Category Archives: Legal History

The Twelve Tables

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Like the Code of Hammurabi, the Twelve Tables of Law of the Roman Republic form a great teaching tool, because while the laws may not have been enforced, no one passes a law against something that isn’t happening, or against something they’re unconcerned about. So they form a great insight into the early Roman Republic. 

I am always amused by these laws, from Table VIII:

3. If one is slain while committing theft by night, he is rightly slain.

13. It is unlawful for a thief to be killed by day…. unless he defends himself with a weapon; even though he has come with a weapon, unless he shall use the weapon and fight back, you shall not kill him. And even if he resists, first call out so that someone may hear and come up.

If nothing else, it emphasizes how the Romans lacked street lighting, and how anxious they were about nighttime (Law 26: “No person shall hold meetings by night in the city”) – as though it’s cheating to use the cover of darkness to commit crimes. It reminds me of the only time I’ve been in Montana, where, I discovered, there are lower speed limits for nighttime driving. 

But I am always amused to discover a Roman law that’s actually more lenient than the ones in force today. In Georgia, if someone breaks into your house, no matter what the time of day, you are allowed to respond with deadly force, as God and the Constitution intended. The daytime theft law that the Romans had sounds like something that might be on the books in Massachusetts – a “duty to retreat” or something like that. What prompted the Romans to institute this criminal rights statue, I wonder? Were too many people getting killed, with the killer than claiming that the deceased was trying to rob him? Was it a bone that the rich were willing to throw to the poor, in the same way that they allowed for the existence of the Plebeian Assembly?

Sister of a God

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I teach the same material year after year, and it never gets old, in part because I like it so much, and in part because I’m always discovering new things. This year, during a discussion of the Code of Hammurabi, my students fixated on the laws in that dealt with the concept of the “Sister of a God.” I had to confess that I didn’t know exactly what was going on with this expression, and had to retreat to my spiel about how there are no right answers in history and even professionals are often deeply divided on what documents mean. On the surface, “sister of a god” would suggest something equivalent to our own concept of a nun – that is, a woman dedicated to the service of a god, who acquires a certain social capital in return for accepting restrictions on what she can do. This is seemingly reflected in law 110:

If a “sister of a god” open a tavern, or enter a tavern to drink, then shall this woman be burned to death.

Taverns being disreputable places, and religious women thus forbidden to associate with them. See also law 127:

If any one “point the finger” (slander) at a sister of a god or the wife of any one, and cannot prove it, this man shall be taken before the judges and his brow shall be marked. (by cutting the skin, or perhaps hair.)

Here “sisters of a god” are on the same level as wives, with their honor (presumably their reputation for sexual continence) entitled to legal protection.

But then there is the strange case of law 179:

If a “sister of a god,” or a prostitute, receive a gift from her father, and a deed in which it has been explicitly stated that she may dispose of it as she pleases, and give her complete disposition thereof: if then her father die, then she may leave her property to whomsoever she pleases. Her brothers can raise no claim thereto.

What is going on – nuns on the same level as prostitutes? Is this a law applying to “unmarriageable” women, whether for an honorable reason or a dishonorable one? Or does “sister of a god” actually mean something else? (The Mesopotamian practice of temple prostitution allegedly featured people having sex on the top of the ziggurat, so that the god would get excited and send rain. This is probably an urban legend, but always makes students sit up and pay attention! I suppose that it’s possible that women devoted to the god were not required to be celibate the way that nuns are).

Other laws refer to temple-maids and temple virgins (181), and to a “wife of Mardi of Babylon” (182). Are these then different from the “sister of a god”? Are these the real “nuns,” in our sense of the term, with “sister of a god” being a euphemism for prostitute – and the prohibition of them entering taverns was a law to prevent taverns from becoming even more disreputable than they already were? Or do we embrace the power of “and” – that prostitution was indeed a sacred profession, and a “sister of a god” could not sell her product to just anyone?

It seems that that might indeed have been the case. I’ve looked through what books I have and the best answer I can find is provided by Georges Roux (Ancient Iraq, third edn., 213-14):

Unfortunately, we know almost nothing about the temples of female deities. There is no doubt, however, that the temples of Ishtar, the goddess of carnal love, were the sites of a licentious cult with songs, dances and pantomimes performed by women and transvestites, as well as sexual orgies. In these rites, which may be found shocking but were sacred for the Babylonians, men called assinu, kulu’u, or kurgarru – all passive homosexuals and some of them perhaps castrates – participated together with women who are too often referred to as “prostitutes.” In fact, the true prostitutes (harmâtu, kezrêtu, shamhâtu), such as the one who seduced Enkidu, were only haunting the temple surrounds and the taverns. Only those women who were called “votaress of Ishtar” (ishtarêtu) or “devoted” (qashshâtu) were probably part of the female clergy.

Fascinating stuff – although I would not be surprised if there are competing theories out there.

Lloyd Gaines

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A Wikipedia discovery:

Lloyd Lionel Gaines (1911, Water Valley, Mississippi – disappeared March 19, 1939, Chicago) was the plaintiff in Gaines v. Canada (1938), one of the most important court cases of the 1930s in the U.S. civil rights movement. After being denied admission to the University of Missouri School of Law because he was black, and refusing the university’s offer to pay for him to attend a neighboring state’s law school that had no racial restriction, Gaines filed suit against the university. The U.S. Supreme Court ultimately ruled in his favor, holding that the separate but equal doctrine required that Missouri either admit him or set up a separate law school for Black students.

The Missouri General Assembly chose the latter option. It authorized conversion of a former cosmetology school in St. Louis to establish the Lincoln University School of Law, to which other, mostly black, students were admitted. The National Association for the Advancement of Colored People (NAACP), which had supported Gaines’s suit, planned to file another suit challenging the adequacy of the new law school. While waiting for classes to begin, Gaines traveled between St. Louis, Kansas City and Chicago looking for work. He performed odd jobs and gave speeches before local NAACP chapters. One night in Chicago he left the fraternity house, where he was staying, to buy stamps and never returned.

Gaines’ disappearance was not noted immediately, since he was frequently traveling independently in this period, without telling anyone his plans. Only in the autumn of that year, when the NAACP’s lawyers were unable to locate him to take depositions for a rehearing in state court, did a serious search begin. It failed, and the suit was dismissed. While most of his family believed at the time that he had been killed in retaliation for his legal victory, there has been speculation that Gaines had tired of his role in the civil rights movement and went elsewhere, either New York or Mexico City, to start a new life. In 2007 the Federal Bureau of Investigation (FBI) agreed to look into the case, among many other missing persons cold cases related to the civil rights era.

Despite his unknown fate, Gaines has been honored by the University of Missouri School of Law and the state. The Black Culture Center at the University of Missouri and a law scholarship at the law school are named for him and another black student initially denied admission. In 2006 Gaines was posthumously granted an honorary law degree. The state bar association granted him a posthumous law license. A portrait of Gaines hangs in the University of Missouri law school building.

The Temple Church

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After our Irish trip, I spent some time in London with my family. I had visited London many times before, and even lived there on a couple of occasions. But for all the time I’ve spent in that great city, I had never visited the Temple Church until now. It is in the (square-mile, capital-C) City of London, between Fleet Street and the River Thames. It dates from the late twelfth century and it was once the London church of the Knights Templar until that order was dissolved by Pope Clement V in 1312. 

Outside the church, a monument to its original owners: a sculpture of two knights riding a single horse, taken from the Templar seal.

What really marks this church as Templar, however, is its shape. The order derived its name from the Temple of Solomon, the site of which has been occupied since the seventh century by the Dome of the Rock, and in reference to this “Temple,” most Templar churches were round.

I do not know how the round church functioned liturgically, however, and as can be seen from this scanned postcard, a longer, rectangular chancel was added to the original building some time later (note the difference in arches – romanesque to the left, gothic to the right).

The round part does hold the grave of a famous occupant: William Marshal, a powerful political figure of the late twelfth and early thirteenth centuries, who acted as regent for England for the first three years (1216-19) of the reign of the young King Henry III. Throughout his career he admired and supported the Templars and took membership vows on his deathbed, thus his burial here and not (say) in Westminster Abbey. 

Here is an interior view of the chancel looking toward the east (which had to be reconstructed after serious damage sustained during the Blitz).

A close-up of the altar, with its decidedly post-medieval reredos, featuring classical detailing and the Protestant emblems of the Creed, the Ten Commandments, and the Lord’s Prayer.

The altar frontal features two coats of arms, one comprising a cross of St. George with a golden Agnus Dei at the fess point, and the other a white pegasus on a blue field. These are the arms of the Middle Temple and the Inner Temple respectively, which are two of the four Inns of Court, professional associations for barristers in England (the other two are Lincoln’s Inn and Gray’s Inn).

Composite coat of arms of the Inns of Court: 1. Lincoln’s Inn 2. Middle Temple 3. Inner Temple 4. Gray’s Inn. Wikipedia.

Following the dissolution of the Templars in 1312, King Edward II granted the site to the other major crusading order, the Knights of the Hospital of St. John of Jerusalem, i.e. the “Hospitallers.” They in turn leased it to two colleges of lawyers, which evolved into the Inner Temple and Middle Temple, named after the grounds they occupied (did the Hospitallers themselves occupy the “Outer Temple”?). King Henry VIII, in turn, dissolved the English chapter of the Hospitallers in 1540, and in 1608 King James I granted the church to the lawyers on a permanent basis, on the condition that they maintain it. This they have done ever since.

This is a device used by the church, showing both the Agnus Dei and the Pegasus, separated by a musical staff (in medieval notation), in honor of the musical tradition at the Temple Church.

Of course, following the appearance of the Temple Church in Dan Brown’s Da Vinci Code, it has become rather popular with a certain type of tourist, and the church sells a pamphlet addressing the issues raised by the book. But I was far more interested in their display about Magna Carta.

Anglo-American

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On February 12, at the annual conference of the National Sheriffs’ Association, Attorney General Jeff Sessions used the expression “Anglo-American,” and some people have objected. This adjective appeared in an off-the-cuff digression (or at least, not included in his remarks as prepared for delivery); they may be seen in a YouTube video of the event, courtesy of NBC. A transcription:

Every sheriff in America, since our founding, the independently elected sheriff has been the people’s protector, who keeps law enforcement close to and accountable to people, through the elected process. The office of sheriff is a critical part of the Anglo-American heritage of law enforcement. We must never erode this historic office. I know this, you know this, we want to be partners, we don’t want to be bosses. We want to strengthen you, and help you be more effective in your work.

What’s so wrong with this, you ask? Well, the adjective “Anglo-American” is “problematic” for some people, connoting an America founded by and for white people of British descent (cf. “Anglo-Saxon“) – the antithesis of what we want for America today. On the Facebook group Teaching the Middle Ages, one professor claimed that “Anglo-American” was “racist” and “an alt-right term,” and suggested the use of “Common Law” as a substitute. And yet, America really did inherit certain things from Britain, and law professor Sasha Volokh, our guest speaker this week, pointed out that “Anglo-American law” and its variants are perfectly legitimate terms, and used all the time (specifically, courtesy Westlaw, 1695 times in U.S. state and federal cases, and 9449 times in legal periodicals). Moreover, “Common Law” isn’t precisely the same thing, given that the Anglo-American legal tradition includes “various administrative and constitutional principles, plus a bunch of procedural rules, which are not thought of as being part of Common Law.” As for the alt-right: well, they talk about the Constitution, too, “but that’s no excuse for us not to also talk about it.” He then quoted some decidedly non-alt-right authors who used the terms “Anglo-American law” or “Anglo-American legal [system, tradition, etc.],” people such as Justices Stevens, Ginsburg, and Brennan of the US Supreme Court, and President Barack Obama himself.

That sounds pretty convincing to me. But what if you dislike Jeff Sessions anyway, and are not prepared to give him the benefit of the doubt? Well, you can adopt the strategy of one Ken Mondschein. In an article on The Public Medievalist, published on Thursday, Mondschein conceded that Sessions was “technically correct” and “factually correct,” and that “Anglo-American” is “actually a very common legal term, [which is] not typically racially charged.” But he then proceeded to use the same rhetoric as that of your high-maintenance ex-girlfriend: “Even if I’m wrong, I’m right.” Essentially, everyone else can use the term, but not Sessions, because everyone knows he’s a baddie. Sessions’s use of the term was “incredibly fraught” and “widely interpreted as being a racist dog whistle.” That he addressed his remarks to a group of sheriffs made it even worse: the medieval office of shire-reeve came to be dominated by the local gentry, and in America also represented the locals… who used it to keep black people down. (I’m not denying that this may have been a problem once, but whether law enforcement is centralized or decentralized is a discussion we can have independent of its racial implications – or medieval roots, for that matter.)

Whether he realized it or not, Sessions’ statement had two references to medieval history buried deep within it: the idea of the power of sheriffs, and the idea of “Anglo-American” law. In this we can read Sessions’ words as a part of a disturbing pattern, where pieces of the medieval past are used to justify white supremacy….

Sessions likely did not realize the medieval context of his words. Whether he meant it as a medievalism or not, however, Sessions’ comments are part of a frustrating pattern where parts of our culture with medieval origins are weaponized to justify racist policies. It falls to each of us to remain vigilant, and to continue to push back against the use of the past to justify racism in the present.

I am reminded again of the bone-headed stupidity of the sorts of people who go around policing the discourse in this way, claiming to know you better than you know you, because they learned how to sniff out the real meaning of your words in their trendy sociology classes.* Why focus on the alleged problems of “sheriff” or “Anglo-American,” when in another part of Sessions’s speech, we read that:

Civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed. It weakens the criminals and the cartels. Civil asset forfeiture takes the material support of the criminals and makes it the material support of law enforcement. In departments across this country, funds that were once used to take lives are now being used to save lives. And there is nothing wrong with adoptive forfeitures. There can be no federal adoption if the forfeiture is not called for under federal law. In many cases, adoptive forfeitures represent great partnerships between federal and state law enforcement.

Adoptive forfeitures are also deeply corrupting to law enforcement at all levels, a violation of the fourth and fifth amendments, and an unfair hobbling of the defendant (how can you mount an effective defense, if your assets have all been seized?). So much for dog whistles: here is Sessions clearly and publicly endorsing state-sanctioned corruption (and something quite outside the Anglo-American tradition, by the way**). Why can’t we pay attention to that? Alas, apparently it’s a mere bagatelle compared to what Sessions might have meant by “Anglo-American,” if you don’t like him to begin with and you squint at his remarks in just the right way.

The late great David Foster Wallace (at 55) touched on a similar issue once:

Forget Stalinization or Logic 101-level equivocations, though. There’s a grosser irony about Politically Correct English. This is that PCE purports to be the dialect of progressive reform but is in fact — in its Orwellian substitution of the euphemisms of social equality for social equality itself — of vastly more help to conservatives and the U.S. status quo than traditional [language] prescriptions ever were. Were I, for instance, a political conservative who opposed taxation as a means of redistributing national wealth, I would be delighted to watch PCE progressives spend their time and energy arguing over whether a poor person should be described as “low-income” or “economically disadvantaged” or “pre-prosperous” rather than constructing effective public arguments for redistributive legislation or higher marginal tax rates on corporations. (Not to mention that strict codes of egalitarian euphemism serve to burke the sorts of painful, unpretty, and sometimes offensive discourse that in a pluralistic democracy leads to actual political change rather than symbolic political change. In other words, PCE functions as a form of censorship, and censorship always serves the status quo.)

* Yes, I know that one of the most important tasks of an intellectual is to discern meaning that might not be immediately apparent. I continue to be amazed, however, at how this hidden meaning, as exposed by your average academic, is usually predetermined, and no more true than its opposite.

** Perhaps this is why some people are so triggered by “Anglo-American.” The Anglo-American legal tradition endorses such things as presumption of innocence, reasonable standards of evidence, and the right to cross-examine witnesses. Such quaint relics of the bourgeois past are not what we need now – we want revolutionary justice, comrade!

Pirates

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Via Instapundit, an interesting article on pirates, from Humanities, the magazine of the National Endowment for the Humanities (so you should probably visit the site while you still can):

A Lot of What Is Known about Pirates Is Not True, and a Lot of What Is True Is Not Known

By Mark G. Hanna

In 1701, in Middletown, New Jersey, Moses Butterworth languished in a jail, accused of piracy. Like many young men based in England or her colonies, he had joined a crew that sailed the Indian Ocean intent on plundering ships of the Muslim Mughal Empire. Throughout the 1690s, these pirates marauded vessels laden with gold, jewels, silk, and calico on pilgrimage toward Mecca. After achieving great success, many of these men sailed back into the Atlantic via Madagascar to the North American seaboard, where they quietly disembarked in Charleston, Philadelphia, New Jersey, New York City, Newport, and Boston, and made themselves at home.

When Butterworth was captured, he admitted to authorities that he had served under the notorious Captain William Kidd, arriving with him in Boston before making his way to New Jersey. This would seem quite damning. Governor Andrew Hamilton and his entourage rushed to Monmouth County Court to quickly try Butterworth for his crimes. But the swashbuckling Butterworth was not without supporters.

In a surprising turn of events, Samuel Willet, a local leader, sent a drummer, Thomas Johnson, to sound the alarm and gather a company of men armed with guns and clubs to attack the courthouse. One report estimated the crowd at over a hundred furious East Jersey residents. The shouts of the men, along with the “Drum beating,” made it impossible to examine Butterworth and ask him about his financial and social relationships with the local Monmouth gentry.

Armed with clubs, locals Benjamin and Richard Borden freed Butterworth from the colonial authorities. “Commanding ye Kings peace to be keept,” the judge and sheriff drew their swords and injured both Bordens in the scuffle. Soon, however, the judge and sheriff were beaten back by the crowd, which succeeded in taking Butterworth away. The mob then seized Hamilton, his followers, and the sheriff, taking them prisoner in Butterworth’s place.

A witness claimed this was not a spontaneous uprising but “a Design for some Considerable time past,” as the ringleaders had kept “a pyratt in their houses and threatened any that will offer to seize him.”

Governor Hamilton had felt that his life was in danger. Had the Bordens been killed in the melee, he said, the mob would have murdered him. As it was, he was confined for four days until Butterworth was free and clear.

Jailbreaks and riots in support of alleged pirates were common throughout the British Empire during the late seventeenth century. Local political leaders openly protected men who committed acts of piracy against powers that were nominally allied or at peace with England. In large part, these leaders were protecting their own hides: Colonists wanted to prevent depositions proving that they had harbored pirates or purchased their goods. Some of the instigators were fathers-in-law of pirates.

There were less materialist reasons, too, why otherwise upstanding members of the community rebelled in support of sea marauders. Many colonists feared that crack-downs on piracy masked darker intentions to impose royal authority, set up admiralty courts without juries of one’s peers, or even force the establishment of the Anglican Church. Openly helping a pirate escape jail was also a way of protesting policies that interfered with the trade in bullion, slaves, and luxury items such as silk and calico from the Indian Ocean.

Much more at the link. It’s interesting how such popular violence was a part of life in early America.

Code of Hammurabi

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It should really be the Code of Marduk, of course. Just look at the bas-relief sculpture at the top of the stele:

Hammura1

American Historical Association.

According to people more informed than I am, King Hammurabi (ruled in Babylon, in Mesopotamia, in the early 18th century BC) is the one standing in the posture of respect to the god, who is sitting, holding a symbol of authority, and telling the king which the laws he wants instituted. The classic comparison here is Moses atop Mount Sinai getting instruction from Yahweh; in both cases we see how religion helps to justify the system. These laws aren’t arbitrary! Some human, as important as he was, didn’t just make them up on the toilet one morning. They come from a god, so you’d better obey them.

The two notable features of the Code of Hammurabi are retributive justice (“an eye for an eye”), and differentiated punishment, based on one’s social status. Generally, if you harm a social equal, you suffer the same harm back, but if you harm someone beneath you in the social hierarchy (that is, if you’re an aristocrat and you hurt a commoner, or if you’re a commoner and you hurt a slave), you can always pay a fine and get out of being hurt yourself.* Nowadays we’re appalled by this, of course: as the bumper sticker says, “an eye for an eye leaves everyone blind!” And really, if someone harmed me, I wouldn’t be satisfied by getting to inflict the same harm on him – I’d much rather have some cold hard cash for compensation instead. But I have a theory about the lex talionis. That is, nowadays murder, assault, battery, grievous bodily harm, etc. are all crimes – crimes against the state, whose subjects have been harmed and whose peace has been disturbed. Thus does the state reserve for itself the right to punish such actions. This wasn’t always the case – in many other times and places hurting someone was something between you and him – or more accurately, between your people and his people. The state was much more self-interested and self-preservative. Harming someone else was like putting up a fence three feet beyond your actual property line and trying to claim a bit of your neighbor’s yard. This is not something he can call the police about, and it’s not something that anyone will even enforce save for him complaining about it. Violent revenge, in other times and places, was legitimate in a way that it is not in the present-day United States. What retributive justice did, therefore, is to impose a ceiling on the amount of revenge you could take. It’s an eye for an eye – not two eyes, seven teeth, and an ear. It is natural to escalate, to inflict far more suffering than you have suffered, but even ancient states had an interest in stopping such cycles of violence. Thus the proportional (and limited) violence allowed.

* As far as the formal laws were concerned, of course. We have no idea whether these laws were actually enforced, or merely rhetorical. (Nevertheless, laws remain a good historical source for a given society, because no one passes a law against something that isn’t happening.)

Some of my favorite laws from the Code of Hammurabi:

2. If any one bring an accusation against a man, and the accused go to the river and leap into the river, if he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death, while he who leaped into the river shall take possession of the house that had belonged to his accuser.

This is a wonderful description of trial by ordeal. The river knows! But don’t make your accusation lightly (the stakes are a little higher here than losing a civil suit and having to pay your opponent’s court costs, as is the case in Canada.)

I hope that enterprising Babylonians taught themselves how to swim.

53. If any one be too lazy to keep his dam in proper condition, and does not so keep it; if then the dam break and all the fields be flooded, then shall he in whose dam the break occurred be sold for money, and the money shall replace the corn which he has caused to be ruined.

Agriculture was dependent on irrigation – but everyone had to pull together to make sure that it worked.

57. If a shepherd, without the permission of the owner of the field, and without the knowledge of the owner of the sheep, lets the sheep into a field to graze, then the owner of the field shall harvest his crop, and the shepherd, who had pastured his flock there without permission of the owner of the field, shall pay to the owner twenty gur of corn for every ten gan.

Oh, the farmer and the shepherd should be friends! It’s interesting how you either raised crops or you raised animals – rarely did people do both. It’s also interesting how raising crops seems to be the more important activity here – in contrast to ancient Hebrew society, which seemed to favor pastoralism (viz. the gifts of Cain and Abel in Genesis).

104. If a merchant give an agent corn, wool, oil, or any other goods to transport, the agent shall give a receipt for the amount, and compensate the merchant therefor. Then he shall obtain a receipt from the merchant for the money that he gives the merchant.

Here we see evidence of long-distance trade carried out by merchants and their employees – and the perennial temptation to cheat.

108. If a tavern-keeper (feminine) does not accept corn according to gross weight in payment of drink, but takes money, and the price of the drink is less than that of the corn, she shall be convicted and thrown into the water.

110. If a “sister of a god” open a tavern, or enter a tavern to drink, then shall this woman be burned to death.

Then as now bars were disreputable places. They watered down the liquor! They were so bad otherwise that the Babylonian equivalent of nuns were forbidden to enter them. I wonder if they weren’t associated with prostitution, with the feminine tavern-keeper playing the role of the madam.

142. If a woman quarrel with her husband, and say: “You are not congenial to me,” the reasons for her prejudice must be presented. If she is guiltless, and there is no fault on her part, but he leaves and neglects her, then no guilt attaches to this woman, she shall take her dowry and go back to her father’s house.

It’s definitely a man’s world in ancient Babylon, but I like how women have some rights. Here, she can actually initiate divorce, and as long as she is “guiltless,” she can leave.

215. If a physician make a large incision with an operating knife and cure it, or if he open a tumor (over the eye) with an operating knife, and saves the eye, he shall receive ten shekels in money.

218. If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off.

So Babylon had professional physicians. I wonder if the ten shekels was a floor or a ceiling – that is, was it an especially generous reward for competence, or was it a maximum, to prevent the greedy physician from charging even more? Note that you were punished exceedingly if you failed. That’s just the way it is in the Code of Hammurabi!

The Constitution

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From Reinhardt’s Events Page:

Supreme Court Justice Keith Blackwell to Speak

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Those words are familiar to most Americans as the Preamble to our Constitution, and community members are invited to hear Justice Keith R. Blackwell of the Supreme Court of Georgia speak on the nature of this important document during Reinhardt’s Constitution Day on Thursday, Sept. 17, 2015, at 2 p.m. in the Bannister Glasshouse, Hasty Student Life Center on the University’s main campus in Waleska, Ga.

Blackwell, a native of Ball Ground, Ga., will be introduced by another long-time Cherokee County resident, S. Jeffrey Rusbridge, a principal with the law firm of Dyer & Rusbridge, P.C. of Canton, Ga. Rusbridge and Blackwell, who were college roommates and law school classmates, have been friends for many years.

Dr. Karen P. Owen, program director for the University’s Master of Public Administration program, has helped plan this event and hopes community members will take this opportunity to help celebrate the signing of the U.S. Constitution.

September 17 is the day when the original Constitution was signed in Philadelphia, and has been designated Constitution Day since 2004. All universities that receive federal funds (i.e., all of them) must by law provide Constitution-themed educational programming on that day. I’m pleased that Reinhardt is doing something this notable.

I have always been impressed by the place of the Constitution in this country. The US is one of the oldest constitutional democracies on earth; as Mark Steyn once put it:

We know Eastern Europe was a totalitarian prison until the Nineties, but we forget that Mediterranean Europe (Greece, Spain, Portugal) has democratic roots going all the way back until, oh, the mid-Seventies; France and Germany’s constitutions date back barely half a century, Italy’s only to the 1940s, and Belgium’s goes back about 20 minutes, and currently it’s not clear whether even that latest rewrite remains operative. The U.S. Constitution is not only older than France’s, Germany’s, Italy’s or Spain’s constitution, it’s older than all of them put together.

But how could it be otherwise? When you’ve got a “proposition nation” like the U.S. is, the Constitution takes on an outsized importance – it quite literally constitutes the country. (France might change constitutions, but no one doubts that France, with its historic language, cuisine, and culture, will still be there.)

Alas, the Constitution is deliberately difficult to change. In some ways this is a good thing, in accord with how seriously we take it. In some ways it is a bad thing, because some changes should not require constitutional amendments. This has led to the whole tradition of the Living Constitution, which to my mind is a worse situation. As Jonah Goldberg once put it:

The idea is simple. Al Gore summed it up pretty well when he was asked during the 2000 campaign what kind of judges he’d appoint. “I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”

The most popular argument against a “living Constitution” is also pretty simple. Once you accept the proposition that the words on the page can mean what you want them to mean, well, then the words on the page matter less than the views of those we select to interpret them. Once this happens, the Court in effect becomes an unelected and unaccountable legislature.

Furthermore:

The only good constitution is a dead constitution… The rules of the dead keep us free. Imagine you’re playing baseball and all the rules can be changed mid-game.

Technically you’d be more “free.” After all, you could vote to eliminate strikes and balls. You could choose to run to third base first or extend the innings indefinitely until you win. But then again, so could everyone else. In other words, if you don’t set the rules in advance you don’t get freedom, you get anarchy. You don’t get a baseball game, you get a bunch of guys running around in funny clothes with clubs.

I do not think, though, that Jesus bestowed the Constitution on us.

Cromwell

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Interesting article about an article. I’m glad to read this; I’ve always felt that Cromwell’s crimes in Ireland were somewhat exaggerated:

Between 1652 and 1654, the high court of justice in Ireland presided over nearly 129 recorded trials. Interestingly, 41 per cent of individuals tried were pardoned.

It seems that the court was not a retributive measure, but instead proved essential to ensuring the success of Cromwell’s regime in Ireland. Cromwell seems to have embraced both long-standing domestic traditions and emerging international legal principles to create a judicial system which was not dissimilar to modern criminal tribunals, Wells notes.

Moving away from a black-or-white portrayal of Cromwell as saviour or slaughterer, Wells’ argument is cleverly nuanced. She suggests that the distinctive circumstances in Ireland in the 1650s meant that English parliamentarians used law as a means to move away from violence. In doing so, the new regime became legitimised, enhancing English power in Ireland.

It is this clever combination of at once being rooted in the English past and being flexible enough to use multiple legal traditions which was exported throughout the later British Empire. Wells has clearly shown that Ireland served as the testing grounds for a style of governance which would be imposed around the world.

Magna Carta

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Turns out Magna Carta is not as significant as everyone thinks!

“Did Magna Carta make a difference?” [historian David] Carpenter asks. Most people, apparently, knew about it. In 1300, even peasants complaining against the lord’s bailiff in Essex cited it. But did it work? There’s debate on this point, but Carpenter comes down mostly on the side of the charter’s inadequacy, unenforceability, and irrelevance. It was confirmed nearly fifty times, but only because it was hardly ever honored. An English translation, a rather bad one, was printed for the first time in 1534, by which time Magna Carta was little more than a curiosity.

Then, strangely, in the seventeenth century Magna Carta became a rallying cry during a parliamentary struggle against arbitrary power, even though by then the various versions of the charter had become hopelessly muddled and its history obscured. Many colonial American charters were influenced by Magna Carta, partly because citing it was a way to drum up settlers. Edward Coke, the person most responsible for reviving interest in Magna Carta in England, described it as his country’s “ancient constitution.” He was rumored to be writing a book about Magna Carta; Charles I forbade its publication. Eventually, the House of Commons ordered the publication of Coke’s work. (That Oliver Cromwell supposedly called it “Magna Farta” might well be, understandably, the single thing about Magna Carta that most Americans remember from their high-school history class. While we’re at it, he also called the Petition of Right the “Petition of Shite.”) American lawyers see Magna Carta through Coke’s spectacles, as the legal scholar Roscoe Pound once pointed out. Nevertheless, Magna Carta’s significance during the founding of the American colonies is almost always wildly overstated. As cherished and important as Magna Carta became, it didn’t cross the Atlantic in “the hip pocket of Captain John Smith,” as the legal historian A. E. Dick Howard once put it. Claiming a French-speaking king’s short-lived promise to his noblemen as the foundation of English liberty and, later, of American democracy, took a lot of work.

Read the whole thing.