No. 13–6440 (February 24, 2014) holding that your criminal lawyer must be effective when selecting a defense expert. This followed Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010) that an effective criminal lawyer must advise you of the collateral consequences of pleading guilty and Lafler v. Cooper, 132 S. Ct. 1376 (2012) that you have the right to an effective lawyer at a change of plea hearing.

 

But what good is a criminal defense lawyer if no one believes in the presumption of innocence?

 

Every week for decades Perry Mason defended innocent clients. In Judd, for the Defense (ABC 1967-1969) Clinton Judd defend innocent people and confronted the social issues of the day. In the 1970´s, Owen Marshall: Counselor at Law (ABC 1971-1974) defended the innocent along with his assistant Lee Majors who became TV´s The Six Million Dollar Man. The Bold Ones: The Lawyers (NBC 1968-1972) featured Burl Ives as respected attorney Walter Nichols who hired two young brothers (Joseph Campanella and James Farentino) to defend the innocent. In Petrocelli (NBC 1974-1976), the client was certain to be convicted until Petrocelli would get evidence suggesting, but not necessarily proving, an alternative possibility, which the jury would accept as a reasonable doubt under the presumption of innocence.

 

 

But these shows are decades old. The last of them, Matlock – Perry Mason with a folksy twist – last aired in 1995, nearly 20 years ago. Today, the few TV shows about criminal defense attorneys are edgy, such as The Practice (20 Century Fox TV 1997-2004), with usually guilty clients providing the drama.

 

Prosecutors now rule TV. Law and Order and its numerous spin-offs present the prosecutor putting away the guilty against the odds. There are no innocents in the Law and Order world and acquittals are miscarriages of justice. The Law and Order franchise, as well as semi news shows like Nancy Grace (HLN February 21, 2005 (2005-02-21) – present), represent an entire industry based on the presumption of guilt. Although not about lawyers, the reality show COPS (Fox 1989-present) follows police officers as they arrest suspects red handed. Each episode starts with "COPS is filmed on location as it happens. All suspects are considered innocent until proven guilty in a court of law." The message: all defends are guilty and the presumption of innocence just gets in the way.

 

Perry Mason is dead.

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Books

Criminal Lawyers Guide to Immigation Law

Criminal Lawyers Guide to Immigration Law

By Robert J. McWhirter


The Citizenship Flowchart

The Citizenship Flowchart

By Robert J. McWhirter


At Risk Youth

At Risk Youth

By Robert J. McWhirter w/ J. Jeffries McWhirter, Benedict T. McWhirter, Ellen Hawley McWhirter

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