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When Justice Leaves the Courtroom, Hope Turns Elsewhere

This article was written for the Loompanics Unlimited summer 1998 catalog supplement.

In Alaska, a demonstrator is charged with felony jury tampering for shouting, "Call 1-800-TEL-JURY!" within the hearing of jurors. Those who dial the number hear a recording that simply informs them they have a right to vote their conscience.

In Washington state, a judge and three U.S. attorneys covertly excise key pages from a booklet before allowing it to be entered as defense evidence in the trial of several militia members. They are not charged with evidence tampering.

Another day in the American court system. Justice, or its simulacrum, is dispensed as judges and prosecutors see fit. There's nothing new in that.

What's new, or what's dangerously on the increase, is the systematic rigging of the court system to preserve judicial power and punish anyone who dares challenge it. And what's more important -- but clearly unforeseen by the riggers -- is the catastrophe likely to arise from this power grab.

Myths and Hopes

We cherish a myth that the justice system is the last, best hope for the beleaguered "little guy" in the world of the powerful. No matter what happens, we've been told, even the humblest of us can "have our day in court," be heard and be vindicated, as long as truth and fairness are on our side.

This was never literally true, of course. Any poor, black man can tell you the reality of justice. The surviving, imprisoned Branch Davidians can tell you, as can the girlfriend of a drug dealer, locked away for years for sitting in a car during a transaction. Dozens of militiamen, set up by government informants, can tell you. As can dope smokers, tax resisters and businesspeople who made the mistake of violating arcane regulations.

Nevertheless, justice is sometimes served, and the myth prevails. There are good reasons why it must prevail.

In a civil society, the myth of justice serves two related -- if contradictory -- purposes. On one hand, ordinary people need the myth to give them hope against the powerful. On the other, the powerful require ordinary people to believe in the myth because it keeps the rabble complacent.

A belief in justice -- even an erroneous belief -- can be the line that separates gentility from riots in the streets.

Even in these days of cynicism, there has still existed a flame of optimism about the power of ordinary people in the courtroom. The belief is so strong that some advocates of limited government have built their main hope upon it. The constitutionalists -- loosely, the legal researchers, sovereign citizens and pro se litigants who seek to limit the influence of government -- have spent endless hours and endless dollars building cases for, and on, the law.

These hopeful Good Citizens have cherished the belief that they could go into court, present their arguments and (if those arguments proved intellectually, historically and constitutionally correct) prevail against institutionalized injustice. Not only prevail, personally, but return America to a land of limited government and individual rights. With that hope, and armed with reams of legal documents, many have besieged courts and other government agencies.

Some of their arguments have been bogus. Some undeniably correct. A few have won the day. Most have been futile.

A Change in the Tide

Recently, a tiny time bomb landed in my e-mail box. In one sense, there was nothing new about it; some of us radical anti-government curmudgeons have been shouting a similar message for years. But given the source, it was revolutionary.[Note 1]

Headed "Citizen Soldiers," the message said, in part:

I have just returned from a meeting with a true constitutionalist attorney here in town, one with past and quite recent important victories in the area of tax issues....Basically, he intimated we as Americans must finally realize there is no such thing as an unassailable constitutional protection in this republic anymore.

....Face it, we're on our own; there is not and CAN NEVER BE any 'silver bullet.' So what's new, you ask? Check the endless well reasoned posts on this list, as well as the other lists many of you monitor. We know the law better than the DOJ, we have higher judicial scruples than the judges, and we're losing ground every day. In essence, we are fielding the GE College Bowl winners against the Gestapo.

I have spent endless hours over the last five years studying and applying the law, contacting the IRS, my congressman...and the only difference it has made is that I understand PERFECTLY the gargantuan fraud this government (sic) is perpetrating on its citizens. The question arises: do I continue the futile?

Within days, confirmations poured fourth. One came from attorney Steffan Bertsch of Lake Stevens, Washington, author of the book Crisis in Our Courts:

I am sorry to admit that your writer is correct in that there is little or no law running the "justice" system; American justice has given way to ignorance, cowardice and corruption.

....Henry David Thoreau told us that if a law was immoral, that we as moral people must realize that we will not live long enough to change the immoral law by any democratic process and that we must realize that "if it [a law] is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law." On Civil Disobedience.

This advice is especially true today when Congress and state legislatures pass so many laws that lawyers cannot read the annual output and are forced to resort to reading summaries of statutes and regulations, hence are left vastly ignorant of the laws. American laws are so numerous that "ignorance of the law" should be made a defense if a reasonable person would not know of the law.[Note 2]

The essential point is, again, not the words, but the source. The last dogged proponents of "the system" are beginning to abandon hope.

The justice system was the last legal avenue for these "little guys" and their principled attorneys.[Note 3] What has changed? Why are they abandoning it now when it never has been a perfect system? And, perhaps more important, what happens after they bail out?

Why Now?

The various justice-system reformers have seen some victories, some defeats. The record is inconclusive. But the very existence of these challengers threatens the security of the powers-that-be. Recently, those powers have been taking harsh steps to fight back: