Justice System:
Ordinary people have also gone a long way toward losing equal treatment under law. The America described in civics books, in which no one could be convicted or fined except by a jury of his peers for having violated laws passed by elected representatives, started disappearing when the New Deal inaugurated today's administrative state -- in which bureaucrats make, enforce, and adjudicate nearly all the rules. Today's legal -- administrative texts are incomprehensibly detailed and freighted with provisions crafted exquisitely to affect equal individuals unequally. The bureaucrats do not enforce the rules themselves so much as whatever "agency policy" they choose to draw from them in any given case. If you protest any "agency policy" you will be informed that it was formulated with input from "the public." But not from the likes of you.
Disregard for the text of laws -- for the dictionary meaning of words and the intentions of those who wrote them -- in favor of the decider's discretion has permeated our ruling class from the Supreme Court to the lowest local agency. Ever since Oliver Wendell Holmes argued in 1920 (Missouri v. Holland) that presidents, Congresses, and judges could not be bound by the U.S. Constitution regarding matters that the people who wrote and ratified it could not have foreseen, it has become conventional wisdom among our ruling class that they may transcend the Constitution while pretending allegiance to it. They began by stretching such constitutional terms as "interstate commerce" and "due process," then transmuting others, e.g., "search and seizure," into "privacy." Thus in 1973 the Supreme Court endowed its invention of "privacy" with a "penumbra" that it deemed "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The court gave no other constitutional reasoning, period. Perfunctory to the point of mockery, this constitutional talk was to reassure the American people that the ruling class was acting within the Constitution's limitations. By the 1990s federal courts were invalidating amendments to state constitutions passed by referenda to secure the "positive rights" they invent, because these expressions of popular will were inconsistent with the constitution they themselves were construing.
By 2010 some in the ruling class felt confident enough to dispense with the charade. Asked what in the Constitution allows Congress and the president to force every American to purchase health insurance, House Speaker Nancy Pelosi replied: "Are you kidding? Are you kidding?" No surprise then that lower court judges and bureaucrats take liberties with laws, regulations, and contracts. That is why legal words that say you are in the right avail you less in today's America than being on the right side of the persons who decide what they want those words to mean.
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