"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.

Monday, February 15, 2016

The death of #AntoninScalia highlights usurpation of power to change the U.S. Constitution by the U.S. Supreme Court

Oh, it was quite an eventful weekend.

Not because it was a Valentine's Day weekend so much, but because of the death of one 79-year-old man, a U.S. Supreme Court justice #AntoninScalia and the resulting mainstream and social media frenzy and the "political turmoil" in the country.

As soon as the news of Scalia's death came out on Saturday, Feb. 13, 2016, a storm in the media and in the U.S. political arena started.

In the press and the social media, 

  • lawyers and judges were mourning the passing of the "brilliant jurist", 
  • ordinary people expressed relief that a racist, mysoginist and supporter of torture and executions of the innocent finally left the court (I sum up comments in social media that I collected and have on file), and 
  • politicians made instant announcements as to plans for Scalia's replacement.

Why such an attention to the death of one 79-year-old man, of allegedly natural causes?

An inadvertent answer came from presidential candidate and #SenatorTedCruz.  

Before quoting Ted Cruz, I would like to first refer to some fundamental principles of law.

First.  The Supremacy Clause of the U.S. Constitution (which all government officers are sworn to uphold in its entirety) does NOT include decisions of the U.S. Supreme Court.

It says the following:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

Once again, what the Supremacy Clause includes into the Supreme Law of the Land is:

1) The Constitution itself;

2) the Laws of the United States which shall be made in Pursuance of that Constitution - where the phrase "shall be made" points laws (a) that are "made" - laws can be "made" only by the U.S. Congress, Article I of the U.S. Constitution;
(b) laws that "shall" be made - covering future laws, and laws that are made lawfully, "shall" has a grammatical meaning denoting both the future tense and the mandate;

3) all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

Three whales - the Constitution, the statutes, the Treaties.  Nothing else.


From the same Supremacy Clause - "The Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

This is the rule of construction of the Supremacy Clause and of the U.S. Constitution, written into the Supremacy Clause.  

#AntoninScalia was heralded as the founder of the "originalist" theory, or interpreting the U.S. Constitution exactly as it was written and understood by its founders.  The Supremacy Clause is written quite clearly and unambiguously.

If "the judges in every state shall be bound thereby", federal judges, naturally, should be bound by the U.S. Constitution, too.  The U.S. Constitution does not include any exceptions as to who is absolved from complying with it.  And, federal judges, including the U.S. Supreme Court judges, personally take an oath of office to comply with the U.S. Constitution.


The U.S. Constitution contains in itself the procedure of how it can be changed (amended), and that procedure does not include authority of the U.S. Supreme Court to change the U.S. Constitution by interpretation.


The authority of the U.S. Supreme Court to interpret the U.S. Constitution does not derive itself from the U.S. Constitution, it was self-given by the justices of the U.S. Supreme Court in Marbury v Madison 213 years ago, in 1803.

By the way, in Marbury v Madison the U.S. Supreme Court said the following: "It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it."

Nothing in the Supremacy Clause requires declaring its restriction to the three written laws - the U.S. Constitution, the statutes and the treaties - as an "inadmissible construction".

The U.S. Supreme Court in Marbury v Madison agrees that "a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument." 

"Courts and other departments" is a definite reference to the federal government.

The U.S. Supreme Court has no authority to amend the U.S. Constitution through the interpretation.

#AntoninScalia was, first, sworn to uphold the U.S. Constitution, and, second, as an "originalist", declared his super-loyalty to the U.S. Constitution as it was written and understood by the founders.

Now comes Senator Ted Cruz with his statement: "We are one justice away from the Second Amendment written out of the U.S. Constitution".

That's at the core of the media frenzy, the social media frenzy, the Senate filibustering threats.

Everybody in the country appears to assume that judges of the U.S. Supreme Court have authority to change the U.S. Constitution at their whims.

They do not, but, once again, everybody appears to assume that - because all judges of the U.S. Supreme Court, including the "originalist" Scalia, have demonstrated to the people and to the politicians that they do not care what the Supremacy Clause says and they will continue to change the U.S. Constitution at their whims, as they want, whenever they want it.

And, Senator Cruz who is supposed to IMPEACH AND REMOVE justices of the court who engage in acts that are outside of their authority, enables such behavior by making statements that legitimize the unlawful usurpation of the power to change the laws and the Constitution by the U.S. Supreme Court.

If we have the U.S. Constitution, the Supreme Law of the Land, with its Supremacy Clause that says NOTHING about decisions of the U.S. Supreme Court, what is this nonsense with who will appoint the 9th Supreme Court justice when, which president, present or future, a Democrat or a Republican, what is this nonsense with the "balance of power" on the U.S. Supreme Court?

Aren't all U.S. Supreme Court justices, no matter who appointed them, a Republican or a Democratic president, have just ONE point of loyalty - to the popular sovereign, the People, and to their Constitution?

Why these ridiculous lies about how Scalia died, attempts to hide evidence, races with the corpse to the embalmers and whisking the corpse out of the state of Texas where he allegedly died?

Why do we make a mockery out of this country's democratic institutions, laws and the Constitution before the entire world by practically admitting that it is not the "three branches of the government", controlled by the U.S. Constitution and its checks and balances, but 9 old and apparently corrupt men and women who control this country at their whims and at the whims of parties who pull their strings?

I will run a separate blog about inconsistencies in how Scalia's death was announced and how the investigation was handled - judging from available news reports - and that is not an unimportant thing, because it shows how the principle of equality under the law is turned into a mockery whenever embarassing or criminal evidence about some high-standing government official needs to be hidden.

The question that I ask here is - why don't we change how the U.S. Supreme Court operates, by a Constitutional Amendment if the currently existing Supremacy Clause does not seem to be working?

Why don't we do this:

1) significantly expand the number of justices on the U.S. Supreme Court, so that 

        a)  the death of one does not affect the work of the court in such a dramatic way;  and

        b)  there are enough justices to handle all cases coming for their review

2) make review by the U.S. Supreme court mandatory, not discretionary.  

When lawyers, law firms and rich landowners and business owners strike "friendships" with U.S. Supreme Court justices, either by offering them what they like to do very much (like hunting trips to Scalia) or paying their way to luxury resorts or helping them in any other tangible or intangible ways, there is an appearance that such "friends" secure for themselves, their family, friends and businesses, a preference in the judge's mind to give them and not others, the right of "discretionary" review by the court where the court picks only 70 cases per year out of the entire country, 12 federal appellate circuits and 50 states.

3) Make service on the U.S. Supreme Court short, like a year's term, thus removing treatment of such justices as royalty, and opportunities for forming "lifetime friendships" with the only purpose to pursue mutual personal benefits for justices and powerful and rich parties, politicians and lawyers;

4) Legislatively strip all judges of judicial immunity -  since other ways to impose accountability upon judges do not work, and actions of judges of the highest court of the country indicate that they disregard the rule of law they themselves are supposed to uphold, especially when it concerns personal gifts and benefits to themselves; otherwise judges will continue, as they do now, to find immunity for themselves for any corrupt and malicious acts that undermine integrity of judicial proceedings, as if it is "implied" in the U.S. Constitution;  we need to do a collective lobotomy otherwise, if we think that it benefits us to allow judges to escape with shenanigans like Scalia was pulling off throughout his judgeship in being openly bought by hunting trips - and who knows what else, and remain on the court, deciding cases in favor of whoever bought him;

5) Introduce strict mandatory rules governing misconduct and conflicts of interest of U.S. Supreme Court and other federal judges and simplify impeachment of such justices;  remove judicial discipline from federal judges themselves;

6) introduce legislation allowing direct referral of all judges to grand jury investigations by the aggrieved parties, bypassing prosecutors, since prosecutors are attorneys whose licenses and livelihoods are regulated by courts, and who have a conflict of interest in not criminally prosecuting judges;

7) allow prosecution of judges by lay individuals who have no law licenses regulated by judges, thus eliminating the conflict of interest.

Then, ridiculous situations like races to the embalmers with the corpse of #AntoninScalia and snake-pit fights in the Senate as to who to appoint as a U.S. Supreme Court justice will stop happening, the rule of law in this country will become possible, and we will stop being the laughingstock of the civilized world.

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