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THE FORGOTTEN IMPORTANCE OF CIVIL LIBERTIES

By JACOB G. HORNBERGER


One of the real tragedies in the struggle for freedom in the
United States in the latter part of the 20th century has been
the forgotten importance of civil liberties. While economic
liberty provides the focal point of most of the efforts of
freedom devotees, and rightfully so, it is vitally important
that we never forget that all aspects of freedom are
intertwined--if we lose one, we stand in danger of losing all
of them.

Advocates of economic liberty and limited government recognize
that the purpose of government is to protect peaceful and law-
abiding people from violence and fraud. If a person inflicts
direct harm such as murder, rape, or theft on another person,
he should be punished by the State for violating the rights of
others.

But many freedom devotees believe that the analysis stops
there--that criminals should be punished and that's all there
is to it. Many of them, especially those on "the
Right," view the procedural safeguards in the Constitution as
mere "technicalities" or "obstructions" whose design and
effect are to help criminals go free. They see these
safeguards as 18th century "horse and buggy" anachronisms
which are inappropriate to the more complex life of the 20th
century.

They are sadly mistaken. And they do not do justice to the
intelligence and insight of their American ancestors who
fought so hard to ensure that these restrictions on government
power were expressly enunciated in the Constitution.

Tragically, the forgotten, or perhaps abandoned, importance of
civil liberties characterizes many freedom organizations in
the United States which are devoted to achieving economic
freedom. Recognizing the vital importance of economic liberty,
and giving lip service to the Constitution and the Bill of
Rights, they scoff at the importance of civil liberties as a
part of freedom in general.

For example, a tremendous intellectual assault on civil
liberties took place last year in a series of articles
entitled "Crime and Punishment" by Robert James Bidinotto.
The assault was made more meaningful because the articles
appeared in The Freeman, a journal published by The Foundation
for Economic Education of Irvington, New York, an organization
long known for its principled commitment to economic freedom.

Concerned with ever-increasing crime rates in America, Mr.
Bidinotto argued that the solution, at least in part, turned
on the curtailment of the safeguards enunciated in the Fourth,
Fifth, Sixth, and Eighth Amendments to the U.S. Constitution.
Mr. Bidinotto suggested that if Americans just loosened some
of the strictures in the Bill of Rights which enabled so many
criminals to go free, the crime problem could be significantly
alleviated. Unspared from Mr. Bidinotto's attack were civil
liberties lawyers as well as such rights as trial by jury,
right to bail, right to counsel, protection from unreasonable
searches and seizures, and protection from self-incrimination.

Contrary to popular opinion and what Americans are so often
taught by their government officials, the procedural
safeguards in the Constitution are not mere technicalities to
protect the guilty. They are instead well-established
safeguards to protect the innocent--those who have been
falsely accused of a crime by their own government officials.
If Americans in the latter part of this century forget this
vital principle, they do so at their peril.

I used to be a civil and criminal trial attorney. I was often
asked, "Don't you lose sleep when you get guilty people off
the hook?" My answer was, "Never." In fact, of all the
criminal cases I handled--drug, murder, theft, assault,
embezzlement, fraud--I lost sleep for several weeks in only
one case. That was the case in which I believed, and still
believe, that I had lost an innocent man to ten years in the
federal penitentiary.

What many criminal defense lawyers recognize is what our
American ancestors recognized, but unfortunately what so few
Americans today do: that the government sometimes falsely
accuses a person of a crime. When that happens, such
fundamental rights as the presumption of innocence, legal
counsel, trial by jury, and cross examination lose all
semblance of "technicalities" and become the obstacles, the
obstructions, the entanglements which interfere with the
government's ability to convict a person who has done nothing
wrong. The reason I never lost sleep at getting a "guilty"
person off the hook (which actually happened only rarely) is
that I knew that if it was this difficult to convict a
"guilty" person, that meant that it was that much more
difficult to convict an innocent person.

I once represented a security guard for a national railroad
line. He was one of the most competent law enforcement
officers I had ever encountered. His credentials included a
commission from the State of Texas as a Special Ranger.

The railroad had been suffering a series of burglaries of its
railroad cars. One day my client caught a juvenile breaking
into a railroad car which contained the household goods of
some American family. The boy resisted arrest and, after a
struggle, was taken into custody by my client.

For various reasons, some of which we were convinced were
extra-legal, the prosecutor decided to charge my client with
assault rather than the juvenile for burglary and attempted
theft. It is this type of situation which creates the
sleepless nights for the defense attorney--the specter of an
innocent client, and a law enforcement officer at that, being
sent to prison for a crime he did not commit.

Fortunately, my client was acquitted. It is impossible to
understate my gratitude (and that of my client) in having the
benefits of the presumption of innocence, trial by jury (we
didn't trust the judge either), and the right to cross-examine
the juvenile.

In another case, I was summoned to a local hotel by a client
who was being accused of murder. His girlfriend had died after
falling from their tenth floor hotel room. When I arrived at
the hotel, the police were already questioning my client;
yet, having just lost his girlfriend, he was obviously in no
state of mind to be answering questions. I immediately advised
him to stop responding and asked the police to stop
interrogating him.

The reaction of the police?  Intent on not allowing the
"technicality" of the Fifth Amendment to impede the "proper
administration of justice," they arrested me for "disorderly
conduct," removed me for booking, and continued the
interrogation of my client. I at least had the solace of
believing that no court would admit my client's answers, no
matter how "voluntary," in any criminal proceeding.

The inquest ultimately established, and the district attorney
conceded, that the girl's death was a suicide, not a murder.
The grand jury did not see fit to even issue an indictment,
which of course, is simply a legal accusation. The truth was
that the man was innocent. (The truth was that so was I. I
hired one of the foremost criminal defense lawyers in the
United States who represented me for free--he had recently
suffered the same type of experience in a Miami court;
ultimately, after I refused a plea bargain, the prosecutor
dismissed the charges against me and apologized.)

To this day, when I hear an American judge instructing a jury
to presume the defendant innocent and not to convict him
unless convinced of guilt beyond a reasonable doubt, I take
great pride in being an American; in living under a criminal
justice system that towers above those in other countries
whose criminal justice system unfortunately is the ideal of
many American "anti-crime fighters"--a system of presumption
of guilt, pretrial incarceration without bail, non-jury
trials, involuntary confessions, and unrestricted searches and
seizures, all with the single-minded purpose of punishing the
guilty no matter what the cost to the innocent.

The Founding Fathers, and the American people of the 1700s,
were not naive. They knew that the procedural safeguards in
the Bill of Rights would result in the release of many guilty
people. But they were willing to accept that price in order to
ensure that innocent people were never, or rarely, convicted.
They fully recognized that which freedom devotees on the Right
recognized--that those who violate the rights of others need
to be punished. But what they also recognized is what those on
the Right so often do not: that sometimes people are wrongly
accused of violating the rights of others.

Mr. Bidinotto is right to be concerned about crime and other
crises which periodically beset us. However, historically it
is crises that have furnished the excuse for some of
government's most monumental assaults on human freedom. It is
during these times that we must be most on our guard to
protect our civil liberties, not surrender them. Otherwise,
freedom devotees, and especially those on the Right, will find
that economic liberty, which they have fought so hard to
achieve, has been sacrificed back to government under the
guise of the criminal law.

Mr. Hornberger is the founder and president of The Future of
Freedom Foundation, P.O. Box 9752, Denver, CO 80209.

------------------------------------------------------------
From the July 1990 issue of FREEDOM DAILY,
Copyright (c) 1990, The Future of Freedom Foundation,
PO Box 9752, Denver, Colorado 80209, 303-777-3588.
Permission granted to reprint; please give appropriate credit
and send one copy of reprinted material to the Foundation.