Erick Kaardal has become well-known for filing lawsuits against the federal government, state government and local governments. Hailing from the liberal stronghold of Minnesota, he is Christian neopopulist with a distinctive philosophy of the law and the audacity to take on any level of government which is guilty — as it is so often these days — of abusing the common man.
Perhaps the most famous case which Kaardal’s law firm has been involved in was Republican Party of Minnesota v. White. That case went all the way to the US Supreme Court. Kaardal’s client was victorious. His client, a candidate for judicial office, simply wanted the right to free speech, which was denied him by the judicial canons (codes of behavior established for judicial candidates and judges by the Minnesota Supreme Court). The restrictions on judicial candidate free speech are based on a passe’ modern myth about the objectivity of judges. The essential and sentimental idea is that judges are experts who know the law and apply it with complete impartiality. Therefore, as candidates they must not politicize themselves with direct fundraising and issue-oriented speech.
The US Supreme Court decided in the White case that because the Minnesota Constitution mandates judicial elections they should be real elections, fraught with free speech. Therefore, the Minnesota Supreme Court was violating the state constitution by suppressing that speech. That’s what we call Minnesota “nice.” Minnesota nice is a culture of passive aggressive tyranny.
The liberal, dissenting minority in this case, led by Justice Ginsberg, argued that the “elections” should actually be a strange form of democratic selection, uninfluenced by the candidate’s tradition (world view). The candidates, Ginsberg argued, should be constrained by canon law in order to focus the voter on objective qualifications, not philosophy. In other words, Ginsberg wanted to invent a new use of the word “election” which is not to be found in the Minnesota state constitution. You can read about the decision in the third part of a book co-authored by Kaardal entitled Neopopulism as Counterculture, available on Amazon.com. The title of the article is “The Myth of Judicial Objectivity.”
Kaardal has dozens of other cases under his belt defending people like you and me against “the man.” It is not as lucrative as other kinds of practice, except in the moral and spiritual sense.
One more example of a Kaardal victory in Minnesota is a case called 281 Care Committee v. Arneson, which almost went to the US Supreme Court. When our highest court decided not the take the case, it meant that a lower, federal appellate court decision which favored Kaardal’s client, would stand — hopefully forever. This extremely important case essentially neutered a dangerous “Office of Administrative Hearings” court, dealing with administrative law and focused on competing candidates and advocacy groups filing claims against one another for “lying.”
As you know, all political opponents accuse one another of lying. One side’s lie is the other side’s sincerely embraced truth. The long history of the OAH in Minnesota was having a chilling effect on our First Amendment right to free speech. This court is explicitly rooted in the modern mythology of objective facts. But when school districts are claiming that a failure to vote for the new school bond issue (higher taxes for the government schools) will result in disaster for the children, it is not a fact. It is a plan. And when Kaardal’s clients called the school district out for its lies, manipulations and illegal use of taxpayer dollars to fund its advocacy of its own bond issue, they were dragged into the OAH to account for themselves. This was nothing less than an attempt to silence citizens who had the guts to stand up the educational establishment in Minnesota. It was a glorious victory when a federal appellate court, just short of the U.S. Supreme Court, had the common sense to recognize that Minnesota’s Office of Administrative Hearings was a star chamber and a direct attack on free speech. It is the voter who should have the right to decide who is lying and who is telling the truth, not the government. When that power is given to the government, democracy itself is on the block.
Kaardal’s legal philosophy is explicitly neopopulist. This means that he has a realist’s pragmatic approach to the law based on the following principles:
- The meaning of the language of the law, like all language, is its use.
- The meaning of the language of the written law, including court decisions, is not stable. The use of key terms in each case is never necessarily consistent across the whole of the positive (written) law, and especially in explicitly competing legal decisions.
- The inconsistent use of key terms (like “election” or “lie”) in the text of the law, including court decisions, is an opportunity for judges to mold a decision around their tradition, by picking out a particular use of key terms in the law and extending it to the case in question, as an attempt to increase the coherence of the law. Often the coherence could have been extended in precisely the opposite way.
- Above all else, the concept of justice is so abstract, and is otherwise used in competing traditions in such incommensurate ways, that any judge can nullify written laws on the grounds that the function of the law as a whole, and his function as a judge, is the establishment of “justice.” Whose justice? His justice? Her Justice? Judges make a big deal about the true intent of the law which is theirs to discern.
In other words, Kaardal approaches each case with an understanding that it is all just a war of words, a firefight between competing language games, competing traditions, and that judges will almost always use the key terms at issue in the case in a fashion which is consistent with their own tradition — liberal or conservative.
Since there is no stability in the meaning of the written law, despite being written; since there is no way to control the judge with the static text of the law (a now passé notion), there must be some other way to practice the law and win cases. No right wing lawyer can even count on conservative judges consistently making the right decision.
The solution, in its transparency, is ironically invisible to every conventional lawyer. The solution is to implicitly or even explicitly ply the judges with the four truths stated above, getting them off of their high horse — the myth of judicial objectivity — and back to ordinary language and common sense. The warning to judges who make blatantly anti-democratic decisions — decisions which are explicitly opposed to the tradition, the language, of the people — is that they are progressively, and rapidly discrediting themselves. Although implicit, this is a revolutionary warning. Judges must be made subject to embarrassment for suggesting that their opinions are superior to the opinion of the people — especially when they are elected. The people know very well that the government is performing all kinds of functions not delegated to it by the constitution by the lights of their living language — their common sense, their ordinary language, and their religious tradition.
You see, we are so far past the myth of judicial objectivity, in this postmodern world, that it makes a judge blatantly inauthentic when he suggests he is delivering the absolute truth about the law when he writes an opinion. This is nothing more than rationalist sentimentality. No one believes this anymore.
Every judge should be an elected judge, who interprets the law democratically — the way a majority of the people would interpret it. A word like “marriage” does not belong to judges, as if they have the right to dictate the rules for using it. It belongs to the people. The correct use of the word is anchored in the culture, which should be under the direct control of the people. Judicial decisions should be democratic, not expert, cultural expressions.
Since the law at any given moment is just the tool of a competing tradition (since judicial objectivity is a myth) it becomes harder and harder for judges to assert that they are exercising an expert function saturated in objective, culturally independent reason and knowledge. If the people are smart enough to elect the men who make the laws, then they are smart enough to elect the people who interpret them. The law itself is their creature. The people must control the law from two sides. They must elect the people who pass the laws (or repeal them as needed) and they must elect those who interpret the law in order to consummate their control. This is expert hell.
Kaardal’s approach to the law, to litigation, teaches left-wing ideological judges in particular that they no longer have a place to hide. They cannot decide against the people because the people see right through their opinions. The mythology with which they have justified themselves in the past is in tatters philosophically and culturally speaking. It is time for judges to turn away from ideology and orient themselves toward the people they serve. This is ironically even more important than politicians getting rightly oriented.
If you need to sue the government, you can contact Erick Kaardal at: [email protected].
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