Most people familiar
with the structure of the United States federal government agree
that a major building block in its foundation is the "separation
of powers" doctrine. Designing each branch (the judicial, executive
and judicial) to be autonomous, the wise drafters of the Constitution
included essential checks and balances to keep each other honest
and responsible to the citizens. In theory, the three branches will
not all go crazy at the same time.and gang up on the people.
One of the means that
the founding fathers provided to ensure that the judicial branch
would remain free of undue influence from the other two is found
in Article III, Section 2 of the Constitution: "The Judges,
both of the supreme and inferior Courts, shall hold their Offices
during good Behavior . . ."
Unlike the prescriptions
that the Constitution provides for the frequency of electing members
to the other branches, the statement above is the only one concerning
judges' terms of office. In other words, so long as federal judges
"behave" themselves, they may hold their positions for
Yet, what constitutes
"good behavior" remains to be seen, while bad behavior
has been defined so narrowly that no judge in his right mind, crooked
or not, would fall into it. This definition contained in the doctrine
of judicial immunity, which has grown up to further "protect
the court's independence." Coupled with life tenure, judicial
immunity virtually gives them a license to steal. As defined by
the U.S. supreme1 Court itself, in Stump v. Sparkman, 435 US 349,
judicial immunity is: ...the immunity of a judge from civil liability
for any acts performed in the judge's official capacity. The immunity
is absolute provided only that the judge is acting within his or
her jurisdiction. The scope of the judge's jurisdiction must be
construed broadly to protect the court's independence; therefore,
the judge will not be deprived of immunity because the action taken
was in error, was done maliciously, or was in excess of the judge's
authority; rather, the judge will be subject to liability only when
the action taken was in clear absence of all jurisdiction. What
do YOU think?
corrupts absolutely" is a truism with far-reaching applications
including certainly the absolute immunity which the U.S. courts
system has granted itself.
Currently, actions alleging
judicial misconduct must be brought before an erring judge's fellows,
who are, of course, well schooled in the judicial-immunity doctrine
(and its value to their own careers). Little relief can be expected
from that approach.
"Do not enter; rights being given."
sign outside municipal courtroom in Los Angeles.
As a result, citizens
with grievances are starting to band together. One group in California
has drafted a Judicial Reform Act that would create a board of investigation
to hear complaints of judicial misconduct. It would draw its members
from outside the judiciary. Doubtless similar groups exist elsewhere.
Another recent attempt
at a cure for the national epidemic of judicial abuses has been
the common-law court movement. These courts claim their authority
from the unwritten tradition of American and English courts, which
stretches back more than 1,000 years and underlies the Constitution
and all the laws that flow from it. Reportedly, a U.S. court in
the 10th district has upheld at least one decision of such a common-law
court, but the mass media have sensationalized findings of some
of the others to discredit them and the movement in general. Naturally,
there may have been some actual errors and excesses as frustrated
citizens learn to administer justice after generations of "letting
George do it."
Nevertheless, the underlying
principle is sound: The people remain the ultimate repository of
civil authority. When they witness the "long train of abuses"
streaming from the judiciary some of them will take action. The
rise of these courts proves that the love of justice and freedom
still burns in some corners of America.
Yet, for every activist,
there are thousands of "sheeple" who are not yet even
awake or aware of the problem.
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