The legal case on the unconstitutional control by lawyers of government.
2. The action called for will provide good results for the Nation. 1. The availability of evidence and the appropriate standard of proof.
There are five standards of proof in use in law. They are in order of decreasing degrees of difficulty: 1. Beyond a reasonable doubt; 2. Clear and convincing evidence; 3. Preponderance of the evidence; 4. Probable cause; and 5. Reasonable suspicion. 1. Beyond a reasonable doubt.
This is the standard of proof required in criminal trials and is the highest burden of all. The quantification of standards of proof into 'percentages of certainty' is somewhat arbitrary , but still useful for purposes of comparison between standards. This particular standard is viewed as a requiring a level of certainty of 75% to 95% or more. 2. Clear and convincing evidence.
This standard of proof is sought in cases in which the law requires proof that is higher than preponderance of the evidence (over 50%), but not as high as beyond a reasonable doubt. Many people consider this to require a level of certainty of about 75%. 3. Preponderance of the evidence.
This is the standard of proof in civil cases. Here the law requires only that over 50% of the evidence favor one party, thus requiring a level of certainty of anything over 50%. 4. Probable cause.
This is the standard of proof required to make a preliminary determination only. For example it is applied to policemen to inquire into their justification for arresting or detaining a suspect. This level of certainty is often considered to be between 25% and 30%. 5. Reasonable suspicion. This is the standard of proof required to determine whether a policeman acted reasonably or arbitrarily when stopping someone for questioning. It is lower than probable cause. It requires only that an individual appear to the policeman as suspicious by some reasonable, objective standard. The level of certainty required is less than 25% and perhaps as low as 10%. Standards of proof in law are a function of the severity of the potential penalty to the defendant, whether civil or criminal, and of whether the decision is final in nature. In a criminal trial where a defendant's life or liberty may be at stake, the law requires a very high standard of proof. In civil matters where lesser issues are involved, the law requires lesser standards for final determinations. Where the decision is not of a final nature standards of proof are lower still, dropping to probable cause or reasonable suspicion. Thus the law's intent is that the lower the potential harm to the defendant, the lower is the standard of proof required to make the case. B-2. Standards of proof in the Court of Public Opinion.
In the Court of Public Opinion minimum standards of proof tend to prevail. Other factors such as expediency and minimum harm to the party affected sometimes play a part. Expediency, or the ease with which the Nation can make a decision, is a factor here. For example, even a mere rumor of a problem with a consumer product may be enough to hurt sales substantially, if the public can easily replace the product with another. Since the people can easily vote competent non-lawyers into office, expediency is applicable in this matter. Minimum harm to the party affected requires scrutiny into two matters: A. The potential harm to the legitimate interests of the impacted party, and B. Any potential benefits to the affected party. A. What harm to the legitimate8 interests of the legal profession might occur?
There are almost one million lawyers in the land. At this time lawyers constitute about 50% of the US Senate, 35% of the US House of Representatives and 100% of the elected members of the Executive Branch. (Both President Bill Clinton and Vice President Al Gore are lawyers). That is a total of less than 200 people. State governments are smaller in size. Extrapolating to the whole country would result quantitatively, in a maximum of ten thousand lawyers excluded at any one time from senior elective offices9 they might have occupied. What then qualitatively is the nature of the impact? Some lawyers will lose the opportunity to earn an elected official's salary, to enjoy a position of power and perhaps to fulfill a sincere desire to serve their country. But these lawyers should suffer no loss of income, because elected officials are usually able to earn more in the private sector than in government. Lawyers who have a sincere desire to serve their country can be provided with unlimited opportunities to do so outside elected office. Job satisfaction, prestige, public respect and honor for lawyers will increase materially. Even the profession's power base will only be diminished, not eliminated. Because the profession's total control over the Judiciary, regarded by many as the most powerful of the three branches of government10 will remain. B. The potential benefits to the affected party.
If the action taken will provide benefits to the affected party, the public is more likely to require a lower standard of proof. It is well known that Power tends to corrupt and absolute power corrupts absolutely. (Lord Acton). Power has corrupted the legal profession as a result of its unconstitutional control of government. Abundant literature exists, written by lawyers, expressing grave concerns about the ethics of the profession. This distress arises in part from peer pressure forcing lawyers to systematically 'overbill'11 their clients, and which then results in an enormous discomfort some lawyers feel about belonging to so corrupt a profession. So much so that many honest lawyers leave the profession. The removal of the power that has caused the profession to become so corrupt will result in restoring the legal profession's integrity and 'soul', thus providing it with significant benefits. Therefore the general legal considerations, as well as the people's ability to act expediently with minimal harm to the profession, all support the adoption of minimum standards of proof, which are either reasonable suspicion or probable cause. C. In how many areas of the Nation's life is evidence of harm necessary?
It has been established that the loss of absolute political power will have very little effect on the profession's legitimate interests and that simultaneously benefits will accrue to the profession. That should produce a net effect favorable to the profession's legitimate interests. Therefore evidence of material harm to any single area of the Nation's life should be sufficient to provide public opinion agreement. That is the goal.12
A final consideration affecting Public Opinion on the decision to act, is the potential effect of the proposed action on the Nation. In the matter at hand, the effect would be the substantial reduction of the harm inflicted on the Nation by the legal profession, and the moral certainty that the Republic would be saved from its present slide into chaos and the loss of its democratic form of government. Yet all of the Nation's legal talent would remain available to Government on an advisory basis, as paid consultants or staff members. Therefore, except for the dubious proposition that the Nation would lose the services of one or more particularly brilliant lawyers who might refuse to serve except in elective office,13 it is virtually impossible to identify any disadvantage at all. Conclusion Public agreement on the need for the removal of lawyers from elective office is required to provide the context for change. Political consensus through public opinion agreement involves the realm of Opinion not Knowledge. A majority Opinion on political issues is by definition 'right' in a democracy.14 To that end evidence will be presented showing that material harm has been done by the profession to the Nation to a standard of proof of reasonable suspicion or probable cause, even though no evidence of harm is necessary to prove the case at law.
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About the author: This writer is a constitutional scholar who wrote Federalists 86 - 95, in defense of the Constitution. He is like Madison, a non lawyer and like Hamilton an immigrant and naturalized American.