Today’s swan song post (the posts began here) is about boots walking all over political dissidents. Of which I, bjb, am one. As are most pro-lifers – especially given the recent churning of the political seas.

It is ironic that my detractors attempt to devalue me because I allegedly violated a handful of poorly crafted ordinances and lesser laws while they often minimize our most important organic documents, the very foundation for our entire legal order.

Here is an interesting hypothetical: Which would strike more at the root of our social order, me engaging in principled civil disobedience to save prenatal human life or some government bureaucrat (or government contractor) engaging in ultra vires acts in order to protect some state’s legal system from my admission – based, in large part, upon my resolve to give uncompromised voice to my religious ideology and/or chivalrous concerns?

We live, thanks be to the Founders, in a constitutional republic. King George’s boots were unable to trample the rights of Americans after 1776 … but tyranny never sleeps. Those same monarchical boots fit neo-fascist feet just as well.

A constitutional republic is defined as a system in which the political power resides in elected representatives of the people, elected official who must govern according to existing constitutional law that limits the government’s power over citizens.

A constitutional republic differs from a pure democracy in many ways. While we elect those who represent us in the republic via the democratic vote, we do not pass legislation, decide legal causes of action or do away with unwanted dissidents via democratic vote. I thank my lucky stars for the latter, for given the power of the media those of my ilk could be put up against the wall by popular vote – or at least voted off the island. (It appears that such may yet be my fate in the land of my birth.)

I have no doubt as to my fate, and the fate of most of my compatriots, should Planned Parenthood and their comrades in the media succeed in rendering this nation into a social order in their own image and likeness. Of course, it looks like such might be the plan of the new administration. Click here for a secret government memo. Click here for a Hoosier tie-in to the subject matter of that memo.

As Mel Gibson cynically asked in The Patriot, is it better to exchange one tyrant 3,000 miles away for 3,000 tyrants one mile away?

Our Founders wisely created constitutional republics designed to keep up from the tyranny of 3,000 neighbors and the ideological biases of government bureaucrats.

We elect those who are to represent us, that is rule over us, and then tie their hands so that they can act only as the federal and state constitutions permit. They are supposed to delegate this power to govern only to those who pledge to respect the constitutional limitations of their office. We are, on our best days, a nation of laws and limited government. But many fear that our best days are behind us, and a new breed of governmental bureaucrat now exists, a generation that respects no governmental bounds.

Our federal government is (make that once was) defined by the federal constitution. The original thirteen states refused to pledge allegiance to the power created by that social contract without some assurances that they would not be forced to give up their basic identity as sovereigns. Those assurances are the original Bill of Rights. They originally operated only against the federal government, protecting the citizens of the states and the state governments from federal interference.

One of the byproducts of constitutional law attorneys, and especially those conlaw attorneys representing religiously motivated clients, has been the Incorporation Doctrine. This doctrine has moved the SCOTUS (Supreme Court of the United States) to apply the federal Bill of Rights to the state and municipal governments as well, including those with whom they contract for services.

Every worship manual that I edited while active in the Rescue Movement contained more than a smattering of case law and constitutional language. We realized that it was our bulwark against arbitrary government and police harassment. We found that it worked like garlic against vampires when government actors drunk on their own power attempted to hammer into submission the unbending nails. As I stated yesterday, the pro-life movement is one of the most vibrant centers of civil dissent in the nation. We were breathed into life by the raw judicial power of Roe v. Wade, a decision of the SCOTUS that violated more than a few tenets of constitutional law and federalism. We tend to know more about constitutional law than the average bears. We simply have to.

We are the Freedom Riders of the Age of Obama.

Not everyone can appreciate constitutional lawyering. Many view arguments based upon the Fourth and Fifth Amendments as suspect, and many on the Right decry “technical arguments” that result in the exclusion of evidence under the “fruit of the poisonous tree” doctrine. Liberals tend to celebrate the holding of Miranda v. Arizona and the vast protections that decision affords criminal suspects.

Liberals also tend to celebrate constitutional law cases brought by the ACLU and other such Leftists – cases that seek to remove every vestige of Christianity from the public schools, public ceremonies and public squares. But liberals are often found oh so hypocritical when it is the Right who is found advancing their agenda via constitutional litigation. They seek to minimize or even decry constitutional cases (such as Bray v. Alexandria) when it is their ideological ox that is gored. Click here for one such example of such pro-abortion hypocrisy in a Yale publication.

Shifting gear oh so subtly, I have recently received yet another report on my past acts and present psyche from one of the Indiana bar’s handpicked experts. This state-affiliated counselor noted that “[Mr. Brown] has been clever and legally aggressive in fighting his charges so he has had few, if any, convictions.”

I must concede that my “cleverness” was not all that profound. I did end up with a conviction or two. Aggressive? What, for wanting to win cases brought against me? I would think passivity would be a concern in such instances, not assertiveness. (Assertiveness being the most polite synonym for the loaded term “aggressive,” which was probably employed to make me sound as scary as possible.)

Aggressive? Heckfire, I merely raised basic constitutional arguments when arrested or was otherwise detained due to my religious expression. Had I done so after arrests at an AIDS Die-in or to save baby seals or while standing against the Iraq War I would probably be regarded as most virtuous by the Left. Their ox would be stroked rather than gored.

I stood on constitutional principles to defend my standing in the doorway of a late termabortionist and the Left will never forgive me such trespasses against the abortion industry.

I cannot give Randy Terry, Pat Mahoney or the others in the leadership of Operation Rescue credit for encouraging constitutional lawyering by rescuers in the courtroom. They simply did not. They were often quite ready to cut deals through high profile attorneys. This tactic was quite shortsighted on their part and probably did as much as anything to short circuit the Movement. Such lessons should be studied and should inform any future tactics, just as the Southern Christian Leadership’s strategies are studied. The Rescue Movement racked up an impressive 50,000 arrests over a few short years, many more than the race based civil rights movement in twice the time. Imagine if every arrest under Operation Rescue’s banners had been handled as a constitutional challenge?

I will start this study of tactics by presenting my own cases in Wichita from 18 years ago. I was arrested five times in about as many days while worshipping in the area surrounding the “facility” of late term abortionist George Tiller. He kills inutero children well into the third trimester. Operation Rescue’s attorneys worked out a sweet compromise with the city — pay $25 per arrest and all would go away. I did that once, but it felt like, well, a compromise. Rather than taking the deal that OR worked out through its attorneys on the remaining four, I pled not guilty and showed up in court. The prosecutor immediately offered me a sweet deal if I would only plead guilty to two of the four. I turned him down and he immediately dropped one of those anyway – he did not have the necessary police officers present. Nice bluff, glad I called it.

I then faced two trespass charges and loitering charge, all three of which could have been discharged for a mere $75. The trespass charges were the more serious; the loitering charge was akin to jaywalking. (Not that there is anything wrong with that.) I was tempted to not roll the dice on the more serious of the three, but just could not stomach another compromise. As the prosecutor and I discussed these two cases before trial (I had not yet attended law school, but that did not stop me from having a fool as a client) I asked how he planned to prove that I was actually on the clinic’s property when the trespass charge was leveled against me. I was prepared to testify that I was not on Tiller’s property, but in the public area adjacent to it. (As I was.) The prosecutor admitted that short of my admission he was having some problem with his evidence. I told him that even if he prevailed I would seek an appeal and request a trial by jury, which was my right. He then decided to place all of his eggs in one basket and merely go forward with the loitering charge. (It allowed me no trial by jury.)

I went from four charges that Operation Rescue advised me to barter away for $100 to one charge by merely asking for the process that was due me as an American citizen.

I then gave the judge my opening statement, which was somewhere between Billy Graham and my best Perry Mason. I threw out a few federal constitutional law cases, preached America’s eminent doom due to the rejection of our Christian heritage and then called upon the municipal court judge (who was not even an attorney) to repent for the crime of Roe v. Wade on behalf of all of this brothers on the bench. It certainly felt Spirit led.

His honor was incensed and gave it all back to me in spades, his face flush with anger. His only regret, he said, was that he could not order me incarcerated for trespass since the city had chosen to go forward only with the loitering charge. His honor threw the book at me – a $500 fine. I took it all in stride, calmly notifying him of my desire to appeal his ruling. I paid $100 in refundable appeal costs and got a docket date in the county court system.

When I rose for a reprise in a more professional setting the state court judge (an actual legal professional, how refreshing) asked me if I would consider stipulating to the facts of the loitering charge and arguing my constitutional case on paper. I took him up on the gentleman’s wager. He used none of the legal argumentation that I spent so much time authoring, instead penning a simply brilliant 13 page decision that was based, in whole, upon the Kansas constitution. Judge Paul Clark’s opinion held that all of the Summer Mercy arrests in Wichita that were processed against the city’s loitering ordinance were violative of the Kansas constitution and must not be continued. This case then not only mothballed Wichita’s prime ordinance for threatening pro-lifers with arrest, it stood for the proposition that more than half of the about 2400 arrests made in Wichita during the Summer of Mercy were violations of the constitutional rights of the religiously motivated protesters!

The City of Wichita was incensed and immediately noticed up their appeal to the Kansas Supreme Court. They, no doubt, wished that I had taken the sweet deal to “make it all go away” that had been offered to, and taken by, most all of my fellow 1600 arrestees that summer.

To make a long story short, the city lost. They got spanked by the High Court for filing their appeal one day out of time. Quite the embarrassment given that their briefing was about an inch thick and I did not even file a brief! (Not very legally aggressive of me, now was it!) The case is The City of Wichita v. bjb, 253 Kan. 626 (1993). Click here for more details.

So how did I do? Was I all that clever? Was I all that aggressive? No, not really. I merely stood on faith and constitutional principle and left the results up to Heaven. Proverbs 3:5&6 has guided me since my tender years and guides me still. My counsel to my fool of a client also lined up well with the advice of one of America’s most respected and “legally aggressive” community organizers:

One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Not to mention being clever and aggressive!

In this swan song #5 I bequeath the above analysis and this advice to those who might follow in my footsteps: Know your constitutional rights. Know them, state and federal, backwards and forward. Know them and stand on them, even if your detractors accuse you of being too “clever” or too “aggressive.” And if you take a stand that falls under the ambit of the Bill of Rights, then be “aggressive” in defending yourself by drawing upon that great repository of the Founder’s wisdom. They are among your only protectors when the goose stepping enforcers of political correctness decide that it pleases them to walk all over you. This is most germane because I fear that those may be jack boots that I hear coming our direction. I know that they have stomped all over me. True patriots usually bear such boot scuffs. Click here for details.

 

This entry was posted on Tuesday, January 13th, 2009 at 1:12 am and is filed under Michael, Swansong. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.