About This Blog

Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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« 36. Royalty | Main | 34. Criminal Statistics »
Sunday
Jan012006

35. History as Practiced by Lawyers (part 2)

A friend of mine claims his ambition is to be recognized as the nation's leading third amendment lawyer.  The third amendment is the one that says: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."  The next time you run across a judge claiming that English law treated a man's home as his castle (see post 30), remember the little detail of the soldier sleeping in the castle's best bed (like the 800 lb. gorilla, the young man with the gun gets to sleep wherever he wants to), eating the best food, and inviting his cronies over for parties in the castle's keep.  And remember that the Founders (whoever they were) thought it was just fine for Congress to move heavily-armed young men with buzz cuts into your house, so long as it was "in a manner ... prescribed by law" during wartime.

For a particularly vivid account of what it means to quarter soldiers on civilians, check out Julian Barnes' short story "Dragons" in the collection Cross Channel.

It's sentimental, at best, to believe that a commoner in pre-1776 England had any right to resist the intrusions of the King's government, or for that matter the thundering of the local gentry's fox hunt over his fields.  Christopher Hibbert's Cavaliers and Roundheads tells us a bit about the castle-like sanctity of the Englishman's home in the years immediately before the Civil War:

[S]altpetre, an essential ingredient [of gunpowder], was never in large supply.  It had been a royal monopoly before the war; and, since it was a byproduct of bird droppings and human urine, government officials had authority to enter any properties they chose to dig in henhouses and privies.  In 1638 'saltpetre men', as they were known, had sought permission to extend their activities to the floors of churches, 'because women pisse in their seats which causes excellent saltpetre'.

For more about the Saltpetre Men, here's some commentary from the Victorian era.

AuthorJoel Jacobsen | CommentPost a Comment | | |
DateSunday, January 1, 2006 at 01:17PM in

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