When Did We Become So Complacent About Our Constitutional Rights?

In recent weeks, a theme has been emerging to me as I experience life here in Northeast, Ohio -- have we completely forgotten about our heritage as a "free" people? Have we become so lazy a citizenry that we've abdicated our responsibility to stand up for our constitutional rights; or to even understand what they are and why they are important? I'm beginning to think we have, and it's starting to tick me off.



Jess Hess noted it recently here in relation to an "arrest" of a shopper at Circuit City in Brooklyn, Ohio (which, to my mind, has always been a bit of a police state). Note well, too, the important and shocking comment to this post by Gloria Ferris regarding lack of understanding of where citizens can collect signatures for a referendum petition.


And what about the bizarre reaction to the recent case in the U.S. District Court, Northern District of Ohio, (known as Mikaloff) where Federal Judge James Gwin ruled that Ohio's law restricting convicted sex offenders from living within 1,000 feet of a school or daycare is unconstitutional as applied to persons who were convicted prior to that law's enactment?


The radio call-in talking head/law-and-order types are up in arms because of this ruling. The PD ran a story that only makes a fleeting reference to the constitutional freedom that is at stake in the case. (I'm not surprised as the only constitutional right that is held sacred by the MSM is located in the First Amendment to the Bill of Rights.)


All the print media articles I read online were apparently from the same press release or wire service, because they were nearly identical. Each of them, correctly, focused on the fact that the case hinged on the legal question of whether the law imposing the 1,000 foot restriction was designed for punishment of the convicted person or for the protection of the citizenry. Not one of them, however, paid any mind the underlying constitutional principle in play; to wit: the US Constitution's prohibition against ex post facto laws. This is the real issue of the case, not whether something is punishment.


Now, for the record, I have two young children, both girls; I get regular e-mail notifications from the Cuyahoga County Sheriff's Department when sexually oriented offenders move within one-mile of my home. I am a concerned parent and I am sympathetic with all other parents about the need to protect our children from harm. Having said that, I am not willing to throw away my fundamental constitutional rights, that, by the way, literally hundreds of thousands of people have volunteered to or been drafted into giving the last full measure of devotion to obtain and defend for me; for a law that may or may not provide any real protection for my family.


So, what is the constitutional prohibition against ex post facto laws; why do we have it; why is it important to protect?

It was included in the Constitution by the framers along with a prohibition on bills of attainder to guard against a tyrannical government passing specific criminal legislation directed at specific people or groups of people. It's companion, the prohibition of ex post facto laws prevents the government from making acts illegal after they were already done even though they were not illegal when they were done AND for increasing the punishment for illegal acts after the act had been committed.

Alexander Hamilton, in arguing for ratification of the Constitution by the states, said the following about bills of attainder and ex post factolaws in Federalist #84:

. . . the prohibition of ex post facto laws . . . are perhaps greater securities to liberty and republicanism than any [the Constitution] contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.

It is important to assert this constitutional protection for liberty and against the possibility of a tyrannical government even if it means curtailing a law that seems intuitively good, like the prohibition against sex offenders living within 1,000 feet of a school. Why, you ask? Because, if we erode, even slightly, our constitutional protections against a tyrannical government, we open the door to the possibility of abuse of such a legal precedent that will lead to ex post factolaws that are not so innocuous.

And when one considers the lack of any real protection that the 1,000 foot restriction provides, as detailed by Judge Gwin in his ruling (described below) one should be very concerned about conceding even a sliver of our constitutional protections of liberty for the benefit of that law.

Judge Gwin, correctly I think, points out some real problems with the law, when he writes:

Defendants assert the residency restriction is rationally related to the non-punitive purpose of protecting school children from sex offenders near schools. The restriction does limit the access and opportunity that a sex offender will have in re-offending against a child walking in front of his residence to or from school. Yet, it only restricts a sex offender's place of sleep. It does not limit the offender's ability to occupy a residence in proximity to the school during school hours. It does not limit the offender's ability to go to any public park or drive on any street within 1,000 feet of a school. And it does not limit the offender's access to children in the offender's own neighborhood.

So, how much protection does this law really provide? And, is the protection it provides worth enough to justify eroding one of our fundamental constitutional protections of liberty against tyranny? I think no.

Judge Gwin, I think, also correctly answers in the negative with one of the most well-reasoned and legally correct opinions from the Northern District of Ohio that I have seen in a long, long time.

We must also not lose sight of the fact that Judge Gwin's ruling only applies to people who were convicted prior to the enactment of the restriction. It in no way affects the application of the law to folks who received the sex-offender designation after the law was enacted. So, to the extent the law works, it will work with regard to more recent convicted sex offenders, which makes the most sense anyway.

His Honor, by-the-way, and unlike the paid-for justices of the Ohio Supreme Court (see prior post here), is a lifetime presidential appointee and his ruling in this case, legally correct, though confounding the impulses of masses, is living proof of the need for a truly independent and appointed judiciary.

Judge Gwin's ruling gives me hope for the legal system and for the profession in which I practice.

CEP