Monday, April 30, 2018


THE EVOLUTION OF LAW

Even further back than the Code of Hammurabi, in law you see rules based on evolution and social construct.  Biblical law speaks of how you treat your slaves.  It speaks about stoning your own children.  Today such laws are looked at as abusive.

While working on my masters thesis I read an essay by a law professor short on understanding the evolution of law and its utility who called the "Magna Carta" a myth and in fact not a Charter on Liberty.  His limited intellect forced him to view it in the context of the time he wrote his essay and not when it was written.

We know from history and anthropology groups formed and leaders evolved to protect the greater good.  We know of a concept known as Ordered Liberty.  We accept we relinquish certain liberties for protection.

It is false to say only the Barons benefited from the Magna Carta.  The Barons organized their territories for the protection of all.   For this protection the people had to become serfs, or go out on their own and survive.  By protecting the Barons you protected the people from an oppressive King.

In time such as Hegel and Marx noted in the dialectic, the status quo is challenged because it no longer works, the challenge compromises with the old into a new.  So in time as artisans rose the feudal system was doomed to fail, and it did.

Laws evolves with the changes.

But in understanding law, you cannot simply look to today.  You must look at its evolution.  Contrary to people like the late Associate Justice Antonin Scalia claiming our Founding Fathers' understanding of Speech and Liberty was frozen in time, it was not.  These men were educated during the age of Enlightenment and knew all concepts related to Liberty and Justice evolve.

Because none of this is taught even at the university, lawyers and judges know nothing of it. A frightening truth.  Any high school graduate with a B average who takes the Bar Review courses and truly studies will pass the Bar exam.  You do not even need to be a university graduate.  Law school is a complete and total waste of time. Some of the greatest lawyers of our Republic learned as apprentices and went on to be brilliant  jurists.

WHY?

They had to learn the writings from the Age of Enlightenment and learn it in the context of Blackstone's Common Law.  They had to learn the Magna Carta.  They had to learn the great opinions  from the King's Bench which moved us forward to the period of the Revolution.  They were exposed to the "Digest of Justinian" a summary of Roman law.

In all of this they saw how law evolved and the historical meaning of words like Liberty and Speech over time changed with changes in the social construct.

My Blackstone, Digest of Justinian and both Magna Carta's have cross notes to each as to key terms.  They give me in depth meaning to their greater meaning.  I can assure you judges have no interest in any of this.  If any of my law professors cared they never showed it.  More than once I was told to stop referencing these old texts to give context to the constitution.  I have actually read the Constitutional Minutes as written down and actually have correlated them to the evolution of law.

I do not view the law in the context of a simple statute.  I view the law in the context of the statute in regards to constitutional restraints, and what brought about the constitutionl restraints.  Neal Gorsuch's concurring opinion trashing the bureaucratic state is magnificent because it put the intent of restrain of power ahead of the unconstitutional 4th branch of government.  It may take a few years but in time even the most liberal among us will be writing articles on the brilliance of his concurring opinion.  In time the fake conservatives will be attacking it for taking unauthorized rule making not based in law away from these paper pushers.

I know my readers hate these educational posts.  But some of the lawyers and judges will read it and think about it, and it will change how they see the law.

Law evolves and through an ever evolving "Ordered Liberty,"  we must adjust.  At times there appears two valid paths.  Maybe they are both good, or maybe one is bad?   It is essential law makers understand this if they are to move laws forward to keep the peace within reason.

Abortion has no solution other than our thoughts evolving along with medicine.  Today if you are raped or simply have a condom break emergency contraception ends it within hours.  So I do not understand why people who are three months pregnant get to claim rape as a basis for an abortion.  You can even send a friend to buy it over the counter.

In Denmark I was shocked to learn most parents are encouraged to abort Down syndrome babies so there are almost no Down syndrome children in Denmark or for that matter any part of Scandinavia.  This is a social issue like drugs.  It is a war which will be won on the minds of the people using reason.  Of course there will always be valid reasons for an abortion, especially if the life of the mother is in question.   Abortion has so many complex social issues intertwined within it. There is no solution other than one day at a time.  We must respect one another while trying to reason it out.  The path must be chosen carefully.


THE LATE JUSTICE ROBERT JACKSON WILL FORM THE CORNERSTONE OF MY ARGUMENT TO REEXAMINE JUDICIAL IMMUNITY

""But if I have agreed to any prior decision which forecloses what now seems to be a sensible construction of this Act, I must frankly admit that I was unaware of it. However, no rights have vested no prejudicial action has been taken in reliance upon such a ruling. It does not appear to have been called to the attention of Congress and in effect approved by failure to act. Under these circumstances, except for any personal humiliation involved in admitting that I do not always understand the opinions of this Court, I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday."


All of the above forms the analysis on how I intend to get the Supreme Court to reconsider judicial immunity.  I know which three Justices are already with me, and they are all Republicans.  I need one more to get the case heard.

Juridical methodology became a serious form of study after my published masters thesis.  I remember my chair questioning if such a thing existed.  He went on to graduate at the top of his class at UT.  He was a well published Marxist theorist, and he was uncertain if such a thing exists.

I know all the way back to the Digest of Justinian how the issue of judicial immunity was handled.  Even the original opinion by the Supreme Court found immunity did not exist under our constitution, but because of congressional pressure they changed their mind and turned the 11th Amendment on its head wherein it is used way outside of its plain language and the minutes which record the debate as to its purpose.

Mike Hernandez is going to have to hire a historian lawyer at $1,500 an hour to address my arguments.  The judge will know they are well researched.  Typically in such a case a trial judge will go with the basic immunity and then issue a dissent against their own opinion so as to encourage more in depth analysis at a higher level.  This is proper conduct and what I will expect from the trial judge.  It is just a step at a time to prepare the debate for the Supreme Court. 

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