"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.

Tuesday, October 6, 2015

Titus Lucretius Carrus and the fraud of judicial immunity

The whole idea of judicial immunity is rooted in footnote 7 in Bradley v Fisher where the U.S. Supreme Court relied upon a 1810 case for the contention that the concept of judicial immunity was "deeply rooted in common law" and said:

"though the defendant acted erroneously, he acted judicially, and if what he did was corrupt, complaint might be made to the king, and if erroneous, it might be reversed."

Well, first of all, judges claimed back in 1810 that there were 2 ways to avoid suing them:

  • a complaint to the sovereign;
  • an appeal
With the change of sovereign from the King to the People, the outline of who the sovereign is and who is allowed to act on behalf of the sovereign in order to punish errant judges, became blurred, and, as I wrote in one of my previous blogs here, now judicial discipline disappeared completely, only judicial immunity remained, and, since judicial immunity was self-gifted by judges on the promise of availability of judicial discipline "complaints to the King", where such promise was not fulfilled, judicial immunity should not be applied, and that is not even going into the issues of statutory construction of the Civil Rights Act and of constitutional construction.

For some reason, the court in 1810, at the time when majority of American population was illiterate, felt compelled to quote to Latin verse to support its claim of judicial immunity:

"A short view of the cases will teach us to admire the wisdom of our forefathers, and to revere a principle on which rests the independence of the administration of justiceJuvat accedere fontes atque haurire."

That is a truncated quote from Lucretius, On the Nature of Things, here is the full passage in English translation:

I wander afield, thriving in sturdy thought,
Through unpathed haunts of the Pierides,
Trodden by step of none before. I joy
To come on undefiled fountains there,
To drain them deep; I joy to pluck new flowers,
To seek for this my head a signal crown
From regions where the Muses never yet
Have garlanded the temples of a man:
First, since I teach concerning mighty things,
And go right on to loose from round the mind
The tightened coils of dread religion;
Next, since, concerning themes so dark, I frame
Song so pellucid, touching all throughout
Even with the Muses' charm- which, as 'twould seem,
Is not without a reasonable ground:
For as physicians, when they seek to give
Young boys the nauseous wormwood, first do touch
The brim around the cup with the sweet juice
And yellow of the honey, in order that
The thoughtless age of boyhood be cajoled
As far as the lips, and meanwhile swallow down
The wormwood's bitter draught, and, though befooled,
Be yet not merely duped, but rather thus
Grow strong again with recreated health:
So now I too (since this my doctrine seems
In general somewhat woeful unto those
Who've had it not in hand, and since the crowd
Starts back from it in horror) have desired
To expound our doctrine unto thee in song
Soft-speaking and Pierian, and, as 'twere,
To touch it with sweet honey of the Muse-
If by such method haply I might hold
The mind of thee upon these lines of ours,
Till thou dost learn the nature of all things
And understandest their utility.

Let's not forget that the call to admire the "wisdom of our forefathers" is on the issue in which the deciding judge has a personal interest - his own liability for erroneous or corrupt and maliciously wrong decisions.

Now, if an errant child gives his parent "puppy eyes" and gives the parent some top-lofty quotes to escape punishment, that's understandable.

When a person wielding a nearly or virtually absolute power over lives, liberty and property of people, quotes the same top-lofty verse to explain why it is in the best interests of the sovereign governed by that judge only on consent of that sovereign, to give the judge absolute immunity for harming the sovereign, that makes no sense at all.

Imagine that a judge would harm the King and try to persuade the King that it was in the King's best interests to be harmed.  That judge would not see the next sunrise.

The next thing is parading the judge's self-importance by quoting ancient Latin verse to support his feeling of entitlement to be above the law, Constitution or no Constitution.  If anybody talks to you in Latin verse about the wisdom of absolving himself from wrongdoing, I would think that you will position that person as a self-important jerk and refuse to drink from the offered "fountain of wisdom".  That would be rational behavior.

Moreover, the "wisdom of our forefathers" to which the 1810 judge is calling as a basis for his  belief that everybody should "revere a principle on which rests the independence of the administration of justice" becomes even more crookish when considered against statements of historians from the "mother country", England, claiming that there was no such thing as judicial independence at the time before the U.S. Constitution was enacted (a full review of the book will follow), and where there is no actual independence of the judiciary, no principles of immunity should be "revered" to maintain what does not exist.

Let us also recall what We the People said in OUR Declaration of Independence:

He [the King - TN] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

So, what has been expounded as a "revered principle" "rooted in common law" and in the "wisdom of our forefathers" is, and has always been, a garden variety fraud sought by those in power against those who they harm by their misconduct, based on misrepresenting history to serve their needs.

Happened before, and continues to happen now.  Unless We the People put an end to judicial immunity by a specific state and federal Constitutional Amendment.

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