Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2018, Vol. 44, No. 3 | Page 37
[J]ustice is known in one way in the
unchangeable truth, in another in the
spirit of a just man. 23
Justice and the Constitution
of the United States
As art is the product of an artist, so a just
state is the product of just citizens. Here in
the United States, jurists and politicians of-
ten claim that the Constitution is “the su-
preme law of the land,” relying on those
very words found in the Constitution itself:
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, un-
der the authority of the United States,
shall be the supreme law of the land;
and the judges in every state shall be
bound thereby, anything in the Con-
stitution or laws of any State to the
contrary notwithstanding. 24
Yet because the authors of the Constitu-
tion existed before that document existed
and obviously saw themselves as men who
had the authority to try to establish a just
government under a just set of laws, there
had to be a higher law that existed before
the Constitution—the law that enabled
them to strive to fashion a just system of
government. What is this higher law? It is
justice. It is living so as to be, fundamental-
ly, in balance with others, with nature, and
with whatever one envisions to be one’s
highest calling. America in its vast potential
beckoned its educated sons and daughters
to cast off the yoke of English monarchy.
The potential and the tradition were out
of balance. And did they not r ecognize, in
their calling to be political leaders of a new
and independent people, a need to strive
to be in perpetual balance with each other
in civil concourse and government? 25
Our brief Constitution must be interpret-
ed. Our interpretations must allow the cit-
izens of our country to continue to strive
to be just, to abide by the law that is in-
herent in everyone, the law by which we all
live, the law of balance and balancing—the
law of justice. Our tripartite system of gov-
ernment itself gives homage to this per-
petual striving for balance. The operation
of our government continually depends
on the balance of power consciously exer-
cised between the three branches of gov-
ernment. The continual balancing of these
powers exercised for the common good of
the people is the appropriate work of our
government—of the men and women who
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constitute our government, our state.
Restorative Justice as
Constitutional Justice
Restorative justice is constitutional jus-
tice because the men and women who par-
ticipate in restorative justice processes are
seeking justice from themselves for them-
selves—as did our founding fathers. Be-
cause it is devoid of coercion, restorative
justice is the justice of a truly “free” peo-
ple. Restorative justice is an invitation to
strive to be in balance with another who
one thinks one has harmed him or whom
one thinks he or she has been harmed by.
No one has to participate in a restorative
justice process if he or she does not want
to or no longer cares to for any reason. A
person charged with a crime in a criminal
justice system that allows for restorative
justice resolutions can choose, if given the
option, to allow himself or herself to be
handled by justice officials according to the
rules and laws of the state’s criminal, adver-
sarial justice system in which resolution and
punishment is imposed.
There are, cogent reasons not to allow a
defendant to partake of a restorative jus-
tice process, for example, lack of remorse,
a continuing interest in criminal enterprise
and affiliations, incompetence and insani-
ty. But the restorative justice option should
be the first choice of the state—plan A, so
to speak. Besides helping to foster virtue
among its citizens (for virtue requires jus-
tice and justice, virtue), it will, at the very
least, undergird the fundamental lynchpin
of justice that keeps our society from de-
volving into a police state: innocent until
proven guilty. Even if technically guilty of a
crime, do not just men and women accept
responsibility, not try to distance them-
selves from their own deeds, and seek to
make amends?
For those who can participate, a restor-
ative justice process allows the men and
women, the victims, offenders, and their
respective families, friends, and concerned
community members to come together
in a voluntary manner and with respect-
ful attitudes to explore how all the parties
have been affected by an offense, a harm
or harms. 26 It allows them, moreover, to
fashion a justice agreement that addresses
more particularly and more suitably the in-
dividual needs and capabilities of the par-
ties. Unlike the probation system that levy
fines that defendants are unable to pay
and, thus, whom it may render perpetual
victims of the state, restorative justice par-
ties can work out for themselves, often with
help from their families and friends and
concerned community members, what jus-
tice solutions will actually work. The legis-
latively derived, cookie-cutter approach to
justice wastes a lot of the parties’ dough,
THE VERMONT BAR JOURNAL • FALL 2018
so to speak. The restorative justice ap-
proach does not—it is the parties’ choice,
after all, as to how they spend, utilize, and
account for their resources in a restorative
justice agreement. Their agreements are,
ultimately, their responsibility.
If a respectful attitude is not shared
among the parties, then doubtless the re-
storative justice process, the exploration
of the harm done or the attempt to come
to peace with a justice agreement, will not
continue successfully. Then, whoever is
deemed to have violated the law will be
subject to the criminal justice system—plan
B, so to speak. If a hateful, vengeful, ma-
nipulative, or an overly fearful attitude ex-
ists (versus an apprehensive one, which will
surely be present among all the parties),
then there will be recourse, again, to plan
B. Certainly, the difficulty in maintaining re-
spectful attitudes among parties at conflict
will itself assure the continual existence of
our current coercive, criminal justice sys-
tem. And, of course, it is the constitutional
right of every defendant to a jury trial. But
this is not to say there will always be such
difficulty or that certain crimes will achieve
resolution when a restorative justice pro-
cess option is made available to those in-
volved and affected by a crime. 27
[W]ithout justice a republic can neither
be governed, nor even continue to ex-
ist. 22
Restorative Justice:
The Hope of the Future
Our criminal justice system should do
what it was designed to do: hold trials. It
should not sweep conflicts out of sight with
plea “deals,” which can be often leveraged
on the impoverished and ignorant. “[C]rim-
inal justice today is for the most part a sys-
tem of pleas, not a system of trials.” 28 De-
lineated standards of unacceptable behav-
ior and subsequent consequences for such
behavior are, of course, necessary for a
state to define itself as a state. A criminal
system based on such standards must ex-
ist but not to the exclusion of peaceable
and voluntary means of resolving conflicts.
The criminal justice system, as is, will also
be necessary for those who desire to plead
innocent to whatever charges the state
brings against them. Such standards and
consequences as perpetuated by the crim-
inal justice system will also help motivate
affected parties to resolve their conflicts on
their own and to avoid getting into them.
The deterrence effect of state-imposed
punishments is not denied here in any way.
The problems with our current crimi-
nal justice system are leg ion. 29 It is not the
purpose of this article to describe them or
to direct the reader’s attention to them. A
promotional flyer for the Center for Justice
Reform at Vermont Law School declares
the problems with unabashed forthright-
ness:
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