Abuses and Usurpations

"The contest is not between Us and Them, but between Good and Evil,
and if those who would fight Evil adopt the ways of Evil, Evil wins."

Abuses and Usurpations

Find out just what the people will submit to and you have found out the exact amount of
injustice and wrong which will be imposed upon them; and these will continue until they are
resisted with either words or blows, or with both. The limits of tyrants are prescribed by the
endurance of those whom they oppress.
— Frederick Douglass, civil rights activist, Aug. 4, 1857

Any power that can be abused will be abused.

— Tyranny Law #1

Abuse always expands to fill the limits of resistance to it.

— Tyranny Law #2

If people don't resist the abuses of others, they will have no one to resist the abuses of
themselves, and tyranny will prevail.
— Tyranny Law #3

Usurpations
Usurpation is the exercise of powers by an agent which have not been delegated to
him by the principal. In a constitutional republic like the United States of America,
ACTS BY OFFICIALS ARE LEGITIMATE ONLY IF THEY ARE
CONSISTENT WITH AND BASED ON A CONSTITUTION, a body of laws
which are superior to all subsequent statutes and other acts of officials, which
embodies all delegations of power, and which may recognize certain rights to further
define the limits on the powers delegated. It is a fundamental principle that all
acts of officials not derived from the delegated powers of the constitution are
null and void from inception, not just from the point at which a court may find them
unconstitutional. Every person who has an encounter with the acts of officials has
the duty not only to obey legitimate official acts, but to help enforce them, but, when
there is a conflict among acts of officials, to enforce the superior one, which, when
an act of an official is in conflict with the constitution, means enforcing the
constitution and not the act in conflict with it. Judges and other citizens do not decide
constitutionality, but discover it, and every person who is involved with any act by
an official has a nondelegatable duty to make a determination of the constitutionality
of that act. This determination is called constitutional review, and, when exercised
by a judge in a case, judicial review.
Since the ratification of the Constitution for the United States and each of its properly
ratified amendments, there have been numerous acts by officials, including statutes,
regulations, executive orders, court rulings, and ordinary decisions and actions taken
while on duty and under color of law, which have been unconstitutional, and in many
cases, in violation of civil rights of persons and of constitutional laws. We will try
to identify some of the worst of such violations of the Constitution, and discuss how
compliance with the Constitution can be restored.

Abuse of Judicial Discretion

Jon Roland
The essence of nomocracy, the rule of law, is limitation of the discretion of officials,
and providing a process by which errors or abuse of discretion can be corrected.
Some discretion is unavoidable, because law cannot anticipate every eventuality or
how to decide which law may apply to a given situation. What guidance the law
cannot provide is supposed to be provided by standard principles of justice and due
process, reason, and the facts of each case. Ideally, officials should be mutually
consistent and interchangeable, making similar decisions in similar cases, so that no
one can gain an undue advantage by choosing the official or exercising undue
influence on the official or on the process he operates. We trust officials to exercise
such discretion as they have with wisdom, justice, and competence, to avoid
government that is arbitrary, insolent, discriminatory, prejudiced, intrusive and
corrupt.
Within the public sector, discretion can be exercised by legislative, executive, or
judicial officials. Within the private sector, discretion may be exercised by private
officials, such as agents, trustees or corporate officers, who are in principle subject
to the supervision of the courts. The focus here is on judicial discretion, and the
abuse of it. It will not discuss every area of judicial discretion.

The first major check on the discretion of judges was the jury. A judge, holding
office over the course of multiple cases, and selected by appointment or election, is
susceptible to undue influence. A jury, chosen by sortition, or lot, for a single case,
just before the case, is less likely to be corrupted, and having multiple jurors render
verdicts collectively provides a check by each on the others. What they might lack
in knowledge of the law is offset by their connection to the nonlegal environment in
which most people subject to the law must operate.

In courts that try to save time and money by not using juries, such as family courts
in some states, complaints about abuse of judicial discretion have led to calls for
juries to decide questions of custody, visitation, child support, and the distribution
of marital property.

Judges who impose lenient sentences, to avoid prison overcrowding and the early
release of violent offenders, often provoke demands for mandatory minimum
sentences or sentencing guidelines that reduce their discretion to do things like
impose reduced sentences on defendants thought to be remorseful or unlikely to
commit another offense.

Most complaints of abuse of judicial discretion, and calls to limit it with more laws,
concern questions of policy or equity. But there is another broad category, which
concerns constitutional questions of due process and civil rights. This is too large a
field to discuss adequately in a short article, so only a few of the more important
kinds of judicial discretion that are often being abused will be presented.

Stare decisis
Stare decisis is the doctrine according to which a judge in a current case treats
decisions in past similar cases as authoritative precedents, and refuses to make the
decision in a way that departs from such precedents, regarding all of them as
correctly decided. There is a place for giving weight to precedents, especially in civil
cases and matters of equity, and to clarify ambiguities in the black letter law, but it
is an abuse of judicial discretion to treat precedents as though they are law,
equal or superior to black letter law, especially when that black letter law is a
written constitution. Only the edict, the finding and the order, are law in a judicial
decision, and only for the parties involved. The opinion concerning how the decision
was reached may be persuasive on its merits, and indicative of how the same court
might decide a similar case, but it is dictum, or commentary, not law, and it is an
abuse of judicial discretion to fail to exhaust textual analysis and legislative history
before considering precedent, and making sure that the chain of precedents has not
wandered away from the bounds of the black letter law.

Deference to legislature and administration

While it is appropriate to defer to the legislative and executive branches on
questions peculiar to those branches and their constitutional duties, all too often
judges abuse their discretion by so deferring in cases where officials of those
branches have clearly exceeded their authority. This is sometimes signaled in a
decision that declares the matter a "political question". Sometimes it is, at least in
part, but judges have a duty to act where constitutional bounds are clearly
exceeded, and their failure to do so indicates a lack of true judicial independence
of the other other branches and the pressures those branches can bring to bear.
The result is the Administrative State, the result of failure to enforce the
nondelegation doctrine. Part of the solution may be to select judges by sortition.

Habeas corpus and quo warranto

Any person has the right to petition for release of a prisoner if the official
holding him does not prove sufficient authority to do so. A writ of habeas corpus
is a subspecies of a writ of quo warranto, the right to have an official cease or refrain
from some action unless he proves sufficient authority for it. Only the first is
explicitly protected in the U.S. Constitution, but the latter is implied by the due
process and nondelegation clauses and amendments. The principle involved is the
presumption that an official lacks authority for an action unless he can prove
he has it, so that a petition for either writ does not imply a right to both oyer (fair
hearing) and terminer (decision on the merits) for the petitioner, but only terminer.
The right of oyer belongs to the respondent for such a petition. If the response is
inadequate, or the court does not have time for oyer, then its duty is to grant the writ.
The problem is that judges, especially federal judges when the respondent is a federal
official, are too often failing to act on habeas petitions, on various pretexts, thereby
reversing the presumption in favor of the official and his actions. Petitions for writs
of quo warranto are systematically ignored or dismissed, sometimes on the grounds
of lack of legislative authority, but no legislative authority is needed. There is no
appeal from such inaction. Law provides petitioners only the option of trying again
with another judge, thereby encouraging forum shopping. Complaints of judicial
misconduct for such denial or inaction are also being systematically ignored. This
should not really be called an abuse of judicial discretion because by law a judge has
no discretion on terminer, but it has emerged as a practice that undermines all the
other protections of the Constitution.

Both petit and grand juries are supposed to be selected at random from the
community, a process called sortition, with some screening out of jurors who cannot
be impartial or who have some hardships or critical duties. However, judges too
often abuse their discretion to pack juries with persons who are partial in various
ways. One way is to demand that jurors take an oath to "follow the law" as given by
the judge. That enables the judge to instruct the jury as to what the law is.

Trial jury access

In the early Republic, the standard practice of due process was to argue all issues of
law in the presence of the jury, which enabled them to learn what the legal issues
were along with the judge, that is, the presiding magistrate, and we can presume that
this practice was part of what the Founders meant by "due process" in the
Constitution. However, judges have abused their discretion by adopting the practice
of requiring pleadings to be submitted to them by the litigants in writing, and not
allowing copies to be provided the jury, nor allowing the attorneys to make legal
arguments in the presence of the jury. This has given judges control over the trial in
ways that largely subverts the protections that the jury is supposed to provide,
because it does not allow jurors to hear argument, in a criminal trial, that the court
does not have jurisdiction, or that the charge is not authorized by a statute, or the
statute by the state or federal constitution, or that the statute is misapplied to the facts
of the case, or that the rights of the accused were infringed by investigatory,
prosecutorial, or judicial misconduct.

Grand jury access

The problem is often revealed by the old prosecutor's joke that he could get the grand
jury to "indict a ham sandwich". Originally, in the early Republic, there were no
public prosecutors. Criminal prosecutions were conducted by private attorneys,
either paid by the victims, by subscription, or appointed by the judge to serve pro
bono. When public prosecutors began to be appointed, they soon assumed an undue
influence over grand juries, with the support of abuse of judicial discretion by the
judges. This is aided by a lack of civic education of the public concerning the duties
of grand jurors, or by packing grand juries with cronies of the judicial establishment.
Prosecutor selection
In almost every state and in the federal courts it is within judicial discretion for the
judge to grant access to the courts to any person to conduct a criminal prosecution,
but except in Texas, such petitions are systematically ignored or dismissed. This is
a special problem when the suspects are public officials, cronies of the prosecutor or
judge. Barring private criminal prosecutions without just cause is an abuse of judicial
discretion.

Private prosecution of public rights, Qui tam and ex relatione

There is a right for any person to seek declaratory or injunctive relief against any
illegal action by government officials without having to have been personally
injured, but since 1922 courts have been abusing their judicial discretion by denying
standing to plaintiffs who cannot prove personal injury. There is a related right, qui
tam, of any person to act in the place of the government, ex. rel., when the
government will not do so, to protect the rights of persons and to enforce the law.

Contempt & coercive detention

There is no power delegated in the U.S. Constitution for a federal judge to

prosecute anyone for contempt of court, except on federal territory, under Art. I
Sec. 8 Cl. 17 or Art. IV Sec. 3 Cl. 2, or to imprison someone indefinitely to coerce
him into doing something. It was anticipated by the Founders that all federal
courthouses would be sited in federal enclaves, but not all of them are, and the orders
and contempt actions are often extended beyond the territorial limits of such
enclaves, where federal courts have no such jurisdiction.

Disbarment

Although the original stated purpose of licensing and delicensing lawyers was to
protect the public from dishonest or incompetent ones, licensing and the influence
judges have over disbarment is too often abused to suppress lawyers who might
challenge their abuses.

Lawyer protection
The other side of controlling lawyers with threats of contempt or disbarment is
systematic protection of them from being sued, by abusing judicial discretion to
punish persons who might have the temerity to do so, and their lawyers if they can
get any to represent them. Violators of this "unwritten law" find all their motions
thereafter being ignored or denied, regardless of merit.

Absolute immunity
It is appropriate for judges to have a limited immunity from being sued for their
judicial decisions if they are merely the result of error or incompetence. The remedy
for that is appeal to a higher court. The problem is that judges abuse their judicial
discretion to protect themselves and other judges from civil and criminal liability for
being unduly influenced, such as by bribery, intimidation or cronyism.

Pro se litigants
Instead of accommodating to the lack of legal knowledge of lay persons who either
cannot afford a lawyer, or who don't trust lawyers who are subject to the control of
the courts, judges and court personnel systematically discriminate against litigants
who appear pro se or in propria persona, often dismissing their petitions or motions
out of hand, regardless of their merits. That is abuse of judicial discretion.

Affirmative defense

Judges have adopted the practice in criminal trials of requiring the defense to make
a motion for affirmative defense, which could be a defense like self-defense that
admits to the facts and argues the actions were justified, or which seeks to prove
someone else committed the crime. The original rationale for this was to provide the
prosecution due notice so they can prepare their response. It is normally granted, but
in the 1994 Davidian trial it was denied, much to the surprise of defense attorneys,
who planned to argue self-defense. To prevent the defense from submitting an offer
of proof, which would be grounds for reversal on appeal, the judge agreed, if they
would refrain from doing so, to include an instruction to the jury that they could
consider self-defense, but he would not allow argument and evidence of self-defense
during trial. Thinking their best chance lay in agreeing to that, the defense attorneys
went along with this abuse of judicial discretion. However, other instructions misled
the jury into convicting some of the defendants on sentencing enhancements, even
though they acquitted all of them on the base offenses, and the judge sentenced them
for the enhancements as though they had been found guilty of the base offenses.

Mens rea defense

In criminal cases, by original constitutional standards, the elements of proof of a
criminal charge are mens rea, actus reus, concurrence, causation, and harm. The
first, mens rea, is "criminal intent", and judges are allowing criminal prosecutions to
proceed without proof of it, especially when the statutes prohibit acts that are malum
prohibitum instead of malum in se. In this, judges are aided by abuse of discretion
by legislators, but it is still abuse of discretion.

Home » Abuses & Usurpations

Original URL: http://www.constitution.org/abus/discretion/judicial/judicial_discretion.htm
Maintained: Jon Roland of the Constitution Society
Original date: 2003/5/31 — Last updated 2017/4/25