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Sunday, September 02, 2018

Damnatio memoriae

This is an interesting case from the Sixth Circuit (H/T: Volokh Conspiracy). Plaintiff sued the recorders of deeds throughout Ohio, alleging that continued maintenance of deeds, plat maps, and other property documents containing (unenforceable) racially restrictive covenants violated equal protection and the FHA. The court held that the plaintiff lacked standing. He suffered no economic injury because he offered no evidence that he had been unable to purchase property. Any non-economic injury of a feeling of not belonging was not particularized to him, but undifferentiated and generalized.

The majority opinion, written by Judge Boggs, ends on the following:

In ancient Rome, the practice of damnatio memoriae, or the condemnation of memory, could be imposed on felons whose very existence, including destruction of their human remains, would literally be erased from history for the crimes they had committed. Land title documents with racially restrictive covenants that we now find offensive, morally reprehensible, and repugnant cannot be subject to damnatio memoriae, as those documents are part of our living history and witness to the evolution of our cultural norms. Mason’s feeling of being unwelcomed may be real. A feeling cannot be unfelt. But Mason’s discomfort at the expression of historical language does not create particularized injury. The language in question is purely historical and is unenforceable and irrelevant in present-day land transactions.

This prompted a two-paragraph concurrence from Judge Clay:

I concur in the judgment and, for the most part, in the opinion’s analysis, but I do not entirely agree with the majority’s suggestion that we cannot, under appropriate circumstances, modify or dispense with documents that are “part of our living history and witness to the evolution of our cultural norms.” Justice may require us to repudiate or revise elements of our “living history” if those elements—whether they be public records, flags, or statues—are shown to encourage or perpetuate discrimination or the badges and incidents of slavery; indeed, racial epithets that were once accepted as commonplace have not been preserved, and they have sometimes been stricken from our modern vernacular. We apply an even stricter standard where, as here, the government is the source of, or has ratified, language that has the purpose or effect of encouraging racial animus. We need not erase our history in order to disarm its harmful legacy, but victims of invidious discrimination who have suffered particularized injury as a result of the application of historical language should be able to seek redress, consistent with the context and the factual circumstances of their cases.

I also fear that the majority’s statement that “Mason’s discomfort at the expression of historical language does not create particularized injury” could be misunderstood or taken out of context to suggest that feelings of discomfort with racially discriminatory language could never create a cognizable injury. I do not, however, read the majority opinion as foreclosing a properly pleaded claim arising out of such racially discriminatory language, especially under circumstances that implicate governmental instrumentalities. Rather, I read the opinion to hold that the plaintiff in this action has simply failed to plead sufficient facts to demonstrate a legally cognizable injury. If and when a plaintiff shows such an injury, this Court will have to reconcile the importance of maintaining our recorded history with our vision of government speech that promotes—not hinders—a free and equal society. I do, however, respectfully concur.

 This dispute gets at an important piece of the model of my model of constitutional litigation. There is no judicially remediable constitutional harm coming from legal documents disconnected from actual or threatened executive or private enforcement. The dispute here is over real-estate documents. But the same arguments surround outmoded laws (e.g., anti-miscegination laws or prohibitions on same-sex marriage) that remain on the books but could not be successfully enforced in court. The legislature could repeal these statutes, while it would take much more to undo these sorts of legal documents. But the idea is the same--law (apart from enforcement) cannot and should not be erased by a court because of the "message" it sends from continuing to exist or having existed in the past. The court framed this as lack of standing; a good Fletcherian would call this the lack of remediable substantive constitutional rights.

Judicial departmentalism adds an extra wrinkle, because an executive could attempt to enforce such a law in the face of contrary precedent. That effort will fail once the dispute reaches a court, which is bound by precedent; it also will result in attorney's fees and potential Rule 11 sanctions. But it justifies recent efforts to get legislatures to repeal anti-miscegination laws. The arguments have focused on the symbolism of retaining these laws and the message they send. Departmentalism adds a substantive reason-- repeal avoids the spectacle of even unsuccessful efforts at enforcement. But this case confirms that the conversation must be a legislative one, not a judicial one.

There is a property question to which I do not know the answer. Could the legislature or recorder do anything about these documents or their problematic provisions? Can the government amend long-standing deeds to remove objectionable covenants? Can it issue a new, superseding deed, stripped of the objectionable covenants, controlling the property going forward?

Posted by Howard Wasserman on September 2, 2018 at 04:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Wasserman , it looks as if there is a problem in the commenting system here . Comments are reversed in order . The first comment becomes the last , and vice versa for the first . So check it out please . It looks like crazy and moronic blog so . Check out my "first " comment above , clarifying my " comment above " .


Posted by: El roam | Sep 3, 2018 7:15:48 AM

Just clarification to my comment above :

According to the courts , I quote :

“ county recorders cannot redress the alleged harm , as they have no statutory authority to edit documents after filing or while maintaining them. ”

So , apparently , couldn't be done by them , but be kept intact . Yet , I meant that the legislator , could legislate so of course , and in line with the main provision mentioned .


Posted by: El roam | Sep 2, 2018 8:10:19 PM

Thanks for that interesting post and ruling . In the rather philosophical and moral spheres , there is a very reasonable attitude concerning that debate of “ living history ” and it may go so :

In the academic sphere , there is no debate : One can’t erase history or its documentation or records . But , in the rather public and artistic sphere , one may argue , that clearly and deliberately glorifying atrocities or alike , is indeed very debatable . For example , one can’t think of a statue of Hitler , raising his hand saluting imaginary SS troops marching , to be held or kept in the middle of Berlin. Or , see the statue of Saddam Husein in the American invasion , taken down by crazy mob . This is normal , this is reasonable , this is desirable even . Why to glorify history of abuse and atrocities ?? For merely scientific purposes , it is absolutely essential to keep it .

However , legally , one can argue , that if indeed the lawmaker , suggested that it is forbidden to , I quote :

make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color,
religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

End of quotation :

Then surly , redacting it , remove covers , or otherwise conceal unlawful racially restrictive covenants , is indeed more than reasonable . For the legislator , has expressed its clear wish to restrict it generally speaking , leaving only what is more functional in commercial and administrative and beurocratic terms .


Posted by: El roam | Sep 2, 2018 6:38:12 PM

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