AT INTERNATIONAL LAW ENFORCEMENT ACADEMY, ROSWELL, NM Judge Roderick Kennedy, New Mexico Court of Appeals/ Excerpt:
Two hundred thirty or so years ago, our country was under the control of a great empire. Persons had come here from all walks of life and for all conceivable reasons had discovered a place of great resources. Because it was far away from England, they also saw great opportunity to follow their own ways. Some came here escaping religious or ethnic oppression. One of my ancestors, a Scottish prisoner of war, was brought here and sold as a slave by the English. People started thinking of themselves not as English, but as Americans. As English control became oppressive, we tried to negotiate. England took our resources, controlled our economy, and told our government and courts what to do without our participation, and enforced their position with military might. This became intolerable, and we had a war of liberation that we call our War of Independence.
People who seek to form their own states do so, but in the process generate huge challenges when a large power is removed and small powers must be brought together to build a new country—sometimes of many ethnic and national components. This process requires a strong legal framework, and a commitment to use it for the good of all citizens, for it is in cherishing a diversity of points of view that the greatest chance for great change exists. The fathers of our country declared our independence saying that “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness, [and] that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
These men shared a common intellectual heritage, and knew that some things were so true that they were self-evident—men should be equal, and should by their own right be entitled to the ability to pursue their own lives for their own benefit, free of government except when government is needed. Then, as now people who have escaped oppression, do not intend to give up their freedom again. Of the fifty-six men signing the paper declaring our independence, twenty- four of them were lawyers. The proportion was similar among those who wrote our constitution. At least three of those lawyers were captured and tortured in the war of independence. Many were driven from their homes, and their homes ransacked and burned—in one case costing America its best library of the time. Some died as soldiers. All put their lives on the line for freedom from a power that had ceased to support and protect its citizens, and had oppressed them. The Declaration of Independence justified the end of a relationship. Listen to some of the grievances:
Failing to allow laws to be passed for the public good and allowing laws to be passed only if the people gave up the right to be represented in the making of them. Suspending legislative bodies for opposing invasions on the rights of the people, leaving the states without means of support or defense. Making judges dependent on the King’s favor to keep their jobs. Abolishing the right to a jury trial, taking persons accused of political crimes back to England for trial, ignoring the petitions of the citizens for change. Sending foreign government officers to control the government, harass the people, and act corruptly without answering to the public. Housing the King’s army troops in private homes, and acting as an occupying force, including importing mercenaries and inciting native Indians to make war against the colonies. Cutting off trade, except through England and imposing taxes on America, which money did not support government in America, but only went back to England.
What had happened, in short, was that England had become a predatory political and economic State. It had usurped the control of civil society, installing and institutionalizing a corrupt and self-serving colonial government on a population that until then shared a mostly common ancestry and identity. America, rich in resources and with a rapidly growing society and self-identity was developing a civic and political culture separate from its mother country. England’s response repressing the economic and political self-determination of its colonies had cataclysmic results…. Like many emerging democracies, the United States after its war of independence had a tough time getting started. The experiment had some particularly nasty arguments, but it took place among a people who were excited about not just forming a new government, but being a new government. It took fifteen years after the war to put together our Constitution, and even a few more incorporate our declaration of individual rights. Even the memory of show trials in British courts for insulting the King were fresh, in 1799 and 1800, the ruling party passed an act making it a crime to insult the government or President. Some Congressmen were prosecuted and jailed; this resulted in a political upheaval that threw out that President’s party and elected Thomas Jefferson’s. Jefferson, who wrote the Declaration of Independence.
Democracy worked. Jefferson promptly took political revenge on civil servants appointed by his predecessor, was taken to court, and the Supreme Court held that his actions were unconstitutional. Realizing that he was obligated to obey a court he himself had helped create, he did obey the court’s order, and the case in precedent for the ability of the judiciary to regulate the political behavior of other branches of government under our Constitution. It was the president himself yielding to the legitimacy of the courts that helped establish our government.
Americans frequently say that we are a nation of laws. English law provided a convenient and legitimate structure for much of the process of forming our government. The people agree that the government legitimately has powers, and allow the government to protect citizens, resolve disputes between them, and conduct business in ways that benefit all citizens.
In all other matters, citizens and states keep the right to manage their own affairs. This is the central idea underlying what we call our freedoms. Those freedoms require political institutions to protect them. Those institutions—the executive, the legislature and the judiciary must each exist in balance with the ability to check the power of the others lest any begin to work in ways that harms the common good.
Other countries whose independence and self-determination are new are not always so lucky as to have a tradition requiring the control of government under a rule of law. Institutions of government control—the courts and the bureaucracy particularly—are often left over from a regime that did not use them to serve and protect citizens, but to centralize power in the hands of a few. Those people who know how to use government offices and power often remain as an elite, or an oligarchy that seeks to form a new system to support itself. Overcoming resistance to these trends is perhaps the first and most noble fight of a new country—to open government to the view of the people, and to make it openly serve the common good of all citizens. Citizens must come to believe it is their dreams and their power running the government, not the government serving itself. The rule of law must control the highest office of government as much as it does the single citizen on the street. Citizens emerging from government imposed from above have no reason to trust such proof until they see the product of government helping them to live, to work, and to participate in civic life.
Every day I have a reason to use our Constitution. In criminal cases, the entire process, from investigation through the final verdict in the case must be accomplished fairly. It is my job to watch to see that the police don’t act illegally when they arrest criminals or gather evidence of a crime, because if they do I must dismiss the case or prevent the use of the evidence. It is my job to make sure that the government does not take property without either compensating people or having an important reason.
I believe that it is important to protect our rights even at the cost of freeing a guilty criminal so the rights themselves are protected from damage and can continue to protect all citizens, most of whom, of course, are not criminals. This sometimes takes a greater belief in the law and the importance of judicial independence than an interest in punishing the single criminal. The larger principles are always more important than the single case.