Saturday, July 17, 2021

Fugitive Legislators

Against the backdrop of contentious faceoffs throughout the United States on the subject of election laws, a group of Democrats from the Texas state legislature (specifically, its House of Representatives) recently fled the state in order to hinder the Texas legislature's efforts to enact election-related legislation.  Their excursion has received a great deal of sustained media attention from the start, so readers are presumably aware that the departure of these legislators leaves the Texas House of Representatives without the quorum (the presence of no fewer than two-thirds of the members of the House) that the Texas Constitution requires it to have in order to proceed with substantive legislative business.  This does allow them to keep the bill from moving forward for the time being, but if Texas Governor Abbott keeps his promise to continue calling special sessions of the legislature until the election legislation is enacted, the "quorum-busting" strategy of Texas Democrats can only obstruct action on that legislation for as long as enough of these fugitive representatives remain willing and able to stay out of their home state of Texas.  I don't think that their strategy is limited to denying the Texas House of Representatives a quorum indefinitely, and at some point, the representatives will undoubtedly want to return to Texas.

I do not know when that time will come, but the aspect of all of this that caught my attention (which is not to say that I do not think that what becomes of election legislation makes a difference) is that Governor Abbott has threatened to arrest the legislators when they return to Texas.  Now, like most of the U.S. state constitutions, that of the State of Texas does empower both houses of its legislature to compel the attendance of their own absent members.  The way the Texas Constitution phrases its grant of this power to the houses of its legislature, it might appear to grant them a more or less open-ended power -- provided that the grant is read and contemplated in isolation, ignoring all other relevant considerations (including everything else in the Texas Constitution and in the United States Constitution).  Article III, Section 10 of the Texas Constitution reads, "Two‑thirds of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each House may provide."  If everything apart from Article III, Section 10 of the Texas Constitution were to be ignored, that grant could very reasonably be understood to extend so far as to empower the Texas House of Representatives or Senate to have its own absent members arrested with the objective of either punishing a member for being absent (by inflicting "penalties") or directly compelling the member's attendance by forcibly transporting the member to the state Capitol.  (Supposing that this grant of power does extend that far, I still question the propriety, if not the constitutionality, of the governor of the state having a role in it.)  After all, Section 10 contains nothing that identifies any limits (or suggests that there are any limits) to the discretion it allows to either house in selecting the "manner" or the penalties for which "each House may provide."

However, of course, that grant does not exist in isolation; it is not independent of the rest of the Texas Constitution or of the United States Constitution, and there is a part of the Texas Constitution that is so critically relevant to Governor Abbott's threat that I find it surprising that I haven't heard or read any mention of it by anyone else, yet.  The Texas Constitution, like most of the state constitutions in the United States (and the United States Constitution, and the Articles of Confederation before it), prohibits the arrest of members of its legislature (unless for treason, felony, or breach of the peace) while the legislature is in session.  Article III, Section 14 of the Texas Constitution provides, "Senators and Representatives shall, except in cases of treason, felony, or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same."  If the fugitive legislators have committed treason, felony, or breach of the peace, the legislature being in session would not present a legal obstacle to arresting them for that reason (provided that they are within the territorial jurisdiction of Texas at the time of the arrest).  As far as I am aware, however, nobody has accused them of any of these*.  Unless and until that changes, Governor Abbott must comply with his state's constitution and keep his hands off of the legislators.  (Also, even as I say this, I think that a "quorum-busting" strategy is inappropriate other than in extreme situations; legislators are elected to participate in the legislature.)

A Reminder: Neither disliking a person nor disliking a person's political views or activities is a justification for intruding upon and violating the person's right to liberty.


* Some people (who can easily be found on the Internet) call almost everything "treason".  We can safely ignore whatever such people might have said about the fugitive legislators.

Sunday, July 4, 2021

Among Other Grievances

Those who have read far enough into the Declaration of Independence (I suspect that a fair number of readers quit once the list of grievances begins) may well have noticed that quite a few of them describe acts interfering with or undermining in some way the representative body of the people (the legislature) or the right to be represented in it, or, in some cases, suppressing or destroying American legislatures altogether.  Some of these grievances are allegations of the abuse of otherwise lawful powers.  Others indict the exercise of powers that were notoriously and categorically illegal.

The language used in expressing one of these grievances aptly states the theme of the rest, declaring that the people's right "of Representation in the Legislature" is "a right inestimable to them and formidable to tyrants only."

These are the grievances that I am referring to:

"He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

"He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

"He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

"He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

"He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

...

"He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

"He has affected to render the Military independent of and superior to the Civil power.

"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

"For Quartering large bodies of armed troops among us:

"For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

"For cutting off our Trade with all parts of the world:

"For imposing Taxes on us without our Consent:

"For depriving us in many cases, of the benefits of Trial by Jury:

"For transporting us beyond Seas to be tried for pretended offences:

"For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

"For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

"For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever."

Saturday, June 19, 2021

The pandemic policies are bad

I repeat now, in order to renew and reaffirm, a point that I was careful to make last year: when I criticize policies (or common threads that run through some of those policies over time) of the administration of Governor Holcomb of Indiana -- especially those policies and policy trends relating to the pandemic -- I do not intend for it to be taken as criticism of Eric Holcomb personally.  On the contrary, based on what I knew of him from before he was governor, I believe his inclinations and instincts run with the greater force against the extraordinarily coercive, extra-legal, autocratic slant to the pandemic policies of his administration (like those of other states) than in favor of it.  I believe that he has been pushed in the direction we see by not only the exceptional pressure placed on him, as governor, in the face of the pandemic itself, but probably also advice (from his advisors) to take the actions that he now has taken, the bad example set by governors of other states, and pressure from those among the citizens of Indiana who lack the courage needed to be free.

Indiana's so-called "Emergency Management and Disaster Law" deserves the blame more than any person or number of people, however, because its flaws are so profound, so glaring, and so numerous, but they had been present for over forty years (some of them being around seventy years old) before the pandemic began.  The very existence of this "Disaster" law as we know it was needless and avoidable, and the General Assembly should have done something about it a long time ago.  And if upon reading it, the governor or his staff came to believe that the General Assembly (in the distant past) had made it a governor's responsibility during an emergency to exercise the illegal, abusive powers that IC 10-14-3 affects to grant, then that is unfortunate, but it is not surprising.  IC 10-14-3 creates the appearance (though the appearance is deceiving) that a governor not only may but is expected to take advantage of it.  Accordingly, the governor has done so; among his other uses of it, he has now issued fifteen (and counting!*) consecutive declarations of a "State of Disaster Emergency".

None of this is an "excuse" for his pandemic-related policies.  I simply think that the distinction between criticizing the governor and criticizing what he has been doing is justified and is worth making.

Also, the considerations above all apply (though possibly with less force) to the governor's weird lawsuit against the Indiana General Assembly and some of its members.


* UPDATE, June 30, 2021: The governor has now declared sixteen consecutive Disaster Emergency terms (and counting).

* UPDATE, July 29, 2021: The governor has now declared seventeen consecutive Disaster Emergency terms ... and counting.

* UPDATE, August 30, 2021: The governor has now declared eighteen consecutive Disaster Emergency terms, and counting....

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.

Saturday, May 22, 2021

The Answer Key, Item #2

 "Doing the same thing over and over again and expecting a different result" is most assuredly not the definition of insanity.

(I admit, however, that doing precisely the same thing over, knowing all of the relevant circumstances to stand unchanged on every attempt, while expecting to get a different result, does not make a lot of sense.)

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.”