Advance Internet Edition; Cite As:
31 U. WEST L.A. L. REV. [ page] ( Summer 2000 )
HOW THE JUDICIARY STOLE THE RIGHT TO PETITION
JOHN E. WOLFGRAM(1)
TABLE OF CONTENTS
I.THE HISTORY OF JUDICIAL ARROGANCE TO FOUR CENTRAL ASPECTS OF THE PETITION CLAUSE
A)ASPECT ONE: THE RIGHT OF PETITION FOR REDRESS vs. SOVEREIGN IMMUNITY
B)ASPECT TWO: JUDICIALLY CREATED PERSONAL & OFFICIAL IMMUNITY
C)ASPECT THREE: POLITICAL PERSECUTION FOR EXERCISING PETITION RIGHTS
D)ASPECT FOUR: THE JUDICIAL CONTEMPT FOR PETITIONING TO REDRESS GRIEVANCES WITH GOVERNMENT IN FEDERAL COURT
II.THE DUEL MEANING OF THE PETITION CLAUSE: PROCEDURAL vs. SUBSTANTIVE
III. THE JUDICIARY IS ORGANIZED TO AVOID SUBSTANTIVE REDRESS OF CONSTITUTIONAL GRIEVANCES AND REASONABLE EXPLANATION OF UNREDRESSABILITY
The right (of petition) embraces dissent, and "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen." "[D]eprivation of it would at once be felt by every freeman as a degradation. (2)
This writer accepts the political wisdom and practical truth of the above quotation from a case that he presented and lost to the Court of Appeals. This Article examines the mechanisms by which the government has undermined and stolen the Right of Petition presently, and prospectively. To be sure, it has "practically denied" the Right of Petition.
The theme suggests a practical implication. It is not that government has accomplished the "impossible" of practically denying the right, but rather that the "spirit of liberty" has almost "wholly disappeared and the people have become servile and debased." But "fitness" to exercise the rights of freemen is never determined by the many who have become servile, but by the few who refuse, at any cost, to surrender their rights to government.
It is for those very important few, lawyers, ordinary citizens and patriots, who carry the Nation's full burden of liberty on their shoulders, for whom this Article is written.
Forward: The Supreme Court has addressed the Petition Clause in many contexts, but four central aspects of it have been completely ignored. Those central aspects tell the story of how the Judiciary stole the most important parts of the First Amendment Petition Clause: The right of the individual to enforce his rights against government and its agents.
The First Aspect is the right to sue government for redress. Instead of such a right, "sovereign immunity" is the rule, and government can only be sued according to its consent. Immunity abridges the right to redress grievances with government. This aspect demonstrates that sovereign immunity is unconstitutional and irrational. The reason: The right to petition government for redress and governmental immunity from redress, are direct contradictions. The former is our First Amendment. The latter is the progressive result of Supreme Court decisions.
The Second Aspectis the inconsistency of personal and official immunities with the Petition Clause. Immunity "law" evolved from the Court attempting to navigate between that contradiction, on the one hand, and exposing that its immunity jurisprudence has rendered the Constitution all but unenforceable by the people against their government, on the other. That made the law so unnecessarily complex, compound and convoluted that only the rich can afford the attorneys necessary to protect constitutional rights or prosecute rights violators. That is a two-class society in the making because only the rich can obtain justice under the law.
If there is to be personal or official immunity then there must be alternatives consistent with the Petition Clause. Both Chief Justice Burger and Justice Harlan proposed alternatives in their respective opinions in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).(3) Both the Court, and Congress, has ignored their call.
The Third Aspect is judicial persecution of persons for "criminal exercise" of the Right to Petition. Because the significance of the Petition Clause is so judicially downplayed, United States Attorneys frequently charge protected activity as crimes. Defense lawyers and public defenders are not trained to spot or effectively defend against such abuses. The result is putting thousands of "Political Prisoners" in jail for "criminal exercise" of Petition Clause Rights.
The Right to Petition is necessarily obnoxious to government's will. After all, a petition for redress is a complaint that government violated rights and a demand that it stop, and to compensate the complainant for damages. It should not surprise anyone that government does not want the people doing that effectively. In America, a person who petitions government over grievances of constitutional rights violations that government does not want to hear, can go to prison for felonies like obstruction of justice, bank or mail fraud, or making "false claims."
In the United States today there are thousands of people in federal prisons for acts and intents that were merely an exercise of a Petition Rights that is obnoxious when government (because of immunity) is stone deaf to petitions to redress grievances. It has whole systems of laws to politically persecute those who press their grievances "too far." But the common law history of the Right demonstrates that "too far" is in most cases, a part of the Right of Petition.
The Fourth Aspect is the way the judiciary itself treats the Right of Petition when exercised in the courts. The Court has worked out stringent tests to protect First Amendment Rights requiring government meet standards of "compelling state interest"; "clear and present danger", and striking laws for "vagueness" and "over breadth" that fail the tests. Yet, in petitioning before government's very own courts, the rules are vague, ambiguous, overly broad and judges determine such petitions arbitrarily and without care for the merits by dismissals which are by "law" with prejudice, as if on the merits. Appellate courts simply refuse to address major constitutional issues in unpublished opinions that decide cases without addressing the merits. The Court refuses to hear any of the four aspects raised in this article.
The combined effect of these four arrogances to the Right to Petition leaves the people without effective means to communicate with government through process of law. The Court has often acknowledged that the alternative to judicial process is force. Therefore, in so abridging the right of the people to obtain just redress through the compulsory process of law, the judiciary is setting the people up for violence against government by refusing to hear their cries for justice. That is our government wagging a war of oppression against its own people.
I. THE HISTORY OF JUDICIAL ARROGANCE TO FOUR
CENTRAL ASPECTS OF THE PETITION CLAUSE
A) ASPECT ONE:
The RIGHT of PETITION For REDRESS vs. SOVEREIGN IMMUNITY
Almost from the beginning of our Nation, the Court assumed away a major significance of the Petition Clause, holding that as a sovereign nation, the United States is immune from suit, without addressing the affect of the Constitution generally(4) or of the Petition Clause specifically, on that "sovereign immunity."
In 1793, barely two years after the adoption of the Bill of Rights, Chief Justice Jay first announced the rule giving way to "sovereign immunity" in obiter dictum .(5)He noted that the issue was affected by the difference between a republic and a personal sovereign and saw no reason why a state may not be sued. But he doubted a suit would lie against the United States because "there is no power which the courts can call to their aid" to enforce a judgment. So began America's journey into judicial tyranny. It is based on an irrational fear that if the courts ordered government to redress its wrongs arising under the Constitution, the government could refuse and make the judiciary seem weak.
Judicial cowardice is not a very good reason to refuse to support the Constitution.
Among other things, it assumes that the legislative and executive branches, when faced with a judicial determination that government owes compensation to redress grievances arising under the Constitution, would refuse to support the First Amendment Petition Clause and Fifth Amendment Due Process Clause rather than to raise the taxes necessary to fill an order arising under the Judiciary's Article III jurisdiction.
So, instead of standing tall for the Constitution and its enforceability against the government, our very first Supreme Court announced the "Rule of Unaccountability" of government to the people. That rule is this:
"Because the Judiciary cannot enforce its order against the government requiring it to be fair and just under the Constitution, the judiciary will not require it to be."
That is hardly a rule upon which to found a great nation, but it is the rule upon which the relationship between the American Government and its citizens is founded. It is a rule of cowardice under an assumption that government is will basically rule by brute force.
But more than anything, it is a self fulfilling prophesy. It lays the foundations for eventual federal arrogance to state and individual rights.
In Cohens v. Virginia, (6) Chief Justice Marshall avoided Justice Jay's weakness by simply asserting "the universally received opinion is that no suit can be commenced or prosecuted against the United States." Later, In United States v. Clarke, (7) he declared that because the United States is not "suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it."(8)
There can see from the trail of cases a common design to ignore the Petition Clause and the "Petition of Right" that it necessarily implies, without addressing it, but without specifically denying it either. In that sense, if the Petition Clause of the First Amendment does not mean that the People have a right to petition for just redress from government under the law that even Congress cannot abridge, what does it mean? Yet, over the first half of the Nineteenth Century, judicial arrogance to the single most important right of justice against government became our "common law", the express declarations and implications of the Constitution as it is written to the contrary, notwithstanding.
The United States v. Lee :(9) It wasn't until 1882 that the "Right of Petition" was discussed at all in the sovereign immunity context. In U.S. v. Lee, Justice Miller held that under the Due Process and Just Compensation clauses government agents could be sued for unlawful takings, as a matter of right. At 27 L. Ed. 176, he "concedes" that sovereign immunity is "the established law of this country, and of this Court at the present day."
Then he discusses the English "Right to Petition." He observes that it is uncertain whether the King "was not suable in his own courts and in his kingly character" but after the Right was established, it "was practiced and observed in the administration of justice in England (and) has been as effective in securing the rights of suitors against the Crown, in all cases appropriate to judicial proceedings, as that which the law affords in legal controversies between the subjects of the King among themselves."
Notice the strange effect. Justice Miller determined that the "Right of Petition" is a part of the common law that we would normally inherit from England absent anything to the contrary in our Constitution. But he doesn't treat it like that at all. What he does is to assume away our Petition Clause without so much as a curtsy to it:
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. There is vested in no officer or body the authority to consent that the State shall be sued, except in the law making power, which may give such consent on the terms that it may choose to impose.(10) ( emphasis added).
Justice Miller's statement is absolutely false. If the Framers, noticing the English "Petition of Right", wrote it into the First Amendment as they wrote other "common law" rights into it, then it is our right too. No act of Congress is necessary to give it effect. In fact, the First Amendment precludes Congress from making any law "abridging" it. That is the strongest argument possible for a Right to sue government directly: It is written into our Constitution and may not be abridged even by Congress.
The issue is The People's Right to hold government to Constitutional restraint. If they cannot hold it to account for such violations, then either the Constitution is not the supreme law, or the supreme law does not bind government. The supreme law of the land must be as binding on government when government doesn't like it as it is on citizens whether they like it or not. If either the people or government do not like certain constitutional clauses the remedy is to amend the Constitution, not "interpret" it contrary to its express and contextual meanings. The Constitution contains its own terms for amendment, and "judicial fiat" is not among them.
The Defense of Sovereign Immunity: The fallacies of sovereign immunity are best seen through its defense in the Lee dissent. It has only two basic propositions.
The first is that the United States is a "sovereign", and as such, cannot be sued without its consent. The Second is a parade of horribles, if the Sovereign is subject to suit.
The first argument: "The United States is Sovereign and cannot be sued".
That maxim (immunity from suit) is not limited to a monarchy, but is of equal force in a republic. In the one, as in the other, it is essential to the common defense and general welfare, that the Sovereign should not, without his consent, be dispossessed by judicial process, of forts, arsenals, military posts and ships of war necessary to guard the national existence against insurrection and invasion; of custom houses and revenue cutters, employed in the collection of revenues; or of light-houses and light-ships established for the security of commerce with foreign Nations and among different parts of the country.(11)
This argument contains Two Major Fallacies:
The First Fallacy: Where does this idea that government is immune from suit come from? The History of the Right to Sue Government dates to 1215 A.D. and the signing of the Magna Carta . How in that light, is "sovereign immunity from suit" a "maxim?" And even if it were such in England, what would make it a "maxim" in post revolutionary America?
Put more closely to the point raised by the dissent, who determines what is essential to the common defense and general welfare? To be sure, government through the Congress, and even through the executive, has a role. But the People, in framing the Constitution, had first choice of the values to be enshrined. If they determined it is government's duty to redress their grievances for rights violations, it is not for government to re-evaluate that decision, but to carry it into effect. That is the Petition Clause command which "Congress shall make no law abridging."
The first fallacy in defense of sovereign immunity then, is a "boot strap" argument. By assuming that sovereign immunity is a "maxim", the Dissent begs the question at issue.
The Second Fallacy:The argument ignores the government's right of condemnation. Where petition rights would dispose of government of essentials, government has a right to condemn what it needs, but it must pay a just compensation for it. Thus the parade of horribles the Dissent sets out has nothing to do with loss of necessary facilities by judicial process. What they want to protect is government's "right" to take property without just compensation : Theft.
That is today the people's grievance with government: When it comes to the people's rights, the official disposition is the same as that of organized crime: "Take what you want, and don't pay for it unless you get caught and then stonewall the aggrieved into oppression."
The real substantive Petition Clause vs. Sovereign Immunity issue:What sovereign immunity allows government to wrongfully injure its citizens, their liberty and property, without just compensation? It is not injury to rights that is in issue. Rather, it is just compensation for such injury that is in issue: Government wants the right to be a crook.
The idea of government taking what ever it wants by force and oppression is the basic barbarian notion rejected by our Constitution, but resurrected by judicial interpretation. "Immunity" is "justified" by the very ancient (pre Magna Carta ) "common law" of England, where the King took what he wanted and wasted the property and lives of those who resisted.
As to the "parade of horribles" objection, Justice Miller observed:
In this connection, many cases of imaginary evils have been suggested, if the contrary doctrine should prevail. Among these are seizure of vessels of war, invasions of forts and arsenals of the United States. Hypothetical cases of great evils may be suggested by the particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of law must fail .
United States v. Lee allowed suit against the "Sovereign's" officers. But Courts since have given great weight "to the particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of government."(12)
Sovereign Immunity Violates International Law: As shown, sovereign immunity finds no support in our history. It was not in our common law before the Constitution; it is actually prohibited by the Constitution, and its assumption is a living contradiction to the very idea of limited government designed into the Constitution. Sovereign immunity is inconsistent with government accountability for injuries caused in violation of its own law.
Beyond arguments arising out of history and the clear language of the Petition Clause itself, the future prospects of governments remaining unaccountable to their own citizens for the injuries they cause in violation rights, is not very persuasive either. On that point, The Universal Declaration, Art. 8, states the essence of our Petition Clause, as to all governments:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by constitution or by law.
Notice the words "right to an effective remedy ." What is an "effective remedy" for rights violations if it is not the right to sue government for just redress under law? That is a founding treaty of the United States with the United Nations forbidding our government from exercising immunity from its citizens for its violations of Constitutional Rights. Notice here, for later consideration, that the right to an effective remedy, is a substantive right .
The International Covenant (13) Article II, §§ 2 and 3 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.(14)
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 .
(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; (15)
Effective Rights is the Hallmark of Civilization : The argument that the Right of Petition includes the right of use the compulsory process of law against government to redress grievances with it does not depend on any particular idea of the common law or of history. The most important argument of all is that of the Petition Clause as it is written and in its context. What else can be meant by those words then that government is accountable under the law for the wrongs that it does to the people. That is a fundamental concept of civilization, as we know it.
Any barbarian state can say its people have rights and point to a "bill of rights". But "rights" don't mean a thing unless enforceable: People enforce rights, either with bombs and guns, or in a civilized world, through effective compulsory process of law; to wit: The Judicial Remedy.
Sovereign immunity is the judicial theft of the people's right to a civilized relationship between themselves, individually, and their government. It should be seen for what it is.
Concluding Aspect 1: Thus began the myth of governmental sovereignty from the people. Today, the logic flows: Since the United States can only be sued by and through its consent, suits against it can be brought only as prescribed by Congress.(16)
Only Congress can waive immunity. Its officers have no power to waive it.(17)
Even when allowed, suits can be brought only in designated courts.(18) Congress may grant immunity to corporations.(19) And on it goes: Government is immune, by its own declaration, to violate rights with impunity. What are Rights if Government is immune to violate them?
What is a "Right" without the effective right to redress for its violation? Rights means Accountability of Government directly to their own people for violations of their own people's rights. That is the public policy of the United States, by treaty; (20) and by Constitution.
Today, we have treaty obligations to expand judicial remedy to include rights violations "committed by persons acting in official capacity" and requiring effective remedies for violations of domestic law. But we are harnessed with a judiciary that insists on immunity from the people based in the bygone philosophy of "The Divine Right of Kings." Per Justice Jay, the "reason" America adopted that medieval judicial philosophy is his lack of the courage of constitutional conviction. A few years later, Justice Marshall designed judicial supremacy over the Constitution so that it now means whatever The Court says that it means(21). Between them, they found a novel way to avoid the "messy business" of amending the Constitution. We can call that "Constitutional Amendment by Judicial Fiat." It is not legal, and in effect, it undermines the entire reason for having a constitution at all. That is just cause for grievance with our "Justice System.." The problem: How to capture the government's attention?
B) ASPECT TWO:
JUDICIALLY CREATED PERSONAL & OFFICIAL IMMUNITY
Initially, the Petition Clause protects the Right to Petition Government for redress; not necessarily its officers. Hence, while Government may not abridge the right to Petition it for redress, it plausibly may immunize its officials from personally being sued, providing it leaves an unabridged remedy against government for the official's conduct in government's name.(22)
Nothing so epitomizes the danger of abridging the Petition Clause, vis a vis personal immunities, more than Congress' l988 amendment of the Tort Claims Act.
In l971 Chief Justice Burger wrote, in his dissent in Bivens :(23) "The venerable doctrine of respondeat superior (A master is liable for his agent's acts) in our tort law provides an entirely appropriate conceptual basis for this remedy" (directly against government).(24)
The Tort Law, 28 U.S.C. 2674, allowed: "The United States shall be liable, ... in the same manner and to the same extent as a private individual under like circumstances..."
In 1988 Congress amended it to reflect judicial immunities:
... The United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would be available to the employee whose act or omission gave rise to the claim.
The 1988 amendment anticipates future abridgments including by Congress; but Congress didn't conceive of agent immunity until the judiciary made immunity a part of daily life. Given the judicial teaching, that is not surprising, but lest we forget, it is the First Amendment Congress is abridging .(25) The Tort Claims Act is itself, a response by Congress to Court Created Sovereign Immunity, to relieve the harshness of the judicial doctrine. Now Congress endorses it.
Immunity Centralizes Power:The purpose of "Separation of Powers" was to protect the people from a unified "kingly sovereign". But as the judiciary granted special immunities to the other branches, it co-opted their independence and centralized power in the Judiciary. In effect, the judiciary is uniting the "sovereign branches" against the people :(26)
First came absolute immunity to the President.(27)
Then, almost immediately, was absolute immunity to Judges, state and federal;(28)
Then to the President's officers for discretionary acts.(29)
Then to the States; vis a vis a reinterpretation of the Eleventh Amendment to provide the states with immunity from their own rights conscious citizens. (30)
Then qualified immunity to government agents.(31)
With all immunities and "good faith extensions" of it, the law is so convoluted and contradictory that no one knows what the "law" is.(32) That creates arbitrary power in all government officials. They not only have court created immunity, but they live a myth of extended unaccountability far beyond where even the Court ever dreamed it would go.
Notice: This takes the Effective Right to Petition away from the people and centralizes it in the federal government. Having bridged "Separation of Powers" to unite all of the federal government against the governed, it now co-opts the states by bribing them with a shield from their own citizens while amending the Tort Claims Act to take advantage of ever broadening judicial and legislative immunity. Should you be worried about this trend?
This is "Big Government" uniting at all levels against its own people, creating the suspicion and fear that are the conditions for war and terrorism which then justifies more power to chill, punish and intimidate the restlessness it is causing. Such is government, somersaulting out of control, into worse and worse relations to its own people.(33) Yes, you should be worried.
Immunity has its own Momentum: Given sovereign immunity and stare decisis, (34) arguments to extend immunity are much more persuasive than those to curtail it.(35) Such is the result of government's organization to refine itself to do better what it is supposed to do. Unfortunately, under the doctrine of sovereign immunity, the primary thing government is "supposed to do" is protect itself from accountability to the people for violating there Constitutional Rights.
Eventually, the Court recognized Congress' power to "abrogate" state immunity for violation of Civil Rights; Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)(36) and the Commerce Clause; Pennsylvania v. Union Gas Co. 491 U.S. 1 (1989). But the "doctrine" of abrogation is a token to pacify Congress and conceal the true fact that Congress has no practical control over immunity at all. The law is so complex that immunity exists, as a practical matter whenever a judge wants it to; and he is not accountable for deprivation of rights to redress, or any constitutional rights. He has absolute immunity too.
As the reader no doubt knows: "Power corrupts and absolute power corrupts absolutely." Immunity is the absoluteness of any limited power, which corrupts absolutely.
This Difference of Orientation: Absent a showdown between sovereign immunity and the Petition Clause, abridgments are increasing because government, from individual agents, up through its organizational levels have organized to defend themselves from accountability based on the "Kings Sovereignty" as a foundational concept in government to governed relations.
This is a pervasive orientation away from the Constitution and human rights, and toward not just "big government" but "sovereign big government" where unaccountability to those injured in the "Sovereign's" name is a national way of life.(37)
And if you think that is a national problem, consider that the United States is by far the World's greatest power; it is not accountable to its own people for its abuses of power, and that abuse of power flows freely into international circles. Given that reality, there is not a nation in the world that should not fear us in the same way that a reasonable person fears a child with a gun. We, as a nation, are capable of, and as a People, conditioned to the arbitrary and unreasonable use of force by government, against its own citizens, and against any nation that stands in the way of the corrupt flows of power from our government into the private sector.
Direct enforceability of the Constitution is the difference between personal loyalty to temporal government vs. loyalty to constitutional principles. Temporal loyalty to government becomes loyalty to every corruption officials undertake in government's name. That is a powerful difference. Of that the difference the Constitution itself requires by oath, "to support this Constitution"(38) and not to support its officers who may fail or refuse to support it.(39)
The Right to a Judicial Remedy is the right to enter an adversarial system. Such systems are supposed to tend toward "excellence". But there is a huge disparity in this system. The people are not organized to defend against government's coercive claims to "immunity", but government is organized to take every advantage, systematically, of opportunities to extend it's agents' immunity. They are agents of the sovereign and entitled to immunity and to all of the highly skilled lawyers necessary to secure their "rights" against a legally disarmed citizenry.
Under the premises, it is no longer an "adversarial system" but a system that has defeated the "Separation of Powers"; co-opted the states; and is now redesigned and manned by a "new nobility" of a "unified sovereign" to promote and protect "government sovereignty" from the people. That is another name for "government unaccountability to the governed", at every level of government, all of the time.
Put another way, with an effective Petition Clause the Nation has 260 million citizen policemen to insure that officials do not sell the Constitution to the highest bidder or to personal desire. Immunity disables the Constitution's "citizen policemen". What is left is government accountable only to itself and to the free wheeling interests of the wealthy. That is a dictatorship in waiting ... for a Hitler, a Stalin; a Pol Pot; or maybe a more charismatic dictator who promises what the wealthy and corporate interests want, and then delivers those interests to infamy.
But America will first find tyranny more diversified. It is called "Judicial Tyranny". It is plain common sense that people are "corruptible" in the absence of effective controls over the means by which they satisfy human desires. That is the principle: "Power corrupts, and absolute power corrupts absolutely." If Lord Acton's Dictum is not "absolutely true"; it is so nearly true that it warns against insulating government power from accountability. Judges have "power" within the meaning of Lord Action's Dictum. Immunity for abuse of power puts such a degree of "absoluteness" into its use and abuse, that if judicial corruption is not the dominant characteristic of our judicial system, it is so rampant within it that the system cannot be trusted by anyone, at any time. Justice goes to the highest bidder, and all bids are kept secret from the people, and even from the participants. If it isn't that way, it looks that way and no one can reasonably determine that it is not that way in any given case.
This is not just because "power corrupts the just", but as the judicial system becomes more the locus of arbitrary power it tends to draw more of those who seek that environment. The Judiciary is a dynamic system of people who adapt to their environment according to principles of human nature. Change the environment to become a safe haven for corruption, as Bradley v. Fisher changed the judiciary after 1872, and "Judicial substance" changes to reflect its new clientele. Its new clientele depend on immunity to wield arbitrary power.
Where once it drew men of iron character and the will to do justice, today the system actively selects in favor of would be politicians who lack the courage to state their convictions, if any they have. They are rewarded with judgeships as "political plums" for political favors traded behind closed doors. The judiciary creates the kind of judges it wants: In Stump v. Sparkman, (40) the Court held that constitutional standards are not enforceable against judges, even where the violations are in excess of jurisdiction and corrupt or malicious.
Over the 135 years since the Civil War, the Court has redesigned the judiciary and indeed, all of government, to protect and promote corruption in office. If Judges are not corrupt when they became judges, the system offers an irresistible occasion to become corrupt because it gives them the power to violate the rights of the people who our Supreme Court has ruled, shall have no effective recourse against them.
As official immunity causes endemic corruption, the stepping stones for a new, modern day Hitler in the United States is through 20,000 insulated judges protecting themselves and all of government from accountability to the people they injure in violation Constitutional Rights. They are insulated from all accountability, except one. That is accountability to their "superiors." Who are their "superiors?" They are government officials who hold the same arbitrary power over the judges that the judges hold over us. And they also hold arbitrary power to dispense government favors to private parties and to other nations; favors we pay for, and favors that can get us into war; war without accountability by those who make war, to anyone.
Is this just cause for a rights conscious people to distrust their "justice system?"
C) ASPECT THREE
POLITICAL PERSECUTION FOR EXERCISING PETITION RIGHTS
The Right of Petition in History: In order to understand why government takes such a dim view of the Petition Clause we must realize its historical context.
About eight hundred years ago King John of England and his upper class nobility had a running dispute with the lower nobility, the barons. The barons had the loyalty of most of the common people and that gave them an advantage at the "ballot box" that consisted of mostly swords and bows and arrows. The people siding with the barons gave them the military power to strongly suggest to King John that it would be in his interests to negotiate a bargain on June 15, in the year 1215 AD at Runningmead. The Great King bowed to the will of a People angered at his incursions against common decency. King John agreed to the terms of what is now the cornerstone of both British and American Constitutional Law: The Magna Carta .
There is something very important about that date.
Since 1215 there has not been a "sovereign" head of state, or "kingly sovereign" in our common law. Examine Chapter 61 of the Magna Carta .You will see why a "common law of sovereign immunity" wherein the king can't be sued without his consent, is utterly false dogma. Our judicial doctrines of sovereign and official immunity depend on that false dogma.
Our Supreme Court's concepts of "sovereign immunity" depend on the idea that we had a "sovereign" in our English Common Law that was not accountable to the people for his wrongs to them. The fact is that there is no such sovereign as the Supreme Court has systematically created in America, for almost 800 years back into our English Common Law.
Very few cases describe the origins of the right of Petition. One such case was brought (and lost) by this writer.(41) The California Appeals Court describes the origin as follows:
A. The Common or Natural Law Origin of the Right to Petition.
The Right to petition for redress of grievances is the right to complain about and to the government. The Magna Carta, chapter 61, purported to grant the right. Now it is viewed as a "natural" right.(42) [It] was confirmed by parliamentary resolution in 1669 as an inherent right (43) and was lodged in the Bill of Rights of 1689.(44) '… it is the right of the subjects to petition the king…[and] all commitments and prosecutions for such petitioning are illegal'.(45) The right embraces dissent, and 'would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen.'(46) '[D]eprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation, -- a simple, primitive, and natural right.'(47)
Understand the significance of those origins: There was war between the royal government and the people and our ancestors were on the verge of tearing the royal government down and replacing it with one of their own choosing. The king was deeply troubled by the prospects of the heavy hand of the executioner's axe, so he had to promise to be good.
But the Magna Carta is not just a document of promises. It embodies the tradition of limited tolerance for government that eventually inspired the Revolution of 1776 and framed the concepts of limited government that were written into our Constitution in 1789. It is that "Common Law Tradition" that is ultimately important because it reminds would be false "sovereigns" that if they get too oppressive, the people can and will tear unconstitutional government down and replace it again, with one that conforms to the Constitution.
That act of tearing government down when it becomes unresponsive to the people's need for justice, and replacing it with a more accountable government, is itself an exercise of the "Right of Petition" when government oppressively abridges its otherwise free exercise.(48)
That is what is meant by the declarations of Commons in 1669 and 1689, that the right of petition is a natural or inherent right. Our Declaration of Independence was an exercise of that inherent right, declaring to the world the refusals of the King to hear the petitions for redress by the Colonies, and the consequences thereof: Rebellion.
Of particular significance here is the means by which the Magna Carta declared that its limitations on government power and respect for rights was to be enforced. That is the common law foundation of our Petition Clause. It is Chapter 61 of the Magna Carta. It is worth examining in detail to get the full flavor of what the Right of Petition really means in the ongoing dialogue between government and governed.(49)
The Magna Carta, Chapter 61.
Since, moreover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant them the underwritten security, namely the barons choose five and twenty barons from the kingdom, whomever they will, who will be bound with all of their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we … or any one of our officers shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offence be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us and, laying the transgression before us, petition to have the transgression redressed without delay. And if we have not corrected the transgression […] within forty days, reckoning from the time that it has been intimated to us […] the four barons aforesaid shall refer the matter to the rest of the five and twenty barons, and those five and twenty barons shall together with the community of the whole realm disdain and distress us in all possible ways, namely by seizing our castles, lands, possessions and in any other way they can until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations toward us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moreover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. …(50)
The development of our common law understanding of the Right of Petition began, but didn't end with the Magna Carta . Over the next 450 years it became the cornerstone upon which the House of Commons built its relationship with the King. Then in 1669, Commons resolved with authority that every commoner in England had "the inherent right to prepare and present petitions" to Commons "in case of grievance" and for Commons to receive the same and judge its fitness. Twenty years later, after the "Glorious Revolution" Chapter 5 of the "Bill of Rights" of 1689 declared the Right of the Subjects to Petition the King directly, and "all commitments and prosecutions for such petitioning to be illegal."(51)
That is our "common law". It explains why our Supreme Court said of it:
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.(52)
That is what the Right of Petition is. It is the right conservative of all others. It is designed to bring government to account under the law of the land, or by force if necessary, for the violation of other rights. It is so powerful that its free use will prevent the hostilities of war between government and governed and the mere promise to respect it can restore peace to warring factions because it is the instrument of justice under law, as between government and governed. It is intended to subject government to the compulsory process of law when government does not want to fairly redress the grievance. It is so important that "law" without it, is "law without justice", and that is another name for oppression.
Abridgment of the Right of Petition is advance notice of government's intent to relentlessly oppress its people. We in America, whose right of petition is so abridged and burdened by government created immunities from redress and accountability, are on notice of government's intent to progressively and relentlessly oppress us into tyranny.
Understand something: "Government's intent to oppress" is not an intention agreed to by officials meeting in secret and designing a program of oppression. Such a "secret conspiracy" is not what we are talking about. What we are talking about is the natural and inevitable result of increasing abridgment of petition rights, whether protected by a constitution or not. That's what it means to be a "natural" or "unalienable right." Abridgment of the right to complain to the oppressor about his oppression is necessarily unnatural and progressively oppressive and that lays the seeds of rebellion and the foundations for terrorism.
But there is something uniquely threatening about oppressing the unalienable right of petition because it is the "right conservative of all others." The reason government abridges it is to allow its officers to violate all other rights with impunity and unaccountability. When government does that, there is only one just and proper response: To throw off such government by any means necessary. That is the bottom line of the "unalienable right of petition for redress."
The Scope of the Right: It is important to understand what the full scope of the right entails. The right to petition government for redress of grievances includes recourse to force and violence against the government when it abridges the free exercise of that right. Read the Magna Carta, Chapter 61 again. If the formal process for exercising the right is abridged, it describes in detail what the unredressed aggrieved can do. He may harass and molest the government in every way to get justice, save only that he not molest the physical persons of the King or His Family.
What does this mean? It means that the legal or constitutional "Right of Petition" includes the people's natural right of rebellion against oppression when government so abridges the established processes for petitioning it for just redress.
In a real sense, the Right of Petition is like the right of self-defense. Where a person is justly aggrieved, government has in effect previously assaulted him or his rights. By petitioning for redress, he is exercising his right of self-defense against that onslaught. When government fails or refuses to justly redress, the conditions of assault and aggrievement continue and the individual is entitled by that right, to take greater and greater measures to obtain justice from his government oppressor, as his means of self defense against government oppression.
Violence in response to oppression is a natural expression of the Right of Petition when its non-violent expression is abridged. Just as the common law countenances the violence necessary to defend oneself, so too it authorizes violence against government necessary to get its attention, when it abridges the non violent avenues of seeking just redress for its wrongs.
Just as government has a primary duty to provide police and military protection for the people, government has a primary duty to justly redress the people's grievances against it.
That is a non-delegable duty that goes to the very essence of government functions. Who will tolerate a government that systematically levies injustice upon the people? The duty to redress grievances justly is the duty to provide systems of justice for the people. Police or military powers without domestic justice between government and governed is tyranny