Category: The American Constitution

Then there’s what you do with itThen there’s what you do with it

“A victory for the wrong reason is still a victory.” – Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit, 2014 ed.

So be carefulSo be careful

“A master is not justified in putting his tow to every test which she will survive, if she be fit. There is a zone in which proper caution will avoid putting her capacity to the proof; a coefficient of prudence that he should not disregard.” – Judge Learned Hand, The T. J. Hooper, Circuit Court of Appeals, Second Circuit, 1932

Some other timeSome other time

“The morning of the election I thought about what it means to vote for a woman. Voting for a woman felt like voting for respect, for tolerance, for justice, for peace, for empathy, for righteousness, for equality, for color, for movement, for understanding, for listening, for strength, for kindness, for hope, for openness, for braveness, for black lives, for gay rights, for emotion, for feeling, for spirit, for heart, for story, for making, for holding, for inclusivity, for love.” – Anna Dunn, “Lines of Resistance”

ProportionalityProportionality

“When a person exercises a common right, without negligence or malice, to render such action a nuisance, and therefore to hold the defendant liable, it must be such an act in itself as to be a nuisance to all or to a majority of the persons living in the neighborhood, and not simply, by exceptional circumstances, to one person.” – Supreme Judicial Court of Massachusetts, Rogers v. Elliott, 146 Mass. 349 (1888)

Not to mention the MAD yearsNot to mention the MAD years

“There had been a deep and unsubtle optimism among Americans. The Great Depression and Pearl Harbor created a different sensibility that suspected that prosperity and security were an illusion, with disaster lurking behind them. There was a fear that everything could suddenly go wrong, horribly so, and that people who simply accepted peace and prosperity at face value were naïve. The two shocks created a dark sense of foreboding that undergirds American society to this day.” – George Friedman, “World War II and the Origins of American Unease”

Not so clever by halfNot so clever by half

“If there is a choice in explaining a government action between a Machiavellian, clever, ingenious plot to achieve that result and sort of blind, bumbling, well-meant incompetence, choose number two all the time.” – Admiral Dennis Blair, Director of National Intelligence (interviewed by Kathy Gilsinan in The Atlantic)

DistillationDistillation

“When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion, or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth ‘may be a government of laws and not of men.’ For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” – United States Supreme Court, Wo v. Hopkins

For those keeping trackFor those keeping track

“The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.” – United States Supreme Court, Wo v. Hopkins

The thousand points of lightThe thousand points of light

“The hope of mankind does not lie in the action of any corporate body, be it ever so powerful, but in the influence of individual men and women who for the sake of a greater have sacrificed a lesser aim.” – Kenneth Walker, Diagnosis of Man

Away all boarding partiesAway all boarding parties

“In the Year of Our Lord 1682

To ye aged and beloved, Mr. John Higginson:

There be now at sea a ship called Welcome, which has on board 100 or more of the heretics and malignants called Quakers, with W. Penn, who is the chief scamp, at the head of them. The General Court has accordingly given sacred orders to Master Malachi Huscott, of the brig Porpoise, to waylay the said Welcome slyly as near the Cape of Cod as may be, and make captive the said Penn and his ungodly crew, so that the Lord may be glorified and not mocked on the soil of this new country with the heathen worship of these people. Much spoil can be made of selling the whole lot to Barbadoes, where slaves fetch good prices in rum and sugar and we shall not only do the Lord great good by punishing the wicked, but we shall make great good for His Minister and people.

Yours in the bowels of Christ,
Cotton Mather”

– quoted by Dr. Karl Menninger in Love Against Hate

The long way downThe long way down

“America has no real alternative to continuing imperial decline: the big questions are simply how fast and how peacefully. The problem is that the arms industries will fund any and every Presidential candidate and, whoever wins, those industries will demand to be fed. It is unclear, though, whether Americans at large are willing to accept the sacrifices this may entail. As the American debt grows, the choice will become stark: paying off the debt—or, mare realistically, never paying more than the interest on the debt—will require either large tax increases, or a deep recession, or a huge inflation. The American public will vote for inflation as the least painful solution: somewhere out there in the years to come there is a giant inflation of almost Weimar proportions waiting to happen. But the banks will hate that, as will virtually all the other business interests (including the arms manufacturers) who are full voting members of the American democracy.” – E. G. Johnson, Heroes and Villains

Not just another wordNot just another word

“What is free speech supposed to be free from? Political and legal restrictions, presumably. But commercial fraud, libel, perjury, declaiming in a stranger’s living room, and shouting ‘Fire!’ in a crowded theater are all uncontroversially restricted forms of speech, whose boundaries are nevertheless sometimes contested. Those contests are resolved—and hence the boundaries of ‘free’ speech are determined—legally and politically: not once and for all, through metaphysical discovery, but contingently and revisably, through democratic deliberation.” – George Scialabba, “There’s No Such Thing as Free Speech”

NewsmakersNewsmakers

“There is a schizophrenia about the power of the press. At times, we still think of it as an objective bystander, narrating events—and many of its leading practitioners portray it this way. In American democracy, however, the press is part of the policy process. As Washington reporters from top newspapers and the networks know well, their personal ability to move the wheels of government equals that of almost anyone in the stone and concrete piles that line Pennsylvania and Independence Avenues. The physicist Werner Heisenberg famously noted that observation changes matter at the subatomic level; it does so every bit as much at the political level.” – Daniel Benjamin and Steven Simon, The Age of Sacred Terror

Not all it’s cracked up to beNot all it’s cracked up to be

“There are few more durable illusions in American life than the omnipotent presidency. For fear of appearing weak, incumbents rarely draw attention to the minimal powers accorded them by the Constitution and established practices of American government. Their critics in Congress and the public avoid mentioning this inconvenient fact because letting the executive off the hook never serves their purposes. Yet anyone who has worked in the White House knows that the office has remarkably little real power, not only when it comes to dealing with Congress and the judiciary but also in running the vast, unwieldy contraption that is the executive branch. A President relies on the loyalty of his appointees in the agencies to overcome the inertia and ingrained predilections of civil servants and the uniform military.” – Daniel Benjamin and Steven Simon, The Age of Sacred Terror

Looks like we’re finding outLooks like we’re finding out

“Let Us take Warning and give it to our Children. Whenever Vanity, and Gaiety, a Love of Pomp and Dress, Furniture, Equipage, Buildings, great Company, expensive Diversions, and elegant Entertainments get the better of the Principles and Judgments of Men or Women there is no knowing where they will stop, nor into what Evils, natural, moral, or political, they lead us.”  – John Adams, letter to Abigail Adams, April 14, 1776

Though they may be able to exploitThough they may be able to exploit

“Credulity and the Want of Foresight, are Imperfections in the human Character, that no Politician can sufficiently guard against.” – John Adams, letter to Abigail Adams, April 14, 1776

Remember the LadiesRemember the Ladies

“In the new Code of Laws which I suppose it will be necessary for you to make I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If perticuliar care and attention is not paid to the Ladies we are determined to foment a Rebellion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation. That your Sex are Naturally Tyrannical is a Truth so thoroughly established as to admit of no dispute, but such of you as wish to be happy willingly give up the harsh title of Master for the more tender and endearing one of Friend. Why then, not put it out of the power of the vicious and the Lawless to use us with cruelty and indignity with impunity. Men of Sense in all Ages abhor those customs which treat us only as the vassals of your Sex. Regard us then as Beings placed by providence under your protection and in imitation of the Supreme Being make use of that power only for our happiness.” – Abigail Adams, letter to John Adams, March 31, 1776

As heavy as all thatAs heavy as all that

“The Declaration of Independence was written with a feather.” – Dean Young, “Believe in Magic?”

And this is why the Internet is freeAnd this is why the Internet is free

“Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers, from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.” – Justice Field, In re Pacific Railway Commission, 32 Fed. 241

Busybodies on the government payrollBusybodies on the government payroll

“Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” – Justice Louis Brandeis, Olmsted v. United States, 277 U.S. 438 (1928)

Catch it if you canCatch it if you can

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” – Justice Louis Brandeis, Olmsted v. United States, 277 U.S. 438 (1928)

Free speech is your right, if you dareFree speech is your right, if you dare

“The limits on defamation actions for statements made about public figures exist because of concerns for free speech. False statements are bound to be made in the course of vigorous public debate. One of the prerogatives of American citizenship is the right to criticize public men and measures. Such criticism, inevitably, will not always be reasoned or moderate; public figures will be subject to vehement, caustic, and sometimes unpleasantly sharp attacks. While false assertions have little value, imposing liability for all false statements relating to public figures would have a chilling effect on speech about public figures, and freedoms of expression require breathing room. Without limitations on defamation actions, destructive self-censorship would occur limiting free speech. Given the importance of the free and open exchange of ideas, a public figure is prohibited from recovering damages for defamatory criticism unless there is clear and convincing evidence the defamatory statement was made with actual malice.” – Justice Crothers, Riemers v. Mahar (internal quotes and citations omitted)

And the trial is life (that’s also the sentence)And the trial is life (that’s also the sentence)

“I am guilty of the most serious crimes you can be guilty of in America: I was born poor and black” – Ralph Poynter (as quoted by Jean Stevens in “In Defense Of”)

Unintelligible in any languageUnintelligible in any language

“The minute you read something and you can’t understand it, you can almost be sure that it was drawn up by a lawyer. Then if you give it to another lawyer to read and he don’t know just what it means, why then you can be sure it was drawn up by a lawyer.” – Will Rogers (as quoted by Judge Mark P. Painter in “Legal Writing 201”)

Assuming that’s its purposeAssuming that’s its purpose

“A litigation system must be workable. It does little to advance underlying policy goals to have a system that is too complex for trial courts and jurors—who in the last analysis are linchpins in our litigation system—to implement.” – Kenneth S. Abraham and Albert Clark Tate, Jr., compilers, A Concise Restatement of Torts

No citations to brickbatsNo citations to brickbats

“Self-help may be resorted to, not only to reveal the falsity of the defamatory statement and to vindicate the reputation, but also to punish the defamer and retaliate against him. In earlier times the principal method of this type of self-help was the clan or blood feud. It was supplanted for a time by the challenge to a duel or the horsewhip. One of the primary reasons for developing the tort law of defamation was to induce the defamed person to resort to the courts for relief instead of wreaking his own vengeance.” – Kenneth S. Abraham and Albert Clark Tate, Jr., compilers, A Concise Restatement of Torts

In my profession, we call it ‘extortion by lawsuit’In my profession, we call it ‘extortion by lawsuit’

“Defamation actions have not infrequently been brought—or jury verdicts have been rendered, irrespective of the plaintiff’s motivation in bringing the action—not to compensate for actual pecuniary loss or to vindicate the plaintiff, but instead to cudgel the defendant and to mulct him for substantial damages that may be like a windfall to the plaintiff.” – Kenneth S. Abraham and Albert Clark Tate, Jr., compilers, A Concise Restatement of Torts

And it’s not cricketAnd it’s not cricket

“Conduct calculated to intimidate and distract those who, though in an adversarial position, have independent responsibilities and important roles in the effective administration of justice cannot be countenanced. The adversary system depends on the effectiveness of adversary counsel. Our rules of procedure are designed in large measure to bring to litigation adversaries who have an equal opportunity and comparable ability in the representation of opposing parties in order to assure a just result. Thus, the undue and extraneous oppression and harassment of participants involved in litigation can impair their effectiveness, not only as advocates for their clients, but also as officers of the court. An attorney who consciously and intentionally engages in such conduct perverts advocacy. Such conduct redounds only to the detriment of the proper administration of justice, which depends vitally on the reasonable balance between adversaries and on opposing counsels’ respect, trust, and knowledge of the adversary system. There cannot be genuine respect of the adversary system without respect for the adversary, and disrespect for the adversary system bespeaks disrespect for the court and the proper administration of justice.” – The Justices of the Supreme Court of the State of New Jersey, In the Matter of Lester T. Vincenti, An Attorney at Law.

Remaining within the four cornersRemaining within the four corners

“The authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms. Not all extrinsic materials are reliable sources of insight into legislative understandings, however, and legislative history in particular is vulnerable to two serious criticisms. First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise in ‘ “looking over a crowd and picking out your friends.” ‘ Second, judicial reliance on legislative materials like committee reports, which are not themselves subject to the requirements of Article I, may give unrepresentative committee members—or, worse yet, unelected staffers and lobbyists—both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text.” – Justice Anthony Kennedy, Exxon Mobil Corp. v. Allapattah Services, Inc. (545 U.S. 546, 568 (2005); internal citations omitted)

Not just another lawyerNot just another lawyer

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” – Justice George Sutherland, Berger v. United States, 295 U.S. 78 (1935)