More about that 1798 insurance requirement for ships

In September, I wrote about the 1798 insurance requirement that supporters of the 2010 health care bill frequently attempt to use in order to establish that early congresses of the United States understood the interstate commerce power to allow them to require individuals to engage in commerce. I demonstrated that the two mandates were very different from each other, and that the 1798 act could not serve as a precedent for the 2010 bill. (I also pointed out that there was no reason to assume that whatever was done by an early Congress was necessarily constitutional.)

Well, I have something to add. In support of the 1798 law, there would have been no claim (or any need to claim) that the commerce power allows people to be compelled to engage in distinct, new acts of commerce or that they are engaged in certain markets whether they want to be or not, and regardless of what they do or do not do. The first reason for this (apart from what I wrote about in September) is that the 1798 law concerned an actual, existing commercial relationship between people and a ship, and it regulated the conduct of a party to that contract to adjust for the consequences of that relationship. The end arose out of and the means applied to the same class of actual commercial relationships -- it should not be difficult to see why this might be considered a genuine regulation of commerce.

Additionally, the ship itself would have been a creature of commerce -- an artificial person, created for the purpose of commerce (more or less a corporation), not a natural person. I will not say that simply because ships and corporations are artificial persons which exist for the purpose of commerce that the federal government may require of them anything it desires, but when such a vessel is the subject of a federal law, it is much more reasonable to think that it would be a valid application of the interstate commerce power than if the law applied to all persons. (If someone were to respond that the individual mandate could then properly apply to everyone who engages in commerce at all, I would wonder whether that person is giving the issue full and honest consideration. Under that approach, the objective would not be related to the basis on which the regulation applies to a person, as it would when the behavior of employers is regulated in order to affect the effect of employment on the condition of employees -- it would simply leverage the rightful liberty of every person to engage in commerce in order to compel us all to obey an unrelated command.)

One way or another, the regulation affected only actual commerce, unlike a requirement that everyone buy health insurance.

Concerning the Six Statutes

Last July, after finally finding two of the more obscure of the Six Statutes of the reign of Edward III, I posted the text of them, without attribution.  I hope that this will remedy that:

(Scroll down a page or two, if you are looking for the obscure statutes.)

I also found this:



I, honestly, did not see this until today, but it probably adds something to whatever a Six Statutes enthusiast might be looking for:



The same goes for this, though I would have taken note of it if I had found it, last summer:



And so it is done. The Internet now can be searched for sources demonstrating the identity and content of the Six Statutes.

When nothing more than a link is required...

Concerning amendment of the Constitution: something from the recent past.

The Continental Statement

As I did with certain quotes of Thomas Jefferson in December, I arranged the following quotes which I collected from Revolution-era American declarations of rights*, with the quotation marks erased (so that it can flow as a single, intact document on the American Revolutionary understanding of the nature of rights and justice and the purpose of government, and on what basis, with what conditions, and under what circumstances we are obligated to support it).

[* The second paragraph of the Declaration of Independence does clearly and succinctly explain the nature of rights, justice, government, and law, which is why it is the heart of what I edited together, below; nevertheless, I think that the details offered by one of the drafts of the Declaration, and by the Virginia Declaration of Rights, and by many of the early state constitutions, add something of value which justifies their inclusion.]

-- A frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free. That the general, great and essential principles of liberty and free Government may be recognized and unalterably established; WE declare,

We hold these truths to be self-evident, That all men are created equal; That they are endowed by their Creator with certain unalienable rights (that from that equal creation, they derive in rights inherent and inalienable: certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity); That among these are Life, Liberty, and the Pursuit of Happiness; That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; and whenever any form of government becomes destructive of these ends – whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual – it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

The body-politic is formed by a voluntary association of individuals; it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. The end of the institution, maintenance and administration of government is to secure the existence of the body-politic, to protect it, and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life – every free republican government, being founded on their sole authority, and organized for the great purpose of protecting their rights and liberties, and securing their independence.

It is the duty of the people, therefore, in framing a Constitution of Government, to provide for an equitable mode of making laws, as well as for an impartial interpretation and a faithful execution of them, that every man may, at all times, find his security in them. All laws, therefore, should be made for the good of the whole; and the burdens of the State ought to be fairly distributed among its citizens; all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them. Of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration.

Every individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to expense of this protection; to give his personal service, or an equivalent, when necessary; but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people ... are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.

When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others; and without such an equivalent, the surrender is void; but the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent. The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

On reception of the common law

I recently became interested in reception "statutes," and I tracked down all of them that I could find.  Although it currently makes no practical difference how a state received the common law (the various states tend to follow general continent-spanning trends in common law, regardless of how each of them adopted the common law), it makes sense that it eventually could.

Those which adopted it by custom (or appear to have done so -- there were a few states that did not appear to have either a reception statute or a reception constitutional provision) or adopted it through their constitutions could very reasonably be understood to have given their courts the power to continue to cleanse the common law of obsolete forms and vindicate its true principles, as British courts had done over the centuries.  Those which adopted the common law by statute alone, however, even if they intended to give their courts that same power, arguably lacked the power to do it.  The constitutions of American states usually make explicit what the United States Constitution only implies: that the executive, legislative, and judicial powers are to be separated and committed to distinct branches, and that none of those branches is to possess the powers of another, other than in internal administrative matters, or where necessary in the proper execution of their own powers, or where specifically authorized by another part of the state's constitution.  If it is debatable whether courts' development of the common law is legislative activity, it should at least be clear that it violates a state's "separation of powers" clause for its legislature to enact, by reference, a body of law with the intent (and the result) of giving the courts of the state the power and the liberty to create, define and redefine, alter, and wholly reshape its content and effect.  If this power concerned only trivial matters, it might have been less inappropriate for us to continue to overlook or ignore this violation, but other than to the extent that it has been pre-empted or controlled by constitutions or legislation, it is the common law which contains and supplies the substance of our rights as they are comprehended by our legal system.

I do not bring this up because I am opposed to the development of the common law; I am not opposed to that.  Its ability to adapt is one of the reasons why it has worked so well as the "background" and foundation (please excuse the mixed metaphor) of our legal system.  However, we need to get our affairs in order so that we can practice constitutional government without absurdities, and without the need to resort to legal fictions to address those absurdities, and without opportunities for improvements in the law being lost simply because we have continued to allow such an important part of state law to rest on a source of authority which does not make sense and is incapable of being understood (other than by recognizing it as absurdity and leaving it at that).

Additionally, it is clear that as flexible as the common law is, and as important as that flexibility has been to its continued fitness for use, part of its excellence is in that it has a skeleton of principles that are not meant to be changed or violated.  Unfortunately, the way the common law is currently viewed in the legal community and treated in the courts, that "skeleton" is frequently broken.  In considering how to fortify that skeleton, it will be important for us to understand how the common law was ever instituted throughout the United States (Louisiana excepted).  I can think of a few ways in which improvements in reception "statutes" could improve the quality of the line of common law that we get out of our states' courts, partly by using them to point out some of the principles, tendencies, and traits of the common law which ought to endure even as the common law evolves over time.  However, I suspect that any attempt to make changes of that kind to reception statutes would lead others to begin to notice and think about the constitutional problem with the very idea of a reception statute, so I suggest that we (those of us who understand what I just wrote and who also care) begin to consider, discuss, and then resolve the question of how best to correct the constitutional problem.  Once we have done that, I (of course) suggest that we make the correction.

Thomas Jefferson, on the Common Law

It may not yet be clear to you why I am posting this, but it concerns the source of the authority of the common law. Most states have a reception "statute" (often a constitutional provision) that adopts the common law within their jurisdiction, but it was once believed that it attached to English emigrants and was carried with them to America, in the state that it was in at the time of their departure, and planted in American soil to the extent that it was consistent with local conditions. Jefferson, in his Summary View, expressed a different theory:

“To remind him that our ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right which nature has given to all men, of departing from the country in which chance, not choice, has placed them, of going in quest of new habitations, and of there establishing new societies, under such laws and regulations as to them shall seem most likely to promote public happiness.”

“That settlements having been thus effected in the wilds of America, the emigrants thought proper to adopt that system of laws under which they had hitherto lived in the mother country, and to continue their union with her by submitting themselves to the same common sovereign, who was thereby made the central link connecting the several parts of the empire thus newly multiplied.”

Jefferson and the Origin of Law

“To render these proceedings still more criminal against our laws, instead of subjecting the military to the civil powers, his majesty has expressly made the civil subordinate to the military.  But can his majesty thus put down all law under his feet?  Can he erect a power superior to that which erected himself?  He has done it indeed by force; but let him remember that force cannot give right.”

Liberty, Part XLIX

Justice James Wilson:

“But legislators should bear in their minds, and should practically observe—and well persuaded I am, that our American legislators bear in their minds, and, whenever the necessary resettlement of things after a revolution can possibly admit of it, will practically observe, with regard to this interesting subject—the following great and important political maxim:—Every wanton, or causeless, or unnecessary act of authority, exerted, or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state. ‘Legum’—I repeat it—‘servi sumus, ut liberi esse possimus.’”