University of Arkansas at Little Rock
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Generation Gaps and Ties That Bind: Constitutional Commitments and the Framers\u27 Bequest of Unamendable Provisions
Get PDF“We the People.” That phrase conjures a vision of present-day U.S. citizens taking part of a continuous enterprise of constitutional development, each succeeding generation stepping into the shoes of those who framed and ratified the Constitution and, as the new performer in the role of “We the People,” reinterpreting a centuries-old role. Like those who created the role, we have power to modify the Constitution. But is each succeeding generation really allowed the same creative and expressive power to alter the role, to amend the Constitution?
The subject of this Article, in general, is the relationship between “We the People,” who “ordain[ed] and establish[ed]” the Constitution, and we the “Posterity” to whom the “Blessings of Liberty” were to be secured. The rules for amending the Constitution, and any limitation on amendment emplaced by those rules, are central to relationships between generations of the American citizenry. The more particular topic of this Article is the special case of unamendable provisions as ties that bind and the gaps that separate generations of We the People. Such permanent, unalterable provisions are the ties that bind generations inflexibly to one another; yet such provisions create the widest of gaps between the sovereignties of those same generations
Not Fit to Be Tried: Due Process and Mentally-Incompetent Criminal Defendants
Get PDFA mentally-impaired accused who cannot comprehend the nature of the proceedings or assist his counsel in presenting his defense to the criminal charge cannot be tried as a matter of due process of law. In Jackson v. Indiana, 1 the United States Supreme Court held that due process concerns also bar the never-ending jeopardy resulting from an inability to restore an impaired accused to competence for purposes of proceeding to trial. When an Arkansas circuit court ordered the dismissal of pending criminal charges against an impaired accused who could not be restored to fitness for trial, the Arkansas Supreme Court, in State v. Thomas, reversed the dismissal order, returning the defendant to a potential state of unending jeopardy. In failing to implement the Court’s directive in Jackson, the decision in Thomas leaves the state’s trial courts without a clear remedy for addressing the problems posed by mentally-impaired defendants who will never recover, and also leaves those defendants in the abyss of never-ending jeopardy. The focus of this article is the Thomas court’s failure to address the proper remedy when the trial court finds that an impaired defendant cannot be restored to fitness to proceed within a reasonable period of time.
During its 2017 session, the Arkansas General Assembly adopted new procedures for conduct of mental evaluations relating to an accused’s fitness for trial or criminal responsibility in commission of the offense. The amendments bear on issues addressed in this article and are discussed briefly in the Legislative Update which follows
