“We do not believe any group of men adequate enough or wise enough to operate without scrutiny or without criticism. We know that the only way to avoid error is to detect it, that the only way to detect it is to be free to inquire. We know that in secrecy error undetected will flourish and subvert.” –J. Robert Oppenheimer
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…The Times framed Trump’s historic first 100 days darkly, as a warning or a sinister omen, but was finally forced to admit that either way, the nation has never witnessed any presidency like this. For instance, one sub-headline blared, “The United States has never seen an effort to expand presidential authority at the scale of Donald J. Trump’s second term.”
[And we had not seen a greater effort to EXPAND the unaccountable bureaucracy, then under FDR. POTUS Trump is trying to return us to the original Constitutional design of the executive.-GC]
“They are trying to do a moonshot on executive power,” explained Harvard Law School professor Jack Goldsmith. Jack doesn’t share Trump voters’ excitement. He feels threatened: “this situation is a much more dangerous threat to the rule of law than the last time.” I’ll just point out that, over the last four years, Jack never thought Biden’s lockdowns, mandatory drugs, or vaccine passports for accessing air travel were threats to the rule of law….
Given our out of control judiciary, I thought this would be a good time to look at what has happened to our judicial system over time. I am hoping Pgroup2 chimes in because I am NOT a lawyer and don’t play one on TV.
Let’s start with what our Constitution says about the Judiciary.
Article I
Section 2.
…No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.…
Section 3.
….No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen….
Section 8.
The Congress shall have power…
To constitute tribunals inferior to the Supreme Court…
I included Section 2 & 3 because it gives the minimum age and the minimum years as a citizen before the founders considered a person eligible to serve the US people. Shouldn’t judges who serve for a life time be required to have similar qualifications? Maybe 30 years of age and 10 years a US citizen? OR better yet, like our president a natural born US citizen?
Article II
Section 2.
The President shall be commander in chief of the Army and Navy …. and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law,or in the heads of departments.
That last part will come back to bite us in the rump!
Article III
Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Section 3.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
This article looks at the judiciary from the point of view of the federal government.
….The provision for tenure during good behavior and a prohibition on reductions in salary assured the judges of the Supreme Court and other judges authorized to exercise the judicial power of the United States an independence that the Constitution denied the legislators and president. The constitutional outline of the judiciary, far briefer than the articles defining the legislative and executive branches, offered a general description of the federal courts’ jurisdiction. Article III was more specific in its protection of several rights and liberties, such as the guarantee of trial by jury in criminal cases and freedom from bills of attainder or vague charges of treason.
Other articles of the Constitution also shaped the structure and operation of the federal judiciary. According to Article II, the president would appoint judges with the approval of the Senate. In Article I, the enumerated powers of the Congress included the authority “to constitute Tribunals inferior to the Supreme Court.” Although Article III made no mention of a chief justice, the provision in Article I for the chief justice to preside in the impeachment trial of a president indicated the delegates’ assumption that the Supreme Court would include one leadership position. Article VI required all judges, like state and federal legislators and executives, to be bound by oath to support the Constitution.
The constitutional provisions for the judiciary reflected the conventions’ debate on the appointment of judges, the institutional independence of the third branch, and the value of lower federal courts. Many delegates assumed Congress would elect judges, while other wanted the president alone to select the members of the Supreme Court. Madison’s original proposal for the Constitution called for the president and members of the Supreme Court to serve on a Council of Revision that would have authority to veto legislation. The most contentious, and finally unresolved, debate concerning the judiciary centered on the proposals for lower federal courts that would operate alongside existing state courts. Supporters of a strong national government wanted a system of lower federal courts with final jurisdiction in many cases, while those who wished to preserve the authority of state governments proposed that the state courts exercise federal jurisdiction on a local level. The debates on the ratification of the Constitution further demonstrated how controversial were the proposals for lower courts and made clear the challenge Congress would face in establishing a national judiciary within a federal system.
The Supreme Court has no power to amend our Constitution. And it’s impossible for an amendment to take away powers our Constitution doesn’t grant.
Joanna Martin, J.D.
1. First Principles
Let’s analyze COSP’s silly argument. We begin by looking at First Principles:
♦The Judicial Branch was created by Art. III, §1, US Constitution. Accordingly, it is a “creature” of the Constitution. 1
♦The federal government came into existence when the States, acting through special ratifying conventions held in each of the States, ratified the Constitution.2
Since the Judicial Branch is merely a “creature” of the Constitution, it follows that it is subordinate to the Constitution, and is completely subject to its terms. It may not annul the superior authority of the States which created the Judicial Branch when they ratified the Constitution; 3 and as a mere “creature” of the Constitution, it may NOT change the Constitution under which it holds its existence! 4
2. Supreme Court Opinions are not “the Law of the Land”
Article VI, cl.2, US Constit., the “supremacy clause”, defines “supreme Law of the Land” as the Constitution, and acts of Congress and Treaties which are authorized by the Constitution. Supreme Court opinions aren’t included!
Furthermore, Art. I, §1, US Constit., vests all law-making powers granted by the Constitution in Congress. Our Constitution doesn’t grant any lawmaking powers to the Judicial Branch.
So why does everybody say, as we heard during the Kavanagh confirmation hearings, that Roe v. Wade is “the Law of the Land”? Because Americans have been conditioned to believe that the Supreme Court is superior to our Constitution; that their opinions about our Constitution are “law”, and we are bound by them unless and until they issue new opinions which release us from their previous opinions.
3. Organic & statutory law and the totally different “common law” precedent followed in courts
Americans have been conditioned to ignore the huge distinctions between organic and statutory law, on the one hand; and the common law which is embodied in the precedents followed by judges in litigation…..
There is a lot more and it is well worth reading. Other Publius Huldah articles on the due process clause.
…..
REGULATIONS
Well, Well, Well the Federal Register says this page is ‘NOT FOUND’ No wonder I could not find it when I went looking a few weeks ago. However I had it in my notes and it was archived.
The idea for a centralized publication system for executive branch documents began during the Great Depression, when Congress began enacting a host of legislation that gave executive branch agencies increased authority to regulate.
With this flood of new regulations, [Thanks FDR – GC] it soon became apparent that, because there was no standardized repository, it was difficult for the public and federal agencies to know which regulations were effective and enforceable.
This situation was dramatically highlighted when the Supreme Court decided a case involving an agency that tried to enforce a regulation that had actually been revoked by an executive order. No one—not the government, not the defendants, not the lower courts—was aware that the regulation had been eliminated.1 In response, Congress enacted the Federal Register Act (FRA) in July of 1935. The FRA created the Federal Register as the official daily publication for presidential documents and executive agency rule and notice documents and established a central location for filing documents for public inspection.
The documents that the Federal Register Act requires agencies to publish in the Federal Register include:
* executive orders and proclamations;
* documents of general applicability and legal effect;
* documents that impose a penalty;
* any other documents that Congress requires.
The act also requires that these documents are made available for public inspection at least one day before they are published in the Federal Register….. [GEE a WHOLE DAY!]
Proposed Rules
This third section contains documents that announce possible changes to the CFR and solicit public comment on the proposal, such as notices of proposed rulemaking (NPRM) and preliminary rulemaking documents, including advance notices of proposed rulemaking and petitions for rulemaking…..
If you break a regulation you are not tried within the normal court system. Instead you are tried by a ‘judge’ WITHIN THE FEDERAL BUREAU THAT MADE THAT REGULATION.
Administrative law judges (ALJ) (not administrative judges) are executive judges for official and unofficial hearings of administrative disputes in the Federal government. Because they only hear administrative law issues as designated in the Administrative Procedure Act of 1946 (APA), administrative law judges are considered part of the executive branch, not the judicial branch, and ALJs are appointed by the heads of the executive agencies. However, administrative law judges receive much of the same protections as those in the judicial branch in order to preserve their neutrality [And if you believe that Schiff, I have a bridge I want to sell! –GC] such as not being subject to bonuses or ranking systems of executive agencies.
Given the broad scope of administrative law, ALJs participate in many different topics and for many different agencies such as the Social Security Administration (SSA), the Environmental Protection Agency(EPA), and the U.S. Postal Service. The determinations of an ALJ may be appealed potentially even to a federal judicial court. However, essentially every agency has its own appellate processes of review that must be followed before someone can access the federal courts, and sometimes in large agencies, the agency’s internal review process can be quite extensive.
ALJs do not serve the same role as administrative judges. While similar in name to ALJs, administrative judges can only participate in unofficial disputes of executive agencies which constitute the majority of administrative disputes. Only ALJs can hear official disputes heard by the agencies. Further, administrative judges are directly hired by the agencies and are subject to their employment rules and benefits, unlike the independent[YEAH RIGHT! -GC] ALJ judges.
Many states also have ALJs that serve similar roles as their Federal counterparts. The rules and nature of ALJs vary by state on levels of neutrality, procedure, and jurisdiction.
EXAMPLE:
The Food Safety Modernization Act bill was so over-the-top in its overreach that the bill’s language states, “(t)he validity and appropriateness of the order of the Administrator assessing the civil penalty shall not be subject to judicial review.”
And if you’re think this is as outrageous as this bill can be, you’d be very wrong. Section 406 clearly states, “(i)n any action to enforce the requirements of the food safety law, the connection with interstate commerce required for jurisdictionSHALL BE PRESUMED TO EXIST.”
…Lori Robertson of FactCheck.org, who is not a lawyer (she has a B.A. in advertising), claims the bill doesn’t apply to “ that tomato plant in your backyard.” As a lawyer, I am skeptical of this claim (I co-represented the prevailing defendant in the last successful constitutional challenge to federal regulation under the interstate commerce clause, United States v. Morrison(2000), one of only two cases in 70 years in which a challenge was successful). Congress’s power under the Constitution’s Commerce Clause is almost unlimited in the eyes of the courts, a nd thus can reach the “tomato plant in your backyard.” — Trojan Horse Law: The Food Safety Modernization Act of 2009
Text from the bill HR 875 that became the Food Safety Modernization Act.
Civil Penalty-
(A) IN GENERAL- Any person that commits an act that violates the food safety law (including a regulation promulgated or order issued under the food safety law) may be assessed a civil penalty by the Administrator of not more than $1,000,000 for each such
B) SEPARATE OFFENSE- Each act described in subparagraph (A) andeach day during which that act continues shall be considered a separate offense. [Now you know why I no longer sell my goats and sheep and rather kill & bury them than sell them for food! -GC]
Criminal Sanctions-
(1) OFFENSE RESULTING IN SERIOUS ILLNESS- Notwithstanding section 303(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 333(a)), if a violation of any provision of section 301 of such Act (21 U.S.C. 301) with respect to an adulterated or misbranded food results in serious illness, the person committing the violation shall be imprisoned for not more than 5 years, fined in accordance with title 18, United States Code, or both.
(2) OFFENSE RESULTING IN DEATH- Notwithstanding section 303(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 333(a)), if a violation of any provision of section 301 of such Act (21 U.S.C. 331) with respect to an adulterated or misbranded food results in death, the person committing the violation shall be imprisoned for not more than 10 years, fined in accordance with title 18, United States Code, or both.
(e) Penalties Paid Into Account- The Administrator–
(1) shall deposit penalties collected under this section in an account in the Treasury; and
(2) may use the funds in the account, without further appropriation or fiscal year limitation–
(A) to carry out enforcement activities under the food safety law; or
(B) to provide assistance to States to inspect retail commercial food establishments or other food or firms under the jurisdiction of State food safety programs.
I do not know if these Criminal Sanctions are tried before the Administrator or not. With NAIS aka animal ID traceability, the large corporations LOVE this law since they can slough off any legal ramifications onto the farmer.
….However, this type of jury is called a “petit” or “trial jury”; a grand jury is very different. A grand jury is a group of citizens convened by the federal government to determine if probable cause exists to believe that a person committed a federal crime.…
Federal prosecutors present evidence and live testimony in a grand jury proceeding by issuing grand jury subpoenas. A grand jury subpoena is not issued by the grand jury but by the federal prosecutor assigned to the case.
Under the United States Constitution, all federal felony charges must proceed with a grand jury indictment. However, there is no grand jury requirement for misdemeanor offenses.
Nothing like a bit of gaslighting to confuse the public….
In dealing with the grand jury, the prosecutor must always conduct himself or herself as an officer of the court whose function is to ensure that justice is done and that guilt shall not escape nor innocence suffer.
The prosecutor must recognize that the grand jury is an independent body, whose functions include not only the investigation of crime and the initiation of criminal prosecutionbut also the protection of the citizenry from unfounded criminal charges.
The prosecutor’s responsibility is toADVISEthe grand jury on the law and to present evidence for its consideration.In discharging these responsibilities, the prosecutor must be scrupulously fair to all witnesses and must do nothing to inflame or otherwise improperly influence the grand jurors.…
[updated January 2020]
9-11.242 – NON-DEPARTMENT OF JUSTICE GOVERNMENT ATTORNEYS
Federal Rule of Criminal Procedure 6(d) provides that the only prosecution personnel who may be present while the grand jury is in session are “attorneys for the government.” Rule 1(b) defines attorney for the government for Federal Rules of Criminal Procedure purposes as the Attorney General, an authorized assistant of the Attorney General, a United States Attorney, an authorized assistant of a United States Attorney, and certain other persons in cases arising under the laws of Guam.
An agency attorney or other non-Department of Justice attorney must be appointed as a Special Assistant or a Special Assistant to the Attorney General, pursuant to 28 U.S.C. § 515, or a Special Assistant to a United States Attorney, pursuant to 28 U.S.C. § 543, in order to appear before a grand jury in the district of appointment….
Note the word ADVISE and the CHANGE of DATE… From the older reading the Grand Jury is INDEPENDENT of the courts and can look into matters. This of course is NOT a concept our Overlords want us to know. It is JUST like the RIGHT TO A JURY TRIAL and JURY NULLIFICATION. A right granted by the US Constitution but eroded and hidden from us.
Prepared By Kelly Mordechai, Author“The Hidden 4th Branch”
Kelly Mordechai is experienced at filing formal grand jury petitions and has appearing before a grand jury based upon a filing of his own formal grand jury petition. The process for accessing a country, state, or federal grand jury is protected by your ‘Right to Petition’ and can differ greatly from grand jury to grand jury, so knowing your rights, and the specific procedures that may be unique to the grand jury you are attempting to petition, is paramount to a successful filing. Mr. Mordechai is happy to consult with anyone interested in filing a formal grand jury petition….
Q2:What is a grand jury?
Answer: A grand jury isan independent legal authority, empowered by the U.S. Constitution, case law, and history. A grand jury is composed of everyday people entrusted to investigate any and all allegations of felonious criminal activity and inparticular “willful misconduct by public officials.”
Grand juries possess the legal authority to indict anyone believed to be guilty where evidence and testimony substantiates the allegations of criminal activity.
Once indicted, alleged criminals are required to stand trial or seek a plea bargain.
Grand juries are comprised of U.S. citizens, aged 18 or older, and selected directly from the communities they are appointed to serve.
Referred to as the unofficial 4th branch of the government, grand juries possess enormous power to pursue justice on behalf of ‘We the People’, particularly in times when corruption is evident and unchecked. With clear evidence during the COVID crisis that crimes against humanity, extensive fraud, and rampant acts of willful misconduct have been committed, grand juries present the best potential solution for Americans seeking justice. A grand jury convened to independently investigate government officials and public health officials for corruption, fraud, and willful misconduct can ensure that any and all alleged criminals stand trial for wrongdoing. [2]
Q3:Can any U.S. citizen petition a grand jury?
Answer: Yes. Every U.S. citizen retains the 1st Amendment ‘Right of Petition’. While some states have made significant effort to install obstacles that prevent ordinary U.S. citizens from actively engaging their right to petition grand juries, these rights are maintained in all 50 states, nevertheless. Kansas, Nevada, North Dakota, New Mexico, Nebraska and Oklahoma have laws that specifically empower citizen led grand juries without the need to file formal petitions through the US Attorney or State Attorney General acting as a middleman in the process…
[Page 16 thru 39 are references.]
WHYdidtheyremovedTrial by Jury AND JURY TRAINING???
“ I consider trial by jury as the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.”
Thomas Jefferson, 1788.
“Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”
John Adams, 1774.
“Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”
….Despite this extensive history, modern judges mostly forbid any mention of jury nullification in the courtroom. This has happened in part because of an obscure Supreme Court decision. In 1895, the Court ruled in Sparf v. US that juries do have the power to nullify the law. But the ruling also stated that judges are not required to inform the jury of this. As a result, judges and prosecutors have exploited Sparf to forbid any mention of jury nullification from the courtroom….
William Penn may have thought he had settled the matter. Arrested in 1670 for preaching Quakerism, Penn was brought to trial. Despite Penn’s admitting the charge, four of the 12 jurors voted to acquit. The judge sent the four to jail “without meat, drink, fire and tobacco” for failing to find Penn guilty. On appeal, however, the jurors’ action was upheld and the right of juries to judge both the law and the facts — to nullify the law if it chose — became part of British constitutional law.
It ultimately became part of American constitutional law as well, but you’d never know it…
“Anyone accused of a crime in this country is entitled to a jury trial.”
The Constitution may say so but, in fact, this is simply not the case — and becoming less so as politicians fiddle with legal definitions and sentencing standards in order specifically to reduce the number of persons entitled to a trial….
The nullification principle involves the power to say no to the excesses of government, and thus serves as a final defense against tyranny.As Thomas Jefferson put it to Tom Paine in a 1789 letter, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”….
Author, Tom Stahl is a former FIJA Board member and practicing attorney from Waterville, Washington
ALL CRIMINAL CASES
The constitutions of Maryland, Indiana, Oregon, and Georgia currently have provisions guaranteeing the right of jurors to “judge” or “determine” the law in “all criminal cases.” Article 23 of Maryland’s Constitution states:
…In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction. The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five thousand dollars, shall be inviolably preserved.
…There is no doubt that jury nullification was one of the rights and powers that the people were exercising in 1791 when the Bill of Rights of the United States Constitution was adopted. As legal historian Lawrence Friedman has written:
In American legal theory, jury-power was enormous, and subject to few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. This idea was particularly strong in the first revolutionary generation when memories of royal justice were fresh.
Jury nullification is therefore one of the “rights retained by the people” in the Ninth Amendment.
And it is one of the “powers reserved to the people” in the Tenth Amendment.
Jury nullification is decentralization of political power. It is the people’s most important veto in our constitutional system. The jury vote is the only time the people ever vote on the application of a real law in real life. All other votes are for hypotheticals.
Chief Justice Roberts shows that he’s part of the swamp. If you believe his bs about judges, I have a bridge to sell you. The Obama judge is a leftwing extremist, and the son of a lefwing extremist who was a well-known communist classmate of mine at Berkeley in the 1960s.
Unfortunately I do not have the authors of the following two quotes.However they encapsulate our present situation so well, I am including themany way.
Justice is based on how strong your connections are to the people with power and how much money you have. Without those two, justice is rarely attainable. I have spent too many years around the system to even begin to think the average person stands a chance at getting justice.
….
The whole concept of an “independent” judiciary is silly when you have activists judges making up justifications to rule on partisan ideological lines out of whole cloth. When this happens judges are effectively legislating from the bench.
IF THERE IS NO TRIAL BY JURY, THEN THE PEOPLE CAN NOT NULLIFY BAD LAWS.
Therefore removal of the right to a jury trial became a goal of the Cabal.
Right to Jury in Criminal Cases
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Right to Jury in Civil Cases
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved….
The 6th and 11th Amendment of the U.S. Constitution and Article 3 Section 2 give US citizens the right to a trial. However as Joan Biskupic, a Washington Post reporter stated:
“Anyone accused of a crime in this country is entitled to a jury trial.” The Constitution may say so but, in fact, this is simply not the case — and becoming less so as politicians fiddle with legal definitions and sentencing standards in order specifically to reduce the number of persons entitled to a trial.
Biskupic also wrote: “The American custom is that jurors decide the facts of the case (whether the person did what he is accused of) and leave it to judges to interpret the law. There is no room, in other words, for jurors to say whether they think the law is a good one, though there have been a few celebrated exceptions — notably the 18th-century acquittal of John Peter Zenger of seditious libel and the 19th-century acquittals for prosecution under the fugitive slave law.”
This is a rewriting of history, one of the privileges of a reporter who works for a paper free to do so thanks to the rights of jurors upheld in the Zenger case. — The Progressive Review 2/99
I find it interesting that some of my older references are from PROGRESSIVES. It shows just how far they have ‘progressed’ towards a communist totalitarian dictatorship in a few decades.
Here is how the politicians have gotten around the US Constitution to make sure citizens are denied their right to a trial:
The Seventh Amendment, passed by the First Congress without debate, cured the omission by declaring that the right to a jury trial shall be preserved in common-law cases… The Supreme Court has, however, arrived at a more limited interpretation. It applies the amendment’s guarantee to the kinds of cases that “existed under the English common law when the amendment was adopted,” …
The right to trial by jury is not constitutionally guaranteed in certain classes of civil cases that are concededly “suits at common law,” particularly when “public” or governmental rights are at issue and if one cannot find eighteenth-century precedent for jury participation in those cases. Atlas Roofing Co. v. Occupational Safety & Health Review Commission (1977). Thus, Congress can lodge personal and property claims against the United States in non-Article III courts with no jury component. In addition, where practice as it existed in 1791 “provides no clear answer,” the rule is that “[o]nly those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.” Markman v. Westview Instruments (1996). In those situations, too, the Seventh Amendment does not restrain congressional choice.
In contrast to the near-universal support for the civil jury trial in the eighteenth and early nineteenth centuries, modern jurists consider civil jury trial neither “implicit in the concept of ordered liberty,” Palko v. State of Connecticut (1937), nor “fundamental to the American scheme of justice,” Duncan v. Louisiana (1968).
The result is a relentless march towards concentrating power into the hands of the ruling elites….
>>>>>>>>>>>>>>>>>>>>>>>>>
This comment is no longer available at either the Conservative Tree House or in the Wayback archives. I think it is important enough to preserve it here.
Judicial Tyranny has long been an enemy to our Republic.
President Thomas Jefferson knew what was coming way back in 1800, but even these great men would’ve laughed at allowing “lower courts” rule over the executive branch, and pushed back hard against the Supreme Court at times.
Thomas Jefferson on Judicial Tyranny
“Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” (Letter to Abigail Adams, September 11, 1804)
“The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.” (Letter to John Wayles Eppes, 1807)
“Our Constitution . . . intending to establish three departments, co-ordinate 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 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.” (Letter to Judge Spencer Roane, Sept. 6, 1819)
“You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; 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 . . . and their power [is] 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, knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.” (Letter to William Jarvis, Sept. 28, 1820)
“The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in English law to forget the maxim, ‘boni judicis est ampliare jurisdictionem’ [good judges have ample jurisdiction]. . . . A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.” (Letter to Thomas Ritchie, Dec. 25, 1820)
“The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.” (Letter to Charles Hammond, August 18, 1821)
“The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.” (Letter to Judge Spencer Roane, 1821)
“At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.” (Letter to A. Coray, October 31, 1823)
FTA: The justices overturned a lower court ruling that had endorsed the SEC’s hiring practice for the judges. The agency’s commissioners, who are presidentially appointed, should have named them, not SEC staff, the justices said.
This ruling has real impact giving power back to the president across the board in numerous agencies. Looks like POTUS will have more seats to fill.
Here’s where case law method started:
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•In the 1870s, Dean Christopher Columbus Langdell transformed American legal education by introducing what has become the standard first-year curriculum for American law schools – including classes in contracts, property, torts, criminal law, and civil procedure.
•Langdell also developed the case method of teaching law, which became the dominant pedagogical model at U.S. law schools. His notion that law could be studied as a “science” gave university legal education a reason for being that was distinct from vocational preparation. Critics at first defended the old lecture method because it was faster and cheaper and made fewer demands on faculty and students. But advocates said the case method had a sounder theoretical basis in scientific research and the inductive method.
https://hls.harvard.edu/about/history
REPLY:
So true! Our current structure represents the bastardization of our system! The Constitution, itself, is written in the Common law. That is a quote by Antonin Scalia, by the way. The Progressives systematically sidelined common law and replaced it with Equity law, which is why we have the corrupt legal and judicial system that we have today. For a lucid and comprehensive timeline of just how they did it, see this amazing legal journal article that I found quite by accident, but which I treasure, to this day. This link goes directly to a U Penn website where you can download the article as a pdf: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3957&context=penn_law_review
Title of the article: HOW EQUITY CONQUERED COMMON LAW: THE FEDERAL RULES OF CIVIL PROCEDURE IN HISTORICAL PERSPECTIVE [94 pages – GC] This is definitely a turgid law journal article and it requires a lot of concentration for us laymen. I had to read it several times to make full sense of it. HOWEVER: You can easily see, even while skimming the article, how the Progressives used the very same arguments to attack the common law that they use, now, to attack the Constitution: “The common law is antiquated and it’s no longer relevant to our society.” ” The common law is too complex. It needs to be streamlined.” I marvel that they have gotten away with destroying institution after institution using the same hackneyed lies! Lastly, the footnotes in this article are a treasure trove of truths that basically catch the evil doers of each era red-handed, destroying the key features of our system. Among those, the common law is the most valuable, and its main institution, the common law grand jury was the most valuable tool to help keep the republic, as Franklin exhorted us to do. The common law grand jury gave the jurors absolute hegemony over the judge and the prosecutor. No request that they made–not for evidence or further investigation, or to examine evidence personally, or to hear witnesses questioned again–could be refused. The decision of the common law grand jury was final.
Partly because I read this article, I came to the conclusion that the Founders intended for the common law grand jury to be the tool that made the People the fourth branch of government. They gave the people omnipotence, via the common law grand jury, so that they could nip corruption in the bud, as it first began to form, in local arenas. This is the key to the keeping of our republic. As we Drain the Swamp, we need to keep in mind that we must also restore the apparatus by which we can prevent the corruption spreading, again. I hope you guys give sufficient credence to what I am saying, here. I see this whole concept as being of central importance.
After almost twenty-five years of battle, Congress passed the Enabling Act of 1934,1 authorizing the Supreme Court to promulgate the Federal Rules of Civil Procedure (“Federal Rules” or “Rules”).2 The 1938 Federal Rules were heralded as a phenomenal success.’ Approximately half of the states adopted almost identical rules, and procedural rules in the remainder of the states bear their influence.” For decades, most first year law students have learned about civil litigation through a Federal Rules filter.5
Now the Federal Rules and adjudication of civil disputes are under attack.’ Among the key targets are discovery abuse,7 expense and delay,” excessive judicial power and discretion,’ excessive court rulemaking,10 unpredictability, 1 litigiousness,12 an overly adversarial atmosphere,13 unequal resources of the parties, 4 lack of focus,1 5 and formal adjudication itself.”6 Case management, efforts to encourage settlements, and a breathtaking array of alternative dispute resolution mechanisms represent the current major categories of response.17 There remains speculation, however, as to what factors have contributed to the nature of current civil litigation. Suggested culprits include the explosion in substantive law, photocopying, the types and difficulty of issues brought to courts, the increase in amounts of money involved, and “the sheer number of parties.”1 ‘ Without denigrating these and other factors, this Article concentrates instead on the inherent nature of the Federal Rules and on the basic choice of procedural form made by their promulgators.
It advances two theses.
First, an historical examination of the evolution of the Federal Rules reveals that rules of equity prevailed over common law procedure.
Second, this conquest represents a major contributing factor to many of the most pressing problems in contemporary civil procedure.
That the Federal Rules and modem procedure draw heavily on equity is not news. Both the commissioners who drafted the New York Field Code in the mid-nineteenth century and the most influential proponents of procedural reform in the twentieth century, cited, drew upon, and applauded equity procedure.’ 9 Some contemporary scholars have also acknowledged the modern debt to equity procedure. For example, eleven years ago, Professor Abram Chayes noted how modem civil procedure, in public law cases, looked to equity for remedies.20 Professor Owen Fiss has eloquently expressed a recent defense to the obligation of judges, particularly federal ones, to use historic equity powers in order to breathe life into sacred constitutional rights and to permit such rights to evolve and expand as society attempts to become more humane.21
As important as scholarship like Professors Chayes’ and Fiss’s has been, however, it does not do justice to the revolutionary character of the decision inherent in the Federal Rules to make equity procedure available for all cases. Nor does it explore what the choice of equity procedure meant historically, how it evolved, and what concerns and problems flow from a procedural system driven by equity. The defense of equity power in constitutional cases designed to restructure public institutions tends to undervalue the problem of how to translate rights, constitutional or otherwise, into daily realities for the bulk of citizens. 12 Aspects of common law procedure and thought, not equity, may be required to help deliver or vindicate rights, now that equity has opened a new rights frontier.
Focusing on the historical currents that resulted in the Federal Rules will illustrate what an enormous distance was traveled, how one-sided the procedural choices became, and the problems implicit in those choices. Perhaps exploring where one came from can help clarify where one may wish to go. Part I of this Article first looks at the major components of common law and equity procedure, and then examines the domination of an equity mentality in the Federal Rules. Part II explores the American procedural experience before the twentieth century, and demonstrates how David Dudley Field and his 1848 New York Code were tied to a common law procedural outlook. Part III concentrates on Roscoe Pound (who initiated the twentieth century procedural reform effort), Thomas Shelton (who led the American Bar Association (“ABA”) Enabling Act Movement), and Charles Clark (the major draftsman of the Federal Rules). Through understanding these men and the interests they represented, one can see that we did not stumble into an equity system; people with identifiable agendas wanted it. Part IV examines how the Federal Rules advocate rejected methods that might have helped balance and control their equity procedure, why the methods of confining the system failed, and why current approaches to redress the imbalance of an equity-dominated system will also fail. It concludes with a summary of fundamental constraints rejected by the advocates of uniform federal rules of procedure. My goal is to rescue some quite profound voices from the wilderness.
I. COMMON LAW, EQUITY, AND THE FEDERAL RULES OF CIVIL PROCEDURE
Much of the formal litigation in England historically took place in a two-court system: “common law” or “law” courts, and “Chancery” or “equity” courts.2 ” Although they were complementary, law and equity courts each had a distinct procedural system, jurisprudence, and outlook. The development of contemporary American civil procedure cannot be understood without acknowledging these differences. The more formalized common law procedure has been so ridiculed that we tend to ignore its development to meet important needs, some of which still endure, and that many of its underlying purposes still make sense. Conversely, especially during this century, equity has been touted in ways that obscure the underlying drawbacks to its use as the procedural model.
I hope this gives everyone a taste of how the Cabal has twisted our judiciary to ‘better suit their needs’ instead of ours.
POTUS Trump is trying to return us to the original Constitutional design of the executive.-GC]
or in the heads of departments.
The constitutional outline of the judiciary, far briefer than the articles defining the legislative and executive branches, offered a general description of the federal courts’ jurisdiction. Article III was more specific in its protection of several rights and liberties, such as
and freedom from bills of attainder or vague charges of treason.
]
Schiff, I have a bridge I want to sell! –GC] such as not being subject to bonuses or ranking systems of executive agencies.
