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Law Office of Michael J. Kennedy

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Courts Are Increasingly Unfriendly to their Own Masters

The courthouses of this state have become very unfriendly places.  There was a time that people interested in what was going on in their courts, and the courts are the people's property, could walk in and out without being molested by “The Man.”  Indeed, I got interested in law by watching proceedings in the Fresno courts for years.  I would walk in, in my shorts and orange sneakers, and sit in the back, and watch the drama unfolding.  There were good judges and bad, good advocates and bad, worthy cases and unworthy, trustworthy and untrustworthy cops, and I took it all in.

No one cared about my shorts and sneakers; no one cared that people walked in and out of the courthouses and courtrooms; there was no presumption of guilt searches, and gropings. and paranoia-o-matic machines as we have now.

To the Framers, the court was the place of ultimate protection of the polity from oppressive government.  It was a place that all should feel free to enter for help, for enlightenment, for education, for participation in our popularly sovereign government ruled by law not by men [and women], and for witnessing the operation of our system, kept somewhat honest by popular observation.

Sadly, paranoia is sweeping across the land.  There are glass and plastic barriers between the government and the people who have empowered it [police stations, court clerks, district attorneys, public defenders, etc.], and there are checkpoints and search-o-mats at the doors of our own government buildings.  The sovereigns, the people, are increasingly unwelcome in the corridors they have authorized, paid for, and legally control.

The grossest irony is at work in the courts.  They were established to protect us from agents of government.  One need only read the Federalist Papers, especially No. 78, and Madison's Notes on the Debates in the Convention of 1787, to understand that.  The modern day oppressors from whom the populace are to be protected by the courts are various levels of police forces.  So who are the ones presumed to be guilty and hence subjected to suspicionless searches?  The populace.  Who are the ones who can walk in and out of the courthouses, OUR courthouses, without being hassled, searched, and molested?  Badged members of police forces!

Are the presiding judges who have authorized this obscene topsy-turveyism oblivious to the contra-constitutional outrage they have wrought, or don't they care, or do they arrogantly believe that the people no longer control or matter, except at their re-election time, when many of the judges boast “endorsed by law enforcement” on their campaign materials?  If you ever wonder what the quid pro quo is for those endorsements, look at the marginal warrants being signed, look at free access to courthouses by the cops, and look at the presumption of truthfulness awarded cops in traffic court trials: you will wonder no more.

Justice O'Connor, upon her retirement, noted that our undoing will evolve from the people not knowing about the constitutional underpinnings of our Republic.  One need only see the extending lines of people waiting to get into their own courthouses to understand that ignorance of the Constitution is not only rampant, but an art form etched by government masters.

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Line Citizens tring to get into Indio Courthouse

And detain me from the inept and rationalizing pabulum that things are different now, so oppression is more warranted than in founding times [and in my time in Fresno].  What isn't different is that the people are sovereign and ALL government are the servant of those sovereigns.  The only thing really different now is the arrogance and paranoia of those in government, and the tolerance by the people of their government's insolence.

Government agents from whom we are to be protected by the courts can waltz in and out of the courthouse unmolested with knives, guns, tear gas, whatever, whereas the citizens who own the courthouse [and the government agents] are subjected to abuse and scrutiny and searches of their belongings and seizures of their property if it is of any ambiguous sort that someone imagines to be forbidden.  I, who am an officer of the court, was told [by a door sentry who is not an officer of the court!] that I was carrying forbidden contraband when I entered the courthouse with fountain pen ink - fountain pen ink I have carried and used for over 50 years!  Ink is mightier than the sword sometimes, and maybe that is the anxiety, but more likely it is just another exercise of arbitrary power by those who think superficial security is more important than fundamental liberty, about which Ben Franklin warned us.

In the words of Ronald Reagan, “Mr. Government, tear down that wall.”  And the paranoia-o-matic machines in the courthouses.  Those in government too afraid to welcome their masters without barriers and suspicionless searches need to get out of government employment.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987

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