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:
The
impeachment may be commenced by any member of the House of
Representatives. (There is a separate process available for certain
non-members.)
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.
The
House debates the matter and votes. A simple majority in affirmation
sends the Impeachment to the Senate.
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.
Conclusion
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.