At his best, man is the noblest of all animals;
Separated from law and justice, he is the worst. – Aristotle
Our misadventures have been appalling in the political, economic and military spheres. None grates so hard and so long on the body politic as the growing litany of judicial wrongs: plain, old-fashioned miscarriages of justice. None is marked by so much inaction on our part as the seemingly endless failure of judges, juries and the entire system of American justice, from the Supreme Court (SCOTUS) on down.
What went before may not have been the best of times, and where we are heading may not be the worst of times, but both are damn certain to be close approximations of those things. Certainly, the cobbled-together system of injustice which characterizes courts and country today gives little hope for the future.
This is not a constitutional history of the US, but some understanding of the framework here needs to be appreciated. The Framers and most of their immediate successors saw a system of justice to be focused primarily on the protection of the general law-abiding population; secondarily on the apprehension or removal and punishment of transgressors; and lastly on the rights of the accused, principally the right to a speedy trial without physical torture to obtain incriminating evidence (which is what the much-abused 5th Amendment was intended to ensure, torture then being commonplace in investigations and interrogations throughout much of the world.) Precisely how this was applied in reality over the years, however, is a matter of considerable debate. Suffice to say that enforcement and policing were until well into the 20th century variable and haphazard, if not quite what Hollywood would have us think.
Criminals usually got short shrift ((the word “alleged” was notably absent from most accounts), trials were usually short, and punishment – including capital punishment –generally followed conviction quickly. Throughout most of the 19th century and into the 20th, with or without the existence of law enforcement and courts, citizens frequently seem to have dealt with lawbreakers themselves, and not only on the frontier.
A friend who studied at Yale Law School some decades ago remarked that the reason we know the names of some outlaws, is because they were the few to survive initial encounters with citizens or law enforcement. This was especially true west of the Mississippi River and in the decades after the Civil War. Veterans from both sides who had survived battles like Gettysburg and Cold Harbor were disinclined to run in panic because a few bad actors (pun intended) rode around doing nasty things – and their response usually made trials superfluous. Some today might deride this as “vigilante justice,” but it worked—which is a far cry from where we are today.
Born or Made to Fail?
It would be comforting to many to blame all of our failings today on cultural Marxists, or the Democrats, or the disgusting Biden crime family (or Trump, for that matter), but it would be wrong to do so. The growing lawlessness of courts and country has been brewing since the end of the Civil War, if not before, with or without a rough-and-ready approach to criminal (or civil) justice. Worse, it was potentially inherent in the Constitutional order itself, barring any changes which did not violate a strict construction or interpretation of its tenets.
It is seldom understood, for instance, that the entire US Constitutional order was uniquely configured for a voluntary assembly of sovereign states with a restricted franchise and sharply limited powers for the Federal government. The Federal judiciary (Article III) was no exception. Mirrored in most key respects by the various state constitutions, Congressional (or legislative, at the state level) primacy inhered in the Constitutional order.
More to the point, the limited authority of the Federal government – including the Federal judiciary – over states and people alike was clearly understood. The Court’s scope of original jurisdiction was clearly defined, and the power of judicial review was not highlighted in the Constitution. The idea itself obviously did not endear itself to the Framers.
Within 14 years, that changed, but judicial review was used sparingly at first. In the 72 years preceding thee Civil War, only three Federal laws were declared unconstitutional, in whole or in part, by the SCOTUS. The Federal judiciary likewise exercised restraint in state and local jurisdictions, although to a layman like me the boundaries do appear to be extended over time.
The Civil War not only ended slavery in the US and left a legacy of animosity that has not yet fully dissipated. It also began a process of change that moved the country away from that for which the Constitution – and therefore the system of courts, law and justice it had established – had been written. Although the issue is still debated, I understand that it spelled an end to the concept of a union of sovereign states which had been the foundation upon which the Constitution itself had been erected. The end of it all was among other things:
- A strong central government with subordinate states rather than the reverse;
- A democracy with universal suffrage for citizens (and in some areas, non-citizens) 18 years of age or older in place of a republic with limited male suffrage; and
- A Federal judiciary with a panoply of what the Constitution called “inferior courts,” coupled with greatly expanded definitions of original jurisdiction and powers of judicial review, replacing a Federal judiciary with limited and specific powers of original jurisdiction, and a deep reluctance to employ those of judicial review.
The Path to Unconstruction
The road from “there and then” to “here and now” has been neither straight nor smooth. From my perspective, three “milestones” stand out. Each was considered legitimate or necessary when they occurred, although what the Warren Court did was contentious, to say the least. Each gave rise to what is called the paradox of unintended consequences. In this, all proceeds as intended, and the immediate consequences are more or less what are expected. But they induce others to act in ways that were not, and perhaps could not, be anticipated, and which together have brought us to where we are today. These milestones are:
1. The post-WWII war crimes tribunals in Germany and Japan. Later considered by many American and British jurists and generals to have been illegitimate, they nonetheless established the principle that winners can judge and punish the losers while escaping punishment themselves, even when both have done illegal things. The reactions during the proceedings of some of the senior Germans accused of such crimes – knowing they were certain to be executed – is telling. Never before (at least in modern history) had this happened, and indirectly set the precedent for what ensued after the 2020 general election in the US.
2. The judicial activism of the so-called “Warren Court” in the late 1950s and especially the early 1960s. Largely by 5-4 votes, the SCOTUS began unraveling official segregation in the South and reversing the priority of the justice system to give almost controlling precedence to the rights of the accused over the general welfare of law-abiding citizens. This led directly to the use of Federal troops (including Federalized National Guardsmen) to enforce SCOTUS rulings in several Southern states, and at least to an initial surge in crime lasting well into the 1990s. The breakdown of our schools, neighborhoods and cities began here, and even though overall crime declined from its peak in the mid-1990s, I leveled off at more than twice the 960 rate before edging upwards again. And
3. The post-9/11 misbegotten “Patriot Act” and the activities it spawned. Enacted in the aftermath of the terrorist attacks of September 11, 2001 from a combination of media-generated hysteria and a touching faith in the utterly fraudulent US Government explanation for what happened. It launched the specious “War on Terror” and was used to justify new security measures at home and the invasion of Afghanistan. It led to extensive domestic surveillance and the use of torture on patently innocent people to extract “confessions” (much as had been done in the post-WWII tribunals in Germany and Japan). It also led to a series of regime change wars in the Middle East which destroyed Israel’s enemies at no cost to itself (which had been the whole point of the exercise), and later produced a flood of refugees, some voluntary and others not, inundating Europe.
The Enduring Law Enforcement Catastrophe
Underlying all of this at home is, of course, the issue of race and crime. Back in the 1960s, a rapist turned revolutionary named H. Rap Brown once said that “violence is as American as cherry pie.” He was correct, of course, except that he forgot to mention that it was black cherry pie to which he was referring.
The years (1964-68) of black urban riots – the “long, hot summers” as they were called then, that led to the blackification and ruin of so many once thriving cities such as Detroit, Baltimore, Detroit, Memphis and St. Louis – were just the most visible aspect of this issue. I have read in many places, and firmly believe, that the US – which now has one of the highest crime rates in the world – had no blacks, it would have one of the lowest crime rates in the world. Statistics support this, given crime rates within the US. The statistics for the US as a whole roughly mirror those given for New York City, but they are increasingly difficult to unearth. Liberals deny this, conservatives try to ignore it, but reality is unforgiving. And the data on interracial crime is even more compelling, with Asians increasingly being targeted by blacks and ignored by Democrats and the left-leaning media alike, as well as many Republicans.
What I found intriguing when preparing to write this article was that concern about disproportionate levels of black crime is not a new thing, nor did it emerge after the onset of President Lyndon Johnson’s cornucopia of welfare programs under the rubric of the Great Society” in the mid-to-late 1960s. Johnson’s de facto multi-generational cradle-to-grave welfare scheme accomplished its primary objective: it did weld most blacks to the Democrat party, no matter how little Democrat leadership – including black Democrats – actually did for the large majority of blacks.
Black crime had apparently been a concern even in the mid-1950s, when most US cities had white majorities and frequently Republican mayors, and were remarkably safe (especially by today’s standards). I stumbled across this information purely by accident while looking for data on the racial transformation of cities. It shows that even in the 1950s, there was a genuine basis for what came to be called “white flight,” turning once-prosperous and thriving cities into black-majority, Democrat-run cesspools of welfare, crime and ruin.
As the cities became blacker and the Democrats more firmly entrenched in control, so, too, did the judges, prosecutors, jury composition and policing change. Combined with the developing impact of opinions issued in the 1960s by the SCOTUS and embellished later, trials became seem to have become longer, convictions fewer, plea bargains more frequent, and recidivism apparently far more common. It wasn’t that way everywhere and all at once, of course, but I have lived in fourteen states in my life, and that has been my experience in all but two of them.
This has led to an interesting dilemma. Genuine regret – not guilt, but regret – on the part of many Americans about the history of black people in this country has made them reluctant to call out blacks on the reality of what they are and what they do. A cynic, or a realist, might well say that given so much black misbehavior, Dr. Martin Luther King Jr. would have been well advised to ask for his people not to be judged by the content of their character. If they were, statutory segregation would likely be the law of the land, and for some, the 13th Amendment might even be repealed.
The leftist media, however, has accentuated this regret into an unwarranted feeling of guilt – unwarranted because no one should feel guilty for what others have done, any more than they should feel deserving of compensation for what they themselves did not experience. The entire concept of cross-generational collective guilt and reparation is utterly alien to American Constitutional precedent and to Western historical experience.
2020: The Fork in the Road
Alien or not, they set the stage for what happened in 2020. Looking back, I think many understood that we were approaching a critical point in our history. Some of us were speaking and writing as early as 2019 about the likelihood of a stolen general election in 2020, based on what had happened in 2018. The COVID-19 episode, which I personally consider a real virus but a fake pandemic, was ramping up. Mail-in voting was the new thing – why, no one could quite explain, since other countries more populous than the US did not need it, even during the fantastic pandemic, but there it was. The field of Democratic challengers to President Trump had narrowed dramatically to the anointed Joe Biden, to the hosannas of the media. Trump himself just slugged on, bereft of his generals (all of whom he had not only lost but alienated, and with them the senior serving military officers) and without the border wall that was supposed to be his capstone achievement.
Into this social, political and economic morass slithered the death of a career black criminal, George Floyd, while in police custody in Minneapolis MN. I’ll not bore anyone with the details. All of which have been beaten to death from every conceivable viewpoint. The reality that he died of a self-inflicted drug overdose rather than anything police did to him was suspected at the time, and known for certain when the final autopsy was released, but ultimately irrelevant.
His death became a spark for riots nationwide, with a resurgence of black looting, arson and mayhem (and more than a few murders) – they do seem to have a talent for that, don’t they? The near-spontaneity of violent outbursts in hundreds of cities nationwide (all but two or three “coincidentally” with Democrat mayors), most in states with Democrat governors, and access to pallets of bricks conveniently left unattended in many places, simply fueled the upheaval.
The response to the violence was unbelievably weak, even after the murder by black “activists” and their Antifa allies (or simply common thugs) of numerous people, blacks and whites alike, in addition to the vandalizing of statues and memorials, and the gutting of landmarks such as Chicago’s “Magnificent Mile.” Everyone failed here. Well, not everyone: some did as expected. The Democrat mayors of the cities most affected, and the Democrat governors of the states where the violence occurred, did nothing to restore order. On the contrary, they often encouraged the rioting, as did the media, calling it “mostly peaceful protesting” as the skyline burned behind them.
Kamala Harris, the humiliated presidential candidate who is now Vice President, joined other Democrats in helping post bond for the relative handful of rioters who were actually arrested. Only a single Congressional Democrat, Tulsi Gabbard (who was not running for re-election) condemned the violence. All other Congressional Democrats either maintained a studied silence or denied the very existence of the violence. And the usual black race-baiters did their thing, to their advantage and their profit.
But then-President Trump failed us, and we failed America, both rejecting what Constitution, statutory law, precedent and common sense required of us for the maintenance of law and order. Trump had the Constitutional obligation to maintain what the Preamble to the Constitution calls “domestic tranquility.” He had the statutory authority in the Insurrection Act (1807) among other laws to do so. He knew (or his advisors should have known) the precedents set as recently as Presidents Eisenhower, Kennedy and Johnson to use Federal troops in domestic situations to enforce the law, when state and local authorities could or would not do so. And he had the power as commander-in-chief to use the armed forces, including Federalized state National Guards, to restore order when Democrat governors and mayors refused to do so.
Yet he did nothing, other than send a few marshals out west for a short time. Absent his generals, he lacked both good advice and seemed both hesitant and bereft of adequate courage. Why he acted as he did will certainly be the subject of considerable debate, at least if we are allowed the freedom to debate such things in the future. The most charitable explanation (which is not an excise) is simply that he was out of his depth and never got control of his administration. (And yes, I am aware of other arguments.)
“We the People” also failed the Constitution and the country, for all of the babbling about the 2nd Amendment. Those who in earlier times had stepped up and enforced the law when officials either failed in their duty or were absent. This time, we did nothing, even when black “activists” murdered a 23 year old pregnant white mother in Indianapolis and a 5 year old white boy on his front lawn in North Carolina. Thomas Paine, in his famous pamphlet, “Common Sense”, noted that “These are the times that try men’s souls: The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman.”
Compared with the rhetorical flatulence and refusal to act in their own and their country’s interests of today’s conservatives (or whatever label they choose to use), Paine’s “summer soldier and sunshine patriot” stand out like the heroes of Thermopylae. “Proud Boys” and “Oath Keepers” alike caved. Militias around the country pranced and yowled, but did nothing. The most heavily armed civilian population in the history of the world found it either too hot or too cold to act; or thought the violence was too far away to concern them, or to close to their homes to confront; or any of a number of reasons, even when they knew the President was on their side. It was as appalling a display of civic cowardice, as the riots were an appalling display of domestic barbarism.
The 2020 Election and Its Aftermath
Like the riots, the election has been discussed at length elsewhere, so I’ll be brief. Without the fake pandemic to provide an excuse for mail-in voting and the inaction of authorities and citizens alike to six months of rioting in 2020, Trump would be in the White House today. I am not really sure that would be a good thing in absolute terms, considering that he is the best president Israel ever had, and while he talked a very good talk, he did one hell of a lot less than he promised. Yes, that was not entirely his fault, but some of it was, especially in his first two years when his party controlled both houses of the Congress. (I know, I know, the RINOs….) And I say this, being neither a Trump partisan nor a “never-Trumper.”
But him still in office would assuredly be better for the country than what we have now. Instead, we have Biden’s boys and bitches and confused psychotics, precisely because the election was stolen, and the evidence supporting that conclusion is overwhelming. I also know that the Democrats would never have dared to do that, had Trump crushed the riots and arrested selected Democrat mayors and governors for sedition, which he had the every right to do and all the power needed to do it.
I am also reasonably certain that if he had done that, and provided both leadership and example, one many well-armed people would have rallied around him and supported the troops, at least in some states. He would not have needed “Proud Boys” or “Oath Keepers” or organized state militias, all of them heavily infiltrated by Federal and (at least in Democrat-run jurisdictions) state and local law enforcement.
That did not happen, and despite outright lying by the media and the Democrats, there was widespread and videotaped fraud in several states (including locking Republican poll watchers out of a building where ballots were being counted in Detroit, as unmarked cars delivered boxes of ballots). With “basement Biden” declared president-elect, it was inevitable that there would be a challenge: and there were two, one in fact and one in theory.
The one in fact was a lawsuit filed by Texas. Although explicitly mentioning Pennsylvania, it ended up with almost every state (and the District of Columbia) joining in on one side or the other. How it would have gone if the SCOTUS had heard the case, I cannot say. But I can say that the disclosure of so much physical evidence of so much blatantly fraudulent activity in Democrat-controlled jurisdictions would have been at best extremely difficult for even the Democrat party’s propaganda arm – the media – to completely ignore.
But the SCOTUS refused to hear the lawsuit, claiming Texas had no standing. Perhaps in technical legal terms, that is so. But this lawsuit pitted nearly half of the states against the other half, in the greatest and most contentious dispute among the states since the onset of the Civil War. The Constitution invests the SCOTUS in Article III, Section 2 with the power to hear and decide matters involving “….Controversies between two or more States.”
Now, I am not a legal scholar nor do I pretend to be one. But I am fairly literate, and it is very obvious to me that the Texas lawsuit – details notwithstanding – involved precisely the type of controversy dividing nearly the entire country over which that provision of the Constitution explicitly gave the SCOTUS original jurisdiction. That the justices chose to side-step the controversy rather than make any decision at all in it, or even allow the evidence to be aired, says a great deal about their political and personal sensibilities. It doesn’t say a lot about their character or the courage of their convictions.
Which brings us to the second challenge. I called it a challenge in theory, only because I cannot find a term for it which captures the judicial and national sewer it became. This was the so-called “insurrection” at the US Capitol on January 6, 2021 (commonly called “J6” for convenience) which derailed the Electoral College balloting for a short time, and ended with hundreds of people in jail, several dead and Biden confirmed as President.
What we know for certain, now that some CCTV videotape from inside and outside the Capitol on that date has been released, is that despite all of the propaganda tossed about by Democrats with their “Special Committee” and the media, there was no “insurrection” or anything like it, and the Democrats and the Department of Justice knew that from the beginning. Certainly, it would have been the first unarmed insurrection in history, conducted by people who were guided inside and seemed careful not to disturb anything, absent a few pretty obvious provocateurs.
That reality notwithstanding, Democrats milked it for all it was worth. Hundreds were arrested and held in unbelievably bad conditions. Rapists and murderers commonly receive more attention to their Constitutional rights and due process than these prisoners, and are confined in far better conditions. What passes for trials and punishments in the black-majority District of Columbia, at least, would fit an especially corrupt and incompetent court in an especially backward African country – perhaps a distinction without a difference. The “DC Jail” may not be America’s Bastille or Gulag, but it is an embarrassingly close approximation of them, at least insofar as the J6 victims of what passes for our justice system today are concerned.
The “Unintended Paradoxes” Come Home to Roost
I have touched on only some of the high (or low) points in our journey from being a Constitutional Republic to becoming something frighteningly akin to a Third World despotism in all but name, albeit a heavily armed and unbelievably demented one. There is so much else:
- The continuous abuse of Donald Trump and some of his close associates by the Democrats, who as winners now do as the winners did in the post-WWII war crimes tribunals, and punish others for imagined offenses while concealing their own very real ones.
- The excessive punishment in civil cases (those of James Fetzer and Alex Jones come to mind) and in criminal cases of those they consider enemies, while ignoring or exonerating far worse offenses by members of “protected groups” (for example, blacks or LGBTQ+ individuals).
- The weaponization of the Department of Justice itself, and especially the once-respected and now generally despised FBI, as enforcement tools for the Democrat party to use against political opponents, a true “political police” if ever there was one.
And there are so many more. The intent of these and similar miscarriages of justice around the country is all too clear. The arrest, prosecution and excessive punishments meted out to people who protest leftist injustice or defend themselves against leftist or black crime is neither random nor arbitrary. Its purpose is to criminalize resistance and self-defense.
Thus, even when a person is released after being charged, as happens so often in Democrat-run cities, the trauma of the arrest, booking and even temporary jailing of totally innocent people remains with them. And it is a lesson propagated widely by the media, which repeats ad nauseum the tale of the person’s arrest and charge, but barely mentions – and frequently ignores – his subsequent exoneration and release. This makes it clear to others what they can expect if they act in similar ways.
There is no doubt whatsoever that official lawlessness – of, by and for the Democrat party – has become part of the “new normal” for the America envisioned by the leftists pushing this agenda. All this is something we need to change. I have a road-map for doing just that, which I will present in my next article: “America on the Abyss: A Manifesto for the Militia.”
Alan Ned Sabrosky (PhD, University of Michigan) is a ten-year US Marine Corps veteran. He served in Vietnam with the 1st Marine Division and is a graduate of the US Army War College. He can be contacted at docbrosk@comcast.net
https://www.unz.com/article/justice-unconstructed-lawlessness-as-a-new-normal/
