IS DEMOCRACY POSSIBLE OR JUST AN ILLUSION?
WHEN YOU HAVE POWER AND An ignorant CITIZENRY, WHO NEEDS TRADITION AND LAW?
COMMENTARY by Dennis L. Blewitt, J.D.
It has been almost 50 years since I was first introduced to the Magna Carta. And here was I, viewing one of four remaining copies of the document penned in 1215. It wasn’t until I finished law school that I was able to appreciate the significance and impact that it has had on Western civilization since its signature. It challenged the divine right of kings and was signed by a king of England at sword point. It eventually caused a schism in the Church, ending in the founding of the Anglican religion, with the King as the head of the church. It was a rebellion of the Barons which was quickly repudiated by the King. The signatory barons were promptly ex-communicated by the Pope and the document repudiated by the King. However, approximately 10 years later, another king agreed to the conditions and it has been part of our Anglo-American law since then. Next year, Salisbury will celebrate its 800th anniversary.
While England prepares to celebrate the 800th year celebration of the document that established right to jury trial, judges learned in the law, right of women to inherit, due process, trial by peers, etc., the United States is participating in an Orgy of destruction of the document.
Many of the provisions of the charter had been put in place by the Saxons, before the Norman invasion. When the Normans conquered the land, Norman or Roman law was foisted upon the people, and not without resentment. Saxon law had worked for centuries and had different basic assumptions than Roman law. Roman Law was the law of conquest since before Caesar and the people were considered a threat. As expressed in the Saxon spiel, accused were entitled to a trial, to have bond and their house, no matter how humble was inviolate.
Under Roman law, the conquered were considered potentially dangerous, their homes may contain weapons used against the Normans, and the conqueror should control all property in its descent and distribution, including the Droit du seigneur, the Lord’s right to try out the bride before the husband. This caused much friction between the Anglo-Saxons and the Normans.
With King Richard playing in the Holy Land, and John raping and pillaging the land, the conquered people exhibited their frustrations by holding King John at sword point and making him sign a Charter of Rights, which the pope promptly nullified and John promptly repudiated. However, the thoughts and ideas have existed since that time and were enshrined in the first ten amendments of the Constitution of the United States. These rules and ideals have existed for centuries and are quickly being destroyed by our corporate masters, through turning the nation’s police into a conquering army.
Granted, employers don’t demand the right to try out their subjects before marriage, but the droit Seigneur has often been manifested with power over employees (Sexual harassment). However, there are still many ways in which the Government and corporate masters have destroyed or attempted to destroy the social contract.
Bail was an absolute right, as was the presumption of innocence. No longer is this the case. In 1980, fearful lawmakers. For centuries, the idea of preventive detention was something associated with the inquisition. The right to seize homes and property became tenuous, with confiscation laws. The people began to be viewed as the enemy by the rulers and viewed each other with suspicion. The mantra became protect us and fear reigned over reason. Younger judges and prosecutors thought the Constitution a cute anachronism, to be ignored or side-stepped. The conventional wisdom was that people were innately evil and should be watched and locked up if there were any POSSIBLE threat. To prove the evil nature of people, sting operations were invented. Informers were recruited and fears were manufactured. No more Brave New World. Instead there was a fearful old world reminiscent of the ages of the Black Death. However, instead of blaming witches for an epidemic of death, we blame drugs, hippies, non-whites and workers.
Consequently, we lock up more people per capita than any other country. We have inferior education, health care, housing and a massive wealth grab by the powerful. And the press inflames the fear. A controlled press indoctrinates us and a military police keeps people in line. Citizens killed by police outnumber the casualties in the Afghan and Iran wars. The only prosecutor with integrity and courage enough to charge a policeman, was Stan Garnett of Boulder, who prosecuted a cop for shooting an Elk in the city, obviously more important to the citizenry than a minority teenager.
It is obvious that the people believe a teenager is dangerous and should be killed if there is any doubt in the mind of the policeman, or even if he is pissed off. An elk, however, is an entirely different manner. The elk won’t rob or harm you like the teenager could. If the teenager is a minority, he is even more dangerous because of the way he has been treated over the years and everyone in the Anglo community knows that they are just looking for an excuse to get even.
Even though John Mitchel thought that the people would never accept preventive detention, we have it. Better safe than sorry. Except, they can’t be locked up forever. Even though illogical, this shift reflects a completely different mindset in the thinking and actions of America.
We traditionally had a Common Law system. That is no longer the case. At common law, people were presumed innocent. They were given the benefit of the doubt. There was a certain degree of trust that bound the people. Common Law was common to the citizenry. Not all the citizenry, but a consensus did exist concerning what was right and wrong. There were shared folkways, mores, rules, taboos, conventions, etc. There was agreement in principle, interpretations varied.
With a power shift, Common Law was abolished, along with the presumption of innocence and other protections of the citizens. One must realize that it is unlikely a dictatorship or totalitarian government can exist in a common law system. Not so under Roman Law (Napoleonic Code or Civil Law). This was law imposed upon a conquered people. Rulers suspected the citizenry, because they were the “other.” They had a different cultural generally as well as linguistic variances.
When the Normans tried to impose strict Roman Code on the Islanders, they rebelled. They refused to fulfill their duties as liegemen for a despotic and unfair king. The notion of social contract was in the infancy and would flourish in later centuries only to be imperiled in modern times.
For over seven centuries, bail was an absolute right. There were not any bond conditions outside of appearing in court when ordered. People were considered law abiding and viewed as straying from the path of righteousness and given the benefit of the doubt. Then came Ronald Reagan. Everyone was a suspect. Offenders must be locked up to protect the community, even if not convicted of a crime. This preventive prevention was a scam to make the people feel safe and transfer wealth to corporations without accountability.
People on bond now have to report to supervisors, just as if they had been convicted. Not only do they have their right to bail abridged, they get to pay some private company for the privilege of taking their Constitution away. Since corporations have no consciousness, they can’t take an oath to abide by, defend and protect the Constitution. Their only duty is to increase corporate profits.
Since most judges have had little experience outside the prosecutor’s office and have isolated themselves from the commoners, they have no idea what impact they have on the people. They ignorantly assume that the only things that the people care about are personal safety and material gain. Since they have very limited conscious or interaction with the poor people, they have no way of understanding. They brag how they are attuned to the needs of minorities and women, but see things in an upper-class bias. Their circle that influences their views are officials, politicians, businessmen and police. They are like the white southerner in the 60s who believed that the blacks were all contented and happy and stirred up by “outside agitators.”
As the people become more insular, they are more resistant to change. For years the police complained about “how they worked their asses off to put bad guys in jail, and the Courts just let them go. Many of us believed that they thought judges were soft on sentencing. This was logical because the police felt that probation was devaluating their worth as police. However, the police weren’t talking about sentencing, they were pissed off at the fact that the arrestees were being admitted to bail. Most of us couldn’t imagine that to be the position of the police because, they, like lawyers took an oath to support the Constitution and right to bail was an absolute constitutional right. After years of bitching and fear mongering, the prosecutors, judges and legislators capitulated and defacto abolished the common law right to bail, substituting a Roman Code variant. This policy impacted the poor the most, forcing them to plead guilty to charges in order to be released. The number of trials diminished and the number of guilty pleas skyrocketed. This lead to a ratcheting up of sentencing and loss of power to judges and defense attorneys. Plea bargaining became a matter of accepting an offer by a prosecutor, generally an under thirty law novice trying to make a name for himself on the backs of the poor. These then are appointed to a lower judge position, and depending upon how supportive they are of the police state, get advanced in the judicial system.
Run like any business, the goal of the system is to process as many cases as possible with the fewest obstacles. The main impediment this goal is the Constitution. The next is any awareness of individual rights. Fairness and justice only interferes with the efficient running of the assembly line in the Courts. So, the poor are jailed and not bailed. They are forced to consider obscenely long mandatory minimum sentences, calculated to extort guilty pleas.
The police are aware of the assembly line nature of the courts. Not one judge evaluation questionnaire asks about fairness or justice. The pollsters are concerned with docket or case management. However, the poor do communicate and realized how badly they are exploited and victimized. The rulers all consider them ignorant peasants. Not so. That is why the simultaneous demonstrations in Ferguson MO after a youth is assassinated by a policeman. The cops know they can get away with it. So do the citizens. However, like PT Barnum said, in paraphrase, “you can’t screw all the public all the time.” It is somewhat encouraging that the outside agitator moniker isn’t selling and that the people are exhibiting their displeasure. Some bemoan the damage by fire and the looting. They don’t seem to realize that this is a moderate response to the frustration and abuse of the poor compared the Guillotine.
But all this begs the question of “Why?” For that I need to go back into history before we in the US became apocalyptic paranoids. When I started out, there was a bond schedule. Accused were arrested, bondsmen notified and accused posted bond and was released. The whole procedure took about 3 hours. This was the procedure for the first 20 years of my practice. Since people were constitutionally deemed innocent, and there was the common law requirement that officials have probable cause to detain a suspect. The world didn’t end with this procedure. When preventive detention was instituted, this all changed. The danger to the public didn’t change. The religion of privatization replaced reason and logic. Government was bad. The government wasted money and private industry could do it better. But of course, private industry must be compensated and there must be incentives. Governments started giving guarantees to prison builders, probation providers and others in the private sector. Government saved money, Corporations made money and the public got screwed.
One of the scariest aspects of religion of privatization is that it has to exist in an atmosphere of apocalyptic thinking and competition has to be on a war footing. Darwin enters the picture and social Darwinism thrives. To make the police state more efficient, forfeiture laws, contrary to Magna Carta, were enacted and the Wiccan belief that the object of harm should be punished thrived in this environment. So, we arrive at the present situation, where police have become defacto lynch mobs and the poor he object of a scared society’s fear and loathing.
We not have the benefit of procedures which has in many cases replaced justice, common sense, fairness and Constitutional governance. Fair or just doesn’t count. We hold accused until a judge can decide if the accused MIGHT be dangerous. The absolute right to bail has been replaced with the Napoleonic concept of “peace bond.” In order to be admitted to bond an accused is then given bail conditions and is ordered to report to a private fee collector to make sure there are no violations. Typically, there is an order to have no drugs or alcohol, whether or not such was involved in the case. There are other restrictions that performa pre-printed orders required, all flying in the face of Magna Carta for the sake of safety. We have been conditioned to believe that everyone is a potential threat.
So, when a paranoid policeman is faced with a decision and is “dissed,” like my criminal clients, he has to strike out in anger. As an early Criminologist, Edwin Sutherland, commented, to correct criminals, one has to teach them that murder is a worse crime than running a stop sign. With apocalyptic thinking, this can’t happen. When this type of thinking is combined with zero-tolerance and “broken window” policy, a perfect storm brews disaster. Order takes precedent over peace, law rules. To the newly indoctrinated policemen, a violation is a violation, no matter what. There is no prioritization. There can be no oversight. Enforcement is the most important thing and those that disagree do so at their own peril. When citizens are murdered by police, the police rationalize by saying that “the citizen should not have resisted or he should have followed orders.” When confronted, officials excuse the murder by telling the public that the murderous officer was just following training. No one on the numb nut journalist core thinks to examine that training.
Training is just part of the problem. There needs to be a whole new mindset. A human life should be valued. If there is a law breaker, the violation must be put in perspective. The question asked, “Is this act so dastardly that it is worth taking a life? Is property worth more than life? How much harm will occur if a perpetrator is arrested later, rather than killed or even injured now?
So far, the flat earthers are winning. They are turning the issue into one of race, not religious or faith attitudes of the new religion of free enterprise coupled with apocalyptic thinking. I don’t know if this is a function of dumbing down America, but I suspect it is more a function of lazy journalism and corporate control. Analysis doesn’t sell papers. Most people are too impatient to understand. Most don’t care as long as they aren’t affected. I wonder how many see the storm clouds gathering over the injustices caused by the new Paradigm. I have a notion we will soon find out.
I plan to expand some of my comments and am also putting them in my book. I need feedback. I know some of my stuff is lengthy and some glossed over for the sake of brevity. If further info or commentary is in order, please ask. I was going to put this article in two parts, but decided not to. Let me know.
- Posted in: 2d Amendment