Sheridan: Con-Law

IT MEANS WHAT I SAY IT MEANS

A recurring debate in interpreting the meaning of the text of the Constitution is whether we should give a term such as "equal protection,"  "due process," or "property" the meaning we now prefer or the meaning the drafters preferred, if you can tease it out of whatever material exists to allow you inside their heads.

The text was not written all at once, so this problem comes up repeatedly.  For example, the original Constitution was drafted over the summer of 1787 in Philadelphia. 

The Bill of Rights was added in 1791 as part of a deal to ratify the 1787 Constitution.

Neither of the two documents contained a word about "equal protection of law" despite Jefferson's ringing promise in the Declaration of Independence (1776) that "All men are created equal."  That document started the Revolution from Britain. We won the war but failed to include the promise of equality.  How could we?  We held 4 million people as slaves because they were black, and few white people considered themselves equal to the people they were holding down with whips, killings, forced breaking of families, and chains around the ankles and necks.  Apart from that, blacks were equal in the eyes of a very few.

In 1868, after the fruits of that failure were brought home, costing six hundred THOUSAND lives, both sides and civilian, the 14th Amendment was enacted in the absence of the South, as it was still in a state of non-re-admittance to the Union.  Southern states were not readmitted until they agreed to change their individual constitutions to include equal protection of law regardless of race or otherwise to endorse the Fourteenth Amendment, I forget which, or maybe it was both.  Blogging is from memory and unless I have a cite handy we move on.

What did the Congress in 1868 have in mind when it enacted the Fourteenth Amendment?  We can say that the Congress it wanted equality between the races, but even if it had said that, interpretation would still be required by courts in individual cases.

The legislative process, by definition, is to enact general rules.

The judicial function is to apply those general rules to specific cases affecting individual parties locked in contested litigation.

The executive function is to carry out, meaning to enforce, laws enacted by the legislature.  This is why the president is sworn to "faithfully execute" the laws enacted by Congress and signed by him without exception.  Pres. Bush has been issuing signing statements stating intended exceptions he will make in enforcing provisions he doesn't like, creating a new constitutional problem.  Other presidents have done the same, but not to the same extent, I've read.  I'm not sure what difference that makes once the practice has been established.  You wouldn't want every law on the books strictly enforced, I don't think.  Some become obsolete and we trust our elected officials to overlook the sillier ones.

Years ago in the prosecutor's office where I worked, a fellow prosecutor had been assigned to prosecute a rape case that was falling apart.  So he entered or accepted a plea bargain deal in which the defendant pled guilty to the crime of adultery, which was still on the books in California.  Dunno whether it still is, but it was then.  When this hit the newspapers, the front office ordered him to reopen the case, return the plea, and as I recall, the case was dismissed.  Why?  The San Francisco District Attorneys Office did not want to be in the business of putting San Franciscans in jail for whom they slept with as consenting adults.  The Hall of Justice might have been decimated, not to mention the rest of the toddlin' town.

How do you know what the legislature intended when it passed a law?  You may have a different intent for each legislator who voted.  Some may have voted on principle, others as political trades, as in log-rolling, you vote for me now and I'll vote for your bill tomorrow, and others corruptly.  Either way, the law stands until repealed or deemed unconstitutional by a court of proper authority.

One way to play the original intent game is to look in a history book or biography of one of the drafters, such as Madison of Jefferson, and if you can get him on your side, you've got a big gun indeed.

Or you can look at the legislative history of the debates, which exist for the Constitution in the form of notes, and as to the legislatures, in the transcripts of the hearings, if there were any. 

What if there are no contemporaneous notes of the debates?  Suppose the drafters used a word which they understood and figured that the courts would also understand because it was a legal term in common use.

But even common legal terms have complex meanings that change over time.

Take the word "property."

Simple word.  Farmer says, "That's my property, over there." Points to his farm.  He probably means he owns it, but he might mean he rents it from the real owner.

Children say, "This is my toy," meaning "I own it and can take it home, even if you are playing with it."  Child means he owns his property.

Lawyers, judges, courts, legislatures, and presidents, however, use the term 'property' differently, meaning with more precision.

As the owner of property, you know that you can sell it, lend it, rent it, or deed it away in such a fashion that it returns to you when something happens, like the occupant dies.  In the latter case, you've given what the law calls a life estate.  The possessor of the life estate can sue to eject a trespasser.  Or rent it out for a term, until the life estate terminates and the rights of possession revert to the owner of the fee simple, which is the term for the person who owns all of the rights to enter and occupy to the exclusion of all others, now.

Because of all the different possibilities of the various rights to use the subject of what we're calling property, whether real (land) or personal (chattels, or things in action, called 'choses' from the legal French) property lawyers think, talk, and write in terms of bundles of rights.

We say that you have a such-and-such property IN a particular thing.

Why do they call land "real" property as opposed to fake?  For the historical reason that the legal action (or lawsuit type) was called a "real" action.  No I don't recall why some actions were called real and others something else, such as trespass or battery, but if it was land you were seeking to recover by a court judgment, that was real enough, I guess, to be considered a real action.  So the subject of a real action was the recovery of an interest in land.

The land just sits there.  The interests that people have in a particular farm or apartment lot can be separated all over the realm.  So we speak of interests in land, and they are the subjects of lawsuits in probates and estates, trusts, sales, leases, tenancies, etc.  Need I say it can be complex?  An understatement?  But when it comes to value, land has had it in the Anglo-American economic and legal system dating back to before the feudal lords, whose terminology we continue to use.  That's why you have landlords and tenants.  The tenant, a serf, owed service to the lord.  Had to work for him, share crops, and fight for forty days and nights.  Your landlord owed that to his lord, perhaps a baron or earl, who owed it to the King, who wanted to invade France.  So you found yourself fighting at Agincourt with a long-bow.  That's how it worked if you wanted to live on a piece of land.  That's why your king went to France.  More land.  More people to work it, and serve him.  Quite a system, feudalism.  Trouble after the plague, however, 1348.  You could read about it.

So when our Framers used the word 'property' they knew all this because a lot of them were lawyers.

Problem was that to them property didn't just mean land.  They thought it cool to have property in people.  Black people.  Treated them as chattels.  Mules are chattels.  Any movable property is a chattel.  Nail a shelf to your wall and that chattel becomes a fixture, part of the land.  People move.  Chattels.  Remember that.

It troubles me, practicing criminal law, when a black client violates probation.  It's like the judge owns him.  Can send him to jail, to class, to conditions of probation.  Why not just sign yourself over to da judge, I wonder, next time you drink and drive and get into an accident like that?  Conversation came up this week.  "You're right, no more drinking and driving for me," is what I heard.  Pointed him in the direction of a class that the court and the DMV was going to send him to anyway.  Get a jump, look good.  Clean up the act.  Move on to a brighter future.

Courts look to the meaning of words in dictionaries, decided cases, legal practice, historical practice, and to the rich imagination of judges.  This may be far afield from what legislatures intended.  Tough darts for the legislature, I say.

If the legislature wants to say what it means, it can provide a definitional section a legislative history, a statement of the problem being addressed, and how the statute should be interpreted, strictly in favor of  freedom, or liberally in favor of the police, for example.

And still judges will figure a way around these in order to do what the court thinks is justice, which may have little to do with what the legislature intended.

This is why we bring the legislature back every year, to patch up the holes from last year, or the new potholes in the road we've discovered this year.

You know what they say, no man's liberty or fortune is secure so long as the legislature sits.

Those tax and spend legislators.  And city fathers taking a man's property by power of eminent domain for the public good, meaning private hospitals, truckers, and investors, a la Kelo v. New London, not too long ago.

And the environmentalists, telling a man what he can and cannot do with his own property.  Imagine!

And zoning!  Don't get me started.

Property owners are sometimes like those little kids saying "This toy is mine.  You can't tell me to do with my own toy.  My mommy gave it to me."

I've got news.

Mommy can take your toy away, and tell you what to do with it.  If you know what's good, you'll listen to Mommy, for Mommy knows best.

That's right, isn't it?

Mommy knows best?

Hmmm.

I smell an eminent domain lawsuit coming up.

IDIOTS, ORIGINALISM, 'N' YOU'N'ME

Justice Antonin Scalia apparently thinks there's only one sane way to read the Constitution...his.

Forgive me for pointing out that I respectfully beg to differ.

Below is Scalia's argument as reported by the A.P. in the San Francisco Chronicle.  Unfortunately it makes WAY too much sense. 

Fortunately we've learned to ignore Scalia's idea that the Constitution is more than a laundry list of some good ideas and not others.

I guess we'll just have to struggle along.

ORIGINALISM BLAH!

(From the Conlawprofs Listserv)

Apropos this discussion, today's New York Times (5/31/03, p. A15) has an article by Felicia R. Lee entitled "Constitutionally, A Risky Business," in which she reports on constitution-making from ours to Iraq's work-in-progress. She reports that more than 100 countries have tried to create democratic constitutions for themselves over the past 35 years. Many have failed. Experts agree that there's no one right way to do the job. She reports further, and I'll quote, paraphrase and omit:

"There's a fantasy that constitutional law is an appliance you plug in in New York and then plug in in Budapest or Baghdad," said Stephen Holmes, a professor of law at New York University Law School. "[P]rovisions of a constitution interact with each other in unpredictable ways." he said.

American scholars in particular, according to Holmes, often succumb to the mythology of their own constitution, the oldest written democratic constitution, as a document that should be reproduced around the world, he said.

""Bereket Habte Selassie, a professor of law and African studies at the University of North Carolina at Chapel HIll agrees and observes that in the 1950s, Europeans summoned African leaders to capitals like London, Paris and Brussels and shoved constitutions down their throats. The leaders of those countries became autocrats," which he sees as evidence that imposing foreign models does not work."" ...

Mr. Selassie, chair of the U.S. Institute for Peace, a government-sponsored research group in Washington, which is studying 140 cases of constitution writing says that an overriding principle in the process is "the participation of the people, ...to make them feel they own the constitution. Even illiterate citizens can listen to radios or attend meetings," he said.

Many countries begin their process by identifying their biggest problems and then using the constitution to fix them. Cass R. Sunstein, a professor of constitutional law at the University of Chicago, calls this approach countercultural. [italics added0.

"The Americans were very alert to this," said Mr. Sunstein... "The Bill of Rights is just partly a set of recollections of what wrong under the British." He notes the need for a balance between aspirations driven by recollections of oppression and things that can be enforced by law...

An open process also confers legitimacy, said Timothy D. Sisk, a professor of international studies at the University of Denver, but can slow the process of creating a workable constitution. Secrecy allows for tradeoffs and deals that are not politically palatable. "In South Africa they had over one million submissions about the different clauses...," Mr. Sisk said.

What constitutions really do, said Mr. Sisk was to "...set the rules for future interaction, so conflict can be negotiated and settled."

This month the Public International Law and Policy Group and the Century Foundation...prepared a 58-page report on establishing an Iraqi constitution.

Even with all the expert advice "It's not going to be a bunch of academics giving them a constitution," said Paul R. Williams, a professor of law and international relations at American University, who worked on the report. "It's going to be the end product of a lot of political bargaining, a fierce political bargaining process."

For all the diffculties, said Barnett R. Rubin, a political scientist who has been working on the Afghanistan Reconstruction Project, "Writing constitutions is easy compared to implementing them."

***

Comment:

Our constitution was drafted as described above, as "the end product of a lot of political bargaining, a fierce bargaining process," and is based on both 'aspirations' and 'recollections.' We identified our biggest problems and tried to fix them in the constitution, except for the slavery issue, which we deferred into the indefinite future because it was too intractable to settle then.

We insisted on the participation of the people, both through representatives at Independence Hall and popular ratification, particularly as to the insistence on adding a bill of rights.

The founding generation may've felt they 'owned' the Constitution much as we feel it belongs to us, it is ours, and we own it, in effect. That's a big part of why we study, teach, and evaluate it, and the interpreting cases, as critically as we possibly can.

What this means to me is that we have a right to shape it to meet current needs, without apology to the founding generation for necessary departures and emendations, despite the greatest of respect for what they succeeded in putting together. They must've expected some change, hence the Article on Amendments. It evolves, in short, despite the critics of that.

I can see the originalist position, the textualists' insistence on sticking to the words used as they were understood to mean at the founding, but when push comes to shove, I have no doubt that today's needs and values are going to prevail over yesterday's, and they should, pace the Founders.

Our job is to tailor the changes so we don't discard important values irretrievably. There's always the possibility of getting it wrong, and when we do, assuming we haven't wrecked ourselves in the process, we can hope to make a subsequent correction.

As Prof. Rubin said, "Writing constitutions is easy compared to implementing them."

The Founders' job was to agree on a constitution, and the rest of us have the problem of implementing it with as little bloodshed as possible.

We do seem to get caught up in our own mythology, don't we. Prof. Jack N. Rakove, Coe Professor of History and American Studies at Stanford University, in Original Meanings, Vintage/Random House, 1996, refers in his Acknowledgements to "a special form of originalism" that he calls "law office history," in which law firms hire historians to research meanings.

Our Supreme Court frequently performs what might be called "Supreme Court history" to lend support to its reasoning. Such history becomes 'official' and part of the canon, the myth, as it were. I have no doubt that some of it is undoubtedly true. Just don't ask me which...

Since I believe we're responsible for our own fate, I tend to want to say thanks to the Founders, and like the child grown up and out of the house, feel free to make our own decisions.

That's what we expect of our children, along with a certain respect shown to the values of their parents, perhaps even a little deference.

Bob Sheridan
SFLS

-----Original Message-----
From: Discussion list for con law professors On Behalf Of Robert Justin Lipkin

Subject: Re: Founding-Centered Constitutionalism

In a message dated 5/31/2003 11:17:12 AM Eastern Daylight Time, [email protected] writes:

I think it very worthwhile to focus on the question whether the attitudes and views of the relatively small group of founding fathers deserve to be preserved in aspic forever . . .

I agree.

Moreover, I do not think that we are compelled to endorse the interpretation that regards the (famous) Founders as embracing a conception of self-rule contemptuous of ordinary people. And if we are so compelled, my response is that the (famous) Framers' view is simply incoherent.

I do not understand, even in theory, how the people can be the normative source of political power and self-rule, yet be totally excluded from self-governing as it occurs on a daily basis.

Or even if we refrain from rejecting such a view out of hand, we must, at least, explain how the people can be fit as the normative basis of self-government and similarly fit every two, four, or six years to elect the elite politicians, yet must be excluded a prior from a more active and permanent role in self-government.

The central point here is that if the (famous) Founders' conception of self-rule is canonically contemptuous of ordinary people, that conception is not easily distinguishable from the monarchist conception, the Founders fought against. Instead of one King, we now have several Kings to govern a grateful polity.

Distinguish between two possibilities:

(1) For pragmatic reasons existing at the time of ratification, the American constitutional system was designed in a particular way giving ordinary people a say only in elections and in times of revolution, and

(2) This design is canonical; it can be altered through an Article V change, but if it is, the new system will nevertheless pervert the true (best, sacrosanct, take your pick) theory of the (famous) Founders that ordinary people have no (permanent political) role in the day to day vagaries of self-government.

I might be persuaded to accept (1). But I think (2) is anathema to the notion of self-rule (even as the (famous) Founders understood this), and a perversion of the same.

In the final analysis, if I embraced a Founding-centered constitutionalism, I'd be more interested in the Founding population, including of course the Founding Fathers, but in no way limited to them.

But as I indicated earlier I agree with Bob Sheridan's suggestion that we must question whether a Founding-centered constitutionalism is anything more than one indicia of the appropriate conception of American self-rule.

And after two hundred years of American constitutional development, a Founding-centered constitutionalism, though still relevant (though decreasingly so), is hardly dispositive of what the American conception of self-rule includes.

Bobby Lipkin
Widener University School of Law
Delaware