"The most significant threat to our national security is our debt," Admiral Michael Mullen, Chairman, Joint Chiefs of Staff, August 27, 2010


Tuesday, January 6, 2015

Of, by and for the people - Loser Pays and Term Limits

A fairly straight forward concept - government is responsible to the people, not the other way around, now lay in ruins on full display for all to see.  How did it happen?  Why?  Can it be reversed or at least mitigated so that the concept still has some of its original meaning – limited government, responsible citizenry and basic fundamentals of respect, law and privacy – the openness of a society that encourages each citizen to pursue their own life, liberty and happiness pursuit.

First, did we get here because there is a flaw in the concept?  Or, stated otherwise, is the concept that the people control the government and not the other way, which historically has always been the template for the relationship between the people and government, so flawed as to be unsustainable?
We are not going to try to answer that question and here is why – unless and until America is ready to impose strict and substantial specific restrictions on its government personnel we will never know.  The basic cause of the destruction of the government being accountable to the people is that government personnel – be they elected representatives (congress and a president) or hired (bureaucrats and judges) have always pursued more power and once they get it they have the control over the citizenry – by force of might or law or the public treasury.
So, is there another way that we the people can get some of the “by, for and of the people” at least shifted somewhat our way?  Yes, there is.  And it only requires two fairly common (meaning already universally accepted) changes:
1.     All litigation is conducted under the requirement of “loser pays.”  Loser pays means that any court based legal action is subject to this rule – if the plaintiff who brings the action – individual, community, corporation or government loses the legal action they are accountable for all the costs – both their own and the defendant who chose to defend against the action.  Similarly, if the defendant who chooses to fight the action loses, they pay all the costs.  This is the universal law in all the free, developed world with one notable exception – the US of A.  TheFundamentals expands the concept to also apply to government because we now live in a bureaucratic state wherein government is the main perpetrator of or principal accessory to unnecessary, unwarranted, and in many cases outright fraudulent legal actions against the people.  How can we be sure that “loser pays” is a needed corrective step for America?  Well, here are a few tells:

a.    One, it is already the law of the land across the free world – the developed world – the world in which we claim some degree of leadership and origination.

b.    It will be vigorously opposed by lawyers – with trial attorneys leading the squealing.  De facto proof of its appropriateness and need.

c.    It will also be vigorously opposed by all government bureaucrats, government employee (bureaucrats) unions and democrats.  Double/Triple de facto proof of its appropriateness and need.

d.    Can we be sure it will work?  Of course not, but so far it is working everywhere it exists. 

2.    What is the other need?  This one is also simple and it too is in place in all developed countries and, surprise, it has been the law of the land in many of our own states and lesser government entities.  What is it?  Term limits.  Vigorous and, most important, short time periods for any person seeking compensation and power in government and bureaucracies.  History has proven over and over again that such power, once attained, grows and is used to control the people by a combination of force of might, law and the treasury.  (Example:  Illinois (and Chicago) have no term limits - we rest our case!)

Summary – The fundamental:  any community or society which does not apply explicit and absolute accountability on its legal system – criminal and civil is doomed.  The system is just too vulnerable to corruption.  The same goes for those communities that have not learned the lesson of the societal ills that always accompany permanent politicians and bureaucrats – be they kings, presidents or prime ministers; lords, congressmen or agency heads (or mayors).

1 comment:

Patrick Flynn said...

The concept of "loser pays" is a lofty, noble goal. However, be advised that in the 2015 Congress, 40% of its' members are of the legal profession. That's right: 40% Thus, the likelihood of "loser pays" becoming the law of the land is so remote as to be Martian rocks on Earth.

The 2nd concept, Term Limits, seems so basically sensible that we cannot help but wonder why the Founders didn't include it in the original framework. Of course, when we read history we come to realize that they never imagined career politicians, family dynasty's(Bush, Clinton, Roosevelt,, Kennedy, et al) would ensue. Their thought was that citizens would interrupt their chosen pursuit of happiness, devote a small part of their productive years in government service and gracefully retire back to their chosen career. Lack of foresight? Perhaps.
But the biggest fear of term limits would be the entrenchment of the bureaucracy, already bloated beyond the ability to sustain itself, corrupt and wasteful. Once bureaucrats figure out quickly that there will be a new set of inexperienced eyes every so often to watch them, they will rapidly take advantage of the naivete and plunder the treasury without fear of reprisal.

Try this idea on for size; Mandatory lengthy prison sentences without parole for any government worker at state level or higher and IMMEDIATE forfeiture of all pension rights involving betrayal of the public trust. Double the prison time for elected officials convicted.