Common Core: All Too Common Overreach – Guest Essayist: Cynthia Dunbar

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The three branches of the United States government are the Executive, Legislative and Judicial. The U. S. Constitution lays out the power and authority of each of these separate branches. It is important to note that the powers given to each branch are unique and separate and do not overlap or invade the authority of the other two.

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March 22, 2012 – Essay #24 – Amendment VI: Right to a Speedy Trial – Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

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Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The Sixth Amendment of the Constitution affords citizens of the United States the right to a speedy and public trial. It is important to note that this right, as every single right within the Bill of Rights, is not a right created by the civil government.  Rather, they are rights that are deemed to already exist preserved from governmental deprivation.  The belief in inherent rights possessed by mankind is the ideal behind the Magna Carta.

Chapter 40 of the Magna Carta of 1215 states  “We…will not deny or defer to any man either justice or right.” This shows that the ultimate concern was that no man be deprived of justice.  The inherent right all men possess to justice is at the heart of being afforded a speedy trial. It was thought that a miscarriage of justice could more readily occur in a system where men could be incarcerated for lengthy periods of time without the promise of a trial to present evidence of their potential innocence.  Without the promise of a speedy trial, men could ultimately be imprisoned for an undefined sentence of time prior to ever having been lawfully determined to be guilty.   The protections of the 6th Amendment have been said to be “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U.S. 116, 120 (1966)

While it is clear that the right to a speedy trial avoids lengthy periods of incarceration prior to determination of guilt, it is also clear that it serves other legitimate goals to ensure justice.  First, it minimizes the threat that mere public accusation could create in its absence.  Because one is promised a speedy trial, mere accusations do not hold the same threat since those accusations would be weighed upon a technical evidentiary standard at trial. Additionally, the preservation of the evidence itself can be seen.  The delay of a trial can easily cause spoilage of evidence and diminished memories of witnesses who could be called to testify.  Inaccurate or fuzzy memories serve to increase the likelihood of a miscarriage of justice.  Ensuring a speedy trial is a necessary tool in ensuring that accurate testimony and evidence are presented at trial.

So we know we are afforded the right to a speedy trial and we know why we are afforded this right.  But now the question is, “how to determine when and if this right has been abridged?” The courts have determined that this right becomes activated once a criminal prosecution begins.  This right then is afforded to the accused once the prosecution of a crime has begun. It has also been determined that the right does not require a formal indictment or charge; it begins once restraints are imposed by arrest. United States v. Marion, 404 U.S. 307, 313, 320, 322 (1971)

This inherent or unalienable right to justice which all men possess served to give direction to our Founding Fathers.  They saw that in order to practically achieve the greatest protection of this right, citizens must be assured the right to a speedy trial.  The only hope that a falsely accused innocent man has of regaining his liberty is the preservation of accurate testimony and evidence and a prompt opportunity to confirm his innocence.  This pursuit of justice is what lies at the heart of the constitutional right to a speedy trial.

Cynthia Noland Dunbar is an attorney, author and public speaker and is frequently seen on Fox & Friends.  A former elected member of the Texas State Board of Education, she currently is an Assistant Professor of Law at Liberty University School of Law and teaches on our Constitutional and common law heritage.

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May 10, 2011 – Article IV, Section 1 of the United States Constitution – Guest Essayist: Cynthia Dunbar, attorney, author, speaker and Assistant Professor of Law at Liberty University

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Article IV, Section 1

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The desires to both strengthen and unify their new country beyond what the Articles of the Confederation had accomplished and at the same time preserve the sovereignty of the individual states motivated the Framers in their drafting the Constitution.  This principle of federalism, or the governmental structure of coexistent sovereigns, necessitated the creation of the Full Faith and Credit Clause. Since each state would be an independent sovereign with its own laws and polices there would obviously need to be a method of guaranteeing that judgments rendered in one state would be recognized by the courts of all other states within the union. The Supreme Court of the United States (SCOTUS) in Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S. Ct. 229, 80 L. Ed. 220 (1935) reaffirmed this intent of the Framers that the individual states be “integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.”

Consequently, we see that the real essence of the Full Faith and Credit Clause is to ensure that valid judgments rendered in one jurisdiction can be uniformly enforced within alternate jurisdictions.  This prevents parties from having to litigate the same claim numerous times prior to execution of the judgment being recognized.  For example, if a court of competent jurisdiction in Alabama enters a judgment against John Doe for $25,000.00 to Jane Doe, and John Doe later moves to Arizona, Jane Doe would be able to execute the judgment against John Doe in Arizona without having to relitigate the entire case in Arizona.

The SCOTUS in Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 438, 64 S. Ct. 208, 213, 88 L. Ed. 149 (1943) said “we assume . . . that the command of the Constitution and the statute is not all-embracing, and that there may be exceptional cases in which the judgment of one state may not override the laws and policy of another.”  The court has referred repeatedly to “well-established” exceptions; however, they have never delineated a list of what constitutes a well-established exception.  For a judgment to be enforceable in a sister jurisdiction, it would have to have been a valid judgment in the original jurisdiction, one which would have withstood all valid legal defenses.  In other words, one could not enforce a judgment in an alternate jurisdiction on the basis of “Full Faith and Credit” where the judgment would have been unenforceable in the original jurisdiction.

During the constitutional convention the basic structure of the Full Faith and Credit Clause was borrowed from the Articles of Confederation and then expanded.  However, the ultimate source for this principle came from the uncodified common law, as did most constitutional and statutory provisions at the inception of our nation.  The reality of the importance and impact of the common law was reaffirmed by Justice Cardozo‘s statement that most constitutional provisions were “built upon a substratum of common law, modifying, in details only, the common law foundation.” CARDOZO, THE GROWTH OF THE LAW (1924) 136

According to Justice Story, the specific details of the underlying principles in the common law had, unfortunately, not been definitively ascertained.  He lamented this overall ignorance of this area of the law in his Conflict of Laws treatise of 1834.   “There exists no treatise upon it in the English language; and not the slightest effort has been made, except by Mr. Chancellor Kent, to arrange in any general order even the more familiar maxims of the common law in regard to it.”

What is pivotally important from a historical aspect is that the Full Faith and Credit Clause in no way created a uniform framework of laws.  It was merely a vehicle for enforcement of judgments, not a means of usurping state legislative authority and policy making decisions.  An obvious example of this is seen by our acceptance of differing laws within differing jurisdictions. Nobody would ever contend that the Full Faith and Credit Clause allows a citizen of Texas to avoid criminal prosecution in Missouri for driving 75 mph on an interstate that has a speed limit of 60 mph simply because the same interstate has a 75 mph speed limit in Texas.  The distinctions between state laws are numerous and many as is their right and prerogative.

Consequently, the more recent push to utilize the Full Faith and Credit Clause to force policy issues on dissenting states is constitutionally and historically unfounded.  In 1993 The Supreme Court of Hawaii alluded to the fact of an equal protection challenge to a state not recognizing a same-sex marriage.  The fact that states historically recognized marriages that were contracted within another state should not have been legally relevant or determinative for two simple reasons. First, this issue deals purely with a clear conflict of laws, not recognition of a court’s ruling or judgment through analysis of its laws. Second, the states uniformly recognized the marriages of other states because they did not present blatant opposing public policy issues pertaining to how marriage was defined that would serve to override their own laws.

In response to the dicta in the 1993 case, the United States Congress passed the Defense of Marriage Act, better known as DOMA, which not only defined marriage, it also granted to the states the express right to not recognize a same-sex union performed outside of its jurisdiction.  This Act has continuously been under attack and the current administration’s Department of Justice is even refusing to fulfill its obligation to enforce it.  In response, Congress has been forced to acquire special counsel at additional expense to taxpayers in an attempt to see the DOJ’s obligations fulfilled. Had there been a clearer and more historically accurate understanding of the scope and extent of the Full Faith and Credit Clause, this entire issue could have been avoided.  Unquestionably, Full Faith and Credit was never intended to impose legislative policy onto a competing jurisdiction beyond that expressed within an actual court ruling or judgment for execution and enforcement.

Cynthia Noland Dunbar is an attorney, author and public speaker and is frequently seen on Fox & Friends.  A former elected member of the Texas State Board of Education, she currently is an Assistant Professor of Law at Liberty University School of Law and teaches on our Constitutional and common law heritage.