(This is one issue of a subseries; see U.S. vs. Democracy for a list of all issues in the subseries.)
Whenever one group or class acquires or seizes special rights not available to the people generally, we move further from democracy. To a great extent, it is a zero sum game: the increase of one person’s power inevitably corresponds to the diminution of another’s. This has even greater effect when the special class, itself, operates, undemocratically. The previous issue of this subseries (Buffalo Bull E.16, Political Parties) explored the consequences of taking powers from the people and giving them to undemocratic political parties. The most effective coup against what little power the people had, however, was effected by the parts of the government which were the most undemocratic from the start: the legal system, encompassing not only the courts but also the ancillary non-governmental parts of the so-called “justice” system.
The non-democratic nature of the election system is easy to understand, partly because it is simple. With the election of officers, there is one main mechanism to be subverted: the direct selection by the people of officers, where no group of the people and no group of candidates is given preference by the process. The corruption of the judicial system, however, has multiple facets. Each mechanism of corruption is, by itself, easy to grasp, but together they act with a synergy to multiply their effects. It’s going to take more than one issue of this series to explain how the lawyers, judges, and their supporting crew have moved us further from democracy than we were at the beginning of the United States.
According to Aristotle: “One principle of liberty is for all to rule and to be ruled in turn... that the assembly should be supreme over all causes, or at any rate over the most important, and the magistrates over none or only over a very few...” We started, as I said, not as a democracy, but we have moved away from these principles since the founding of the Republic.
By “assembly” (ekklesia, ἐκκλησία), Aristotle meant the entire body of eligible citizens, which met approximately monthly. Day to day affairs were handled by a council, the boule (βουλή) of four to five hundred citizens who served terms of one year.
Trials in Athens were done before juries, whose size depended on the importance of the matter being decided, which in practice often was the amount of money in controversy. The minimum jury size was 200; in important cases the entire jury pool of 6000 might hear the case. The jurors were representative of the citizens, and thus carried the full authority of the ultimate power of the demos. As such, jurors could not be tried for misconduct. A judge, on the other hand, might be impeached and tried for cause. A jury’s decision was final: there was no appeal, as the people were the highest authority.
A democracy need not be constituted exactly as it was in ancient Athens. The Colonies inherited their judicial systems from England. However, variations existed from state to state. Some states had begun as commercial ventures, others as religious colonies, or even as places to send convicts (who were forced to work off their sentences, so these were commercial, too). These differing perspectives resulted in an uneven interpretation of the basic English system. After the 1776 Revolution, the various state systems evolved, but did not change suddenly. The Revolution was, after all, primarily made by of the propertied class, and didn’t – except for the war itself – have much direct effect on most of the people. The Revolution didn’t bring “liberty” or “freedom” to the average citizen, just independence of the governments from England. Merchants doing international business, bankers, and others in the propertied class gained some liberty, but not most people. In particular, the basic laws didn’t much change: the Common Law was still the law, trials were conducted as before, and state and county governments continued without significant reorganization. The Bill of Rights did not apply to the states themselves. While Congress was prohibited from restricting freedom of speech, the right to petition for redress of grievances, establishing a church, and so on, the states were under no such restrictions, although, in practice, these things were usually – if unevenly – recognized in most states.
It is important to note that, in some respects, the Colonies often moved their inherited legal system closer to democracy than was done in England. Although the Constitution is not really a democratic document, it draws from a de facto Colonial judicial system which gave the people more power than the English system gave to the people of England. Although the 1776 Revolution was basically a “barons’ revolt”, it took place in a context of tension between Colonial practices and philosophies, and those of the mother country.
Because of the differences from place to place, this discussion will be somewhat generic, explaining a “typical” judicial system. For convenience, we will examine four aspects of this system: the grand juries, the petit juries, the courts, and the law itself. In addition, the incipient privileged class consisting of legal professionals has been enormously strengthened, insinuating itself into the entire system, at the expense of the people. Each one of these has been corrupted since the founding of the republic, moving us further from democracy.
We shall begin with the grand jury, an institution dating from Twelfth Century England. Although petit juries, the kind of juries which decide matters at trials, date back thousands of years and are found in many cultures, the grand jury is a distinctively English institution. In Twelfth Century England, the official in charge of each shire was the sheriff. (Shires evolved into counties. The word, “sheriff”, from “shire reeve”, was an official under the Crown whose responsibility was the shire. See Note 1, below.) A group of men was tasked with noting and investigating crimes and reporting them to the sheriff, who would arrange for trials. These groups evolved into what became known as grand juries. They are called “grand juries” (meaning, “large juries”) to distinguish them from “petit juries” (meaning, “small juries”) because they were larger, having more jurors. Traditionally, but not always, a grand jury now has twenty three members, while a petit jury has twelve members.
By the time of the American Colonies, grand juries were bodies of men, often serving for a period of a year. Anyone could come before the grand jury and report a crime or make a complaint. The grand jury did a preliminary investigation, and decided if there was probable cause for further action. However, the grand jury had an additional responsibility: it was required to investigate, on its own initiative, the possibility of crimes it believed might have been committed, even without someone presenting a complaint. (This requirement to act on its own initiative dates back to the original Assize of Clarendon by Henry II in 1166, which required the grand jury to report to the sheriff any crimes of which it was aware. Under Common Law, a person who has reason to believe some significant fact might be true is obligated to investigate, so if the grand jury did not investigate they would be violating their oaths.) A person bringing a complaint to the grand jury presented a bill of indictment, and, if the grand jury agrees that a trial ought to take place, the grand jury returns the bill of indictment as a “true bill” (sometimes, this is called, more simply, “returning the indictment”). On the other hand, if the grand jury acts on its own initiative, without a complaint, the grand jury produces a presentment. A presentment requires that the court frame the indictment.
The kinds of complaints brought before the grand jury ranged from the mundane (the government wasn’t properly maintaining a road) to the serious (murder or robbery).
In Colonial days, public prosecutors were not common. If the complaint was considered true, if the indictment was returned, then the person making the complaint was granted general power of attorney to represent the state in prosecuting the accused. (The office of attorney general is held by someone with this general power of attorney.) The plaintiff need not be a lawyer; in fact, at the time, lawyers were also not so common.
The grand jury was, in Colonial times, a fairly democratic institution. It consisted of ordinary people. It was not controlled by the government. The jurors acted independently, calling witnesses and doing whatever investigation seemed appropriate. The main involvement of the courts was to administer oaths of office to the jurors, and to create indictments upon presentments. It acted as a buffer or filter to screen out frivolous or meritless complaints, but also acted as a watchdog on the functioning of the government itself.
Nowadays, however, the grand jury exists only in shadow form, not as a separate institution representing the people, but rather as a lap dog of the government. Half the States don’t even have grand juries, and, on the Federal level, they are almost completely controlled by the government. Clearly, especially in their power to return indictments or to create presentments against government officials, and in their abilities to bypass prosecutors and attorneys general who refuse to go after officeholders and the otherwise powerful, they are an essential part of a democratic system. In fact, it is because of this power that they have been captured and are controlled by the government: they present a serious danger to corrupt, lazy, and cowardly officials as well as to the privileged and powerful outside the government.
The grand juries were “captured” and made subservient to the government, by collusion among almost every branch of the government itself, and with the support of those who profit by the capture. The government created a new class of professional prosecutors, district attorneys, and attorneys general, who began to oversee the operations of what grand juries there were. (Below, when I refer to prosecutors, I’m including any officials who fulfil that function, including those called district attorneys, attorneys general, and those in their staffs who support that work.) In the beginning, grand juries, once appointed from among ordinary citizens, operated independently, without government supervision. (Indeed, the U.S. Supreme Court has referred to them as a “fourth branch” of the government.) Slowly, by rules changes, they came to be supervised by their new overlords. Instead of conducting, as they once did, their own investigations, they are now spoon fed only what the prosecutors want them to know. They do as they are told, not realizing the enormous power that they have.
Instead of making their own rules, they now operate under rules defined by the government, and only under supervision. (We can’t, after all, trust the people to know what to do, can we? We, the professionals, know what’s best for the people!) A new term entered the legal lexicon, “runaway grand jury”, which was pejoratively applied to a grand jury which started exercising its rightful independence by poking around in places it wasn’t welcome. The rules were changed. Initially, the prosecutor was expected to prepare an indictment upon presentment, but the the prosecutors simply refused and the courts wouldn’t enforce the rules. New rules were added so that an uppity, independent, uncooperative, or disobedient grand jury could be dismissed at the whim of the prosecutor: the dismissal would be repeated until a sufficiently compliant grand jury had been empanelled. The court’s own rules, known generally as rules of procedure, were modified to ignore presentments entirely, and a modern court will claim that, since presentments aren’t in the rules, they can’t be handled.
You can still find presentments in the rules: a footnote in the Federal rules mentions them as “obsolete”. They were made obsolete by the government itself, abetted by cooperative lawyers. It is as if a murderer or rapist or robber were to minimize his crimes, by declaring his victims “obsolete”.
In other words, what is now called a runaway grand jury was, at the time of the 1776 Revolution, the norm. At that time, all grand juries were runaway grand juries.
The end result is that grand juries, nowadays, are expected to do what the prosecutor tells them to do. If they are asked to return an indictment as a true bill, then they usually do so. If they are told that a case is weak, then they don’t have much choice – without any independent investigation – but to agree. And of course, if a complaint isn’t brought before them at all, then it goes nowhere. The prosecutor presents both sides of the case to the grand jury: if he wants to prosecute, he makes the defense case weak and his own case strong; if he wants to avoid the case going to trial, he maximizes the defense case and makes his own case weak. In other words, although he is not the judge, he has already judged and imposes his will on the people. He is a representative of the executive branch, which, through him, becomes judge, jury, and executioner. To add insult to injury, rules have been enacted almost universally to keep grand jury proceedings secret (improperly restricting the citizens who are jurors, as well as the rest of the people who have an interest in the process and in the outcome). Because of the secrecy, the corruption of the prosecutor, district attorney, or grand jury is hidden from view.
This is one of the main reasons why you see crimes committed but no one going to trial. When you see
None of this affects the trial itself. The grand jury merely decides if a trial should take place. The grand jury conducts only a preliminary investigation. An indictment is not a decision regarding the guilt or innocence of the indicted party. The grand jury is essentially asking the court to make a decision. All of the usual protections afforded defendants (the prohibition against mandatory self-incrimination, the rules of evidence, the right to bring and to cross-examine witnesses, and so on) are present at any trial. If these protections are not sufficient, then it is the trial which is unfair, not the conduct of the grand jury investigation.
This capture of the grand juries was enabled by the executive branch, which includes the prosecutors, district attorneys, and attorneys general who have taken over the power of the grand juries. It was done by the courts, who make the court rules. It was done by the legislatures and by Congress, who enabled it by ratifying court rules and passing additional legislation beyond the court rules. And the process was assisted, as well, by the lawyers who depend on the system and who feed at the troughs it creates. Although the reduction in democracy is focused in the justice system, in the judicial branch, all three other branches of the government cooperated to make it happen. Overall, the executive, judicial, and legislative branches of the government are much safer from the will of the people, and all three branches have taken that power from the citizens and converted into their own power.
Grand juries were part of the original checks and balances system envisioned in the U.S. Constitution, but they are no more.
It is sometimes said that we have “rule of law”, rather than “rule of men”. By this, it is usually meant that people are treated according to the law, rather than at the whims of others. However, when the ultimate decision about which laws to enforce and against whom to enforce them is left to individuals, and not to the people, then we do, indeed, have the rule of men. While a prosecutor might be powerful in the sense that he can bring the weight of the justice system down on wrongdoers, his greatest strength is to be able to refrain illegitimately from enforcing the law against those whom he favours. If you’ve got a prosecutor (or judge) on your side, then you are not subject to the same law as are others. As shown above, this ultimately comes from the corruption of making the prosecutor not accountable to the people: he is not ruled over by others, as a democracy requires.
Sometimes we hear those who have extra power or who get special treatment, or who decide how the system works, described as the “elite”, the “one percent”, the “aristocracy”, the “oligarchy”, or as other terms. However, the system is more complex than that, as this series U.S. vs. Democracy will show. In a political context, except when speaking more specifically, I prefer to call these people “privileged”. The word, privilege, comes from a Latin term which means “private law”. Cops are often privileged, just as are the wealthy, and other groups. The heart of their privilege is that they have “private law”: they are not subject to the same rules as the rest of us. They can do things which we can’t do. This situation is fundamentally anti-democratic.
The corruption is slight, or it might even be non-existent. However, when almost every part of the system is even slightly corrupted, the total effect can be, as it often is in our government, severe and devastating. The ultimate antidote is democracy.
(Subsequent issues in this series will describe additional anti-democratic aspect of the judicial system, before continuing to other parts of our government.)
Note 1: What is now Louisiana was settled by France and Spain, which did not have the county system. Louisiana (and, formerly, South Carolina as well) has parishes instead of counties. Alaska also has a different organization, being divided into boroughs.
Note 2: Although it is a coincidence, it is ironic that the Hebrew word satan (שָּׂטָן), from which we get the name Satan, has two common translations into English: adversary, and prosecutor. Prosecutors, in capturing grand juries, are adversaries of democracy.
Edit History:
Thursday 2017.05.11 — Initial release.
Comments, criticism, and suggestions are welcome. Please direct them to buffalo-bull-editor@tatanka.com. If your remarks pertain to a specific issue or article, please identify the issue or article in your e-mail. We reserve the right to publish comments unless you explicitly request otherwise; they may be edited for spelling, grammar, or length. You will not be identified unless you say it is OK; your e-mail address will not be published unless you say that is OK, too.
The Buffalo Bull is a free e-mail newsletter published by Michael Marking. For subscription information, and for current and past issues, please visit http://www.tatanka.com/buffalo_bull/index.html
Copyright 2017 Michael Marking. All rights reserved, including moral rights.
This newsletter may be redistributed freely, in paper or electronic form, but only if distribution is done without changes, abridgement, or amendment. Specifically, this work is licensed under the Creative Commons Attribution-NoDerivs 3.0 Unported License. Proper attribution is made by leaving these end notices attached to the newsletter. To view a copy of this license, visit http://creativecommons.org/licenses/by-nd/3.0/ or send a letter to Creative Commons, 444 Castro Street, Suite 900, Mountain View, California, 94041, USA.