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Jon Roland examines political philosophy with a focus of what is law, authority, consent, legal duty to obey and help enforce, theory of mind, legal interpretation, and ends with a comprehensive list of most constitutional rights. Lecture 2. 2012/11/17. Austin Philosophy Discussion Group.
Q&A 2: http://youtu.be/dvlNclfVl90
Slide file http://constitution.org/col/jdr/con_phil-02.ppt
Lecture 1: http://youtu.be/43mKmNZCT3E
Lecture 3: http://youtu.be/nERAnPjxRnw
Show More Show Less View Video Transcript
0:02
good morning this is the November 17th edition of uh series of lectures on
0:11
constitutional philosophy of the uh Austin philosophy
0:17
Discussion Group I'm John roll today's lecture will continue what we discussed
0:25
last week
0:34
and we ask the question first of all what is a law
0:40
now it's generally agreed by most political philosophers that a law is a
0:48
command this was particularly discussed by raws
0:54
and it's particularly it's a law command from a lawgiver
1:01
which in uh ancient political philosophy at least medieval is called a sovereign The
1:09
Sovereign is the Supreme lawmaker in an IL legal system originally that was a monarch but
1:17
it could be as it is in our system the people acting
1:23
collectively so whatever is the place the buck stops for lawmaking that's the
1:29
sovereign
1:35
The Sovereign the lawgiver is that to whose authority we
1:42
consent and which we have an inalienable duty to obey in other words we have to
1:50
obey ourselves we can't have have somebody else to obey for
1:57
us and the Duty includes the duty to help enforce it not just obey it
2:04
ourselves but get others to obey it
2:11
and this is where we in the the controversial area according to the
2:16
meaning it had the lawgiver now there's a lot of
2:21
controversy on this because a lot of people today would argue that well it
2:27
the law means whatever we decide it means or that a judge decides it means the
2:34
problem is do we really want to call such a thing a law if it doesn't mean
2:40
what it meant to the lawgiver doesn't it you just then devolve into some kind of suggestion or
2:48
hint or maybe a poetic or artistic
2:54
manifestation so if we're really going to call it law I would argue you that it
3:01
has to have the meaning it had for the lawgiver and this was an important
3:08
qualification directly interpreted by us and not through a mediator again we can't assign the duty
3:18
of interpreting the law to someone else we can as a practical matter in
3:24
particular cases but ultimately when we when we have to
3:30
enforce the law ourselves we have to be able to decide for ourselves what that
3:35
law is you mean each individual citizen has the duty and the right to make his
3:42
or her own interpretation and to enforce the law accordingly that's right and under a written Constitution
3:50
that's the only way it can be we're all on our
3:57
own now what is an author well it's not just a
4:03
lawmaker an a who it's also a jurisdiction that is a what aw and a to
4:11
whom a what is subject matter aware is territory and a to whom is person
4:18
jurisdiction these are the three kinds of jurisdiction that must all be satisfied
4:25
for a law to be applicable and it's a pro process a how
4:31
and a when it somebody doesn't just make a law
4:37
he has to do it in a certain way for it to be legitimate and it has to have a
4:44
legitimate purpose a why and a Wither in other words no delegation of power is
4:52
ever plener all delegations of power
4:58
however AB absolutely they may be stated always have a qualification that they
5:04
have to be for a legitimate purpose that's why how we get into the problem of abuse of discretion in the
5:13
exercise of a power but to what can we
5:21
consent there are limits to what we can consent to as loot
5:27
discusses nature forbids consenting to the loss of our inalienable
5:33
rights in other words we cannot agree to be slaves we cannot agree to sacrifice our
5:42
lives with one exception through due process is either a price for
5:50
incompetence violations of the social contract or for defense in other words you
5:57
can agree to risk your life or your Liberty or whatever in the defense of
6:05
the society as part of a general process of
6:12
everyone sharing the same risk or you can even agree to go on a
6:19
suicide mission but it has be for one of these legitimate
6:26
purposes finally you can for we can enter into or remain on the
6:32
territory of the state subjects one only to laws compatible with the
6:38
Constitutions of nature society and the state if you cross the border into
6:46
Louisiana and Louisiana has a law on the books According to which anyone from
6:54
Texas is subject to being immediately executed
7:00
you might reasonably conclude that that wasn't a law to which you were uh bound
7:07
to submit
7:13
now Disobedience breaks the social contract not just making War committing
7:22
a violent act but Disobedience to law real law is not just a suggestion or
7:29
a guide violation has consequences including losing honor and
7:36
forfeiting life one may seek the protection of an enabling herd you may get a bunch of
7:43
buddies to surround you and say oh that's all right everybody's doing it we don't have to do that you know we'll
7:50
stand by you we'll allow by you we'll say you weren't there
7:56
but all that does is put your her at war with the rest of
8:03
society and the rule that I suggest for us all is exer
8:12
cons let the Constitution be enforced so the heavens
8:20
fall but the question keeps being raised and
8:28
it's raised in the current movie linol which I recommend everybody
8:33
see in the movie This ideas presented in a
8:40
imaginary uh dialogue with his cabinet but
8:48
historically Lincoln made this argument in a speech to Congress following criticism by Chief
8:56
Justice T about him suspending habius Corpus on his own
9:05
authority in that speech given July 4th
9:10
1861 he said are all the laws but one to go unexecuted and the government itself
9:16
go to Pieces lest that one be violated so now we have the
9:26
problem adherence obedience to law sounds like a simple enough principle
9:34
but sometimes we can't obey all the laws at the same time sometimes circumstances Force us to
9:44
choose and of course the question keeps coming up the the famous phrase from
9:50
Justice Jackson is a constitution of suicide
9:56
pact and the old Latin expression inter Arma seal and
10:02
lias in war the law is
10:10
silent I would argue necess necessity may excuse but it never
10:18
authorizes there's a logical fallacy involved the fallacy of n ero
10:25
price NE necessary therefore have a
10:32
power and there is usually a price to pay I'm sorry makes use what not auth
10:39
failing to that's a necessi of any kind
10:46
therefore I have a power to doce what is necessary to do what breaking the law to
10:53
do anything that is thought necessary yeah including exercise in powers that
11:00
you don't have
11:06
now great challenges test constitutions and societies which sometimes fail
11:13
because once we make an exception once we
11:19
say one then we can say another one and still another and still
11:25
another we' say well this is just for the emergency with the emergency can go
11:30
on for weeks or months or years or decades or
11:36
centuries so we always have the problem of how do we
11:41
reconcile this conflict in real world
11:46
situations and is a depression really equivalent to a war in creating
11:54
Necessities that may require violations of the Constitution
12:02
but now we get into the problem of interpreting the Constitution or any
12:11
law what can the meanings be well it can have the meaning it had
12:18
for the writer when he wrote it the meaning it had for the reader when he read it the meaning the reader thought
12:24
it had for the writer when he wrote it the meaning the writer thought it would have for the reader when he read it the
12:30
meaning the reader thought he would have for the writer if the re writer knew what the reader
12:36
does not finished the meaning the right okay you
12:42
get the picture and this can go on indefinitely
12:49
so we get into the whole subject of historical linguistics
12:59
now really all Linguistics is in some sense historical because when you're trying to
13:07
understand language you're always in General trying to understand what
13:12
someone else has said or written in some time in the past might
13:18
be the last five seconds but uh in which case you can probably interrogate the
13:25
speaker or writer and ask what did you mean by that
13:31
but it gets a little more difficult when the speaker are more likely the writer
13:37
has been dead for hundreds of years
13:43
so the problem historical Linguistics then is one we had to solve when it's
13:49
either no longer available to interrogate or there are multiple lawgivers who may have different
13:55
meanings A A law is written in general in the legal jargon of when it was
14:02
enacted and in fact whatever is written in is the legal jargon even even if it seems to be
14:09
ordinary language but natural languages are often
14:15
ambiguous or a certain kind of ambiguity
14:22
polymus in other words many people use a word with more
14:29
than one meaning not just on different occasions but at the one and the same
14:35
time they'll let a word do double or triple or quarle Duty even within the
14:41
same sentence you Define natural language natural language is what human
14:46
beings speak or write on a daily basis as opposed to say
14:53
mathematics it's not connected to natural law now
14:59
then we enter the theory of Mind how do we understand one another not just among people but
15:06
animals anything well if we had two computers communicating to each other and I use
15:14
the same internal code they can simply send messages that they are hardwired to
15:22
know how to interpret so for them understanding may
15:28
be a simple process assuming there's no noise in the communications
15:33
Channel but among human beings or for that matter other living
15:39
beings in general the communications channel is very
15:45
noisy so how do we understand another person
15:50
well we understand some one someone by forming a theory in our minds of what is
15:56
in the minds of that other which we build by confirming or refuting
16:03
evidence from exchanges with the other mind or from accurately anticipating what he will say
16:12
in later messages of his that we have not previously read or
16:19
received in other you've probably known married couples who could compl complete
16:26
each other's sentences they each developed theories of the other person's
16:32
mind you can do that with ancient authors as well where if
16:41
they have a large body of work you can read some of their works and then get into a take on the
16:50
next work and begin to be able to complete the sentences of that author
16:56
before you've ever read them before that's when you begin to have confidence
17:02
that you're thinking the same way that he did if you can completed
17:11
sentences so decoding past messages involves using such Clues as we can find
17:17
to build a theory of Mind of the authors and of the meanings they wish to convey
17:23
we can never be sure what the dead meant or even for that that matter the living
17:30
but we can plausibly narrow it down greatly in most cases to one most likely
17:38
meaning not always but hopefully as often as possible although we may not we
17:45
may need Clues from Beyond the message itself to its cultural
17:52
context so we take Clues wherever we can find them we give greater weight to some
17:58
Clues cles than to others but ultimately we use them to try to converge on a
18:06
theory of the mind of the speaker a writer and of what he meant in that
18:16
message now we get to Legal construction it presents special
18:21
challenges because it is not just about getting the original meaning but about applying it to specific situation
18:29
laws are in general General statements about a class of
18:35
objects to which it then has to be applied by
18:40
instantiating the object now words it's saying all murder
18:46
is to be punished this is a murder therefore this must be
18:53
punished this leads to what I consider an untenable division between questions
19:00
of Law and fact when it is a fact issue whether a law is passed or whether it was a law at
19:08
all judges generally like to maintain a hard separation between law and fact and
19:16
let juries decide only questions of fact
19:22
but if a judge is proclaiming something is a law when it's not
19:29
would any lay person could verify that the legislature never enacted it at
19:37
all then we have to ask ourselves whether that distinction really always
19:47
works constitutional construction then becomes a special and
19:52
more important form of examining judicial decision
20:00
making these principles apply not just to constitutional
20:06
interpretation but judicial generally because not all of them are
20:11
strictly speaking about the
20:17
Constitution interpretation can be based on the text itself it can be based on historical
20:24
background it can be based on a functional analysis of the words by examining the
20:30
structure of the document in other words what function
20:35
does the do these words seem to play Within the document as a
20:44
whole and there are doctrinal considerations
20:49
uh this can range everything from star decises from president or from public
20:57
policy where the there is a disposition to do things a certain way that are may
21:05
may not be in the Constitution but that the judge or the
21:10
lawyers may want to follow then there's presedential credential is for the convenience of the
21:17
court in other words if a court has a large docket where it
21:24
cannot devote enough time to every case to really do justice it may decide look is it better
21:34
to decide all these cases sarily and perhaps wrongly or by taking on each one
21:42
and examining in a death never getting around to most of them and Under Pressure to clear their
21:50
dockets a lot of Judges will not unreasonably conclude that they should
21:56
simply dispose of as many cases as they think they can to hold Injustice to a
22:03
minimum or perhaps not but assuming they're conscientious they hope that
22:09
they won't decide wrongly too often there are also presedential
22:15
considerations such as not wanting to take up a case that's not right for
22:22
argument or that is just producing a legal opinion that doesn't doesn't
22:28
really affect anybody's welfare uh there's a tendency for judges not to
22:36
like declaratory judgments if the the Declaration doesn't
22:43
actually affect anybody's property or monetary situation
22:49
or his well-being or whatever it's simply for his to satisfy his
22:56
curiosity um courts are not just of law they are also
23:01
of equity so if a law is unclear about what to do and it often is
23:10
then in between the lines of the law the court may decide to make an
23:17
equitable judgment and where it's tried to do what's fair even if the Constitution and laws
23:25
provide no clear guidance on how to do that and we see some important cases which
23:32
may may get to in a future lecture of how the cases although build as
23:40
constitutional interpretations were actually credential or Equitable then finally we have natural
23:49
in construction where we're essentially are appealing to natural
23:54
law the law cannot command The Impossible you can't uh the law can't tell somebody
24:03
to uh be in two places at one time is this saying that the the Judiciary by
24:09
the act of making decisions is constructing the Constitution as it goes
24:15
yes and for that matter so is or anybody who construes the
24:21
Constitution is not just judges as we'll see now that doesn't mean we're amending
24:27
the Constitution that's an important distinction and we'll get into
24:35
that so what is strict instruction uh justice Galia has a
24:41
current Bookout in which he denounces strict construction as
24:48
he defines it but he defines it as over
24:54
literalism well that's what its critics say about it but its proponents have a different
25:01
meaning for it and the common law tradition is more complicated than that
25:08
it's not some new doctrine that arose in the 20th century it goes back
25:14
centuries using the very terms strict construction or more precisely strict
25:22
interpretation Powers were to be interpreted strictly and rights against powers
25:28
broadly remember from the first lecture powers and rights are the complement of
25:34
each other so if you interpret Powers strictly then you're interpreting rights
25:42
Loosely so when in doubt the decision must always be against the power and in
25:49
favor of a right again we're talking about rights as a complement of powers not
25:56
contractual rights Now
26:02
intent and the word intent does come from ancient law was not just motive or
26:09
desired outcomes the word the meaning of the word has somewhat shifted over the
26:15
centuries today if you use the word intent the first meaning most people would give it would be psychological
26:22
motive or the intended outcome but in the common law tradition
26:28
it was mainly function discernable from structure I like to use the example of a
26:36
architect of a Gothic Cathedral with flying
26:42
buttresses now the motive of the architect in designing the flying
26:47
buttresses might have been to provide work for his brother-in-law who was a
26:52
flying butress contractor but the functional intent of
26:59
flying buttresses which can be found by examining the design itself without
27:05
inquiring into the mind of the architect is to keep the building from falling
27:14
down and intent meaning and understanding are
27:19
not the same so all these have to be Blended
27:25
together to do construction
27:31
confidently the framers had a vision they were called framers for
27:36
reason they saw Constitution writing like designing a building they saw it as
27:42
a kind of architecture they were it was constrained by natural law and
27:49
Circumstance in other words they weren't free to design anything at
27:54
all it had to work according to laws of Nature and it had to be affordable and
28:02
buildable and safe at least in the short term they had to satisfy those who would
28:10
live in it and that allowed some concessions to
28:15
taste and Convention but were not dominated by them and it had to remain safe for a
28:23
long time not just for those who would live in it initially
28:29
but for those who would come after Generations
28:37
hands the Constitution had to work for men and not just Angels remember
28:43
Madison's famous quote on that we had to solve the problem
28:51
of instituting a government that can govern men but it can also govern itself
28:59
and the tradeoffs involved offer no clean
29:04
Solutions but framers made an assumption that he was had to work for
29:11
men at a level of civic virtue that they had then achieved in their
29:18
lifetimes who designed for men like
29:24
themselves which would endure as long as a virtue did
29:29
which would likely fail if the virtue failed as would any constitution of
29:38
Liberty there is no Constitution that enforces itself no plan of government no
29:45
system that can enforce itself as long as human beings are the principal
29:51
operating units and they don't do their part now if you want have a government
29:59
in which robots or machines do it all then you might overcome that but as long
30:07
as human beings are actually carrying it out executing it then their virtue or
30:14
lack thereof becomes
30:19
dispositive and it depends on the people to understand it they not have to not
30:27
have to only want to enforce it they have to
30:33
know how and to enforce it at Great
30:40
sacrifice perhaps at the risk of their lives and fortunes it can't just be a uh weekend
30:50
Amusement it has to be something that they're so determined to do that they're
30:55
willing to give their lives for it because the odds are at least once every
31:01
generation they probably will have
31:06
to but in the US of 1787 almost everyone and almost every
31:12
settler was literate we sometimes don't appreciate
31:18
that but uh John Adams once remarked to a
31:23
European friends that it' be very hard to press to find anyone in the American
31:29
states that was not literate illiteracy was very rare very
31:35
common in Europe the Europeans were astonished when they came to the United
31:42
States to try to fight it or deal with it or whatever when almost everybody
31:47
they met could read and write but of course part of the reason for that is the people who went over
31:54
there went over there already knowing how to read and write
31:59
that didn't always slaves and women as well uh most women could also read and
32:06
write most slaves of course could
32:11
not but that changed too um many were also acquainted with what
32:19
law there was which was mainly four volumes of blacks St you can hold it in
32:25
one hand all right big change from
32:32
today um there a lot of people who had complete set of Blackstone and read it
32:39
all in that time people bought newspapers with
32:44
political speeches nobody had to spend a lot of money to get elected to public office
32:51
all he had to do was announce and then stand on the street corner giving a
32:56
speech the reporters would take it down word for word and print every word and
33:04
people would eagerly buy it those newspapers the people paid for their own
33:09
political information and the results although
33:15
campaigns then as now could get pretty vicious at least they weren't
33:23
uninformed now most of government consisted of County
33:29
government with one unpaid judge and one unpaid Sheriff doing everything with
33:36
unpaid militia and juries but they didn't of course didn't
33:42
have a lot to do if uh they needed to repair a bridge across
33:50
the creek call up the militia everybody pitched in build the
33:56
bridge and like every everything else they did
34:01
um if there was a problem grand jury convened investigated the problem made
34:07
their decision and the militia took care of it uh
34:15
however shortly after the foundation of the United States the problem began to develop
34:24
that counties were becoming more pop Ulus in
34:30
178 1774 or 1776 the average County was less than
34:38
3,000 people a large city was 15 or
34:44
20,000 that would be considered a small town today you could literally know
34:50
everybody in a big city if you if you moved around a little
34:55
bit uh so Jefferson proposed dividing counties further into
35:03
Wards and moving most government down to the ward level what we call call Ward
35:16
republics most people today live in Anonymous cities a voting Precinct
35:21
contains about as many people 3,000 as the county once did but no government at
35:27
that level now other than for voting grand juries get too many cases
35:34
to deliberate now in those days Grand jurries almost
35:40
never got a criminal case I once went through 20 years of the
35:47
legal records of the entire state of New York from 1776
35:54
onward and I think there were only about three or four criminal
36:00
cases you know of a felonious nature as opposed to say
36:06
misdemeanors entire State Crime was very
36:11
rare uh today a typical Harris County grand
36:16
jury gets me less than 10 minutes to decide each
36:23
indictment um which means means that they don't have enough time to attend to
36:30
investigation of public administration for private complaints in
36:36
California where the function of indictment has been taken away from Grand Jury
36:42
juries the grand juries are left to do nothing but investigate public
36:49
administration and it's probably the only reason why California is not even more corrupt than it
36:56
is but keep trying to hem them in and saying no you can't investigate this or
37:01
you can't in investigate that uh so it's an ongoing struggle I get a lot of calls
37:09
in California about that um and grand juries are unduly
37:17
controlled by Authority prosecutors which is mainly a late 19th
37:23
century Innovation originally most most crimes were prosecuted by private
37:31
citizens usually a lawyer hired by the victim's families or perhaps by a group
37:39
of citizens who got together passed the hat and hired a lawyer to be the
37:46
prosecutor sometimes the judge would just pick a lawyer from the community and say you're Prosecuting this
37:54
case now after grme became more common that became too much of a burden and
38:00
people started instituting the uh Office of Public prosecutor usually called
38:09
district attorney in Most states and for a long time you had a
38:17
choice of public prosecutor or private prosecutor but increasingly the the
38:24
public prosecutors have tried to exclude private citizens from doing private
38:31
prosecutions now many state laws still allow it in Texas the law even provides
38:40
that a private prosecutor can get paid for private prosecution if funds are
38:48
available he's called a prosecutor prot
38:54
temporary and today people are not taught how to serve on
38:59
juries in the middle of the 19th century we have an example of a standard
39:08
textbook basically the entire textbook and this was for what we today call high
39:13
school or you know maybe Junior first year of
39:18
college essentially was all about the Constitution and Ma jury and militia
39:26
Duty was all about he just went through the Constitution line by line and it taught
39:34
you he detail how to be a good jury person person even taught you how to be
39:40
a good militia person how to maintain your weapons how to you know organize a
39:46
militia unit do all these things it's all the standard
39:53
textbook now We inherited our legal tradition
39:59
from England the English Constitution although it's often called
40:05
Unwritten is not strictly Unwritten but it's scattered over many documents in 1200 years much of it
40:13
written in Latin and law French most people today don't know how to
40:19
read and it's subject him being Rewritten by any session of the House of
40:25
Commons which functions a kind of ongoing Constitutional
40:30
Convention that can R write its own rules proposed and approve in one
40:38
day English common law comprised the bulk of English law it consisted of the records of Court
40:46
decisions it needed the doctrine of binding star decises because there was no other
40:54
organizing principle by which the Court decisions can be sorted out and one
41:00
given preference to another as a guide star decises means to just stand
41:08
on what's been decided in other words it's using precedent as a basis for a
41:14
further decision making but learning the law was an endless
41:20
task in England a person wasn't considered fit to try a case in court
41:27
until he studied the law for 20 years he had just go through the law
41:34
libraries full of old cases and go through the cases case after case after
41:42
case and almost any position on any issue could find a supporting
41:50
president that was part of the problem then by
41:56
1776 a you could prove almost anything from a president support almost any
42:02
position so the law became essentially much more at the whim of Judges than it
42:08
had been in decades or centuries previously and the court the colonies
42:14
didn't have their own records They had a few cases a few books
42:20
Blackstone cook so forth but they didn't have
42:28
the la la the law libraries full of law books of commentaries of cases that were
42:35
available in at least major cities in
42:41
England so the colonist felt the need for
42:46
codification and thus constitutions that overrode
42:51
precedents the US Constitution is of course not the first
42:57
I pointed out earlier the states all wrote
43:03
constitutions first experimented with different structures and the US Constitution was
43:11
built on that experience so they had had 13
43:16
Laboratories for constitution writing which culminated in one National
43:24
Constitution
43:30
English there are different kinds of English courts depending on the kinds of relief
43:36
thought common law Equity Admiral D Marshall different court buildings
43:41
different judges you could have a case involving different issues you had to try it in
43:48
one court on one day then go across town to another Court to try to finish it
43:58
uh the two main kinds were common law for torts crimes probate and property
44:05
and equity for injunctions so a common law Court could
44:11
give you judgment that it's your property you'd have to go to an equity Court call a chanelling court to get a
44:17
court order to evict the guy who's squatting on your
44:24
property and of course they could be years separating the
44:31
two Ritz were forms sold by Common Law Courts not just for using Common Law
44:38
Courts they also sold them for Equity courts but they sold these forms there
44:44
was different form for every kind of issue and of course after a while there
44:50
were literally thousands of different kinds of
44:55
rits one would one copy would be filed with the court one served on the
45:01
defendant and one kept by the petitioner so generally you were looking
45:08
at buying at least three copies and you had to pay three
45:13
times the RIT system this RIT system was largely replaced in the United States by
45:22
the field codes about 1840 that's when we went to free form
45:28
pleadings in other words instead of having to buy a form you just wrote your
45:35
own and you're expected to roughly follow the same format and content but
45:42
you didn't have to buy the form now the buying the form still exist
45:48
in one form form which is buying the citation forms that you stick on top of
45:55
a lawsuit before you serve it on the defendant so that the rit in that kind
46:03
of RIT still survives as a citation for now rits are not just court orders
46:12
court orders are a kind of RIT but there are other kinds as well it's mainly the initial filings
46:20
served on the defendant or respondant the what you file is a s the
46:27
RIT because you wrote it it's as simple as that there are three main kinds civil
46:34
criminal and perogative you'll sometimes hear it said
46:40
that there's only civil and criminal but that's not true the burden of proof for the first
46:47
two are on the petitioner the Civil or criminal case
46:52
the petitioner has to has the burden approve in a derogative case the burden
47:00
is on the respondent so they're two quite different Critter you give us an example
47:06
of a prerogative I'll get into that you can trust me most of the qu
47:13
questions I rais in this lecture I will answer further down the
47:19
line okay the burden of proof of the third was on the respondant not the
47:25
demandant and he's not call a petitioner is called a demandant because it's a
47:30
demand it's not a request here are some of the main forms
47:38
of prerogative rits at the top because it's the most General is
47:45
Quanto that's a r challenging Authority
47:50
generally either to hold an office or to do something could be anything
47:59
uh hius Corpus can be thought of as kind of a subspecies of quono where you're
48:06
just challenging the authority to detain somebody
48:13
ribit is a demand that some action stop mandamus is a demand that some
48:20
action be taken and these today are usually discussed in terms of injunctions
48:27
although injunctions generally have a burden on the petitioner and the original prerogative super system the
48:35
burden was on the respondent prendo is demanding faster
48:42
action sir Shari is demanding that the court records be certified so they can
48:48
be presented for appeal on a rid of eror now today most people think of rid
48:55
of sersari as granting an appeal that's not originally what it meant or should
49:03
mean it's a court saying certify the records and send us a copy so that we
49:09
can hear an appeal on it they technically should be a rid of error as
49:15
the actual request for the appeal and there are a bunch of more
49:21
there are probably about 30 40 others but those aren't used very much
49:30
prerogative rits must be heard ahead of other cases that's why they're called
49:36
prerogative U originally they were prerogative because most of them were
49:42
filed by the crown so the Monarch had the prerogative
49:49
but when we went from um monarchy to democracy the people became became the s
49:56
IGN and they inherited the prerogative the respondant must in
50:02
general respond within 3 days unless distance requires more up to 20
50:09
days now that might need to be modified if you're talking about operating Beyond
50:16
one country but in those days the standard which we still inherited was within
50:24
England I figured anybody could respond could get get across from one side of
50:30
England to another in 20 days actually both ways because the the
50:37
written had to be delivered and then it had to be responded
50:42
to no EV arguments or evidence are required of demand it any person may
50:49
demand for any other person or himself there's no question of
50:55
standing anybody body May file a RIT of habus Corpus to free
51:02
anybody The Prisoner doesn't have to file it to free himself doesn't have to be a
51:09
lawyer anybody can file the RIT of habius
51:15
Corpus and let's save our questions until the Q&A period because just take
51:21
notes for now otherwise we won't finish the lecture
51:28
now the relief and it it can be considered a kind of
51:34
relief demanded issues by default if the respondant fails to prove or there's no
51:42
hearing heal if you file a r of quono to an
51:50
official to prove his authority the court has jurisdiction
51:55
it's kind of copy filed said well I don't think I
52:01
want to hear this the loss of
52:06
authority issues immediately at the end of the expiration
52:12
period you can't get a crony judge to just not hold heing as a way of
52:19
sustaining your Authority now of course obviously that
52:25
doesn't work today today it's not the current practice
52:31
today anyone with a background is law will immediately recognize that all
52:36
these things are not happening today and you may want to ask yourself
52:41
whether that's not a problem but in order to understand the
52:49
Constitution as it was originally meant you have to be able to compare and
52:55
contrast what was expected then with what is practiced
53:01
today binding started decisis persists into our current legal
53:08
process is generally Justified on the grounds that judges could not hear all
53:14
the cases that are presented to them if they had to go back and reexamine all
53:20
the arguments for all the cases going back to to the beginning well in most cases they don't
53:27
have to do that in most cases it's not really that much more time consuming to
53:34
go back to historical background and argument then to just
53:39
examine the recent presidents and the arguments the lawyers are going to be
53:45
making for distinguishing them so um I would say that in most cases
53:54
that's not really a valid argument
53:59
but the problem is that if you treat the wrong a wrong president as more
54:05
authoritative than the Constitution what have you done you haven't really amended it but
54:13
in terms of what the courts are actually doing it you're treating it as though it had been
54:20
amended but judges take an oath to uphold the Constitution not president and I've
54:27
heard a federal judge in this town in in a courtroom saying quote I took an oath
54:34
to follow president unquote who judge which one I'd rather not say it right
54:40
now I'll tell you after class that that is the words of the of
54:47
the oath are to U different from clearly different from that yes very clearly
54:56
doubt about it but it gives you an idea of the problems you we
55:05
face so there are two kinds of story decises binding which is a problematic
55:12
one and persuasive binding is logically incompatible with having a written
55:20
Constitution and if anyone doubts that that it is a prob logic
55:26
it doesn't take very long to analyze logic and seeing that you get a
55:32
contradiction if you allow Bing start star decises which violates the principle
55:40
announced in the last lecture that under the rule of law law has to be
55:47
consistent logically consistent butor decises can be
55:55
persuasive if it's only a matter of saying well I agree with the reasoning
56:00
in this case so instead of repeating everything that that this other judge
56:06
wrote I'll just refer to it and say I agree with that guy but that could just as easily be a
56:14
minority or descending opinion if it's more persuasive and
56:19
sometimes it is constitutional review
56:27
is not the exclusive prerogative of Judges they only get cases at a later
56:34
stage the militia Duty which we all have to help enforce the law means the duty
56:40
to resolve conflicts of Law and to enforce the superior law
56:47
especially when that Superior law is the Constitution and then do so
56:54
independently of judges supervis advisers or legal advisors in other words we can seek an
57:01
advice of others but ultimately we are responsible for making that
57:08
decision and we if we get bad advice we that does not absolve us of
57:15
responsibility we are all on our own so we better get it
57:22
right now this last part which we can go through quickly because
57:30
we're about the end of our time period I made a list of almost every
57:39
right I can find now these are rights against the actions of a government not
57:45
just rights you know to receive some scarce resource or some contractual
57:54
benefit uh during the ra ratification debates a lot
58:01
of the states proposed amendments that would list out a bunch of
58:07
Rights and James Madison boil these down to
58:14
about 19 and then Congress committees further
58:20
boil it down to 10 which became the Bill of Rights
58:26
and what they did with a lot of them is they simply lumped them all together into the Ninth Amendment well of course
58:34
in some sense also in the 10th so the the ninth amendment was the
58:41
catchall bucket for all the rights that we don't have want to don't want to take
58:46
the time bother to list out
58:51
explicitly well we have too many judges who look of the Ninth Amendment and say well I don't
58:58
want to go back in history and try to find out what rights they may have had in
59:05
mind if I don't find it in writing I'm not going to recognize
59:10
it and we seen in such things as civil rights legislation enacted under the authority
59:18
of the 14th amendment that although the 14th Amendment speaks about State violation
59:26
of of All rights or any right what the courts have been doing is
59:32
waiting for Congress to pass a statute protecting right a right B right C right
59:39
d and if it's not mentioned in the statute ignoring it now once in a while they'll exceed
59:47
that but they try to avoid it
59:53
well I decided that what was really needed if they're going
59:59
to take that position is to adopt a civil rights act
1:00:05
that just lists all the rights anybody has ever thought
1:00:10
of and I have a list of constitutional rights on a Blog blog P page and here it
1:00:19
is extracted he goes to 18 Pages by the way
1:00:27
and what I how I arrived at that is I went
1:00:32
through all the commentaries by Blackstone and cook and Britain and
1:00:38
praon and feta I went through case after case after case and I've got a lot of these
1:00:46
you know ancient well we considered ancient law books
1:00:52
online just go through every time somebody identified a right I pull it up
1:00:58
write it down then I try to boil it down to to make organize it to systematize it to
1:01:06
group them into groups of related rights one important group is due
1:01:13
process so let's just go through due process rights here
1:01:22
okay now we due process for criminal trial
1:01:30
s for civil trials and for
1:01:35
appeals now we have another category that I call
1:01:40
non-authority this is a general right not to have government do things that it
1:01:46
is not delegated power to do a I call it a presumption of
1:01:52
non-authority
1:02:02
next section is supervision of government actors we have a general right to
1:02:09
supervise our servants that means we have to be able to observe them we have to get reports
1:02:15
from them about their proceedings their expenditures tax receipts all the things
1:02:22
that they do uh so that we can figure out if they're doing their jobs
1:02:31
right and then we necessarily have a bunch of others which don't NE easily
1:02:38
fall into the other categories so I've lumped them down
1:02:46
here and finally on I have my own catchall the foregoing loss is not
1:02:52
exhaustive and further rights Privileges and Immunity are to be found in the historical record
1:02:59
the rule of expressio punos EX exclusio alteras shall not be applied that means
1:03:07
that this is not factious these are the rights that you believe we should have yeah okay and I think you'll recognize
1:03:14
most of them as rights you think we have if you don't you're probably a
1:03:21
little unusual but if you think about it you probably recognize hey yeah we have
1:03:26
that right hav't thought about it but yeah um what this Latin phrase means is
1:03:35
that if you make a list of something and something is not included in the list it
1:03:41
doesn't exist that was the main argument against
1:03:47
the Bill of Rights that if you listed rights in the Bill of Rights somebody would interpret that to
1:03:54
mean that if it's not listed we don't have it so they adopt the Ninth
1:04:00
Amendment to say this is list is not exhausted we've got a bunch
1:04:06
more well this is the equivalent of the Ninth Amendment but now with most of the
1:04:12
rights that were thought of as the being referred to of the ninth amendment being
1:04:20
extracted and made explicit
1:04:27
so that takes us to the end and let so stop the camera
1:04:33
momentarily
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