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March 2017 Policy Study, Number 17-5


A Commentary on the American Constitution


Part 9



My purpose here is to provide background information, not to slander all attorneys.  I have many friends who ply the profession, and their hearts are as good as any who will read this book and better than the author’s.  Still, we may have some reason to pursue this matter; not because of individuals, but due to the organization under which they practice, the American Bar Association (the BAR).  Other professional occupations, such as doctors, dentists, or architects, all have their professional organizations; but they are all licensed and controlled by the state.  If you were to check in your state, what you will most probably find is that your attorneys are not licensed by your state, but instead they have a certificate to practice before the Bar.  Why is this profession treated differently from others?  More importantly, how can this be?  It is true that some of our Founding Fathers were lawyers; but I have yet to discover the Bar to which they belonged.  I doubt there was one. 


Where did today’s American Bar Association come from, and on whose authority?  I don’t see anywhere in the Constitution where it is advocated.  It is nowhere to be found in the Constitution that you need to be a member of the Bar to practice law.  Nowhere in the Constitution does it state that membership in the Bar is a qualification to hold the position of “judge.”  The Constitutions of the United States and the state of Iowa speak to appointment or election, of terms of office and the like; but there is nowhere to be found a condition of judicial office that one must be a member of the Bar, or of even having gone to law school, to qualify.  If that were the case, we probably would not have had any judges in this country until sometime after the Civil War.  If not the state, to just whom is the Bar responsible?  Why isn’t the Bar responsible to the state?  Does the American Bar Association have ties to the English Bar?  If they do, what of the propriety of this arrangement?  Is this what our Founders so feared?  Interesting questions all, and deserving of research and solid, truthful answers.


Please allow me to reiterate, this is not meant as an attack on the legal profession.  It is quite doubtful that most of the attorneys that I know have even given the aforementioned questions much thought.  But because it is their vocation and their organization, they well should, for their posterity will be subject to the same consequences of this situation as yours and mine.  The situation of which I speak is oligarchy.  The dictionary defines oligarchy thus:  “a form of government in which the supreme power is placed in the hands of a small exclusive class.”  Even this term does not capture the flavor sought.  So to refine the condition still further, it is necessary to introduce an unusual and seldom-used term.  The term is “kritarchy.”  The meaning is this:  “A form of government in which the supreme power to rule is placed in the hands of a small exclusive class comprised of judges.”  This author would also include others of the same profession, meaning the legal profession on the whole.  It is abundantly clear our Founders had no intent to design a government along these lines.  It is less clear, but probably the case, that the situation we tend to be slipping into today is also not designed, but is instead de facto.  Whether by design or default, the consequences are unwelcome.


In an effort to crystallize the point, allow me to refer to the words of one of our Founders:


The internal effects of a mutable policy are still more calamitous.  It poisons the blessings of liberty itself.  It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.  Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?  Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people.  Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens.  This is a state of things in which it may be said with some truth that laws are made for the few, not the many.  (Federalist Papers, No. 62).


That we find ourselves in this condition today seems to me unarguable.  Our laws multiply like bacteria in a Petri dish, each one more inscrutable than the one before.  The hallowed judicial axiom, “Ignorance of the law is no excuse,” has become ludicrous.  The laws are written in such a manner that the infractions we commit infringe not upon another private individual, but upon the state.  (That is why you most often see, “The State v. Smith,” rather than, “Johnson v. Smith.”)  And whom do we turn to for remedy — the courts, of course.


This state of affairs throws the doors open wide for the misapplication of justice.  It becomes a game to win and be handsomely paid for doing so rather than to see justice done.  As important is that the ambiguity and sheer volume of the law becomes a lever of power.  Too many judges refuse to content themselves with administration of justice.  They have begun to decide for themselves what is acceptable public policy.  A judge in Kansas City took it upon himself to order a raise in property taxes of a school district for the purpose of benefiting poor inner-city neighborhoods.  That this might be a laudable goal is totally beside the point.  In our system of government, the authority to levy a tax falls to elected legislators, not to the whims of a venal judge.


Too many of our judges, some on the “supreme (sic) Court” included, have seemingly decided it is not only within their purview to judge the law, but also to make it.  The most blatant example of this that comes to mind is on the subject of abortion.  For the purposes of this discussion, it does not matter whether you are Pro-Life or Pro-Choice because the matter under discussion concerns only the actions of the “supreme (sic) Court.”  To the best of my knowledge, there was not a single state in the 190-plus years between the ratification of our Constitution and the Roe v. Wade decision whose laws condoned the practice of abortion.  In fact, most of them had laws prohibiting the practice.  The states did not change their laws.  Congress did not change the law of the land.  The “supreme (sic) Court,” ignoring 190-plus years of stare decisis and cultural precedent and bypassing the legislative process, took it upon itself to establish our current law by judicial fiat. 


It is, to say the least, suspect to claim that it was only at that time in history that they discovered something in the Constitution, which apparently all the “non-enlightened” “supreme (sic) Court” justices that went before them had missed.  This was cause enough to impose their sense of law on all of the states.  While this may be greeted with approval from those who hold a Pro-Choice position, it would be well to at least acknowledge the danger here.  And it is this: if the courts have the power to establish law that you condone on their own volition, they also have the power to establish law of which you do not approve.  History shows it to be exceedingly dangerous to liberty to sanction the deposit of such a concentration of power into so few unelected hands.




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