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.” []

The Judicial Reality Show

Jailed baby


A friend — a civil law attorney — contacted me the other day to tell me that she was referring someone over. A more-than-worthy cause, if it checked out, she said. If and when she reads this post, I suspect she’s not going to like it (which is why I’m not going to identify her, or provide any identifying information on the case), but I hope she will not dislike it.

I don’t know what the world of civil law is like: so far, I practice only criminal defense. I have resisted repeated encouragement — you could even class some of the encouragement as entreaties – to give in and practice some form of civil law, because I think if you want to be expert at something, you have to focus on doing that thing. Thus, I have been fairly fanatical about the defense of adults and juveniles accused of having committed crimes. I read enough civil law to ensure that I’m not missing something which would make me a better criminal defense lawyer, but I have no wish to practice it.1

What I do know is that the world of criminal defense does not — neither in my own experience nor in stories I hear from other criminal defense lawyers — function as my friend believes it does.

The world of criminal law has much to do with criminals — both those enrobed and those accused — and not so much to do with law.

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Endnotes:
  1. Maybe this will change one day. It’s becoming harder and harder to make a living in this economy based on doing only criminal defense. Potential clients have less money and, unlike the world of civil law, they have the option of going with a public defender. []

The Importance of History for Freedom

Cave Drawing


Like so many of my posts — I think this is why I sometimes have difficulty settling on what to write — this one is the culmination of an inchoate irritation that’s been growing in me for a long time. But, again like so many of my posts, it is finally birthed because of something specific that causes me to think my thoughts are finally falling into place well enough to begin writing.

Let’s see if that helps me give form to my thoughts in a way that you, dear readers, might begin to develop a similar, hopefully less-inchoate, irritation on the issue. Perhaps we can even arrive at a place at least more solid and substantial than President Obama’s backbone.

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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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Appearances


Wow.

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A Judge’s Duty to Public Safety


The other day, I was in court when a judge I actually like did something that I definitely don’t.

It’s not just a matter of my not liking it, however.  It’s part and parcel of why the United States of America no longer exists under its original charter, the United States Constitution.

Lest anyone think this post is a criticism of that judge, it is not.  One day, I think it’s even possible that judge will become a fine judge. The judge is just a product of zeitgeist and has not yet thought clear of it.

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A Tale of Two Systems


Since going to law school, I’ve been told more times than I can count that I’m “too idealistic.”  My belief in “what the law should be” is considered by many to be unrealistic, primarily because I believe the law should be what it says it is.

Well that and, unlike Justices Scalia or Thomas, I’m actually an Originalist.

At times, this has lead me to disparage; at other times, to despair.

The fact is that there is a duality to the law that not enough, if any, ever see, let alone experience.

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Marijuana & The Rule of Law


During the last few weeks, there were a few shootings — though this Fresno Bee story mentions four — when people allegedly tried to steal marijuana that did not belong to them, growing on property where they had no permission to be.

Obviously, something had to be done.

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That Ye Be Not Judged


I previously wrote a post titled “Judge Not,” so I couldn’t go with that again.  Then it occurred to me that the second part of Matthew 7:1 from the book read by almost as many Christians as non-Christians fits the current post better anyway.

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