Safeguarding the document that safeguards a nation

Eternal vigilance is the price of liberty. -- Wendell Phillips Liberty exists in proportion to wholesome restraint. -- Daniel Webster Those who expect to reap the blessings of freedom, must, like men, undergo the fatigue of supporting it. -- Thomas Paine

* John W. Hinckley Jr., accused would-be assassin of President Ronald Reagan, finds himself right in the middle of another controversy - but this one is over the ''insanity'' plea and whether it really serves justice. A federal judge ruled as his trial began in May that the prosecution must prove ''beyond a reasonable doubt'' that Mr. Hinkley was sane when he shot the President and three others. US District Judge Barrington D. Parker stresses that the burden is not on the defense to prove that their client was insane.

* A 16-year-old Massachusetts youth was recently convicted of beating a neighbor to death with a baseball bat. The prosecutor called the killing ''the most vicious'' he had ever tried. The defendant received a 15-month suspended sentence. He will have to report to a probation officer until his 18th birthday and receive court-ordered psychological evaluation. But he won't spend a day in jail. The judge explained the youth is protected from harsher punishment under juvenile laws.

* At Lorton prison in Virginia, a group of young black inmates - some of them repeat offenders - are taking a course in the Bill of Rights and ''due process.'' In particular, they are learning about their courtroom rights under the Constitution - with special attention to plea bargaining and admission of evidence under the so-called ''exclusionary'' rule. Georgetown University law students, who instruct the prisoners under the aegis of the National Street Law Institute, say their students are learning respect for the law. Others are concerned that the inmates are merely becoming more ''court-wise'' and will be better equipped to evade justice the next time around.

* US communities grappling with the drug problem were given some support recently when the US Supreme Court upheld a local ordinance in Illinois that bans the sale of drug-related paraphernalia to minors and requires the licensing of merchants who sell these devices to adults. However, the court still must rule on the constitutionality of state laws which prohibit outright sale of paraphernalia. Some observers point out that drug dealers have rights, too. ?

Is the Constitution an unwitting protection for lawbreakers? Are those who interpret the supreme law of the land doing so in too lax a fashion? Are the courts, in jealously guarding against abuse of the judicial system, actually encouraging it? In an effort to protect the rights of one individual, are the rights of others - perhaps even society itself - sometimes sacrificed?

Some critics of the contemporary American justice system answer affirmatively to all these questions. They lament the release of those accused (and, sometimes , convicted) of violent crimes on what they term ''technicalities.'' They oppose a penal system that stresses parole and rehabilitation instead of lockup and punishment. And they want tougher laws to deal with all criminals, regardless of age - including perpetrators of so-called ''victimless crimes,'' such as those who sell pornography and illegal drugs.

The federal courts come in for special criticism from these critics. In fact , some of the more extreme critics would pass a constitutional amendment to bar federal jurists from reviewing cases involving capital punishment or abortion, for example.

Others are alarmed at what they claim is a growing tendency of federal courts to preempt state and local jurisdictions on matters which might better be resolved ''at home.'' In fact, there now are strong advocates for relying more on states, rather than the federal Bill of Rights, to protect individual freedoms.

For example, one constitutional scholar calls for states to seize the initiative on the Equal Rights Amendment (ERA) by passing - in the form of state constitutional amendments - laws which ensure the equal legal status of women. (With a June 30 deadline for ratification close at hand, the federal ERA is still three states short of adoption.)

Other Constitution-watchers say that abuse or misuse of the constitutional process is not the greatest problem facing the American justice system today. Instead, they say, the problem is ignorance - a general lack of public understanding of what the Constitution and the Bill of Rights really means to the average citizen.

Several groups are trying to eradicate this ignorance, and are now waging ''learn-your-rights'' or ''know the Constitution'' programs. Among them are the American Bar Association, the Constitutional Rights Foundation, the Street Law Institute, the Taft Institute of Government, the American Civil Liberties Union, and Common Cause. Their rationale: What you do know will help you! The overdue US criminal code

Congress has been trying to pound out a meaningful federal code of criminal law for 16 years. Now, there are literally thousands of confusing, inconsistent, and obsolete criminal statutes. Experts say they need to be forged together in a rational - and constitutionally sound - document which, among other things, pinpoints the limits of federal power; classifies punishments in accord with severity of crimes; and reduces sentencing inconsistencies.

The major obstacle to the passage of a comprehensive code: strong differences between liberals and conservatives on emotion-packed issues, such as capital punishment, gun control, and the ''exclusionary'' rule which banishes illegally seized evidence from the courtroom.

On the right, hard-line conservatives are employing a variety of methods to bring the law of the land into line with their own views. Some are pushing for laws that would ''strip'' the courts of ultimate jurisdiction over the death penalty. Others are trying to load the proposed federal criminal codes - which already runs to 424 pages - with amendments that are totally unacceptable to civil rights groups.

One fiery issue that divides conservatives and liberals: whether the US should reinstate ''preventive detention,'' which was outlawed in the landmark Bail Reform Act of 1966. If the practice were renewed, those accused of certain crimes could be prevented from gaining release on bail - on the theory that might be likely to commit a crime before their trial.

Forecast for a comprehensive criminal code: cloudy, until conflicting ideological groups can find some common ground.

On another front, the debate over the so-called ''insanity'' plea is heating up. Just after John Hinckley's attempt on the President's life, Reagan aide Edwin Meese III told a group of California lawmen that murder trials are too cluttered with testimony of ''hot-and-cold running psychologists with both sides telling all the things that are wrong with the accused.'' Mr. Meese says he would like to outlaw this kind of defense.

Other experts raise broader questions about the role of psychiatry in the courtroom - and about how well this discipline is able to assess human behavior. A recent national television news documentary referred to several cases where the system may have been abused by those judged ''not guilty'' by reason of insanity.

Prognosis: Total rejection of the ''insanity'' plea is not likely. But changes in the law may well limit the use of this defense. Or, according to a recent American Bar Association assessment, criminal codes might be modified by, for example, allowing additional verdicts such as ''guilty but mentally ill.''(GBMI) GBMI now is being used in criminal cases in Illinois, Indiana, and Michigan. It allows for those who have mental problems to be punished as well as treated.State or federal government: Which has the power?

Constitutional scholar Ronald K. L. Collins insists that there is a ''quiet revolution'' taking place in the US, involving a reassessment of the proper role of state and federal governments. Two central questions have come to the fore: First, does the federal government, through the courts, usurp too much power from the states? Second, are the states really equipped to protect civil liberties?

Not only the political ''right'' but a wide array of others believe that the federal judiciary has overstepped its bounds. Edward T. McMahon, deputy director of the National Street Law Institute and a Georgetown University law professor, explains that the major social reforms of the past two decades have been accomplished in the courts.

''The Supreme Court has struck down such previously acceptable practices as segregation, school prayer, and capital punishment; has legalized such previously unacceptable practices as abortion; and has involved itself in such formerly sacrosanct areas as the reapportionment of state legislatures,'' Professor McMahon points out.

Meanwhile, federal court judges have also rendered decisions affecting other fields, such as environmental affairs, employment practices, medical malpractice , natural resource management, professional sports, and school, prison, and hospital administration.

US District Judge Rya Zobel of Massachusetts is a staunch defender of individual rights under the Constitution. Nevertheless, she questions to what extent federal courts should continue to revise decisions of state courts. And Judge Zobel says certain cases, such as some regulating land use, don't really involve civil rights and need not be decided at a federal level.She insists justice can often be accomplished just as well at the state and local level.The US Supreme Court's newest member, Justice Sandra Day O'Connor, makes a related point. In a recent opinion, she wrote: ''State courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover . . . new constitutional commands. In an individual case, the significance of this frustration may pale beside the need to remedy a constitutional violation.

''Over the long term, however, federal intrusions may seriously undermine the morale of our state judges.''

Justice O'Connor goes on to say that ''the states possess primary authority for defining and enforcing the criminal law. . . . Federal intrusions into state criminal trials frustrate both the states' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.''

Mr. Collins, a judicial intern at the US Supreme Court, suggests that in the present period of political conservativism in the US, there could be more checks on individual rights at the federal level. Individual states may then increasingly become the defenders of personal liberties, he says.

''My point is simply this,'' says Mr. Collins, ''that even if Reagan as president should appoint judges whose rulings prove compatible with his (conservative) philosophy, and even if those judges turn back the tide of the (Earl) Warren court, all is not necessarily lost. The people of Maryland, for example, could still turn to their state Bill of Rights (adopted in 1776) for constitutional protections altogether independent of those existing under federal law.'' States can flex their muscles

This principle is known as the ''adequate and independent state grounds'' doctrine. According to constitutional law, Collins explains, a state decision cannot be overturned by the US Supreme Court so long as it has an independent basis in state law and there is no abridgement of federal rights.

Further, states can go beyond the federal judiciary in protecting the rights of their residents.

Oregon attorney Jennifer Friesen would have them do just this - in implementing equal rights for women. Since the federal Equal Rights Amendment has yet to be ratified, Ms. Friesen urges states to adopt equal rights planks in their own constitutions. She points out that 16 states already have some form of constitutional provision along these lines. She admits that these ''guarantees against sex-biased discrimination'' have not produced uniformly just results, but says that fairer court decisions for women have generally been the result.

Mr. Collins, in a joint paper with University of California Prof. Robert Welsh, enumerates rights afforded by many state constitutions which are not contained in the text of the US Constitution. These include rights of the handicapped, rights of labor organizations, restrictions on use of nuclear power , a right to fish, and even a right of revolution (New Hampshire).

The concept of state courts setting their own standards - beyond that of the US high court - does raise some concerns. California Superior Court Judge Bruce W. Dodds says public confusion could result from two standards, and he urges states to act with restraint.

Judge Dodds says: ''These courts should take a close look and ask, Is this really necessary? Is this one that can't be decided any other way? Can't this be decided on a federal question and be uniform? Is their substantial justification to mandate that the state must deviate from the US Supreme Court position?''

But Stanley Mosk, longtime associate justice of California's State Supreme Court, sees the matter differently.''Our motivation in employing state constitutional grounds is not to show disrespect for the Supreme Court of the United States, nor is it to disagree deliberately with the court. Our purpose is to achieve uniformity and consistency in the opinions which we render.''

Of course, our opinions are subject to minimum standards set by the US Supreme Court. But above and beyond that, we believe we have the right to afford to the citizens of our state greater individual protections than the federal Supreme Court gives under the federal Constitution.''

Outlook: Many predict a slow move toward greater reliance on states to make key decisions involving individual rights. Federal involvement will come mainly when there is a clear constitutional question which impacts the freedoms of a large segment of the public. There is already a growing trend of federal courts to sustain decisions made by lower jurisdictions. Teaching the Constitution

While Lorton prisoners in Virginia are taking a hard look at the ''search and seizure'' protections under the Fourth Amendment, a group of student achievers from North Hollywood High School in California is savoring its recent victory in a statewide mock trial competition. The two groups would appear to have little in common. The former is poor, black, with little education and a history of breaking the law. The latter is mainly white, middle-class, educationally motivated and has had little direct contact with the law, save classroom study. Their common bond? The Constitution and the study of individual rights.

With the stamp of approval of the American Bar Association (ABA) - and using materials compiled by the Constitutional Rights Foundation and Scholastic Magazine, among others - a growing number of young people, in and out of school, are getting a crash course in US freedoms. The programs range from teen-age court visits and one-on-one interviews with judges and lawyers in Concord, Mass. , to primary lessons in ''fairness'' and ''circumstantial evidence'' in Longmont , Colo. In Compton, Calif., ''rap'' sessions are held at storefronts between ghetto youths and a panel of young wards of the California Youth Authority.

The message is simple: Obey the law and you will be much better off. Know your rights and respect the rights of others and you are more likely to succeed in society.

Does this approach work? Professionals in the field are cautious about over-interpreting results. But they don't hesitate to rattle off a chain of anecdotes about delinquent kids who came around as a result of these programs. And there is at least one study - conducted nationally among 323 high school students involved in law-related education - which indicates that these youth had a better self-image and were less violent than many of their peers. The assessment was done by the Center for Action Research and the Social Science Education Consortium. TMore than a 'parchment barrier'

Constitutional scholars, judges, lawyers, politicians, academics, civil rights advocates, and other interviewed for this series unanimously agreed that law-related education and the teaching of constitutional freedoms and individual rights is imperative in a democratic society. Many groups, including the ABA, American Civil Liberties Union, and the American Political Science Association, intend to use the forthcoming bicentennials of the Constitution and the Bill of Rights - in 1987 and 1991 respectively - as an opportunity to underscore the importance of the legacy of the Founding Fathers.

These groups see the Constitution as more than a revered, but static document. The American Enterprise Institute's Robert A. Goldwin is not impressed by mere enunciation of rights. He says Soviet citizens have this. ''(Usually) the longer the list, the stronger the guarantees, the shorter the rights'' says Mr. Goldwin.''

The written constitution of a nation must correspond to the way the nation is truly constituted. If it does not, it's protections of rights are a mere 'parchment barrier,' easily shredded by malevolent (or even by benevolent) forces,'' he explains.

And Rhonda Copelon, a youthful lawyer for the New York-based activist Center for Constitutional Rights, points out that it is up to the public to keep the Constitution vital. ''Everybody has a stake in the Constitution,'' she points out. ''We say why do we have to keep reinventing the wheel? Well, the fact is that now the wheel is in a different place.''

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