The Court Of Public Opinion

When the founding fathers came to draw up a constitution, although all of them had been born and bred in what Thomas Jefferson described as the ?orthodox doctrines of British liberties,? they necessarily found but scant guidance looking at the English model because that country had never found it necessary to write down a constitution.

Clearly, the House of Representatives was modeled after the House of Commons, there being no other model to draw upon, since Europe at that time was for the most part absolutist and possessed no such traditions. Further drawing on their understanding of the English model, the founding fathers wanted a second chamber, but had to resolve upon some system other than the House of Lords, which at that time was composed of hereditary peers, which the Americans had decided would not do at all in the new Republic, along with the bishops of the Church of England, also entirely foreign to American way of thinking which was based upon non-conformism and a refusal to countenance an established church. They resolved upon a curious compromise reaching back to the old Roman tradition for the word ?Senate,? but still looking to the English model for representatives from each state.

Oddly enough, the House of Lords has continued to evolve, while the Senate remains more or less fixed as it was set down in the Constitution of 1776, and has by now become in a sense quite anomalous. Hereditary peers have lost all right to exercise any vote in the House of Lords, but the British still have not entirely decided upon the best manner of composing the upper house, which though it has lost all power to the House of Commons nonetheless is preserved as a deliberative chamber with a certain power to delay legislation.

In the years before the great Reform Bill of 1832, many members of Parliament were returned by a mere handful of votes, being returned for what were then termed ?Rotten Boroughs,? because of the clearly inequitable proportion of votes required to return such members, sometimes no more than a dozen. Today in a somewhat amazing reversal of history, one could view many of the states of the Union as rotten boroughs, because they return two Senators in spite of having a disproportionately tiny number of voters. The state of Delaware has far fewer residents than the San Fernando Valley, yet returns two Senators with exactly the same voting powers as the two California Senators who between them represent the fifth largest economy in the world and 30 million people.

At the time of the American Revolution, the House of Lords exercised great powers but those powers have gradually disappeared, whereas today each Senator is in effect a virtual fiefdom. Any Senator can stop any business from being transacted; that is to say, a single Senator from a state with few than one million people can prevent the passage of legislation, even if that legislation has been passed by the House of Representatives. What ever else this may be, it is certainly not anything resembling a true democracy because the Senate today, with incumbents nearly impossible to unseat, is far more like an aristocracy than today?s membership of the House of Lords.

When it came to constructing the judicial system, the founding fathers sought to retain the common law in its entirety, with the single exception of the Constitution, and it must be said that the Constitution is an exceedingly important difference. But as for form and procedure, the old tradition of the common law, already at that time more than 600 years old, prevailed almost without change. But when it came to deciding what should be the highest court, again the founding fathers were on their own, because they could derive nothing but mystery and obfuscation from looking at the English system.

Even today, although the current British government is seeking to change the system, the highest court in the land is said to be the House of Lords, but it is not really the House of Lords at all but a mere committee of the House of Lords composed of a number of senior judges, who collectively are referred to as the Law Lords. But whereas the Justices of the Supreme Court have a magnificent Greco-Roman style building of their own, and frequently appear in resplendent black robes as celebrities in their own right, most people in England would not be able to name of a single Law Lord. Indeed, the House of Lords is so informal that it is hardly a court at all; it meets in a committee room in the upstairs of the House of Lords, and the Law Lords wear no kind of robe but merely appear in lounge suits. The present English government, breaking with a tradition of more than half a millennium, says it intends to replace the House of Lords with a Supreme Court, so perhaps with wonderful irony the highest court of appeal in Britain will finally come to resemble the U.S. Supreme Court.

Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford University?s Honor School of Jurisprudence and is a member of the English bar, then was admitted to the California Bar in 1983. A practicing attorney, he is a prolific author and sought-after mediator. For a free consultation, please contact him through his website: http://www.parsellemediation.com

When the founding fathers came to draw up a constitution, although all of them had been born and bred in what Thomas Jefferson described as the orthodox doctrines of British liberties, they necessarily found but scant guidance looking at the English model because that country had never found it necessary to write down a constitution.

Clearly, the House of Representatives was modeled after the House of Commons, there being no other model to draw upon, since Europe at that time was for the most part absolutist and possessed no such traditions. Further drawing on their understanding of the English model, the founding fathers wanted a second chamber, but had to resolve upon some system other than the House of Lords, which at that time was composed of hereditary peers, which the Americans had decided would not do at all in the new Republic, along with the bishops of the Church of England, also entirely foreign to American way of thinking which was based upon non-conformism and a refusal to countenance an established church. They resolved upon a curious compromise reaching back to the old Roman tradition for the word Senate, but still looking to the English model for representatives from each state.

Oddly enough, the House of Lords has continued to evolve, while the Senate remains more or less fixed as it was set down in the Constitution of 1776, and has by now become in a sense quite anomalous. Hereditary peers have lost all right to exercise any vote in the House of Lords, but the British still have not entirely decided upon the best manner of composing the upper house, which though it has lost all power to the House of Commons nonetheless is preserved as a deliberative chamber with a certain power to delay legislation.

In the years before the great Reform Bill of 1832, many members of Parliament were returned by a mere handful of votes, being returned for what were then termed Rotten Boroughs, because of the clearly inequitable proportion of votes required to return such members, sometimes no more than a dozen. Today in a somewhat amazing reversal of history, one could view many of the states of the Union as rotten boroughs, because they return two Senators in spite of having a disproportionately tiny number of voters. The state of Delaware has far fewer residents than the San Fernando Valley, yet returns two Senators with exactly the same voting powers as the two California Senators who between them represent the fifth largest economy in the world and 30 million people.

At the time of the American Revolution, the House of Lords exercised great powers but those powers have gradually disappeared, whereas today each Senator is in effect a virtual fiefdom. Any Senator can stop any business from being transacted; that is to say, a single Senator from a state with few than one million people can prevent the passage of legislation, even if that legislation has been passed by the House of Representatives. What ever else this may be, it is certainly not anything resembling a true democracy because the Senate today, with incumbents nearly impossible to unseat, is far more like an aristocracy than todays membership of the House of Lords.

When it came to constructing the judicial system, the founding fathers sought to retain the common law in its entirety, with the single exception of the Constitution, and it must be said that the Constitution is an exceedingly important difference. But as for form and procedure, the old tradition of the common law, already at that time more than 600 years old, prevailed almost without change. But when it came to deciding what should be the highest court, again the founding fathers were on their own, because they could derive nothing but mystery and obfuscation from looking at the English system.

Even today, although the current British government is seeking to change the system, the highest court in the land is said to be the House of Lords, but it is not really the House of Lords at all but a mere committee of the House of Lords composed of a number of senior judges, who collectively are referred to as the Law Lords. But whereas the Justices of the Supreme Court have a magnificent Greco-Roman style building of their own, and frequently appear in resplendent black robes as celebrities in their own right, most people in England would not be able to name of a single Law Lord. Indeed, the House of Lords is so informal that it is hardly a court at all; it meets in a committee room in the upstairs of the House of Lords, and the Law Lords wear no kind of robe but merely appear in lounge suits. The present English government, breaking with a tradition of more than half a millennium, says it intends to replace the House of Lords with a Supreme Court, so perhaps with wonderful irony the highest court of appeal in Britain will finally come to resemble the U.S. Supreme Court.

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The nineteenth century the Victorian age – effectively began in 1815, with the Battle of Waterloo, and ended in August 1914 with the outbreak of the First World War. During that 99 years, the British with their enormous navy and vast overseas possessions, maintained a kind of hegemony which insured almost a century of relative peace in the world and an expansion of free trade that reached its pinnacle at the turn of the 20th century and has not been matched since then.

By the 1880s, the British had lost economic supremacy to the United States and Germany, and then were severely weakened by the carnage of 1914-18, resulting in a power vacuum such that the twentieth century is already looked upon as the most destructive period in human history. Germanys challenge had failed by 1917 both on the high seas and in the trenches of Flanders, while the United States maintained its isolationist stance, but the British were nonetheless forced off the Gold Standard and unable to influence the rise of fascism in Italy and Germany. With no one at the helm the world drifted towards disaster.

Protected by two oceans and with colossal economic potential, the United States recovered from Pearl Harbor within six months to smash the Japanese carrier fleet at the Battle of Midway, effectively putting the Japanese into a defensive position from which they were never able to recover. In the European theatre, the German military machine was crushed between Russian armies in the north and east, American and British armies in the south and west, with the great bulk of the fighting falling on the Russians. Although the British Empire survived the war intact, that 500-year saga had effectively come to a close, and in the next 30 years the British entirely dismantled that empire which had once encompassed about a quarter of the world. As Europe lay in a kind of devastation not seen since the Black Death in the first half of the fourteenth century, the Soviet Union and the United States challenged each other for hegemony of the world, a struggle that ended in 1989, marked by the collapse of the Berlin Wall with complete victory to the United States. This event marked the effective ending of the dismal twentieth century, at the same time the shortest and the bloodiest century in human history. It is from that legacy that the world today is recovering.

How is the United States doing as the hegemonic power? As a military power it is wholly unrivaled and indeed unchallengeable. The United States operates eleven carrier battle fleets, each of which constitutes a greater concentration of destructive power than all ordnance expended in World War II. Unlike the British who only ruled the waves, the United States rules all the oceans and the whole of the worlds airspace. How many carrier battle fleets exists in opposition to Americas eleven? The answer is none. In addition, the United States continues to maintain a nuclear arsenal more than adequate to destroy human civilization as we know it, because in an interdependent world the use of nuclear weapons would indeed be a shock as disastrous for the perpetrator and for the victims.

Yet accompanying this unparalleled military might, there are signs of weakness that give cause for concern. The United States has become the worlds largest debtor nation, in marked contrast to the nineteenth century British who always maintained its position as a net exporter of capital until the start of World War I. Two-thirds of the US economy relies upon consumer demand, and the goods that the consumer demands are overwhelmingly now manufactured in Asia. Wal-mart estimates that six out of every seven items sold in its stores are manufactured in China. General Motors recently announced plans to layoff another 25,000 workers, and Moodys recently lowered Ford Motors borrowing capacity to junk bond status. The Peoples Republic of China, a supposedly communist state, just bid to purchase Unocal. This trend will continue. Notwithstanding strategic concerns, foreigners now own so large a percentage of U.S. government debt that American control of its own destiny is in jeopardy. The United States remains preeminent in some areas, particularly computer software, chip design, and of course military hardware. But the manufacturing center of the world is now Asia, particularly China.

Meanwhile, the nations of Europe have accomplished what amounts to a peaceful revolution of world importance. After ceaseless fighting each other since time immemorial, in 1945 the heartland of Europe lay in ruins. It seemed as if the Europeans had finally done it to themselves once and for all. The rebuilding of Europe into a semi-coherent political body and functioning economic body has been so successful that todays European Union, consisting of 25 nations with as many or more different languages, is today a slightly larger economy than the United States, in spite the fact that nearly all European countries are socialist. Notwithstanding the recent no vote of the French and Dutch on the next stop forward toward political unity, no one in Europe is suggesting taking a step backwards, and the forward progress has been very remarkable indeed. It is today as inconceivable that France will go to war against Germany as that Idaho will go against war against Nebraska.

The United States maintains 725 overseas military bases. Yet it is encountering increasing difficulty in maintaining its far-flung commitments. As historian Niall Ferguson wrote recently [Colossus, 2004, the United States suffers from three deficits, a manpower deficit, an economic deficit and an attention deficit. The military is having difficulty maintaining even its commitment in Iraq, with numerous units required to serve four or more recurring tours of duty. Politicians are starting to call for a return to the draft.

Americans have always tended to be inward looking with isolationism as a respected attitude, understandable considering the massive size of the continental U.S. This is neatly illustrated by comparing two different songs, the American anthem with its refrain From sea to shining sea, with the English song Rule Britannia, Britannia rules the waves. The different perspectives are unmistakable. Yet the United States shouldered its worldwide commitments, starting with its extraordinary success in World War II, followed by its long commitment to confronting the Soviet empire, leading finally to todays hegemonic status. It is of great interest to world civilization that the United States uses its term in office to the best possible effect.

Today the world has shrunk while the population has soared. It took nearly complete destruction for the Europeans finally to conclude that the day of the nation-state is effectively over, and that the only way forward is closer and closer cooperation. That also is the only way forward for the entire world, because serious fighting in todays world is increasingly like fighting in ones own backyard, and with todays weaponry this is risky indeed.

That is why it is disturbing to notice the current U.S. trend back into a kind of isolationism in terms of international cooperation. American withdrawal from the Kyoto Treaty evidences an ostrich-like attitude towards the worlds accelerating environmental problems. The catch phrase The economy comes before the environment, poses an entirely false choice not only the economy but our entire lives are embedded in and dependent upon preservation of the environment. Disdain towards other nations, withholding of United Nations dues, refusal to recognize the International Criminal Court, outright rejection of the International Land Mine Treaty, and a host of similar isolationists decisions bodes ill for a country whose very economic system is heavily dependant for viability upon foreign investments.

All the problems that we face both as Americans and citizens of the world are manmade. The United States is the hegemonic power of the world for the foreseeable future. It remains possessed of massive resources, its people have immense energy and resourcefulness, and it is still in a position to exert tremendous influence on the outcome of world affairs. But does it have the will to do so? An isolationist mind-set is no longer an option because everything the U.S. does or fails to do has repercussions worldwide. All of us have to start thinking both internationally and holistically. International lawyers may have a vital role in the next twenty-five years.

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If you are ever arrested for drunk driving (also called DUI for driving under the influence or DWI for driving while intoxicated), your experience will begin with an officer stopping you because of some questionable driving pattern, or possibly because you encountered a DUI sobriety checkpoint or you were involved in an accident. The officer will approach your car and ask some questions. You will then be asked to perform field sobriety tests. He may also ask you to breath into a handheld device, technically called a PBT or preliminary breath test. You will then be arrested. On the way to the police station, you will be asked to submit to a breath or blood test — and told that if you don’t, your driver’s license will be suspended.

What should you do and say during all of this to minimize the risk of a criminal conviction and a license suspension?

1. Politely decline to answer any questions without an attorney present. It is a cardinal rule in legal circles that only incriminating statements are included in police reports and later testified to in court; statements pointing to innocence are invariably ignored, forgotten or misinterpreted. Bluntly put, whatever you say will almost never help you and can only hurt you.

2. Decline to take any so-called field sobriety tests. These are theoretically intended to determine impairment, but in fact are designed for failure. In most cases, the officer has already made the decision to arrest and is simply going through the motions and gathering further evidence to bolster his case (he is the one who decides whether you pass or fail). In almost all states, you are not required to submit to this testing. It’s unlikely that taking it will change the officer’s decision to arrest.

3. Decline to take a PBT (preliminary breath test). These handheld units are carried by officers in the field to help decide whether to arrest or not and are notoriously inaccurate. In most states, drivers are not required to submit to these tests (in some they are required if you are under 21). Although most states admit the results of these tests into evidence only to show the presence of alcohol, some permit them to prove the actual blood-alcohol level.

4. Do you choose blood, breath — or refuse to take any chemical test? This is a case-by-case decision, and involves a number of considerations. First, although blood tests are subject to many possible errors, they are generally more accurate than so-called breathalyzers; if you feel your blood-alcohol level is below .08%, then you might want to choose the blood test. Secondly, whether to submit to testing at all requires some knowledge of your state’s laws — specifically, the consequences of refusing. If the increased criminal penalty and license suspension do not outweigh the possible benefit of depriving the prosecution of blood-alcohol evidence, then you may wish to refuse. Bear in mind that the prosecution will charge you with two offenses, DUI and driving with over .08% blood-alcohol; without a blood or breath test, he cannot prove the .08% charge, and there will be no chemical evidence to corroborate the officer’s testimony. You should also realize that in many states chemical evidence of a very high blood-alcohol level, say over .15%, can trigger more severe penalties.

5. In almost all states, your driver’s license will be immediately suspended if either (1) the chemical tests results are .08% or higher, or (2) you refuse to submit to testing. You have a right to a hearing to contest this administrative suspension, and there are many possible defenses, many of them technical in nature. This hearing is usually separate from the criminal proceedings, and involve different procedures and issues than in court; it is not uncommon to lose the criminal case but win the suspension hearing. However, as most motor vehicle departments do not really want the time and expense of providing these hearings, they tend to provide notice of the right buried in fine print given to arrestees. The critical information is the requirement that an actual demand for the hearing must be made by the arrestee — usually within ten calendar days. If you do not contact the DMV within ten days, you lose all rights to a hearing — no matter how good a defense you may have. Tip 5: Get an attorney right away, or make the call yourself — and make sure you can later prove you made the call within the ten day window!

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