First, a word about how law and our legal system is supposed to work. We begin with two Latin words: stare decisis.
The idea is that people need to know the rules. For example, before every baseball game begins, the umpires meet with the two team managers and review the “ground rules.” If in Chicago’s Wrigley Field, what will we do if a ball is hit into the outfield and ends up hidden behind the ivy? If in Tampa Bay at Tropicana Field, what if a very high pop fly hits the “A” Ring or the “B” Ring (or the “C” or the “D”) of the meshuggeneh concentric catwalks that are part of the unique structure that supports the indoor dome? These rules need to be reviewed beforehand so that everyone can be assured of a fair result if an outlier outfield incident unfolds. The umpires do not “just make up the rules” out of left field when it happens.
Baseball reflects real life as lived by normal people by having rules in place and then honoring those rules. In the event of a disagreement, there is a publication called “Official Baseball Rules,” and that document governs.
In our public legal system, we have rules that derive primarily from two sources: (i) judge-made common law and (ii) legislature-enacted statutory law. Because we started from England, we initially adopted the British way of law. They did not have a constitution, just a tradition of divine-right monarchs who had people’s heads chopped off at the start of movies. In the absence of a constitution or a legislative branch adopting laws, Brits with grievances would show up in court, and judges would have to “wing it,” making up law on a case-by-case basis. This law is known as “common law.” Eventually, people realized how confusing and unreliable the system could become if every subsequent dispute’s resolution simply would come down to which judge happened to be presiding over a given case. It would mean uncertainty as to how one must behave beforehand, what is permitted, and what is wrongful and tortious. Likewise, it would open gates of unfairness and grievance: why does this guy get tarred and feathered for doing the exact same thing for which another guy got lashes and for which yet another guy only got fined a few shillings or pence?
As a result, there arose a principle called stare decisis (“[let it] stand [by what has been] decided”). That is, to assure a sense that everyone is being judged according to the same rules of play, that no one is getting to play under a more favorable set of rules than are others, that punishments or acquittals are determined by rules and not by personal connections or judicial whims, each prior ruling by a consequential court becomes “precedent,” and all future courts within that jurisdiction must subjugate any personal judicial preferences and instead stick with the rules on the books and the case decisions of prior courts. Not only does stare decisis assure a general feeling that the legal system is fair and just, but it also sets a foundation upon which future conduct may be guided. Thus, you could ask a legal counselor who is studied in the law whether or not you may conduct a certain business in a certain way, what you may do to minimize your tax burden, and so on.
As our country’s founding unfolded, the United States modified the British system a bit. First, we threw out their lousy tea into Boston Harbor and opened up Starbucks. Then we threw out all their lousy taxes but later opened up New York and California. Then we threw out their lousy king. And next we adopted a constitution. The Constitution became the “Official Baseball Rules” of America. Certain governmental authorities were delegated to the states, so states are mostly empowered to decide how contract law, criminal law, and property law will be conducted within their boundaries. Thus, a contract in Michigan may be subject to different laws and interpretation from a contract in Alabama. Likewise, a murder in Texas or Florida might be subject to the death penalty while the same type of murder in Massachusetts, New York, or California might be a résumé requirement for becoming a tenured professor in Identity Studies or Grievance Sciences. The same Constitution meanwhile reserved certain powers exclusively for the federal government, like coining currency, overseeing maritime rules, and conducting immigration law. So all our money has people like Washington, Lincoln, and Hamilton on the paper or coins rather than, say, Gavin Newsom or Andrew Cuomo. Finally, some areas of law are shared by the feds and states, like bankruptcy law. Commerce within a state is governed by that state’s laws; commerce that runs across states ends up under federal regulation.
Inasmuch as the Constitution goes back to 1789, new developments inexorably require new lawmaking. In those days, notwithstanding Franklin and the kite, there was no electricity. No aviation. No radio, television, internet. So it was left to state legislatures and to the federal legislative bodies, the House of Representatives and the U.S. Senate, to enact laws to fill in missing pieces and to address new needs as they emerged. The trick with lawmaking is that a new law typically should not be too specific because if it is tailored too tightly to one specific situation, then it cannot be applied to a hundred similar situations for which it could be appropriate. Therefore, laws are drafted a bit more broadly. Alas, sometimes the law is a bit too broadly worded, or a new case that never was contemplated emerges, and a question arises (i) whether or not a given law applies to a given situation, and (ii) if it does apply, then how? And that is where courts are supposed to come in. Because we have a federal Constitution and respective state constitutions and respective federal and state legislative bodies assigned to make the laws, we do not need courts here to fabricate more “common law.” Rather, in our system, the only purpose of the courts now is supposed to be (i) to interpret the laws that are on the books: the federal and state constitutions, the federal statutes, the state codes, local regulations and ordinances; and (ii) to find and adjudicate facts when litigants come before the courts with contradicting narratives.
Along the way, as things have gotten ever more vast and unimaginably unmanageable with our population growing into the hundreds of millions, state executives (governors) and the federal executive (the president) have needed to delegate oversight to certain executive branch sub-units, which we now call “agencies,” and they are supposed to oversee specific areas within their fields of expertise. Thus an environmental protection agency, an aviation agency, and so forth. To the degree that those experts find that other laws fail to address certain unique nuances and that certain fine-tuning is needed in the laws, those agencies are empowered to recommend additional rules. They publish their proposals in a thing called the Federal Register, and the public is given a short time period during which anyone may comment with their thoughts, criticisms, and recommendations regarding the proposed rule. Then the agency may enact the rule, and the rules eventually end up in the Code of Federal Regulations (CFR).
With the British gone, our Founding Fathers had to forge a series of compromises to induce all states to sign on to the new federal system and its Constitution. Small states feared that the bigger states would dominate policymaking, while larger states felt it would be unfair to give small states equal weight in governance. A compromise was reached to create two legislative houses: (i) the Senate, which would assure each state equal influence by allotting each two senators apiece, and (ii) the House of Representatives, which would allocate seats based on population size, so bigger states would have more seats and smaller states fewer. For a law to be enacted, it would have to pass each chamber. If both chambers pass similar but not identical bills, then each chamber designates representatives to confer and to emerge with a mutually agreed-upon identical bill. The ironed-out bill then becomes law if both houses of Congress then pass it. For better or worse, a comparatively recent innovation resulted in a corruption of the Senate filibuster rule, resulting in a new requirement in recent years that laws cannot pass the Senate unless they receive 60 votes, not the simple majority of 51. Inasmuch as the Senate rarely is so lopsided that either Democrats or Republicans win 60 of the seats, the only way that a new law can get through the Senate is when the senators engage in good-faith negotiations and compromise. That system helps moderate extremes, but it also completely monkey-wrenches the entire system when either party decides that it exists to be “the Resistance.”
In recent decades, our system has been brutally corrupted, in that the legislatures have abandoned their jobs. They fear voting for laws that might be what our society desperately needs but that might lose them votes. Dentists save our teeth when they drill cavities, but they do not make most of their friends that way. Teachers develop our minds when they assign us homework, but we do not appreciate them for it at the time. Similarly, legislators are so desperate not to alienate voters that they have abandoned their primary constitutional purpose: to make laws. Instead, like kids at recess, they play around, do whatever they feel like, and even get “timeouts” to cool off. With no foreman to check their hours or evaluate their work, they get junket trips abroad at taxpayer expense for fact-finding, conduct investigations of people they don’t like, appear on TV talk shows, and spend all day on Twitter tweeting their disapproval of President Trump’s use of social media. Compounding the corruption, it is impossible to pass laws with a 60-vote supermajority when one of the two parties declares “the Resistance,” blocking everything. So nothing can get passed except for naming post offices.
Laws need to be made sometimes. Someone has to make them, but Congress has abandoned its primary constitutional duty — to legislate. In corrupting and perverting the system, by playing “the Resistance” and choosing to investigate instead of legislate, House members have punted lawmaking (i) to the courts even though judges are flat-out not authorized to make laws, and (ii) to the executive-branch administrative agencies of federal and state government. This especially corrupts the entire American constitutional system because, unlike what transpired in medieval and King George’s England, from which we broke away, our laws are supposed to be crafted by people whom we elect and who therefore are answerable to us. Instead, the laws now are made by unelected judges and unelected agency bureaucrats. All while the House spends the day playing “Clue.” (Psst, Schiff: It was Col. Mustard with the candlestick in the Conservatory.)
To review: The legislature (e.g., the House and Senate) exists to make laws. The executive (e.g., president or governors) exists to carry out the laws enacted by the legislature. The administrative agencies exist to help the executive carry out and administer the laws that he promised the people who elected him. The courts exist to help settle disagreements over how a law is to be interpreted or applied, and to help determine actual facts when litigants are unable to agree on exactly what happened in their dispute.
As soon as people begin to perceive that judges are not following pre-established and properly enacted rules of the game but instead simply are “making up rules they personally prefer,” the entire system of justice collapses amid a general sense that the system is rigged and unfair. That is how the Soviet Union operated. It’s how China and Iran operate. It’s how most of communism and the Muslim Arab countries operate. Unfortunately, we now live in a time when our fair system of law and rules never has been more in peril. For example, we saw that Hillary Clinton, who absolutely should be in prison, never even was prosecuted. At least O. J. was tried and acquitted by a jury. Hillary spoliated evidence discoverable in a legal investigation. She disclosed and mismanaged secret and confidential federal government records in the identical way that repeatedly has landed others into prison, even though they disclosed far less and manifested far more noble character. Indeed, the entire investigation of her crimes was conducted in a crooked manner. Critical witnesses were accorded immunity from prosecution up front, so they had no motivations to cut deals and disclose truths to save their skins. Others were allowed into a room together to hear questions being asked of each other, thus educating liars not to contradict others’ answers. Her questioning was not conducted under oath, so her lies could not be prosecuted as perjurious. It was rigged and unfair.
Even as we’ve awaited the results of the investigations conducted by Inspector General Michael Horowitz and United States Attorney John Durham, so very many of us have become so disgusted and disillusioned with the bottom-feeders in the D.C. Swamp that we hold little hope or expectation that those investigations will result in much.
Against this entire backdrop of corruption and lost faith in our system of justice, we next will address perhaps the single most toxic aspect of the past three years: the abuse and corruption of American law through the widespread nonstop three-year manipulation and leveraging of the Obama Judges. Stay tuned for Part Two.