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Wednesday, June 29, 2005

The Heir of King George

I suppose that what disgusts me most about the ludicrous Logan Clements proposal (and its equally ludicrous warm welcome in the legal blogosphere) is that the Founders of this country were appalled by the abuses of the crown in retaliating against jurors and judges who gave unpopular decisions.  One of the crimes of King George, as laid out in the Declaration of Independence, was his trampling of the judiciary.  "He has made Judges dependent on his Will alone, for the tenure of their Offices, and the amount and payment of their salaries."

And so, to prevent such abuses in the nascent nation, the Framers of the Constitution set out to create a political structure where judges would not be subject to retaliation.  They went to great lengths to establish an independent judiciary that could rule on cases in accordance with the law and without fear of retaliation.  And they succeeded. 

And now some yahoo in California thinks it would be a good idea to scrap that system and return to the era in which judges live in fear of retaliation for their rulings.  Logan Clements might as well be spitting on the Framers' graves.  He is the moral and intellectual heir of King George. 

(Equally disturbing, the legal blogosphere seems completely unfazed -- even eager -- at the prospect of trading in judicial independence for a mess of pottage.)

Posted by Kaimi Wenger on June 29, 2005 at 08:23 PM in Constitutional thoughts | Permalink


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Were you similarly disgusted at the outrage common in liberal circles to Bush v. Gore?

Posted by: skeptic | Jun 29, 2005 9:39:21 PM

The Founders were indeed concerned about the threat of retribution against Judges. See, e.g., Fred Barbash, The Founding at 167. However, while I can imagine them being less than thrilled with the action proposed against Justice Souter in the abstract, can you really imagine them being anything other than apalled at the ruling which prompted these threats?

The Framers argued over every detail of the Constitution, down to whether the punctuation mark immediately before the words "to pay the debts" in Art. I 8 Cl. 1 should be a semi-colon or a commar (see Barbash, supra, at 199). They clearly intended and understood that the document they were working no had a fixed meaning, and one of those fixed meanings was how the document would be amended. They discussed that, too, you know. See Federalist 43, 49 and 85; Barbash, supra, at 192-194. With such scrupulous attention to detail, with such clear intention that the constitution should mean what it says, do you really think they would be pleased wih a ruling like Kelo, which effectively voids the takings clause? The Framers sought to avoid arbitrary and capricious government; to protect people and their property from government.

In my view, Kelo is one more plot twist of an ongoing saga - colloquially called "the living constitution" to impose exactly that.

Posted by: Simon | Jun 29, 2005 10:41:20 PM


Any retaliatory movement against judges is very dangerous to the rule of law. I'm not aware of a proposal by liberals to seize Justice Scalia's property, post Bush v. Gore. But there may well have been one. And if there were, it was wrong as well.

In general, I try to avoid the wingnuts on both sides of the spectrum. Which is why I was so surprised to see generally sensible people applauding Clements' crazy proposal.


The Founders' views on the constitution were complex, and certainly can't be boiled down to a paragraph on a blog.

However, I doubt that they would have batted an eyelash at Kelo. After all, they didn't give any Bill of Rights protections to actions by the states. (That didn't happen until the incorporation of the 14th amendment).

Posted by: Kaimi | Jun 29, 2005 11:15:54 PM

Also curious is the apparent misunderstanding--common among laypeople but surprising for law-bloggers--of the effect of any decision by the Supreme Court that an individual lacks a claimed constitutional right. Kelo tells elected bodies that they, not courts, have to decide whether economic development is an appropriate reason to use eminent domain. All individual rights cases where the individual loses are like that: they turn over responsibility for the right at issue to legislatures. Clements and his supporters are behaving as though the Supreme Court took away the Kelos' house instead of giving the city of New London and the state of Connecticut the power to decide whether it should be taken away or not. (Compare Raich: The Supreme Court did not outlaw medical marijuana, as some of the headlines had it. It decided that the decision belonged to Congress rather than the California Legislature.) Putting the power to decide in that quarter is not the same thing as annihilating the right or saying the right should not exist. The mistake in logic is the supposition that if the court says the constitution doesn't protect a right, the justices are against anyone having that right.
Clements' idea is that the town council in Souter's town should express its outrage over being handed the power to decide whether the individual right in question should be protected by infringing it! It's as if a pro-choice activist were to react to the overruling of Roe by demanding anti-abortion legislation (maybe in order to stop a justice's daughter from getting an abortion).

Posted by: Jeff Manning-Cartwright | Jun 30, 2005 1:30:49 AM

Jeff: yea, but the legislatures are corrupt!! The problem with Kelo is of a kind with the problem in Buckley v. Valeo: the Court simply refuses to police, or, in the case of Buckley, to permit the legislatures to police, even the most egregious corruption of the political system by monied interests.

To say "oh, don't worry, the constitution doesn't protect you, but you have a RIGHT to resist the attempt of PFIZER to take your house in the political sphere" is to make a sick joke when Pfizer has billions of dollars to directly or indirectly grease the palms of your "representatives" and you don't.

A large part of my disgust with this decision (even though I agree it followed well-established precedent) is the fact that I see no reason to have any faith in our supposed "representatives" to avoid the lure of anyone who comes to them with a big honking sack of cash in hand. See e.g. the bankruptcy bill, a.k.a. "Mr. MBNA Goes to Washington."

There are a lot of things that the legislature gets to decide on that are nonetheless utterly foregone conclusions.

Posted by: Paul Gowder | Jun 30, 2005 7:59:35 AM


Can anybody please tell me what is the difference between retaliation and holding Justices (or judges) accountable for what they voted in major cases?

Being an independent justice doesn't mean he is no longer accountable or above the law. I hope Americans do remember that little fact.

It doesn't matter if everybody misunderstood the real meaning of Kelo decision or studied the law correctly, what the MAJORITY of Americans will undoubtly understand is that the use of eminent domain has been expanded greatly, giving way to more abuse. The fact remains that the MAJORITY of Americans aren't too pleased by this particular ruling and others as well.

I'll be happy when two possible seats on Supreme Court are vacated (Rehnquist and one other possibility, hopefully a liberal)...giving conservatives the first real opportunity to undo some of liberal mess. Let's hope Republican Senate can confirm them.

In all, does anybody wants a candy piece? I think I like Snickers better...

Posted by: Dan | Jun 30, 2005 11:54:52 AM

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