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When in the course of human events, or our big fat American divorce

Few Americans have read the documents that founded our nation.

One need look no further than the daily news to realize that our lawmakers don’t understand the Constitution. If they did, it would not be incumbent on the courts to throw out unconstitutional laws, which happens with some frequency around our great land.

I have a confession to make, Gentle Reader. I have been among the group of illiterates who are involved in the law. Until recently. I took a trip to Philadelphia a few years back and realized that the right to trial by jury was among the grievances that led us to split from Mother England.

Our lawmakers frequently ignore this fact when they pass laws limiting our right to trial by jury. They do this by limiting the amounts a jury can award to an injury victim, by imposing mandatory sentences that take discretion away from judges, and so on.

We do it to ourselves, often without recognizing what is being done. If you take a close look at the terms of your credit card agreement or something as simple as a gym membership, you will see a mandatory arbitration provision – you have given up your right to trial by jury in return for the privilege of working out. In my mind, working out isn’t much of a privilege and my ever-growing waistline will back that up.

The Declaration of Independence was nothing more than divorce papers, served on England. Anyone who had been through a divorce knows that the serving of papers is just the start of a long battle. I am among that group, and my final decree came through many years ago in the first week of July. Independence Day has a special meaning to me.

It is no secret that I was not a student of history. When my high school history teacher said that “those who do not know history are doomed to repeat it,” I thought that meant I would have to take Mr. Miller’s history class over. While that may have been true, it didn’t fully comprehend the maxim.

As a lawyer, an understanding of the history of the law is crucial. Many of the things we do, from beginning a trial with “may it please the Court” to the rules of evidence all have roots in our legal history. So much of what lawyers do is based on tradition that we take its history for granted.

Traditions fail to serve a purpose more rapidly than the law recognizes. Although my thinning hair wouldn’t mind a wig, that tradition is long gone. Jurors are oblivious to the law’s traditions but they quickly come to acknowledge them by standing when the judge enters the room and so on.

Legal history is a different question. Jurors are oblivious to the evolution of the law. They reach a verdict and then justify their decision by trying to find some association to what the law says they must do. Cynics might say our Supreme Court is no different, and some decisions of the late Justice Antonin Scalia have been cited as examples.

A recent study found a growing number of jurors will completely ignore the law in reaching a verdict. This is disturbing to a trial lawyer, as we trust the jury to make a decision based on the law and evidence. I say evidence rather than facts because the facts only matter if they make it to the jury as evidence in the first place.

Truth is a different question. Witnesses swear to tell it and that truth becomes the facts. As anyone who spends time on social media can attest, the facts rarely matter – we requote things that are absolutely untrue if the statement supports our belief. Truth is either dead or irrelevant.

Back to the Declaration of Independence. Our founders declared that England refused to honor the laws and rules of our relationship and the divorce began. Some say that we are at that point again. Texas and California have murmured the word “secession” which is state speak for divorce. A certain special interest group whose name I won’t say in polite conversation has bandied talk of a new civil war. Maybe this is just a cynical ploy to sell guns, but the talk shouldn’t be taken lightly.

Before anyone serves divorce papers on the United States, I hope they consider the cost of that first declaration. Independence comes at a cost. Civil divorces look like a bargain when compared to a divorce from one’s country.

I wasn’t around in 1775 so I can’t be absolutely certain of this, but I don’t think the first Independence Day was a celebration with fireworks and grilled meats. I am absolutely certain that the Founding Fathers weren’t looking for a discount on furniture, contrary to the fliers I got for Fourth of July sales.

I celebrated the holiday by rereading the Declaration of Independence. We are a nation of laws which only means something if we understand those laws and uphold them.

1201farris1: Attorney Spencer Farris. KAREN ELSHOUT/photo

©2017 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis. He used to have bottle rocket fights on the 4th of July, but still has all of his fingers. Comments about this column may be sent to the editor at fehrlich@molawyersmedia.com or to farris@farrislaw.net.


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