Friday, June 17, 2011

But who will judge?

A major concern raised by the Indiana Supreme Court in its Barnes decision concerned the anticipated difficulty that the victims of illegal home invasions by police would have in determining whether the invasion is legal or illegal, and whether or not their right to self-defense is applicable against the police, under the circumstances.  Could homeowners discern when and/or whether they are being subjected to a lawful search or to an unlawful invasion, the Court questioned -- could they judge?

Again, from Locke's Second Treatise on Government:

“Here, it is likely, the common question will be made, Who shall be judge, whether the prince or legislative act contrary to their trust?  This, perhaps, ill-affected and factious men may spread amongst the people, when the prince only makes use of his due prerogative.  To this I reply, The people shall be judge; for who shall be judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he who deputes him, and must, by having deputed him, have still a power to discard him, when he fails in his trust?  If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment, where the welfare of millions is concerned, and also where the evil, if not prevented, is greater, and the redress very difficult, dear, and dangerous?”

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