Tuesday, August 02, 2005

27. What is the history of how judges and lawyers got so much power in America?

This is obviously a big topic, with many different perspectives. But a few brief notes on the history of America, and how judges and lawyers got so much power, may be a help to you in understanding your own struggle within the American legal system.

Americans often say they "love" their "great Constitution", but they actually might not be totally clear on what part of the document that they love. What they probably love, most likely, is not so much the original Constitution that took effect in 1789, but more likely the Bill of Rights of 1791, the first ten "amendments" or changes to that Constitution, that put onto paper the basic freedoms that people think they have: Freedom of speech, freedom of the press, and so on. These first ten amendments, the Bill of Rights, indeed contain many wonderful words, that sound like they will protect people. Too bad that America's judges no longer take the Bill of Rights very seriously, and will just twist and turn these words to mean whatever they want.

It is important to understand that the original American Constitution was regarded as defective even by many of the people who were involved in writing it - the Bill of Rights was the first "bug fix", almost immediately after it was enacted, and just one sign of the problems that people had with the Constitution even before it went into effect.

Although Americans are very reverent in talking about the "Constitution", if you read the original document, it is not very inspiring. For one thing, of course, it is not very nice about the full human rights of either black slaves, or native Americans, and these issues are still being fought today. But beyond that, the American Constitution basically is a diagram of some machinery for government, theoretically "checks and balances" in bureaucratic machinery, that the writers claimed would help preserve freedom.

But this machinery had problems, right from the beginning, and has continued to show more problems with age. For one thing, there is just the problem that it is a bunch of machinery for government institutions. The people who wrote the U.S. Constitution were actually a little afraid of democracy, they worried about the "mob", the rabble, the general public, whom they thought might elect a dictator - or perhaps start taking things away from the (generally rich) kind of people who were writing the Constitution.

A problem, however, is that if you just install a bunch of bureaucratic machinery, that means that whoever controls the machinery, controls the government itself. The people who wrote the Constitution were afraid of too much democracy, so they included some elements of monarchy and aristocracy in it. They made the President a strong figure, a little like a king, independent of the Congress. And even stronger, they put judges and a Supreme Court at the top of all the machinery, like a whole group of kings or dukes and duchesses. A lot of the people who helped write the Constitution were rich lawyers, so they thought it was only natural to put lawyers, judges and the legal system at the top of the whole machine.

The danger that some people saw from the beginning, was that eventually America would become a tyranny of the lawyers and judges, denying democracy to the people. And of course, that is what has happened today.

One of the delegates to the original Constitutional convention, Robert Yates, denounced the document and wouldn't sign it. You can find his writings from 1788, in the Anti-Federalist papers (quoted in various places on the web). Yates predicted that the American Constitution and its granting of ultimate power to un-elected judges "created a dangerously unaccountable branch that would usurp power and ultimately grant itself more power" than the people's elected representatives in the legislatures. Yates turned out to be absolutely right, but it would be a while before the disaster became fully visible.

The great advantage of America in its early period, is that it was more like modern Europe. Between 1789 and 1863, America was only partly a single nation, because the individual states were almost independent countries, each with their own culture and laws. People were loyal to their own states, more than to America as a whole. The power and influence and identity of the states, prevented America from becoming too much of a centralized power. The federal government was restrained, because the individual states had a lot of power and identity.

But that didn't last. America's civil war of 1861-1865 was theoretically fought to free the slaves, but what was really driving the war, was a big economic push to make America a centralized and expanding empire, based in Washington, D.C. When the tide of war turned at Gettysburg in 1863, and the states effectively lost their ability to oppose Washington, it was really the end of the original America. A new national empire was born.

During the civil war itself, some of the basic Constitutional freedoms were suspended, while hundreds of thousands died. Afterwards, the old American freedoms began to slowly chip away, and America's courts began to assert increasing control over the people.

In the late 1800s, in the new America, the traditional rights of the American jury started to die away. Judges began to limit the use and power of citizen juries in court cases. Judges began to give juries more "instructions" which sounded like orders, so the citizens no longer felt they were free to do what they wanted. Americans started to forget their old rights as citizens.

Under the rule of the judges, Americans forgot their right to let an innocent man go free, regardless of what the judge said, or the way the law was written. The judges worked to keep people ignorant of their right to give their independent verdict if they thought a law was unjustly written, or if they thought the judge was behaving badly.

The late 1800s also saw the rise of the "robber barons", the really wealthy people, who wound up wielding enormous power in America. Some of the descendants of those original robber barons, are still among the wealthiest and most powerful people in America today. And the American central courts became more and more active, in protecting the growing national financial interests of the newly powerful corporations.

Basic American democracy remained vibrant for a long time, despite the rising power of the wealthy people and corporations, and a certain progressive movement reached a high point in the national election of 1912, where there were actually four major political parties involved, including one quite radical party that got a lot of votes. It was the high water of America being a multi-party democracy, before the two parties settled into their final comfortable control of American politics.

Around that time, however, there were also some more changes to the Constitution and the laws, which really sealed the dominance of centralized power in the new America. In the 1910s, a national income tax was established, along with central government banking, giving Washington the greatest taxing-and-borrowing machine the world has ever known. And World War I came along to jump-start America's armaments industry, what President Eisenhower would later call the "military-industrial complex", now able to be funded by the Washington money machine.

As Washington became ever more powerful, the courts became more important to manage that power. The old Constitution, where supposedly the federal government had "limited powers" and the individual states had all remaining power, was really and truly dead, although few people admitted it. The old Constitution had died in the Civil War, along with the rights of the individual states to rebel against Washington.

America's judges got used to bending and twisting the Constitution just to make things work, as a practical matter. Sometimes this was very well-intentioned, as in the great Depression - the federal government had the big money, and seemed to be in a position to help people. So most people didn't worry too much about old words on paper, and the old ideas that went with them.

As the judges assembled more power, they also began to even take power away from individual lawyers. During the 20th century, the legal profession slowly changed from an independent body in each state, and instead became a group of people who were under the thumb of the judges, and forced to play along with whatever games the judges were playing. It was all part of the slow death of the old American freedoms.

After World War II, with America now the richest and most powerful nation in the world, it was just natural to the big corporations to give increased power to the judges and the American legal system. It was a way to control things, to keep radicals and communists from getting power, like was happening in other countries. It was a sweet deal for all the powerful forces - the judges got bribes, the lawyers got rich, and the corporations maintained their profits.

As America continued to get richer, the power of the judges and lawyers expanded. As American society changed, those changes were often imposed by the judges, instead of through political activity in the legislatures. The major changes in civil rights, women's rights, and abortion rights, for example, were often led by judges and court decisions, instead of by laws voted on by legislatures. The big corporations actually favored things like civil rights, women's rights, and abortion rights, because they helped make the workplace more efficient, and got more people into the workplace on a flexible basis.

The big corporations may have actually preferred things to be changed by courts, instead of by legislatures. There could see a problem with democracy: if you give people the idea that the legislature will pass laws they want, people might start asking for all sorts of things - like better wages and free health care and child care. That was happening in Europe and Canada, where corporations made smaller profits and people got a lot more benefits.

In America, however, where the judges were in charge, the corporations ruled the country like no where else, and made bigger profits. Americans started to get used to the idea that they were mostly helpless to change society, and should just wait for the judges to change things.

In the 1960s and 1970s, there was a big chance for America to start becoming a lot more like Europe or Canada, which were developing very different societies - more social benefits, though smaller profits for big companies and investors. But, in the end, America took a different path, and by the late 1970s, you could see America turning in a different direction than other advanced nations. After America lost the Vietnam War, and the early 1970s energy crisis, America began to be managed by a climate of subtle fear, that turned it into a very different country.

America wound up being the only developed nation in the world, without a national health policy, so tens of millions of people could remain afraid of losing health care if they lost their jobs. The fear helped the worker loyalty and submissiveness, and the company profits.

But the largest part of how they made America a different place, is by use of the law and the legal system. While other countries became kinder and gentler, America became a place of crime, lawyers, lawsuits and fear - and a place where huge profits can be made.

The 1970s saw the big explosion of the American lawsuit culture - lawyers and lawsuits filled the news and people's thoughts and lives, and the entire medical care system was transformed with all the endless malpractice lawsuits by lawyers. This helped make Americans think that lawyers and courts are the only ways to handle things.

The judges and lawyers created a big booming industry in divorce, child custody and alimony cases, so that tends of millions of working Americans would have their lives all tied up in knots in the courts. People would be drained of money, and be in courts for years and years fighting over children and money. The system was designed to drag down people's lives into endless legal battles that would prevent them from doing anything else.

America's streets flooded with drugs - a few even said they were brought in by the government. Crime skyrocketed, prison populations boomed, so now America has the biggest prison gulag in the entire world. In fact, America now has over 2 million prisoners - 25 per cent of all the prisoners, anywhere in the entire world. 1 out of every 140 Americans is in jail. America has more crime, more prisons, the longest prison sentences, and more lawyers; they all go together.

The court and prison business became a giant industry - lots of work for greasy little lawyers, helping send poor people to prison. The public was afraid of being a victim of crime, and also subconsciously afraid of getting arrested for some false or trivial reason, and sent to America's awful prisons. Fear and more fear, which is very good for inhibiting democracy.

An interesting symbol of the different U.S. path from other developed countries, is the practice of the death penalty. Much of the world no longer allows the death penalty; outside of America, it is considered barbaric and cruel. It has been outlawed in all of Europe for a long time. But Americans tend to want it very much, they are very emotional about it. It is a part of the whole American culture of fear and crime and blood.

And many people forget that America actually ended the death penalty, too, for a long time. From the late 1960s to the late 1970s, there was about ten years that America didn't execute anybody; America was on the same track as Europe. At first, the judges almost outlawed the death penalty altogether. But then, the political decision was made - by the judges themselves - to bring it all back, and America is now one of the leading cultures of executions and death in the world. Being put to death is after all, the ultimate terror of law and lawyers and judges. What better way for a judge to feel like a god?

The restoration of the death penalty, is an interesting symbol of the pathway of the American legal system. Americans largely support and want to read about these prisoners being killed by the government, even though many people on American death rows, were later proven to be innocent. But the American people, made so fearful in their daily lives, and so full of anger, feel a great need to take the blood of some of their prisoners, whereas other nations have let this pass into history.

The monster of American judicial and legal corruption, however, gives a special perspective to America's many executions, its thousands of prisoners waiting for death. Once you realize the deviousness and corruption of America's judges and lawyers, it is frightening to give such gangsters the power of imposing death. The abuse of this power is proven by all the innocent people, who have been sentenced to die in America, and later shown to be innocent.

As the new 21st century began, America is a very strange nation, when compared to other countries. Its judges are indeed supreme, its legal and prison system and gangs of lawyers, the biggest of all. The legal system completely dominates the political life of the United States, even though nearly all who know this system well, find it a very disgusting and dishonest legal system indeed.

America's legal system is what replaces its stagnant politics, where not much happens in Congress aside from what is wanted by the big corporations. The American people are constantly distracted and manipulated through the media, by means of various emotional-heat issues, so that they rarely see the real big picture of their society. In their private lives, Americans have debts and work long hours and try to get by, and they don't know what to do if the big legal monster comes for themselves, let alone for their neighbor.

Americans have largely given up on trying to change things, as they feel so helpless, with the two big political parties. They no longer even think very often about political action. They wait, usually in vain, for someone to take a lawsuit into a court ("Take it all the way to the Supreme Court!" is a favorite American phrase), hoping that some judge might change things for the better. (And America's Supreme Court ignores and rejects nearly all requests that come to them.)

What people worried about in the 1780s, has come true. The judges and lawyers in America are the tools of tyranny, democracy now a fading ideal in the USA, trampled upon by the judges in black robes.

Only the naive and the ignorant, those who haven't yet been victims, still believe in the old fairy tales about the American legal system. Only the naive and the ignorant, still believe that American judges are like in those Hollywood movies, smiling like wise old uncles.

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