I don’t think too many people have given courts or judges much thought other than hoping that they never find themselves inside a courtroom, facing a judge, being on the wrong side of the law. In fact, if a person has never served, or been called to serve, on jury duty, the closest they’ve come to seeing a courtroom is watching Judge Judy on TV.
Most people do not pay much attention to courts, or judges, unless the Supreme Court is hearing a particularly controversial case, or if there is a vacancy in the court and a sitting president is deciding whom to nominate to fill that empty seat on the bench.
If I were to ask what the purpose of courts was, I wonder how people would respond. Would they say, to put people in prison, to enforce the law? The purpose of courts can be summed up in five words; to ensure justice is served.
I don’t want to spend a great deal of time discussing the history of our court system, just know that it has as its roots English Law going back to when Knights would hear arguments over supposed infractions of the law and then render a decision regarding guilt or innocence.
The 6th Amendment to our Constitution protects our right to a trial by a jury of our peers; thereby solidifying a system in which no person shall be imprisoned without first having his/her day in court whereby they can present a defense against all charges brought against them.
It is an unfortunate fact that there are so many laws in existence that one can hardly breathe without breaking one law or another. While many laws are outdated or no longer enforced, they still sit on the books; never having been repealed. It is also an unfortunate fact that the laws are so complicated that most people don’t even bother trying to understand what they truly say.
James Madison, in Federalist 62, states, “It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow.”
Our court system is supposed to try and untangle this mess by providing a place where both accused and accuser can come together and provide facts and a jury can decide innocence or guilt. The judge is supposed to be an impartial individual who maintains order and ensures that justice is served. They are supposed to be men/women of integrity whose loyalty is to justice and the law, not their own personal biases or political party affiliations.
The duty of the jurors is to examine the facts in a case and come to a determination of guilt or innocence. But there is a little known responsibility jurors also have that the judges do not mention when giving their final instructions to juries; that being that jurors also have the right to decide whether the law a person is accused of violating is just.
This process is known as jury nullification, in which a jury decides that the law a person accused of violating is, itself, unjust, and that there has been no crime committed by an individual violating it. It has a long history of being a right of jurors in America going back to John Jay, the very first Chief Justice of the Supreme Court. Jay once opined, “The jury has a right to judge both the law as well as the fact in controversy.”
This was recognized as a right of jurors as recently as 1969, when in the case of United States versus Moylan, the 4th Circuit Court of Appeals ruled, “If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence…If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the court must abide by that decision.”
Judges are not gods; they are not even demigods; they are simply men appointed to ensure that justice is served and the law upheld. However, they are dangerous because they are not accountable to the public; being appointed by those in government to decide the law as it applies to us peasants and common folk.
Thomas Jefferson feared the power granted the judiciary, saying, “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”
Our Constitution only creates one tribunal, or court; that being the Supreme Court. Article 3 of the Constitution describes its makeup and jurisdiction. However, Article 2 of the Constitution grants the Executive the power to appoint judges to the Court, a power which has been used and abused to further agendas of sitting presidents. For instance, during the era of the Great Depression, President Franklin Roosevelt attempted to increase the number of Justices on the Supreme Court to tilt the court in favor of measures the existing court was declaring to be unconstitutional.
Nowadays a vacancy in the Supreme Court is a big deal because the bench is divided along party lines and usually one justice is all it takes to rule one way or another on a case. So it is a big deal for many whether a Republican president or a Democrat gets to nominate someone to fill a vacancy on the court.
That alone should raise all kinds of bells and warning flags for those who think beyond political party loyalty. If our justice system is supposed to ensure justice is served, then what difference should it make whether a justice is left-leaning or right-leaning? After all, aren’t they supposed to be impartial and unbiased?
Although our Constitution only establishes the Supreme Court, it also gives Congress the power and authority “To constitute Tribunals inferior to the supreme Court…” Going against arguments against doing so, Congress went ahead and did just that; establishing District Courts and Circuit Courts; all of whom render rulings on issues obfuscating and complicating the law to where a person well versed in the rulings of these District and Appellate courts could cause jurors heads to explode in confusion.
So not only do we have what Madison spoke of; laws so voluminous and incoherent that the average citizen cannot comprehend them, we also have an entire system of court’s ruling this way and that on what the law says and means. It’s enough to drive you insane if you think too long and hard about it.
In a speech before the Elmira, NY Chamber of Commerce in 1907, Justice Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.”
I find so much to disagree with, and fear, from that statement that I could write a book about it. First of all, although the Constitution, and all laws passed in pursuance of it, are the supreme laws of the land, we are NOT under the Constitution. The Constitution is a thing created by an act of the people of this country, and what can be done can be undone.
As the ultimate sovereigns in this Republic we can, at any time, revoke the power we granted government and recall our elected representatives; leaving us free to govern ourselves as we think best. Thomas Jefferson wrote to James Madison that he believed each generation was free to decide whether it would be bound by laws and systems of government established by preceding generations. He felt that no generation should be forever bound by the things their forefathers had done.
That principle goes all the way back to the Declaration of Independence wherein Jefferson writes, “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
No system of government created by man can be considered perpetual; it is always within the power of the governed to rise up and shake off any form of government they feel deprives them of the liberty which is part of their nature as human beings. Government, although it may fight to preserve its existence, is a creature whose job it is to safeguard the liberty of those it represents. If government stops doing its job, it can be fired and replaced.
That’s my first concern with what Justice Hughes said. My next concern is with the statement that the Constitution is what judges say it is. Does Justice Hughes believe us commoners are too ignorant, too stupid to understand the Constitution? While I believe there are many today who fit into that category, the Founders did not write the Constitution to be complicated, or full of hidden implied powers.
In fact, in Martin v. Hunter’s Lessee the Supreme Court ruled, “The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition.”
If the people living today cannot understand the language used in their Constitution, that does not render that power by default to the judges. It is up to the people to become educated enough, to increase their vocabulary and understanding of grammar, to be able to understand the document which both creates, and limits the power given their government.
But the real reason I’m writing on the courts and the judiciary is this, “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation. Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century. … Which means that the original Constitution, the Bill of Rights … do not speak to today.” That statement was made by Judge Richard Posner of the 7th Circuit Court earlier this week. I was flabbergasted when I read that; my heart literally stopped beating for a second over the implications of what he said.
In 1866 the Supreme Court ruled, “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of men than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.” (My emphasis)(Ex parte Milligan)
Is this idiot Posner implying that it is up to judges to decide which parts of the Constitution still apply in today’s technologically advanced society? Is Posner saying that in today’s world the judges can pick and choose which parts of the Constitution are relevant and which aren’t?
This idiots comments should be breaking news and plastered across the headlines of every newspaper in the country; but I’ll bet this is the first time you’ve heard about it. What’s worse is that you’ll probably read this and then forget about it ten minutes from now. This SHOULD cause your temper to be flaring, your blood to be boiling, and you taking out your guns to make sure they are cleaned and well oiled. This is one step away from total obliteration of the few remaining rights you have left. Yet I’ll bet, other than a few select individuals, none of you will lose any sleep over the implications of what that asshole Posner said.
I know most of you don’t know something, but I wonder if that idiot Posner knows that when our Constitution was submitted to the States for their approval there was a lot of discontent with certain provisions within it. I’ll bet that many of you did not realize that proposals were made to amend the Constitution prior to the States ratifying it.
In no uncertain terms the States were told that they had to accept it en toto, which means they could not amend, nor vote in favor of only portions of it. They had to accept it in its entirety or reject it in its entirety.
I will tell Judge Posner the same thing; if he thinks the Constitution no longer applies to today’s world, then since the Constitution is the ONLY reason our government exists, then government itself no longer applies and I no longer have to obey any of the laws and regulations it passes which govern me or my life.
Fair is fair asshole!
That is why it is so vitally important that the people of this country be well informed and well educated regarding both the history of their country, and the true purpose for which their government was established. If these qualities are lacking in the general public then it is an easy task for tyrants such as this asshole Posner to strip the people of their freedom and turn them into slaves.
Have you ever played Dodge Ball in school; the game where one kid stands in the middle of a circle and has to dodge a ball thrown at him/her from those surrounding them? Well I sometimes feel that liberty is playing Dodge Ball, but instead of just one ball being thrown at it, there are balls coming from every direction with assaults upon it coming from our elected representatives, from the judiciary, and from the people themselves.
All I know is that freedom is under attack like never before; our values our beliefs, our rights are being attacked from every side and unless we wake up and do something about it, then there will be nothing left of the country our Founders envisioned when they signed their names to the Declaration of Independence or ratified the Constitution.
We’re almost there now, and if you don’t wake up soon it won’t be long till reality comes along and gives you a rude awakening from which you’ll have but two choices; to fight, or accept the fact that you have become slaves to an uncaring and dominating government.
Ya’ll know me well enough to know which choice I’m going to make.