Ciceronian Review

No Doubting Thomas

It is not often that I find myself in agreement with the substance of an opinion by Justice Thomas.  Yesterday's concurrence in Timbs v. Indiana, however, permits such agreement.  The Supreme Court long ago rendered the 14th Amendment's Privileges and Immunities Clause a nullity -  whatever it offered was not worth the work of ratification.  The clause provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."  Justice Thomas rightly points out that in the late 19th century the clause was emptied of meaning, and, as a result, people had to look elsewhere to vindicate substantial federal rights.  Thomas has a nice discussion of English legal history and colonial legal history and background to adoption of the 14th Amendment.  I am not an originalist so much of that seems to be superfluous.  The language of the Amendment is enough to do the job.  It is interesting that Justice Thomas does not actually identify the cases that will have to be overruled for this view of Privileges and Immunities to be adopted.  Would that he had.  We would be better off with a proper resurrection of the Clause.  Process is not what many cases under the Due Process Clause are about.  It is unseemly, at best, for Casey and related cases to be presented and analyzed under such terms. 

Some Glances at Batson

 

The use of peremptory challenges to potential jurors based on race was condemned in Bateson.  Yet before that Court is a case in which prosecutors used peremptory challenges to remove virtually all African-Americans from the jury in six trials of the same African-American defendant.  For various reasons the various courts involved have never directly addressed this history.  Some speculate that the Supreme Court will use this opportunity to put some strength in the prohibition of Bateson.  Put teeth in the bar would be too much to hope for, but perhaps put some soft gums is possible.  Under Bateson, a prosecutor merely needs to offer some reason for striking the potential juror.  The reason need not be reasonable or plausible, just a reason.  Didn’t like how the person looked at me, didn’t look me in the eyes or did look me in the eyes, or didn’t like the color of his socks or how she wore her hair.  It is a standard one has to work very hard to fail.  It is, in other words, a fraud.

 
Alex Tabbarock is okay with the whole thing because there is this one study in 2012 indicating that having African-Americans in the jury pool (not the jury) removes racial bias from juries.  One study.  Well, that is a thin reed.  Are there no other studies of the issues, or confirming that having an African-American in the pool ends white bias in the rest of the pool or in the final jury?  

Bateson does not rest just in the fairness of jury selection.  It has another dimension — dignity of potential jurors, dignity of the process.  What does it say to the potential juror that she is struck because of her race?  What does it say about the lawyers that they strike potential jurors because of race? Nothing good I think.  If a judge finds a Bateson violation (as unlikely as that is), then the message to the public is even worse.  It is not misconduct warranting a sanction.  The prosecutor is not removed from the case, is not subject to any sanction at all.  It violates no rule of professional conduct.  The prohibitions of discriminatory conduct that apply to elsewhere have no application to prosecutors acting on behalf of the people in court in a criminal trial.

That too tells us much about the importance of Bateson.

Common Property

I read the symposium on Shmuel Nili's "Public Property" along with the article itself.  The aim, as I understood it, was to offer an account of common ownership of public property by citizens of a polity.  The effort is not a revision of Lockean property rights.  It is not an effort to generate an account of common ownership of  property in a state of nature, or pre-political common ownership.  It is an effort to explain common ownership by a polity of its place.  It is not limited to ownership of real property, land, but is intended to include all sorts of things, like common ownership of assets of the state.The article and the commentary are interesting, but also left me wondering.  For example, why is there a need to explain common ownership by a polity -- which in this context comes to ownership by the government?  Is it an inclination among philosophers to generate structural explanatory and justificatory theories?  The theory here is directed at explaining why we talk of theft of public assets by government officials, public ownership of land, and so on.  In her precis and comments, Fried suggests that this is resolved, in effect, by looking at the constitutional structure involved, that there is no special deep political theory needed -- a view I agree with.  The theory is aimed at post-political arrangements, i.e., the allocation after formation and instantiation of a state (which is very far post-political in my view).  The analysis and argument mostly seems directed at the current world; nothing in the way of history shows up.  For example, the theory is aimed at explaining the talk of X stealing money from the people in transferring assets from government accounts to personal account.  Maybe there is such a need in some circumstances.  But when Roger II used tax funds for his own benefit, was he stealing from the public?  Is the idea that there is only common ownership when the polity is appropriately democratic or republican in form?  Maybe there is some built-in limitation to more or less just states -- a state without some more or less robust account of common ownership will not count as a reasonably just state?  That is certainly not the argument of the paper, and what is offered there could not fill that role. 

It is possible that the difficulty I am having comes from not seeing property rights as fundamentally individualistic while Nili and his interlocutors do.  In other words, there may be common property, there may be extensive private ownership, or maybe not.  Depends on the history.  Or, along the lines of Fried, it is in the constitution.  That attitude is supported by the agreement that the objects (so to speak) of the theory are the exiting national boundaries: common ownership of Canada for Canadian, of Ghana by Ghanians.  But then, it is Hobbes or Hume, not Locke, that matter.

Baffling

The major US newspapers (meaning the Wall Street Journal and New York Times) have been running stories about DNA testing and family genealogies.  The stories discuss siblings who get tested and then compare their results, finding they are not as genetically closely related as thought, and/or then finding a previously unknown half-sibling.  It is understandable why the people involved are surprised and take a bit to adjust to the information.  What is baffling is that it often seems to deeply alter their relationships to each other and their perspectives on their lives.  It is true (or seems to me true) that people, from time to time, take an instant liking or dislike to others, feel deep attractions or repulsions on initial encounters or early interactions.  But it is hard for me to see how that would track genetic relationships.  How is it that the relationship crated by a lifetime growing up together in a family gets altered because of a report about genetic testing?  The family are those one grows up with, parents those who raise you.  Even odder to me are the claims that there is a deep love immediately on meeting someone whose sole connection is being a half-sibling.  Someone you don't know at all and whose life history has more or less nothing to do with you.  (It seems a bit like everyone who has ever been reincarnated was a noble or royal in the past.  No one ever seems to have been a farmer or a slave or goat-herder.). Strangest of all to me are the exclamations that one has been living a lie (because the biological parent is different).  I don't see any sense at all to this view.  Nothing about one's personality or memories are changed, nothing about one's commitments or experiences is false or hidden.  I guess the 'lie' is about who provided the genetic material?  

Yet, there is a massive industry built around these things -- finding the supposedly missing siblings, the 'true' heritage of some place or other.  Something is being tapped, and moving people to spend all that money.  But I don't understand it-

History

Virginia is engulfed in controversy, starting with the revelation that the Governor wore blackface when in medical school, and now on to the Lt.Governor, the Attorney General and the Republican leader in the legislature.  The most recent of the events, assuming that it occurred, was in 2004 and the oldest in 1981. That seems, to me, a long time.  However the events are assessed standing alone, the passage of time should matter as well.  Are the events indicative of a continuing pattern?  Things done in youth?  Do they reflect the sort of actor the person is now, or likely will be?  As the events become farther away in time, the harder it is to say that the events do reflect enduring character or beliefs.  People change, people do foolish things, and so on.  I don't think the fact that these are all public officials is to be ignored -- we can and should ask a bit more of those who wish to be in public office than we ask of others (although, oddly, actual service in the military is not one of the things we ask).  But asking more is not asking for saints, or should not be.  Second chances and so on.  The current atmosphere is not sensible -- none of these people are like Steve King. 

That's A Right

What, for an originalist, is a right?   The Bill of Rights has a number of rights set out.  Heller is offered as an example of how to do the proper analysis.  But that kind of analysis does not tell is what a right is under the Constitution.  I would expect it to be what a right was conceived to be at the time of adoption, but I am not at all sure that is what originalists think or want.  The account of the nature of rights is not discerned by looking to particular clauses or provisions, because the meaning of the clauses depends on the account of the nature of rights.  Can't use later developed theories, e.g., Hohfeld, because those accounts are not what was thought at the enactments.  Are we locked into a Lockean theory forever?  Are the rights of the Constitution through the first 10 Amendments different things than the rights of the 13th, 14th, 15th Amendments?  Are the texts of Locke and his followers part of the law of the United States?  Just helpful texts?  Do we set all this sort of thing aside as due to ambiguity or vagueness, to be sorted out by the current theories rather than those of the original time?  That would leave increasingly smaller areas in which originalism might do some work.  Does the theory fixing meaning of the Constitution at the adoption(s) apply to the notion of a constitution?  Why would that be?