The Guardianship of a Woman, Part III: The Origins of Guardianship For Women

[The Guardianship of a Woman FULL ARTICLE PDF here (link stays on-site)]

 

The Origins of Guardianship for Women

 

But my heart is saddened inside every time that I think about the world that I live in; about those who would ever want to take that love and that protection away from me. Who is to say that our ancestors were wrong and that we are somehow right today? And will the future generations that succeed us believe that we were right and “enlightened” and “forward-thinking,” or will they look upon what we have done, what we have allowed, with horror and be scandalized?

The roots of guardianship for women are ancient. Among the Romans a woman initially entered into what was called manus marriage, where she left her father’s household and came under the manus, or control and power, of her husband. Scholars apparently do not know much about this form of marriage, which was already becoming obsolete (perhaps even “barbaric,” “crude,” and- dare someone say- “misogynistic?”) by the time of Rome’s classical period (the height of the empire before its decline and fall). As Bruce W. Frier and Thomas A.J. MgGinn relate:

The older form of Roman marriage involved the subjection of the wife to the control (manus) of her husband. This form of marriage was fast becoming obsolete already by the beginning of the classical period of Roman private law, and accordingly we know less about it than we would like…

One of the most remarkable features of Roman family law is that the Romans went through a transition from an archaic form of marriage featuring the wife’s legal subjection to her husband to a form of marriage resting almost entirely upon voluntary cooperation between the spouses, without, as it seems, passing through any intermediate stage.[12]

After the decline of manus marriage, Roman marriage began to look very much like the practice of the Western world in modern times, with marriages becoming highly unstable with a complete separation of husband and wife in all areas of life, sometimes to very sad and devastating outcomes.

Still in antiquity, guardianship of women is to be found even in Mosaic law. Women held a very high status as wives and mothers in the “Old Testament,” and Mosaic law placed women under the protection and guardianship of their husbands and fathers. In the “Old Testament” of the Bible, Numbers 30 relates that a father or husband may void any vows that a daughter or a wife makes unto the Lord. This is somewhat reminiscent of coverture under the traditional English and American common-law where a woman could not enter and bind herself in any contract without the express consent of her husband (and who in a lawsuit had to be the plaintiff or defendant in any suit initiated by or against the wife).

And Moses spoke unto the heads of the tribes concerning the children of Israel, saying, This is the thing which the Lord hath commanded.

If a man vow a vow unto the Lord, or swear an oath to bind his soul with a bond; he shall not break his word, he shall do according to all that proceedeth out of his mouth.

If a woman also vow a vow unto the Lord, and bind herself by a bond, being in her father’s house in her youth;

And her father hear her vow, and her bond wherewith she hath bound her soul, and her father shall hold his peace at her: then all her vows shall stand, and every bond wherewith she hath bound her soul shall stand

Bur if her father disallow her in the day that he heareth; not any of her vows, or of her bonds wherewith she hath bound her soul, shall stand: and the Lord shall forgive her, because her father disallowed her.

And if she had at all a husband, when she vowed, or uttered ought out of her lips, wherewith she bound her soul;

And her husband heard it, and held his peace at her in the day that he heard it: then her vows shall stand, and her bonds wherewith she bound her soul shall stand.

But if her husband disallowed her on the day that he heard it; then he shall make her vow which she vowed, and that which she uttered with her lips, wherewith she bound her soul, of none effect: and the Lord shall forgive her.

But every vow of a widow, and of her that is divorced, wherewith they have bound their souls, shall stand against her.

And if she vowed in her husband’s house, or bound her soul by a bond with an oath;

And her husband heard it, and held his peace at her, and disallowed her not: then all her vows shall stand, and every bond wherewith she bound her soul shall stand.

But if her husband hath utterly made them void on the day he heard them; then whatsoever proceeded out of her lips concerning her vows, or concerning the bond of her soul, shall not stand: her husband hath made them void; and the Lord shall forgive her

Every vow, and every binding oath to afflict the soul, her husband may establish it, or her husband may make it void.

But if her husband altogether hold his peace at her from day to day; then he establisheth all her vows, or all her bonds, which are upon her: he confirmeth them, because he held his pace at her in the day that he heard them.

But if he shall any ways make them void after that he hath heard them; then he shall bear her iniquity

These are the statutes, which the Lord commanded Moses, between a man and his wife, between the father and his daughter, being yet in her youth in her father’s house.[13]

Coming to our own history, the very word “wedding” itself has its roots in one of the most ancient forms of contract consisting of the transfer of a woman’s guardianship from her birth family to her husband:

In order to conclude a contract Anglo-Saxon law required numerous external acts, and several of these survived for many centuries. First of all there was the wed, which after the Norman Conquest was called a gage, and consisted of a valuable object which was delivered by the promisor either to the promisee himself or to a third party as security for carrying out the contract…

The occasions upon which it became necessary to contract during the Anglo-Saxon age were mainly of two types. In the first place the solemn ceremonies by which a betrothal was effected were essentially contractual, for the betrothal was in effect a contract for a sale. The Anglo-Saxon marriage on its civil side (which was independent of the Church’s sacramental views) still consisted of the sale by the woman’s kinsfolk of the jurisdiction or guardianship over her (which they called mund) to the prospective husband. Even after this ceased to be a strictly commercial transaction, betrothal and marriage ceremonies retained a good many survivals of the older order- Maitland has described the marriage forms of the Church of England as “a remarkable cabinet of legal antiquities,” and the Episcopal Church of America has also retained most of them. The betrothal was effected by the delivery of a wed and thus became a “wedding,” that is to say, the conclusion of a contract for a future marriage.[14]

The roots of marriage forming a type of guardianship over a woman are ancient, then. Are we supposed to say that our way is any better? Are we happier? Are men, women and children prospering, happier, less suicidal, less depressed, less anxious, less lonely than our ancestors? Are we truly to say that it is better to take a woman away from the love and protection and guardianship of a man who is yet sworn to provide for and protect her- and her alone- for a lifetime, forsaking all others and whatever they may say or do in the process?  What woman could not look upon the writings of Blackstone and the writings of the ancients, learned and knowledgeable in the law, and not feel some sort of deep desire, longing, and stirring within her heart at the love and deep passion that being one- physically, legally- spiritually perhaps- if one wishes to carry it that far- with a man that she loves?

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for that grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage. A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them he is obliged to pay them; but, for anything besides necessaries, he is not chargeable. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries; at least if the person, who furnishes them, is sufficiently apprized of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant.[15]

She is covered, protected, cherished by him. What greater love can there be on this earth? What woman, secure in her femininity, does not dream of such lasting love? To take her out of that love, that protection, that civil disability where she is under the guardianship of her husband, then husband and wife lead a separate existence. Marriage is then rendered either unstable or, as is the way in the modern era, near obsolete.


 

[12] Bruce W. Frier & Thomas A.J. McGinn, A Casebook on Roman Family Law (New York, 2004), p. 88. See also ibid., pp. 89-94, cases 37-40 for specific cases regarding a wife’s status under Roman manus marriage regarding property, succession and divorce.

[13] Numbers 30:1-16 (King James).

[14] Plucknett, A Concise History of the Common Law, pp. 628-29.

[15] Blackstone, Commentaries on the Laws of England Book the First, pp. 442-43.

The Guardianship of a Woman, Part II: One In The Law

[The Guardianship of a Woman FULL ARTICLE PDF here (link stays on-site)]

 

One in the Law

 

But if you want to know what it is that a woman thinks and feels, then ask a real flesh-and-blood woman what she really feels inside, what she really desires, really needs. If I obey him and submit to him it’s because I love him, trust him, believe in him and need him to provide for and protect me. Our earliest laws and oldest legal precedents back up the assumption that husband and wife are to be one flesh, one in the law. Indeed, the common-law made a woman civilly dead whenever she entered into marriage with a man. He was to be her everything in life, in law. She could not contract then without his consent, sue or be sued, nor own and control anything separately from her husband unless special provisions were made via trust or, in specific circumstances, equity[3].

 

The legal term for the status of married women was “coverture,” which meant that wives were “covered” by their husbands in all areas of life, especially the control of property. With few exceptions, husbands could buy and sell property of any kind, real or personal, without the wife’s permission. In turn, wives could rely on courts to force husbands to provide them with the necessities of food, clothing, and shelter.[4]

 

Chancellor James Kent of New York, Writing in Volume II of his Commentaries on American Law, described the common-law doctrine of coverture as it had been carried over into our earliest American law (largely unaltered) as such:

 

The husband is bound to provide his wife with necessaries suitable to her situation, and his condition in life; and if she contracts debts due for them during cohabitation, he is obliged to pay those debts; but for anything beyond necessaries he is not chargeable. He is bound by her contracts for ordinary purchases, from a presumed assent on his part; but if his dissent be previously made known, the presumption of his assent is rebutted, and it is said he is not liable, though the better opinion would seem to be, that he may still be liable; though the seller would be obliged to show, at least, the absolute necessity of the purchase for her comfort.[5]

 

Chancellor Kent goes on to further make clear that it is the marriage that makes the husband liable, as it is his duty as a husband, not a debtor, to provide for his wife and maintain her:

 

But Lord Talbot said, that nothing less than an act of parliament could alter the law; and the rule was fixed, that the husband was liable to the wife’s debts only during the coverture…The husband is liable, not as the debtor, but as the husband. It is still the debt of the wife, and if she survive her husband, she continues personally liable.[6]

 

And if the husband refuses to provide for his wife? Kent states that the laws suggest he may still be liable. If he cannot be charged, then the wife had grounds for a divorce a mensa et thoro, where the court would then order the husband to pay her a fixed maintenance.[7] Blackstone described it thus:

 

In case of divorce a mensa et thoro, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of her husband’s estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law de estoveriis habendis, in order to recover it. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony.[8]

 

In book three of his Commentaries on the Laws of England, Blackstone states:

 

…The last species of matrimonial abuses is a consequence drawn from one of the species of divorce, that a mensa et thoro; which is the suit for alimony, a term which signifies maintenance: which suit the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is an injury to the wife, and the court christian will redress it by assigning her a competent maintenance, and compelling the husband by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce of adultery on her part; for as that amounts to a forfeiture of her dower after his death, it is also a sufficient reason why she should not be partaker of his estate when living.[9]

 

There have never been ecclesiastical courts in America as in England, but the common-law generally followed the same course. Alimony was to enforce the husband’s duty to provide for his wife as if the marriage still continued, provided she was not guilty of wrong-doing. Nor could the law dictate how the husband would provide for her nor how he would head his family unless suit was brought against him for wrong-doing. Therefore, alimony might sometimes have been her only remedy if the husband breached his part of the contract of marriage and refused to provide for her.

 

…But as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority over her person…the husband is the best judge of the wants of the family and the means of supplying them, and if he shifts his domicile, the wife is bound to follow him wherever he chooses to go…If the husband abandons his wife, or they separate by consent, without any provision for her maintenance, or if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. But if the wife elopes, though it be not with an adulterer, he is not chargeable even for necessaries. The very fact of the elopement and separation, is sufficient to put persons on inquiry, and whoever gives the wife credit afterwards, gives it at his peril. The husband is not liable unless he receives his wife back again. The duties of the wife, while cohabiting with her husband, form the consideration of his liability. He is, accordingly, bound to provide for her in his family and while he is not guilty of any cruelty, and is willing to provide her a home, and all reasonable necessaries there, he is not bound to furnish them elsewhere. All persons supplying the food, lodging and raiment, of a married woman, living separate from her husband, are bound to make inquiries, and they give credit at their peril.[10]

 

Though it has been considered as “progress” and “modern” to do away with coverture– and indeed all legal sex distinctions and “stereotypes”- the legal fiction of husband and wife as one person in law- a doctrine perhaps as old as the common law itself[11]– should have never been disturbed by the courts or legislatures.


 

[3] See James Kent, Commentaries on American Law, Volume II, Third Edition (New York, 1827), pp. 149-54 for a wife’s capacity to own, control, or convey property as if she were femme sole (a single woman).

[4] Peter Irons, A People’s History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped our Constitution (Penguin, 2006), p. 11.

[5] James Kent, Commentaries on American Law, Volume II, Third Edition, p. 146.

[6] Ibid., p. 145.

[7] See Ibid., p. 148, n. a: “Houliston v Smyth, 3 Bingham’s Rep. 127. “In this case the court considered the law to be, that if a man rendered his house unfit for a modest woman to continue in it, or if the wife had reasonable ground to apprehend personal violence, she was justified in quitting it, and the husband would be liable for necessaries furnished for her support.”; “The husband is bound to provide his wife with necessaries, when she is not in fault, from a principle of duty and justice; and the duty will raise an assumpsit independent of his consent, and when no consent can be inferred, as in the case of a refusal on his part to provide her with necessaries. If he turns her out of doors, and forbids all mankind from supplying her with necessaries, or if she receive such treatment as affords a reasonable cause for her to depart from his house, and refuse to cohabit with him, yet he will be bound to fulfill her contracts for necessaries, suitable to her circumstances, and those of her husband.” Ibid., pp. 147-48

[8] William Blackstone, Commentaries on the Laws of England. Book the First, Third Edition (Oxford, 1765), pp. 441-42.

[9] William Blackstone, Commentaries on the Laws of England Volume 3 (Chicago, 1979), pp. 94-95.

[10] Kent, Commentaries on American Law Volume II, pp.145-46. Apparently, the opinion of the judges was that if the wife returns yet the husband refuses to receive her, he is liable.

[11] “The common law was the custom of the King’s Court, and an outgrowth of feudal conditions…but it is only in the local custom of numerous cities towns and villages that we can see how different the life of the ordinary people was. In these customs, for example, we find that the position of the married woman was very different from that which the common law assigned her, the complete merging of personality being obviously out of harmony with bourgeois habits. Local customs frequently keep the woman’s property free from her husband’s control, accord her liberty of contract (which was denied at common law), and even allow her to trade separately upon her own account. The extent of these local customs is hardly known. Many custumals have survived, but many others have not…by the merest chance an example of this recently came to light. In defence to an action of account in 1389, it was pleaded that by the custom of the little village of Selby in Yorkshire a husband was not liable for the commitments of his wife incurred in the course of her separate trading…the common law, even so late as 1389, did not extend to all persons and places…there was an incalculably large mass of customary law involving very different principles in numerous different communities of which we only know a fraction.” Plucknett, A Concise History of the Common Law, pp. 313-14.

This passage goes to show that the legal fiction of husband and wife as one in law went back for centuries, but also that many times the principles of coverture did not extend, therefore there is no basis in history for truthfully asserting that women- even married women- could never own or control their own property or earnings.; For the origins of the common law, see generally Arthur R. Hogue, Origins of the Common Law (Indianapolis, 1966).

The Guardianship of a Woman, Part I: Introduction

[The Guardianship of a Woman FULL ARTICLE PDF here (link stays on-site)]

 

A legal history is not perhaps the place to make suggestions as to the law of the future. It is concerned with the past. But if history is to be something more than mere antiquarianism, it should be able to originate suggestions as to the best way in which reforms in the law might be carried out so as to make it conform with present needs.[1]

 

 

 

Introduction

 

I was told one time by my own mother that, “No one will ever care about you the way your mother does” when I was once going through a hard time in this life. We are told of things such as “blood is thicker than water” and mainstream culture is full of anything that would lead us away from true intimacy, true lasting marriage, true monogamy…anything that would take us outside of the mainstream, away from popular culture, away from friends and the ways of the world and place one man and one woman together for a lifetime.

Far beyond my own personal feelings on this matter, the ways of our ancestors and even oftentimes the laws[2] down to the present will back up the foregoing assertion, that there is no one that will ever love you like your husband; that marriage means forsaking all others and letting their influence fade away into the background as nothing more than idle chatter. Assuming his love is true and good, assuming he has proven what he says, made good on all his promises, there is no deeper intimacy.

Trust me when I say from deep inside of my heart and soul that my relatives don’t matter to me. No one else can cherish me, love me, provide for me the way that he does. My heart inside thinks of the millions of ways that others have tried to break us up, yet my heart inside turned away from those who would look down at me, wish to hurt me. I remember it was well over a decade now, when I told him “You’re going to marry me.”  I could care less about all others, could care less about the ever-shifting tides of public opinion. I have studied far too many epochs of human history to know that what is dissent and heresy one day often becomes, in time, commonly accepted mainstream dogma. Even law students are routinely told to read dissenting opinions, as dissent, in time, often becomes majority opinion.

———————————————-

 

[1] Holdsworth, Quoted in Theodore F.T. Plucknett, A Concise History of the Common Law (Indianapolis, 2010), p. 655.

[2] Consider the circumstance that privileged communications are not favored in the law, and that any privileged communications between parent and child (or that of any other blood relatives) have no basis in historical precedent, are a recent development perhaps recognized by no more than five jurisdictions in the United States, and were not even among the nine proposed testimonial privileges for the 1972 proposed rules of evidence. See Norman M. Garland, Criminal Evidence, Seventh Edition (New York, 2015), pp. 86-93.

Shift to the Right: (Part 3 of 3): The Ordinary Citizen, Popular Culture, and the Enforcement of the Law/Outro

(PDF of full article here)

 

The Ordinary Citizen, Popular Culture, and the Enforcement of the Law

More than mere words on a paper, does a law on the books do any good if it lays dormant? As the nation turns its eyes to the highest tribunal, both sides hoping to garner just that one vote to tip the scales in their parties’ favor, perhaps history can shed some light on the realities of life. Before the Civil War, the entire nation, ripped apart and split in two on the issue of slavery, turned its eyes to the Supreme Court to settle the pressing issue of the day once and for all. Still reeling from Worcester v Georgia[xxxiv], after which incident president Andrew Jackson is reported to have said, “The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate,”[xxxv] the Supreme Court adopted what was known as Judicial Restraint for many years to come.

Yet when the pressure mounted on the Supreme Court to decide the decisive vote on the hot issue of slavery, the Court finally decided the infamous case of Dred Scott v Sandford[xxxvi], causing an uproar throughout the nation, further splitting apart an already divided nation and ultimately leading to civil war. Much as today’s politicians talk about Court decisions being “settled law,” even Abraham Lincoln, months before Dred Scott was handed down, had stated that “the Supreme Court [is] the body charged with deciding the issue of slavery in the territories and that ‘we will submit to its decisions; and if you do also, there will be an end to the matter.’”[xxxvii] In reality, however, this was not to be as even Lincoln himself soon changed his tune on the matter.

After the Civil War, Radical Republicans took control over Congress, passing the Reconstruction Amendments (Amendments that president Andrew Johnson waged a massive campaign against), Enforcement Acts and various Civil Rights Acts. Yet, ultimately, the presidential administrations of the era refused to enforce the legislation, refusing to intervene to stop the corruption and violence that ran rampant; the states and their judges (voted in by the people) refused to comply, and the Amendments and subsequent legislation by Congress quickly lay dormant and unenforceable. Since abortion is the hot-button issue of the day that is tearing this nation apart, it is worthwhile to look into the hearts of the nation’s citizens and learn from human history as to how this story will play out. Is abortion about the regulation of morality- sexual or religious? But even setting aside the blatant Unconstitutionality of the latter, can a state use its police powers to effectively govern morality when the overall culture is vulgar and promiscuous and where “anything goes?” Absent widespread social change (possibly even revolution), the short answer to this question is likely to be a resounding “no.”

If the Civil War represented an appeal from law to the sword, that was true because the opposing extremes no longer accepted the underlying premises of the legal order. Americans too often forget that the rule of law draws only limited strength from judicial guaranties; it must have roots far deeper than a formal fundamental document and decisions of the judges enforcing it. Our public law depends for its efficacy on popular acceptance of its basic presuppositions. Acceptance, rather than formal legal machinery, is the decisive force in the law’s implementation, with Learned Hand in a famous passage we may ‘wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes, believe me, these are false hopes.’[xxxviii]

No act of the legislature nor decision by the Supreme Court is likely to ever lay the issue of abortion to rest any more than the issues of slavery or racism were ever laid to rest by words on a piece of paper. Only getting straight to the heart of the real issues at play and a true reconsideration of the role of women in society and the family is ever likely to lay such an issue to rest, much the same as the issue of racism and segregation (though still not entirely eliminated among ordinary citizens in society at large) could never be laid to rest without a thorough re-examination of the status of African-Americans as citizens and an acknowledgement by the people of the nation of their position in society and the law as equals to the heretofore dominant Caucasian race. Couched as pro-choice activism is in society’s belief in women’s equality, society can never even begin to move past this issue without a thorough re-examining and reconsideration of the entire premise of feminism from its very roots.

And it must be remembered that what controls women will also control men. All too often it is the male who pressures the woman he has been sleeping with/having an affair with into obtaining an abortion (often offering up the funds to pay for it as well) because the male does not wish any responsibility for the products of an unwanted pregnancy after a night or two of fun. Those who would term themselves as “men’s rights activists” have no case, no cause, no purpose nor any legislative agenda outside of the realm of feminism and egalitarianism. If feminism and its egalitarian legislative progeny die out in their entirety in society, their cause will go down right along with it. The males of society will then have to come face to face with what is termed “responsibility,” having to face the reality that actions have consequences- and they cannot continue to run their pick-up artist “game” if there are consequences attached to the sex act that the society will then ultimately hold them accountable for.

Trickling down from the highest tribunal to the lowliest officer of the law, many forces push and pull against each other in the adversarial system of American criminal justice. Many legal processes must first be traversed before an individual may actually be prosecuted, convicted, and punished for any crime. Fairness in the rule of law and criminal justice procedure is, after all, the very premise upon which the American criminal justice system was founded upon. Ethics play such an important role in law enforcement on account of the discretion that officers on all levels are given in the carrying out of their duties, and the power of the ordinary citizen in the enforcement of the rule of law has been greater than many realize throughout history. What is the alternative to discretion but tyranny? The short answer is that there is none.

Even for actions officially recognized as illegal under the law, an officer retains discretion whether or not to arrest an individual. Ethically, it is an officer’s duty to uphold the law even when off-duty, but all the way from a simple traffic citation to violent crimes, the decision ultimately rests with individual officers to choose whether or not to arrest. It is also prosecutors who decide whether or not to pursue a case and, if so, specifically what crimes to charge the individual with.

The Second Amendment retains for the states the right to a “well-regulated militia,”[xxxix] and in the days of old this gave power into the hands of ordinary men to challenge an unjust cause much the same as ordinary citizens today retain the power, when called upon to try their fellow citizens for crimes in a court of law, to acquit and effectively nullify the law at issue. “That every man be armed:”[xl] Not only the right to bear arms, but historically the obligation to do so fell upon adult male citizens, and when called upon to act, local militias could exercise a form of passive resistance by simply refusing to muster and heed the call to bear arms,[xli] much as modern juries still to this day retain the extraordinary power of jury nullification, whereby ordinary citizens can simply fail to convict a defendant even in the light of overwhelming evidence of guilt when they believe the case or law at issue to be unjust. Due to the prohibition of double jeopardy in the United States Constitution, the defendant then walks free, as the government cannot retry the defendant again upon the same charges after an acquittal.[xlii]

Nowhere today can this issue be seen more clearly than with modern juries refusing to convict in drug cases, even as society struggles with a serious drug problem. The push to legalize specific varieties of formerly illegal recreational drugs is strong. The laws don’t work, because the people are simply unwilling to believe in or comply with the laws. Could abortion also fall in with this issue? Is- was- legalization not responding to a serious problem that society faces on both accounts? Are there not less arbitrary measures to affect the same goals? But can any change ever happen without an extreme makeover in the overall structure of society? Were not “Too many wealthy women… flouting the law to get abortions from respected physicians…[and] too many poor women being injured by inadequately trained mass purveyors of illegal abortions”[xliii] at a time when “free love” and the sexual revolution were rocking society, much the same as the opioid epidemic has plagued and ravaged the nation today, causing lawmakers to look to alternatives- including the legalization of the “softer” drugs such as marijuana- to attempt to address a serious problem in society and prevent further death and hardship of the nation’s citizens?

As opposing and competing forces push and pull society in two different directions, we as a nation must stop and ask what it is we are doing, where we are going, and what, precisely, is hoped to be achieved? Is it a reinstatement of law and order and a returning of America to a supposedly more prosperous time? And how can that ever be achieved without addressing, but yet instead choosing, to turn a blind eye to the underlying forces that have caused the problems in the first place? Tyranny by the executive, legislative or judicial branches of government can never hope to turn America into the great nation that it once was in a civilization that simply no longer believes in the rule of law.

Outro to the Posting

What I have set forth here is a proposal: A deep and serious consideration that I do so sincerely hope can reach the hearts and minds of many. And with this humble piece of scholarly literature I do now so contribute it to that prayerfully ever free and prosperous marketplace of ideas.

————————————————-

[xxxiv] 6 Pet. 515 (U.S. 1832).

[xxxv] A History of the Supreme Court, supra, p. 94. Quoted from Letter from Andrew Jackson to John Coffee, Apr. 7, 1832.

[xxxvi] 60 U.S. 393 (1857).

[xxxvii] See Peter Irons, A People’s History of the Supreme Court, p. 179 (5th ed. 2006). Quoted from Lincoln, “we will submit”: Phillip van Doren Stern, ed., The Life and Writings of Abraham Lincoln, 399.

[xxxviii] A History of the Supreme Courtsupra, pp. 126-127. Quote by Learned Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand 189-190 (3rd ed. 1960)

[xxxix] “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. For a thorough discussion of the Second Amendment see generally A Well-Regulated Militia, supraSee also United States Supreme Court cases of McDonald v City of Chicago, 561 U.S. 742 (2010); District of Columbia v Heller, 554 U.S._ (2008). (Incorporating the Second Amendment against the States as an “individual right”).

[xl] The cry of Anti-Federalist Patrick Henry at the Virginia ratification debates. See A Well-Regulated Militia, supra, p. 53.

[xli] Termed sometimes as “militia nullification.” According to Saul Cornell in A Well-Regulated Militia, supra, “Implicit in the idea of the militia was the idea that citizen soldiers were not passive tools of government, but retained a right to refuse to muster and thereby exercise a form of passive veto on government policy…This type of passive resistance was akin to the right of juries to refuse to convict a citizen under an unjust law, effectively nullifying the law at issue.” (p.81).

[xlii] Due to the dual sovereignty doctrine, however, a defendant may be tried both at the state and Federal level for the same offence, and also if the defendant crossed state lines in the commission of the crime, may be tried by each State that the crime was committed in. See, eg., Heath v Alabama, 474 U.S. 82 (1985).

[xliii] A History of the Supreme Court, supra, p.333.

Shift to the Right (Part 2 of 3): The Dangers of Excess “Conservatism”/The Common Law and the Constitution

(PDF of full article here)

 

The Dangers of Excess “Conservatism”

For all the good that might become of a Supreme Court that leans more to the Right, there are also many inherent dangers that accompany too much “conservatism.” A few months ago I had said to my husband- only half-jokingly- that I often wondered if our grandparents didn’t all pass away just so they wouldn’t have to live to see what America has become. For all the good that less governmental intervention in the economy might do, many forget all that history has to teach about the often extreme abuses against the common and ordinary citizen that naturally accompany unrestrained laissez-faire capitalism. According to Peter Irons in his 2006 book A People’s History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution, during the last two decades of the 19th century (speaking of the expansions of the railroads), “…railroads had their caste system and brakemen took home only $212 that year for the most dangerous job on the trains. More than two thousand railroad workers died in accidents each year, and thirty thousand suffered injuries.” (p.245)

According to Bernard Schwartz,

To return to the Peckham conception of law is to return to a time when ‘it was unconstitutional to intrude upon the inalienable right of employees to make contracts containing terms unfavorable to themselves, in bargains with their employers.’ In those days, ‘[a]n ordinary worker was told, if he sought to avoid harsh contracts made with his employer…that he had acted with his eyes open, had only himself to blame, must stand on his own feet, must take the consequences of his own folly.’ And if, as in Lochner, a law sought to equalize the situation, it was ruled an invalid interference with freedom of contract. To return to Lochner is to return to the abuses that inevitably accompany unrestricted laissez faire.”[xii]

After all, there is a reason why many of our grandparents were Democrats. “Democrats are for the blue-collar worker” is what we often have heard, and history bears this out to a large extent. In the days of laissez-faire, the common, average, and impoverished citizen was often told:

Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. We know that this is a power which may be abused, but that is no argument against its existence. For protection against abuses by legislatures, the people must resort to the polls, not to the courts.[xiii]

 By and large the Republicans often favor the rich/elite and the big corporations, often stating today something similar to the above quoted passage as regards the democratic process. But to quote Schwartz once again: “A supreme tribunal that molds its law only to fit immediate demands of public sentiment is hardly fulfilling its proper role. As Justice Frankfurter once put it, ‘The Court has no reason for existence if it merely reflects the pressures of the day.’”[xiv] What is needed, in reality, is to maintain moderation as danger lurks whenever courts and legislatures swing too extreme either to the Left or the Right. Mostly “moderates” in the center on the Supreme Court were responsible for most of the legal revolution of the mid-20th century, ruling according to the “felt necessities of the time.”[xv] Perhaps today the “felt necessities” could be that the “welfare state” has simply gone too far.

But as everyone hopes that the highest tribunal shifts to the Right so that Roe might be “overturned,” there are many more consequences of such a shift that many never give any heed nor regard to, but which will become even more apparent as time goes on. Part of this disregard simply stems from an ignorance of the history of American legal and Constitutional jurisprudence. Or perhaps Americans truly believe by and large that some rights and freedoms now enjoyed by the criminal defendant, the indigent, and the political dissenter have simply always existed as they do now. Sadly, this is not the case. Many rights and freedoms Americans enjoy today actually come from the “liberal” excesses of the mid-20th century- excesses “conservatives” on the Supreme Court and elsewhere have consistently been trying to chip away at for the past few decades.

The right to jury trial of one’s peers at the state level in cases where the possibility of incarceration exists, the right to be read one’s rights at the time of arrest/detainment in the custody of police,[xvi] the right of an indigent criminal defendant to a lawyer,[xvii] the right to petition for habeas corpus,[xviii] the right to a lawyer upon appeal, the prohibition of police use of the “silver platter doctrine,”[xix] the prohibition of the use of illegally obtained evidence by Federal or state officers in criminal trials,[xx] the right to burn an American flag in political protest,[xxi] the right of one’s children to refuse to salute the flag and against compelled prayer in public schools,[xxii] etc…

Only due to the “liberal” and “moderate” forces upon the Supreme Court in the 20th century do these rights even exist at all. The president’s War Powers have also been largely kept in check on account of “liberal” and “moderate” forces on the Supreme Court. It can’t be taken for granted that Republicans such as those of the current administration have little respect for the rights of the accused or suspected enemy combatants to habeas corpus. The “conservative” forces must balance out the liberal forces, of necessity, in order to protect the welfare of the public, but “conservative” excesses have a long and dated history of giving carte blanche to the president, legislatures and other executive officials- especially since 9/11.[xxiii] This isn’t a set “rule,” of course, but there is enough of a history to make anyone mindful of the law and criminal justice system wary of the consequences of too much “conservatism.”

 

The Common Law and the Constitution

Perhaps I would like to bring the abortion issue back into the equation for the moment. There doesn’t seem to be much common sense floating around where this issue is concerned, just back and forth ranting. I’m not here to rant about these issues, but only to reason rationally and deeply- and realistically- about them. My main fear where this issue is concerned is that it simply reeks of “police state” with a side order of religious tyranny.

It isn’t really enough to look through history or the common law of England where this issue is concerned, though it could shed light on history and the nation’s founding, as the common law was adapted over time to the unique scenarios and circumstances of the American way of life.

The first issue is how prosecutions would proceed. There have already been instances in recent years of individuals (of both sexes- not just women) being charged for giving abortifacients for the purpose of illegally inducing abortion. Obviously if a woman enters the emergency room with complications from an illegal abortion, the law does allow (in some instances it requires) that the crime be reported to police. But if a woman chooses not to receive emergency care after an illegally-induced abortion (or simply does not need care if she has no adverse side effects), how then would charges be brought and whom would they be brought against? Being “pro-life” might sound good on paper- much the same as “drug-free”- but reality must be given greater weight than sentiment where issues of law are concerned.

 The nature of abortion has changed since misoprostol began being used to induce abortions non-surgically in the 1980s. The drug is widely available in some Latin American countries where abortion has been outlawed (usually due to the influence of the Catholic Church) without a prescription, but in recent years it has shown signs of becoming a major “black-market” drug in the United States. Obviously, the dealers of such drugs could be caught in the normal legal manner, but danger of governmental tyranny and Unconstitutional search and seizure lurks in the murky waters where the woman who takes the drugs is concerned.

This question must be proposed, now that I have also in-depth asked the questions above of how a more “conservative” majority in our Federal courts and in the Supreme Court would deal with the rights of criminal defendants. Justice Harry Blackmun (who wrote the opinion of the Court in Roe v Wade), in sharp contrast to today’s justices who generally have their law clerks do most of the research and write up rough drafts of opinions for them, spent months doing research and writing up drafts (whom Justices Douglas and Brennan consistently gave him feedback on) in the Roe case[xxiv]. In the final Roe opinion, he went over historical abortion laws in good depth and concluded that most of the early anti-abortion laws in early American history (which laid the full legal penalty upon the one providing the abortion, not the pregnant woman) were generally thought to be designed to protect the woman from submitting herself to a procedure that in many cases would threaten her life.[xxv]

When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. This was particularly true prior to the development of antisepsis…Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940s, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.[xxvi]

One of the major grievances the American colonists originally had against the Crown before the Declaration of Independence was the general writs of assistance that were used to arbitrarily carry out searches of a person’s home, person and belongings. These were equivalent to general and vague search warrants, allowing agents of the Crown to basically rummage through all of a subject’s possessions, without having to specify exactly what was being searched for. The question must be proposed: Could a search warrant be executed against a woman who is suspected of being pregnant if an officer has probable cause to believe that she might be pregnant and might be doing something that might put the life or health of the fetus in danger? Might she then be physically restrained and subjected to an intrusive search of her body to see if she is pregnant and then her body be searched for evidence of the crime of endangering the life of the unborn in some way? Or evidence of pregnancy or attempted/completed abortion in a woman suspected of being pregnant even where medical help or attention has not been sought and consented to? Might she, or even the father of the child or others close to her, be arrested and interrogated or subpoenaed as witnesses in a court of law against the woman or anyone else charged as being connected with the “crime?”

If a fetus is legally considered to be a “person” under the Fourteenth Amendment, then this is not a ridiculous question, but a realistic one. From Alabama’s “fetus lawyers” to Texas’ TRAP laws (which the Supreme Court struck down in its 2016 Whole Woman’s Health v. Hellerstedt decision[xxvii]) mandating the proper burial of fetal remains, it is hardly unreasonable that the States, if allowed, would resort to nearly any arbitrary measures in order to bypass the civil rights of their residents and oppress them. An officer of the law need only have a “reasonable suspicion” to believe that criminal activity might be afoot or that an individual is about to commit, is in the process of committing, or has just committed, a crime in order to stop and question an individual or give a quick pat-down or search of their outer garments.[xxviii] If probable cause exists, the officer may then make a lawful arrest. Could this discretionary power of officers of the law be used in an arbitrary manner against a woman and/or her partner/husband regarding pregnancy and abortion?

Today’s society is overly concerned about an individual being allowed to point the finger and accuse an individual, without trial or evidence, of wrong-doing and ruin their lives (think sexual harassment allegations) even while all the while being overly concerned with “victim’s rights.” But as the English jurist Sir William Blackstone had so famously stated, “It is better that ten guilty persons escape, than that one innocent suffer.” Most of the Bill of Rights is concerned with the protections of the accused. Living in a time where advances in science and technology have advanced to such extremes (and are only likely to advance more in the future) that the government has an increasing ability to spy on its citizens and control their every move even when they are unaware of it, upholding the Bill of Rights becomes even more paramount. Ratification of a Bill of Rights was a prerequisite to many who termed themselves “anti-federalists” (or those who were against too strong of a national government). It was a prerequisite due to the fear that lack of a Federal Bill of Rights would lead to Congress enacting laws abridging the rights of the people.

On the other hand, there is clear and convincing evidence that the Bill of Rights does not contain all of the rights due to citizens, and the Federalist fear was that if a Bill of Rights was ratified it would lead to the belief that only those rights specifically enumerated and specifically mentioned in the Constitution would be accounted for. The Ninth Amendment to the United States Constitution states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[xxix] Similarly the Fourth Amendment was adopted to redress the grievances caused by the issuance of general writs of assistance that caused widespread discontent among the colonists and were denounced by such historically famous men as James Otis.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[xxx]

To address another question- are we a civilized society? There are many things that modern Americans simply do not seem to understand. In our fights over abortion, the right to die, the barbaric nature of the death penalty, gun control legislation and the waging of war, what is lost in the discussion is the very real and often brutal reality that some legally justified killings are necessary for the freedom, welfare, prosperity, and safety of a nation and its citizens. Included among the legally justified killings that civilized society recognizes is the necessity of waging war to protect the people of a nation and secure their peace and freedom, the right to use deadly force against one’s attacker in personal self-defense by the individual or by law enforcement for self-defense and public safety, the right to pre-viability abortion, and the right of a State to execute individuals who are convicted of certain classes of dangerous and heinous crimes. The taking of human life for any reason is brutal and barbaric, no matter the circumstances that surround it. But one must ask the question: How humane is a civilization, in reality, that never allows for the taking of life under any circumstances?

Justice Kennedy delivered the opinion of the Court in the gut-wrenching 2008 case of Kennedy v Louisiana, stating, among other things, “Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule…When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint…”[xxxi]

But again a question begs to be answered: Is this an example of a “civilized society?” More directly to this point: Most American freedoms today, including the right to self-defense,[xxxii] can be traced back to the laws of England, which granted to “freemen” many rights and freedoms, though these rights and freedoms were greatly expanded upon in America. Looking back to what was in another culture long gone or in other cultures around the world holds no legal or social weight in America even if we can never wisely cast aside history’s lessons. As Justice Alito stated in his majority opinion in McDonald et al v. City of Chicago, Illinois, et al, “…we must decide whether the right…is fundamental to our scheme of ordered liberty.”[xxxiii]


[xii] A History of the Supreme Courtsupra, pp.201-202. “Peckham conception of law” refers to the legal jurisprudence of former associate justice of the United States Supreme Court Rufus Peckham, who was famous for utilizing “substantive due process” to invalidate state attempts at regulating the economy in favor of laissez-faire capitalism.

[xiii] Munn v Illinois, 94 U.S. 113, 134. (1876)

[xiv] A History of the Supreme Court, supra, p.258. Frankfurter quote from West Virginia Board of Education v Barnette, 319 U.S. 624, 665 (1943)

[xv] Ante, at 224.

[xvi] Miranda v Arizona, 384 U.S. 436 (1966); Dickerson v United States 530 U.S. 428 (2000) (Some “conservatives” such as O’Connor and Rehnquist in the majority, but this case was largely a battle between the Supreme Court and Congress)

[xvii] Gideon v Wainright, 372 U.S. 335 (1963). During the Warren Court era, decision was unanimous. Earl Warren, though never claiming to be a great legal scholar, had a way of uniting the Court to deciding major landmark decisions unanimously, such as in Brown v Board of Education of Topeka (1) 347 U.S. 483 (1954) and Brown V Board of Education of Topeka (2) 349 U.S. 294 (1955), cases outlawing segregation of the races in public schools.

[xviii] Herrera v Collins, 506 U.S. 390 (1993); Lockyer v Andrade 538 U.S. 63 (2003)

[xix] Elkins v United States 364 U.S. 206 (1960) (Another Warren Court case ruling for the rights of criminal defendants.); Weeks v United States 232 U.S. 383 (1914).

[xx] Hudson v Michigan 547 U.S. 586 (2006). (“Conservatives” on the Roberts Court vote against rights of criminal defendants, though perhaps not unjustifiably in this particular case.); Wolf v Colorado 338 U.S. 25 (1949) (Overturned by the Warren Court in Mapp v Ohio 367 U.S. 643 (1961))

[xxi] Texas v Johnson, 491 U.S. 397 (1989); United States v Eichman, 496 U.S. 310 (1990); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). (the latter decision of R.A.V. was unanimous in favor of R.A.V., while the prior cited decisions were a bit mixed, but largely with “conservative” justices voting in the minority against flag burning as protected speech.)

[xxii] Minersville School District v Gobitis 310 U.S. 586 (1940); West Virginia Board of Education v Barnette 319 U.S. 624 (1943). (Within three years the Supreme Court had reversed itself on this issue)

[xxiii] Important post-9/11 cases include Hamdi v Rumsfeld 542 U.S. 507 (2004); Rasul v Bush 542 U.S. 466 (2004); Boumediene v Bush 553 U.S. 723 (2008). (“Conservative” forces on the Supreme Court have swung wildly in these cases revolving around habeas corpus petitions by detainees in Guantanamo Bay. It is a necessity for public safety that the rights of enemy combatants and criminal defendants are not granted in excessive and unreasonable amounts, yet at the same time the rights of those accused and detained to prove their innocence and challenge illegal detentions must be upheld where reasonable.)

[xxiv] See A History of the Supreme Court, supra, Chapter 15 Watershed Cases: Roe v. Wade, 1973. Writing in the early 1990s, Schwartz had the opportunity to do interviews with the justices from the Warren and Burger court eras, as well as interviews with their law clerks, and takes readers behind the scenes on some of the most important cases from these eras.

[xxv] 410 U.S. 113 at 129-41

[xxvi] Id. at 148-49 (footnote omitted)

[xxvii] 579 U.S._

[xxviii] Terry v Ohio, 392 U.S. 1 (1968); Michigan v Long, 463 U.S. 1032 (1983); Alabama v White, 496 U.S. 325 (1990); United States v Sokolow, 490 U.S. 1 (1989). Under the “Plain Feel” or “Plain Touch” doctrine, evidence may also be seized in specific circumstances pursuant to a pat-down of the suspect’s outer garments. See Minnesota v Dickerson, 508 U.S. 366 (1993).

[xxix] U.S. Const. amend. IX.

[xxx] U.S. Const. amend. IV.

[xxxi] 544 U.S. _

[xxxii] According to Blackstone, common law required the citizen to first “retreat to the wall” before using deadly force against one’s fellow citizen, but in the early 19th century America, a new standard of having a “reasonable fear” for one’s life became the new standard after the murder trial where a jury acquitted Thomas Selfridge of the charge of the murder of Charles Austin, accepting the defense’s self-defense claim. For an overview, see Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (1st. ed. 2006).

[xxxiii] 561 U.S. 742 at 767 (2010). (Citation omitted, emphasis in original).