Essay:Remedies are not forthcoming from any branch of government

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Theoretically, all it takes for reform to occur is any one branch of government agreeing to it. Congress can change an unjust law; the President can refuse to enforce an unjust law; or the Supreme Court can strike down an unjust law. In practice, it's pretty hard to get a remedy.


Most of the U.S. House districts are gerrymandered pretty badly, so Congressmen typically have "safe" seats and therefore don't feel a great impetus to provide good constituent service. If you complain about how a federal agency has treated you, they can theoretically put pressure on the executive branch by threatening to cause the President trouble by thwarting whatever measures he wants Congress to agree to. In practice, a Congressman can simply ignore such complaints, or say that it's the executive branch's job to deal with the situation. He can say, "Well, I urged them to respond to your request; hopefully they'll be in touch."


You can write to the President, but in many cases, in the executive branch (whether it's of a state or national government), it's someone's part-time part-time job to read and act on constituent requests from those who lack political connections. This is especially true for those who fall into some marginalized, and therefore particularly politically weak, part of the citizenry. And it is even more true for those who are disenfranchised. In many cases, the executive branch has some sort of internal appellate process for resolving complaints, but this is usually just a way to delay and deter people from pursuing other avenues for obtaining remedies. Often, these appellate bodies do not even respond to requests, or they cherry-pick the facts that will support the ruling they want to issue, and ignore the rest. Or they can say, "We considered the statements you presented, but decided that the weight of the evidence favored ruling against you."


Access is theoretically open to the judicial branch for those who want to file a civil suit. Of course, in many cases, the government possesses sovereign immunity and cannot be sued. The courts also typically show deference to executive and legislative branch decisions, saying that it is not their job to legislate from the bench or tell executive branch officials how to do their jobs. They view the political branches as being in a better position to determine what the facts are, since Congress can hold hearings and hire staff to research and investigate matters, and the executive branch agencies' officials are more intimately familiar with the day-to-day realities of their operations than a court can be. Also, the judges are appointed by the political branches, so they tend to be selected for having viewpoints that are in accord with the politicians' agendas.

In many cases, the appellate courts issue unpublished opinions that aren't even binding precedent. This is a license for the appellate courts to only cursorily review the appeals that are filed and to practice inconsistency in their rulings. The U.S. Supreme Court cases are published, but only a small percentage of certiorari petitions are granted. In any event, what one can argue on appeal is usually pretty limited; if one failed to raise the proper objections at the trial court level, one is often barred from raising those arguments on appeal. And appellate courts are usually reluctant to second-guess the findings of facts of lower courts, since they figure that the judge or jury had an opportunity to see visual cues and whatnot that are not in the record. Also, the appellate court is a double-edged sword, since often one's adversary has a right of appeal too.

But above all, there is the $350 filing fee required by 28 U.S.C. ยง 1914. It wasn't always that high; before 1978, it was only $15. Clearly, the increase in filing fees has greatly outpaced the inflation rate. That fee pretty much kills the ability of the poor to access the courts. They can file in forma papuperis, but they still have to pay that $350 eventually. Most people aren't so idealistic that they are willing to pay that much money just to file a test case aimed at challenging some federal invasion of rights.

States and people

Removing the states' power to nullify and to secede makes federalism a pretty ineffective check on federal power. The Constitution gives the states certain powers, but the federal government can still impel the states to submit to its will by threatening to withhold federal funds from state agencies. Also, federal power has been greatly expanded by Supreme Court decisions.

Perhaps the greatest potential check on government power at all levels is the jury system, since a unanimous vote is required to convict. Juries are generally only available in felony cases, though. Some states allow juries for misdemeanor appeals, but the defendant has to pay several hundred dollars in court costs if the jury finds him guilty. At any rate, prosecutors often are rather vindictive against those defendants who take their cases to trial rather than accepting a plea agreement, so the vast majority of defendants waive their rights to a jury trial.

Sadly, even those cases that do go to a jury trial often end badly for those who took a stand for liberty, since most jurors (usually all twelve, since they typically return unanimous guilty verdicts against those who seek jury nullification) seem to prioritize upholding statutory law over defending liberty. It doesn't help matters that the prosecution tends to use its peremptory strikes to eliminate from the jury all those who seem to be intelligent independent thinkers. Perhaps the worse problem is that one's peers tend to be pretty lame. At any rate, even if one wins at trial, one is still out whatever money one paid for one's legal defense and whatever time one spent in jail pending trial.