Sheridan: Con-Law

St. Augustine, Conlaw Scholar

This, posted to the Conlawprof's service by yours truly:

***

It's not everyday that we mere mortals find ourselves in the same post 
with a genuine saint, but why pass up the chance?

One of our esteemed colleagues was kind enough to note this delicious 
article by Stanley Fish in the New York Times on Jan. 08, 2009 and 
pass it along, I hope for posting here.  Thank you very much, Mae 
Kuykendall, for a very good catch, indeed!

We had been discussing here the need to Sort the Conlaw Wheat from the 
Conlaw Chaff, not getting Led Down the Garden Path by the proverbial 
Red Herring, nor Being Taken in by any Window Dressing, of which I'd 
alleged there was a plenitude in the row over the appointment of Mr. 
Burris to the Senate by the now impeached but as yet untried Gov. 
Blagojevich of Illinois.  The taint over the alleged attempt to sell 
the senatorial office recently vacated by Pres. Elect Obama to a very 
high bidder was originally thought by some to so de-legitimize the 
appointment of Mr. Burris that it shouldn't be allowed to stand.  The 
innocent Mr. Burris has cogently argued that he didn't offer to buy 
the office as he didn't have any money, so he's clean, which seems 
like an interesting defense against taint to me.

At any rate, this sort of fiasco has arisen before and greater minds 
than mine have wrestled with it.  We've already noted Chief Justice 
Marshall in Fletcher v. Peck in around 1810 if memory serves, 
involving the Georgia legislature and some state land that got sold to 
some self-interested individuals not excluding the legislators.  The 
question was whether their dirty dealing could stand.  It did.  The 
remedy was to vote the rascals out or run them out, but not to undo 
the dirty deal.  And now it seems that St. Augustine, among the 
sharpest of thinkers I've heard, wrestled with the taint issue himself 
and came up with his own good reasons for allowing official acts to 
stand despite the taint of the official actor, even if he is a priest; 
especially if he's a priest.

It seems the earlier problem with the official acts of priests was 
that the priests turned to be not much more morally pure than the 
erstwhile Georgia legislators of Marshall's day and who knows, perhaps 
even Gov. B. himself.  We can't place souls in jeopardy over that, can 
we?  We can't, said St. A.

Here's the column from the Times that was so kindly forwarded by Prof. 
Kuykendall:

***

Stanley Fish - Think Again
January 8, 2009, 10:00 pm

Roland Burris and St. Augustine

The arguments against seating Roland Burris as the junior senator from 
Illinois come down to one word: “tainted.” It is not Mr. Burris who is 
said to be tainted. It is, rather, the man who appointed him, Gov. Rod 
Blagojevich, who has been caught on tape saying many sleazy, self-
serving and despicable things.

It is not clear, however, that Mr. Blagojevich has actually done 
anything that merits either his conviction or impeachment. On that 
question, time will tell. And suppose that in the long run the 
governor is cleared of all charges, and suppose that in the short run 
Mr. Burris is denied a seat and someone else is appointed in his 
place. What then? Is the second appointee now dismissed because his or 
her appointment was “tainted” (he or she reached office as the result 
of an injustice)? Does the state start all over again and hold a new 
election?

Questions like these highlight the difficulties and conundrums that 
arise once the lawfulness of an official action is made to depend on 
the purity of the person who performs it. If the rectitude of the 
office-holder is crucial, how far back does one go in an effort to 
validate it? College? High school? Grade school? Sand box?

If an act can be declared null and void by a demonstration that those 
who signed off on it are unworthy, do all official acts rest on a 
foundation of sand? Can apparently settled decisions be undone in a 
second when evidence of venality is uncovered? Does your daughter lose 
her place in a college because the admissions officer who let her in 
turns out to be an embezzler? Do DWI convictions get reversed when the 
judge is revealed to be a drunkard? Is your marriage invalidated 
because the clerk or cleric who performed it cheated on his wife or 
stole from the poor box?

This last question is not new. It was debated in the 4th and 5th 
centuries in the context of what is known as the Donatist controversy. 
This debate was about the status of churchmen who had cooperated with 
the emperor Diocletian during the period when he was actively 
persecuting Christians. The Donatists argued that those who had 
betrayed their faith under pressure and then returned to the fold when 
the persecutions were over had lost the authority to perform their 
priestly offices, including the offices of administering the 
sacraments and making ecclesiastical appointments. In their view, 
priestly authority was a function of personal virtue, and when a new 
bishop was consecrated by someone they considered tainted, they 
rejected him and consecrated another.

In opposition, St. Augustine (rejecting the position that the church 
should be made up only of saints) contended that priestly authority 
derived from the institution of the Church and ultimately from its 
head, Jesus Christ. Whatever infirmities a man may have (and as fallen 
creatures, Augustine observes, we all have them) are submerged in the 
office he holds. It is the office that speaks, appoints and 
consecrates. Its legitimacy does not vary with personal qualities of 
the imperfect human being who is the temporary custodian of a power 
that at once exceeds and transforms him.

The context need not be a religious one for the same issue to arise. 
In the late 16th century the leasing of certain lands was challenged 
because Edward VI, who had made the lease, had not been of legal age 
at the time. In response, the crown’s lawyers invoked and clarified 
the doctrine of the king’s two bodies: “The king has in him two 
bodies, a body natural and a body politic.” His body natural is 
“subject to all infirmities that come by nature,” but his body politic 
does not have a bodily and imperfect form; rather it consists of 
“policy and government” that has been “constituted for the direction 
of the people.”

Directing the people is his job, and he has not only the right but the 
duty to do it no matter what kind of person he happens to be. 
Therefore the body politic – the king’s official power – “cannot be 
invalidated or frustrated by any disability in his natural body.”

In the next century, Thomas Hobbes was even more succinct when he 
declared (in his Leviathan) that the king is not obeyed because he is 
wise and good; he is obeyed because he is king.

Of course, President-elect Obama, majority leader Harry Reid and the 
members of the Illinois legislature are under no obligation to defer 
to the judgments of Hobbes, the crown’s lawyers or St. Augustine when 
thinking about the problem posed by Blagojevich’s appointment of 
Roland Burris. But they might well want to ponder the reasons that led 
those worthies to the position they took.

Virtue is a fine thing and it would be better if those who govern us 
instantiated it. But virtue is, for most human beings, an occasional 
achievement – sometimes you are, sometimes you aren’t – and, moreover, 
there is no public test, no test everyone would agree to, for 
determining its presence.

The legitimacy of an appointment can be either a procedural or a moral 
matter. If it is a procedural matter, authority is conferred by the 
right credentials, and that’s that. If it is a moral matter – only the 
good can be truly authoritative (this was John Milton’s position) – 
authority is always precarious, and the structures of government and 
law are always in danger of being dissolved.

The (perhaps paradoxical) truth is that while governing has or should 
have a moral purpose — to safeguard and advance the health and 
prosperity of the polity — it is not a moral practice. That is, one 
engages in it not by applying moral principles but by applying legal 
principles. Senator Reid and his colleagues in the Democratic party 
seem finally to have figured that out, which is why, in the absence of 
any more bombshell revelations, Roland Burris will be seated as the 
junior senator from Illinois.

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BLAGOJEVICH APPOINTMENT

The subject under discussion among the Conlawprofs was whether the appointment to the U.S. Senate to fill the Obama vacancy (he having been elected president of the U.S. to succeed G.W. Bush) could be somehow quashed on the ground that the governor was a crook, in that he was a Chicago politician, one, and two, he's been indicted by the feds for allegedly trying to sell the office to the highest bidder in the form of jobs or money for himself. 

Among the Conlawprofs there was a lot of back and forth, some of which I thought missed the point.  So I made it.  Here's the contribution:

Addendum:

- from Cohen & Varat, Constitutional Law, (Foundation Press, 11th ed.), this comment, from a section regarding the Bill of Rights, entitled, "The Pre-Civil War Background," (A) The Contract Clause and the Privileges and Immunities Clause of Article IV -- Early Interpretations:

The Contract Clause

"The first case in which the Supreme Court held a state statute to be in conflict with the constitution involved the contract clause.  In Fletcher v. Peck 10 U.S. (6 Cranch) 87 (1810), the Court held invalid an act of the Georgia legislature rescinding a sale of land it had previously approved.  Marshall, writing for the Court held that the contract clause applied to public contracts and that a grant of land constituted a contract not to reassert rights over the land granted.  In invalidating the law he relied both on the contract clause and on the more general notion that "the nature of society and of government [ ] prescribe some limits to the legislative power."

"...Much of the historical material [on the frequent use of the contract clause in the 19th century, when it was the most frequently relied on constitutional clause used, according to C & V] is discussed in two modern cases, Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978), and United States Trust Co. of New York v. New Jersey 431 U.S. 1 (1977)..."

Granted, I doubt that Gov. B's appointment is protected by the Contract Clause, but the point remains, that so long as his powers of governance have not been lawfully removed, he has the right to exercise them, regardless of the headlines, just as Marshall and the Court held that the corrupted Georgia legislature had the power to dishonestly sell Georgia land (not much land involved, incidentally, only a patch called the Yazoo, consisting of much of present day Mississippi and Alabama, but who's quibbling over the small stuff?).  Corruption is part of government.  Just as a judge has the jurisdiction to make incorrect (or dishonest, or otherwise corrupt) rulings, so apparently do other goverment officials have the power to dishonestly exercise the powers of their offices.  Once the judge says "case dismissed," after jeopardy has attached, the case is over, regardless if it later appears the judge was wrong or corrupt, assuming no statutory (or constitutional) right of appeal on those grounds exists.  If one believes that Marshall et. al. were correct in Fletcher, then I presume that one must believe that the notion holds true today, thus immunizing Gov. B's act of appointment from challenge, although not him personally from any political or prosecutorial repercussions.  Whether Marshall was most motivated by the desire to vindicate the Contract Clause, the power of legislatures to do wrong as well as right, or to show that his court had the power to rule unconstitutional state statutes (the 2d legislative act in play in Fletcher), or because maybe he had an interest in any of the contested land, I wouldnt know but I wouldn't be surprised.  Thing were a little different then in some respects.  Fletcher is usually used in Conlaw classes, I believe, to demonstrate the point that Marshall and the early court arrogated to themselves the right to overrule state legislative acts under the federal constitution.  The other, perhaps more interesting point(s) may be downplayed or overlooked in the process.

As we like to say here, I could be wrong about a lot of things, but I think Burris is in good shape, constitutionally speaking.  As for Gov. B., I wouldn't know.

rs
sfls

On Jan 1, 2009, at 8:22 PM, Robert Sheridan wrote:

Before re-reading Fletcher, what I think happened was that the direct or immediate issue was the constitutionality of the repealer act of the reform legislature that nullified, or purported to nullify, the earlier land grant act of the corrupt legislatue.  This subsequent legislative act would have had the effect of canceling the sales based on the tainted grant.  The 'holders in due course' were the alleged "bona fide purchasers" (some of whom may have been less than fully bona fide, i.e. they knew or should have have known of the skulduggery of their sellers in obtaining the grants). 

Nevertheless, the cat was out of the bag. 

The subsequent sales had occurred. Whether to BFPs for No Notice and Value, or not, the land was being traded in the stream of commerce and it was too late to walk back the cat.  Analogous to Hamilton's argument in favor of redeeming scrip payments to the (much disfavored by Jefferson) speculators, businessmen and bankers, who bought the payment notes (as in "not worth a Continental") issued by the Continental Congress to pay American Revolutionary soldiers who turned around sold them for good hard cash, for say, ten cents on the dollar. 

Jefferson argued that this rewarded the (by him) hated speculators and deprived the heroic soldiers who bought the successful revolution with their blood and deserved better, in his opinion.

Hamilton argued that the soldiers received what the the Continentals were worth at the time, not very much, on the open market.  Market forces ruled.  Hamilton had read his Adam Smith (published 1776);  whether J. did or not is moot; he lost the argument and the Washington administration honored the notes in full, establishing in the process the credit of the U.S.  See the Chernow bio of Hamilton.

Economics meets Conlaw, I suppose, by the time of Marshall and Fletcher v. Peck.

rs

On Jan 1, 2009, at 7:55 PM, Paul F.  wrote:

In Fletcher wasn't the issue that Marshall upheld sales to "holders in due course" and not the land grants themselves (some of which were successfully rescinded by the Ga. Legislaute.  This was based on well known principles of property law at the time.
I cannot see how Burris fits this.  I do not think a Senate seat constitutes real estate (altough Gov Blago. did)

--- On Thu, 1/1/09, Robert Sheridan <[email protected]> wrote:

Date: Thursday, January 1, 2009, 10:33 PM

As to Blagojevich/Burris, it seems to me that the governing case is Fletcher v. Peck, where Marshall, CJ, and the Court upheld the fraudulent land grants issued by a corrupt Georgia legislature on the theory that the remedy for the people was to vote out the officeholders, not to try to roll back the sales to ultimate purchasers.  The ruling disallowed the attempt to cancel the sales by invalidating the legislation that purported to repeal the original act of grant.

On this reasoning, the people of Illinois have the option of voting out their governor, sooner or later, but not canceling the appointment.

Thus, I don't see how the appointment can be rejected by anyone, including the Illinois Sec'y of State or the U.S. Senate, since it was made by a duly elected governor.  A governor's power is not invalidated by an indictment, which is merely an accusation, any more than than it is by any other scandalous stink that should happen to arise before it is dissipated.  In the case of the former recent governor of N.Y., would any of his acts have been invalidated because he'd been accused amidst scandal?  Suppose he vetoed a bill or signed a commission for an appointment before resigning.  Wouldn't these stand?  Even if the governor of Illinois were convicted by prosecutor Fitzgerald, he'd still be the duly sitting and empowered governor, entitled to exercise the powers of office, including the appointment power to the Senate.  If the people want to change the vacancy filling procedure by legislation, it's up to them.  Meanwhile, the governor has the power and can exercise it, imho, unless otherwise enjoined, a concept I've heard no mention of, probably for good reason, such as separation of powers.  If, as a judge, you were presented with a petition for an injunction stressing irreparable injury, would you sign it?  I don't see why I would.

I'm still puzzled by the alleged distinction between time-honored "log-rolling" (you vote for my bridge to nowhere and I'll vote for your civil rights bill, or the new road to my farm) and anything Gov. B. of Illinois is alleged to have done.  So he sought to feather his own nest.  As soon to be former VP Cheney has sometimes said when confronted with facts that others find inconvenient, "Yes, so?"  Okay, bribery is a crime.  How is it defined, I wonder?

We went through this discussion before, but no one has so far offered a principled distinction between log-rolling and feathering one's own nest.  Is there a difference between these two categories and asking special consideration for one's relative when it comes to an appointment to a judicial, legislative, or executive (or military) post?

I'd be interested in knowing what it is, which is not to say that it doesn't exist, only that I haven't looked it up.  Surely it is more than self-benefit as opposed to niece-benefit or constituent-benefit.

rs
sfls

On Dec 31, 2008, at 9:18 AM, Robert Sheridan wrote:

Rule #1 of Conlaw analysis is that one must not be misled by the window dressing, otherwise you'll follow the trail of the red herring to your chagrin, which raises Rule #2, that in Conlaw, mixing metaphors quite shamelessly is okay if your heart is in the right place.

Example, from an exam I'm familiar with: 

The legislature enacts an off-track betting bill by a narrow margin after which it turns out that those financially interested in passage of the Act have bribed enough legislators for it to pass into law.  Those who paid the bribes, and the legislators who accepted them, are prosecuted and imprisoned.  A lawsuit is filed to declare the Act, corruptly obtained to a certainty, null and void.  What ruling?

Second example:  A corrupted legislature is induced by bribery to sell off large chunks of state land to private bidders who then resell the land to more-or-less bona fide purchasers.  The stench is overwhelming.  As a result, the legislature is voted out of office, replaced by honest politicians.  The new legislature votes to repeal the land grant act on the ground it was induced by fraud and the taint of corruption.  A lawsuit is brought contesting the repeal which reaches the U.S. Supreme Court.

In fact there was such a case.  The Chief Judge was a guy named Marshall, as in John, not Thurgood. 

What result?

rs
sfls

On Dec 31, 2008, at 8:45 AM, T. R. wrote:

I agree with the argument offered by Professor H. (and H. R. that the Senate's only authority here is to assess whether the Burris appointment is "tainted by fraud" in the same manner that it might inquire into election fraud.  But to the extent that the Senate's definition of "taint" ranges beyond the narrow circumstances of the actual Burris choice (i.e. did Burris pay a bribe?) and instead examines the general conduct of Gov. B over the past weeks/months, such grounds for refusing to seat Burris would in my view be overbroad and unconstitutional (though probably nonjusticiable, as others have noted).  

For those who would argue that there is a broader democratic legitimacy justification for the Senate's refusing to seat any appointee chosen by the thoroghly corrupt Gov B, note that Illinois voters reelected him in 2006 despite public knowledge of Fitzgerald's investigation and other serious fraud allegations against his office.

Best,