Friday, February 04, 2005

More on Due Process

I have to say a little bit more about the travesty of due process I experienced in a Massachusetts court this week, having to do with the issue of transparency.

As you may recall from my earlier post, the magistrate ruled, apparently based on Massachusetts case law, that the court sending a Notice to Appear to a defendant is prima facie evidence that the defendant knew about the hearing and defaulted by not showing up. It occurred to me this morning that this creates a system in which the only way a citizen can know that his or her right to due process has not been breached is to trust the government.

First off, the only evidence that a Notice to Appear was actually sent is the word of an agent of the government, the Clerk of Courts, who reports to the magistrate. The magistrate, of course, is also an agent of the government, and the person who gets to make the judgment about whether a person's due process rights have been violated. That is to say, the magistrate has power over the person who sends the Notice and also the power to rule against a defendant's motion to remove a default.

As such, there is no way for a citizen to know whether a Notice was ever sent at all. The magistrate could tell the Clerk of Courts not to send the Notice but to log that it was sent, and then rule against any motion to remove default on the basis that "thelog says the Notice was sent." But, of course, there is no way for the citizen to verify this, nor to challenge it in court. The citizen is put in the position of having to trust that the government has upheld the citizen's right to due process, that is to say, that the Clerk really did send a Notice out, because there is no transparency and no way for the citizen to know what really happened or why. To the citizen, there is no way to distinguish between being railroaded by the government or not.

By the same token, if the Clerk of Courts sends the Notice via the US Postal Service, another government agency. The same problems apply here: The citizen has no way of knowing if the government intentionally failed to deliver the Notice or not. Suppose the Federal government is upset with someone, say, because he or she has a blog that is critical of the current regime. They would know that, in Massachusetts, once the Clerk of Courts hands the Notice to the mail carrier, by law, the citizen has therefore received it. As such, there is nothing to stop the Federal government from simply destroying the Notice, thereby ensuring that the citizen will default on the case. And, once again, there is no way for the citizen to know whether this happened or not.

The whole point of the Bill of Rights is to curb government power because the Founders did not trust the government. They wanted to set out those rights for everyone to see so that each American would know his or her rights and not have to trust the government to uphold them. The point of the Second Amendment was that, since the Founders did not trust the government, the citizens could defend themselves against a corrupt government that was violating their rights. The system is specifically designed to ensure that citizens know their rights and to force the government to uphold them openly, so that no trust of the government is required.

But, in Massachusetts, this has been turned on its head. I argued in an earlier post that, if there is no way to discriminate between God existing or not existing, meaning that God's existence or lack thereof makes no difference, God cannot be said to exist, since anything that exists has some effect upon other things that exist. By the same token, if there is no way for the citizen to discern whether or not his or her rights have been violated by the government, those rights do not exist.

Now, I'm not saying any of this happened in my case. I'm sure that the Notice fell behind someone's desk or fell out of a mail sorter or something. Which is another reason why the case law in this matter is utterly wrong, in that it assumes that the government is 100% efficient (which it isn't) and that, therefore, citizens who claim never to have received a Notice are lying 100% of the time (which they aren't). I owed the money, and though I was hoping to negotiate with them for a lower settlement, I was going to end up paying them anyway.

But the point here isn't whether this actually happened to me. The point is that it could have happened to me and I wouldn't know it. The point is that things like this do happen. There is corruption in government. Agents of the government do act improperly, either from personal feelings or from a systematic program by the government to deny certain people their civil rights, and the case law here makes it possible for the government to violate citizens' civil rights with impunity and without recourse for the citizens.

I have posted a lot about my opposition to Bush's attempt to destroy Social Security even though I, as a state employee, don't participate in Social Security.* I am an outspoken advocate of the rights of gays, minorities, and women, even though I am a straight white guy. I even stand up for the rights of radical Christians, when their rights have actually been violated (as opposed to the times that Christians think their rights have been violated because the government won't promote their religion for them). As such, I hope, Gentle Reader, that you will believe me that this post isn't about sour grapes or just being angry about what happened to me. I just feel the need to tell people about this way, one of many, in which governments, large and small, in the United States are stripping away our liberty, freedom, and rights day by day.

This piece of case law may not seem like a big deal. But oppressive regimes throughout history have always begun by taking away civil rights piecemeal, so that the citizens won't notice, and so that those who do notice will be disregarded as "radicals" and such. What I think is insidious about how it is happening in the US is that it isn't a single person, group, or government turning the US into an oppressive state (if it isn't already one). It is the actions of numerous politicians, officials, and citizens over time, each chipping away on their own, heedless of the others chipping away around them.

We like to say that, in the US, we have a "government of the people, by the people, and for the people." But we seem not to realize that "the people" can actually become their own oppressors, and, in fact, will if given half the chance. That's why it's so hard to amend the Constitution: It's not to keep the government from amending it to take away our rights, it's to keep the people from taking away their own rights! And that is exactly what is happening. We are oppressing ourselves and each other.

Don't take my word for it. A recent survey of high school students (thanks, Brian!) showed that 36% favored limiting freedom of speech and government control of the media.

But they're just stupid kids, right? That's what I thought at first, and said as much. But, later, it occurred to me that there's a more troubling aspect to that figure: A lot of those kids learned those ideas from adults.

I really despair of what this country has become over the past two hundred or so years. This didn't happen in a day, a week, a year, or the term of a single President. It started with the Treason and Sedition Act and has continued to this day. I'm not premillenial dispensationalist (read: someone who thinks we're living in the End Times in a world of rot and decay). I know that what is going on now isn't new. I don't think the Bush regime is going to be carting us off to concentration camps any time soon.

But some President, someday, ten, fifty, a hundred years from now? If we stay on this path...

It's not impossible. France was the standard-bearer for equality and egalitarian society in the late 1800s and early 1900s. The French integrated Jews into their society before almost anyone other than the US (George Washington actually promised the Jews of Newport, Rhode Island, that they would be free of religious persecution during his term as President). Certainly, France had the Dreyfus affair at the start of the 20th century, but the amazing thing isn't that a Jew was falsely jailed because of anti-Semitism, but that Dreyfus was eventually exonerated and released. That wouldn't have happened in very many countries at that time other than France.

For all these reasons, French Jews at the opening of WWII thought it inconceivable that their liberty-loving, egalitarian neighbors would hand them over to the Nazis.

They did.

The inconceivable happens somewhere every day. Don't think it can't happen here.

* The Federal government cannot compel State governments to participate in Social Security, so most states, including Massachusetts, have their own pension plans instead. I do have money taken out of my check just like everyone else, but it goes into the state pension instead of Federal Social Security.


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