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When Judges Quit Protecting Liberty by David S. D’Amato

How do we decide if a government action is legitimate?

When courts are asked to determine whether a government action has violated an individual’s rights, they apply one of several different “standards of review” or “levels of scrutiny,” ranging from “strict scrutiny” (reserved for a very narrow category of cases) to “rational basis scrutiny.”

Rational basis tests erect the lowest possible legal hurdles for the government, yet they are applied in cases that implicate some of our most important liberties, such as the right to earn a living, simply because they were not listed by name in the Bill of Rights.

For example, a law requiring an expensive permit to arrange flowers will only merit a rational basis review. And while rational basis review is a test for constitutionality, it doesn’t have anything to do with the Constitution or its history.

As Timothy Sandefur pointed out in the Cato Unbound issue on judicial activism, such rational basis tests have “no foundation whatsoever in the Constitution of the United States.” Rather, they were simply made up, fashioned by judges out of whole cloth during a period when courts were increasingly willing to defer to legislators and bureaucrats and their arbitrary and needless interference with private enterprise.

Rational basis review amounts to carte blanche for petty tyrants in legislatures, city councils, and regulatory agencies. Since the New Deal, courts have refused to give any real constitutional protection to the basic right to choose your profession and earn an honest living.

The 1934 Supreme Court decision in Nebbia v. New York is an important episode in the creeping evolution of rational basis. Leo Nebbia, a grocer, was convicted of the heinous crime of selling milk at a price that was too low, according to the bullies at New York’s “Milk Control Board.”

Writing for the Court, Justice Owen Roberts declared that as long as a law has “a reasonable relation to a proper legislative purpose,” the courts have no authority to strike it down.

Though he admitted that “the reasonableness of each regulation depends upon the relevant facts,” Roberts still maintained that, once a law is enacted, “every possible presumption is in favor of its validity.” If a “policy may reasonably be deemed to promote public welfare,” judicial review is basically over.

As a practical matter, this strange, circular reasoning means that a legislative body determines for itself whether its bills are constitutional. Merely by passing the law, the legislature settles the question and obliges the courts to accept any explanation offered for it. Such a theory eviscerates meaningful judicial review and leaves the individual defenseless, without any legal recourse against the nearly omnipotent modern state. And, since the Nebbia decision, the courts have only become more deferential.

Conservatives mistakenly associate judicial “activism” with the progressive left, but the New Deal-era progressive judges were actually the architects of the judicial “deference” that reigns today. Traditional common law protections were discarded in favor of expedience: the desire to get out of government’s way as it systematically planned, monitored, and regulated society as it saw fit.

The liberalism of the previous century was likewise treated with an arrogant and imperious contempt. Quaint notions of individual liberty and inviolable natural rights gave way to the irresistible march of modernity and “scientific” progress, shepherded by their natural steward, the state.

Rational basis tests invert legitimate due process. The burden of proof should be on the government to prove that a law or regulation serves the general welfare. The government should have to factually demonstrate the connection between the law and public health and safety, not merely assert that one mightexist.

But, instead, judges have decided that person challenging a law must confront and rebut every possible argument and hypothetical that the government (or judge) might conjure up in support of its law.

The rational basis test demands that a victim of government overreach prove the impossible, refuting an infinite universe of possible scenarios and rationales that could justify the law. Forget the actual empirical facts — rational basis has no time for such distractions.

On the contrary, the test requires judges to help the government by inventing counterfactual stories that could have justified the law. Even if the law has nothing to do with community health or safety, even if it is openly protectionist, it must be upheld if any flight of fancy could justify it.

Thus, the rational basis “test” is no test at all. It is a hollow, perfunctory gesture as the court abandons its duty of judicial review and leaves the hapless individual at the mercy of capricious government officials and special interests.

The right to choose your occupation is as fundamental a liberty as the right to speak, an indispensable aspect of self-ownership and self-determination. The freedom to make important, personal decisions about your career and your property is the bedrock of peaceful cooperation and civil society. In any society even moderately committed to freedom and legitimate due process, the rational basis test would be inconceivable. The presumption of liberty, like the presumption of innocence, would be the individual’s default position under the law.

Sadly, judges have abandoned their posts, doing the bidding of arbitrary governments and politically powerful economic interests who use the law to prevent competition. To fulfill the Constitution’s guarantee of due process, and to restore our lost liberties, we must scrap the rational basis excuse.

David S.  D'Amato

David S. D’Amato

David S. D’Amato is an attorney and independent scholar whose writing has appeared at the Institute of Economic Affairs, the Future of Freedom Foundation, the Centre for Policy Studies, and the Institute for Ethics and Emerging Technologies.

Scoundrel Judges and the Little Blue Book

The Christian faith was vitally important to early Americans, and we prove it (again!).

Remembering the New England Primer, used to teach children to read for over 200 years.

Illinois Judges Block Citizens from Voting on Term Limits in November 2014 General Election

U.S. Term Limits Senior Fellow Paul Jacob once called the citizen initiative process “the political lifeblood of the people.”

“Without initiative and referendum the politicians can ignore the people and monopolize power,” he added.

Nowhere are Paul’s words more relevant right now than in the state of Illinois, where a citizen committee collected over 590,000 signatures to place a term limits and legislative reform question on the November ballot. If passed, it would have enacted solid eight-year term limits on the Illinois State House and State Senate and cut back on the overall size of the General Assembly.

But that was not to be. Last week, a corrupt alliance of career politicians and activist judges made sure that the term limits initiative would not appear on the ballot. After allies of 29-year Illinois House Speaker Michael Madigan filed a lawsuit against the measure, a circuit court judge ruled it unconstitutional. Then an appeals court concurred with the county judge, and the state Supreme Court refused to hear a final appeal.

The judges, all with political ties to the Speaker, claimed the reforms didn’t make “structural and procedural changes” to the legislature. If term limits and altering the size of a legislative body aren’t “structural and procedural” fixes, then nothing will ever meet the definition. Clearly, this was a case of legislators exploiting any loophole they could find to delay the inevitable.

Now, citizens of the nation’s third most corrupt state are livid. Gubernatorial candidate Bruce Rauner, who also led the term limits initiative committee, tells voters in a new ad to take out their frustrations on Madigan and current Governor Pat Quinn at the ballot box.

Bruce Rauner is Chair of the Term Limits and Reform Committee and a candidate for Governor.

Elections are not term limits, so it remains to be seen whether citizens have the ability to throw out the political machine come November. If elected, Rauner will be able to push for a legislative referral on term limits or a rewrite of the state’s initiative law. Either option could be the magic bullet the state needs to finally free itself from career politicians.

The insider-dominated political atmosphere in Illinois is a cautionary tale for Congress and other states weighing whether to keep or enact term limits. A small group of leaders with indefinite terms will always block reforms that threaten its own power. Under term limits, surrender of power is structurally and procedurally a part of the legislature. Citizens have access to the lawmaking process without fear that self-interest will block the door.

EDITORS NOTE: The featured photo is of Michael Madigan who has been Speaker of the Illinois House for 29 of the past 31 years. it was his associates who filed a lawsuit against the term limits and reform amendment.

A Dirty Little Judicial Secret

USURPATION OF JUDICIAL POWER:

A practice has grown among the judiciary to reserve, exclusively, to a trial judge, the power of judging the law. This is not to say that judges, per se, refuse all knowledge of the Jury’s right to judge the law. Many courts have recognized this right. However, what the judicial branch, per se, does, is refuse to tell a jury of their rights, while at the same time not allowing an attorney to do so either (Sparf & Hansen v. U.S. 1895, 156 U.S. 102).

There are two primary reasons judges insist on being the only definer of the law. 1) Because they believe common jurors are just that – regular people that are not sophisticated enough to understand the law unless a judge explains it to them; 2) Judges do not want to surrender their self-granted power to attorneys.

Judges, officiate in criminal jury trials for the primary purpose of ensuring a fair trial. They are referees or umpires whose duties lie in making sure the playing field is level – not to pass judgement. Judgements are reserved to the jury. Juries decide facts, and when appropriate, judge the law as well.

When a jury judges the law it has been commonly called Jury Nullification. It could be better labeled, Jury Prerogative, a recognition of the juror’s right (duty) to judge the law as well as the facts of a case. Judging the law means comparing a law in question against an accepted standard. In America, the only standard to which a law can be assessed is a constitution, either state or federal.

Jurors do not have the license to judge a law to their personal standard or opinions. To allow one to whimsically decide whether a law is good or bad based upon a personal view would be inviting judicial lawlessness.

Jury Prerogative (nullification) is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution.

HISTORICAL BACKGROUND:

The 6th Amendment to the U.S. constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….” It doesn’t say by a judge; it specifies an IMPARTIAL jury. A government employee, using his or her powerful position to ‘charge’ or ‘instruct’ a jury, is violating the 6th, 9th and 10th Amendments of the U.S. Constitution. A jury that has been subjected to this usurpation of power is no longer impartial – it has been influenced to the judge’s uncontested bias.

Our Constitution, our rule-of-law, was written by laymen for laymen. No where in its articles or amendments is the judicial branch empowered to TELL a jury anything, much less how to apply a law. Some states, in open confrontation to the Constitution, have even gone so far as to require jurors to report fellow jurors who refuse to follow the law as directed by a judge!

Our fore fathers realized that judges, being human, carry their own prejudices. Because of this, the framers of our Constitution did not require judges, during a jury trial, to swear to tell the whole truth and nothing but the truth. In all criminal proceedings witnesses who are going to testify before a jury must swear, under penalty of perjury, to tell the truth. This rule applies to everyone including lawyers, police officers and other government employees even though they have sworn an oath to their office and the Constitution. The judge is immune to this rule of law because he is not expected to testify. Unfortunately, a practice has evolved where judges do testify in the form of their ‘instructions’ or ‘charges’ to the jury. It is during this ‘testimony’ – this propagation of their own power – that the judge will NOT tell the whole truth. The whole truth being a jury’s right and power to decide the constitutionality of a law.

Many precedent setting rulings, dating from the decade of this country’s inception to as late as 1972, have confirmed that Jury Prerogative is a bono fide right and power of a jury.

COMPARATIVE EXAMPLE:

Just for the sake of argument, let’s say that Public Law X makes it a crime to speak or write anything derogatory about any federal employee. Soon thereafter, your car is struck by a vehicle negligently operated by a FBI agent. In the heat of the moment and outraged that this bozo had damaged your new BMW, you call the agent an incompetent jerk whereas you are immediately arrested for violation of Public Law X.

You’re an honest person and do not deny that you made those comments. You place your faith in the fact that Public Law X is obviously in direct violation of the 1st Amendment to the U. S. Constitution. However, and for whatever reason the judge in your trial denies your attorney’s motions for summary judgement, i.e., that Public Law X is unconstitutional. At the conclusion of the trial the judge ‘instructs’ the jury that if they find that you did utter derogatory comments to a federal employee they, the jury, MUST find you guilty as charged. Of course, the jury has the right and power to determine that Public Law X is in violation of the First Amendment. However, if the judge refuses to tell the jury that they have this right and your attorney is not allowed (ibid, Sparf & Hansen) then that leaves you in a shooting war – and without a gun.

JURY PREROGATIVE – WHAT IT IS/IS NOT

Circa 1988, a group of citizens formed a grassroots organization, The Fully Informed Jury Association (www.fija.org). Their intention was to inform jurors of their right to judge laws. However the FIJA misinterpreted the meaning and definition of Jury Nullification/Prerogative and have skewered, twisted and misapplied this 200 year old concept. They promote the notion that juries have the right to decide if a law is good or bad as judged against their own (individual juror’s own) standards of good and bad. (http://fija.org/)

In a recent case, the California Supreme Court (People v. Williams, S066106, 2001), found that a juror who told a trial judge, “I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be the wrong reason.” This juror raised no issue of constitutionality – he was applying the law to his own personal standards. The juror was replaced by an alternate in what has been called a “Jury Nullification” case. It was not. There was no issue of constitutionality at bar.

The California Supreme Court correctly upheld the dismissal of the juror for applying his own standard to what the law meant. To evoke Jury Prerogative, a juror must believe the law under which a defendant is charged is unconstitutional. For example: if a defendant is charged with violation a law “A” and a juror votes for acquittal because this juror believes that law “A” is unfair, defective, unjust, not a good law or the law is stupid, the juror is not doing his duty. However, if the juror is convinced that law “A” is in violation of a state or a federal constitutional guarantee, then the juror is obligated to vote not-guilty.

Jury Prerogative (nullification) is the right and power of a jury to decide the facts of a case and determine the validity of a law by judging the subject law against a state or the federal constitution.

POSSIBLE REMEDIES:

  • Demand a full legal representation. Forcing a defendant to become his own lawyer just for the sake of arguing the law’s constitutionality is a clear violation of the 6th Amendment right to counsel. In other words, it is well established in case law, that the accused is entitled to representation at ALL levels of trial including even pre-trial interrogation and post-trial sentencing. Therefore, how can the courts continue to support Sparf (ibid) which clearly forbids representation at a most critical stage of a trial – the “instructions/charge” to the jury? This quirk of forbidding attorneys to argue the law before the jury, but permit pro se testimony seems to have escaped the logic of the judicial system. By this same reasoning, if the courts are permitted to bar an attorney from presenting evidence, testimony and/or summation concerning the constitutionality of a law, then what is to prevent the court from forbidding an attorney from arguing the credibility of a witness or any other issue before the jury? No doubt the trial judge will deny your request thus allowing you to appeal to a higher court where this matter should be settled.
  • Join the JUDICIAL ACCOUNTABILITY INITIATIVE LAW organization. J.A.I.L. is working to enact Special Grand Juries to sanction judges by levying fines, forfeitures and possible removal from the bench against judges who usurp their powers. (www.jail4judges.org).
  • Consider filing suit against your local Jury Commissioner to require the Jury Prerogative option be disseminated to prospective jurors.
  • If you are charged with a crime and you can show the law under which you are charged is in violation of your state’s or the Federal Constitution, demand a jury trial and mount a challenge to Sparf & Hansen v. U.S.
  • If you are not successful with your challenge to Sparf & Hansen at the trial level, have Plan ‘B’ ready: Consider acting as co-counsel. Because the judge will not advise your jury of their right to judge the law and also refuses your attorney that power, your only option might be to tender the summation yourself.

Acting pro se, you can say almost anything to a jury as acknowledged by the 1972 case, U.S. vs Dougherty (473 F.2d, pg 1137):  “Thus, a defendant’s ability to present his demeanor and often even a kind of testimony, without exposure to impeachment or cross-examination, may be a tactical consequence of pro-se representation, and even a moving cause of its invocation….”

Sidebar: “The law itself is on trial quite as much as the cause which is to be decided.” Harlan F. Stone, Chief Justice U. S. Supreme Court (1941). “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge….” (U.S. vs. Dougherty, 473 F.2d 1139 [1972]). “The jury has a right to judge both the law as well as the fact in controversy.” John Jay, 1st Chief Justice U.S. Supreme Court (1789).

The jury does and always has had, in the words of Justice Holmes, “the power to bring in a verdict in the teeth of both law and facts” (Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53,54,65 L.Ed. 185 [1920]).

© 2014 Chuck Klein www.chuckklein.com

EDITORS NOTE: The featured image is a screenshot of “A dirty little secret” from Frasier episode, “The Show Where Sam Shows Up” in 1995 courtesy of Paramount Television and Grub Street Productions.