Dear Editor,
I used to attend a meeting of people interested in politics pretty much on a weekly basis. Some of our elected officials would occasionally attend also. Around election time a number of candidates for various offices would attend and invite questions from the audience. I was especially interested in the responses from those who were running for district court judge positions. I would always ask them if they felt that those accused of a crime should enjoy the “presumption of innocence”. All of them would answer yes to my question. I would ask a follow up question. The follow up question was simply where is this “presumption of innocence” stated in the constitution of the United States. Several times the answers were it is there somewhere; which it is not! Some judge candidates were able to figure it out. Recently I heard the Secretary of State of Montana say that the U.S. Constitution guarantees citizens the right to vote which is not true.
I mention the above because I have read and heard some people say that the only thing covered regarding the constitution in law schools is just case law involving constitutional issues. This is quite correct. To really understand what has happened to our constitution we must become very familiar with Thomas Jefferson’s criticisms of the the Marbury v. Madison case, where the Supreme Court under John Marshall declared that the court had the power to declare a law passed by congress and signed by the president null and void (i.e. unconstitutional); not found in the constitution itself! Along with those criticisms Jefferson predicted that judges would become little dictators and the the judiciary would become much more powerful than our founders thought it should be. You will not hear or read about these criticisms by Jefferson in law school unless you do your own legal research. I found that if I asked the right questions and listened carefully that most law professors actually despise Thomas Jefferson!
The “presumption of innocence” mentioned above is considered to be part of the due process of law found in the fifth amendment. Also, the due process of law does not mean the rule of law. The law referred to in that amendment is the law as it was when the amendment was written. The rule of law which has been heartily endorsed by Adolf Hitler, Hilary Clinton and even many republicans. We must remember Donald Trump always referred to the rule of constitutional law. I believe that the rule of law cannot be found in the U.S. Constitution because our founders were not convinced that future legislatures would always pass fair and just laws.
Dr. W. David Herbert
Billings, MT
