Declaration of Independence - 1776
Articles of Confederation - 1777
The Constitution for the United States, Its Sources and Its Application
Our Enemy, The State by A. J. Nock
The Classic Critique Distinguishing 'Government' from 'STATE'
Trial By Jury by Lysander Spooner
Undermining The Constitution by Thom. J. Norton
A History of Lawless Government
The Law by Frederick Bastiat
Out of Order
Arrogance, Corruption and Incompetence on the Bench
In the words of Thomas Jefferson, the present state of the unconstitutionality of legislation, the usurpation of law in constitutional matters, the almost total usurpation of the powers and rights of state government by the federal government, the decline in the morality and ethics of the nation, runaway injustice, and the rise of the criminal and corrupt factions of society, can be laid on one doorstep, that of the Judiciary.
"The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. This will lay all things at their feet . . . If they do, then . . . I will say, that "against this every man should raise his voice," and more, should uplift his arm."
-- Thomas Jefferson To T. Ritchie, 1820 --
A book was published in 1998, Out of Order - Arrogance, Corruption and Incompetence on the Bench, by Max Boot, from which the title and content of this page are derived. It is a book which has been so little noticed by the public that this January, 2000, a year later, I purchased a new hard-bound copy in a discount bookstore a copy for one tenth the original price.
It is sad comment that the public is so uneducated, unconcerned and blinded to the TRUTH by the media, and that the Judiciary of our once great Nation has been allowed to sink to these depths. And while I say that the conditions that exist today can be laid at one doorstep, that of the Judiciary, I must ultimately say that the fault really lies at our feet, We the People, for it is We the People who have allowed the foxes to guard the henhouse.
With regard to this, hear then the words of James Madison . . .
"A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives."
-- James Madison to W. T. Barry, August 4, 1822 --
And again, these of Thomas Jefferson . . .
"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."
-- Thomas Jefferson to Col. Yancey, 1816 --
Here, therefore, I present the foreward to the book, by the pre-eminent Constitutional Scholar and Jurist in the United States in the closing decades of the 20th century, and the beginning of the 21st, Robert H. Bork, Judge, Supreme Court Nominee and Professor of Law.
BY Robert H. Bork
The SUB-TITLE of this book - "Arrogance, Corruption, and Incompetence on the Bench" - sums up a judicial system that is, to put the matter mildly, not working well. All too often, it is not even performing tolerably. Yet laymen rarely have a complete understanding of what is taking place and those lawyers who do, by and large, become cynically accepting of a system they do not admire but have learned how to work, or at least to live with. This book focuses on American courts, but it may be worth noting that much of what has gone wrong occurs everywhere there is an independent judiciary, and most especially where there is a written constitution. In this context, independence is another word for power. Men and women given unaccountable power will often use it to further their own ends, not the ends of the polity which they exist to serve.
Thus, a wholly unanticipated change has occurred in the governance of all Western industrialized democracies, including the United States, perhaps preeminently the United States. Designed as governments in which legislatures would be dominant, the instruments by which policy is made, these countries have acquiesced in the increasing movement of political decisions into their courts. Judges both write and apply the constitutional law. Nor is this a mere technicality. The constitutional law judges make affects the lives of the citizenry in intimate detail by remaking the cultures in which they live.
The United States, the first government to accept courts that applied a written constitution as law, took longest for this transformation of the judiciary to occur. But the United States has become a model for other countries and the judicialization of their politics took root almost immediately.
Designed to be the least powerful of the three branches of the American government, the judiciary has steadily increased its powers so that in many areas it is both the most powerful and the final authority. In one recent term, inspired by radical egalitarianism, the Court created special rights for homosexuals; through a variant of radical egalitarianism, radical feminism, the Justices decreed the end of single sex public education at the college level; and overcome by the claims of radical individualism, the Court blocked Congress' attempt to make pornography marginally less accessible on cable television. But perhaps the worst decision in this century, a combination of egalitarianism and individualism run amok, was the creation of a constitutional right to abortion in Roe v. Wade, a fifty-one-page opinion containing not a line of legal argument. Two characteristics of those decisions are apparent. First, nothing in the written Constitution supports any one of them. They are entirely Court-made constitutional law, and, for that reason, illegitimate exercises of power. Second, all three decisions press our culture in a single direction, toward the fads of radical individualism and radical egalitarianism dominant in our intellectual class. The Supreme Court is an active partisan on one side of our culture wars.
Nor is this a natural and unplanned development. A majority of the justices could hardly miss the point that they have undertaken to rule where no written or customary law affords them title to do so. A large body of literature complains of their ultra vires actions, not the least vociferous of which is to be found in the opinions of their dissenting colleagues. Hardly anyone has had the temerity to employ rhetoric so unrestrained, fiery, and even violent as have the dissenters. The Court majority remains absolutely unswayed by this criticism. That they know full well what they are doing is shown by their occasional response, which never rests upon theoretical or practical justifications of their behavior, but consists entirely of the assertion that the Court has departed from the law many times in the past. That is true, but it does not support the conclusion that the Court is, for that reason, entitled to do it again. That is hardly more than a claim that past sin justifies further sin. It is as if, having worn a path of judicial activism, the Court is now claiming justification by long usage or prescriptive right, an easement across democratic authority for judicial transgressions.
The most disturbing aspect is that this behavior of judges is not an accident of United States history, politics, or the process by which we select our judges. Judicial usurpation of democratic prerogatives is just about universal wherever judicial independence is an ideal and particularly where there is a written constitution containing a bill of rights. Canada provided for judicial override of democratic decisions in its new constitution. (It also provided for a legislative response to such decisions; more about that later.) Ireland's top court has decriminalized homosexuality as have other courts that have pronounced on the subject. For example, it seems certain that within the next few years American courts will make homosexual marriage a constitutional right. Radical individualism, the privatization of morality, has been particularly powerful with respect to sexual behavior.
Whatever the context, the drive of the courts for power remains a constant. The Israeli court, for example, is said to make our Warren Court seem restrained and modest by comparison. Australia is particularly interesting because its constitution contains no bill of rights and the nation might, for that reason, be thought immune to the excesses of the judicial privatization of morality seen elsewhere. But the Australian Supreme Court has begun to work around that minor difficulty by adopting international norms, derived from treaties and United Nations' resolutions, as the law of the country. These, needless to say, are sufficiently vague to provide ample latitude for judicial innovation.
I once attended an international conference of lawyers and judges which several members of the European Court attended. Facing a union made up of widely different nations and culture, they were especially interested in how the American Supreme Court had largely obliterated the independent authority of the state governments. They were also eager to be instructed in how the American Supreme Court had found new scope for radical individualism and radical egalitarianism in our Bill of Rights. Imperialistic fervor shone from their eyes. There seems no doubt that this court will behave as all Western-style courts do. Jurists are drawn from and respond to the intellectual class. They have in common the belief that their own views are superior, more civilized and just, than those of the public or those they elect to represent them. This assumption of judicial intellectual and moral superiority is not likely to be replaced by judicial modesty, which was the virtue assumed in judges at the outset of the American republic, any time in the foreseeable future.
The same judicial arrogance is evident in the courts' dealings with criminal law. Max Boot has recounted some of the countless cases in which judges have released violent felons on probation without requiring that they serve significant, or any, time in jail. Since violent criminals continue their activities when back on the streets, this is nothing less than a judge sentencing law-abiding citizens, whom he has never seen, to serious injury and death. Such judges do not even consider that what they have done to the innocent would be the unconstitutional infliction of cruel and unusual punishment if it were done to the felon. The criminal is set free, because the judge does not believe in punishment or incarceration, so that the innocent may be murdered, raped, or assaulted.
All of this has been magnified by the Supreme Court's ruling in Miranda v. Arizona. Miranda was the culmination of a series of judicial expressions of sympathy for those accused of crime. First, the Court ruled that evidence seized by the police in violation of the Fourth Amendment (requiring a warrant in most cases and prohibiting unreasonable searches and seizures) could not be used against the accused at trial. Called the "exclusionary rule," that was a large misstep. It meant that perfectly good evidence of a crime committed by the defendant could not be submitted to the jury if the police had gained the evidence in a manner that the courts later determined not to be in accord with the Fourth Amendment. The results were often bizarre. Police who entered an apartment with a search warrant for one kind of goods, for example, were held by the Court to have conducted an unlawful search and seizure when one of them noticed a large, brand-new television set which was out of keeping with the rest of the furnishings. An officer turned the set to see the serial number and determined that the television was on his list of stolen property. The Court, in an exercise reminiscent of theological hair-splitting, held that the police had acted unlawfully and so the stolen property could not be adduced in evidence. Consider that the police, acting in accordance with a warrant, were lawfully in the room with the television set and that its appearance there was highly suspicious. There was no random search and no police brutality, only a reading of the serial number. A crime went unpunished for no intelligible reason whatever.
Confessions could be admitted only if the court determined they were not coerced. That rule made sense because of the unreliability of confessions so obtained. There was a price in criminals going free, but that price was arguably well worth paying. Matters were made much worse, in fact got out of hand, with the Supreme Court's decision in Miranda v. Arizona. There the Court legislated a series of warnings that had to be given a suspect before he confessed. A failure to recite the formula resulted in the exclusion of even voluntarily given confessions. Police picked up a man they were sure had murdered a child. In the course of the ride back to headquarters, one of the officers, not addressing the suspect in particular, said that unless the body were found soon, the family would suffer additionally and the child would never receive a proper burial. The ride continued in silence for some time, and then the suspect, without prompting, told the officers where the body was hidden. The Supreme Court held that this was an interrogation and confession without benefit of the Miranda warnings so that the defendant's statement and the subsequent discovery of the body could not be used in evidence. To call the Court's decision, which resulted in overturning the conviction of a child killer, finicky or hypertechnical would be high praise.
The problem posed by the judiciary in the United States, however, goes far beyond the judges' tendency to rewrite the Constitution and apply, or fail to apply, other laws according to their personal preferences. It is one of the virtues of this book that it calls our attention as well to the problems of corruption and incompetence on the bench. On the federal bench, corruption is a rare phenomenon, but it does occur. There is the legendary case of Judge Martin Manton who sat on the Court of Appeals for the Second Circuit, and who came very close to being nominated for the Supreme Court of the United States. When it became known that Manton took bribes from parties appearing before him, he claimed innocence on the interesting ground that he took bribes from both sides, decided the case on the merits, and then returned the money to the losing party. That defense caused Judge Learned Hand, perhaps the most distinguished court of appeals judge in our history, to call Manton a moral moron. There have been several cases of venal federal judges in recent years. One of them, removed from office by conviction on a bill of impeachment, promptly ran for Congress, and, the voters' concern for judicial integrity being what it is; won.
Sometimes the solicitation is not only explicit but public. Some years ago, a partner of mine attended the annual banquet of Chicago's probate judges. The chief judge rose after dinner to deliver the annual state-of-the-bench address. He said, in ringing tones, "I understand there is a rumor that lawyers have to give the judges of the probate court Christmas presents in order to secure justice. I want to scotch that rumor right now. Justice is not for sale in the probate courts of Chicago. You need not give a judge any present to get a fair decision." He paused, and then said thoughtfully, "On the other hand, use your own judgment."
Incompetence is much more common than venality. (If it weren't, many of our judges would be multimillionaires.) Incompetence is also more apparent to the practicing bar. That sad state of affairs, the want of professional skills, is largely due, as Mr. Boot points out, to the methods by which we select judges. In most of our states, judgeships are elective offices. That is a manifestation of American egalitarianism and probably originally sprang from colonists' fears of appointed judges as agents of the Crown. Whatever its historical roots, the theory that the public is entitled to the kind of judges it wants is all right so far as it goes; the trouble is that the public is massively uninformed about both law and judges. Even when a judge perpetrates an obvious injustice, even when he or she lets violent killers walk free, the public, which may be outraged for a week, has largely forgotten the matter and even the judge's name when the next election comes around. When it comes to constitutional rulings, which affect our lives and our culture at wholesale rather than retail, the public tends to think that the Constitution means anything they like, or at least anything they do not violently disagree with.
Incumbents tend to be reelected easily, often enough aided by cash contributions from the attorneys who appear before them. One result is that the plaintiffs' trial bar has a great deal of influence on the directions the law takes and the way its doctrines are shaped. That bar is one of the few sections of the public that takes a knowledgeable and continuing interest in judges' performance. The kind of judges who are persistently plaintiff-minded in tort actions are likely also to display the soft-hearted attitudes toward criminal defendants and, reinforced by the cultural elite, tend to expand constitutional guarantees in favor radical individualism and egalitarianism, the twin excesses of that elite. The results of the tort explosion are apparent everywhere. Swings have been removed from many public parks and diving boards from pools. A large fraction of the price of a ladder reflects accident insurance costs. Many doctors have been driven from practice. A major corporation has been bankrupted by damages for the manufacture of breast implants, though there is no scientific evidence that the implants do any harm. The most effective morning sickness medicine for pregnant women has been taken off the market, not because it has ever been shown to cause any harm or birth defects, but because the cost of defending the lawsuits became prohibitive. Horrors of this sort abound, to the damage of business and consumers alike, and a major reason is the pro-plaintiffs bias, the incompetence, and the timidity of judges who often send cases to the jury when they should summarily rule the plaintiffs out of court.
We are currently regaled with news stories about outrageous monetary judgments against manufacturers of products and providers of services. Punitive damages, which do not provide recompense for injuries but punishment for the out-of-state corporation for the crime of being from out of the state, have become a national disgrace. As a member of the Department of Justice, I co-authored a report recommending, among other things, an end to diversity jurisdiction to relieve the litigation overload in the federal courts. (Diversity jurisdiction makes the federal courts available in many cases in which the parties are from different states.) Members of the bar were aghast, but I dismissed their fears as mere professional stodginess. Shortly after returning to private life I found myself representing a large corporation in a state court. Local co-counsel warned that I was about to "eat home cookin'." Sure enough, I was, and I did not like the flavor. Diversity jurisdiction now seems to me a fine invention. Running neck-and-neck with local prejudice and venality, however, is simple incompetence. Attorneys with only ambulance-chasing or lobbying experience are routinely placed on the bench. If the public does not know of these matters, lawyers do, but out of justified concern for their livelihoods, confine their protests to gallows humor among themselves. There is, for example, an ornament to the bench known locally as "Judge Necessity," because, as the aphorism has it, "necessity knows no law."
What is to be done, then, about the shambles that is our legal system? Whatever that may be, it will be a long process. As one astute and frustrated state chief justice put it, "Judicial reform is not for the short-winded." A number of cures have been proposed, most of them guaranteed to be ineffective. Switching state judiciaries from elective to appointive would have one large benefit; it would remove the influence of lawyer donations to election campaigns. That certainly would not alleviate all of the problems with state court systems, but it would remove one factor that pushes product and service tort law always in the plaintiffs' direction. It is true that the plaintiffs' bar has been highly successful in getting legislatures to draft ever stricter liability laws, but those are the forums in which policy choices should be made. There is, moreover, a better chance that the interests of potential defendants will receive a hearing in legislatures there than in courts elected with plaintiffs' bar donations. Unfortunately, defendants, who do not have make their livings from lawsuits, class actions, and contingency fees have not organized in the way that plaintiffs' lawyers have.
A shift in the route to the bench could not entirely cure the liberal mindset that characterizes the judiciary. The tendency to go easy on criminals is apparently a long-standing characteristic of the courts. In a classic detective novel published in 1907, the protagonist complains of the laxity of English judges in punishing criminals. Nor is it easy to think of a mechanical solution of the practice of judges to ignore the limits of written constitutions in order to proclaim their own philosophies (if that is not too grand a term) as the law of the land.
Various meliorations have been offered. The United States Constitution appears to give Congress the power to restrict the appellate jurisdiction of the Supreme Court. That tactic, however, would merely shift constitutional issues to state courts, from which they could not be removed without a constitutional amendment. That would cure very little, given the very short life of public indignation about even the most egregious usurpations of democratic prerogatives by state as well as federal courts. Term limits for federal judges would similarly require a constitutional amendment and would probably make matters worse. Judges would realize that they had only a short time to write opinions that make history, and only opinions declaring rights that nobody had previously suspected of lying within the Constitution make history.
At one point, in despair over the Supreme Court's propensity for rewriting the Constitution, I suggested that the document be amended to allow majority votes in the House and Senate to override any federal court decision. The suggestion was treated with disbelief, if not indignation, as a threat to "judicial independence" and "upsetting the system of checks and balances." Well, yes, in a sense it was both of those things. The difficulty is that the ideal of judicial independence was designed to prevent political pressures from affecting the interpretation of the law. Today, the phrase serves as buzz words to prevent interference with political decisions by the courts. Judicial independence was never intended to make courts what they have become, unaccountable and uncheckable partisans in our culture wars. As for the system of checks and balances, there is no check upon the federal courts provided by the Constitution precisely because it was assumed, as Alexander Hamilton, James Madison, and others put it, that there was no need for such a check. The courts were to interpret, not create the law. Placing the federal courts under democratic restraints would in no sense violate the original understanding of their place in our government. At least, it would violate that understanding less than the present practice of the courts does.
Suggestions for the serious reformation of the judicial system ought not be treated with the combination of alarm and scorn that is their usual lot. People forget that such proposals have been consistently offered throughout our history and that they were put forward by some of our most revered public figures: Thomas Jefferson wanted to redirect the course of the courts by impeaching and convicting Federalist judges; Jefferson also proposed that the Supreme Court's constitutional rulings be binding only upon the judicial branch; both Andrew Jackson and Abraham Lincoln simply ignored court orders that they found disagreeable or threatening to the public good and Jackson agreed with Jefferson that Court decisions were not binding on the other branches of the federal government; Robert Lafollette proposed that rulings of the Supreme Court be subject to overruling by a two-thirds vote of the Senate; Learned Hand thought it probably best that the due process clause, the vehicle for the courts' political legislations, be repealed; Franklin Roosevelt proposed "packing" the Supreme Court to make it friendlier to New Deal legislation. Jefferson failed to convict a Justice of the Court on impeachment but Roosevelt's plan might have succeeded had he not presented it disingenuously as an aid to an overworked Court.
The real objection to my proposal to allow legislative override of judicial decisions is not that it is inconsistent with the proper judicial role but is, quite simply, that it would not work. The belief that the courts and their decisions are sacred is too strong. Canada's new constitution provides not only for judicial review of statutes and official acts but for a reciprocal legislative power, both in the Parliament and in the provincial legislatures, to override the acts of the courts. Canada had no long history of judicial supremacy, as we do, and deliberately provided for a democratic check on the courts. If a legislative override would succeed anywhere, it should be in Canada. Legislative efforts to exercise the power given the legislatures by the constitution nonetheless provoked cries of outrage. They are, it is said, impermissible attempts to interfere with judicial independence, and that notwithstanding that the constitutional provision for just such interference. The courts are, apparently, more sacred than the Constitution. The same thing is true in the United States, and it is predictable that a legislative override, were one provided by amendment to the Constitution, would rarely be attempted and even more rarely succeed. The power and independence of the courts lies not in the historical or textual meaning of the Constitution but in moral intimidation.
Nor is this situation likely to change of itself. Our history demonstrates that the courts respond to the dominant social and cultural forces in American life. In the last century that elite consisted of the business class. In this century, the cultural elite is the intellectual class, broadly defined (very broadly defined as the class that makes its living from words and symbols, from the wholesaling or retailing, though rarely the creation, of ideas). In any information age, a time of the supremacy of words and symbols, that situation is likely to continue far into the future. It may even be permanent. For reasons I have gone into elsewhere, the intellectual class is by nature liberal to left-wing. That class combines radical individualism and radical egalitarianism, and those tendencies are clearly observable in the work of the courts.
The courts are both weapons and prizes in our culture wars. If that is true, it means that the courts will alter their behavior only as the culture around them changes. That is a large order, but the change, if there is to be any, must proceed by informed criticism of each of the cultural institutions that creates the present climate. That is the virtue of this book by Max Boot. Our courts are behaving badly and the public, to the degree it can be brought to understand that, will exert force for reform, a reform that must be structural as well as intellectual and moral. Mr. Boot contributes to the necessary understanding of what has gone wrong and why.
I heartily recommend that all concerned citizens obtain and study this book by Mr. Boot, become informed, and help to inform their fellow citizens, so that informed decisions can be made and appropriate measures can be taken the polls.
I suggest also that Judge Robert H. Bork's treatises "The Tempting of America" and Slouching Towards Gomorrah : Modern Liberalism and American Decline be obtained. Robert Bork has written these masterpieces defending the "original understanding" of the American constitution as the ONLY valid approach to constitutional understanding. In his introduction, Bork describes how American institutions have struggled with the temptation of politics and egalitarian outcomes. He sets the tone with the following passage:
"In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."
Judge Bork traces many movements of the Supreme Court from its beginning, through the new deal and into the Warren, Burger and Rehnquist courts, focusing on the slow slide away from original understanding the framers intended. He then devotes several chapters to original understanding, objections to original understanding and various alternative constructions to original understanding. He completes the book with an examination of the political processes mobilized to keep him from being appointed to the Court by President Reagan. I'm no lawyer, and hardly a major student of the constitution. Still, I found this a compelling book "A conservative legal classic!"
A Proposed Solution
Larry Klayman, of Judicial Watch, said, ".....When was the last time that you heard of a federal judge getting in trouble for allegedly taking bribes, banning a lawyer from his courtroom for expressing his opinion or asking a question, sitting on a case for years as the plaintiff goes under financially, or for that matter making one bad decision after another? The answer is almost never. Federal judges, like lawyers, generally protect themselves. Indeed, federal judges -- who are appointed by the president for life, through a system of political patronage -- have rigged the system; complaints of misconduct are investigated by their peers. So it was when Associated Press and The Washington Times recently reported that Chief Judge Norma Holloway Johnson of the U.S. District Court for the District of Columbia had bypassed the random "wheel of fortune" assignment system to send two Chinagate-related criminal cases to recentlyappointed Clinton judicial appointees (who then dismissed the charges) and that eight Clinton-appointed judges, calling themselves the "Magnificent Eight," were holding secret meetings, that Tom Fitton, president of Judicial Watch, felt duty-bound to file a complaint against the nine allegedly offending judges before the U.S. Circuit Court of Appeals for the District of Columbia Circuit, the body which oversees lower court judges. ....."
Judicial Accountability and Integrity Legislation (J.A.I.L.) Proposes An Answer: (As amended 3/1/2000)
(a) Preamble. The House of Representatives finds: that an inordinate and ever-growing number of complaints for willful misconduct have been lodged with Congress involving federal judges across this nation; that the current Title 28 U.S.C. §372(c) (Judicial Misconduct and Disability Act) is in many cases inadequate due to conflicts of interest of judges judging themselves; that judicial integrity is of major importance which affects all areas of our American society. Be it therefore resolved that the House of Representatives assembled hereby enacts the following legislation which shall be known as the "Judicial Accountability and Integrity Legislation."
(b) Definitions. For purposes of this statute:
1. The term "blocking" shall mean any act that impedes the lawful conclusion of a case, to include unreasonable delay and willful rendering of a void judgment or order.
2. The term "federal judge" or "judge" shall mean any federal justice, judge, magistrate, commissioner, or any person shielded by judicial immunity.
3. The term "Juror" shall mean a Special Federal Grand Juror.
4. The term "strike" shall mean an adverse immunity decision based upon bad behavior as set forth by paragraph (c), or a criminal conviction as set forth in paragraph (r).
Where appropriate, the singular shall include the plural, and the plural the singular.
(c) Immunity. Notwithstanding common law or any other provision to the contrary, no immunities shall be extended to any federal judge except as is specifically set forth in this statute. Preserving the purpose of protecting judges from frivolous and harassing actions, no immunity shielding a federal judge shall be construed to extend to any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the Constitution of these United States, all violations of which shall constitute bad behavior.
(d) Special Federal Grand Jury. There is hereby created within the District of Columbia a twenty-five member Special Federal Grand Jury with full federal geographical jurisdiction having power to judge on both law and fact. Their responsibility shall be limited to determining, on an objective standard, whether a civil suit against a federal judge would be frivolous and harassing, or fall within the exclusions of immunity as set forth herein, and whether there is probable cause of criminal conduct by the federal judge complained of.
(e) Professional Counsel. The Special Federal Grand Jury shall have exclusive power to retain non-governmental advisors, special prosecutors, and investigators, as needed, who shall serve no longer than two years, after which term said officers shall be ineligible. However, with permission of the Special Federal Grand Jury, a special prosecutor may prosecute their current cases through all appeals and any applicable complaints to the Special Federal Grand Jury.
(f) Establishment of a Special Federal Grand Jury Seat. A Special Federal Grand Jury seat is hereby created, which seat shall be located in excess of one mile of any federal judicial body.
(g) Annual Funding. Congress hereby deducts two and nine-tenths percent from the gross judicial salaries of all federal judges, which amount shall be deposited regularly into the exclusive trust account created by this statute in paragraph (k) for its operational expenses, together with filing fees under paragraph (h), surcharges under paragraph (i), and fines imposed under paragraph (r).
(h) Filing Fees. Attorneys representing a client filing a civil complaint or answer before the Special Federal Grand Jury, shall at the time of filing pay a fee equal to the filing fee due in a civil appeal to the United States Supreme Court. Individuals filing a civil complaint or answer before the Special Federal Grand Jury in their own behalf as a matter of right, shall, at the time of filing, post a fee of one hundred dollars, or file a declaration, which shall remain confidential, stating they are impoverished and unable to pay and/or object to such fee.
(i) Surcharges. Should this statute lack sufficient funding through its fines, fees, and forfeitures (including deductions in paragraph (g)), Congress may impose appropriate surcharges upon the civil court filing fees of corporate litigants as necessary to make this statute self-supporting, or they may appropriate any and all the necessary funds for the full implementation of this statue by legislation, notwithstanding the two and one-half percent deduction of the salaries of federal judges.
(j) Compensation of Jurors. Each Juror shall receive a salary commensurate to fifty percent of a federal district judge prorated according to the number of days actually served.
(k) Annual Budget. The Special Federal Grand Jury shall have an annual operational budget commensurate to twenty times the combined salaries of the twenty-five Jurors serving full time, which sum shall be initially deposited by Congress into an exclusive trust account to be annually administered by the Controller. Should the trust balance, within any budget year, drop to less than an amount equivalent to the annual gross salaries of fifty federal district judges, the Controller shall so notify Congress which shall replenish the account, prorated based on the actual average expenditures during the budget year. Should the trust balance in any subsequent year exceed the annual operational budget at the beginning of a new budget year, the Controller shall return such excess to the United States Treasury.
(l) Jurisdiction. The Special Federal Grand Jury shall have exclusive power to establish rules assuring their attendance, to provide internal discipline, and to remove any of its members on grounds of misconduct. The Special Federal Grand Jury shall immediately assign a docket number to each complaint brought before it. Except as provided in paragraph (s), no complaint of judicial misconduct shall be considered by the Special Federal Grand Jury unless the complainant shall have first attempted to exhaust all judicial remedies available in the federal courts within the immediately preceding six-month period. Such six-month period, however, shall not commence in complaints of prior fraud or blocking of a lawful conclusion until after the date the Special Federal Grand Jury becomes functional. This provision is intended to apply remedially and retroactively.
(m) Qualifications of Jurors. A Juror shall have attained to the age of thirty years, and have been nine years a citizen of the United States, and an inhabitant of Washington, D.C. Those not eligible for Special Federal Grand Jury service shall include elected and appointed officials, members of the Bar, judges (active or retired), judicial, prosecutorial and law enforcement personnel, without other exclusion except previous adjudication of mental incapacity, imprisonment, or parole from a conviction of a felonious crime against persons.
(n) Selection of Jurors. The Jurors shall serve without compulsion and shall be drawn by public lot by the Secretary of State from names on the voters rolls and any citizen submitting his/her name to the Secretary of State for such drawing.
(o) Service of Jurors. Excluding the establishment of the initial Special Federal Grand Jury, each Juror shall serve one year. No Juror shall serve more than once. On the first day of each month, two persons shall be rotated off the Special Federal Grand Jury and new Citizens seated, except in January it shall be three. Vacancies shall be filled on the first of the following month in addition to the Jurors regularly rotated, and the Juror chosen to fill a vacancy shall complete only the remainder of the term of the Juror replaced. A majority of thirteen shall determine any matter. Special Federal Grand Jury files shall always remain public record following their final determination.
(p) Procedures. The Special Federal Grand Jury shall serve a copy of the filed complaint upon the subject judge and notice to the complainant of such service. The judge shall have thirty days to serve and file an answer. The complainant shall have twenty days to reply to the judge's answer. (Upon timely request, the Special Federal Grand Jury may provide for extensions for good cause.) The Special Federal Grand Jury shall have power to subpoena witnesses, documents, and other tangible evidence, and to examine witnesses under oath. The Special Federal Grand Jury shall determine the causes properly before it with their reasoned findings in writing within one hundred twenty (120) calendar days, serving on all parties their decision on whether immunity shall be barred as a defense to any civil action that may thereafter be pursued against the federal judge. A rehearing may be requested of the Special Federal Grand Jury within twenty days with service upon the opposition. Twenty days shall be allowed to reply thereto. Thereafter, the Special Federal Grand Jury shall render final determination within thirty days. All allegations of the complaint shall be liberally construed in favor of the complainant. The Jurors shall keep in mind, in making their decisions, that they are entrusted by the people of these United States with the duty of restoring a perception of justice and accountability of the federal judiciary, and are not to be swayed by artful presentation by the federal judge. They shall avoid all influence by judicial and government entities. The statute of limitations on any civil suit brought pursuant to this statute against a federal judge shall not commence until the rendering of a final decision by the Special Federal Grand Jury.
(q) Removal. Whenever any federal judge shall have received more than three strikes, the federal judge shall automatically be brought up on charges before Congress for Articles of Impeachment by the Special Federal Grand Jury through its special prosecutor for bad behavior and willful misconduct. Congress thereafter shall commence to a vote on such Articles of Impeachment. Upon a conviction, the federal judge shall be permanently removed from office. He may also be held liable under any other appropriate criminal or civil proceeding.
(r) Indictment. Should the Special Federal Grand Jury also find probable cause of criminal conduct on the part of any federal judge against whom a complaint is docketed, it shall have the power to indict such federal judge except where double jeopardy attaches. The Special Federal Grand Jury shall, without voir dire beyond personal relationship, cause to be impaneled special trial jurors, plus alternates, which trial jurors shall be instructed that they have power to judge both law and fact. The Special Federal Grand Jury shall also select a non-governmental special prosecutor and a federal judge with no more than four years on the bench from a state other than that of the defendant judge, (or outside of the District of Columbia, if the case so be). The trial jury shall be selected from the same pool of jury candidates as any regular federal jury. The special prosecutor shall thereafter prosecute the cause to a conclusion, having all the powers of any other prosecutor within these United States. Upon conviction, the special trial jury shall have exclusive power of sentencing (limited to incarceration, fines and/or community service), which shall be derived by an average of the sentences of the trial jurors.
(s) Criminal Procedures. In addition to any other provisions of this statute, a complaint for criminal conduct of a federal judge may be brought directly to the Special Federal Grand Jury upon all the following prerequisites: (1) an affidavit of criminal conduct has been lodged with the appropriate prosecutorial entity within ninety (90) days of the commission of the alleged conduct; (2) the prosecutor declines to prosecute, or one hundred twenty (120) days has passed following the lodging of such affidavit and prosecution has not commenced; (3) an indictment, if sought, has not been specifically declined on the merits by a Grand Jury; and (4) the criminal statute of limitations has not run. Any criminal conviction (including a plea bargain) under any judicial process shall constitute a strike.
(t) Public Indemnification. No federal judge complained of, or sued civilly by a complainant pursuant to this statute shall be defended at public expense or by any elected or appointed public counsel, nor shall any federal judge be reimbursed from public funds for any losses sustained under this statute.
(u) Redress. The provisions of this statute are in addition to other redress that may exist and are not mutually exclusive.
(v) Preeminence. Preeminence shall be given to this statute in any case of conflicts with any other federal statutes or case law to the contrary. The foreperson of the Special Federal Grand Jury shall read, or cause to be read, this statute to the respective Jurors semi-annually during the first week of business in January and July.
This Proposed Statute was written for Congress by Ronald Branson, whose email address is firstname.lastname@example.org. Ronald Branson is a twice publicly elected representative by the People for the office of the Republican Central Committee for the County of Los Angeles. He currently (2000) represents the 38th Assembly District.
It is the Societal Maxim of All Ages that "If you reward bad behavior in any fashion, you get more bad behavior. Reward only Good Behavior and Punish Bad Behavior, and you will get more Good Behavior and Less Bad Behavior."
To Effect this Maxim in Jurisprudence, the Proper Maxim of the Law should be "Where the Constitution is silent on a subject, the Courts should likewise remain silent."
And now that the would-be legislators and do-gooders of the courts have so futilely inflicted so many unconstitutional systems and injustices upon society, may they finally end where they should have begun:
May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works.
Reproduction of all or any parts of the above text may be used for general information.
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