Constitution Day

On September 17, 1787, the Founding Fathers, or rather that special subset now known as “the Framers,” signed the most influential document in American history, the United States Constitution. This document established the framework of our government and the rights and freedoms that “We the People” enjoy today. This will be the 225 anniversary of that founding and fundamental charter of rights and duties and structure and power, but how many people really care, or even know what it is all about?

Many people, in and out of government, blab with often faux reverence about the Constitution, and trumpet about constitutional rights, but how many have bothered to read or understand the Constitution?  I have found that a far higher percentage of people from foreign lands [students, immigrants, naturalized citizens] know the Constitution than do citizens born here.  Too many take the Constitution for granted, which is why absurd things can happen and be said on the political and judicial plane without shrieks of outrage and demands for change and correction.

The Republic was established “by the people,” introducing for the first time in recorded history the notion of popular sovereignty – the doctrine wherein all governmental power derives from the people, not from an anointed, divinely installed monarch: the people are the masters, and the government the servant.  But one would not know that from observing some of the things government does to its people – or that the people’s government does to its masters.

Government gets away with indignities toward the masters because the masters have remained happily ignorant of the founding premises of this Republic.

The upcoming election, or the rhetoric surrounding the campaigns, is emblematic some of the more critical, or pivotal, concerns facing the founding generation.  There are two basic models for the relationship of people to their government.  Government can operate as the perpetual nanny, making fundamental choices for the people, taking care of the people, deciding how much of the fruits of their labor the people can keep while taking an enormous percentage for the “service” of that nannyism, deciding what that labor should be, practicing costly paternalism so that all are safe, even if also individually repressed.  That was the view of King George III and of the Obama-ites, and of the Democrat Party: they know better than you what you should do about fundamental matters, and they will seize as much power as necessary to have their will be done, because the role of government is to make choices for you that serves their view of the public interest.  That is the big government, small liberty model.

The other model is one of small government and big liberty, with choices being made by individuals, with the fruits of their labor being largely kept by those who produced it, with the nature of the labor being a product of free choice acting on a free market-determined economy, with individuals rising or falling based on their own choices and efforts, with power limited to specific and enumerated areas, and with boundless and growing individual liberty.  That was the view of the Framers and of the founding generation, and of certain elements in the Republican and Libertarian Parties, and of originalists like me, and of [to varying extents] the challengers to the Obama-ites: they do not know better than you what you should do with the fruits of your own efforts, and even if some of them think they do, they concede they do not have the power to decide such – the making of those choices is not a government function.  That is the small, limited government, big liberty model.

Between now and September 17, we will have more discussions here about the Constitution, so that when the big day comes, people can finally realize that it is a big day and celebrate it accordingly.  We would not have some of the idiotic comments I hear daily about what the government is doing and should do, and what the two sides of the presidential contest claim they will do if elected, if the people were really educated about what their government was, and was not, empowered to do.

It is interesting that in 2004, federal legislation was passed that requires all schools receiving federal benefits [which means virtually all schools, and all public schools] have an educational celebration about the Constitution on September 17.  How many of you or of your kids are exposed to that event every year?  I have rarely found a school that honors that federal command.

In her retirement speech, Justice Sandra Day O’Connor, the first female supreme court justice [appointed by Reagan], warned that we will lose the Republic unless the people educate themselves about what their Republic is all about – or supposed to be.  I shall try to correct part of what is lacking.

Conservative Attorneys Protect Liberty; Liberals Serve Power

When I point out that fellow constitutional defense attorney John Adams was, like me, a conservative, indeed he was an originator of the American conservative movement, it causes confusion in the minds of some, who think conservatism and rights-protection are dipolar concepts; naïve people think individual rights are protected by liberals and power is advanced by conservatives.  Nothing could be further from the truth, the concepts properly understood.

It is actually the “liberal,” under the modern usage of the misunderstood term, who sides with police power and away from individual liberty, because, as we see from their standard bearer Barack Obama, they are more into collectivization of decision-making than into individual liberty.  What does that have to do with the question?

As Obama let slip recently, to the horror of some liberals who do not like too, too much truth coming out, the liberal view is that individuals are not responsible for what appears to be their achievements; it is the collective that is to be given credit for individual's only apparent successes; indeed, Obama was almost insulting in his declamations against those who would have the temerity to propose that they were responsible for their own successes.  And that attitude translates to the discussion of liberty, and to the nature of defense of those accused of crimes by the collective police power of the state.

You see, if the collective power of the state decides you are a disruption to the peace or security or safety of the community, liberals, who are agents of that collective idea, are far less likely to aggressively attack that collective to save the individual, because individual liberty to liberals is not the ascendant value.

But for conservatives [true conservatives, not police power extremists, who can be of the left or of the right], individual liberty is the intended default position in this Republic.  Therefore, government action which invades precincts of individual liberty is anathema to those devoted to the founding premise that liberty must always trump power, individualism must always trump collectivism.

Indeed, one of the classic examples that modern liberalism is anti-individual liberty can be found in the line-up of justices in the odious Korematsu opinion, which held that the collective interests of the state, even when based on fraudulent paranoia,  was more important than individual liberty.  The Justice Douglases of the world unrepentantly sided with the collective values and against liberty and authorized the incarceration of American citizens, and the government theft of their property, based solely on race, against the conservatives who were aghast at the notion, while we were fighting a war where people were singled out and savaged by another government solely on account of race.  That is, we fought against race-based butchery in Germany and practiced its second cousin right here ourselves, because liberals were in power here.

And you see what I am talking about in this by the nature of my own criminal law practice.  In my true defense of those accused of crimes, I advance a no-holds-barred attack on government when it invades people’s individual liberty, while some of my “liberal” colleagues approach their supposed defense of those accused of crimes by trying to get the best deal or the most comfortable punishment or rehabilitation in lieu of punishment.  That is, I command the Hun to back down; they consort with the Hun to not be so harsh, but with sympathy to the Hun’s “need” to preserve order.

Conservatives work to protect liberty; liberals work to make one’s lack of liberty as comfortable as possible, within the framework of the collective powers’ interests.  Conservatives rebuff power and elevate liberty; liberals genuflect to power and sneer at liberty.  Do you want a rebuffer or a genuflecter?  You are free to choose: that is an attribute of Liberty, but not of Power.  http://www.kennedyforlaw.com

Both Suspects and Attorneys Should Sometimes Shut Up

In law, as in so many other endeavors, sometimes the most difficult thing for people to do is to keep their mouths shut. Suspects want to "explain," as if the grant-driven government is going to have pity and drop its investigation. And attorneys want to unnecessarily find out things or prematurely argue things, reminding the government that they have forgotten to investigate, or to file, or to seek a warrant, or whatever. Sometimes the attorneys are the biggest problem, because the craft focuses, inordinately, on talk, and writing, and blabbing.

Far more cases are put together at the investigation stage because suspects can't shut up, and then proceed to government success at the filing and prosecution stage because lawyers can't shut up, than would otherwise occur in the normal course.

One thing suspects [or people who are not suspects until they open their mouths!] cannot fathom, because it is counter-intuitive to a generation that might have been brought up on the naive notion that government is your friend and is only there to look out for you[!], is that government is not your friend. You might be the sovereigns; you might be the electors; you might be the taxpayers funding their living and thereby your own undoing, but government has only one friend, and that is itself. If government suspects you, or your friends or loved ones, or whomever, politely decline to say anything. Politely. Decline.

Very often a response to that advice sounds in "but I am an honest person." Uh, Hello! I didn't say to lie to the cops; I said to shut up. And you might be an honest person, but government is not - they are allowed by the courts to lie to you to get what they want, even though if you lie to them, it will be deemed consciousness of guilt and possibly a separate and distinct new crime. There is a different standard as between what we [the masters] and our government [the sevants] can do, and the servants are allowed to get away with far, for more than the masters.

The same "shut-up" advice goes for attorneys - yeah, I know you concentrated all through law school of how to verbalize winning [and sometimes scholarly sounding] points, but often now the best argument is none, if it is your clients' liberty and not your vainglory which is of uppermost importance. And if that priority is not what animates you, get out of the profession.

We fought and won a Revolution partially to keep government out of our houses and out of our mouths, and we sully the memory of those blood-soaked heroes [when "hero" had a real, and not merely propaganda, meaning] every time we talk too much or consent too much and thereby shift the balance toward power and away from liberty.

Jury Nullification

Jury nullification was recognized by the Founding Fathers as a legitimate exercise of sovereign power by the true sovereigns here, the people, as represented case by case by the jury. The hostility toward the doctrine comes from government [of which the judiciary is a part], because the government wants to be in charge and does not want the people to have a role in their own governance [neither at the ballot box nor in the jury room]. But the fact that judges tell jurors that they cannot nullify merely reinforces the need for the jurors to do so, because that fundamental power is to protect individuals from all of government, including judges.

The power exists everywhere in this Republic; unfortunately, in some benighted jurisdictions, like California, we cannot inform the jury of that power, but the power exists nontheless.

Here is an interesting item about the nullification law just passed in New Hampshire, reminding all about the power of juries to protect us from overweening government. That power exists here, and is revealed in the shadows of the instructions given, in that you will note that the judges tell jurors that the defendant is "entitled" to an acquittal if there is not enough evidence, but the judges never [and cannot constitutionally!] instruct that if there is enough evidence, the government is "entitled" to a conviction. But one has to have a very savvy jury to understand the expansive meaning from that subtle matter, so I hope we some day start honoring the true sovereigns of the Republic here by passing legislation announcing the existence of jury nullification, which exists, and always has existed, as one of the inalienable rights recognized in the Declaration. "Inalienable" but which the government wants you not to know about!

http://www.policemisconduct.net/jury-nullification-law-signed-new-hampshire-governor/

The Snitch Henry Hill Died of Natural Causes, Proving My Point

http://www.huffingtonpost.com/2012/06/13/henry-hill-dead-goodfellas-dies_n_1592758.html

As his girlfriend told TMZ, Henry Hill's "heart gave out."
======================
He was the model for the "Goodfellas" character played by Ray Liotta.

 

Hearts giving out are the well-deserved wages of being a stool-pigeon. Those who profit from violating confidences are karmaically doomed, because there is nothing lower than a professional rat, and ratting out people who trusted you has a corrosive effect on one's psyche and organism.

 

The interesting thing here, though, is that it proves my oft-repeated assertion that stoolies whose identities are known or get discovered generally do not get whacked, which undermines the need for government to preserve the identities of confidential informants in warrant settings. Of course, far more often than not, those "confidential informants" are permitted by compliant judges to be and to stay "confidential" because they do not even exist!

 

Most of the "confidential, reliable informant told me" stuff that ends up in warrant affidavits, resulting in kicking down residential doors and violating people's liberties, are merely the fantasies of a creative affiant, which they then attribute to a phantom informant, and the judges keep dutifully falling for it. Or at least they keep allowing it, whether or not they believe it!

 

Secrecy in government, and the increasing institutionalization of stool-pigeonry, and the frequent falsification of stool-pigeonry, are corrosive elements in the land of the Free/Home of the Brave.

Bail Setting Corruption; Lawlessness in Rule of Law

Here is a troublesome article about the Monterey judges playing games with bail-setting standards, which bespeaks a bigger issue than just Monterey County:

http://www.montereyherald.com/ci_20873864/monterey-county-judges-raise-bail-rates-already-among?IADID=Search-www.montereyherald.com-www.montereyherald.com

Judges in this state are increasingly out of control when it comes to bail setting, and it is not clear whether their malfeasance in that regard is due to ignorance or purposefulness.  But it is clear that the commission on judicial performance and the judicial council need to get involved to protect the public from these systemic abuses, lest our promise of being governed by the rule of law becomes increasingly fraudulent.

The law of the issue is not a matter of opinion, but a matter of well-established constitutional doctrine.  Without presenting an exegesis of the development of the relevant standards, a brief summary is in order.  State judges are sworn to uphold the United States Constitution, and when there is inconsistency between the federal constitutional standard and any other standard, they must follow the federal rule.  For a bailable offense, bail set in an amount greater than that necessary to guarantee appearance in court is unreasonable under the 8th Amendment to the federal Constitution.  On the politics of bail settings, one hears much about state and local concerns for public safety, and about presuming the truth of the charges, and about bail schedules, and about all sorts of fiddle-faddle to accommodate various political interests, but all of those political concerns must yield in the face of the constitutional standard of individualized assessment of flight risk, period.

But judges, or too many of them, just can’t seem to get their heads around the clear and simple and controlling rule. My paralegal can read the Constitution, why can’t they?  They keep tinkering with schedules and blathering about public safety, with rare invitations to the government to supply proof of flight risk.  Bails get set so high in this state, and in various counties of the state, in comparison to other states and the federal prosecution standard, that one starts to suspect that the judges must be getting re-election campaign fund kickbacks from the insurance companies that own bond companies.

There is no way an accused person in Monterey County is a greater flight risk than an accused person in any other county – these judges are playing politics with constitutional standards, all the while embracing the artifice that the judiciary is not a political branch.  No politician is more political than the one who haughtily claims to be above the political fray.

Every judge who voted for this non-particularizing scheme, and every one of them who sets any bail without an evidence-based flight risk assessment, should be reported to the commission on judicial performance.  My clients are scolded [or worse] by the system for not following the law; more than mere scolding should issue against judges flouting constitutional law in a way impacting individual liberties.

www.kennedyroelaw.com

Thoughts and Observations about Judicial Election, Rapidly Approaching

June 5 is approaching rapidly, and who knows what the outcome will be in the judicial races, but there are some very revealing things which mandate improvement, reflection, consideration, and apologies.

The state Constitution commands that trial court judges sit for election every 6 years. Like it or not, that is the law. Those who do not like the law should work to have it changed, but they should not flout it, nor should they try to con people into not fully enjoying the rights the law gives. [Yes, yes, I know that "rights" are not given by government but inhere in the human condition, but those are the inalienable rights spoken of in the Declaration, not the social compact rights that have to do with non-fundamental, non-reserved things.]

Given that citizens of this state have a constitutional right to subject those who are to serve as their trial court judges to a full, and fully contested election, any affirmative effort to get the voters not to enjoy that right is improper. Moreover, given that voters have a First Amendment right to hear from candidates seeking their vote, and given that the candidates have a First Amendment right to speak to those electors, any effort [especially by people in government] to deny either side the opportunity for that exchange of information is grievous misconduct of a constitutional scope.

There were two judges, and their chum from the local Bar, who trotted around to various organizations, including the local newspaper, arrogantly condemning those who would dare to run against their pals on the bench, and insipidly suggesting that the voters are not smart enough to know who should be their judges - only the sitting judges are smart enough to know, is their self-serving story. But topping off that outrage was pressure they put on the leadership of one local citizens organization to withdraw an invitation already made to me to speak to their membership, 10 minutes before I was to speak. That leadership temporarily caved in and asked me to leave, but they then thought better of it [because of pressure from members who do read and understand the Constitution], and they invited me back the following month. But the damage to our Constitution and to unstated standards of our republican form of government was already inflicted, and it will have to be addressed in the most aggressive terms after the election, regardless of which way the levers are pulled. And from that a new rule of judicial conduct must be promulgated making it per se bench-removal time if any sitting judges put pressure on groups or individuals to not fully enjoy their electoral rights, or to silence candidates, or to invite or disinvite anyone running for office from making a presentation to citizens. The cheeky arrogance involved there merits an apology from the errant judges, both to the citizens and to me. People who do not understand that judges are simply public servants like other politicians tend to give more heed to judges when they make requests and demands, and that must and will stop after this election.

Well, what about judges standing together; doesn't it mean something? Here is an item about the corrupt Orange County Judge, Richard Stanford, and the 62 judges who stood with him, extoling his "virtues"; so much for the merits and validity of support from fellow judges:
http://www.ocregister.com/articles/commission-335139-judge-stanford.html

The electorate needs to understand that they have the full power to decide who is to exercise the public's judicial power, and that power belongs to the people, not to the government nor to the judges. As part of that understanding, they need to realize that the "vetting" we heard so much about regarding the haughty "how dare you vote against judges the governor appoints" message blasted to the electorate by sitting judges and their supporters is a hoax. Indeed, I heard "vetting" and "vetted" more times in the 2 months I have worked on my campaign than during the rest of my life. It is as when an illiterate hears a big, new word, and he then repeats it over and over and over in every conversation for the next year to sound erudite, somewhat making a fool of himself. [Glenn Beck did that with "shift in the paradigm," without comprehending the meaning!]

The only "vetting" that is important in any election, judicial or otherwise, is that done by the voters! The fact that the governor received sifted and selective information about potential appointees and decided from that whom to appoint [mostly Democrats for Democrat governors and mostly Republicans for Republican governors] proves nothing except that the sifting made the political decision easier. In this vaunted "vetting," questionnairs are sent to establishment types who can reliably be counted on not to make waves about who gets appointed - people like me and most aggressive criminal or constitutional lawyers who will be searchingly and fiercely honest about the credentials, or their absence, of people being considered generally do not receive questionnairs! And too, I personally know of one attorney whose assistance has been solicited by several prosepective appointees to edit and polish up the writing samples they were submitting to the governor, because they were functionally illiterate. He/she did help them, some of whom are on the bench! So much for "vetting"!

The vetting by thousands of voters is more valuable than that by one governor, and the qualifications one demonstrates at the time of appointment might be vastly different from what he/she is shown to possess or lack after years on the bench. One of the first questions on the application to the governor is what political party does one belong to and for how long! Is that a "merit" question?

We need to demand of those seeking election/re-election to the bench that they share how they feel about certain legal and constitutional doctrines, so the "vetting" by the electorate is competent. I heard several people who were seeking the voters' support respond to voters' questions with something like "Uh, the canons prevent me from telling you how I feel about such things." GARBAGE! The canons [rules controlling what judges and judicial candidates can/should say] prevent candidates from making "commitments," while expressly recognizing that people do not surrender their constitutional rights of expression to run for the judiciary and have the right to share that information.

The candidates who say they cannot answer voters' questions because of the canons either do not know what the canons say and are simply spouting something they heard someone else say, or they do not want the voters to know either (1) their beliefs, or (2) that they don't know enough about the subject to articulate their beliefs. Any candidate who says he/she cannot answer general questions of law, or any candidate whose representative says that, should automatically be rejected at the ballot box.

Another thing that needs to change is the cost of the candidates' statement in the ballot materials. The voters have a fundamental right to know something about the people on any ballot, and the candidates on the ballot have a fundamental right to share with voters who and what they are. Yet, it costs $17,000 to put the couple hundred word statement in the materails. That is just outrageous, and it guarantees only people who are well-heeled, or who have big money supporters, will be able to share that vital information. There should be no fee for that vital service, if an informed electorate has any value to this "democracy."

One troubling thing arose early on, in regards to this paper's endorsement policies. Knowing that there were 4 races in which the judicial seat was being put up for electoral contest, and knowing that the judges obviously did not want to have to run for election [the judges apparently believing their seats are entitlements sort of like welfare recpients' monthly dole], the paper nevertheless allowed two judges and their attorney pal to meet with the editors to lobby for the judges' position that the voters had no role in the election! I was not invited to present the counter-argument! And then later each judge was allowed to lobby that position too, in the individual interviews. So there was double lobbying by the judges, against which the challengers had to compete in their interviews, but by then the editors had their minds made up and they predictably endorsed the sitting judges because..., well, they are sitting judges! If there is going to be a round of endorsement interviews, the deck should not thus be stacked against the challengers. With it being thus stacked, the enterprise was really a charade.

It is often said that the voting public gets the government it deserves, but sometimes those of us who are concerned about wise and neutral and thoughtful government do not get the government we deserve, because the majority of voters is swayed by improper factors of the sorts suggested here, and otherwise. So, when June 5 gets here, first ask yourself if you like the way things are in this Republic, and in its courtrooms, right now, and then analyze what should be changed and why, and keep in mind that incumbency is not necessarily a virtue - sometimes it is merely a sign of sloth or inertia. If you read my endorsements, you will see that I am supported on the left and on the right, and you can read what individuals have said about me and why. If you want scholarship, neutrality, thoughfulness, respect for all who appear in court, and faithfulness to the Constitution, vote for me. If you are not interested in that, vote for my opponent. www.kennedyforjudge.com