There is an excellent HBO movie about the Wannseekonferenz, called Conspiracy. The Wannseekonferenz was the meeting at which senior Nazi military officers and government officials met to discuss the solution to the Jewish question.
One of the things that stuck with me about the movie was how the discussion about who was Jewish and how the murder the Jews always came back to the law. There is one scene in the movie where the Nazi officers are discussing how they want what they are about to do to be legal, and based on German legal precedent. The conference itself was attended by a number of German lawyers. It is truly amazing that the basis for one of the worst atrocities in human history was grounded in law.
In Shakespeare’s ‘Henry VI, Part II, act IV, Scene II, Dick the Butcher famously says “The first thing we do, let’s kill all the lawyers.” This line has been misinterpreted by history. It needs to be understood in terms of historical context.
“The earlier Peasants’ Revolt under Wat Tyler actually took place during the reign of Richard II. Unlike the Cade revolt, this rebellion was directed against lawyers and against what the revolutionaries considered unjust laws and oppressively harsh legal enforcement of those laws. The peasants revolted against the legal slavery imposed on them by law and their consequent lack of political and legal rights. The peasants viewed lawyers not as defenders of liberty, but as the instruments of slavery and oppression.”
Shakespeare’s line was meant to convey hatred for the class of corrupt and malicious lawyers, who in collusion with the government, used to law as a tool to oppress the people.
It is in this that Henry the VI and the Nazis have something in common. Before the first blood was spilled in war it was the lawyers justified it happening.
I have been absolutely aghast at what I have seen unfold over the last two weeks in House of Representatives and on the TV news.
I watched a sitting United States Senator, a representative of the State of West Virginia, a man who is responsible for crafting the laws of this country say: “The problem we have, and really the firewall we have right now is due process. It’s all due process… But due process is what’s killing us right now.”
Senator Joe Manchin took the single greatest protection of the American people and in one argument, flipped it on its head and made it into a liability.
Due process is been an asset for free people against tyranny since 1215, with the Magna Carta: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
In the same vein, sitting United States Senator Chris Murphy, an attorney in the state of Connecticut and a graduate of the University of Connecticut School of Law, described this near millennia old bulwark against abuses by the state as “a red herring”. He was helped along in his debasement of our Constitutionally protected civil rights by a woman, Andrea Mitchell, whose choice of career is guaranteed by that same constitution.
Previously, Senator Murphy had branded due process as a “terror gap.” It is a catchphrase to promote the idea that terrorists can buy guns because some of We the People keep holding onto our right not to have our liberties suspended by bureaucratic fiat.
Senator Elisabeth Warren backed up Senator Murphy’s attack on due process with a depraved contortion of illogic.
According to Senator Warren, due process is how ISIS gets guns. If we protect our citizens from government abuse, the terrorists win.
This is the same position taken by the Democrats who staged a petulant sit-in in on the floor of the US House of Representatives.
These politicians and members of the legal protection say this because they have no respect for the limitations of power granted by the Constitution. Some, in fact, are contemptuous of those limitations. Judge Richard A. Posner, of the 7th Circuit Court of Appeals, wrote his opinion of our founding document in a piece in Slate. Keep in mind that this judge is also a lecturer at the University of Chicago Law School.
“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries—well, just a little more than two centuries, and of course less for many of the amendments). Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21stcentury. Which means that the original Constitution, the Bill of Rights, and the post–Civil War amendments (including the 14th), do not speak to today.”
When you have no respect for the origin of our foundational document or the events that inspired its creation, it is easy to dismiss the rights it guarantees at a whim.
Watch the DHS official, in this video being grilled by Congressman Trey Gowdy, completely disregard, in fact dismiss, the concept of due process.
This attack on due process, treating it as an impediment to justice rather than a instrument of justice is not new. The dismissal of due process has been at the forefront of Liberal politicians’ actions on campus rape. White House guidelines all but remove the idea of innocent until proven guilty from campus rape investigations. The loudest voices in the campus rape debate have framed those who are in favor of due process as “rape apologists.” Rape survivors are to be believed, unquestioningly. This has been allowed to progress because campus disciplinary hearings are not courts of law, and the same Constitutional standards of legal protection that apply in court do not apply on campus.
This undermining of legal protection has not ended at the campus gates, but has led to the creation of a “Yes means yes” law in California, which is about as Orwellian as a piece of legislation regarding interpersonal behavior can be. And that is a feature, not a bug.
In his defense of California’s “yes means yes” law, Ezra Klein stated:
To work, “Yes Means Yes” needs to create a world where men are afraid. For that reason, the law is only worth the paper it’s written on if some of the critics’ fears come true. Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.
Let that sink in for a moment. A US citizen is openly advocating for a law, that when applied correctly, convicts the innocent in ambiguous or spurious situations, in order to strike fear into the hearts of an entire demographic of people.
So much so for Blackstone’s formulation, on which America’s judicial system was founded: “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”
With “yes means yes” the law becomes a tool of legal terrorism. Wrongful conviction is desired because of the chilling effect that it will have. Every principle of justice that We the People hold dear as a protection against overbearing government is inverted and turned against itself to justify this law.
It is through this legal convolution, that we end up with wording in the Flake Amendment that says:
No district court of the 23 United States shall have jurisdiction to consider 24 any claim related to or arising out of facts and circumstances that could have been included in a petition filed under paragraph (1), including any constitutional claim.
The legislators who drafted this bill might as well have said the passage of this law hereby overturns Marbury v. Madison and abolishes the exercise of judicial review.
They knew at the time of writing this bill that what they were doing was pure applesauce, to quote the late, great Justice Antonin Scalia.
This is just the latest in a long history of attacks on the rights of man, wherein those whose goal is to increase the power of the state make their grab by twisting and perverting the law, sodomizing all legal precedent of protection, to enslave the people with the chains meant to restrain the power of the state.
What we are seeing is not just the slow erosion of civil liberties by the state. This is a new an horrifying, full-throated attack on our civil liberties by politicians, bureaucrats, and the media where we are being told that the civil liberties that have protected the citizens of this nation for eleven score and ten years are in fact what is killing us. This a detestable perversion of the principles of American jurisprudence.
Our rights are not what endanger us. To be told the opposite is something we cannot abide.