Presentation on theme: "Common constitutional errors which, if not corrected, will defeat us, committed by officials, lay citizens, and activists, including many here assembled."— Presentation transcript:
Common constitutional errors which, if not corrected, will defeat us, committed by officials, lay citizens, and activists, including many here assembled. Jon Roland Give Me Liberty 2007 conference March 31, 2007
Remedies Ferry boats Dock Moat monster Remedies behind wall. Gates locked or sealed. Law profession controls docks and ferry boats. If you try to use your own boat -- Can't use docks, so have to climb cliff. Don't have keys to locked gates. Moat monsters may get you.
Legal argument kept from juries. Argue law before jury – or acquit!
Citizens kept from grand juries, conducting prosecutions. Revive private criminal prosecutions.
Citizens denied standing, quo warranto Resurrect prerogative writs “in the name of the people.
Writ of quo warranto like writ of habeas corpus: requires official to prove authority to do something, or to hold office, failing which he must not do it, or vacate the office. Only discretion of court is to schedule hearing, allow official to present his proof. Unlike a motion, burden of proof is on the respondant, not the petitioner.
The WTP lawsuit is essentially an attempt to do a quo warranto, without saying so. As such, it does not draw on rich legacy of quo warranto precedents. But where in the Constitution is the right to a writ of quo warranto?
The Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So where do we find these “others”?
From the historical record of the drafting of the Bill of Rights. The state ratifying conventions proposed many more rights than those that made it into the first eight of the Bill of Rights. The extras were not considered controversial. Madison and the First Congress focused on a few that seemed especially important, lumped the rest into the Ninth and Tenth Amendments.
The rights proposed by the state ratifying conventions fell into two broad groups: 1. A right to a presumption of nonauthority. 2. A right to the means to enable citizens to effectively supervise public officials. These are the essence of the entire Constitution and Bill of Rights. The rest is details.
The right to a presumption of nonauthority means the burden of proof is on the official that he is authorized to act. In theory, this is an accepted principle of law. But in practice it is regularly violated or reversed. One such pattern is the practice of courts to “defer” to Congress, the President, or executive branch “administrators”, accepting their testimony and requiring others to refute it. This is what is done with the IRS.
The means to supervise officials and hold them accountable includes: 1. A right to full disclosure of official activities (subject to national security). 2. A right to full accounting of the ways money is spent. 3. Standing of private citizens to get the support of courts to require officials to refrain from unlawful acts, or to vacate unlawfully held offices.
Freedom of Information Act was attempt to satisfy demand that was regarded as a Ninth Amendment right.
In particular, New York ratifying convention proposed right to prerogative writs “in the name of the people”. This included: 1. Quo warranto. 2. Habeas corpus. 3. Prohibito. 4. Mandamus. 5. Procedendo. 6. Certiorari. For all of which any citizen has “standing”, not just those injured.
What makes a writ (order) “prerogative” is that it takes precedence over all other proceedings, and has to be heard ahead of other cases. By original understanding, the writ issues by default if no hearing is held. The right to a hearing belongs to the respondant. If filed and ignored, people are supposed to know they have a duty to enforce it, even over the opposition of officials.
Congress recognized these remedies in the “All Writs Act”, but it and the judges have since “deprecated” or transformed them into something less. Even habeas corpus writs are commonly ignored or dismissed without a proper hearing, or treated as a motion to show cause, with the burden of proof on the petitioner. The problem: Reversing the presumption.
One bad effect of “binding” (as opposed to “persuasive”) stare decisis is that a few precedents can distort jurisprudence. Win a few cases on the Speech Clause, or the Religion Clause, and suddenly every lawyer seeking to defend another right tries to cast it as some kind of “speech right” or “religion right”, instead of trying to get a precedent on the correctly identified right.
There are no precedents about this regarding the Ninth Amendment. There are many for the speech and religion clauses of the First Amendment, although not on the Petition Clause. Unfortunately, just being in the same article of the Bill of Rights doesn't necessarily help much. Can't we find the right to get answers in the First Amendment Right to Petititon?
No. The historical evidence shows the Right to Petition is only the right not to be obstructed or penalized for petitioning. That bears on many of the things being done to “illegal tax” protesters, who are being punished for exercising that right. But there is no right to get answers, as such. Only a right to certain remedies if officials do not answer – to refrain from doing the things they don't prove their authority to do.
So why is it important to make a Ninth Amendment quo warranto argument in the WTP petition? Not because it will be more likely to win, because the Establishment will not allow it to win no matter what the argument, but the main purpose is to demonstrate to people who might think meritorious arguments can still win in court that they don't on issues like this.
But its effectiveness as “political theater” will be greatly reduced if legal scholars can say “It lost because it didn't make the right arguments.” We need them to be able to say “It made all the right arguments and still lost.” That is the way to get them to join in the outrage, and we need them with us in this fight. It will also have more impact on ordinary people.
Summarizing: Obstacles & Reforms High cost of litigation Legal education for everyone. End licensing of lawyers. Split legal profession into advocacy, compliance, paralegal branches. Digitize proceedings. Reduce cost of research services
Obstacles & Reforms Judicial, prosecutorial misconduct Select judges, prosecutors at random for short periods. Open to private criminal prosecutions. Jury trials in almost all cases, even equity cases.
Obstacles & Reforms Legal argument kept from juries. Require all legal argument be argued before jury (except that which cannot be done without disclosing evidence properly excluded). Provide copies of all legal documents to jurors, access to law library.
Obstacles & Reforms Grand juries captured by professional prosecutors, not given enough time to investigate properly. More grand juries, serving smaller jurisdictions (~3000 people). Allow half day for each case. Open to public. More supervision of government.
Obstacles & Reforms Presumption of authority. Assert presumption of nonauthority. Revive prerogative writs, especially quo warranto, habeas corpus.
Obstacles & Reforms Government too large to effectively supervise. Reduce size of government. Bring into strict constitutional compliance. Shift government toward more local level.
Obstacles & Reforms Official immunity. Let grand jury decide whether official acted within his jurisdiction, authority, and if not, enable trial on merits.
Obstacles & Reforms Too difficult to get cases reviewed. More appeals judges, courts. Expand Supreme Court to 28. Allow jury review of appeals cases.
Obstacles & Reforms Initiative by officials to violate rights. Revive constitutional militia.