Friday, October 14, 2011

Justice requires that The Rule of Law swing both ways (revised and extended 10-14-11)

Antonin Scalia
c/o William K. Suter, Clerk of the Court
Supreme Court of the United States of America
Washington, D.C. 20543-0001

Re: Justice requires that The Rule of Law swing both ways
       Absolute Immunity 4:11-cv-0931-CAS / 8th Circuit Appeal # 11-2425

Dear Nino,
I thought we fought a revolutionary war to get rid of the infallible, immune, all-powerful, and unimpeachable pronouncement of law by the King, his chief justice, his officials, or any of his servants.  I thought We the People created:
"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."[1]
to limit the incorporated acts of our government.  How did We the People's governmental judges now become capable of immune all-powerful unimpeachable pronouncement of law?  I thought the government of We the People and our judges were incorporated to "be bound thereby" and liable for "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made as the supreme law of the land?"  Justice requires that The Rule of Law swing both ways and protect both the individual from the majority's illegal wrath and society at large from the individual's illegal acts.
You would be well disposed to consider the life and times of John Emerich Edward Dalberg-Acton, 1st Baron Acton (Lord Acton).  Not a lot there, but what is there is choice.  He was a devout Catholic, like yourself?  He struggled with the dogma of his time, the doctrine of papal infallibility.  In spite of his reservations, he regarded "communion with Rome as dearer than life".  The Old Catholic separation was of his time, but Acton did not personally join the seceders, and the authorities prudently refrained from forcing the hand of so competent and influential an English layman.  It was in this context, in a letter he wrote to scholar and ecclesiastic Mandell Creighton,[2] dated April 1887; Acton made his most famous pronouncement:
"I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases.  Historic responsibility has to make up for the want of legal responsibility.  All power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority.  There is no worse heresy than that the office sanctifies the holder of it."[3]
In that we know Acton to have been an intelligent and influential English layman for his time, why is there not more of his presence in the record?  Why did his pronouncement "All power tends to corrupt and absolute power corrupts absolutely" so overwhelm our recollection of Lord Acton?  In his time, he was nothing if not influential.  It was said[4] that Prime Minister "Gladstone influences all round him but Acton; it is Acton who influences Gladstone."[5]   Gladstone was a very powerful and influential man, why was Acton's enduring influence virtually limited to the one quote, "All power tends to corrupt and absolute power corrupts absolutely"?  Because he was truly meek, he knew the value of humility and restraint.
            In your "The Rule of Law as a Law of Rules"[6] you assert Aristotle's "Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement."[7]
If angels were to govern men, angels[8] could make "an exact pronouncement" of the laws.  But that is not and NEVER will be the case.  I feel confident Chief Justice Taney felt angelically justified about his "exact pronouncement" of the Supreme Court Rule "that a black man has no rights a white man is bound to respect."  As I am sure the eight members of the Supreme Court that made the "exact pronouncement" of the Supreme Court Rule "Separate and UNEQUAL" over We the People's democratically established ANTI-Segregationist Civil Rights Act (1876), and the objection of Justice Harlan felt angelically justified.  Justice Fields felt angelically justified about his repeated "exact pronouncement" of the Supreme Court Rule "Liberty of Contract." 

Yet We the People had to suffer the consequences a civil war with over 600,000 casualties, 100 years of Jim Crow's inequality and lynchings and a depression to over come the Supreme Court's OVER-REACHING fallibility.

They were all DEAD-wrong, as we now know, with their UNJUSTIFIED and UN-ANGELIC "exact pronouncements."  The Problem with "announcing a firm rule of decision" is as you noted and admitted, "All generalizations (including, I know, the present one) are to some degree invalid and hence every rule of law has a few corners that do not quite fit."  You are not divine.  You are not infallible.  You are not angelically empowered.  I do not think the expediency you offer with your generalizations is worth risk or the past costs of such UN-ANGELIC bad acts.  The very best that ANY human can do is to humbly show some judicial restraint and use the "totality of circumstances" test to infinitely slowly close in on the admittedly unreachable perfect result.  The preamble to our Constitution states its binding purpose and guidance to all that follows it:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Your job as a Judge is to "establish Justice" under the law.  You are not responsible to make law, to eliminate crime or get criminals off the street.  Your job as a Judge is, AGAIN, to "establish Justice" under the law.  And because Justice in most cases is unique to the immediate circumstances it does not lend itself to the clearly knowable and / or reproducible solutions as required by the mass production you propose with your "announcing a firm rule of decision" binding to all.  You are exceeding your authority by mass-producing generalizations "announcing a firm rule of decision."  "With 5% of the world's population, our country now houses nearly 25% of the world's reported prisoners. We currently incarcerate 756 inmates per 100,000 residents, a rate nearly five times the average worldwide of 158 for every 100,000.[9]" I refuse to believe we are 5 times as criminal as any other country.  Your fallible, immune, all-powerful, and unimpeachable asserted expediency in "announcing a firm rule of decision" is DENYING JUSTICE and corrupting the United States of America's JUSTICE SYSTEM!  How many innocent people are incarcerated, all you know for sure is the very real EXISTENCE of malicious, corrupt and incompetent judges held to be ALL-powerful, immune and unaccountable by your "announcing a firm rule of decision" IMMUNITY for all those integral in the judicial process!!!!!!!!!
            Aristotle's teacher Plato asserted a maximum of the benevolent dictator.  And yes the benevolent dictator is by far the most expedient and efficient form of government.  But the long-term benefits of an imperfect line of succession has proven the benevolent dictatorship to be inherently and unavoidably flawed.  Much like your references to Saint Louis under the tree after mass as the best form of Justice.  But Plato admitted in his "Republic" a state made up of different kinds of souls will, overall, decline from a benevolent dictator (aristocracy - rule by the best) to a timocracy (rule by the honorable), then to an oligarchy (rule by the few), then to a democracy (rule by the people), and finally to tyranny (rule by one person, rule by a tyrant).  Plato did not conceive of the constitutional Democracy that we have evolved into.  And Aristotle did not conceive the corrupt uses that an infallible, immune, all-powerful, and unimpeachable attempt to make an exact pronouncement"[10] of the law for all time could produce. 
            With the Supreme Court's asserted immune, all-powerful, and unimpeachable infallibility we are approaching a tyranny.  It scares me to death that nine members of the Supreme Court assert the doctrine of the Supreme Court as immune, all-powerful, and unimpeachably infallible.  The Supreme Court needs to learn from its mistakes, give up the doctrine of Supreme Court's immune, all-powerful, and unimpeachable infallibility, learn humility and for go the broad pronouncement of the Law in direct opposition to the will of We the People as established by congress and the President with Statue Law.
            John Marshall, an all too revered former Supreme Court Justice, supposedly established the Supreme Court's immune, all-powerful, and unimpeachable infallibility with his assertion of judicial review of a statute about to be repealed by the newly elected opposition party of Thomas Jefferson.  It was a benign deception then and now 220 years later it is a criminal deprivation of rights.
On this planet Infallibility and Immunity demands the impossible human Divinity.  And the assumed divine, immune, all-powerful, and unimpeachable pronouncement of law by the King, his chief justice, his officials, or any of his servants was eliminated by this Constitution as the Supreme Law of Land. 
The meek truly will inherit the earth Lord Acton is right:
All power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority.  There is no worse heresy than that the office sanctifies the holder of it."[11]
And the bible's Old Testament agrees,
"But the meek shall inherit the earth; and shall delight themselves in the abundance of peace." [12]
If there is anything further I can do for you in this regard, please let me know.
Thank you in advance.
"Time is of the essence"
Revised and extended Friday, October 14, 2011, 12:30:46 PM 2011 07-05-11 Nino Scalia REV 99RX.doc
David G. Jeep
cc:  My Blog - Friday, October 14, 2011, 12:30:46 PM


[1] Constitution for the United States of America Article. VI. Second paragraph
[2] Mandell Creighton (1843-1901), was an English historian and a bishop of the Church of England.
[3] Dalberg-Acton, John Emerich Edward (1949), Essays on Freedom and Power, Boston: Beacon Press, p. 364
[4] Matthew Arnold (24 December 1822 – 15 April 1888) was a British poet and cultural critic.
[5] "Acton (1st Baron)", Encyclopedia Britannica 1911, v1, p160
[7] The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). The Politics of Aristotle 127 (Ernest Barker trans., 1971-2) (III, xi, § 19; 1282b) (footnote omitted).
[8] "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." The Federalist No. 51 "The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments" Independent Journal
Wednesday, February 6, 1788, by James Madison
[9] "Why We Must Fix Our Prisons", By Senator Jim Webb, Parade Magazine published: 03/29/2009, U.S. Imprisons One in 100 Adults, Report Finds New York Times, By ADAM LIPTAK, Published: February 29, 2008, Our Real Prison Problem. Why are we so worried about Gitmo? Newsweek by Dahlia Lithwick Published June 5, 2009
[10] The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). The Politics of Aristotle 127 (Ernest Barker trans., 1971-2) (III, xi, § 19; 1282b) (footnote omitted).
[11] Dalberg-Acton, John Emerich Edward (1949), Essays on Freedom and Power, Boston: Beacon Press, p. 364


--
Thanks in advance

To Kill a Mocking Bird, The Denial of Due Process
"agere sequitor esse"
"Time is of the essence"
David G. Jeep
http://dgjeep.blogspot.com/
E-mail is preferred Dave@DGJeep.com, DGJeep@DGJeep.com
(314) 514-5228
David G. Jeep
c/o The Bridge
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Saint Louis, MO 63103-2316