Category Archives: Courts

Pre-Determined Outcome

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New York’s Attorney-Elect Letitia James says she’s made her decision about the guilt of a man, a family, and a business, and now he’s going to collect the information needed to support her decision.

We will use every area of the law to investigate President Trump and his business transactions and that of his family as well.
We want to investigate anyone in his orbit who has, in fact, violated the law[.]

She’s already determined, prior to any investigation whatsoever, that they’re guilty of having violated one or more [unnamed] laws.

An honest investigator, on suspicion of an illegal activity—not on suspicion of a person—would seek out all information surrounding the activity, both exculpatory and damaging, and then decide whether an illegal activity had occurred.  If an illegality had been done, then an honest investigator would seek out all information regarding who might have done the deed (and, yes, there would be considerable overlap with that prior phase), both exonerating and guilt-implying, and then decide whether to prosecute, or not.

But, hey—this is the age of We Can’t Handle the Truth of an Election.

A Conservative’s View….

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My latest effort, a pamphlet on the American legal system (because I don’t lack for ego), A Conservative’s View of the American Concept of Law, has been released, and it can be found on amazon.com: https://amzn.to/2L4iVXx .  Links also can be found on my Books page.

Our legal system is explicitly founded on natural law through our Creator’s endowment—the origin and source of our fundamental principles.

Though government should not legislate morality beyond a very narrow arena (vis., a measure of specificity regarding types of homicide and theft; strictly limited controls on bearing false witness, etc.), with natural law as the foundation of our legal system, morality inescapably informs it.  This is so because morality flows from the Creator-endowed and individually-imbued nature of our inalienable rights to life, liberty, and the pursuit of happiness. Our social compact was founded explicitly to protect these.  From that, our statutes are at their best when limited to attempts to implement and protect those foundational principles and nothing more. Any further legislation should be limited to improvements on those strictly circumscribed efforts. In particular, legislation should not be used to generate new morals.

The nature of our American judiciary and the proper role of judges in our jurisprudence has been argued throughout our history, but the argument has been especially virulent over the last dozen or so years.  The current dispute (I don’t call it a debate) centers on whether our Constitution means what it says and neither more nor less, or whether it’s a living document that should grow and adjust to meet a judge’s understanding of changing times and mores.

In this pamphlet, I lay out three key propositions.  The first is that only Congress may make law.  The second is that judges may strike a law before them as unconstitutional, but if they do not, they must apply the law as written.  The third is that the Constitution must be applied as it is written.  Alterations or updates to it are political decisions, and thus only We the People may make them.

Understand: I’m not writing about the origins of the idea of law or of systems of law.  A plethora of legal philosophers (HLA Hart, Jeremy Bentham, John Austin, and Gustav Radbruch to mention a few Western ones) treat these subjects should the reader wish to explore them. I begin later, with the principles underlying our American legal system.

 

Keep in mind, too, that government, per se, does not make law; the men who populate the government do.

 

Finally, Justice Antonin Scalia made this claim in his A Matter of Interpretation,

Surely this is a sad commentary: we American judges have no intelligible theory of what we do most.
Even sadder, however, is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory.

I agree, and in my hubris, I offer the beginnings of such a theory here.

“Impose Boundaries on Immigration Law”

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That’s the title of Deputy Attorney General Rod Rosenstein’s op-ed in last Thursday’s Wall Street Journal.  In it, he decried the lack of uniformity of our immigration laws and associated judicial rulings on those laws.

…US immigration law is far from uniform. Inconsistent rulings by the 12 federal appellate courts have created a hodgepodge of jurisprudence, in which the applicable legal precedents depend on the location of the immigration court that heard a case.

He proposed a solution.

Congress can and should restore uniformity and promote efficiency by consolidating all immigration appeals in a specialized court of immigration appeals.

Whatever the merits of Rosenstein’s proposal, though, before any immigration law—any law—can have legitimate, and predictable, effect, boundaries have to be imposed on activist judges.  Before any specialist court—any court—can have legitimate, and predictable, effect, boundaries have to be imposed on activist judges.  This is particularly critical given the judge-centric nature of his proposal.

Judges cannot be allowed to place their personal views of societal need or “fairness” above what the law they’re applying actually says.  Judges cannot be allowed to violate their oaths of office with their imposition of personal views in place of imposing the text of the law(s) before them in cases, including immigration cases.

Failure requires consequences, else judicial failure will continue, to the increasing detriment of our republic.  Those consequences must include, in the most egregious instances or when particular judges demonstrate an especial predilection for activism, removal from the bench.

Brussels Interferes Again

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Now the European Court of Justice has decided to weigh in on Brexit.

The European Court of Justice’s opinion, which requires confirmation in a final court ruling, says the U.K. can unilaterally stop the process of leaving the EU, something that Brussels and the U.K. government had sought to oppose. A final ruling is expected within the next few weeks.

This is yet another cynical effort by Brussels to interfere in the domestic affairs of a sovereign nation, this time compounded by Brussels’ insistence on punishing the Brits for their impertinence.

Were this a serious, honest move, they would have issued this opinion two years ago, at the outset of the sham negotiations.

Justice and Law

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An Indian, a Creek, stands accused of murdering a fellow tribesman.  He was arrested on the Creek’s Oklahoma reservation, and with that, he’s demanding that he be tried in Federal court rather than in an Oklahoma State court.  The matter of which court should have jurisdiction, which centers on the existence or absence of the Creek Nation reservation in Oklahoma, now is before the US Supreme Court.

The government’s lawyer, US Deputy Solicitor General Edwin Kneedler, declaimed

This would be a dramatic change from the way everyone has understood it for the past 100 years[.]

He continued:

[A]ny crime involving an Indian as a victim or a perpetrator would be subject to federal jurisdiction, not state jurisdiction, and there are not the FBI resources, the US attorney resources, the other resources.

With that he argued—with a straight face—that the government’s convenience is legitimate reason for denying justice.  On the contrary: if government agencies lack the resources to do their jobs, it’s Congress’ responsibility to get them the resources, not an individual’s responsibility to surrender his right to justice.

It gets worse, from no less a light than Justice Brett Kavanaugh, especially in light of the fact that Congress has not—ever—abolished the Creek reservation, even as it has, step by step, removed critical aspects of Creek Nation sovereignty on that reservation:

Stability is a critical value in judicial decision-making, and we would be departing from that and creating a great deal of turmoil [if we rule the Creek reservation continues to exist]. Why shouldn’t the historical practice, the contemporaneous understanding, the 100 years, all the practical implications say leave well enough alone here?

That’s a breathtakingly Brandeis-ian view of justice from an avowed textualist.  It’s better, opined Brandeis—and now Kavanaugh—that the law be settled than that it be settled right.  Wow.

Here’s the depth of the injustice that’s being argued should be maintained:

In treaties dating from the 1830s, the US pledged to “secure a country and permanent home to the whole Creek nation of Indians,” yet in following decades it took official and practical steps that stripped them of both power and property.

And, with no hint of irony whatsoever,

[G]overnment lawyers sought to persuade the court that the US decided to betray its promises completely, rather than only in large part. Since Congress never expressly voted to abolish the reservation, attorney Lisa Blatt, representing Oklahoma, pointed to a series of steps that she said effectively did the same thing—abolishing tribal courts, canceling tribal taxes, making tribal law unenforceable, compelling the tribe to sell its property.

And the governments’ lawyers argued further that correcting this long-standing injustice would present chaos to the State and to the Federal governments: that lack of resources mentioned at the outset and, given the size of the Creek reservation compared to the size of Oklahoma, to the manner in which the State would have to enforce its laws.

But this is a cynical distortion of the matter.  The chaos already exists in the loss of access to justice for all those decades of years. Certainly, there would be some disruption were the governments involved required to correct their ancient error, but on the other side of that disruption would be the greater stability of true adherence to the law, a stability that would replace the instability of an arbitrary breakage of it.

That an injustice has existed for 100 years means only that it is a 100-year-old injustice; its hoary age in no way legitimizes the matter.