“Substantive due process or right protected by this amendment must be one that is fundamental, able to be recognized as such by references to teachings of history and basic values that underlie our society and such historical reference is necessary because of the need for objective standard (Petrey v. Flaugher D.C. Ky 1981, 505 F.Supp 1087.”
The amendment referenced is the ninth; about the retention of rights when rights are denied or disparaged. http://vicfedorov.wordpress.com/2011/02/25/petition-for-writ-of-certiorari-from-supreme-court-studies-the-ninth-amendment-and-how-to-retain-rights/
The point is that to instigate and implement, through the judiciary, rights, or corrective processes, historical perspective provides an objective standard, objectifying, ironically, through the relativity of history.
I place the origin of today’s problems, politically, in local polities that abridge peaceful-assembly-decision-making, a media that seems against us, and the judiciary.
I’d like to speak of the judiciary. The judiciary needs reform. The Article on The Judiciary in the national constitution is the shortest, of 2 or 3 paragraphs. The Roman Republic, which was very grounded in laws, compared to kings, took several hundred years to evolve to a point of having a judiciary. Thus history shows the judiciary as more likely to evolve than the other two branches. Indeed, until the roman people clamored for a judiciary to check the abuses of the Senate and Executive, there was only The Senate and Executive.
So let’s cast our judiciary in the perspective and light of some judicial natures of history; particularily examine Judges, as one of the big problems with our judiciary are the judges.
First, the perspective of the Roman Republic: First of all, their judiciary only came around because the army went on strike to protest war. Before, there was only a Senate, and Executive. The Senate had to be from the Upper Class. The executive term was one year, and could be by committee. Many tribes and societies of ancient Italy had this system.
From this inception by soldiers, of the judiciary, who leveraged this, you may derive two differences from our judiciary. The first is that to be a Tribune or Judge/Prosecutor in The Roman Republic, you had to be from the Lower Class, you had to be poor. Class collusion, was and is, a real and logical, concern. The polity of The Republic was open-minded enough to realize only allowing the lower class to be elected Tribunals, is a legitimate check upon the powerful and wealthy, and that if tribunes were allowed to be wealthy, they would only lean to the wealthy Senators and Counsels, or Presidents. This is a very humble and ethical notion associating important positions, with lifestyles of the people. Often trades have trade-offs. The important farmer makes little money, but works outside and is important.
So I believe some understanding the judiciary, as a check by the people, upon the allowances of the legislative and executive, and as the vast majority of those afore are wealthy, to be consistent, the judiciary should or could galvanize the not wealthy, as morality may tend.
The History of The Roman Republic sheds light on a second difference and potential reform our judiciary needs: a) Not being chosen by the executive. How is the judiciary to be the intended check upon the executive, if the executive appoints them? That makes no sense, and very often these days, we see judicial preference for the executive branch, exactly play out this way. (It’s also the same suit as the federal government paying the salaries of congressmen, as opposed to the states or people they represent, thus rendering congressmen more loyal to the federal government, than their constituents). Thus, in Rome, the people elected their Tribunes. And not with paper ballots, but in the piazzas with ayes and nays. Because the people understood, it was obvious, if the executive branch chose the Tribunes, The Tribunes wouldn’t prosecute those with the most power to do harm, who behave immorally, to the detriment of The Republic. This was just common sense back then. Where did it go? Likewise, for a time, there was a compromise whereby the upperclass couldn’t determine who was elected, per se, but did have some, not total, official say in who the nominees were.
And b) the prosecuting arm or justice department didn’t come from the executive, but from the judiciary. That way the judiciary could focus on the folly and crime of the executive and legislature. The agency focused on law and justice, morality and folly, initiated, chose and prosecuted cases; not the executive, which was concerned with leading the people. The Executive led the people; however, the judiciary was there to examine that leadership. This way adjudication depended upon the people’s complaints. Whereas if you complain before a judge today, they may not relate to the grievance.
Also, the judiciary had to approve laws. And the people had to ratify treaties and declarations.
Second, let’s look at judges from the perspective of the judiciary per The Jersey Plan. Our national government now, the constitutional convention chose The Virginia Plan, but first they considered The Jersey Plan. The Jersey Plan would have had the judiciary focus on treaties and laws, even handle diplomacy and negotiation, as consistent with judicious intent. The Virginia Plan does not allow States to negotiate with each other, trade pacts, or anything. The Jersey Plan allowed such pacts if they were approved by a federal judiciary. So the Jersey Plan, like The Republic, saw the judiciary as a wise fulcrum for the analysis of legal issues; as their most dynamic compass; directly overseeing government work in diplomacy, law, and trade; rather than being a resource contingent upon litigation, or looking at what is brought up before it, as opposed to having a domain and range of its own concerns, primarily aimed at legal and moral issue, and criminally, primarily concerned with people in power who violate the law. The fitness of justice is quintessionally grounded in judges actively scouring for wrongs. If this origin is disipated, so is justice. There also must be some correllation between misbhevavior by our leaders, and misbehavior in our society.
Third, from the perspective of pagan tribes, which had governments of checks and balances, and classes, and judiciaries; criminal problems and criminals, by the people, not the people in power, were handled by the people, who counciling and assembling often, handled the criminal problems, so the legal system was not beaten down with incessant concerns regarding keeping the peace and orderly society. By law and order being handled by the people, the people being closer to experience, truth, “God” or spirituality, than the people in power, a kindness was supplied that reduced crime, rather than the anger through the legal system we see today, that has yet to really diminish our criminal statistics. Because the artifice of state, is not low enough to the ground, to exert the peacefulness, the godly may induce; as Druids, or the religious, of pagan tribes, was also assigned to keeping the peace, not the state as manifested by knights, and balances of power, and orders from government regarding the organization of society. This is important to get. The people can handle criminal affairs, while judges may handle legal technicalities, or moral recalibrations, or problems in other parts of government, or treaties, or policy issues as they pertain to legal understandings or officials who commit crimes, the people are more fit like juries, to administering the peace, because they are closer to an enlightened mindset than the state, which has a harder time enacting enlightening by burden of its own elaborate apparatus.
And Fourth then let us look at judges from a Gallic perspective. Galls, the frequent enemy and sometimes reliable ally of The Republic, being less formal, and less on the winning side of history, than The Republic, didn’t have official judges. Their understanding of judiciary indented and ingrained into an overall understanding of governing their society. They valued dynamism, so as to encourage the power of who is hot, so to speak, or using his strength wisely. There would be frequent council in Gall, inviting half the citizens, but all were welcome, and the most powerful had clients they aided, and people who helped them. Basically, your political market, and number of employees, measured these Gallic bosses.
And, if there were people who were cheated and oppressed, or if there was conflict between the bosses, or towns or issues and disputes; whichever boss could mediate the best peace, or most effectively end the conflict, or most wisely gain the respect of deciding issues righteously; like lawyers, whoever administered the peace was given the most credence, and one’s reputation was related to the recent, not distant past. Judges weren’t given many cases in a row automatically, as they are now, that would make no sense to Gall. Whoever was making the world most peaceful and taking on the greatest challenges, had the most prestige. Judges were experienced people living life to the glory of Gallic ideals; conflict resolution didn’t exist in writing and casework, but character, truths, and form; living, not reading; active energy, not passive discernment; was what won the respect necessary to adjudicate through commands and agreements and work and negotiation and deal and blessedness. As I said, there was no guaranteed long term either; it was about winning the respect of the people through integrity and handling things. If situations were handled otherwise, those agents would not be considered as conflict-resolvers again, or for a while.
And from the contemporary perspective of common sense, there are several assumptions regarding judicial reform. I think it starts with the consensus that it makes little sense to have one constitutional convention for all time. Why not each generation have that privilege, and maybe weld the laws into forms for today?
Judges are overworked and tenure too long. More judges, enables less burn-out and more lawyers experiencing judgeship, which is good experience. Shorter terms for judges achieve the same goal, and diminishes judges falling into the pockets of corruption.
But most importantly, people reasoning together, is greater than one or a few judges. Judging, and other professions as well, really aren’t that hard, and come natural, like truth and fairness, which is what the judiciary is about. Don’t glorify or say judging is beyond the reach of most. The truth should be simple. Principles, easy to see, laws, sensible. Let’s honestly believe in law, and makes its adjudication participatory and accessible, rather than isolated and confusing.
Allow groups, even large groups, of citizens to argue and determine issues, like accessible jurists.
Finally from an experienced, Christian, spiritual, enlightened perspective, the judiciary erroneously follows the suit of voting and government and history, in the promotion of a world, that represents, what is not. The Kingdom of God, the being, an awareness of the lies, The Kingdom of Heaven or mind; our judiciary is woefully ignorant of this, and therefore far removed and impeded from truth and justice. Thus, as I said, ancient societies let Druids, who greatly tied together religion/spirituality, with the judicial wing of Society: Or The People would handle many matters as deserving the compassion the people bring, and respecting the generally greater understandings of the people in your life, than the removed applications of public venue.
They say the government has prisons and punishes people because if the people and victims did it, they would kill thieves and wrong-doers. I think this perspective forgets how forgiving The people are.
The media, history, purports describing earth, as it most really is. And yet of course, this description is oposite of truth, and devoid of even recognizing Mind, or The Kingdom of God. Media, History, fails to recognize itself as a story, a show, that for whatever reason, is perpetuated.
Of course there is a reason, a sad reason; if you see the apparattus as designed to sacrifice good, for fat, cleanliness for pollution, chivalry, for objectification; The media and history subtly guides our disintegration, and bad things.
Thus the judiciary must follow suit, and as government so, Not, proclaim the Truth, but be intended apparatus within society for the show and story of humans, put out. The Judiciary thus can not be honest, at the level it is handled now; thus note the other levels, and understandings of The Judiciary: Coupling it in Religion, with Druids. Or as a Quasi-Democratic Party of the People, to stand up to the Injustices of The Upper Class.
It’s own laws, The Judiciary fails to apprehend; much less self-recognize its place in the last paragraph. For example, Peaceful Assembly, is constitutionally protected as a locus and form of local decision-making through ayes and nays. Yet Mayors and C. abridge peaceful assembly. Likewise the tenth amendment reserves powers to the state or the people, not given to the federal government by the U.S. Constitution. Well Mayors, and C. are neither the state nor the people. The catch-22, is that if locals took on issues of justice, naturally, through Peaceful Assembly, as they can; the judiciary would start to reform.
As it is now, my theory goes, reform must come from the judges. Judges know most of all what I am saying is true, and therefore the best imputus to reform. Likewise, Mayors and Local Councils, know most of all, the folly and ignorance of one representing more than one’s own self; and the reform of unnecessary local government, certainly would enemate from them. But, it hasn’t happened. The criminal nature keeps perpetuating itself, as the show and story of media and history; as this is what happens.
But antiquity understood seperating the judiciary from the state, as much as possible, and seeing the judicial check on other federal branches as broadly as possible; equally out of respect for a mode of justice within our world of sin.
The thing is the constitution outlaws diplomacy between the states. So it is inherently against symbiotic relations, or contracts that mutually benefit. The unity of America, gets the states in line, by restricting what States can do. So how can the judges The Constitution provides, be expected to respect the nuance of relations, and sophistication, and contract, when the constitution is against these things very much, and therefore against human nature as well.
Likewise, The Constitution itself, is not a contract or honorable incorporation, as the document never officially explains the purpose of the order of The Constitution, is to unify the country regarding indians and european powers. Thus the causes of the Constitution never come up for debate or consideration, thus the Constitution is a document that doesn’t reference its causes and origins, and thus a document that floats upon itself, rather than a legal rational we may see and respect.
So how can a constitution that doesn’t analyze itself, create judges, capable of respecting an analysis of a situation? There is real hypocrisy here.
“A more perfect Union”. If unity is defined by opposition, and a constitution agreed to, because a more liberal existence not allowed, and the indians and europeans no longer a threat; “a more perfect union”, becomes not needed; and the goal should be something else. But if our constitution doesn’t have the mechanism, to throw the switch and change tracks, by not stating why the people and states are bound this way (Look at least with a tyrant, we know he seized power and morally may be deposed), we have these judges who can’t look at new paths, who are not seeing the situation en toto, only the trees, not the forest, are on a mountain without seeing how the mountain range looks from the distance. They look at something and seem disposed to adjudicate proportionate to power, and even falsehood, rather than realize we live in a world full of wrongs, distinguish trust and respectability from falsehood and oppression, and actually help sort out a conflict, or even pursue truth.