The Last Stand For Justice
Final Thoughts On Common Law: The perils we face today
Nothing can continue if we lose our common law. The so-called originalists should not be concluding their theory with “intent.” They have no idea of what the framer’s intent was in the plural. There were varying intents and the constitution is an amalgamation of those intents. They fought with each other throughout to form a minimal outline that was supposed to work because all of the intents could be voiced, and they hoped that would enable them to continue to compromise in the future and maintain the societal stability (primarily for merchants in the north, and landowners in the south.) And a lot of somewhat dubious compromises occurred to maintain the union for the next sixty years. I say dubious because they were generally unsatisfactory and only temporary fixes.
Of course that’s not really so bad. As situations change, the government that was fashioned was fashioned with the idea that it was a government format that would always allow compromises to fit the needs of the situation. Other than that, there was not a lot of intent. Yes, they did want to regulate commerce between the states more harmoniously to avoid becoming European-style fiefdoms fighting over territory and supremacy, but the intent cannot be better stated than in Madison 10 (I don’t know why I always call it that-the, Federalist issue 10 penned by Madison, is what I refer to, and it is the single-most important document that we have on the original intent).
Because the government was “intended” to be very flexible, there would be no supreme branch and all would have an effect and be part of future dialogue. Essentially however, the executive carried out laws, and theoretically the executive cannot propose legislation or suggest policy sans an emergency situation. But from the very first presidency, the executive officers would attempt to find compatible legislators to introduce bills they favored, and pressure legislators to pass laws that the executive favored. The long parliamentary-king debate was all very near, historically, some of the leading families, at the time of the constitution, progenitors actually pre-dated the civil war that dethroned. That Cromwell ended up disbanding parliament and ruling with more assumed kingly authority than had any been able to do since Henry FitzEmpresse emerged supreme after the great anarchy. Alito’s great authority in overruling Roe, Cromwell’s chief justice, Matthew Hale also adjudicated that laughing was a crime, and people could be placed in stocks for doing so. Of course, Cromwell thought all forms of entertainment were ungodly and outlawed novels, plays, theaters, and songs even from church services. Hale gladly supported Cromwell’s supremacy, even though he was not a Puritan, or maybe he converted, I couldn’t be sure. Before becoming Cromwell’s chief justice however, he was chief justice for Charles I, and had supported Charles’ claims to supremacy, and it is generally considered that he unofficially directed Charles' trial defense. Now people often say that Cromwell retained Hale because he was a fair and impartial judge. That’s hogwash. He was very partial to supreme authority and very impartial to challenges against that authority, or limits upon it. So who better to serve as Cromwell’s chief justice than the most authoritarian-centered judge available. After Cromwell’s death he led the movement for the restoration of the monarchy and was rewarded by remaining not only as Chief Judge but entered Parliament and was appointed the head of the Exchequer.Now here we are today, with a supreme madly in love with Matthew Hale. It’s not that Hale was never cited in American jurists' opinions before, he did leave an indelible mark on English-American jurisprudence. But even by the time Blackstone was writing his commentaries, Blackstone reminds us of Hale’s importance, but shows most of his judicial decisions had been moderated.
Moderated is the keyword here. In common law, you don’t overturn precedent, you moderate them towards better justice to fit contemporary needs. At least, I believe that is how it should be done, and actually if you read Amy Coney-Barrett’s textbook Procedural Common Law, moderate is the term she uses. (Confession, having read her book, much of my interpretation of common law has been lensed through her work. So I have been greatly disappointed in her tenure on the court, which appears to refute everything I thought I had learned from her text.) Brown v. Board did not overturn Plessy v. Ferguson. The first Justice Harlan’s interpretation that the 14th amendment incorporated the Bill of Rights and granted every individual the rights and therefore states were obligated to grant those rights. Harlan remained primarily a lone voice, with several decisions being decided by 8-1, Harlan being the one.
Incorporation really didn’t take root until 1927 with the decision in Gitlow v. N.Y. (granted some say it might have first taken root in 1897 Chicago, B. and Q. R. Co. v. Chicago but the issue was about property takings and the court had long said the federal law on takings superseded state laws due to interstate commerce, but in this case that was totally within the state of Illinois and so some suggest it might have applied the 5th to the state on the matter of taking of property). Nevertheless, Twining soon followed, and that case certainly did not use the incorporation doctrine of the 6th amendment to apply to states.
What happened in Gitlow (I am going to write more comprehensively on Gitlow in the next article on speech) is that the bill of rights on free speech was directly applied to the states. And in 1948 Sipuel v. Oklahoma Board of Education desegregated the Oklahoma law school. Prior to that there had been a small stream of cases that had come to the courts that had incorporated the bill of rights to minority groups. So Brown v. Board was not out of the blue overturning a precedent from 56 years prior.
The closest, to my knowledge may be West Virginia Board of Education v. Barnett. Not that there were no precedent in favor of Justice Jackson’s decision in WVBE v. Barnett. But three years prior in Minersville School District v. Gobitis, the court had established a precedent that teaching children patriotism could be a legitimately vital part of the educational process. Jackson himself consented in that opinion.
Afterwards West Virginia passed a bill that all schools, public and private, would be required to teach classes in civics, history, the constitution of the United States, and in the constitution of the state of West Virginia. All quite admirable, in fact all subjects I studied in schools, both in the overseas military schools and in the one year I attended school in Indiana (7th grade), I studied Indiana history and the Indiana constitution. The problem however was that all students would stand in the morning and as the flag of the United States was raised they would be required to salute the flag with an outstretched arm. And frankly, we still did that when I attended school from the late 50’s through the mid-60’s. But not in the year I was in indiana.
Of course Jehovah’s witnesses do not believe in saluting, actually they don’t believe in government authority, only in the authority of their god. Ironically for a religion that deny government authority they are exceedingly litigious and brought to us many of our landmark decisions that granted us our current views of freedom of speech and assembly. Well Barnette was another Witness case, because the children were taught not to salute the flag. So West Virginia decided this failure was reason for expulsion. And to compound it, the parents who did not send their children back to school instructed to obey the law and salute the flag could be fined and imprisoned if they failed to do so. It would seem an untenable violation of rights to most today. So to cut to the chase, there was an extremely legitimate common law reason that Justice Jackson gave for reversing a decision only three years old. Circumstances had altered. We were in the midst of WWII and Jackson had observed that the Nazis inspired allegiance through salutes and signs and refusal could be swift and unjust or result in death. Jackson looked at this, and he said, wait a minute, if people are forced into being patriotic unwillingly, and only because of threat of punishment, then there is no patriotism, but coercion, and a government by coercion is not a government of freedom, so if the 14th incorporates individual freedom then that freedom includes the right to be unpatriotic, or to show patriotism in other ways. In no way does he suggest this gives people the right to be seditious, only to be able to have a right to belief that may not conform to the general legal standards of patriotism. Jackson says everyone should be proud to be Americans but to imply there is only one way to be patriotic is to be totalitarian and he had observed this happening in the totalitarian states in Europe. So the circumstances had changed. Perhaps if we had not entered the war, Jackson would have never considered the consequences of “forced patriotism”, he and the four other judges who had agreed with him turned against the unanimous opinion in Minersville only three years earlier.
This should be how common law works. It looks at the precedents established and the circumstances of the case and, if circumstance dictates, it establishes new precedent, from very seldom overhauls precedents that have been established, but case by case moderates precedent to meet the continuing needs of the society.
It is progressive justice, but not liberal justice tied to specific issues of political understanding. Overhauling precedent entirely rates massive legal instability.
Part of the Reagan revolution was not just to transform the economy, but to transform the society, and something obscene occurred in this effort. I call it obscene because it is more vile than anything else I have ever seen occur. Reagan began looking for justices to fit a political ideology that preferred dismantling the common law. Yes, justices will always have personal ideologies. Felix Frankfurter adjudicated primarily as a civil law judge,always deferring to legislative law unless it was so outrageously egregious he couldn’t. He may have been a charitable man and he may have supported many socially liberal causes, but as a judge he would many times write I may not like the law, but it is the law, so I defer my judgment to the legislature. As a consequence he had a very difficult time relating to the other justices. It wasn’t conservative v. liberal. Byron White supposedly detested him and he was extremely conservative. John Harlan (grandson of the justice we talked of earlier who had introduced the concept of incorporation) thought he was almost always wrong, even if he agreed with Frankfurter’s result, he would write a separate opinion, hey, I agree with the conclusion, but Frankfurter I don’t agree with a word you said. And Harlan was a sort of a maverick, he didn’t seem to have political opinions in his decisions, but he relied on technicalities and individual cases, and often seemed to overrule himself, although he would point out the differences and why he wasn’t doing that. And boy oh boy did William O. Douglas hate him. Douglas was quite open in his indignation. Douglas the liberal, Harlan the maverick, White the conservative. But judges might be selected on certain political affinities with the president, certainly Hugo Black really did not have a lot of legal qualifications, if even said he had to learn a lot more law after his appointment, but he was appointed because he overall supported Roosevelt’s economic reforms. Okay. I agree the president would not likely support a judge who would be against him. But one of the reasons in support of lifetime tenure is that a judge can now be free to a certain degree because he makes his decision based on principles of common law. Or he should.
But Reagan began to seek judges not necessarily to support his legislative agenda, but who would move us away from common law and into a realm of social law, or decisions made to transform society. Judges who would not like at law from a principled perspective of common law justice, but look at law from a perspective that could transform social structures—mostly backward leaning in a way to use law to transform the government in a way to make certain social norms into codified permanency.
And now we have a court full (well not completely full) of judges who belong in the annals of medieval church courts because their rulings are neither common nor civil. This cannot stand, if we lose our common law, we seal our fate into a permanent oligarchy of the ridiculous notion that America is somehow divinely selected by God, as if we are the reincarnated chosen people and justice is dictated by the will of God.
Notes: There must be a way to prevent the current court’s egregious decisions and behavior. I’m going to throw out a few ideas. If any attract your attention, please throw them into the public sphere.
Any justice suspected of wrong-doing should be suspended until his name is cleared, or until he his removed and imprisoned. The suspension can be issued by executive order or appealing to a lower court. Because of the importance of the court to all Americans’ lives, the DOJ should be required to investigate all credible accusations
Any justice who can be linked to any decision he has been a part of and which he has participated without recusing himself should have such cases nulled out and reheard. And such failures to recuse should be made criminal with punishable imprisonment.
Citizens who have been harmed by the consequences of decisions like Heller and Roe should file civil cases against the decisions. State and lower courts have been sued so it’s not unique.
2nd Note: Concerning Matthew Hale, he was youngish during Charles I’s reign, but his posthumously published papers show he was chief judge because he crafted all of the main decisions that the courts handed down favoring Charles supremacy, but technically I lied.