Federal courts do not care and continue to sanction civil rights plaintiffs and their attorneys for the essence of their viewpoints on issues of constitutional law as a policy of docket containment and protection of the government.
I wrote in many memorandums of law and appellate briefs in federal court - which all fell on deaf ears - that a constitutional argument is not a majoritarian argument, constitutional law is not the law of majority, and thus rules of frivolous conduct requiring comparison of an argument as to whether or not it is "reasonable", or, in other words, "mainstream" at the time, chills development of constitutional law, and with it, social progress.
Recently I came across a statement attributed to a famous law professor Anthony D.Amato:
| “The Moment of Truth for a practicing lawyer occurs whenever a prospective client tells a story that seems morally compelling but legally hopeless. That is where the attorney's legal research should begin, not where it should end. Too much injustice persists in the world because tired legal thinking has accepted unjust patterns as legally inevitable.” That means, under the current rules of frivolous conduct and the pattern of their application to constitutional arguments and the "evolving rules of decency" argument, that whenever an attorney meets such a "Moment of Truth" challenge, while "the attorney's legal research should begin, not end" at that point, what happens is the attorney runs from such a case like chased by hounds - because the attorney is afraid of being sanctioned if he raises, based on research and his/her own legal opinion an issue in court that is "morally compelling but legally hopeless". Many concepts that we accept today as mainstream, were once "morally compelling, but legally hopeless". Women were property of men, without their own right to decide their own destiny or the destiny of their children, own property, engage in professional activity or business, or vote. That all changed. Slavery was abolished. It was at some point mainstream, and runaway slaves were brutally prosecuted and psychiatrists "diagnosed" their "mental illnesses" for running away from their masters. Racial discrimination in public places, which was once a raging rule enforced by the government by police force, exists now only in remnants that civil rights movement is continuing to fight, and is declared unconstitutional. Gay marriage is now legal across the United States, while only over 13 years ago homosexual intercourse was a crime. Death penalty for juveniles was abolished only 13 years ago. Abortion and contraception was transformed into legal from being criminal on the lifetime of one generation. Right to marry. Right to marry a person of another race. All of those things were not "mainstream" at some time. At some time, all of the above things fit into the definition of "morally compelling, but legally hopeless cases". Existence and vicious application of rules of frivolous conduct against "non-mainstream" arguments chill a lot of potential civil rights lawsuits and slow social progress. If the U.S. Congress enacted the Civil Rights Act, 42 U.S.C. 1983, and an add-on, a fee-shifting provision, 42 U.S.C. 1988, to help civil rights PLAINTIFFS get attorneys by the statutory promise of payment by opponents if the case is won, that shows that civil rights actions were encouraged by Congress as something beneficial for the people. Yet, the same Civil Rights Act AND the fee-shifting provision, were put by federal courts on its head, now being the main source of STIFLING , not encouraging civil rights litigation. It is for you the people to assert that relentless and vicious sanctioning of civil rights plaintiffs and their attorneys for the contents of their viewpoints expressed in novel constitutional cases that are "morally compelling, but legally hopeless" hurts this country's social progress, and hurts citizens of this country by blocking their access to courts, preventing them from getting remedies for government misconduct. It is for the people to put an end to it, through media campaigns and addressing the issue repeatedly and assertively to the legal representatives people vote into office. |
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