217. Little squires

In his speech against a proposal to suspend the New York Assembly in retaliation for the colonists' refusal to knuckle under to prior Parliamentary acts, Edmund Burke helped us visualize the fundamental absurdity:

And then after you have made this Law to enforce your last: you must make another to enforce that - and so on in the endless rotation of Vain and impotent Efforts - Every great act you make must be attended with a little act like a Squire to carry his Armour.  And the power and wisdom of Parliament will wander about, the ridicule of the world.

(I admit that I haven't read quite all of Burke's Parliamentary addresses ...  I have this from Conor Cruise O'Brien's masterful The Great Melody: A Thematic Biography of Edmund Burke.)

I was reminded of the little acts trotting after great acts this morning when I received e-mail notification of today's Supreme Court deci -  Well, opinions.   In one, the court informed the anxiously-waiting world that although it had granted certiorari to tidy up some business left over from 2006, it chose not to decide the case, after all. 

In another, it had granted certiorari to decide whether a technical violation of formalistic rules for drafting an indictment (formalities that have long since been discarded by most if not all state courts) could be "harmless error" - the weird doctrine that says that a judicial act can simultaneously be a violation of the fundamental law of the land and no big deal.  But, in another damp squib, the Court decided not to decide that question, either. 

What the two cases have in common is that both reflect further attempts by the Court to define, once and for all, what is an "element" of an offense - what is sometimes called, in a culinary metaphor that doesn't bear thinking about, an "ingredient" of a crime.  (Seconds, anyone?)  And, once again - no, twice again - the Court has found it can't do it.

Back in 1970, the Court declared that the "proof beyond a reasonable doubt" standard was constitutionally required.   No big deal in itself - everybody had been using that standard for centuries.  But then the question arose: what must be proved beyond a reasonable doubt?  Well, the elements of the crime, which the 1970 case (Winship) defined as "every fact necessary to constitute the crime with which [the defendant] is charged."  Okay.  But what are the facts necessary to constitute the crime?

The succeeding 37 years have seen a ridiculous number of opinions trying to answer that question.  One line of hair-splitting tried to figure out if there was any difference between "elements" and the rebuttal of defenses - after all, if the prosecution is required to prove that the defendant didn't kill his wife in self-defense, doesn't that mean that absence of self-defense is a "fact necessary to constitute the crime"?  (Answer: yes and no.)

How about sentencing?   What's the difference between being locked up because of facts establishing an element and being locked up because of facts establishing a sentencing factor?   If a judge tacks on an extra five years because the defendant mooned the bench during the sentencing hearing, doesn't that mean, in effect, that mooning has become an element of the offense?  (Answer: yes and no.)

There must be at least 15 little cases trotting along behind 1970's big case.  Like Parliament trying to discipline the Bostonians, the Supreme Court is obliged to spend time and energy trying to get its earlier act obeyed.  And that obliges it to spend even more time and energy getting the squire cases obeyed.  Anyone who pays attention to the Court must be struck by how often it returns to the same subjects - a habit that might call to mind an even more disagreeable gustatory metaphor.

Today's two little fiascos weren't the result of the Court trying to do justice, or decide important issues, but of the Court trying (and failing) to defend its own prestige, which it so foolishly put on the line in 1970.  The words Justice Brennan wrote back then might look good on paper, provided you're not allergic to his lilac-scented prose.  But the experience of the last 37 years might nudge a non-judge to the tentative conclusion that, all things considered, it's better to figure out what your grand declaration means before you make it.

Comments

[Tag Heuer Monaco / Monza replicas]

surdity:
http://www.replicasokay.com/tag-heuer-monaco-monza-replicas-523.html
And then after you have made this Law to enforce your last: you must make another to enforce that - and so on in the endless rotation of Vain and impotent Efforts - Every great act