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Bombers, Bolsheviks and Bootleggers: A Study in Constitutional Subversion
By Leon F. Scully, Jr.
Publius Books
446 pgs., US$29.95

An attempted literary mugging

Reviewed by Jack J. Woehr
web posted July 2, 2001

Bombers, Bolsheviks and Bootleggers : A Study in Constitutional SubversionWhen you open a nicely laid-out hardbound book published by an ideological publisher in screaming red, white and black, you know you're off the uptown bus. That's not a bad thing in itself ... Simon and Garfunkle taught us that the words of the prophet are written on subway walls and tenement halls. But be on your guard. You're in a changing neighborhood where you might find love or you might get mugged, depending on whom you meet.

Bombers, Bolsheviks and Bootleggers is an attempted literary mugging. Author Leon F. Scully Jr. writes just like Karl Marx used to write, weaving a superficial historical summary into a thundering, tendentious, but ultimately entertaining piece of yellow journalism. It's worth reading, even if only to expand by one the reader's personal list of books which, despite the Constitution, it might be genuine fun to burn. That may not be the most commendable sort of satisfaction for a conservative supporter of the Bill of Rights to derive from his reading, but on the other hand, one doesn't get the chance every day.

Scully's thesis is emblazoned on the promotional news release for the book:

The Exclusionary Rule - A Fraud on the Fourth Amendment!
And on the back cover of the book itself it says:
Much has been written about the exclusionary rule the Supreme Court has grafted onto the Fourth Amendment which forbids, in a criminal trial, the use of evidence taken in an "unreasonable" seizure. Until now, however, the clandestine maneuvering which brought this rule about has never come to light.  The author, a retired lawyer, has taken the Supreme Court decisions that went into the formulation and development of the exclusionary rule, placed them in their historical context, and reached the astonishing but impeccably researched conclusion that none was a genuine case or controversy, honestly arrived at.
Now, better legal minds than Scully's have wondered aloud if perhaps elevating to a general principle the notion that illegally obtained evidence is hopelessly tainted wasn't taking a good thing too far, but reputable jurists have hardly gone farther than to respectfully dissent. As a principle, the exclusionary rule is stare decisus and has saved many a good man or woman from the loving arms of his or her helpful government. It's also responsible for freeing not a few scoundrels. American Founding Father Thomas Jefferson had rather 99 guilty go free than one innocent be punished, but today we more or less dismiss Jefferson as a troublemaker whose ethic is too rigorous for the slovenly mores of our times.

Be that as it may: in the year 1911, some labor union boys in the Midwest and California got busy during a strike and financed a series of bombings, some lethal, some extraordinarily lethal. Caught, convicted and mostly confessing at their trials, it was true nonetheless that much of the evidence in the case had been illegally obtained. Scully finds here the first breathing together, the first conspiracy of the lawyers, which led to adoption of the exclusionary rule in order that eventually the labor bombers could be freed on appeal, and so that subsequently Bolsheviks might be left loose to bomb America at will, at least those whose lawyers possessed a knack for proper court procedure.

No Bolshevik conspiracy is complete without a Jew, here Louis Brandeis, who became the first Jewish justice on the United States Supreme court after appointment by President Woodrow Wilson. Brandeis was certainly pro-labor, yet consistently and vigorously anti-Bolshevik, frequently rebuking labor for its excesses and bearing labor's animus for his condoning not the slightest tinge of lawlessness in the movement. No one would gather such a thing from Scully's work; Scully's Brandeis is a brilliant schemer who plots to unleash class warfare. After all, Brandeis mused in print that illegality by the unions was perhaps stimulated to some degree by the injustices suffered by the working men and women of early 20th Century America.

Warren Harding and Calvin Coolidge come due for criticism in connection within the "bootleggers" portion of the work. Administrations soft on prohibition allowed the exclusion of tainted evidence to become a tool of intramural power jockeying between Treasury and Justice. Here as elsewhere the text is rife in facile and unsupported characterizations and the fallacy of propositions presented as axioms. Scully writes not for the ages but for the true believer. What for the impartial reader would be the apex of a logical scaffolding is ground to the intended audience. Consider this bizarre revisionist view offered of the noteworthy "Scopes Monkey Trial":

What followed was no more a trial of a "case" or a "controversy" than the moving picture Inherit the Wind was an accurate portrayal of what really went on. Clarence Darrow and William Jennings Bryan were no more adversaries than were Spencer Tracy and Frederic March: they were just actors.
Well, yes, in the sense that all the world's a stage. In this case, we are subsequently informed, the scripting of both sides was the work of the American Civil Liberties Union. The ACLU plays in Scully's work a role analogous to that played by the Brotherhood in Orwell's dystopic 1984, the role of an undying conspiracy across the generations towards which straw man can be diverted the frustration and anger of a deceived populace.

In the course of the book we wander overseas to trace the connection between the communist revolution of Bela Kun in Hungary and the apparently regrettable "downfall of Germany" (by which Scully means the abortive and hideously suicidal Spartacist uprising of 1919). At home, a softhearted and beatific Attorney General Mitchell Palmer, under whom even women who distributed socialist literature received as much as 14 years in prison, works night and day to save the radicals from themselves, urging pardons left and right for them. Meanwhile, Justices Felix Frankfurter and Brandeis plot how to create a climate in which Palmer's own house may be bombed by a Bolshevik with impunity. Of course, the Soviet funeral for Big Bill Haywood can't be omitted from the tale, though by now we've ranged pretty far from the ostensible subject of the book, to wit, Fourth Amendment litigation.

Regarding Fourth Amendment litigation, Roscoe Pound (there's a great capsule appreciation of Pound at http://www.lexisnexis.com/academic/2upa/Aj/almPound.htm) whose career at law spanning five decades made him America's leading expert at criminological jurisprudence, wrote in 1914:

Immunity of accused persons from all interrogation, if they are firm, well-advised and able to give bail, is a most effective shield of wrongdoers. Knowledge of this tempts police and detectives and prosecutors to lawless modes of getting what cannot be had lawfully ... Lawyers of the last century were brought up on the doctrine of natural rights and the conception that law exists to secure these rights to the individual as against state and society ... Inevitably, they regarded protection of the supposed right of the accused to every jot of procedural advantage afforded him ... as a duty superior to protection from lawlessness.

Thinking  of common-law rights as declaratory of natural rights ... has led to bad results in the attitude of courts toward legislation. The courts have done more than enforce their ideas of economics ... in passing upon the constitutionality of social legislation ... For the training and bent of judges leads them to subordinate everything to principles and general rules ...

But we must not infer that the contribution of eighteenth-century legal theory is to be cast out utterly. ... Where the eighteenth- and nineteenth-century American were willing to assert rights and justice even at a sacrifice, today vindication of right and justice are generally, if not universally, coming to be secondary to the trouble and expense involved ... An active individual popular interest in justice, a fixed and constant popular determination to secure for everyone his due is a prerequisite of an effective legal system. The law may give effect to this determination. It cannot create it. An easygoing attitude toward right and justice bodes as ill for law as an easygoing attitude toward politics bodes ill for government and administration. [emphasis added]

from The Spirit of the Common Law : The Rights of Man

Plus ça change ... Pound, the contemporary, says it all for 2001 as well as for 1914. The exclusionary rule and its interpretation from decade to decade is but a bellwether of the dynamic interplay between the rights of individuals and the rights of society. That dynamic interplay is central to maintenance of order in ours, the most open of all societies. Scully, the modern, adds nothing more to the political puzzle than an entertaining conspiracy theory, and nothing more to jurisprudence than a insinuating posthumous attack on some of America's most brilliant and beloved jurists and public figures. His polemical style can hardly be recommended to truly conservative writers, who seek to shore up the validity of social institutions in the interest of peace and prosperity rather than tear them down in the hope of enraging the masses.

Jack Woehr of Fairmount, Colorado, has also written tendentiously in his time, and felicitates author Leon F. Scully, Jr. upon the publication of his book, which though suspect as history possesses great merit as historical fiction.

To order a copy of Leon F. Scully Jr.'s Bombers, Bolsheviks and Bootleggers : A Study in Constitutional Subversion, please visit Publius Books at http://www.publiusbooks.com/

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