judge not

I was sorting through some of my older posts this week, and noticed, when I started this blog, I was filled with questions such as: "What is the correct procedure for crossing the border?" -- "What auto insurance do I need if I retain my Oregon plates?" -- "What documents do I need to take to the consulate to obtain an FM3?"


I am a slow learner. But I think I have the drill down. There are regulations in Mexico, but they are only the starting point. Think of everything that can go wrong. Get more documents than you need. Get more copies. The chances are you will not have something that a specific civil servant in that office on that given day requires. Just be ready to start all over again.


And remember that each encounter with Mexican bureaucracy is an individual performance art.


This has been a tough rule for me to learn. I am not really anal (although some would say that is a nice word for what I am); I am simply a lawyer. My very existence revolves around the rule of law -- it is what separates citizens in the Anglo-Saxon world from being -- oh, say -- French.


I could deal a lot better with that distinction if I did not see it eroding. I was reading an essay by Matthew J. Franck on the ebb and flow of power between the American Congress and the Presidency. Half way through the essay, I started muttering to myself that he was asking the wrong question.


The question is not whether the President or Congress should have more power. My libertarian voice asks: why is either branch grabbing power? The purpose of the federal government is to provide a stable environment for the market and to protect us from invasion. The people can handle the rest, thank you very much.


But that was not Franck's ultimate point. He contends the true imperial branch of the American federal government is the Judiciary: "It has been a tale of judicial aggrandizement at the expense of both the other branches, with significant costs for the rule of law and republicanism."


I pondered that thesis, and concluded that he is correct -- and not merely at the federal level.


My legal expertise is in workers' compensation law. If any area of the law is a creature of the legislature, it is workers' compensation. It is entirely statutory. The executive branch creates administrative regulations, but only within the narrow bounds of the statute.


You would think that the courts would have a very limited range of action in interpreting those statutes and rules.


But that is not the case. The appellate judges often simply come to a conclusion and then create a theory to support what they would like the answer to be.


If you are on the winning side, you claim justice prevailed. If you lose, you see the system for what it is: politicians without accountability. And judges too often act where legislators are afraid. California is a perfect example.


The Mexican drug war brought those thoughts into a different focus this week. A number of Mexican message boards and blogs have picked up on the theme that the violence will not stop until the United States and Canada revise their drug laws by decriminalizing the illegal drug trade.


Whether that course of action is wise or not, it simply is not going to happen. The American and Canadian public are not ready for such a change, and there is no political profit for politicians in either country to take the leadership point on that fire fight.


The only body in each nation that might take such a step is the court system. And that would simply result in the public turning on a Judiciary already suffering from a legitimacy crisis.


We have got ourselves into a pretty mess. But unless we find our way out, Mexico, the United States, and --to a lesser degree -- Canada are going to suffer a terrible price.