Thursday, August 23, 2018

A Last Chance For Our Democratic Institutions

We have reached the point where something appears to be happening in the Washington Witch Hunt. My Facebook feed is abuzz with misplaced triumphalism. Now Trump will be impeached for sure! None of his appointments should be considered at all until this is settled! This is all a bit premature.

The United States depends for its existence not on its Founding Fathers or its Armed Forces. It lives or dies on the strength of its democratic institutions. The sad truth is that we've been neglecting our democratic institutions for some time now, and we have, in fact, allowed most of them to be weakened or simply taken over by political factions that no longer feel that democracy is the way to go. They'd prefer something darker and more authoritarian. The real debate now is not liberal democracy or authoritarianism. The current argument is more about the degree to which our new authoritarian America should be a theocracy or simply a secular dictatorship.

Let's look at a couple of examples to see how our democratic institutions are losing their ability to protect us:

Trial Court

First: Our trial courts. This is where the real action is. Facts and law, baby! What really happened? Guilty, or not guilty? (Note that no one is ever innocent in trial court. Only little babies are innocent.)

Our trial court system was designed from the beginning to follow the English model, applying Common Law traditions with a history much longer than the existence of the U.S.A. Judges in Common Law courts were given more leeway with the law and procedure than their Civil Code counterparts. This was because the judge is actually the man in charge, IN THE ROOM. He looks everyone in the eye, hears and sees all of the evidence, and is witness to all of the argument in the case. The judge is in the best position to find the good guy, and the judges were given some discretion to allow justice to result when a mechanical application of the law might lead to injustice. (See, “Equity.”) This tendency in the Common Law was strengthened by our Constitution, if anything.

Trial court judges make dozens of little legal decisions during the course of the trial. These days most cases by far do not reach the trial phase of the process, but it is still true that the judge assigned to the case will make dozens of legal decisions over the life of the case. At the very least, there will be some law and motion involved, with the judge deciding every motion. There may be rulings on evidence. If a criminal case is plead out, the judge must approve the plea agreement. The judge will decide on the punishment to be meted out after a guilty plea. There was a time when judges had a lot of discretion as to how to proceed.

That is no longer true. Our gung-ho, anti-crime legislators have saddled judges with a thousand constraints. These include, inter alia, mandatory sentencing rules, sentencing guidelines, strict-liability criminal offenses, and anti-recidivist laws (“Third Strike Laws.”) Where a judge might have preferred a sentence of probation, that defendant might pull a two-to-five because the judge's hands were tied.

How about the issuance of warrants? Warrants for arrest, or search, or seizure. Pursuant to our Constitution, those are to be issued on a demonstration of “probable cause.” This has gotten a whole lot easier in the last thirty-five years.

Probable cause is facts and circumstances, which, in themselves, would convince a reasonable person that: 1) a crime had been committed; and 2) a certain individual was guilty of that crime.” Did I get that right? It's twenty-five years since I took the California bar exam, and I have never practiced before the criminal courts.

These facts and circumstances are set forth in a sworn application by some combination of district attorneys and police. You may recall them from your television viewing. There were great probable cause scenes on “The Wire.” “This application is very thin, Bob,” says the judge, with a drink in his hand. “Try again when you find some evidence.” That sounds quaint by this time. I saw a defense attorney on cable news a few years ago who was asked, “what is probable cause these days?” His reply was, “whatever the District Attorney wants it to be.”

That, my dears, was one of our democratic institutions in the process of dying.

I've been talking about trial courts, but the courts of appeal must be included in this complaint. Judges can be taken up on writs; cases where the judge exceeded his discretion can be appealed. Here too, it is judges who decide the matter. If the appeals judges say that the action taken was fine, it was fine. That level of our judiciary has been similarly degraded, along with many of our precious Constitutional rights. Which leads us to:

The Constitution and our Supreme Court

Second: The Constitution and our Supreme Court. It is a little appreciated fact that our Constitution is written in language that is remarkably economical. Very important aspects of our rights and freedoms, our very relationship with our government, are disposed of in a very few words. Take Due Process, for instance:

[N]or be deprived of life, liberty, or property, without due process of law . . .”

That's part of the Fifth Amendment, and the identical language appears again in the Fourteenth Amendment. No further clarification is offered. What is due process? How do we know if the government's planned action against an individual citizen follows the due process guidelines? For that we must look to the Supreme Court and read their cases.

All questions of the meaning of the words in the Constitution are left to the Supreme Court. The court has the constitutional power to declare any court wrong on any issue, to declare any law passed by any legislature unconstitutional, and to decide the meaning of the words in the Constitution in every situation. This power derives from the 1803 Supreme Court case, Marbury v. Madison.

This is a scary huge power, but it tends not to frighten us, because it has nearly always been wielded by men of sound legal judgment, admirable judicial temperament, and good will. That it has been so in the past does not mean that it will always be so in the future. There are already a few clunkers on there, with another one on the way as we speak.

Within the power of the Supreme Court to interpret the meaning of the words in the Constitution is the power to change their minds if and when the issue appears before them again. Consider our Constitutional right to counsel (a lawyer) at trial:

[T]he accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”

This also appears in the Fifth Amendment. It has always been taken to mean that lawyers would be appointed and supplied by the government to criminal defendants who could not afford one on their own. Over the years, however, there has been a long-running dialog over just when that lawyer should be assigned to the case.

To keep this section manageable, let's just say that the first time this issue reached the Supreme Court, they were comfortable in saying that counsel should be appointed for the trial, because that would be where his defense would be presented. Later on, the issue again reached the Court, and they were persuaded that appointed counsel needed time to prepare for the trial. They issued a new ruling which overruled their previous ruling and henceforth provided appointment when it provided the lawyer a bit of time to investigate the matter and prepare his defense. In Miranda v. Arizona (1966), the issue was revisited, and the Supreme Court again changed their minds. Previous Supreme Court cases were overruled, and the new system would provide the accused with a lawyer before the police were permitted to even ask her questions about the case.

This phenomenon, dear reader, is why it is so important that the Supreme Court must not be used as a political football and stacked with political hacks who will decide cases based on the prevailing political winds in Washington D.C., or upon their own prejudices, with traditions and case precedent ignored.

Such a clown-car full of hacks could, for instance, look for a “right to counsel” case for the direct purpose of delaying the appointment of a lawyer until the accused was arraigned for a crime. We are dangerously close to having a Court that would cheerfully do such things for political reasons.

Why,” they may feel, “should the state appoint a lawyer even before the individual is charged with a crime?” They could do that, and the new Supreme Court ruling would replace all of the rest. It would become law, Constitutional law. And the police could resume their previous practice of beating and coercing confessions out of people under arrest just to make the whole thing easier for law enforcement, which was exactly the kind of police behavior that was on full display in the Miranda case, and which was exactly the behavior that the 1966 Supreme Court sought to eliminate.

Throughout this journey through time, the words in the Constitution had never been, and would never be changed. They would remain the same through every interpretation of the meaning of the words. And their meaning would always be what the Supreme Court said it was, whatever that happened to be at the time.

Just to be clear: do you want police to be beating a confession out of your son? Why no, you don't, regardless of whether he actual did the thing or not. So this degradation of our Supreme Court is important to you. The Supreme Court is one of our democratic institutions that has been allowed to lose its focus and become weak in its role as protector of our Constitutional rights.

This power is not limited to due process and the right to counsel. It applies to all of our rights and freedoms. The Court also has the power to define or limit the powers of the president and congress. If they say, “sure, he can do that,” well then, he can do it, and no one else can stop him. It amazes me that more people are not very worried about this.

The Congress of the United States

Third, Congress. Consisting of the Senate and the House of Representatives, Congress was intended to be our most powerful democratic institution. The House, anyway, was intended from the beginning to provide all Americans with a locally elected individual to represent his locality in all matters of Federal lawmaking. (The Senate was initially appointed, to provide extra political power to the monied interests, but Senators have been elected since the passage of the Seventeenth Amendment.)

Congress was once a place where loyalty was rewarded and compromise was possible among men, almost all men, who could be civil to one another even in disagreement and come together to act in the country's best interest. They understood that democracy cannot stand without compromise. Those days are gone. Congress has been contaminated by money, partisan politics, and weird religious and political theories that none of them seem to properly understand. (Ayn Rand? Really?) Trusting any of our current crop of assholes is something that very few people would suggest with a straight face.

One of the powers of Congress is impeachment, which is much on our minds these days.

The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

That's in Article II, Section 4 of the Constitution. How, exactly, would that be accomplished?

The process, as it stands, is as follows:

  1. The impeachment may be commenced by any member of the House of Representatives. (There is a separate process available for certain non-members.)
  2. The matter of impeachment is then referred to the House Judiciary Committee, which is intended to debate the matter and then vote on it. If the committee votes by majority in agreement that grounds for impeachment exist, it is sent to the floor of the House. The Judiciary Committee must set forth specific allegations, known as the Articles of Impeachment.
  3. The House debates the matter and votes. A simple majority in affirmation sends the Impeachment to the Senate.
  4. There is a trial in the Senate. House “managers” serve as prosecutors. The accused may provide his own defense. The entire Senate becomes the jury. The Senators must take an oath to be honest about everything and to proceed with due diligence. After the trial, the Senate deliberates in private, followed by a vote. A two/thirds super-majority is required for conviction.

Incidentally, the President cannot pardon officials who are impeached by this process.

According to the above, the House Judiciary Committee has the power and the discretion to decide which matters rise to the level of impeachable offenses. If they vote it down, they are saying in effect, “no, we don't see it.” And that's that. They have that power.

Then the House majority party has the power and the discretion to nix the whole thing. “No,” they can say, “we don't see it.”

Even if it goes to the Senate, a bi-partisan agreement will almost certainly be required, because the likelihood of one party, the impeaching party, having a two/thirds majority in the Senate is very slim. It's slim even in the long term, the way things go. In the short term, it's totally impossible.

So we're stuck with Trump for the foreseeable future, and probably stuck with the Republican pirates for even longer. And stuck with money controlling our politics, and stuck with a lousy system of medical care that does less and less for more and more money. We're between a rock and a hard place. Stuck.


That's three of our democratic institutions that are on life-support by now. There are many more. Consider the sorry state of education in America. Universities, primary and secondary schools, our entire education system has been ruined over the last forty years. The prices! The curricula! The results! Just three, or four, examples of the shambles that is being made of the very framework of our freedom.

All of the rest of our democratic institutions have been similarly weakened, from the State Department to local police forces. The last three years have seen real catastrophic damage up and down the line. The sad truth is that there may be nothing left to save us.

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