No.

____________
=============================================

--------------------------
-------------------------------------------------KENNETH L. SMITH,

Petitioner,
v.
HON. ANTONIN G. SCALIA, et al.,

Respondents,
--------------------------
-------------------------------------------------On Petition For Writ Of Certiorari
To The United States Court Of
Appeals For The District of Columbia
--------------------------
------------------------------------------------------------------------Kenneth L. Smith,

in propria persona
[contact me at
19ranger57@earthlink.net]
(lower court decisions not attached)

PDF processed with CutePDF evaluation edition www.CutePDF.com

QUESTIONS PRESENTED
1. Does the grant of summary judgment in a case
where a plaintiff demands one and the judge has
a conflict-of-interest violate his Seventh Amendment right to a jury trial (as it existed in 1791)
and/or Fifth Amendment right to have disputes
heard by a fair and independent tribunal?
2. Does the citizen have constitutional authority to
enforce Article III good behavior tenure (as was
the case in Britain in 1789) and if not, who does,
and why?
3. Is the ancient right to initiate a private criminal
prosecution one of the common-law safeguards
against abuse of sovereign power1 the Framers
sought to secure by enacting the Bill of Rights?
4. As the object and purpose of the International
Covenant on Civil and Political Rights is to guarantee basic human rights by abolishing sovereign
and/or official immunities, and the United States
would be in fundamental breach of it if it did not
waive these immunities, does our ratification of
that treaty constitute an effective waiver of sovereign and/or judicial immunity?

This is James Madisons original terminology, as reported in

the Annals.

OTHER PARTIES TO THE PROCEEDING

The Respondents are initial defendants who participated in the appeal in the District of Columbia
Circuit: Hons. Antonin G. Scalia, Clarence Thomas,
John G. Roberts, Jr., Janice Rogers Brown, Judith
Ann Wilson Rogers, David B. Sentelle, John D.
Bates, Stephen H. Anderson, Bobby R. Baldock,
Mary Beth Briscoe, Wade Brorby, Jerome A. Holmes, Michael R. Murphy, John Carbone Porfilio,
Stephanie Kulp Seymour, Deanelle Reece Tacha,
Christine M. Arguello, Robert E. Blackburn, Philip
A. Brimmer, Marcia A. Krieger, Edward W. Nottingham, Jr., John/Jane Does 1-99, and The United
States of America. On information and belief, Hon.
Robert Hugh McWilliams, Jr., is deceased, and is no
longer a party to this matter.

TABLE OF CONTENTS
QUESTIONS PRESENTED
OTHER PARTIES TO THE PROCEEDING
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . .

TABLE OF AUTHORITIES . . . . . . . . . . . . . .

STATEMENT OF THE CASE . . . . . . . . . . . . .

17

SUMMARY OF PERTINENT FACTS . . . . . . .

21

REASONS FOR GRANTING REVIEW . . . . . .

23

I.

The Only Office Of the Judge Is To

Declare the Law, Not Write It . . . . . . . . . .

II. As the Seventh Amendments Purpose Is

To Protect Citizens Agst. Corrupt Judges,
Summary Judgment Is Unconstitutional .

25

30

A. When a Judge Has a Dog In the Hunt,

S/he Will Never Fail To Pet It . . . . . . . . 30
B. What Did the Framers Preserve In
Enacting the Seventh Amendment? . . . 31
C. This Courts Hands Are Bound . . . . . . . 33
D. Summary Judgment Deprives Citizens
Of the Benefit Of the "Seventh Amendment Bargain" . . . . . . . . . . . . . . . . . . . . 36
1

III. Separation-Of-Powers Considerations

Dictate That Citizens Enforce Article III
Good Behavior Tenure . . . . . . . . . . . . . . .
A. What "Good Behavior" Isnt . . . . . . .
B. What "Good Behavior" Is . . . . . . . . .
C. The Framers Intended To Entrust
Citizens With Enforcement of Good
Behavior Tenure . . . . . . . . . . . . . . .
D. If the Only Means of Removing an
Article III Judge From Office Is Via
Impeachment, Why Does the Good
Behavior Clause Even Exist? . . . . . .

38
38
40

42

44

IV. The Judge-Fabricated Doctrine of Absolute

Sovereign and Judicial Immunity Wasnt In
the Constitution and/or Has Been Abolished
By Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
A. But I Have To Be Able To Rape Your
Daughter With Impunity To Protect
Her From Being Raped. . . . . . . . . . . . .
B. The "Will Of the People" Is Rarely a
Match For the "Wont" Of Federal
Judges . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Application To the Case At Bar . . . . . .

48

49
53

V.

As a Victims Ancient Right To Prosecute

Crimes Would Never Have Been Yielded
By an Informed Populace, It Is Retained
By Virtue Of the Tenth Amendment . . . . .

54

A. There Are No "Non-Fundamental"

Rights . . . . . . . . . . . . . . . . . . . . . . . . . .
55
B. Our "Bill Of Rights" Preserves Common
Law Safeguards Against the Abuse Of
Sovereign Power . . . . . . . . . . . . . . . . .
56
C. The Ancient Right To Private Criminal
Prosecution Is an Essential Safeguard
Against Abuse Of Sovereign Power . .
57
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .

60

OPINIONS/ORDERS BELOW:
Court of Appeals . . . . . . . . . . . . . . . . . . . .
District Court . . . . . . . . . . . . . . . . . . . . . .

63
69

TABLE OF CASES AND AUTHORITIES

CASE

PAGE

Baltimore & Carolina Line, Inc. v. Redman,

295 U.S. 654 (1935) . . . . . . . . . . . . . . . . . . .
Blyew v. United States, 80 U.S. 581 (1872) . .
Bounds v. Smith, 430 U.S. 817 (1977) . . . . . . .
Bradley v. Fisher, 80 U.S. 335 (1872) . . . . . . .

31
59
53
47

Cheney v. United States Ct. of App. for the

Dist. of Columbia, 541 U.S. 913 (2004) . . . .
22
Chisholm v. Georgia, 2 U.S. 419 (1793) . . . . . . 49
Cohens v. Virginia, 19 U.S. 264 (1821) . . . . 23, 45
Connecticut National Bank v. Germain,
503 U.S. 249 (1992) . . . . . . . . . . . . . . . . . . 34, 38
Diggs v. Richardson,
555 F.2d 841 (D.C. Cir. 1976) . . . . . . . . . .
51

Evans v. Bd. of County Com'rs,

482 P.2d 968 (Colo. 1971) . . . . . . . . . . . . . .
Ex parte Roe, 234 U.S. 70 (1914) . . . . . . . . . . . .

54
23

Fidelity & Deposit Co. v. United States,

187 U.S. 315 (1902) . . . . . . . . . . . . . . . . . . .

36

Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980) . . . . . . . . . . . . .

54

Gasoline Products Co. v. Champlin Refining Co.,

283 U.S. 494 (1931) . . . . . . . . . . . . . . . . . . .

36

Georgia v. Brailsford, 3 U.S. 1 (1803) . . . . . . 31, 37

Gouriet v. Union of Post Ofc. Workers,
[1978] A.C. 435 (H.L.) (Canada) . . . . . . . . .
Hans v. Louisiana, 134 U.S. 1 (1890) . . . . . . . .

57
47

CASE

PAGE

Harcourt v. Fox [1692] 1 Show. 426 (K.B.) . . .

Hastings v. Judicial Conference of U.S.,
770 F.2d 1093 (D.C. Cir. 1985) . . . . . . . . . . .

41
45

Henry v. Barkley,
[1596] 79 Eng. Rep. 1223 (K.B.) . . . . . . . . . .

41

Heydon's Case,
[1584] 76 Eng.Rep. 637 (Exch.) . . . . . . . . . . . 34
In re Haines, 177 P.3d 1239 (Colo. 2008) . . . . . . 18
Jacobs v. United States, 290 U.S. 13 (1933) . 17, 54
Jarrolt v. Moberly, 103 U.S. 580 (1880) . . . . . . . 42

King v. Burwell,
No. 14-114, 576 U.S. ____ (2015) . . . . . . . . 28, 29

Lake County v. Rollins, 130 U.S. 662 (1889) . .

34
Leeper v. Texas, 139 U.S. 462 (1891) . . . . . . . .
24
Marbury v. Madison, 5 U.S. 137 (1803) . . . . . 23, 40
Michigan v. Bryant,
562 U.S. ___, 131 S.Ct. 1143 (2011) . . . . . .

60

Mondou v. New York, N.H. & H.R. Co.,

223 U.S. 1 (1912) . . . . . . . . . . . . . . . . . . . . .
New York Trust Co. v. Eisner,
256 U.S. 345 (1921) . . . . . . . . . . . . . . . . . . . .

23
58

Nield v. Pocatello Health Services, Inc.,

No. 38823-2011 (Ida. 2014) . . . . . . . . . . . . . .
N. Carolina Bd. of Dental Examiners v. FTC,
No. 13-534, 574 U.S. ____ (2015). . . . . . . . . .

N. Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50 (1982) . . . . . . . . . . . . .
Obergefell v. Hodges,

44
18
46

No. 14-556, 576 U.S. __ (2015) . . . . . . . . . . . var.

5

CASE

PAGE

Pierson v. Ray, 386 U.S. 547 (1967) . . . . . . . . . .

Planned Parenthood of S.E. Pa. v. Casey,

47

505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . 47, 56

Poindexter v. Greenhow,
114 U.S. 270 (1884) . . . . . . . . . . . . . . . . . . .
24
Reid v. Covert, 354 U.S. 1 (1957) . . . . . . . . . . 50, 57

R. v. Bailiffs of Ipswich
[1706] 91 Eng. Rep. 378 (K.B.) . . . . . . . . . .
41
Ricci v. DeStefano, 557 U.S. 557 (2009) . . . . .
23
Shelby County v. Holder,
570 U.S. ___, 133 S.Ct. 2612 (2013) . . . . . . . 28
Silveira v. Lockyer,
328 F.3d 567 (9th Cir. 2003) . . . . . . . . . . . 32, 48
Smith v. Bender, No. 07-cv-1924-MSKKMT (D. Colo. filed 2007) . . . . . . . . . . . . . . .
53
Smith v. Scalia, No. 13-cv-0298-KBJ
(D.D.C. May 26, 2014) . . . . . . . . . . . . . . . . 17, 46
Smith v. Mullarkey,
67 F.Appx. 535 (10th Cir. 2003) . . . . . . . . .
21
Smith v. Mullarkey,
121 P.3d 890 (Colo. 2005) (per curiam) . . . .
21

Smith v. Thomas,
No. 09-cv-1026-JDB (D.D.C. Jan. 21, 2010),
affd, No. 10-5041 (D.C. Cir. Jul. 1, 2010) . 21, 22
Smith v. Thomas, No. 10-395 (U.S. entered
Mar. 7, 2011) (mass recusal) . . . . . . . . . . . . . 22
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) . . . . . . . . . . . . . . . . . . . . . 52
Tumey v. Ohio, 273 U.S. 510 (1927) . . . . . . . . . . 21
6

CASE

PAGE

United States v. Alvarez-Machain,

504 U.S. 655 (1992) . . . . . . . . . . . . . . . . . . . .

51

United States v. American Bell Tel. Co.,

28 U.S. 315 (1888) . . . . . . . . . . . . . . . . . . . . . 43
United States v. Callender,
25 F.Cas. 239 (D.Va. 1800) . . . . . . . . . . . . . .
47
United States v. Wilson, 32 U.S. 150 (1833) . .
40
United States v. Wiltberger, 18 U.S. 76 (1820). 25
United States v. Windsor,
570 U.S. ___, 133 S.Ct. 2675 (2013) . . . . . . .
29
Whitney v. Robertson, 124 U.S. 190 (1888). . 51, 52

Young v. United States ex rel. Vuitton

et Fils S.A., 481 U.S. 787 (1987) . . . . . . . . .

59

CONSTITUTIONS
CONSTITUTIO NS AND STATUTES
PAGE
2&3 Edw. 6, c. 8, 13 (ca. 1540) . . . . . . . . . . . . . 41
18 U.S.C. 241 . . . . . . . . . . . . . . . . . . . . . . . . . . 53
28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . 22
28 U.S.C. 1361 . . . . . . . . . . . . . . . . . . . . . . . . . 22
28 U.S.C. 2072 . . . . . . . . . . . . . . . . . . . . . . . . . 49
Act of Settlement [1701],
12 & 13 Will. 3, c. 2, 3 . . . . . . . . . . . . . . 30, 39
Colo. Rev. Stat. 13-4-101. . . . . . . . . . . . . . . . . . 21
7

PAGE
International Covenant on Civil and Political
Rights, 999 U.N.T.S. 171 (entered into
Force Mar. 23, 1976) (ratified by the
var.
United States Sept. 8, 1992)A . . . . . . . . . .
Magna Carta, c. 61 (1215) . . . . . . . . . . . . . . . . . 48
N.H. Const. art. 10 . . . . . . . . . . . . . . . . . . . . . . .
56
N.H. Const. art. 72(73) . . . . . . . . . . . . . . . . . . . . 39
N.Y. Const. of 1777 art. XIX (1822) . . . . . . . . . . 58
Northwest Ordinance of 1787, 1 Stat. 51 . . . . . . 38
Pa. Const. of 1776, 20 (1820) . . . . . . . . . . . . . . 58
Pa. Const. of 1790 art. V, 2 (1838) . . . . . . . . . . 39
U.S. Const. amend. VII . . . . . . . . . . . . . . . . . . . . 31
U.S. Const. art. II, 1 . . . . . . . . . . . . . . . . . . . . . 58
U.S. Const. art. II, 3 . . . . . . . . . . . . . . . . . . . . . 58
U.S. Const. art. III, 1 . . . . . . . . . . . . . . . . . . . . 58
U.S. Const. art. VI, cl. 2 . . . . . . . . . . . . . . . . . . . 50

OTHER AUTHORITIES
PAGE
138 Cong.Rec. S4,783 (Apr. 2, 1992) . . . . . . . . . 52
1 Annals of Congress (1789) . . . . . . . . . . . . . . . 55-7
Bacon, Francis, Essays LVI
(Of Judicature) (1620) . . . . . . . . . . . . . . . . . . . 26

Ratified treaties are the supreme Law of the Land.

8

PAGE
Berger, Raoul, Impeachment: The Constitutional Problems, 2d ed. (1999) . . . . . . . . . . .
Blackstone, William, Commentaries on the
Laws of England (1765) . . . . . . . . . . . . . . . .
Breyer, Stephen, et al., Implementation of the

42

var.

Judicial Conduct and Disability Act of 1980:

A Report to the Chief Justice (Sept. 2006) . . 21
Campbell, John, The Life of Lord Bacon (1853) 30
Canada Dept. of Justice, The Federal Prosecution Service Deskbook (undated) . . . . . . . 57
Coke Edward, Institutes of the Lawes of
England (1642-44) . . . . . . . . . . . . . . . . . . . . . . 26, 42
Confirmation Hearing on the Nomination of
John G. Roberts, Jr. to be Chief Justice of
the United States: Before the S. Comm. on
the Judiciary, 109th Cong. (2005) . . . . . . . 33, 34
Constitutional Relevance of Foreign Court
Decisions (C-SPAN television broadcast
Jan. 13, 2005) . . . . . . . . . . . . . . . . . . . . . . . .
54
Cruz, Ted, Constitutional Remedies to a
Lawless Supreme Court, National
Review Online (Jun. 26, 2015) . . . . . . . . . .
27
Dickinson, John, The Letters of Fabius, in

1788, on the Federal Constitution; and

in 1797 on the Present Situation of
Public Affairs (1797) . . . . . . . . . . . . . . . . .

31

PAGE
Elliot, James, Debates on the Federal
Constitution (1836) . . . . . . . . . . . . . . . . . .
Farrand, Max. The Records of the Federal
Convention of 1787 (1909) . . . . . . . . . . . .
Geyh, Charles, When Courts and Congress

Collide: The Struggle for Control of

Americas Courts (U. Mich. Pr. 2008) . . . . .
Hawles, John, The Englishman's Right: A
Dialogue Between a Barrister At Law
and a Juryman (1680) (1844) . . . . . . . . . . .
Holmes, Oliver W., The Common Law (1881)
Jefferson, Thomas, Letter (to LAbbe Arnoux),
Jul. 19, 1789 . . . . . . . . . . . . . . . . . . . . . . .
Justice Antonin Scalia: Courts Will Determine
Legality of NSA Surveillance, The Guardian (AP), Sept. 25, 2013 . . . . . . . . . . . . . .
Lincoln, Abraham, Speech (on the KansasNebraska Act, Springfield, IL), Oct. 16, 1854
Llewellyn, Karl L., The Common Law
Tradition: Deciding Appeals (1960) . . . . . . .
Madison, James, The Writings of James
Madison (1783-1787) . . . . . . . . . . . . . . . . . .
Pearson, Ellen H., Remaking Custom: Law

and Identity in the Early American

Republic (U. Va. Press 2011) . . . . . . . . . . .

10

40
31

39

33
58
35

48
34
45
25

30

PAGE
Pfander, James E., Sovereign Immunity

and the Right to Petition: Toward a

First Amendment Right to Pursue
Judicial Claims Against the Government, 91 Nw. U.L. Rev. 899 (1997) . . . . .
Posner, Richard A., How Judges Think
(Harvard U. Pr. 2008) . . . . . . . . . . . . . . .
Prakash, Saikrishna & Smith, Steven D.
How to Remove a Federal Judge,
116 Yale L.J. 72 (2006) . . . . . . . . . . . . . .

49
45

41

Removing Federal Judges Without

Impeachment, 116 Yale L.J. Pocket
Part (2006) . . . . . . . . . . . . . . . . . . . . . . . .
Scalia, Antonin

38

Historical Anomalies in Administrative

Law, Y.B. Supreme Court Hist. Socy.
(1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Rule of Law as a Law of Rules,
56 U. Chi. L. Rev. 1175 (1989) . . . . . . . . .
S. Exec. Doc. L. (1971) (Letter of Submittal
From the Secy. of State to the President)
Shapiro, Martin. Judges as Liars, 17 Harv.
J.L. & Pub. Poly 155 (1994) . . . . . . . . . . .
Steinberg, Allen, "The Spirit of Litigation:"

Private Prosecution and Criminal Justice in Nineteenth Century Philadelphia, 20 J. Social History 231 (1986) . . . . .
Story, James, Commentaries on the Constitution of the United States (1833). . . . . . . .
11

48
29
51
46

58
27

PAGE

The Daily Show With Jon Stewart (Comedy

Central television broadcast aired Jun.
29, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
The Federalist (I. Kramnick ed. 1987) . . . . . . . var.
Thomas, Suja, Why Summary Judgment Is
Unconstitutional, 93 U.Va. L. Rev. 139 (2007) . 37
Transcript of Oral Argument, Shelby County
v. Holder, 570 U.S. ___ (2013) . . . . . . . . . . .
29
Tzatzev, Aleksi, Meet The Fascinating Spouses
Behind The Nation's Supreme Court Justices,
Business Insider Australia, Oct 24, 2012. . . . . . 47
United States Dept. of State, Core Doc. Forming
Part of the Reports of States Parties, United
Nations Doc. No. HRI/CORE/USA/2005
(Jan. 16, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 52
Universal Declaration of Human Rights,
G.A. Res. 217A(III), U.N. Doc. A/810 (1948) . 51
Vienna Convention on the Law of Treaties,
1155 U.N.T.S. 331 (entered into force
Jan. 27, 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 50
Wilson, James, 2 The Works of James Wilson
(J. D. Andrews ed., 1896) . . . . . . . . . . . . . . . . 23

12

OPINIONS BELOW
A copy of the order granting summary dismissal
issued by the Court of Appeals for the District of
Columbia is included in the Appendix to this Petition at p. 63. Copies of orders of the United States
District Court for the District of Columbia start at
p. 69.
STATEMENT OF JURISDICTION
Jurisdiction exists pursuant to 28 U.S.C.
1254(1). Petitioners motion for rehearing en banc
was denied on May 8, 2015; the original Petition as
postmarked on August 4, 2015 was therefore timely
filed. However, it was returned by the Court in a
letter dated August 11, 2015 for correction; as such,
this corrected Petition is regarded as timely-filed if
mailed on or before October 10, 2015.
CONSTITUTIONAL PROVISIONS INVOLVED
Article III, section 1 of the Constitution of the
United States states:
The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of
the supreme and inferior Courts, shall hold their
13

Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during
their Continuance in Office.
Article VI, clause 2 of the Constitution of the
United States provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall
be made, under the Authority of the United
States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound
thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
The Fifth Amendment to the Constitution of the
United States provides:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War
or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without
14

due process of law; nor shall private property be

taken for public use, without just compensation.
The Seventh Amendment to the Constitution of
the United States provides:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried
by a jury, shall be otherwise re-examined in any
Court of the United States, than according to the
rules of the common law.
The Ninth Amendment to the Constitution of the
United States provides:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.
The Tenth Amendment to the Constitution of the
United States provides:
The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively,
or to the people.

15

16

STATEMENT OF THE CASE

In addition, the Bill of Rights clearly does not

contain any congressional mandate expressly
waiving sovereign immunity.
Ketanji Brown Jackson1
Quite literally, this is the rule of law you will
sustain if this appeal is ignored: The Bill of Rights

may be voided by Congress (or judges) because the

Framers failed to enact an Eleventh Amendment
declaring that "we really, really, REALLY DO mean
it!" Cf., Jacobs v. United States, 290 U.S. 13, 16
(1933) (Fifth Amendment takings clause implicitly
waives immunity).
In the Framers Constitution, the Bill of Rights
was an absolute limitation on the power of government. Under the SCOTUStitution authored by our
Imperial Judiciary, judges can openly flout the Bill
of Rights, as they have decreed that they cannot be
held accountable for violating it. And by arrogating
this prerogative of the dictator to themselves, they
have defeated the purpose of our even having a Bill
of Rights. Not only have these black-robed bandits
robbed the People of the right to govern themselves,
but literally every right they think they have.

Smith v. Scalia, No. 13-cv-0298-KBJ (D.C. Dist. May 26, 2014)

(slip op., at 17-18).
17

This dispute was precipitated by the Colorado

Board of Law Examiners refusal to even grant me a
hearing on the matter of my admission to the states
Bar, in a process devoid of meaningful due process
protections. The Board, comprised largely of putative competitors, operated without appropriate state
supervision, as the current Chief Justice of the Colorado Supreme Court admits. In re Haines, 177 P.3d
1239, 1251-52 (Colo. 2008) (Coats, J, dissenting)
(exaggerated deference).2
In theory, the Boards action and the negligent
failure of State officials to actively supervise their
conduct gives rise to numerous avenues for redress,
including the Sherman Act. See N. Carolina Bd. of
Dental Examiners v. FTC, No. 13-534, 574 U.S. ____
(2015). But in the real world, as the Breyer Commission admits, judges routinely cover for wayward
colleagues; the will of the people is rarely a match
for the wont of a federal judge.
In this lawsuit, Petitioner sought to invoke three
constitutional remedies designed to hold Article III
judges accountable: removal from office for violation
of their good behavior tenure, liability in tort, and
private criminal prosecution.

Current Chief Justice Rice joined the dissent.

18

Petitioner demanded a proper Seventh Amendment jury trial, wherein the civil jury decides both
the law and the factsas was the case back in 1789.
This was the institution the Framers sought to preserve, serving as a defense against corrupt judges.
Yet, the claims were dismissed via summary judgment by corrupt judges.
Arguments presented herein are summarized as
follows:
1. Article III judges cannot make law (CJ Roberts).
y Ergo, they cannot make constitutional rights,
passages, or treaties disappear (Hamilton).
2. Seventh Amendment preserves the jury trial.
y In 1789, the jury decided all questions of both
facts and law (CJ Jay).
y In summary judgment, a judge decides both
the facts and law, eliminating the civil jury as
a check against judicial corruption.
y Ergo, summary judgment violates the Seventh Amendment.
3. Article III contains the good Behaviour clause.
y Framers said what they meant and meant
what they said (Germain).
y Good behaviour and method of enforcement
both prescribed by common law (Blackstone).
y Ergo, the Framers intended to implement the
common law rule (Madison, Wilson).
19

4. Absolute judicial and sovereign immunity are

judge-made law, abolished by treaty.
y Domestic sovereign immunity was unknown
to the Framers (Scalia).
y States admit that they dont have sovereign
immunity either (Evans).
y Absolute judicial/sovereign immunity was
judge-made common law.
y The ICCPR is a valid treaty abolishing all
common-law immunities..
y Ergo, defense of judicial/sovereign immunity
is unavailable as a matter of law.
5. Absolute immunity renders the Bill of Rights
unenforceable.
y Taking away all remedies takes away the
right (Poindexter).
y Discretionary cert eliminates every other
remedy to victims of judicial caprice.
y Ergo, not even Congress can grant absolute
immunity.
6. The right to private criminal prosecution (PCP)
was retained by the people.
y Bill of Rights preserves ancient common law
safeguards against abuse of authority.
y PCP was/is available at common law for 500
years (Gouriet).
y No reasonable citizen would have ceded this
inestimable (Blyew) right.
y Ergo, even Congress cannot extinguish it.
20

STATEMENT OF PERTINENT FACTS

This suit was precipitated by a spectacle never
before seen in the annals of Anglo-American jurisprudence: justices of a state supreme court, sitting
in judgment of their own cause, in a pendent action3
which substitute judges were authorized by statute
to hear.4 Smith v. Mullarkey, 121 P.3d 890 (Colo.
2005) (per curiam). As this violated my Fourteenth
Amendment right to a fair and impartial tribunal,
Tumey v. Ohio, 273 U.S. 510, 523 (1927), I sought
every conceivable remedy the Framers Constitution
afforded me, to no avail. And when it became clear
that the Tenth Circuit was going to indulge in what
the Breyer Commission recently called "undue guild
favoritism,"5 I filed an official capacity lawsuit in
the D.C. Circuit, challenging the constitutionality of
discretionary certiorari review. Smith v. Thomas,
No. 09-cv-1026-JDB (D.D.C. Jan. 21, 2010).
And then, things really got weird.

The federal lawsuit was dismissed on putative jurisdictional

grounds in an unpublished opinion. Smith v. Mullarkey, 67
F.Appx. 535 (10th Cir. 2003).
4
As judges of the Colorado Court of Appeals may "serve in any
state court with full authority as provided by law, when called
upon to do so by the chief justice of the supreme court," Colo.
Rev. Stat. 13-4-101, the Rule of Necessity is inapplicable.
5
Stephen Breyer, et al., Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice 1
(Sept. 2006).
21

In a series of giggle-worthy rulings for the ages,

the lower courts declared that no mere mortal man
could challenge the Gods on Mount Olympus One
First Street, and that they had no authority to tell
Their Majesties what to do.6 Uh, never mind that a
federal statute, 28 U.S.C. 1361, expressly granted
them that power, and "[t]he accustomed office of a
writ of mandamus, when directed to a judicial officer, is to compel an exercise of existing jurisdiction,
but not to control his decision." Ex parte Roe, 234
U.S. 70, 72 (1914). Never mind that, if no federal
district court has jurisdiction to answer the question, the only alternative is Judge Judy. Here was a
simple federal question the courts had statutory
jurisdiction to decide, 28 U.S.C. 1331, which they
willfully refused to decide.
In the appeal to this Court, the Justices recused
themselves en masse. Order, Smith v. Thomas, No.
10-395 (U.S. entered Mar. 7, 2011) (mass recusal).
But unlike Justice Scalias Cheney recusal,7 no reason was offered. Its easy to see why: There is no
rational way to reconcile the Justices bizarre action
with their public statements and two centuries of
precedent.

Smith v. Thomas, No. 09-cv-1026-JDB (D.D.C. Jan. 21, 2010),

affd, No. 10-5041 (D.C. Cir. Jul. 1, 2010).
7
Cheney v. United States Ct. of App. for the Dist. of Columbia,
541 U.S. 913 (2004) (Scalia, J., memo)
22

As citizens have a right to demand an evenhanded enforcement of the law, Ricci v. DeStefano,
557 U.S. 557, 608 (2009) (Alito, J., concurring), the
government has a corresponding duty to provide it.
Marbury v. Madison, 5 U.S. 137, 163 (1803). The
existence of jurisdiction "creates an implication of
duty to exercise it, and that its exercise may be
onerous does not militate against that implication."
Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1,
58 (1912). As (in theory) willful breach of that duty
gives rise to an array of remedies, I filed another
federal lawsuit, which is now before you. (Another
lawsuit has been filed challenging the constitutionality of discretionary cert.)

REASONS FOR GRANTING REVIEW

The most compelling reason that this Court must
review this appeal is that the Framers Constitution
literally affords no choice. According to the man
who wrote Article III, the first purpose in creating a
supreme court to superintend and govern all the
others was to prevent different courts [from adopting] different and even contradictory rules of decision. 2 The Works of James Wilson 149-50 (J. D.
Andrews ed., 1896). This Court has indisputable
authority to entertain valid writs of certiorari, and
to decline the exercise of jurisdiction which is given
would be treason to the constitution." Cohens v.
Virginia, 19 U.S. 264, 387 (1821).
23

Every citizen has a right to "equal and impartial

justice under the law." Leeper v. Texas, 139 U.S.
462, 468 (1891). As [t]o take away all remedy for
the enforcement of a right is to take away the right
itself, Poindexter v. Greenhow, 114 U.S. 270, 303
(1884), discretionary certiorari review deprives victims of irregular lower court decisions of the protection of the rule of law, and is therefore unconstitutional.
Review would force this Court to explain exactly
where in the Constitution, the emanations from its
penumbrae, or the white spaces between the text
that it finds a distinction between fundamental and
non-fundamental rights. Second, it will compel the
Court to articulate the line between constitutional
interpretation and judicial lawmaking. Third, this
is an engraved invitation for this Court to squarely
address the question of what the Framers generation had in mind by enacting the Seventh Amendment. Finally, there is the issue of judicial abuse of
summary judgment, which has reduced the Seventh
Amendment to a caricature of itself. Given the ubiquity of the practice, the critical importance of the
Seventh Amendment to a system of ordered liberty,
and the lack of historical or constitutional support
for the practice, the issue is ripe for consideration.

24

I.

The Office Of the Judge Is To Declare the

Law, Not Write It

The preservation of a free Government requires

not merely, that the metes and bounds which
separate each department of power may be
invariably maintained; but more especially, that
neither of them be suffered to overleap the great
Barrier which defends the rights of the people.
The Rulers who are guilty of such an encroachment, exceed the commission from which they
authority, and are Tyrants. The
derive their authority
People who submit to it are governed by laws
made neither by themselves, nor by an authority derived from them, and are slaves.
James Madison8
The collective temper-tantrum thrown by Defendants Scalia, Thomas, and Roberts in the Obergefell
decision is an admission, dictating the outcome of
this case. If judges have only a power to say what
the law is, not what it should be,9 and it is wrong
for them to recognize unenumerated rights they do

James Madison, A Memorial and Remonstrance (address to

the General Assembly of the Commonwealth Of Virginia), Jun.
20, 1785), as reprinted in 2 J. Madison, The Writings of James
Madison (1783-1787) at 122-23 (emphasis added).
9
Obergefell v. Hodges, No. 14-556, 576 U.S. __ (2015) (Roberts,
C.J., dissenting) (slip op., at 2).
25

not construe as fundamental,10 then a fortiori, it is

wrong for them to interpret pellucid constitutional
provisions into oblivion without asserting a strong
reason for so doing. United States v. Wiltberger, 18
U.S. 76, 96 (1820).
When the Framers entrusted the judicial Power
to this Court, they actually had something in mind.
From time immemorial, it had been understood that
the office of the judge was jus dicere11the power to
declare the law, as opposed to writing it. Lord Coke
maintained that "[i]t is the function of a judge not to
make, but to declare the law, according to the
golden mete-wand of the law and not by the crooked
cord of discretion." 1 E. Coke, Institutes of the Laws
of England 51 (1642), and Blackstone adds that the
judge is "sworn to determine, not according to his
own judgments, but according to the known laws." 1
Blackstone, Commentaries at * 69. There is no contrary authority.
Blackstone writes that in any government, there
has to be a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii,
or the rights of sovereignty reside."12 In a constitu-

10

Id., Roberts, C.J., dissenting) (slip op., at 11).

Francis Bacon, Essays LVI (Of Judicature) (1620).
12
1 Wm. Blackstone, Commentaries on the Laws of England 49
11

(1765).
26

tional republic, it lies with the people,13 and is held

as tenants-in-common. Any sovereignty government
possesses is the result of delegation, existing only to
the extent it is delegated. This is and necessarily
must be so, for as Alexander Hamilton observes,
[t]here is no position which depends on clearer
principles, than that every act of a delegated
authority, contrary to the tenor of the commission under which it is exercised, is void. To
deny this, would be to affirm that men acting
by virtue of powers, may do not only what their
powers do not authorize, but what they forbid.14
Justice Scalia bitterly complains that my Ruler
is a majority of the nine lawyers on the Supreme
Court, and they have robbed the American people
of the freedom to govern themselves.15 Chief Justice Roberts also asked, [j]ust who do we think we
are?16 It is a damn good question, which at least
one Senator has been asking.17 This Court will not

13

1 J. Story, Commentaries on the Constitution of the United

States 192 (1833) (governmental power limited at the will of
the nation).
The Federalist No. 78, 438 (Alexander Hamilton) (I. Kramnick ed. 1987).
15
Obergefell, (Scalia, J., dissenting) (slip op., at 2).
16
Id., Roberts, C.J., dissenting) (slip op., at 3).
17
Ted Cruz, Constitutional Remedies to a Lawless Supreme
Court, National Review Online (Jun. 26, 2015).
14

27

hold laws unconstitutional simply because we find

them unwise, improvident, or out of harmony with
a particular school of thought18except, of course,
when that rule doesnt precipitate the outcome preferred by a majority of those nine lawyers. E.g.,
Shelby County v. Holder, 570 U.S. ___, 133 S.Ct.
2612 (2013).
The relentless intellectual inconsistency of this
Courts outcome-based jurisprudence (the presumed
definition of jiggery-pokery19) has reduced it to a
punch-line on The Daily Show.20 If Scalia opposes
the outcome, this august body is a select, patrician,
highly unrepresentative panel of nine that has no
business overriding the will of the voters,21 but
when our elected representatives continue to extend
laws he despises (e.g., the Voting Rights Act), he
complains that it is very difficult to get [rid of those
rules] through the normal political processes and
accordingly, that same select, patrician, highly
unrepresentative panel of nine Court has to step in
to rescue Republicans who need to indulge in racial

18

Obergefell, (Roberts, C.J., dissenting) (slip op., at 2) (citation

omitted).
19

King v. Burwell, No. 14-114, 576 U.S. ____ (2015) (Scalia, J.,
dissenting) (slip op., at 8).
20
The Daily Show With Jon Stewart (Comedy Central television broadcast aired Jun. 29, 2015) (Human Dissentipede).
21
Obergefell, (Scalia, J., dissenting) (slip op., at 8).
28

discrimination to retain power.22 Whereas the rule

of law is a law of rules,23 Scalia evidently believes
that while the rights he doesnt like should be determined via plebiscite, federal protection of the right
to vote is simply not the kind of a question you can
leave to Congress.24 I might call it argle-bargle,25
if I had a Scalian-to-English dictionary handy.

But almost despite himself, Scalia has a point.

The Framers Constitution contained an array of
remedies for judicial overreach, including the Good
Behavior Clause, liability in tort, private criminal
prosecution, and mandatory Supreme Court review
upon writ of certiorari. But if this Court has abused
its authority so often and blatantly that if Obamacare is now SCOTUScare,26 our Constitution ought
to be called the SCOTUStitution, as it betrays no
more than passing resemblance to the original.

This appeal seeks to remedy that offense.

22
23

Shelby County v. Holder, Tr. of Oral Argument at 47.

Antonin Scalia, The Rule of Law as a Law of Rules, 56 U.

Chi. L. Rev. 1175, 1178 (1989).

24
Shelby, Transcript at 47.
25
United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, 2709
(2013) (Scalia, J., dissenting).
26
King v. Burwell, supra. (Scalia, J., dissenting) (slip op., at
23).
29

II. As the Seventh Amendments Purpose Is

To Protect Citizens Agst. Corrupt Judges,
Summary Judgment Is Unconstitutional.
A. When a Judge Has a Dog In the Hunt,
S/He Will Never Fail To Pet It.
The English institution of the jury trial speaks to
the basic human instinct of selfishness. People can
be counted upon to act in accordance with their selfinterest, and judges are no exception. Prior to the
Act of Settlement [1701],27 English judges served at
the pleasure of the King.28 This caused an obvious
conflict-of-interest in disputes between the Crown
and subjects, as the judge had a personal interest in
keeping his job, and was loath to enter a judgment
that might curry His Majestys displeasure.
The original English solution to the problem of
judicial independence was the jury trial. While the
judge was presumed to be biased and could always
be bribed,29 a jury of ones peers chosen at random is
presumed to not have a personal interest in the outcome, thereby ensuring a fair process.

27

12 & 13 Will. 3, c. 2, 3.
Ellen H. Pearson, Remaking Custom: Law and Identity in
the Early American Republic 50 (U. Va. Press 2011).
29
Lord Bacon solicited bribes from both sides. John Campbell,
The Life of Lord Bacon 184 (1853).
28

30

B. What Did the Framers Preserve In EnactEnact ing the Seventh Amendment?
Enacted after Article III, the Seventh Amendment is an absolute limitation on the judicial power.
It is not a matter of judicial grace, but an absolute
right to anyone who demands it in an appropriate
case. It provides that the right to trial by jury
shall be preserved, U.S. Const. amend. VIIthe
right which existed under the English common law
when the Amendment was adopted." Baltimore &
Carolina Line, Inc. v. Redman, 295 U.S. 654, 657
(1935).
The signal feature of a jury trial in 1791 was that
the jury decided questions of fact and law. Georgia
v. Brailsford, 3 U.S. 1, 4 (1803). The purpose of this
Heaven-taught institution30 was to to guard agst.
corrupt Judges.31 The Framers knewand empirical evidence has borne this out32that if given the
power to do so, our judges would constitutionalize

30

Fabius, Letter to Editor, Delaware Gazette (1788), reprinted

in, John Dickinson, The Letters of Fabius, in 1788, on the

Federal Constitution; and in 1797 on the Present Situation of

Public Affairs 32 (1797).
31
2 Farrand, The Records of the Federal Convention of 1787
587 (1909) (statement of Elbridge Gerry (MA)); there is no contrary authority.
32
Discussed at Part IV, infra.
31

[their] personal preferences,33 to the detriment of

litigants. The Seventh Amendment took all ultimate34 decision-making powers out of the hands of
judges, thereby preserving for Americans one of the
transcendent privileges of the Englishman: that
he cannot be affected either in his property, his
liberty, or his person, but by the unanimous consent
of twelve of his neighbours and equals.35
This select, patrician, highly unrepresentative
panel of nine on Mount Olympus might think it a
bad idea for mere mortals to decide questions of
law, but the Framers and legal scholars of the day
respectfully disagreed. They saw it as a security
against corruption, as it would be necessary to
corrupt both court and jury to subvert justice. The
Federalist No. 83 at 465-66 (Alexander Hamilton).
Sir John Hawles, Solicitor General to King William
III, ably explains:
Tho judges are more likely to be able than jurymen, yet jurymen are more likely to be more
honest than judges; especially in all cases where
the power of the prerogative, or the rights of the
people, are in dispute. Our rights, therefore, both

33

Silveira v. Lockyer, 328 F.3d 567, 568 (9th Cir. 2003) (Kozinski, J., dissenting from den. of reh. en banc).
34
Judges had both a power and duty to control runaway juries
through appellate review and new trial orders.
35
4 Blackstone, Commentaries *379.
32

as individuals, and as a people, are more likely

to be secure while juries follow the result of their
own opinion; for less danger will arise from the
mistakes of jurymen, than from the corruption of
judges.36
The English jury system had a remarkable array
of checks and balances. If the jury got out of hand,
the judge could order a new trial. If the judge was
biased, the jury could simply ignore him. And if the
decision was wrong on the law, both appellate and
mandatory certiorari review were available. But at
the end of the day, a jury always made the ultimate
call. This is the legal system the Framers generation intended to preserve inviolate by enacting the
Seventh Amendment.

C.

This Courts Hands Are Bound.

[The rule of law] protects the rights and liberties

of all Americans. It is the envy of the world,
because without the rule of law, any rights are
meaningless..
Judge John Roberts37

36

John Hawles, The Englishman's Right: A Dialogue Between

a Barrister At Law and a Juryman 71-2 (1680) (1844).
37

Confirmation Hearing on the Nomination of John G. Roberts,

Jr. to be Chief Justice of the United States: Before the S.
Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of
33

Abraham Lincoln put it simply: "No man is good

enough to govern another man, without the others
consent,"38 and the Constitution and Bill of Rights is
the absolute limit of our consent. Thereunder, you
are entrusted with the judicial Power, understood
as authority to declare the law only, as opposed to
rewriting it to comport with personal preference. As
Judge Roberts declared, Judges and justices are
servants of the law, not the other way around.39
Your freedom to act is also constrained by canons
of construction, which Judge Roberts described as
precedent on precedents.40 The object of constitutional interpretation is to give effect to the intent of
the Framers, Lake County v. Rollins, 130 U.S. 662,
670 (1889), and the Framers are presumed to have
said what they meant and meant what they said.
Connecticut Natl Bank v. Germain, 503 U.S. 249,
253-54 (1992) (collecting cases). It is the office of a
judge to "always to make such construction [of a
law] as shall suppress the mischief, advance the
remedy, and to suppress subtle invention and evasions for continuance of the mischief according to
the true intent of the makers of the act." Heydon's
Case [1584] 76 Eng.Rep. 637 (Exch.).

Judge John Roberts) (hereinafter, Roberts Hearing).

38
Abraham Lincoln, Speech (on the Kansas-Nebraska Act,
Springfield, IL), Oct. 16, 1854.
39
Roberts Hearing at 55 (Roberts).
40
Roberts Hearing at 180 (Roberts).
34

The mischief the jury trial sought to suppress

is explained by the incomparable Thomas Jefferson:
We all know that permanent judges acquire an
esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party,
by a devotion to the executive or legislative; that
it is better to leave a cause to the decision of
cross and pile than to that of a judge biased to
one side It is left therefore, to the juries, if
they think the permanent judges are under any
bias whatever in any cause, to take on themselves to judge the law as well as the fact. They
never exercise this power but when they suspect
partiality in the judges; and by the exercise of
this power they have been the firmest bulwarks
of English liberty.41
In the Heydon calculus, the mischief is corrupt
or biased judges, and the remedy is to provide a
check on judicial corruption and caprice. This is the
benefit of the Seventh Amendment bargain this
Court is bound to honor.

41

Thomas Jefferson, Letter (to LAbbe Arnoux), Jul. 19, 1789 at

2; accord, e.g., The Federalist No. 83 (Hamilton).
35

D. Summary Judgment Deprives Citizens Of

the Benefit Of the Seventh Amendment
Bargain.
As Justice Stone observed, [i]t is the Constitution which we are to interpret; and the Constitution
is concerned, not with form, but with substance.
Gasoline Products Co. v. Champlin Refining Co.,
283 U.S. 494, 498 (1931). The substanceand the
valueof a Seventh Amendment jury trial is that it
affords us the security against corruption Hamilton referred to in the Federalist. This is the benefit
of the bargain: a biased jury could be controlled by
judges, and vice versa.
The piecemeal approach courts have applied in
Seventh Amendment jurisprudence is conceptually
flawed, as it ignores the role of a jury in controlling
the corrupt judge. But even if we could ignore that
crucial detail, conditions have changed so radically
that summary judgment cannot be rescued. Professor Thomas explains:
For years, the Court and scholars have cited the
now century-old Fidelity & Deposit Co. v. United
States [187 U.S. 315 (1902)] for the proposition
that summary judgment is constitutional under
the Seventh Amendment. The procedure held
constitutional in Fidelity, however, was not the
same nor even similar to summary judgment
under Rule 56. Under the procedure in Fidelity,
36

the court accepted the facts alleged by the nonmoving party as true. Under summary judgment, in contrast, the court does not accept the
facts of the nonmoving party as true but instead
determines whether the evidence of the nonmoving party is sufficient.42
In short, the judge pre-tries the case, completely
bypassing the jury. Not only does the judge decide
what the law isusurping the jurys prerogative to
disregard a biased judges instructions, Georgia v.
Brailsford, suprabut the facts and all inferences
drawn therefrom. In effect, a jury trial
trial becomes a
bench trial and the Seventh Amendment, a dead
letter.
This is a threshold question. As the trial court
had no authority to grant summary judgment, the
entire decision is void.

42

Suja Thomas, Why Summary Judgment Is Unconstitutional,

93 U.Va. L. Rev. 139, 144 (2007).
37

III. Separation
Separation--OfOf-Powers Considerations
Dictate That Citizens Enforce Article III
Good Behavior Tenure
Our Constitution provides that Article III judges
"shall hold their Offices during good Behaviour,"
U.S. Const. art. III, 1, and the Framers said what
they meant and meant what they said. Connecticut
Natl. Bank v. Germain, 503 U.S. at 253-54. But to
enforce it, a court must be able to ascertain what it
is, how it is to be enforced, and who has authority to
enforce it.

A.

What Good Behavior Isnt

What we know for certain is that good behavior

was not a clumsy cross-reference to impeachment.
First, aside from the fact that the Framers simply
didnt DO clumsy, the Northwest Ordinance of
1787, 1 Stat. 51, conditioned judicial sinecures upon
"good behaviour," even though the Continental Congress didnt even have the power of impeachment.43
Second, while British judicial sinecures were also
conditioned on good behavior, Parliament could
literally remove judges from office for any reason or

43

Saikrishna Prakash & Steven D. Smith, Removing Federal

Judges Without Impeachment, 116 Yale L.J. Pocket Part 95
(2006).
38

no reason at all.44 Third, state constitutions copied

the British model, granting judicial sinecures subject to good behavior while retaining the power of
address. E.g., N.H. Const. art. 72(73) (1783); Pa.
Const. of 1790 art. V, 2 (1838). There is no historical evidence for the proposition that violations of
good behavior tenure and grounds for impeachment
were regarded as coterminous.
Congressional precedent was established a century ago in the investigation of Judge Emory Speer
of the District of Georgia, charged with "despotism,
tyranny, oppression, and maladministration" in the
course of judicial decision-making. Charles Geyh,

When Courts and Congress Collide: The Struggle

for Control of Americas Courts 160 (U. Mich. Pr.
2008). The congressional committee concluded that
"a series of legal oppressions [constituting] an abuse
of judicial discretion" did not constitute an impeachable offense, id. at 160-61, despite their being selfevident serial violations of his good behavior tenure.
If the two were coterminous, Judge Speer should
have been impeached.
It is equally clear that it was not intended to be
mere surplusage. Observing that many States con-

44

The Act of Settlement [1701], 12 & 13 Will. 3, c. 2, 3, provided that "Judges Commissions be made Quamdiu se bene gesserint; but on the Address of both Houses of Parliament, it
may be lawful to remove them."
39

ditioned their judicial offices on good behavior,

Alexander Hamilton opined in the Federalist that
"[t]he standard of good behavior for the continuance
in office of the judicial magistracy, is certainly one
of the most valuable of the modern improvements in
the practice of government." The Federalist No. 78
at 437 (Hamilton). Given Chief Justice Marshalls
famous admonition that [i]t cannot be presumed
that any clause in the constitution is intended to be
without effect, Marbury, 5 U.S. at 174, there can be
no historical warrant for the lower courts selfserving finding that the Good Behavior Clause was
either inert or redundant.

B. What Good Behavior Is

Indecipherable on its own, good behavior is a
term of legal art taken from English law, with the
same meaning as it had there. See, United States
v. Wilson, 32 U.S. 150, 160 (1833) (re: pardon). As
Madison explained, when "a technical word is used
[in the Constitution], all the incidents belonging to
it necessarily attended it."45 The practice of granting public offices quamdiu se bene gesserint existed

45

3 J. Elliot, Debates on the Federal Constitution 531 (1836)

(remarks of James Madison at Virginias Ratification Convention).
40

in England for at least a quarter-millenium;46 use of

the writ of scire facias to punish abuses of office is
traceable to the reign of Edward VI. 2&3 Edw. 6, c.
8, 13 (ca. 1540). A quarter-millenium of relevant
common law jurisprudence can be summarized in a
sentence: "If you didnt do your job, you lost your
job."
By making a public official subject to removal for
violating it, the condition of good behavior defined
the duties of an office. Coke listed three grounds for
forfeiture of good behavior tenure: abuse of office,
nonuse of office, and willful refusal to exercise an
office. Saikrishna Prakash and Steven D. Smith,
How to Remove a Federal Judge, 116 Yale L.J. 72,
90 (2006) (citing Cokes Institutes). Blackstone
added "the oppression and tyrannical partiality of
judges, justices, and other magistrates, in the
administration and under the colour of their office.
4 Blackstone, Commentaries at 140-41. Even a single transgression was sufficient to warrant removal:
"Every voluntary act done by an officer contrary to
that which belongs to his office is a forfeiture of that
office." Henry v. Barkley [1596] 79 Eng. Rep. 1223,
1224 (K.B.). And while most English judges served
at the pleasure of the King until 1701, Barons of the

46

See e.g., Harcourt v. Fox [1692] 1 Show. 426 (K.B.) (clerk of

the peace); R. v. Bailiffs of Ipswich [1706] 91 Eng. Rep. 378
(K.B.) (corporate recorder forfeited office for failure to attend
meetings).
41

Exchequer (English judges) enjoyed good behavior

tenure; one invoked it as a defense when the King
attempted to remove him. 4 Coke, Institutes at 117.
As common law precedent defines it with appropriate precision, it is no more abstruse than due process or pardon, If these facially vague terms can
be applied by courts, good behavior can, as well.

C. The Framers Intended To Entrust Citizens

With Enforcement of Good Behavior Tenure.
Having established that good behavior is not a
cross-reference to impeachment, and is not so vague
as to be unenforceable, this begs a natural question:
If Congress has no lawful authority to enforce good
behavior tenure, who can? As Harvards legendary
Raoul Berger writes, [w]hen an office held during
good behavior is terminated by the grantees
misbehavior, there must be an incident power to
carry the law into execution if good behavior is not
to be an impotent formula." Raoul Berger, Impeachment: The Constitutional Problems 132, 2d ed.
(Harvard Pr. 1999). Such a power must exist, as "[a]
constitutional provision should not be construed so
as to defeat its evident purpose, but rather so as to
give it effective operation and suppress the mischief
at which it was aimed." Jarrolt v. Moberly, 103 U.S.
580, 586 (1880). And if Congress cant do it due to
separation-of-powers concerns, and neither this
Court nor the President can do it due to self-evident
42

conflicts-of-interest,47 it inexorably follows that the

power to enforce good behavior tenure lies with the
aggrieved citizen, as it had in Britain for a quartermillenium.
At common law, good behavior tenure was originally enforced by the sovereign through the writ of
scire facias. But since this power concerned only
the interests of his subjects, and the King exercised
it purely in parens patriae, he was bound by law to
allow the use of it to any subject interested. Blackstone explains:
WHERE the crown hath unadvisedly granted
any thing by letters patent, which ought not to
be granted, or where the patentee hath done an
act that amounts to a forfeiture of the grant, the
remedy to repeal the patent is by writ of scire
facias in chancery. This may be brought either
on the part of the king, in order to resume the
thing granted; or, if the grant be injurious to a
subject, the king is bound of right to permit him
(upon his petition) to use his royal name for
repealing the patent in a scire facias.48

47

As an example, President Bush would not impeach the Justices who handed him that job for that irregular decision, as it
would cast aspersions on his legitimacy.
48
3 Blackstone, Commentaries at 260-61 (emphasis in original);
see, United States v. American Bell Tel. Co., 28 U.S. 315, 360
(1888) (explaining the process).
43

The advantage of this approach is to maintain

separation of powers: Whereas Congress could only
impeach them, judges remained answerable to the
citizens they served.
This is the only interpretation of the good behavior clause consistent with Madisons grand design of
the Constitution. The private interest of every individual may be a sentinel over the public rights.
The Federalist No. 51, at 320 (Madison). The good
behavior clause empowers those directly affected by
misconduct and who have an incentive to punish it.
If judges want to keep their jobs, the good behavior
clause should motivate them to do their jobs.

D. If the Only Means of Removing an Article III

Judge From Office Is Via Impeachment, Why
Does the Good Behavior Clause
Clause Even Exist?

There is a saying that hard cases make bad law.

That saying is incorrect. It is courts that make
bad law in the process of deciding cases based
solely upon whom they want to win or lose.
Justice Daniel Eismann49

49

Nield v. Pocatello Health Services, Inc., No. 38823-2011 (Ida.

2014) (slip op., at 63) (Eismann, J., dissenting). Concurrences
could fill a Brandeis brief.
44

Every 1-L is taught the difference between precedent and obiter dictum. As Chief Justice Marshall
explains, statements that go beyond the case, "may
be respected, but ought not to control the judgment
in a subsequent suit when the very point is presented for decision. Cohens v. Virginia, 19 U.S. at 399.
But as Llewellyn notes, whenever a judge wants an
outcome badly enough, s/he will lie to get it." Karl
N. Llewellyn, The Common Law Tradition: Deciding
Appeals 135 (1960). Judge Posner adds that judges
"are constantly digging for quotations from and
citations to previous cases to create a sense of
inevitability about positions that they are in fact
adopting on grounds other than deference to precedent." Richard A. Posner, How Judges Think 144
(Harvard U. Pr. 2008). And when a judge takes
indecent liberties with the law, it is generally easy
to spot.
There is literally no binding precedent in any
American court addressing the question of whether
an aggrieved citizen can enforce the Good Behavior
Clause. But that little nicety didnt deter the trial
court from willfully misrepresenting the state of the
law. She cited a concurrence from her own Circuit,
Hastings v. Judicial Conference of U.S., 770 F.2d
1093, 1107 (D.C. Cir. 1985) (Edwards, J., concurring) which was not only not on-point, but barely
even in the same time-zone, Id., at 1105 (legislative
incursion into the judicial province), and dictum in
45

a plurality opinion, N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (plurality),
holding that bankruptcy courts had to be Article III
courts. "Courts and judges always lie," Martin Shapiro, Judges as Liars, 17 Harv. J.L. & Pub. Poly
155, 155 (1994), and the Harvard-trained Jackson is
a quick study. Smith v. Scalia, No. 13-cv-0298-KBJ
(slip op., at 24). She claims that precedent leads her
to her obviously self-serving conclusion, despite the
fact that there is none on offerleaving an obvious
question unanswered: If the only way to remove an
Article III judge from office is by impeachment, why
is the Good Behavior Clause even there?

The trial and appellate courts both took the Fifth.

IV. The JudgeJudge -Fabricated Doctrine of Absolute

Sovereign
Sovereign and Judicial Immunity Wasnt In
the Constitution
Const itution and/or Has Been Abolished
By Treaty.

The Court's statement that it is "tempting" to

acknowledge the authoritativeness of tradition
in order to "curb the discretion of federal judges," is of course rhetoric rather than reality;
no government official is "tempted" to place
restraints upon his own freedom of action,
which is why Lord Acton did not say "Power
tends to purify." The Court's temptation is in
the quite opposite and more natural direction
46

towards systematically eliminating checks upon

its own power; and it succumbs.
Justice Antonin Scalia50
In that brief passage, Justice Scalia summarized
two centuries worth of jurisprudence governing the
judiciary. In United States v. Callender, 25 F.Cas.
239, 257 (D.Va. 1800) (Chase, J., riding circuit), the
Seventh Amendment was eviscerated. In Bradley v.
Fisher, 80 U.S. 335 (1872), the Court invented absolute judicial immunity. In Hans v. Louisiana, 134
U.S. 1 (1890), it rewrote the Eleventh Amendment,
substantially reducing its workload. In Pierson v.
Ray, 386 U.S. 547 (1967), it rewrote the Civil Rights
Act, finding that any person did not include state
judges. Statutes, treaties, and constitutional provisions have all been subject to judicial veto, and as
Scalia observes, this Court has never volunteered a
single restraint upon its power.
Justice Scalia is not immune to that temptation.
While an actual originalist would concede that, like
it or not, the Constitution guarantees a right to an
abortion, he has to answer to wife Maureen, a wellknown pro-life activist.51 With that foundation laid,

50

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 981

(1992) (Scalia, J., dissenting).
51
Aleksi Tzatzev, Meet The Fascinating Spouses Behind The
Nation's Supreme Court Justices, Business Insider Australia,
Oct 24, 2012. Petitioner made the case regarding originalism
47

we turn to the other substantive issues decided.

A. But I Have To Be Able To Rape Your

Daughter With Impunity To Protect
Her From Being Raped.
This is the doctrine of absolute official immunity,
recast in all its florid absurdity. One is left to wonder where it could be found in the Constitution, its
penumbras and emanations,52or even the white
spaces between lines of constitutional text.53 When
moonlighting as a constitutional scholar, Defendant
Scalia asserts that "there was no doctrine of domestic sovereign immunity, as there never had been in
English law."54 And as is so often the case, Scalia is
correct.
Sovereign immunity never really existed in practice in England. King John I acknowledged liability
in respondeat superior for the wrongful acts of his
courtiers, Magna Carta, c. 61 (1215), and thereafter,

directly to Scalia in connection with Smith v. Thomas, supra.

52
Justice Antonin Scalia: Courts Will Determine Legality of
NSA Surveillance, The Guardian (AP), Sept. 25, 2013 (quoting
Scalia).
53
Silveira v. Lockyer, 328 F.3d at 568 (9th Cir. 2003).
54
Antonin Scalia, Historical Anomalies in Administrative Law,
Y.B. Supreme Court Hist. Socy. 103, 104 (1985) (emphasis in
original).
48

the King invariably waived his nominal immunity

where justice required.55 Justice Blairone of the
Framersadvises us that ratification of the Constitution constitutes a de facto waiver of sovereignty
when required to give efficacy to that document,56
and to the extent the Fourteenth Amendment stays
the hand of individual States, it is a waiver of state
sovereign immunity, as well.
Then, where did it come from? Judges, succumbing to temptation.

B. The Will Of the People Is Rarely a Match

For the Wont Of Federal Judges.
Even if it could be argued that judges possess the
common-law power to write lawthis Court doesnt
even have the power to write their own procedural
rules, see 28 U.S.C. 2072at level best, the judgemade law of judicial immunity would only be common law. By contrast, the Constitution explicitly
states that all Treaties made, or which shall be
made, under the Authority of the United States,

55

James E. Pfander, Sovereign Immunity and the Right to

Petition: Toward a First Amendment Right to Pursue Judicial
Claims Against the Government, 91 Nw. U.L. Rev. 899, 906925 (1997).
56

Chisholm v. Georgia, 2 U.S. 419, 453 (1793) (seriatim opinion

of Blair, J.).
49

shall be the supreme Law of the Land. U.S. Const.

art. VI, cl. 2. That supreme Law does not include
any common-law judicial decree. Period.
There are no caveats in Article VI. Treaties are
the supreme Law of the Land. The only limitation
in scope or subject matter is the Bill of Rights, binding all branches of government. As such, while our
government can ratify a multilateral treaty ensuring adequate health care for all, it cannot enter into
one criminalizing hate speech, as that would run
afoul of the First Amendment. For this reason, we
always include a Reid v. Covert [354 U.S. 1 (1957)]
exception to every treaty we ratify.
Treaties are like marriages. When Uncle Sam
exchanges solemn vows with his world partners to
be faithful, they kind-of expect him to not be getting
a little nooky on the side. This doctrinepacta sunt
servanda (agreements must be kept)is the cardinal principle of international law. The law of contract governs multilateral treaties: Every treaty in
force is binding upon the parties to it and must be
performed by them in good faith, Vienna Convention on the Law of Treaties, art. 26, 1155 U.N.T.S.
331 (entered into force Jan. 27, 1980), and [a] party
may not invoke the provisions of its internal law as
justification for its failure to perform a treaty. Id.,
art. 27. Furthermore, a reservation by a signatory
State incompatible with the object and purpose of
the treaty is severable and void. Id., art. 19(c).
50

While unratified, the State Department regards

the Vienna Convention as authoritative, see e.g., S.
Exec. Doc. L, at 1 (1971) (Letter of Submittal from
the Secretary of State to the President), if only as a
fait accompli: [T]he intent of the signatory parties
controls, Diggs v. Richardson, 555 F.2d 841, 851
(D.C. Cir. 1976), and in a multilateral accord with
168 parties, our provincial intent doesnt count for
much.
Once ratified, there is one right way to interpret
a treaty. "In construing a treaty we first look to
its terms to determine its meaning." United States
v. Alvarez-Machain, 504 U.S. 655, 665 (1992), and
treaty provisions are self-executing if they require
no legislation to make them operative. Whitney v.
Robertson, 124 U.S. 190, 194 (1888). Provisions can
be void for vagueness, but that is true in any legislation.
In 1992, the Senate finally ratified the International Covenant on Civil and Political Rights, 999
U.N.T.S. 171 (entered into force Mar. 23, 1976)
(ratified by the United States Sept. 8, 1992) (hereinafter, ICCPR). As it is substantially identical in
scope to the hortatory Universal Declaration of
Human Rights (G.A. Res. 217A(III), U.N. Doc. A/810
(1948)), its only conceivable object and purpose was
to abolish official immunity in tort for human rights
violations committed by agents of signatory States.
And you know what that means.
51

Goodbye, judicial immunity.

The civilized world expressed its collective will.
And both the Senate and State Department averred
that domestic law was fully ICCPR-compliant, and
that the United States would be bound upon ratification.57

But then, this Court got out its veto pen.

Ignoring the plainly-expressed will of the people
and its own precedent, Whitney, supra, this Court
declared that although the Covenant does bind the
United States as a matter of international law, the
United States ratified the Covenant on the express
understanding that it was not self-executing and so
did not itself create obligations enforceable in the
federal courts. Sosa v. Alvarez-Machain, 542 U.S.

57

In explaining the non-self-executing declaration, the State

Department said that it does not believe it necessary to adopt
implementing legislation when domestic law already makes
adequate provision for the requirements of the treaty, United
States Dept. of State, Core Doc. Forming Part of the Reports of
States Parties, United Nations Doc. No. HRI/CORE/USA/2005
(Jan. 16, 2005) at 157, and that, when conforming legislation
is required, it is its consistent practice to withhold ratification
until such legislation is passed. Id. at 156. Senator Moynihan
(D-NY) adds that although the Covenant is not self-executing,
these will become binding international obligations of the United States. 138 Cong.Rec. S4,783 (Apr. 2, 1992) (stmt. of Sen.
Moynihan).
52

692, 735 (2004). Never mind that the non-self-execution declaration was incompatible with the object
and purpose of the ICCPR and therefore, severable
and void. The Court could not countenance the idea
that an effective remedy must be given to a citizen
whose rights protected by the have been violated,
even if the violation has been committed by persons
acting in an official capacity. ICCPR, art. 2, cl.
(3)(a). And we all know why the veto pen came out:

That last phrase means judges.

C. Application To the Case At Bar

Whereas the original defendants in Smith v. Bender, No. 07-cv-1924-MSK-KMT (D. Colo. filed 2007),
deprived me of my Fourteenth Amendment right to
a fair and impartial tribunal, the Defendants in this
case conspired to deprive me of adequate, effective,
and meaningful access to federal court. Bounds v.
Smith, 430 U.S. 817, 822 (1977). It is a civil and
criminal conspiracy, 18 U.S.C. 241, and I have suffered irreparable harm. After all, when I graduated
from law school, Tiger Woods was still an amateur.
I had four viable paths to a remedy in tort. First,
a court could recognize that as the doctrine of absolute immunity renders the Bill of Rights unenforceable, it never existed in the first place, especially as
many state supreme courts ruled that they never
53

had it to begin with. Evans v. Bd. of County Com'rs,

482 P.2d 968 (Colo. 1971) (collecting cases). Second,
it could have followed precedent and the advice of a
Framer, finding that the Bill of Rights constitutes
an implied waiver of immunity. Jacobs v. United
States, 290 U.S. at 16. Third, it could have actually
applied Article VI of the Constitution, and held that
our ratification of the ICCPR extinguished official
immunity. Finally, as the recognition of a jus cogens
norm is essentially a function of how badly a judge
wants to find one, e.g., Filartiga v. Pena-Irala, 630
F.2d 876, 884 (2d Cir. 1980) (55 nations is enough),
it could have found that absolute official immunity
violates jus cogens law. But Hell would freeze over
before a judge would willingly create precedent that
could bankrupt her, which is why we have the Seventh Amendment.

V. As a Victims Ancient Right To Prosecute

Crimes Would Never Have Been Yielded
By an Informed Populace, It Is Retained
By Virtue Of the Tenth Amendment.

[W]hat they understood when they ratified this

Constitution was that they were affirming the
rights of Englishmen.
Antonin Scalia58

58

Constitutional Relevance of Foreign Court Decisions (C54

A. There Are No NonNon -Fundamental Rights.

Some would argue that the right to gay-marry is
fundamental. Others respectfully disagree. But no
one has ever articulated where in the Constitution a
distinction is drawn between fundamental and nonfundamental rights, or how judges can reliably tell
the difference.
Certainly, James Madison would have found the
distinction nonsensical. In introducing his draft of
our Bill of Rights to the House, he explained that he
consciously avoided attempting to enumerate all the
rights retained by the people, arguing that
by enumerating particular exceptions to the
grant of power, it would disparage those rights
which were not placed in that enumeration; and
it might follow by implication, that those rights
which were not singled out, were intended to be
assigned into the hands of the General Government, and were consequently insecure.59

SPAN television broadcast Jan. 13, 2005) (remarks of Antonin

Scalia).
59
1 Annals of Congress 456 (1789) (remarks of Rep. Madison).
55

This is a Rosetta Stone for interpretation of the

Ninth Amendment: While it doesnt create rights
per se, it is a constitutionally-mandated canon of
construction intended to equate enumerated and
unenumerated rights,60 with the apparent goal of
securing William Penns right to not remove his hat
in a courtroom.61 The judicially-contrived concept
that fundamental rights are retained, whereas nonfundamental rights are of lesser value, has no constitutional or historical basis, yields unending judicial mischief, and should be interred. See Planned
Parenthood, 505 U.S. at 854 (limits of stare decisis).

B. Our Bill Of Rights Preserves Common Law

Safeguards Against Abuse Of Authority.
Au thority.
The federal Bill of Rights is a misnomer. Unlike
New Hampshires Constitution, which declares the
right of revolution in Lockean terms, N.H. Const.
art. 10, it doesnt even try to assert a single natural
right. And as Madison explains, this was by design:

60

Madisons embryonic draft of our Ninth Amendment read as

follows: "The exceptions here or elsewhere in the Constitution,
made in favor of particular rights, shall not be so construed as
to diminish the just importance of other rights retained by the
people, or as to enlarge the powers delegated by the Constitution." 1 Annals at 456.
61
See, 1 Annals at 759-61 (discussing problem of enumeration).
56

[Those who opposed the Constitution] disliked it

because it did not contain effectual provisions
against encroachments on particular rights, and
those safeguards which they have been long
accustomed to have interposed between them
and the magistrate who exercised the sovereign
power.62
Procedural safeguards comprise the bulk of our
Bill of Rights, and when such a right is reserved to
the people by virtue of the Tenth Amendment, only
a countervailing constitutional provision can divest
them of it. See Reid v. Covert, supra.

C. The Ancient Right

Right To Private Criminal
Prosecution Is an Essential Safeguard
Against Abuse Of Sovereign Power.
As Canadas Department of Justice observes, the
right to initiate a private criminal prosecution is a
valuable constitutional safeguard against inertia or
partiality on the part of authority," Gouriet v.
Union of Post Ofc. Workers, [1978] A.C. 435, 477
(H.L.) (Canada)flourishing a pedigree as old as
the common law itself.63

62

1 Annals at 450 (Madison) (emphasis added).

Canada Dept. of Justice, The Federal Prosecution Service
Deskbook, Part IV, ch. 26.
63

57

As was pointed out to the trial court in gruesome

detail, the right to compel prosecution of criminals
not only exists throughout the Commonwealth, but
virtually everywhere in the civilized world.64 The
salutary purpose, according to Justice Holmes, was
to accommodate a natural desire for revenge within
the law by avoiding "the greater evil of private
retribution," Oliver W. Holmes, The Common Law
41-42 (1881).
Holmes also quipped that "a page of history was
worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). What we can say for
certain is that the constitutional charge to the
President that he shall take Care that the Laws be
faithfully executed, U.S. Const. art. II, 3, did not
extinguish that right. Both the New York, N.Y.
Const. of 1777 art. XIX (1822), and Pennsylvania
constitutions, Pa. Const. of 1776, 20 (1820), had
virtually identical clauses, and were not interpreted
as banning private prosecution.65 Nor can vestment
of the executive power in the President, U.S. Const.
art. II, 1, for the same reason.

64

Mot. To Present Evidence of Federal Crimes to Grand Jury,

Smith v. Scalia, supra.

65
Allen Steinberg, "The Spirit of Litigation:" Private Prosecution and Criminal Justice in Nineteenth Century Philadelphia,
20 J. Social History 231 (1986).
58

If the Framers ever intended to deprive citizens

of the common law right to initiate a criminal prosecutionone existing in some form in all advanced
democratic societiesone is left to search in vain for
evidence of that intent. And as the prosecution of
crime was not construed as an executive function in
1791 but rather, as one of the well-established
prerogatives of the people, it is unlikely that they
would have even perceived the threat that it could
be divested by congressional fiat. The question has
never been legally resolved, see Young v. United
States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816
and n. 2 (1987) (Scalia, J., concurring in part), but it
is difficult to imagine that the inestimable right
of invoking the penalties of the law upon those who
criminally or feloniously attack our persons or our
property, Blyew v. United States, 80 U.S. 581, 598
(1872) (Bradley, J., dissenting), would be willingly
yielded by an informed populace, or identify the constitutional mechanism by which it was divested.

59

CONCLUSION

Judicial decisions, like the Constitution itself,

are nothing more than "parchment barriers."
Both depend on a judicial culture that understands its constitutionally assigned role
[and] the modesty to persist when it produces
results that go against the judges' policy preferences.
Justice Antonin Scalia66
At the risk of stating the obvious, our forebears
didnt fight a revolution to replace King George with
King Judge. You were only entrusted with power
"to say what the law is, not what it should be," and
the Framers entrusted us with the power to punish
you if you refused to respect that limitation on your
power. It is of overwhelming importance as to who
rules me, Justice Scalia, and the Framers Constitution affords the remedies invoked herein. As the
decision below is plain error, I am entitled to review
under a writ of certiorari.
Respectfully submitted,
__/s/_______________
Kenneth L. Smith

66

Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143, 1176 (2011)
(Scalia, J., dissenting; emphasis added).
60

23636 Genesee Village Rd.

Golden, Colorado 80401
Tel: (303) 526-5451

CERTIFICATE OF COMPLIANCE
[Now submitted separately]

61

EXHIBITS
S

62