No Day In Court

Not everybody deserves a "day in court."

"Everyone is entitled to their day in court."

This simple statement expresses what most Americans believe defines a true justice system.  High or low, rich or poor, guilty or innocent, all are entitled to their day in court so that justice can not only be done, justice can be seen to be done.

Why is this belief so strong?  We've heard it since we were kids, from every schoolteacher and TV broadcaster, from both right and left.

It is this false and destructively mistaken idea which has led directly to the travesties of "justice" we've seen over the last half-century, to the point where our current justice system is manifestly anything but.

What we all believe simply is not so.  Let's see why.

Back to the Constitution

In discussing good governance, it's always best to see what our Founders had to say.  The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...

and goes on to describe further rights of criminal procedure.  We've already abandoned some of these rights - today's criminal trials can go on for years, hardly "speedy" - but notice the opening clause: Criminal prosecutions.

Accused criminals are entitled to their day in court.  Elsewhere, the Constitution requires grand-jury indictments for what are now called felonies and states that criminal punishments like prison or confiscation of property can be applied only after conviction in court using proper due process.  So the idea of a right to a court trial is a very important one - if you are accused of a crime.

It does not apply to everyone with a grievance.  Yet that's what it's been twisted into, both in the United States and abroad.

When we hear silly court decisions, like the famous McDonalds hot-coffee case, we think "What a stupid court!"  True, as far as it goes - but really, it's "What a stupid judge!"

In civil cases, and criminal cases too, judges have the power to throw out cases that have no business wasting the court's time.  But they don't.

In other words, just because you have a complaint does not mean you have a right to a day in court.  It is, in fact, the duty of the judge to reject cases that fly in the face of common sense, reason, or the law.  Suing because hot coffee was hot?  Absurd!

The trouble is, as lawyers well know, juries are unpredictable and often subject to "Robin Hood syndrome."  A wealthy, successful corporation can be entirely in the right, and yet the jury will give a totally unreasonable award to a sympathetic and poor plaintiff.

This is bad enough when the motive is simply money.  It's far worse when the target is our entire culture, because precedents can be established that have no business being part of the law.

Get this joker outta my courtroom!


Remember the "flying imams" who frightened a planeload of passengers with suspicious terrorist-like behavior and were thrown off?  Naturally enough, they sued the airline; appallingly, they tried to sue the passengers who reported their suspicious behavior to the authorities.

In that case, Congress passed a law protecting reporting citizens from lawsuits.  Well and good, but it shouldn't have been necessary.  No charges were ever filed against the imams, and no felonies pursued: they had no right to a day in court at all.

Yet they got one, and contrary to the findings of the airline, ALPA, and the DHS, a judge said that the airline didn't have probable cause to be suspicious of them.  Remember, probable cause is no proof of a crime nor a conviction, merely a reason to think that there's something worth investigating.

So now, as a result of a lawsuit not being thrown out when it should have been, we have a precedent that refusing to sit in assigned seats, requesting unnecessary seatbelt extensions (a useful weapon), traveling with one-way tickets and no luggage, and expressing (in Arabic) support for Osama bin Laden and condemning the execution of Saddam Hussein, are not suspicious and are not legal grounds even for an investigation!

Because of this false belief that "everyone deserves their day in court," we are less safe from terrorist attacks.

How much more is this true when involving real terrorists?  The Los Angeles Times published a desperately wrong editorial:

The idea that every person deserves his or her "day in court" is a fundamental principle in the United States and many countries worldwide. Yet more than nine years after 9/11, the United States remains paralyzed not just about how to give the thousands of detainees in U.S. custody around the world their day in court but about whether to give them that day in court...

The Obama administration now intends to issue an executive order establishing indefinite detention without trial for detainees at Guantanamo Bay. This decision will formalize this violation of basic rights. Denying individual accountability will now be official U.S. policy and law.

What day in court?  Whatever evils the Guantanamo detainees have committed were not done in the United States - and, as the Constitution says, the accused are entitled to trial "by an impartial jury of the State and district wherein the crime shall have been committed."  They should have a word with a lawyer in Afghanistan, Iraq, or Yemen perhaps; but they certainly have no business in an American courtroom.

In any case, combatants in war are not criminals in the usual sense; they don't fall under criminal statutes but under international treaties and custom.  President Bush defined the Guantanamo inmates as "illegal combatants" because they disregarded the Geneva Convention laws of war (wearing uniforms, having an organized command structure, not hiding behind civilians, etc.) but that doesn't make them criminals under the Constitutional definition.

Yet we find our enemies using our own legal system against us.  The purpose of having the rule of law is to protect the innocent, not shield foreign enemies and pillory loyal citizens.

What's the end result?  In recent years we've seen lawsuits against the Pledge of Allegiance, a war memorial containing a cross, the display of the Ten Commandments, and any number of cherished Christmas symbols.  All these are longstanding elements of American culture, valued by generations of Americans - and all are being attacked using our very own institutions, designed to protect us in our liberties and no other.

Judging Righteous Judgment

So much liberal and statist thought has permeated the American intellectual environment that conservatives often succumb without even thinking about it.  When this happens, though, we've lost at least half the battle.

Instead of accepting false premises, we need to attack them clearly and with logic backed up by facts.  Criminals are entitled to their day in court.  Just any old joker - illegal immigrants, foreign terrorists, people with a complaint that violates everything America stands for and with no support in law - simply isn't.

It's time for judges to step up to a forgotten part of their responsibility and start throwing obviously bogus cases out the moment they are filed, as longstanding precedent allows them to do.  Other than making their fellow lawyers richer, there's no reason we should waste our time and money on them, and put all America at risk of a rogue judgment.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Law.
Reader Comments

to those of us who follow Jefferson's tenet that "all men .. all Men are created equal [and have] rights, that among these are Life, Liberty " and of course that includes Muslims and enemy combatants as well.
Or was he wrong?
Bush's legal nullification of Jefferson's intent is at best idiocy, at worst criminal, and betrays his statist proclivities.
That to this date many "detainees" have yet to hear their charges, let alone get a trial, suggests Pres Obama shares this trait.
Even the USSR was more open in their trials of enemies of the State~!

January 20, 2011 9:44 PM

All men are equally NOT entitled to a day in court unless it's a criminal matter. Enemy combatants in time of war are not criminals.

January 21, 2011 9:48 PM

@ Irvinx

The US Constitution applys to American citizens and American citizens ONLY. Hence why it is called the US Constitution. If we start trying enemy combatants and Saudi nationals in American courts, where does it end? If we recognize ALL men (and women) to have their day in court, then whats stoping us from going into the tents of Darfur and dragging them into courtrooms? Or maybe sending lawers into Pakistan to appeal a woman's sentence to stoning? Sounds a little costly and rediculus to me, seeing as we just dont have that many lawers/judges/or common sence anymore. What the hell is the matter with you?!

January 24, 2011 7:54 AM

You didn't even mention the ultimate in economy-destroying lawsuits - "climate change" liability suits.

January 24, 2011 8:05 AM

Can you tell me who can shed light on Allen Stanford's detention. He was accused of running a ponzi scheme over 2 yrs ago. He's not had his day in court as he's now a drug addict thanks to the prison system-currently waiting to hear if he'll be allowed to detox.

The receiver has given away or sold all of his possessions. A judge declared him indigent. The receiver has spent $100mm+ of Stanford's money to prepare a case against him yet Stanford has no access to his money for his defense. Isn't that unconstitutional?

The receiver's suing the financial advisors and clawing back money from Vijay Singh who accepted sponsorship money. There has been NO conviction!

Even if there was how can they be held responsible? The ramifications of this abuse of power are astounding but no one is screaming foul. "Instead of accepting false premises, we need to attack them clearly and with logic backed up by facts."

Any suggestions as to how to attack?

January 24, 2011 6:46 PM

@Nathan Bush your declarations are the basis of tyranny... King Bush II is not the final arbiter, but the Constitution which (literally) says "the accused" ... that you think the State has the final say is to demean us all as humans w/ rights, and not subject to the whims of the State..
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.."
that Bush Cheney enjoyed a war not declared, and the Republican marionettes were cowed does not mean we citizens are not... such idiocy gave Obama a clear mandate to further his predecessor's crimes
Where were you when the GOP ran up the deficit, declared war upon the Amerikan ppl, and enjoyed corporate bail outs at everyone's expense?
Is your virtue so diminished you cannot tell ethical behavior from insanity?
Mine is not: republicans a la Bush/Cheney, McCain Palin et alie are worse than evil, for they claim their goodness is w/o blemish...

January 26, 2011 4:19 PM

It is called the US constitution because it primarily restricts the actions of the statists in this government ... and it frees all people who may encounter its tyranny... that someone might ignore its restrictions brings to mind dictators like Chavez, Mubarak, Hitler (~!), Nixon in 1971 and the current crop of petty fools like Bush II & Obama ... that you support its usurpation is the sort of thinking that gave us Obama after Bush, and will probably give us another person will thinks government ought to be the final arbiter of our liberty, and not some foolish notion such as best expressed by Jeffersono : "all me .. are endowed ..with unalienable rights..."
That includes women, children, Mexicans, the French and even the Brits and Arabs, not just middle aged white men calling themselves Tories, Conservatives or Royalists.

January 28, 2011 12:53 AM

Look, I dont know where you get off accusing the entire GOP from '00 to '04 as outright evil. I'll give you short sighted, or even incompetent but evil is a bit of a streach. Do you even know the last time Congress signed off on a legitimate war? 1942! (I'm not counting Vietnam because JFK had boots on the ground long before LBJ) That includes every conflict that the US has been involved in since WW2. And if we were to start trying every enemy combatant in civilian court we would be the first to do it in the history of the world. We would also be bankrupt within the first 2 years of this new policy. The enemy already wants to bleed us dry, this would just make it child's play for them. I'm with you in getting out of Afghanistan, but to save the most American lives as posible, we must loosen up the rules of engagement, accomplish the mission and GTFO!

February 1, 2011 11:32 AM

I agree about the rules of engagement; I disagree about captured combatants: as you so well stated, both sides are "illegal" ...
and I think the moral high road is imperative for our own sanity, to say nothing of the politicians who know better trhan to use torture & detention w/o even bothering to offer a trial:
I recall the Nuremburg trials: how the Nazis were convicted of the same actions that is now so acceptable to thugs both in the Army and in Washington.
That's not my Amerika~!

February 1, 2011 12:38 PM
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