Tag Archives: due process

The Scales Of Justice

We are all familiar with “Lady Justice”–the statue of a blindfolded woman holding scales, intended to represent the dispassionate weighing of evidence leading to a just result.

The justice system has developed a number of rules governing how the “weighing and measuring” symbolized by those scales occurs. Rules against the consideration of hearsay, for example, are intended to exclude evidence that is essentially gossip–matters for which the person testifying cannot personally vouch.

Most people understand why courts disallow hearsay, or allow cross-examination. The reasons for other rules are less intuitive. As Paul Ogden has recently noted on his own blog, statutes of limitations fall into that latter category.

Ogden shares his concerns about a recent case brought by a woman against singer/songwriter Bob Dylan, alleging that he molested her when she was twelve years old– in 1965. 

Let’s think about this.

The “Me Too” movement ushered in a long-deferred accounting of the exploitation of women by men who were often in positions of power and/or privilege. “Me Too” has done a lot of good–but like so many overdue movements, it has had its share of excesses. The state of New York, in a recent effort to protect abused children (male or female), passed the New York Child Victims Act. Among other things, it temporarily expanded by decades the statute of limitations for child victims to bring civil lawsuits.  It also protected the identity of those bringing such lawsuits from disclosure–presumably, even the identity of plaintiffs who are now adults.

On the surface, it might seem that allowing individuals much more time to bring a lawsuit would advance justice. But as Paul points out, there are sound reasons for statutes limiting the time periods within which suits can be filed. As he notes, in 1965 “Lyndon Johnson was President, man had not yet stepped on the moon (1969), and seat belts were not yet required in cars (1968).  

As Paul also notes, extending or eliminating statutes of limitations can put accused people at a distinct disadvantage.  As time passes, memories fade, witnesses die, evidence gets lost, destroyed or simply buried by history.  Statutes of limitations exist to ensure that claims are litigated while the evidence is relatively fresh and the evidence proving or disproving the claim is still available.

In his post, Paul lists the specific allegations of the complaint and details the monumental difficulty of proving or disproving those allegations over 50 years later.

We can certainly debate the ideal time period within which lawsuits should be commenced, but declaring “open season” for such suits not only makes the achievement of certainty virtually impossible, it invites all sorts of mischief. Let’s say you were on a date in college, had a bit more to drink than was wise (but not enough to make you insensitive), and had consensual sex that you later regretted. As the years pass, you “remember” the incident a bit differently–perhaps as date rape. If your “assailant” comes into a lot of money later in life (perhaps through fame, perhaps through hard work, perhaps through inheritance–whatever), how tempting would it be to use the justice system to confirm your now-sincere but somewhat “adjusted” recollection of the event?

I am absolutely not suggesting that tardy allegations are all–or even mostly– manufactured. I’m sure they aren’t. And I have no idea whether the plaintiff accusing Dylan was actually abused or not. She may well have been.

The point is, after the passage of a certain amount of time, it is absolutely impossible to know. 

Achieving justice requires according fundamental fairness to both the accuser and the accused. The rules governing “due process of law” are meant to ensure that injured people get their day in court, and that unfairly accused people have the means to demonstrate their innocence. 

Being as fair as possible to both parties means requiring an aggrieved person to sue within a reasonable period of time. Admittedly, what constitutes a reasonable time is debatable.

Research has shown memory can be unreliable at pretty much any time, but requiring that litigation be pursued while any witnesses are still likely to be alive and probative evidence is likely to be obtainable–seems only fair. 

It’s the process that is “due.”


A Constitutional Ethic

At this point in the semester, my undergraduate class is encountering a concept called “the constitutional ethic.” (The term is an organizing theme of the textbook we are using, written by yours truly and colleague from Minnesota.)

So what do we mean by “constitutional ethic”? How does such an ethic differ from our usual understanding of ethical behaviors–i.e., honesty, truthfulness, adherence to the law? If the constitutional ethic is “over and above” personal ethics, in what way is it more or different? And how can I describe that difference in language that is accessible to undergraduates?

Here’s what I plan to explain to my class:

As we’ve been discussing, the Constitution is the basis of America’s legal system; as it has operated over the years, it has shaped a distinctive value system and legal culture, a framework within which we make policy and operate our common institutions. Elected and appointed officials take an oath to uphold that constitutional system, an oath that implicitly obliges them to understand its most basic and important characteristics. (For example, policymakers need to understand not just that we are a government of checks and balances, but why our system was constructed that way.)

At its most basic, adherence to the Constitutional Ethic requires public officials to act in ways that are consistent with these basic systemic structures, and to avoid acting in ways that would undermine them.

Some examples might “flesh out” the concept.

Respect for due process guarantees would seem to rule out drone strikes on persons–especially but not exclusively Americans–who have not been afforded legal process to determine guilt or innocence.

Respect for government’s obligation to treat citizens equally would seem to rule out efforts to marginalize GLBT people, or refuse them access to the institutional benefits enjoyed by heterosexual citizens.

Respect for one of our most fundamental rights–the right to vote, to participate equally in our democracy–imposes an ethical obligation to refrain from vote suppression tactics of the sort we saw during the last election.

Respect for the principle of free speech, protected by the First Amendment, imposes an ethical obligation to refrain from attempts to censor ideas of which we disapprove.

It really isn’t complicated. It’s just increasingly rare.