In 2007, Harvard University Press published a remarkable book by Yale professor Bruce Ackerman, The Failure of the Founding Fathers (hereafter Failure). Best I remember, I read the book because I was startled by the sacrilegiousness of the title: Ackerman was violating the cultural canons mandating unqualified awe of the Founders and Framers by suggesting that, in writing the Constitution, they had failed in some way. (To say that the Framers failed because they compromised with the slave States to get the Constitution ratified is a truism. Ackerman had something else in mind, however.) He convinced me, though I persist in believing that the “perfect storm” of synergistic malfunctions that very nearly deadlocked the election of 1800, and that almost led to the dissolution of the Union
The following is a true story. It is a story that has been haunting me for the past 20-plus years. The reason it has been haunting me is because I may have been inadvertantly complicit in convicting a man of a serious drug charge by denying him the benefit of the principle of the presumptive innocence of a defendant in a criminal trial. I make no judgment as to the man’s actual guilt. That will be as it may. The point, rather, is that, in retrospect, I believe that we, the jury in the trial, followed the letter of what seemed in retrospect to be a very bad law and -- pursuant to that law -- presumed the man to be guilty, and that this presumption seemed to be “hard coded” into the relevant drug-possession law.
At the time, we believed we acted in good faith, because we believed o
I must admit it feels really strange to be channeling Alan Dershowitz, not only because Prof. Dershowitz is still very much alive, but also because, at least on some issues, I share his oft-reviled ability to act as an honest broker by disinterestedly considering constitutional issues from the standpoint of both parties to a dispute. But that is the position I find myself in while reading stories about and pondering the back and forth between Democrats / progressives and Republicans / conservatives regarding the matter of the confirmation of Supreme Court nominees Merrick Garland and Brett Kavanaugh. People on both sides of these controversies seem much more conversant with and concerned about the principles of tennis than those of the US Constitution. Moreover, there is about equal