Articles tagged "Criminal Law"

Ventura: Come on Vacation, Leave on Probation

by Matthew Bromund

Principal Attorney
August 12th, 2016

  • It’s not just a joke, it’s a reality for many people who happen to be in public places in Ventura County where our peace officers can take advantage of the very broad authority given to them by our state government to regulate your conduct.  Here are a few examples of criminal misconduct producing years of probation supervision:
  • --Buying a ticket for one movie, deciding it is terrible and taking oneself to a different movie showing at the same time (Petty Theft: 3 years probation)
  • --Having two drinks at an after-work going away party (5:30-6:15 PM), leaving the bar/restaurant at 6:20 feeling completely sober, being pulled over as you leave the parking lot at 6:21 and being examined till 7:00 so that when tested for alcohol impairment revealing .08% BAC (Driving under the Influence: 3 years probation)
  • --While going through the first stages of divorce, having an argument with your husband at high volume, resulting in the police being called, you being arrested (Terrorist Threats: 3 years probation)
  • --Shopping with your toddler, paying for $148 worth of items, discovering as you unloaded the car that a $2 candy item was ‘added’ to your cart by said toddler, taking the item back in to return it and being detained, searched and arrested (Petty Theft: 3 years probation)
  • Graduating high school and deciding to do a ‘senior prank’ of putting super glue into the locks of several classrooms along with several of your classmates (Felony Destruction of Property, Conspiracy: 5 years probation)

While some of you may think that all of these convictions are perfectly fair, others of you will read those facts and see yourself in the scenarios.  That’s something to keep in mind in the arena of criminal law:  we have now made so many things illegal that most of us have been a criminal at some point in our lives (regardless of whether or not we have been charged for our misconduct). 

The greater challenge is that each one of these people now labor under terms of probation that often include consenting to be searched by any peace officer at any time, with or without suspicion, restriction on travel and employment, and regular reporting to a probation officer, potentially causing difficulty retaining employment.  As an added bonus, all this supervision costs several thousand dollars a year, an additional cost for misconduct that can deny you the ability to make rent, buy groceries, or care for your children. 

Fortunately, you do have rights to assert that can protect you against these consequences, IF you have an advocate who knows how to assert them. 

Most people charged with their first criminal offense make three huge mistakes that end up costing them their reputation, their hard-earned money, and in some cases, their families and their freedom: 

  1. They assume that if they tell the truth, they will be treated more leniently.
  2. They go into court assuming that a lawyer won’t make a difference in the outcome, the situation ‘is what it is.’
  3. They believe that a Defendant is presumed innocent unless evidence beyond a reasonable doubt of some significant crime exists.  In reality, you are treated as guilty from beginning to end and only an advocate focused on proving you innocent will find the law and facts needed to make clear that you are not a criminal. 

 

Almost always, silence is golden and declining to answer questions put to you by the police works in your favor.  Most people are convicted of crimes as a result of their own statements, and the twisting of words that some peace officers employ to make the innocent seem guilty.  Remember, once you are under suspicion, every police officer, judge, and most jurors will assume your statements are lies, intended to deceive honest folk.  Don’t give the system your words, keep silent and insist that the state prove their case. Additionally, the criminal law is not some divine engine of truth; it is a system designed by people to obtain submission and compliance from society’s members.  In many cases, the principal goal is to obtain revenue for the state, not to obtain the truth.  If you doubt this, consider the fact that our DUI laws ask each person to be an amateur chemist, assuming that you can tell whether or not your blood will be at .08% BAC or greater 40 minutes after you are stopped by a police officer.  I promise you, you do not, and can not, know, nor would a professional forensic chemist be able to accurately tell you, in advance.  Additionally, the vast majority of people aren’t actually impaired until their BAC is .10% or higher, but the .08% BAC limit was found to produce a significantly higher number of arrests since most folks won’t feel any intoxication at that level and would evaluate themselves as being safe to drive.

 

 

If you, or someone you love, is charged with a crime, give them a gift that can change their lives for the better:  an introduction to the Bromund Law Group.  Our attorneys are skilled, experienced, and dedicated.  We offer free consultations in English and Spanish and have the knowledge and connections to help make one of the worst days of someone’s life into the chance to vindicate their faith in American justice.  805.650.1100

 

No, No Notarios!

by Adriana

February 20th, 2014

no notarioas

California Assembly Bill 1159 went into effect January 2014. It is designed to stop current and potential opportunism related to the possible passage of a Federal Immigration Reform Bill. The California Legislature is justifiably worried about dishonest attorneys, immigration consultants, and so-called “notarios” who prey on the immigrant population by charging immigrants for services they could not yet provide.

AB 1159 cracks down on those con-men who promise to deliver legal status under the new Federal Immigration Reform Act before its passage. AB 1159 puts greater protections in place and punishes false advertising and fraudulent contracts for services which cannot be provided. Additionally, because “notario” translates to “lawyer” in many Latin American countries, unsuspecting immigrants often assume they are getting representation from a lawyer. AB 1159 forbids someone from identifying themselves as a “notario” unless they are an attorney.

The Calfornia State Bar has put together a PSA on the subject, which is available below. If you have questions about immigration or you want help protecting your rights call the Bromund Law Group for a free consultation with an experienced immigration attorney.

Oprima aqui para ver el PSA

Click Here For More Information in English.

You Have the Right to….Do What?

by Matthew Bromund

Principal Attorney
January 23rd, 2014

Know Your Rights

A police officer detains you on the street, starts asking you questions and demanding you produce identification, registration, licenses and other documents to satisfy official curiosity about you.  You might suspect you have certain rights to decline to provide this information but you don’t want to be wrong and end up on the receiving end of the ‘use of force spectrum’ that today’s public safety officers are trained to employ to insure ‘officer safety’.  It is our foremost advice that you do not provide any officer an excuse to use force on you.  Do not enter an aggressive posture, do not use profanity and do not resist any physical force used upon you, no matter how upsetting or unjustified it may be.  Your safety and survival is the first objective of any interaction with police. Our second piece of advice is to remember that, even before you are arrested,

YOU HAVE THE RIGHT TO REMAIN SILENT.  You are not obliged to tell the police who you are, where you are going, where you are coming from, or what you are doing in a public area.  Before the police are entitled to that information, they must suspect you of committing a crime.  Most, if not all, citizens who are later arrested and charged with a crime end up finding that their own statements to police constitute the initial, and occasionally only, evidence against them.  Every single day, I review police reports where the evidence for guilt comes almost exclusively from the statements of my client, the accused.  There is simply no reason for people to talk to the police unless they are a victim of a crime and need their help to apprehend the offender. You might be thinking, “But if I am not a criminal why shouldn’t I talk to the police, even when I am not a crime victim?  Police are there to serve the public and help law-abiding citizens like me, right?”  Your thoughts are correct, if our public servants were angels and not humans.  Police officers are trained to think that their job is the apprehension of criminals and that every person on the street could represent a threat to their life.  The days of the neighborhood beat cop who will leave kids to be kids are long gone.  More importantly, we have had full-time legislatures, both in Sacramento and Washington, D.C., concocting every more lengthy criminal codes making almost any action taken in public potentially illegal.  Since IGNORANCE OF THE LAW IS NO DEFENSE, you cannot assume you are ‘law-abiding’ just because you don’t know whether your activity is illegal.   Fortunately, the courts have established that you do have a right to help you in this situation, if you remember to exercise it:

YOU HAVE THE RIGHT TO ASK WHAT CRIME YOU ARE SUSPECTED OF COMMITTING.  If the officer can’t articulate an answer to this question, then you should be released from any detention and allowed to move on.  You do not have to answer any questions prior to receiving an answer to this question.  (Some exceptions apply, for example, if you are driving, the police have the right to see your license and proof of insurance to determine whether or not you are legally entitled to operate a motor vehicle.)  If the officer tells you what crime you are suspected of committing, then you do have the obligation to identify yourself, produce any licenses or permits that may be relevant to the situation…and nothing else.

YOU HAVE THE RIGHT TO REFUSE TO PERFORM ANY PHYSICAL TESTS OR ANSWER QUESTIONS ABOUT WHAT YOU ARE DOING.  So many people believe that they have to comply with the orders of a police officer and yet there is simply no legal basis to justify this belief.  Police have the power to make orders for public safety (‘Everybody leave this area, there is an armed gunman inside that house.’), to detain a suspected criminal (‘Put your hands behind your back while I hand-cuff you and search you for weapons.’) and to insure their own safety when there is an apparent threat (‘Drop your weapon.’).  They do not have the power to compel you to perform feats of balance, memory or dexterity.  Your participation in any of these is ‘voluntary’ at law, meaning you can say no. To maintain a republic of free citizens, it is critical that the citizenry exercise their rights.  Some are doing so.  Here is a great example, shown in a 3 minute video and analyzed, phrase-by-phrase, for its legal accuracy in the state of Maine.  The rules for behavior apply everywhere:

1.  Be calm.

2. Be patient and remember, police aren’t used to citizens standing up for their rights.

3.  Be silent whenever possible.

4.  Insist on being treated as a law-abiding citizen and do not use physical force to vindicate your rights.

If you do these things, and are later charged with a crime, your attorney will have the best possible case to win your freedom and vindicate your rights.  The Bromund Law Group specializes in representing those charged with crimes in California, especially in Ventura and Santa Barbara Counties.  If you need help with this sort of situation, please do not hesitate to call us at 805.650.1100.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

This blog offers general insight and opinions and is not intended to address any specific legal case or situation.  Please consult a competent professional before relying upon this blog for your specific situations.

New Developments for Bail Bonds and ICE holds in California

by Adriana

January 16th, 2014

New Developments for Bail Bonds and ICE holds in California

With Immigration reform seemingly stalled in our Federal Legislature, the State of California has taken the lead on some pressing immigration issues on the state level. Assembly Bill 4, which went into effect January 2014, pushes back on the Immigration and Customs Enforcement Agency’s ability to “ICE holds” to force local law enforcement to keep immigrants in custody until they are transferred to Immigration’s custody.

The Legislature has found that ICE holds have been wrongly used to detain both citizens and lawful immigrants without justification. Unlike warrants, ICE holds are not issued by a reviewing authority, and do not need to be supported by any standard of proof, such as reasonable cause. In the past, once an ICE hold was issued, local authorities would not consider releasing the subject of the hold until that person was transferred to Immigration authorities. To read the entire text of the bill, click here : http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB4.

cuffsThis development means that unless the immigrant has pending charges or convictions of certain crimes, local law enforcement is required to release him/her from custody. This is an exciting development which gives Immigration Attorneys a new tool to use to assist our clients who are being wrongfully kept from their families. This development makes it possible for a detained person to argue for a bond in certain situations, and requires immediate release in other situations.

If you have any questions about how this new law may affect you or a loved one, please do not hesitate to contact the Bromund Law Group for a free consultation.

Nelson Mandela 1918-2013

by Adriana

December 17th, 2013

Nelson Mandela, the revered statesman who emerged from prison after 27 years to lead South Africa out of decades of apartheid, died December 5, 2013. “He no longer belongs to us; he belongs to the ages,” President Barack Obama stated in remarks at the White House. “We will not likely see the likes of Nelson Mandela ever again,” the president said. “So it falls to us, as best we can, to carry forward the example that he set.”

 

Mandela was the first black President to hold office in South Africa. While in office he dedicated his presidency to dismantling apartheid through tackling poverty and racial inequality. Prior to his presidency, Mandela was an advocate against the apartheid throughout his life. On August 5, 1962 he was jailed and subsequently convicted of sabotage, inciting worker’s strikes, and leaving the country without permission. He used his trial to highlight the racism in South Africa. At the trial, instead of testifying, he opted to give a speech:

 

“I have fought against white domination, and I have fought against black domination,” he said. “I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal, which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

 

He was found guilty and sentenced to life imprisonment, despite pleas for clemency by the United Nations and World Peace Council. He spent the next twenty-seven years of his life in prison.

In 1990, Mandela was released from prison and in 1994 was elected President. Despite chronic political violence in the years preceding the vote that put him in office in 1994, South Africa avoided a full-fledged civil war in its transition from apartheid to multiparty democracy. The peace was due in large part to the leadership and vision of Mandela and Frederik Willem de Klerk. Although his presidency only last for one term, he dedicated the rest of his life promoting democracy and peace.

 

Sandra Holzner, Esq.

Associate Attorney Bromund Law Group

Nelson-Mandela’s-Top-Five-Contributions-to-Humanity (1)

Improving a Case Even If You Are Guilty

by Matthew Bromund

Principal Attorney
November 15th, 2013

Guilty ExpressionIf you are ACTUALLY guilty of the crime charged, what can a private defense attorney do for you?  A lot more than you likely think.  After practicing law for more than a decade, I have come to realize something critical about the law as expressed in our court system:  It isn’t a system built around the quest for truth, it is a system built around the assignment of blame.

The quest for truth is part of the mythology of the law, the belief-system that is supported with phrases of terrific ‘truthiness’ like ‘presumed innocent’ and ‘proof beyond a reasonable doubt’ and ‘the truth, the whole truth, and nothing but the truth, so help you God.’  Prosecutors are schooled in these myths and they are enshrined in documents like the National District Attorney Association’s ‘National Prosecution Standards’.  In law school it is treated as an article of faith that justice will result from the sincere invocation of these myths and beliefs.  Reality is far different.  In the real world of charges and cases, obtaining justice requires that a story be crafted and presented that recognizes that the myths of our legal system don’t simply become realized through the invocation of the words.  Instead, the bald facts of a case need to be squared with the motivations that caused those facts to occur.  The consequences of those facts need to be carefully considered by the Defense because, as countless cases have shown me, the Prosecution does not consider all the consequences that flow from their charges.

A quick example:  a woman flees Afghanistan’s gruesome Taliban regime in 2000, before 9/11 and the American political recognition of the horrible situation in that nation.  When she arrives in the USA, she doesn’t qualify for asylum but is convinced she would be killed if she returned.  As a result, she breaks the law to save her life and becomes an undocumented worker in this country.  After 9/11, the political winds change and she is given legal status in the United States.  The facts of her case are unchanged but their meaning is recast in light of our nation’s new orientation against the Taliban.  Her life is still hard and her legal status merely allows her to strive with other legal workers to make ends meet.  The recession of 2008 begins (and hasn’t ended, as far as I can tell from the lives of working people) and her living situation becomes absolutely desperate.  In a scene that could have been cut from Les Miserables, she resorts to stealing food from a store to feed her infirm parents, intending fully to pay for the food in two days when she is paid for her part-time minimum wage job.  She couldn’t receive food stamps as a result of her immigration situation and she had no savings or other resources to rely upon here in the United States.  She is caught, arrested and admits her wrongdoing immediately.

The District Attorney charges her with petty theft, a minor crime that would have no major impact on the life of a citizen aside from paying fines, fees, and needing to comply with the supervision of a probation officer for some span of years.  But she is not a citizen.  She is an immigrant and immigrants are subject to a special set of rules, rules whose violation can result in the immigrant being removed forcibly from the United States, returned to their country of origin, and incarcerated while the immigration court decides if removal is warranted.  In her case, such incarceration would result in the absolute destruction of her parent’s lives since she is the sole provider for them here in the United States.

But the District Attorney isn’t concerned with the ‘collateral consequences’ of a conviction for petty theft.  The criminal justice system considers immigration consequences to be outside their purview and not their concern.  Judges also feel powerless to act since their ability to enter orders providing guidance to the immigration court was specifically taken away by Congress in an earlier age of draconian ‘reform’ of the immigration law.  The Supreme Court of the USA recently attacked this view but no Judge in Ventura County has yet vacated a conviction in recognition of the Supreme Court’s directive.  We have asked, several times, to no avail.

What then is to be done?

With a skilled defense attorney, the situation can be shaped BEFORE the conviction is entered.  By focusing on the intent and ability to repay for the theft, we can arrange a civil compromise, a reduced charge that will not result in removability, and potentially show at jury trial that the facts don’t support a conviction of petty theft.  These outcomes are not guaranteed, in fact, they are often very difficult to obtain.   Our society has the general beliefs that those charged with crimes are guilty, deserve to be punished, and that punishments are too lax to be effective at deterring criminal behavior.  Overcoming those beliefs for individual clients requires the skilled attention of a defense attorney to insure that the whole person is considered by the court.  Only then can justice actually be obtained through our legal system.

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

You have the right to remain silent, but do you have the Ability?

by Matthew Bromund

Principal Attorney
October 30th, 2013

Most people know that when you are arrested the police are required to give you the Miranda warnings before they ask you questions.  Its so much a part of our culture that the warnings on this card can likely be recited, from memory, by just about anyone over the age of 13:

miranda warningYou have these rights even before you are arrested.  You just don’t think about it.  In fact, most people don’t think about it even after police read these rights to them.  That’s because you have heard it so often the meaning has completely vanished and it is just a stream of words, like the Pledge of Allegiance, or the Lord’s Prayer.  (I know all of these mean a lot to many people, but when was the last time you really thought through these words and their meaning?)

In California, you are not required to perform tests (like Field Sobriety Tests), answer questions (like “have you been drinking?” “where are you coming from?” “do you know why I pulled you over?”), or do more than comply with the lawful commands of a sworn peace officer.  When you do so, you are helping the police convict you of a crime.

The police are NOT on a ‘quest for the truth’.  Once they have decided you committed a crime, they are on a hunt for evidence to convict you.  If you are guilty, they don’t need your help; facts speak for themselves.  If you are innocent, your words can make you appear guilty because the police are only listening for the words that support their decision that you committed a crime.  Other words you say will be discounted as self-serving, misquoted to support the theory of guilt, or completely ignored.  Intentionally or not, the police officer will be focused on those things that support a conclusion of guilt.

If you are driving, you ARE required to consent to have your blood drawn, if you want to have a chance to avoid having your license suspended.  This is done under the ‘Implied Consent’ law.   But the police don’t get to take you to have your blood drawn if they don’t have probable cause to arrest you for suspicion of DUI; most of the time it is your words and actions on field sobriety tests, and not your driving, that give the officer probable cause for that arrest.  Of course, implied consent only matters for your driving privilege, for a criminal conviction a different rule applies.

For the crime of DUI, and most other alleged crimes, the police cannot take evidence without your consent or a search warrant.  The new rule on DUI investigations is important, and it is one that the courts in California are going to need years to sort out.  For now, just understand that your rights to personal privacy include your blood, the contents of your home, and the information on your cell phone…if you don’t give the police your consent to access these private items.

In almost all criminal cases, the statements of the innocent defendant make the case for the prosecution.  If the innocent simply remembered to remain silent, to ignore the techniques and threats of law enforcement, and to rely upon their constitutional rights, their liberty would much more often be preserved.

 

Matthew Bromund of Bromund Law Group

Matthew Bromund
Principal Attorney

 

This post is intended for general information only and is not intended to address your specific situation.  For more specific advice, you should contact a licensed competent professional in your jurisdiction.  This document in no way creates or implies an attorney-client relationship between any reader and the Bromund Law Group or Matthew Bromund.  If you require specific legal advice in California, please do not hesitate to contact the Bromund Law Group at 805.650.1100.

The ‘Harvey Waiver’ or ‘How You Can Be Responsible for Paying Restitution for Charges You WEREN’T Convicted Of”

by Matthew Bromund

Principal Attorney
October 15th, 2013

Sometimes clients of mine will be charged with several crimes, all in one complaint.  At the BLG, we always start from the presumption of innocence and spend our first phase of casework developing the reasonable doubt necessary to secure either a dismissal of the charges or an acquittal (Not Guilty verdict) at trial.  We never deviate from that posture, even in the face of serious charges or an offense that some may believe represents an indefensible offense (DUI, Red Light Camera Violation, even Parking citations have all been successfully defended by our firm).   Sometimes, however,  the evidence is compelling, and an effective defense doesn’t appear available on either legal or factual grounds.  In those circumstances, it is necessary to work on a guilty plea resolution.

Innocent_Guilty

When the complaint includes multiple offenses, the resolution often lies in having the client plead guilty to just one charge but entering a ‘Harvey Waiver’ to address the other charges.  A Harvey Waiver allows that restitution may be imposed on dismissed counts if the plea is freely made, the court approves all conditions, and the offender files a Harvey Waiver. (People v. Beck (1993) 17 Cal.App.4th 209, 215. See also, Penal Code section 1192.3.) Under a Harvey Waiver, the offender is required to pay restitution on all counts connected with the plea. Restitution orders are to be imposed based on the victim’s losses and benefits paid by the Victim Compensation Program.  You can read about their views on that process here.

Oftentimes, entering a Harvey Waiver can create the ability for us to fashion a guilty plea that preserves important post-conviction opportunities by satisfying the District Attorney that the victims of all the alleged crimes will be compensated while allowing our client to only accept one conviction on their record.  For example, for a non-citizen charged with a crime, a Harvey Waiver resolution can preserve admissibility under the immigration laws of the United States or keep a client from becoming deportable.  Additionally, being convicted of only one crime can sometimes keep a client eligible for probation, which will make expungement and other rehabilitive relief feasible down the road.

In all cases, taking the case from charge to full completion requires a legal mind that is both perceptive and wise since the first option may not always be the best option.  After all, the best batters don’t always swing at the first pitch!

This blog discusses matters of general legal knowledge and is not intended to in any way advise any person as to their specific legal situation.  If you, or anyone you know, is facing a legal case requiring consideration of these issues you should additionally consult a qualified professional, licensed in your jursidiction, to advise you properly.  In no way does reading this blog constitute the formation of an attorney-client relationship between yourself and the BLG.  Please feel free to contact the BLG if you have questions about this blog or any other legal issues in California. 

The Limits of Courts to shape the Constitution: DOMA

by Adriana

July 15th, 2013

Welcome to the Bromund Law Group’s law blog. Here we will be sharing the thoughts and analysis of Bromund Law Group attorneys on legal issues of the day and significant concepts relating to the law in the United States. We have four lawyers in this firm now and each one of us has our own unique perspective on the law. In a Republic, that is entirely to be expected, and I hope the reading public will join in on this discussion to make our blog a forum for active citizenship. While we are all advocates for our clients first and foremost, we are also active citizens committed to making ours a ‘more perfect union’.

The first topic for discussion is the Defense of Marriage Act and the recent Supreme Court decision declaring that Congress lacked the constitutional authority to pass this law. The Supreme Court’s action, as noted by Justice Scalia in his dissent, moves the power of judicial review into the arena of cases where there is no controversy between the parties to the lawsuit. (In the DOMA case before the Supreme Court, both parties to the lawsuit agreed that DOMA was unconstitutional.) This is dangerous as it makes the Supreme Court into a ‘super-legislature’ able to declare laws unconstitutional even if there is no controversy between litigants.

Why does this matter? We don’t elect the justices to the Supreme Court and we do not have any means of limiting their power to govern us if their authority sweeps out to embrace any question of constitutional significance. For this reason, the Constitution explicitly limits the federal judicial power to adjudicating cases and controversies, not reviewing all laws and regulations. If this extension becomes accepted, we lose the ability to govern ourselves and instead hand over our sovereignty to the bare majority of judges appointed for lifetime terms.

Please note that this opinion does not address the subject matter of DOMA. I am no homophobe, nor do I have hate in my heart for anyone’s consensual expression of love between adults, so please do not jump to that conclusion. My view is that of a lawyer, focusing on how the means of resolving important questions affects our ability to be self-governing. In that sense, the Supreme Court did violence to the Constitution in this decision, and thereby harmed our republic’s ability to be ‘of the people, by the people, and for the people.

Here’s an excerpt from his dissent: In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.

For me, I entirely agree with Abraham Lincoln, who (in reference to the horribly evil Dred Scott decision) said, “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

And, in case you were curious, I think that the word ‘marriage’ ought to be one that has a social meaning only. I believe that the legal status conveying benefits of inheritance, tax status, and community estates, ought to be ‘legal union’ or ‘domestic corporation’ and that such a term ought to be open to any combination of consenting adults. In the 21st century, I don’t think we have a society of such moral homogeneity that it is appropriate to impose upon all citizens the views of the modern Christian faith (one man/one woman, unified for life until one or the other of them decised to terminate the relationship at their discretion and with the payment of fees to a state court).

Since ‘traditional marriage’, as opponents of same-sex unions promote, is, in fact, the law nowhere in the United States. Traditional marriage is one man-one woman-till-death-do-you-part. Such a standard is the law nowhere.

In a nation with my views, ‘marriage’ would become a term like ‘dating’, ‘in a relationship’, ‘friendship’, or (for some) ‘brother’ or ‘sister’ insofar as it is up to the people using the term to assert its application to their relationship confidently and NOONE has the right to naysay them defining their relationship for them. The nations would only have a right to give benefits, or not, for relationships that the parties elect to submit to the requirements of the state, namely that of licensure and a mandated process for dissolution. I think such a change would be a LOT healthier for our republic.

But we won’t be going that way, even if it happened that the majority of people happened to decide my ideas of how to found the legal instutions conveying benefits for social relationships were adopted. Instead, as a result of our continued shrinking sphere of legislative responsibility for Congress and the states, we will need to await the Supreme Court’s decision to enact this policy change (or any other) according to their sense of what the Constitution means at that time, to them. That doesn’t strike me as self-government.

My worry is that every time the Supreme Court moves the society forward (Brown v. Board, Roe v. Wade, DOMA, etc.) it makes our political branches less responsible for progress and our Republic less self-governing. Congress used to be the forum for our civil liberties expansion (Alien and Sedition Act debate 1797-1801, Civil Rights Act of 1864, the abolition of slavery, the extension of the franchise to women, Prohibition and its Repeal) but as the Court has extended its reach since the 1930s, Congress has become ever-pettier and our civics ever-more impoverished. Lawyers alone cannot govern a nation.

When we try to, we occassionally get it horrifically wrong. Don’t think so? Let me refer you to a few of the Supreme Court’s Greatest Failures:

Plessy v. Ferguson (1857) (Plessy v. Ferguson discussion by PBS) wherein the Supreme Court declared that, “Negroes have no rights, which the white man is bound to respect.” It didn’t cause the Civil War but it did make certain that, even after 600,000 people died to free a race of people from the bonds of slavery, the law would continue the evil lie that ‘all men are created equal’ didn’t include people whose physiognomy included enough melanin to make them appear darker than a person whose forebears came from the North of the North African coast of the Mediterranean Sea. (I have serious biological basis for what people socially identify as a race, so if my phrasing is awkward its because I don’t happen to believe the terms ‘White’, ‘Black’, ‘African American’, etc. are of any useful descriptive quality.)

Muller v. Oregon (1908) wherein the Supreme Court decided it would authorize the government to regulate the working hours of women on the basis of racial welfare. “The physical wellbeing of women becomes an object of public interest and care in order to preserve the strength of the race.”

Kelo v. New London (2005) wherein the Supreme Court decided that the authority of the government to seize private property for public use, paying the owner the current market value of the property, could be employed when the ‘public use’ consisted of selling the land to a private entity for commercial development that would generate more tax revenue for the state. This extension of the ‘takings’ power of the government makes the power so great as to render private property rights irrelevant in the face of a wealthy party who extends a bribe to the public purse to consume someone else’s land. Before this, a private entity had to engage in a voluntary exchange with another private entity to acquire title to land, thereby leaving each of us secure on our own land unless some public need (road, aqueduct, etc.) was apparent. Now, your rights are only secure until someone bribes the government to condemn your land and transfer it to their use.

Lone Wolf v. Hitchcock (1903) wherein the Supreme Court decided the “plenary power” of the United States Congress gave it authority to unilaterally abrogate treaty obligations between the United States and Native American tribes. The decision marked a departure from the holdings of Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832). Given how completely horrible our nation’s history is at fulfilling the treaties even before abrogation, it is shocking to see the Supreme Court go the ‘extra mile’ to make a ‘dependent domestic nation’ into a legal non-entity for no apparent reason.

The Supreme Court writes well, most of the time. It provides a final resolution for lawsuits. These two attributes are useful for our Republic and deserve to be honored and respected.

But it is no fortress of righteousness or bastion for the protection of liberty or self-government. Its actions over the last century have consistently reduced the scope and responsibility of our representative branches of government; and we should arrest that development if we hope to retain our rights under the Constitution our forebears drafted and ratified.