Sui Juris – Democratizing the Judiciary

PROLOGUE

Bork, Tushnet & Wolfgram: Three Distinct Legal Philosophies

Importance of Debate over Alternatives to Judicial Supremacy

PART I: THE CONSTITUTIONAL CRISIS:

Judicial Supremacy Has Rewritten Our Constitution.

The Judiciary Undermined The Constitution's Self-Enforceability

The Judicial Problem in a Nutshell

The Appearance of Judicial Corruption

Judge Bork and Judicial Supremacy

Judge Bork Argues Against Moral Theory

Judge Bork's Impossibility of Moral Law

A Philosophy of Moral Law is in Place

Notice from Editor - Parts II, IIA, and IIB of this page have not been released at this time as the ongoing process of the class action suit by We The People Congress for Right To Petition for Redress of Grievances is still before the United States Court of Appeals. An Amicus Brief No. 05-5359, Mar 31, 2006, has been filed by John E. Wolfgram on behalf of the appellants, We The People. Click here to read the Amicus Brief in Adobe Reader format. For information on the progress of suit see the Court Docket and Filings page on the We The People website.

PART II: TWO JUDICIAL PROBLEMS TO BE "DEMOCRATIZED"

PART IIA: Judicial Supremacy

Rules for Democratizing the Judiciary

Supremacy Among the Branches

Professor Tushnet's Theory of Legislative Supremacy

Splitting the Judicial Supremacy Concept

Conclusion to Splitting the Judicial Supremacy Concept

Judicial Supremacy vs. Jury Nullification

PART IIB: Democratizing Judicial Accountability

Sovereign Immunity vs. Judicial Immunity

The Seventh Amendment Solution

Conclusion

DEMOCRATIZING the JUDICIARY

By John E. Wolfgram ⁽²⁾

PROLOGUE

"Democratizing the Judiciary" begins by demonstrating the magnitude of actual judicial power that outstrips the power of Congress and the "Imperial Presidency" combined, with none of their democratic safeguards. We live under an increasingly dictatorial rule of judicial tyranny. The source of that tyranny is "Judicial Supremacy", where the Judiciary is the final interpreter of the Constitution. That makes it supreme to the Constitution itself. The Judiciary is a branch of government. Thus, government is supreme to the Constitution. When you think about it, that means "No Constitution at all". That is our Constitution in Crisis. By "Democratizing the Judiciary" we mean to subjugate it to the democratic processes designed into the Constitution.

After examining the magnitude of the crisis, we focus on the most important issue of our time:"How shall the Constitution and laws be interpreted and applied to actual cases?" Someone must interpret and apply the law. If not the judiciary, then who? And how is justice to be distributed to the People under that system? In search of a solution, we penetrate deeply into the two sources of the judicial problem: Judicial Supremacy and judicial unaccountability.

To gain insight into the problem and range of possible solutions, we compare our principles of Democratizing to those of two other judicial philosophies. The first monopolizes judicial thought today and is based in judicial supremacy. It is represented by conservative Judge Robert Bork's theory of "Original Understanding". ⁽³⁾ The other is based in legislative supremacy as conceived by liberal Professor Mark Tushnet of Georgetown University. ⁽⁴⁾

These three theorists represent the major sectors of legal philosophic debate today.

THE IMPORTANCE OF PHILOSOPHIC DEBATE OVER ALTERNATIVES TO JUDICIAL SUPREMACY

There are three major reasons that this debate over what shall be the developmental path of the judicial philosophy of the United States is important. Let's understand what is at stake.

First is the obvious: The political freedom of the individual. Under judicial supremacy the meaning of the Constitution, the rights and the limitations on government power that it enshrines are dictated by the government's judicial branch. Judicial supremacy means government supremacy over the Constitution, and that translates into supremacy over the people.

Second is the political life of the Nation. The Constitution is written in broad, often sweeping language. What it means in any given situation and how is it to be applied as between government and governed are important questions that should stimulate lively debate. The Constitution is the core of the law. A gray area where its meaning is not clear and reasonable people can disagree, surrounds it. That gray area is where political debate, innovation and experimentation occur. It is the richness of the political life of the nation.

That gray area is also where the Judiciary makes its constitutional decisions, which under judicial supremacy have the force of law. Each time the Court decides an issue it turns the stuff of political debate into matters of law. That takes it out of the debate over what the law is or should be, and by that amount, it impoverishes the political life of the nation.

That is not the end of the story for the Nation. Each turning of gray into black creates more grays and shifts it further and further in one direction away from the original source. That direction has a commonality for succeeding generations of political debate. The issue becomes less and less what the Constitution says or means, and it becomes more and more, what does the government through its judiciary says that the Constitution says or means.

By one judicial decision at a time over 200 years, the government gains control over the politics of the Nation until our Constitution means what it says that it means. Each year there is less and less choice but that we are to be governed in all ways. The only choice is what group shall govern us in all ways. That is the politics of inevitable tyranny choosing a tyrant.

Third: If choosing judicial philosophies that determine the political life of the Nation isn't enough, there are higher stakes: What the "New World Order" shall be, perhaps forever.

The United States, is the "Leader of the Free World" and our political freedom is the standard to which the world compares and develops it's own freedom vs. tyranny concepts.

When they compare to us they are comparing to the product of judicial supremacy. As to most of the world, the thing that stands out most is our accumulation of wealth. What they don't see is that we are vastly controlled by a technologically advanced kind of police state.

They see an ethnically "diverse society". But uniting our diversity is a materialistic society with a consumer driven economy in which everyone competes for the same thing, wealth.

That "wealth" is not only beyond their reach, but because the competition for it motivates and organizes our society, it is an axis for government control over us, and over them.

To those looking in we appear to have freedom because we all strive for what the "free" market produces. But underneath are controls that can and do track us by the numbers. We do not dare to deviate from our government's prescription for what is "good for use".

What we don't see is that the controls are in place for massive abuses of power. Because of government immunities that judicial supremacy created, we have no defense to any injustice government and those of wealth and power who control it, would heap on us.

Understand what is going on. The Constitution, on paper, limits government and protects rights. While it is designed to protect us from government injustice, it also puts the police, judicial machinery, and the military into place to protect government. That system is supposed to protect us from abuses by government, but that same system can turn against us.

Judicial Supremacy is not just a theory. It describes the absoluteness of power that makes government so absolutely corrupt that you can not expect justice from it. For good or for bad, we live in a market economy where everything is for sale, save only those things the government prevents from entering the market place. Of all things that a free people do not want to enter that free market place is the administration of justice so that "justice" becomes a commodity available for purchase by the rich or powerful, but not generally available otherwise.

But that is exactly what our judicial system does. By having corrupted the Constitution with immunity: First, you cannot get justice from government, because it is immune. Second you cannot get justice between yourself and the rich, because judges are unaccountable for dispensing injustice, so justice is for sale, and you do not have the purchase price.

This is our system of "justice" superimposed on our free market that we hold up to the world as "justice, made in America". It lies to the world. It says that this is the result of "domestic justice founded in our Constitution". But it is not based in our Constitution, but in government supremacy over the Constitution, a.k.a., in "no constitution at all". That reality effectively channels the huge economic resources necessary to support the technological advances that we depend on, just as if we were in a continuous state of "national emergency".

That is the totalitarian state where government has the power to direct the economic resources of the Nation, as in Nazi Germany and Soviet Russia. They too had "super power" status and their citizens had all of the "rights and freedoms" allowed to workers who, like ants in an American ant colony, preformed their designated function for the honor of the state.

Today, we have treaties through the United Nations that likewise, look good on paper.

The International Declaration of Human Rights and the International Covenant on Civil and Political Rights both should protect human rights and national sovereignty under domestic constitutions. But they are on paper only, and their major function is to allow the "Leader of the Free World" to badger Cuba, China and other "non democratic" regimes for not signing them.

Our ratification is almost meaningless because we can not comply. Our ratifying letters have reservations. While the Treaties contemplate that members will enforce them "pursuant to their Constitutional processes"⁽⁵⁾ our treaty partners don't know that our "Constitutional Processes" are based on anti-constitutional government immunity that defeats rights protections.

Case in point. Article 2 of the International Covenant declares:

"2. Where not already provided for by existing legislative or other measures, each State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant."

Our "Constitutional Process" maintains sovereign and official immunity. So, how is the Treaty to be enforced against our government? Article 3(a) is directly on point. It declares that:

"3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding the violation has been committed "by persons acting in an official capacity."

We pander the Treaty but Human Rights in America are no more protected as a legal matter, then in Cuba or China. ⁽⁶⁾ Examine part (b) of the same Section 3. Each Party is obligated:

"(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;"

We are obligated to "develop the possibilities of judicial remedy" to provide "effective remedies" notwithstanding the violation is "by persons acting in an official capacity". How do you do that when the government and most of its officers have "official immunity"?

The Covenant was adopted in 1966. President Carter recommended it in 1977 and in 1992 it was ratified by the Senate and signed into Law by President George Bush I. In all of that time our Supreme Court not only failed to develop possibilities of judicial remedy, but it refuses to hear any challenges to immunity based on the Petition Clause or the Treaty.

That has a particular significance. The United Nations has treaties requiring members to effectively protect the rights of their citizens. It is important to all constitutional democracies that "moral forms of law" regulate the United Nations, but moral laws are unenforceable because "The Super Power" has a judicial system inconsistent with its own human rights obligations.

That is where we are today. We, who are concerned with unalienable rights into the future, must expose the contradiction inherent in judicial supremacy because that contradiction is about to conquer the World. We need to examine honorable alternatives so that we can participate in such treaties in good faith to our own people. Our failure to do that while there is still time for debate will inevitably subject the world to paper "Constitutional Democracies" that are underneath, institutionalized despotism waiting to unleash worldwide tyranny.

World tyranny can be accomplished through the UN, if, but only if, its constituent members accept the contradiction to effective human rights protection. If that happens, elitist judicial tyranny will become the only form of government on earth. Those are the stakes.

PART I

THE CONSTITUTIONAL CRISIS

Judicial Supremacy Has Rewritten Our Constitution

Thomas Jefferson, in 1819, wrote:

“If this opinion [of judicial supremacy] be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation ... The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

In 1820, he further clarified his rejection of the doctrine of judicial supremacy when he wrote:

“To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps ... And their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal.”

The object of this part is to describe the depth and breadth of The Constitutional Crisis, but not necessarily to detail how it occurred. That was done in "How the Judiciary Stole the Right of Petition", 31 UWLA (summer 2000) Law Review, 257, linked here supra.

A defender of the existing judicial order might observe that the Supreme Court interprets the Constitution a little at a time, and almost as often preserve rights and limit government, as expand government or limit freedom. He would conclude that over time the judiciary strives for balance between liberal and conservative interpretations of the Constitution. So, if all the judiciary does is balance personal freedom against the needs of governing, how can there be such a crisis that the judiciary is said to have "stolen the Constitution"?

The constitutional balance between government and governed does not turn on the number of holdings for or against liberty. A few sweeping anti-constitutional lines of cases undermined the Constitution's democratic protections doing major damage. Then it remedies a little of the damage over many cases to create an illusion of "balancing". ⁽⁷⁾

A prominent example of creating its own importance is the "Exclusionary Rule". Since first conceived ⁽⁸⁾ in 1886 and applied to the states in 1949, ⁽⁹⁾ the Court has addressed it repeatedly.

It is a wholly Court created doctrine to "protect rights". While its cases clarify little, the doctrine busies state and federal courts to amass a fortune in judicial supremacy grandeur. So, for example, in Mapp v Ohio, the Court "noticed" that the Rule should uniformly apply to the states. But it didn't have supervisory power over the states, so it simply transmuted the supervisory rule into a constitutional rule, saying:

"This Court has ever since Weeks, required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required – even if judicially implied – deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a 'form of words'". ⁽¹⁰⁾

A judicial supremacist will reason that it is necessary for judges to create law to protect Rights and to keep over zealous law enforcement in check. But Judicial Supremacy doesn't "fix the Constitution". It breaks it, and then it pretends to fix what it broke and that garners more power for itself, and for the rest of big government. ⁽¹¹⁾

The Judiciary Undermined the Constitution's Self-Enforcing Ability: First, the judiciary broke the Constitution by creating sovereign, official, state and other immunities. That in turn created the complex, compound and convoluted "law" that keeps the judiciary looking important. But that is what contradicts and nullifies the People's Right to hold government accountable under the law for its violations of the law, through compulsory process of the law. ⁽¹²⁾

[ Sovereign immunity at the Federal level is particularly indefensible since "We the People," who ordained and established these United States and created the Federal "sovereign," did not see fit to cloak "our sovereign" with immunity for its actions. However the doctrine has been judicially recognized these past 200 years, planted in dictum by Chief Justice Jay in Chisolm v. Georgia [2 Dall. (2 US) 419 (1793)], fertilized in dictum by Chief Justice Marshall in Cohens v. Virginia [6 Wheat. (19 US) 264 (1821)], and germinating in Clarke v. United States [8 Pet. (19 US) 436 (1834)]. There is no constitutional basis for sovereign immunity, it is purely and simply a judge-made legal anachronism. ]

The point is that without immunity, the Constitution is largely self-enforcing because when government injures people in violation of rights, they can sue for just redress under law.

Having stolen the Right to Petition, the judiciary created quick fixes like the "exclusionary rule" because government is immune from suit for violating rights. Immunity made the Constitution unenforceable, so we free the criminals whose rights are violated.

Worse, as a practical matter, officials are immune from criminal prosecution too. When the Supreme Court ruled that the Fourteenth Amendment did not include the right to indictment of a grand jury, ⁽¹³⁾ it created an unconstitutional expedient for states to prosecute persons for crime without grand jury protection. That shifted political power from the people to the government and made prosecution for both political and victimless "crime" a practical reality.

But it had another result. It undermined the grand jury in its most important function: To weed out corruption in government. That function now falls on politicians who trade in favors instead of prosecuting government corruption. Imagine, for example, a district attorney prosecuting judges who control his power, for crimes against the people. So, for example, California has an unenforceable law directed at judicial corruption. Penal Code Sec. 96.5:

Obstruction of Justice: (a) Every judicial officer, court commissioner or referee who commits any act that he or she knows, or should have known, perverts justice or the due administration of the laws, is guilty of a public offense punishable by imprisonment in the county jail for not more than one year.

(b) Nothing in this section prohibits prosecution under paragraph (5) of subdivision (a) of Section 182 of the Penal Code or any other law." ⁽¹⁴⁾

That's a good law, but it is unenforceable. District attorneys who not only relish the favor of judges, but also participate with the judge in perversions and obstructions of the law, are not likely to prosecute a judge for violating the rights of an accused.

Judicial Supremacy over the Grand Jury: Judges control the selection of grand jurors. In the Capitol of California, the judges are very careful to make sure that the Grand Jury does not "run away" as it did in the mid 1980s when it investigated a "Monica" type affair on the bench. That so embarrassed the judges that they hand picked a "retiring judge" ⁽¹⁵⁾ to be the next grand jury foreman so it couldn't run away again. That "tradition" continues. This year 2001, the foreperson is a former Sacramento mayor. Is she appointed to uncover all of the government corruption she knows of, or to prevent it from embarrassing the powers that be?

Judicial control over the grand jury is more absolute than just hand picking the foreman. If it's not enough that government has a stranglehold on criminal prosecution and on the petty jury through judicial supremacy and its tentacles, but it even controls the grand jury, by oath. ⁽¹⁶⁾

Thus, the Supreme Court's "liberal vs. conservative" contest is only over a little more or less of what the Judiciary has stolen from the Constitution's meaning. In point, our Constitution no longer has the substance necessary to deliver justice between government and governed under the law it proclaims on its face. That is the state of affairs. Our Constitution is no longer designed to limit government, protect rights and redress their violation. Instead, it is a judicially gutted paper tiger that deceives us into believing that we have rights so that we can't see what went wrong as we slip deeper and deeper into a structure for tyranny.

The Sovereign Immunity vs. Right to Petition Issue: Both Federal and state governments have "sovereign immunity" from accountability to the People they injure under color of law. When government consents to suit, its "consent" is muted with complex, compound and convoluted judicial rules calculated to frustrate and deny just redress. "Rights" become "privileges" subject to the "sovereign's" whim.

So, does immunity abridge rights to petition government to redress of grievances, or not?

The First Amendment declares: "Congress shall make no law … abridging the right of the People … to petition the Government for a redress of Grievances." That is the Heart and Soul of our Constitution. But that "Right" is annulled by a doctrine that declares that people may not sue government or its officers without its consent. Think about it. A "Right" that "Congress shall make no law abridging" yet that "Right" may only be exercised with Congress' consent?

Even the staunchest judicial supremacist should have a problem with that logic.

THE PROBLEM, judicial supremacy and sovereign immunity have defied all reason for 200 years.

The Right to Sue Government: An astute judicial supremacist would observe that the Right to Petition does not necessarily include the Right to Sue Government. After all, there are many ways to petition for redress. Why focus only on the "right" to sue government?

Again, there is a short form answer. Without the right to sue government, the rest of the "Right to Petition" is reduced to a beggar's "right" to handouts or favors to those who have something to trade for government's favor; namely, a new nobility of wealth and favor.

The Right to Sue is the Right to drag government, kicking and screaming, before the Courts of Law, and through "The Compulsory Process of the Law", force it to obey the Law and redress its violations of the law.

On what the Right to Sue is, the Supreme Court agrees:

"The right to sue and defend in the courts is the alternative of force. In an organized society, it is the right conservative of all other rights, and lies at the foundation of orderly government." ⁽¹⁷⁾

Understand what an effective Right to Petition means. Government compels itself to obey the law at the behest of interested citizens. The citizen literally has the full power of government to compel it to obey the law as understood and interpreted by other citizens. That right of juries and grand juries to interpret the law is the cornerstone of Constitutional Democracy.

That is the "alternative to force". Without it, all other "rights" are impotent, save one. If government refuses to submit to the rule of law, a free people have no choice but to compel its submission by organizing into militia force to bring government back under the Constitution. That IS the common law upon which the Petition Clause is written, dating all the ways back to the Magna Carta almost eight hundred years ago. ⁽¹⁸⁾

The Judicial Problem in a Nutshell: Government immunity and the Right of Petition are direct contradictions that cannot exist under the same Constitution. That is an immutable law of reason. The Right of Petition is written into the Constitution. Government immunity is not. Can there be any doubt as to which is the supreme law, and which is not law at all? That is the judicial problem in a nutshell. But, where does Sovereign Immunity come from?

The short form answer is "From our judiciary." The judiciary nullified the Right of Petition with government immunity and that doctrine defeats the People's right to justice.

The more astute judicial supremacist will quickly contest that: "Sovereign immunity comes not from our judiciary, but from the Common Law of England that we inherited."

Oh? Let's see if we understand the judicial supremacist's argument.

Our forefathers fought the Revolution of 1776 over the right of self-government and they, not England, won. So when they drafted a Constitution of moral justice between government and governed, it was reasonable to think they had that right. But unknown to them, it was all for naught because our national destiny was not available. It was determined by the "Common Law of England" which, winning the Revolution notwithstanding, we were powerless to reject.

A very interesting form of "law" that England has. We fight and win a war to be free of its control, and we "inherit" all of its barbarian institutions, forever? That sort of takes the fun out of "winning" revolutions. But in fact winning the Revolution set us free before God and world to chose our own form of government and to write it into our Supreme Law. That is our Constitution, as it is written. Let us examine the myths the judiciary designed to enslave us.

First, it is not true that sovereign immunity was the common law of England.⁽¹⁹⁾ English common law is hallmarked with rebellions against sovereign power and the rights and limits to that power that were won in those rebellions are England's Constitution and our common law.

Article 61 of the Magna Carta is the ancestor of our Petition Clause and it proves the point. From 1215, under England's Magna Carta, it is sovereign immunity to injure the people that is unlawful, and armed rebellion against the Crown for abridging just redress, is lawful.

Second, even if it was true, it is generally recognized that we fought and won a Revolution against England on exactly that score. ⁽²⁰⁾ We are not bound by English Common Law.

Third, even if we would "inherit" England's Common Law on that subject; and even if that Common Law were as supposed by judicial supremacists, winning independence gave us the legal and moral right to write something contrary into our own law, and we did that. ⁽²¹⁾

Fourth, where did the rule that we "inherit the Common Law of England" come from? Why, from the same judiciary that conveniently found what it needed to usurp extensive power not allowed under the Constitution. The purpose of the rule is to flout the Constitution, because English Common Law cannot, in law or logic, tell us what our law is under our Constitution. Adopting English Law to regulate the relationship between government and governed assumes that our Constitution does not do that: But by its very terms, that is exactly what it does.

The Constitution, by both its general design and its terms, limits government to powers delegated. Immunity from accountability to these it injures in violation of the law is a power not delegated. ⁽²²⁾ The Tenth Amendment forbids it. Out Constitution is a closed legal and logical system that declares itself and the laws made pursuant to it, to be the supreme law of the land, and that is the only law that it allows. There is no room in it to "inherit sovereign immunity" from England, or from any place else, even if we had no Petition Clause.

But, we do have a Petition Clause. Thus, in addition to the four evidences above that the judiciary corruptly created and maintains sovereign immunity, the entire state and federal judiciary has systematically refused to address the Immunity vs. Petition Clause issue ⁽²³⁾ that is at the heart of the government to governed relationship, for over 200 years. ⁽²⁴⁾

A Constitutional problem of that scope can not plausibly happen in a system designed to be self-correcting, by accident. It is easier to believe in tooth ferries than to believe that for 200 years the issue just simply was never brought to judicial attention; thousands of times.

That Right to Justice between Government and Governed is The Cornerstone of our Civilization. ⁽²⁵⁾ It is a substantive right, not merely procedural. The only way to get just redress is by objective standards of law common to everyone. If government can make special "privileges and immunities" for itself, it will do as it has: Re-design the law to defeat justice.

The Appearance of Judicial Corruption: Part of our Constitutional Crisis is what appears on the face of the "Immunity vs. Petition Clause" issue. It is institutionalized corruption at the heart of the Constitution and it is long overdue that it be declared openly: Immunity is "Immunity to Justice", and if that is law, then necessarily "Injustice is law of the land".

This is corruption of such obvious proportion that No judge can compare sovereign immunity to the Petition Clause and not know which is LAW and which is Corruption of the Law. What judge will say, after 200 years of judicial supremacy, "Whoops, we just didn't notice the plain meaning of the Petition Clause. The whole doctrine of Sovereign Immunity, is void."

No judge or justice wants to be first to discover such an error, so the entire judiciary shuts its eyes and refuses to address the issue notwithstanding that it has been a repeated issue of "First Impression" for 200 years. That is called "a judicial cover-up of the theft of our Constitution".

The scope of the usurpation: Sovereign immunity changes the basic relationship between government and its people from one seeking moral justice under the law to one in which people have no enforceable rights and government has no enforceable limits. That concept of moral justice; of striving to establish Justice and domestic Tranquility is what distinguishes barbarian from civilized society. The Founders designed the Constitution to transform the barbarian rule we rejected as Colonies, into a civilization befitting the dignity of a free people. What more proof that moral Justice between government and governed is to be interpreted into our Constitution is needed, than that it be written into the Preamble to the Constitution?

It is a Primary Right to Effective avenues of just redress for violation of constitutional rights. That is what it means to be civilized. ⁽²⁶⁾ But notice a peculiarity. "Justice" is not a legal, but a moral concept, and it is not stated in our Constitution, but in its Preamble, as its purpose.

Since a Moral Purpose of our Constitution is to "establish Justice", guidance from moral principles like justice, equality, human dignity and liberty, as constituents of "Justice", is necessary to interpret it. Judge Bork argues against using moral concepts in interpreting it, and he declares that any theory of interpretation based in moral law is impossible.

Judge Bork and Judicial Supremacy: President Ronald Reagan nominated Judge Robert Bork to the United States Supreme Court in 1987, saying:

"Judge Bork is recognized as a premier constitutional authority. His outstanding intellect and unrivaled scholarly credentials are reflected in his thoughtful examination of the broad fundamental legal issues of our times....

"Judge Bork, widely regarded as the most prominent and intellectually powerful advocate of judicial restraint, shares my view that judge's personal preferences and values should not be part of their constitutional interpretations. The guiding principle of judicial restraint recognizes that under the Constitution it is the exclusive province of the legislature to enact laws and the role of the courts to interpret them." (President Reagan's Nomination Statement, July 1, 1987.)

1. John E. Wolfgram: BA Degree (University of Wisconsin); JD Degree (Southwestern University, 1977). Law practice in California, 1977 - 1993. In 1961, at age 17, Wolfgram joined the Marine Corps. In 1965 he extended his tour for duty with Third Marine Recon in Vietnam. His job included sitting for days watching and reporting activity deep in enemy territory. That gave him time to think about the arbitrary injustice of war. So began the questioning that led him on a life-long search into the philosophy of law for the domestic causes of unjust war. Eventually, he found it in government's arbitrary powers. And then, as an attorney, he found that the judiciary is the locus of that arbitrary power through its ability to "interpret" the Constitution into government's very own instrument of oppression. He found that the Petition Clause emobdies the Right of the People to compel government to redress its violations of the law under the law; and it had been annulled by judicial decision. With that, the people lost their ability to enforce the Constitution against government. In 1989 he founded the Constitutional Defender Association to advance Petition Clause studies. Its name derives from the fact that the practical value of the Constitution depends on the People's effective ability to enforce it. The Right of Petition is the Constitution's defense against government usurpation and oppressions".

2. Authored a related article: How the Judiciary Stole the Right to Petition, 31 UWLA Law Rev. (Sum. 2000) 257.

3. The Tempting of America; the Political Seduction of the Law. (Simon & Schuster, 1989)

4. Tushnet's breakaway book is "Taking the Constitution Away from the Judiciary". (Princeton Press, 1999)

5. The Declaration of Human Rights, Article 8, expressly recognizes the international importance of enforcing domestic constitutions against national governments. It declares: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or law." Note the emphasized parts: "effective remedy" for violations of constitutional rights. But in point, judicially created and maintained government and official immunity render judicial remedy meaningless, and it nullifies the "rights" secured by the Constitution. Indeed, it renders domestic justice under the law a mirage.

6. In 1998 Amnesty International published a report cynically entitled "United States of America, Rights for All". On the back cover: "This report reveals a persistent and widespread pattern of human rights violations in the USA. .. in this report is part of a worldwide campaign gainst human rights abuses in the USA, Amnesty International challenges the US authorities at all levels: to bring US laws and practices into line with international standards ...".

7. There are four basic democratic processes written into the Constitution. They are:

1. The Right to Petition Government for Redress. (That includes the right to sue government civilly, and on the Writ of Habeas Corpus)
2. The Right to Trial by a Jury informed of its right and duty to interpret the law.
3. The Right to Citizen Controlled Grand Juries.
4. The Right to Vote. The first three have been so controlled and undermined by the judiciary as to be practically nullified. The Right to Vote while having been strengthened as a right is undermined by the loss of all democratic control over elected official accountability inherent in effective Petition, Jury and Grand Jury rights. The result is that we "have the right to choose by vote, which of unaccountable little dictators shall rule us."

8. The Court created the Exclusionary Rule out of Fourth and Fifth Amendment concerns in Boyd v United States, 116 US 616 (1886). The issue was compelling incriminating papers which the Court likened to seizing self-incrimination. It rejected a purely Fourth Amendment Rule until Weeks v United States, 232 US 383 (1914).

9. It wasn't until Wolf v Colorado, 338 US 25 (1949) that the Exclusionary Rule was applied to the States. Then throughout the 1950s, the States had different standards. See Rochin v California, 342 US 165 (1952); Irvine v California, 347 US 128 (1954); Breithaupt v Abram, 352 US 432 (1957), a due process case, was reaffirmed in Schmerber v California, 384 US 557 (1966) on the Fourth Amendment basis. The exclusionary rule was made applicable to the states under federal standards in Mapp v Ohio, 367 US 643 (1961). Exactly where the Supreme Court got the authority to supervise state courts on extra-constitutional doctrine, is anybody's guess.

10. Mapp v Ohio, 367 US 643, 648 (1961). For other examples of transmutation of supervisory rules into constitutional rules and even into an Eleventh Amendment clause, see McCarthy v United States 94 US 459 (1969); Boykin v Alabama, 395 US 238 (1969); and Edleman v Jordan 415 US 651, (1974). The Edleman case is the reverse. The court transmuted a rule of abstention into a Eleventh Amendment Rule. Even clear pro-democracy cases like Brown v Board of Education, 347 US 483 (1954) merely addressed a problem sustained by judicial supremacy in Plessy v Ferguson 163 US 537 (1896) and created in Scott v Sanford, 60 US (19 How.) 393 (1857).

11. The Exclusionary Rule was never totally accepted. A minority of the Court opposed it almost from its inception. Recently, it has been on the decline, and was severely gutted in 1984 by United States v Leon, 486 US 897 (1984) with the creation of the "good faith" exception. More recently, in Arizona v Evans, 514 US 1 (1995) the Court ruled that the exclusionary rule does not apply where the illegal search is the result of an error by a court's clerk. No doubt it will soon be "unconstitutionalized". But we are more interested in what happened in a philosophic sense. What also occurred over the same period is the rise of official unaccountability for constitutional wrongs through expanding immunity doctrines. The Exclusionary Rule is not being replaced because it is no longer needed to protect constitutional rights. It is being replaced because the People have no effective means of suing government for illegal searches and seizures, and other increasingly rampant violations of the Constitution.

12. See "How the Judiciary Stole the Right to Petition", 31 UWLA Law Rev. 257.

13. Hurtado v California, 110 US 516 (1884)

14. Penal Code Sec. 182(5) is conspiracy to obstruct justice. Conspiracy can raise the offense to a felony.

15. After a little vacation, the judge is now sitting on the Sacramento Superior Court Bench, again.

16. Penal Code Sec. 911 is the Grand Juror's Oath. After swearing to support the Constitutions, investigate all crimes within the county and maintain secrecy, the oath ends with: "I will keep the charge that will be given to me by the court." That "charge" is Sec. 914(a). "When the grand jury is impaneled and sworn, it shall be charged by the court. In doing so, the court shall give the grand jurors such information as it deems proper, or as is required by law, as to their duties…". Citizen control of the grand jury has given way to systems for government cover-up.

17. Chambers v Baltimore & Ohio R.R., 207 US 142, 148 (1907)

18. See How the Judiciary Stole the Right to Petition, 31 UWLA Law Rev. 257, 278 et seq. The meaning of our Right of Petition includes its common law origin and development. As a common law concept, the Right of Petition originates in the Magna Carta of 1215, Chapter 61. As originally conceived and won at Runnymede, the Right to Petition includes, when abridged, the right to take up arms and assemble with the community to wage whatever war against government necessary to get just redress, save only that you not molest the person of the king or his family, and that you resubmit to his authority after just redress has been obtained. It is arguably this very meaning of the right, (to rebel, not molest and then resubmit to the King) that accounts for the survival of English Nobility. But, in our common law, the Right of Petition includes the right of Second Amendment recourse to armed force against the government to force it to obey the law when it refuses to voluntarily submit to the compulsory process of law. That is the Democratic Power of the Right of Petition upon which the essential meaning of our Constitution depends.

19. In United States v Lee, 106 US 196 (1882), Justice Miller for the Court discusses the English Right of Petition and finds that after it was established, "it was practiced and observed in the administration of justice in England (and) has been as effective in securing the rights of sutors against the Crown, in all cases appropriate to judicial proceedings as that which the law affords in legal controversies between subjects of the King among themselves." Then Justice Miller goes on to deny that the "common law" applies to the United States saying: "There is in this Country, however, no such thing as the Petition of Right, as there is no such thing as a kingly head to the Nation, nor of any of the states which compose it." He ignores completely the First Amendment embodiment of that Right, and the fact that, if it was so established in England, under the rule otherwise so convenient to the Court, we should have "inherited" it. But, in fact, the Right of Petition was established in Chapter 61 of the Magna Carta, in 1215 A.D. England has not had a "true" "Sovereign Head of the Nation" since then, and that IS our Common Law.

20. The Revolution of 1776. In Bridges v California, (1941) 314 US 252, 263-264, The Supreme Court noticed of English common law: "For, the argument runs, the power of judges to punish by contempt out of court publications tending to obstruct the orderly and fair administration of justice in a pending case was deeply rooted in English common law at the time the Constitution was adopted. That this historical contention is dubious has been persuasively argued elsewhere. (cites omitted) In any event, it need not detain us, for to assume that English common law in this field became ours is to deny the generally accepted historical belief that "one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press." (cite omitted)

21. Our concept of "Constitutional Government" and "Unalienable Rights" is completely different from the pre-existing British Concept. We have a written Constitution and a written Bill of Rights and our Constitution specifies the powers of government. See Article One (vesting legislative powers in Congress, not English Common Law) and see The First Amendment to our Constitution, Petition Clause and the Tenth Amendment. But the British ideas of limits on government while the basis of our own, are not in a written constitution. Rather, Britain's "constitution" and rights comes from an assemblage of documents and age-old practices won in rebellion against the Crown.

22. Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

23. The first published opinion raising the issue of the effect of the Petition Clause on the People's Right to sue their own government is Wolfgram v Wells Fargo, 53 Cal. App. 4^th 43 (1997). While I lost that case, I compelled its publication so that eventually the legal community would become aware that there was such an issue. Its holding is so weak that when tested, it will be rejected, and the issue will emerge in its own right.

24. There are a few cases that address the First Amendment point of the Petition Clause, but none that do it in the context of immunity. The proof of that is in the putting: Try to find one.

25. I can't account for the consistent failure of Supreme Court to address the obvious issue of what the Petition Clause does to both state and federal sovereign immunity concepts. One way to resolve the question of whether the Court intentionally buried that issue is to audit all petitions to it over the last fifty years to determine how many times the issue was presented but not addressed and compare that to the many lesser issues that were addressed.

26. The Right to effective redress of grievances arising under domestic constitutions is specified in Article 8 of the Universal Declaration of Human Rights. A similar right is declared in Article 2, Section 3 of the International Covenant on Civil and Political Rights, concerning rights arising under that treaty. Interestingly, that section specifically requires that persons whose rights are violated "shall have an effective remedy, notwithstanding the violation has been committed by persons acting in an official capacity." That effectively bars sovereign immunity.

John E. Wolfgram, J.D.

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