Archive for the ‘Legal History’ Category

Today, abortion. Tomorrow marriage equality and contraception.

Today the U.S. Supreme Court overturned Roe v Wade, the 1973 decision that established a constitutional right to abortion. This was expected, given the recent leaking of the Alito draft opinion.

The Alito opinion purports to determine the validity of the most fundamental rights of American citizens not by any contemporary legal or moral principles, but rather by turning the clock backwards by two or more centuries to see what the Founding Fathers meant by the words they used in the Constitution. In practice, this amounts to an exercise in historical fiction by the six conservative justices as they attribute their own policy preferences to their favorite Founding Fathers.

At any rate, the high court’s Dobbs decision should not be viewed as some sort of sudden or unforeseeable event. Dobbs is neither an earthquake, tornado, nor any other kind of surprise, even before the Alito opinion leak. Not at all. Dobbs is the result of the basic structure of the United States Constitution.

Contrary to what the GOP politicians spout, the Constitution wasn’t written by a benevolent deity. It was written by a group of white men, many of whom were slave-owners. Indeed, slavery and concessions made to the slave states to induce them to sign on to the Constitution (e.g., the Three-Fifths Compromise) comprise the ultimate foundation of the U.S. Constitution. Chief among those concessions, and a leading cause of today’s Dobbs decision, is the Electoral College.

The GOP’s smart move was to recognize the Electoral College for what it really is: the single greatest gerrymandering device in all of American law. The Electoral College means that there really is no such thing as a national presidential election. Rather, the Electoral College means that competing candidates for the U.S. presidency run for governor in each of the fifty states, and if one wins enough states to obtain a majority of the Electors, he or she wins regardless of the popular vote.

The popular vote for president is still important, but not on a national basis. It’s important only on a state-by-state basis, that is, within each individual state. That accounts for the GOP’s long game on voting rights, because for most of the states, if they can flip a state by as little as one vote they get all that state’s electors. Just look back to Karl Rove’s efforts to fire a bunch of U.S. attorneys who said they had more important things to do than going after voter fraud. Moscow Mitch McConnell then piled on to make sure that Obama didn’t get to appoint Merrick Garland, while Trump got to appoint three far right conservatives. McConnell violated some “traditions” of the U.S. Senate, but what he did was neither unconstitutional nor illegal.

The take-away here is that the GOP has had a long game of using the Constitution as it exists to enforce their minority rule, and Dobbs is just the latest evidence of that. Marriage equality and even the right of Americans to obtain and use contraceptives are next on the 6-3 Supreme Court chopping block. That’s no exaggeration. Clarence Thomas has expressly said he wants to eliminate those rights.

What’s required goes far beyond just getting out the vote this coming November. The GOP has been working, and will continue to work, on sabotaging Americans’ voting rights. If that includes the federal seizure of state voting machines because Italian satellites were allegedly switching votes from Trump to Biden, so be it. Trump sent the U.S. Gov’t. off on a wild goose chase to investigate that, and as yesterday’s January 6 Committee hearing showed, only two or three sane officials in the Justice Department stood between the United States and a constitutional crisis.

No, what’s needed is a new Constitutional Convention so that we can scrap what is essentially a constitution designed to embrace slavery and advantage slave states and bring it into the 21st century. I, for one, am rather tired of listening to right wingers tell us what a group of 18th century slaveholders and slavery enablers might have been thinking.

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Justice Gorsuch, U.S. Supreme Court

Bostock v. Clayton County, U.S. Supreme Court Case No. 17-1618 (June 15, 2020), is without doubt a milestone in the history of civil rights in the United States. The U.S. Supreme Court made the right decision. As the several recent police murders of black Americans has shown, there remains much work to be done in achieving equal justice under law for all Americans. Still, with Bostock the LGBTQ community can take at least take some comfort that the law is moving in the right direction. In these dark days of the Trump administration, that’s saying something.

However, the media has gone overboard in its praise of Justice Gorsuch, who is Trump’s first appointment to the Court. In particular, the media expresses surprise that the decision was 6-3 for Bostock, the plaintiff. The media asserts that those Republicans who have defended Trump because they want reliably conservative judges on the federal bench must be very disappointed. And, in fact, some are.

Charlemagne crowning

Detail of Media crowning Justice Gorsuch [prematurely] Liberal Judge of the Year, 2020

Before the Gorsuch hagiography gets much deeper, remember that you heard it here first: at some future date Gorsuch will issue an opinion that will incense everyone who’s not a Republican. (I almost said “conservative Republican,” but that would be redundant.) When it comes to interpretation of statutes and the U.S. Constitution, Gorsuch is a self-proclaimed “textualist” or “textual originalist” in the same vein as the late Justice Antonin Scalia. Recall that at his confirmation hearings in 2018 Gorsuch refused to comment on whether he believes three landmark cases were correctly decided: Brown v. Board of Education, 347 U.S. 483 (1954) (prohibiting racial segregation in public schools); Griswold v. Connecticut, 381 U.S. 479 (1965) (married couples have a constitutional right to use contraception); and Eisenstadt v. Baird, 405 U.S. 438 (1972) (unmarried couples have the same constitutional right as married couples to use contraception).

Keep those cases in mind.

Textual originalists like Gorsuch and the late Scalia portray themselves as completely passive, absolutely objective interpreters of statutes and the Constitution because they restrict themselves to the words in the text of the statute or Constitution — nothing more, nothing less. Anything outside the text is off limits, especially the legislative history.

The “originalism” part derives from their claim that the words in the statutory or constitutional text must be given the meanings they had when the text in question became law. The Scalia/Gorsuch textualist school wants to be sure to use the meanings at the time the text was enacted because that’s the only way, in their view, that the original intent of the language can be maintained from age to age. Changes in the use of language cannot be allowed to corrupt the original meaning of the text.

Gorsuch’s opinion is an authentic result of a textual originalist’s reading of the text of the 1964 Civil Rights Act. Still, the decision has startled Trump’s Republican supporters who counted on his judicial nominees to sock it to groups that they don’t like, such as the LGBTQ community.

But the most serious consequences are yet to come. Brown v. Board of Education prohibited racial discrimination in public schools and did so on the basis of the 14th Amendment to the U.S. Constitution. But when the 14th Amendment was adopted in the years immediately after the Civil War, “equal protection of the laws” most certainly did not refer to prohibiting racial segregation. It referred to protecting the recently freed slaves from the depredations of the Ku Klux Klan. Cases such as Plessy v Ferguson, 163 U.S. 537 (1896), which upheld racial segregation on a “separate but equal” basis, make that quite clear. Brown implicitly overruled Plessy, holding that “separate but equal” is inherently unequal.

The problem for textual originalists like Gorsuch is that under their theory the 14th Amendment must be read and interpreted as it would have been understood during the period of Reconstruction after the Civil War. At that time, protection of the freed slaves from raids and lynchings by masked horsemen in the states of the old Confederacy was what the 14th Amendment was all about. Nothing in the 14th Amendment mandates a prohibition of racial discrimination. Accordingly, under the Gorsuch textual originalism doctrine, Brown v Board of Education was wrongly decided.

If Gorsuch gets the chance, I predict he’ll vote to overrule Brown v Board of Education.

And let’s not forget the other two cases Gorsuch refused to talk about at his 2018 confirmation hearing, Griswold and Eisenstadt.  The decisions upholding constitutional rights in these cases are based on a citizen’s right to privacy. You can read the U.S. Constitution and all the Amendments forwards, backwards and upside-down, and you will not find any “right to privacy” in the text.

Accordingly, under the Gorsuch textual originalist approach, Griswold and Eisenstadt were wrongly decided, and should be overruled. At some point in the future, with Gorsuch on the bench, we may soon be saying goodbye to the constitutional right to use contraception.

If ever there were an artful dodger, Gorsuch is it. Had he given straight answers to the questions asked during his confirmation hearing, he would have told them that he believed Brown, Griswold and Eisenstadt were wrongly decided and should be overruled. He has to either admit that or become an apostate to his own textual originalist faith.  Imagine the uproar if, instead of being the shriveling coward that he his, during his confirmation hearing Gorsuch had answered questions honestly and forthrightly.

As the say in the commercials, “but that’s not all!” One hundred years ago, the 19th Amendment gave women the right to vote. Voting and holding public office are two very different things. Nothing in the text of the U.S. Constitution contemplates that a woman might hold public office in the federal government. Search all you want, but all the references are to males. Any sensible person with two gray cells to his name would tell you that a woman can, indeed, become president of the United States or be elected to Congress. But if you’re Gorsuch, Hillary couldn’t be president even if she’d won the electoral college back in 2016. Why? Because the text of the U.S. Constitution nowhere mentions female federal office holders. Voting? Fine. Office-holding? Not under Gorsuch. Doesn’t that sound ridiculous? Certainly, but then again everybody thought Trump was a joke.

Remember, you heard it here first: the exaggerated praise of Gorsuch is sorely misplaced, and many from the center-right to the left will someday tear their hair and rend their garments over a bass-ackward textualist decision by Gorsuch.

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War on Christmas

A Parliamentary soldier breaks up a Christmas celebration, ca. 1645.

Remember the alleged War on Christmas that Fox News pounds every year in order to pour gasoline on the flames of the Culture Wars? For about two decades Bill O’Reilly, formerly one of the chief strategists of the victimhood racket that is Fox’s War on Christmas, used this non-existent war to sell the two products that his viewers simply couldn’t get enough of: grievance and rage.

What does the War on Christmas have to do with the present push to reopen the U.S. economy?

For that, we go back once again to the period of the English Civil Wars (plural), which, believe it or not, is a nearly inexhaustible source of information for understanding the United States in the 21st century.

Christmas in seventeenth-century England would be very recognizable to contemporary Americans. Churches, homes and other buildings were decorated with holly and ivy. Religious services on Christmas Day were well-attended. Gifts were exchanged with family and friends. If you were in one of the well-off social classes, you’d give Christmas boxes with little gifts and sweets to your servants, your tradesmen and maybe even the poor. Just as in Dickens’ A Christmas Carol, the holiday dinner was a great feast, with bumpers of brown ale, roast beef, ‘plum-pottage’ and minced pies. One of the favorites was a block of Stilton cheese submerged in that brown ale, and, if reports are believed, this dish gave off an aroma as pungent as that of an un-emptied chamber pot at mid-morning. People danced, sang, played card games and went to see plays and mummer parades. These plays were hardly morality tales. The biggest difference, of course, was that their Christmas celebrations went on for twelve days, which is where we get that repetitive partridge and pear tree carol that’s still with us today. (Maybe the idea was to take a swig of ale for each of the twelve days and see if you were still upright at the end of the song.)

None of this sat well with the Puritans running the Commonwealth. To them, the celebration of Christmas was nothing more than “a popish festival with no Biblical justification,” an excuse for “wasteful and immoral behaviour…with the [t]rappings of popery and rags of the beast.”

So in 1644 the Puritan-led Parliament banned the celebration of Christmas and, by law, replaced it with a day of fasting and prayerful contemplation. Soldiers patrolled the streets of London breaking up any parties and seizing any food they suspected was for a Christmas meal.

What’s important for today’s coronavirus crisis is that the Puritans ordered all shops and markets to stay open throughout the 25th of December and the eleven other days of Christmas. This was a signal failure of the Commonwealth. The shops and businesses didn’t re-open, and the citizenry didn’t leave their homes to patronize England’s commercial establishments. More importantly, the Puritans created an undying ill will against them for trying to take Christmas away from the English people. The Puritans’ Old Testament sentiments undoubtedly contributed to H.L. Mencken’s definition: “Puritanism: The haunting fear that someone, somewhere, may be happy.”

There’s a lesson here for Trump, who thinks that, following his abject failure to prepare for and meet the Covid-19 crisis, he can reopen the economy by fiat. When a government attempts something beyond its reach, most likely it will not just fail, but will produce a result directly opposite to that which it wants to achieve.

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Edward III of England (1322-1377)

Most Americans derive what little they know of the Middle Ages from HBO miniseries. Even ardent Wikipedia fans erroneously believe that England only broke with the Church of Rome when Pope Clement VII refused to grant Henry VIII an annulment of his marriage to Catherine of Aragon so that he could marry Anne Boleyn and try again for a male heir. We should not blame ourselves too harshly for this lack of knowledge since Hollywood has spent the last seventy years warping historical reality, and of no era is this more true than the medieval one. One can begin to correct these distortions by keeping in mind that the Age of Chivalry was not the Age of Dentistry. That’s why nobody was smiling in those old paintings.

Contrary to conventional wisdom, Henry VIII was a late-comer to the Break-with-Rome game. Tensions between England and the Papacy had been brewing for centuries, and one of the first big ruptures was known as the Statute of Provisors, which was enacted in 1351 during the reign of Edward III (1322-1377). That’s almost two hundred years before Anne Boleyn’s first date with Henry VIII. The Statute of Provisors dealt with the Pope’s power of disposition of benefices in England.

What, you may well ask, is a benefice? It’s not a misspelling on a form letter from your health insurer. Rather, a benefice was a high (and high-paying) position in the Church such as bishop, abbot or cardinal. The Statute of Provisors dealt with the thorny issue of whether the pope or the English king had the right to appoint prelates in England. To our modern ears all that may sound like choreography for angels on pinheads, but back then it was a matter of the greatest importance.

William the Conqueror recognized the importance of the Church to consolidating his newly-acquired hold on England. He compelled all the cathedral cities in England, as well as in those parts of France he controlled, to elect his nominees as bishops. This process, in which the king “invested” his appointee with a bishop’s ring and staff, was called “investiture,” and it gave the bishops a badge of both spiritual and temporal authority. Bishoprics had been handled this way across Europe for centuries.

Then, in 1075, Pope Gregory VII up-ended all that. He prohibited laymen from electing bishops (“lay investiture”). He held that the Church was both independent of the state and above it, and that no temporal ruler could confer ecclesiastical authority. Gregory VII’s edict gave rise to what later became known as the Investiture Controversy. But things didn’t quite go as Gregory VII had planned.

On the Continent, in response to the edict, Henry IV, the Holy Roman Emperor and Rex Germanorum (King of the Germans), declared that Gregory VII was no longer pope. In return, Gregory VII excommunicated Henry IV. Excommunication was a big deal back then, much bigger than canceling a State of the Union Address. When the Pope excommunicated a king, it meant that all that king’s vassals were released from their feudal oaths of loyalty to him, and that anybody could invade that ruler’s domains without committing a sin.

But Henry IV beat him to the punch and invaded Italy, forcing Gregory VII to flee Rome. Then, in a supreme act of lay investiture, Henry IV proclaimed his appointee, Clement III, pope.

In England the Investiture Controversy was much less sanguinary, in large part because a very smart bishop, Anselm, of ontological argument fame, designed a compromise that avoided war and fleeing pontiffs. Taking Anselm’s advice, Henry I, King of England and second son of William the Conqueror, resigned his claim to invest bishops with ring and staff, which were the symbols of spiritual authority, but required that all bishops had to be elected in the presence of the king. Anselm’s settlement was eventually put in effect throughout Europe by the Concordat of Worms in 1122.

Control over high Church posts meant better control over your kingdom. Prior to the Reformation, the Church in Western Europe was universal in both name and reality: it had a monopoly on all knowledge and learning, and it had the only organized and regimented bureaucracy that was common across Europe. It had all sorts of internal frictions and contradictions, of course, but at its root it was one organization led by one man. To the extent that any coherent body of law existed in Europe after Rome fell, it was the canon law of the Church of Rome. In an age when the common law in England was still in a preadolescent stage, canon law was a sophisticated and mature product of centuries of work by scholars. It would take centuries for English lawyers to develop the common law we now take for granted.

Bishops controlled the administration and interpretation of the canon law, which did not depend on the king. They believed, and taught their faithful flocks to believe, that the canon law was superior to what little civil law existed. Ecclesiastical courts were to be found at every bishop’s seat (the cathedra), and these courts tried much more than just errors of faith. Because spirituality informed nearly every phase of life, the ecclesiastical courts had an undefined jurisdiction capable of almost unlimited extension, much to the chagrin of feudal and seignorial courts. Marriage, inheritance, theft and usury were all justiciable before the bishop’s seat.

Bishops also handled contract disputes: in an age where most people could neither read nor write, and, long before the doctrine of consideration was even thought of, agreements were customarily confirmed with the sanction of an oath made before witnesses. Breach of an agreement meant a breach of faith, which was a crime in the eyes of the Church. Even down to the present day “good faith” is part of contract law, and bits and pieces of medieval canon law have survived under the heading of equity.

And that’s just the legal side. The Church controlled all communications. It was the internet of its day. If one king wanted to send a message to another, it had to be heard by a priest in the local tongue, translated into Latin, carried overland, and then translated from Latin into the language of the receiving kingdom. (And we thought the old telephone modems were slow.)

The Church was an indispensable tool of the throne’s political messaging as well. In an era without mass communication and a population that was mostly illiterate, bishops told the lowly parish priests what to preach to their flocks every Sunday.

The positions of cardinal, bishop and abbott were important not only because of their legal roles, but also because they were lucrative. Bishops and abbots were often among the largest landowners in an era when land was the predominant form of wealth.

By the mid-14th century, at the height of Edward III’s reign, the old Concordat of Worms was no longer working very well for England. There had been some developments on the ground that impelled a response.

First, Edward III had to deal with the Avignon papacy. For about sixty years popes had resided not in Rome, but in Avignon, France. This wasn’t good for England. The Avignon popes were subject to undue influence, if not outright control, by the French king. Since England and France were in the middle of the Hundred Years War, this did not sit well with Edward III.

The Avignon popes also liked to flex their theological muscle to show that they were still popes, even though they weren’t in Rome, and controlling foreign benefices was an important muscle to flex. A “provisor” was a nominee to an English benefice who had been named by a “provision” from the pope. So Edward III was faced with a situation in which his enemy, France, had substantial control over law, spirituality, communications, and wealth in his kingdom.

This must have really irritated Edward III because, militarily, he was in a strong position. In 1346 he’d won a major victory over the French at Crecy, in northern France, and he had put the Pas de Calais firmly under English control.

As if things weren’t complicated enough already, the Black Death had arrived in England in June 1348. By the summer of the following year it had killed anywhere from 40% to 60% of England’s population. Since the Black Death did not distinguish peasant from prelate, a large number of English benefices became vacant, and the pope in Avignon was busy “provising” their replacements. The upshot was that by 1351 almost all the benefices in England were in the hands of foreigners appointed by a pope under the French thumb.

Edward III’s Statute of Provisors found this situation was “to the damage and destruction of the whole realm.” The statute imposed a penalty on any person attempting to disturb the “canonical order” by asserting any rights of a papal provisor to any bishopric in England. The provisor, together with his advocates and his retinue, were to be arrested and brought before the king’s court to answer for their offense. If found guilty, they would be imprisoned until they renounced any papal provision and found someone to stand surety that they would not re-offend.

All this may seem rather distant, but on reflection some parallels with Brexit become apparent.


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