From the position iterated in the previous two articles, I would like to suggest a position of governance that is probably going to fall on mostly deaf ears. I hope not.
First a statement of fact that is frequently misunderstood. Law is what it states; it is not itself concerned with what is just; so laws can be viewed negatively or positively and can be reacted to as a corrective means. But far too many see the law as justice and think the law is what they want it to be.
Let us take a simple example of living in an RV on your own land; or even being permitted to do so by a relative who owns the land. Most people of my acquaintance believe this is legal. If I inform you that to do locally in a violation of local law and could subject someone to sanctions by the law is scoffed as ignorance on my part or just plain bad (unjust) law.
But this is actually a rather complicated issue, and the answers vary based on where you live. If you own the land where you want to park the RV, you’ll have more freedom to do so. However, there are often city ordinances and neighborhood rules that prevent you from doing so. If you want to stay in an RV in a backyard, you’ll need to jump through a few hoops. These vehicles don’t always qualify as residences, so you’ll need to do everything you can to legitimize your setup. This might include arranging utilities and paying taxes to the state where you live, or where I live, it is just prohibited.
The confusion is that many do not view this as a legal barrier because they believe if you own the property you can “do what you want with your own property”. But there are a multitude of ordinances and regulations that deny this fact. Then it can be further complicated if there are “residential organizations” that might add additional requirements on how one can use one’s own property.
Most urban communities have requirements that enforce participation in water and sewer systems approved by the municipality. Most limit how you can dispose of non-sewage waste, etc. Here we find less contention on the unjustness of such limitations, but it is essentially the very same legislative principles that regulate living in an RV and limit your access to determine how to supply your water or other utilities and how to dispose of your waste.
In the one instance the law restricting living in an RV on owned property is often as non-legal interference in one’s rights and connecting to approved utility facilities as very just government mandates, with any dispute perhaps being over the cost.
Utilities, themselves, if privately owned might view that they should have an unlimited right to charge as they please, while citizens might think the government must regulate those costs.
On the other hand, few see the necessity of regulating the cost of groceries; or automobiles, or whatever, even if they might consider overpriced.
Thus there is a quagmire in the system of law that creates antagonism against the law; in some instances and acceptance of most people on other issues a belief the law is not fare (“fair”). And yet just as regulation of property is the same legal principle for whether one can live in an RV and whether one must connect only to specified utilities to live in one’s properties and there exists two perspectives on the viableness of what that regulation can entail, there is a similar disconnect on the same legal authority to regulate the cost of private utility companies but not private grocery stores.
Now my point is to not discuss the merits of these laws, why some may view one favorably and the other unfavorably. What I am attempting to illustrate is that law has no basis in rightness or in consistency.
But people expect the law to be right but not don’t necessarily demand it be consistent.
Belabored enough. In common law, the correctness of the law and the consistency of the law are the role of the justice system and not the legislative function.
In American jurisprudence there have been attempts to determine justice only by the rightness of the law and disregard a necessity for consistency. On the other hand, we have had our share of justices who believe that legal consistency outweighs legal correctness.
When it comes to our current court with what some refer to as the “conservative majority” and what I see has being very liberal in upending common justice is a few of the justices who have actually no understanding of common law, and are not even moving in the direction of civil law to interpret the meaning of existing law. In other words, they have less connection with any principles of adjudication.
Scalia, despite his rather loose (liberal, not conservative) attempt to transform the intent of the law, nevertheless tried to interpret the correctness of the law, but primarily wanted a consistency of the law to what he viewed the framers of the amendments intended (and let’s get away from the idea that the constitutional framers intent was the same intent as the amendments that were to become ratified.)
But jurisprudence should be neither liberal in its attempt to determine rightness over consistency; nor conservative in favoring consistency over rightness.
Common law justice must always view today through the conversation of its precedents in a consistent manner that continually progresses (not liberally) in a manner that addresses the current rightness of any determination through conserving the consistency of the precedents.
While the court has occasionally overturned a prior decision rather quickly through evaluating whether a previous decision was incorrect or not, for the most part and contrary to popular opinion, in general no precedent is likely to be overturned without intervening precedent.
Dred Scott was not overturned post civil-war, nor was it ever reevaluated until the laws began to change as late as the 1920’s. I mean by this, that the 15th granted citizenship rights to black Americans, the Exclusion Acts against Chinese and Japanese citizens were not seen at that time to be necessarily invalidated by Dred Scott. So the decision did not decide blacks were ineligible for citizenship, but deferred the determination of citizenship to the legislature. There role was not to make the laws that granted citizenship, they could only determine if someone denied citizenship was justly denied.
The very same Justice Harlan’s lone dissent in Plessy led him to conclude in United States v. Wong Kim Ark that no citizenship rights could be granted to the Chinese because the laws had declared them to be singularly ineligible to become citizens, just as Dred Scott had determined blacks ineligible due to the constitutional and legal statutes at that time. And while most of us (including myself) feel Dred Scott was morally reprehensible it was probably a very correct and consistent decision to make at that time. More blame for Dred Scott should be placed on the legislators of the time than perhaps the judiciary which has historically absorbed the backlash.
And yet in Hawaii v. Mankichi (1903) Harlan’s opinion stated: "If the principles now announced should become firmly established, the time may not be far distant when, under the exactions of trade and commerce, and to gratify an ambition to become the dominant power in all the earth, the United States will acquire territories in every direction... whose inhabitants will be regarded as 'subjects' or 'dependent peoples,' to be controlled as Congress may see fit... which will engraft on our republican institutions a colonial system entirely foreign to the genius of our Government and abhorrent to the principles that underlie and pervade our Constitution."
Whether these people could become citizens or not may be left to the legislature, but whether we could incorporate lands into the U.S., or even relegate the Chinese, or the Natives to unequal protection of the law was an entirely different matter and the consistent interpretation dating at least to the Marshall court, and one could make an argument that it extended to the Jay court, but very explicitly stated by Yick Wo v. Hopkins in 1886 that non-citizens still had all of the legal rights to be judicially protected equally protected as citizens and Harlan saw the laws that attempted to deny those rights in the newly acquired territories after the Spanish-American war as both just and inconsistent.
The purpose of common law is to protect citizens from the state if the state acts unjustly in any way. It must always be conservatively progressive. But what it cannot do is determine what the law is or what they wish the law to be. Civil law can determine if the law has been violated but the justices have no authority to wish the law to be different than it is.
Common law permits the just protection of citizens against unjust laws, unjust police powers, or unjust actions that tip the scales of laws to favor one group of citizens over another. But what the common law cannot do is wish the law to be different than it is.
And so in Dobbs, the court wished to abolish abortion and said, “well let the states decide”. Here is the fallacy. Alito writes Roe was bad law because he wished for there to be no abortion. There is no discussion of why Roe limited anyone’s right to not have an abortion, only that once upon six centuries ago they weren’t permitted to do so.
He says a century ago the territory of Arizona outlawed abortion. He doesn’t say the reason the law was passed was because there was a lack of wives in proportion to prostitutes; and men who were impregnating prostitutes in order to not be bound into responsibility were attempting to induce abortions by forcing those women to take toxins. The same legislative session that banned abortions also passed a law that any man who impregnated a woman other than his wife would have to take fiscal responsibility forb the woman to “insure her survival”.
But Alito neglected to mention that because he didn’t wish for men who impregnated women to be forced to “insure the woman’s survival.”
Alito also tells us Casey needs to be overturned because O’Connor “lacked the guts” to overturn Roe. But no worries, Alito informs us, he has the guts.
I think if he needs to prove his guts, he should don a pair of gloves and enter the ring with some woman. That’s the way to determine if he has the guts, not in a judicial setting where his guts, or lack thereof, has no role.
When decisions are made that are wishful, the court assumes a role it does not have. The justices of the court can wish for the law to be different, but is the adjudicate on that basis, they are in the wrong branch of governments.
Legislators can wish laws into existence idf enough others have the same wish. The court’s role is only to determine if the legislator’s wishes violate the rights granted by the constitution, its amendment’s, and their own precedents. In Dobbs, the central error was it did not determine if a Miississippi law was unjust an violate the citizen’s protection from the state, it not determine if the Mississippi law was consistent with precedent (it wasn’t). Instead they said the state can do whatever they want and deny citizens from being protected from just laws.
So let me conclude with Trump v. Anderson. The constitution does not grant the citizens of any state to determine who can be president, it is left to the electors. Today, in all 50 states, the states have permitted the citizens to vote for the president and the electors are determined by the outcome of that vote.
But no state is constitutionally required to permit the citizens to vote for president, that’s just the way all states now determine the manner in which to select their electors. Since it is the citizens who select the electors there is no requirement that every candidate need be on the ballot.
Indeed many third party candidates have been left off state ballots. In fact in 2000 Ralph Nader was not included on the ballots of all 50 states. During the 1860’s, neither Lincoln nor Breckenridge was eligible in all of the states (and South Carolina had a committee that voted for the electors and didn’t hold an electoral determination by a popular vote at all).
So chaotic, or not, the constitution allows every state to determine who is eligible to be on their ballot.
But what is the concern with chaos if states can not let every candidate appear on their ballot? When just two years ago they welcomed any and all chaos their decision in Dobbs by suggesting the states needed a wide latitude to create their own laws.
I could go on, but “this” court is not conservative nor liberal in its interpretation of justice. It is not civil nor common. It is a court with a wish list of what some of the justices want the law to be.
And my acquaintances who wish our law to allow themselves or their friends to be able to live in RV’s on properties they own may be more on track with understanding justice than some of the pugilists on the court who actually don’t have the guts to get into the ring with pregnant women trying to survive,
My wish is to view that fight between women and justices in a 16x16 ring.
My prediction is a first round knockout by the women.
But it has long passed the day when that is how we determine justice.
Is a nation half abortion and half anti-abortion, not standing divided against itself?
It's called "The COLOR of Law," matey. A term used nowhere else on planet Earth.
I am eternally befuddled as to why.
Uh...not!
Thanks, Ken. This is instructive and thought provoking.