I previously wrote a post titled “Judge Not,” so I couldn’t go with that again.  Then it occurred to me that the second part of Matthew 7:1 from the book read by almost as many Christians as non-Christians fits the current post better anyway.

Mike Cernovich, over at Crime & Federalism, has been doing a bit of writing recently about — well, about social problems which are not necessarily — at least not straightforwardly — related to the law.  At first, I was disinclined to read, because the “law dog” in me was hungry.  I wanted to read something specifically discussing something interesting, but related more directly to the law.  But Mike is such an interesting writer that I kept on reading article after article.  (I periodically play “catch up” with the blogs, like his, that I like to read, but just can’t get to every day.)

Mike’s articles like “American Rage” and “Is Omar S. Thornton a Black Joe Stacks?” are thought-provoking looks at racial and economic disparity within the United States.  By the time I reached “Links: The United States is a Farce Edition” and “Illegal Immigration: Self-Interest Disguised as Morality,” I knew I was going to write this article.

The light went off because I’ve been thinking for some weeks about something specific a judge did in one of my cases.  Something with which I’ve been struggling to come to grips.  Something that demonstrated a clear-cut bias.  You know, like having an ex parte discussion with the victim, who just happened to be a law enforcement officer, and then trying to call me to task for what the officer told him.

And then there was an article about gay marriage and the utter destruction that Vaughn R. Walker has allegedly brought down on the heads of all who value marriage and rational societies by “de-legitimizing” marriage.

Now there is the new debate over illegal immigration and the desire to “fix” the problem by fucking up our Constitution.

My brain sometimes latches onto what I call “an inchoate idea” — something I realize I’m thinking about, but cannot quite put into words — and then it just “stews.”  While it’s stewing, anything else I read seems to be read on multiple levels.  One is the level of simply understanding what was written.  Another is me trying to think what I think about it.  But when something significant is “stewing” inside me, as it has been, then everything I read is somehow savored in a slightly different way than it might be otherwise.

It’s kind of like adding a “new” spice to a sauce while cooking.

And just like that, I don’t always know what’s going to come out of it.

What I think I’m getting right now is the flavor of recognition.  I know now why all the above articles — and what I thought previously was inordinate dwelling over a judge’s mistake — seem like they go together for me.

It’s the subtle interplay of a lack of understanding on the part of the judiciary and a lack of education on the part of “the People.”

Both are part of a recipe for disaster.

In McIlheran, aside from the obvious ignorance and bigotry, I see a complete lack of basic knowledge regarding the underpinnings of these United States.  McIlheran would, no doubt, think I have this wrong.  From what I can tell, again aside from the obvious ignorance and bigotry, he mistakenly thinks that marriage “always and everywhere” has necessarily been “between complementary sexes: not identical ones.”

Ask any classically-trained anthropologist how true that is.  Or ask a historian. Same-sex marriages have a long history. Even in “Western Civilization.” I’m not going to veer into a detailed disquisition on that.  Suffice it to say if you seek, you shall find. Same-sex unions are not new; neither are same-sex marriages.

And, in all frankness, it would not matter if McIlheran were right as concerns whether marriages have always involved one man and one woman in the past.  He’s not right.  But it doesn’t matter.  Because our United States leaves open the possibility for free people to decide to change that by marrying whomever they wish to marry, even if that person happens to be of the same gender.

What I want to focus attention on, though, is not the issue of same-sex marriage.  I want to talk about what kind of country we have here.  How does the United States work?  Or, rather, more specifically, how does law and the legal system work in the United States?  How come, for example, “the will of the voters” can be “thwarted” by one judge?  One! And why is an allegedly gay judge allowed to make such a critical ruling on whether or not gays and lesbians can legally marry people of the same gender as them?

The first thing any intelligent person should be able to put to rest is the question of whether or not Judge Vaughn Walker’s being gay matters. “He should have recused himself from this case since he is a practicing homosexual,” some have said.  If this actually is true, then why is the obverse not true?  “He should have recused himself from this case since he is a practicing heterosexual,” makes as much sense.

I mean, if someone’s sexuality is going to prejudice him favorably toward this issue, why would it matter whether he was gay or straight?  Is there not as much danger of a heterosexual judge refusing to correctly analyze and adhere to precedent as there is for a homosexual judge?  Do heterosexuals automagically do the honorable thing vis-á-vis homosexuals just because they’re heterosexual?  Or do we have to have a pre-trial, wherein the judge is analyzed by psychotherapists and determined not to harbor any ill feelings towards homosexuals before being allowed to judge them?  Should African-Americans only be judged by non-African-American judges?  Is it good enough for a white judge to sit in judgment of a white person accused of a crime, so long as one of them is Irish and the other is Polish, German, or Scandinavian?

This idea is ludicrous.  But I understand how it is that some people give it credence.  The fault lies with our judges.  Today, increasingly, it really does matter “who the judge is.”  The judge whose behavior has bothered me for so long is proof of that, if you ask me, as are numerous others.

Hell, judges actually promote this idea.  “I am a Law and Order Judge!,” they proclaim when they run for office.  By this they mean that they are pro-prosecution.  In fact, the posters with which they litter our towns will often proclaim “Former Prosecutor,” or just “Prosecutor,” in words nearly as large as their own names.  They’ll also trumpet that law enforcement supports them.  You absolutely will never hear a candidate for judgeship brag about having been a Vigorous Defender of the Accused.  You won’t hear that law enforcement hates them for forcing them to obey the Fourth, Fifth, and Sixth Amendments.  Not going to happen.

Nor do they actually state that they will follow the law without regard to either their own personal predilections, or the nature of the accused individual.  After all, particularly as pertains to the latter point, this could make it appear that they’re willing to coddle criminals.

If judges actually followed the law, regardless of their own personal bent, what they said while campaigning would not matter.  They don’t, though.  And their campaign statements are intended to communicate that point to us.

Thus, judges having taught and promoted to us this truth about how the system works have earned our distrust, our enmity, regarding the way they rule.

It is unfortunate that even the exceptions — the judges who do not allow their own preferences to control — get swept up in this sentiment, because there are so many judges who indulge their preferences rather than follow the law.  But you can’t have the majority of judges brag to the people at election time that they’re the type of person who will slant the rules towards the prosecution and then act all surprised when the people get upset that not all judges will slant the rules the way the people want.

I’m not saying that a judge’s personal preferences should never matter.  To some extent, it is unrealistic to assume that a judge’s personal preferences will not have an impact on how he judges.  Human beings are not capable of completely divorcing their own values from the judgments they ultimately make.  Judges, however, should try harder.  And the pro-prosecution bent of contemporary judges is proof that they do not.

Wha–?  Huh?  Why do you say that a pro-prosecution bent proves judges do not try to divorce their own values from their judgments?  The answer is simple: the laws of our land were originally slanted in favor of accused people.  On purpose.  Our Founders knew that the power and resources of an individual accused person are no match for the power and resources of the government.  This is true even in this time of budgetary constraints.

That old saw about everyone being entitled to a fair trial?  That’s everyone accused of a crime. There’s no constitutional guarantee for the government to get a fair trial.  You want to talk about rights that aren’t found in the Constitution?  There’s a right that’s not found in the Constitution!

Nor should there be.

The reason for this is that being accused of a crime and being prosecuted by the government comes with some serious risks for innocent citizens.  The mere fact that someone has been arrested works against them.  Do you really think the legal fiction of “presumed innocent” applies in our courtrooms?  You haven’t been called for jury duty, then.  You haven’t sat in a courtroom as a lawyer and tried to figure out how to deal with potential jurors who sometimes honestly state, “Well, he was arrested.  He must’ve done something.  He might not have done exactly what he’s accused of, but he did something or he wouldn’t be here.”

Or dishonestly refuse to state it, though they think it.

At any rate, that’s a presumption of guilt.  At least as to “something.”  It is not a presumption of innocence.

Over hundreds of years — with respect to some issues, longer than that — legal experts have learned that the best way to ensure that innocent people aren’t convicted is to tip the scales in their favor.  It’s supposed to be hard to convict someone.

But it’s not.  With all due respect to the prosecutors I know who are good attorneys, you do not have to be a good attorney to win cases if you are a prosecutor.  And there are a number of prosecutors who are most decidedly not good attorneys who prove this every day.  In some cases, you merely need to make the accusation.  (Sex crimes involving children are the most obvious place this is true, but it’s true in many other cases as well.)  Good defense attorneys can win cases.  But a prosecutor has to really screw up for a bad defense attorney to win.

That’s why our Founders, who knew they were establishing a government of laws, and not of men, tried so hard to hamstring the government, to make sure that trials were unfair — to the government.

Governments are typically more powerful than people.  No matter how hard you try to limit them, this is just how it is.  This makes governments potentially dangerous to ordinary people.  Life, liberty, and the pursuit of happiness is not something we can expect to enjoy in the face of an unrestrained government.

This is where the other part of the misunderstanding I wish to talk about comes from.

I have noted that our system was deliberately slanted in favor of accused persons.  This is because, as I mentioned above, it was slanted against the government.  Restrictions were placed on what government could do.

But this is true not just in the arena of criminal defense; it is true with respect to all activities of the government.  Our government was deliberately limited so as to prevent it from trampling over us, whether it was in a criminal trial, or any other area of our lives.

Now, in the United States of America, it has long been believed that the government is a government “of the people, by the people, for the people.”  This is partly true.  This is how it was intended.  We are the government, in theory.  We are in control.

In California — as well as some other states — this form of government has found extreme expression in the Initiative Process.  One or more of “we, the People,” can propose a new law.  If we get enough other people to think it’s a good law, or at least sounds good enough, then “the government” will put it up for a vote by the rest of us People.  And if it passes, it becomes the law that theoretically applies to everyone else, even those who didn’t vote for it.  Even if almost half of us did not vote for it.  It will still apply to all of us.

In fact, it could be a law that only applies to certain ones of us, like gays and lesbians.  Every single gay and lesbian person in our state could vote for, or against, that law, but still lose.  So a law could be passed that only affected every single gay and lesbian.  Every single gay and lesbian could vote against that law.  But it could still pass.

What a great way to oppress people we don’t like.

But the people who founded this United States of America knew that this could happen.  And they didn’t think that was fair.  So when they created the United States of America, they deliberately gave it only certain powers.  The United States of America — the government — we, the People — could only do certain things.  Our collective ability to pass laws only goes so far, because our power only goes so far.  There are limitations.  This is what is meant by “a limited form of government.”

The United States Constitution, which constituted, or created, our nation, is all about limiting government.  Certain powers are given to the government to allow it to do what it necessary to protect our freedoms — to ensure for each of us life, liberty, and the pursuit of happiness as we see fit with minimal necessary interference — and no more.

Fears that limiting the power of government — man, were those guys prescient! — would not be enough caused certain of the Founders to insist upon a Bill of Rights.  This was done not because we needed to know what rights we had.  It was already believed that all of us were created equal and that all of us equally held unalienable rights — rights that no one, not even other voters — could trample.  These rights included, among others, the (again) unalienable rights to Life, Liberty, and the Pursuit of Happiness.

Which, I guess, would include marriage which, for awhile, for many people, brings happiness.  Or so they say.  (In my own life, this appears to be true, but, hey, who am I to speak for everyone else?)

And that brings us back to judges.

In our United States of America, it is judges who interpret the Constitution.  They, as Chief Justice Evan Hughes once put it, are “the safeguard of our liberty and of our property under the Constitution.”  Benjamin Franklin and Thomas Jefferson would have gone farther, downplaying the protection of property; replacing that idea with happiness.

It is imperative, judges, that you remember that our United States were founded on the principle that governmental power is to be mistrusted; it is not to be favored; it is to be limited, by you, judges, both inside and outside the courtroom.  Our Constitution was meant to ensure that.  And you are meant to uphold our Constitution.

“For you will be treated as you treat others.  The standard you use in judging is the standard by which you will be judged.” (Matthew 7:2.)