Reality of Rights
Jon Roland

All that most people think they know about the U.S. Constitution is that it "protects" some of their "rights", and they think all they have to do is invoke some provision of that Constitution before a government official, such as a judge, and that official will cease any neglect or abuse in which he might have been engaged, and immediately protect their rights for them.

What they think is wrong. It is a dangerous myth that impedes their ability to get the protection of their rights they deserve.

I have a lawyer friend who honestly believes the Right of Petition in the First Amendment is not just protection against being penalized for making a petition, but an affirmative right to have a petition heard and decided on its merits, and that "judicial immunity" is an infringement on that right.^[1] He makes a case that seems convincing, but he is wrong, and it is important to understand why.

The principle that the Petition Clause only protects against being penalized for petitioning is well-established in history and law, as well as in the grammer of the clause. Many, however, reach beyond that for the right of oyer and terminer, and that is not an established right. The closest to it are the Equal Protection clauses, which don't protect the right of oyer and terminer, but the right of an equal (by some definition) opportunity for oyer and terminer. In other words, the right is not to get a hearing and decision on the merits of any claim, but not to be unfairly denied the chance for such hearing and decision. To argue that a right of equal opportunity for oyer and terminer arises from the Petition Clause is basing it on the wrong clause.

The result they are seeking is based on other clauses than the Petition Clause, namely the Equal Protection clauses, and the prohibitions against titles of nobility. All these immunities of government officials are violations of the Nobility Clauses, if the Constitution were being enforced as originally understood. Of course it is not, and is not likely to be until we replace the present legal establishment with one that is better educated and more devoted to original understanding.

The reason there is not a right of oyer and terminer is that there is no right to scarce resources, and oyer and terminer is a scarce resource (and scarcer than it needs to be). Only an equal opportunity to it can be a right, which could be an equality of no one having the opportunity ever. To remedy that deficiency is a problem for legislation rather than the courts, to provide the funding necessary so every cause can be heard and decided by a court. At present, legislatures deliberately restrict funding so that justice becomes scarce, putting people in a position where they are distracted by the hope of justice from the realization that if they want it they are going to have to make it an issue in elections.

And one way to make it an issue is to resort to the ancient principle that if there are not courts to afford justice, the people have the right to assert their rights extrajudicially.

There are two main sources of corruption: too much money and too little money.

"Oyer and terminer" is a legal term of art meaning "hearing (by due process) and determination (on the merits)". It is important to have a firm grounding in the basics, which most law schools don't seem to impart.

An ancient maxim of law is that "There is no right without a remedy". That means that for every right, there must be afforded at least an opportunity for redress, but not necessarily with the intervention of government. We have been indoctrinated that redress should be sought through government intervention rather than directly and privately, and that is a service that government is supposed to provide to prevent civil disorder and violence. What that means is that there should always be a forum that has jurisdiction over any kind of complaint and power to provide the remedy, but the operative word is "should". It is not a right to have such a forum. It is only a duty to first seek redress through such a forum if it is available. If it is not, then it is supposed to be a defense against criminal prosecution for seeking private justice that no formal channel was available. That argument might not prevail, but that is the way it is supposed to work in theory, by our original legal heritage. Remember, in early England, getting a judgment didn't get you a sheriff to enforce the judgment. It only gave you a license to execute the judgment yourself by your own means without being criminally prosecuted for doing so. Enforcing the court order was still left to the party and his supporters.

In the context of official immunity, it would mean that if the courts did not offer redress, one could take direct action against the official who offended, and when prosecuted for doing so, one's defense would be that one had the right, and exercised it directly since no official remedy was available.

A treaty may restrict the exercise of a delegated power of government, but may not require the exercise of an undelegated power. See Reid v. Covert, 354 U.S. 1 (1957) . That includes guaranteeing oyer and terminer, which is a positive action of government involving the expenditure of resources, not refraining from action.

As for Art. 61 of Magna Carta, note that it guaranteed a right of private action, not a guarantee of action by courts. Courts were only a civilized alternative to violence, which remained an option if the courts did not operate.

The hangup seems to be that some expect nanny government to protect their rights. The Constitution only recognizes rights to take private action and a duty to try public action first before resorting to private action. Ultimately, defending our rights is up to us and our friends, not to government.

Why don't courts always do what is right, according to the Constitution? In large part it is because they depend on the Executive Branch to enforce their orders, and if the Executive Branch is a party that opposes the order, it will ignore the order or subvert it in some way. The result is that the courts tend to avoid such confrontations to cling to what little influence they still have.

The problem was defined when Andrew Jackson defied the Supreme Court in the Cherokee cases. The duty of the people, and Jackson's subordinates in particular, was clear. They should have enforced the Constitution, and the Supreme Court's orders (because they were correct), and not the orders of Jackson, but they chose to obey Jackson and not the Court.

The problem was discussed at some length in Rehnquist's book, All the Laws but One. He said, in essence, that the Court has no real power of its own to compel compliance, and that it must defer to the Executive Branch when that branch is adamant on an issue, as it tends to be in times of war and depression. Congress has tended to abdicate to the Executive Branch for much the same reason. The result is the Administrative State.

We will see no remedy unless or until the Judicial and Legislative Branches command their own troops, which are supposed to be the Militia, but the Militia has also become derelict.

Petitioning to forums that have no effective power on the ground, in the hope they will retain some power of moral suasion that might provide remedy to individual cases, is a kind of Ghost Dance, which might have provided the Native Americans who practiced it some solace while dancing, but did not protect them from the White Man's bullets. Only their own bullets might have done that.

So, ultimately, one has no rights he is not willing and able to kill and risk being killed to defend. All else is folly.

[1]  How the Judiciary Stole the Right of Petition, John Wolfgram, 31 U. West L.A. L. Rev. (Summer 2000)