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Tuesday, August 17, 2004

Quis Custodiet Ipsos Custodes?

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I am frankly a little stunned by Lauderdale County officials in Tennessee. Apparently they required a law suit and a federal judge to tell them that you can't throw people in jail for not paying debts. In a recent decision a federal court reminded Tennesee about the U.S. Constitution, with which they were only vaguely familiar before this decision. And the plaintiffs were awarded $1000.00 in damages. That is the interesting part, in my estimation. How did we decide that the blatant violation of a constitutional right is worth a grand?

This was a question that I entertained often in remedies class as well. I'll bet it comes up this year in constitutional law too. What is the remedy for the violation of an intangible right? Say the right to privacy? Or the right not to be thrown in jail because you can't pay court costs? Or, better yet, the right to be free from unreasonable searches and seizures?

From a societal standpoint, this is a tough question. Afterall, when the Tennessee government is required to pay this $1000. damage award, where does the money really come from? The people of Tennessee. On the other hand, if you are the person whos right was violated you place a higher value on it. Since it was YOURS.

In this particular case I am concerned that no one in this system bothered to point out the problem with jailing, and threatening jail time for, debtors. Is it really possible that all of the people who had to be involved in this conduct had no idea that they should not be doing it? Tennessee had outstanding warrants for the arrest of debtors dating back to 1997. That is a number of years where people were subjected to this without complaint. Do members of the general public need to understand their constitutional rights well enough to KNOW when to complain in order to be afforded any protection?

I think the burden of knowing the bounds of the law should fall on the government, here Tennessee, to assess its own practices. The government should be aware of what is, and is not, constitutionally permissible. The proper place for that responsibility lies with the powers that be.

However, in light of the obvious fact that Tennessee either could not or would not shoulder that responsibility, we have to ask ourselves Quis Custodiet Ipsos Custodes? (That posits: Who will guard the guards?) Isn't this the ultimate question of life, the universe and everything? (For those of you who recognise the words of Douglas Adams -- I miss him too)

With any kind of power comes responsibility. The power of a parent over a child, a teacher over a student or a government over the people it governs. If the folks weilding the power are irresponsible, its is the powerless who suffer.

There is no easy answer to this question. Ultimately it falls to the individual people who make up the government to maintain their own integrity and to people who understand the boundaries to hold the line. Sometimes you have to speak up for what is right, even if it's not your problem.

I think that the violation of a constitutional right is INVALUABLE. The mere lack of pecuniary loss, actual quantifiable harm, or damage does not render the violation harmless. Further, society as a whole suffers this harm each time an individual right is violated and it goes unchallenged, uncompensated and unremediated.

I know that this doesn't make it any easier to place a dollar figure on the right and say "It's worth this much exactly." What I hope is that this causes you to value these rights, for yourself and for others. Then the answer to our question, Quis Custodiet Ipsos Custodes, will be you and me.

We will guard the guards.


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