Posts Tagged ‘Founding Fathers’

Commas and the Law, Part V – The 2nd Amendment

January 11, 2008

We left off with the video of the high speed chase in the case of Scott v. Harris in the United States Supreme Court decided last year. [1]If you haven’t watched it, here it is again.

Victor Harris, age 19 at the time, was going 73 mph in a 55 mph speed zone on a road in Georgia. A police cruiser clocked him at that speed and then went after him. Young Harris fled, which resulted in the high speed chase (up to 90mph) you see on the video. After about 9 minutes of the chase, the police decided to “take him out” by shoving the Harris car off the road, resulting in the wreck you see at the end of the video. Amazingly, the wreck did not kill Harris but it did render him a quadriplegic, paralyzed permanently from the neck down. Harris sued the police, alleging that they used unnecessary force to stop him. (The police knew who he was long before the chase ended and could have abandoned the chase, gone to Harris’ house and arrested him there) Two lower courts, while not deciding the case either way, thought that Harris was entitled to have a jury hear his claim. The Supreme Court, by a vote of 8 to 1 threw Mr. Harris out of court without giving him his jury trial, holding that the video proved that no “reasonable” person could conclude that the police used unjustified force in ending the chase. The lone dissenter, Justice Stevens, saw something different and no one can rebut his senses because none of us can see anything except with our own eyes.

But the Court tried. It put the video up on its web site, the first time it had ever done such a thing, inviting people to look at it and make up their own minds.

Accepting the Court’s invitation, three law professors showed that video to 1,350 representative Americans to see if they agreed with the result. You can read the paper here.

The majority did agree, but a significant minority thought that the police overreacted and used unreasonable force. The people who agreed with the Court held “hierarchical” worldviews. The minority, which did not agree, held “egalitarian” worldviews. People are disposed to resolve disputes in a way which supports their group identities and their personal values:

Individuals who subscribe to a worldview that is relatively “hierarchical,” we predicted, would likely be strongly inclined to agree with the Court’s assessment of the risks posed by the fleeing driver, whose defiance of authority would provoke their resentment and fear. In contrast, subjects who subscribe to a more egalitarian worldview, we predicted, would be angrier at the police, as symbols of overreaching authority figures, who were indifferent to the danger their own use of force posed to the well-being of bystanders, not to mention the driver. As a result, they would form the judgment that the decision to chase the driver and to use deadly force to halt his flight were not risk-reducing on net.

That’s exactly what we found.

It turns out that our perception of facts are “pervasively shaped” by our values. Moreover, we clearly perceive this value-based perception in others but are very bad at seeing it in ourselves. The Court in the Harris case failed “to recognize the cultural partiality of its own perceptions.”

The Court’s appeal to brute sense impressions to justify its decision reflects a simple incomprehension that people with particular cultural commitments would likely see something very different. Only decisionmakers unaware of the role that cultural commitments were playing in their own perceptions of the facts could actually make an oversight like that.

But that’s not all. Ascertain whether a justice is more “hierarchical” or “egalitarian” and you can predict how that justice will interpret those 2nd Amendment commas. Those commas in the 2nd Amendment mean exactly what each justice wants them to mean. So much for the idea that the law, like grammar, is objective and rational.

And it gets worse, our values are shaped in large part by our emotions. But that is a subject for another day.
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[1] Lawyers find the case fascinating for all sorts of technical reasons but my purpose today is to use the case to demonstrate how judges decide cases and how the Supreme Court is likely to decide the 2nd Amendment case we’ve been discussing in these posts about the commas in the amendment. Here is just a small sample of the legal debate. Orin Kerr, What Are the Facts in Scott v. Harris, The Volokh Conspiracy, http://volokh.com/posts/1172720514.shtmlhttp://volokh.com/posts/1172720514.shtml (“The right answer is that Justice Breyer should believe his own eyes.”) (February 28, 2007); Case Comment, Fourth amendment – Reasonableness of Forcible Seizure, 121 Harv. L. Rev. 214, 222 (2007) (arguing that the Court’s analytical approach pushed it to make a bad ruling on an incomplete record); Tommy Crocker, Do Texts Speak for Themselves, Prawfsblawg, http://prawfsblawg.blogs.com/prawfsblawg/2007/11/do-texts-speak-.html (November 5, 2007) (criticizing Court’s lack of justification for its result and stating “I can imagine how much easier teaching would be if I could simply say to students, ‘I’m happy to allow Marbury to speak for itself.’ ”)”); and Dave Hoffman, The Death of Factfinding and the Birth of Truth, Concurring Opinions, http://www.concurringopinions.com/archives/2007/04/the_death_of_fa.html (April 30, 2007) (“each Justice saw the risk of speeding through his or her own cultural prism.”).

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Commas and the Law, Part IV – The 2nd Amendment

January 9, 2008

This business about the commas in the 2nd amendment is getting complicated. We’ve had several erudite comments and possible interpretations of the amendment. I encourage everyone to read them thoughtfully, which obviously is how each was written. For now, I am going to combine two statements from the comments written by “Scandal17″ who wrote,

You tell me what kind of clause you want it to be. . ., what kind of clause your judge wants it to be. It’s up for grabs in an absolute phrase, whether that phrase be in plain English, Latin, or Greek.

In other words, textual analysis is going to take each justice who performs it where ever that justice wanted to end up in the first place because no result is absolutely decreed by the text.

Another commentator agrees with the majority in the D.C. Court of Appeals decision. He says, “one readily sees that the Absolute clause does not modify the subject of the main clause.” That decision leads to the conclusion that the Amendment protects an individual right to keep and bear arms. We know already that Justice Thomas agrees and it is fair to assume that Justice Scalia and other Justices will as well. However, I suspect others won’t.

Which illustrates the point that judges — like the rest of us — make decisions through a complex interplay of emotion and reason. Mostly, the emotions lead and are followed by reason. Reason’s primary function is to justify the decision. The commas are tools for reason; applied after emotion.

Descartes would not agree with me. He posited that humans first must understand an idea before they can evaluate it. Spinoza thought otherwise. It was Spinoza’s thought that believing comes either prior to or at the same instant as understanding. The brain forms beliefs automatically. Rejecting a belief requires a conscious act.

I do not intend here to delve into the mind-body problem raised by Descartes. But a little background is necessary. Descartes started the whole mess with his cute little dictum, “I think; therefore, I am.” An innocent enough statement until you dig into it. Your shovel quickly reveals that it separates body from mind and spirit from both. That is a handy thing for people whose job it is to make decisions. They can pretend, at least, to be purely rational in their decision-making process. In other words, Descartes is a life-saver for judges. Without him they would stand naked before us, deciding cases based on emotion as well as reason, just like we decide what movie to see or what team to root for.

But Descartes may have been wrong.

My limited understanding of modern behavioral and neurological research is that it sides with Spinoza. While we are fully capable of analyzing and rejecting ideas and information, we tend first to believe whatever we read or hear. And what we read or hear is profoundly influenced by the culture in which we exist and our emotional needs.

What is true for all the rest of us is also true for judges. Here is Richard Posner — conservative judge of the 7th Circuit Court of Appeals, appointed by President Reagan — on the issue:

“[O]ften in law it is very difficult to verify (or falsify) empirical claims by objective data.” In such cases, “judges perforce fall back on their emotions or intuitions. They practice … ‘cultural cognition.’ ” The Role of the Judge in the Twenty-First Century, 86 B.U.L. Rev. 1049, 1064-65 (2006).

Which will eventually take us back to those commas. But first we’re going to watch a high speed auto chase. Here is the video which involved the legal question of whether the police were justified in using the force they did to stop the fleeing auto. (Be warned: The video ends in a bad car wreck.) Tomorrow we’ll discuss its relevance to those commas.

Commas and the Law, Part III – The 2nd Amendment

January 4, 2008

Since the last post on the commas of the 2nd Amendment I’ve had two comments from a scholar of Latin and Greek. You can read them at the end of the last post in the series or you can wait until the next post in which I will quote both as we finish our examination of the grammar of the amendment.

Today, however, the first brief in the D.C. gun control case will be filed in the Supreme Court. Here is a copy. I will summarize it for those of you without the time or inclination to read it. You’ll have to skip to page 27 (p- 46 of the PDF version) to find the first reference to a comma. I’ll begin my summary of the brief with that portion. Today’s filing is the brief on behalf of the District of Columbia. The District wants the Supreme Court to reverse the decision of the court of appeals which would have the effect of sustaining the constitutionality of the District’s handgun ordinance.

We’ll start with the commas. According to the District’s brief, the first version of the Amendment, drafted by Madison and submitted to the Virginia ratifying convention, read as follows:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Forget the last clause, the conscientious objector provision; it did not make into the Constitution. Instead focus on the semi-colon after the first clause and the first clause itself. You’ll note that the final version transposed the first and second clause of the amendment and changed the semi-colon to the first of the three commas. Here is what the District has to say in its brief about that:

A select House committee meeting in executive session transposed the first two clauses, making the reference to a “well regulated Militia” more prominent, and substituted a comma for the semi-colon, underscoring the connection between the two clauses. Id. at 170. The new structure and punctuation reflected the fact that the need to protect the right followed from the need for the militias.

“Whoa,” say the grammarians — and the majority of the court of appeals — “they just blew by that comma. I thought commas separated independent clauses. Doesn’t substituting a comma for a semi-colon underscore the independence of the two clauses, not their connection?”

I imagine we’ll be hearing from the other side about that.

But the District’s discussion of the first clause and the commas occurs in the context of its basic argument which is that the amendment deals only with military matters. The District argues that the subject of the clause is “the militia” and the object is “the security of a free state.” In other words, the amendment protects the possession and use of guns only while serving in an organized militia. This is about the military, not civilians. According to the District:

The first clause—“[a] well regulated Militia, being necessary to the security of a free State”—speaks only of militias, with not a hint about private uses of fire-arms. A well-regulated militia is the antithesis of an unconnected group of individuals, each choosing unilaterally whether to own a firearm, what kind to own, and for what purposes.

The second clause—“the right of the people to keep and bear Arms, shall not be infringed”—equally ad-dresses the possession and use of weapons in connection with militia service. In 1791, “Arms” and “bear Arms” were military terms describing the use of weapons in the common defense, and the word “keep” was used in connection with militiamen’s possession of the arms necessary for militia service.

Taken together, the two clauses permit only a militia-related reading. To conclude that the Framers in-tended to protect private uses of weapons, the major-ity below read the entire first clause to be extraneous and the second to be in tension with the natural, military meaning of “bear Arms.” If that had been the Framers’ intent, they would have omitted the first clause and used non-military language in the second.

Not a word about the “ablative absolute” of Latin.

The District makes two other arguments in its brief, both of which would allow the Supreme Court to duck the fundamental constitutional issue of whether the 2nd Amendment protects an individual’s right to own guns. As I’ll point out in the next installment of this series, reasons exist for the Court to do just that.

First, the District argues that the 2nd Amendment does not apply within the boundaries of the District of Colombia. The purpose of the entire Bill of Rights was to constrain the federal government from impinging on the rights of states and individuals but the district is a federal-enclave. Because the District’s legislation has no effect outside the boundaries of the District, the ordnance does not implicate the 2nd Amendment. (Congress is vested with plenary power over the District in Article I, Section 8 of the Constitution.)

Finally the District argues that even if the amendment provides an individual right to own guns and even if the amendment applies in the District, the ordnance still passes constitutional muster because it is a reasonable regulation of that right.

According to a long line of Supreme Court decisions, our constitutional rights are always subject to reasonable limitation. Justice Holmes’s aphorism that the First Amendment’s right of free speech does not extend to shouting “Fire!” in a crowded theater is an example. The District argues that banning handguns, requiring registration and trigger-locks is just such a reasonable limitation.

The District’s brief is the first in what I am sure will be a series of fine briefs. Responsive briefs are due in early February and I will return to discuss them. While we wait, we’ll finish off the commas.

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I see that the Washington Post editorialized about the addition of Walter Dellinger to the District’s lawyers today. You can read that here.

Commas and the Law, Part II – The Second Amendment

December 27, 2007

At the conclusion of our last exciting episode we learned that any purported right to own private guns depends on the “ablative absolute” Latinate grammatical construction of the 2nd Amendment. I’m sure you’ve been kept on the edge of your seats waiting for today’s exciting installment. This is almost as stirring as those old weekly black and white serials in the movie theaters where the hero is cast down into a pit of poisonous snakes at the end of the episode or the heroine is tied to railroad tracks just minutes before the west-bound is due.

royal-navy-flintlock.jpg

But what is the ablative absolute?

From Wikipedia I learn:

In Latin grammar, the ablative absolute (Latin: ablativus absolutus) is a noun phrase cast in the ablative case. More specifically it consists of a noun or pronoun and some participle (in the case of sum [“to be”] a zero morpheme often has to be used as the past and present participle do not exist, only the future participle), all in the ablative absolute.

There. Now that we have that clear . . . .

It indicates the time, condition, or attending circumstances of an action being described in the main sentence. It takes the place of, and translates, many phrases that would require a subordinate clause in English. . . .The closest English equivalent is the nominative absolute.

Good. Now all I need is a couple of examples, please. (Are you paying attention here, Justice Scalia?)

Ovidio exule, Musae planguntur.

* Ovid having been exiled, the Muses weep. (literal)
* With Ovid having been exiled, the Muses weep.
* The Muses weep because Ovid has been exiled.

Ira calefacta, sapientia dormit.

* With anger having been kindled, wisdom sleeps.
* Wisdom sleeps because anger is kindled.

Here is one more example, this time from Adam Freedman writing in the New York Times of December 16, 2007:

Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.

Perfectly clear, sir.

If we are dealing with this Latinate construction, the 2nd Amendment reads, “Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed.”

That means it is the right to a well-regulated militia that is being protected, not an individual’s private right to possess firearms. (There is no doubt that the Amendment provides a right to possess firearms to individuals serving in a militia. The unanswered question is whether individuals not serving in a militia also have the right.)

Will the Supreme Court rule that there is no private right to bear arms in the United States? To find out the answer, tune in to our next installment of this series: A Snowball Travels to Hell or Global Warming: Myth or Fiction?

Commas and the Law, Part I The Second Amendment

December 23, 2007

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Commas are the Border collies of language. Their job is to round up all the sheep and put them where they belong — in the corral of the author’s intended meaning. Occasionally though the sheep get out. That appears to be what happened when the Founding Fathers wrote the Second Amendment to the constitution. Here is the official text — watch the commas — of the Amendment:

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.

Three commas. And upon those commas hang the question of whether individual citizens of the United States have the right to keep guns in their homes.

Modern lawyers are deeply suspicious of commas. They can create ambiguity. The Founders, lawyers mostly, were not. At the time they were writing, a long tradition in Anglo-Saxon law held that punctuation marks in statutes and laws should be ignored. The Founders used commas promiscuously, inserting them in places they had no business. That third one in the Second Amendment for example. What does it think it is doing there? Or the first one?

After two centuries of abstaining, the Supreme Court may be about to tell us. In November, the Court agreed to hear a case raising this question:

Whether [a District of Columbia law barring all pistols not licensed before 1976; and requiring that all guns kept at a person’s home be unloaded, disassembled or locked up] violate[s] the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The case goes to the Supreme Court after a D.C. resident, who has a pistol in his home and wants to keep it, won in the federal court of appeals which sits in D.C. (By a split decision, 2-1.)

That court, when it read the Amendment, ignored the entire business about the Militia. Those two judges think the Amendment reads, “The right of the people to keep and bear Arms shall not be infringed.” If that was all the Amendment said, an individual would have the right to keep whatever armaments he wished. The problem is that the first clause of the Amendment is there and so has to mean something. While lawyers could once ignore punctuation marks, never could they ignore entire clauses.

How could a court ignore the entire first clause? By deciding that the second comma is the only one that counts. That comma, according to that court, divides the sentence into a “prefatory” clause and an “operative” clause and the “operative” clause is the one that insures an individual’s right to have guns in her home. In other words, the Founders were just clearing their throats in that first clause. The dissenting judge thinks that you can’t ignore the other two commas, which results in a reading that the Amendment supports the right to a well regulated militia and confers a “collective” right to bear arms, not an individual right.

The best “punctuation” analysis of the Amendment that I have seen I don’t understand. That is because I never had a chance to take Latin. In a life full of regrets, I regret never learning to play the piano or learning Latin. Sigh. So much to do, so little time.

Anyway, a commentator who did take Latin says the Amendment is the rhetorical device of the “Ablative absolute.”

Now. Isn’t everything perfectly clear?

If it isn’t, you’ll have to stay tuned for our second post in this series: Get Your Guns — Here Come the Commas or How I learned to stop worrying and love Latin.

Religion and American Law and Politics, Part III

September 23, 2007

We ended the last post in this series with Thomas Jefferson suggesting to James Madison that they should devoutly pray for Patrick Henry’s death.  This tongue-in-cheek comment by Jefferson reflected his and Madison’s frustration with Henry’s attempts to tax for religious education and to enshrine a particular religion as the state religion of Virginia.  They did not want a State religion in America. 

Which brings us to the Founding Fathers.  What were their religious views?  As we progress through this survey please remember two things: first, this is a lowly blog, not a detailed treatise on American history; Second, the Founding Fathers were practical politicians.  As practical politicians they were not above using religion and public professions of religion in order to achieve and exercise power.  Many presidents and other political leaders, knowing that most of the population either is or professes to be religious, use that knowledge for practical ends.  President Kennedy frequently attended church during his presidency; yet when one of his sisters – who presumably knew him well – was introduced to an author who proposed to write a book about Kennedy’s religious beliefs, she remarked, “That will be a very short book.

About half of the Founding Fathers were nominally Episcopalian or Anglican.  Most of the rest were Protestants of one kind or another. But all were children of the Enlightenment which enshrined reason over all else. Jefferson, Franklin and Madison were Deists who believed in a single God operating in the world through providence.  They accepted Jesus as a great moral teacher but did not believe he was the Son of God.  In that sense, they were not even nominally Christians.  With only months left to live Franklin wrote a letter in which he said that he doubted the divinity of Jesus but added, “. . .though it is a question I do not dogmatize on, having never studied it, and think it needless to busy myself with it now, when I expect soon an opportunity of knowing the truth with less trouble.”

Jefferson was more explicit, once spending several evenings in the White House scissoring out of his copy of the New Testament everything he found to be supernatural.  Of the Holy Trinity he wrote, “Ideas must be distinct before reason can act upon them, and no man ever had a distinct idea of the trinity.  It is the mere Abracadabra of the mountebanks calling themselves priests of Jesus.”

George Washington was a practical man as well.  He wrote, “And let us with caution indulge the supposition that morality can be maintained without religion.”  That was an idea that all the Founders seem to have held; that religion is necessary to instruct the populace in morality and to hold together a functioning society.  None were above using public religious ideas to advance their causes even if their personal beliefs were less religious.  One scholar of whom we will hear more has concluded that Washington “appears to have thought religion a useful tool in leading his troops and later, his nation.” [Jon Meacham in American Gospel, p-77.]

Nor is it beyond reason to suspect that Jefferson was also using religion as a tool when he wrote in the Declaration of Independence that the new nation was going to assume among the powers of the earth, “. . .the separate and equal station to which the Laws of Nature and of Nature’s God entitle them. . . .”  Jefferson – and Franklin and John Adams who reviewed and made changes to Jefferson’s draft – may have had a different idea of God than many of his contemporaries and most Americans since have thought.  One of the “Founding Fathers” of the Enlightenment which so heavily influenced all the Founding Fathers of the United States was Baruch de Spinoza.  Spinoza, a pantheist, held that Nature and God are one and the same.  No white flowing bearded God existed for Spinoza; there was only Nature.  So when Jefferson wrote about the laws of Nature and Nature’s God he may have been going as far as he dared in espousing his own personal religious belief which was far closer to Spinoza’s philosophy than anyone noticed.  Evocations of God are a common thread throughout our political history and Jefferson and the other founders were not above such practical politics.

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About the two paintings.  The first is the committee of five, Jefferson, Adams, Franklin, Livingston, and Sherman presenting the draft of the Declaration of Independence to the Second Continental Congress painted by John Trumbull.  The second painting, by Howard Chandler Christy, is a representation of the signing of the Constitution.  Seated in the center of the portrait are Hamilton, Franklin and Madison.  Washington, well you don’t me to tell you which one is Washington.