About This Blog

Entries beginning with a number are a continuation of the old Judging Crimes blog, which was long focused on the two meanings of its name: the way crimes are judged in America, and the, uh... occasional defalcations and derelictions of the berobed.

Judging Crimes took a long hiatus for some of the reasons explained here.

Entries beginning with Book 'em! are book reviews and commentaries. No attention is paid to the imperatives of book marketing. As Calvin Trillin once pointed out, the average shelf life of a book in a bookstore falls somewhere between milk and yogurt, but in these days of long-tail online marketing that matters less to everyone, and I don't see why it should matter at all to reviewers. Most posts will be about books that have been around long past the time when yogurt would have solidified.

Other entries will be... well, I'm curious to find out what the others will be.

Powered by Squarespace
What's not to like?

Hit the "like" button on Facebook to be notified of mini-blog entries and new posts and columns.

Test Drive the Book!
« 193. Cod him up to the two eyes | Main | 191. Judicial timber »

192. Intellectual dishonesty double-header

From the Chicago Daily Law Bulletin of a couple months ago comes the report of a speech by Justice John Paul Stevens, the first Supreme Court justice to smile in his official portrait (well, I haven't actually gone back to check to make sure that no one did it before, but I can say honestly that I've never noticed any earlier smile):

U.S. Supreme Court Justice John Paul Stevens in a speech here Thursday explained his views on the "original intent" theory of constitutional interpretation. ...

"My own view about original intent," Stevens continued, "is that it's just as relevant in constitutional cases as legislative history" in other cases.

"A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent," Stevens said.

It all sounds pretty mild, doesn't it?  But what Stevens was saying was that there is no excuse for Justice Scalia's approach.  Scalia has always taken the position that the random words of individual members of Congress are not a reliable guide to congressional intent, but that the random words of individual members of the generation of the Founders are a reliable guide to the Founders' intent.  (See post 120.) 

That position has never made any sense as a logical matter, and it's utterly incompatible with any concept of the Constitution as a democratic document.  After all, the people, acting through their elected representatives, ratified the words on the page, not the cerebrations of all the mini-mes in wigs that Scalia keeps picking out of the famous painting.  (Back row, left to right: Antonin Scalia, delegate from Delaware; Antonin Scalia, South Carolina; Antonin Scalia, Massachusetts; Antonin Scalia, Rhode Island; [partially obscured] Antonin Scalia, New Hampshire.)  (See post 79.)

It's a shame that Stevens' tone was so polite and studiously non-personal that his scathing comment on Scalia's intellectual dishonesty went right over the head of the reporter.

But lest anyone think that John Paul Stevens is a paragon of intellectual honesty, consider his concurrence in this spring's Georgia v. Randolph.  He began with the same general point he made in his Chicago speech:

The study of history for the purpose of ascertaining the original understanding of constitutional provisions is much like the study of legislative history for the purpose of ascertaining the intent of the lawmakers who enact statutes. In both situations the facts uncovered by the study are usually relevant but not necessarily dispositive.

So far, so - well, "good" is too strong a word.  Not bad, perhaps.  But Stevens then goes on to add:

At least since 1604 it has been settled that in the absence of exigent circumstances, a government agent has no right to enter a "house" or "castle" unless authorized to do so by a valid warrant. See Semayne's Case, 5 Co. Rep. 91a, 77 Eng. Rep. 194 (K.B.). Every occupant of the home has a right--protected by the common law for centuries and by the Fourth Amendment since 1791--to refuse entry.

This is simply false.  You can read Coke's report of Semayne's Case here - scroll down to page 11.  (I can't think of a particularly good reason for accepting Coke as a reliable reporter, except that we don't have an alternative, but that's by the bye.)  Anyway, Semayne's Case dealt with the power of the sheriff to enter a house to seize property to satisfy a private debt prior to trial. 

The reference to a man's house being his castle, under point 1, referred to the property-owner's right to resist a burglar.  Point 2 said that the sheriff had the right to break into the house after judgment had been entered.  And point 3 said that the sheriff had the right to break into the house to capture a felon, because "the liberty or privilege of the house doth not hold against the king."  The sheriff should knock and announce first, but not because the householder had any right to deny entrance.  Rather, knocking was required because "the Law without default in the owner abhorre destruction or breaking of any house". 

Emphasizing that the chief restriction on the sheriff's powers was the protection of property, the case goes on to state, in its very wide-ranging dicta, that if the sheriff "break the house when he may enter without breaking it, (that is, on request, or if he may open the door without breaking) he is a trespasser".  The tort of trespass, of course, is all about protecting property.

The actual holding of Semayne's Case is that, when executing pre-judgment process in a suit between private parties, the sheriff should ask to have the goods delivered before breaking down the door.  The court was at pains to emphasize that its decision did not apply "when the process toucheth the King", a distinction based on "the express difference ... between the Case of felony, which (as hath been said) concerneth the Commonwealth, and the suit of any other subject, which is for the particular interest of the party".

Compare this to what Justice Stevens wrote about the case. 

But while the misrepresentation is, itself, a powerful argument against the use of history in judicial opinions - use and misuse, history and faux-history, are indistinguishable in a system based on argument by authority - Stevens' intellectual dishonesty goes much deeper than that.

The whole idea that English peasants had a right to resist the forces of the crown during the century or two before 1776 is, to use the technical term preferred by historians, laughable.  For example, long after Coke and Semayne were in their graves, the Saltpetre Men had the perfect right - indeed, a patriotic duty - to enter your lands and buildings at their discretion.  (See post 35.) 

If that example is too ludicrous for your taste, consider for a moment the purpose of "priest holes."  Semayne's Case is careful to say that the "house of any one is not a Castle or privilege but for himself, and shall not extend to protect any person who flieth to his house" - such as, say, Catholic priests.  And the Scottish Highlanders, and the Catholic Irish - are we to believe they had a right to exclude officers of the Crown?  Such as, say, Cumberland's troops when they entered Inverness?

And if a man's home was a castle, why couldn't he keep King George from "quartering large bodies of armed troops among us"?  The third amendment should be sufficient riposte to anyone who seriously thinks English law circa 1776 permitted private castellation.

And surely you remember your Hornblower and Aubrey and Maturin?  The business about press gangs?  Great Britain of the late 18th century was a country that didn't hesitate to enslave its own citizens, and the citizens of other nations, for that matter, to work on warships.  Or, as Jefferson put it, King George "has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands."

You should recall the press gangs every time you hear sentimental drivel about English law.  Whatever nice words might sometimes have been used in the rarefied air of the King's Bench - not, you'll notice, the people's bench - those words had essentially nothing to do with the day-to-day life of the lower class, which is to say, of 80% of the population

It's in this light that Semayne's Case has the greatest relevance to modern life.  How many modern judges would, if they could be sure the words would never reach the press, echo this key bit of its reasoning, only substituting "cops" for "bailiffs"?

And although the Sheriff be an Officer of great authority, and trust, yet it appeareth by experience, that the Kings Writs are executed by Bailiffs, persons of little or no value[.]


Reader Comments (8)

On the few issues were I have done any serious amount of historical research (basically, Fourth Amendment issues), it was clear to me that there was a conflict in the commonlaw jurisprudence itself. For lack of clearer way of making the distinction, the 17th century jurisprudence on what we would see as 4th Amendment and 1st Amendmanet issues had a clear "tory" and "whig" element to it. A proper hermanutic would have to take this into consideration. I have attached a rough draft of a motion I drafted on an Atwater Issue that shows something of what I think the proper approach would look like and the results it would entail.

Respondent relies upon Williamson v. United States (1908) 207 U.S. 425 for the proposition that “breach of the peace” embraced the whole range of crimes at common law. Williamson, a member of Congress, had been arrested, prosecuted, and convicted of perjury. He challenged the legality of his conviction on the ground that it violated the Arrest Clause of the Constitution which prohibited arrest of members of Congress “except for treason, felony, or breach of the peace”. See Article I, Section 6 of the Constitution. Justice White’s opinion for the Court rejected Williamson’s argument on the ground that “treason, felony, or breach of the peace” would have been understood to include any and all criminal offenses at the time of the framing. Williams, supra at 425.
White based that interpretation on the fact the Parliament of George the III had restricted that parliamentary privilege regarding arrest when, at the prompting of Lord Mansfield, it enacted a statute in 1770 that barred arrests of members of Parliament only in civil, but not criminal matters. White’s claim that the Framers meant to follow the 1770 statutes involved a remarkable series of interpretative errors.
First, White dismisses the most significant common-law authority on the issue, the 1763 case of Rex v. Wilkes, 2 Wils 151, 95 Eng. Rep. 737. , “[although Rex v. Wilkes] held that a member of Parliament was entitled to assert his privilege from arrest upon a charge of publishing a seditious libel, the court ruling that it was not a breach of the peace. But, as will hereafter appear, Parliament promptly disavowed any right to assert the privilege in such cases.” Williamson v. United States (1908) 207 U.S. 425, 438.
John Wilkes was a member of the Whig opposition in the House of Commons. In 1763 he authored a satirical article on a speech by the King’s representative. A Tory Secretary of State issued a general warrant ordering the king’s messengers to identify and seize the persons responsible. Davies, supra, 37 Wake Forest L. Rev. at 294, fn. 168. In that case, Chief Justice Charles Pratt (later Lord Camden), speaking for the unanimous bench had ruled that common law prohibited arrest of members of Parliament for offenses less than “actual” breaches of the peace. Rex v. Wilkes, supra.
There is no question that the Framers were familiar with Wilkes because it was the first in a series of cases (and one of the earliest published) in which Pratt (Lord Camden) condemned general warrants. Davies, supra, 37 Wake Forest L. Rev. at 295. The Framers familiarity with the Wilkes case is also noted at Atwater v. City of Lago Vista, supra, 532 U.S. at 332 fn. 6. The American Framers held Pratt (Lord Camden) in high esteem both for striking down the general warrant and for championing the American colonial cause in the House of Lords where he was instrumental in repeal of the hated Stamp Act of 1765. Davies, supra, 37 Wake Forest L. Rev. at 295 fn.172.
In 1768, after Wilkes was reelected to the House of Commons, the Tory Majority had him barred from taking his seat. Parliament’s exclusion of Wilkes, after he was reelected to Commons, dovetailed so nicely with American complaints about the unrepresentativeness and arbitrariness of Parliament that Wilkes’ exclusion became a cause among American as well as English Whigs. See Bernard Bailyn, The Ideological Origins of the American Revolution 110-12 (1967).
The 1770 statute which restricted the parliamentary privilege against arrest had arisen out from a Tory program to prevent Wilkes from taking his seat in the House of Commons. Because American Whigs perceived the treatment of Wilkes as a threat to the right to an elected, representative legislature, they had rallied to Wilkes’s cause prior to the Revolution when “Wilkes and Liberty” had become a popular Whig slogan on both sides of the Atlantic. Davies, supra, 37 Wake Forest L. Rev. at 296.
We can be confident that the American Framers would have rejected the goal of the 1770 statute, which was to give the government greater ability to use the criminal law and seditious libel against political dissidents. John Adams in particular identified Lord Mansfield, the author of the 1770 statue, as one of the junta of three English ministers plotting to deprive Massachusetts colonists of their rights. See Davies, supra, 37 Wake Forest L. Rev. at 296 fn 176. John Dickinson, a drafter of both the Articles of Confederation and the United States Constitution called Lord Mansfield one of those people “whose falsehoods and misrepresentations have enflamed the [American] people.” See Bernard Bailyn, The Ideological Origins of the American Revolution at 123.
Therefore, Justice White’s opinion can only be explained as being a result of a profound historical ignorance. Nowhere in the decision does Judge White make reference to any of the above history nor does he attempt to explain it. It is simply unthinkable that the Framers would have adopted the 1770 statute, written by their political opponents to chill political dissent, rather than a the 1763 Wilkes decision against general warrants.
Additionally, as a matter of Constitution construction and interpretation, Williamson v. United States entails that at Article I, Section 6 of the Constitution, the framers used the phrase “Treason, Felony and Breach of the Peace” to mean the same thing as the phrase “Trial of all crimes” used at Article III, Section 6 of the Constitution:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

If the Framers had meant to follow the English statute, surely they would have written “except for all crimes” or “except in criminal cases” or “only in civil matters” as the qualification to the Arrest Clause.
Finally, The United States Supreme Court evidently rejected this understanding of breach of peace less than twenty years later:
‘. . . . a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.’ [Halsbury’s Laws of England, vol. 9, part. III, 612]. The reason for arrest for misdemeanors without warrant at common law was promptly to suppress breaches of the peace (1 Stephen, History of Criminal Law, 193), while the reason for arrest without warrant on a reliable report of a felony was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant.
Carroll v. United States (1925) 267 US 132, 157, citing Rohan v. Sawin (1850) 59 Mass. 281.

November 6, 2006 | Unregistered Commenterme-mo
Thanks. Great stuff. Of course, Adams as President somewhat modified his views on free speech and political dissent ... It's a shame that most Americans known John Wilkes only because an actor was named after him. Any man who could charm Samuel Johnson and make an enemy of Hogarth was a force to be reckoned with.
November 7, 2006 | Registered CommenterJoel Jacobsen
This is the main reason I read www.joeljacobsen.com. Love the post.
March 7, 2010 | Unregistered CommenterJulianne
How do you do it, www.joeljacobsen.com?

March 14, 2010 | Unregistered CommenterMicheal
Incredibly great read! Truely!
May 26, 2010 | Unregistered CommenterAlicia Atwood
If only more people could read about this!
May 30, 2010 | Unregistered CommenterSonny Canales
Hehe I am literally the first comment to your amazing post?!?
May 31, 2010 | Unregistered CommenterSasha Dietz
freelance writer
July 28, 2011 | Unregistered CommenterElnoraAlvarez26

PostPost a New Comment

Enter your information below to add a new comment.

My response is on my own website »
Author Email (optional):
Author URL (optional):
All HTML will be escaped. Hyperlinks will be created for URLs automatically.