Under feudalism a member of the nobility (lord) allowed a tenant (vassal) the use of land (fief) in exchange for military and other service. This lord had a similar arrangement as his vassal to him with either a higher ranking member of the nobility or, if he was of sufficiently high rank, directly with the king. All land was owned by the state in the person of the king and its use controlled by his nobility, the vassals allowed to use it only as the lord deemed proper.
Among the noble’s jurisdictional rights was judicial power in cases arising in their domains. The term “˜court’ in those times referred to the noble’s residence, his entourage (councilors and political functionaries) and to a formal assembly held by the noble. The formal assemblies included the administration of justice by the noble.
“Going to court” in those days meant appearing before your lord and his entourage at his castle to plead your grievance or to defend yourself against a grievance. The only appeal from the lord’s decision was the king. The king seldom intervened in disputes between higher and lower ranking lords, and never in cases involving vassals. If you were a vassal the only rights you had were those given to you by your lord at his whim and will. In the case of lords competing for justice in the court of a ranking lord those whims and wills were usually based on political alliances, family connections and bribery.
The Magna Carta may have required the King to establish and adhere to certain rights and legal procedures with respect not only to the nobility, but to all his subjects, and to be bound by the law himself, but to the nobility of the middle ages, it was just a piece of paper.
The justification for all this was simple: We’re (the nobility) better and smarter than them (the peasantry) and are therefore better suited to determine what is right for them than they themselves. The prevailing belief among the nobility was that the king ascended the throne by divine right and everyone else was at their particular station in life because God wanted it that way. Therefore, whatever “˜justice’ a lord meted out was right because it was (indirectly) God’s justice.
The history of what we today think of as free, open democratic society is the history of the slow transfer of state power from a privileged class to the common citizenry. The investing in the common citizen the power to elect his representatives to make laws as he sees fit, private property rights and even the power to change laws through the direct democracy of the initiative process — this trust in the citizen to best choose what is right for him – is the cornerstone of what we think of as the American way of life.
It took 800 years from the Magna Carta to “˜The Oregon System’ because tyrants at all levels of government do not willingly surrender power and will do everything to keep what they have and acquire more.
It is taking considerably less time to reverse the process.
Beginning with the Warren court and continuing today at an accelerating rate the judiciary is substituting their personal values for the law. The Warren court may accurately be described as the first activist court in the modern use of the term. Precedent and established law did not matter much to Warren unless they sided with his personal opinions. Legal scholar Mark Tushnet has described Warren’s process as “not legal in the conventional technical sense.” Others have been far less polite.
The incidence of voters decisions being overturned by the judiciary for being “˜unconstitutional’, once unheard of, is now commonplace. From the nullification of California’s proposition 187 and Oregon’s Measure 7 to the current attempts to overturn California’s proposition 8, the wheels of justice are working to grind the voters will to grist.
Oregon Democrats, backed by their union masters, and aided by a few half witted Republicans, have been steadily working to undermine Oregon’s initiative process. From the truly idiotic Oregon Supreme Court decision in Armatta v. Kitzhaber — which would have invalidated ALL law passed by initiative since 1906 had not the same court quickly responded in a separate opinion that their decision only applied to Measure 40 and all future initiatives — to the travesty that was the creation and marketing of Measure 49 to the current HB 2005. If you think the logical structure of that last sentence was tortured, you should read Armatta and the follow up.
Those in power are working very hard to take away the power of your vote because, well, they’re smarter and better than you are and therefore better at determining what is good for you than you are. Besides, it’s their non-denominational omnipotent being ordained duty. They’re on a mission. They’re special.
This is what they really think, in spite of all evidence to the contrary.
Welcome to the new Feudalism. Time to get your pitchforks.