Saturday, June 12, 2021

Do not attach the word "law" to anything that you wouldn't want people to mistake for an authentic form of law

In the following passage from his Manual of Political Ethics (1838), Francis Lieber observes (and laments) that when unjust and illegal conduct comes to be known by a name with the word “law”* in it (such as “Lynch law”, in the example that he discusses), people more readily accept it and think of it as legitimate than they otherwise would.  They may even come to think of it as having the authority of law.  In truth, these are as much a form of law as “fool’s gold” is a form of gold.

“No offender would hesitate to acknowledge and claim state punishment as his right, if choice were left him between the state punishment, which, because it is state punishment, requires formal trial, on the one hand, and, on the other hand, those summary proceedings against criminals caught in flagrante delicto, which we find in perhaps all early codes, and sometimes acknowledged to a very late period (Blackstone, IV, 308), or to which an excited people sometimes return, when the regular trial appears too slow for their inflamed passions, as has been the case in those riotous and illegal inflictions of death or other punishment, so unfortunately called Lynch law, in our own country.  I say, unfortunately called Lynch law, for it is ever to be deplored, if any illegal procedure receives a regular and separate name of its own.  By this very application of a technical term it assumes an air of systematised authority, which has an astonishing effect upon the multitude, and in fact upon most men.  Give a separate and technically sounding name to a thing, and you take from it much of its harshness for the human ear.  Many a member of trade’s-unions in Scotland would not have been willing to commit outrages upon the person of his neighbors or even murder, had it not been called slating, or by some other technical term.  The same principle applies to errors in science, religion, the arts.”

* “Law” is not the only word that has this effect, however.

Tuesday, May 4, 2021

Few rules of construction are absolute

If you happen to encounter anyone invoking the well-known (and reasonable, so long as the use of it remains reasonable) canon of legal construction (or "interpretation") that when one thing is specifically expressed, it tends to exclude the rest, keep in mind that that rule, like most of the established rules of construction in the law, is not meant to be applied without any regard for the circumstances and whether that application makes any sense.

The aim of legal construction or interpretation is to ascertain the true meaning of whatever is being interpreted or construed, which is also the paramount (and, probably, the only absolute) rule of construction.  When a given use of "Expressio unius est exclusio alterius" does not help us to ascertain that meaning faithfully, it serves no useful purpose, and giving it a forced and unnatural application is nothing more and nothing less than an abuse of it.

The same can be said for the other established canons of construction -- that they are useful when they are used sensibly but should not be treated as if they were universal, absolute rules that are always right and always binding.  However, at the moment, I'm focusing on the one identified above: that the affirmation of one thing is the negation of all the rest.

And by "focusing" on it, I mean that I am going to let the words of Joseph Story, who was a justice of the Supreme Court of the United States, tell you how indiscriminately invoking and applying that canon is a quick, easy path to absurdity and error.

“§ 448. XIII.  Another rule of interpretation deserves consideration in regard to the constitution.  There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience.  Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another.  Lord Bacon's remark, ‘that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated,’ has been perpetually referred to, as a fine illustration.  These maxims, rightly understood, and rightly applied, undoubtedly furnish safe guides to assist us in the task of exposition.  But they are susceptible of being applied, and indeed are often ingeniously applied, to the subversion of the text, and the objects of the instrument.  Thus, it has been suggested, that an affirmative provision in a particular case excludes the existence of the like provision in every other case; and a negative provision in a particular case admits the existence of the same thing in every other case.  Both of these deductions are, or rather may be, unfounded in solid reasoning."

"Thus, it was objected to the constitution, that, having provided for the trial by jury in criminal cases, there was an implied exclusion of it in civil cases.  As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases, and a discretionary right (it being clearly within the reach of the judicial powers confided to the Union) to adopt, or reject it in all or any other cases.  One might with just as much propriety hold, that, because congress has power ‘to declare war,’ but no power is expressly given to make peace, the latter is excluded; or that, because it is declared, that ‘no bill of attainder, or ex post facto law shall be passed’ by congress, therefore congress possess in all other cases the right to pass any laws.  The truth is, that in order to ascertain, how far an affirmative or negative provision excludes, or implies others, we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument.  These, and these only, can properly determine the rule of construction.”

Tuesday, April 27, 2021

Francis Lieber explains when and why the judiciary is a fit institution for the assessment of constitutionality

“The supremacy of the law requires that where enacted constitutions form the fundamental law, there be some authority which can pronounce whether the legislature itself has or has not transgressed it in the passing of some law, or whether a specific law conflicts with the superior law, the constitution.   If a separate body of men were established to pronounce upon the constitutionality of a law, nothing would be gained.   It would be as much the creature of the constitution as the legislature, and might err as much as the latter.  Quis custodet custodes?  Tribunes or ephori?  They are as apt to transgress their powers as other mortals.

 “But there exists a body of men in all well-organized polities, who, in the regular course of business assigned to them, must decide upon clashing interests, and do so exclusively by the force of reason, according to law, without the power of armies, the weight of patronage or imposing pomp, and who, moreover, do not decide upon principles in the abstract, but upon practical cases which involve them—the middle-men between the pure philosophers and the pure men of government.   These are the judges—courts of law.

“When laws conflict in actual cases, they must decide which is the superior law, and which must yield; and as we have seen that according to our principles, every officer remains answerable for what he officially does, a citizen, believing that the law he enforces is incompatible with the superior law, the constitution, simply sues the officer before the proper court as having unlawfully aggrieved him in the particular case.  The court, bound to do justice to every one, is bound also to decide this case as a simple case of conflicting laws.  The court does not decide directly upon the doings of the legislature.  It simply decides, for the case in hand, whether there actually are conflicting laws, and if so, which is the higher law that demands obedience, when both may not be obeyed at the same time.  As, however, this decision becomes the leading decision for all future cases of the same import, until indeed proper and legitimate authority should reverse it, the question of constitutionality is virtually decided, and it is decided in a natural, easy, legitimate and safe manner, according to the principle of the supremacy of the law and the independence of justice.  It is one of the most interesting and important evolutions of the government of law, and one of the greatest protections of the citizen.  It may well be called a very jewel of Anglican liberty, one of the best fruits of our political civilization.”

Friday, November 27, 2020

John Jay's Address to the People of the State of New York, Part 5

A message for 21st century America in a 1788 address by John Jay, concluded:

“Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect, are not reducible to practice.  If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security.

Receive this Address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.

A citizen of New York.

Thursday, November 26, 2020

John Jay's Address to the People of the State of New York, Part 4

From a 1788 address by John Jay, delivering a message that Americans of the 21st century need to hear:

“Such other foreign nations, if any such there be, who, jealous of our growing importance, and fearful that our commerce and navigation should impair their own—who behold our rapid population with regret, and apprehend that the enterprising spirit of our people, when seconded by power and probability of success, may be directed to objects not consistent with their policy or interests, cannot fail to wish that we may continue a weak and a divided people. …”

“…Are we sure that our distresses, dissentions and weakness will neither invite hostility nor insult?  If they should, how ill prepared shall we be for defence! without Union, without Government, without money, and without credit! …”

“…We must in the business of Government as well as in all other business, have some degree of confidence, as well as a great degree of caution.  Who on a sick bed would refuse medicines from a physician, merely because it is as much in his power to administer deadly poisons, as salutary remedies? …”

“Consider then, how weighty and how many considerations advise and persuade the people of America to remain in the safe and easy path of Union; to continue to move and act as they hitherto have done, as a band of brothers; to have confidence in themselves and in one another; and since all cannot see with the same eyes, at least to give the proposed Constitution a fair trial, and to mend it as time, occasion and experience may dictate.  It would little become us to verify the predictions of those who ventured to prophecy, that peace: instead of blessing us with happiness and tranquility, would serve only as the signal for factions, discords and civil contentions to rage in our land, and overwhelm it with misery and distress.”

Friday, November 20, 2020

John Jay's Address to the People of the State of New York, Part 3

From an address by John Jay in 1788, with a message that present-day Americans need to hear:

Concerning the delegates to the Constitutional Convention:

“They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion.  The same proposition seldom strikes many minds exactly in the same point of light; different habits of thinking, different degrees and modes of education, different prejudices and opinions early formed and long entertained, conspire with a multitude of other circumstances, to produce among men a diversity and contrariety of opinions on questions of difficulty.  Liberality, therefore, as well as prudence, induced them to treat each other’s opinions with tenderness, to argue without asperity, and to endeavor to convince the judgment without hurting the feelings of each other.

“Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected.  Here again, that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing. …”

“You must have observed that the same temper and equanimity which prevailed among the people on the former occasion, no longer exists.  We have unhappily become divided into parties; and this important subject has been handled with such indiscreet and offensive acrimony, and with so many little unhandsome artifices and misrepresentations, that pernicious heats and animosities have been kindled, and spread their flames far and wide among us. …”

“As vice does not sow the seeds of virtue, so neither does passion cultivate the fruits of reason.  Suspicions and resentments create no disposition to conciliate, nor do they infuse a desire of making partial and personal objects bend to general union and the common good.  The utmost efforts of that excellent disposition were necessary to enable the late Convention to perform their task; and although contrary causes sometimes operate similar effects, yet to expect that discord and animosity should produce the fruits of confidence and agreement, is to expect ‘grapes from thorns, and figs from thistles.’”

Saturday, November 14, 2020

John Jay's Address to the People of the State of New York, Part 2

From an address by John Jay to the people of New York in 1788, advocating the ratification of the proposed United States Constitution by the state's ratification convention:

“As the importance of this question must be obvious to every man, whatever his private opinions respecting it may be, it becomes us all to treat it in that calm and temperate manner, which a subject so deeply interesting to the future welfare of our country and prosperity requires.  Let us therefore as much as possible repress and compose that irritation in our minds, which to warm disputes about it may have excited.  Let us endeavour to forget that this or that man, is on this or that side; and that we ourselves, perhaps without sufficient reflection, have classed ourselves with one or the other party.  Let us remember that this is not a matter to be regarded as a matter that only touches our local parties, but as one so great, so general, and so extensive in its future consequences to America, that for our deciding upon it according to the best of our unbiassed judgment, we must be highly responsible both here and hereafter. …”

Friday, November 13, 2020

John Jay's Address to the People of the State of New York, Part 1

The following is taken from John Jay's 1788 address to the people of the State of New York to advocate ratification of the proposed United States Constitution by the state's ratification convention.  The Americans of the 21st century need no less than the Americans of 1788 to give serious consideration to the points made by Jay in this address.  It is a message that Americans have needed to hear (or to read -- to receive, one way or another) for years, but the more time passes, the more intense that need has seemed to grow.

When Jay himself delivered this message, it was a plea to Americans to recover their senses before they (or "we") irreparably damage the hard-won and precious gift that America is and ought to be.  I offer this message now for the same reason.

As the title above indicates, this is the first of several parts.

“Friends and Fellow Citizens:

“THERE are times and seasons, when general evils spread general alarm and uneasiness, and yet arise from causes too complicated, and too little understood by many, to produce an unanimity of opinions respecting their remedies.  Hence it is, that on such occasions, the conflict of arguments too often excites a conflict of passions, and introduces a degree of discord and animosity, which, by agitating the public mind dispose it to precipitation and extravagance.  They who on the ocean have been unexpectedly enveloped with tempests, or suddenly entangled among rocks and shoals, know the value of that serene, self-possession and presence of mind, to which in such cases they owed their preservation; nor will the heroes who have given us victory and peace, hesitate to acknowledge that we are as much indebted for those blessings to the calm prevision, and cool intrepidity which planned and conducted our military measures, as to the glowing animation with which they were executed.

“While reason retains her rule, while men are as ready to receive as to give advice, and as willing to be convinced themselves, as to convince others, there are few political evils from which a free and enlightened people cannot deliver themselves.  It is unquestionably true, that the great body of the people love their country, and wish it prosperity; and this observation is particularly applicable to the people of a free country, for they have more and stronger reasons for loving it than others.  It is not therefore to vicious motives that the unhappy divisions which sometimes prevail among them are to be imputed; the people at large always mean well, and although they may on certain occasions be misled by the counsels, or injured by the efforts of the few who expect more advantage from the wreck, than from the preservation of national prosperity, yet the motives of these few, are by no means to be confounded with those of the community in general.

“That such seeds of discord and danger have been disseminated and begin to take root in America, as unless eradicated will soon poison our gardens and our fields, is a truth much to be lamented; and the more so, as their growth rapidly increases, while we are wasting the season in honestly but imprudently disputing, not whether they shall be pulled up, but by whom, in what manner, and with what instruments, the work shall be done. …”