A Government of Men, Not of Laws

Blind Squirrel (image)


Many years ago, when there was less knowledge in the world, but people were generally smarter, a doctrine developed — an ideal — which was to form the very basis for a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.

Before going further, let’s dispose of two issues that are of no import to what I’m writing today. First, the use of the term “men” is because I am using the anachronistic quotes — “a government of laws, not of men” and “all men are created equal” — as they were used by the Founders of the United States of America. Second, unless you hold the same heinous position they held, which is that certain “men” were not really “men” — kind of treating entire groups of human beings as a distinct and separate species — then they didn’t really think that “all men are created equal.”

What they meant, though, is the same thing Aristotle said in his Politics, “Law should govern.” No government which was part of the United States of America would be run by despots, oligarchs, or anyone else who could arbitrarily decide when someone should be punished for some perceived slight, or “wrong.”

Today we have evolved as a nation. We recognize that all men, as well as women, have the same “unalienable”1 rights. Today, we would say, “Everyone must be treated the same when it comes to how our laws are applied.”2

But that was how America started. It is not how she is ending.  [Read more...]


Endnotes:
  1. The correct spelling would be “inalienable,” but that’s just another thing that’s different between us and our Founders. []
  2. And by that, today we would mean “regardless of ethnicity or gender.” []

Arbitrary Power

Justice's Dice


John Adams, one of the founders of the United States, who also served as the second President of the United States, had a thing about arbitrary power. One of the ideas he pushed the hardest was this:

Nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people.

He is also the originator of a founding principle of our nation: that the United States was to be “a government of laws, and not of men.”

The two quotes from Adams represent intimately intertwined ideas.
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The End of the Rule of Law

principles word in letterpress


I’m not sure what’s more disturbing about this story: the vague report  making it unclear for which crime the man was convicted, the argument of the prosecution and determination of the judge that he should register as a sex offender, or the reaction of the idiots leaving comments — particularly comments attacking the defense attorney.

Frankly, I think it’s actually the combination of the three; they are all symptoms of the breakdown of the rule of law, our grossly dysfunctional society, and demonstrative of the fact that there are many more criminals amongst us than anyone cares to admit. Many of them are sitting judges, practicing prosecutors, or are busy leaving inane or ignorant comments on news websites.

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Arbitrariness

Red Dice


If there’s one thing that drives me battier than others, it’s the arbitrariness of the so-called criminal “justice” system. I personally think arbitrariness underscores all that is wrong with the current system.

I mean, sure the Fourth Amendment doesn’t really mean anything anymore. Except when it does.

Ditto for the First, Second, Fifth, Sixth, Eighth (though less so, since this is a largely forgotten amendment, along with the Ninth and Tenth) Amendments and the due process clause — both that contained in the body of the Constitution and in the Fourteenth Amendment. They mean nothing.

Unless they do.

“The law” in the United States of America is as much a joke as in any third-world or fourth-rate nation on this planet.

But it’s not just the arbitrary application — or non-application, depending on the situation — of these constitutional principles that makes our system of “justice” anything but a system of justice. It’s how all the laws of our lands are applied.

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In The Blink Of An Eye


Defense attorneys — and on rare occasions even prosecutors or judges — frequently bemoan the fact that those meant to enforce our laws do not always play fair.  We complain about things like police states. We complain about things like the loss of civil liberties, including the right to a fair trial. We complain about the gradual erosion of the United States Constitution and the fact that the so-called “parchment barriers”1 therein contained against the abuses of the government which that document constituted are, these days, less strong even than that.

Most people, however, upon hearing this think, “Ahhh…those damn defense attorneys.  Always coddling criminals.” [Read more...]


Endnotes:
  1. James Madison, one of the Founders of the United States, once argued against a “Bill of Rights” because he felt it was a “parchment barrier” against abuses by a government.  Sometimes, I think that if he’d won out, we might be better off; Jefferson felt that “[t]he tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.”  Jefferson said this blood was liberty’s “natural manure” and said, “God forbid we should ever be twenty years without such a rebellion.” []

Absence of Law


I have a difficult time these days referring to myself as a defense lawyer. It’s not because of the usual negativity that one encounters as a defense attorney. Many people on hearing that someone is a criminal defense lawyer will have an automatic negative reaction and ask “how can you defend criminals?” I’m used to that. (Forget the fact that a large number of people charged with crimes in Fresno are actually not guilty.)

No, the problem is my ongoing encounter with law enforcement officials and judges who literally do not care what the law is. They’ve made a decision about what they think should happen with a particular defendant and — by God! — they’re not going to let the facts or the law stand in their way.

Makes it easier to understand how it’s possible for a police officer to believe that making a woman strip and submit to a body cavity search on a busy roadway is a legitimate exercise of his power. But I digress…

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