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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: The Federalist #87 (fwd)
<snip>
>
> This post is taken from:
>
> THE CORRUPTION CHRONICLES Keeping an eye on the
> legal community an educational newsletter
> published by the *FLORIDA FOUNDATION TO FIGHT
> CORRUPTION* P.O.Box 1230, Tallahassee, Florida
> 32302 1-904-643-5983
> July 15, 1997 - Volume 97, no 5
>
>
>
> The Federalist #87 --- March 31, 1995
> written by Ronald Bibace
>
> THE STATE OF THE UNION UNDER A FAILED CONSTITUTION
> (Rebuttal to the legal profession's arguements
> exclusion from elective office in the legislative
> and executive branches of government. Part I)
>
> The Federalist 86 (February 8, 1995), identified
> the underlying cause of a substantial number of
> the nation's problems (1) as the failure of the
> U.S. Constitution, resulting from the unconsti-
> tutional control of all government by members of
> the legal profession. To restore the
> Constitution, Federalist 86 called for a removal
> from elective office in the legislative and
> executive branches of all states and the federal
> government, of all persons who are members of the
> legal profession, on the basis of the following
> argument:
>
> The effective control by members of the legal
> profession (2) of all government violates the
> principles of representative government and
> separation of powers of the U.S. Constitution.
> Therefore the necessary remedy to restore
> constitutional government requires the exclusion,
> through the courts or the ballot box, of members
> of the legal profession from elective office in
> both the legislative and executive branches of
> government.
>
> That position affirms the principle that: The
> constitutional rights of the people to repre-
> sentative government free from single interest
> "same hands" control, or from control by the
> members of a favored class, supercedes the
> rights of the members of any single profession
> or favored class, to collectively acquire that
> control.
>
> Opponents deny the validity of this constitutional
> interpretation. If they are right, the underlying
> problem caused by the harm of single interest
> control would remain in place. That would
> indicate that the constitution as written was
> defective. The remedy would then lie with the
> ballot box, a constitutional amendment, or if all
> else failed, ANOTHER REVOLUTION. It is fortunate
> for all that the legal profession's opposing
> position is without merit. Let us examine it
> carefully.
>
> In general, an argument is either valid or
> invalid. A valid argument has a premise that
> provides conclusive evidence for the conclusion.
> An invalid argument fails in one of three ways:
>
> 1. Through a misstatement of facts; 2. Incorrect
> use of terms; or 3. In its defective "form"
> through the use of an improper process of
> inference.(3) "Defective form" arguments are
> invalid because they are based on "fallacies"
> also known as sophistry. These false or
> fallacious "arguments" were first developed by
> the sophists and classified by Aristotle, the
> father of logical thought, as "Sophistical
> Refutations". (4) All arguments that have
> surfaced so far, are invalid for one or the other
> of the aforementioned reasons. Here are the
> professions arguments:
>
> 1. Members of the legal profession do not control
> the government;
> 2. nor do they constitute a Madisonian "same
> hands" control group;
> 3. nor should they be prohibited from running for
> any public office for that would be unfair,
> discriminatory and unconstitutional;
> 4. it is in the nation's best interest that
> lawyers control the government because
> government is about laws and that is their
> training;
> 5. lawyers have historically been
> disproportionatelly represented in government
> and yet have served the nation well;
> 6. constitutional interpretations by non-lawyers
> are invalid on their face;
> 7. proponents of excluding lawyers from any
> elective office are "lawyer bashers" and/or
> are otherwise flawed human beings whose views
> are unworthy of consideration.
>
> Here are the rebuttal arguments:
>
> 1. Members of the legal profession do not control
> the government. (A false argument based on a
> mistatement of fact)
>
> The fact that members of the legal profession are
> either a majority or significant plurality of
> virtually every legislative body in the land, is
> not disputed. Neither is the fact that a large
> number of state executive branches are headed by
> lawyers. Occasionally however, a semantic
> argument is made, that the word "control" is
> applicable only where the actual number of seats
> occupied by lawyers in a particular elected body
> exceeds 50%. However the language of Federalist
> 86 is "effective control." Effective control in
> a democracy is accheived by the largest
> substantial plurality if no majority exists, and
> if the next largest plurality is significantly
> smaller than the first. Since those conditions
> prevail virtually everywhere in the nation, the
> argument is without merit, for it mistates fact.
> It is true that where the executive branch is
> headed by a non-lawyer the "control" may be less
> effective, but remains nevertheless.
>
>2. Members of the legal profession do not constitute
> a Madisonian "same hands" control group. (A false
> statement based on a mistatement of fact).
>
> Some lawyers argue that members of the legal
> profession are not the "same hands" identified in
> Madison's statement whereby: '...the accumulation
> of all powers ... in the same hands ..., may
> justly be pronounced the very definition of
> tyranny.'(5) They argue that because lawyers will
> often differ in gender, ethnicity, race,
> religion, political views and other ways,
> characterizing them as "same hands" is
> inaccurate. However, it was not the DIFFERENCE
> between elected officials that concerned Madison
> when he spoke of "same hands", it was the
> possibility of the existence of a particular
> "SAME HANDS" SIMILARITY OF INTEREST that might
> serve to UNITE ELECTED OFFICIALS AGAINST THE
> PUBLIC INTEREST. Thus the test is whether or not
> there exists among the elected members, the
> sharing of such a "same hands" interest. The
> answer is that the members of the legal
> profession, just like the members of EVERY OTHER
> ORGANIZED PROFESSION, constitute "same hands"
> special interest groups. This is because every
> organized profession's purpose is to advance the
> interests of its members above the interests of
> all others.
>
> Conclusive evidence is supplied by Madison's
> definition of what is and what is not republican
> government under the U.S. Constitution: 'it is
> ESSENTIAL to such a (republican) government that
> it be derived from the great body of society, not
> from an inconsiderable proportion, or a favored
> class of it.' (emphasis original)(6) Since the
> legal profession is "an inconsiderable
> proportion" of society (less than 1 in 300
> people), and constitutes "a favored class," it is
> TWICE barred from being in control of what
> Madison defined as: "a republican government."
> That definition confirms that Madison meant to
> include groups such as members of the legal
> profession in the "same hands" statement.
>
> 3. Members of the legal profession should not be
> prohibited from running for any public office
> because to do so would be unfair, discriminatory
> and unconstitutional. (A false argument
> classified by Aristotle as "secundum quid"(7))
>
> This is an argument against the concept of
> "unconstitutional exclusion." We are a democratic
> society forever seeking to be "inclusive". How
> then do we justify excluding lawyers from public
> office at all? The justification is found in the
> following reasons:
>
> Except for jury service, the legal profession has
> already used its power to exclude 259,000,000
> citizens, or 99.7% of the nation, from any
> position of power in the judiciary, though the
> constitution does not require it. Since the
> profession has entirely taken over one of three
> branches of government, without constitutional
> requirement or discernible authority, it is
> certainly fair and reasonable to require that
> their representation be limited to the judiciary
> only. SUCH REPRESENTATION ALONE, WOULD BE
> EQUIVALENT TO 100 TIMES THEIR PROPORTION IN
> THE POPULATION.
>
> The good of society sometimes requires that a
> choice be made by individuals. As one example,
> judges are not permitted to speak publicly on
> political matters or endorce candidates for
> certain public offices. While that is a
> limitation of theri free speech first amendment
> rights, it does serve society's best interest.
> Thus it is fair and reasonable that a person
> choosing to enter the legal profession, which
> enjoys 100% control of one branch of government
> should, in exchange, give up the right to run for
> public office in the other two branches.
>
> Excluding lawyers from elective office outside
> the judiciary involves the balancing of the
> rights of the people to constitutional government
> free of any "same hands", and/or "favored class"
> control, against the rights of lawyers to be
> freely elected to effective control of all
> government. If the Declaration of Independence
> was right in affirming that the rights of the
> people to: "institute a new government laying
> it's foundation on such principles and organizing
> it's powers in such form, as to them shall seem
> most likely to effect their safety and
> happiness", (8) then it follows that the right of
> the people to exclude lawyers from both the
> executive and legislative branches supercedes the
> rights of lawyers to control all government.
>
> Prior to 1832, the British faced a similar
> problem. The nobility, (9) which by law
> exclusively controlled one of their three
> branches of government, the House of Lords, also
> controlled the second branch, the House of
> Commons. (The monarchy being the third.) The
> Great Reform Act of 1832, PASSED TO PREVENT
> VIOLENT REVOLUTION AGAINST THE NOBILITY, stripped
> them of their control of the House of Commons.
> The historical legal precedent was thus created
> where our own law originates, for restoring
> constitutional government, WITHOUT THE NECESSITY
> FOR DOING VIOLENCE TO AN ELITIST GROUP
> UNCONSTITUTIONALLY EXERCISING POWER UNDER COLOR
> OF LAW.
>
> 4. Lawyers are the Proper people to control government
> because that is their training. (A false argument
> classified by Aristotle as "secundum quid (10)).
>
> Lawyers argue that government is about laws and
> that is their training. Therefore they say, it is
> right and proper that they should be running
> things because "those who are trained for a task,
> should make the decisions." That is a false
> argument known as "secundum quid". Thus, while it
> is true that as a rule decisions are made by the
> people best trained to do so, that is not true in
> all cases. This is one such exception to the rule,
> because constitutional prohibitions exist to make
> certain those decisions are NOT made by any single
> "same hands", and/or favored class group. In such
> cases the techncally trained are limited to
> advising and recommending.
>
> For example, the U.S. Constitution designates the
> President of the United States, Commander-in-Chief
> of the armed forces, regardless of any previous
> military experience. The most experienced and
> knowledgeable military minds are constitutionally
> limited to the power of advising. The Constitution
> makes representatives drawn from all walks of
> life, NOT THE TECHNICAL EXPERTS, collectively
> responsible for all public policy decision making.
>
> 5. Members of the legal profession have historically
> been disproportionately represented in government
> and yet have served the nation well. (A false
> argument classified by Aristotle as "non sequitur"
> (11)).
>
> It does not follow that what may have once been
> historically true is therefore true now. These are
> the days of Watergate, "Operation Court Broom" in
> Miami and "Greylord" in Chicago, not the days of
> Thomas Jefferson, Alexander Hamilton, and Abraham
> Lincoln. The nature of the practice of law and the
> integrity of lawyers has changed dramatically for
> the worse commencing after the Civil War. (12)
> Before that time the law was a highly respected
> profession, attracting individuals of integrity
> who sought first to do justice, not make money.
> The opposite is often true today. The presumption
> of integrity once granted to lawyers as to all
> professionals, is no longer applicable. All to
> often the opposite presumption is the rule. The
> American Bar Association's own surveys indicate
> that lawyers are viewed as the most dishonest of
> all professional groups. To make matters worse,
> the survey indicates that those who know lawyers
> best, trust them least, and vice versa. In this
> context the attempt by the profession to cover
> itself with a cloak of honor earned by noble
> predecessors long gone, has no logical validity.
>
> 6. Constitutional interpretations by non lawyers are
> invalid on their face. (A false argument
> classified by Aristotle as "ad verecundiam(13)).
>
> This position ignores the issues completely. It
> argues that one lacks the qualifications to speak
> at all, absent the advantage of a formal legal
> education. A sort of "father knows best" argument,
> logically invalid except against little children.
> James Madison, a non lawyer, wrote the
> Constitution. It is therefore not logical to
> assert that lawyers alone are qualified to
> interpret it.
>
> 7. Proponents of excluding lawyers from any elected
> office are flawed human beings unworthy of
> consideration. (A false argument classified by
> Aristotle as "ad hominem"(14)).
>
> This argument is totally unrelated to the issues.
> It consists of personal attacks against proponents
> of views with which lawyers disagree. However,
> personal attacks do not constitute a substitute
> for logical argument. Instead they are persuasive
> evidence that little or none exists. Subsequent
> articles will address the consequences of the
> unconstitutional control by lawyers in detail,
> outlining the connective links between that control
> and the harm to the nation.
>
> PUBLIUS II
> (Ronald Bibace)
> 4720 NW 2 Ave, Suite D-107
> Boca Raton. FL 33431
>
> NOTES:
> 1. The problems identified include problems in
> health care, education, crime, access to the
> courts, the moral decline of the nation, and the
> loss of essential liberties. The estimated cost
> to the nation in dollars ranges between $300
> billion and $1 trillion per year.
>
> 2. Control by any single interest "same hands"
> group, such as the members of any profession
> and/or professional organization is
> unconstitutional.
>
> 3. Encylopedia Britannica, (page 280, Vol. 23
> 15th edition 1988), Logic, the history and Kinds
> of, The critique of forms of reasoning, Correct
> and defective arguments.
>
> 4. see footnote 3.
>
> 5. Federalist 51, (1788) by James Madison.
>
> 6. Federalist 39, (1788) by James Madison.
>
> 7. Secundum quid: according to it's truth as
> holding only under special provisos, 'applying a
> general proposition as a premise without
> attention to the tacit restrictions and
> qualifications that govern and invalidate its
> application in the matter at issue.' see note 3.
>
> 8. Declaration of Independence 1776.
>
> 9. The British example of the "same hands", "favored
> class", "inconsiderable proportion" minority in
> effective control of all government at that time.
>
> 10. See footnote 7.
>
> 11. non sequitur: it does not follow. see
> footnote 3
>
> 12. The American Lawyer by John R. Dos Passos,
> 1907, Rothman and Co. publishers (1986)
>
> 13 ad verecundiam: an appeal "to awe" on the
> grounds that seeks to secure acceptance of the
> conclusion on the grounds of its endorsement by
> persons whose views are held in general respect.
> see footnote 3.
>
> 14. ad hominem: speaking "against the man" rather
> than to the issue, in which the premises may only
> make a personal attack on a person who holds some
> theses, instead of offering grounds showing why
> what he says is false. see footnote 3.
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Paul Andrew Mitchell : Counselor at Law, federal witness
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