Radical Reform of the U.S. Legal System

My thesis: Nothing less than a fundamental reformation of the U.S. legal system will usher in a New Age of Justice. I intend to initiate this reformation upon being elected as next President of the United States.

Opening salvo

There are a lot of patriotic, well-intended Americans who genuinely believe: "The USA is a nation of laws, not men." Meaning: The rule of law is paramount here, while in many other places much depends on who you are and who you know.

Increasingly, however, the USA is becoming more and more a nation of influential men who can bend the law to their advantage, leaving We-the-People shorn of our rights like sheep shorn of their wool.

My inspiration

Someone actually bothered to post a response to my blog entitled "Kosovo and US Presidential Power." That someone, calling himself "Polrick," posted this: "Diplomatic Recognition of Kosovo Revisited - A Reply to Steven Searle" - an essay of 1360 words at http://www.onevotematters.com/diplomatic-recognition-of-kosovo-revisited-a-reply-to-steven-searle/

I will respond to some of Polrick's points below. After that, I will make a recommendation to improve the wretched state of our legal system.

Analysis of Polrick's Essay

Point/Counterpoint: The Points below are from Polrick's essay (see link above). The Counterpoints which follow are my responses.

Point

...the propensity of legal scholarship and historical practice support my claim that the President does have the sole power of extending or canceling diplomatic recognition...

Counterpoint

But the actual wording of the Constitution itself does not support Polrick's claim.

Point

Like any text, the US Constitution is open to interpretation ... But the weight of the evidence indicates that Mr. Searle's interpretation of Article 2, Section 3 [of the US Constitution] has not been dominant in US history.

Counterpoint

Polrick is absolutely right about "the weight of the evidence." I admitted as much when I wrote: "Nobody on the planet (except me) is arguing: Bush doesn't have this power" and "I cannot dispute that our president has traditionally wielded this power."

However, it might be useful to ponder how the literal words of the Constitution came, in practice, to acquire their opposite meanings. Expressed another way: "How did our Constitution get hijacked?" Answer: It got hijacked by clever people who redefine words away from their generally accepted meanings.

A good example follows.

Point

The word "shall" in "shall receive ambassadors..." does not require the President to receive anyone who claims to be an ambassador. It simply gives the President the discretion to decide.

Counterpoint

Consider the use of the word "shall" in the First of the Ten Commandments: "You shall have no other gods before Me." To be consistent, Polrick would have to say (using his style of wording, employed above): "The word ‘shall' in ‘You shall have no other gods before Me" does not require you to have no other gods. It simply gives you the discretion to decide."

Bull shit!

Point

As early as 1793, it was widely recognized that the President has the sole power to extend diplomatic recognition.

Counterpoint

Uh huh...and there were people running around then who didn't quite understand the precept that "all men are created equal" - people who wanted to call President George Washington "Your Excellency." Some people are slow to get it. That's what we're here for: To help them get it.

These "slow people" totally buy into what one man (King Louis XIV) said: "I am the state."

It's interesting to me that the President (one man) is claimed to be endowed with the sole right of determining our foreign policy - including the right to grant diplomatic recognition to countries and to recognize Ambassadors. If the Constitution really bestows this power on "His Excellency, the President," then why does Article IV, Section 3 say: "New states may be admitted by the Congress into this union...?"

It doesn't say: "New states [which, prior to admission, are - of course - foreign entities] may be admitted by the Congress into this union - only with the approval of the President?" We seem to have an instance here, where the President has no power concerning this type of foreign affair. [UPDATE (7/19/12): Here I confess to not having been aware, until recently, that Congress and the President decide whether to admit new states.]

Point

In 1798, the US Congress passed the Logan Act (which is still officially on the books). This law made it illegal for any private US citizen to engage in diplomatic negotiations with a foreign government. According to its official description, this law was "an Act to prevent usurpation of Executive functions."

Counterpoint

The Logan Act does not use either word ("diplomatic" or "negotiations") even once. Which is just as well, since only diplomats can carry on diplomatic negotiations. See for yourself: Here's the entire 136-word Act:

QUOTE [Text of the Logan Act: 18 U.S.C. § 953 (2004)]:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

This section shall not abridge the right of a citizen to apply himself, or his agent, to any foreign government, or the agents thereof, for redress of any injury which he may have sustained from such government or any of its agents or subjects.

:UNQUOTE.

This Act [allegedly] seeks to prevent activity by unauthorized, private US citizens "in relation to any disputes or controversies with the United States, or to defeat the measures of the United States..." I could see the point if the Act specifically punished Americans who tried to pass themselves off as diplomats or falsely claim they represent our government.

However, suppose the following: If I were to send a letter to the British government, making it clear I was just a private US citizen, which persuaded them to remove their forces in support of an American military adventure, I could be arrested and imprisoned under the Logan Act. It wouldn’t even matter if my letter failed to persuade the British, as long as it was my intent (which it obviously would be) to influence that foreign government’s policy in support of the US.

Polrick writes: "According to its official description, this law was "an Act to prevent usurpation of Executive functions." I disagree - this Act was not intended to "prevent usurpation of Executive functions." It was intended to intimidate the common man, to lessen his freedom of speech, to gather more and more power unto one man so as to make him like a god (though we call him Mr. President).

We have to worry about this Act being so broad in its prohibitions. Even ex-Presidents, like Jimmy Carter, could be caught in its net. He could have been arrested for going to Syria to speak to a man he knew well - that country's president Bashar al-Assad. [As "fate" would have it, though, Carter was, in his own words, "ordered by the White House not to go" to Syria.]

I shudder to think what would have happened if he had met al-Assad (not in Syria but, for example) in France...assuming the State Department would have decided to let Carter travel at all. Which is another thing: I'm greatly opposed to limiting the right to free speech by controlling the ability of our citizens to travel.

As your next President, I shall have a great deal to say about that.

The fact that the Logan Act is still on the books says a lot about how the ruling elite feels about the common man. Here's how I, as your next President, would feel about the common man:

QUOTE:

By Executive Order, I hereby "abolish" the unconstitutional Logan Act, which is an affront to our basic rights as American citizens to participate in the marketplace of ideas. I "abolish" this Act by [key word follows] authorizing every U.S. citizen to share their ideas with anyone they please, as long as they make it clear they are acting as private citizens and not in the role of U.S. diplomats.

:UNQUOTE.

I know that the President cannot unilaterally declare federal statutes null and void. However, the entire Logan Act can be virtually voided by me if I focus on these six words in that Act: "without authority of the United States." The entire Establishment believes that only the President has power to conduct foreign affairs, and that this power is absolute.

In other words, in this case, the entire Establishment buys into the King Louis XIV doctrine: "I am the state." At least as far as the President and the conduct of foreign policy are concerned.

I will take advantage of this exclusive power (and my possession of it) to "deputize" all of my fellow citizens, sharing this power with them. Actually, I'd only be "giving" them rights they already had all along. Which the Establishment tries so hard, on a daily basis, to reduce.

There! That takes care of the odious Logan Act...but only if you elect me as your next President!

Point

He [James Madison, fourth US President and slave holder - yes, I count that as a black mark against him] believed that the President not only had the sole power of diplomatic recognition, but that he also authenticates - that is, judges - the true status of the foreign representative.

[NOTE 1: I inserted these words above: "James Madison ... him" - Steve Searle]

[NOTE 2: The following Counterpoint goes to the character of James Madison; this shows that we shouldn’t necessarily give a damn what Madison believed or wished.]

Counterpoint

James Madison wrote, "Another of my wishes is to depend as little as possible on the labour of slaves." [See: http://wiki.answers.com/Q/What_was_James_Madison's_view_on_slavery]

Maybe he meant to say, "Another of my wishes is to depend as little as possible on the labour of slaves - unless of course such magnanimity on my part would serve to reduce in any degree my personal wealth."

In either case, I would respond, "That's mighty White of you, Mr. President."

This same link states:

"James Madison was strongly opposed to slavery, and believed that it was bad for both the slave and the slave-holder. However, even though he had this view, Madison kept his slaves for his whole life." There's a special word to describe people like this: hypocrite. [NOTE: Madison also did not arrange to free his slaves upon his death.]

When Polrick wrote (above) "he also authenticates - that is, judges - the true status of the foreign representative," I have to ask: Who is the President (as one man) to judge anybody, even if supported by the likes of James Madison? As to the "true status of (a) foreign representative," I believe that foreign governments are best suited for determining the "true status" of their diplomats, by virtue of having appointed them in the first place.

Point

Edmond Genet arrived in the US from France. He presented his diplomatic credentials, addressed to the US Congress. President Washington would not receive Genet until he returned with diplomatic credentials addressed to the President.

Counterpoint

I think it was rather noble of France to grant credentials addressed to the US Congress, instead of to the President. That was France's way of acknowledging the underlying theme of the American Revolution by, in effect, saying: "We appreciate that your country is blazing a new trail, away from bowing to kings and treating kings as if they were the state. We therefore make this gesture of granting diplomatic credentials, not to a solitary kingly figure but instead to the body [Congress] which represents We-the-People."

George Washington was wrong to not have received Genet, since the Constitution (in plain English) says, "...he [the President] shall receive Ambassadors and other public Ministers..." For this reason alone, George Washington should have been impeached by the Congress [no, I'm not kidding].

The Case of Boehner vs. McDermott:

An Illuminator of our Justice System's Faults

"A federal judge has ordered Rep. Jim McDermott to pay House Minority Leader John Boehner more than $1 million in legal fees in a decade-long dispute over an illegally taped telephone call" - April 1, 2008, Matthew Daly, Associated Press.

Background

QUOTE:

In December of 2004, Rep. McDermott came under investigation by the House Ethics Committee when they had to determine whether he violated standards of conduct for leaking an illegally recorded telephone conversation during a committee investigation in 1997. At that time the committee was investigating the conduct of then-Speaker Newt Gingrich.

The [sic] illegal telephone conversation was recorded by a Florida couple, John and Alice Martin, who overheard a conversation between Rep. Gingrich and top Republicans, on their police scanner inside their car. After listening to the conversation for several minutes they decided to record it, at first for posterity's sake and after listening further decided that it might be important for the Ethics Committee to hear.

It was at that time that they delivered the tape to McDermott, the senior Democrat on the committee at that time, and who was in town for a swearing-in ceremony.

Shortly afterward, Congressman McDermott leaked the tape to several media outlets, including the New York Times.

:UNQUOTE [ http://en.wikipedia.org/wiki/Jim_McDermott#Recorded_telephone_conversations ]

A couple of observations and additional info

·       Boehner really pulled a boner by having been so stupid as to use a cell phone to make this call.

·       Boehner supports President Bush's warrantless wiretapping efforts, though he was miffed that his own call was illegally wiretapped (though I don't see any "wires" here).

·       I believe that the right of the people to know, to the greatest extent possible, about the conspiracies of their elected government leaders must outweigh those leaders' "rights" to privacy.

·       At least McDermott was in a position to fight Boehner's lawsuit - including the ability to use funds from his own campaign war chest. Could the average American survive such expensive and lengthy litigation?

·       In April of 2007, the U.S. Court of Appeals [one of the courts to hear this case] ruled against McDermott in a 5-4 split decision.

The kind of changes I'd like to see

For one thing, I am bothered by 5-4 split decisions in high courts. That would seem to indicate a system so byzantine that equally intelligent judges can easily arrive at opposite conclusions.

I remember reading, decades ago, about a man who had been appointed Chief Justice of the Swiss Supreme Court, who had no legal training whatsoever. In fact, he was a watchmaker by trade. The Swiss attitude was: Law should be simple enough that the average skilled workman should not only be able to understand it but should be able to render judicial decisions based on it.

In keeping with this Swiss doctrine, I support the idea of allowing "Juries" (with a capital "J") of common citizens to decide as many types of cases as possible, specifically disallowing the "services" of lawyers. Sounds outrageous? Perhaps, but there are compelling arguments.

Legal costs and the time it takes for cases to wend their way through the system are outrageous. We-the-People have allowed a monstrous edifice to dominate our lives, which dispenses legal opinions but not much in the way of justice.

Opponents would argue that we would run the risk of different Juries issuing inconsistent opinions in similar cases. Others might claim that litigants would be putting themselves at the mercy of the whims of such Juries. I have to wonder, though, if such whims might be preferable to the (sometimes rather thinly disguised) whims of professional judges. [Yes, I've been a victim of this.]

Inconsistencies could be handled by means of appeal. But not the kind of appeal we're familiar with. As I indicated in my writings on Cross-Sectional Representation, all decisions rendered by such Juries should be overturnable by Congress.

In addition, judges should be reduced to serving only in the role of moderator, with Juries being allowed to make rulings and determine punishments. I would also broaden what may be introduced into evidence and verbally expressed during a trial - completely broaden. This would include the right of any Juror to ask questions during the course of a trial. To me, this seems to be a justifiable expansion on the right of free speech.

Some might argue that such broadening would impinge on the defendant's right to a fair trial. This is a good point, which allows me to close this essay with my conclusion:

Conclusion

We cannot have a better system of justice until we become better people. I call upon all men and women of good conscience to work with me on this. Contribute your thoughts and actions toward the worthy goal of totally revamping our legal system. This includes efforts to uplift and enlighten our society. You (and you know who you are) can do this.

This important work must include helping me to replace all of our elected officials with independents. Democratic and Republican legislators - overwhelmingly lawyers themselves - will fight any attempt to reform our legal system tooth and nail. Quite simply, they've got to go.

Steven Searle for US President in 2012

"If you elect me as your next President, I promise to work with you to add profound meaning to the last three words of the Pledge of Allegiance" - Steve.

The Independent Contractors’ Party