February 11, 2006 

Because I will be using the phrase "RULE OF LAW" so many times, it makes sense to explain, at the outset, what I mean by those words.[1]

Most of us have heard, been taught, or presume that ours is a Nation that is ruled by law and not by men.  There could not be any more foundational principle essential to our existence as the Nation we were meant to be.  This is the cornerstone of all cornerstones.  When this cornerstone crumbles, our very government crumbles with it. 

Interestingly, the factor that most distinguishes Anglo-American jurisprudence from jurisprudence in communist Russia is the place of precedent.  In communist Russia, judges were free to judge each case on its own irrespective of prior decisions.   

In Anglo-American jurisprudence, following precedent, for hundreds of years, prevailed as the absolute most important cornerstone of law.  This remains the law on the books, but, nowadays, judges feel free to use or ignore rule of law at will depending on whether the judge likes the outcome dictated by prior law.  This is so very wrong; this is immoral because it requires intellectual dishonesty. But, to a mind that denies the existence of morality, a statement that something is immoral is hot air or, worse still, a sign of an anti-intellectual.

In modern day America, including Shelby County, major social problems can be traced to the deteriation of rule of law.  But, most people do not know this deteriation to be the cause.

Judges, up and down the scale, are the trustees in whom the public has vested confidence to assure that rule of law (in stark contrast to the rule of men) will forever prevail as the bedrock of our Nation.  This is the most sacred trust the public vests in any human beings.

When judges to whom this public trust has been granted use the office to dictate rules instead of striving merely to be announcers of already existing rules, the public trust is breached and  rule of law disintegrates. 

The means by which judges lay waste to rule of law, nowadays, is by result-oriented adjudication. Being result-oriented makes the judge a ruler rather than one who merely finds the controlling rule and announces it, even if it produces a result that is one the judge, personally, believes to be unjust. What is just is determined and determinable, exclusively, by the rule. Justice has absolutely nothing to do with what a given judge on a given day believes is ¿right¿ or ¿just.¿

I agree with a quote from Richard John Neuhaus, editor-in-chief, First Things, May 1998:

[T]he culture war is not between moralists and amoralists but is a conflict of moralities; the one grounded in tradition, religion, and concern for the common good, the other premised upon the liberation of the autonomous self; the one accountable to democratic deliberation and decision, the other imposed through the manipulation of the judiciary. (emphasis added) 

Because some judges dictate the law, rather than merely applying preexisting law, some judges become unelected and, virtually, uncheckable rulers.  This undermines the rule of law.

Whether rule of law, though officially in place, is now a bygone, as a matter of practicality, is yet to be known.  We are in the fourth quarter, the anti-rule of law team appears to be ahead, but the momentum has shifted to the rule of law team. It is a nail-biter.

Two incidents are indicative of the erosion that has been coming from law schools for decades.

A young lawyer who worked in my office reported that she was taught at the University of Memphis Law School that, as a rule of thumb, if a case is older than she, she should not pay much attention to it; in other words, it should have no bearing on what the law is today.

Another person was a student at the same law school while he worked in our office. At the time, he was taking a class in Anglo-American Jurisprudence. I ask what he thought about Coke and about Blackstone, men who had more influence on the development of Anglo-American jurisprudence than any other. His response was that he had never heard of them. Shocked, I asked him to ask his professor why so. The professor¿s reply was that these men had nothing to teach of relevance to modern-day issues.

How very sad!

Most people do not understand why rule of law should attract so much attention.  They know something serious is going on, but they cannot figure out exactly who has the ball and who is trying to get the ball from whom or what the prize is.

To contradict this apparent death knell for rule of law an overwhelming outcry from the public can be stated at the polls in August.  To understand why the outcry is so important, it is necessary to know how public morality fits into or, more accurately, is the mother of law.

A public nuisance, by definition, is anything that presents an imminent threat to public health, public safety or public morality.  The law today has been the same, literally, for centuries. 

For most of American history, most of the law concerning public nuisances has concentrated on protection of public morality.  Never have threats to public morality been reduced in importance relative either to public safety or to public health.

Those who have engineered law for the new age have attempted to lay waste to the concept that preserving public morality is a high and primary purpose for the law to exist.  These persons believe that they successfully have jettisoned public morality as a viable element of nuisance law. That of which they are most proud is that they believe they did what they did while the public slept. Their strategy was (and remains) brilliant .

They indoctrinated future government and business leaders and law students and waited for them to infiltrate government, most importantly, the judiciary. Then, they sat back and watched the law melt under wild and crazy result-oriented adjudications that treated rule of law as not relevant to modern life.  

Their skill in accomplishing their predetermined result, likewise, was brilliant. They never revealed, outright, what they were doing. They gave lip service to rule of law and wrote opinions that cited cases and, to the casual observer, looked like the opinions from decades earlier, when rule of law truly reigned supreme. What a brilliant charade!

The question now is whether rule of law can be rescued from the jaw¿s of defeat. If so, the law¿s devotion to public morality will persist. If not, public morality will be swallowed up in the grave of rule of law.  

Have the enemies of rule of law won the war or just some major battles?  Can law be killed without the public having a say? 

Never have persons who wish to cut public morality out of nuisance law had the guts to ask the public, through its legislature, to do what they attempt to do by the underhanded "manipulation of the judiciary." These enemies of rule of law fight to keep the public out of the process. They fear the public will not agree that what they have decided is good for the public is what the public thinks is good for the public.  

Through engineered non-enforcement for long periods, by takeover of legal education and by infusion law school product into the Bar and onto the Bench, the notion has been spread for so long, among lawyers, that public morality should not be a matter with which the law should be concerned that the law concerning public morality has been anesthetized to the point of virtual atrophy.

Among peers, for lawyers and judges to advocate on the assumption that current centuries-old law concerning the fact that property used to threaten public morality is a public nuisance is apt to draw a sneer or an aspersion.  Such a suggestion is considered anti-intellectual.

Those who consider public morality to be outside the realm of law have to admit that the law remains on the books (i.e., the people¿s legislatures have never repealed it), but they see such law as if it is sick unto death, therefore, able to be treated as if not law at all.

Is the law that so strictly outlaws and protects against public immorality, though still on the books, nothing more than a hypocritical statement that, as real law, is dead? 

The existence of a public nuisance requires public officials to react in emergency fashion to stamp out the imminent threat.  Whether the threat is to public morality or safety (burning building) or health (botulism outbreak), the law considers each equally to be an emergency.  Public nuisance cases, in court, are required to take first priority over every other case and to be moved to conclusion swiftly and without interruption. This usually occurs if the threat is to safety or health; this rarely occurs, if the threat is to morality.

Just think.  If there were a smoke stack emitting toxic fumes making people physically ill in River Oaks, do you think that the law would require investigators, before seizing the smoke stack and shutting off the fumes, to go to court, file papers, give notice to everybody and his dog, have interminable hearings, debate for months over who paid the prosecutor and on and on, while the fumes continue to make people in River Oaks sick.

The notion is so preposterous that stating it is ludicrous.

Do you think that toxic fumes over River Oaks present anymore threat to the public health than the strip clubs present a threat to public morality? Only a disingenuous person would say to the contrary.

Because the behind-the-scene powers have so dismantled rule of the law, as it pertains to protection of public morality, if officials reacted to shut off the threat to public morality with the same urgency and precision as the same public officials would shut off the fumes over River Oaks, they would be criticized by those who consider that threats to public morality have been removed from the list as public nuisances.

The criticism is a farce unless, without repealing the nuisance law pertaining to public morality, backroom social engineers have been able illegitimately to insure that rule of law with respect to public morality is dead.

The judicial system has ranged from turning the law against itself to reacting as if the immorality is bad manners only, if that. 

Some judges react to efforts to enforce nuisance law to protect public morality by turning the law against the law enforcers, entering injunctions prohibiting them from going into court and asking courts to abate the nuisance.

Is there any chance that a judge would enjoin a prosecutor from abating, by closure, smoke stacks emitting toxic fumes in River Oaks? Not a chance! But, some judges would rush to the minority view in Justice Douglas and Justice Black¿s dissenting opinions to enjoin a prosecutor because the public nuisance he was abating was ¿only¿ a threat to public morality.

The same statute and the same common law is involved. The precedent requiring abatement of public morality nuisances is powerful and longstanding. But, such judges of the judiciary slip behind the circuit board and cut the wires. So, one can follow rule of law and punch the right button, but the button is no longer connected to the power source.

Judge Brown is now gone. Can the circuit that leads to public morality¿s power be reconnected? It all depends on whether persons in black robes will adhere to rule of law.

Among those who reason with the same presuppositions as Judge Brown, there is an arrogance. The arrogance is stock-in-trade for elitists who view the public as too ignorant to care for its own good. 

It is with pride and a sense of righteous indignation that Judge Brown feels honored to step in to "protect" the public from what Judge Brown thinks is General Gibbons¿ backward-thinking ignorance of the "Constitution." 

This is balderdash (which threatens the stability of the Constitution), but one who believes that the public has not filled the courts with judges who have this elitist view of life has not caught up with reality. 

Rule of law demands that public officials treat an imminent threat to public morality exactly the same as an imminent threat to public health or public safety.

There are those in and out of government who believe that the public should be isolated from input into the selection of judges or, for that matter, in other aspects of the administration of justice. 

At base, this philosophy is an elitist view founded on the conventional wisdom that the public is too populated by too many people who are too ignorant to make intelligent choices with regard to who should serve as a judge.  For certain, this thesis is not without some glaring evidence to prove the point. The cry is that the public might elect another Roy Bean-type judge.

Nevertheless, in my opinion, some of the very poor choices made through election by the public is not sufficient evidence on which to base a decision that the public should be eliminated from the selection process. 

There are some glaring examples of judges who have been selected by the Judicial Selection Commission and Governors, i.e., isolation of public, who provide evidence that isolating the public does nothing to insure good judges will be in office.

In my opinion, the public needs to scream out, by a mandate expressed at the polls in August, that enough is enough.  The public needs to say, in the loudest voice the public has, that it will no longer tolerate dilapidated administration of justice. 

Rule of law must be reinstated as the centerpiece of all government. 

The present state of the justice system and the breakdown of rule of law has not occurred overnight.  The breakdown could have been prevented and, probably, would have been, if the public had understood what was happening.

Conventional wisdom of social engineers is that what appears in this explanation is wasted on the public because the "public" does not care and, if the public did care, the public is too stupid to understand.

Conventional wisdom is that the public's ignorance has to be manipulated to draw the public, like lemmings, in the direction the social engineers wish the public to be lured. 

The people who are effective as leaders are said to be the best manipulators of the public's ignorance. 

The thought is that, if you give the public details necessary to a full comprehension of the problem/solution, the details will be rejected (like trying to feed meat to a newborn). At best, the public will be confused.

Conventional wisdom is to accept as a proven reality that public morality, like Lord Coke and like Blackstone, is not relevant in modern society and live with it.  So, it goes, since I know this "truth," I am supposed to be smart enough to use it to my advantage.[2] 

In my opinion, institutionally, the judiciary, is in most serious disrepair.  The public interest is gravely threatened by this.

Two factors combine to cause this threat to be alarming. 

First, the public is clueless.  The threat has evolved in full view of the public, but the public has no idea that the broken down judicial system is the root cause of so many serious social problems.

The public cries out when the symptoms manifest themselves.  But, you could ask 10,000 randomly selected members of the public what caused the symptom, and, if even one stated (by whatever words) that the problem was the disintegration of rule of law, I would be shocked.

Second, mediocrity and sub-mediocre ways have so long prevailed in the administration of justice that most judges, who are responsible for preserving rule of law, either fail to comprehend the problem or, if they comprehend, dismiss it with the casual remark that "there's nothing anybody can do about it." 

The notion that "we are doing the best we can with what we have to work" seems to be a salve that causes resignation.  Many times, I have heard: "It is never going to get any better anyway; so, why fret."

A judicial system where mediocrity is the standard is almost worse than no judiciary.  When judges are referred to as being good, this often means that they are performing up to a mediocre level.  A judge referred to as excellent might be functioning slightly above a mediocre level.

It is like grading on a curve where 70% is an A.  If, as I believe should happen, the curve is destroyed, there would be a lot of D's and F's and very, very few A's.

In fairness, this is not completely the fault of the judges.  The broken condition of the system stifles excellence even by very able judges.

The problem, however, is that there is no grading.  If you ask, "Who's judging the judges?", the answer, for all practical purposes, is, "Nobody." 

To me, this is a major, major threat to the public.  An unreigned judge is always one breath away from being a tyrant.

All judges constantly should be subjected to a review and assessment of their workproduct and, when the workproduct is not up to a high minimum standard of performance, the judge simply must be taken out of the loop.  But, this never happens.

Like fingernails scraping on a blackboard, I could not count how many times I have heard lawyers and judges say to me things like I've been practicing law [or been a judge] for 30 years, and I've never heard of this or that or my granddad, my dad and everybody I have ever known has done it this way or that.

In the face of such non-reasoning, if I suggest that we reexamine what all of those people have been doing for all of that time to see if this or that ought to be changed, there are more folks than you might imagine ready to run me out of town on a rail.  Don't all people know that, if "EVERYBODY" does something, the "something" must be "right?" To those who are prepared to answer this question with a ¿no,¿ we better be prepared to be the brunt of jokes among peers. There is just something sacred about the status quo, even if the status quo is not good. This is just the centuries-old conflict between the ¿ought¿ and the ¿is.¿

There is not nearly as much regard for the law as there is for: "This is the way we do it around here."  And, please do not ask: Why?  Few people seem to care, and even less know.

This sickens the justice system.  People learn to get by with what they have.  Astute attorneys become experts in how to work the broken down system to maximum advantage for themselves and their clients. 

I have not a scintilla of doubt, that, during the present age, civil law is the God-ordained means by which we protect ourselves from ourselves and from the disorder that will threaten every person in society, if and to the degree rule of law slips. 

At base, government has no other purpose but to preserve and enhance rule of law. 

A couple of generations of legal education where, subtly and increasingly, the drumbeat holding sway is one teaching that judges should be free to make decisions unrestrained by rule of law has taken its toll. The senior members of the Bench and Bar who have preserved the contrary view have slowly died off. This combination has created much of the mess. 

To speak of the force of the common law or of Lord Coke or Blackstone and other venerable pillars of legal thought might very easily draw, from the generation now taking control of the justice system, sneers.  The common law and its scholars are thought by such people to be from an age where the traditionally conceived Judeo-Christian Work and Family ethic was the all-controlling force-behind-the-force. They are exactly right.

The reasoning is that, in post-Judeo-Christian America, the tenets of traditionally-conceived Judeo-Christian ethics are irrelevant; so, the common law, that traditionally-conceived Judeo-Christian ethics produced, is irrelevant. Looking to common law principles as the foundation on which to construct a resolution that the law requires today is backward-thinking and outmoded scholarship. This, to the chagrin of many and the delight of many others, is God-oriented. To atheists, being God-oriented is or should be anti-American. Radical pluralism, to them, should be the new American god.

Where do you think such reasoning leaves the place the common law¿s enforcement of public morality by law?  Simply stated, such reasoning trashes, with the rest of the common law, the whole concept of legally enforceable public morality.

If the public desires public morality law to be enforced with the same vigor as the common law, from its earliest days, has protected public morality, judges who have bought the new age of legal thinking into office with them must be turned out of office and replaced with judges who remain faithful to the precepts and principles of the common law.

There was a time when judges who pander that the common law is outmoded could be recognized by the fact that they adjudicated with no real concern for whether their ruling was consistent or inconsistent with prior rulings on the same subject. 

Now a judge so persuaded is usually able to give disingenuous lip-service to concern for prior rulings by citing like-minded departures endorsed by an earlier judge¿s opinion. The manipulators who foresaw that this would happen, if they would patiently wait for a couple of decades, knew the wait would pay off because the public was asleep at the switch.

Some such judges do not take the time to mask their disregard for precedent and others twist, turn and spin prior cases to fit doing precisely what they wish to do and would do no matter what the prior cases required.

A judge ruling from this premise has imposed a personal philosophy about what ought to be the law with little or no regard for what the law truly is.  This emasculates the law and makes the law the judge¿s predilection of the day.  This is the rule of man (in contrast to rule of law) at its very, very worst.

I have seen conservative judges engage in this illegitimacy, for instance, to strike down attempts to apply antitrust law.  Liberals are notorious for result-oriented rulings and libertarians are the worst at it. And, of course, there are conservatives, liberals and libertarians who strictly adhere to rule of law. Unfortunately, it seems that the longer judges serve, the more they are likely to slip into result-orientation.

In conclusion, I must say that to complete this would require a book.  All my purpose here has been is to share a few thoughts over which I have been tossing and turning for several years. 

While, as I said at the beginning, I have no particular desire to give up private practice to be a Circuit Court Judge, I can hardly live with myself watching rule of law being flushed, and the judicial system, where so much of my life is concentrated and to which my heart is so dedicated, well-advanced on its way to what looks to me like the rubbish pile.

My personal constitution will not let me complain about a thing being broken unless I am about the business of repairing it.  I am in or on my way to or from court every day.  I complain a lot.  I have not done my share to repair that about which I complain.

The solutions demand major changes, and a major commitment to helping the changes take place.  People say of me that I only have two switches - one is "full bore" and the other is "off." Maybe so.

Anybody who has made it this far into this article apparently cares more than a little about the issue. Such a reader might be alarmed that the influence of the Judge Browns and the Judge McCallas is being threatened. Other readers might be alarmed that rule of law is no longer the dominant force it once was and is slipping toward extinction.

I only hope that everybody is alarmed. There is a monumental amount at stake. This needs to be debated vigorously. One side or the other needs to have a clear-cut victory.