American Statement of Grievance on Government & Judiciary (Part 3 of 4)
In the order of effectuation of federal governing, they created the Legislative, the Executive, and the Judicial branches of our government. by Gary Trieste
Saturday, May 2, 2009
The illegitimate encroachment of Federal jurisdiction over purely intra-state activities:
"...the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little to-day and a little tomorrow, and advancing it's noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. ... when all government ... in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated." --Thomas Jefferson, 1821
In the system of federal government set up by our Founding Fathers, and in their informed wisdom and justified fear of an uber-power centralized government, the U.S. government was intentionally trifurcated into three equally important parts, neither one of them vested with the sole power to control the land. In this manner the intention was to inter-moderate and buffer each other's possible efforts at supremacy.
The Intended Separation of Powers
In the order of effectuation of federal governing, they created the Legislative, the Executive, and the Judicial branches of our government. And they concurrently created the Constitution which defined and delegated the respective powers, duties and limits of the three branches.
The Legislative was the creator of laws, the Executive was the effectuator of the laws, and the Judicial was to be the ideological enforcer, the policer of the other two branches that kept them in line with the Constitution, and in administration of the laws upon the People.
In this way their respective powers were limited in scope, and neither had enough power to rule solely; the Legislative could make laws but not carry them out; the Executive could only carry out the laws that the Legislative made (or that existed in the Constitution); and the Judicial was constrained to proclaiming whether the Legislative's laws subserved the Constitution and whether the Executive, in carrying them out, had adhered to the laws made by the Legislative (or to the Constitution directly). 11
(In many ways the Judicial was vested with the highest and most noble task: to protect our system of government against Constitutional heresy and keep pure our system of laws, rights and Constitutional precepts.)
The Intended Separation of Sovereignties
Furthermore, in order to respect the sovereignty the States, who in fact initially chartered the federal government and which was the result of a compact between them, the Constitution mandated that the U.S. government could only control or regulate the commercial trade occurring between the States or their respective citizens. It was explicit that the federal government was to have no other jurisdiction or controlling powers to normal activities internal to the respective States.12
This bar to federal jurisdiction into intrastate activities was long an established and unremarkable fixture in our system of government(s), until about 1942, when the U.S. Government prosecuted an Ohio wheat farmer who had decided to grow an additional 11.9 acres of wheat, on his own land for his own consumption, against Governmental edict.
The wheat grown was not commercial, was not interstate by inception or intent, and thus in no way could legitimately be considered having an interstate nexus, or be affective of the federal Interstate Commerce Clause.
And yet, the federal government balked. It claimed that the activity was still controlled by federal law.
After making its way through the lower courts, the controversy was eventually appealed to the Supreme Court 13 on the grounds that what the farmer did on his own property, and for his own intrastate purposes, was outside the federal government's power to penalize.
Utilizing a wartime mentality and overreaching legal assertions, the legacy of which we are saddled with today, the Supreme Court ruled that the federal government could regulate such intrastate activities because the farmer's consumption of his own wheat somehow ethereally14 affected the total interstate supplies and transport of wheat across the nation. (This was akin to saying that breathing affected interstate commerce, because the air was used up faster and couldn't be used for other interstate activities, thus justifying federal authority over breathing.)
In violation of the clear limits set forth in the Constitution, and based upon this landmark case, this newly minted federal authority to control intrastate life and activities exceeded all bounds, and currently knows no practical limits.15
All that is now required for the federal legislature to control an arbitrary intrastate activity is a public proclamation of Congress that it "finds" some activity somehow, someway indirectly (be it in concept or scope) affects interstate commerce. There is no requirement of finding an actual connection between a particular incidence of that activity and something interstate.16
Thus we are affronted with the circumstance our Founding Fathers were most afraid of, an overarching central authority that had unlimited precedence over State's internal laws and activities, effectively forming a new politburo that completely abrogates the States' sovereignty.
Such a system is not only Constitutional heresy, but is insensitiveto the various regional conditions across the nation, dismissive of the respective local social sentiments and mores, and contemptuous of the prevailing individual characters endemic to the various states.
Such a system preempts the rights of the People to govern themselves as Constitutionally provided for, and seeks to impose a homogeny of thought, lifestyle and way.
An overview of the above Points of Particulars reveals a pattern and underlying theme.
That theme is our courts' abrogation of the oath of allegiance and dedication to the precepts of due process, and the impartial administration of the law.
Where once there was a robust and vital expression of due process prevalent in our federal courts, compromised by no one, there is now a shallow callous mask of its former existence.
And like a mask, our system today appears on the surface to the casual observer to be the recognizable face of classical American Justice, as depicted in our popular icons and stories.17
What lies beneath, however, is a very different persona: an institution of machinations, political favoritism, procedural expedience, arbitrariness, conceptual prejudice, laziness, pettiness, and apparatchik ministrations.
Into this artifice of integrity and honor, we vest our public trust, hope and confidence for equity under the law, and the establishment of our rights and freedoms.
The causes of this judicial degradation are hard to pinpoint or rationalize, for in the federal judiciary, judges are appointed for life, and are virtually guaranteed that status no matter what their decisional propensity may be. There would seem to be no incentive other than to rule with utmost ideals and professionalism.
However, not being privy to the very closed, cabalistic social circles to which the members of the federal judiciary bind themselves, we can only surmise the underlying causes permitting this loss of quality and reliability. To clarify the possibilities, we proffer the following probable causes:
(1) The consequent quid pro quo that is expected of them in exchange for the appointments. Obviously powerful interests are responsible for putting federal judges in place; these interests often have agendas independent of unbiased due process and justice, and no doubt upon appointment, judges are implicitly expected to return decisions in complement to those interests.
(2) The quality of intellect of the appointees, and their acumen for the theory behind application of the law. Without the ability and penchant for independent and original thinking, and the ability to juxtapose legal theory into practical application (without interposing their own personal biases) such appointed judges simply affirm or rubberstamp pleadings that they perceive are statist, unremarkable or in line with prevailing legal sentiment; an actual weighing of facts and law is usually too tiring to consistently manage. The depth of analysis coming from such judges is revealed in memorandum decisions (if even issued) that are perfunctory and superficial to the facts and case at hand.
(3) The influences of the prevailing attitude and sentiment of Executive and Legislative officials, and of course superior courts.
(4) The lack of any meaningful accountability or review. Judges stand to lose nothing by sloppy administration--the worst they suffer for bad procedure and law is a mild rebuff from their superior courts. This is nothing more than a fraternal rebuke, and is not felt with any acuteness. Often these same rebuffed judges are indignant upon remand, and take their angst out on the successful appellant --yielding an equivalent or worse ruling for them on the remand, while still technically abiding by the superior court's mandate.
(5) The social or professional shunning by their peers, and/or other public officials (see Hon. Baer, USDJ SD/NY, ND/NY [[link edited for length]], etc)
(6) The carrot-and-stick conditioning to which they are subjected, as to whether they are considered for advancement to the appellate courts. Unless they consistently kowtow to the party line, they are intentionally disregarded in any consideration for higher court appointment.
An Addendum to the Lack of Meaningful Judicial Accountability
It should be noted that all the judicial review committees, offices of professional responsibility, mandamus review mechanisms, and other administrative forums for review of judicial complaints all suffer from the same implicit conflicts of interest.
Although a direct connection or interest between the masters of these complaint forums and the subject judicial officers cannot usually be demonstrated, they are in fact all heavily interested parties, by the sheer fact that they are part of the same guild and must face their peers' rebuke in social and professional circles if they rule in a critical manner.
Relatedly, the group of people who would know best and are most stung by wayward judges are the attorneys that must practice law beneath them. However, they too are effectively gagged in any public criticism of the judges, as they are too vulnerable to judicial blacklisting and subtle prejudices in future or ongoing cases, of which they are much aware.
The only involved vocal group left that is not constrained by special interests and has nothing to lose by shouting their frustrations are the pro se litigants, but this group unfortunately as a whole lacks the legal vernacular and contextual complaint capability to meaningfully articulate their frustrations, as well as lacking significant political influence; as a consequence they are never taken seriously and their complaints are usually dismissed out of hand.18
As such it can be seen that there is no independent, effective and disinterested review mechanism in place to stand vigil over errant judges or other officers of the court.
In sum, although the causes and continuing condition that the judiciary suffers from cannot be definitely determined with the available information, it is nonetheless unacceptable and is thus in demand of reform and rectification.
11.The Constitution was to be our legal DNA of sorts, the law cardinal, a source law not created by the legislature, but presumed to be a given and inviolate. Within the framework of that base set of precept laws, and consistent wherefrom, the Legislative was permitted to make any appropriate laws needed.
12.Of course there are other intrastate activities detailed in the Constitution (which embodies the assent that the States entered into with each other and with the federal government), that are regulatable by the federal government, most notably enforcement of the Bill of Rights' guarantees to the People and how State government laws and administrations comport with it.
13.Wickard v Filburn 317 U.S. 111 (1942)
14.The logic put forth by the court was, since the farmer's consumption of his own wheat could cause him to not buy it from the national pool, his activity somehow actually affects interstate commerce.
15.The author notes that the Supreme Court has in recent years struck down a number of statutes on the basis of insufficient interstate commercial nexus, but these are  few and far between,  miss the gravamen and scope of the existing over-extended federal regulatory powers, and  are usually applied only to the outer periphery of Congress' statutory structures, which in themselves are often just test statutes to see how far the Court would currently permit them to further extend federal jurisdiction into intrastate activities. And yet Wickard v Filburn has been recently reaffirmed as good legal precedent by the Supreme Court in Gonzales v. Reich (2005), in upholding federal prohibition against non-commercial intrastate marijuana cultivation - even where state law specifically legalizes it.
16.As the archetypal example, see 21 U.S.C. 801; the full presumption of federal intrastate authority in these types of statutes can be seen in practice, where in federal prosecutions the Government is no longer required to accuse or even prove at trial the essential element of an interstate nexus - it is already presumed "proved" by the proclaimed "findings" of Congress.
17.Much like a safety net made out of tissue paper, our legal system of rights, guarantees and due process look safe and secured-- that is, until they are actually needed. Then a very uncomforting surprise is revealed.
18.Much as a crying baby may have a very real need or complaint, but is unable to enunciate the problem or unfulfilled need in any meaningful terms.
The views expressed
in this article are those of Gary Trieste only and
do not represent the views of Nolan Chart, LLC or its affiliates.
Gary Trieste is solely responsible for the contents
of this article and is not an employee or otherwise affiliated
with Nolan Chart, LLC in his/her role as a columnist.
If I could go back in time and¬†offer suggestions to¬†the founders I would strongly suggest that they eliminate the term "the general welfare" from article I section 8 and eliminate the commerce clause or at least¬†be much more specific about what they intended that clause to mean.
¬†I would also suggest that the constitution be given a more powerful means of protecting itself. For example it might have a section which says that any congressman, senator or president who voted for a¬†bill which was later found to be unconstitutional should be immediately removed from office and prohibited from ever serving in public office again. Perhaps there could also be a means of suing politicians who supported unconstitutional bills. We need to put fear into the politicians so that they will be very careful not to violate the constitution.