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Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and Douglas over the application of the First Amendment to potentially criminal contexts in Debs, Dennis, and Terminiello. These debates reached across courts and across generations of jurists. The Alien and Sedition Acts, McCarthy's use of the contempt statutes, and seminal Supreme Court cases such as Miranda v. Arizona and Gideon v. Wainwright involved historic applications of criminal law. But they were also about much bigger issues regarding liberty and the relationship between government and the individual in democracy. Likewise, the “Scottsboro boys” rape case, Powell v. Alabama, is a right to counsel case, but it is also a touchstone moment when the societal ship began its long turn from lynch law to rule of law. And that is why one-hundred percent of Americans support the war on terrorism, but there is less agreement on the whether, how, when, and where of military tribunals. This is criminal law, but it is also about constitutional values and duties.

Law is incremental. It adds up. And if you believe as I do in the importance of criminal law to our society, every act we take deserves our best effort draped in dignity. Criminal law is integral to national security, not a separate stove pipe; in pure statistical form it deeply affects the lives of many in lasting manner; it tells us a great deal about the human condition; and it defines who we are as a constitutional democracy, which Constitution we have sworn to uphold and defend.

Publication Citation

174 Mil. L. Rev. 125-142 (2002)