A case of first impression is a frivolous case

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arguments based on my clients' due process rights, openly claimed to the court that the claim is frivolous because I do not quote any case law.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.