This is said to be the week voters will determine which party will control Congress. Since by the time this column prints that vote will have already taken place, let me take a position now about a matter I think is important to consider, regardless of which party ultimately triumphs this week.
We live in the greatest country, under God, that the world has ever known. Our current prosperity and good fortune, however, is not the product of an accident. In large part, it is due to the solid fundamental imperatives of governmental restraint and justice for all that are embodied in the Declaration of Independence, the United States Constitution and its amendments known as the Bill of Rights. So it would seem reasonable to suggest that, notwithstanding which party assumes “control” of Congress this week, all of the members of that august body would do well from time to time to revisit the profound principles these documents set forth with an earnest desire to rededicate themselves not only to abide by them, but also to “legislate” accordingly. That would be my hope. Sadly, however, it is not something I realistically expect to happen. Why? Because it is my observation that our abandonment of these principles has probably become far too institutionalized to reverse.
Let me give an example of what I mean by telling you about a case that stands out for me as one that led to one of the saddest days I have ever experienced in the over 20 years of practicing law. My client was a rancher who was legally entitled to graze his cattle on specific federal land allotments, albeit subject to the dictates of an apparently all-powerful bureaucracy known to many of us as the United States Forest Service. As best as I was able to determine, one of the Forest Service minions given authority over my client’s allotments had developed a personality disorder that was likely caused by too much power being given to too small a mind. Consequently, this minion wielded his power by issuing orders to my client that were calculated to completely destroy this rancher’s livelihood upon which he and his family had depended for decades.
Naturally, the rancher chose to resist legally by seeking justice in accord with the administrative appeal regulations written by the Forest Service. That didn’t help to abate the onslaught of unreasonable orders issuing from the minion, however. As time went by, the minion’s arbitrary and capricious orders only increased in number the more the rancher sought relief. It all came to a head, however, when the minion ultimately issued an order for the rancher to immediately remove all of his cattle from his allotments, knowing full well that the rancher’s administrative appeals could not possibly run their course for many more months to come. The minion’s reason for the order? He claimed the grazing of the cattle may have some adverse impact on one of the many rodents in the area that a supposedly endangered spotted owl may want to eat from time to time.
As a result, the rancher was given a choice. He could either obey the order and die (financially speaking) himself before any remedy would be afforded him under the Forest Service’s honorous appellate process, or the rancher could try to take the matter directly to a United States District Court judge in the hope of obtaining a dispensation of justice soon enough to enable him to survive. The problem? Since Congress began wrongfully delegating all of its lawmaking authority in this area to the executive branch back in the 1970s, all the statutes, rules and regulations necessary to prohibit the latter alternative have been enacted by the Forest Service. And, if that means the appellant dies while trying to obtain “justice,” well, according to them, that’s just too bad.
That now brings us to the “sad” day. Lacking a legal procedure entitling him to obtain justice from the federal judge, my client was left to ground his appeal for a stay of the minion’s latest order on principles found in the Declaration of Independence, the U.S. Constitution and the Bill of Rights. For example, consider in light of the abuses to which this rancher had been subjected the following language from the Declaration of Independence: “When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government...” Consider also this from the Fifth Amendment: “No person shall be... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” And this from the First Amendment:“Congress shall make no law... abridging... the right of the people peaceably to... [meaningfully???] petition the Government for a redress of grievances.” Rightly or wrongly, these were the only principles my client was left to work with to convince a federal judge to issue the stay of the minion’s abusive order.
To rebut my client’s arguments, the U.S. Attorney representing the Forest Service only had to shrug his shoulders and say to the judge, “Your honor, it’s obvious that this rancher and his attorney are Constitutionalists.’” To this, the federal judge rolled his eyes to indicate his shared contempt for anybody who would take the language of such documents literally. Then, with a smirk, he proceeded to deny my client’s plea for a stay of the minion’s order.
The message? Even the most basic principles upon which this country was founded are no longer considered relevant by those in power, and those among us who might think otherwise are to be considered extremist morons. Sadly, such are the times in which we now live. If you doubt it, ask the people whose property can now be taken today by the government’s use of eminent domain only to be given to companies like Wal-Mart and Home Depot. Unless we do something today to reverse this course of abandonment of our most cherished constitutional principles, future generations will rightly accuse us of being the generation that is guilty of having placed this country’s future greatness in jeopardy.
Cliff Nichols is an attorney practicing criminal defense in Santa Monica. He (310) 458-1739, or www.cliffni-cholslaw.com.
Originally published in the Santa Monica Daily Press print edition on November 8, 2006. Read the original PDF.