JUDGING CRIMES

"Historians have long winced at the crude ways that literary scholars and others have wrenched writings out of their historical contexts for aesthetic and other present-minded purposes." 

That's from Gordon S. Wood's collection of book reviews (or, really, essays using book reviews as take-off points), The Purpose of the Past: Reflections on the Uses of History, which is far more entertaining than any description can make it sound.  It was an unlikely candidate for the books-on-tape treatment but I'm grateful the publishers made an exception for it, because it made the weekend drive to Jemez Springs most enjoyable.

In another essay, analyzing a self-described political theorist's tendentious use of history to score political points, Wood writes: "There is nothing wrong with this ransacking of the past by political theorists.  Lawyers and jurists do it all the time.  But we should never confuse these manipulations of the past for present purposes with doing history."

The use of that pretentious word "jurist" is one of Wood's few false steps.  Lawyers and judges do indeed ransack the past for present purposes all the time.   That's what "legal research" is.  You start with the conclusion of your syllogism, add the major premise - the facts of the case - and then start searching for some legal authority to insert into the middle.  An intellectually-honest creme makes for a better Oreo, but in a pinch almost anything will do.   (I hope you don't mind if I don't pursue the cookie metaphor to its all-too-apt conclusion.)

 But sometimes, I'm afraid, Supreme Court justices, who don't enjoy / suffer the peer-review process that keeps historians in touch with reality, confuse this kind of purpose-driven ransacking of the past with genuine history.  I think we can now officially say that Justice Scalia is, historically speaking, delusional.

His recent Giles v. California opinion guarantees a good ten years of litigation and hundreds of incompatible decisions from around the country, so that's good news for all us lawyers practicing criminal law: there will always be something to slot into the middle of any syllogism.  Better yet, this ensures a steady stream of future injustices, which will help sales of my next book.  (See this unnumbered post.)  So I don't mean to look the gift horse in the mouth, not that doing so would tell me anything anyway.

But viewed as history, Giles and its predecessor Crawford are ...  pathetic.  Not simply in the abusive sense of that word, but in the sense of being so far removed from adequacy that you can't help feeling rather churlish to point out their inadequacy, like pointing out the tuning problems of the elementary school orchestra.

Though, of course, the kids are cute.  And, more important, they're trying. 

It's not so much that the members of the Supreme Court are incompetent historians - that's not really a surprise - but that they are wholly unaware of it, as evidenced by the supposedly-erudite Justice Souter's incredibly  fatuous remark: "I am convinced that the Court's historical analysis is sound". 

 Here are some of the key elements of that sound historical analysis:

• The correct interpretation of the 6th amendment depends on an analysis of the original intent of the Framers, but the identity of "the Framers" is never established.  They aren't people but a vague abstraction.
  
• "The Framers" all thought exactly alike and had no disagreements about anything.
• "The Framers" anticipated the passage of the 14th amendment in 1868, which made the 6th amendment applicable to the states.
  
• Rid your mind of any concept of the Constitution as a democratic document, expressing the political will of the people, as expressed in Marbury v. Madison and Federalist 78 (the source of all the ideas found in Justice Marshall's Marbury opinion).  Rather, reconceive of the Constitution as a top-down directive, imposed by "the Framers" on the passive people, because that way only the Framers' views count, greatly simplifying the matter.
  
• To determine the original intent of "the Framers," it is vitally important to examine the fewest types of sources available.  For example, do not, whatever you do, look at trial transcripts, even though those are available in any law library and on the web.   That would only complicate things and might not lead to the result you prefer.
  
• Also, don't look at contemporary newspaper reports or read history books, much less original sources such as private papers.  Rather, look only at legal treatises (the opinions of self-publishing egotists) and appellate opinions (although there was essentially no right to appeal in the few federal criminal trials, and state appellate opinions weren't systematically collected until Mr. West got busy a hundred years later).  The great thing about these sources is that their authors were self-important elitists of the same kidney as modern Supreme Court justices, so their views are emotionally satisfying.
  
• To achieve an ideal result, it is essential to commit as many classic historians' fallacies as possible. 
  
• Giles, for example, relies almost exclusively on inferences drawn from the absence of evidence.  (We have no evidence that Julius Caesar washed behind his ears, so therefore the buildup of layers of dirt from Britannia and Gaul was just dreadful.)  
• Crawford anachronistically ascribed to 18th century folks the concerns of 21st century lawyers about the technical admissibility of hearsay, when as a matter of easily-verifiable historical fact lawyers had very little to do with criminal law as practiced in the 18th century, and most lawyers practicing in small towns had a level of formal education roughly comparable to that of jailhouse lawyers today.
• When it helps your argument, don't be afraid to make up evidence.  That's what Justice Scalia did when he ascribed to "the Framers" an obsession with Sir Walter Raleigh.  (Here it is again.) 
  

I could go on, and I probably will in later posts, but it makes me feel like an impatient high school teacher.  But then, because I'm a softy, I'd probably give my 10th graders a do-over rather than flunking them all.  I'd say: "But this time, people" - I don't know exactly why high school teachers have to call their students "people," but apparently it's in the standard contract -- "I want to see some evidence of effort."

Caminito, Bonino and Noia all confessed to murdering Murray Hameroff.  They were tried together, and the jury found their confessions voluntary.  Noia chose not to appeal.  But after 14 years, Caminito got a federal judge to vacate his conviction, based on the judge's finding that the police acted "satanically" by questioning him "almost continuously" for 27 hours, leaving him alone in an unheated cell for 7 of them.  (See post 338.)

That last bit sounds like I'm being sarcastic, doesn't it?  Check it out: 222 F.2d at 699-701.  Caminito testified that he and Noia got together in the cells (this must have been during the "almost" rather than the "continuously" part) and agreed on a story to tell the cops.  (At 701, if you're following along.) 

After all, isn't that exactly what you would do if you were desperate for the torture to stop - sit down with your friend, talk it over, and make sure your confessions meshed in the details?  It's part of the ludicrousness of Jerome Frank that he flung around psychoanalytic lingo without first obtaining any concept of human psychology.

(His embrace of doctrinaire Freudianism, mid-50s incarnation, has this in common with his denunciation of the Brooklyn cops: both rest on the idea that other people are helpless puppets.)

Anyway, once Caminito got his conviction overturned, his buddy Bonino asked, "What about me?"  Four judges of the N.Y. Court of Appeals heaved a big sigh and said: "Since the United States Court of Appeals, Second Circuit, has held that the writ of habeas corpus must issue to his codefendant Caminito, because his confessions were inadmissible, the defendant Bonino should, in the interest of justice, receive a new trial with his (Bonino's) confessions excluded."  135 N.E.2d at 52.

Three judges, however, weren't so sure: "As to Caminito, the United States Court of Appeals drew factual conclusions widely different from those made by the jury and accepted by us as having reasonable basis in the record.  In reversing now as to Bonino, we are assuming, and acting on the assumption, that the Federal courts would similarly revise our interpretation of the record.  In our view, we have no right or duty to do so."  135 N.E.2d at 754 (Desmond, J., dissenting).

Okay, two down.  That left only Charles Noia, who confessed, was convicted, and never appealed.  A New York trial judge held: "That fraud and misrepresentation were employed to secure the alleged confession which is the only substantial evidence in this case has been authoritatively established in the United States Court's findings, in ruling on the Caminito writ of habeas corpus."  158 N.Y.S.2d at 686.

Of course, Jerome Frank said that Caminito's confession was involuntary, being the product of "brutalitarian" tactics (which isn't exactly the same as fraud - would you buy a used car from this man?).  He didn't talk about Noia's.  But the judge was right about the "authoritatively established" part.  It didn't matter whether the federal court was right, or even rational, because it had the authority, and that's the important thing in the legal system.

The state trial court judge thought it was intolerable to keep Noia in prison on the basis of "a manifestly unlawful conviction".  However, the Appellate Division pointed out that the trial judge's decision was, itself, manifestly unlawful: "No appeal was taken.  This being so, the court was without authority to grant the application."  163 N.Y.S.2d at 797.  The Court of Appeals affirmed, agreeing that as Noia had waived his right to appellate review, his only recourse was to ask the Governor for clemency.  148 N.E.2d at 142.

Naturally, Noia turned next to the federal courts.  The district judge dismissed his petition for habeas corpus (183 F.Supp. 222) but Jerome Frank's old court, the Second Circuit, reversed on a 2-1 vote.

When the majority ordered the writ of habeas corpus to be issued, ordering Noia's release from prison, it was acting on the authority of a statute that said:  "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State ..." 

How to interpret that?  It depends on what the meaning of "shall not" is.

The dissenting judge - Leonard P. Moore, who succeeded to Frank's seat upon the latter's death - thought it meant something along the lines of "shall not", but he was voted down.  He characterized the majority opinion this way:

The doctrine now enunciated by the majority is that whenever a group of appellate judges wish to depart from previously settled principles, they may find that 'extraordinary circumstances' exist and that such a finding entitled them to ignore on an ad hoc basis all otherwise applicable principles.  (300 F.2d at 366.)

That's not unstrong stuff. 

Anyway, in January, 1963, 22 years after Murray Hameroff (who?) breathed his last, Charles Noia's case was argued for two days in the United States Supreme Court.  Really.  That's what the opinion says: "Argued Jan. 7 and 8, 1963."

It was a simple case, raising just a single issue: if a state court affirms a state conviction on strictly state law grounds, can federal judges ignore the state court's ruling a re-decide the case on federal law grounds?   There was a catch, though: the question was to be answered by federal judges.

The result of all that palaver was, I think, one of the Supreme Court's finest - in the sense of "most characteristic" - moments.   Justice Brennan wrote the majority opinion explaining that when Congress said federal courts "shall not" issue the writ when the petitioner had not pursued his state remedies, it meant "may." 

Brennan reasoned that, because the requirement that a state prisoner first present his federal claims to state court was originally developed in the federal courts as a matter of professional courtesy, therefore when Congress enacted a statute that flatly prohibited federal courts to issue the writ in any other circumstance, it didn't prohibit federal courts from issuing the writ in other circumstances.

It sounds like I'm being sarcastic again, doesn't it?  372 U.S. at 419-20.  And reiterated at 372 U.S. at 434-35.

To support his conclusion that night was day, Brennan relied on the Reviser's Notes to 28 U.S.C. § 2254, which in turn relied on Ex parte Hawk, 321 U.S. 114 (1944).   A few pages later, however, when considering a different point (whether a prisoner should be required to seek certiorari review of his state conviction), Brennan wrote:

It is also true that Ex parte Hawk, 321 U.S. 114, a decision cited in the Reviser's Notes to 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here.  321 U.S., at 116-117.  But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language.  

Unfortunately, Brennan neglected to explain to the rest of us how to distinguish between those situations in which such exaltation was appropriate and those in which it was not.

Brennan, who was a master of sentimental 19th-century prose style ("precious" was one of his favorite adjectives), prettied up his wine-into-water miracle with lots of flowery words, like these:  "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in the Anglo-American jurisprudence: 'the most celebrated writ in the English law.'" (That last is, to my mind, rather like describing Delaware as the fairest of the states east of Maryland.)  

After quoting fellow Supreme Court justices that "'there is no higher duty than to maintain it undisturbed'" (none?), Brennan reached the high-water mark of habeas hyperbole:

These are not extravagant expressions.  Behind them may be discerned the unceasing contest between personal liberty and government oppression.  It is not accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today.

Note the only two choices: personal liberty or government oppression.  Which side are you on? 

Before you answer, recall that the Supreme Court is the government, and six of its members had just declared themselves free to disregard a statute enacted by Congress.  "Oppression," in Brennan's usage, was democracy when it interfered with the powers of government, specifically that of the courts.  The "personal liberty" he was talking about was that of federal judges. 

By the way, in case you'd forgotten about the "central role" habeas corpus has played in our national crises, Brennan helpfully dropped a footnote to remind us that after the Civil War was over, the Supreme Court ruled that during wartime civilians could only sometimes be subjected to martial law.  So next time we have a Civil War, we'll know.

Also, the Court once considered the case of men incarcerated for involvement in Aaron Burr's fantastic conspiracies of imperial dominion.  And during World War II the Court denied habeas petitions filed by condemned saboteurs who had been secretly landed by German submarines on American beaches. 

Brennan's final example was the Court's ruling, in the final months of World War II, that a Japanese-American woman who had succeeded in proving her loyalty could, after three years' incarceration, no longer be held indefinitely in a Utah camp (although Justice Douglas's opinion for the Court sidestepped the separate question whether she would be allowed to return to her California home).

Far from being "central" to the Second World War, the Civil War, and the run-up to the War of 1812, these legal disputes hardly even qualify as marginal.  It would be insulting the memory of Justice Brennan to suggest he believed a word of what he wrote.

Six years later he confirmed it was all eyewash.

The great thing about the original intent school of constitutional interpretation is that it relieves Supreme Court justices from any responsibility for feeling shame.  They can indulge their every whim with the all-purpose justification that they're only doing what the Framers would have done, if only they'd gotten around to it.  (See post 201.)

Justice Scalia has assured us that "[t]he Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation."  Thus they enacted the sixth amendment's confrontation clause, based on the practice in English courts of the era ("the English cases that were the progenitors of the Confrontation Clause did not limit the exclusionary rule to prior court testimony and formal depositions").

But as evidence of the practice in English courts, Scalia cites opinions from English and American appellate courts, and the views of commentators, who by a process of self-selection are almost guaranteed to have been opinionated cranks, the pre-Web equivalent of bloggers.  This might be a reasonable avenue of historical research if trial court records were unavailable, but they're not.  In fact, it's easy to read transcripts of English criminal trials from the years before the American Revolution.

In 1750, for instance, John Stevens - no indication whether his middle name was Paul - was charged with stealing a silver tankard from a man who ran a public house in his home.  Here's the pub owner's testimony:

The other witness (Warwick) staid, who told me he could not go away, for that man, meaning the Prisoner, has took away something with him, either pewter or silver, like a tankard; and likewise said, he told Judith Dyke, that he and she should come into trouble about it; adding, she made a pish at it: I sent my young man one way, and I went another, but we could not find the prisoner, or the woman. Warwick still abode in the house, nor did he endeavour to get away; saying, he would stay with all his heart: then I sent for the constable of the night, and Warwick was taken into custody. I had seen the woman before, and a person gave me intelligence where she lived; I went to her house, and there was a man made answer and said, she was not at home; (we could hear her whisper ) I went back again, and we carried Warwick to New-prison; my lodger said when we came back, if I would go down to the woman, she would open the door to me; he was drinking with them that night in my house, but he has hid himself, and I cannot find him; I fear the woman has sent him out of the way; we went again, and he knocked, and she immediately let him in, and the constable took charge of her; the justice thought proper to admit her to bail. I never saw the tankard since. We searched Warwick to see if he had any knife, or such instruments about him, and I am sure he could not have the tankard about him: the justice admitted Warwick to bail, and upon Thursday evening he took the Prisoner, and sent for me, and he was secured; they went away between 8 or 9 o'clock.

Mr. Warwick also testified:

On the 11th of Dec. last as I was going along Cheapside. I met the Prisoner, I had not seen him for 4 or 5 Years; he said to me, shall we not drink together ? I said with all my heart. Said I, I'll go to the Hercules and Pillars, in Bow-lane. No, said he, I'll go to a friend at the bottom of Bread-street. We went there, and Mrs. Dyke rapp'd at the sash window, at the Bull's-head: We went in, and drank 7 or 8 Tankards of beer. Said she, I have money to receive of a man who is to meet me at the Hampshire-hog, in Goswell-street. I went with the prisoner and her there, and they staid till about 8 or 9 o'clock; ... When the beer came about, he said, he did not care to drink; by and bye I heard liquor spill, I turn'd and saw something like a tankard in his hand, and he cover'd it under the right hand flap of his coat; it was about half cover'd: Presently I heard liquor spill again. I went betwixt the woman, and the man of whom she was to receive money, and whisper'd them, saying, I feared we should come into trouble, for, I thought, he was going to steel away a tankard. She said, pshaw, pshaw. The man made no answer. At going away the woman went first out at the door, and I second, the prisoner after me; he had his left hand under his coat, with something like a pot or a tankard in that hand: I turn'd back at the door, and said, I must speak with this man, meaning Hosier ; but the prisoner laid hold of the skirt of my coat, and said, come along, you have no business with that man I am sure. I told Hosier the prisoner had got a tankard under his coat, or something like it. Said Hosier to the Girl, see if there be any thing missing ? Said I, it will be the best way to go, in the first place, after the man. The Constable was sent for, and I desired he would be so good as to go and take the woman, thinking she would not deny what I whisper'd to her, of my suspicion about the prisoner. The Friday following I took the prisoner in Bedford-court, coming down to Covent-garden: I did not charge him with the thing then, because I had heard of his Character; so I took him to a public house, sent for a constable, charg'd him, and sent for the Prosecutor.

By "the Prosecutor," Warwick meant the publican. 

Mr. Stevens was acquitted, which certainly seems just on evidence as thin as that.  Nonetheless, a reader might be forgiven for thinking that English courts of 1750 were somewhat less than fanatical about preventing witnesses from repeating things they had heard outside the courtroom.  What if -  just supposing, now - what if Justice Scalia is right, and the confrontation clause really did codify existing English practice?

The title doesn't promise the under-the-bedclothes magazine for teenaged boys of all ages that ate Penthouse's lunch in much the same way Wal-Mart and Target divided K-Mart's among themselves.  ("It's a deal.  You get the high-margin items, we get the high-volume, and K-Mart gets to keep everything else.")

No, I'm earnestly trying to distill the maxims that govern judicial work.  I find they tend to come in pairs, like:

• Judges have the authority to make basic decisions about the acceptability of violence in society.
• Judges have no responsibility for the consequences of their decisions about the acceptability of violence in society.

Judges are pretty open about this pair, although you often have to search for them beneath puffy clouds of words.  Justice Scalia was being unusually direct (and terse) when he acknowledged that the Court's recent revision of the sixth amendment has the effect of frustrating society's efforts to curtail domestic violence, adding this mea non culpa:

This particular type of crime is notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial. When this occurs, the Confrontation Clause gives the criminal a windfall. We may not, however, vitiate constitutional guarantees when they have the effect of allowing the guilty to go free.

In that passage, there's only a thin veneer of rhetoric covering the two maxims.

More typically diffuse is a famous passage by the late Judge Richard Arnold of the Eighth Circuit (the federal appeals court that hears cases from a Big Dipper-shaped slice of mid-America stretching from North Dakota to Arkansas).  (Arnold was profiled in post 235.)

You only need to know two things about this passage.  First, Arnold announced a new constitutional doctrine, one invented by himself and his two colleagues, which was promptly overruled by the U.S. Supreme Court.  Second, the effect of his new doctrine was that jurors in a murder case could not be informed that the victim, a 10-year-old girl, was dead.  Her death ceased to have any reality inside the courtroom.  (O death, where is thy sting?  Right here, outside the courtroom door.)  Here it is:

It will inevitably be remarked that our opinion focusses more on the conduct of the police than of the alleged murderer. If Williams is indeed guilty, and if he goes free as a result of our holding, then complete justice may not have been done, even though Williams has served 14 years in prison. A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.

(The link is to a recent Second Circuit case that quoted this passage.)

This is a remarkable passage in any number of ways, not least of them being that the New York Times singled it out for quotation in Judge Arnold's obituary (scroll down).  Another is that Justice Brennan termed it an "insightful and stirring defense of the constitutional limitations placed on law enforcement authorities" (78 Minnesota Law Review at 2) - even though, if you'll notice, by its own terms it applies to judges and Supreme Court justices, too, a point so foreign to Brennan's thinking that he apparently didn't even perceive it, the way those who speak one language fluently can have no phonemic awareness of certain sounds in another language.

(The linked Wikipedia article provides as an example Japanese people and the "R" and "L" sounds.  It might also have mentioned the difference between "pin" and "pen" - which I've been told exists, but can't hear in normal speech.)

But for purposes of our maxims it's enough to note that:

• Judge Arnold accepted that his opinion didn't produce "perfect justice".  Imperfect justice - that is, justice that isn't just, a/k/a "injustice"  - is a pretty remarkable thing for any justice system to accept as a norm, much less (as Brennan's encomium suggests) an ideal.
• Arnold disclaimed any personal responsibility for the injustice he produced, saying it was merely "one of the costs" of the Bill of Rights.
• The particular constitutional doctrine was invented by him in the very same opinion that said our "country is built on the assumption" that the doctrine was a good idea - yet another example in our case law of an anomaly in the space-time continuum.  (Curiously, when the doctrine was rejected by the Supreme Court just one year later, causing the country's foundation to crumble in part, the effect was felt in California, not Arnold's Arkansas or the dead girl's Iowa.)

So Arnold was saying he had the power - indeed, the responsibility - to invent new constitutional doctrines even when they produce injustice.  But he wasn't responsible for the injustice his invented doctrines produced, because our "country is built on the assumption" (assumption, mind you, not a principle or declaration) that justice in such cases would actually be undesirable.  (Or, rather, that "the cost is worth paying" - when judges resort to vague metaphors, it usually means they want to disguise their meaning, probably most of all from themselves.)  Hey, don't blame me - I'm just channeling the Framers!

Now, it might seem at first glance that the two maxims are, as lawyers like to say, "in tension with" each other, even if they aren't quite contradictory.  Doesn't it produce intellectual disquiet in judges - cognitive dissonance - to hold them both in your head at one time?  No, obviously.  Eric Hoffer explained why not (see post 273): both maxims are required by "the Constitution" and devotion to "the Constitution" is a higher duty than intellectual coherence.  The maxims offer power without guilt.  Their incompatibility isn't a flaw: it's the secret of their appeal.

A used-bookstore browse recently found reminders of our legal system on every shelf - except the one devoted to law books, most of which seemed to be describing life on distant planets. 

In the travel section I came across the pseudonymous Emma Larkin's wonderful Finding George Orwell in Burma, which demonstrates the truth in the Burmese joke that Orwell wrote a Burmese trilogy, including not just Burmese Days, which is actually set there, but Animal Farm and Nineteen Eighty-Four - the latter being the most naturalistic of the three. 

Along the way we meet a government spokesman talking about the regime's slaughter of protesters on 8-8-88: "'Truth is true only within a certain period of time,' he announced.  'What was truth once may no longer be truth after many months or years.'"

It's pretty creepy, but also pretty familiar to lawyers, since it's a way of looking at the world that all of us spent three years internalizing.  That's how we can adapt instantly to the news that the meaning of the Constitution has suddenly changed.   In 1992 the late Chief Justice told us,  "Over the past 21 years, ... the Court has overruled in whole or in part 34 of its previous constitutional decisions".  He meant that about every eight months another bedrock truth of American society ceases to be true.  The period of its truthfulness expires.  (See post 264.)  

Larkin's book also reminds us in an epigraph of the important point that "who controls the past controls the future: who controls the present controls the past."  Justices Stevens and Scalia, in particular, are assiduous about controlling the past.  (See post 201 and post 192 and post 81.)

And then, on the next shelf of the bookstore, here's a paperback (original price 60¢) of Eric Hoffer's The True Believer.  True believers are so commonly encountered in the law biz that I knew the phrase as a description of people I had to deal with before I knew it as a book title. 

The Internet is full of depressing statistics about lawyer depression and alcoholism (see post 188), and then here comes Hoffer telling us: "A rising mass movement attracts and holds a following not by its doctrine and promises but by the refuge it offers from the anxieties, barrenness and meaninglessness of an individual existence." 

Being a true believer is an antidote to the pointlessness of so much of a lawyer's work - the pettiness of squabbles over mounds of boring documents, the hopelessness of a weak case in front of a biased judge, and the cognitive dissonance caused by the inadequately-repressed awareness of the unbridgeable gap between the lawyer's (and judge's) self-image and the real-world political effect of judicial power.  (See post 265.)

Henry Fielding was a lawyer and judge as well as among the first and greatest English novelists.  Many a literary man has read the law to please his parents, including two of the authors I read with purest pleasure, LeFanu and Stevenson.  But Fielding, unlike them and most law-trained authors, made his living from the profession. 

While he was not a rousing success as a barrister (but then, most barristers aren't – bell-shaped curve and all that – Boswell never made it to the top of the greasy pole, either), he became magistrate for Westminster, and he and his brother John, also a magistrate, helped organize London's first effective police force, the Bow Street Runners.  (Fielding's courtroom was in Bow Street, across from Covent Garden.)

(On that map you'll find the geographic inspiration not only for The Jam's "A-Bomb in Wardour Street" – Wardour is the street on which the Marquee was located – but also, if you look closely, for the Kinks' "Denmark Street," which captures once and for all the soul of a pop music producer: "You go to a publisher and play him your song. / He says, 'I hate your music and your hair is too long / But I'll sign you up because I'd hate to be wrong.'")

Toward the end of his very short life, Fielding wrote a book, or rather a pamphlet, called Examples of the Interposition of Providence in the Detection and Punishment of Murder, Containing, above thirty Cases, in which this dreadful Crime has been brought to Light, in the most extraordinary and miraculous Manner; collected from various authors, ancient and modern.  Here's "Example XXX":

The following fact was told me by a gentleman whose great-grand-father was an Irish judge, before whom the thing happen'd.  The particulars have been preserved in the family by tradition ever since, but the name of the person that was executed is purposely omitted, as being of no inconsiderable family in that nation.

A gentleman was tried in Ireland for killing his friend in a duel, and the circumstances appearing very favourable on his side, a verdict was brought in manslaughter.  This crime being within benefit of clergy, the prisoner had the book offered him to read; of which he started and hesitated in such a manner, that those who stood near him asked him why he did not proceed.  He answered, he could not see the words, they were so stained with blood.  He added, that he wonder'd they should use him in such a manner, and desired there would give him a fair book.  Several people standing by look'd on the book, and all declared, that not the least drop of blood appear'd on it, but the words were perfectly legible.  The prisoner, on that, fetch'd a deep sigh, and said, "I plainly perceive the vengeance of God is pursuing me; for although I declare myself innocent of the death of my friend, any otherwise than by being forced into it for self-defence, yet I confess herself worthy of public punishment; for some years ago I barbarously murdered my own father."

He then related all the particulars of the Murder, and his confession was so full, that he must of been condemn'd on that account, had he taken his tryal; but his incapacity for reading in any book they offered him, by the appearance of blood before his eyes, still continuing, no other tryal was necessary, and he was executed by virtue of his first conviction.

He died very penitent, persisting in his confession of the Murder of his father, allowing the justices punishment, and acknowledging the hand of God, and forcing him to confession of his horrid crime.

Example XIX told of a man whom got away with murder for 20 years.  After that passage of time he felt confident enough to return to his old haunts, so to speak.  But

the very evening that he landed in a wherry at Queenhithe-stairs, walking up to Cheapside, in order to get into a coach, just in the dusk, and by the very door of his murdered friend, he heard a voice cry out, "Stop him, stop him, there he is."  On this he ran as fast as he was able, and soon found himself followed by a large mob.  He was soon overtaken and seized, on which he cried out, "I confess the fact, I am the man that did it."  The mob on that said, as he had confessed the crime, they would proceed to execution; and, after making him refund the stolen goods, would give him the discipline of pumping, kenneling and the like [that is, holding him under a pump or in a 'kennel' or open sewer]: on which he said he had stolen nothing, for though he had murdered Mr. L----, yet he had no intention of robbing his house.  By this answer, the mob found themselves mistaken, for their pursuing a pickpocket, and seeing this man run hard, believed him to be the pickpocket; but now were for letting go as a person distracted, that knew not what he said.  One man however who lived in the neighbourhood, and had heard of the murder of Mr. L----, desired that this gentleman might be examined before a magistrate, and he was accordingly carried before the Lord-Mayor, who took confession of the fact, for which he was soon hanged: and he declared at the gallows, that the day of his execution, was the happiest day he had known since he had committed that horrid, treacherous, inhuman act, the murder of a friend, who loved him, and to whom he lay under the highest obligations.

It might seem strange at first that the ribald satirist Fielding should have morphed into the earnest moralist championing God's wrath against "this sin of murder."  Here's one Victorian assuring us, presumably metaphorically, that "Fielding the magistrate and Fielding the playwright were two different persons".  But it seems to me obvious that the satire and the moralizing were the same tune played in different keys. 

For an artistic genius and pioneering judge in London in 1752, the detection of murder, and the murderer's penitence as expressed in his gallows confession, were presumed to be the handiwork of God: "the Almighty hath been pleased to distinguish the atrociousness of the Murderer's guilt, by levelling his thunder directly at his head, in this world."

Many things have changed in the succeeding 255 years, not least of all the attitudes of judges.   Today's Supreme Court presumes that a murderer's confession is the result of a civil rights violation.  From the hand of God to a tort: now there's a fall from grace.

In 1968 Justice Byron White deplored "the Court's fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity."

But that was a lawyer-centric way of putting it.  Describing an ideology in terms of categories established by the law of evidence is like describing liberalism as an ideology that favors Volvos - not wrong, but kinda missing the point.  The Court's ideology, which is by compulsion the ideology of all American criminal courts, is an ideology about punishing murderers who have confessed to their crimes.

And even that isn't quite right, because people really do confess falsely, and no one (or no one we need to respect) is in favor of locking up the innocent.  So we can put the innocent confessors to one side.  The Court's ideology is against punishing guilty murderers who have confessed to their crimes.

This ideology is imposed upon us by a group of people who want us to believe they respect the intentions of the framers of our Constitution.  (See post 79.)   Do you suppose they really know more about what people were thinking in the 18th century than Henry Fielding did?

 We know how burning the flag flips people out. Imagine if a nationally-known journalist were to get onstage during a July 4 celebration and set fire, Jimi-Hendrix-Monterey-Pop-Festival style, to a copy of the United States Constitution.

That's what William Lloyd Garrison did on July 4, 1854. It upset a lot of people at the time, but I bet it would upset even more people today.  Sixty-seven years after the Constitution was drafted, Americans could still see it as it was, as a document produced by men and accepted by other men because rejecting it wasn't a realistic option. It hadn't yet ascended to the quasi-religious status of "the miracle at Philadelphia."

Garrison, whose life is wonderfully told by Henry Mayer, called the Constitution "a covenant with death and agreement with hell." This wasn't mere abuse; his listeners would have caught the allusion to Isaiah 28:15-16. In the King James version that would have been most familiar to Garrison's audience, the verses read:

Because ye have said, We have made a covenant with death, and with hell are we at agreement; when the overflowing scourge shall pass through, it shall not come unto us: for we have made lies our refuge, and under falsehood have we hid ourselves: Therefore thus saith the Lord GOD, Behold, I lay in Zion for a foundation a stone, a tried stone, a precious corner [stone], a sure foundation: he that believeth shall not make haste.

(Here are several modern translations, with commentary, which make the verses' - and therefore Garrison's - meaning a little clearer.)

I don't think anyone can seriously dispute that the Constitution was a compromise with evil. Not metaphorical evil, or the lesser of two evils, but the cloven-footed thing itself. When Garrison burned his copy, it gave off the smell of brimstone.

The whole idea of a Constitution in a democratic society is that the people, through democratic means, agree to place certain subjects beyond the reach of democratic control. The demos divests itself of some of its sovereignty. And one of the subjects that the Constitution placed beyond democratic control was slavery. 

From the moment the Constitution was ratified, it didn't matter if a majority of Americans, even an overwhelming majority, disapproved of slavery, or considered it a positive evil. In their supposedly democratic new state, they had no power to do anything about it.

It is telling, and a bit pathetic, that the drafters of the Constitution couldn't even bring themselves to use the word "slavery." Instead, they provided that “[t]he migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808”.

By “such people,” the drafters meant thousands of kidnapped Africans crammed into coffin ships and brought across the ocean to be brutalized. The modern equivalent, perhaps, would be UFOs beaming us up from the street and taking us to Andromeda to be worked to death growing strange crops. That was the miracle at Philadelphia.

Nor could Americans choose for themselves whether to offer shelter to Black people in search of the land of the free. The Constitution prohibited Americans from exercising their own moral judgment about that: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”

That meant that every sheriff in the nation was constitutionally required to be a slave driver, and the taxes of every citizen were used to prevent the ideals expressed in the Declaration of Independence from being realized.

The Constitution awarded slaveowners additional seats in Congress in proportion to their inequity. The "three-fifths clause" gave additional seats in Congress based on each state's slave population. The slaves themselves could not vote, and of course the people who were allowed to vote didn't represent the slaves' interests.  Apportioning congressional seats based on the number of slaves meant that, as far as the House of Representatives was concerned, the votes of white Southern males counted for more than the votes of white Northerners.  

Garrison wasn't alone in recognizing that the Constitution was, at best, an ignoble compromise. Abraham Lincoln explained it clearly just four years after Garrison's incendiary act.  In a Chicago speech he compared the Declaration of Independence to the Constitution:

I should like to know if taking this old Declaration of Independence, which declares that all men are equal upon principle and making exceptions to it where will it stop. If one man says it does not mean a negro, why not another say it does not mean some other man? If that declaration is not the truth, let us get the Statute book, in which we find it and tear it out! Who is so bold as to do it! [Voices—"me" "no one," &c.] If it is not true let us tear it out! [cries of "no, no,"] let us stick to it then, [cheers] let us stand firmly by it then. [Applause.]

It may be argued that there are certain conditions that make necessities and impose them upon us, and to the extent that a necessity is imposed upon a man he must submit to it. I think that was the condition in which we found ourselves when we established this government. We had slavery among us, we could not get our constitution unless we permitted them to remain in slavery, we could not secure the good we did secure if we grasped for more, and having by necessity submitted to that much, it does not destroy the principle that is the charter of our liberties.

At the time Constitution was drafted and ratified, Americans understood that their new nation would have a short lifespan if the 13 colonies didn't bind together. Thirteen separate countries would have been easy pickings for any European power. Only by joining together in a union could they hope to maintain their independence.

That was obvious to everyone concerned, and especially to the southern slaveowners, who in effect held the future of the United States ransom to their own short-term economic self-interest. Give us slavery, they said, or you don't get your union. So the people who declared themselves independent on the basis of the self-evident truth that all men are created equal gave them slavery.

America's founding contradiction was memorably captured by Samuel Johnson in 1775 when he asked: "how is it that we hear the loudest yelps for liberty among the drivers of negroes?" That contradiction was embodied, not resolved, in our Constitution.  The Constitution was history's true Faustian bargain. 

Lincoln coined that phrase “charter of our liberties” to refer to the Declaration of Independence. Justices of the modern Supreme Court perverted the phrase's meaning into its opposite when they assigned that title to the Constitution instead. A document that enshrined slavery a charter of liberties!

Were the justices not thinking about the meaning of the words they used? Or did they cynically see how extraordinarily useful it would be – to them – to encourage that ignorant pseudo-patriotism?

America has never gotten over its founding contradiction.  The many ways in which it continues to determine our criminal law will be the subject of future posts.

Members of the Supreme Court - especially Justices Stevens and Scalia - are very big on appeals to history.  They're constantly talking about "the Framers" while being coy about who those people actually were.  (see post 79.)   And, in the manner of the lazy pop historian who tells us what some historical personage "must have been thinking" and "no doubt felt", the justices are quick to tell us that "the Framers were no more willing" to do one thing than another, and "the Framers certainly would not have condoned" something else. 

One distinguishing characteristic of lazy pop historians is their sentimentality, and the justices spread the schmalz thickly all over the past.  (See post 30 and post 192.)  One reason for this is that they draw their ideas from such an extremely narrow range of sources, principally those few appellate court opinions that have been transmitted down to us, and the words of those few cranky egotists who thought posterity deserved the benefit of their recorded thoughts.

For example, when Justice Thomas wanted some lessons from history about the way felons were sentenced when the Constitution was being drafted, he looked at appellate opinions from half a century later, explaining in a footnote that he (meaning his Federalist Society clerks) couldn't find any appellate opinions closer in time.  You might think that examining the press releases of appellate courts is a somewhat indirect way to look at what was happening in jails and county courthouses, but apparently it's the only way the clerks know.

But the main reason for the haze of sentimentality, the vaseline-on-the-lens soft focus of the justices' faux-history, is that they're really writing about themselves.  For both Scalia and Stevens, and for every other judge who pretends to draw lessons from history, the past is a place where everyone agrees with you.  

So it's good to be reminded from time to time that real people lived in the past, too.  They weren't all cartoons.  From a biography of that great English magistrate, Henry Fielding, comes this description of one of his predecessors in office:

[Sir Thomas] De Veil kept a private closet for the judicial examination of women and boasted his ability of being 'diligent and expeditious in doing a lady's business for her.'  He was known for his 'knack at coming at kept mistresses'.  When a female defendant caught his fancy, he took care that the case was settled before him on easy terms.  Then, 'he would enquire of the fair criminal, if she had not a back-door to her lodging, where a chair might stop without suspicion? at what season her friend was out of town or engaged? and when an amicable visit might be received without interception?'  He looks out from his portrait by De La Cour as a well-fleshed man with sharp eyes and an air of vigour.  He was routinely corrupt in taking money ...  In 1747 he issued a manual for magistrates called Observations on the Practice of a Justice of the Peace.  He advised his colleagues to take only the fees and what he called vaguely 'Perquisites' to which their office entitled them, and always to receive the money through the clerks as a matter of dignity.

In case you're wondering whether the perquisites of judicial office have changed much in the past 250 years, the answer, I'm afraid, can be found by following this link.  And this one.  These examples are aberrations, in more ways than one, but it would be foolish to imagine all such cases become public.

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[.]

 

In his review of Jeffrey Rosen's new book, Professor  Thomas Healey (who really ought to be teaching at the University of Texas)  draws a distinction between the merits of a court's constitutional decision and its practical effects.  (See post 145.)  My brother reports that in engineering circles the distinction is sometimes made with the question: That's all very well in practice, but how does it work in theory?

When the Supreme Court reworked the sixth amendment's confrontation clause in 2004, the merits of the case had to do with more-or-less rarefied questions of constitutional theory.  They also had something to do with the strange discipline practiced by justices under the rubric of "history", which has virtually nothing in common with history as practiced by historians.  (See post 81 and post 131)

The practical effects of the case were far simpler: Crawford and its follow-up Davis (see post 127) made it far more difficult for the states to prosecute domestic violence and child abuse cases.  And that's the euphemistic way of putting it.  What they  actually did was prevent the states from prosecuting many such cases.

Both opinions, as it happens, were written by a conservative, elderly father of nine children.  If you knew nothing at all about the particular father of nine except that he was 70 years old and quite conservative, what would you guess his feelings would be about statutes that permit agents of the state to interfere in a father's relationship with his wife and children?

One can easily believe that such a person, being a loving and kind family man, would deplore the extreme violence that prosecutors in this field never quite get used to learning about.  But he might also be very skeptical about the nanny state's right to critique his parenting skills, or regulate his marriage.  He would be incensed at the thought of self-righteous government bureaucrats trying to coax (or coach) his own children, his own wife, into testifying against him.

If a person like that happened to get the chance to write some fundamental law governing the investigation of crimes within the family, what sort of law would you expect him to produce?  Is it possible, just possible, that maybe the "merits" of the resulting decision are the side-effect, and the practical effects the intended ones?