Sunday, August 21, 2005

Something New

Part of the idea behind this blog was for me to practice my writing. I've been neglecting that.

The constitution, I said in "Judge Rant 1," was a document creating a government to house common law. I don't think that there's anything magic about the Constitution. It's a good document, for what it tries to do. I've heard people talk about it as though it were Holy writ. That's just not true. Scripture is scripture, it is Revelation. The Constitution was just a human theory on the best way to restrain government.

Now, what is interesting about the Constitution is that it does seek to restrain government. Americans inherited distrust of government from England. England had several particularly bad governments, and perhaps that is why they invented Constitutional Law, viz. the Magna Carta. That document was a list of things the aristocracy didn't want the King to do anymore. It limited government. The Declaration of Independance was a list of things the King of England was doing that American colonists didn't want him to do anymore. The Constitution was written to prevent Americans from making George Washington King of America, a job that he just didn't want. Perhaps he did this out of reverance of God, perhaps out of feelings of inferiority, perhaps because he really believed in republicanism, perhaps he recognized that Kings have a bad habbit of getting assassinated by rivals, and quite frequently by their own family members. At any rate, he refused the job, and I think its a good thing he did.

The Constitution acknowledges that government is predatory. So the founders created three governments. The idea is that we the people are the sheep. The government is made up of wolves. If there must be a wolf, let him be a crippled one. Better yet, three cripple ones. And tell each of the wolves that the other two have it out for him. Keep the wolves fighting amongst themselves. Hopefully, that way, they will leave the sheep alone. It made our government terribly inefficient. That's a good thing! I like when new laws aren't passed. Death to all new laws! Death to most old laws! Not the really old ones, though.

I was selected for jury duty last year. I din't make it onto the actual jury though. There were several others in line before me, and I never got called. It was a murder case, though not one seeking capital punishment. Each potential jurer was asked if they felt they could give an impartial decision about the case and the laws relevant to the case.

I didn't want to be on that jury, but I don't think they would have kept me anyway. If they had asked me whether I could give a fair hearing to the case and the law I would have responded, "I would be glad to hear this case, but concerning the law, I would only be willing to consider those portions of the law which had their foundation in case law, common law. I would not be willing to give equal hearing to legislated law, man-made law.

The Constitution tried to make it difficult for men to make laws. Not only did laws have to be approved by a majority of state representatives, but they also had to be approved by another delegation of local community representatives. Then the enforcement (executive) portion of government had to agree to enforce the law in question. If he didn't like the law he could refuse to enforce it. Then the state and community representatives would have to get more than a majority to approve the new law. Finally the judging portion of government had to agree to prosecute and convict people based on the new law. If they felt there wasn't precedent for such actions, they could refuse to recognize the new law, and force everyone to start over again.

This is so great! Nothing is getting done! Wonderful!

But there was still one way laws could be made. Every time a new situation came up in a court, the judge presiding over that court would make known the laws relevant to the case. That's really the judge's main job, to know what the relevant laws are and to make them known. He's like a preacher and teacher of the law. (Interesting note here, Jesus never spoke badly of the scribes of his time because they knew the law, rather because they did not keep the law, and because they twisted it.) After all the relevant laws were laid out, after every decision from previous relevant cases were examined for precedents as to how this case ought to be decided, the judge would make his decision. If all existing law at the time of the trial still left the case uncertain the judge could throw the case out, proclaiming a mistrial, or he could make a NEW DECISION.

It's risky business making a new decision. The only reason people use the courts is because they are relatively stable. If a new decision is deemed to be a bad one by too many people, they will begin to lose their confidence in the courts. Judges are immediately held accountable for their decisions. Many people will just go to some other third party to hear their disputes.

But if a new decision is deemed to be wise, and in keeping with common sense, or natural law, and God's law, then this new decision becomes a precedent upon which all future law can draw insight and wisdom.

The Constitution sought to protect this ability for judges to make wise decisions. It was a good idea.

Question: Is government force, or is it justice?

No comments: