Monday, March 14, 2005

Publius at Legal Fiction, noticing the outrage of conservatives over the Roper decision, posted his Linguistic Case Against Scalia. Feddie at Southern Appeal responded , added , and wheedled Publius to respond on the 10th. (ht: Professor Bainbridge) Publius acknowledged , and then responded on the 12th.

There is a load of comments added throughout, by the way. Those in the field of law may find the arguments, the points made, as common or possibly boring rehash. I find it fascinating and thankful there is the blogosphere. It is so available, so handy, and so diverse and so public. And anyone can pipe up on the subject.

So here's my comments, rather limited to hen-pecking, since my experience is not in the field of law. It seems to me Publius, in his initial post, cut off his right hand of support while also cutting off the branch he wanted to sit on. In what appeared to be a nod of understanding for those he criticizes, Publius wrote:
Before I do, let me throw in my two cents on Roper. I'm not going to pretend like Kennedy was clearly right. Scalia raised some strong arguments. But Kennedy had some strong arguments of his own. The case was a close call, and there were good arguments on both sides. Like so many other issues in constitutional law, there was no one right answer, but merely a range of plausible answers. And that's the big point. Kennedy might have been wrong, but he wasn't soooo wrong that it justified the apocalyptic rhetoric we've been hearing about tyranny and despotism destroying the Constitution. It was, at the least, plausible. And in my opinion, correct.
This is his right hand, and regarding that portion I emphasized, I ask: Is it appropriate in this case for Publius to support judges making constitutional decisions when there is a range of plausible decisions, when he, himself, considers that Kennedy might have been wrong? Shouldn't someone who sees action taken by the Court as being one of deciding close calls, one where several directions could be taken in defining what the Constitution includes or excludes, shouldn't that someone also be outraged that judges entered into the province of the legislature? I would think so for what else is it but choosing what the law should be.

Secondly, Publius wraps up his original post by leading us back to the founding but suggests that constantly looking to the founders words or intent is inappropriate. He quotes Jefferson as proof that, even then, we were admonished by Jefferson not to do this, though he leaves it to stand uncommented upon.

This is his branch and I, at least, appreciate Publius wanting to sit on such a weak one. Jefferson was writing to Madison in 1789 from Paris. He was concerned about a subject that, to him, never seemed to be much considered - "whether one generation of men had the right to bind another":
"The question, whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also among the fundamental principles of every government. The course of reflection in which we are immersed here, on the elementary principles of society, has presented this question to my mind; and that no such obligation can be transmitted, I think very capable of proof. I set out on this ground, which I suppose to be self-evident, that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it. The portion occupied by any individual ceases to be his when himself ceases to be, and reverts to the society."
Notice the sight difference in the quotation, likely just Publius' reliance on sources poor in accuracy and not a willful change by him (correction at the time of posting - Jefferson used part of the phrase once without the word usufruct. See below.) Let me provide the definition of usufruct so you do not need to look it up (I had to):
"(Roman and civil law) the right of enjoying all the advantages derivable from the use of something which belongs to another as far as compatible with the substance of the thing not being destroyed or injured." [Webster's Encyclopedic Unabridged Dictionary, 1989.]
Without dragging this post out, Jefferson mulled the practice of current generations burdening future generations with debt to support his now oft quoted observation and this was his primary concern though he noted the observation can apply also to the idea that society cannot burden future generations with a perpetual constitution or law. I think this latter aspect is, in essence, what Publius may have relied on in using the quote, if he read the letter. He hopes the quote sufficient to support his support of Kennedy's position. But here is a critical part of Jefferson's letter which kills that hope and I'll provide the whole paragraph for context:
"On similar ground it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to thirty-four years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal."
Two points here. One, rules made are hard to repeal; it is better to not make the law or to put specified time limits on it. This I think is why Jefferson uses the word usufruct as often as he did (and only once left it out when making this observation.) Two, future generations or any generations for that matter have the power of repeal, but implicit in Jefferson's letter is that a law made in the first instance, in democracies anyway, is made by popular decision, not by five rulers.

Kennedy and the four others did damage to the Constitution, they caused great injury, by not leaving this decision to Congress and by forcing repeal to be either by supermajority or by the appearance of (another) judicial fiat. There is good reason to be outraged.

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