The message in New Haven the other night was loud and clear: “We’re from the federal government, and we’re here to help.” It was all I could do to remain in the room. I tried to believe them. But an instinct of mistrust overcame the good will the FBI agent and federal prosecutor tried to generate.
I was the third panelist at the Stetson Library. The topic was “Color of Law” violations. Federal officials were there as part of an aggressive community outreach program, trying to alert the community to federal resources only a phone call away. I am not sure inviting me to the event was a good idea.
The federal judiciary has declared open warfare on color of law prosecutions. It did so without an amendment to the Constitution, without an act of Congress, without anything other than a will to do so. It was a silent triumph of the very sort of judicial activism that conservatives decry, except where, as here, the activism serves the status quo. In such cases activism isn’t activism at all. It is mere sound jurisprudence. We will look back in shame at the fetish we have made of “originalism.” It is to constitutional law what fundamentalism is to the Bible: an atavistic way of reading a text and pressing it into the service of atavism. William Jennings Bryan and Antonin Scalia are of a claustrophobic type.
Qualified immunity, special pleading rules, bold assertions of federal power to dismiss actions without a jury. The next time you hear a judge complain about the “vanishing trial” hold up a mirror. “You want to see where trials went? Look.” Courts that once bustled with claims of official misconduct, with police officers and state actors sitting uneasily as a jury decided whether their conduct was justified, are now dark. The judiciary doesn’t want these civil servants to be accountable to their masters: it wastes too much time.
So listening to Special Agent Enthusiasm and Elliot Ness’ ardent sister boast about what the Justice Department is up to felt like being asked to bid on a property in a Potemkin Village. The Justice Department has always cream-skimmed, as any state prosecutor will tell you. I have my doubts about whether the federal government can be an effective player in the civil rights arena, at least insofar as police misconduct is concerned. The fact is that the Justice Department is a law enforcement agency. I just don’t see the foxes all that eager to protect We the Chickens.
“Why don’t you trust us? What have you got to lose?,” the prosecutor asked me at one point. She was earnest, a young woman who presents the smiling face of Justice without irony.
I see. When there is no where else to turn, trust the federal government to enforce the law. Take the power to press claims from the private sector and give it to willing federal hands. Did she not see the irony in this? Did she not see that such a claim is almost un-American?
There was a point in the nation’s history, at the founding, for example, when the federal government was viewed with suspicion. It was not the first and last resort of those in need. We used to trust one another and view the government with unease. Today, we fear one another and are asked to trust the government. I just can’t make that leap. I am sorry.
Federal civil rights actions are a dying class of claims. The judiciary killed it, and we let it happen. The sovereign is immune from suit, and can be sued only with its permission, a medieval piece of nonsense found no where in the Constitution. Now qualified immunity has been set lose on claims against state actors in their individual capacities. Juries are emasculated. All hail the Judiciary, the new Caesars too busy to give the people the bread and circus of trial. Comes now the Justice Department promising hope. All I hear is whistling into the wind. I still trust juries. I can’t summon the same confidence in federal officials. It feels wrong, un-American even.
Reprinted courtesy of the Connecticut Law Tribune.