After eight people were killed in a New York terrorist attack, President Donald Trump referred to our judicial system as a “joke” and a “laughingstock.” He called for “punishment that’s far quicker and far greater than the punishment these animals are getting right now.”
He is right that a system could be designed to provide swifter and greater punishment. But that wouldn’t be the system our founders designed to protect all of us from government overreach.
Giving people rights slows down the system. And the level of protection we get — which determines how much we need to slow down — was largely determined when the Bill of Rights was adopted.
The most powerful explanation of this I’ve heard came in a 1968 television interview that CBS News aired in primetime with Hugo Black, then a justice on the United States Supreme Court. He responded to the accusation that the court’s decisions had restricted police and aided criminals.
Of course it did, Black explained: “I don’t see how anybody could deny that the Constitution says absolutely and in words nobody can deny, in the Fifth Amendment, that ‘no person be compelled in a criminal case, to be a witness against himself.’”
Convictions are harder to obtain when you can’t force the defendant to testify against himself. They’re also harder to obtain when you require that the case be proved to a jury, when you require that the defendant have the opportunity to be represented by an attorney, and when the government can’t search your home without a warrant. But our Constitution provides the right to trial by jury, representation by an attorney, and a home free from unreasonable search or seizure unless a warrant has been granted by a neutral judge.
When Trump makes statements like these, which could easily foment disrespect for the rights provided by our Constitution, other elected leaders — who like the president have sworn to uphold the Constitution — have a duty to explain the importance of those rights.
I first took an oath to uphold the Constitution as a judge in 1993. Judges have a solemn duty to enforce the constitutional rights that protect us all.
Unfortunately, though, when judges act on the individual cases that make up our daily work, we cannot generally defend in public the orders we enter. We must instead take every opportunity we can outside the courtroom to explain why the system works as it does and why the Constitution requires it. We also must insist that other elected leaders to do their part.
As Black defended the Bill of Rights, the interviewer countered by asking whether the court’s decisions hadn’t made it more difficult for the police to combat crime. Quite properly, Black would have none of it:
“Certainly. Why shouldn’t they? What were they written for? Why did they write the Bill of Rights? They practically all relate to the way cases shall be tried. And practically all of them make it more difficult to convict people of crime. … They were written to make it more difficult. And what the court does is try to follow what they wrote.”
Though imperfect, our system works well. Consider a terrorism case from the Midwest: the April 19, 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City that killed 168 people and injured more than 600. Timothy McVeigh was convicted for that attack in a trial that provided due process. To get a fair jury panel, the case was tried in Denver, but a closed-circuit broadcast allowed victims in Oklahoma City to see the trial. McVeigh was convicted and sentenced to death. He was executed by lethal injection on June 11, 2001.
That’s how our justice system works. It was swift enough. And there is no greater punishment consistent with our Constitution.
Steve Leben is a judge on the Kansas Court of Appeals and teaches at the University of Kansas School of Law.