Time: Fri Sep 19 15:33:34 1997
	by usr05.primenet.com (8.8.5/8.8.5) with SMTP id PAA19730;
	Fri, 19 Sep 1997 15:17:28 -0700 (MST)
Date: Fri, 19 Sep 1997 15:17:14 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS:  The Federalist #87  (fwd)

>     This post is taken from:
>     THE CORRUPTION CHRONICLES Keeping an eye on  the
>     legal community an educational newsletter
>     published by the *FLORIDA FOUNDATION TO FIGHT
>     CORRUPTION* P.O.Box 1230, Tallahassee, Florida
>     32302 1-904-643-5983
>	  July 15, 1997   -    Volume 97,  no 5
>	  The Federalist #87 --- March 31, 1995
>		written by Ronald Bibace
>     (Rebuttal to the legal profession's arguements
>     exclusion from elective office in the legislative
>     and executive branches of government. Part I)
>     The Federalist 86 (February 8, 1995), identified
>     the underlying cause of a substantial number of
>     the nation's problems (1) as the failure of the
>     U.S. Constitution, resulting from the unconsti-
>     tutional control of all government by members of
>     the legal profession. To restore the
>     Constitution, Federalist 86 called for a removal
>     from elective office in the legislative and
>     executive branches of all states and the federal
>     government, of all persons who are members of the
>     legal profession, on the basis of the following
>     argument:
>     The effective control by members of the legal
>     profession (2) of all government violates the
>     principles of representative government and
>     separation of powers of the U.S. Constitution.
>     Therefore the necessary remedy to restore
>     constitutional government requires the exclusion,
>     through the courts or the ballot box, of members
>     of the legal profession from elective office in
>     both the legislative and executive branches of
>     government.
>     That position affirms the principle that: The
>     constitutional rights of the people to repre-
>     sentative government free from single interest
>     "same hands" control, or from control by the
>     members of a favored class, supercedes the
>     rights of the members of any single profession
>     or favored class, to collectively acquire that
>     control.
>     Opponents deny the validity of this constitutional
>     interpretation. If they are right, the underlying
>     problem caused by the harm of single interest
>     control would remain in place. That would
>     indicate that the constitution as written was
>     defective. The remedy would then lie with the
>     ballot box, a constitutional amendment, or if all
>     else failed, ANOTHER REVOLUTION. It is fortunate
>     for all that the legal profession's opposing
>     position is without merit. Let us examine it
>     carefully.
>     In general, an argument is either valid or
>     invalid. A valid argument has a premise that
>     provides conclusive evidence for the conclusion.
>     An invalid argument fails in one of three ways:
>     1. Through a misstatement of facts; 2. Incorrect
>     use of terms; or 3. In its defective "form"
>     through the use of an improper process of
>     inference.(3) "Defective form" arguments are
>     invalid because they are based on "fallacies"
>     also known as sophistry. These false or
>     fallacious "arguments" were first developed by
>     the sophists and classified by Aristotle, the
>     father of logical thought, as "Sophistical
>     Refutations". (4) All arguments that have
>     surfaced so far, are invalid for one or the other
>     of the aforementioned reasons. Here are the
>     professions arguments:
>     1. Members of the legal profession do not control
>	the government;
>     2. nor do they constitute a Madisonian "same
>	hands" control group;
>     3. nor should they be prohibited from running for
>	any public office for that would be unfair,
>	discriminatory and unconstitutional;
>     4. it is in the nation's best interest that
>	lawyers control the government because
>	government is about laws and that is their
>	training;
>     5. lawyers have historically been
>	disproportionatelly represented in government
>	and yet have served the nation well;
>     6. constitutional interpretations by non-lawyers
>	are invalid on their face;
>     7. proponents of excluding lawyers from any
>	elective office are "lawyer bashers" and/or
>	are otherwise flawed human beings whose views
>	are unworthy of consideration.
>     Here are the rebuttal arguments:
>     1. Members of the legal profession do not control
>	the government. (A false argument based on a
>	mistatement of fact)
>     The fact that members of the legal profession are
>     either a majority or significant plurality of
>     virtually every legislative body in the land, is
>     not disputed. Neither is the fact that a large
>     number of state executive branches are headed by
>     lawyers. Occasionally however, a semantic
>     argument is made, that the word "control" is
>     applicable only where the actual number of seats
>     occupied by lawyers in a particular elected body
>     exceeds 50%. However the language of Federalist
>     86 is "effective control."  Effective control in
>     a democracy is accheived by the largest
>     substantial plurality if no majority exists, and
>     if the next largest plurality is significantly
>     smaller than the first. Since those conditions
>     prevail virtually everywhere in the nation, the
>     argument is without merit, for it mistates fact.
>     It is true that where the executive branch is
>     headed by a non-lawyer the "control" may be less
>     effective, but remains nevertheless.
>2.   Members of the legal profession do not constitute
>     a Madisonian "same hands" control group. (A false
>     statement based on a mistatement of fact).
>     Some lawyers argue that members of the legal
>     profession are not the "same hands" identified in
>     Madison's statement whereby: '...the accumulation
>     of all powers ... in the same hands ..., may
>     justly be pronounced the very definition of
>     tyranny.'(5) They argue that because lawyers will
>     often differ in gender, ethnicity, race,
>     religion, political views and other ways,
>     characterizing them as "same hands" is
>     inaccurate. However, it was not the DIFFERENCE
>     between elected officials that concerned Madison
>     when he spoke of "same hands", it was the
>     possibility of the existence of a particular
>     PUBLIC INTEREST. Thus the test is whether or not
>     there exists among the elected members, the
>     sharing of such a "same hands" interest. The
>     answer is that the members of the legal
>     profession, just like the members of EVERY OTHER
>     ORGANIZED PROFESSION, constitute "same hands"
>     special interest groups. This is because every
>     organized profession's purpose is to advance the
>     interests of its members above the interests of
>     all others.
>     Conclusive evidence is supplied by Madison's
>     definition of what is and what is not republican
>     government under the U.S. Constitution: 'it is
>     ESSENTIAL to such a (republican) government that
>     it be derived from the great body of society, not
>     from an inconsiderable proportion, or a favored
>     class of it.' (emphasis original)(6) Since the
>     legal profession is "an inconsiderable
>     proportion" of society (less than 1 in 300
>     people), and constitutes "a favored class," it is
>     TWICE barred from being in control of what
>     Madison defined as: "a republican government."
>     That definition confirms that Madison meant to
>     include groups such as members of the legal
>     profession in the "same hands" statement.
>  3. Members of the legal profession should not be
>     prohibited from running for any public office
>     because to do so would be unfair, discriminatory
>     and unconstitutional. (A false argument
>     classified by Aristotle as "secundum quid"(7))
>     This is an argument against the concept of
>     "unconstitutional exclusion." We are a democratic
>     society forever seeking to be "inclusive". How
>     then do we justify excluding lawyers from public
>     office at all? The justification is found in the
>     following reasons:
>     Except for jury service, the legal profession has
>     already used its power to exclude 259,000,000
>     citizens, or 99.7% of the nation, from any
>     position of power in the judiciary, though the
>     constitution does not require it. Since the
>     profession has entirely taken over one of three
>     branches of government, without constitutional
>     requirement or discernible authority, it is
>     certainly fair and reasonable to require that
>     their representation be limited to the judiciary
>     The good of society sometimes requires that a
>     choice be made by individuals. As one example,
>     judges are not permitted to speak publicly on
>     political matters or endorce candidates for
>     certain public offices. While that is a
>     limitation of theri free speech first amendment
>     rights, it does serve society's best interest.
>     Thus it is fair and reasonable that a person
>     choosing to enter the legal profession, which
>     enjoys 100% control of one branch of government
>     should, in exchange, give up the right to run for
>     public office in the other two branches.
>     Excluding lawyers from elective office outside
>     the judiciary involves the balancing of the
>     rights of the people to constitutional government
>     free of any "same hands", and/or "favored class"
>     control, against the rights of lawyers to be
>     freely elected to effective control of all
>     government. If the Declaration of Independence
>     was right in affirming that the rights of the
>     people to: "institute a new government laying
>     it's foundation on such principles and organizing
>     it's powers in such form, as to them shall seem
>     most likely to effect their safety and
>     happiness", (8) then it follows that the right of
>     the people to exclude lawyers from both the
>     executive and legislative branches supercedes the
>     rights of lawyers to control all government.
>     Prior to 1832, the British faced a similar
>     problem. The nobility, (9) which by law
>     exclusively controlled one of their three
>     branches of government, the House of Lords, also
>     controlled the second branch, the House of
>     Commons. (The monarchy being the third.) The
>     Great Reform Act of 1832, PASSED TO PREVENT
>     them of their control of the House of Commons.
>     The historical legal precedent was thus created
>     where our own law originates, for restoring
>     constitutional government, WITHOUT THE NECESSITY
>     OF LAW.
> 4. Lawyers are the Proper people to control government
>    because that is their training. (A false argument
>    classified by Aristotle as "secundum quid (10)).
>    Lawyers argue that government is about laws and
>    that is their training. Therefore they say, it is
>    right and proper that they should be running
>    things because "those who are trained for a task,
>    should make the decisions." That is a false
>    argument known as "secundum quid". Thus, while it
>    is true that as a rule decisions are made by the
>    people best trained to do so, that is not true in
>    all cases. This is one such exception to the rule,
>    because constitutional prohibitions exist to make
>    certain those decisions are NOT made by any single
>    "same hands", and/or favored class group. In such
>    cases the techncally trained are limited to
>    advising and recommending.
>    For example, the U.S. Constitution designates the
>    President of the United States, Commander-in-Chief
>    of the armed forces, regardless of any previous
>    military experience. The most experienced and
>    knowledgeable military minds are constitutionally
>    limited to the power of advising. The Constitution
>    makes representatives drawn from all walks of
>    life, NOT THE TECHNICAL EXPERTS, collectively
>    responsible for all public policy decision making.
> 5. Members of the legal profession have historically
>    been disproportionately represented in government
>    and yet have served the nation well. (A false
>    argument classified by Aristotle as "non sequitur"
>    (11)).
>    It does not follow that what may have once been
>    historically true is therefore true now. These are
>    the days of Watergate, "Operation Court Broom" in
>    Miami and "Greylord" in Chicago, not the days of
>    Thomas Jefferson, Alexander Hamilton, and Abraham
>    Lincoln. The nature of the practice of law and the
>    integrity of lawyers has changed dramatically for
>    the worse commencing after the Civil War. (12)
>    Before that time the law was a highly respected
>    profession, attracting individuals of integrity
>    who sought first to do justice, not make money.
>    The opposite is often true today. The presumption
>    of integrity once granted to lawyers as to all
>    professionals, is no longer applicable. All to
>    often the opposite presumption is the rule. The
>    American Bar Association's own surveys indicate
>    that lawyers are viewed as the most dishonest of
>    all professional groups. To make matters worse,
>    the survey indicates that those who know lawyers
>    best, trust them least, and vice versa. In this
>    context the attempt by the profession to cover
>    itself with a cloak of honor earned by noble
>    predecessors long gone, has no logical validity.
> 6. Constitutional interpretations by non lawyers are
>    invalid on their face. (A false argument
>    classified by Aristotle as "ad verecundiam(13)).
>    This position ignores the issues completely. It
>    argues that one lacks the qualifications to speak
>    at all, absent the advantage of a formal legal
>    education. A sort of "father knows best" argument,
>    logically invalid except against little children.
>    James Madison, a non lawyer, wrote the
>    Constitution. It is therefore not logical to
>    assert that lawyers alone are qualified to
>    interpret it.
> 7. Proponents of excluding lawyers from any elected
>    office are flawed human beings unworthy of
>    consideration. (A false argument classified by
>    Aristotle as "ad hominem"(14)).
>    This argument is totally unrelated to the issues.
>    It consists of personal attacks against proponents
>    of views with which lawyers disagree. However,
>    personal attacks do not constitute a substitute
>    for logical argument. Instead they are persuasive
>    evidence that little or none exists. Subsequent
>    articles will address the consequences of the
>    unconstitutional control by lawyers in detail,
>    outlining the connective links between that control
>    and the harm to the nation.
>     (Ronald Bibace)
>     4720 NW 2 Ave, Suite D-107
>     Boca Raton. FL 33431
>     NOTES:
>     1.  The problems identified include problems in
>     health care, education, crime, access to the
>     courts, the moral decline of the nation, and the
>     loss of essential liberties. The estimated cost
>     to the nation in dollars ranges between $300
>     billion and $1 trillion per year.
>     2. Control by any single interest "same hands"
>     group, such as the members of any profession
>     and/or professional organization is
>     unconstitutional.
>     3. Encylopedia Britannica, (page 280, Vol. 23
>     15th edition 1988), Logic, the history and Kinds
>     of, The critique of forms of reasoning, Correct
>     and defective arguments.
>     4. see footnote 3.
>     5. Federalist 51, (1788) by James Madison.
>     6. Federalist 39, (1788) by James Madison.
>     7. Secundum quid: according to it's truth as
>     holding only under special provisos, 'applying a
>     general proposition as a premise without
>     attention to the tacit restrictions and
>     qualifications that govern and invalidate its
>     application in the matter at issue.' see note 3.
>     8. Declaration of Independence 1776.
>     9. The British example of the "same hands", "favored
>     class", "inconsiderable proportion" minority in
>     effective control of all government at that time.
>     10. See footnote 7.
>     11. non sequitur: it does not follow. see
>     footnote 3
>     12. The American Lawyer by John R. Dos Passos,
>     1907, Rothman and Co. publishers (1986)
>     13 ad verecundiam: an appeal "to awe" on the
>     grounds that seeks to secure acceptance of the
>     conclusion on the grounds of its endorsement by
>     persons whose views are held in general respect.
>     see footnote 3.
>     14. ad hominem: speaking "against the man" rather
>     than to the issue, in which the premises may only
>     make a personal attack on a person who holds some
>     theses, instead of offering grounds showing why
>     what he says is false. see footnote 3.

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

tel:     (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night
email:   [address in tool bar]       : using Eudora Pro 3.0.3 on 586 CPU
website: http://www.supremelaw.com   : visit the Supreme Law Library now
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best
             Tucson, Arizona state   : state zone,  not the federal zone
             Postal Zone 85719/tdc   : USPS delays first class  w/o this

As agents of the Most High, we came here to establish justice.  We shall
not leave, until our mission is accomplished and justice reigns eternal.
[This text formatted on-screen in Courier 11, non-proportional spacing.]


Return to Table of Contents for

Supreme Law School:   E-mail