My turn on the op-ed pages came Tuesday. What appeared was a version of what began as another post in this series. It also could have been titled “J.A.I.L.’s Ultimate Lie.” For what it’s worth, what follows is the original draft of the post before I edited and rewrote it for submission to the local daily:
Prior installments in this series have looked at factual misstatements and misrepresentations by the promoters of Amendment E (J.A.I.L.). As the election approaches, it is time to get a bit more philosophical.
Amendment E proponents would have the public believe that the proposal seeks to restore power to “we the people.” In point of fact, Amendment E would vest unlimited and unchecked power in the hands of as few as seven people selected at random.
“We the people” rests on the belief that power comes from citizens and the government acts only through the wishes of the citizens. That is how our system operates. The public casts ballots for the Legislature, the governor and the judicial branch. If we disagree with the policies or laws they adopt, we have remedies. We can vote them out. We can use the power of referendum to force a public vote on laws adopted by the Legislature. We can use the power of initiative to propose our own laws or constitutional amendments. Every legislative enactment is reviewed by the governor. Every gubernatorial veto is reviewed by the Legislature. Any state court or administrative agency decision is subject to review by the South Dakota Supreme Court. Moreover, the Legislature has never hesitated to change the law to essentially overrule a state Supreme Court decision and more than once has simply abrogated Supreme Court decisions. It’s all a concept known as checks and balances.
That doesn’t happen with Amendment E. To the contrary, it throws these concepts out the window.
The special grand jury it creates consists of 13 people selected at random on a rotating basis. A vote of only seven is enough to determine any matter brought before it. Thus, if someone is convicted of bringing a gun into a school and seven grand jurors think guns should be allowed on school grounds, they can allow the judge and/or jurors who convicted the person to be sued for applying a law adopted by the Legislature and signed by the Governor. In fact, that is what South Dakota J.A.I.L.er-in-chief Bill Stegmeier advocated during a radio appearance.
Amendment E takes “preeminence” over any statute, case law “or constitutional provision.” In other words, it trumps every other provision of the South Dakota Constitution and South Dakota law. Yet not only is the power unfettered, nothing in Amendment E allows review or appeal of the special grand jury’s decisions. In fact, it is not only judicial misconduct for any judge in the state to hear a challenge to the amendment or something the grand jury does, any such ruling is automatically null and void.
Amendment E also says members of the special grand jury and anyone seeking “enforcement” of its findings cannot be held liable “civilly or criminally.” Since no one can review its decisions and it has total immunity, the grand jury can do whatever it wants in any particular case. In fact, nothing prevents the grand jury from expanding its powers beyond the terms of the amendment itself.
Thus, the bottom line of J.A.I.L. is that as few as few as seven people can pick and choose what laws to enforce and to whom they would apply. They can ignore the Legislature, the governor and the courts. And there is no restraint on that power. Absent any sort of review, the grand jury is free to use race, religion (or lack thereof), political beliefs, personal lifestyle or anything it wants as a basis for any of its decisions. With an ever-changing membership, how are citizens to know whether a law one particular grand jury enforces wonÃ?ƒ‚’t be found invalid by a later grand jury? Take abortion, for example. Does anyone doubt that application and enforcement of court decisions and laws regarding abortion would hinge upon the views of who is on the grand jury at any particular time?
Amendment E proponents often toss out the phrase “star chamber” when it comes to our judicial system. Yet a star chamber was not an activist judge acting on his or her own. The star chamber was a group acting with its own rules, unbound by any legal or other constraints. Which is closer to a star chamber? A judge bound by procedural rules, existing precedent, substantive statutes and constitutional provisions and whose decisions are subject to review? Or a 13-person entity that sets its own rules, has explicit unfettered power to ignore statutes and the constitution, and whose decisions can never be reviewed?
No one disputes the concept behind “we the people.” The problem is Amendment E decimates that concept. Instead of power resting with “we the people,” we become subject to the unrestrained and unreviewable power of 13 randomly selected individuals.
That is the most dangerous lie about J.A.I.L. It is not about judicial misconduct, accountability, democracy or citizen control. It is about taking power from the people and placing it in the hands of an ever changing group of 13 people. It is no more than a mechanism to destroy the core values upon which this nation and state were founded.
The law is not a “light” for you or any man to see by; the law is not an instrument of any kind. The law is a causeway upon which so long as he keeps to it a citizen may walk safely.
Robert Bolt, A Man for All Seasons