I’m not as much of a populist as some might think. In fact personally, my political tastes tend toward monarchy.
But that’s not the world we live in, so let’s move on.
The constitution is not some esoteric sacred scripture reserved for high priests, but mysterious and obscure to the profane. But we sometimes treat it that way. In no area has the drive to exclude the profane from having a voice in constitutional matters been so pervasive as in constitutional litigation by the rabble: 42 U.S.C. 1983.
As we more or less saw again on Monday, this federal statute – which on its face permits any person no matter how lowly or uninstructed or profane to bring suit in federal court against officials who have allegedly wronged them through a violation of constitutional rights – has been eviscerated by the courts through various immunity rulings and whatnot. Especially the US Supreme Court.
Yet although section 1983 deals with alleged constitutional violations, it should be remembered that the restrictions the SCOTUS has been placing on actions brought under the statute are not a matter of constitutional law, but rather statutory interpretation. The SCOTUS has read the immunity and other restrictions into a statute, not the constitution.
Statutes can be amended by a simple act of Congress.
So if the people of the US ever recover their gumption, they might want to browbeat their federal legislators/congress-critters into amending 42 U.S.C. 1983 to provide a few things to counteract the execrable rulings of the SCOTUS. Such as:
1) no immunities for public officials, including judges;
2) no statute of limitations;
3) no summary judgment permitted (F.R.Civ.P Rule 56 won’t apply)
4) Make it all retroactive.
There are a lot of underemployed lawyers out there. This would certainly give them something to do.
“Floodgates”? Who gives a damn? Hire more judges.
It’s a pipe dream, I know. Who’s going to pay the bribes make the campaign contributions required to get something like this off the ground?
We’d have to get Goldman Sachs interested. Maybe they could form a company and do an IPO, but then they’d be betting against it all in one of their other departments.
Lawyers on Strike 
I, too, would prefer a monarch; so long as he didn’t aspire to rule an empire. We’d be better off, all in all. Another case for singular sovereignty could be made on grounds that most Americans don’t vote and even fewer want to think about the affairs of government the way a true sovereign would. The Constitution was predicated on the principle that an informed electorate would make wiser choices but when various special interest groups successfully incorporated to expand suffrage, that principle was abandoned so the advantage of collective wisdom was lost. We, The People have made stupid decisions ever since. Stupid people are easy to swindle and stupid governments soon lose their sovereignty. Forgetting all the lalaland definitions of sovereignty I define it as “He who has the final word” . In our case it was the assorted special interests that diluted the voter base. Spin-offs, heirs, and better organised descendants of those same special interest groups have constructed a modern variation of aristocracy under our noses and We, The People still don’t know what financial slavery is or how it works. While economic journalists are busy “following the money” I think legal journalists should be busy “following the sovereignty”. Is it any coincidence that the money trail leads to the same place as the sovereignty trail?
Your essay asks why the poor have no recourse in the courts or why the laws favor an entrenched bureaucracy over the rights of The People and the obvious answer is that The People is a meaningless legal abstraction while real-life court defendants are financial peasants with no rights at all. The Constitution only means what the Sovereign says it means; nothing more, nothing less. Follow the sovereignty. If you want the rule of law to serve justice, rather than bureaucratic expediency, you’ll have to so with sovereign authority or it will be “interpreted” by whoever does have sovereign authority.
Or you could take the long scenic route and follow the money to where the sovereignty is, and then follow the sovereignty back to its Constitutional source and put a muzzle on special interests with a very firm statement about the rights of corporations in a democratic republic. The King used to just cut theirs tongues out and be done with it; but we’re civilized now and the vision of guillotines is still fresh. Seriously we might need a 29th Amendment to limit suffrage to only those who understand what a constitution is.
We need a 28th Amendment first, though.
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You understand a lot about what’s going on here, but I still say you’re focusing on the wrong thing.
This is a 21st century version of late 18th century France. Allusions to “peasants” or “serfs” couldn’t be more spot on. The challenge, this time, is to see if a correction can occur without the guillotines or whatever the modern equivalent would be. The PTB at this point have no idea how helpful it would be for everyone, including them in the long run, if they would give a little control up, let lawyers do their thing and see if this doesn’t relieve some of the social pressure.
I suppose it comes down to them – the 1% – again. Are they going to be myopic, stingy, defensive, and indifferent as Dickens portrayed the French aristocracy? Or will they listen and adjust?
I see no reason to be optimistic at present, other than the occupy thing. If that grows and remains peaceful and accepts suffering patiently there’s a chance. A slim one. The constitutional amendment(s) – yours or mine – will result from that, not precede it.
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I think we’re on the same page and I’m pretty sceptical myself. BTW: “Occupy” seems very much in the corporate “bag” at this point, as far as its web presence is concerned, having been co-opted by some form of alien vampire squid (MoveToAmend, 99%, OWSNY, Coffee Party, YoungTurks, & WolfPac are too) but the local level of the movement is still alive and kicking. Naivety lives on however and I’ll continue writing; I hope you’ll do the same.
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“I suppose it comes down to them – the 1% – again. Are they going to be myopic, stingy, defensive, and indifferent as Dickens portrayed the French aristocracy? Or will they listen and adjust?”
I have been banging on about this for years now. This is the basic issue. Do the elite, the 0.1%, understand what it takes to *remain in power* rather than being violently executed? The lessons known by Emperor Augustus — how to be a ruler who is *popular*?
Seems like they *don’t* understand this. It seems like they are every bit as stupid as the French aristocracy. Dickens was actually generous to them — the more you read the history the more you realize how unutterably self-destructive the King and his advisors were. If he’d accepted the National Assembly’s tax reform plan, it would have all ended, right there. The people will usually accept fairly small improvements and quiet down again. But he wouldn’t accept it. He wouldn’t take ANY deal, and conspired with foreigners to invade France to kill the “upstarts”. For this he lost his head.
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“We, the Corporations of the United States, in order to form a more perfect union of shareholders, establish Justice by buying the Judicial system, insure Domestic Terroism, provide for our common defence with our military and police forces, promote the general welfare class so we may subjugate them, and secure the Blessings of Liberty to ourselves and our Corporate posterity, do ordain and establish this New Constitution for the United States of America, INC.”
This is what we have allowed to happen…I HAVE HAD ENOUGH!
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“1) no immunities for public officials, including judges;”
We have this debate in Sweden aswell. Regarding our “congressmen” having limited immunity (if crime/offense does not put you in jail for 2 years or more).
First I thought it was horrible that our leaders were immune. But after listening to the debate I changed my mind. You can not have politicians, judges and other public servants of “great” value being targeted by other politicians/dictators etc. The system needs to have some safeguards. Limited, but still some safety. Its in my mind a foundation of democracy.
How would the judicial system work if there were no public servants who had immunity so that they could do their work without being influenced by others? My friends wife is one of those people. She can not be fired, works when she wants to, sets her own salary, has a “red button” which when pressed acts as an alarm to every policeman/woman in the county. And the work she does is amazing. Something that she would not be able to do if she did not have this limited immunity.
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“How would the judicial system work if there were no public servants who had immunity………….”
It would work as always, but accusations of blatant misuse of authority should be brought before a jury for judgement. Not everything is black or white, right or wrong, in stark simplistic terms. Sometimes moral values have to be weighed and weighted, one against the other, and even juries can’t always decide. They’re not always right, but it’s the best we can do; being human and all. Absolute immunity can only lead to absolute power; and we know where that leads. If you’re saying the citizenry can’t be trusted to impose morality on a government, then why have a judicial system at all?
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Immunity for abuses of power must not exist, and that is why in Sweden you have an exception for crimes which would result in 2 years or more in prison.
In the US, thanks to corruption in the court system, we have no such “serious crimes” exception. Police can murder people (25 years to life), DAs can defraud the court in order to convict people they know are innocent (25 years), etc., and they have “immunity”. This is unconscionable.
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