In many courts where I appeared judges are strangely unaware of the text of the U.S. Constitution or what it might mean.
The same I can say about many experienced attorneys.
In fact, some attorneys, when I raised arguments based on my clients' due process rights, openly claimed to the court that the claim is frivolous because I do not quote any case law.
What constitutes due process of law is, admittedly, not spelled out in the Due Process Clause of the 14th Amendment.
But, that clause exists, and a similar clause exists in New York State Constitution.
There also exists the Ninth Amendment of the U.S. Constitution reserving all rights that are not spelled out in other Amendments, to the people.
Thus, if something is not spelled out, and there are no specific cases on a particular issue, it does not automatically mean that the argument is frivolous.
Yet, to many judges - it is.
Such an approach completely destroys development of constitutional jurisprudence, channels it into the existing grooves, stifles any creativity or development of jurisprudence and legal thought and indicates that what is allowed to legal scholars in law schools, is somehow prohibited to raise in the courtroom, for what reason - nobody knows.
Somebody, at some point, must raise a new idea for the society to develop.
And, most likely, raise it again, and again, and again, until it takes root.
Without new ideas tried out in constitutional jurisprudence in the courtroom, no progress in the field of civil rights is possible. Maybe, that is what the government, including the courts, wants all along? That is my impression - judging by the fact, how fiercely and blindly courts lash out at any new constitutional ideas.
And I raise, again, and again, and again, the simple idea that constitutional jurisprudence is not majoritarian jurisprudence and constitutional issues may not be decided by application of the rules of "frivolous conduct" - which are - how the hypothetical "reasonable" person will view a certain issue.
Had attorneys stuck to the "reasonable person for the time and place" standard, women would still be property of men, African Americans would still have been slaves, contraceptives and homosexual relations would still be criminal, etc. etc. etc....
Constitutional jurisprudence is not majoritarian jurisprudence.
Raising constitutional issues may never be frivolous, no matter what courts say who simply want to lighten up their caseloads and intimidate civil rights attorneys against bringing more cases.
The "floodgate of litigation" approach is never a good reason for denying people access to court.
In this case, though, the floodgate approach simply does not work. All that courts need to do is - instead of creating multiple frivolous doctrines preventing access to court by civil rights litigants - to actually drop the silly immunity doctrines, abstentions and other bars to federal civil rights litigation and decide cases on the merits.
When government officials know that their collective asses may be whipped up in court, and pretty heavily, and that they may afterwards lose their jobs because they become a liability to their employer, they will think twice before committing the same misconduct - and there will be actually less litigation.
The U.S. Supreme Court decided that same sex intercourse may not be criminalized - and there is no litigation on that subject.
The U.S. Supreme Court decided in principle that contraception is legal - and litigation on that subject is on peripheral issues only (right of notification of parents if a minor asks for contraception, the issue of abortion and at what term it can be done), but not on the issue of legitimacy of contraception as a concept.
The same applies to any other constitutional issue to be raised.
But - if issues of first impression are sanctioned as frivolous, as federal courts started a tendency to do now - civil rights litigation with still be happening, still be deflecting the court's resources, but will be going in circles without any major breakthroughs.
Protective measures in civil rights jurisprudence backfire on all of us.
THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:
"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.
“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).
“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.
It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.
" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.
"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.
“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.
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