Establishing Just Law–We haven’t got it right yet. This essay contains Principle 6 on establishing a just system of laws and a means for prosecuting criminal acts.
This is a continuation of the listing and ellucidation of the founding principles for an ideal government. This is an essential exercise for Latter-Day Saints to know how a government of liberty should be structured in order to safeguard freedom and individual rights against the judicial and legislative attacks that have eroded our inspired Constitution. This essay contains Principle 6 on establishing a just system of laws and a means for prosecuting criminal acts. If you haven’t read Parts 1-IV on defining other fundamental rights, see the index here: http://www.ldsfreemen.com/author/joelskousen/
PRINCIPLE #6:
EQUAL JUSTICE (not results) SHALL BE GUARANTEED FOR ALL CITIZENS UNDER CONSTITUTIONAL LAW THAT STRICTLY LIMITS THE SCOPE OF ALL LAWMAKING POWER TO THE DEFENSE OF FUNDAMENTAL RIGHTS.
JUSTICE FOR ALL UNDER CONSTITUTIONAL LAW:
The purpose of law is to define, codify and specify penalties for harmful behavior, and to do so in a uniform manner for all persons so that arbitrary and prejudicial behavior is removed from governing processes.. The purpose of a constitution is to set up the structure of government institutions and define and limit lawmaking and law enforcement power. There are good constitutions and bad constitutions. The best type is the one which sets up a structure that allows for speedy trials, judgments and penalties for legal infractions to be determined at the local level, and at the same time centralizes the powers of the federated local governments in national legislative, executive and judicial institutions. These institutions provide a basic and uniform body of law applicable to all citizens, a system of federal and appellate courts, a Constitutional Supreme court for ruling on the validity of laws, and an executive branch for enforcement of these laws. In addition, the national government has uniform powers of dealing with foreign policy matters. In this manner, there is a uniform body of basic law which all citizens everywhere can depend upon to defend fundamental rights uniformly, and, in addition, a fast reacting national defense force is provided so that the nation does not fall victim to an aggressor while internal debate is on going.
PRINCIPLES of Constitutional law:
all government functions involved in legislating, administering, interpreting and defending laws which require uniform application and interpretation to all citizens, should be handled at the national level.
Determination of applicability of law to specific circumstances, trial procedures, and enforcement of the law should occur at the lowest level of government having jurisdiction in the matter.
Legislative, Executive, and Judicial powers of the National government should reside in separate institutions with appropriate cross-checks between these institutions to prevent any institution from infringing upon the fundamental rights of citizens.
The fundamental rights of man are only the basic elements of freedom. The implementation of freedom, where interaction with others is involved, requires a mutual compact or agreement on the rules of government. Unfortunately, in the exercise of their fundamental rights, men may ignorantly form a constitution where they give away all of their rights to government authorities under the enticement of the supposed benefits of state security and control. Thus, the illumination of fundamental rights in no way ensures the outcome of a great constitution. For this reason, principle #6 is a statement of the proper GUIDELINES for a constitution which guarantees justice for all and the preservation of fundamental rights. The following principles of justice are essential for a government charged with the defense of liberty:
UNIFORMITY AND PREEMINENCE OF BASIC CONSTITUTIONAL LAW EXCEPT WHERE MEN UNANIMOUSLY AGREE TO ABIDE BY MORE RESTRICTIVE COVENANTS:
All men are entitled to the uniform application of constitutionally limited law, where similar circumstances exist pertaining to such law, and where men have not voluntarily agreed to abide by more stringent covenants.
Simply put, this means that the Federal government shall defend basic fundamental rights everywhere within the nation, but that such defense constitutes a minimum and maximum standard for majoritarian government, but not a maximum rule of law for covenant enclaves within the federal system. Present “public policy” rules which prohibit men from making private contracts constitute a violation of federal lawmaking powers and would not be legal under this doctrine of law.
Such application of the law shall be exercised without regard to class distinctions except where such the law is specifically addresses the special circumstances of a particular class. This means that matters of race, creed, and sex, for example, could be taken into consideration in the adjudication of law, but only if such class distinctions were directly relevant to the circumstances of the case, and specifically limited in application. Class distinctions, though a private fundamental right, are prohibited in all criminal cases where the nature of the crime is no matter who commits it. Class distinctions could not be used arbitrarily to declare a person guilty because he is a member of that group classification. Neither can class distinctions be used to exempt a group from a crime (such as youth offenders) when the crime meets the same standards of violence and vicious intent. In contrast gender differences could cause types of sexual offenses to be treated differently.
PRESUMPTION OF INNOCENCE
All men should be deemed innocent until proven guilty by the verification of evidence and testimony.
This is the basic law of liberty and should be applied to both criminal and civil cases. However, this doctrine should not be used as a means to justify release of dangerous prisoners pending trial. It simply means that there must be presented sufficient and credible evidence of a crime to at least justify the internment. Habeas Corpus (a legal demand by representatives of the accused to bring forth the accused before a tribunal for review of the charges) is an essential right necessary to preclude indefinite and arbitrary imprisonment without charges being filed or brought to trial.
A police officer’s sworn testimony of his personal knowledge of a violent crime or the sworn testimony of an eye witnesses should be sufficient preliminary evidence to establish internment. In order to avoid abuse, this concept has to be coupled with another principle making government officials personally responsible for false statements.
CRIMINAL PROSECUTION SHOULD ONLY BE INITIATED WITH THE CONSENT OF A CITIZEN GRAND JURY:
By placing a jury of the people at the beginning of criminal proceedings and at the end, for the final determination of guilt, we allow the citizens themselves to determine the appropriateness of both the law and the facts surrounding the case. If either are deemed to be improperly applied or unjust, no prosecution will commence. This procedure keeps a tyrannical official from doing damage to others for unjust reasons, which may involve the excessively strict application of the law in unwarranted circumstances. In order to be effective, grand juries should be completely independent and not subject to intimidation by persecution or judges. Jurors should have the power to make charges against judges or prosecutors who purposefully withhold evidence or manipulate the jury by legal threats.
DETERMINATION OF GUILT BY DUE PROCESS OF CONSTITUTIONAL LAW WITH THE BURDEN OF PROOF UPON THE ACCUSER
Due process means that the process of guilt determination should be uniform for all circumstances and codified in a manner not subject to arbitrary or retroactive changes. In this manner, the government cannot pass a law to prosecute people for something which is presently legal. The new law can only have affect on actions that take place after enactment.
The burden of proof must always be on the accuser. This doctrine would also apply to civil cases and would invalidate large portions of the tax code where the IRS is given arbitrary and unconstitutional powers to simply declare a person’s presumed income, assess the tax and a penalty, and then make the accused prove that the IRS is wrong.
IN ANY COURT PROCEEDINGS, JUDGES SHALL BEAR THE ULTIMATE LIABILITY TO ENSURE THAT THE FUNDAMENTAL RIGHTS OF ALL PARTIES TO CRIMINAL AND CIVIL PROSECUTIONS ARE PROTECTED.
This doctrine avoids the expensive and unjust procedure where the taxpayer is forced to pay for an attorney for the accused. This is not to say that lawyers would not or could not be used–only that the highest and most competent officer of the court would be charged with the protection of each party’s rights, regardless of the financial condition of either party, rich or poor. Judges would be liable for showing any bias or allowing any arbitrary or one-sided procedure in court which unduly placed one party at an unjust disadvantage.
Judges are and always have been required to be impartial. Under this system, with both sides watching carefully for any favoritism, there would exist maximum incentives to remain fair. Judges have also been selected (presumably) because of their superior knowledge and long experience with the law. There is no valid reason why they ought not to exercise that impartiality and experience in ensuring the rights of both parties regardless of the presence of an attorney. This would tend to decrease the growing number of suits brought by defendants, claiming they were represented by an incompetent lawyer. While the possibility exists of incompetent judges, being far fewer in number than lawyers, they would be more noticeable and more quickly eliminated by this procedure.
THE ACCUSED IN ANY JUDICIAL PROCEEDINGS SHOULD NOT BE REQUIRED TO GIVE TESTIMONY AGAINST HIMSELF, NOR BE DENIED LEGAL COUNSEL AT HIS OWN EXPENSE.
The right against self-incrimination should be held inviolate throughout the full range of judicial proceedings, especially where life or property may be in jeopardy. The right to legal counsel at one’s own expense is also essential even though, in this system, the judge is ultimately liable for the protection of both party’s rights.
THE ACCUSED MAY DEMAND EITHER A TRIAL BY A JURY OF HIS PEERS, OR A TRIAL BY A JUDGE. JURIES AND JUDGES SHALL HAVE THE POWER TO JUDGE THE VALIDITY OF THE LAW AS WELL AS MATTERS OF FACT.
It is absolutely essential that judges and juries be able to judge the validity of the law–both as to its constitutionality and its applicability to the case at hand. While juries have traditionally been viewed as the ultimate safeguard against government abuse, I believe there is sufficient potential of public prejudice and ignorance that a person ought to be able to avoid a jury trial if he feels he may not gain a fair trial. The possibility of a criminal using this procedure to “shop” for a sympathetic judge is reduced by the liability the judge would carry to be impartial. The prosecuting attorney would challenge any attempt by the judge to distort the law in favor of the criminal. While a judge may declare a law void or inapplicable in a particular case, his justification must be on a solid ground of principles in order to avoid prosecution for breaking his oath of Constitutional allegiance and impartiality. Jury nullification would only apply to the case at hand, and to no others.
PUNISHMENT AND RETRIBUTION IN PROPORTION TO THE SERIOUSNESS OF THE CRIME
All laws governing the protection of the fundamental and contractual rights of the citizens should have a punishment affixed that is proportional to the seriousness of the act, taking into consideration the actual harm done and the restitution, if any, afforded to the victim.
The basic principles of effective punishment dictates that punishments should be sufficiently harsh and final so as to deter nearly all crime. A deterrent only stops criminal activity effectively when it is viewed as sufficiently unpleasant that potential criminals avoid even the approach to a crime. Thus criminals would cease to test the legal limits of permissive action and stay well clear of any offense.
The death penalty should be employed for serious and malicious crimes where permanent damage occurs that cannot be remedied by restitution. In my opinion, it should also be employed for all types of violent crimes after the third offense. There is no principle of justice that demands that taxpaying members of society have an obligation to support the lives of chronic criminals in prisons–especially with the luxuries now demanded by the courts.
If the death penalty does anything, it is the ultimate deterrent to a criminal’s own future propensity to commit a crime. The one who dies will never kill again.
The multiple offending criminal likewise has demonstrated his unwillingness to respect the rights of others and should die or be exiled from the country if another country will voluntarily accept him. Those that violently deny to others their rights, including life, liberty and property can no longer claim those same rights. He or she is only left with the right to a fair and speedy trial. Even ownership rights should be taken away, to the extent necessary to pay any victims. A proper constitutional government has the right to take life as an extension of the fundamental right of self-defense, in accordance with the seriousness of the crime.
It is, however, a matter of legitimate disagreement among principled people as to what punishments should apply to various crimes. My opinions are a derivation of the principle of proper deterrence.
While the death penalty is more properly justified when there is clear evidence that a person is STILL a threat to other’s rights, it is less so once the crime is over and the criminal shows no more disposition to evil. At this point we must recur to the doctrine of restitution and retribution, by prior agreement through the citizen covenant.
The doctrine of retribution states that each crime must have a punishment affixed, solely in response to the evils of the act–regardless of repentance of the criminal (obviously after the fact). Otherwise, a person would easily decide upon a crime, knowing that he could escape punishment by feigning sorrow for the act. Retributive punishment must be carried out so that every violation of rights has a just consequence–even if restitution is made. For some, crime would be very tempting if the only possible consequence was to simply repay–if caught.
Causing a criminal to repay 3 or 4 times the value is a form of punitive retribution, as well as restitution. While punitive punishment does not undue the act any more than sorrow, it does serve as a better deterrent than simple restitution.
However, as indicated earlier, punitive punishments should be limited to criminal cases. I am against all use of punitive punishments in civil tort cases unless malicious intent can be proven. The awarding of large punitive judgments in cases of injury to people for defects in products that not done with bad intent is ludicrous and puts a chilling effect on all new product development. I would, in general, be opposed to all damage claims to accidents where no direct fault of another is capable of being determined.
PRIOR RESTRAINT ONLY UPON IMMINENT THREAT TO LIFE OR LIBERTY
Laws regulating or restricting individual action prior to any harm occurring should be allowed only in exceptional conditions where the threat to the life or liberty of someone other than the actor is imminent and extremely dangerous. Otherwise prosecution and punishment after the crime is preferred in order to secure liberty against progressive intrusion by regulation.
This doctrine is intended to make void almost all regulations of conduct prior to an offense, except those that meet the “imminently and extremely dangerous to others” test. As previously stated, vigorous prosecution of the offense after the fact, coupled with high penalties, can have a high deterrent effect that can accomplish the original aims of regulation–but without dangerous government powers.
THE INTENT OF THE LAWMAKER SHOULD ALWAYS BE ACCORDED PRIMACY IN THE INTERPRETATION OF LAW
Documented statements of intent produced by the lawmakers should be considered concurrently in the consent process for law, as well as in subsequent interpretations by judicial authority.
ALL LAWS ENACTED IN VIOLATION OF CONSTITUTIONAL RESTRAINTS OR IN VIOLATION OF THE FUNDAMENTAL RIGHTS OF MEN ARE NULL AND VOID, AND UNENFORCEABLE.
The burden of proof is upon government to establish the validity of law in any challenge to its constitutionality. No enforcement can proceed prior to a ruling on its constitutionality. This does not preclude additional challenges by individual, who may disagree with the court’s opinion.
As previously covered, this is a restatement of the doctrine of nullification–the power to disregard unjust laws. The presence of such a doctrine is to maintain an atmosphere of respect only for JUST law–not all law, which can often be tyrannical.
