JUDICIAL TYRANNY

 Thomas Jefferson expressed numerous concerns regarding this topic. Illustrative of his concern was the following: “The case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversions on its being merely an obiter dissertation of the Chief Justice … . But the Chief Justice says, “there must be an ultimate arbiter somewhere.” True, there must; but … . The ultimate arbiter is the people …. — Letter to Judge William Johnson, June 1823

Prior to commencing our discussion of this topic, let’s review a few fundamentals as they pertain to that which is classified as “judicial.”

To make certain that we are all on the same page, please allow the following to describe the term used herein as judicial: (1) of or relating to a judgment, the function of judging, the administration of justice, or the judiciary; (2) belonging to the branch of government that is charged with trying all cases that involve the government (i.e., state and federal) and with the administration of justice within its jurisdiction.

The Constitution of the United States divides the federal government into three branches to make sure no individual or group will have too much power: (1) Legislative—Makes laws (Congress, comprised of the House of Representatives and Senate); (2) Executive—Carries out laws (president, vice president, Cabinet, most federal agencies); and (3) Judicial—Evaluates laws (Supreme Court and other courts).

It is important to note that each branch of government can change acts of the other branches: (a) The president can veto legislation created by Congress and nominates heads of federal agencies; (b) Congress confirms or rejects the president’s nominees and can remove the president from office in exceptional circumstances; and (c) The Justices of the Supreme Court, who can overturn unconstitutional laws, are nominated by the president and confirmed by the Senate. Thus, the ability of each branch to respond to the actions of the other branches. This is commonly referred to as the system of checks and balances.

In what ways are federal and state courts similar/different? Article III of the Constitution invests the judicial power of the United States in the federal court system. Article III, Section 1 specifically creates the U.S. Supreme Court and gives Congress the authority to create the lower federal courts. However, the Constitution and laws of each state establish the state courts. 

A court of last resort, often known as a Supreme Court, is usually the highest court. Some states also have an intermediate Court of Appeals. Below these appeals courts are the state trial courts. Some are referred to as Circuit or District Courts.

It is vital that we recall that the three branches of government are, by design, coequal. Furthermore, the intent of creating a judiciary is to preclude having individuals take matters into their own hands.

Obviously, criminal courts were instituted to prevent having citizens subjected to physical, emotional, financial, etc. harm and to punish those who perpetrate the criminal conduct. Efforts to rehabilitate those who commit crimes have, by-and-large, been terminated. Criminals are warehoused and once released are often more hardened against societal mores than when the punishment commenced.

Civil courts are designed to make harmed individuals whole. They also often impose fines/sanctions on defendants who are found liable intended to avoid future harm and to discourage others from engaging in such activities.

There are many other courts (e.g., Equity, Bankruptcy, Family Law, etc.) that focus on more well defined injuries/harms.

There are myriad administrative agencies (cf. https://www.usa.gov/federal-agencies/d#current-letter) that have been created to develop rules to implement the legislation Congress passes. This area of Law (Administrative Law) is often referred to as the 4th branch of Government.

I want to make clear that by “judicial tyranny,” I do not intend to limit this discussion to judges and courts alone. Rather, I intend to express concerns related to all agencies established to ensure justice in America. Whether we are talking about judges, courts, congressmen, law enforcement et al. These entities all bear responsibility for the tyrannical manner in which justice has lost any semblance of neutrality. We may no longer assert, with straight faces, that justice is blind.

Judicial Tyranny may occur in many forms. It may also occur via acts of either commission or omission. Having practiced Law for 20 years and listened to hours of testimony given before numerous state legislatures, I have concluded that one must be insincere to state that the 2020 Election was the most secure in history. One must also be naive to assert that there was no evidence presented to triers-of-facts (e.g., judges) to support claims of wholesale voter fraud. 

The fact that judges refused to allow evidence to be presented is certainly not evidence that widespread fraud did not occur. The extent to which it may have impacted the 2020 Election will likely never be known because it is not de rigueur to grant any credence whatsoever to such claims.

Interestingly, our Constitution has served as a model for other nations. It has served as the written document which encapsulates fundamental principles such as those described above as an American ideal. Freedom loving people around the world have taken great interest in and benefitted from these principles. 

Constitutional principles emanating from this American ideal has spread to Poland, France, Germany, Switzerland, Australia, Canada, Yugoslavia, Hungary, and the Philippines. Other countries have also incorporated this ideal into documents upon which these nations are governed. A credible case can be made that our most valuable export has been our Constitution. (Heritage.org)

Although most would agree that reading and understanding the Constitution is as important today as it was at the Nation’s founding, there is a paucity of citizens, to include attorneys, judges, and members of Congress, who are facile with this document. Many today consider it outmoded and not worthy of notice. (It is amazing that, absent knowledge of its contents, so many wish to toss it on the ash heap of history.)

When analyzing the Constitution, there are 3 guidelines incorporated to interpret it: (1) the Constitution is a written document; (2) the Constitution “can be revoked or altered only by the authority that made it.” (What is that authority? We the people.); and (3) ascertain what is meant by “we the people”.

The 4 primary methods of interpreting the Constitution are: Originalism, Textualism, Pragmatism and Stare Decisis

The Declaration of Independence expressly states that all people have inalienable rights—among them, the right to life, liberty, and the pursuit of happiness. To secure these rights, the U.S. Constitution creates a government of the people to “establish Justice, ensure domestic Tranquility, provide for the common defense . . ..”

In lieu of securing our borders and protecting our citizens, the Government has abrogated its responsibility by placing illegal immigrants’ rights ahead of its citizens and allowing many urban areas to be turned into war zones. All for the sake of “wokeness.”

In what ways is this judicial tyranny? As I said, this may occur via both commission and omission. Recently, we’ve been made aware of militant protests occurring outside of Supreme Court Justices’ homes, in clear violation of federal law. However, the DOJ refuses to intervene. 

Recently, Associate Justice Kavanaugh had to exit a restaurant through a rear door due to militant protestors. CongressWoman Waters encouraged protestors to get in Conservatives’ faces and tell them they are not wanted in public places. The DOJ remains silent.

Federal agencies are weaponized against individuals due to “un-woke” ideologies. The courts refuse to intervene. Numerous individuals remain in solitary confinement, in violation of habeas corpus rights, under the pretense of having engaged in insurrection. All of this at a time when looters and violent mobs ravage urban centers, burn federal buildings, terrorize citizens, and damage millions of dollars worth of property. The DOJ remains inert.

Prosecutors refuse to enforce the law because the law is politically incorrect. Yet, relatively minor infractions are prosecuted to the fullest extent if the perpetrators have violated “woke” ideology.

Judges allow ludicrous claims/charges to be asserted against those who engage in conduct inconsistent with the judges’ point of view, while at the same time refusing to even grant hearings on meritorious claims.

Furthermore, the Judiciary has arrogated powers to itself that are clearly unconstitutional. Judges are attorneys in black robes. They are not intended to serve as legislators. Sadly, legislators have abdicated their authority, particularly with issues that take courage to embrace, and permitted judges, as it were, to enact legislation.

In Abraham Lincoln’s first inaugural address, he stated, “The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”

As previously noted, Thomas Jefferson had a great deal to say about judicial tyranny. In a Letter to Abigail Adams, September 11, 1804, he wrote: “Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” 

Jefferson also noted:  “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . ..” (Letter to William Jarvis, Sept. 28, 1820)

Jefferson believed that “the judiciary bodies were supposed to be the most helpless and harmless members of the government.” He went on to conclude that, “In truth, man is not made to be trusted for life if secured against all liability to account.” (Letter to A. Coray, October 31, 1823)

 Jefferson plainly had an answer against judicial tyranny: “One single object… [will merit] the endless gratitude of the society: that of restraining the judges from usurping legislation.” (Letter to Edward Livingston, March 25, 1825)

Unfortunately, this judicial tyranny will continue so long as factions within our society seek to serve their interests solely, irrespective of the institutions created to ensure justice for all citizens, regardless of race, creed, political affiliation, religion, sexual preference, etc. Courageously express your freedoms, don’t attempt to force your preferences on others. Herein lies the danger of weaponizing those charged with protecting all citizens against those with whom we disagree.

If one is sufficiently persuaded that a particular issue would benefit society in a meaningful way, work with those individuals elected to create relevant legislation. You may even offer to assist in drafting legislation and arguing your case before appropriate tribunals. Don’t cudgel those with contrary views, attempting to destroy their livelihood, creating an unsafe environment, etc. I am often amazed how illiberal those who call themselves Liberal are. Many claim to be Progressives, but ironically fail to see how truly regressive their pet positions are. 

If you doubt this, examine for yourselves the calls for mob violence. The Media falsely identify as peaceful protests those instances in which millions of dollars of property are vandalized, stores are looted, vehicles set ablaze, police stations torched, etc. Are these activities Progressive? As Adrian Monk would say, “I could be wrong. But, of course, I’m not.”

Judicial tyranny often serves to silence those who object to what is going on around them, but are not willing to lose their jobs, livelihoods, relationships, etc. in what appears to be a hopeless situation. After all, the very institutions established to prevent this situation are often the perpetrators.

As George Costanza would say, “You know, People. We are living in a society here!”