Antonin Scalia
c/o William K. Suter, Clerk of the Court
Untied State Supreme Court
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 corporate acts of our government. How did
judges now become capable of immune all-powerful unimpeachable pronouncement of
law? I thought the government of the 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 they would be no need for "an
exact pronouncement" of laws. But that is not and NEVER
will be the case. I feel confident Chief Justice Taney felt
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 justified. Justice Fields felt 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
"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. I do not think
the expediency you offer with your generalizations is worth risk or the past
costs. The very best that you 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.[8]" 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 t be 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"[9] 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 Supreme Court as immune,
all-powerful, and unimpeachablly 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."[10]
And the bible's Old
Testament agrees,
"But the meek shall
inherit the earth; and shall delight themselves in the abundance of
peace." [11]
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"
David G. Jeep
cc: My
Blog - Wednesday, July 13, 2011, 4:38:35 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
[6] Antonin
Scalia, The
Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).
[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] "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
[9] 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).
[10] Dalberg-Acton,
John Emerich Edward (1949), Essays on Freedom and Power, Boston: Beacon Press,
p. 364
[11] The
Old Testament's Psalm
37-11 King James Version (KJV)
--
Thanks in advance
To
Kill a Mocking Bird, The Denial of Due Process
"Time
is of the essence"
David
G. Jeep
E-mail
is preferred Dave@DGJeep.com, DGJeep@DGJeep.com
(314)
514-5228
David
G. Jeep
c/o
The Bridge
1610
Olive Street,
Saint
Louis, MO 63103-2316
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