Fighting Black-Collar Crime

The Fight for Americans’ Rights in American Courts

Chief Justice John Marshall is rightly considered great because he devoted many years and much effort to actually doing what he swore to do:  support the Constitution against people in power.  In doing so, he offered some choice words for judges who violated their oaths and the Constitution. 

In some of his most famous decisions, Chief Justice Marshall included some strong statements about the limits of judicial power and about judges who exceed those limits.  He may have directly had in mind and indirectly been writing about one of his own colleagues, Justice Samuel Chase.  Justice Chase was impeached in 1804 (and he should have been convicted) for viciously violating the freedom of speech and press by persecuting critics of people in power.

Article III of the Constitution emphasized that federal judges may “hold their Offices” only “during good Behaviour.” It also identified judicial behavior that was mandatory, meaning that contrary behavior is bad. Clearly, federal “judicial Power shall extend” no further than permitted “under this Constitution” and federal “Laws” and “Treaties.” Article. VI established that the “Constitution” and federal “Laws” and “Treaties” are “the supreme Law of the Land,” and all state and federal “Judges” are “bound thereby;” moreover, “all” state and federal “judicial Officers” were and are required to “support this Constitution” in all official conduct.

SCOTUS, itself, prepared a roadmap for impeaching a judge for behaving badly. One of the first judges ever impeached under the Constitution was a SCOTUS justice, Samuel Chase in 1804. Shortly before Justice Chase’s impeachment, Chief Justice Marshall delivered a famous opinion for a unanimous SCOTUS (including Justice Chase), Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 

In Marbury, the great Chief Justice emphasized that judges knowingly violating controlling legal authority “subvert the very foundation of” the Constitution.  Judges pretending that they may “do what is expressly forbidden” by the Constitution implicitly give themselves and each other “a practical and real omnipotence.”  Such judicial misconduct “reduces to nothing” America’s “greatest improvement on political institutions—a written constitution.”  Judges “cannot” pretend to have the “discretion” to “sport away” our “vested rights.”

“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,” so “[o]ne of the first duties of government” (one of the first duties of judges) “is to afford that protection.”  Clearly, the “very essence of judicial duty” is to “decide” every matter “conformably to the constitution.”  “It is emphatically” judges’ “duty” to “say what the law” actually “is.” Judges were not given any power to knowingly misrepresent or knowingly violate the law. Judges must actually apply the actual “rule” that governs, and they “must” expressly “expound and interpret that rule.” Judges were not given any power to issue rulings based on knowing falsehoods or false pretenses about any rule of law. 

In a later opinion, Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821), Chief Justice Marshall addressed related principles. Any “judge” who “swear[s] to discharge his duties agreeably to the constitution of the United States” and then violates his oath commits “worse than solemn mockery” of his court, Congress, the Constitution and the American people. Such judges commit “treason to the constitution.”  The Constitution is clear and emphatic that no public official may “usurp” any power that was “not given” to them.  

As Amendment IX and Amendment X emphasize, all “rights” (even if not in any “enumeration”) were “retained by the people,” and our representatives (our public servants) were merely “delegated” only limited “powers” over our exercise of our rights, i.e., only to the extent permitted “by the Constitution.”

The first and last amendments in the Bill of Rights are clear and controlling.  The very First Amendment to our Constitution expressly emphasized that it did not give any federal official any power to purport to “make” any “law” that “abridg[es] the freedom of speech” and “press.”  Amendment X emphasized that any relevant “powers” that were “not delegated” to federal officials were “reserved” to “the people.”

Justice Chase was impeached by the House, but he narrowly escaped conviction by the Senate.  Some Senators likely voted not to convict because impeachment was expressly based on the House’s contention that Justice Chase’s conduct (and even his speech) was criminal.  Subsequently, Congress wisely enacted laws that clearly made conduct such as Justice Chase’s criminal.  The following are only two of many federal criminal statutes that address black-collar crime. 

“Whoever, under color of any law, statute, ordinance, regulation, or custom willfully subjects any person in any” part of the U.S. “to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States” commits a federal offense.  18 U.S.C. § 242. That language is so broad that it covers every justification that any judge might offer for any judicial action. The word “custom,” for example, covers judicial practices and doctrines that judges use to pretend to justify violating our Constitution.

“If [any] two or more persons” (including any judge) “conspire to injure, oppress, threaten, or intimidate any person in any” part of the U.S. “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same,” they commit a federal offense.  18 U.S.C. § 241.

The foregoing criminal statutes apply to judges just as much as they do to anyone else. “Even judges” clearly “can be punished criminally” under Sections 241 or 242 “for willful deprivations of constitutional rights.”  Imbler v. Pachtman, 424 U.S. 409 (1976).  “The language” of Sections 241 and 242 is “plain and unlimited” and it “embraces all of the rights and privileges secured to citizens by all of the Constitution and all” federal “laws.”  United States v. Price, 383 U.S. 787 (1966).  The “qualification” regarding “alienage, color and race” in Section 242 does not apply “to deprivations of any rights or privileges.”  United States v. Classic, 313 U.S. 299 (1941). 

Such crimes are what SCOTUS Justices had in mind when they reminded us of an ominous warning in Miranda v. Arizona, 384 U.S. 436 (1966), quoting the wise and great Justice Brandeis dissenting in Olmstead v. United States, 277 U.S. 438 (1928):

“Crime is contagious. [When] the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”