So, is now the time?

The system. It is a phrase used by many, in the law and in daily life. One particular and important system is a basic, primordial concept underlying our lawyerly endeavors and government, It has long been a key to the American experiment. The system to which I refer is our system, apart from any power base, that provides for peaceful succession of government. The orderly, non-violent, systemic transition of power between opposing factions has kept our nation stable. It has allowed our economic and military might to grow, and our world influence to extend beyond even the influence of that of financial and armed power. Back in the day, Al Gore recognized the importance of the system and chose only a limited challenge to his presidential loss despite widespread grounds for contest, and even then accepted the decision of an obviously politically divided Supreme Court. Accepting the results of the process, even though flawed, allows the peaceful and smooth succession to continue. Gore sacrificed personal ambition for the good of the nation. To this day, most Americans fail to recognize the truly patriotic nature of Gore's standing aside.

The importance of this system has also been underscored in Pakistan. When the ruling party saw its regime out-voted, and watched two opposition parties garner more popular support, significant questions arose as to whether the election results would be implemented. The mere fact that the question existed caused instability in the region and in its economy. Kenya showed the problems when the system is not part of a national culture.

The belief in orderly succession remains, thankfully, relatively strongly entrenched in our country. Unfortunately, however, it has begun to show weakness at the seams. The rampant tribalism and team-oriented approach (my team, right or wrong) that informs our current governmental actors is a troubling sign of the impending end. It is the latest in a slow erosion of key components of our systems. Taking a step back, you can see that we may have already lost the true America.

Although we have not expressly forsaken our systems, we have destroyed their integrity in most aspects of life. America no longer demands adherence to systemic integrity or, perhaps most alarmingly, believes that our systems have fundamentally changed into dangerous shells of what they must actually be.

Whether right or wrong, professional sports are a dominant aspect of American culture today. The fact that teams and players, and even leagues, associated with professional sports can so easily believe it is "acceptable" to play their games without adherence to rules or law is a reflection of the modern American philosophy. The failure of the typical American to really care about these misdeeds reflects the breadth of the national fall from grace. The person on the street accepts the cheating with a shrug.

Of course, if it were only sports, than it would not be a dire circumstance. Unfortunately, however, it is not. Although the legislators investigate sports, they simultaneously accept rule breaking as a fact of life in their own chambers, campaigns, committees, and public life. More damaging still, however, is the acceptance of rule breaking within today's legal system.

The American legal system is premised on the "rule of law." The rule of law dictates that justice be determined based on the application of preexisting rules, objectively applied to as close to all of the facts as can be determined. The actions of many of today's lawyers, however, do not further this process and actually undercut it.

As originally conceived and long implemented, the rule of law required our nation's lawyers to seek justice and to forward true facts and legitimate arguments as officers of the court. Today, however, in the minds of way too many lawyers and judges, the lawyer's role has been "reinvented." Many of today's lawyers believe their modern mandate is to do whatever he or she can get away with, in order to advance the interests of his or her client, until and unless reigned in. It is proper to ignore obligations if one is willing to risk the attached sanction. It is aggressive representation," not heinous misconduct. Lawyers today analogize their profession to a sport, and believe they too can break the rules so long as they are willing to accept the penalty in the rare instances that a court will dish one out. The person in the street also shares this view and expect their lawyer to act accordingly. Many today believe this is the system.

The adoption of this warped view of our system is leading towards an apocalyptic end game in which breaking rules in all contexts is only breaking rules when you get caught and are assessed consequences. We are sinking into an abyss where there is no right or wrong, but merely a risk of consequences. Even the Supreme Court adopted this view, issuing rulings noting that wrongdoers must be afforded a reasonable opportunity to estimate the punitive damages they may face, to be able to make a cost-benefit analysis of their intended conduct. It is thus not surprising that many Americans appear to feel no moral restraint. They believe they are playing by the rules, but that rule one is break the rules if you are willing to risk the sanction.

A lesson can be learned from another aspect of the American System. Our system also includes mechanisms designed to allow citizens to be heard by government and to have their concerns determined in accordance with the same process as their neighbor, pursuant to objective rules, consistently and objectively applied. . In order for the system to work, and for peaceful, stable, profitable, and prosperous life to be maintained by the successful and to be obtainable by all others, Systemic Integrity must be restored before it is too late. If we do not stop the slide from cynicism into total disenfranchisement, the masses will eventually turn to violent self-help.

As the struggle for control of the Supreme Court, and political challenges to our elected officials multiply, it is time to try to make a difference.

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Charles Kramer is an attorney with the St Louis, Missouri law firm, Riezman Berger PC. Under Analysis is a nationally syndicated column of the Levison Group. Comments, criticisms or questions may be directed to Charles or the Levison Group c/o this newspaper or direct via email to comments@levisongroup.com.

© 2018 Under Analysis LLC

Published: Fri, Oct 05, 2018