smith v. scalia - cert petition

7/17/2019 Smith v. Scalia - cert petition

http://slidepdf.com/reader/full/smith-v-scalia-cert-petition 1/65

No. ____________No. ____________No. ____________No. ____________====================================================================================================================================================================================

-------------------------------------------------------------------------------------------------------- ♦♦♦ ♦ ------------------------------------------------------------------------------------------------

KENNETH L. SMITH,Petitioner,

v. v. v. v.

HON. ANTONIN G. SCALIA, et al.,

Respondents,

-------------------------------------------------------------------------------------------------------- ♦♦♦ ♦ ------------------------------------------------------------------------------------------------On Petition For Writ Of On Petition For Writ Of On Petition For Writ Of On Petition For Writ Of CertiorariCertiorariCertiorariCertiorari

To The United States Court Of To The United States Court Of To The United States Court Of To The United States Court Of Appeals For The District of Columbia Appeals For The District of Columbia Appeals For The District of Columbia Appeals For The District of Columbia-------------------------------------------------------------------------------------------------------- ♦♦♦ ♦ ------------------------------------------------------------------------------------------------

Kenneth L. Smith,in propria persona

[contact me [email protected] ]

(lower court decisions not attached)

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QUESTIONS PRESENTEDQUESTIONS PRESENTEDQUESTIONS PRESENTEDQUESTIONS PRESENTED

1. Does the grant of summary judgment in a casewhere a plaintiff demands one and the judge hasa conflict-of-interest violate his Seventh Amend-ment right to a jury trial (as it existed in 1791)and/or Fifth Amendment right to have disputesheard by a fair and independent tribunal?

2. Does the citizen have constitutional authority toenforce Article III good behavior tenure (as wasthe case in Britain in 1789) and if not, who does,and why?

3. Is the ancient right to initiate a private criminalprosecution one of the common-law “safeguards”against abuse of “sovereign power” 1 the Framerssought to secure by enacting the Bill of Rights?

4. As the “object and purpose” of the InternationalCovenant on Civil and Political Rights is to guar-antee basic human rights by abolishing sovereignand/or official immunities, and the United States

would be in fundamental breach of it if it did notwaive these immunities, does our ratification ofthat treaty constitute an effective waiver of sov-ereign and/or judicial immunity?

1 This is James Madison’s original terminology, as reported inthe Annals .



OTHER PARTIES TO THE PROCEEDINGOTHER PARTIES TO THE PROCEEDINGOTHER PARTIES TO THE PROCEEDINGOTHER PARTIES TO THE PROCEEDING

The Respondents are initial defendants who par-ticipated in the appeal in the District of ColumbiaCircuit: Hons. Antonin G. Scalia, Clarence Thomas,John G. Roberts, Jr., Janice Rogers Brown, Judith

Ann Wilson Rogers, David B. Sentelle, John D.Bates, Stephen H. Anderson, Bobby R. Baldock,Mary Beth Briscoe, Wade Brorby, Jerome A. Hol-mes, Michael R. Murphy, John Carbone Porfilio,Stephanie Kulp Seymour, Deanelle Reece Tacha,Christine M. Arguello, Robert E. Blackburn, Philip

A. Brimmer, Marcia A. Krieger, Edward W. Not-tingham, Jr., John/Jane Does 1-99, and The UnitedStates of America. On information and belief, Hon.Robert Hugh McWilliams, Jr., is deceased, and is nolonger a party to this matter.



1

TABLE OF CONTENTSTABLE OF CONTENTSTABLE OF CONTENTSTABLE OF CONTENTS

QUESTIONS PRESENTED

OTHER PARTIES TO THE PROCEEDING

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . 1

TABLE OF AUTHORITIES . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . 17

SUMMARY OF PERTINENT FACTS . . . . . . . 21

REASONS FOR GRANTING REVIEW . . . . . . 23

I. The Only Office Of the Judge Is ToDeclare the Law, Not Write It . . . . . . . . . . 25

II. As the Seventh Amendment’s Purpose IsTo Protect Citizens “Agst. Corrupt Judges,”Summary Judgment Is Unconstitutional . 30

A. When a Judge Has a Dog In the Hunt,S/he Will Never Fail To Pet It . . . . . . . . 30

B. What Did the Framers “Preserve” InEnacting the Seventh Amendment? . . . 31

C. This Court’s Hands Are Bound . . . . . . . 33D. Summary Judgment Deprives Citizens

Of the Benefit Of the "Seventh Amend-ment Bargain" . . . . . . . . . . . . . . . . . . . . 36



2

III. “Separation-Of-Powers” ConsiderationsDictate That Citizens Enforce Article III

Good Behavior Tenure . . . . . . . . . . . . . . . 38

A. What "Good Behavior" Isn’t . . . . . . . 38B. What "Good Behavior" Is . . . . . . . . . 40C. The Framers Intended To Entrust

Citizens With Enforcement of GoodBehavior Tenure . . . . . . . . . . . . . . . 42

D. If the Only Means of Removing an Article III Judge From Office Is ViaImpeachment, Why Does the GoodBehavior Clause Even Exist? . . . . . . 44

IV. The Judge-Fabricated Doctrine of AbsoluteSovereign and Judicial Immunity Wasn’t Inthe Constitution and/or Has Been AbolishedBy Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

A. “But I Have To Be Able To Rape YourDaughter With Impunity To ProtectHer From Being Raped.” . . . . . . . . . . . . 48

B. The "Will Of the People" Is Rarely a

Match For the "Won’t" Of FederalJudges . . . . . . . . . . . . . . . . . . . . . . . . . . 49

C. Application To the Case At Bar . . . . . . 53



3

V. As a Victim’s Ancient Right To ProsecuteCrimes Would Never Have Been Yielded

By an Informed Populace, It Is RetainedBy Virtue Of the Tenth Amendment . . . . . 54

A. There Are No "Non-Fundamental"Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 55

B. Our "Bill Of Rights" Preserves CommonLaw Safeguards Against the Abuse OfSovereign Power . . . . . . . . . . . . . . . . . 56

C. The Ancient Right To Private CriminalProsecution Is an Essential Safeguard

Against Abuse Of Sovereign Power . . 57

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 60

OPINIONS/ORDERS BELOW:

Court of Appeals . . . . . . . . . . . . . . . . . . . . 63District Court . . . . . . . . . . . . . . . . . . . . . . 69



4

TABLE OF CASES AND AUTHORITIESTABLE OF CASES AND AUTHORITIESTABLE OF CASES AND AUTHORITIESTABLE OF CASES AND AUTHORITIES

CASE PAGECASE PAGECASE PAGECASE PAGE

Baltimore & Carolina Line, Inc. v. Redman ,295 U.S. 654 (1935) . . . . . . . . . . . . . . . . . . . 31

Blyew v. United States , 80 U.S. 581 (1872) . . 59Bounds v. Smith , 430 U.S. 817 (1977) . . . . . . . 53Bradley v. Fisher, 80 U.S. 335 (1872) . . . . . . . 47Cheney v. United States Ct. of App. for the

Dist. of Columbia , 541 U.S. 913 (2004) . . . . 22Chisholm v. Georgia , 2 U.S. 419 (1793) . . . . . . 49Cohens v. Virginia , 19 U.S. 264 (1821) . . . . 23, 45Connecticut National Bank v. Germain ,

503 U.S. 249 (1992) . . . . . . . . . . . . . . . . . . 34, 38Diggs v. Richardson ,

555 F.2d 841 (D.C. Cir. 1976) . . . . . . . . . . 51Evans v. Bd. of County Com'rs,

482 P.2d 968 (Colo. 1971) . . . . . . . . . . . . . . 54Ex parte Roe , 234 U.S. 70 (1914) . . . . . . . . . . . . 23 Fidelity & Deposit Co. v. United States,

187 U.S. 315 (1902) . . . . . . . . . . . . . . . . . . . 36Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 1980) . . . . . . . . . . . . . 54Gasoline Products Co. v. Champlin Refining Co .,

283 U.S. 494 (1931) . . . . . . . . . . . . . . . . . . . 36Georgia v. Brailsford , 3 U.S. 1 (1803) . . . . . . 31, 37Gouriet v. Union of Post Ofc. Workers,

[1978] A.C. 435 (H.L.) (Canada) . . . . . . . . . 57Hans v. Louisiana , 134 U.S. 1 (1890) . . . . . . . . 47



5


Harcourt v. Fox [1692] 1 Show. 426 (K.B.) . . . 41Hastings v. Judicial Conference of U.S.,770 F.2d 1093 (D.C. Cir. 1985) . . . . . . . . . . . 45

Henry v. Barkley, [1596] 79 Eng. Rep. 1223 (K.B.) . . . . . . . . . . 41

Heydon's Case,[1584] 76 Eng.Rep. 637 (Exch.) . . . . . . . . . . . 34

In re Haines , 177 P.3d 1239 (Colo. 2008) . . . . . . 18Jacobs v. United States , 290 U.S. 13 (1933) . 17, 54Jarrolt v. Moberly , 103 U.S. 580 (1880) . . . . . . . 42King v. Burwell,

No. 14-114, 576 U.S. ____ (2015) . . . . . . . . 28, 29Lake County v. Rollins , 130 U.S. 662 (1889) . . 34Leeper v. Texas , 139 U.S. 462 (1891) . . . . . . . . 24Marbury v. Madison , 5 U.S. 137 (1803) . . . . . 23, 40Michigan v. Bryant,

562 U.S. ___, 131 S.Ct. 1143 (2011) . . . . . . 60 Mondou v. New York, N.H. & H.R. Co.,

223 U.S. 1 (1912) . . . . . . . . . . . . . . . . . . . . . 23New York Trust Co. v. Eisner ,

256 U.S. 345 (1921) . . . . . . . . . . . . . . . . . . . . 58

Nield v. Pocatello Health Services, Inc.,No. 38823-2011 (Ida. 2014) . . . . . . . . . . . . . . 44

N. Carolina Bd. of Dental Examiners v. FTC ,No. 13-534, 574 U.S. ____ (2015). . . . . . . . . . 18

N. Pipeline Constr. Co. v. Marathon PipeLine Co. , 458 U.S. 50 (1982) . . . . . . . . . . . . . 46

Obergefell v. Hodges,No. 14-556, 576 U.S. __ (2015) . . . . . . . . . . . var.



6


Pierson v. Ray, 386 U.S. 547 (1967) . . . . . . . . . . 47 Planned Parenthood of S.E. Pa. v. Casey,505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . 47, 56

Poindexter v. Greenhow ,114 U.S. 270 (1884) . . . . . . . . . . . . . . . . . . . 24

Reid v. Covert, 354 U.S. 1 (1957) . . . . . . . . . . 50, 57R. v. Bailiffs of Ipswich

[1706] 91 Eng. Rep. 378 (K.B.) . . . . . . . . . . 41Ricci v. DeStefano , 557 U.S. 557 (2009) . . . . . 23Shelby County v. Holder ,

570 U.S. ___, 133 S.Ct. 2612 (2013) . . . . . . . 28Silveira v. Lockyer ,

328 F.3d 567 (9th Cir. 2003) . . . . . . . . . . . 32, 48Smith v. Bender , No. 07-cv-1924-MSK-

KMT (D. Colo. filed 2007) . . . . . . . . . . . . . . . 53Smith v. Scalia , No. 13-cv-0298-KBJ

(D.D.C. May 26, 2014) . . . . . . . . . . . . . . . . 17, 46Smith v. Mullarkey ,

67 F.App’x. 535 (10th Cir. 2003) . . . . . . . . . 21Smith v. Mullarkey ,

121 P.3d 890 (Colo. 2005) (per curiam) . . . . 21

Smith v. Thomas,No. 09-cv-1026-JDB (D.D.C. Jan. 21, 2010),aff’d, No. 10-5041 (D.C. Cir. Jul. 1, 2010) . 21, 22

Smith v. Thomas , No. 10-395 (U.S. enteredMar. 7, 2011) (mass recusal) . . . . . . . . . . . . . 22

Sosa v. Alvarez-Machain ,542 U.S. 692 (2004) . . . . . . . . . . . . . . . . . . . . . 52

Tumey v. Ohio , 273 U.S. 510 (1927) . . . . . . . . . . 21



7


United States v. Alvarez-Machain ,504 U.S. 655 (1992) . . . . . . . . . . . . . . . . . . . . 51United States v. American Bell Tel. Co.,

28 U.S. 315 (1888) . . . . . . . . . . . . . . . . . . . . . 43United States v. Callender ,

25 F.Cas. 239 (D.Va. 1800) . . . . . . . . . . . . . . 47United States v. Wilson , 32 U.S. 150 (1833) . . 40 United States v. Wiltberger , 18 U.S. 76 (1820). 25United States v. Windsor ,

570 U.S. ___, 133 S.Ct. 2675 (2013) . . . . . . . 29Whitney v. Robertson , 124 U.S. 190 (1888). . 51, 52Young v. United States ex rel. Vuitton

et Fils S.A ., 481 U.S. 787 (1987) . . . . . . . . . 59

CONSTITUTIOCONSTITUTIOCONSTITUTIOCONSTITUTIONS AND STATUTESNS AND STATUTESNS AND STATUTESNS AND STATUTES

PAGE PAGE PAGE PAGE

2&3 Edw. 6, c. 8, §13 (ca. 1540) . . . . . . . . . . . . . 4118 U.S.C. § 241 . . . . . . . . . . . . . . . . . . . . . . . . . . 5328 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . 2228 U.S.C. § 1361 . . . . . . . . . . . . . . . . . . . . . . . . . 2228 U.S.C. § 2072 . . . . . . . . . . . . . . . . . . . . . . . . . 49

Act of Settlement [1701],12 & 13 Will. 3, c. 2, §3 . . . . . . . . . . . . . . 30, 39

Colo. Rev. Stat. § 13-4-101. . . . . . . . . . . . . . . . . . 21



8

PAGE PAGE PAGE PAGE

International Covenant on Civil and PoliticalRights, 999 U.N.T.S. 171 (entered intoForce Mar. 23, 1976) (ratified by theUnited States Sept. 8, 1992) A . . . . . . . . . . var.

Magna Carta , c. 61 (1215) . . . . . . . . . . . . . . . . . 48N.H. Const. art. 10 . . . . . . . . . . . . . . . . . . . . . . . 56N.H. Const. art. 72(73) . . . . . . . . . . . . . . . . . . . . 39N.Y. Const. of 1777 art. XIX (1822) . . . . . . . . . . 58Northwest Ordinance of 1787, 1 Stat. 51 . . . . . . 38Pa. Const. of 1776, § 20 (1820) . . . . . . . . . . . . . . 58Pa. Const. of 1790 art. V, § 2 (1838) . . . . . . . . . . 39U.S. Const. amend. VII . . . . . . . . . . . . . . . . . . . . 31U.S. Const. art. II, § 1 . . . . . . . . . . . . . . . . . . . . . 58U.S. Const. art. II, § 3 . . . . . . . . . . . . . . . . . . . . . 58U.S. Const. art. III, § 1 . . . . . . . . . . . . . . . . . . . . 58U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . 50

OTHER AUTHORITIESOTHER AUTHORITIESOTHER AUTHORITIESOTHER AUTHORITIES

PAGE PAGE PAGE PAGE

138 Cong.Rec. S4,783 (Apr. 2, 1992) . . . . . . . . . 521 Annals of Congress (1789) . . . . . . . . . . . . . . . 55-7 Bacon, Francis, Essays LVI

(Of Judicature) (1620) . . . . . . . . . . . . . . . . . . . 26

A Ratified treaties are “the supreme Law of the Land.”



9

PAGE PAGE PAGE PAGE

Berger, Raoul, Impeachment: The Constitu-tional Problems , 2d ed. (1999) . . . . . . . . . . . 42Blackstone, William, Commentaries on the

Laws of England (1765) . . . . . . . . . . . . . . . . var.Breyer, Stephen, et al., Implementation of the

Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (Sept. 2006) . . 21

Campbell, John, The Life of Lord Bacon (1853) 30Canada Dept. of Justice, The Federal Prose-

cution Service Deskbook (undated) . . . . . . . 57Coke Edward, Institutes of the Lawes ofEngland (1642-44) . . . . . . . . . . . . . . . . . . . . . . 26, 42Confirmation Hearing on the Nomination of

John G. Roberts, Jr. to be Chief Justice ofthe United States: Before the S. Comm. onthe Judiciary, 109th Cong. (2005) . . . . . . . 33, 34

Constitutional Relevance of Foreign CourtDecisions (C-SPAN television broadcastJan. 13, 2005) . . . . . . . . . . . . . . . . . . . . . . . . 54

Cruz, Ted, Constitutional Remedies to aLawless Supreme Court, National

Review Online (Jun. 26, 2015) . . . . . . . . . . 27Dickinson, John, The Letters of Fabius, in

1788, on the Federal Constitution; andin 1797 on the Present Situation ofPublic Affairs (1797) . . . . . . . . . . . . . . . . . 31



10

PAGE PAGE PAGE PAGE

Elliot, James, Debates on the FederalConstitution (1836) . . . . . . . . . . . . . . . . . . 40Farrand, Max. The Records of the Federal

Convention of 1787 (1909) . . . . . . . . . . . . 31Geyh, Charles, When Courts and CongressCollide: The Struggle for Control of

America’s Courts (U. Mich. Pr. 2008) . . . . . 39Hawles, John, The Englishman's Right: A

Dialogue Between a Barrister At Lawand a Juryman (1680) (1844) . . . . . . . . . . . 33

Holmes, Oliver W., The Common Law (1881) 58Jefferson, Thomas, Letter (to L’Abbe Arnoux),

Jul. 19, 1789 . . . . . . . . . . . . . . . . . . . . . . . 35Justice Antonin Scalia: Courts Will Determine

Legality of NSA Surveillance, The Guar-dian (AP), Sept. 25, 2013 . . . . . . . . . . . . . . 48

Lincoln, Abraham, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854 34

Llewellyn, Karl L., The Common LawTradition: Deciding Appeals (1960) . . . . . . . 45

Madison, James, The Writings of James

Madison (1783-1787) . . . . . . . . . . . . . . . . . . 25Pearson, Ellen H., Remaking Custom: Law

and Identity in the Early AmericanRepublic (U. Va. Press 2011) . . . . . . . . . . . 30



11

PAGE PAGE PAGE PAGE

Pfander, James E., Sovereign Immunityand the Right to Petition: Toward aFirst Amendment Right to PursueJudicial Claims Against the Govern-ment, 91 Nw. U.L. Rev. 899 (1997) . . . . . 49

Posner, Richard A., How Judges Think(Harvard U. Pr. 2008) . . . . . . . . . . . . . . . 45

Prakash, Saikrishna & Smith, Steven D.—How to Remove a Federal Judge ,116 Yale L.J. 72 (2006) . . . . . . . . . . . . . . 41Removing Federal Judges WithoutImpeachment , 116 Yale L.J. PocketPart (2006) . . . . . . . . . . . . . . . . . . . . . . . . 38

Scalia, Antonin—Historical Anomalies in AdministrativeLaw , Y.B. Supreme Court Hist. Soc’y.(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48The Rule of Law as a Law of Rules ,56 U. Chi. L. Rev. 1175 (1989) . . . . . . . . . 29

S. Exec. Doc. L. (1971) (Letter of SubmittalFrom the Sec’y. of State to the President) 51

Shapiro, Martin. Judges as Liars , 17 Harv.J.L. & Pub. Pol’y 155 (1994) . . . . . . . . . . . 46

Steinberg, Allen, "The Spirit of Litigation:"Private Prosecution and Criminal Jus-tice in Nineteenth Century Philadel-

phia , 20 J. Social History 231 (1986) . . . . . 58Story, James, Commentaries on the Consti-

tution of the United States (1833). . . . . . . . 27



12

PAGE PAGE PAGE PAGE

The Daily Show With Jon Stewart (ComedyCentral television broadcast aired Jun.29, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

The Federalist (I. Kramnick ed. 1987) . . . . . . . var. Thomas, Suja, Why Summary Judgment IsUnconstitutional , 93 U.Va. L. Rev. 139 (2007) . 37Transcript of Oral Argument, Shelby County

v. Holder, 570 U.S. ___ (2013) . . . . . . . . . . . 29Tzatzev, Aleksi, Meet The Fascinating SpousesBehind The Nation's Supreme Court Justices,Business Insider Australia , Oct 24, 2012. . . . . . 47United States Dept. of State, Core Doc. Forming

Part of the Reports of States Parties, UnitedNations Doc. No. HRI/CORE/USA/2005

(Jan. 16, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 52Universal Declaration of Human Rights,

G.A. Res. 217A(III), U.N. Doc. A/810 (1948) . 51 Vienna Convention on the Law of Treaties,

1155 U.N.T.S. 331 (entered into force

Jan. 27, 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 50Wilson, James, 2 The Works of James Wilson

(J. D. Andrews ed., 1896) . . . . . . . . . . . . . . . . 23



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OPINIONS BELOWOPINIONS BELOWOPINIONS BELOWOPINIONS BELOW

A copy of the order granting summary dismissalissued by the Court of Appeals for the District ofColumbia is included in the Appendix to this Peti-tion at p. 63. Copies of orders of the United StatesDistrict Court for the District of Columbia start atp. 69.

STATEMENT OF JURISDICTIONSTATEMENT OF JURISDICTIONSTATEMENT OF JURISDICTIONSTATEMENT OF JURISDICTION

Jurisdiction exists pursuant to 28 U.S.C.

§1254(1). Petitioner’s motion for rehearing en bancwas denied on May 8, 2015; the original Petition aspostmarked on August 4, 2015 was therefore timelyfiled. However, it was returned by the Court in aletter dated August 11, 2015 for correction; as such,this corrected Petition is regarded as timely-filed ifmailed on or before October 10, 2015.

CONSTITUTIONAL PROVISIONS INVOLVEDCONSTITUTIONAL PROVISIONS INVOLVEDCONSTITUTIONAL PROVISIONS INVOLVEDCONSTITUTIONAL PROVISIONS INVOLVED

Article III, section 1 of the Constitution of theUnited States states:

The judicial Power of the United States, shall be vested in one supreme Court, and in such infer-ior Courts as the Congress may from time totime ordain and establish. The Judges, both ofthe supreme and inferior Courts, shall hold their



14

Offices during good Behaviour, and shall, at sta-ted Times, receive for their Services, a Compen-

sation, which shall not be diminished duringtheir Continuance in Office.

Article VI, clause 2 of the Constitution of theUnited States provides:

This Constitution, and the Laws of the Uni-ted States which shall be made in Pursuancethereof; and all Treaties made, or which shallbe made, under the Authority of the UnitedStates, shall be the supreme Law of the Land;and the Judges in every State shall be boundthereby, any Thing in the Constitution orLaws of any State to the Contrary notwith-standing.

The Fifth Amendment to the Constitution of theUnited States provides:

No person shall be held to answer for a capital,or otherwise infamous crime, unless on a pre-

sentment or indictment of a Grand Jury, exceptin cases arising in the land or naval forces, or inthe Militia, when in actual service in time of Waror public danger; nor shall any person be subjectfor the same offence to be twice put in jeopardyof life or limb; nor shall be compelled in anycriminal case to be a witness against himself, norbe deprived of life, liberty, or property, without



15

due process of law; nor shall private property betaken for public use, without just compensation.

The Seventh Amendment to the Constitution ofthe United States provides:

In Suits at common law, where the value in con-troversy shall exceed twenty dollars, the right oftrial by jury shall be preserved, and no fact triedby a jury, shall be otherwise re-examined in anyCourt of the United States, than according to therules of the common law.

The Ninth Amendment to the Constitution of theUnited States provides:

The enumeration in the Constitution, of cer-tain rights, shall not be construed to deny ordisparage others retained by the people.

The Tenth Amendment to the Constitution of theUnited States provides:

The powers not delegated to the United Statesby the Constitution, nor prohibited by it to thestates, are reserved to the states respectively,or to the people.



16



17

STATEMENT OF THE CASESTATEMENT OF THE CASESTATEMENT OF THE CASESTATEMENT OF THE CASE

“In addition, the Bill of Rights clearly does notcontain any congressional mandate expresslywaiving sovereign immunity.”

—Ketanji Brown Jackson 1

Quite literally, this is the rule of “law” you willsustain if this appeal is ignored: The Bill of Rightsmay be voided by Congress (or judges) because theFramers failed to enact an Eleventh Amendmentdeclaring that "we really, really, REALLY DO meanit! " Cf., Jacobs v. United States, 290 U.S. 13, 16(1933) (Fifth Amendment “takings” clause implicitlywaives immunity).

In the Framers’ Constitution, the Bill of Rightswas an absolute limitation on the power of govern-ment. Under the SCOTUStitution authored by ourImperial Judiciary, judges can openly flout the Billof Rights, as they have decreed that they cannot beheld accountable for violating it. And by arrogatingthis prerogative of the dictator to themselves, they

have defeated the purpose of our even having a “Billof Rights.” Not only have these black-robed banditsrobbed the People of the right to govern themselves,but literally every “right” they think they have.

1Smith v. Scalia , No. 13-cv-0298-KBJ (D.C. Dist. May 26, 2014)(slip op., at 17-18).



18

This dispute was precipitated by the ColoradoBoard of Law Examiners’ refusal to even grant me ahearing on the matter of my admission to the state’sBar, in a process devoid of meaningful due processprotections. The Board, comprised largely of puta-tive competitors, operated without appropriate statesupervision, as the current Chief Justice of the Colo-rado Supreme Court admits. In re Haines , 177 P.3d1239, 1251-52 (Colo. 2008) (Coats, J, dissenting)(“exaggerated deference”). 2

In theory, the Board’s action and the negligentfailure of State officials to actively supervise theirconduct gives rise to numerous avenues for redress,including the Sherman Act. See N. Carolina Bd. ofDental Examiners v. FTC , No. 13-534, 574 U.S. ____(2015). But in the real world, as the Breyer Com-mission admits, judges routinely ‘cover’ for waywardcolleagues; “the will of the people” is rarely a matchfor the “won’t” of a federal judge.

In this lawsuit, Petitioner sought to invoke threeconstitutional remedies designed to hold Article III

judges accountable: removal from office for violationof their good behavior tenure, liability in tort, andprivate criminal prosecution.

2Current Chief Justice Rice joined the dissent.



19

Petitioner demanded a proper Seventh Amend-ment jury trial, wherein the civil jury decides both

the law and the facts—as was the case back in 1789.This was the institution the Framers sought to pre-serve, serving as a defense “against corrupt judges.”

Yet, the claims were dismissed via summary judg-ment by “corrupt judges.”

Arguments presented herein are summarized asfollows:

1. Article III judges cannot make law (CJ Roberts). Ergo, they cannot make constitutional rights,

passages, or treaties “disappear” (Hamilton).

2. Seventh Amendment “preserves” the jury trial. In 1789, the jury decided all questions of both

facts and law (CJ Jay). In summary judgment, a judge decides both

the facts and law, eliminating the civil jury asa check against judicial corruption.

Ergo, summary judgment violates the Sev-enth Amendment.

3. Article III contains the “good Behaviour” clause. Framers said what they meant and meant

what they said ( Germain ). “Good behaviour” and method of enforcement

both prescribed by common law (Blackstone). Ergo, the Framers intended to implement the

common law rule (Madison, Wilson ).



20

4. Absolute judicial and sovereign immunity are judge-made law, abolished by treaty.

Domestic sovereign immunity was unknownto the Framers (Scalia). States admit that they don’t have sovereign

immunity either ( Evans ). Absolute judicial/sovereign immunity was

judge-made common law. The ICCPR is a valid treaty abolishing all

common-law immunities.. Ergo, defense of judicial/sovereign immunity

is unavailable as a matter of law.

5. Absolute immunity renders the Bill of Rightsunenforceable. Taking away all remedies takes away the

right ( Poindexter ). Discretionary “cert” eliminates every other

remedy to victims of judicial caprice. Ergo, not even Congress can grant absolute

immunity.

6. The right to private criminal prosecution (PCP)

was retained by the people. Bill of Rights preserves ancient common law

safeguards against abuse of authority. PCP was/is available at common law for 500

years ( Gouriet ). No reasonable citizen would have ceded this

“inestimable” ( Blyew ) right. Ergo, even Congress cannot extinguish it.



21

STATEMENT OF PERTINENT FACTSSTATEMENT OF PERTINENT FACTSSTATEMENT OF PERTINENT FACTSSTATEMENT OF PERTINENT FACTS

This suit was precipitated by a spectacle neverbefore seen in the annals of Anglo-American juris-prudence: justices of a state supreme court, sittingin judgment of their own cause, in a pendent action 3 which substitute judges were authorized by statuteto hear. 4 Smith v. Mullarkey , 121 P.3d 890 (Colo.2005) (per curiam). As this violated my Fourteenth

Amendment right to a fair and impartial tribunal,Tumey v. Ohio , 273 U.S. 510, 523 (1927), I soughtevery conceivable remedy the Framers’ Constitutionafforded me, to no avail. And when it became clearthat the Tenth Circuit was going to indulge in whatthe Breyer Commission recently called "undue guildfavoritism," 5 I filed an official capacity lawsuit inthe D.C. Circuit, challenging the constitutionality ofdiscretionary certiorari review. Smith v. Thomas ,No. 09-cv-1026-JDB (D.D.C. Jan. 21, 2010).

And then, things really got weird.

3The federal lawsuit was dismissed on putative jurisdictionalgrounds in an “unpublished” opinion. Smith v. Mullarkey , 67F.App’x. 535 (10th Cir. 2003).4 As judges of the Colorado Court of Appeals may "serve in anystate court with full authority as provided by law, when calledupon to do so by the chief justice of the supreme court," Colo.Rev. Stat. § 13-4-101, the “Rule of Necessity” is inapplicable.5Stephen Breyer, et al., Implementation of the Judicial Con- duct and Disability Act of 1980: A Report to the Chief Justice 1(Sept. 2006).



22

In a series of giggle-worthy rulings for the ages,

the lower courts declared that no mere mortal man could challenge the Gods on Mount Olympus OneFirst Street, and that they had no authority to tellTheir Majesties what to do. 6 Uh, never mind that afederal statute, 28 U.S.C. § 1361, expressly grantedthem that power, and "[t]he accustomed office of awrit of mandamus, when directed to a judicial offi-cer, is to compel an exercise of existing jurisdiction,but not to control his decision." Ex parte Roe , 234U.S. 70, 72 (1914). Never mind that, if no federaldistrict court has jurisdiction to answer the ques-tion, the only alternative is Judge Judy . Here was asimple federal question the courts had statutory

jurisdiction to decide, 28 U.S.C. § 1331, which theywillfully refused to decide.

In the appeal to this Court, the Justices recusedthemselves en masse . Order, Smith v. Thomas , No.10-395 (U.S. entered Mar. 7, 2011) (mass recusal).But unlike Justice Scalia’s Cheney recusal, 7 no rea-son was offered. It’s easy to see why: There is no

rational way to reconcile the Justices’ bizarre actionwith their public statements and two centuries ofprecedent.

6Smith v. Thomas , No. 09-cv-1026-JDB (D.D.C. Jan. 21, 2010),aff’d, No. 10-5041 (D.C. Cir. Jul. 1, 2010).7Cheney v. United States Ct. of App. for the Dist. of Columbia ,541 U.S. 913 (2004) (Scalia, J., memo)



23

As citizens have a right to “demand an even-handed enforcement of the law,” Ricci v. DeStefano ,

557 U.S. 557, 608 (2009) (Alito, J., concurring), thegovernment has a corresponding duty to provide it.Marbury v. Madison , 5 U.S. 137, 163 (1803). Theexistence of jurisdiction "creates an implication ofduty to exercise it, and that its exercise may beonerous does not militate against that implication."Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1,58 (1912). As (in theory) willful breach of that dutygives rise to an array of remedies, I filed anotherfederal lawsuit, which is now before you. (Anotherlawsuit has been filed challenging the constitution-ality of “discretionary cert.”)

REASONS FOR GRANTING REVIEWREASONS FOR GRANTING REVIEWREASONS FOR GRANTING REVIEWREASONS FOR GRANTING REVIEW

The most compelling reason that this Court mustreview this appeal is that the Framers’ Constitutionliterally affords no choice. According to the manwho wrote Article III, the first purpose in creating asupreme court to “superintend” and govern all the

others was to prevent “different courts [from adopt-ing] different and even contradictory rules of deci-sion.” 2 The Works of James Wilson 149-50 (J. D.

Andrews ed., 1896). This Court has indisputableauthority to entertain valid writs of certiorari , and“to decline the exercise of jurisdiction which is given… would be treason to the constitution." Cohens v.Virginia , 19 U.S. 264, 387 (1821).



24

Every citizen has a right to "equal and impartial justice under the law." Leeper v. Texas , 139 U.S.

462, 468 (1891). As “[t]o take away all remedy forthe enforcement of a right is to take away the rightitself,” Poindexter v. Greenhow , 114 U.S. 270, 303(1884), discretionary certiorari review deprives vic-tims of irregular lower court decisions of the protec-tion of the rule of law, and is therefore unconstitu-tional.

Review would force this Court to explain exactlywhere in the Constitution, the emanations from itspenumbrae, or the white spaces between the textthat it finds a distinction between fundamental andnon-fundamental rights. Second, it will compel theCourt to articulate the line between constitutionalinterpretation and judicial lawmaking. Third, thisis an engraved invitation for this Court to squarelyaddress the question of what the Framers’ genera-tion had in mind by enacting the Seventh Amend-ment. Finally, there is the issue of judicial abuse ofsummary judgment, which has reduced the Seventh

Amendment to a caricature of itself. Given the ubi-

quity of the practice, the critical importance of theSeventh Amendment to a system of ordered liberty,and the lack of historical or constitutional supportfor the practice, the issue is ripe for consideration.



25

I.I.I.I. The Office Of the Judge Is ToThe Office Of the Judge Is ToThe Office Of the Judge Is ToThe Office Of the Judge Is To DeclareDeclareDeclareDeclare thethethetheLaw, Not Write ItLaw, Not Write ItLaw, Not Write ItLaw, Not Write It

The preservation of a free Government requiresnot merely, that the metes and bounds whichseparate each department of power may beinvariably maintained; but more especially, thatneither of them be suffered to overleap the greatBarrier which defends the rights of the people.The Rulers whoThe Rulers whoThe Rulers whoThe Rulers who are guilty of such an encroach- ment, exceed the commission from exceed the commission from exceed the commission from exceed the commission from which theywhich theywhich theywhich theyderive their authority derive their authority derive their authority derive their authority, and are Tyrants.are Tyrants.are Tyrants.are Tyrants. ThePeople who submit to it are governed by lawsmade neither by themselves, nor by an authority derived from them, and are slaves.

—James Madison 8

The collective temper-tantrum thrown by Defen-dants Scalia, Thomas, and Roberts in the Obergefell decision is an admission, dictating the outcome ofthis case. If judges have only a power “to say whatthe law is, not what it should be,” 9 and it is wrongfor them to recognize unenumerated rights they do

8James Madison, A Memorial and Remonstrance (address tothe General Assembly of the Commonwealth Of Virginia), Jun.20, 1785), as reprinted in 2 J. Madison, The Writings of JamesMadison (1783-1787) at 122-23 (emphasis added). 9Obergefell v. Hodges , No. 14-556, 576 U.S. __ (2015) (Roberts,C.J., dissenting) (slip op., at 2).



26

not construe as “fundamental,” 10 then a fortiori , it iswrong for them to interpret pellucid constitutional

provisions into oblivion without asserting a “strong”reason for so doing. United States v. Wiltberger , 18U.S. 76, 96 (1820).

When the Framers entrusted the judicial Powerto this Court, they actually had something in mind.From time immemorial, it had been understood thatthe office of the judge was jus dicere 11—the power todeclare the law, as opposed to writing it. Lord Cokemaintained that "[i]t is the function of a judge not tomake, but to declare the law, according to thegolden mete-wand of the law and not by the crookedcord of discretion." 1 E. Coke, Institutes of the Lawsof England 51 (1642), and Blackstone adds that the

judge is "sworn to determine, not according to hisown judgments, but according to the known laws." 1Blackstone , Commentaries at * 69. There is no con-trary authority.

Blackstone writes that in any government, therehas to be “a supreme, irresistible, absolute, uncon-

trolled authority, in which the jura summi imperii ,or the rights of sovereignty reside." 12 In a constitu-

10 Id., Roberts, C.J., dissenting) (slip op., at 11).11 Francis Bacon , Essays LVI (Of Judicature) (1620). 12 1 Wm. Blackstone, Commentaries on the Laws of England 49(1765).



27

tional republic, it lies with the people, 13 and is heldas tenants-in-common. Any sovereignty government

possesses is the result of delegation, existing only tothe extent it is delegated. This is and necessarilymust be so, for as Alexander Hamilton observes,

[t]here is no position which depends on clearerprinciples, than that every act of a delegatedauthority, contrary to the tenor of the commis-sion under which it is exercised, is void. … Todeny this, would be to affirm … that men actingby virtue of powers, may do not only what theirpowers do not authorize, but what they forbid. 14

Justice Scalia bitterly complains that “my Ruler… is a majority of the nine lawyers on the SupremeCourt,” and they have robbed the American peopleof “the freedom to govern themselves.” 15 Chief Jus-tice Roberts also asked, “[j]ust who do we think weare?” 16 It is a damn good question, which at leastone Senator has been asking. 17 This Court “will not

13 1 J. Story, Commentaries on the Constitution of the UnitedStates 192 (1833) (governmental power “limited at the will ofthe nation”). 14 The Federalist No. 78, 438 (Alexander Hamilton) (I. Kram-nick ed. 1987). 15 Obergefell, (Scalia, J., dissenting) (slip op., at 2). 16 Id., Roberts, C.J., dissenting) (slip op., at 3).17 Ted Cruz, Constitutional Remedies to a Lawless SupremeCourt , Natio nal Review Online (Jun. 26, 2015).



28

hold laws unconstitutional simply because we findthem ‘unwise, improvident, or out of harmony with

a particular school of thought’”18

—except, of course,when that rule doesn’t precipitate the outcome pre-ferred by a majority of those “nine lawyers.” E.g.,Shelby County v. Holder , 570 U.S. ___, 133 S.Ct.2612 (2013).

The relentless intellectual inconsistency of thisCourt’s outcome-based jurisprudence (the presumeddefinition of “jiggery-pokery” 19) has reduced it to apunch-line on The Daily Show .20 If Scalia opposesthe outcome, this august body is “a select, patrician,highly unrepresentative panel of nine” that has nobusiness overriding the will of the voters, 21 butwhen our elected representatives continue to extendlaws he despises ( e.g., the Voting Rights Act), hecomplains that “it is very difficult to get [rid of thoserules] through the normal political processes” andaccordingly, that same “ select, patrician, highlyunrepresentative panel of nine ” Court has to step into rescue Republicans who need to indulge in racial

18 Obergefell, (Roberts, C.J., dissenting) (slip op., at 2) (citationomitted). 19 King v. Burwell , No. 14-114, 576 U.S. ____ (2015) (Scalia, J.,dissenting) (slip op., at 8).20 The Daily Show With Jon Stewart (Comedy Central televi-sion broadcast aired Jun. 29, 2015) (“Human Dissentipede”). 21 Obergefell, (Scalia, J., dissenting) (slip op., at 8).



29

discrimination to retain power. 22 Whereas the “ruleof law” is a law of rules, 23 Scalia evidently believes

that while the rights he doesn’t like should be deter-mined via plebiscite, federal protection of the rightto vote is simply “not the kind of a question you canleave to Congress.” 24 I might call it “argle-bargle,” 25 if I had a Scalian-to-English dictionary handy.

But almost despite himself, Scalia has a point.

The Framers’ Constitution contained an array ofremedies for judicial overreach, including the GoodBehavior Clause, liability in tort, private criminalprosecution, and mandatory Supreme Court reviewupon writ of certiorari . But if this Court has abusedits authority so often and blatantly that if Obama-care is now “SCOTUScare,” 26 our Constitution oughtto be called “the SCOTUStitution,” as it betrays nomore than passing resemblance to the original.

This appeal seeks to remedy that offense.

22 Shelby County v. Holder , Tr. of Oral Argument at 47. 23 Antonin Scalia, The Rule of Law as a Law of Rules , 56 U.Chi. L. Rev. 1175, 1178 (1989). 24 Shelby, Transcript at 47. 25 United States v. Windsor , 570 U.S. ___, 133 S.Ct. 2675, 2709(2013) (Scalia, J., dissenting). 26 King v. Burwell , supra. (Scalia, J., dissenting) (slip op., at23).



30

II.II.II.II. As the Seventh Amendment’s Purpose Is As the Seventh Amendment’s Purpose Is As the Seventh Amendment’s Purpose Is As the Seventh Amendment’s Purpose IsTo Protect Citizens “Agst. Corrupt Judges,” To Protect Citizens “Agst. Corrupt Judges,” To Protect Citizens “Agst. Corrupt Judges,” To Protect Citizens “Agst. Corrupt Judges,”

Summary Judgment Is Unconstitutional.Summary Judgment Is Unconstitutional.Summary Judgment Is Unconstitutional.Summary Judgment Is Unconstitutional.

A. When a Judge Has a Dog In A. When a Judge Has a Dog In A. When a Judge Has a Dog In A. When a Judge Has a Dog In the Hunt,the Hunt,the Hunt,the Hunt,S/He Will Never Fail To Pet It.S/He Will Never Fail To Pet It.S/He Will Never Fail To Pet It.S/He Will Never Fail To Pet It.

The English institution of the jury trial speaks tothe basic human instinct of selfishness. People canbe counted upon to act in accordance with their self-interest, and judges are no exception. Prior to the

Act of Settlement [1701], 27 English judges served atthe pleasure of the King. 28 This caused an obviousconflict-of-interest in disputes between the Crownand subjects, as the judge had a personal interest inkeeping his job, and was loath to enter a judgmentthat might curry His Majesty’s displeasure.

The original English solution to the problem of judicial independence was the jury trial. While the judge was presumed to be biased and could alwaysbe bribed, 29 a jury of one’s peers chosen at random ispresumed to not have a personal interest in the out-

come, thereby ensuring a fair process.

27 12 & 13 Will. 3, c. 2, §3. 28 Ellen H. Pearson, Remaking Custom: Law and Identity inthe Early American Republic 50 (U. Va. Press 2011). 29 Lord Bacon solicited bribes from both sides. John Campbell,The Life of Lord Bacon 184 (1853).



31

B. What Did the Framers Preserve In EnactB. What Did the Framers Preserve In EnactB. What Did the Framers Preserve In EnactB. What Did the Framers Preserve In Enact- ---ing the Seventh Amendment?ing the Seventh Amendment?ing the Seventh Amendment?ing the Seventh Amendment?

Enacted after Article III, the Seventh Amend-ment is an absolute limitation on the judicial power.It is not a matter of judicial grace, but an absoluteright to anyone who demands it in an appropriatecase. It provides that “the right to trial by juryshall be preserved,” U.S. Const. amend. VII — “theright which existed under the English common lawwhen the Amendment was adopted." Baltimore &Carolina Line, Inc. v. Redman , 295 U.S. 654, 657(1935).

The signal feature of a jury trial in 1791 was thatthe jury decided questions of fact and law. Georgiav. Brailsford , 3 U.S. 1, 4 (1803). The purpose of this“Heaven-taught institution” 30 was to “to guard agst.corrupt Judges.” 31 The Framers knew — and empiri-cal evidence has borne this out 32— that if given thepower to do so, our judges would “constitutionalize

30 Fabius, Letter to Editor, Delaware Gazette (1788), reprintedin, John Dickinson, The Letters of Fabius, in 1788, on theFederal Constitution; and in 1797 on the Present Situation ofPublic Affairs 32 (1797).31 2 Farrand, The Records of the Federal Convention of 1787587 (1909) (statement of Elbridge Gerry (MA)); there is no con-trary authority.32 Discussed at Part IV , infra.



32

[their] personal preferences,” 33 to the detriment oflitigants. The Seventh Amendment took all ulti-

mate34

decision-making powers out of the hands of judges, thereby preserving for Americans one of the“transcendent privileges” of the Englishman: “thathe cannot be affected either in his property, hisliberty, or his person, but by the unanimous consentof twelve of his neighbours and equals.” 35

This “select, patrician, highly unrepresentativepanel of nine” on Mount Olympus might think it abad idea for mere mortals to decide questions oflaw, but the Framers and legal scholars of the dayrespectfully disagreed. They saw it as a “securityagainst corruption,” as “it would be necessary tocorrupt both court and jury” to subvert justice. TheFederalist No. 83 at 465-66 (Alexander Hamilton).Sir John Hawles, Solicitor General to King WilliamIII, ably explains:

Tho’ judges are more likely to be able than jury-men, yet jurymen are more likely to be morehonest than judges; especially in all cases where

the power of the prerogative, or the rights of thepeople, are in dispute. Our rights, therefore, both

33 Silveira v. Lockyer , 328 F.3d 567, 568 (9th Cir. 2003) (Kozin-ski, J., dissenting from den. of reh. en banc). 34 Judges had both a power and duty to control runaway juriesthrough appellate review and new trial orders. 35 4 Blackstone, Commentaries * 379.



33

as individuals, and as a people, are more likelyto be secure while juries follow the result of their

own opinion; for less danger will arise from themistakes of jurymen, than from the corruption of judges. 36

The English jury system had a remarkable arrayof checks and balances. If the jury got out of hand,the judge could order a new trial. If the judge wasbiased, the jury could simply ignore him. And if thedecision was wrong on the law, both appellate andmandatory certiorari review were available. But atthe end of the day, a jury always made the ultimatecall. This is the legal system the Framers’ genera-tion intended to preserve inviolate by enacting theSeventh Amendment.

C. This Court’s Hands Are Bound.C. This Court’s Hands Are Bound.C. This Court’s Hands Are Bound.C. This Court’s Hands Are Bound.

[The rule of law] protects the rights and libertiesof all Americans. It is the envy of the world,because without the rule of law, any rights are

meaningless. ...— Judge John Roberts 37

36 John Hawles, The Englishman's Right: A Dialogue Betweena Barrister At Law and a Juryman 71-2 (1680) (1844). 37 Confirmation Hearing on the Nomination of John G. Roberts,Jr. to be Chief Justice of the United States: Before the S.Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of



34

Abraham Lincoln put it simply: "No man is goodenough to govern another man, without the other’s

consent,"38

and the Constitution and Bill of Rights isthe absolute limit of our consent. Thereunder, youare entrusted with the “judicial Power,” understoodas authority to declare the law only, as opposed torewriting it to comport with personal preference. AsJudge Roberts declared, “Judges and justices areservants of the law, not the other way around.” 39

Your freedom to act is also constrained by canonsof construction, which Judge Roberts described as“precedent on precedents.” 40 The object of constitu-tional interpretation is to give effect to the intent ofthe Framers, Lake County v. Rollins , 130 U.S. 662,670 (1889), and the Framers are presumed to havesaid what they meant and meant what they said.Connecticut Nat’l Bank v. Germain , 503 U.S. 249,253-54 (1992) (collecting cases). It is the office of a

judge to "always to make such construction [of alaw] as shall suppress the mischief, advance theremedy, and to suppress subtle invention and eva-sions for continuance of the mischief … according to

the true intent of the makers of the act." Heydon'sCase [1584] 76 Eng.Rep. 637 (Exch.).

Judge John Roberts) (hereinafter, “Roberts Hearing”). 38 Abraham Lincoln, Speech (on the Kansas-Nebraska Act,Springfield, IL), Oct. 16, 1854. 39 Roberts Hearing at 55 (Roberts).40 Roberts Hearing at 180 (Roberts).



35

The “mischief” the jury trial sought to suppressis explained by the incomparable Thomas Jefferson:

We all know that permanent judges acquire anesprit de corps ; that, being known, they are lia-ble to be tempted by bribery; that they are mis-led by favor, by relationship, by a spirit of party,by a devotion to the executive or legislative; thatit is better to leave a cause to the decision ofcross and pile than to that of a judge biased toone side … It is left therefore, to the juries, ifthey think the permanent judges are under anybias whatever in any cause, to take on them-selves to judge the law as well as the fact. Theynever exercise this power but when they suspectpartiality in the judges; and by the exercise ofthis power they have been the firmest bulwarksof English liberty. 41

In the Heydon calculus, the ‘mischief’ is corruptor biased judges, and the ‘remedy’ is to provide acheck on judicial corruption and caprice. This is the“benefit” of the Seventh Amendment “bargain” this

Court is bound to honor.

41 Thomas Jefferson, Letter (to L’Abbe Arnoux), Jul. 19, 1789 at2; accord, e.g., The Federalist No. 83 (Hamilton).



36

D. Summary Judgment Deprives Citizens OfD. Summary Judgment Deprives Citizens OfD. Summary Judgment Deprives Citizens OfD. Summary Judgment Deprives Citizens Ofthe Benefit Of the “Seventh Amendmentthe Benefit Of the “Seventh Amendmentthe Benefit Of the “Seventh Amendmentthe Benefit Of the “Seventh Amendment

Bargain.”Bargain.”Bargain.”Bargain.”

As Justice Stone observed, “[i]t is the Constitu-tion which we are to interpret; and the Constitutionis concerned, not with form, but with substance.”Gasoline Products Co. v. Champlin Refining Co .,283 U.S. 494, 498 (1931). The substance—and the

value—of a Seventh Amendment jury trial is that itaffords us the “security against corruption” Hamil-ton referred to in the Federalist. This is the benefitof the bargain: a biased jury could be controlled by

judges, and vice versa.

The piecemeal approach courts have applied inSeventh Amendment jurisprudence is conceptuallyflawed, as it ignores the role of a jury in controllingthe corrupt judge. But even if we could ignore thatcrucial detail, conditions have changed so radicallythat summary judgment cannot be rescued. Profes-sor Thomas explains:

For years, the Court and scholars have cited thenow century-old Fidelity & Deposit Co. v. UnitedStates [187 U.S. 315 (1902)] for the propositionthat summary judgment is constitutional underthe Seventh Amendment. The procedure heldconstitutional in Fidelity , however, was not thesame nor even similar to summary judgmentunder Rule 56. Under the procedure in Fidelity ,



37

the court accepted the facts alleged by the non-moving party as true. Under summary judg-

ment, in contrast, the court does not accept thefacts of the nonmoving party as true but insteaddetermines whether the evidence of the nonmov-ing party is sufficient. 42

In short, the judge pre-tries the case, completelybypassing the jury. Not only does the judge decidewhat the law is—usurping the jury’s prerogative todisregard a biased judge’s instructions, Georgia v.Brailsford, supra —but the facts and all inferencesdrawn therefrom. In effect, a jury trIn effect, a jury trIn effect, a jury trIn effect, a jury trial becomes aial becomes aial becomes aial becomes abench trial and the Seventh Amendment, a deadbench trial and the Seventh Amendment, a deadbench trial and the Seventh Amendment, a deadbench trial and the Seventh Amendment, a deadletter.letter.letter.letter.

This is a threshold question. As the trial courthad no authority to grant summary judgment, theentire decision is void.

42 Suja Thomas, Why Summary Judgment Is Unconstitutional ,93 U.Va. L. Rev. 139, 144 (2007).



38

III. “SeparationIII. “SeparationIII. “SeparationIII. “Separation- ---Of Of Of Of----Powers” ConsiderationsPowers” ConsiderationsPowers” ConsiderationsPowers” ConsiderationsDictate That Citizens Enforce Article IIIDictate That Citizens Enforce Article IIIDictate That Citizens Enforce Article IIIDictate That Citizens Enforce Article III

Good Behavior TenureGood Behavior TenureGood Behavior TenureGood Behavior Tenure

Our Constitution provides that Article III judges"shall hold their Offices during good Behaviour,"U.S. Const. art. III, § 1, and the Framers said whatthey meant and meant what they said. ConnecticutNat’l. Bank v. Germain , 503 U.S. at 253-54. But toenforce it, a court must be able to ascertain what itis, how it is to be enforced, and who has authority toenforce it.

A. What “Good Behavior” Isn’t A. What “Good Behavior” Isn’t A. What “Good Behavior” Isn’t A. What “Good Behavior” Isn’t

What we know for certain is that good behaviorwas not a clumsy cross-reference to impeachment.First, aside from the fact that the Framers simplydidn’t DO “clumsy,” the Northwest Ordinance of1787, 1 Stat. 51, conditioned judicial sinecures upon"good behaviour," even though the Continental Con-gress didn’t even have the power of impeachment. 43

Second, while British judicial sinecures were alsoconditioned on good behavior, Parliament couldliterally remove judges from office for any reason or

43 Saikrishna Prakash & Steven D. Smith, Removing FederalJudges Without Impeachment , 116 Yale L.J. Pocket Part 95(2006).



39

no reason at all. 44 Third, state constitutions copiedthe British model, granting judicial sinecures sub-

ject to good behavior while retaining the power ofaddress. E.g., N.H. Const. art. 72(73) (1783); Pa.Const. of 1790 art. V, § 2 (1838). There is no histo-rical evidence for the proposition that violations ofgood behavior tenure and grounds for impeachmentwere regarded as coterminous.

Congressional precedent was established a cen-tury ago in the investigation of Judge Emory Speerof the District of Georgia, charged with "despotism,tyranny, oppression, and maladministration" in thecourse of judicial decision-making. Charles Geyh,When Courts and Congress Collide: The Strugglefor Control of America’s Courts 160 (U. Mich. Pr.2008). The congressional committee concluded that"a series of legal oppressions [constituting] an abuseof judicial discretion" did not constitute an impeach-able offense, id. at 160-61, despite their being self-evident serial violations of his good behavior tenure.If the two were coterminous, Judge Speer shouldhave been impeached.

It is equally clear that it was not intended to bemere surplusage. Observing that many States con-

44 The Act of Settlement [1701], 12 & 13 Will. 3, c. 2, §3, prov-ided that "Judges Commissions be made Quamdiu se bene gesserint ; … but on the Address of both Houses of Parliament, itmay be lawful to remove them."



40

ditioned their judicial offices on good behavior, Alexander Hamilton opined in the Federalist that

"[t]he standard of good behavior for the continuancein office of the judicial magistracy, is certainly oneof the most valuable of the modern improvements inthe practice of government." The Federalist No. 78at 437 (Hamilton). Given Chief Justice Marshall’sfamous admonition that “[i]t cannot be presumedthat any clause in the constitution is intended to bewithout effect,” Marbury , 5 U.S. at 174, there can beno historical warrant for the lower courts’ self-serving finding that the Good Behavior Clause waseither inert or redundant.

B. What “Good Behavior” IsB. What “Good Behavior” IsB. What “Good Behavior” IsB. What “Good Behavior” Is

Indecipherable on its own, “good behavior” is aterm of legal art taken from English law, with thesame meaning as it had there. See, United Statesv. Wilson , 32 U.S. 150, 160 (1833) (re: pardon). AsMadison explained, when "a technical word is used[in the Constitution], all the incidents belonging to

it necessarily attended it." 45 The practice of grant-ing public offices quamdiu se bene gesserint existed

45 3 J. Elliot, Debates on the Federal Constitution 531 (1836)(remarks of James Madison at Virginia’s Ratification Conven-tion).



41

in England for at least a quarter-millenium; 46 use ofthe writ of scire facias to punish abuses of office is

traceable to the reign of Edward VI. 2&3 Edw. 6, c.8, §13 (ca. 1540). A quarter-millenium of relevantcommon law jurisprudence can be summarized in asentence: "If you didn’t do your job, you lost your

job."

By making a public official subject to removal for violating it, the condition of good behavior definedthe duties of an office. Coke listed three grounds forforfeiture of good behavior tenure: abuse of office,nonuse of office, and willful refusal to exercise anoffice. Saikrishna Prakash and Steven D. Smith,How to Remove a Federal Judge , 116 Yale L.J. 72,90 (2006) (citing Coke’s Institutes ). Blackstoneadded "the oppression and tyrannical partiality of

judges, justices, and other magistrates, in theadministration and under the colour of their office.”4 Blackstone, Commentaries at 140-41. Even a sin-gle transgression was sufficient to warrant removal:"Every voluntary act done by an officer contrary tothat which belongs to his office is a forfeiture of that

office." Henry v. Barkley [1596] 79 Eng. Rep. 1223,1224 (K.B.). And while most English judges servedat the pleasure of the King until 1701, Barons of the

46 See e.g., Harcourt v. Fox [1692] 1 Show. 426 (K.B.) (clerk ofthe peace); R. v. Bailiffs of Ipswich [1706] 91 Eng. Rep. 378(K.B.) (corporate recorder forfeited office for failure to attendmeetings).



42

Exchequer (English judges) enjoyed good behaviortenure; one invoked it as a defense when the King

attempted to remove him. 4 Coke, Institutes at 117. As common law precedent defines it with appropri-ate precision, it is no more abstruse than “due pro-cess” or “pardon,” If these facially vague terms canbe applied by courts, “good behavior” can, as well.

C. The Framers Intended To Entrust CitizensC. The Framers Intended To Entrust CitizensC. The Framers Intended To Entrust CitizensC. The Framers Intended To Entrust CitizensWith Enforcement of GoodWith Enforcement of GoodWith Enforcement of GoodWith Enforcement of Good Behavior Tenure.Behavior Tenure.Behavior Tenure.Behavior Tenure.

Having established that “good behavior” is not across-reference to impeachment, and is not so vagueas to be unenforceable, this begs a natural question:If Congress has no lawful authority to enforce “goodbehavior” tenure, who can? As Harvard’s legendaryRaoul Berger writes, “[w]hen an office held ‘duringgood behavior’ is terminated by the grantee’smisbehavior, there must be an ‘incident power tocarry the law into execution if ‘good behavior’ is notto be an impotent formula." Raoul Berger, Impeach- ment: The Constitutional Problems 132, 2d ed.

(Harvard Pr. 1999). Such a power must exist, as "[a]constitutional provision should not be construed soas to defeat its evident purpose, but rather so as togive it effective operation and suppress the mischiefat which it was aimed." Jarrolt v. Moberly , 103 U.S.580, 586 (1880). And if Congress can’t do it due toseparation-of-powers concerns, and neither thisCourt nor the President can do it due to self-evident



43

conflicts-of-interest, 47 it inexorably follows that thepower to enforce good behavior tenure lies with the

aggrieved citizen, as it had in Britain for a quarter-millenium.

At common law, good behavior tenure was origi-nally enforced by the sovereign through the writ ofscire facias . But since this power concerned onlythe interests of his subjects, and the King exercisedit purely in parens patriae , he was bound by law toallow the use of it to any subject interested. Black-stone explains:

WHERE the crown hath unadvisedly grantedany thing by letters patent, which ought not tobe granted, or where the patentee hath done anact that amounts to a forfeiture of the grant, theremedy to repeal the patent is by writ of scirefacias in chancery. This may be brought eitheron the part of the king, in order to resume thething granted; or, if the grant be injurious to asubject, the king is bound of right to permit him(upon his petition) to use his royal name for

repealing the patent in a scire facias. 48

47 As an example, President Bush would not impeach the Jus-tices who handed him that job for that irregular decision, as itwould cast aspersions on his legitimacy. 48 3 Blackstone, Commentaries at 260-61 (emphasis in original);see, United States v. American Bell Tel. Co ., 28 U.S. 315, 360(1888) (explaining the process).



44

The advantage of this approach is to maintain

separation of powers: Whereas Congress could onlyimpeach them, judges remained answerable to thecitizens they served.

This is the only interpretation of the good behav-ior clause consistent with Madison’s grand design ofthe Constitution. “The private interest of every indi-

vidual may be a sentinel over the public rights.”The Federalist No. 51, at 320 (Madison). The goodbehavior clause empowers those directly affected bymisconduct and who have an incentive to punish it.If judges want to keep their jobs, the good behaviorclause should motivate them to do their jobs.

D. If the Only Means of Removing an Article IIID. If the Only Means of Removing an Article IIID. If the Only Means of Removing an Article IIID. If the Only Means of Removing an Article IIIJudge From Office Is Via Impeachment, WhyJudge From Office Is Via Impeachment, WhyJudge From Office Is Via Impeachment, WhyJudge From Office Is Via Impeachment, WhyDoes the Good Behavior ClausDoes the Good Behavior ClausDoes the Good Behavior ClausDoes the Good Behavior Clause Even Exist?e Even Exist?e Even Exist?e Even Exist?

There is a saying that hard cases make bad law.That saying is incorrect. It is courts that make

bad law in the process of deciding cases basedsolely upon whom they want to win or lose.

—Justice Daniel Eismann 49

49 Nield v. Pocatello Health Services, Inc., No. 38823-2011 (Ida.2014) (slip op., at 63) (Eismann, J., dissenting). Concurrencescould fill a Brandeis brief.



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Every 1-L is taught the difference between prece-

dent and obiter dictum . As Chief Justice Marshallexplains, statements that go beyond the case, "maybe respected, but ought not to control the judgmentin a subsequent suit when the very point is presen-ted for decision.” Cohens v. Virginia , 19 U.S. at 399.But as Llewellyn notes, whenever a judge wants anoutcome badly enough, s/he will “lie to get it." KarlN. Llewellyn, The Common Law Tradition: Deciding

Appeals 135 (1960). Judge Posner adds that judges"are constantly digging for quotations from andcitations to previous cases to create a sense ofinevitability about positions that they are in factadopting on grounds other than deference to prece-dent." Richard A. Posner, How Judges Think 144(Harvard U. Pr. 2008). And when a judge takesindecent liberties with the law, it is generally easyto spot.

There is literally no “binding” precedent in any American court addressing the question of whetheran aggrieved citizen can enforce the Good Behavior

Clause. But that little nicety didn’t deter the trialcourt from willfully misrepresenting the state of thelaw. She cited a concurrence from her own Circuit,Hastings v. Judicial Conference of U.S., 770 F.2d1093, 1107 (D.C. Cir. 1985) (Edwards, J., concur-ring) which was not only not “on-point,” but barelyeven in the same time-zone, Id., at 1105 (“legislativeincursion into the judicial province”), and dictum in



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a plurality opinion, N. Pipeline Constr. Co. v. Mara- thon Pipe Line Co. , 458 U.S. 50 (1982) (plurality),

holding that bankruptcy courts had to be Article IIIcourts. "Courts and judges always lie," Martin Sha-piro, Judges as Liars , 17 Harv. J.L. & Pub. Pol’y155, 155 (1994), and the Harvard-trained Jackson isa quick study. Smith v. Scalia , No. 13-cv-0298-KBJ(slip op., at 24). She claims that precedent leads herto her obviously self-serving conclusion, despite thefact that there is none on offer—leaving an obviousquestion unanswered: If the only way to remove an

Article III judge from office is by impeachment, whyis the Good Behavior Clause even there?

The trial and appellate courts both took the Fifth.

IV.IV.IV.IV. The JudgeThe JudgeThe JudgeThe Judge- ---Fabricated Doctrine of AbsoluteFabricated Doctrine of AbsoluteFabricated Doctrine of AbsoluteFabricated Doctrine of AbsoluteSovSovSovSovereign and Judicial Immunity Wasn’t Inereign and Judicial Immunity Wasn’t Inereign and Judicial Immunity Wasn’t Inereign and Judicial Immunity Wasn’t Inthe Constthe Constthe Constthe Constitution and/or Has Been Abolisheditution and/or Has Been Abolisheditution and/or Has Been Abolisheditution and/or Has Been AbolishedBy Treaty.By Treaty.By Treaty.By Treaty.

The Court's statement that it is "tempting" to

acknowledge the authoritativeness of traditionin order to "curb the discretion of federal jud-

ges," … is of course rhetoric rather than reality;no government official is "tempted" to placerestraints upon his own freedom of action,which is why Lord Acton did not say "Powertends to purify." The Court's temptation is inthe quite opposite and more natural direction—



47

towards systematically eliminating checks uponits own power; and it succumbs.

—Justice Antonin Scalia50

In that brief passage, Justice Scalia summarizedtwo centuries’ worth of jurisprudence governing the

judiciary. In United States v. Callender , 25 F.Cas.239, 257 (D.Va. 1800) (Chase, J., riding circuit), theSeventh Amendment was eviscerated. In Bradley v.Fisher, 80 U.S. 335 (1872), the Court invented abso-lute judicial immunity. In Hans v. Louisiana , 134U.S. 1 (1890), it rewrote the Eleventh Amendment,substantially reducing its workload. In Pierson v.Ray, 386 U.S. 547 (1967), it rewrote the Civil Rights

Act, finding that “any person” did not include state judges. Statutes, treaties, and constitutional provisions have all been subject to judicial veto, and asScalia observes, this Court has never volunteered asingle restraint upon its power.

Justice Scalia is not immune to that temptation.While an actual originalist would concede that, likeit or not, the Constitution guarantees a right to an

abortion, he has to answer to wife Maureen, a well-known pro-life activist. 51 With that foundation laid,

50 Planned Parenthood of S.E. Pa. v. Casey , 505 U.S. 833, 981(1992) (Scalia, J., dissenting). 51 Aleksi Tzatzev, Meet The Fascinating Spouses Behind TheNation's Supreme Court Justices, Business Insider Australia ,Oct 24, 2012. Petitioner made the case regarding originalism



48

we turn to the other substantive issues decided.

A. “But I A. “But I A. “But I A. “But I HaveHaveHaveHave To Be Able To Rape YourTo Be Able To Rape YourTo Be Able To Rape YourTo Be Able To Rape YourDaughter With Impunity To ProtectDaughter With Impunity To ProtectDaughter With Impunity To ProtectDaughter With Impunity To ProtectHer From Being Raped.”Her From Being Raped.”Her From Being Raped.”Her From Being Raped.”

This is the doctrine of absolute official immunity,recast in all its florid absurdity. One is left to won-der where it could be found in the Constitution, its“penumbras and emanations,” 52—“or even the whitespaces between lines of constitutional text.” 53 Whenmoonlighting as a constitutional scholar, DefendantScalia asserts that "there was no doctrine of domes-tic sovereign immunity, as there never had been inEnglish law ."54 And as is so often the case, Scalia iscorrect.

Sovereign immunity never really existed in prac-tice in England. King John I acknowledged liabilityin respondeat superior for the wrongful acts of hiscourtiers, Magna Carta , c. 61 (1215), and thereafter,

directly to Scalia in connection with Smith v. Thomas, supra. 52 Justice Antonin Scalia: Courts Will Determine Legality ofNSA Surveillance, The Guardian (AP), Sept. 25, 2013 (quotingScalia). 53 Silveira v. Lockyer , 328 F.3d at 568 (9th Cir. 2003). 54 Antonin Scalia, Historical Anomalies in Administrative Law,Y.B. Supreme Court Hist. Soc’y . 103, 104 (1985) (emphasis inoriginal).



49

the King invariably waived his nominal immunitywhere justice required. 55 Justice Blair—one of the

Framers—advises us that ratification of the Consti-tution constitutes a de facto waiver of sovereigntywhen required to give efficacy to that document, 56 and to the extent the Fourteenth Amendment staysthe hand of individual States, it is a waiver of statesovereign immunity, as well.

Then, where did it come from? Judges, succumb-ing to temptation.

B.B.B.B. The “Will Of the People” Is Rarely a MatchThe “Will Of the People” Is Rarely a MatchThe “Will Of the People” Is Rarely a MatchThe “Will Of the People” Is Rarely a MatchFor the “Won’t” Of Federal Judges.For the “Won’t” Of Federal Judges.For the “Won’t” Of Federal Judges.For the “Won’t” Of Federal Judges.

Even if it could be argued that judges possess thecommon-law power to write law—this Court doesn’teven have the power to write their own proceduralrules, see 28 U.S.C. § 2072—at level best, the judge-made law of judicial immunity would only be com-mon law. By contrast, the Constitution explicitlystates that “all Treaties made, or which shall be

made, under the Authority of the United States,

55 James E. Pfander, Sovereign Immunity and the Right toPetition: Toward a First Amendment Right to Pursue JudicialClaims Against the Government , 91 Nw. U.L. Rev. 899, 906-925 (1997).56 Chisholm v. Georgia , 2 U.S. 419, 453 (1793) (seriatim opinionof Blair, J.).



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shall be the supreme Law of the Land.” U.S. Const.art. VI, cl. 2. That “supreme Law” does not include

any common-law judicial decree. Period.

There are no caveats in Article VI. Treaties arethe supreme Law of the Land. The only limitationin scope or subject matter is the Bill of Rights, bind-ing all branches of government. As such, while ourgovernment can ratify a multilateral treaty ensur-ing adequate health care for all, it cannot enter intoone criminalizing “hate speech,” as that would runafoul of the First Amendment. For this reason, wealways include a Reid v. Covert [354 U.S. 1 (1957)]exception to every treaty we ratify.

Treaties are like marriages. When Uncle Samexchanges solemn vows with his world partners tobe faithful, they kind-of expect him to not be gettinga little nooky on the side. This doctrine— pacta suntservanda (“agreements must be kept”)—is the cardi-nal principle of international law. The law of con-tract governs multilateral treaties: “Every treaty inforce is binding upon the parties to it and must be

performed by them in good faith,” Vienna Conven-tion on the Law of Treaties, art. 26, 1155 U.N.T.S.331 (entered into force Jan. 27, 1980), and “[a] partymay not invoke the provisions of its internal law as

justification for its failure to perform a treaty.” Id.,art. 27. Furthermore, a reservation by a signatoryState “incompatible with the object and purpose ofthe treaty” is severable and void. Id., art. 19(c).



51

While unratified, the State Department regardsthe Vienna Convention as authoritative, see e.g., S.

Exec. Doc. L, at 1 (1971) (Letter of Submittal fromthe Secretary of State to the President), if only as afait accompli : “[T]he intent of the signatory parties”controls, Diggs v. Richardson , 555 F.2d 841, 851(D.C. Cir. 1976), and in a multilateral accord with168 parties, our provincial “intent” doesn’t count formuch.

Once ratified, there is one right way to interpreta treaty. "In construing a treaty … we first look toits terms to determine its meaning ." United Statesv. Alvarez-Machain , 504 U.S. 655, 665 (1992), andtreaty provisions are self-executing if they “requireno legislation to make them operative.” Whitney v.Robertson , 124 U.S. 190, 194 (1888). Provisions canbe void for vagueness, but that is true in any legis-lation.

In 1992, the Senate finally ratified the Interna-tional Covenant on Civil and Political Rights, 999U.N.T.S. 171 (entered into force Mar. 23, 1976)

(ratified by the United States Sept. 8, 1992) (herein-after, “ICCPR”). As it is substantially identical inscope to the hortatory Universal Declaration ofHuman Rights (G.A. Res. 217A(III), U.N. Doc. A/810(1948)), its only conceivable object and purpose wasto abolish official immunity in tort for human rights

violations committed by agents of signatory States. And you know what that means.



52

Goodbye, judicial immunity.

The civilized world expressed its collective will. And both the Senate and State Department averredthat domestic law was fully ICCPR-compliant, andthat the United States would be bound upon ratifi-cation. 57

But then, this Court got out its veto pen.

Ignoring the plainly-expressed will of the peopleand its own precedent, Whitney, supra , this Courtdeclared that “although the Covenant does bind theUnited States as a matter of international law, theUnited States ratified the Covenant on the expressunderstanding that it was not self-executing and sodid not itself create obligations enforceable in thefederal courts.” Sosa v. Alvarez-Machain , 542 U.S.

57 In explaining the “non-self-executing” declaration, the StateDepartment said that it “does not believe it necessary to adoptimplementing legislation when domestic law already makesadequate provision for the requirements of the treaty,” UnitedStates Dept. of State, Core Doc. Forming Part of the Reports ofStates Parties, United Nations Doc. No. HRI/CORE/USA/2005(Jan. 16, 2005) at ¶ 157, and that, when conforming legislationis required, it is its consistent practice to withhold ratificationuntil such legislation is passed. Id. at ¶ 156. Senator Moynihan(D-NY) adds that although the Covenant “is not self-executing,these will become binding international obligations of the Uni-ted States.” 138 Cong.Rec. S4,783 (Apr. 2, 1992) (stmt. of Sen.Moynihan).



53

692, 735 (2004). Never mind that the non-self-exe-cution declaration was incompatible with the object

and purpose of the ICCPR and therefore, severableand void. The Court could not countenance the ideathat an “effective remedy” must be given to a citizenwhose rights protected by the have been violated,even if “the violation has been committed by personsacting in an official capacity.” ICCPR, art. 2, cl.(3)(a). And we all know why the veto pen came out:

That last phrase means “ judges.”

C. Application To the Case At BarC. Application To the Case At BarC. Application To the Case At BarC. Application To the Case At Bar

Whereas the original defendants in Smith v. Ben- der , No. 07-cv-1924-MSK-KMT (D. Colo. filed 2007),deprived me of my Fourteenth Amendment right toa fair and impartial tribunal, the Defendants in thiscase conspired to deprive me of “adequate, effective,and meaningful” access to federal court. Bounds v.Smith , 430 U.S. 817, 822 (1977). It is a civil andcriminal conspiracy, 18 U.S.C. § 241, and I have suf-

fered irreparable harm. After all, when I graduatedfrom law school, Tiger Woods was still an amateur.

I had four viable paths to a remedy in tort. First,a court could recognize that as the doctrine of abso-lute immunity renders the Bill of Rights unenforce-able, it never existed in the first place, especially asmany state supreme courts ruled that they never



54

had it to begin with. Evans v. Bd. of County Com'rs, 482 P.2d 968 (Colo. 1971) (collecting cases). Second,

it could have followed precedent and the advice of aFramer, finding that the Bill of Rights constitutesan implied waiver of immunity. Jacobs v. UnitedStates , 290 U.S. at 16. Third, it could have actuallyapplied Article VI of the Constitution, and held thatour ratification of the ICCPR extinguished officialimmunity. Finally, as the recognition of a jus cogensnorm is essentially a function of how badly a judgewants to find one, e.g., Filartiga v. Pena-Irala, 630F.2d 876, 884 (2d Cir. 1980) (55 nations is enough),it could have found that absolute official immunity

violates jus cogens law. But Hell would freeze overbefore a judge would willingly create precedent thatcould bankrupt her, which is why we have the Sev-enth Amendment.

V. V. V. V. As a Victim’s Ancient Right To Prosecute As a Victim’s Ancient Right To Prosecute As a Victim’s Ancient Right To Prosecute As a Victim’s Ancient Right To ProsecuteCrimes Would Never Have Been YieldedCrimes Would Never Have Been YieldedCrimes Would Never Have Been YieldedCrimes Would Never Have Been YieldedBy an Informed Populace, It Is RetainedBy an Informed Populace, It Is RetainedBy an Informed Populace, It Is RetainedBy an Informed Populace, It Is RetainedBy Virtue Of the Tenth Amendment.By Virtue Of the Tenth Amendment.By Virtue Of the Tenth Amendment.By Virtue Of the Tenth Amendment.

[W]hat they understood when they ratified thisConstitution was that they were affirming therights of Englishmen.

—Antonin Scalia 58

58 Constitutional Relevance of Foreign Court Decisions (C-



55

A. There Are No “Non A. There Are No “Non A. There Are No “Non A. There Are No “Non- ---Fundamental” Rights.Fundamental” Rights.Fundamental” Rights.Fundamental” Rights.

Some would argue that the right to gay-marry isfundamental. Others respectfully disagree. But noone has ever articulated where in the Constitution adistinction is drawn between fundamental and non-fundamental rights, or how judges can reliably tellthe difference.

Certainly, James Madison would have found thedistinction nonsensical. In introducing his draft ofour Bill of Rights to the House, he explained that heconsciously avoided attempting to enumerate all therights retained by the people, arguing that

…by enumerating particular exceptions to thegrant of power, it would disparage those rightswhich were not placed in that enumeration; andit might follow by implication, that those rightswhich were not singled out, were intended to beassigned into the hands of the General Govern-ment, and were consequently insecure. 59

SPAN television broadcast Jan. 13, 2005) (remarks of AntoninScalia). 59 1 Annals of Congress 456 (1789) (remarks of Rep. Madison).



56

This is a Rosetta Stone for interpretation of theNinth Amendment: While it doesn’t create rights

per se , it is a constitutionally-mandated canon ofconstruction intended to equate enumerated andunenumerated rights, 60 with the apparent goal ofsecuring William Penn’s right to not remove his hatin a courtroom. 61 The judicially-contrived conceptthat fundamental rights are retained, whereas non-fundamental rights are of lesser value, has no con-stitutional or historical basis, yields unending judi-cial mischief, and should be interred. See PlannedParenthood, 505 U.S. at 854 (limits of stare decisis).

B. Our “Bill Of Rights” Preserves Common LawB. Our “Bill Of Rights” Preserves Common LawB. Our “Bill Of Rights” Preserves Common LawB. Our “Bill Of Rights” Preserves Common LawSafeguards Against Abuse Of AuSafeguards Against Abuse Of AuSafeguards Against Abuse Of AuSafeguards Against Abuse Of Authority.thority.thority.thority.

The federal Bill of Rights is a misnomer. UnlikeNew Hampshire’s Constitution, which declares the“right of revolution” in Lockean terms, N.H. Const.art. 10, it doesn’t even try to assert a single naturalright. And as Madison explains, this was by design:

60 Madison’s embryonic draft of our Ninth Amendment read asfollows: "The exceptions here or elsewhere in the Constitution,made in favor of particular rights, shall not be so construed asto diminish the just importance of other rights retained by thepeople, or as to enlarge the powers delegated by the Constitu-tion…." 1 Annals at 456. 61 See, 1 Annals at 759-61 (discussing problem of enumeration).



57

[Those who opposed the Constitution] disliked itbecause it did not contain effectual provisions

against encroachments on particular rights, andthose safeguardsthose safeguardsthose safeguardsthose safeguards which they have been longaccustomed to have interposed between theminterposed between theminterposed between theminterposed between themand the magistrateand the magistrateand the magistrateand the magistrate who exercised the sovereignpower. 62

Procedural safeguards comprise the bulk of ourBill of Rights, and when such a right is reserved tothe people by virtue of the Tenth Amendment, onlya countervailing constitutional provision can divestthem of it. See Reid v. Covert, supra.

C.C.C.C. The Ancient RiThe Ancient RiThe Ancient RiThe Ancient Right To Private Criminalght To Private Criminalght To Private Criminalght To Private CriminalProsecution Is an Essential SafeguardProsecution Is an Essential SafeguardProsecution Is an Essential SafeguardProsecution Is an Essential Safeguard

Against Abuse Of Sovereign Power. Against Abuse Of Sovereign Power. Against Abuse Of Sovereign Power. Against Abuse Of Sovereign Power.

As Canada’s Department of Justice observes, theright to initiate a private criminal prosecution is “a

valuable constitutional safeguard against inertia orpartiality on the part of authority," Gouriet v.

Union of Post Ofc. Workers, [1978] A.C. 435, 477(H.L.) (Canada)—flourishing a pedigree as old asthe common law itself. 63

62 1 Annals at 450 (Madison) (emphasis added). 63 Canada Dept. of Justice, The Federal Prosecution ServiceDeskbook, Part IV, ch. 26.



58

As was pointed out to the trial court in gruesome

detail, the right to compel prosecution of criminalsnot only exists throughout the Commonwealth, but virtually everywhere in the civilized world. 64 Thesalutary purpose, according to Justice Holmes, wasto accommodate a natural desire for revenge withinthe law by avoiding "the greater evil of privateretribution," Oliver W. Holmes, The Common Law41-42 (1881).

Holmes also quipped that "a page of history wasworth a volume of logic." New York Trust Co. v. Eis- ner , 256 U.S. 345, 349 (1921). What we can say forcertain is that the constitutional charge to thePresident that “he shall take Care that the Laws befaithfully executed,” U.S. Const. art. II, § 3, did notextinguish that right. Both the New York, N.Y.Const. of 1777 art. XIX (1822), and Pennsylvaniaconstitutions, Pa. Const. of 1776, § 20 (1820), had

virtually identical clauses, and were not interpretedas banning private prosecution. 65 Nor can vestmentof the executive power in the President, U.S. Const.

art. II, § 1, for the same reason.

64 Mot. To Present Evidence of Federal Crimes to Grand Jury,Smith v. Scalia, supra .65 Allen Steinberg, "The Spirit of Litigation:" Private Prosecu- tion and Criminal Justice in Nineteenth Century Philadelphia ,20 J. Social History 231 (1986).



59

If the Framers ever intended to deprive citizensof the common law right to initiate a criminal prose-

cution—one existing in some form in all advanceddemocratic societies—one is left to search in vain forevidence of that intent. And as the prosecution ofcrime was not construed as an executive function in1791 but rather, as one of the well-establishedprerogatives of the people, it is unlikely that theywould have even perceived the threat that it couldbe divested by congressional fiat. The question hasnever been legally resolved, see Young v. UnitedStates ex rel. Vuitton et Fils S.A ., 481 U.S. 787, 816and n. 2 (1987) (Scalia, J., concurring in part), but itis difficult to imagine that the “inestimable right …of invoking the penalties of the law upon those whocriminally or feloniously attack our persons or ourproperty,” Blyew v. United States , 80 U.S. 581, 598(1872) (Bradley, J., dissenting), would be willinglyyielded by an informed populace, or identify the con-stitutional mechanism by which it was divested.



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CONCLUSIONCONCLUSIONCONCLUSIONCONCLUSION

Judicial decisions, like the Constitution itself,are nothing more than "parchment barriers."Both depend on a judicial culture that under- stands its constitutionally assigned role …[and] the modesty to persist when it producesresults that go against the judges' policy preferences.

— Justice Antonin Scalia 66

At the risk of stating the obvious, our forebearsdidn’t fight a revolution to replace King George with“King Judge.” You were only entrusted with power"to say what the law is, not what it should be," andthe Framers entrusted us with the power to punishyou if you refused to respect that limitation on yourpower. It is of overwhelming importance as to “whorules me,” Justice Scalia, and the Framers’ Consti-tution affords the remedies invoked herein. As thedecision below is plain error, I am entitled to reviewunder a writ of certiorari .

Respectfully submitted,

__/s/_______________Kenneth L. Smith

66 Michigan v. Bryant , 562 U.S. ___, 131 S.Ct. 1143, 1176 (2011)(Scalia, J., dissenting; emphasis added).



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