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Naïveté

A fellow blogger — or, as he prefers, “blawger” (I’ve always been ambivalent about this bastardized version of the original word) — suggested today that he has a hard time, at times, believing that I’m actually a lawyer.

He may have been joking, but, even if he wasn’t, I won’t quibble with that: I have a hard time, at times, believing I was stupid enough to become a lawyer.

The reason for both of us to make this statement is pretty much the same, although Scott Greenfield, the aforementioned fellow blogger, refers to it by a different word than I use: he calls it “naïveté.”

Perhaps proving Scott’s point, I refer to it as “believing the law really means what it says,” or, following the definition used in Black’s Law Dictionary, to which courts refer only when it supports their viewpoints, “due process.” That definition, by the way, reads like this:

The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights,including notice and the right to a fair hearing before a tribunal with the power to decide the case.

A number of quotations appear below the definition — I should note that my library contains only the Seventh Edition (1999) — one of which states:

Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.

That quote is attributed to Thomas M. Cooley, writing A Treatise on the Constitutional Limitations in 1868, at page 356.

John V. Orth, who wrote an brief history on due process entitled, fittingly enough, Due Process of Law: A Brief History, noted almost a century-and-a-half later:

Due process still forbids, and always will, unfair procedures…. Corrupt, partial, or fearful decision makers cannot dispense justice and are not even properly called judges.

So this is why I call what I expect to see in legal proceedings “due process,” because what I expect is decision makers who are not corrupt, partial, or fearful of doing what the law spells out. And I expect them to do what the law spells out.

As the quotes above indicate, no small part of that is protecting the rights of accused persons. It is far, far too easy to convict people in America today, for the wrong reasons on the flimsiest of “evidence” regarding alleged guilt. Not only that, the laws are sometimes so ambiguously applied that nearly everyone can be said to be committing at least three felonies a day.

But, despite the abject absence of any just application of our laws and the concomitant lawlessness of our courts, Scott Greenfield is not off-base to call my expectation “naïveté.” Scott is right to call it that because our judicial system is so far from meeting my expectation — and virtually every lawyer practicing “in the trenches,” as they say, knows this.

And that doesn’t say anything about the lawyers. Or maybe it says everything about the lawyers. Because, as virtually every lawyer practicing “in the trenches” also “knows,” “you have to pick your fights.” Getting judges to enforce the law is almost never one of the fights we should pick.

Or so I’m constantly told.

This is why, while Scott at times finds it hard to believe that I’m actually a lawyer, I find it hard to believe that I was actually stupid enough to become a lawyer, that I actually continue trying to act as if the law means something, and that I come to work every day to fight for that idea.

Unfortunately, though, I am a lawyer. This is what I do. Naïve or not, as often as I’ve thought about throwing in the towel and finding a job that did not require me to tilt at windmills, this is what I do.

The law as it exists today is not what it once was. There is no due process. Whereas the law was meant to ensure that, if we were going to be taking from people — taking either life, liberty, or property — it would be done according to a fair and just system of laws in a fair and just manner, it no longer has that aim. Law today has the same aim it had during the period when society was organized along “feudal” principles.

That aim is control. Pure and simple.

Under manorial principles, from which grew other concepts such as “feudalism” and “serfdom,” the attempt was to tie everyone but the rich — and, in some sense, even the rich excepting only those closest to the king — to the land, or “manor.” Everything you had and everything you could do was at the whim of the “lord” to whose manor you belonged.

“Belonged,” as in “they owned you.” They and they alone could decide what your “rights,” if any, were. They and they alone could decide what was meant by “fair,” or any of the other concepts that our Founders — the Founders of the United States of America — later tried to enshrine in a Constitution.

The lord of the manor utilized lower lords to help administer his system. (So far as I know, the lord of the manor was nearly always a “he.”) This system allowed for quite a lot of leeway in the abuse of power. And it depended upon a sheepish people who, as Founders of the United States also knew (Update 4/12/2017: link broken/removed), will suffer long and hard before they will ever be brought to the point of Revolution.

Today, at least in the United States, the same principles are making a comeback. The difference is that instead of land and “manors” being the anchoring point, there is a tie directly to the government itself. Everything we have and everything we can do is at the whim of some “lord” in a black robe. The lower lords who help to administer the system are known as prosecutors, or probation officers, correctional officers and police.

And anyone who believes, like me, that it would be different, if only the lords would follow the law, is, indeed, naïve.

But don’t expect me to give up the fight.

Because I am a lawyer. A real lawyer. My job is to stand for an ideal, to fight for what our Founders really meant when they attempted to enshrine “due process of law” into our Constitution. It is my duty to be naïve.

I know no other way.

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