Tagged: Tocqueville

Law 16: Where knowing the law is of no use

English (I) and French (II).

I

Critical race theory is correct: civil rights legislation is rubbish and the liberals’ record a piece of trash.

*

Where knowing the law is of no use

British man cleared after being arrested for “offensive” online video. A win for free expression.

A win for free expression? “The court cleared L. after learning he did not make the video, shared it as a joke, and the clip had been quote-tweeted 369 times, and retweeted 47 times, and had 107 likes.”

The police picked up the man randomly among 400 “criminals” and there was a trial and that wasn’t the trial of the police but of the man and you call that a win for free expression? No, it would have been a win if the police had been tried and convicted for harassing a law-abiding citizen.

ii

Why do I say the man was subjected to police harassment? Normally, when police bring a man before a criminal court for trial, if the court, differing from the police, pronounces acquittal, it is based on a difference as to facts. The police thought, according to the evidence at their disposal, that the man was guilty but the court found out the story was another one. They differ on the facts of the case.

But when the court acquits the accused based on the same facts upon which the police and the prosecutor acted to prosecute the accused, how do you call that?

Here the court learnt that L. “did not make the video, shared it as a joke, and the clip had been quote-tweeted 369 times, and retweeted 47 times, and had 107 likes,” but the police investigation, which obviously had reached the selfsame conclusion that L. “did not make the video, shared it as a joke, and the clip had been quote-tweeted 369 times, and retweeted 47 times, and had 107 likes” had sent L. before a court for these –and no other– facts! (Clearly L. had NOT told the police he had made the video himself, in dead earnest, and was the only person to share it, because we will assume he is not suicidal–if he were he would have told the court the same story.)

Therefore the police, having all the facts it needed to leave L. alone, ignored the law and subjected L. to a dire ordeal–out of sadism? one might ask.

With these perverted laws repressing speech, it is always the same and everybody knows it and no one dares speak their mind because a trial’s always possible, it all depens on the subjective appreciation –or even whims– of this or that officer or magistrate. This, I believe, is a strong motive why the U.S. Supreme Court wants none of such insanities, whereas in Britain they are still children living in the days of Blackstone who thought free speech is protected when there was no prior restraint.

iii

In other words they all agree on the facts of the case; yet, based on facts on which they all agree, one demands a conviction and the other acquits. This means no one can know what is permissible and what is not, as knowing the law is of no use then. What is required of citizens is not so much knowing the law as being able to read people’s minds.

*

Feudalism and Liberty

Since when can anyone not to mention employers, punish anyone for stating their thoughts and opinions? My employer is not my “daddy” and I am not their property so whatever I say or do as long as it is not at work is none of their concern, ever. (Dr Z.)

I agree the situation Dr Z. describes much resembles feudalism. However, if we take the problem as one of freedom maximizing, we probably should leave employers some room to dismiss at will, which remains the default rule in most of the United States (De Geest, American Law: A Comparative Primer, 2020).

To begin with, the U.K. Equality Act, which excludes opinion as a just cause for dismissal (except “discrimination” –read: content that is not politically correct, and you can count on British courts to make the exception as broad –or rather as discriminatory– as they can, and “harassment”), is of 2010, that is, it is a recent creation. Before that, British employers could fire workers based on their opinions and that would be construed most of the time as fitting the employer’s discretion.

In the U.S. there is no federal Equality Act statute and, as I said, the at-will doctrine remains the default rule. How they blend this with fair employment clauses of the civil rights statutes is beyond my knowledge. Be that as it may, one’s opinion is not one of the protected classes covered by the civil rights acts, so if an employee displeases his boss because of his opinions and the boss fires him, probably there is not much the employee can do about it.

An employer might argue his collaborator is undermining his business (which has a public relations dimension) by making his opinions known and sometimes that could well be the case, so I cannot agree 100% with Dr Z. because it is a business owner’s freedom against that of his employee, and both must retain some degree of freedom. Yet we all perceive that employers will bend to outside pressures to dismiss any employee who expresses views unpleasant to this or that community or lobby so long as they cannot reply to such cancel mobs (heckler’s veto) that the law bars them from dismissing the employee based on his or her opinions. So, yes, probably some statute is needed to shield the employees, because that would even shield the employer. The latter would then face boycott campaigns (boycott is protected speech) but –who knows?– he might survive it. However I don’t expect business organizations to support such a policy.

*

Claim Settlement, or The New Aristocracy

How can you settle claims as prosecution for a crime does not depend on actual claims at all? Even though nobody would file a claim when there is a dead man, prosecuting authorities, if they’ve got a suspect, will send him or her before a court of law. So what does it mean that claims are settled? In theory an injured party has no power to prevent criminal prosecution. Is it settled with the prosecutor then? On what grounds?

Another example: the OJ Simpson trials. There were two trials: criminal and civil (tort suit). As you remember OJ was aquitted by the criminal court and found guilty in the tort trial (due to different evidence rules) but that’s not what interests me now. What interests me is how parties can settle a claim in a criminal trial when they’re not even supposed to be there and it takes a civil trial for them to be represented (in some countries the criminal and tort aspects would have been judged in one single trial)?

ii

My conjecture is that claims are settled when the prosecutor doubts that the evidence is beyond a reasonable doubt (the legal standard of proof in criminal trials) and therefore doubts that a criminal trial can thrive against the suspect, so the prosecutor treats the whole matter as a tort case that can be settled between parties. However, on what principle can the pondering of evidence value at the disposal of the prosecution allow the prosecution to make a tort of a crime (or to erase, so to speak, the criminal dimension of an offense that is both a tort and a crime)–while evidence value is the fortuitous result of police work?

The consequence is that rich people, no matter how criminally they behave, will hardly ever have criminal records–rules of subsequent offenses, among other things, will not apply to them. What a privilege.

Tocqueville, a keen observer of the United States, warned about two dangers: tyranny of the masses, which libertarians are fond to recall, but also the tyranny of a money aristocracy.

*

State Action of Private Platforms

Lawsuit against Twitter reveals how it works with Democrats to censor. (Reclaim the Net, June 18, 2021)

Evidence of state action:

“One of these documents is an email from M., Press Secretary for then-California Secretary of State P., to Twitter employee K. that appears to refer to this dedicated channel as ‘the partner portal.’ In the email, M. flagged a tweet from another Twitter user that was previously reported through this partner portal and stated: ‘We would like this tweet taken down ASAP to avoid the spread of election misinformation.’”

1/ Not only did the state refer the tweets through the “dedicated channel,” which would be the usual procedure, but also and in any case the state, via a public officer, made the alleged usual procedure an unusual one by sending an unsollicited email (“Flagging the following tweet that I reported…”), which can be construed as a threat and command to process the report according to the state’s wish.

2/ If the appellation “partner portal” is a true description, then obviously the nexus is established between the private party and the state and therefore the private party’s action is state action.

Given state action, censorship by the private party is a civil liberties First Amendment case.

II

À l’occasion de l’enfarinage de J.-L. Mélenchon le 12 juin, j’apprends, dans le journal, qu’un homme a été interpellé pour « violence sur personne chargée d’une mission de service public ». Je suppose que ce sont les députés et autres élus que notre code pénal décrit comme des personnes chargées d’une mission de service public.

La situation est donc la suivante aux élections : un candidat déjà élu est une personne chargée d’une mission de service public, ce qui lui vaut une protection judiciaire spéciale, tandis que ses concurrents qui ne sont pas déjà élus ne sont rien. C’est octroyer à certains candidats un avantage contraire à tous les principes d’un régime électif. (Je ne crois pas que Mélenchon l’ait jamais dénoncé, ni le Conseil constitutionnel mais ça ce n’est même pas un peu étonnant.)

*

Une justice de bons petits soldats du gouvernement

Je pense que les juges ne devraient plus être inamovibles comme actuellement mais élu par la population locale et notés sur leurs résultats.

Je suis moi-même pour l’élection des juges (ou de la plupart des juges) mais cette personne fait erreur sur le statut actuel du juge français.

1/ Obligation statutaire de mobilité :

“Le juge français est soumis à une obligation statutaire de mobilité géographique ou fonctionnelle qui est exercée généralement tous les cinq à sept ans.”

2/ Un seul pool de magistrats du parquet (hiérarchiquement dépendants du ministère de la justice !) et du siège, avec passage de l’un à l’autre et dans les deux sens, exemple ce jeune magistrat : “Issu du premier concours de l’ENM (celui des étudiants), trois ans de parquet, deux ans et des poussières de siège civil.”

Dans les pays civilisés, l’administration du parquet est staffée par des fonctionnaires administratifs de même statut que les autres fonctionnaires de l’administration centrale, c’est-à-dire de la branche exécutive ; en France, elle l’est par… des juges. (Il n’est pas “juge” quand il est au parquet, car on l’appelle alors un “procureur” ou son “substitut”, mais c’est bien la même personne qui passe de l’un à l’autre.)

Alors parler d’inamovibilité…

ii

Mes cours de droit sont un peu lointains mais je confirme que le juge est inamovible. Les magistrats ne peuvent pas recevoir une nouvelle affectation sans avoir donné leur consentement. Leur indépendance est garantie par le fait que le gouvernement ne peut pas suspendre, déplacer ou destituer un magistrat.

Mon interlocuteur a bonne mémoire mais réciter des cours de droit n’aide malheureusement pas, le plus souvent, à bien juger de la situation.

C’est comme quand, en 2013, le gouvernement pond une loi sur « l’indépendance du parquet », parce que la Cour européenne des droits de l’homme est un peu critique (un peu seulement mais quand même, ça fait tâche) et qu’en 2018, donc après cette loi sur « l’indépendance du parquet », la Cour EDH confirma sa jurisprudence (et ses critiques) dans un nouvel arrêt (Thiam c/ France). Vous voyez le problème ? Je suis certain qu’il y a beaucoup de commentaires élogieux de cette loi et de l’indépendance du parquet.

Mais nous parlons du siège et, citation pour citation, je connais celle-là : « Il est plus étonnant que le Conseil constitutionnel ait estimé que la condition de mobilité imposée aux magistrats du siège par la loi organique du 25 février 1992 ne méconnaissait pas le principe fondamental d’inamovibilité. » (Turpin, Mémento de la jurisprudence du Conseil constitutionnel) Étonnant, voire risible.

Ce que mon interlocuteur dit n’est pas faux, simplement il faut prendre en compte la porosité entre les deux administrations, qui ne peut en aucun cas décrire une séparation des pouvoirs, que l’inamovibilité des juges est censée garantir.

iii

Dans ce contexte, l’élection des juges serait un renforcement du pouvoir des juges et de leur indépendance effective vis-à-vis du gouvernement.

Il y a plusieurs raisons à cela. Je me borne à en citer deux. La première, pas forcément la plus fondamentale selon moi, est qu’il y aurait des juges élus sur d’autres plateformes électorales que celle du gouvernement en place, de la même manière qu’il y a des régions ou des départements et autres de couleurs politiques différentes de celle du gouvernement. Ces juges auraient des comptes à rendre à un électorat, c’est-à-dire qu’ils appliqueraient une politique judiciaire dans leur ressort juridictionnel. De fait, aujourd’hui, c’est le parquet (le gouvernement) qui applique dans les cours une politique judiciaire, tandis que les juges ne sont que des machines à « appliquer la loi ».

Cette première raison n’est pas sans lien avec celle qui me semble plus fondamentale encore et qui est qu’un juge élu ne peut pas être un fonctionnaire anonyme soumis au devoir de réserve, et soumis dans tout son être, comme le juge actuel. Un élu soumis au devoir de réserve ? Absurde. Or le juge français est, dans notre droit, la personne la plus soumise aux restrictions draconiennes du devoir de réserve, de par le statut écrit de la magistrature (le plus draconien à cet égard avec le statut militaire). Cela doit être également pris en considération quand on parle de sa prétendue inamovibilité : en réalité, il est enserré dans un inextricable réseau de chicane statutaire et la moindre prise de parole de sa part équivaut, en fait, à sa mort professionnelle. C’est la forme la plus insidieuse de castration jamais conçue, mais comme elle n’empêche pas de se reproduire je suppose que les intéressés estiment avoir préservé l’essentiel.

iv

On ne peut pas être un bon juge indépendant avec les qualités qui font un bon petit soldat du gouvernement comme le magistrat du parquet, et quand un système prétend, comme le système français, que les deux sont interchangeables, en réalité il organise une justice de bons petits soldats du gouvernement, par contamination.

*

Enquête ouverte sur un ex-général, accusé de propos antisémites. (Le Figaro, 18/6/21)

Non, une enquête n’est pas ouverte sur le général Delawarde pour « propos antisémites ».

Une enquête est ouverte pour « diffamation publique et provocation à la haine et à la violence à raison de l’origine ou de l’appartenance à une ethnie, une nation, une race ou une religion ».

Des propos antisémites ou homophobes ou ce que vous voulez qui ne sont ni de la diffamation (diffamation envers un groupe, catégorie totalement sui generis qui ne s’encombre pas de la moindre « exception de vérité » disculpatoire en matière de diffamation) ni de la provocation à la haine ni de l’incitation à la violence ni de l’injure ni de l’incitation à la consommation de stupéfiants ni de l’outrage à personne responsable d’une mission de service public ni de l’outrage à personne dépositaire de l’autorité publique ni de l’outrage aux symboles républicains ni des fausses informations, c’est-à-dire des fake news, ni de la violation du secret de l’instruction ni de la violation du secret médical ni de l’atteinte à la vie privée ni du blasphème (contrairement à ce que prétend la classe politique, il y a de la jurisprudence en 5e République) ni de la divulgation d’informations privées à des fins malveillantes sur une personne chargée d’une mission de service public ni de l’offense au chef de l’État (ah non, pardon, ç’a été abrogé en 2013, au temps pour moi) ni de l’atteinte au droit à l’image ni de la contestation de crime contre l’humanité ni de l’apologie d’actes de terrorisme ni de l’apologie de crimes de guerre ni de l’apologie d’eugénisme ni qu’est-ce que j’ai bien pu oublier ? NE SONT PAS UN DÉLIT.

ii

« Une enquête a été ouverte… »

Bonjour Monsieur. Êtes-vous le général Dominique Delawarde ? – Oui. Avez-vous tenu tel jour sur la chaîne Cnews les propos, je cite, « … » ? – Oui.

Vachement dure, l’enquête… (Oh là là, qu’est-ce qu’on a progressé depuis Sherlock Holmes !)

Dans ces affaires, il y a le plus souvent, peut-être presque toujours, un accord de tous, police, procureur, accusé, juge (tout le monde sauf le jury parce qu’il n’y a pas de jury), sur les FAITS (« machin a dit truc ») et pourtant il arrive que, pour des faits sur lesquels ils sont tous D’ACCORD, l’un exige une condamnation et l’autre acquitte.

« Va comprendre, Charles ! Avec le PMU on joue comme on aime. » Ils ont trop regardé la télé, ma parole… Quand les faits sont établis sans contestation, c’est la loi qui est le PROBLEME si elle permet ces divergences.

*

Rimbaud inconnu : L’Ascétique

Citations tirées d’Une saison en enfer (c’est nous qui soulignons) :

À chaque être, plusieurs autres vies me semblaient dues. Ce monsieur ne sait ce qu’il fait : il est un ange. Cette famille est une nichée de chiens. Devant plusieurs hommes, je causai tout haut avec un moment d’une de leurs autres vies. – Ainsi, j’ai aimé un porc.

J’ai eu raison de mépriser ces bonshommes qui ne perdraient pas l’occasion d’une caresse, parasites de la propreté et de la santé de nos femmes, aujourd’hui qu’elles sont si peu d’accord avec nous.

N’est-ce pas parce que nous cultivons la brume ? Nous mangeons la fièvre avec nos légumes aqueux. Et l’ivrognerie ! et le tabac ! et l’ignorance ! et les dévouements ! – Tout cela est-il assez loin de la sagesse de l’Orient, la patrie primitive ? Pourquoi un monde moderne, si de pareils poisons s’inventent !

Moi ! moi qui me suis dit mage ou ange, dispensé de toute morale, je suis rendu au sol, avec un devoir à chercher, et la réalité rugueuse à étreindre ! Paysan !

Lessons in Law 8: On Original Understanding

(Added March 20, 2021) the PDF:

In American law original understanding is the doctrine according to which judicial review should abide by the constituant’s original intent. This may sound pretty much like common sense, yet it is a minority opinion, which, as such, takes the name of ‘originalism,’ and the originals who defend it are ‘originalists.’

A major exponent of original understanding is Robert H. Bork, President Reagan’s failed nominee for the position of Justice of the United States Supreme Court in 1987. His book The Tempting of America: The Political Seduction of the Law (1990) shall serve as a guideline to the present lesson.

Although there is much to be commended in Bork’s book, in the present lesson we are mainly concerned with laying down our disagreement with some of his interpretations.

*

‘‘The abandonment of original understanding in modern times means the transportation into the Constitution of the principles of a liberal culture that cannot achieve those results democratically.’’ (Bork, p. 9 of First Touchstone Edition, 1991)

Leaving aside the content part of the sentence, it sums up Bork’s technical opinion on judicial review as practiced in ‘modern times,’ namely, by judges who, feeling unconstrained by the constituant’s original intent, inject their own political views into judicial decisions. In the context with which he is concerned, this approach has served, according to him, to carry out a liberal agenda. And ‘democratically,’ here, means by elected legislatures (although, in a broader sense, nominated judges are as much part of the democratic life of a nation as elected legislatures, we’ll come back to this later).

The claim is that a judge cannot disregard original understanding without relinquishing neutrality. To stick to the original intent is the only way not to force one’s own political views upon the body politic in one’s judicial decisions.

Thus, according to Bork, a substantive due process clause of the 5th amendment (No person shall be deprived of life, liberty, or property, without due process of law) was invented by Chief Justice Taney in the Dred Scott decision of 1857, whereas the amendment only contains a procedural due process clause.

As a matter of fact, Bork denies that a right to own slaves was in the Constitution. However, in the Court’s decision, Chief Justice Taney refers to the rights of property, which are obviously in the Constitution. A slaveholder had a property right on his slaves and, as the right of property is protected, the right to hold slaves was to the same degree.

A few years after Dred Scott and during the Civil War, the 13th amendment was adopted, excluding slaveholding as a form of constitutional right of property (Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States). Was, because of Dred Scott, a constitutional amendment necessary? I might even doubt it (see below), and yet it does not affect Dred Scott, inasmuch as, back then, slaveholding was as constitutional as any other holding of property. The clause struck down by the Court was an unconstitutional abridgement of the right to property; it does not mean that slaveholding was protected as such by the Constitution, that is, that the legislator could not decide to exclude slaveholding from the right of property, but as long as it was included in the latter right, it was protected accordingly, and according to existing statutes compatible with the Constitution.

This fallacy, that the Court would have introduced in the Constitution a right to hold slaves that was not in it, is Bork’s departing point. According to him, the substantive due process clause is the essence of later judicial activism, of ‘judicial legislation.’ He quotes Justice Black saying deprecatorily that the substantive clause is not the ‘law of the land’ but the ‘law of the judges’ (In re Winship, 1970).

To refuse to see slavery in the Constitution before the 13th amendment and to claim that the Court introduced it itself, amounts to giving slavery a definition it has never had, which makes it heterogeneous per se to the right of property. However, the freedom to own slaves, in a Constitution the letter of which knows of slavery (Art. I, Section 2, clause 3; Art. I, Section 9, clause 9; Art. IV, Section 2, clause 3), is the same thing as the right of property.

Even in the hypothetical case where slavery were absent from the letter of the Constitution, it is not permitted to interpret the right as not including slaveholding, for three reasons:

1/Slavery existed in the states at the time of the ratification of the Constitution;

2/The Constitution did not abolish slavery;

3/The Constitution does not enumerate the goods that it is legitimate to own as property, so the right includes all kinds of goods that the law held as permissible at the time of the ratification, which included slaves.

The Supreme Court in Dred Scott said that to deprive a slaveholder of his property when entering a state where that property was banned by statute (like Illinois, by state statute, and Louisiana, by the Missouri Compromise of 1821, the states involved in the case) is violating the right of property without due process of law. This is not the same, I believe, as saying that to vote a statute excluding some kinds of goods, here slaves, from legitimate property is unconstitutional. It is true that Chief Justice Taney went further toward ‘substance.’ However, had the Court made it clear that it was striking down, in the Missouri Compromise, not the statutory exclusion itself but the proceeding attached to the statute, depriving citizens from other states of their property as soon as entering the territory of the state that passed the statute, it would have injected no ‘substance’ at all in the due process clause. (That the consequence might follow that it is also unconstitutional to confiscate illicit drugs, for instance, is not unlikely; that would not shock me, and those aware of recent debates about forfeiture will show no surprise either.)

*

According to the Constitution, ‘‘No State shall pass any law impairing the obligation of contracts.’’ This clause is held by Bork, contrary to the Supreme Court in Hepburn v. Griswold (1870), to apply to the States and not the Union.

However, what could be the meaning of such a limitation, when federal law is as binding as state laws in the respective states? What would be the aim of placing such a constraint on the states, which would have few if any effects on individuals (as the federal law could still impair individuals’ contractual obligations), and that in a domain which has little bearing on the relationships between the states and the federal government? No, one must accept that a written Constitution leaves many things implicit, if only because the constituant cannot foresee all situations in the future, and also because too strict a litteral approach favors bad faith maneuvers that seek the flaws in the letter to the detriment of the original intent.

In the constitutional passage here, one fails to see what the constituant’s intent would be aimed at if he had intended to limit the states’ power to impair obligations of private contracts and not the Union’s, whereas, when both the states and the Union are held in check, one understands that the intent is to ensure the binding force of private contracts throughout the territory of the Union.

Here is a case where Bork asks the courts to adopt a litteral approach. Yet, in one major instance, a very important one in this thought, he asks them to do precisely the opposite.

*

Bork approves the Supreme Court’s ruling on the Slaughterhouse Cases (1873) involving the 14th amendment. The Court said the amendment applies to the newly freed slaves only. Yet the letter of the amendment (No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States) cannot lead to the conclusion that the amendment stops at racial questions. Indeed, in said cases dissident Justice Bradley asserted that the amendment was ‘embracing all citizens,’ and this would later become the line of the Court after it reversed its position†.

Footnote: [On this particular clause of the 14th amendment, the Court is actually said to have maintained its position: ‘’The Court’s narrow restriction of the privileges and immunities clause continues to this day.’’ (J.R. Vile, on Slaugtherhouse Cases, in Essential Supreme Court Decisions, 2018) (Bork, for his part, says of this clause: ‘’The privileges and immunities clause, whose intended meaning remains largely unknown, was given a limited construction by the Supreme Court and has since remained dormant.’’ [37]) At the same time, as Bork emphasizes it time and again, another clause of the same amendment, the equal protection clause (No State shall deny to any person within its jurisdiction the equal protection of the laws), has been interpreted as ‘embracing all citizens’, for instance: ‘’It is clear that the ratifiers of the fourteenth amendment did not think they were treating women as an oppressed class similar in legal disadvantages to the newly freed slaves. That is an entirely modern notion and written into our jurisprudence only recently by the Supreme Court.’’ (Bork, 329) Therefore, as a result of the Supreme Court’s stare decisis, in the same sentence of the same amendment, in one part of this sentence (the privileges and immunities clause) the word ‘citizens’ is understood in a restrictive sense as meaning Blacks, and in the other part (the equal protection clause) the word ‘person’ is understood as embracing all citizens. This is certainly peculiar and unlikely to enhance American citizens’ knowledgeability in their own law.]

Bork agrees that the 14th amendment was specifically framed for Black people, the newly freed slaves. He acknowledges that its redaction is more general, more ‘embracing,’ to speak like Justice Bradley, and his argument here (pp. 65-6) is that some other general dispositions are applied by courts in a limited fashion consistent with the intent of the legislator. (As if he were not warning us throughout his book that courts could take militant positions.)

With this guideline of looking for the intent, Bork argues that the Court could have, with the same result, been ‘originalist’ in Brown v. Board of Education, for ‘’the real principle was that government may not employ race as a classification’’ (79) (as the equal protection clause is nothing less and nothing more than a prohibition on racial classification, according to him), but that the unanimous Justices chose another, ‘un-originalist’ way of reasoning, to reach their conclusion. Bork’s point, contrary to the mainstream interpretation of the case, is that the decision itself is consistent with the original intent of the framers of the 14th amendment, no matter how the Court got there.

Leaving aside that (1) a Black-White racial classification is not the only possible racial classification and (2) one fails to see how the will to abolish a slave-master relationship, even when this relationship overlapped with a Black-White classification, must imply an absolute mandate to relinquish every kind of racial classification (an altogether different subject –slavery needs not function on racial dividing lines– and the Chinese Exclusion Act subsequent to the 14th amendment surely pays no heed to the amendment being a racial classification prohibition clause), one entirely fails to see why, if by the 14th amendment they wanted to strike at racial classifications only, the legislators would not say so explicitly and would use the word ‘citizens’ and ‘person’ instead.

Many will find my essays on Brown v. Board of Education, in the previous Lessons of this blog (Lessons 4-6), naive, as I seem to believe that the Court’s aim was to end not only legal but also de facto segregation. I admit I have difficulties with the notion that the undoing of legal segregation and the policy of busing (not to mention affirmative action) had nothing to do with contemplating the end of de facto segregation. Especially because, as the Court claimed that legal segregation was an obstacle to Blacks feeling equal, I fail to see how the obstacle to feeling equal is removed when Blacks cannot put the blame for their marginality in the American society on the states any longer but have to put it on themselves, as they are told that the obstacle to their integration has been withdrawn. Current de facto segregation is of a center-margin structure, no doubt about it. (At the relevant level, which is the reverse of the topographic level, where white suburbia is the periphery.)

As the Court from the outset has refused to address the question of de facto segregation (the dead-on-arrival decision Shelley v. Kraemer, striking racially exclusive covenants, notwithstanding), if the aim was to put an end to a psychological feeling of inferiority, the truth is that Brown was not addressing the issue even remotely.

It remains that the Court could not prove that legal segregation was necessarily causing a feeling of inferiority among Blacks, although the apodixis was formally required to order the ending of legal segregation rather than its reform on new grounds.

*

Bork blames the Court, in Griswold v. Connecticut (1965) by which the Court struck down an anticontraception law, to have invented a tool for expanding ‘moral relativism in sexual matters’ but he has just explained in the previous pages that the anticontraception statute in question was not enforced (except in the present case, which was brought about as a test case, that is, intentionally by the claimants), and this means that moral relativism was already ensconced in legal affairs and that the Court, therefore, only affirmed it, not as an invention of the Justices, but as the current state of the law. It would have been different if the law had been enforced.

Justice Stewart called the anticontraception bill ‘an uncommonly silly law,’ yet it is a perfectly Christian law. The first and foremost deterrent to promiscuity is the possible consequence of unwanted pregnancy, and Christianity is ‘that religion precisely which extols the single state’ (Kierkegaard, The Instant N° 7). Obviously, for such a religion promiscuity must be a major evil. Had, on the other hand, Justice Stewart had STDs (sexually transmitted diseases) and the preventative necessity to curb their spread in mind, he would have called the law dangerous, not silly, so he had not STDs in mind while making his comment, and so it is hard to know what he meant if not that Christianity is an uncommonly silly thing.

In Griswold the Court found especial fault in the fact that the law applied (or purported to apply, as it was not enforced, according to Bork) to married people and what they were doing in their bedrooms. Yet two spouses can be promiscuous with each other (the number of sexual partners is immaterial to the true definition of the word), so laws against promiscuity cannot leave spousal relationships out of their scope.

It is the same with antiabortion laws. As the best trammel to promiscuity is the risk of unwanted pregnancy, women must be compelled to bear the consequences of their sexual conduct in terms of pregnancy, in order for unwanted pregnancies to remain a deterrent. In the past, several, not all, antiabortion legislations made exceptions in case of rape, the result of which must be, however, that some women will want to terminate unwanted pregnancies by accusing the father, or any man, of rape, and such accusations, though baseless, may be hard to dismiss. (I believe many rape cases are decided mainly on the basis of conventional presumptions, such as, if the two individuals did not know each other before, rape, when alleged, is assumed, etc.)

And it is the same with antisodomy laws.

*

On Brandenburg v. Ohio (1969), Bork makes the relevant following remark: ‘‘That rule [that only incitement to ‘imminent lawless action likely to produce such action’ falls outside the protection of the first amendment] … would not protect one who advocated a sit-in in a segregated lunch counter if the segregation was lawful and the advocacy produced a sit-in’’ (335).

Bork’s solution, however, is not acceptable: The right to advocacy of illegal conduct is a pillar of American freedom, the tenet that distinguishes it from all other nations in the world, which are police states and political caste (see below) states.

The solution must be, therefore, that incitement through speech is never a crime. How, anyway, does one reconcile criminalizing verbal incitement with the individualistic postulate of democracy? One is responsible for one’s actions; the law that criminalizes verbal incitement derives from another, archaic, opposite and incompatible postulate. While you criminalize verbal incitement, why do you not criminalize social conditions, systemic incitement? – Would you like to make an exception for crowds on the ground that crowds are irrational? Be aware that the social scientists who developed such theses, like the French Gustave Le Bon, also said that assemblies are crowds, legislative bodies are crowds.

Bork’s solution is the following: Advocacy of illegal conduct is not to be tolerated unless the conduct advocated is… lawful.

In his example above, he argues that, segregation being unconstitutional due to the equal protection clause of the fourteenth amendment, speech advocating a sit-in in a segregated lunch counter would be protected by the first amendment. The persons prosecuted for their speech could therefore invoke the unconstitutionality of segregation to demonstrate that, since segregation was unconstitutional, their speech was no advocacy of illegal conduct and was therefore protected by the first amendment.

To begin with, as executive authorities are no judge of the constitutionality of the laws they must enforce, if Bork’s solution were adopted prosecution would be unavoidable, and this in itself is repressive of speech, is bound to function as a form of censorship.

Then, the Constitution can be amended just as legislative statutes can be repealed, so there is no justification in allowing speech that incites conduct contrary to statutes (provided the statutes are proven unconstitutional) but not speech that incites conduct contrary to the Constitution.

This is why we suggest the rule of making unconstitutional all criminalization of verbal incitement.

*

One important thing omitted by Bork is that, in the separation of powers, irremovable judges must be a check to a political caste. But we are not really dealing with constitutional theory here, as the Constitution does not even know of political parties.

The lesser of two evils: ‘Judicial policymaking’ by irremovable judges is necessary to counter the underhand actions of a political caste, that is, to prevent the political class to become a political caste in the first place, and this is called for by the separation of powers itself, as a political caste cannot serve its vested interests without maintaining and increasing executive discretion and arbitrariness.

Bork is convinced that legislative policymaking is the result of a democratic tradeoff between political forces and that this tradeoff does not obtain in ‘judicial policymaking,’ but he ignores the common interest of a political caste in the absence of a sufficiently strong judicial counterpower. This common interest results, in questions bearing upon it, not in a political tradeoff but in caste unanimity against all other interests in the society. (Among other things, the caste suppresses speech, to prevent criticism.)

By caste we do not mean the traditional group structure based on the principle of heredity; we were only looking for a word that would make clear that in those democracies where the judiciary is weak the political class (and it is undeniable that there is a political class in the United States) degenerates into something else much more obnoxious.

The ‘liberal culture’ that Bork claims has been forced upon Americans by the US Supreme Court was on the other hand forced by their own legislators on European people. While reading the book, we hypothesized that the US Supreme Court may have set the precedent for legislations abroad, and that European legislators perhaps would not have passed such reforms as legalization of abortion, had not a great Western nation taken the lead, not by politicians but by nine judges. (In the media and political doxa, those European politicians are still held as ‘courageous,’ which implies that they went against the grain, against the mainstream, against the majority of the people.) The hypothesis is not historically supported as far as abortion is concerned. A chronology that would go from totalitarian legislation –Bolshevik rule in Russia (1920-1936, then 1955) and National-Socialist power in Germany (in the thirties)– to the US Supreme Court’s decision Roe v. Wade (1973) to European democratic legislations like France’s (1975), would leave aside a couple of legislative reforms in other countries (Mexico, Poland, Iceland in the thirties, etc).

*

For a common law judge, the legislator’s intent is not binding. The following quotation on the situation in Nordic countries will serve as an illustration, by the contrast it offers:

‘‘Such preparatory works [so-called travaux préparatoires to the adoption of legislative statutes] are therefore used extensively by the courts in Nordic countries as interpretive tools when facing legal uncertainties. The fact that judges both participate in the making of new laws and as the practical users of those laws can to some degree explain the willingness of courts to follow such interpretive sources without feeling unduly influenced by politics. (As a contrast, see Pepper v. Hurt [1992], in which the British House of Lords –nowadays the Supreme Court– allowed for a rare consultation of political statements regarding the purpose of a law.) It might be said as a general observation that the courts in the Nordic countries try to stay loyal to legislative intent.’’

(Thomas Bull, in The Nordic Constitutions: A Comparative and Contextual Study, Krunke & Thorarensen ed., 2018)

Common law: the phrase is not to be found in the index of Bork’s book. Yet American judges are common law judges; Bork ignores it completely. His argument, in a nutshell, is that since the US has a written federal Constitution it is a regime of civil law (Roman law), but this is not the case, and one needs no modern constitutional theory, however liberal, to affirm that this is not.

For Bork, judicial policymaking must be interstitial, it must fill in the interstices of statutes, but in the philosophy of common law statutes fill the interstices of common law. – Coming from the very land hailed as the craddle of modern parliamentarism.

Bork’s concept of original understanding must by necessity make an entirely residual, insignificant power of the judiciary (like in France and other continental European countries) with the mere passage of time, for the simple and good reason that as time passes by the number and scope of situations that it is not possible to link satisfactorily to an original intent of the constituant must increase, so much so that the judge of 100 years from now will have to concede more power to the legislator than today’s judge, and the judge of 200 years from now more than the judge of 100 years from now. To prevent it, to maintain a balance of powers, the judiciary therefore must not approach the Constitution too literally, too narrowly, and this not in order to obtain new prerogatives but in order to avoid falling into insignificance, which would unavoidably lead to a despotic republic as warned about by Tocqueville (whom neither Bork nor his coauthors seem to have read).

To be sure, the Constitution can be amended to respond to evolutions. This power of constitutional amendment proves us right in the analysis of the passage of time. One must admit that its very existence shows that the original constituants have asked the posterity not to rely too much on their intent. Bork has little to say about this power of constitutional amendment that contradicts his claim that decisions of the Supreme Court are final. The fact that the legislator does not use this power more often against the decisions of the Court indicates that these decisions are not the will of ‘nine judges’ only. Bork advocates leaving many issues which the Supreme Court have dealt with recently to the legislative bodies, but the legislator has not used its constitutional power to oppose the Court’s decisions. To be sure, there exists an asymmetry between the decision procedure by the Court and the amendment procedure, the latter allowing for a minority veto, and that would confirm Bork that the will of the majority can be held in check. On the other hand, the Court’s decisions are allowed to be countermajoritarian only to a small degree, because if it were to a higher degree its decisions would be defeated by amendment more often than not.

*

To conclude, the following comparative law study will illustrate the tendencies of the political caste in continental Europe. (It is no accident that the United Kingdom of all European countries left the European Union: Common law is incompatible with this bureaucratic mess.)

In the US, the ACLU (American Civil Liberties Union) defended the American Nazi party, in National Socialist Party of America v. Village of Skokie (1977), and Nazi organizations are protected by freedom of association and freedom of speech. Needless to say, this is not the case in France, where civil liberties organizations would be on the frontline, and vociferously so, to oppose the legal existence of such parties. We know of a legal Nazi party in Denmark too, with swastikas and like paraphernalia, and we are trying to find more on the legal issues involved, as Denmark belongs to the EU and the Council of Europe, which have guidelines to fight ‘extremism’ so it should be easy to terminate these national protective laws but still the Danish Nazi party exists and is legal.

The position of some American Conservatives on free speech is disappointing, they tend to ask for a European model, like Justice Thomas on libel (US libel law is much more protective of speech than France’s) or Robert Bork on flag burning (constitutionally protected in the US whereas it is a criminal offense in France, where one may get six months jail time).

I agree with the latter, however, that pornography does not deserve the same protection. The US still makes a distinction between pornography and obscenity (which includes some pornography), allowing to prosecute the latter, which difference, of course, does not exist in France, where pornography is more protected than political speech.

The first amendment is good protection against state encroachments, but the issue is rising as to how one deals with private encroachments by internet platforms, Twitter, Facebook, etc. Their lobbyists argue that Section 230 protects platforms’ free speech as private actors. Their moderation and censorship is the platforms’ free speech, so the platforms would attack the repeal of S230 on first amendment grounds (cf previous Lessons). Yet they fail to see that the 1964 Civil Rights Act was needed because the Constitution does not protect minorities (ethnic, religious, etc) from private discrimination. As the 1964 Act stands in conformity with the Constitution, a bill that would prevent platforms to discriminate based on speech would equally be constitutionally unobjectionable. In the present state of the law, Twitter or Facebook could ban people based on the color of their skin and that would be legal and constitutional. The Supreme Court’s already named decision striking down racially exclusive private covenants (Shelley v. Kraemer) was dead on arrival, it has never been followed by other decisions, on the contrary the Court has ruled several times in the opposite direction, like in Evans v. Abney (1970) and Moose Lodge N° 107 v. Irvis (1972). Where the Civil Rights Act or Acts are silent, private discrimination is perfectly legal and constitutional in America. French legislators and courts have never granted private actors such room.

The European political caste, challenged by no judicial power worthy of the name, has forced the ‘liberal culture’ Bork is talking about on their people much more rabidly than the US Supreme Court on Americans.