II. 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
III. THE DUAL MEANING OF THE PETITION CLAUSE:
PROCEDURAL vs. SUBSTANTIVE
IV. THE JUDICIARY IS ORGANIZED TO AVOID
SUBSTANTIVE REDRESS OF CONSTITUTIONAL
GRIEVANCES AND REASONABLE EXPLANATION
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.
of it would at once be felt by every freeman as a degradation."
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.
The 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
Amendment. The latter is the progressive result of Supreme Court decisions.
The Second Aspect
is 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
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).
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 right 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
rights requiring government meet standards of "compelling state interest";
"clear and present danger," and striking laws for "vagueness" and "overbreadth"
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 waging a war of oppression
against its own people.
II. THE HISTORY OF
JUDICIAL ARROGANCE TO FOUR CENTRAL ASPECTS OF THE PETITION CLAUSE
A. ASPECT ONE: THE
OF PETITION FOR REDRESS vs.
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
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
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.
Cohens v. Virginia,
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,
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."
There can be seen from the trail of cases a common design to ignore the Petition
Clause and the "Right of Petition" 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,
United States v. Lee:
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.
Justice Miller’s statement is absolutely
false. If the Framers, noticing the English "Petition of Right," wrote it into
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."
This argument contains
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
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 "bootstrap"
argument. By assuming that sovereign immunity is a "maxim", the dissent begs the
question at issue.
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
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 is for 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
"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.
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
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
Article II, §§ 2, 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.
3. Each State Party to the present
(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
(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;
is the Hallmark of Civilization: The argument that the
Right of Petition includes the right to 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 "[b]ill of [r]ights." 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.
Aspect One: 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.
Only Congress can waive immunity. Its
officers have no power to waive it.
Even when allowed, suits can be brought
only in designated courts.
Congress may grant immunity to corporations.
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;
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.
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.
Nothing so epitomizes the danger of abridging the Petition Clause, vis a vis
personal immunities, more than Congress' 1988 amendment of the Tort Claims Act.
In 1971 Chief Justice Burger wrote, in his
dissent in Bivens
"The venerable doctrine of
(a master is liable for his agent's acts) in our
tort law provides an
entirely appropriate conceptual basis for this remedy" (directly against
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
In 1988 Congress amended it to reflect
... 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.
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
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:
First came absolute immunity to the
Then, almost immediately, was absolute
immunity to Judges, state and federal;
Then to the President's officers for
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.
qualified immunity to government
With all immunities and "good faith
extensions" of it, the law is so convoluted and contradictory that no one knows
what the "law" is.
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.
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.
Yes, you should be worried.
has its own Momentum:
sovereign immunity and
arguments to extend immunity are much more persuasive than those to curtail it.
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 their
Eventually, the Court recognized Congress'
power to "abrogate" state immunity for violation of civil rights; Fitzpatrick
v. Bitzer, 427 U.S. 445 (1976)
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."
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 King’s "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.
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,
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"
and not to support its officers who may fail or refuse to support it.
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,
the Court held that constitutional standards are not enforceable against judges,
even where the violations are in excess of jurisdiction and corrupt or
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 become
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
Is this just cause for a rights conscious
people to distrust their "justice system?"
C. ASPECT THREE: POLITICAL
PERSECUTION FOR EXERCISING PETITION RIGHTS
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
Runnymede. The Great King
bowed to the will of a people angered at his incursions against common decency.
There is something very important about
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.
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.
[It] was confirmed by parliamentary resolution in 1669 as an inherent right
and was lodged in the Bill of Rights of 1689.
‘… it is the right of the subjects to petition the king…[and] all commitments
and prosecutions for such petitioning are illegal’.
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
‘[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 ¾
a simple, primitive, and natural right.’
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.
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.
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
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.
"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 to them the underwritten security, namely, that the barons choose
five and twenty barons of the kingdom, whomsoever they will, who shall be bound
with all 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 that transgression redressed without
delay. And if we shall not have corrected the transgression […] within forty
days, reckoning from the time that it has been intimated to us […], the four
barons aforesaid shall refer that 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, distrain 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 […]"
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" the 5th right 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."
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
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.
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
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
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
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.
military powers without domestic justice between government and governed is
tyranny. Who needs a government that is organized to impose tyranny with its
police and military powers?
It is the province of the Petition Clause
to impose justice on an unjust government.
A "people’s right" that powerful can cause
fear in government that it will be "abused" to interfere with the governing
processes. No doubt, it can be abused and it is intended to always keep
government conscious of its limitations. Governments should want to prevent
conditions where the people can lawfully molest and harass it. There are only
two ways to prevent people from molesting and harassing government, and
government should always be conscious of them.
The first is to render the right so
accessible and just that the people find no need to coerce government to redress
grievances with it. This is not just common sense for America, but it is common
sense for every government, both as to the relations of government to governed,
and as to the relations among nations. The right to just redress of grievances
is the right to both justice, and the appearance of it.
Terrorism, both international and
domestic, all have two things in common. Whoever is behind it believes that he
has unredressed grievances with the government at which the terrorism is
directed. And he is able to convince others that his perception is correct.
The only way to solve this problem is to
change both the reality and perception from that of injustice to one of justice,
at every level of government, from the local community all the way to the United
Nations. The only way to do that is with open and fluid systems by which all
grievances with government, real or imagined, can freely be addressed and justly
The only way to do that is when every
government in all of its functions, is accountable to the governed in every way
that it may create grievances with them, and that means that
functionary can have immunity from just redress of grievances with it.
The second is what we are experiencing.
That is government progressively narrowing and abridging the right to petition
while at the same time criminalizing the inevitable alternative avenues of
petitioning that the people develop. That is oppression. Forbidding that
oppression is exactly what our English common law imparted to the
Right of Petition in 1689.
Those are the alternatives: systematic
justice, or increasing oppression. It is that simple: The people either have a
just relationship with government, or they suffer oppression.
Initially, the government oppresses
petitioning for redress by policies of sovereign and official immunity for it
and its officers. What those policies mean is that the people cannot obtain
redress as a matter of right against the government entities that are
Today in America, such policies outright
deny just redress in most cases. Where redress is theoretically allowed,
immunity causes such increased complexity in the petitioning process that it
generally frustrates petitioners seeking justice against government through the
systems that are supposed to deliver justice under law.
It is not that the judicial system
is overburdened with petitions for redress. Rather, the law respecting just
redress in both federal and state courts is so complex and convoluted with
special privileges and immunities that government lawyers know that
cases they can litigate petitioners into submission without ever getting to the
merits or before a jury.
What does that do? That prevents
settlement out of court in even the most righteous petitions for redress because
government lawyers know that they can beat the aggrieved unjustly in court.
Government actually depends on judicial oppression to cover up its violations of
constitutional rights. The judicial system, with its own "law making power"
creating immunity and deciding how to apply what it creates, has redesigned
itself for systematic oppression of petition rights. That reality annuls the
"separation of powers" doctrine in every important sense. "Separation of powers"
is now: "all of government organized against just redress to the people."
The increased complexity of "redress law"
further causes increased need for lawyers and raises litigation costs immensely.
The resulting high cost of petitioning for redress creates class divisions along
lines of wealth where only the wealthy can effectively petition government for
redress. That in turn gives wealth a capricious voice in shaping government and
law not available or even apparent to common people. But the resulting
oppression is apparent to them.
These things combine to so increase the
costs of petitioning so as to cause more people to turn to alternative forms to
"harass and molest the government" into tending to the emerging judicial crisis.
As might be expected, government does not take the people trying to "harass and
molest it" lightly.
Criminalizing the Right of Petition:
Government passes and enforces laws limiting the "legal" assistance the people
can get in petitioning for redress. For example, it may limit attorney fees that
can be charged for petitioning in some kinds of cases. That limits the claims
that can be economically pursued.
That protects government from accountability for rights violations that can’t be
economically vindicated. That causes petty bureaucrats to become little tyrants
unaccountable for petty dereliction and abuses to the people in government’s
It passes and enforces
laws that broadly prohibit "practicing law" by non-attorneys. These laws abridge
the right to petition in two separate ways:
First, licensed attorneys are generally
inadequate and prohibitively expensive for most abridged petitioning processes.
They are controlled by their license and can not prosecute petitions effectively
where government through its courts tells them that they should not. They are
limited in the assistance they can give clients to the government approved means
As government progressively abridges the
petitioning process, licensed attorneys more and more become apologists for the
abridgments. As we have seen, the actual common law
Right of Petition
contemplates that when government abridges effective petitioning processes, the
people may go over, around or through the abridgments in any way necessary. In
that way, licensing attorneys aids and abets government abridgments of the
Amendment Right by preventing effective counsel to the people as to what their
common law rights are against government oppression. In effect, licensed lawyers
tell the people that there are no alternatives to government oppression. That
makes them the government’s "Judas Goats" leading the people into ever deepening
wells of oppression from which there is less and less recourse to violence.
Second, licensing lawyers unlawfully
burdens the right to petition.
Hiring a non-lawyer to help you petition
government for redress is protected assembly to petition, and choosing the
person to speak for you in the petitioning process is the very heart of freedom
of speech. How dare the government license and control the people who you may
choose to speak for you to government? In effect, such an assembly now becomes a
"criminal exercise of
First Amendment rights"
by non-lawyer participants "practicing law to speak for you, without a license".
Next, it becomes "conspiracy to obstruct justice."
One can hardly find words to express the
intellectual garbage involved in selling the idea that government can license
the persons you choose to speak for you to government about your grievances with
government. The only license necessary, is the "license" you give by your
selection of those you authorize to speak for you. All licensing of persons to
whom you may give that authority is necessarily a multiple abridgment of the
As the people’s frustration increases with
their licensed spokesmen and what they are allowed to say to government, they
turn to further extremes. They might create their own courts ("Common Law
Courts") and record "common law liens" against government and its officers. This
too is protected activity where government has previously so abridged the
Right of Petition so as render it ineffective. But now government uses other kinds of
laws to criminalize this conduct. For example, participating in a common law
court may be conspiracy to obstruct government agents. Filing a lien against an I.R.S. or other government agency is treated as "filing a false claim" or
"obstruction of justice" or "interfering in the administration of justice."
Sending a notice of lien by mail is prosecuted as "mail fraud", and associating
to exercise these petition rights becomes "aiding and abetting" or "conspiracy
to commit" those "crimes."
Those are abuses of legal process and
malicious prosecutions to oppress the
Right of Petition for which government
prosecutors have absolute immunity. The problem is that licensed attorneys don’t
know how to deal with government oppression because it is not taught in
government approved law schools. Attorneys are programmed to believe that
government acts in good faith execution and enforcement of the law; and they are
afraid to deviate from that government created belief system that they are
licensed to follow. The punishment for attorneys deviating from their licensed
program is professional blacklisting.
The result is that people charged with
"criminal exercise of rights" are harnessed with "ineffective assistance of
government licensed counsel" who lead them, like
Judas Goats leading sheep
through a "legal system" redesigned to convict and punish those who oppose
government oppression according to the culture of our common law. This not only
renders assistance of counsel ineffective, but it is reminiscent of British
Today, these kinds of cases are
proliferating throughout the nation. The
Montana Freemen cases where the
"freemen" were charged and convicted of substantive crimes like bank and mail
fraud are cases in point, and there were untold scores of similar prosecutions
in their wake. In point, these were really Petition Clause cases where the
government oppressively refused to allow the real facts and the
Law to go to the jury. The Montana freemen and many others were convicted of the
"Criminal Exercise of
First Amendment Rights."
What is the solution to criminalizing the
exercise of Petition Clause rights?
The common law specifically forbidding
criminal prosecution of persons for petitioning government for redress developed
out of Britain’s "glorious rEvolution" of 1689. Thereafter, the English
Parliament made it unlawful to prosecute people for petitioning government for
redress. But simply outlawing such persecutions does not solve the problem when
government and its officers are immunized for such misconduct.
First Amendment says that "Congress
shall make no law abridging…" Would it make any difference if it also added that
the executive "shall enforce no law abridging…?" It is extremely doubtful since
the Executive is already sworn, "to the best of my Ability, preserve, protect
and defend the Constitution of the United States."
That includes the
How can anyone prevent the executive from
enforcing constitutionally corrupt laws corruptly, if he is already free from
the consequences of violating his oath? All government prosecutors and judges
are absolutely immune from accountability for malicious prosecution. So they are
not accountable to the people whose constitutional rights they violate. If they
are not accountable to the people they wrongfully injure, who, pray tell, are
they accountable to?
The power to be unaccountable for
corruption in office must be nullified.
Today in America, the language of the
First Amendment notwithstanding, persecution for exercise of Constitutional
Rights is a substantial portion of all federal criminal convictions.
To find a solution one must first
understand the problem.
Abridgment of petition rights does not
authorize unreasonable attacks on the government. But under the common law
guidance of the Magna Carta, it does justify reasonable attacks on
government authority like establishing
common law courts and filing liens
against government and its officers that have no greater effect then harassing
government, when procedural and substantive petition rights are abridged or
rendered ineffective. Whether or not it "authorizes" violence against government
depends upon how oppressive government becomes.
The problem is that even reasonable
harassment attacks against government spiral out control because government has
immense power and little or no accountability for its use or abuse, and, would
you believe, it has no sense of humor; and no humility, at all.
So, for example, some people are
frustrated with governmental unaccountability and prefer to live in isolation
from government. From that Petition Clause response and government’s lack of a
sense of humor, we got "Ruby Ridge", and
a young mother shot dead while holding
her baby, by a government sniper with a high powered sniper rifle. And
government’s best excuse: We didn’t mean to shoot her or her baby. We only meant
to kill her husband who was within a couple of feet of her and the baby, and who
was not then endangering us.
So for another example, there are people
whose frustration with lack of government protection and redress problems leads
them to isolate themselves in more or less self-sufficient communities. Again,
government’s refusal to believe that sane and decent people could reasonably
want to isolate themselves from unconstitutional government interference in
their lives, gave us the flames and mass killings of
Waco, and the federal
organized cover-up that includes persecuting the victims for defending
themselves against armed aggression.
It should not be concluded that only
government lacks a sense of humor in these matters. It seems that a former
candidate for same United States Army "Delta" team that it appears more and more
certain staged a military assault upon the
Branch Davidian Compound, may have
taken the matter personally and waged an "eye for an eye" campaign against
government. That gave us
Oklahoma City and the bombing deaths of more
innocent men, women and children.
That too has an aftermath which includes
unreasonably increased government security for itself, and as Y2K demonstrated,
for the Nation. That increased security not only erodes Petition Clause Rights,
but it increases tension between government and governed. Instead of the
government trying to solve the Petition Clause problem by making petitioning for
redress more effective, it tries to increase its security from accountability by
an organized attack on the Second Amendment disguised as a "war on crime"
against "potential criminals" with guns.
Do we need to be reminded that
hallmark of government oppression is that we are all "potential criminals?" We
become actual criminals by mere resistance to oppression.
This article does not try to excuse or
justify any of these attacks. It merely points out that the "logic of war" is
already upon us and it is a major part of the problem.
makes more "Wacos"
Oklahoma Cities" all the more likely, and
it does something worse.
Government is organized to control
anything that it believes may injure it. The aftermath of
Waco is widespread
exposure to criticism. Government does not admit any wrong at
Waco, but it
admits that it suffered widespread criticism. It will do little to prevent more
"Wacos," but it will do much to prevent the wide spread criticism.
it will do is act to contain freedom of information to the people, upon which
widely spread criticism depends.
What will that do to those who already
believe government cannot be trusted?
Perhaps it will convince them all the more
that the only recourse to government corruption is armed rebellion in the style
the world has come to know as "terrorism". That is the style of rebellion the
nation felt at Oklahoma City. It can be worse: much worse as greater and
greater means of mass destruction and mass killing are being designed privately
or escape from both foreign and domestic government control. The world is
developing markets for the instruments of mass terrorism … and we are the
target. The solution is to release our Petition Clause to do its work, then to
export it to every nation in the world: "made in America."
At this point the reader is reminded that
the common law purpose and logic of the Petition Clause is to prevent this kind
of cycle, to reduce government to governed tensions, and even to bring peace
among warring factions, with its mere promise. We, the People, and the Nation
and its government, all of us: We need that promise.
Problem: if you understand the nature of the problem; that it is
caused by governmental arrogance to the
Right of Petition, then you also
understand that the solution is to release the
Right of Petition to do its work
in bringing the government under our Constitution.
Then we have to teach other nations to do
the same, by our example.
How can we do that? It is one thing to say
"release the Petition Clause to do its work", but without a concrete plan, the
statement is so much rhetoric. What can be done?
The immediate problem is that government
is increasing the stakes by persecuting people for "criminal exercise of
First Amendment rights" in violation of the common law right established in 1689 in
the 5th right of the
British Bill of Rights. That spiral has to be
stopped in a way that is meaningful to both government and governed.
There are legitimate applications of the
kind of laws (conspiracy, aiding and abetting, obstruction, interference with
government, bank and mail fraud, etc.) that also entrap legitimate exercise of
Petition Clause rights. These laws chill and punish the most important political
expression there is: political dissent to government oppression. But there is no
practical way to throw all of those statutes or applications out as
unconstitutional, even though they chill the
First Amendment and are in that
application, overly broad and vague.
The normal mechanism for testing these
applications is to wait until the legal theories that demonstrate abridgment of
First Amendment rights develop, and then for the courts to address the issues in
terms of "vagueness and over breadth" of laws chilling
First Amendment rights.
One major problem here is that there are so many laws that can be applied to
abridge Petition Clause rights. Normally, it takes years, even decades to
develop the legal theories necessary to overturn a very limited number of
similar statutes; and during all of that time; the government resists
development of such theories and persecutes those who develop them.
Presently, there are a large number of
laws that are applied to persecute the exercise of petition rights. By the time
the legal theories are developed and applied, the pressures for violence will
have increased dramatically, and government will have adopted new and even more
oppressive measures to contain the increased pressures for violence.
Moreover, all of that assumes that the
courts are trustworthy as to this issue, and a major theme of this article is
that they are not. The judiciary is a part of government and
government does not
want to see an effective Petition Clause because that nullifies arbitrary power
at all levels. Effective petition rights create problems for all of government
by requiring direct accountability of government officials to the people they
injure. As demonstrated in Part I, supra, the judicial theft of the
First Amendment Petition of Right is a fact the judiciary has effectively concealed
for over 200 years. Why should anyone believe that the judges would change that
concealment and denial policy now?
There is a collateral problem. The longer
it takes to show that government will honor the Petition Clause and make it
effective, the more skeptical more people become and doubt that it ever will.
That increases the pressures for modern rebellion (terrorism) to organize.
Of course, government will develop its own
counter measures, and that will inevitably stimulate a more vigorous response by
those who fear tyranny. That is the "logic for war." The way out of the cycle is
to effectuate the Right of Petition so that persons accused of "Criminal
Exercise of Petition Rights" can have the evidence and the
submitted to the jury.
Paired with such an instruction is opening
up the federal defender system so that the accused may select any counsel, as a
matter of right, that is willing to work for him at the same price as conflict
counsel. The reason is that the federal defender system is closed to competition
and the result is to institutionalize ineffective assistance of counsel at
Compulsory State Bars should be abolished
as state organized
First Amendment abridgments. Voluntary associations competing
to raise standards would replace them.
On the one hand, this combination would
chill government from bringing Petition Clause cases. On the other, it would
begin the mending process as juries feed back the information Congress needs to
determine proper Petition Clause non abridgment policy.
Such jury instruction and freeing lawyers
to compete for effective public defense can be accomplished by an executive
order, or by legislation. It need only declare that in any criminal prosecution,
on request, a verbatim
First Amendment jury instruction must be given and all
evidence relevant to that issue be presented to the jury. It also should require
that an accused otherwise entitled to counsel at public expense may select any
willing counsel and no federal official may discriminate against any freely
chosen counsel on the basis that such counsel is not a member of any State Bar
This does not solve the immunity vs.
Petition Clause problem. It is a stopgap measure to prevent persecution for
First Amendment rights under color of criminal prosecution, and it
begins to unwind the tension and increase dialogue between government and
There are other things that need be done
to restore the Petition Clause, and through it, our Constitution to a state of
political health. Some of these are discussed under Aspect Four.
D. ASPECT FOUR: THE
JUDICIAL CONTEMPT FOR PETITIONING TO REDRESS GRIEVANCES WITH GOVERNMENT IN
We have discussed three central aspects of
the Petition Clause that are never addressed by the judiciary. Those aspects
1. The Petition Clause vs.
2. The Petition Clause vs. Personal and
Official Immunities Issue.
3. The persecution of persons for
"criminal exercise of Petition Clause rights."
The Fourth Aspect is intimately related to
the first three because it inquires into why the judiciary refuses to address
constitutional issues of major importance, generally, and specifically why it
refuses to address the first three aspects of the Petition Clause.
In point, there is no more serious
constitutional issue then whether judicially created sovereign and official
immunity violates the Petition Clause. Is there any jurisprudential thinker who
does not immediately know that the United States under the doctrine of
sovereign immunity is an entirely different nation than the United States with an
effective Right of Petition?
How do we account for the line of Supreme
Court cases that established
sovereign immunity while consistently refusing to
address that issue in the Petition Clause context?
It is not as if the Court totally ignores
the Petition Clause. It just ignores the three central aspects of it mentioned
above. For example:
The Right to Petition has
expanded. It no longer is confined to demands for "a
redress of grievances" in any accurate meaning of these words, but comprehends
demands for an exercise by government of its powers in furtherance of the
interests and prosperity of the petitioners and of their views on politically
"The right extends to the ‘approach of citizens or groups of them to
administrative agencies (which are both creatures of the legislature, and arms
of the executive) and to courts, the third branch of government. Certainly the
right to petition extends to all departments of the government. The right of
access to the courts is indeed but one aspect of the
Right of Petition".
There is no doubt that the Judiciary
recognizes that the Right to Access the Courts is a
First Amendment Petition Clause right. If it recognizes that, does it also recognize
that the business conducted before the courts once accessed, is also a Petition
A few cases have addressed that issue in a
non-governmental context. One such line of US Supreme Court cases arises out of
federal antitrust law. The issue: When can the filing of a lawsuit lead to
Professional Real Estate Investors,
Inc. v. Columbia Pictures Indus., Inc.
the Court refined the
"Noerr-Pennington" antitrust immunity doctrine and the
"sham exception" to it. "Sham" suits enjoy no constitutional immunity. They are
to a Right to Petition like pornography is to the freedom of the press. Real
Estate Investors clarified earlier cases and set out a two-part test for "shamness."
First, the lawsuit must be objectively
baseless in the sense that no reasonable litigant could realistically expect
success on the merits. Once that is established, the court can examine the
litigant’s subjective motivation to see if it conceals an attempt to interfere
directly with the business relationships of a competitor through governmental
process, as opposed to interfering by reason of the outcome of that process.
That is essentially the "malice" or wrongful subjective motive part of the two
Professional Real Estate Investors is not a "Petition to
Government" to redress grievances with it. It is a suit between private parties
to determine which party will get the government power to compel the other to
obey the law. This line of cases deals with lawsuits as a procedural due process
issue. That is, the issue is access to the courts as a right to use them as
neutral arbitrators to resolve disputes between private parties. As a "Petition
Clause" function, it does not necessarily have its common law roots in the
It is important to notice the difference
in these functions.
The judiciary performs two separate
Petition Clause functions.
The first is providing a
dispute resolution forum for suits among private parties. That function
incidentally but necessarily includes providing the same forum to resolve
disputes between government and governed. Why? Because the Petition Clause is
couched in terms of "Congress shall make no law abridging…". Establishing
separate compulsory avenues for petitioning government for redress like
exhaustion of administrative remedies or through "star chamber" process
necessarily abridges the right to petition government and is unconstitutional.
The second is to provide a "neutral
forum" by which private persons can obtain access to the compulsory processes of
law to use against government to compel it to obey the law, or to redress
injuries suffered by government action in violation of the law.
Notice that both the first and second
functions are met by the same
due process of law consideration: Unabridged
access to the courts. The Courts call this "unabridged access" a Petition Clause
right, but it is really a due process right that is all the more binding on the
government when it concerns substantive Petition Clause rights.
It is in this second function that we run
into substantive Petition Clause issues that find their roots in the
Magna Carta. These are the issues that deal with substantive grievances with
government’s conduct in its governing affairs. In this sense, petitioning
through the courts is only one of many petitioning methods. For example,
picket at a courthouse protesting a particular judge, is both protected speech
and petition. Likewise with lobbying the legislature or filing complaints with
the executive regarding the executive conduct of governing.
But while there are many methods of
petitioning for redress with government, up to and including assembly to riot or
to use force against it, only one method can use the law to subject the
government to the law and to the redress consequences of violating it.
That is to petition the government for redress through the courts. That is the
right of the citizen to use the compulsory process of the law to compel the
government, just like any other party, to answer and to be accountable for its
wrongs to the citizen, under the law.
There is something very important to
notice about this particular process. Its effectiveness in administering justice
relies on the fairness of the law as between government and governed.
Presumably, law that is fair as between private parties will also be fair as
between government and governed. The reason? In making law as between private
parties generally, the lawmaker seeks justice for the people, generally without
bias. But if the lawmaker makes special laws for government, as a part of
government, he has a bias for the governing function, and that function is
necessarily to regulate the liberties of the people.
Thus, the important function of
substantive Petition Clause activity through the courts (obtaining justice
between government and governed) depends on the regularity of both the
compulsory processes of law and substantive law that is to be applied to
determine what, if any redress against government, the citizen is entitled to.
So, for example, the right to sue the
government in court is a due process right that applies to all grievances among
parties, including grievances with government, albeit, the latter has a
substantive Petition Clause status. In substantive Petition Clause cases, the
right to that due process regularity is also a Petition Clause right because
Congress may not abridge access to the courts for substantive Petition Clause
purposes with special procedural requirements.
But that Due Process right, even "raised"
to Petition Clause status, is meaningless unless by that process you can subject
the government to the common law,
as opposed to special laws designed to protect government from being compelled
to redress grievances.
So, for example, what good does it do to
have a due process right protected by the Petition Clause to bring suits against
government to redress grievances, if government is protected from accountability
for the grievance by substantive laws of immunity? It is those substantive
"laws" that violate the substance of the Petition Clause.
The point here is that
is the major substantive mechanism by which Petition Clause rights are
undermined and gutted. There are other laws specially protective of government
that undermine or gut substantive Petition Clause rights, but the immunity
"laws" are by so far the greatest offenders that none of the others, like "tort
claims" and "exhaustion of administrative remedies" acts, need be examined for
the purposes of this article.
III. THE DUAL MEANING
OF THE PETITION CLAUSE: PROCEDURAL vs. SUBSTANTIVE
The Petition Clause has two separate
meanings: A procedural meaning
the right to petition government for redress through all the means amiable to
that end including judicial; and a substantive meaning
substantive redress shall not be abridged merely because government or its
officers are defendants. It is "The right to substantively just redress."
How do you know it has two separate
First Amendment prohibits both procedural and substantive
abridgments on its face. What more can be said than "Congress shall make no law
abridging…" unless it be added, "and the judiciary shall make no law at all."
Now, understanding this dual meaning: We
are ready to examine the mechanics of how the judiciary systematically refuses
to treat substantive Petition Clause suits with the dignity to which they are
entitled under the "Common Law." That is both as common to our people, and as
derived through our legal heritage from the original understanding of the
Distinguish between procedural due process
and a substantive Petition Clause Right, albeit, the procedural right is raised
First Amendment status. The substantive right is for instance: "The
government built a road across my land without paying a just compensation." That
is a Fifth Amendment violation. You have a Due Process right to sue the
government on your claim in court. Doing that is a Petition Clause right, but to
this point, it is all process. What about the right to have the claim heard on
the merits? That is also a due process right. What about the right to have the
claim decided by a jury? That also is a procedural right protected by the
Seventh Amendment. What about the right to have the claim justly redressed? That
is a substantive petition right. But what does that mean?
In this case it means the right to make
claim for and receive
Fifth Amendment Just Compensation for government’s
condemnation of a right of way across your property.
In other words the substance of the
Petition Clause right is the right to compel government to obey the
Fifth Amendment Just Compensation Clause.
Notice how the substantive right can be
usurped. Suppose you sue the state highway commission in federal court for
violation of your Fifth Amendment right to just compensation, under
42 U.S.C. §
1983. You are exercising the procedure of petitioning for redress. The highway
commission moves to dismiss on the basis that it is a state agency constructing
a state road and it has "state
sovereign immunity" under the
The suit is dismissed. What happened? The substantive doctrine of state immunity
cut off the substantive Petition Clause right. You had your procedural right to
petition for redress. The judge can’t doubt that you are making a Fifth or
Fourteenth Amendment claim under
42 U.S.C. § 1983 pursuant to the Petition
Clause, but substantive redress is barred. Why? You have two substantive
constitutional rights to just compensation for the easement: The
Amendments. Immunity of your own state government isn’t even mentioned in the
How then does state immunity bar redress
for constitutional violation?
In effect, the judiciary allows a
procedural Due Process right to exercise your Petition Clause rights through the
judicial system, and it calls that the "Right of Petition" through judicial
process. But it ignores the substantive nature of the right that demands just
redress be accorded.
Let’s get this concept straight. Our
common law Right of Petition can be stated in different words to convey the same
meaning. Observe again, the words of The
International Covenant on Civil and
Political Rights, Article II, § 3, as it conveys the Right of
3. Each State Party to the present
(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
(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; (emphasis added)
Subsection (a) means: "No government
immunity." Subsection (b) goes on to ensure "effective remedy" by requiring
states to "develop the possibilities of judicial remedy" which, by way of
subsection (a) is an "effective judicial remedy."
Would it make any difference if our
Petition Clause used the same words, that the people shall have "effective
judicial remedies" for the violation of constitutional rights? Did we miss
something along the way? When the Framers adopted the
Bill of Rights, could they
possibly have intended "a bill of unenforceable rights", or did they intend all
along that "rights are enforceable through judicial remedies that are
You know without being told that there was
no misunderstanding. The Framers did not intend to sell the American people a
"Bill of Rights" in name only. They intended the rights they enshrined into our
Constitution to be enforced by the people, individually, against the government.
They did that in these words: "Congress shall make no law […] abridging […] the
right to […] petition Government for a redress of grievances" and combined it
with Article III, § 2, "The judicial power shall extend to all cases, in law and
equity, arising under this Constitution."
Tell me: does a petition to redress a
violation of an enumerated Right by say, a federal judge, or federal prosecutor,
or an FBI agent, or all of them in concert, "arise under this Constitution?" If
it does, what law may be made to contravene just redress?
There is only one answer: "None." In both
law and logic, it is that simple. Only Congress can make law, and nothing can
contravene a legal right but another law. And as to the right to petition
government for redress under law, Congress shall make no law abridging.
Notice that using different words but of
the same meaning, our Petition Clause and the common law from which it came, has
been extended to the most important clauses of the most important treaties
influencing the entire civilized world. Under it, prospectively, the peoples of
the world shall be entitled to an "effective remedy" for violation of rights.
But not so once you enter the courts of
the "leader of the free world." Petition Clause rights have no substantive value
here. That is, you can petition for redress of grievances with government as a
heightened due process right, but once in court, there is no effective right to
justice. In America, the "land of the free" you cannot sue the "sovereign"
without his consent. And his "consent" is couched in governmental and official
immunities and special procedures and limitations which are applied by judges
whose role is to protect government from accountability, and
they are absolutely
immune for the most outrageous violations of rights.
Our procedural judicial remedy is designed
to be substantively ineffective.
We are not saying that the law is substantively hollow. We are saying, that just
as government immunity is not the law, but a systematic judicial practice that
nullifies substantive rights, that, and other judicial practice hollows out the
substantive law. While judicially created immunity is practiced openly, many of
the ways in which courts allow access but deny substantive redress in cases do
not come under established immunity practice, but are just plain outright
corrupt, and there is no other way to fairly describe it.
One state Supreme Court has recognized
that the right to sue government is at the heart of the
First Amendment. The
California Supreme Court led by Chief Justice Rose Bird addressed this highly
volatile issue in
City of Long Beach v. Bozak,.
Right of Petition is of parallel
importance to the right of free speech and the other overlapping cognate rights
contained in the
First Amendment and in equivalent provisions of the California
Constitution. Although it has seldom been independently analyzed, it does
contain an inherent meaning and scope distinct from the right of free speech.
It is essential to protect the ability of those who perceive themselves to be
aggrieved by the activities of governmental authorities to seek redress through
all the channels of government. A tort action against a municipality is
but one of the available means of seeking redress. (emphasis added).
There is an important point to those words
that is implicit in the Right to Petition. It is as important that wrongly
perceived grievances be redressed with adequate explanation, as it is for real
grievances to receive just redress.
This is just
common sense: If we are not to beg the question by assuming that all
grievances are imaginary, then the process of obtaining redress must
be designed to effectively sort them out; to redress imagined grievance with
a reasonable explanation and to redress substantial grievances with just
redress. That is a maxim of jurisprudence: justice must not only be done, but
appear to be done.
While it is clear that the California
Court recognizes a substantive value to the
Right of Petition, its emphasis is
on the process by which redress is sought or made available. The opinion
protects the petition right to bring the suit, regardless of whether it wins or
loses. It only seems to imply that the process must be "effective." That
implication relies on an assumption that the judiciary will do justice and that
it doesn’t take a heightened standard of substantive consideration to get the
judiciary to do justice to the case. That is, "justice" is "justice" and that is
what the judiciary delivers. Therefore, no specially heightened standard is
Systematic Bias: This assumption turns out to be utter nonsense in
all cases except one: That one case is where the Petition Clause guarantees
admission to a process in which the dice, in both appearance and fact, can’t be
loaded against justice or substantive redress. It ignores the fact that the
judiciary is part of government and judges are biased for their paymaster which
demands by custom and practice, their obedience to government’s will over
The opposite of that assumption is
declared very clearly in the Petition Clause’s common law ancestor, Chapter 61
of the Magna Carta. It proclaims the substantive petition right to just
redress. While it is concerned with a "right of access" to the barons, the main
concern is for timely (40 days) administration of substantive justice by
granting appropriate redress. Thus Chapter 61 commands on that score:
… 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;…
Magna Carta’s focus is almost
entirely substantive: "And if we have not corrected the transgression
within forty days," a state of moderate to severe war exists where the
governed may lawfully ravage the government, and that continues "until
redress has been obtained as they deem fit." It could hardly be more
powerfully stated that substantive redress is the issue, and process is only the
lubricant to obtain substantive justice.
Understand what that emphasis on
substantive redress does to judicial bias. The command is, "just redress or
war." The reason for injustice is not relevant. If the grievance is brought to
the barons, thereafter, "your fault, my fault, nobody’s fault" it doesn’t
matter. The substantive right is "justice or war."
That is what keeps the
barons, now the judges, honest. Where the people have effective recourse to
judicial prejudice and self-dealing, judicial bias ceases to be a problem.
Today, with immunity in place, the
Right of Petition is mostly process and little or no substance, and all effective
alternatives to petitioning through systems designed to be ineffective, is
illegal. Thus, not only does the petitioner have to deal with substantive
immunity, but with unbridled judicial bias in a judiciary insulated against
accountability for violation of rights.
In effect, under the existing judicial
"law," you have a Right to Petition, but no right to justice, and
no Court of
Appeals has ever admitted the issue, or examined the conceptual difference. Let
us now embrace the many vicissitudes thereunder.
If the right to sue is the
alternative to force, then the right to sue government is the alternative
to rebellion or terrorism. If that is true, one aspect of the
Right of Petition
is access to the compulsory process of law to use against government as the
civilized alternative to rebellion and terrorism. If judiciary is to serve that
purpose, it must both fairly apply, and appear to fairly apply the law as
between government and governed or the "civilized alternative" will be rejected.
What is the Substance of the Petition
Clause? If the Courts treat the
Right of Petition as mere procedure, what is its
substance? The answer is simple and direct.
The substance of the
Right of Petition is:
"unconditionally effective enforcement of the rest of the Bill of Rights and
limitations on government, and just redress for their violation."
The reason the answer is so simple and
direct is because the alternative is lawful rebellion, terrorism and
ultimately, civil war. That is the teaching of our common law.
Underlying that teaching is a repetitive
reality that the people learn and learn again. Allow judges to be biased for
government and they will be prejudiced against redressing the people’s
and government will abuse power more and more because of that bias.
Allow government to decide when and if it
will give just redress, and it will decide to give less and less justice. The
result is simple logic: less justice means more oppression.
Compound, complex, convoluted, vague and
ambiguous "law" protects government from accountability. That environment
maximizes judges’ ability to pick and choose the "law" or interpretation of it,
which is most pleasing to their bias for government. Add to that "absolute
judicial immunity" for exercising pro government anti redress bias, and pardon
us if we observe that you have got to be stupid; or desperate; to pray for
justice from that system.
The only rational alternative to
progressive oppression is a policy of "no excuses." It is a primary duty of
government to provide an effective system of just redress of grievances. Just
like its duty to provide an effective military defense, there is no excuse for
failure to provide justice as between government and governed. That is America’s
common law culture.
IV. THE JUDICIARY IS
ORGANIZED TO AVOID SUBSTANTIVE
REDRESS OF CONSTITUTIONAL GRIEVANCES AND REASONABLE EXPLANATION OF
The Court said in
U.S. at 148: "The right to sue and defend in the courts is the alternative of
force." That it is an alternative to force; there is no doubt. But if the
judicial function merely replaces trial by combat with another arbitrary process
for deciding winners, it can be done a lot cheaper and more fairly, with a roll
While our judiciary has evolved some
characteristics of justice, its redesign accents its barbarian origins as "the
Sovereign's" tool to control his subjects. That, instead of the unbiased
administration of justice, has become the primary judicial function. Note the
conflict between the two functions.
That conflict involves some basic judicial intrusions into the Constitution that
totally nullify the judicial function to administer justice under the law.
Examine some of them:
1. The judiciary interprets the Constitution,
and only its interpretation counts. The judiciary is a branch of government.
Thus, in disputes between government and governed over the meaning of the
constitution, only government's version counts. Is that "fairness?" That
is the official state philosophy of "judicial supremacy" in action, and it is
Under that philosophy, government gets to be the only and final interpreter of
the Constitution by which it regulates the people. How convenient for
government. How unfortunate for the people.
2. Government has
sovereign immunity; most of its agents have
qualified immunity; and its prosecutors and
judges have absolute immunity even for malicious prosecution and cover ups of
civil rights violations by non-immune persons. What does that do to the idea of
First Amendment doesn't
exactly mean what it says by "Congress shall make no law […] abridging..."
Instead, Congress can make laws abridging, providing they meet judicial tests of
"state interest, narrowly drawn", and all of the immunities the judiciary has
4. While we have personal
freedom of speech within parameters, the only freedom we have to select our own
spokespersons in the most important forums affecting our rights, the court's of
law, is by government licensed attorneys duly propagandized into the dogma of
judicial supremacy. Government has propagandized and licensed the people's
Petition Clause spokesmen into believing that the Constitution means what the
judicial branch of government says that it means; and they lead us into
submission to endless bureaucratic and judicial control.
5. Article I, which vests all
legislative power in Congress, doesn't quite mean what it says either. The
Judiciary can veto Congress and it can affirmatively write its own law as it did
in the "immunities acts" which are judicial enactments that actually amend the
Constitution, not just a little bit, but to the very foundations of the
relationship between government and governed. These Judicial Amendments redefine
and annul the very concept of "justice under law."
6. As for the Second Amendment,
the people should forget about keeping arms just in case our own government gets
too far out of line. Since government is sole interpreter of the Constitution,
it interprets that interpretation out of existence, and possession of arms
becomes a common nuisance to be abated in every way bureaucrats can conceive.
7. The troublesome Fourth
Amendment: The only time people need security against government is if they are
crooks. So, in that "constitutional" spirit, government protects crooks by
excluding evidence obtained in violation of their rights. As to the rest of the
people, government is protected by immunity, and not being crooks, honest people
have no need for privacy anyway.
8. By the way, government can
take liberty interests without any compensation, if it can find a "rational
state interest"; and it has plenty of those.
9. Property interests are more
protected. We are entitled to "just compensation" if government "takes" our
property for public use. So what it does instead, supported and authorized in
advance by judicial "interpretations" of "taking," is to outlaw broad ranging
uses of property though zoning; environmental and endangered species protection
acts; and regulations of every sort, all for esteemed "public benefits" but
avoiding the necessity of a "just compensation."
Understand what such takings of property
rights do. It is not that environmental and endangered species protection and
zoning are not worthy causes to spend tax dollars on. But that is not what the
government does. Instead it coerces these "public
benefits" from property owners, one individual at a time, without paying for it. That is, the cost of
these collectively huge benefits is born by individuals, not by taxpayer/voters
vis a vis government. To be sure, it is the judiciary that makes the
rules by which these huge transfers of latent wealth occur.
And on it goes. Nothing to be alarmed
about. Government could do all of these things with constitutional amendments.
So judicial amendments to the Constitution are just "matters of procedure," and
subjective rationalization justifying abandonment of principle rolls on.
The point is not merely that
usurped powers not delegated to it; but it has become so involved in and biased
toward controlling the people for government, that it cannot fairly administer
justice. The judiciary is no longer fit to perform its primary judicial
Where does that leave our nation?
primary right of the people to control their own destiny through self government
has been usurped; not boldly as by an invader, but surreptitiously by the branch
of our own government that we trusted most.
The people never got to decide the most
important issues relevant to the kind of government they want for themselves and
for their children. Oh, to be sure, they vote for "representatives," but the
fact is that the judiciary has so totally undermined the concept of limited
government and unalienable rights that those running for office actually think
that "Rights are the privileges government tolerates at any particular time,"
and "libertarians" think government should tolerate more "rights."
In other words, today's politicians and
legal/constitutional/political scholars have not the foggiest idea of what the
Constitution means, independently of what The Court says that it means. They
rely on the Court to determine what "rights" are, and what their own job as our
representatives is supposed to be. In a real sense, the Court dictates the
entire political atmosphere to the people and their politicians. Most people who
think about it, especially lawyers, actually believe that it is the right of the
Court to be the "sole and finale arbitrator of Constitutional meaning and
They can't conceive that it could be any
other way, let alone can they get a picture of what the Supreme Court is doing
to fundamental concept of individual rights and constitutional limitations on
Others see the arbitrary power wielded by
the Court, but think of it as if we are governed by nine wise and noble legal
scholars. That is, in effect, the "Rule by Philosopher Kings" that
to favor. But, aside from the observation that if we are to be governed by
"benevolent philosopher kings" then it should be openly so and pursuant to an
amended Constitution that authorizes "Philosopher King Supremacy" over it, and
over the other branches.
But the analogy fails in another respect.
We are governed by the Court, as an institution, and far from the individual
justices being "philosopher kings" they are "servants" of that institution and
its rules; particularly of the rule of
stare decisis and their
To the Court,
stare decisis means
more than simply following precedent. Of course, the Court has the power to
overturn its prior decisions. Sometimes, as in
National League of Cities v.
Usery, 426 U.S. 833 (1976), and
Garcia v. San Antionio Metro. Transit
Auth., 469 U.S. 528 (1985), concerning
Tenth Amendment Limits on the federal
regulation Congress can subject states to under the Commerce Power, the same
Court reverses its previous 5-4 decision by another 5-4 decision accomplished by
one justice switching sides. That hardly reflects a "philosopher king" kind of
But more to the point, when it comes to
national policy like sovereign immunity, the Court has a much greater problem:
How can it reverse itself without undermining its own basis of political power?
How can it say to the people, "look, we made a mistake these past 200 years and
never exactly noticed what the Petition Clause did to
sovereign immunity, and,
well, to be frank, we rewrote the Constitution the wrong way. Now we want to
rewrite it the right way."
It's not only, "Who's going to trust them
this time", but why should we let the Court rewrite the Constitution again, when
in the face of its admission, it never should have rewritten it the first time?
Look, we are not talking about just any "mistake".
We are talking about a
"mistake" that ignores the very foundation of republican control over
government. That "mistake" annuls the very purpose of having a constitution
to limit government by holding it to account for its violations
and it is a "mistake" that benefits the party in error.
In common law, that kind of "mistake" is
not a mistake, but constructive fraud. Even if the Court didn't know that it
didn't have Constitutional authority to make such a policy. But even if it
didn't know about the Petition Clause, such usurpation for its own benefit is
still "constructive fraud." Who will believe that the Court didn’t know those
That is to say, if the Court ever admits
that sovereign and court created official immunity is not constitutional, it
opens a "Pandora's box." The Court has never faced the kind of scrutiny that
sometimes occurs to the political branches. But suddenly, there would be
questions about how it could have made such a "mistake"; and then, "was it a
mistake?" Then, if not a mistake, what is it for a branch of government to
consciously undermine the people's interests in the enforceability of what is
after all, their Constitution?
Some, perhaps many, will call it
"treason." But that brings up a new concept. The Justices’ actions are largely
dictated by the institution in which they find themselves confined. If it is
"treason" it is not a personal kind of treason, but something that is more like
"institutional treason." That is a concept that we legal philosophers don’t
quite know what to do with. It is "out there". It has some meaning, but as a
concept that can help explain the perverse directions that constitutional
republics might take that lead 180 degrees away from what you’d expect under
their constitution, it requires a lot of exploration and analysis.
As a concept of moral and legal judgment,
it is almost useless. We do not begin to understand the psychological and
sociological pressures and dynamics of legal institutions at that level of
government. If it is "treason," then we will have to deal with such additional
concepts as "involuntary treason," or "treason" under coercion and undue
influence by the entire governmental structure of the nation against which the
The purpose of this article is not to tell
you, the reader, "the way that the law is." At best, it can provide only a
snapshot of a small piece of it, central to the law though it may be. The
philosophy of law is much too young to know enough to tell you anything but
small snapshots and rough outlines of legal theory, and the science of law has
not yet been born.
There is so much to be done in the
philosophy of law that one’s lifetime is hardly time enough to start. Its future
holds all of the excitement of a new science, undreamed of before. Its limits
are so bound to human destiny that we shape today, by the understanding that we
give, or fail to give, to its substance, the themes of human civilization, as it
will exist forever, or as it may fail to exist beyond 21st Century.
The purpose of this article is to start
the next generation of legal philosophers thinking about what the law is, and
why it is, and where it will take mankind, so that they can begin the journey
that I only dream of. That journey is into the realm of law as a science for
future civilizations, to set mankind free, to redesign and reconstruct his
government as a vehicle to take him to the heights of freedom and dignity, that
his God, and his soul for adventure, made him to seek.
Right of Petition is the right to
substantive justice between government and governed. Upon that Right rests our
hopes for freedom and dignity in the twenty-first century.
Freedom and dignity thrive on justice, and
cannot survive without it.
Brought to you by:
www.Net4TruthUSA.com posted on
John E. Wolfgram, B.A. Degree (University of Wisconsin), J.D. Degree
(Southwestern University 1977) Wolfgram founded the Constitutional
Defender Association in 1989 to advance Petition Clause Principles. Its
name derives from the observation that the practical value of a
Constitution depends on the effective enforcement of constitutional
rights and limits against government, by the people. The Petition Clause
is the People’s Right to redress government violations of the
Constitution. It is The Constitution’s Defense system against government
usurpation and oppression. More about the author and his legal
philosophy can be obtained on line at
www.constitution.org. There, look up his name under "Confirmed
Wolfgram v. Wells Fargo Bank, 53 Cal.
App. 4th 43, 51 (1997), cert. denied, 522 U.S. 937 (1997) (citing
Story, COMMENTARIES ON THE CONSTITUTION 707 (1833)); see also
Cooley, CONSTITUTIONAL LIMITATIONS: PROTECTIONS TO PERSONAL LIBERTY 728
(8th ed. 1927) (quoting Lieber, LIBERTY AND SELF GOVERNMENT 124 (2d ed.
Chief Justice Burger proposed that "Congress should develop an
administrative or quasi-judicial remedy against the government itself to
afford compensation and restitution for persons whose fourth amendment
rights been violated." 403 U.S. at 422. His error is in thinking such a
system should originate in Congress, or be limited to fourth amendment
rights. See U.S. v. Lee, 106 U.S. 196 (1882), recognized a right
similar to that in Bivens, arising out of the due process and just
compensation clauses. Justice Harlan's concurring opinion in Bivens is
that a direct action should lie for violation of any Constitutional
Right. The question is not "judicial vs congressional power to create
such a system." The first amendment says "Congress shall make no law
abridging ... the right of the people ... to petition government for a
redress of grievances." Thus, Congress does not have the power to
abridge the right to sue government for redress. (emphasis added) But it
can create alternatives that people are induced to use, so long as it
does not abridge the basic right to sue for redress. The judiciary can
not legislate, but the "petition clause" problem is not a legislative
problem, but pre-emption of common law remedies by judicially created
"sovereign immunity." Thus, the end the Chief Justice urged, is not up
to Congress, nor directly up to the judiciary. Rather, it is for the
judiciary to free the people from "sovereign immunity". Only by
renouncing that assumption can it free the common law to develop
remedies for rights violations. Then Congress can develop alternatives
that the people freely choose over the Right to sue in the courts.
Justice Brennan believed
"sovereignty was surrendered in the Plan of the Convention." See
Edelman v. Jordan, 415 U.S. 651 (1974). See Art. I, Sections 9
and 10 for some specific "surrenders" by both federal and states at the
Convention. The ninth and tenth amendments imply absence of federal
immunity. The due process and just compensation clauses implies
accountability by government for its wrongs. But for those who still
doubt, The petition clause is the specific "surrender" of governmental
immunity from the people.
Chisholm v. Georgia, 2 U.S. (2 Dall.)
Cohens v. Virginia, 19 U.S. (6 Wheat.)
United States v. Clarke, 33 U.S. (8
Pet.) 436 (1834).
The Court repeated the
doctrine of sovereign immunity in at least a dozen cases in the
nineteenth and early twentieth century, but it has never analyzed the
constitutionality of the doctrine. The tenth amendment states that the
powers not delegated to the United States are reserved. Where is the
power of "sovereign immunity" delegated? If it is not fairly within the
four corners of the Constitution, it is not a federal power; a fortiori,
when it is also expressly prohibited to the United States by the
petition clause. Some cases that assumed
sovereign immunity without
justifying it are: United States v. McLemore, 45 U.S. (4 How.) 286
(1846); Hill v. United States, 50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 Wall.) 419, 431 (1867); United States
v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren, 74 U.S. (7
Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122,
126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United
States, 98 U.S. 433, 437-39 (1879); Gibbons v. United States, 75 U.S. (8
Wall.) 269, 275 (1869); United Statess v. Lee, 106 U.S. 196 (1882);
Peabody v United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton
Bridge Co. v. United States, 260 U.S. 125, 127 (1922). In Kawananakoa v.
Polyblank, 205 U.S. 349, 353 (1907), Justice Holmes stated the reason
for sovereign immunity is because "there can be no legal right as
against the authority that makes the law on which the right depends."
His explanation begs both the tenth amendment and petition clause
questions, and portrays government power as not bound by any law, not
even its own. Again, government is portrayed as a "Brut of Force" that
trounces its own people without accountability for the wrongs it does.
Such is a shocking statement by a man of his intellect, for it is
obvious that the ultimate recourse against the authority that makes law
but disregards rights, is rEvolution ... and then to institute a new
government that is not so impertinent to the basis of power. That is
exactly what our forebears did in 1776. Notwithstanding government’s
objection to such an interpretation, that right of rebellion is embodied
in the common law behind the petition clause.
United States v. Lee, 106 U.S. 196
(1882). George Lee was the son of the Southern General from Virginia,
Robert E. Lee. Before the Civil War, then Col. Robert E. Lee worked for
Abraham Lincoln and held an estate in 1100 acres on the banks of the
Potomac over looking Washington D.C. Before the War the property was
known as "Arlington Estates". But during the war, tens of thousands of
dead soldiers from both North and South, were brought into Washington
with no place to bury them. One popular story is that General Sherman
inquired of who owned the property to purchase it for a cemetery. But
upon learning that it belonged to Lee, he commandeered it, and today,
400 acres of it are best known as "Arlington National Cemetery."
behind U.S.. v. Lee is even more interesting. Arlington Estates
was visible from the White House. In advance of the War Abraham Lincoln
asked his Chief of Staff Col. Robert E. Lee, to Command the Army of the
Potomac. Lee took leave back to Virginia to consider the offer. Two
weeks later he returned and told Lincoln that his loyalties were with
his Home State of Virginia. He left an embittered President behind.
Lincoln knew that Lee was his best military strategist and history
records the magnitude of his loss as Lee beat back Lincoln's armies time
So the story
goes, Lincoln, looking across the Potomac to Lee's estate conceived a
plan to hurt Lee and help finance the war effort at the same time. He
would lay a war tax on property and require landowners to pay the tax
personally to the tax collector, and not by agent. Southerners who owned
land in the North wouldn’t be able to pay the tax, and would lose the
property. Eventually the Court determined that it violated due process
to refuse to accept a tax paid by an agent. But Robert E. Lee never
offered to pay the tax at all. After the war, Lee lost his civil rights,
but under U.S. CONST. art. III, § 3, the forfeiture is limited to during
the General's lifetime.
When Lee died,
his son sought to regain title to Arlington Estates which included by
then, two post Civil War military forts and Arlington National Cemetery.
His theory was based in the common law of contract. If one to whom
performance is due, refuses tender, or announces in advance that tender
will be refused, the law treats it as if performance has been made.
Thus, even though his father never offered to pay the tax, George Lee
could treat it as paid. Because the United States had "sovereign
immunity" Lee sued the generals in whose name the property was being
held for the United States, to eject them. The case went to a Virginia
jury to determine whether General Lee’s performance had been prevented
by the tax collector’s announcement that it would not accept payment by
an agent. The Virginia Jury, generally sympathetic to the Robert E. Lee
family, found that performance had been prevented, and that the
prevention was, according to previous Supreme Court Decision, unlawful.
Therefore the issue must be treated as if the tax had been paid. That
meant that the title that transferred the property to the generals was
void and Lee’s son came into title upon Lee’s death. George Lee owned
the property and could eject government officers.
to the Court, the United States interpleaded saying that it was the real
party in interest, that it was a necessary party; that it had
Immunity, and that immunity extended to the generals as agents of the
United States. Justice Miller's treatment of the "Necessary Party"
argument is most interesting. Citing from other cases, principally from
Chief Justice Marshall in Osborn v. Bank of U.S., 22 U.S. (9
Wheat.) 738 (1824) he concluded: "Where the State is concerned, the
State should be made a party, if it can be done. That it cannot be done
(because of immunity) is a sufficient reason for the omission to do it,
and the court may proceed to decree against the officers of the State,
in all respects as if the State were a party to the record."
The reasons identified in
Scheuer v. Rhodes, 416 U.S. 232 at 240 for official immunity are
more illusory than real. While fear of personal liability may tend to
intimidate officials, most officials are or can be covered by insurance
or indemnity agreements. The idea that such fears would injure
government performance is the same argument as "Doctors must be immune
from negligence actions or otherwise hospitals will be intimidated from
providing medical services." The question is whether the complexity of
rules carved out to immunize government officials become so burdensome
so as to chill the people from seeking just redress for grievances with
government. As that happens, government loses contact with
accountability for the wrongs of its agents, and with that, all motives
to become more fair, more kind and more gentle with its people. In
Owen, 445 U.S. at 629, n.6, the Court notes that "Ironically, the
publication of the libelous documents was caused by City Counselor's
assurance that ‘the City does have immunity in this area." Thus,
immunity creates its own Constitutional violations and neither the
Judiciary nor Congress have any idea how extensive that problem is.
Likewise, when the Court makes immunity policy, it has no scientific
support for its finding that "fear of potential liability for doing his
official duty" really impairs any public interest. In fact, one can come
to the opposite conclusion: That exposure to liability for wrongs in
office selects for more honest and diligent officials who know that the
best defense to intimidation from potential liability for doing one’s
job under the Constitution, is to understand and support the
Constitution in the performance of that job.
Covenant on Civil and Political Rights was adopted by the United Nations
on 12/16/66, and signed by the United States on October 5, 1977. The
Senate by resolution of 4/2/92, gave its advice and consent to
ratification, subject to Reservations, Understandings and Declarations.
Instrument of Ratification, signed by President George Bush, 6/1/92.
There, Art. III, § 3 declares: "That the United States declares that it
accepts the competence of the Human Rights Committee to receive and
consider communications under Art. 41 in which a State Party clams that
another State Party is not fulfilling its obligations under the
In the present context,
the emphasized clauses obligate the United States Judiciary to free the
Constitution's petition clause to do its work by undoing the assumption
of sovereign immunity. The Covenant is presented for both its binding
force as "Supreme Law of the Land", and also for its persuasive force in
reason, to help understand the nature of our own petition clause, that
it is a law of reason freely chosen by our founders: If we now choose it
freely as a basis for the organization of free nations, why should we
presume that it was less compelling when our founding fathers brought
the thirteen colonies together under one constitution?
Covenant's preamble states the purpose of effective judicial remedies
notwithstanding the violation is committed by persons acting in official
capacity, as follows: "Recognizing that, in accordance with the
Universal Declaration of Human Rights, the ideal of free human beings
enjoying civil and political freedom and freedom from fear and want can
only be achieved if conditions are created whereby everyone may enjoy
his civil and political rights, as well as his economic, social and
cultural rights." A condition necessary for enjoyment of rights, is
compulsory process of law to protect those rights; and to obtain just
redress for their violation.
Lonergan v. United States, 303 U.S. 33
United States v. New York Rayon, Co.
329 U.S. 654 (1947).
United States v. Shaw, 309 U.S. 495
Brady v. Roosevelt S.S. Co., 317 U.S.
The Universal Declaration
of Human Rights, Gen. Assem. Res. 217, A(III), 10 Dec. 1948, is a
cornerstone human rights treaty of the United States with the United
Nations. It's preamble sets out the important role that government
accountability to its own people plays in international peace: "Whereas
it is essential, if man is not to be compelled to have recourse, as a
last resort, to rebellion against tyranny and oppression, that human
rights should be protected by the rule of law,"
The case that is credited
with founding Judicial Supremacy is Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803), by Chief Justice Marshall. Actually, it founded the
judicial policy of "Judicial Review" and that is not quite the same
thing as "Judicial Supremacy" where in addition to supremacy over the
other branches, the judiciary assumes supremacy over the Constitution
itself. In all probability, Chief Justice Marshall would be absolutely
astounded at the judicial philosophy he is credited with founding.
At least the petition
clause does not forbid it. There are other clauses that might forbid it.
For example, the nobility clause and due process clauses; and at some
point, the equal protection clause. We should not forget that the class
of "government officials" is the "ruling class". It is doubtful the
Constitution allows special privileges and immunities on the basis of
that class distinction alone.
Bivens, 403 U.S. at 422.
The Chief Justice was
referring to the Tort Claims Act as a remedies model for violations of
the Constitution by government officials. The Tort Claims Act does not
cover Constitutional Torts, as such.
The problem is not that
we are not able to trust Congress to determine how much abridgment is
too much. Rather, Congress has never examined the issue in the light of
the specific "public policy" written into the petition clause, because
the judiciary has hidden that policy. There are reasonable market place
alternatives to the public policy reasons for most immunity. i.e.
government defends and insures or indemnifies its non-immune officers in
most cases now, so what is the purpose of immunity? See Scheuer,
416 U.S. at 240. (Chief Justice Burger identified the two "mutually
dependent rationales" on which the doctrine of official immunity
rested.) They are the injustice of subjecting an officer to liability
where he is required by his position to exercise discretion, and the
danger that such liability would deter his willingness to execute his
offices with the decisiveness and judgment required for the public good.
Government indemnification, like insurance, lifts most, if not all of
the burden from personal liability. But as to the basic argument, what
is the difference between the discretion exercised by a public servant
and a medical doctor such that the former is immune, even for
intentional constitutional torts (Judges, Prosecutors) but a medical
doctor in life and death decisions, is liable for a negligent twitch of
A Judicially created
immunity is a complete abridgment of the right to redress. To the victim
of immunized conduct, all of government, local, state, federal; and all
of its branches, are aligned against him, saying in effect, "You must
accept the violation and injury, without recourse." In a real sense, the
Supreme Court has assumed the role of "king of kings" dispensing
immunity to the lessor kings according to its pleasure.
State v. Johnson, 71 U.S. 475 (1867);
see also Nixon v. Fitzgerald 457 U.S. 731 (1982).
Bradley v. Fisher, 80 U.S. (13 Wall.)
335 (1872); see also Pierson v. Ray, 386 U.S. 547 (1967); Stump
v. Sparkman, 435 U.S. 349 (1978); Mireles v. Waco, 502 U.S. 9 (1991).
Bradley v. Fisher is the seminal case on judicial immunity. It sets the
stage for unlimited personal immunities. Bradley is based on two false
premises. One is that we inherited the British Common Law on that
subject. That was handsomely refuted by Justice Black in Bridges v
State, 314 U.S. 252, 260 (1941). The other was that judicial immunity
WAS the British Common Law. In fact, Chief Justice Lord Denman stated
that law in Kendillon v Maltby, 174 Eng. Rep. 562, 566 (N.P. 1842) as
follows: "I have no doubt on my mind, that a magistrate, be he the
highest judge in the land, is answerable in damages for slanderous
language, either not relevant to the cause before him or uttered after
the cause is at an end; but for words uttered in the course of his duty,
no magistrate is answerable, either civilly or criminally, unless
express malice and absence of reasonable or probable cause be
established." Today, constitution based commonwealth countries have no
judicial immunity for violation of Constitutional Rights. See THE
DIGEST OF BRITISH, COMMONWEALTH AND EUROPEAN CASES, Note 3641, "No
Liability for acts done in Judicial Capacity—Unless Interference with
Rights or Freedoms Under Constitution."
Suggested in Harlow v.
Fitzgerald, 457 U.S. 800, 812-13 (1982);
qualified immunity to Attorney
General, Mitchell v. Forsyth, 472 U.S. 511 (1985); Absolute immunity to
Prosecutors; Imbler v. Pachtman, 424 U.S. 409 (1976).
Hans v. Louisiana, 134 U.S. 1 (1890);
see also Edelman v. Jordan, 415 U.S. 651 (1974). The prevailing
eleventh amendment doctrine was that it did not prohibit suits against
the States arising under federal question jurisdiction, nor suits
against a State by its own citizens. Cohens v. Virginia, 19 U.S. (6
Wheat.) 264 (1821). It was not until after the Civil War that the Court
found that the eleventh amendment barred suits of citizens against their
own Government as the prelude to Hans v Louisiana. Then in Edelman v.
Jordan, in 1974, Justice Rehnquist married the eleventh amendment to the
state sovereignty doctrine. We should remember that it is abridgment of
the right to petition one's own Government that the petition clause
forbids. The eleventh amendment specifically does not abridge the right
to petition one’s own state government in federal court for redress. The
Court amended both the first and eleventh amendments by one simple act
of judicial fiat, and by that judicial act, changed the "legal"
relationship between government and governed.
O'Connor v. Donaldson, 422 U.S. 563
(1975) ([s]uperintendent of Schools); see also Wood v.
Strickland, 420 U.S. 308 (1975) ([s]choolboard members); Scheuer v.
Rhodes, 416 U.S. 232 (1974) (state executive officers for discretionary
A few examples from 42
U.S.C.A. 1983 demonstrates the point: "Qualified immunity covers
liability for claims brought against police officers under both Section
1983, and common law." Capone v. Marinelli, 868 F.2d 102 (3d Cir. 1989);
Police officers have absolute immunity for perjury at probable cause
hearing. White v. Frank, 680 F. Supp. 629 (S.D.N.Y. 1988). Officers have
qualified immunity for use of deadly force, where at time of incident,
law is unsettled. Hamm v. Powell, 874 F.2d 766 (11th Cir. 1989). Once
issue of qualified immunity is injected into civil rights case,
"plaintiff has burden of demonstrating that defendants violated some
'clearly established' constitutional right," Olzinski v. Maciona, 714 F.
Supp. 401 (E.D. Wis. 1989); For
qualified immunity, the officer must
demonstrate good faith belief and reasonable grounds for his actions,
and that they were within course of official conduct. But where a
citizen's right is clearly established, the officer may be immune if he
neither knew, nor should have known of the legal standard due to
extraordinary circumstances. Alexander v. Alexander, 706 F.2d 751 (6th
Cir. 1983). Qualified immunity applies if either the officer didn't know
and shouldn't have known his acts would violate rights, or where he
acted "without malicious intention" to violate rights. Allen v. Dorsey,
463 F. Supp. 44 (E.D. Pa. 1978). Executive officials as a rule, enjoy
qualified good-faith immunity. Coleman v. Frantz, 754 F.2d 719 (7th Cir.
Then there is a whole different line
of immunity, for "discretionary acts". "A limited immunity from personal
liability for unconstitutional conduct may be applied to many classes of
public officials who are required to exercise discretion the course of
their responsibilities." Atcherson v. Siebenmann, 605 F.2d 1058 (8th
Cir. 1979); 'Acts which are discretionary in nature by a public official
do clothe him with a governmental immunity of a limited nature.' Dewell
v Lawson, 489 F.2d 877 (10 th Cir. 1974) Immunity is extended to private
parties performing government contracts; Devargus v. Mason &
Hanger-Silas Mason Co,. 844 F.2d 714 (10th Cir. 1988), cert. denied, 498
U.S. 1074 (1991). Absolute prosecutorial immunity is extended to cover
qualified immunity of a sheriff who holds a prisoner for 18 days without
hearing on the grounds that he informed the prosecutor to arrange time
for appearance, but the prosecutor didn’t act. Coleman v. Frantz, 754
F.2d 719 (7th Cir. 1985) .
Immunity is based on a
dangerous myth: That unredressed grievances just go away. They don't.
They fester, and spread as rumor to become common knowledge of
government's injustice, to gradually rot the moral fiber of the Nation.
The only protection Government has from the people, is to provide
effective redress of just grievance. That is the teaching of the
first amendment petition clause, The Universal Declaration of
Human Rights and The International Covenant on Civil and Political
Rights. It is extremely dangerous to believe those principles do not
apply to The United States of America in the Twenty-First Century.
In the early nineteenth
century beginnings of our "sovereign immunity" tradition,
impelled Courts to turn to British Common Law for authority and
guidance, because there was very little else.
U.S. v. Lee, 27 L. Ed. at 184. (Lee,
J., dissenting) (attributes Lee's success to overcoming these factors:
"These principles appear to us to be axioms of public law, which would
need no reference to authorities in their support, were it not for the
exceeding importance and interest of the case, the great ability with
which it has been argued, and the difference of opinion that has been
manifested as to application of the precedents.").
Neither the fourteenth
amendment, nor § 5, authorizes Congress to contravene the express
purposes of the Amendment, which is to extend protection of U.S.
Constitutional Rights to all the People from state abridgment: Creation
of State Immunity, whether by the Court, or Congress, contradicts the
face and substance of the fourteenth amendment, not to mention what it
does to the petition clause.
The philosophy that
government may unlawfully injure some citizens for the greater good of
the people, the nation, its government or of the "proletariat" are all
variations of the same discredited philosophy that "The ends justify the
means". Given that governments will unlawfully injure some citizens, as
a necessary incident to governing, the only rational alternative to "The
ends justify the means" is an effective system of just redress for
constitutional violations arising out of the governing process.
amendment just compensation for taking private property for public use
doesn't require culpability. Why should unlawful taking of liberty be
U.S. CONST. art. VI, cl.
3: "The Senators and Representatives before mentioned, and the Members
of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall be
bound by Oath of Affirmation, to support this Constitution; ... ".
One of the more profound
descriptions of the duty to support the Constitution notwithstanding
that other officers may fail to do so was made by Judge Liddle in
Wuebker v. Bowles, 58 N.Y.S.2d 671 (1944). On what the Oath requires of
a Judge, his opinion is one of only two cited in the US Code Annotated;
Art. VI, § 3, U.S.C.A. "Under the Constitutional requirement that all
... judicial officers of the several states shall take an oath to
support the Constitution, the Constitution, alone, as it is written, is
the sole test, and the support of an act of Congress or any law
promulgated by any other federal official or any court decision, is not
required." That is the U.S.C.A. quotation. His statement goes on in
Wuebker: "Only the Constitution and laws made in pursuance (not in
violation thereof) are declared to be the supreme law of the land.
Decisions of the Court are not included as any part of the supreme law
of the land. That court may support the Constitution, as its oath
requires, or it may fail to do so, but it cannot change it. Under
Article 6, only the Constitution and the laws made pursuant to it are
binding on this court."
Stump v. Sparkman, 435 U.S. 349 (1978).
See supra note 1,
Paterson, LIBERTY OF PRESS, SPEECH &
PUBLIC WORSHIP: RIGHT TO PETITION PARLIAMENT 30 (1980).
Corwin, CONSTITUTION OF THE UNITED
STATES 1914 (2d ed. 1964).
San Filippo v. Bongiovanni 30 F.3d 424,
443 n. 23; (3d Cir. 1994); 1 BLACKSTONE, COMMENTARIES *143.
Story, COMMENTARIES ON THE CONSTITUTION
707 (1833); see also 1 Cooley, CONSTITUTIONAL LIMITATIONS:
PROTECTIONS TO PERSONAL LIBERTY 728 (8th ed. 1927) (quoting Lieber,
LIBERTY AND SELF GOVERNMENT 124 (2d ed. 1859).
The Court of Appeals
cites a footnote at this point suggesting that "The ‘right to petition’
is distinct from the petition of right,’ permitting claims against the
Crown. See generally Clode, PETITION OF RIGHT (1887); Wade &
Bradley, CONSTITUTIONAL LAW 684 (1965); Chitty, PREROGATIVES OF THE
CROWN 340 (1820). This writer disagrees. While one can conceptually
distinguish between them, what we are looking at is the legal and
cultural Evolution of a single right that differs somewhat upon its
uses. That conceptual distinction breaks down in post REvolution and
Constitution America. Here, we never had a "kingly sovereign" by which
to distinguish petitioning government from petitioning the Crown. Thus,
the first amendment "Right to Petition Government for a Redress of
Grievances" recognizes only the end product of that Evolution, as it
applies in America. The emphasis is on the right to petition
As you read Chapter 61 of
the Magna Carta, infra, observe that it claims the
petition to include tearing the government down, then after redress is
obtained resubmitting to the king’s authority. In a nation without a
"kingly sovereign" the equivalent is tearing the government down and
replacing it with one conformable to the Constitution. That is the
common law implication of the
first amendment right, as it applies to a
constitutional nation. If any further proof that it includes replacing
unconstitutional government by force if necessary, observe that the
second amendment requires the people keep the instruments by which they
can effectively do exactly that.
Magna Carta was
originally written in Latin. There are many translations of it and the
wording may vary depending upon the translation referred to.
The rest of Chapter 61
guarantees that the King and his heirs shall never interfere with the
petitioning process or punish or intimidate anyone for assisting the
barons to coerce just redress from the government.
CONSTITUTION OF THE UNITED STATES OF
AMERICA, ANALYSIS AND INTERPRETATION 1188 (1992); see generally
12 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 98 (1934).
Chapter 5 of the English
Bill of Rights of 1689 outlawed criminal prosecutions for petitioning.
For example, it limits
the contingency fee chargeable under the tort claims act and it limits
the dollar amount attorneys may charge for Veteran’s petitions. The
effect of these limitations is not to literally limit fees. Rather, it
limits and frustrates the claims for redress that can be economically
The author considers this
expression ("criminal exercise of [f]irst [a]mendment [r]ights") to be a
contradiction in terms. Yet, it accurately describes government’s
efforts to chill the people from effectively seeking redress of
grievances with it.
The author is a
"blacklisted attorney." Part of the story of his blacklisting can be
reviewed on the Internet at http://www.constitution.org under Confirmed
Abuses. Another part of that blacklisting is recorded in Wolfgram v.
Wells Fargo Bank, 53 Cal. App. 4th 43 (1997), cert. denied, 522
U.S. 937 (1997). What should be noted in that case is that he is being
blacklisted under California’s Vexatious Litigant Statutes for having
lost five cases against immunized government in seven years. See
generally Wolfgram v. Wells Fargo, 53 Cal. App. 4th at 47: "…
Wolfgram filed at least five unsuccessful suits against judges and other
officials alleging misdeeds…" In other words, Wolfgram petitioned
government for redress of grievances with government, and lost at least
five petitions when he tried to penetrate government immunities. Now he
is blacklisted from such petitioning. But what he learned in the process
are the foundations for this article, and a book that is introduced
under "Prelude" at the above web site. In point, "Justice" Morrison, who
wrote the opinion, was so impressed by the intellectual quality of the
brief that he wanted to show his own intellectual prowess in his
opinion. When the opinion issued, it was "Not for publication". But
because of the intellectual quality of the opinion, mostly borrowed from
Wolfgram and his attorney Kurt Simmons, Wolfgram was able to force
publication of that part of the opinion that addresses the petition
clause issues under the California Rules for Appeals. Then he took the
case to the California Supreme Court and certiorari was denied. Then to
the U.S. Supreme Court where cert. was again denied. Of five cases
raising petition clause issues that Wolfgram has taken to the Court (all
cert. denied) Wolfgram v. Wells Fargo is the only published opinion, and
the only reason that it is published is because the judge was badgered
into writing the history of the petition clause into an opinion that was
intended "Not for Publication". The rest of the opinion still is "Not
undermines effective assistance of counsel in cases of "criminal
exercise of rights". While the issue is somewhat different, the Court
examined the relevant text and meaning of the sixth amendment right to
assistance of counsel in Faretta v. California, 422 U.S. 818, 820
(1975). "In all criminal prosecutions, the accused shall enjoy the right
… to be informed of the nature and cause of the accusation; … and to
have the Assistance of Counsel for HIS defense." (emphasis added).
That is what the sixth amendment says.
"The purpose of the right to counsel is for the accused’s
defense, not just defenses that counsel finds expedient for government.
… An unwanted counsel ‘represents’ the defendant only through a tenuous
and unacceptable legal fiction. Unless the accused has acquiesced in
such representation, the defense presented is not the defense guaranteed
him by the Constitution." Id. at 821. (emphasis added)
While the Faratta issue was the right
to defend one’s self, that right necessarily includes the right, when
you have counsel, that counsel assist you in YOUR DEFENSE. The Court, in
that vein, observed that an attorney is an assistant, and no matter how
expert, an assistant is still an assistant. Then the Court described the
only court in our legal history to force counsel on unwilling clients:
The British Star Chamber. Id.
notes 17 and 18. (the Court described the impermissible thing the Star
Chamber did by forcing counsel on the accused) That impermissible thing
now seen as characteristic of "Star Chamber practice" was to make sure
that no defense the King didn’t want made was made. The Court described
what happened to counsel in Star Chamber practice who presented a
defense the King didn’t want to hear. His fate was as bad as that of his
Thus, the sixth amendment issue is not
merely the right to counsel, but as it says on its face, it is the right
to expert assistance in investigating and presenting the defendant’s
very own defense. Licensed attorneys can’t present the defendant’s own
defense against "political crimes" because "the king" doesn’t want that,
and the king controls the lawyers through their licenses. Such attorney
licensing is in effect, the foundation for a modern day transition to
"star chamber" courts and the legal practices necessary to sustain
A case of "Criminal
First Amendment Rights" just came down as this article was
being written, form the Ninth Circuit Court of Appeals. In U.S. v.
Fleming, (9th Cir. 2000) Fleming reacted to Federal Judge Coyle’s
abridgments of his petition right by filing a lien against Judge Coyle
for $10,000,000. He was charged and convicted of obstruction of justice
under 18 U.S.C. § 1503. The issue of his
first amendment petition clause
rights was not raised on appeal. Fleming asserted such a common law
right, but his Federal Defender attorney "conceded in his brief to this
court that no such right exists."
U.S. CONST. , art. II:
The question for the jury
in each case is whether the proposed application of law abridges a
reasonable exercise of petition clause rights under the face of the
first amendment, the evidence and argument. If it does, they must
acquit. If it does not, then they determine the case according to the
other issues presented. While no one case informs Congress on what
policy to adopt, many such cases where the jury refuses to convict, does
send such a message. This process of the jury applying the first to the
case guides both Congress and the Executive in determining the temper of
the people on the petition clause issue.
CONSTITUTION OF THE UNITED STATES,
ANALYSIS AND INTERPRETATION 1188 (1992); see also De Jonge v.
Oregon, 209 U.S. 253, 264-65 (1937); Herndon v. Lowry, 301 U.S. 242
at 1188-89; California Motor Transp. Co. v. Trucking Unlimited, 404 U.S.
508, 510 (1972); see also NAACP v. Cliborne Hardware Co., 458
U.S. 886, 913–15 (1982).
Professional Real Estate Investors,
Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993).
The Author believes that
compulsory administrative procedures for non-contractual grievances,
violates the petition clause. There is something inherently coercive
that abridges the right to petition when administrative procedures are
required. But the government may offer them and induce people to
exercise them with such advantages as fair standards, speedy resolution,
right to raise constitutional issues, simplicity of petition, low cost
and so on. People may be induced to waive constitutional rights. But the
problem emerges when government can force you to exercise administrative
remedies instead of inducing you. In that case they use abridgment of
petition rights as a whip, and there is no inducement for government to
make such procedures fair with just redress.
Notice that this is the
principle violated by Chief Justice Jay in Chisholm v. Georgia, 2
U.S. (2 Dall.) 419, 478 (1793). That case began the United States on the
journey of "sovereign immunity" which is translated as "immunity from
accountability to the people." See supra page 4.
Notice the common law
observation of Justice Miller in U.S. v. Lee, 27 L. Ed. 176. He
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."
Notwithstanding that Justice Miller ignored our petition clause, that
does describe our common law right to petition government for redress
under our petition clause.
As used here, "common
law" has a peculiar meaning that the author believes is also part of the
meaning of that term as used in the seventh amendment. It means "the law
that is common to and binding on all of the people." It is in
contradistinction to law specially designed for government, especially
for government protection from the people under the "common law." Notice
that all seeking redress for any grievance that you have with government
falls under the petition clause, and as to that, Congress shall make no
law abridging. The necessary result is the right to petition for redress
of grievances with government through the courts under the law that is
common to the people without abridgment for government’s benefit.
U.S. CONST. Art. I, § 1,
is conclusive of the issue. "All legislative Powers herein granted shall
be vested in a Congress of the United States," (emphasis added). "Shall
be vested" is mandatory. The Supreme Court is not a part of Congress.
Therefore no legislative powers by any name shall vest in it. Likewise,
with the Executive Branch.
U.S. CONST. Amend. XI:
"The Judicial Power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State." On its face, it does not apply to suits
by citizens against their own state.
In Mireles v. Waco,
502 U.S. 9 (1991) Judge Mireles ordered his bailiff to find Attorney
Waco and he "ordered" his bailiff to "use excessive force" to bring Waco
before the court. The bailiff located, assaulted and battered Attorney
Waco, then brought him before Judge Mireles. Waco sued Judge Mireles,
all the way to the Supreme Court. That Honorable Court held that Judge
Mireles had judicial immunity from accountability to Waco for his absurd
"order" that violated Waco’s constitutional rights.
31 F.3d 527, 535 (7th
Cir. 1994), vacated, 459 U.S. 1095 (1983). (judgment reiterated
under both state and federal constitutions by California Supreme Court
in 33 Cal. 3d 727 (1983)).
Both actual fairness and
its appearance are an issue to avoid class-based conflict. The Judicial
System is biased in favor of government, wealth, and large corporate
structure. For the purpose of avoiding class war, a "judicial roll of
the dice" would be more effective than systematic injustice based on
government bias against a class.
precludes a "personal sovereign." What remains, is simply "government."
Governmental sovereignty over the people contradicts the very notion of
a Constitution and Rights. The effect of the judiciary's service to a
sovereign not only violates a maxim of its trust: "No one shall serve
two masters, for he shall love the one and despise the other", but
because the design precludes a "sovereign", re-creating government as
"sovereign" creates the status of "Kings" and puts the judicial creator
at the head of the kingdom it created.
"Judicial Supremacy" is
the official legal philosophy of the United States. It’s origins are
credited to Chief Justice John Marshal in his opinion in Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803). Actually, that founded the
judicial policy of "Judicial Review." That is not quite the same thing
as "Judicial Supremacy" where in addition to supremacy over the other
branches, the judiciary assumes supremacy over the Constitution itself.
In all probability, Chief Justice Marshall would be absolutely astounded
at the judicial philosophy he is credited with founding. While there are
alternatives to Judicial Supremacy, it is taught in America as if there
are none, and attorneys just learn to accept it as an inherent part of
law practice. The alternative to Judicial Supremacy that is built into
the Constitution, is the right to trial by jury where the jury
determines the law as well as the fact. We still have the right, but it
has been watered down so that the jury's real function is instructed
away by the courts. That function is the commonsense of a group of lay
persons interposed between the accused and his accuser. The point is,
Constitutional (and all "legal") issues should be submitted to the Jury
for their commonsense interposition. That is the constitutional
balancing force against government having a monopoly on legal
interpretation. It is practical that on any constitutional issue, the
Nation has two separate lines of thought going all the time, as to what
the real law is. One is the Supreme Court's interpretation as
government's official spokesperson of what the Constitution means. The
other is the version that emanates from a case by case evaluation by
juries. That is the enforceable version. The push and pull between these
two versions is the life of the "living constitution." Everyday, the
confluence of these two separate interpretations is the bargain struck
between government and governed on what the Constitution really means.