At 11:19 PM 11/13/96 -0500, Phillip M. Hallam-Baker wrote:
Jim Bell writes
There are, I think, two reasons that the equity court system (and their sleazy lawyers, both on and off the bench) are worried. First, what they have now is, effectively, a monopoly on "justice." The re-emergence of commonlaw courts would provide competition that has been long gone. Think of it like any monopoly that suddenly has to accept competition.
A bunch of self selected whackos running a kangeroo court does not mark a return to "commonlaw courts".
As for the "self-selected" issue: In almost all areas of human endeavor, things are (often? usually?) done by people who are "self-selected." I suggest that there is simply no reason that even "self-selected" courts cannot work. And for the "wacko" part: To a great extent, the people who would tend to oppose the re-emergence of commonlaw courts are those who are the ones who most benefit from the monopoly (oligopoly?) on justice which has developed over many decades. Judges, prosecutors, and lawyers of course profit directly. But psychologically, people wedded to a statist philosophy would have their precious worlds overturned. They're not happy. Also: The reason for an (apparent, implied) association with extremism is, simply, because the system has been suppressed (actively or passively) for so long that it tends to be the "extremists" which most notice the possibilities of a commonlaw court. This is quite analogous with the fact that the label "extremists" was almost certainly applied to the revolutionaries who proposed the American Revolution, the abolition of slavery, giving the vote to women, pushed civil rights in the US during the 50's and 60's, etc. By definition, people proposing a change in the status quo are "extremists," if they weren't they wouldn't be proposing a change, huh?!? And this goes back to the "self-selected" issue above as well. While the main work of commonlaw courts, today, is the reversal of the abuses of the equity court system, as the commonlaw courts become once again well accepted they will simply not need to stand out and look "extreme" as they may look to you, today.
Such courts do not exist within the constitution of the United States. Unlike the UK the US has a written constitution, if it isn't written down on paper then it does not exist.
You're obviously confused. 1. Commonlaw courts predate the US Constitution by a few hundred years. The former does not depend on the latter for authority or credibility. 2. The US Constitution is, at most, a statement of the authority of the FEDERAL portion of government. It is, arguably, only a statement of the powers granted to the Feds by the people; it is most certainly not intended to be a statement of every right retained by the people. (In fact, the 9th and 10th amendments make it clear that non-enumerated rights exist.) No authority over commonlaw courts (such as appointing judges) was given to the Feds by the people. 3. The Federal Constitution only references states, and I don't think it references state Constitutions at all. Yet clearly state Constitutions exist. Clearly, it isn't correct to say "if it isn't written down on paper then it does not exist." For example, people are not "written down on paper," yet they exist...
The structure of the courts,
You should have said, SOME courts. Not "the courts," implying ALL the courts. Notice that the US Federal Constitution (at least, to my recollection) does not describe or regulate state courts, or for that matter local courts. Just Federal, which is as was intended. Given this, there is no reason to assume that commonlaw courts need to be described, authorized, or regulated by the Feds. If your argument is, "if it isn't defined by the Federal Constitution it doesn't exist," then you'd just destroyed your own argument.
the legislature and such was the principle task of the constitution, that is why the bill of rights is a set of ammendments - they were an afterthought.
This has absolutely nothing to do with the commonlaw court system. Jim Bell jimbell@pacifier.com