First and foremost I consider myself a family law attorney. But every once in a while I cross over into what some might consider the practice of the dark arts; or what is more politely referred to as criminal defense.

Although not a major emphasis of mine, criminal defense work has given me a greater and much deeper appreciation for the Constitution and the Bill of Rights, particularly, the 4th and 5th Amendments against unreasonable searches and seizures and self-incrimination, respectively.

According to the National Archives, Congress first proposed the Bill of Rights - those first 10 amendments to the U.S. Constitution - in September of 1789. A concern existed that the Constitution, as drafted, would lead to "tyranny" by the federal government. Therefore, the States demanded a "bill of rights" containing "further declaratory and restrictive clauses" to outline our civil liberties and to prevent the abuse of power (whether against the States or individual citizens) by the federal government. Thus, on December 15, 1791, the freedom of speech, freedom of religion and the right to due process of law were born. On that date, the Bill of Rights was ratified by a two-thirds majority vote of all 13 state legislatures.

Over the years, certain of these inalienable rights, the articulation of which was meant to protect us from the excesses of government, have come to be associated with the protection of those convicted of crimes. Of course, those convicted of crimes lose these rights, the cost of having been convicted of a crime by a jury of your peers beyond a reasonable doubt. For the most part, these condemned persons must serve a period of incarceration or rehabilitative penance before their civil rights are restored.

The Bill of Rights is not there to protect the guilty but to protect the innocent and, in fact, all persons, equally. Our system of justice is based on the presumption of innocence. Until the people successfully rebut the presumption beyond a reasonable doubt, the government cannot treat its citizens like criminals.

May is Law Day month. Every year at this time the Sacramento County Bar Association (SCBA) celebrates a legal theme in conjunction with the Sacramento County Superior Court. In honor of this year's theme, "Separate Branches/Balanced Power," our esteemed editors have dedicated this month's Sacramento Lawyer to the U.S. Constitution and the Bill of Rights. In reading the various articles dealing with this topic, members may want to stop and ponder the affect of current events on our right to privacy and other constitutional protections.

I believe there will always be a tension between freedom and safety. I believe that the more you have of one, the less you have of the other. I think about how to balance those competing interests. The Bill of Rights was enacted to maximize freedom. How much of that we want to give back, in light of current events, should be the subject of very vigorous and public debate.

For my money, however, I like my freedoms. I like the fact that I don't have to worry about being rousted by the cops, having my door busted down in the middle of the night or having my telephone tapped. Besides, the way I figure it, the government already has enough information on me. They don't need any freebies without reasonable provocation.

Before concluding this column, I would like to take this opportunity to thank the Judicial Arbitration and Mediation Service (JAMS). In the last issue, I indicated the SCBA had hired a consultant from Arizona to come in and help us with our organizational structure, particularly as it pertained to long-range planning and development, in order to better serve our members.

It was only through the generous financial support of JAMS that we were able to retain the consultant's services and in February hold what I believe many council members thought was a very informative and productive workshop. As a result, on behalf of the SCBA, I would to thank JAMS for their support, particularly, Nicholas Machado, Business Development Manager, and Lisa Reynolds, Business Manager.

May / June 2006