Chapter 13:   The  Judges

 

He who appoints judges, has what law he pleases.  John Taylor in  An Inquiry Into the Principles and  Policy of the Government of the United States.

 

        If all citizens are to be equal before the law this equality must be found in our courts or it will not be likely to be found anywhere else. This is why those among the early Americans who believed in classical liberalism attached so much importance to the right to a trial by jury. The importance of this right is just as great today as it was in their time but its effectiveness has, all too often, been reduced by the role played in the courts by judges. John Taylor, of Caroline County, Virginia, wrote extensively in the very early 19th century of the role played by judges in his day and especially of the tenure of judges and the manner of their selection. He pointed out that the appointment of judges for life was a practice copied from the British system, but without a safeguard against abuse of judicial power that was included in the British system. In England, judges were appointed by the king, in his capacity as chief executive, but were subject to removal by the parliament for any reason they deemed to warrant removal. In the U.S. the Constitution  permits impeachment by Congress only for malfeasance in office. As Taylor pointed out the British system provided a resource against both crimes and errors on the part of judges while the U.S. variation of it protects the nation only against crimes of judges. The efficacy of even this protection is greatly diminished by the fact that judges virtually have the power to define criminal conduct.
        Taylor points out that the Constititution provided for the periodic election of the president and the members of the congress for the express purpose of subjecting these people to the will of the voters. The same reasoning, in his opinion, should apply to judges and this was possibly the only point in his book that I disagree with. It probably would be unwise to have judges elected by the voters at large but it certainly would be rational to make judges' appointments for a specific term of years and this is perhaps especially true in the case of Supreme Court judges who have claimed for themselves the sole right to determine the constitutionality, not only of every law, but of every act of every individual in the nation. The reason advanced for the lifetime appointment of judges is the claim that it will enable them to be independent of political pressure. Giving judges an appointment to a judgeship for a period of one term of six or eight years would also make them independent of political pressure if they were not allowed to serve more than one term. They would still be independent of the will of the voters but they would automatically leave office at the end of their term and thus the damage that would result from the appointment of an unfit judge would be far more limited.
        John Taylor in 1814 noted with disgust that it was common practice for wealthy citizens to line their own pockets at the expense of the populace by means of state chartered banks and monopolies in addition to outright fraud and that, once the proceeds of these transactions were in the hands of the wealthy, the courts considered them to be private property to be protected at all costs. Thus, from the very beginning, the principle that every citizen should be equal before the law was being subverted by the wealthy, influential, and unscrupulous individuals who were known as Hamiltonians in honor of their patron saint, Alexander Hamilton.
        About a century later Gustavus Myers wrote History of the Supreme Court. Myers searched the records of the Supreme Court of the United States in approximately the first 120 years of its existence and then in nearly 800 pages recounted some of the cases in which the court appeared to have a much greater interest in protecting the interests of the Hamiltonians than it had in dispensing justice.
        John Taylor was the quintessential Jeffersonian liberal while Gustavus Myers, judging from his writing, was probably a socialist. These two men probably represent in microcosm the spirit of the times in which they lived. The principles of Jeffersonian liberalism appear to have been widely accepted by the majority of Americans in Taylor's time although they were disregarded by most of those who dominated the political scene, even during the Jefferson and Madison administrations. By the early 20th century these principles seemed to have been largely forgotten or discarded by a large part of the American population. Thus it was that Myers, who saw so clearly the effects of the failure of the nation to adopt the principles of classical liberalism, looked to some sort of socialism as a way to counter these effects. In this respect I think Myers was typical of most Americans of his time. This is not to say that most Americans in the early 20th century considered themselves to be socialists but rather that they believed various types of government control of individual behavior to be in the best interests of the nation. All of the behavior of individuals that these people felt should be controlled by the government was made possible by government control over individual behavior. This is similar to an individual getting drunk on gin and then attempting to sober up by drinking more gin. The fact that this attempt may seem perfectly rational to the individual who is drunk will, in no way, alter the results. Metaphorically speaking this nation was drunk on gin at the beginning of this century and we have ever since been trying to sober up by consuming more gin. The results of this policy are as evident in the actions of our courts as they are in other areas of our society.
        Throughout the 19th century many of the nation's courts aided wealthy and influential interests in several ways, by upholding fraudulent land claims, by unjustly denying workers the right to organize or strike, and by denying liability claims against corporations where the liability of the corporation was not even in doubt. It is quite probable that lifetime appoint-ments of judges were responsible, in part, for many of these decisions. For the first 64 years of the 19th century only two men occupied the position of Chief Justice of the Supreme Court. The first of these men, John Marshall, did not hesitate to use his position to benefit himself, in addition to benefitting many other Hamiltonians. The absolute lack of any sense of justice that characterized many of his decisions was known to many, probably a majority of Americans at the time, but historians of both the 19th and the 20th centuries have portrayed him as a master of jurisprudence. This precedent of viewing judicial excellence as something independent of a sincere belief in the principles of justice and equity has been followed by most historians ever since. The second of these two men, Roger Taney, appears not to have used his position to further his own interests. He occupied the position of Chief Justice until his death in 1864 at the age of 87. He probably had accumulated a modest amount of wealth since his appointment to the court by Andrew Jackson but, according to his biographer it was invested mostly in Virginia securities which were lost to him with the beginning of the Civil War and, again according to his biographer, he died a relatively poor man. If Taney did not use his position to line his own pockets he certainly enriched a lot of Hamiltonians during his years on the bench. He was also a strong supporter of the institution of slavery and he consistently used the power of his position to protect the "rights" of slave owners. In the following excerpt from History of the Supreme Court, Gustavus Myers reveals Taney's view of black slavery in the Chief Justice's own words.
 
 

In his opinion, Chief Justice Taney wrote of conditions among "enlightened nations" at the time of the Declaration of Independence when, said he scornfully, the negro race was regarded "as so far inferior that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."

        This was an official pronouncement of the Chief Justice of the United States Supreme Court! For eighty years the Supreme Court had indulged in distortion of the U.S. Constitution and now a Chief Justice of the court was interpreting the absolutely unequivocal words of the Declaration of Independence as meaning the opposite of the meaning that any literate person would derive from them. This illustrates perfectly how completely the U.S. government had discarded the principles of classical liberalism at this time.
        It is by no means certain that justice would have played a more prominent part in the decisions of the Supreme Court had these men and their colleagues been limited to a single six or eight year term but there might at least have been a possibility of it.
        Many people will argue that the nation's courts have drastically changed at the present time and are now putting the welfare of the nation as a whole ahead of the desires of the wealthy and influential part of the population. The truth of the matter is that the courts by promoting a host of collectivist policies are promoting the agenda of the very wealthiest and most powerful Americans. In the 19th century the courts were engaged in promoting the interests of practically all of the wealthy class. Today they are promoting the interests of the most powerful of the wealthy class and the objectives of these people often run counter to the objectives of the majority of the wealthy. Thus, the planners are promoting collectivist policies which at first glance might seem to be beneficial to the majority of the population but, in actual fact, add to the power of the government over the individual, which is equivalent to adding to the power of the planners since they control the government and many of the various non-governmental entities that also exert control over individual Americans. In short, the planners and their assistants, the manipulators, believe that the ordinary citizen is so far inferior to themselves that the latter may be justly and lawfully reduced to slavery by them for his own benefit!
        Around the turn of the century the decisions of the Supreme Court began to reflect the increasing public acceptance of collectivist beliefs. The judges of lesser courts promptly began to follow the lead of the high tribunal and today they are probably leading rather than following in this respect. The English liberal, Jeremy Bentham, led a movement to eliminate the excessively harsh punishment of criminals that characterized the British judicial system in the 19th century. This position was perfectly consistent with the principles of classical liberalism. Liberals of his day justifiably felt that the punishment should fit the crime and that unreasonably harsh punishment was not only unjust but of little practical value. Since that time a spirit of positive liberalism has come to permeate many of our courts and positive liberalism, as expressed in matters relating to crime and punishment, usually takes the form of a belief that the criminal who commits a crime is not responsible for his actions because something in his past caused him to do what he did. The real cause of his crime is usually held to be growing up in poverty, being abused as a child or having suffered some injustice at the hands of someone. Ironically the school system that made no effort to instill in him the ethical values that could have made him a useful member of society instead of a criminal has never, to my knowledge, been cited as the factor that led him to commit the crime of which he is accused.
        In considering the actions of our courts today it is reasonable to consider separately their functions in criminal cases and in civil cases. In the matter of civil law there are two areas which, in my opinion should be matters of concern to all Ameri-cans. The first of these is the way in which our courts handle the matter of legal liability. Until fairly recently, when the court assigned degrees of liability to two or more parties each party was responsible only for the payment of that percentage of a judgement that represented his own share of the liability. If for example, four separate defendants were sued in a liability case and the court decided that each was liable to the extent of 25% of the total liability, each would be required to pay 25% of whatever judgement was awarded by the court. No one can deny that this represents a just decision. Provided that the apportionment of liability was reasonably correct Solomon himself could not have made a wiser or more just decision. In recent years, however, this practice has been abandoned and now any defendant who is found to have any liability, no matter how slight, can be forced to pay the total judgement if the other defendants are unable to pay their share.
        I will give you an actual example of how this type of "justice" is applied. This story was told to me by an acquaintance of mine who once worked as an insurance adjustor and he was the adjustor who represented the insurance company in this case. The case was that of a teen-age boy who dived into about two feet of water in the shallow end of a residential swimming pool and broke his neck. As a result of the accident he was partially paralyzed and confined to a wheel chair. The swimming pool belonged to a neighbor of the boy who sold the house shortly after the accident. The neighbor had no money. The boy's lawyer sued the owner of the house and the company that had built the pool. It just so happened that the boy who was paralyzed had worked on the construction of this pool when it was built. Thus he could not claim that he was unaware of the depth of the part of the pool he had dived into. The insurance company that my friend worked for had written liability coverage for the pool company. In apportioning the liability the court found the pool company bore 3% of the liability for the boy's accident and awarded the boy a substantial judgment. The owner of the house had no money so the pool company was forced to pay the entire judgement. The insurance company paid the face amount of the liability policy but the owner of the company that built the pool had to sell his company and turn over the proceeds of the sale to the plaintiff as partial payment of the balance of the judgement. There is no justice in this decision. It is, however, all too typical of the disposition of liability cases by the courts today.
        According to my friend this practice arose as a new concept in liability cases involving accidents covered by workmens' compensation insurance. The amount of damages that can be recovered from an employer who is required to carry workmen's compensation insurance is limited to the amount of the insurance the employer is required to carry. Enterprising lawyers began to sue companies that provided materials or equipment used by the employee, attempting to establish some liability on the part of these companies. If a large judgement was awarded the employer could be required to pay only the legally specified amount and somehow a precedent was thus established whereby an additional defendant, or defendants, could be forced to pay the balance of the award. This precedent has now been applied to all liability cases with the most unjust and inequitable results.
        In the case of the paralyzed teen-ager cited above it is obvious that the accident was caused solely by the boy's own recklessness. This brings us to the second development in civil law that should be of concern to all Americans. This is the tendency of juries to make decisions based on sympathy for the victim of an accident rather than on who was actually responsible for it. This is most often seen in cases where the defendant is a large or fairly large corporation or an insurance company but, as in the case of the paralyzed teen-ager it is by no means limited to those cases. In the 19th century, courts commonly refused to hold railroads and other corporations liable for accidents that were obviously due to their negligence and today we have swung to the other extreme. The situation in the 19th century resulted from the undue influence that moneyed interests were able to exert on the courts. The situation today results from decades of indoctrination of Americans with the principles of positive liberalism, especially the idea of class warfare. Many Americans who serve on juries in such cases will simply reason that the victim sufferred a loss, the corporation has a lot of money, so they will decide that the corporation should pay. All too often a jury will simply ignore the fact that the victim was a victim of his own actions.
        The jurors who reason this way probably feel that they are simply showing compassion for a severely injured victim and that it would be cruel to refuse to award him compensation simply because the victim was the sole cause of his problems, especially since the victim's lawyer has furnished a reason, however convoluted or far-fetched it might be, to find the corporation liable. Some jurors might even realize that if the judgement will be paid by an insurance company the cost of it will eventually be paid by all policyholders, which may well include the jurors themselves but they probably reason that the cost to any individual policy-holder will be very slight.
        Many liability cases arise out of automobile accidents and the overwhelming majority of judgements in these cases are paid by insurance companies. Unjustified damage awards made by juries in such cases simply because they feel the insurance company has a lot of money are common enough and they substantially increase the insurance premiums of all of us but the effect of such decisions extends even beyond their immediate effect on the price of insurance. First they encourage lawyers to accept cases where the best they can hope to do is to establish a small degree of liability on the part of the insured. Cases such as this would not be worth pursuing if the defendant was required to pay only the part of the judgement that is consistent with the percentage of liability allotted to the defendant. Secondly the fact that judgements against insurance companies are relatively easy to obtain encourages attempts to defraud these companies through fraudulent claims of injuries. And finally the vulnerability of insurance companies to the whims of compassionate juries leads them to pay off in the case of unfounded nuisance claims because they feel they have little chance of winning in court, which inevitably encourages more fraud against insurance companies. The failure of our courts to respect the principles of justice and equity thus encourage and enable lawyers and unscrupulous individuals to extort money from a large part of the population. In this respect our judicial system is operating in much the same way that it did throughout the 19th century except that it is now being manipulated by a different part of the population.
        This situation can be illustrated perfectly by the story of an accident in which a friend of mine was involved. She was driving north on a through street. As she passed an intersection a westbound car pulled out from the intersection and struck the side of her pickup. The street the other driver pulled out from had a stop sign. Since her pickup was struck in the side it is obvious that my friend did not cause the accident and could not possibly have avoided it. Her insurance company paid for the repair of her pickup of course and one would expect that the company would have attempted to recover its loss from the driver who caused the accident. Instead, the insurance company received a letter from the other driver's lawyer threatening a lawsuit if the company did not offer a settlement. The company settled for $2,500 rather than risk going to court. In this case justice and equity would both dictate that the insurance company should have been able to collect the cost of the claim paid to my friend from the driver who caused the accident. In actuality the company collected nothing and paid out $2,500 to which the other driver was in no wise entitled and this was due simply to the fact that past experience had proved to the company that it could not expect a rational decision from a jury. I am not inviting anyone to feel sorry for the poor insurance company, it suffered no loss in this case. The insurance company simply collects enough money in the form of premiums to pay all claims and make a profit. The losers in this case were all of the people who buy auto insur-ance. The cost in this instance was small but there are thousands of similar cases every year and many of them involve a lot more money. Collectively they add very substantially to the high cost of insuring an automobile.
        One formerly thriving industry in this country was completely eliminated by the "compassion" shown by juries in liability cases. For several years no single engine light aircraft intended for the general aviation market were produced in this country because the cost of insurance covering the manufacturer's liability became so high that it simply became impractical to manufacture them. The bulk of the lawsuits that led to this situation did not establish any reasonable liability on the part of the manufacturer. If an accident results, for example, from a mechanical failure it might be reasonable for a jury to find the manufacturer at least partially responsible for the accident. The overwhelming majority of general aviation accidents result from pilot error, yet in many of these cases juries awarded large judgements to the pilot or his estate to be paid by the manufacturer of the airplane.
        To cite one example there was the case of a pilot in Kansas who had just learned to fly and had acquired very little flying experience. He bought an airplane of a different model from the one in which he had learned to fly and promptly set off on a cross-country trip. On his return trip he crashed and was killed in the crash. The accident investigation revealed that one of the airplane's two fuel tanks was empty and the fuel selector was set to feed from the empty tank. Weather was not a factor. The airplane itself was over ten years old and had never been involved in an accident. This airplane and hundreds of others of the same model had been flown safely for tens of thousands of hours over a period of many years. Nevertheless the victim's lawyer managed to convince the jury that the design of the fuel system was not as simple as it could have been and on the strength of this they ruled that the manufacturer had to pay a large judgement to the pilot's estate. In other cases pilots intentionally flew into thunderstorms and juries awarded damages because the airplanes were torn apart by the force of the thunderstorm. There were many other similar cases that finally made it obvious that the manufacturer of an airplane could expect to be held responsible for the folly of pilots as long as the airplanes they built remained flyable and the companies remained in business. Some manufacturers, such as Cessna continued building other airplanes but stopped building single engine models. Others simply went out of business and in both cases, of course, many people lost their jobs.
        These are two of the ways in which the tendency of juries to ignore the responsibility of accident victims and award them large damage claims have had far-reaching effects on many other people with no connection to these cases. This situation has led to movements proposing laws to restrict the ability of the courts to accept jurisdiction in certain types of disputes. Unfortunately this would be a case of throwing the baby out with the bathwater. If our courts are to be of any use in protecting individuals against the irresponsible behavior of other individuals, or of corporations, citizens must have the right to sue. In our system as it presently exists every judge has the authority to refuse to consider a lawsuit that he deems to be frivolous or completely unwarranted by the facts. Unfortunately I think this is as far as we can go in the direction of limiting such suits without infringing on the reasonable rights of all of us. The problem that these laws are expected to deal with is the problem of judges who wield the power inherent in their positions arbi-trarily in accordance with their own bias rather than the principles of equity. If all of our judges were absolutely dedicated to the principles of justice there would be no problems with law-suits that clearly lack any basis in fact. Any law that outlaws any class of lawsuits will make the arbitrary use of a judge's power easier and this would simply be another step in the wrong direction. Some of the proponents of these laws feel that they would limit unjust decisions by juries since these cases would never come before a jury. Personally I would rather continue to suffer from the obvious ignorance so often displayed by jurors than establish a law that denies the right to a trial by jury. In my opinion the only real hope we have of protecting ourselves from the ignorance of jurors is to educate the populace from which these jurors are drawn. In reality the only way we can accomplish this is through our school system.
        In regard to the first problem cited, the solution is far easier and involves no risk to our rights as citizens. First, Congress should pass a law that limits the amount of any award for actual damages that can be collected from any defendant to the percentage of liability that was allotted to that defendant. Any award of punitive damages should be limited to 50% of the amount of the award for actual damages that must be paid by the defendant against whom the punitive damages are assessed. If two or more defendants are found liable for actual damages and only one of them is assessed punitive damages only the latter would be responsible for paying the punitive damages. In practice these limitations would probably result in the awarding of the maximum limit of punitive damages in most cases where an award is made for actual damages because jurors would usually reason that the award of punitive damages would pay most of the plaintiff's legal fees and he would receive, at least approximately, the amount of money to which he was deemed to be entitled.
        This would go a long way toward correcting this gross and obvious miscarriage of justice. If the awards for the liability of employers to employees are unfairly restricted by the laws governing workmens' compensation insurance then those laws should be changed by removing those restrictions.
         The problem of judges legislating under the guise of interpreting the law is by no means unique to the 20th century. This problem was noted very early in the history of our nation but in the 19th century it usually occurred when judges issued rulings intended to benefit a few individuals or corporations at the expense of the general population. Today the practice is all too often aimed squarely at the individual rights guaranteed to all of us in the Constitution which these judges have sworn to uphold! Consider, for example, forced integration of schools by court-ordered busing of students to schools outside of their own neighborhoods. This ruling forced many school districts to spend a great deal of money in providing buses and operating them that should have been spent in providing education, or in many cases should not have been spent at all. There is simply no justification for this practice in the Constitution. The Constitution does not state that anyone is guaranteed an education, let alone, an education in a school with a certain ratio of different races.
        The forced integration of schools which were formerly segregated is a wholly different matter. The fourteenth amendment to the Constitution clearly states that no state shall deny to any person within its jurisdiction the equal protection of the laws. By any reasonable interpretation segregated schools are clearly unconstitutional under this provision but so is the busing of students to achieve "racial balance."
        Another glaring example of "judge-made law" is found in the interpretation of a law passed by Congress for protecting the waterways of the U.S. against pollution. The Clean Water Act of 1972 gave the Army Corps of Engineers authority to regulate certain activities affecting the navigable waterways of the U.S., especially the dredging or pollution of them. A district judge, in 1975, abitrarily expanded this jurisdiction to include isolated wetlands miles away from any stream, let alone a navigable waterway. A 1983 case determined that moving clean soil from one place in a wetland to another site constituted "toxic discharge" under the terms of the Clean Water Act. The Corps and other federal agencies concerned with wetlands adopted a definition of a "wetland" in 1987. I do not know if an official definition of a "wetland" existed prior to that time. In any case the definition was a reasonable definition. The federal agencies were pressured by environmentalists to redefine "wet-lands" and in March of 1989, without any public hearings, a new definition went into effect. Thus we have in the matter of wetlands, "laws" created by judges and bureaucrats and it was these laws that resulted in Bill Ellen spending time in prison as related in the chapter on environmentalism.
        In Ellen's case we saw that an appeals court decided that the government can change the interpretation of any law and prosecute activities that occurred prior to the new interpretation even though they were perfectly legal in terms of the existing interpretation of the law. For the moment it is sufficient to point out that many of our judges have accepted the main premise of positive liberalism that the self-annointed elite of our society has not only the right but even the duty to impose its own ideas on society as a whole. Once this premise has been accepted by the people who enforce our laws equality before the law has, by definition, been eliminated.
        It is absolutely incredible to me that federal judges in the United States of America, who have sworn to uphold the U.S. Constitution can treat so cavalierly the rights of U.S. citizens but in actuality they have gone far beyond this. Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 the EPA can sue individuals and corporations for activity that was perfectly legal at the time it was done. Any judge who is not willing to completely ignore his oath to uphold the Constitution would not hesitate to dismiss such suits.
        As I was writing the paragraph above I was presented with one of the reasons for the attitude of many judges today toward the Constitution. This was not a sudden intuitional insight but something I heard at that moment on the radio. It was Rush Limbaugh quoting a law professor from Berkely to the effect that the whole intent of the Constitution is to limit, at some point, the will of the people. When law students are being taught this type of reasoning it may, in part, explain the view of the Constitution that so many judges have accepted although it certainly does not excuse it.
        Although it is patently untrue that the whole intent of the Constitution was to limit the right of the people it was intended to limit the right of the people in some respects and I will consider this matter in a chapter on the Constitution itself.
    The tendency on the part of so many judges today to ignore the rights guaranteed to all citizens by the Constitution is one of the most disturbing results of the acceptance of the premises of positive liberalism but there is another that, in the long run, may be almost as damaging to the nation and that is the refusal of judges in many cases to hold the individual responsible for his own behaviour. This attitude can be seen in decisions that deal with the rights of convicts to certain amenities such as television, the right to relatively plush living quarters and a host of other such rights. By being convicted of a crime many individuals suddenly acquire an absolute right to amenities they might not enjoy if they were not imprisoned. It is also reflected in inappropriately light sentences in some cases. The criminal element of society is thus acquiring rights even as the law-abiding element is losing the protection of the law.
 The only real solution to this problem is education. If the American people can be made aware of the actual results that flow from the application of positive liberal principles public opinion can be brought to bear on those who are applying them. There is, however, a more specific action that would probably be useful in countering this trend. The Constitution should be amended to limit the tenure of judges. All federal judges, including Supreme Court Justices, should be limited to one term of specified length. It could be eight years or ten years but after serving one term an individual should be ineligible for reappointment to the same position. The only exceptions to this rule should be that a former district judge will be eligible for appointment to one term on an appellate court and one term on the Supreme Court. This is not my idea, it was essentially proposed by John Taylor almost two hundred years ago and in the time between then and now decisions at all levels of the federal judicial system have furnished abundant proof that this change in the constitution is needed.