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Bill Of Rights Has Lost A Faithful Friend

Robert Jordan Boston Globe

The death Thursday of retired U.S. Supreme Court Justice William J. Brennan Jr. prompted a review of his life, including clips from radio and television appearances that reminded us of Brennan’s strong liberal views and his considerable impact on our legal system and our society.

Brennan, who died at 91, will be remembered for his staunch support of affirmative action, women, and minority rights, and his “one person, one vote” doctrine, which resulted in more blacks being elected to office.

And Brennan was, as Steven R. Shapiro, the American Civil Liberties Union’s national legal director, described him, a “Giant for Liberty,” a man who “understood better than anyone that the defense of one person’s liberty was the defense of everyone’s liberty.”

One should never forget Brennan’s contribution to understanding the language of criminal law, particularly the term “technicality” - as in, “they let that S.O.B. off on a technicality. They let him get away with it.”

In that context, “technicality” is dismissed by the largely conservative legal community as some liberal phrasing that serves only to protect and coddle the criminal, not the victim. But for Brennan, nothing could have been further from the truth.

That was made clear during one radio interview Brennan conducted in 1987, an interview later described in the Washington Post by author Nat Hentoff.

Asked the interviewer: “Why do you let some of those creeps go? They do such bad things, and on a technicality, you let them go.”

Brennan, usually soft-spoken, raised his voice a few octaves and with controlled anger responded: “There you go. … You and the media ought to be ashamed of yourself to call the provisions and the guarantees of the Bill of Rights technicalities. They’re not.

“We are what we are because we have those guarantees, and this court exists to see that they are faithfully enforced. Those guarantees have to be sustained - even though the immediate result is to help out some very unpleasant person. They’re there,” he said, “to protect all of us.”

In essence, the so-called “technicality” that results in the release of people charged with serious crimes is, at heart, the Bill of Rights - the document that helps ensure freedom for all of us.

A “technicality” may be the fact that a police officer did not knock on the door of your house before going in, says one ACLU spokesman, adding, “It’s called due process.”

And, he says, often a “technicality” is blamed when a poor person who is being railroaded by authorities is later released. Such a term is rarely used when a wealthy person is released for similar reasons.

If this and other such “technicalities” were ignored by law enforcement, this nation could end up not with a police force that respects every individual’s rights, but as a police state that respects no rights at all.

Brennan’s rulings can be credited with protecting us from such developments; indeed, some of his rulings remain in effect even during these years of a conservative court.

As much as Brennan was admired and praised by liberals, he was also vilified by many conservatives for his views and opinions. Even the president who appointed Brennan to the U.S. Supreme Court, Dwight D. Eisenhower, wished he could have retracted those appointments. When asked if he made any mistakes during his presidency, Eisenhower said he made two of them, and both were on the Supreme Court - Chief Justice Earl Warren and Brennan.

Yet, his two “mistakes” have later proved to be among the justices who prevented officials from making such “mistakes” as denying individuals due process.

Warren, like Brennan, was also a firm defender and protector of individual rights. When, for example, a man accused of killing his father was found to have given an illegally forced confession, Warren ordered, “Let him go.”

Warren, Brennan, Thurgood Marshall and William O. Douglas reflected during their tenure the “Golden Age” not only of liberalism, but of individual liberty and freedom itself.

Brennan affirmed First Amendment rights when he wrote that public officials could not successfully sue a reporter or a newspaper unless they could prove that the newspaper had impugned them with “actual malice.”

He also extended the Fifth Amendment by stating that illegally obtained evidence must be thrown out of court and that state officials cannot compel individuals into self-incrimination.

Brennan wrote in one of his majority decisions, “So long as we are committed to protecting the people from the disregard of their constitutional rights during the course of criminal investigations, inadmissibility of illegally obtained evidence must remain the rule, not the exception.”

Other less liberal Supreme Court justices acknowledged that Brennan’s views about a legal “technicality” were correct. As Justice Tom Clark said, if the criminal goes free, “it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws.”

And nobody knew that more than Justice Brennan.


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