Kane Scrutiny

This Tuesday, September 17, is the 226th anniversary of the ratification of the Constitution. It is also, by strange coincidence, the 26th anniversary of my swearing-in as an attorney. It's probably for this reason that I have a particular reverence for the blueprint of our democracy. That, and the fact that I got to toast both my law license and the Founders with some bubbly provided by my then-boss, the judge. Unfortunately, not every female attorney of a certain vintage (to remain with a theme) has the same sort of reverence for the Constitution. Yes, I'm referring to Kathleen Kane, Pennsylvania's Attorney General. Kathleen and I actually have a good bit in common. We both have Irish blood flowing through the veins. We both have a tendency to annoy people who disagree with us. We both have Temple roots, she having attended the law school and I being the only one in my family of four lawyers who didn’t get a degree from Owls' Nest U. And at a slightly more superficial level, we apparently both watched a lot of sitcoms in our callow, 70s youth because both she and I sport hairdos right out of the Brady Bunch. But there is at least one important area in which Kathleen and I part company, and that is our view of what the Constitution demands. To me, that marginally important decision, Marbury v. Madison, drew a bright line in the sand between the duties of the judiciary, and everybody else (including attorneys general.) In other words, judges determine what the law is, and whether it is constitutional. Everybody else has to either “suckus it uppus” (legal Latin is so much fun) or petition the courts or legislatures for change. Kathleen decided that she disagreed, and refused to defend Pennsylvania's Defense of Marriage Act because she, in her omniscience, feels that it is "unconstitutional." This is old news, of course, and I probably wouldn't have been thinking of the AG were it not for another brazen move that she made this past week. In response to public pressure, mostly from environmentalists who are very good at cutting away pounds of flesh from every functioning business in the country, Kathleen decided to file criminal charges against XTO, a Marcellus Shale natural gas driller. In July, the company settled federal civil charges in the wake of the illegal discharge of toxic wastewater by paying a fine and implementing an improved plan for waste management. But that wasn't enough for Kathleen, who saw this as an opportunity to tramp even more firmly upon the ever-more-inevitable grave of Governor Corbett, a big fracking booster. She announced this week that she was going to file criminal charges against the company even where there was no evidence of criminal activity, or the intent to commit a crime. Kathleen's office responded by saying that she didn't need to show "intent" in order to go after XTO. This should be news to the Founders, who devised a little thing called due process of law. And while there are some cases where strict liability subjects someone to criminal charges (for example, statutory rape) it's hard to see how this is one of them. Unless, of course, you think that trying to attract businesses to a state with an already depressed economy is a crime. Then again, Kathleen doesn't seem to worry too much about constitutional niceties.