______________________________________________________
Los
Angeles, California September 9,
2008
______________________________________________________
The Battle
Lines are Drawn: J.A.I.L.
versus The Foreign Power
A Power Foreign to Our
Constitution
Mission
Statement
JNJ Library
ederal
J.A.I.L.
FAQs
What?MeWarden?
The Preamble of J.A.I.L.
Revisited
by Barbie, ACIC, National
J.A.I.L.
v[email protected]
Preamble. We,
the People of ____________________, find that the doctrine of judicial immunity
has been greatly abused; that when judges abuse their power, the People are
obliged - it is their duty - to correct that injury, for the benefit of
themselves and their posterity. In order to ensure judicial accountability and
domestic tranquility, we hereby amend our Constitution by adding the following
provisions as Sec. ____ to Article ___, which shall be known as "The
J.A.I.L.
Amendment."
[2/7/07 version]
Black's Law Dictionary, Revised Fourth Edition, defines
"Preamble" as:
A clause at the beginning of a constitution or statute
explanatory of the reasons
for its
enactment and the objects sought to
be accomplished. [citations
omitted]
The reasons for J.A.I.L.'s enactment and the
objects sought to be accomplished:
Due to the
horrendous amount of swill spewed out by the foreign power as propaganda against
The J.A.I.L. Amendment (both the initiative and legislative forms), we find it
necessary to revisit the Preamble to officially explain the reasons for J.A.I.L.
and its objectives in the hopes of again showing the People the truth
about J.A.I.L.
Note that
the Federal J.A.I.L. Bill is slightly different. The following explanation
applies to the state measures, mainly to the initiative.
1. "We, the People of [whatever state
applies]..."
Regardless
of who actually authored the measure, whether a body politic or an individual,
it is written on behalf of the People of the applicable state. There are reports
that the Preamble of the 1787 Constitution for the united States was not written
on behalf of the People, i.e., the common man, but on behalf of the plutocracy
who framed said Constitution and signed it; that it doesn't apply to the People
because they weren't a party to it. We take exception to that premise, since the
Constitution is, by nature, a document written TO a government, FROM the
governed. Therefore, the People being the governed, the Constitution, by definition, is necessarily written on
behalf of the People to the government they have instituted. As defined by
Black's, a constitution is "a charter of government deriving its whole authority
from the governed."
J.A.I.L. relies upon the Declaration of Independence (DOI) as its
foundation. See "To Enforce the Constitution," http://www.jail4judges.org/JNJ_Library/2004/2004-10-23.html. "The Declaration of Independence ... describes
government as the body of men (mankind) created by the governed (The People) for
the purpose of protecting the rights of The People-- thusly:
...That to secure these rights, governments
are instituted among men, deriving their just powers from the consent of the
governed..." Id. Not only does "We, the People" refer
to the governed, as opposed to the government, no matter who wrote the words,
the Constitution IS "the consent of the governed." See "The Consent of
the Governed is the U.S. Constitution" http://www.jail4judges.org/JNJ_Library/2007/2007-01-30B.html. "America's government institutions derive their
'just powers' from the
Constitution, and the Constitution derives its authority from the consent of the people who have
ordained and established it. Because consent is the only legitimate
source of political power, government must rule according to the rule of law. --Ronald J.
Pestritto, Ph.D" Id.
The
J.A.I.L. Amendment is likewise a People's measure, as an amendment to the
consent of the governed for the purpose of enforcing the Constitution;
To Enforce the Constitution (supra). As Dr. Pestritto says above, "consent is the only legitimate source of political power,"
therefore only the People are authorized to determine the meaning and purpose of
J.A.I.L. Government does not have such authority. Yet, as we have learned from
the South Dakota election fiasco, there is a powerful secret cabal disguising itself as "government" that has
fraudulently overcome the People. For
particulars, see www.sd-jail4judges.org. See also
"What did the Show-Election in South Dakota REALLY Show?" http://www.jail4judges.org/JNJ_Library/2007/2007-01-11.html.
The People must know and understand that the opposition to the J.A.I.L.
Amendment is made up of this secret cabal that has usurped government. We refer
to that regime as the "Foreign Power" since it is a power foreign to our
Constitution, and therefore foreign to J.A.I.L.
2.
"...find that the doctrine of judicial immunity has been greatly
abused."
Next we
see that the People are addressing the abuse of the doctrine of judicial
immunity --not judicial immunity itself, but its abuse. The People have
actually found that such abuse of the judge-made doctrine of judicial immunity
has become a way of judicial practice, and a roadblock to redress of
grievances:
"In the American judicial
system, few more serious threats to individual liberty can be imagined than a corrupt judge. Clothed with the power of the state and authorized to pass judgment on the
most basic aspects of
everyday life, a judge can deprive citizens of liberty and property in complete disregard of the Constitution. The
injuries inflicted may
be severe and enduring. Yet the recent expansion of a judge-made exception to the landmark Civil
Rights Act of 1871, chief vehicle for
redress of civil rights violations, has rendered state judges immune from suit even for the most
bizarre, corrupt, or abusive of
judicial acts. In the last decade this 'doctrine of judicial
immunity' has led to
a disturbing series of legal precedents that
effectively deny citizens any
redress for injuries, embarrassment, and unjust imprisonment caused by errant judges."
In no other area of American life are
public officials granted license to engage in the abuse of
power:
"Under the current doctrine, any act performed in a 'judicial capacity' is shielded from
suit. Thus, the simple expedient of disguising a corrupt act as a routine judicial function guarantees immunity from suit. In no other area of American life are public
officials
granted such license to engage in abuse
of power and intentional disregard of
the Constitution and laws they are sworn to defend." Id.
That is why the
spokesperson for the judiciary, Sandra Day O'Connor, and others of her ilk, as a
way of disguising their corrupt acts, continually say that J.A.I.L. is out to
"punish judges" for their routine judicial function of making decisions.
They know it isn't true, but it's
expedient!
The Supreme Court of the
United States (SCOTUS) has created the climate for this abuse of judicial
power:
"Not only did the majority
offer a complete distortion of congressional intent but it also decided that the
phrase '[e]very person.. shall be liable' meant every person except judges. Yet
Congress clearly had intended to
remedy a serious injustice being inflicted on innocent people by corrupt local officials,
including judges. In effect, the Supreme Court created a new rule of
statutory construction that judicial
immunity is to be favored over
congressional intent, and only express language in a statute will limit
the doctrine." Id.
If the
SCOTUS was actually a branch of government, would it be authorized to rule in
such a way that would allow a serious injustice to be inflicted on innocent
people by corrupt judges? Of course not! The Court clearly operates under a
jurisdiction foreign to (in blatant violation of) the
Constitution:
"Even 'grave procedural errors' do not deprive a judge of immunity, ruled the Court, because 'immunity attaches to any act
performed in a judicial capacity.' The Court noted that the judge had signed the
sterilization petition as a judge; and it dismissed objections that
failure to observe formalities
rendered the act nonjudicial. .... The effect was plain: under the doctrine of
judicial immunity, a victim can be forced to bear the full burden of a serious,
irreparable injury inflicted by a state-court judge in blatant violation of the
Constitution."
Id.
See "HOW THE JUDICIARY STOLE THE RIGHT TO PETITION - JOHN E.
WOLFGRAM"
http://www.liamsdad.org/court_case/civilrights/2007_06_12_documents/10_petition.pdf.
The Supreme
Court, by judicial fiat, actually
stole the entire Constitution and the ability of the People to exercise
their right of redress. That is not a government function. See
also
"The Case Made For J.A.I.L." 12/8/03 Based on "How The Judiciary Stole The Right
To Petition" Written by John E. Wolfgram, B.A., J.D., Constitution
Researcher
http://www.jail4judges.org/JNJ_Library/2003/2003-12-08.html. Wolfgram correctly attributes this
theft by the SCOTUS to its ruling on "judicial immunity":
"Immunity abridges the right to redress grievances with government. This aspect
demonstrates that sovereign immunity
is unconstitutional and irrational. The reason: The right to petition government for redress and governmental
immunity from redress, are direct contradictions. The former is our First
Amendment. The latter is the progressive result of Supreme Court
decisions." Wolfgram
(supra)
Wolfgram goes on to say:
"The Court has often acknowledged
that the alternative to judicial
process is force. Therefore, in so abridging the right of the people to obtain just redress
through the compulsory process of law, the judiciary is setting the people
up for violence against government by
refusing to hear their cries for justice. That is our government waging a war of oppression against its own
people." Id. "Government" does not wage war against the
People; rather than
government, it is a "jurisdiction foreign to our
Constitution" under color of government that is doing so.
3. "... that when judges abuse their power, the
People are obliged -it is their duty- to correct that injury, for the benefit of
themselves and their
posterity."
J.A.I.L. would take effect only "when
judges abuse their power," not otherwise; not when any decisions are made in the
normal course of proper judicial conduct, whether the decision is one we "like"
or not. J.A.I.L. does not act on decisions of a case. See "Decisions,
Decisions, Decisions!" http://www.jail4judges.org/JNJ_Library/2006/2006-11-22.html.
J.A.I.L. is not about matters we "like" or "don't like," but about compliance
with the Constitution, usually in matters of judicial procedure, whether we like
it or not.
Rather than judicial decisions the People "don't like,"
the issue is the People's right to judicial accountability the judiciary
"doesn't like":
"The issue is the
People's Right to hold government to constitutional restraint. If they cannot hold it to
account for such violations, then either the Constitution is not the supreme law, or
the supreme law does not bind government. [It doesn't bind the counterfeit
"government" -j4j] The supreme law of the land must be as
binding on government when government
doesn't like it as it is on citizens whether they like it or not. If either the people or government do
not like certain constitutional clauses the remedy is to amend the
Constitution, not 'interpret' it contrary to its express and contextual meanings.
The Constitution contains its own terms for amendment, and 'judicial fiat' is not among them." Wolfgram
(supra)
Every time you see or hear buzz words such as
"disgruntled litigants," "decisions they don't like," "unpopular
decisions," "official
rulings," "punishing judges," "intimidation," etc., you can know
that it is part of the propaganda the opposition is peddling to the People,
depending on the fact that the People are ignorant of the truth and haven't read
the J.A.I.L. Amendment itself, especially the Preamble. Clearly the Preamble
specifies when the People must act, to wit, "when judges abuse their power" --no
other time is indicated-- NOT when decisions are made!
Next, the Preamble specifies what the People must do
and why, "when judges abuse their power." Remember, the Preamble states that
J.A.I.L. concerns judges' abuse of judicial immunity. When that alleged abuse
occurs, the Preamble states that the People "are obliged to correct that injury"
because "it is their duty" to do so "for the benefit of themselves and
their posterity." Such action on the part of the People is NOT an option.
The Declaration of Independence, upon which J.A.I.L. is founded, puts it this
way:
"[W]hen a long
train of abuses and usurpations, pursuing invariably the same object evinces a
design to reduce them [the People] under
absolute despotism, it is their right, it is their duty, to throw off such
government [i.e., such pretended government],
and to provide new guards for their future
security."
Ask yourselves: Has a long train of abuses and
usurpations occurred? Is 200-plus years a long enough train of abuses? Has that
train of abuses/usurpations invariably pursued the same object, i.e., taking
control of the People by conquest rather than by consent? Has that train of
abuses evinced a design to reduce the People under absolute despotism?
See "Despotism
by Default," http://www.jail4judges.org/JNJ_Library/2007/2007-12-20.html.
If the answer to those questions is "YES," then it is
the right and duty of the People to terminate such despotic
regime that is pretending to be
"government," and to replace it with "new guards," i.e., a new
constitutional government that will respect and protect the People's rights, for
their future security, i.e., "for the benefit of themselves and their
posterity." If you see or hear anything other than that objective being claimed
as attributable to the J.A.I.L. Amendment, you can know that it, too, is
part of the propaganda swill being fed to the People, assuming that they haven't read and understood
the Preamble of J.A.I.L. and will remain ignorant of the truth.
When the People cannot
rely on the Supreme Court to take its proper role as government and be
the true guardian and protector of their rights in practice (not just in
theory); but instead rule to protect the judiciary at the cost
of protecting the People's
rights, even in direct violation of the People's Constitution to which they
take an oath, the People have the duty to correct that abuse of
power:
"The Stump test
for immunity affords no impediment to a corrupt judge. At best, it cloaks a
judge with immunity if he merely indicates his official status while performing
any act not expressly prohibited by law. At worst, it offers a road map for
corruption with total impunity. Those subject to a corrupt judge's power may
find little comfort in the Supreme Court's pronouncements that judicial immunity
in effect is a necessary evil, the price to be paid for a 'fearless' judiciary." Waters, (supra) http://www.cato.org/pubs/journal/cj7n2/cj7n2-13.pdf
The Supreme Court insists that a sweeping immunity
shield is necessary for an impartial judiciary. Is an "impartial judiciary" free
to violate the Constitution and People's rights? Yes they can if they are a
power foreign to the Constitution that has usurped
government.
"Yet the Supreme Court insists in the
strongest of language that a sweeping immunity
shield is necessary for an impartial judiciary. Permitting
dissatisfied litigants to sue judges, argues the Court, 'would contribute not
to principled and fearless decision-making but to
intimidation.' Under this
viewpoint, immunity is not for the benefit of the malicious and corrupt but for
the benefit of the public, whose best interests are protected by an independent
judiciary. If errors are committed, the proper remedy is appeal." Id.
How can unconstitutional court procedure, especially the
violation of Due Process of Law, lead to "principled" decision-making? The Court
doesn't talk about any unlawful procedure which it routinely administers with
impunity before any decisions are made. That's what J.A.I.L. addresses--
unconstitutional procedure, NOT decision-making! The Amendment provides that
immunity shall not shield such violations, set forth in �2 "Exclusions of
immunity." Now we know where Sandra Day O'Connor gets her
rhetoric:
"If the [J.A.I.L.] amendment passes, it would
eliminate judicial immunity, and enable a special grand jury to censure judges
for their official legal determinations. [Remember
"the
simple expedient of disguising a corrupt act as a routine judicial function"? Waters (supra)
-j4j] Although the amendment's supporters claim they seek
a 'judicial accountability initiative
law' (JAIL), they aspire to something far
more sinister -- judicial intimidation."
The Threat to Judicial Independence by Sandra Day O'Connor -
Sept. 27, 2006
The mindset of the
Foreign Power, of which the SCOTUS and Ms. O'Connor are, is that they don't
believe in accountability to the People because they are the sovereign power and
the People are their subjects. They function in a jurisdiction that is foreign
to the Constitution and foreign to popular sovereignty. If the People seek
accountability, the despots cry out "Intimidation!" That is a sure sign of
cowardice for which they must hide behind "a sweeping immunity shield."
4. "In order to ensure judicial accountability and
domestic tranquility, we hereby amend our [state] Constitution by
adding the following
provisions..."
The Preamble closes with the general purpose of the
J.A.I.L. Amendment, being "to ensure judicial accountability" which in turn will
bring "domestic tranquility."
Accountability to the governed, i.e., to the People, of those who rule is
inherent in nature:
"But accountability�the accountability of
those who rule or govern to the governed�is inherent in the nature of all democracies. Such
accountability, of those who govern to those who are governed, is indeed the aim or purpose of
all democratic governments to ensure that government consists of mechanisms or legal processes
through which the government is accountable and can
be held accountable by the people served.
Indeed, the rule of law itself is a two-edged sword. It not only ensures the protection of rights
but also enforces responsibilities. Its protections are meaningless if requirements of the law are
not obeyed or enforced. It provides that those who rule as well as those who are ruled must be
accountable to legal requirements and for the proper performance of their respective
responsibilities. No one is either above or beneath the protections or requirements of the law." THE IMPORTANCE OF JUDICIAL INDEPENDENCE
AND ACCOUNTABILITY by
Roger K. Warren, President, The National
Center for State Courts http://www.ncsconline.org/WC/Publications/KIS_JudIndSpeechScript.pdf
The judiciary are not exempt from accountability; they
must be held accountable
to the
People for the proper performance of judicial duties pursuant to the rule of
law:
"The rule of law ensures that all government
officials are held accountable to those in whose name they govern: to prevent corruption and abuse of power; to ensure
that the laws that are enacted truly reflect
the will of the people and the fundamental values and interests expressed in
the Constitution; and
to ensure that all government officials perform well their
responsibilities. The judiciary is
not exempt from these principles. Judicial officials, like all government
officials in a democracy, must be
accountable to the people for the proper performance of their duties."
Id.
The Foreign Power and its media partners,
such as the New York Times, contributes to the swill that J.A.I.L.'s banner of
judicial accountability is "profoundly misleading" and "add[s] up to an assault
on a fair and independent judiciary":
"Nearly obscured by the struggle for control
of Congress, there is another important battle in a handful of states over
measures aimed at punishing judges for their official rulings and making them
more captive to prevailing political winds. These measures all hide behind the
superficially appealing but profoundly misleading banner of judicial
accountability. And, taken together, they add up to an assault on a fair and
independent judiciary." Voting for Judicial Independence - New York
Times, November 2,
2006
Ron Branson of J.A.I.L. responded
by saying:
"I am not against true 'judicial independence.' We need an
independent judiciary that rises above politics and human emotions. But
if 'judicial independence' means
independent of the Constitution which they have sworn to uphold, then mark me
down as opposed
to judicial independence. �A runaway 'independent' judiciary that makes up and enforces its own
laws as it goes, is certain to bring the entire judiciary into contempt and
disrepute,
causing the
judiciary to have to publicly defend themselves at every stage
while
descending into their own
quagmire and destruction. �The truth is that JAIL4Judges is the best thing that
could ever happen to the judiciary to protect it from its own demise." Id.
Enhanced
measures of accountability will actually reinforce independence:
"As there will always exist a certain tension between accountability and independence, the timing of each provides some degree of relief.
Independence addresses freeing the
judiciary from prior control
of its decisions. On the other hand,
accountability focuses on having mechanisms in place
by which the judiciary as an independent body
is required to explain its operations after the fact. Since greater transparency is
often the key to both, enhanced measures of accountability can often
actually help to reinforce
independence."
(pg.52)
This is must reading on the interaction of judicial
independence and accountability, especially Part
IV. Major Themes, Sec.A . For
example:
"For decades, increased independence has
been perceived as
central to strengthening judicial performance.
More recently, it has been joined by another element,
the demand for greater judicial
accountability, with some critics arguing that absent this
second factor, the drive for independence may go
too far, producing a variety of new
problems. This comes as a nasty surprise for some
judiciaries. .... [A]ccountability should not be understood as the diametric
opposite of independence; the interaction of the two concepts is more complex.
However, a worldwide tendency to augment judicial independence has raised new
issues and in turn generated an interest in accountability as a means of
addressing them." (pg. 161) Judicial Independence and Judicial Accountability: The Shifting Balance in
Reform Goals - by Linn
Hammergren
GUIDANCE FOR PROMOTING JUDICIAL
INDEPENDENCE AND
IMPARTIALITY
(supra)
Whoever
speaks about "judicial
independence," such as the New York Times or
Sandra Day O'Connor, must clearly define what they mean by that
term:
"Many people simply assume that there is agreement about what judicial independence
is, thereby relieving them of the duty to state precisely what they mean when invoking the term. Many others are quite
clear what they mean by judicial independence, but their definitions are so obviously the product of the academy (or of
self-interest) that they are ill-suited for the practical business of government."
What Do We
Mean by "Judicial Independence"? by STEPHEN
B. BURBANK
It appears to some
that "judicial independence" means "zero accountability" based on
observation of judicial conduct assuming raw
power:
"The shortest line between power and
criminality is zero accountability, which is exactly what 'judicial
independence' means. We have allowed the federal bench to demonstrate the truth
of that statement too many times."
JUDICIAL INDEPENDENCE: ZERO
ACCOUNTABILITY
Such
conduct demonstrates the fitting term of "Judicial Megalomania." My dictionary defines "megalomania"
as: "1. a mania for great or grandiose
performance [synonym for mania- "insanity"]; 2. infantile feelings of omnipotence esp. when retained in later
life." What image do you get when reading those
two definitions, especially the second one? Can there be any
doubt why accountability to the People isn't part of the judicial agenda? One need not make a
medical diagnosis of this mental illness, but need only to observe judicial
conduct and their reaction to
the public expecting accountability therefor --sheer
panic!
A thorough definition of
"judicial independence" is given
at:
A DEFINITION OF JUDICIAL
INDEPENDENCE by Kristy Richardson
The basis of the definition (pg.5):
"The construct of �authority' is the defining
characteristic, and forms the basis of the definition of judicial independence.
... [T]he construct of �authority' with its own
indicative elements brings together and strengthens the constructs of
�insularity' and �impartiality' to form a comprehensive and conceptually
relevant definition of judicial independence. The elements of the construct of
�authority' are (i) how the law is made (ii) public confidence (iii) media
relations / judicial reticence and (iii) administrative law."
The following three excerpts are taken from the above Richardson
study:
1. The scope
of judicial authority is the keystone of judicial independence
(pg.4)
"[T]he scope of the judiciary's authority as an
institution or, in other words, the relationship of the courts to other parts of
the political system and society, and the extent to which they are collectively
seen as the legitimate body for the determination of right, wrong, legal and
illegal should be incorporated into the definition of judicial
independence." Christopher M
Larkins, "Judicial Independence and Democratization: A
Theoretical and Conceptual Analysis" (1996) 44 American Journal of Comparative Law
605, 610.
2. Public understanding and
appreciation of the judicial role forms a substantial source of support for the
independence of the judiciary
(pg.14)
"It would be a mistake
to think that the protection of the independence of the judiciary rests only in
legal provisions. As has already been demonstrated, those provisions are in some
respects inadequate, incomplete or susceptible to ready repeal or circumvention.
A much more substantial source of support is community understanding and
appreciation on the part which the judiciary plays in ensuring observance of the
rule of law and the other values treasured in our form of society." Justice Michael Kirby,
"Judicial Independence in Australia reaches a Moment of Truth" (1990) 13 Univ.
of New South Wales Law Journal 187, 191.
3. There
is a lack of theoretical and conceptual attention to what is meant by "judicial
independence" in articles and addresses by serving and retired senior
judges (pp
2-3)
"The last decade has
seen a surge in the amount of writing about, and inquiries into, judicial
independence in the common law liberal democracies. Serving and retired senior
judges have adopted it as a central theme in articles and addresses. � The
initial impression is of considerable diversity in approach and formulation of
these definitions and rationales, but it is difficult to identify whether the
differences are merely linguistic, in that different words have been chosen to
express the same ideal, or semantics, in the strict sense that a different
meaning is intended. The very uncertainty over whether substantive differences
are intended illustrates the relative lack of theoretical and conceptual
attention to what judicial independence is, and how it relates to other
political and social values."
Stephen Parker, "The Independence of the
Judiciary" in Brian Opeskin and Fiona Wheeler
(eds) The Australian Federal Judicial System (2000) 64-65.
Judicial independence is not an end in itself, but only a means to
an end. The end is due process, fair trial:
"Judicial independence
is a means to an end � the end is due process, a fair trial according to law.
Judicial independence thus protects the litigants in court and all the people of
the nation." Judicial Independence as a
Campaign Platform by Shirley S.
Abrahamson
On the other hand, judicial
accountability is an end in itself:
"As we have seen,
judicial independence is merely a means to an end. The end is the benefits that flow to
the people from effective democratic government. Judicial accountability, on the other hand,
is an end in itself. The accountability of all governmental power, including the judicial power, to the
people is the end of democratic government. Absent judicial independence, the judicial power
cannot be properly exercised so as to meet the people's rightful expectations." THE IMPORTANCE OF JUDICIAL INDEPENDENCE AND
ACCOUNTABILITY (supra)http://www.ncsconline.org/WC/Publications/KIS_JudIndSpeechScript.pdf
When judges
talk about judicial independence as an end in itself, it causes the people to
regard the judiciary as arrogant (i.e.,
demonstrating judicial megalomania):
"When judges talk about judicial
independence as an end in itself, it can cause the public and other branches of government to think that the judiciary regards itself
as superior to other branches of government, or
is arrogant." Id.
That is exactly what is
shown by Sandra Day O'Connor and other anti-J.A.I.L. sympathizers when
they cry about J.A.I.L.'s "attack on the independence of the judiciary," or
"punishing judges for their official rulings and making them more captive to
prevailing political winds." The truth is they don't like J.A.I.L.'s attack on their
feelings of omnipotence!
We
need to create in our judiciary, in direct
contrast to the Supreme Court ruling in Stump v.
Sparkman, a culture courage
(rather than cowardice) that treats corruption as not just illegal,
but as unacceptable within the judiciary:
"You know as well as I that the proper
exercise of judicial power in an independent judiciary requires great courage. An effective judiciary certainly requires
competence and skills on the part of judges. But,
more important, it requires courage, courage to do the right thing, moral
courage. We need to
create in our judiciaries a culture of courage, one that rewards honesty as well
as punishes
corruption. A culture that treats corruption as not just illegal, but as
unacceptable to us within the
judiciary. We need to create a culture within the judiciary in which those who
would subvert the
rule of law are subject to our own disapproval, even scorn, within the
judiciary. A former justice of
the United States Supreme Court has spoken of this need for resolve and for courage within the judiciary in this way: 'It is in vain
that we insert Bills of Rights into our Constitutions as
checks upon legislative power unless there be firmness in our courts, in the
hour of trial, to resist
the fashionable opinion of the day.' " THE IMPORTANCE OF JUDICIAL INDEPENDENCE AND ACCOUNTABILITY
(supra)
Judicial independence is not
judicial isolation; the judiciary cannot operate in a vacuum:
"The judiciary cannot operate in a vacuum. Judicial independence is not
judicial isolation or judicial separation. Separation begets suspicion; suspicion begets
mistrust. Independence is served through interdependence. In the U.S., this
thought was expressed by one of the justices of our Supreme Court in this
way: 'While the
Constitution diffuses power the better to secure liberty, it also contemplates
that practice will
integrate the dispersed powers into a workable government. It enjoins upon
its branches separateness but
inter-independence, autonomy but reciprocity.' " Id.
The biggest threat to judicial
independence is perhaps the judiciary itself, e.g., the Stump v. Sparkman
Court:
"But perhaps the
biggest threat to judicial independence in many of our judiciaries, including in
the U.S., is ourselves. We have a cartoon
character in the United States named Pogo who said that 'we have met the enemy,
and it is us.' We must look at ourselves and our own
performance honestly. ... Legitimate dissatisfaction with the
judiciary is a far greater threat in the long run than
improper influences.
Id.
The absence of public trust inevitably leads
to persistent threats to judicial independence:
"But when they [the public] think that the
courts are unfair, that the judges
are not neutral, that the judges are not honest, that the judges are not trust
worthy, that the judges do not have
integrity, these are issues of character, not competence�when the public
feels that there are character flaws
in the judiciary, that's what undermines their trust and their confidence in the entire justice
system. And this threat, I think, is
our greatest threat in America, because the absence of public trust will inevitably
result in persistent threats to judicial independence."
Id.
In return for judicial independence, the
public expects judicial accountability. J.A.I.L. is a condition for judicial
independence:
"In consideration for judicial
independence, the public expects proper and effective performance. The
judiciary is accorded independence as a means to the end that we perform the job well, decide fairly,
and administer the laws justly. We are public servants. If we do not perform our
responsibilities well, we will inevitably face persistent attacks on our
own independence. To
state it different, our own poor performance will be the door through which
the strongest
challenges to our judicial independence will enter. If we take no responsibility
for our performance, we are in no position to
complain about the attacks upon our independence." THE IMPORTANCE OF JUDICIAL INDEPENDENCE AND ACCOUNTABILITY
(supra)http://www.ncsconline.org/WC/Publications/KIS_JudIndSpeechScript.pdf
"An accountable
judiciary without any independence is weak and feeble. An independent judiciary
without any accountability is dangerous." --Stephen B.
Burbank,
David Berger Professor for the Administration of Justice, University
of
Pennsylvania
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He has combined with
others to subject us to a jurisdiction foreign to
our constitution,
and unacknowledged by our laws; giving his assent to
their acts of
pretended legislation. - Declaration of
Independence
"..it does
not require a majority to prevail, but rather an irate, tireless
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