The Law and the Lay

I am of course not a lawyer.  I could never even presume to believe I had the capacity to advise someone on any legal issue they might be facing other than the advice Eric Herschmann says he gave to John Eastman.  I find it difficult to fill out even some of the simplest court filings,  but with enough effort and time I can do so.  But then I find it even more difficult ofttimes to figure out the proper procedure for filing any legal forms I have filled out.  So of course even if I fill out any documents I take them to a lawyer to advise or correct in any errors I might have made and especially to follow the proper procedures in filing any documents.  

Admittedly I have not shied away from being litigious if I have felt there is some reason for me to challenge anything, although often the threat of litigation can solve many things without the litigation. But for me to make any presumptions that I have any ability to manage litigations correctly at any stage within the legal process, well the very fact that I began to be fascinated with and read legal decisions at a rather young age assures me that if I thought I had any capacity to act as an attorney for myself (or advise another), would be utter delusionary on my part to make such an assumption but actually illustrates my lack of knowledge to myself.  Certainly I may feel more comfortable than some because I can cite cases, etc,. to give input to lawyers I might have hired, but i am also aware that I can’t think whatever input I might suggest to a lawyer is superior in any way to the input of that lawyer’s response to my input to him.

But having conceded all of that, I think my interpretation of any judicial finding is just as valid as any interpretation by any lawyer.  But it is not just that I think my interpretations are valid, but that the interpretations of every lay person is valid.  I may are not have the legal ability to write a brief or argue a case, but I, and everyone, has the most important responsibility to interpret, and therefore the judicial scope that is of equal capacity to make any lay  interpretation as  valid as any lawyer’s—or any judges. Because who has to live with the legal consequences of any lawyer or any judge but the lay person.  And of course I believe we all feel we have the capacity, otherwise no one could every justify opposing a judicial decision or any legal argument.  One of the most needed responsibilities of all citizens within any type of participatory government, at its most elemental stage, is the right to participate in comprehending our constitution, in having our interpretations of what the constitution means, of the acceptability of any statute that might regulate our behavior, and consequentially what our courts may determine to be how that constitution or those statutes are interpreted. 

But because the lay interpretation is valid, and even necessary, for a participatory government to even be participatory, this does not mean that participation includes more than presenting our interpretations as valid alternatives or challenging the statutes or interpretations of the statutes through the same legal process.  In other words, I have no right to try to extra-legally enforce my interpretation upon others simply because I don’t accept that interpretation.  I may have totally agreed with the principles behind many “rebellions” in US history.  I may think slaves should have had the right to rebel against their masters. I may think the draft rioters in New York (and conversely in North Carolina) should have had the right to not have to “fight” for a cause they did not necessarily believe in.  I may think the reactions were in many instances more wrong than the the actions of the resisters.  

But ultimately, to me, whether the cause may have been right in my opinion,  John Brown was wrong in trying to challenge the process in the way he challenged it.  Ultimately, Nat Turner was wrong to try to overthrow slavery in the way he attempted to do so.  Neither, I feel, were wrong to challenge the institution and the reactions, in my opinion, that ended up taking their lives with even more violence than they themselves had initiated were more wrong towards just action than the rebellions they led.  But both had the right to challenge the institution they were challenging and I am upset by the consequences they suffered by their challenges against the institution of slavery more than their challenges to the institution,even though I believe they challenged the institution incorrectly.  The reason I believe they were wrong to challenge the institution of slavery in the manner they challenged it was not because they utilized violence as a means, however, but because the violence they utilized ended up in creating worse, rather than better conditions for those who were enslaved.  The problem with violence as a method is that whether or not it succeeds as a method, it begs a violent reaction against it; or should it succeed (i.e. Russian Revolution, etc.) a need for perpetuating the violence in order to sustain their cause. So the only way that violence succeeds is by maintaining the violence if it succeeds. And of course the most obvious historical example is The French Revolution which became totally incapable of restraining the violence used to present their cause even against themselves and the violence became the cause defeating the cause from succeeding.

Yesterday we were privy  to being allowed to hear the debate between Trump’s legal team and the prosecution’s legal term over whether Trump could be gagged about certain issues.  The case descended into (by the court) a discussion of the criminal process and the first amendment needing to find a balance between the two “rights”.  Afterwards I sought out as many interpretations as I could by lawyers who were discussing the issue.  But the one who I thought presented the issue most succinctly was Manubir (“Manny’) Arora, who had been Chesbro’s Georgia lawyer that had represented him in the Georgia rico indictment.  Arora said the issue had nothing to do with the first amendment issues being argued but whether or not he had violated the provisions of his bail and the “gag” order limiting what Trump might say should have not even warranted a hearing.  Arora claimed that this should have been a hearing about whether Trump’s bail should have been revoked because of what he had already said.  Arora’s position on that was that because any client he had ever represented would have had his bond revoked for making the same comments and that of course they would have, therefore the criminal procedures obviously exceeded any supposed first amendment issues.

Well I have to say I found myself clapping in my mind with delight. And the very fact that Trump was being allowed to have this hearing refutes rather than supports his idea of a prosecution being biased against him.  Actually the entire case has been handled by allowing Trump extraordinary latitude to prevent any perception of bias which has resulted in an incredibly biased treatment in favor of Trump that has distorted all normal procedures in a prosecution.

I say this because of course I think there is an overemphasis on the first amendment rights in contemporary society that both miscomprehends first amendment precedent but distort the first amendment into contortions that make the amendment incomprehensible. The most important amendments in our bill of rights are the amendments that protect the individual right to justice–the fourth, fifth and, especially the sixth.  For any other rights of participation in a government to exist the protection of the citizen from unjustice must first be maintained for the individuals who participate. The first amendment, the second amendment,even the fourteenth, can only be assured if justice is equitable in permitting all of those other “rights’ we assume.  From my perspective, all of the most important decisions of the Warren court, and those that extended to some extent into the Burger court were the expanded interpretations that said those rights of the sixth, and the fifth had to be granted the most conservative interpretation.  Some might suggest they were liberal, I say decisions like Gideon, Mapp, Toth, Griffin, Reynolds, Hernandez and of course Miranda were among the most important cases ever decided. They were not the only ones of course, but they are mostly underrated in their import beyond the better known Gideon and Miranda.  But none of these decisions were liberal in their precedent setting stature, but the most possible conservation of the rights of protection granted by those of protecting rights of justice of citizens from being unjustly, even minimally, prosecuted from their rights to be able to participate in the government.  If we throw in the fourth amendment, and the seventh which was more aimed at civil justice, we have nearly half of those first ten amendments to protect us from injustice,and only one where all of the famed first amendment rights are lumped into a common amendment right.  The greatness of the Warren court was to see that a conservative presentation of these rights was of ultimate importance to preservation of any and all rights of participation in the government could not proceed if the rights of equal and fair participation against misjustice did not take the precedence necessary to allow those other “rights” to be fulfilled.  Brown v. Board could only be possible under the principal of equitable justice, likewise Griswold, Loving and even Roe.  Any perceived “right of privacy” cannot exist without a mandated right of equitable justice. So those rights could only be guaranteed by conserving the rights that prevented the government from overreaching by distorting the balance of justice from individual equity to participate in the process that might presume to allow the government to simply “prosecute” justice favorable to itself in any way that could deny the balance of equitable justice into the favor of the government itself.  Of course Griffin was of equal importance to Gideon because Griffin granted the rights to the documents or materials of a case to be accessed if one couldn’t otherwise afford access which was just as important as the right of Gideon to counsel if one could not afford counsel.

Of course we never completely achieved the total fulfillment of those protections and there has been recent attempts to whittle away those protections.  Once again I might suggest that Dobbs is possible only by those attempts to whittle away the rights of justice the Warren court so vigorously attempted to defend.  One can only take away the right to privacy by a judiciary that has limited the extraordinarily conservative position of the near infallibility of the protections of justice by the interpreters of justice.  If the judicial philosophy favors disbanding the protections against injustice, then that same philosophy leads to a philosophy of disbanding the justice of voting rights, of equitable opportunity in the workplace or education, or of any right to privacy.  To take a liberal interpretation of justice leads to a dismantling interpretation of any other rights any individual could have to enhance his just right of equal participation within the system of government, because all “rights” are contingent upon a system of justice that grants the system of government and in  no way denies this just right of defense;and herein lies “true” self-defense, the defense of each self against unjustice that the state  in any way state might try to alter the balance to the state to deny the individual’s ability to justly participate.

So naturally, if this is true,then the right to free speech is contingent upon equitable justice and speech that attempts to deny that equitable participation within the system is criminal to the concept of justice.  To call another man, or to insinuate the right of any others, to have that equality of just participation, is therefore not the right of free speech but an attempt to deny another.  Wrong speech–speech to deny that right to justice to anyone—is criminal in its denial.  And as much of the judicial pushback to Trump’s lawyers indicated yesterday, and as the federal prosecution against Trump suggests, the crime of Trump is the attempt to deny that equitable right to justice.  And I believe the prosecution that with which Jack Smith has indicted Donald Trump has it exactly right in charging Trump with an attempt to disbalance the justice system (overturning the counting of the electoral vote is a denial of that right of justice to all.)

Many parts of justice does not accomplish this conservative purpose of justice.  No matter how many pundits may suggest there is not a two-tiered system of justice in this country, I think it is a difficult sale to anyone who has seen the rich can be fined for stealing millions and the poor can be imprisoned for stealing pittances.  It is a hard sale to attempt to convince anyone who has been the victim of inflammatory language that there is some inherent justice in being permitted to use inflammatory language no matter any illiberal confusion on the meaning of free speech.

But if a society is to be just, it must be just, and while every most conservatively possible avenue to protect the individual right to justice should be preserved to present any misjustice against justice, likewise, for justice to prevail, then attacks against that justice must not be allowed to happen and of course there must a manner to protect those from attack by others who may try to limit another from having the same right.  So while I may have no personal concern for obtaining property no one can have the right to attempt to take my property from me and  I have attempted to challenge them, and  have, on multiple occasions, testified against those who may have tried.  I may even sympathize with those I have testified against.   The principal to me is not about what they attempted to take, but the  system that has developed that favors any type of taking.  The company that takes more for itself that it gives to its workers creates who may not see the taking as wrong, or may even see as necessary because he feels too  much has been taken from him.  I testify against that system that creates the concept, while often feeling those who might who have “victimized” me were as much victims as victimizers.  But if I fight against the taker of much I cannot permit the taker of little. Many a potential rider would not have a full fare or no fare—all they ever needed to do is tell me and I never refused anyone a ride.  Sometimes women would offer me “what I wanted” if I would give them a ride.  I would say okay, and then when they  would ask how I wanted to be paid and when I would say I didn’t need to be paid, I think it confused a few women.  But my reply to such confusion was always that the asking was the payment.  But if anyone ever attempted to simply deceive me, or just take from me, then those few I would place my hand around their wrist and retain them until the authorities could relieve me of them.  Sometimes they would hit me but I never abandoned my hold.  But if they offered me anything, a useless old receipt in their wallet, then I accepted that.  It is not even their taking, it is the system that creates the taking, but to justify my right to not allow the powerful to take from me,I have to defend the principal against any who might have  infused being taken into their own right to take. I had no need to desire anyone’s imprisonment or to extract any revenge, but I felt the right of justice, of my equal participation within  that justice, as well as their participation required me to take the same stance against who might attempt to take from me.  Perhaps that makes no sense.  But unequal justice is no justice and anything that de-equalizes justice eliminates the individual’s full participation in all actions of just behavior.  Unequal actions to see what in others would be in violation of their  bail conditions  to the permittance of trying to determine any balance of his rights of first amendment speech,contradict the need for conservative judicial preservation that must give all rights necessary to preserve misjustice and creates in itself misjustice favoring Trump, that is beyond the conservative rights granted to everyone against misjustice.

Justice for the individual can only exist if it is also maintained equitably by exact principles.  There may well indeed be mitigating circumstances that affect any punishments that might be imposed.  I will argue proliferously that justice often fails.  It offers takes those conservative rights of justice from some, likewise it often grants more liberal rights to others and both are a denial of justice to all.  So Trump should have no right to speak maligningly  of others, not just because others in the process  would not be permitted to do so, but the speech he uses to malign oppose free speech and are attempts to frighten others from their testimony, but to possibly encourage others to deny those rights to those he maligns.  That is a wrong way, in my opinion, to understand the freedom of speech, because it is speech intended to deny the same just right of speech. It can never be my right, or anyone’s right, to disparage or intimidate another’s right to the equity of justice through my intimidation or disparagement of that other. That right is the right of each person to be justified equally to participate equally and with the same authority to participate equally and speech that denies another of that participation is speech not aimed to equal participation but at speech that denies all relevance that free speech has that grants the participation of justness by the freedom of expression.  Speech centered on denying justice is not free speech but an expression of contempt against free speech.  

So I want to conclude with a term that Trump’s lawyers used quite frequently in the conversation yesterday.  That was the concept of the “heckler’s veto.”  Trump’s counsel was correct in asserting that the heckler’s veto is considered an illegal use of speech by our court’s precedent.  It seems to me that in this case most of the “heckling” is coming from Trump.  Be that as it may, I began by suggesting the method of a John Brown or a Nat Turner was wrong not because they were violent but because violence can succeed only by maintaining the violence on a sustained level.  Most frequently violence, and  the violence used to suppress violence, overwhelms and becomes more violent in its suppression of the violent.  It is why you can’t shoot the bad man yourself, at least in supposition, but refer the bad man to the system of justice. I shoot the bad man, his follower shoots me and my follower; in the end, justice, or the cause for justice being called for becomes more unjust against the users of violence and seldom concludes with the justice being sought.  So what I think should be a very determinative way of obtaining justice is by permitting the heckler’s veto as a very viable alternative to obtaining justice.  

If those against Nick Fuentes right to call for white supremacy can be permitted to make his voice become drowned beneath their heckling of his voice that calls for the violation of other’s justice is  that not an extremely just way to deny him the justice he wishes to deny to others?  Why were the protestors in sit-ins in the 60’s forcibly carried out, and sit-ins were not justifiable attempts to obtain what they might have considered to be the cause of justice?  Why would the best protection against police violence not be surrounding the police and making their attempts at violence more difficult  to be carried out?  Yes, perhaps they might  call forth more police and that had might lead to more violence,but it seems a justifiable way to protest for justice to me. 

And just to be clear, this was not what happened on January 6th. January 6th was the opposite, it was an incitement to prevent justice (of the  electoral process) on an issue (of a stolen election) that had already been nearly unanimously adjudicated as not having been stolen.  Yet there could have been another option. There could have been petitions of those citizens to congress, there could have been more attempts to argue in court beyond January 6th, though its doubtful the courts would have entertained them.  There could also have been public evidentiary hearings around the nation where evidence for and against the election could have been presented to the country.  But the fact that no one ever has the right to “heckle” for justice,seems to me to be wrong.  It seems that not only is heckling a viable option for obtaining justice, it seems that any violence would be on the government’s part ot anyone trying to deny the justice of participation in determining justice; and that could cause  (possibly) a greater movement towards the cause of justice.  In some ways, the Black Lives Matter demonstrations around the nation were an attempt at a heckler’s veto against police behavior perceived to be unjust.  Certainly the Bonus Army (which did not end well) was an attempt at a heckler’s veto, or more recently Occupy Wall Street.  

But I just sort of really like the idea that the voice of someone like Nick Fuentes could just be heckled enough to prevent him from ever opening his mouth.  Why does he have the free speech right to spew hate but no one have the right to heckle his voice from spewing that hatred?  And then any violence is not on the hecklers’ but on the spewers of injustice.